UNIVERSITY OF CALIFORNIA LOS ANGELES N SCHOOL OF LAW LIBRARY r i?-i - ' X y t .YH i) JIK ttWJTfc FORMS ADAPTED TO THE PRACTICE IN VIRGINIA. BY CONWAY ROBINSON. VOLUME I. RICHMOND : PRINTED BY SHEPHERD AND COLIN and sold by Smith . Beecker, 7 Johns. 99, 542 Beirne &c. v. Dunlap, 8 Leigh .514, 509 Bell v. Allen's adm'r, 3 Munf. 118, 407 Bell v. Bugg, 4 Munf. 260, 590 Bell v. Reed, 4 Binn. 127, 73 Bennett v. Maule's adm'x, Gilm. 313, 421 Bennett's ex'or v. Loyd, 6 Leigh 316, 24.449 Benson v. White, 4 Dow. 334, 428 Bentley &c. v. Northhouse, 1 Mood. 4- Malk. 66, 553 Betts v. Kimpton, 2 Barn, fy Ad. 273, 250 Beverley v. Brooke, 2 Wheat. 100, 567 Beverleys v. Holmes, 4 Munf. 95, 501 Beverley v. The Lincoln gas light and coke company, 6 Ad. < E. 829, 499 liv CASES CITED. Bingley v. Durham, 8 Ad. fy E. 775, 500 Blackhouse v. Harrison, 5 Barn. 4" Ad. 1098, 566 Blackwell v. Patton &c. 7 Crunch 477, 176 Blakey v. Newby's adm'r, 6 Munf. 64, 562 Boiling T. Mayor &c. of Petersburg, 3 Rand . 578, 59 Borrodaile v. Lowe, 4 Taunt. 97, 437 Boswell v. Flockheart, 8 Leigh 364, 43 Boulton v. Welsh, 3 Bingh. JV- C. 688, 118.435 Bowden, ex'or of Moore v. Taggart, 3 Munf. 513, 414 Bowyer v. Chesnut, 4 Leigh 4, 361 Boyce &c. v. Edwards, 4 Peters 111, 427 Boydell &c. v. Drummond, 11 East 142, 550 Boyle v. Townes, 9 Leigh 158, 405 Bracegirdle v. Heald, 1 Barn, ty- Aid. 722, 550 Bramah v. Roberts &c. 1 Bingh. JV. C. 469, 424 Branch x. Bowman, 2 Leigh 170, 85 Branch &c. v. Randolph, 5 Call 546, 455 Branscomb v. Bridges &c. 1 Barn. fy Cress. 145, 573 Bray &c. v. Hadwen, 5 M. $ S. 68, 432 Bream v. Marsh, 4 Leigh 24, 484 Broad v. Ham, 5 Bingh. JV. C. 722, 591 Brockenbrough v. Ward's adm'r, 4 Rand. 354, 482. 552 Bronaugh & Co. v. Scott, 5 Call 78, 516 Brooks v. Scott's ex'or, 2 Munf. 345, 551 Brown v. Barry, 3 Ball. 365, 426. 441 Brown & Rives v. Ralston & Plea- sants, 9 Leigh 532, 551 Brown & Sons v. Ferguson, 4 Leigh 37. 50, 426. 431, 2, 6 Brown v. Shields, 6 Leigh 440, 5, 527. 579 Buck v. Fouchee and wife, 1 Leigh 64, 17. 65 Buckner . Finley &c. 2 Peters 586, 425 Buckner &c. v. Mitchell's ex'or, 2 Munf. 336, 415 Bull D. Neale, 3 Barn, fy Aid. 208, 405 Bullitt's ex'or v. Winstons, 1 Munf. 269, 242 Burley v. Griffith, 8 Leigh 442, 571 Burnett &c. v. Harwell &c. 3 Leigh 94, 449 Burnley v. Lambert, 1 Wash. 308, 562 Bush v. Earl of Liverpool, 9 Barn. fy Cress. 392, 550 Bussard v. Livering, 6 Wheat. 102, 431 Buster's ex'or v. Wallace, 4 Hen. 8f Munf. 82, 445 Butcher v. Hixton, 4 Leigh 519, 446 Bynner v. Russell, 1 Bingh. 23, 402 Cabell &c. v. Hardwick, 1 Call 345, 452 Call v. Ruffin, 1 Call 333, 452 Calt &c. v. M'Mechen, 6 Johns. rep. 160, 73 Cameron v. Lightfoot, 2. W. Bl. 1190, 554 Candler &c. v. Rossiter, 10 Wend. 487, 502 Carter v. Ring, 3 Camp. 459, 411 Carthrae v. Brown, 3 Leigh 98, 486 Carthrae v. Clarke, 5 Leigh 268, 65. 84 Carrington v. Anderson, 5 Munf. 32, 469 Carr's ex'or v. Anderson, 2 Hen. fy- Munf. 365, 361 Catlett's ex'or v. Russell, 6 Leigh 344, 35. 145. 238. 247 Caton & Veale v. Lenox &c. 5 Rand. 331, 515, 17 Cave v. Shelor and wife, 2 Munf. 193, 590 Chambers v. Caulfield, 6 East 244, 593 Chapline v. Overseers of poor, 7 Leigh 231, 286 Chapman v. Chevis, 9 Leigh 297, 292 Chesterman v. Lamb, 2 Ad. fy E. 129, 528 Chichester v. Vass, 1 Call 83, 549 Childers v. Bulnois, 1 Dow. $ Ry. JV. P. cas. 8, 551 Christopher v. Stockholm, 5 Wend. 36, 406 Church v. The Imperial gas light and coke company, 6 Ad. fy E. 846, 500 Clare v. Maynard, 7 Car. $ Payne 741, 529 Clark v. Franklin, 7 Leigh 7, 482, 4 Clarke v. Morey, 10 Johns. 69, 16 Clarke v. Russell, 3 Doll. 415, 426 Clarke v. Young & Co. 1 Crunch 180, 516 Cleaton v. Chambliss, 6 Rand. 91, 59. 62. 65 Cloud v. Catlett's ex'or, 4 Leigh 462, 257. 264. 273 Cloves v. Williams, 3 Bingh. JV. C. 32, 444 Cobbs v. Fountaine, 3 Rand. 484, 408 Cocker v. Crompton fcc. 1 Barn, fy Cress. 489, 556 Cody's adm'r . Price, 4 Munf. 307, 447 Coiner v. Hansberger, 4 Leigh 452, 516 Colgin v. Henley, 6 Leigh 85, 544, 5 Collins v. Lord Matthew, 5 East 273, 64 Collins v. Martin, 1 B. fy P. 648, 424 Columbia bank v. Hagner, 1 Peters 455, 482 Columbia bank v. Patterson's adm'r, 7 Cranch 306, 499 Commonwealth v. Haines, 2 Va. Cas. 134, 265 Commonwealth v. Hite, 6 Leigh 588, 328 CASES CITED. Iv Commonwealth x. Winstons, 5 Rand. 546, 335 Cooke x. Scale's ex'or, 1 Wash, 313, 66 Cooke v. Graham's adm'r, 5 Munf. 172, 75 Cooke x. Sims, 2 Call 39, 502 Cooke v. Thornton, 6 Rand. 8, 555, 6 Coolidge and others v. Payson and others, 2 Wheat. 66, 427 Cooper r. Bissell, 16 Johns. 146, 405 Cooper r. Blandy &c. 1 Bingh. ff. C. 45, 158 Corbett &c. r. Brown, 8 Bingh. 33, 584 Corbett v. Packington, 6 Barn. 4' Cress. 268, 405 Corbin's adm'r x. Southgate, 3 Hen. if Munf. 319, 444 Couch x. Hooper, 2 Leigh 557, 545 Couch T. Miller, 2 Leigh 545, 275 Cowling r. Nansemond justices, 6 Rand. 252, 452 Crawford &c. r. Jarrett's adm'r, 2 - 633, 9, 41. 78. 536 Crow r. Rogers, 1 Str. 592, 501 Cruger v. Armstrong &c. 3 Johns. cas. 5, 553 Culpeper agricultural and manu- facturing society T. Diggs &c. 6 Rand. 165, 404 Cunliffe &c. v. Whitehead, 3 Bin^A. JV. C. 828, 504 Cunningham v. Mitchell, 4 Rand. 189, 371 Currie's adm'rs r. M. A. Society, 4 tfen. 4* .Munf. 315, 283 Cutler r. Hinton, 6 Rand. 509, 518, 543, 4 Cuyler r. Stevens, 4 JFeno 1 . 556, 432 D Dabney v. Taliaferro, 4 .Rand. 256, 569 Dakin v. Williams &c. 11 Wend. 67, 484 Dalton r. Smith, 2 Smith's rep. 618, 405 Daniel r. Morton, 4 -Vun/. 120, 543 Daniel's ex'or x. Cook, 1 Wash. 306, 486, 7 Darbeshire &c. -a. Parker, 6 East 3, 432 Davis v. Gyde, 2 ^. Buck, 5 Munf. 263, 283 Greenlee's adm'r v. Bailey, 9 Leigh 256, 38. 145. 238. 247 Grimes n. Pendleton, 4 Call 130, 413 Guerrant v. Bagby, 6 Munf. 160, 169 Hairston v. Hall, 3 Call 218, 561 Hairston v. Woods, 9 Leigh 308, 377 Hall v. Smith &c. 3 Munf. 550, 519. 552 Halliday v. M'Dougall &c. 20 Wend. 81, ' 425.430 Hamlin's adm'r v. Atkinson &c. 6 Rand. 579, 453 Harker . The mayor &c. of New York, 17 Wend. 199, 404 Harpers &c. v. Patton, 1 Leigh 306, 277 Harris v. Duncan, 2 Ad. $ E. 158, 142, 3 Harris v. Harris, 2 Rand. 437, 552 Harris v. Nicholas, 5 Munf. 483, 558 Harrison's adm'r v. Raine's adm'r, 5 Munf. 451, 517 Hartley v. Case, 4 Barn, fy Cress. 339, 434 Hartshorne v. Willis, 3 Munf. 557, 486 Hawkes &c. v. Salter, 4 Bingh. 715, 432 Hawkins &c. x. Plomer &c. 2 W. El. 1048, 455 Hawthorn v. Hunter, 8 Leigh 411, 28 Heath v. Sansom and Evans, 2 Barn. fyAd. 291, 424 Heath &c. v. Blaker &c. 2 Fa. Cas. 215, 140 Heffernan's ex'or v. Vidal, 6 Munf. 27, 557 Henry 0. Stone, 2 J?arad. 461, 59. 66 Henry &c. v. Burbridge, 3 Bingh. JV. C. 501, 506 Hensworth v. Fowkes, 4 Barn fy Ad. 449, 405 Hey wood*. Collinge, 9 .fld. fy .268, 592 Hicks 0. Beaufort, 4 tfZ^/t. JV. C. 229, 437 Highmore v. Primrose, 5 M. . Ross, 4 CaZZ 604, 482 Lundie v. Robertson, 7 as 231, 437 Lynch v. Thomas, 3 Leigh 682, 49. 561, 2 M Mack v. Spencers, 4 Wend. 411, 553 Mackay &c. #. Bloodgoods, 9 Johns. 285, 415 Mackie's ex'or . Davis &c. 2 Wash. 219. 231, 515 Macon 0. Crump, 1 Call 575, 496, 8 Maitland v. M'Dearman, 1 Va. Cas. 131, 147 Manns v. Givens &c. 7 Leigh 689, 342 Manufactory Union cotton v. Lob- dell &c. 13 Johns. 462, 405 Marietta bank x. Pindall, 2 Rand. 477, 418 Marine insurance company v. Young, 1 Crunch 331, " 499 Marshall v. Buzzard, Gilm. 9, 591,2 Marsteller &c. v. M'Clean, 7 Cranch 156, 86 M. A. Society v. Faxon &c. 6 Wheat. 606, 283 M. A. Society x. Korn &c. 7 Cranch 396, 283 M. A. Society x. Stone &c. 3 Leigh 218, 283 M. A. Society x. Walls's ex'or, 1 Wheat. 279, 283 The mayor &c. of Reading r. Clarke, 4 -Barn. 4. .4W. 268, 565 Mays x. Callison, 6 Leigh 230, 575 M'Clung v. Arbuckle, 6 Munf. 315, 517 M'Daniel &c. v. Brown's ex'or, 8 Leigh 218, 297 M'Farland v. Hunter, 8 Leigh 489, 57 M'Kenzie v. Hancock, Ryan ^ Moody 436, 528 M'Kinstrey x. Solomons, 2 Johns. rep. 62, 497, 8 M'Million x. Dobbins, 9 Leigh 422, 135 M'Neil &c. x. Baird, 6 Munf. 316, 423 M'Williams x. Smith, 1 Call 125, 519. 552 M'Williams x. Willis, 1 Wash. 199, 545 Medina x. Stoughton, 1 Salk. 210, 527 Meredith's adm'r x. Duval, 1 Munf. 82, 472 Meredith's adm'x x. Duval, 1 Munf. . 76, 24. 472 Michie x. Wood's ex'or, 5 Rand. 571, 445 Miller x. Marshall &c. 1 Va. Cas. 158, 348 Iviii CASKS CITED. Miller fc. M'Leur, Gilm. 338, 473 Milligan v. Thorn, 6 Wend. 412, 590 Mills v. The bank of the United States, 11 Wheat. 431, 429 Milstead v. Redman, 3 Munf. 219, 520 Mitchell v. Scott &c. Henrico circ. ct. June 1840, 91 Monroe v. Webb's ex'or, 4 Munf. 173, 575 Moore v. Chapman, 3 Hen. fy Munf. 260,69, 361.554 Moore v. Fenwick, Gilm. 215, 407 Moore's adm'r v. Dawney &c. 3 Hen. fy Munf. 127, ' 558 Mortimer v. Bramfield, 3 Munf. 122, G62 Morton v. Rogers, 14 Wend. 580, 423, 4 Mosely v. Boush &c. 4 Rand. 392, 552 Mosely v. Jones, 5 Munf. 23, 501 Moss v. Stipp, 3 Munf. 159, 550 Moss &c. v. Moss's adm'r, 4 Hen. fy Munf. 304, 455 Mowry v. Miller, 3 Leigh 561, 403.591,2 Murphy &c. v. Staton, 3 Munf. 239, 522 Murray v. Nichols &c. 6 Bingh. 530, 146 Murrell n. Johnson's adm'r, 1 Hen. fy Munf. 450, 471 Myer &c. v. Cole &c. 12 Johns. 349, 406 Myers & Son v. Friend & Scott, 1 Rand. 12, 422. 560 N Naylor v. President &c. of literary fund, 5 Leigh 71, 284 Nelson v. Anderson, 2 Call 286, 473 Nelson v. Fotterall, 7 Leigh 179, 426, 7. 431 Nelson v. Fotterall, 7 Lei^A 220, 441 Newby's adm'r v. Blakey, 3 Hen. fy Munf. 57, 562 Newcomb v. Drummond, 4 Leigh 57, 446 Newell v. Wood, 1 Munf. 555, 141 Newsum v. Newsum, 1 Leigh 86, 562, 4 Newton r. Wilson, 3 Hen. fy Munf. 470, 445 Noland r>. Cromwell, 6 Munf. 185, 181, 2 Norris v. Salomonson, 4 5cott 257, 438 Northrup v. Northrup, 6 Cow. 296, 483 O Obin v. Knott, Fortescue 339, 63 Olinger v. M'Chesney, 7 Leigh 660, 574. 590 Onondaigua county bank v. Carr, 17 Wend. 443, ' 404 Overton and wife . Hudson, 2 Wash. 172, 534 P Page's adm'r v. The bank of Alex- andria, 7 JFAeaJ. 35, 553 Parker v. Crane, 6 Wend. 647, 501 Parker . Elliott, 6 Munf. 587. GiZm. 23, 594 Pasteur . Parker and wife, 3 458, 545 Pate v. M'Clure &c. 4 Rand. 170, 436 Patershall v. Tranter, 3 Ad. $ E. 103, 529 Payne's ex'or v. Sampson, 2 Wash. 155, 487 Pearpoint v. Henry, 2 Wash. 192, 565 Peasley v. Boatwright, 2 Leigh 195, 408 Pegram v. Thornton's adm'r, 467 Pell v. Lovett, 19 Wend. 546, 405 Pendred's adm'r v. Pendred, 2 Va. Cas. 93, 147 The people v. Brush, 6 Wend. 454, 456 The people v. Haddock, 12 Wend. 475, 136 The people v. The judges of West- chester, 4 Cow. 73, 344 The people v. Van Eps, 4 Wend. 387, 406 The people at the relation of Trem- per v. The judges &c. of Ulster, 1 Johns, rep. 64, 345 Peter v. Cocke's ex'or, 1 Wash. 257, 407 Perkins &c. v. Giles, governor, 9 Leigh 401, 455, 56 Phillips v. Shaw, 4 Barn, fy Aid. 435, 403 Pierce v. Crafts, 12 Johns. 90, 553 Pierce v. Harris &c. 10 Bingh. 331, 134 Pilmore v. Hood, 5 Bm-A. JV. C. 97, 578 Pleasants 0. Clements, 2 Leigh 474, 78 Pleasants . Pendleton, 6 .Rand. 503, 523 Pluck v. Diggs &c. 5 Bligh's par. cas. JV. S. 31, 157 Poindexter v. Waddy, 6 Munf. 420, 415 Poindexter i>. Wilton &c. 3 Munf. 183, 486 Polhill v. Walter, 3 Barn, fy Ad. 114, 584 Pollard &c. v. Dwight &c. 4 Cranch 421, 485 Pope . Tillman, 7 7aun*. 642, 155 Porter v. Nekervis, 4 Rand. 359, 407 Potten v. Bradley, 2 Moore fy Payne 78, 155 Potter v. Scoville, 5 Wend. 96, 175 Poultin v. Lattimore, 9 Barn. 4" Crew. 259, 529 Preston . Bowen, 6 Munf. 271, 578 Preston #. Harvey, 2 Hera. ^ Munf. 55, 170 Price . Easton, 4 Barn. ^ #<* 433, 501 Price v. Harris &c. 10 Bingh. 557, 148 Priddy &c. n. Henbrey, 1 .Barn. <^ Cress. 674, 443 Proudfit v. Murray, 1 Call 394, 140 Pulliam's ex'x v. Johnson &c. 4 Munf. 71, 414 Purcell v. Macnamara, 9 East 157, 403 CASES CITED. lix R Raborer &c. r. Peyton, 2 Wheat. 385, 443, 4 Ragsdale *. Batte, 2 ffa*L 201, 447 Randolph v. Hill, 7 Lei^A 383, 568 Rathburn r. Emigh, 5 Wend. 409, 10, 406 Ray v. Clemens, 6 Leigh 600, 136 Raynolds &c. . Douglass &c. 12 Peters 505, 437 Reading mayor &c. a Clarke, 4 Barn. <^ .4W. 268, 565 Reed v. Hanna's ex'or, 3 Rand. 59, 84 Rees v. Conococheafue bank, 5 Rand. 326, 404. 423 Reeves &c. . Ward's ex'x, 2 Bingh. JV. C. 235, 80 Renner v. The bank of Columbia, 9 Wheat. 581, 429 Respublica T. Cobbett, 3 Yeates 93, 260 Richards x. Brockenbrough's adm'r, 1 Rand. 449, 497 Richardson T. Perkins, 4 Munf. 512, 575 Robertson &c. v. Taylor, 2 Chitty 454, 455 Robertson &c. . Williams &c. 5 Munf. 381, 422 Robinson v. Alexander, 8 Bligh. JV. S. 352, 85 Rochefeller v. Robinson, 17 Wend. 206, 553 Rowe v. Young, 2 Brod. fy Bingh. 165, 428 Royall v. Eppes, 2 Munf. 478, 561,2 Ruble v. Turner &c. 2 Hen. fy" Munf. 38, 78 Russell r. Langstaffe, Doug. 514, 422 S Salter TJ. Burt, 20 Wend. 206, 429 Saunders v. Marshall &c. 4 Hen. fy Munf. 455, 516 Schimmelpinnick &c. w. Bayard &c. 1 Peters 285, 427 Schultz v. Astley, 2 JSmg'A. JV. C. 544, 421 Scott w. Hornsby, 1 Call 46, 140, 41 Scott's ex'ors T. Call, 1 Wash. 115, 441 Sexton r. Holmes, 3 Munf. 566, 502 Sexton &c. . Johnson, 10 Johns. 418, 552 Shaver v. White & Dougherty, 6 Munf. 110, 590 Shelton r. Pollock & Co. 1 Hen. fy Munf. 423, 415 Shelton's ex'ors v. Welsh's adm'ra, 7 L>A 175, 335. 382. 406 Shobe's ex'or v. Carr and wife, 3 Munf. 10, 84 'Sikes v. Ransom, 6 Johns, rep. 279, 343 Simms &c. v. Slacum, 3 Crunch 300, 471 Sims v. Alderson,8 Leigh 47d, 481 Skipwith v. Baird, 2 Wash. 165, 441 Skipwith v. Morton & Co. 2 Call 277, 83 Slacum v. Pomeroy, 6 Cranch 221, 441 Slacum v. Simms &c. 5 Cranch 363, 471 Slaughter v. Green ajid others, 1 Rand. 3, 521 Slacum &c. v. Despard, 8 Wend. 615, 483 Smith v. Michie's ex'or, 1 Wash. 135, 549 Smith r. Richards, 13 Peters 36, 67 Smith v. Segar, 3 Hen. fy Munf. 394, 443, 4 Smith v. Westall, 1 Ld. Raym. 316, 550 Smith and others v. Jansen, 8 Johns. Ill, 472 Smith & Richard v. Triplett &. Neale, 4 Leigh 590, 517 Smith and wife v. Townes's adm'r, 4 Munf. 193, 561 Smith's adm'r v. Smith, 2 Johns. 235, 552 Snow v. Peacock, 3 Bingh. 406, 566 Snow &c. v. Saddler, 3 Bingh. 610, 566 Society Culpeper agricultural and manufacturing v. Digges &c. 6 Rand. 165, 404 Solarte &c. v. Palmer &c. 7 Bingh. 530, 435 Solomons . Stavely, 3 Doug. 300, 441 Spencer v. Pilcher, 8 Leigh 565, 567 Spottswood v. Price, 3 Hen. fy Munf. 123, 447 Spyer v. Thelwell, 2 Cro. M. fy R. 692, S. C. Tyr. $ Gr. 191, 500 Starkey v. Cheeseman, 1 Salk. 128, 506 State v. Whyte &c. 2 JVott fy M'C. 174, 347 State bank v. Hurd, 12 Mass. R. 172, 552 Steele r. Boyd, 6 Leigh 547, 243 Steptoe's adm'rs v. Harvey's ex'ors, 7 Leigh 501, 66- 85 Stevens &c. T. Bransford &c. 6 Leigh 246, 469 Stevenson v. Hunter, 6 Taunt. 406, 402 Strange v. Wigney, 6 Bingh. 677, 566 Stratton v. Hill, 3 Price 253, 2 Chitty 226, 443 Stratton v. M. A. Society, 6 Rand. 22, 283 Stubb's v. Burwell, 2 Hen. $ Munf. 536, 515, 19 Sutton v. Mandeville, 1 Munf. 407, 530 Swasey v. Little &c. 7 Pick. 296, 542 Syme r. Griffin, 4 Hen. ^ Jtfuw/. 277, 472 Tabb's adm'r v. Binford, 4 Leigh 132, 487, 9 Taliaferro v. Robb, 2 Call 258, 543 Tapp 0. Lee, 3 B. fy P. 371, 583 Taylor T. Beck, 3 Rand. 323, 425 Ix CASES CITED. Taylor v. Rainbow, 2 Hen. fy Munf. 423, 554 Taylor 0. Richards, 2 Mimf. 8, 80 Taylor adm'r of Holloway a. Bruce, Gilm. 81, 421 Taylor's adm'r v. The bank of Alexandria, 5 Leigh 471, 403 Taylor's devisees v. Rightmire, 8 Leigh 468, 188 Terry &c. r. Parker, 6 Ad. fy E. 502, 435 Thompson v. Gumming, 2 Leigh 321, 426 Thornton v. Wynn, 12 JFfteo*. 187, 436 Throckmorton v. Cooper's lessee, 3 Munf. 93, 180 Tinney v. Ashley &c. 15 Pick. 546, 482 Tomlinson . Gell, 6 ^^. $ . 564, 543 Townsley v. Sumrall, 2 Peters 170, 8, 9, 426. 430 Travis v. Claiborne, 5 Munf. 435, 564 Truss v. Old, 6 Rand. 556, 555 Turberville v. Self, 4 CaZZ 580, 158 Turner v. Leech, 4 Barn, fy Aid,. 451, 431 Turner &c. v. Chinn's ex'ors, 1 Hen. fy Munf. 53, 449 U Union cotton manufactory v. Lob- dell &c. 13 Johns. 462, 405 United States V. Hamilton, 3 DaL 17, 356 United States bank v. Carneal, 2 Peters 542, 428 United States bank v. Daniel &c. 12 Peters 32, 425 V Van Orden v. Van Or den, 10 Johns. 30, 542 Vaughan's adm'r t>. Winckler's ex'or, 4 Munf. 136, 560 Vine v. Saunders, 4 Bingh. 96, 555 Violet v. Patton, 5 Crunch, 142. 153, 516. 544 W Waddill v. Chamberlayne, gen. ct. 1735, Jefferson's rep. 10, 579 Waggoner v. Gray's adm'rs, 2 Hen. fy Munf. 611, ' 543 Wagstaffe v. Boardman, 9 Dow. fy Ry. 248, 554 Walden v. Craig, 9 Wheat. 576, 176 Walker v. Laverty and Gantley, 6 Munf. 487, 436 Wallace v. M'Connell, 13 Peters 136, 428 Waller's ex'ors v. Ellis, 2 Munf. 88, 417, 18 Ward v. Vass, 7 Leigh 135, 244 Ward &c. n. The Fairfax justices, 4 Munf. 494, 452 Washington bank v. Triplett and Neale, 1 Peters 35, 426, 8, 9 Watkins v. Crouch & Co. 5 Leigh 522, 428 Watkins's ex'ors v. Tate, 3 Call 251, 413 Watson v. Denton, 7 Car. fy Payne 85, 529 Watson v. Lyle's adm'r, 4 Leigh 236, 85. 330, 1 Waynam n. Bend, 1 Campb. 175, 553 Webb v. Baker, 7 ^d. ,/ E. 841, 500 Webster &c. v. Hoban, 7 Crawc/t 399, 524 Weedon v. Timbrell, 5 T. R. 357, 593 Weld v. Fisher, 4 Pzc/k. 421, 553 Wells v. Girling, I Gow. 21. note, 552 Wells v. Horton, 4 Bm^A. 40, 550 Wheeler v. Curtis &c. 11 Wend. 653, 551 White v. Clay's ex'ors, 7 Leigh 68, 84 White r. Toncray, 9 Leigh 347, 93 Whitlock v. Ramsay's adm'x, 2 Munf. 510, 407 Whitworth . Adams, 5 Rand. 333, 375. 425. 519 Wilkes v. Jackson, 2 Hen. fy Munf. 355, 78 Wilkinson v. Hendrick, 5 Call 12 276 Wilkinson & Co. v. Holloway, 7 Leigh 277, 87 Williams v. Jones, 5 Barn, fy Cress. 108, 550 Williams v. Knubley, 7 East 128, 496 Williams v. Moore, 3 Munf. 310, 566 Williams v. Waring, 10 Barn, fy Cress. 21, 428 Wilson v. Bank of Mount Pleasant, 6 Leigh 570, 62 Wilson v. Codman's ex'or, 3 Cranch 208, 9, 84. 419 Wilson v. Crowdhill, 2 Munf. 302, 443, 4 Wilson v. Isbell, 5 Call 427, 8, 166 Wilson v. Lenox, 1 CrancA 193, 426 Wilson v. Shackleford, 4 Rand. 5, 577 Wilson . Wallace, 8 Serg-. 4" Rawle 53, 60 Wingfield #. Crenshaw, 4 Hen. i^ Jtfwra/. 474, 517 Winston v. Overseers of poor, 4 Call 357, 150. 370 Winston's ex'or v. Francisco, 2 Wash. 187, 502 Wise a. Withers, 3 Cranch 331, 558 Withers's ex'x . Withers's ex'or, 6 Munf. 10, 562 Wood v. Carr's ex'or, 1 CaM 232, 431 Wood v. Commonwealth, 4 Rand. 330, 266 Woodford's heirs v. Pendleton, 1 Hen. fy Munf. 303, 476. 487, 8 Woodson -D. Johns, 3 Munf. 230, 473 Woody T. Flournoy, 6 Munf. 306, 502 Woody v. Flournoy, 6 Munf. 506, 533 Wright's adm'r v. Stockton, 5 Leigh 153, 77 Y Young v. Gooch and Brown, 2 Leigh 596, 555 Young v. Gregorie &c. 3 Call 446, 591 Young v. Murphy, 3 Bingh. JV. C. 54, 521 Young v. Preston, 4 Cranch 239, 498 ERRATA. On pages 32 and 33. the forms numbered 30, 31, 32 and 33 should have been numbered 8, 9, 10 and 11. On page 92. in last line of No. 73, for heretfore read therefore On page 103. after No. 29, the forms, instead of being numbered 27, 28, &c., to the end of the chapter, should have been numbered 30, 31, &c. From page 509 to 544. the forms, instead of being numbered 11, 12, &c., should be 12, 13, &c. BOOK I. FORMS IN THE COURTS OF LAW IN CIVIL CASES. CHAPTER I. PROCESS BY WHICH COMMON PERSONAL ACTIONS ARE COM- MENCED. 1. Attorney's memorandum for the capias. Issue a capias for A. B.v. C. D. and E. F. of a plea of debt for $ with interest thereon from the day of till paid, and S charges of protest. Damage $20. En- dorse " This is an action of debt founded upon a note in wiiting of the defendant C. D. for the payment of money, which note was made negotiable and payable at the bank of Virginia, was endorsed by the defendant E. F. and has been protested for nonpayment. Bail is required of the defendant C. D. but no bail is required of the defendant E. F. G. H. attorney for pltf." To the clerk of the circuit superior court of law") and chancery for the county of H. (or, to the I clerk of the county court of H. or, to the clerk | of the court of hustings for the city of J?.) In other cases, the memorandum will conform to the nature of the action ; as for example In debt on a penal obligation. of a plea of debt for S . Damage $20. Endorse "This is an action of debt founded upon a writing obligatory for the payment of money. Bail is required." Or, " This action is founded upon a bond with col- lateral condition. No bail is required." In debt, where no penalty and no protest. of a plea of debt for $ with interest thereon from the day of till paid. Damage $20. Endorse " This is an action of debt 2 Process to commence personal actions. founded upon a note in writing for the payment of money. Bail is required." Or, if the paper be sealed, " This is an action of debt founded upon a single bill for the payment of money. Bail is required." In covenant. of a plea of covenant broken. Damage $ . Endorse " This is an action for the breach of a covenant made by the defendant with the plaintiff. Bail is required." In detinue. of a plea of detinue for a negro man slave named , of the value of $ . Damage $ . Endorse " This is an action of detinue for the slave within named. Bail is required." In case. of a plea of trespass on the case. Damage $ . Endorse " This is an action for the nonperformance of promises and undertakings. No bail is required." Or, " This is an action for the conversion by the defendant of the property of the plaintiff. No bail is required." Or, " This is an action for slanderous words spoken of the plaintiff by the defendant. No bail is required." Or, " This action is insti- tuted against the defendant for carrying a slave named , of the value of $ , owned by the plaintiff, out of this commonwealth" (or, " out of the county of H. into the county of C.) without the consent of his owner, and with intention to defraud or deprive the owner of his slave. And costs and ex- penses having been incurred by the plaintiff to the amount of $ in attempting to regain his said slave, the object of this action is to recover from the defendant double the value of the slave, together with double the amount of the said costs and expenses. Bail is required." In trespass. of a plea of trespass. Damage $ . Endorse " This is an action of trespass for" &c. (stating in general terms the nature of the trespass.) " No bail is re- quired." In T. A. fy B. of a plea of trespass, assault and bat- tery. Damage $ . Endorse " This is an action of trespass, assault and battery. No bail is required." In T. A. fy B. and false imprisonment. of a plea of tres- pass, assault and battery and false imprisonment. Damage $ . Endorse "This is an action of trespass, assault and battery and false imprisonment. No bail is required." Process to commence personal actions. 3 2. Capias to institute an action. 1 Rob. Prac. 120 to 126. The commonwealth of Virginia to the sheriff of H. county, greeting: We command you that you take C. D. if he be found within your bailiwick, and him safely keep, so that you have his body before the judge of our circuit superior court of law and chancery for our said county, at the courthouse, on the first day of the next term (or, at the clerk's office of our circuit superior court of law and chancery for our said county, at the rules to be holden for the said court on the first monday in next ; or, before the justices of the court of our said county, at the courthouse, on the first day of the next quarterly session of the said court) to answer A. B.* of a plea of &c. (here describe the action according to the memorandum). And have then there this writ. Witness J. R. clerk of our said court, at the court- house, this day of in the year of our foundation. * If the plaintiff be an infant, the memorandum and the writ will both describe him as "A. B. an infant under the age of 21 years, who sues by E. F. his next friend." If the action be qui tarn, the memorandum will be " A. B. who as well for the commonwealth" (writ will say " t/s") " as for himself in this be- half prosecutes." If the plaintiffs be a corporation, then they sue by their corporate name, precisely as it is. Endorsement. This will be according to the memorandum. The words "No bail is required" will be omitted in the memo- randum and in the endorsement, where an application is made to a judge or justice of the peace to direct bail. 3. Affidavit to obtain bail. 1 Rob. Prac. 129. H. county, to wit : A. B. the plaintiff in the writ hereunto annexed, this day personally appeared before me, a justice of the peace for the said county, and made oath that the action of the said plaintiff is brought to recover the sum of 8 , due and owing from C. D. the defendant in the said writ, to the plaintiff, for goods sold and delivered by the said plaintiff to the said defendant, at his request. And the said plaintiff further made oath that the defendant is now justly indebted to him that sum, and that he the said plaintiff has good cause to apprehend, and verily be- lieves, that the said defendant intends to depart out of this commonwealth and beyond the jurisdiction of the court, before judgment can be obtained against him in the said action, so that process of execution upon the said judgment, when it shall be obtained, will be unavailing, unless the defendant be held to bail. Given under my hand this day of . 4 Process to commence personal actions. Justice's endorsement on the writ. 1 Rob. Prac. 129. Proper affidavit having been made, the sheriff is directed to take from the defendant bail sufficient for $ . Another affidavit.* Hampshire county, to wit : To the sheriff of said county. Before me the subscriber, a justice of the peace in and for said county, William Armstrong, agent for the within plaintiff, made oath that the within writ is sued out to recover the mesne profits of certain lands in said county, of said plaintiff's, which said defendant held for many years, and which mesne profits, within the said Wm. Armstrongs own knowledge, are worth or would amount to one thousand dollars at least, arid that the said William Armstrong hath good cause to believe that said defendant will move out of this commonwealth before the determination of said suit: that said Jeremiah Ashby is an in- habitant of the state of Ohio at this time. You are therefore hereby commanded to take good bail of the said George Kiger in the sum of one thousand dollars. Given under my hand this 21st day of August 1818. Henry CooJcus. * This is a copy of the affidavit in Jlshby v. Kiger, 3 Rand. 50. cited in 1 Rob. Prac. 20. The affidavit was considered by the court of appeals in that case to be " full and a proper affidavit." 4. Summons against a judge of the general court. 1 Rob. Prac. 20 and 130. The commonwealth &c.* Whereas A. B. desires to sue C. D. of a plea of &c. (here describe the action) and the said C. D. being a judge of the general court, and the judge of the circuit superior court of law and chancery for the circuit, and residing in the county of , one of the counties com- posing the said circuit, the suit is one which, in the case of any other person, would have been proper for his jurisdiction ; but because the said C. D. is interested in the said suit, it is proper the same should be instituted in some court within an adjacent circuit: Therefore we command you that you summon the said C. D. to appear before &c. (or, at &c.) to answer the said A. B. of the plea aforesaid. And have &c. Witness &c. * The law provides that the process " may be served in the circuit to which such judge shall be allotted, or in which he shall reside ;" and it may be directed accordingly. Process to commence personal actions. 5 5. Summons against any other privileged person. 1 Rob. Prac. 130. We command you that you summon C. D. (he being the governor of this commonwealth or, he being a member of the council of state a judge of the court of appeals or the sheriff of the said county) to appear before &c. (or, at &c.) on &c. (as in the capias.) 6. Summons against a, bank in a suit instituted in the county where a brunch is established. 1 Rob. Prac. 20. 21. Whereas A. B. has a controversy with the president, direc- tors and company of the Farmers bank of Virginia) a bank within this commonwealth, established by the laws thereof, which controversy has arisen out of transactions between the said A. B. and the branch of the said bank in the town of Pe- tersburg, and the said A. B. desires to institute his suit on the said controversy in the circuit superior court of law and chan- cery for the said town of Petersburg, in which town the office of discount and deposit of the said branch bank is established : Therefore we command you that you summon* the president, directors and company of the Farmers bank of Virginia to appear &c. * According to the words of the statute, the suit is to be instituted " against any such branch bank;" which, literally carried out, would be giving, for a demand against a corporation, a suit against part of the corporation. All that the legisla- ture probably intended was to allow a suit against the corporation to be brought in the county or corporation where the branch was established, and to allow the summons instituting such suit to be executed " on the president, or, in his absence, the cashier of such branch bank." 7. Summons against a corporation in any other case. 1 Rob. Prac. 130. Sess. Acts 1836-7, p. 44. ch. 68. We command you that you summon the -&c. (describing the corporation by its corporate name) to appear &c. 8. Confession of judgment in the office. Sess. Acts 183940, p. 46. ch. 53. 1. This day came as well the plaintiff by his attorney, as the defendant in his proper person, and the said defendant acknow- ledges the plaintiff's action for* the debt and interest in the said writ mentioned, and the costs : Therefore it is considered that the plaintiff recover against the defendant $ 100. with interest thereon to be computed after the rate of six per centum per annum from the day of till payment, the debt and 6 Process to commence personal actions. interest aforesaid, and his costs by him about his suit in this behalf expended. And the said defendant in mercy &c. * If the judgment be confessed for only part of the demand, say "for $ part of the debt (or, damages) in the said writ mentioned, with interest thereon from the day of till paid, and the costs: and the plaintiff being willing to take a judgment for the same, it is therefore considered that the said plaintiff recover against the defendant the said $ , with interest thereon to be computed after the rate of six per centum per annum from the said day of till" &c. (as before.) If the action be on a penal obligation, say " for the debt in the said writ mentioned, and the costs : Therefore it is consi- dered that the plaintiff' recover against the defendant $ 100. the debt aforesaid, and his costs &c. mercy &c. But this judgment, by consent of the plaintiff, is to be discharged by the payment of $ , with interest thereon to be computed after the rate of six per centum per annum from the day of till payment, and the costs." 9. Notice by defendant in custody, that he will confess judgment in the clerk's office. 1 Rob. Prac. 137, 8. Sess. Acts 1839-40, p. 46. ch. 53. 1. To mr. A. B. Being now in custody of the sheriff of the county of jH. upon a writ of capias ad respondendum, sued out of the circuit superior court of law and chancery for the said county against me, to answer you of a plea of debt for $ 100. with interest thereon from the day of ; notice is hereby given you, that on the day of , between the hours of and , I shall, in the said suit, confess judg- ment in the clerk's office of the said court, for the whole amount of your demand, with costs, or for such part thereof, as you, in person or by attorney, may be willing to take a judgment for. Given under my hand this day of . Or, if the plaintiff resides out of the county or corporation : To E. F. attorney for A. B. Being now in custody of &c. upon a writ &c. to answer the said A. B. of a plea of debt for &c. and the said A. B. residing out of the said county of H. notice is hereby given you, as his attorney employed in the said suit, that on &c. between &c. I shall, in the said suit, confess a judgment in &c. for the whole amount of the said A. B.'s de- mand, with costs, or for such part thereof as he, in person or by attorney, may be willing to take a judgment for. Given under my hand &c. Process to commence personal actions. 7 10. Return of capias, where it is executed and the bail required is not given. 1 Rob. Prac. 136. Executed on the day of upon the defendant, who, in consequence of not giving bail, remains in custody. 11. Confession of judgment in the office by defendant in custody, and he, not being prayed in custody, discharged therefrom. 1 Rob. Prac. 137, 8. Sess. Acts 1839-40, p. 46. ch. 53. $ 1. The defendant being arrested and in custody of the sheriff of this county, upon the writ of capias ad respondendum issued in this cause, acknowledges the plaintiff's action &c. (as in No. S, to the end of the judgment.) Whereupon, it appearing that the defendant gave to the plaintiff (or, it appearing that the plaintiff resides out of this county, and that the defendant gave to his attorney employed in this suit) notice in writing, ten days pre- vious to this day, of the time at which he meant to make the said confession, and the defendant not being prayed in custody by the plaintiff or his attorney, in person or by an order in writing, the said defendant is therefore now discharged out of custody. 12. Confession of judgment in the office by defendant in custody, who is thereupon prayed in custody. 1 Rob. Prac. 137, 8. Sess. Acts 1839-40, p. 46. ch. 53. 1. At the foot of the judgment, say " And the plaintiff (or, the plaintiff's attorney) here in person, prays the defendant in cus- tody." Or: "And the plaintiff (or, the plaintiff's attorney) by an order in writing, prays the defendant in custody." Note. The statute provides that " if the defendant shall desire to take the oath of insolvency, in order to discharge himself from custody in any such suit or under any such judgment, it shall be lawful for him to do so, in the same manner as is or may be prescribed by law in other cases." By the prayer in custody the de- fendant stands charged in execution, and he can then give notice and proceed in other respects like other debtors charged in execution. 13. Confession of judgment in court by defendant in custody. 1 Rob. Prac. 136, 7. The defendant being in custody of the sheriff of this county for want of bail, this day came as well the plaintiff by his attor- ney, as the defendant in custody as aforesaid in his proper per- son, and the said defendant acknowledgeth the plaintiff's action 8 Process to commence personal actions. for the debt and interest in the writ (or, if there be a declaration, in the declaration) mentioned, and costs : Therefore it is consi- dered by the court that &c. (as in No. 8, to the end of the judgment.) Whereupon, the plaintiff not prajnng the defendant in execu- tion, it is ordered that the said defendant be discharged out of custody. Or: Whereupon, on the prayer of the plaintiff, the said de- fendant is committed in execution to the custody of the sheriff of this county, to remain in jail until he shall have satisfied this judgment, or shall be otherwise discharged by due course of law. 14. Return, where bail is given before the return day of the writ is past. 1 Rob. Prac. 134, 5, 6. I executed this writ upon the defendant on the day of , and took A. B. as his bail. The recognizance of the bail is returned herewith. 15. Bail being given in term time, order discharging defendant. 1 Rob. Prac. 136. A recognizance of E. F. as special bail for the defendant being filed, it is ordered that the defendant be discharged from custody. Or: E. F. of this county comes into court and undertakes for the defendant, that in case he shall be cast in this suit, he shall pay and satisfy the condemnation of the court, or render his body to prison in execution for the same, or that he the said E. F. will do it for him. Whereupon it is ordered that the defendant be discharged from custody. Or, if in detinue : E. F. of H. county comes into court and undertakes for the defendant, that in case he shall be cast in this suit, he the said defendant will satisfy the condemnation of the court, either by restoring to the plaintiff the specific property which he may recover in the said suit, and paying to him all costs and damages which he may recover therein, or by paying to the plaintiff the alternative value of such property, with the costs and damages aforesaid, or will render his body to prison in execution for the same, or that he the said E. F. will do it for him. Whereupon it is ordered &c. (as before.) Process to commence personal actions. 9 16. Return, where bail is not required and process is executed. I Rob. Prac. 133, 4, 6. If the capias or summons be executed on the defendant per- sonally, a general return of " executed on the day of " is sufficient. In the case of a summons against a privileged person, if it cannot be executed on the defendant personally, another mode of service is allowed. The sheriff may in such case return as follows : " I could not execute this summons on the defendant personally, but left a copy at his usual place of abode, ten days before the return day, to wit, on the day of ." If the summons be against an incorporated company, the re- turn may be as follows : " Executed by me, on the day of , in my county, upon A. B. who resides therein, and is the president of the incorporated company within mentioned." Or : " The president of the within named incorporated company being absent, I executed this summons on the day of , in my county, upon C. D. who resides therein, and is the cashier (or, treasurer) of the said company." Or : " In the absence of both the president and the cashier (or, treasurer) of the com- pany within named, I executed this summons, on the day of , in my county, upon E. F. who resides therein, and is a director of the said company." When the summons is like No. 6. against a bank upon a con- troversy arising with a branch, the return will be, " Executed by me, on the day of , in my county, upon A. B. the president of the branch bank within mentioned." Or: " The president of the branch bank within mentioned being absent, I executed this summons, on the day of , in my county, upon C. D. the cashier of the said branch bank." The return upon a summons against the corporation of a city, borough or town, or against an incorporated college or academy, or against a corporation of any other description, will be go- verned by the nature of the case, conforming as near as may be to the act of assembly. 17. Return of not found. 1 Rob. Prac. 138. I went to the dwelling house of the defendant, and not find- ing him, left there an attested copy of this writ. I therefore return that the said defendant is not found in my bailiwick. 18. Return of no inhabitant. 1 Rob. Prac. 138. The defendant is not an inhabitant of my county, but is a known inhabitant of the county of H. 2 10 Proceedings at rules. CHAPTER II. PROCEEDINGS AT RULES. 1. Entry where action abates by the return. 1 Rob. Prac. 174. The sheriff having made return that the defendant is not an inhabitant of this county, it is ordered that this suit abate and be dismissed. 2. Award of alias capias. 1 Rob. Prac. 174. The sheriff having made return that the defendant is not found within his bailiwick (or, the capias issued in this cause not being returned executed) on the motion of the plaintiff by his attorney, an alias capias is awarded against the said defen- dant, returnable at the next rules (or, on the first day of the next quarterly session.) 3. Alias writ. I Rob. Prac. 174, 5. We command you, as at another time we have commanded you, that you take &c. 4. Award of pluries capias. I.Rob. Prac. 174, 5. The sheriff having made return on the alias writ of capias issued in this cause, that the defendant is not found within his bailiwick (or, the alias writ of capias issued in this cause not being returned executed) on the motion of the plaintiff by his attorney, a pluries writ of capias is awarded &c. (as in No. 2.) 5. Pluries writ. 1 Rob. Prac. 174, 5. We command you, as often heretofore we have commanded you, that you take &c. 6. Award of testatum capias. 1 Rob. Prac. 175. The sheriff having returned on the writ of capias to answer in this action, that the defendant is not found within his baili- Proceedings at rules. 11 wick, and it being testified tha$ the defendant has gone into the county (or, corporation) of C. and therein lies hid or lurks, on the motion of the plaintiff by his attorney, a testatum capias is awarded him against the said defendant, returnable &c. (as in No. 2.) 7. Writ of testatum capias. 1 Rob. Prac. 175. Whsreas we lately commanded our sheriff of H. county, that he should take C. D. if he should be found within his bailiwick, and him safely keep, so that he might have his body before the judge of our circuit superior court of law and chancery for our said county, at the courthouse thereof, on the first day of the then next term, to answer A. B. of a plea of debt for $ 200, damage $20 ; and our said sheriff at that day made return that the said C. D. was not found within his bailiwick : Whereupon, on behalf of the said A. B. it is sufficiently testified to the judge of our said court, that the said C. D. has gone into your county, and lies hid and lurks therein : Therefore we command you that you take the said C. D. if he be found within your baili- wick, and him safely keep, so that you have his body before the judge of our said court, at the courthouse aforesaid, on the first day of the next term, to answer the said A. B. of the plea aforesaid. And have then there this writ. Witness &c. 8. Attachment awarded to force an appearance. 1 Rob. Prac. 175, 6. The sheriff having &c. (as in No. 6. to " within his baili- wick") and the said defendant not appearing, on the motion of the plaintiff by his attorney, an attachment is awarded him against the estate of the defendant, for $ 200, the debt in the said writ mentioned, and the costs, returnable &c. (as in No. 2.) 9. Process of attachment. 1 Rob. Prac. 175, 6. Whereas &c. (setting forth capias and return, as in No. 7.) Whereupon, on the motion of the said A. B. an attachment has been awarded against the estate of the said C. D. to force an appearance : Therefore we command you that you attach so much of the goods and chattels of the said C. D. as will be of value sufficient to satisfy and pay the said sum of $200 and costs, and that you secure the same in your hands, or otherwise provide that the same may be forthcoming and liable for pay- 12 Proceedings at rules. ment thereof, as the judge of our said court, on the first day of the next term, shall in that part consider. And have then there &c. 10. Sheriff's return upon attachment. 1 Rob. Prac. 175, 6. I have attached the following goods of the defendant, to wit: (here specify them.) The goods attached remain in my hands. Or: 1 executed this attachment upon the following goods of the defendant, to wit : (here specify them) and the defendant replevied the same by giving A. B. as his special bail, whose recognizance I took and herewith return. 11. Proclamation awarded. 1 Rob. Prac. 175. The pluries capias directed to the sheriff of this county being returned that the defendant is not found, on the motion of the plaintiff by his attorney, it is ordered that a proclamation issue, warning the defendant to appear here on the first day of the next term, or that judgment will be rendered against him. And it is further ordered that the said proclamation be published on three successive court days, at the door of the courthouse of this county, and also three times in the Richmond Enquirer. 12. Process of proclamation. 1 Rob. Prac. 175. We command you that you cause proclamation to be made according to law, warning J. M. to appear before the judge of our circuit superior court of law and chancery for the county of H. at the courthouse, on the first day of the next term, to an- swer J. S. of a plea of trespass on the case, damage $ 150*; or that, if he doth not so appear, judgment will be rendered against him in the said suit, now in our said court depending and undetermined. And have then &c. 13. Sheriff *' 's return upon process of proclamation. 1 Rob. Prac. 175. T have warned the defendant to appear on the day within named, or that judgment would be rendered against him. This warning was given as the law directs, by publishing the procla- mation on three successive court days, at the door of the court- house of my county, and also three times in a public newspaper, to wit, the Richmond Enquirer. The cost of the publication in the newspaper, being $ , has been charged to the plaintiff. Proceedings at rules. 13 14. Conditional judgment in a suit commenced by capias. 1 Rob. Prac. 169. This day came the plaintiff by his attorney, and filed his declaration. And the defendant being arrested (or, having given special bail) and not appearing, on the motion of the plaintiff, it is ordered that judgment be entered for the said plaintiff against the defendant for &c.* unless the defendant shall appear at the next rules and answer the plaintiff's action. * If in debt " for what shall appear to be justly due to the plaintiff, and also" (if the nature of the case make it proper) " for such damages as the plaintiff hath sustained by occasion of the detention of his debt. If in detinue " for the slave in the declaration mentioned, if he may be had, or the price of him if he may not be had, to- gether with damages for detaining him." If the action sound in damages " for what damages the plain- tiff ought to recover." If the action be for debt or damages, and against an executor or administrator, insert " to be levied of the goods and chattels of the decedent in the hands of the defendant to be administered," before the words " unless the defendant shall appear" &c. If the defendant be sued in his own right and be in custody, after the words " the defendant being arrested," add " and in cus- tody of the sheriff of this county." 15. Conditional judgment in a suit commenced by summons. 1 Rob. Prac. 170. In a suit against a privileged person. This day came the plaintiff by his attorney, and filed his declaration. And the defendant being summoned and not appearing, on the motion &c. (or, This day came &c. And a copy of the summons issued in this cause having been left at the defendant's usual place of abode, ten days before the return day, and the said defendant not appearing, on the motion &c.) In a suit against a corporation. This day came &c. And the summons being duly executed, and the defendants not appear- ing, on the motion &c. 16. Conditional judgment where officer is kept off by force of arms. 1 Rob. Prac. 175. This day came &c. And the sheriff having made return on the capias to him directed, that he has been kept off by force of arms, on the motion &c. 14 Proceedings at rules. 17. Conditional judgment after proclamation. 1 Rob. Prac. 175. This day came &c. And it appearing that the proclamation in this cause has been published on three successive court days, at the door of the courthouse of the county to which the last process was directed, and also three times in a public newspa- per, and the defendant failing to appear pursuant to such pro- clamation, on the motion &c. 18. Conditional judgment after attachment. I Rob. Prac. 176, 7. This day came &c. And the sheriff having executed the attachment issued in this cause, upon goods of the defendant, and the said defendant having replevied the same by giving special bail, on the motion &c. Or: This day came &c. And the sheriff having executed the attachment issued in this cause, upon goods of the defen- dant, and the said defendant failing to appear and replevy the same, on the motion of the plaintiff, it is ordered that judgment be entered &c. 19. Conditional judgment confirmed. 1 Rob. Prac. 169. 170. The defendant still failing to appear (or, the defendant ap- pearing, but not pleading any matter which answers the plain- tiff's action) on the motion of the plaintiff by his attorney, it is ordered that the conditional judgment entered in this cause at the last rules stand confirmed, and (if the case be one in which a writ of enquiry is proper] that the plaintiff's damages be ascer- tained by a jury at the next term. If the action be detinue, insert " price and damages," in lieu of the words " plaintiff's damages." 20. Rule to declare. 1 Rob. Prac. 140. This day came the defendant by his attorney, and a day is thereupon given the plaintiff until the next rules, to file his declaration ; and the same day is given the said defendant there &c. 21. Dismission for want of declaration. 1 Rob. Prac. 140. 262. The plaintiff having been ruled to file his declaration, and failing so to do, on the motion of the defendant by his attorney, it is ordered that the said plaintiff be nonsuited, and pay to the defendant five dollars according to law, besides the costs by the defendant about his defence expended. Proceedings at rules. 15 22. Dismission for want of declaration set aside in court. 1 Rob. Prac. 140. On the motion of the plaintiff by his attorney, who filed his declaration, it is ordered that the nonsuit entered at the rules for want of a declaration be set aside, and that the cause be reinstated upon the rule docket. 23. Plaintiffs next friend being dead, another admitted to sue. I Rob. Prac. 123. S. M. the plaintiff's father and next friend having died, B. G. M. a brother of the plaintiff is admitted to sue for him as his next friend. 24. Declaration filed against an infant. 1 Rob. Prac. 172. This day came the plaintiff by his attorney, and filed his de- claration. And the said plaintiff suggesting that the defendant is an infant, the cause is continued. 25. Guardian assigned by the court to defend an infant. 1 Rob. Prac. 172. On the motion of the plaintiffs by their attorney, A. B. is appointed by the court guardian ad litem to the infant defendant, to defend him in this suit. And it is ordered that notice be given the said guardian of his appointment, by serving upon him a copy of this order. 26. Appearance of infant defendant by guardian. 1 Rob. Prac. 173. This day came the infant defendant by his guardian &c. 27. After infant attains his age, appearance by attorney. 1 Rob. Prac. 173. The defendant C. D. having attained his full age, this day appeared by attorney &c. Or: The plaintiff, having attained his full age, this day came as well by his attorney, as the defendant by his attorney, and thereupon &c. 28. Plea to the jurisdiction. 1 Rob. Prac. 19. 20. and 160.* In the circuit superior court of law and chancery for the county of H. August rules 1837. 16 Proceedings at rules. C. D. ads A. B. And the said C. D. in his own proper per- sont comes and says, that this court ought not to have or take further cognizance of the action aforesaid, because he says, that at the time the writ of capias ad respondendum was issued against him in the said action, he resided in the county of C. and has ever since resided in the said county of C. and a non est inventus has not been returned! in his said county upon a capias issued against him for the same cause of action, but, without any such return, the said writ of capias ad respondendum from this court was issued against him in the county of H. being a county other than that in which he resided as aforesaid at the time it was issued, and other than that in which he still resides as aforesaid, contrary to the form of the statute in such case made and pro- vided. And this the said C. D. is ready to verify. Where- fore he prays judgment^ whether this court can or will take further cognizance of the action aforesaid. C. D. C. D. the defendant in the cause above mentioned maketh oath and saith, that the plea above written is true in substance and fact. C. D. Sworn to this day of , before me, a justice of the peace for the county of H. E. F. * The utmost strictness is required in these pleas, and a general demurrer to one of them has all the effect of a special demurrer. Tucker, P. in Hortons fyc. v. Townes, 6 Leigh 58. t The plea is bad if it be pleaded by attorney, instead of in person. Ibid. \ Concerning the pleading of exceptions and provisoes in statutes, see a well written article by Tlieron Metcalf esq. in the American Jurist, vol. 8. p. 233. In Hortons fyc. v. Townes, the plea prayed judgment of the writ and decla- ration, and that the same might be quashed. Tucker, P. said, the plea " ought to conclude with a prayer si curia cognoscere velit, or respondere non debet, and not quod billa cassetur." 29. Plea in abatement to the person of the plaintiff", that he is an alien enemy. Clarke v. Morey, 10 Johns. 69. In Bagwell v. Bale, 1 Rand. 272. a plea of alien enemy was filed. It alleged that the plaintiff, at the time of issuing the writ, was a subject of the king of Great Britain, then waging and carrying on war against this state and the citizens thereof. The defendant demurred to the plea; and the court of appeals was of opinion that it did not negative or affirm all the facts that were necessary. It did not negative the license of the plaintiff to remain in the country by virtue of the act of con- gress entitled " an act respecting alien enemies ;" nor did it affirm that he had been ordered off by the executive of the United States, in pursuance of that act. Until such order, the act gave permission to the alien to remain, though his sovereign was at war with us. Proceedings at rules. 17 30. Plea in abatement, that the plaintiffs, suing as husband and wife, never were married. If a scire facias by husband and wife, upon a judgment ob- tained by the wife dum sola, suggests a marriage after the judg- ment and before the emanation of the writ, and the plea is that the plaintiffs were not married at the time of the emanation of the ivrit, such plea will be bad on demurrer, because it does not deny that there had been a marriage, but merely alleges that such marriage did not continue at the date of the writ. It does not therefore deny the facts suggested in the writ. Neither does it allege, in a sufficient manner, any fact to avoid their effect. For if there was a marriage after the judgment, as suggested in the scire facias, and then a divorce before the emanation of the writ, such divorce should be particularly set forth in the plea. Buck v. Fouchee and wife, 1 Leigh 64. 31. Plea in abatement, that plaintiff is ajictitious person. Doe v. Penficld, 19 Johns. 308. was an action of assumpsit brought in New York, to recover costs adjudged against the defen- dant in an action of ejectment in Upper Canada. The declara- tion stated a judgment of the court of king's bench in Upper Canada against the defendant, for < 315. 17. 7. for damages which the plaintiff had sustained as well by reason of a certain action of trespass and ejectment, as for his costs &c. The defendant pleaded in abatement, that there is not, nor at the time of filing the plaintiff's declaration was there, any such person in being as John Doe, nor was there any such person as John Doe in existence, as the declaration supposed ; with a veri- fication. Wherefore the plea prayed judgment of the declara- tion, that it be quashed &c. The plaintiff replied, that the action of ejectment was brought, as set forth in the declaration, in the name of John Doe, who is a fictitious person, and nomi- nal plaintiff, and that the action was brought, and the judgment rendered, for the benefit and at the instance of one William Dickson, according to the practice and usage of the court of king's bench in Upper Canada, as authorized by the laws of that province ; that the defendant appeared in the suit, and pleaded not guilty to the. declaration filed in the cause ; and judgment was rendered in the suit against the defendant for the damages and costs, according to the laws of that province. There was a demurrer to this replication ; and the supreme court of New York sustained the demurrer, and gave judgment in favour of the defendant. The opinion of the court, delivered by Plati, J. concluded with these words : " If DicJcson have any remedy 3 18 Proceedings at rules. here* for those costs, it must, I think, be a special action on the case in his own name." * In New York, the use of the names of any other than the real claimants in ejectment is abolished. Ely &fC. \. Ballantine, 7 Wend. 470. 32. Plea in abatement to the person of the plaintiff, that he was dead when the writ issued. 1 Rob. Prac. 162, 3. In &c. (as in No. 28.) 0. Z>. ads A. D. And the said C. D. in his own proper person comes and de- fends the wrong and injury, and says, that the said A. B. at whose suit the writ of capias ad rcspondendum in this action is supposed to have been issued against him the said C. D. at the time the said writ was issued, and long before, was dead, and that there is not, nor at the time of the issuing of the said writ against him the said C. D. was there, any such person in being as the said A. B. as in and by the said writ is supposed. And this the said C. D. is ready to verify. Wherefore he prays judgment of the said writ, and that the same may be quashed &c. 33. Plea in abatement to the person of the defendant, that the con- tract was made by him and his partner jointly, and not by the defendant separately. 1 Rob. Prac. 163, 4. And the said C. D. &c. (as last) and says, that the plaintiff's cause of action, if any he has, is jointly against him the said C. D. and one E. F. with whom the said C. D. has been car- rying on trade and business in partnership, and is not against the said C. D. separately and solely ; to wit, at the county of H. aforesaid ; and that the said E. F. at the time of the issuing of the writ of capias ad respondendum in this action, was, and still is, living; to wit, at the county of H. aforesaid. And this &c. (as last.) The second section of the act passed April 3. 1838, amend- ing the statute of limitations, provides " that if any defendant or defendants in any action on any simple contract shall plead any matter in abatement, to the effect that any other person or persons ought to be jointly sued, and issue be joined on such plea, and it. shall appear at the trial that the action could not, by reason of the said recited act, or of this act, or of either of them, be maintained against the other person or persons named in such plea, or any of them, the issue joined on such plea shall be found against the party pleading the same." Sess. Acts 1838, p. 74. ch. 95. 2. Proceedings at rules. 19 34. Plea in abatement for variance between the writ and declaration. comes and defends the wrong and injury, and prays oyer of the writ of capias ad respondendum issued in this action, and of the endorsement and return thereon, and the same are read to him in these words, to wit: " The commonwealth" &c. (here insert the writ, endorsement and return) which being read and heard, the said C. D. prays judgment of the writ aforesaid, and also of the declaration thereon founded, because he says that there is a variance between the said writ and declaration in this, to wit, that in and by the said writ the said C. D. is re- quired to answer the said A. B. of a plea of debt for S 100 with interest thereon from the day of , and nothing is claimed in the said writ for charges of protest, whereas, in the declaration aforesaid founded upon the said writ, the said A. B. complains of the said C. D. of a plea that he render to the said A. B. the said $ 100 with interest thereon as aforesaid, and also S 3.25 cents for charges of protest. Wherefore, because there is such variance between the said writ and the said declaration, the said C. D. prays judgment of the writ and declaration aforesaid, and that the same may be quashed. 35. Plea in abatement by a corporation for intrinsic matter.* 1 Rob. Prac. 162. In &c. (as in No. 28.) The company ads A. B. And The company by their attorneyt come and defend the wrong and injury, and crave oyer of the summons issued in this action, and of the endorsement and return thereon, and the same are read to them in these words, to wit : " The common- wealth" &c. (here insert the summons, endorsement and return) which being read and heard, The company say they ought not to be compelled to answer the said action, because they say that the said summons so issued from the court of the said coun- ty of C. was not directed to and served by the sheriff or other proper officer of the said county of C. in like manner as other original process from the said court is directed and served, but the said summons was directed to and served by the sheriff of the county of H. And this The company are ready to verify. Wherefore they pray judgment of the said summons, and that the same may be quashed. * An action may be instituted against a corporation in the county or corporation where the same is located, although the cause of action may have arisen elsewhere. 1 R. C. 1819, p. 472. ch. 122. And under the statute of March 17. 1837, an 20 Proceedings at rules. action may likewise be instituted against a corporation in the county or corporation where the cause of action arose. Sess. Acts 1836-7, p. 44. ch. 68. But under the statute last cited, the summons is " subject to the same rules and regulations as other original process." And original process is never directed to the officer of any other county or corporation than that in which the suit is brought, unless it be expressly authorized. Whether or no this plea would be good on demurrer, depends on the enquiry whether the statute is to be construed as autho- rizing original process against a corporation to be issued from one county or corporation directed to the officer of another. On that question it is not intended here to express any opinion. f A plea by a corporation aggregate, which is incapable of a personal appearance, must purport to be by attorney. 1 Chitty's PI. 469. 36. Plea in abatement by a corporation for extrinsic matter. 1 Rob. Prac. 162. Sess. Acts 1836-7, p. 44. ch. 68. In &c. (as in No. 28.) The company ads R. fy R. And The company, upon whose president the process in this cause was executed, come by their attorney, and crave oyer of the said process and of the endorsement and return thereon, and the same are read to them in these words, to wit : " The commonwealth" &c. (here insert the summons, endorse- ment and return) which being read and heard, The com- pany say they ought not to be compelled to answer the said action, because they say that the president of the said company, at the time of the service of the said process upon him, usually resided in the corporation of Richmond, to wit, in the county of H. and the said process was not served by the sheriff or other proper officer of said county of H. or corporation of Richmond, but the same was served by the sheriff of a county in which the said president does not reside, to wit, the sheriff of the county of C. in which last mentioned county the said president hap- pened to be at the time of such service. And this The company are ready to verify. Wherefore &c. (as last.) 37. Entry of declaration, defendant's appearance, and rule to plead. 1 Rob. Prac. 165. This day came the parties by their attorneys, and the plain- tiff having filed his declaration, a day is thereupon given the defendant until the next rules, to plead to the said declaration ; and the same day is given the said defendant there &c. Proceedings at rules. 21 O 38. Entry at succeeding rule day, if defendant fail 1o plead. I Rob. Prac. 165. This day came the plaintiff by his attorney, and the defen- dant saith nothing in bar or preclusion of the plaintiff's action, whereby the plaintiff therein against him remaineth altogether undefended : Therefore it is ordered that judgment be entered for the plaintiff against the defendant, for &c. (Ifindebt.} for the debt and interest in the declaration men- tioned, and the costs. Or, for the debt in the declaration mentioned, with interest thereon from the day of till paid, and the costs. Or, for the debt in the declara- tion mentioned, and the costs ; to be discharged by the payment of $ , with interest thereon from the day of till paid, and the costs. Or, for the debt, interest and charges of protest in the declaration mentioned, and also for the damages which the plaintiff has sustained by occasion of the detention of the said debt, and the costs ; which damages are to be enquired of by a jury at the next term. (If in assumpsit.) for the damages which the plaintiff has sustained by occasion of the defendant's nonperformance of the promises and assumptions in the declaration mentioned, and the costs ; which damages are to be enquired of by a jury at the next term. (If in trespass, assault and battery.") for the damages which &c. by occasion of the trespass, assault and battery in the de- claration mentioned, and the costs; which damages are to be &c. (In case for slander.} for the damages &c. by occasion of the defendant's speaking the words in the declaration men- tioned, and the costs ; which damages &c. (In detinue.} for the slave in the declaration mentioned, if he may be had, or the price of him, if he may not be had, together with damages for detaining him. If the action be for debt or damages, and against an executor or administrator, introduce the words " to be levied of the goods and chattels of the decedent in the hands of the defendant to be administered ;" and if there be a writ of enquiry, then, in- stead of " which damages are to be," say, " and that the said damages be" &c. 39. Entry of declaration, defendant's appearance, oyer of writ, pica in abatement, and rule to reply. 1 Rob. Prac. 158 to 164. This day came the plaintiff by his attorney, and filed his declaration against the defendant : Whereupon came also the 22 Proceedings at rules. Munf. 600. 9 66 Pleas in bar and other proceedings till issue. A special plea concluding " and this &c." was adjudged insufficient, where the defect in the conclusion was specially demurred to. Cooke v. Scale's ex'ors, 1 Wash. 313. Where a record is relied on, and the plea concludes " And this he is ready to verify," without the addition of the words " by the record," the plea is imperfect for the want of this addition, and would be held bad on a special demurrer for this cause ; but this would not be a tena- ble objection on general demurrer. Henry v. Stone, 2 Rand. 461. 17. Plea against a specialty under statute against usury ; being a copy ofjirst plea in Steptoe's adm'rs v. Harvey's ex'ors, 7 Leigh 501. The defendants by their attorney come and defend the wrong and injury, when &c. and crave oyer of the supposed deed in the plaintiff's declaration mentioned, which is read to them in the words and figures following to wit : (Here it was inserted.) Whereupon the said defendants for plea say, that the plaintiffs their action aforesaid thereof ought not to have and maintain against them, because they say, that on the 23.d .day of March in the year 1816, at in the county of Bedford, it was un- lawfully and corruptly agreed between the said M. H. the tes- tator of the plaintiffs, and W. M. the first named covenantor in the said supposed deed, that the said testator of the plaintiffs should lend and advance to the said W. M. the sum of 14,200 dollars, and should forbear and give day of payment on the said loan for the space of twelve months from .and after the said 23d day of March 1816, and that, in consideration of the said loan and forbearance, the said W. M. should return and pay to the said testator, twelve months after the said 23d of March 1816, the aforesaid sum of 14,200 dollars with more than six per centum per annum interest thereon, to wit, with the sum of 3000 dollars as the premium for the forbearance and giving day of payment of the said sum of 14,200 dollars for twelve months, and that, in order to secure the payment of the said two sums of 14,200 dollars and 3000 dollars at the expiration of the said twelve months, and as a shift and device to evade the laws against usury, the said W. M. together with C. C., J. C. S. the testator of these defendants, and R. M. as his sureties, should execute a writing under their seals, and deliver it as their act and deed, binding them to pay to the testator of the plaintiffs, twelve months after the date aforesaid, 172 shares of the stock of the Farmers bank of Virginia, the said stock being then and there, to wit, on the said 23d of March 1816, at in the county aforesaid, of the full and fair value of 17,200 dollars. And the defendants in fact say, that in pursuance of the said Pleas in bar and other proceedings till issue. 67 corrupt, usurious and unlawful contract, and in fulfilment thereof, and for no other consideration, the said W. M., C. C., J. C. S. their testator, and R. M. did, on the said 23d of March 1816, at in the county aforesaid, sign, seal and deliver, as and for their act and deed, the aforesaid supposed deed in the declaration mentioned. And so the defendants say, that the said supposed deed was made and delivered upon a usurious consideration, against the act of assembly in that case provided, and is void in law. And this they are ready to verify. Where- fore they pray judgment whether the plaintiffs their action afore- said thereof ought to have and maintain against them, &c. 18. Plea against a specialty under act of April 16. 1831. 1 Rob. Prac. 229. Smith v. Richards, 13 Peters 36. In the circuit superior court of law and chancery for the county of H. and city of R. July rules 1840. M. v. S. and G. (1st plea of defendant Gr.) And the defendant Gf. by his attorney comes and defends the wrong and injury, when &c. and says, that the said plaintiff ought not to have or maintain his aforesaid action thereof against him, because he says, that heretofore, to wit, on the 17th day of Sep- tember 1833, it having been suggested that gold or other metals might be found on the tract of land of W. W. in the county of Louisa, and W. W. B., W. B. junior, W. A. T., D. A. T., W. B. and W. H. being willing to undertake the search and explo- ration for the same, the said W. W. by deed bearing date on that day, leased to the said W. W. B. and the said five other persons named after him, fifty acres of the said tract of land, to be laid off by certain metes and bounds around a vein then already dis- covered, and to include the two pits or shafts then already sunk on the said vein ; to have and to hold the same to them and their assigns, for the term of twenty-seven years from the 17lh day of September 1833, with certain provisoes and upon cer- tain conditions in the said deed mentioned, and especially sub- ject to an interest of the said W. W. in common with them : and afterwards, before the making of the said supposed wri- ting obligatory in the declaration mentioned, and before the ma- king of the supposed contract therein mentioned, all the rights and interests granted by the said deed to the said W. W. B. and the said five persons named after him, and all the right and interest so reserved to the said W. W. in common with them, were, for a small consideration, transferred to and vested in cer- tain persons of whom the plaintiff was one, to wit, in the plain- tiff and J. B. G., J. S. F., B. C., J. W. M., F. J. W., W. W. S., J. L. and J. M. L. in the following proportions, that is to say, the 68 Pleas in bar and other proceedings till issue. said plaintiff had one seventh, the said J. B. G. another se- venth, the said J. L. another seventh, the said J. M. L. a se- venth, and a fourth of a seventh, the said F. J. W. a seventh, and a third of a seventh, the said J. S. F. one half of a seventh, the said B. C. one third of a seventh, the said J. W. M. one third of a seventh, and the said W. W. S. one fourth of a seventh : and for the purpose of enabling the plaintiff and his said asso- ciates to sell their said rights and interests, and to obtain for the same an exorbitant price, the following plan was devised among them, that is to say, an act of assembly passed the second day of March 183-5, entitled " an act to incorporate the Virginia ex- ploring and mining company," was to be made use of; the ca- pital stock of said company was to be divided into five thou- sand shares, upon which forty dollars a share was to be re- quired from each person becoming a subscriber to the stock, amounting, for the whole, to two hundred thousand dollars ; the plaintiff and his said associates, before named, were to dispose of their rights and interests before mentioned, to the Virginia exploring and mining company, for two hundred thousand dol- lars, of which they were to receive in money one hundred thou- sand dollars, by means of the forty dollars a share on twenty- five hundred snares of stock, and for the other hundred thou- sand dollars they were to have the other half of the stock ; the taking in stock one half of the purchase money was to be held forth to the public as evidence of a very favourable opinion of its value, and other representations were to be made, calcu- lated to induce subscriptions : and afterwards, to wit, on the eighth day of September 1836, at the said county of H. efforts were made by the said plaintiff and his said associates to ob- tain subscriptions to the stock in the Virginia, exploring and mi- ning company, and there being a community of interest and de- sign among them, representations were then and there made by them, or some of them, to many persons in the city of R. to wit, in the said county of H. to induce them to subscribe for stock in the said company, which representations were in fact designed to operate upon all persons who should hear of them, and it was the wish and desire of the said plaintiff and his said associates that all persons hearing of the said representations should give credit to them and act upon the faith of them ; and it was, by the said plaintiff and his associates, then and there pretended and represented that there was then in the orehouse, upon the premises sought to be disposed of, a very great quantity of rich gold ore, the quantity being sometimes stated to be about five thousand bushels, at others from three to four thousand bushels, at others between two and three thousand bushels, and being never represented as less than a thousand bushels ; that Pleas in bar and other proceedings till issue. 69 the ore in the orehouse alone was sufficient to yield, and would yield, a very large sum of money, estimated at from twenty to twenty-five thousand dollars ; that the ore in the orehouse was taken from the tunnels in the said premises, one at about forty feet depth, and the other at about seventy feet depth, and chiefly from the latter ; that if the company should be compelled to stop at the point to which the exploration had then reached, there was a sufficiency of ore then already exposed, toge- ther with that in the orehouse, to reimburse to the stockholders the forty dollars a share to be paid on their subscriptions ; that the mine had then recently been opened by the said plaintiff and his said associates, and no ore had been taken from it ex- cept that in the orehouse, and a pile lying outside the house, not thought quite so good ; that from less than one hundred bushels of ore taken from the said tunnels, and not selected, but such as then lay in the oiehouse, nearly six hundred dollars had been obtained ; that the residue of the ore from the seventy foot tun- nel to the surface was believed to be equally good ; that the ore was believed to improve in richness as it went deeper ; and that the vein was supposed to continue a great distance north and south. And the said defendant saith, that in consequence of the said pretences and representations, there were many per- sons who, believing them to be true, and confiding in them, subscribed for stock in the said company ; and in a meeting of the stockholders, there was chosen, for managing the affairs of the company, a board of directors, of whom the plaintiff was one. And the said defendant further saith, that before the ma- king of the said supposed writing obligatory in the declaration mentioned, and the said supposed contract therein mentioned, the plaintiff, being a stockholder in the said Virginia exploring and mining company, negotiated with the said W. S. S. and with this defendant, for the sale of the fourteen hundred shares of stock in the said company which are mentioned in the said contract and in the said writing obligatory, and while so nego- tiating, made representations to them in relation to the same matters which had before been spoken of as aforesaid by him and his aforesaid associates, and made his said representations of the said matters as matters of fact, and not of opinion merely, with the intention that the said W. S. S. and this defendant should give credit to them, and upon the faith of them purchase from him stock in the said company ; and the said representa- tions were of things material, so that upon the truth of the said representations depended the value of the mine, and the value of stock in the said company ; and the said representations were such as, if true, shewed that the said mine must be a rich one, and that stock in the said company must be valuable. And the 70 Pleas in bar and other proceedings till issue. said defendant further saith, that the plaintiff', having been one of the proprietors, as before mentioned, before stock was sub- scribed for in the said company, and being a director in the said company, and having greater access to the means of informa- tion upon all matters having a bearing upon the value of stock in the said company, than persons generally had, and greater than this defendant or the said W. S. S. had, the said W. S. S. and this defendant, at the time of the said negotiation, and at the time of the said supposed contract, and at the time of ma- king the said supposed writing obligatory, confided in the truth of the said representations made by the said plaintiff while ne- gotiating with the said W. S. S. and this defendant, and in the truth of the said representations previously made by the said plaintiff and his associates as aforesaid, and the plaintiff' knew that they did so confide, and yet suffered them to remain under the belief that the said representations were true. And the said defendant farther saith, that the said supposed contract and the said supposed writing pbligatory were made under a belief of the truth of the said representations made by the said plaintiff' and his aforesaid associates, and also by the plaintiff alone, and were entered into in consequence of the said representations. And the said defendant farther saith, that the said representa- tions so made were untrue, and that, at the time of the said plaintiff's so negotiating, and at the time of making the said supposed contract and the said supposed writing obligatory, the said plaintiff knew that they were untrue. And the said de- fendant farther saith, that at the time the said supposed contract was made, and at the time the said supposed writing obligatory was made, the said mine was a poor one, and stock in the said company was in truth and in fact of no intrinsic value whatever. And this the said defendant is ready to verify. Wherefore the said defendant says, that if the said W. S. S. and this defendant had paid and satisfied the said writing obligatory, they would be entitled to recover damages from the plaintiff by reason of the matters herein pleaded, and such damages would be to the whole amount of the said writing obligatory; and the said wri- ting obligatory not having been paid or satisfied, this defendant is entitled to relief against the obligation of the contract upon him, in whole, and for the whole amount of the said writing obligatory. Affidavit. H. county, to wit : This day T. G. the defendant named in the foregoing plea, personally appeared before me, a justice of the peace in and Pleas in bar and other proceedings till issue. 71 for the said county, and made oath that the said plea is true to the best of his knowledge and belief. Given under my hand and seal this day of . [seal.] 19. Another plea against the specialty in same case and under same statute. M. v. S. and G. (2d plea of defendant G.) And for a further plea in this behalf the said defendant G. saith, that the said plaintiff ought not to have or maintain his aforesaid action thereof against him, because he says, that be- fore the making of the said supposed writing obligatory in the declaration mentioned, and before the making of the supposed contract therein mentioned, to wit, on the day of Sep- tember 1836, at the said county of H. efforts were made by the said plaintiff to dispose of stock in the Virginia exploring and mining company, and representations were then and there made by the said plaintiff' to many persons in the city of Richmond, to induce them to contract for stock in the said company, which representations were in fact designed by the plaintiff to operate upon all persons who should hear of them, and it was the de- sire and intention of the said plaintiff that all persons hearing of the said representations should give credit to them and act upon the faith of them ; and the said representations then and there made by the plaintiff were of things as matters of fact, and not of opinion merely, and were of things material, so that upon the truth of the said representations depended the value of stock in the said company ; that is to say, the said represen- tations were as to the quantity of gold ore, of rich quality, that was in the orehouse upon the premises belonging to the said company, the amount that the said ore in the orehouse would yield, the places from which the said ore was taken, the way in which it was obtained from the mine and transferred to the orehouse, and the quantity of ore remaining in the mine, as well as the richness thereof; and the said representations in regard to these things were such as, if true, shewed that the said mine must be a rich one, and that stock in the said company must be valuable. And the said defendant farther saith, that at the time of the said representations the said plaintiff was a director in the Virginia exploring and mining company, and had greater access to the means of information as to the matters to which the said representations related, than persons generally had, and greater than this defendant had, and the said defendant confided in the truth of the said representations, and the plain- tiff knew that he did so confide, and yet suffered him to remain 72 Pleas in bar and other proceedings till issue. under the belief that the said representations were true. And the said defendant further saith, that under a belief of the truth of the said representations, and in consequence of them, he en- tered into the supposed contract before mentioned, and the said supposed writing obligatory. And the said defendant further saith, that at the time the said representations were so made, and at the time the said supposed contract and the said sup- posed writing obligatory were entered into, the said representa- tions were untrue, and the plaintiff knew the same to be untrue. And the said defendant further saith, that at the time the said supposed contract was made, and at the time the said supposed writing obligatory was made, the said mine was a poor one, and stock in the said company was in truth and in fact of no intrin- sic value whatever. And this the said defendant is ready to verify. Wherefore the said defendant says, that if he the said defendant had paid and satisfied the said writing obligatory, he would be entitled to recover damages from the plaintiff by reason of the matters herein pleaded, and such damages would be to the whole amount of the said writing obligatory ; and the said writing obligatory not having been paid or satisfied, this defendant says that he is entitled to relief against the obligation of the contract upon him, in whole, and for the whole amount of the said writing obligatory. 20. Another plea against the specialty in same case and under same statute. M. v. S. and 6?. (3d plea of defendant G.) And the said defendant G. for a further plea in this behalf, saith, that the said plaintiff ought not to have or maintain his aforesaid action thereof against him, because he says, that at the time of making the said supposed writing obligatory in the declaration mentioned, and at the time of making the said sup- posed contract therein mentioned, the plaintiff was a director in the said Virginia exploring and mining company, and by reason of the information obtained by him as such director, arid in other ways, professed to be better informed upon matters bearing upon the value of stock in the said company, than persons ge- nerally ; and the said defendant confided that the plaintiff, in making a contract with him for stock in the said company, would communicate truly and fairly with him, and would not, in making such contract, intentionally conceal or suppress facts within the said plaintiff's knowledge, having a material and important bearing upon the value of stock in the said company, and in this confidence the said defendant negotiated with the plaintiff for the stock mentioned in the said supposed writing Pleas in bar and other proceedings till issue. 73 obligatory and in the said supposed contract. And the said defendant saith, that at the time of the said negotiation, and at the time of making the said supposed contract, and at the time of making the said supposed writing obligatory, he had been deluded into the belief that the quantity of gold ore in the ore- house upon the premises belonging to the said company was much larger than in truth and in fact it was, and into the belief that there was a large quantity of rich ore remaining in the mine, when such was not the fact, and into the belief that the mine was a rich one, and stock in the said company of great value, when in truth and in fact the mine was poor, and the said stock was of no intrinsic value whatever: and although the said plaintiff well knew that the said defendant was ignorant of the true state of facts in these respects, and although the said plaintiff had himself full knowledge how the facts really and truly were in these respects, yet the said plaintiff, when the said supposed contract was so made, and when the said supposed writing obligatory was so executed, intentionally concealed and suppressed from the said defendant the true state of facts in the respects aforesaid, and knowingly suffered the said defendant to make the said supposed contract and the said supposed writing obligatory, under the delusion before mentioned. And this the said defendant is ready to verify. Wherefore the said defendant says, that if he the said defendant had paid and sa- tisfied the said writing obligatory, he would be entitled to reco- ver damages from the plaintiff by reason of the matters herein pleaded, and such damages would be to the whole amount of the said writing obligatory ; and the said writing obligatory not having been paid or satisfied, this defendant says that he is en- titled to relief against the obligation of the contract upon him, in whole, and for the whole amount of the said writing obli- gatory. 21. Pleas by common carrier to excuse the nondelivery of goods. Amies v. Stevens, 1 Str. 128. Colt fyc. v. M'Mechen, 6 Johns. Rep. 160. Gordon fyc. v. Little, 8 Serg. & Rawle 536, 7. Bell v. Reed fyc. 4 Binn. 127. S. v. W. And the said E. W. by his attorney, comes and defends the wrong and injury, when &c. and says, that the said J. A. S. ought not to have or maintain his aforesaid action thereof against him, because he says, that after the said plaintiff had laden on board a certain boat, owned by him the said E. W. sundry bar- rels of flour, to wit, the eighty barrels of flour in the declaration mentioned, to wit, on the day of , at Palmyra on the 10 74 Pleas in bar and other proceedings till issue. Rivanna a branch of James river, the said boat, so laden as afore- said with the said flour, became and was, near to Palmyra afore- said, encompassed by the ice formed in the said Rivanna river, before it was practicable to carry away or deliver the said flour, at Richmond aforesaid, to the said plaintiff" or his agent, and in that condition the said boat, so laden as aforesaid, necessarily remained for a long space of time, to wit, for the space of four weeks ; and the servants and agents of the said E. W. being thus prevented by the act of God from carrying, conveying and delivering the said flour at Richmond aforesaid, apprized the said J. A. S. thereof, and at various times during the said long space of time requested him to take back the said flour into his own possession, but the said J. A. S. neglected and failed so to do; and in consequence of such neglect and failure of the said J. A. S. the said flour continued in the boat of him the said E. W. until the ice in the said Rivanna river suddenly broke up in the night, when, by reason of the sudden and unexpected breaking up of the ice in the night time, and not because of any want of care of the said E. W. his servants or agents, the said boat, so laden as aforesaid, was overturned in the said Rivanna river, and of the said barrels of flour were damaged by wet, and the residue lost. And this he the said E. W. is ready to verify. Wherefore he prays judgment if the said /. A. S. ought to have or maintain his aforesaid action thereof against him. And for a further plea in this behalf the said E. W. says, that the said J. A. S, ought not to have or maintain his aforesaid ac- tion thereof against him, because he says, that after the said J. A. S. had laden on board a certain boat, owned by him the said E. W. and employed as aforesaid, the eighty barrels of flour in the declaration mentioned, and before it was practicable to have carried, conveyed and delivered the said flour at Richmond afore- said, the said boat, so laden as aforesaid, after proceeding a short distance from Palmyra aforesaid, to wit, about the distance of three miles, became and was encompassed by the ice which was formed in the said Rivanna, river, and frozen around the said boat, and in that condition the said boat, being so laden as afore- said, and so surrounded by the ice, remained in the said Rivanna river for a long space of time, to wit, for the space of four weeks, during all which time it was wholly impracticable to carry, con- vey and deliver the said flour at Richmond aforesaid ; and at the expiration of the said space of time, in the night, to wit, about two hours before daybreak, and without any previous indication of a thaw on the day preceding or in the early part of the said night, the ice in the said Rivanna river suddenly broke up, and came in contact with the said boat with such violence, that the said boat instantly sunk, and the flour with which the said boat Pleas in bar and other proceedings till issue. 75 had been laden was swept and carried out of the same, without any negligent or improvident management on the part of the safd E. W. his servants or agents, and without any want of care on their part in the premises ; and after the said flour had been swept and carried out of the boat as aforesaid, of the said barrels of flour, by great efforts on the part of the servants and agents of the said E. W. and of other persons employed by him to assist in that behalf, were saved, and without any loss or damage other than that arising from their being swept and car- ried out of the boat as aforesaid, were carried, conveyed and delivered, at Richmond aforesaid, to the agent of the said plain- tiff; but the residue of the said flour, notwithstanding every thing was done that was in the power of the said E. W. his servants or agents, was utterly lost. And this he the said E. W. is ready to verify. Wherefore he prays judgment if the said J. A. S. ought to have or maintain his aforesaid action thereof against him. Note. The plaintiff demurred to these pleas. Upon argument of the demurrer, the circuit court of Henrico (Clapton, judge) held the pleas to be good, and en- tered judgment for the defendant. Here the cause ended. It was never carried to the court of appeals. / 22. In debt on a bounds bond, oyer prayed, and plea of condi- tions performed. 1 Rob. Prac. 209. C. D. ads A. B. And the said C. D. by his attorney comes and defends the wrong and injury, when &c. and craves oyer of the said writing obligatory in the declaration mentioned, and it is read to him in these words : (Here insert the same.) And he also craves oyer of the condition of the said writing obligatory, and it is read to him in these words : (Here insert the same.) Which being read and heard, the said C. D. says that the plain- tiff ought not to have or maintain his aforesaid action thereof against him, because he says, that the said did not depart or go out of the rules or bounds of the said prison during the year for which he had the benefit of the same, and the said did moreover render his body to prison in satisfaction of the said execution, at the expiration of the said year. And this &c. (concluding with a verification, as ante, No. 21.) 23. Plea of conditions performed in other cases. In Cooke v. Graham's adm'r, 5 Munf. 172. the defendant prayed oyer of the condition, which recited that the defendant had lent a cer- tain sum of the plaintiffs money to a third person, who had failed, but paid a part, and the defendant had instituted a suit against him for the recovery of the balance. The condition was, that the defendant should 76 Pleas in bar and other proceedings till issue. pay the whole sum so lent, if it could be recovered from the loanee or his endorser, or, in case it could not be wholly recovered, would lose one half of that sum which could not be recovered. The defendant pleaded that he could not recover of the loanee or his endorser the sum of money in the condition mentioned, or any part thereof, and that he had paid to the plaintiff one half of the sum which could not be so re- covered, and likewise the sum which the loanee had paid before he failed. This plea was demurred to ; and it was objected to it, that it did not allege that the defendant had used due diligence to recover the money from the loanee or his endorser, or what measures he took to re- cover the same. The court of appeals was of opinion that the plea was good, not only because the averment in it was in the terms of the con- dition of the bond, but also because it imported that due diligence had been used by the defendant to recover the money. The demurrer to the plea was therefore overruled. 24. In covenant for hire and clothing, plea of covenants performed . 1 Rob. Prac. 211. * says, that the said plaintiff ought not to have or main- tain his aforesaid action thereof against him, because he says, that he the said defendant did furnish the said negro man named Charles with such clothes as are usually furnished to hired ne- groes, at the end of the year 1827, and did, before this action was brought, pay to the said plaintiff the said sum of $ 75. And this &c. (as ante, No. 21.) * If oyer be taken, and the obligation have a condition, the commence- ment may be like No. 22. 25. In debt on bond, plea of payment before action brought, of prin- cipal and interest mentioned in condition. 1 Rob. Prac. 209. (Like No. 22, to) because he says, that he the said C. D. before this action was brought, paid the principal and interest which were due by the said condition. And this &c. (like No. 21.) 26. In debt on bond, plea by surety under act in 1 R. C. 1819, p. 461. 6. (Like No. 22, to) because he says, that by the said wri- ting obligatory he became bound as surety for the said T. H. M. for the payment of the money mentioned in the condition thereof, and after an action bad accrued on the said writing obligatory, to wit, on tbe day of 1819, at the city aforesaid, he the said E. B. apprehending that the said T. H. M. his princi- pal was about to migrate from this commonwealth without pre- Pleas in bar and other proceedings till issue. 77 viously discharging the said writing obligatory, in which case it would be impossible or extremely difficult for the said E. B. after being compelled to pay the amount of the money which might be due thereon, to recover the same back from his said principal, did, by notice in writing, require the said J. A. forth- with to put the said writing obligatory in suit, and the said J. A. although so required, did not, in a reasonable time, commence an action on the said writing obligatory, and before the com- mencement of this action the said T. H. M. migrated from this commonwealth. By reason whereof, and by force of the statute in such case made, the said J. A. has forfeited the right which he would otherwise have had to demand and receive of the said E. B. the amount of the money due by the said writing obliga- tory. And this &c. (as ante, No. 21.) 27. Plea under the same statute, adjudged good in Wright's adrn'r v. Stockton, 5 Leigh 153. says, that /. A., J. P. W., T. W. C. and R. W. were the sureties of N. H. in the said writing obligatory in the declara- tion mentioned ; that on the 24th of January 1820, the three first named sureties gave to the plaintiff a written notice requir- ing her to institute a suit upon the said bond, but the plaintiff did delay for an unreasonable time, to wit, until the day of (before which time N. H. the principal became and re- mains wholly insolvent) to institute a suit thereon, on which said last mentioned day she instituted a suit thereon in the superior court of law for the county of Campbell, against N. H., T. W. C., J. A. and J. P. W. in which suit such proceedings were had, that at the term of the said court, the cause coming on to be tried, it was then and there, by the judgment of the said court, determined that J. P. W., J. A. and T. W. C. three of the sureties in the said writing obligatory, were, by reason of the premises, wholly discharged from all liability to pay the said sum of money or any part thereof, which judgment remains in full force, and in no wise reversed or appealed from : by means whereof the said R. W?& estate became and is wholly discharged from all liability to pay the said sum of money or any part of it. And this the defendant is ready to verify. 28. Accord, and satisfaction. An accord with, and satisfaction received from, one of several persons guilty of a joint assault and battery, is a bar to the action as to them all, notwithstanding the acknowledgment of such satisfaction be expressed as applying only to the part which that one took in the trespass, and 78 Pleas in bar and other proceedings till issue* notwithstanding a proviso that it shall not operate in favour of the other trespassers. Ruble v. Turner Sfc. 2 Hen. &, Munf. 38. See also Am- monett v. Harris Sfc. 1 Id. 488. 29. Former judgment upon same matter. To make a plea of former judgment or decree a bar to the action, it is necessary that the decision relied on should be the decision of the very matter in controversy in the suit in which the plea is offered, and that the court making the decision should be a court having competent jurisdiction to decide the matter in controversy. In Pleasants v. Cle- ments, 2 Leigh 474. the matter in controversy was a claim for damages for the breach of a warranty of a slave, and the defendant offered to plead in bar a decree of a court of chancery dismissing a bill filed to vacate the contract on the ground of fraud. The court of appeals held this plea to be bad, being of opinion that the decision of the suit in equity against the plaintiff was no bar to his action ; for though the plaintiff was not entitled to vacate the contract on the ground of fraud, yet he would be entitled to recover damages for a breach of the war- ranty, even if that breach were unaccompanied by fraud. A verdict and judgment for the defendant in a former action for the same cause will be no bar, if the writing on which the action is founded was excluded in the first case from going in evidence to the jury, on account of a material variance from that described in the declaration, and the verdict and judgment for the defendant was in consequence of such exclusion. Crawford fyc. v. Jarrett's adm'r, 2 Leigh 633. One of several persons guilty of a joint assault and battery may plead in bar of a recovery against him a judgment obtained against another of those persons, whether the judgment was obtained against that other in an action brought against him separately, or in an action brought against the whole jointly. Ammonctt v. Harris ffc. 1 Hen. &, Munf. 488. Wilkes v. Jackson, 2 Id. 355. 30. Plea of limitation prescribed by act in 1 R. C. 1819, p. 488. $ 4. cited in 1 Rob. Prac. 79. And the said defendant by his attorney comes and defends the wrong and injury, when &c. and says, that the plaintiff ought not to have or maintain his action against him the said defendant, because he says, that the said action was not com- menced within Jive* years next after the cause of the said ac- tion. And this &c. (like No. 21.) * The limitation prescribed for actions of trespass of assault, battery, wounding, imprisonment, or any of them, is three years ; and the limi- tation of an action upon the case for words is one year. Pleas in liar and other proceedings till issue. 79 31. Plea of limitation prescribed by act in 1 R. C. 1819, p. 489. 7. (cited in 1 Rob. Prac. 105.) and the amendment thereof in Acts of 1838, p. 74. ch. 95. 5. and says, that the said action is upon a store account for goods, wares and merchandise sold and delivered, and the same was not brought within two years next after the cause of the said action accrued. And this &c. (like No. 21.) 32. Plea of limitation prescribed by act in I R. C. 1819, p. 492. $ 16. cited in 1 Rob. Prac. 111. AyletCs ex 1 or v. Robinson, 9 Leigh 45. and says, that the said action is brought against him as executor (or, administrator) as aforesaid, for the recovery of a debt due upon an open account, and the items of the said ac- count appear to have been due five years before the death of this defendant's testator (or, intestate.) And this &c. (like No. 21.) ^ 33. Plea of limitation prescribed by act of March 8. 1826, $ 1. cited in 1 Rob. Prac. 115. (Like No. 22, to) because he says, that this action was not instituted or brought within ten years next after the right and cause of action accrued. And this &c. (like No. 21.) 34. Plea of limitation prescribed by act of February 28. 1828, cited in 1 Rob. Prac. 116. (Like No. 22, to) because he says, that this suit was not commenced within seven years after the date of the said in- demnifying bond. And this &c. (like No. 21.) 35. Plea under act limiting recoveries on judgments in other states. Sess. Acts 1835-6, p. 42. ch. 62. 1. because he says, that on the day of an act was passed by the general assembly of the said state of , which took effect from and after the passage thereof, and still exists and is in force in that state, whereby it was enacted and declared that all actions brought upon judgments rendered in the said state shall be commenced within ten years from the date of the last execution which may have issued upon the judg- ment, and if no execution shall have issued upon the judgment, then within ten years next after the date of such judgment, and not after ; and upon the judgment on which this action is founded, 80 Pleas in bar and other proceedings till issue. no execution was ever issued, and the said action was not com- menced within ten years next after the date of the said judg- ment ; and by the laws of the said state of , the act aforesaid, limiting the recovery on judgments rendered therein, might and could have been pleaded, had this action been brought in any court thereof, and a recovery in this action would have been barred, had the same been instituted in any of the courts of that state. And this &c. (like No. 21.) 36. Plea under second section of same act. because he says, that upon the judgment on which this action is brought, no execution hath ever issued, and this action was not brought within ten years next after the date of the said judgment, and he the said defendant has been actually and bona fide resident within this commonwealth for ten years after the said judgment was rendered, and before the commencement of this action. And this &c. (like No. 21.) 37. Concerning pleas by an executor or administrator in respect to the assets. The plea of fully administered must allege that there were no assets in the hands of the defendant to be administered, either at the time of the commencement of the action or at any time since. Hence, if at the institution of the suit there be outstanding debts of superior dignity, or unsatisfied judgments, and the defendant actually pays them before pleading fully administered, those payments will be embraced by the plea. So if assets come to the defendant's hands after the commence- ment of the suit and before pleading plene administravit, the defendant will be chargeable upon such plea with those assets. Green, J. in Gard- ner's adm'r v. Vidal, 6 Rand. 107. But no enquiry can be made, in such suit, as to the assets received after the time of pleading the plea of plene administravit. Same judge. If a suit be brought against an administrator for a debt of his intes- tate, and the assets are insufficient to pay the debt, excluding certain property in the possession of the administrator which had been conveyed by his intestate by deed of trust to secure certain sums of money re- maining unpaid, the administrator, in order to avail himself of this mat- ter, must plead the facts specially. If he put in a general plea of fully administered, he cannot give the deed in evidence under that plea. Taylor v. Richards, 2 Munf. 8. 38. Plea of no assets. 1 Rob. Prac. 213. Reeves Sfc. v. Warffs ex'x 2 Bingh. N. C. 235. 29 Eng. Com. Law Rep. 316. And for a further plea in this behalf, the said J. S. by leave of the court here for this purpose first had and obtained, ac- Pleas in bar and other proceedings till issue. 81 cording to the form of the statute in such case made and pro- vided, says, that the said T. F. ought not to have or maintain his aforesaid action thereof against him the said J. S. because he says, that he has not, and had not at the commencement of this suit, or at any time since, any goods or chattels which were of the said R. S. deceased at the time of his death, in the hands of him the said J. S. as executor as aforesaid, to be adminis- tered. And this he is ready to verify. Wherefore he prays judgment &c. (like No 21.) Note. The precedents are that the executor has fully administered, in addition to the allegations of this plea. Serjeant Williams, however, says that the words " that they have fully administered the goods" &,c. seem to be superfluous, and suggests that the more formal and correct way of pleading is according to this plea. 2 Saund. 221. note 3. And although C kitty, in his form of the plea, inserts those words, yet the replication, as given by him, takes issue on the defendant's having assets in his hands to be administered, on the day of exhibiting the bill ; which shews that the essential part of the plea is the possession of unadminis- tered assets. In the case of Fowler v. Sharp fyc. 15 Johns. 323. the plaintiff demurred specially to the plea, and assigned for cause, that it was not alleged therein that the defendant had fully administered, &c. But the court, after argument, decided that this was not a defect either in substance or form, and overruled the demurrer. The form here given is taken from the plea in that case. The plea should not conclude to the country. Eppes's adm'rs v. Bag- ley's adm'r, 4 Munf. 466. 39. Plea of no assets prater. 1 Rob. Prac. 213. ought not to have or maintain his action thereof against him, except as to $ , because he says that he has not &c. to be administered, except the said sum of $ . And this he the said J. S. is ready to verify. Wherefore he prays judg- ment if the said T. F. ought to have or maintain his aforesaid action thereof against him the said J. S. except as to the said sum of $ . 40. Plea of debts of superior dignity to a greater amount than the assets in hand. 1 Rob. Prac. 213. ought not further to have or maintain his aforesaid ac- tion thereof against them, because they say, that after the death of the said W. C. to wit, on the 19th day of February 1829, one E. J. im pleaded the said defendants as executors as afore- said, in this court, in a certain plea of debt for the sum of $ 867.89 cents due and owing to the said E. J. from the said W. 11 82 Pleas in bar and other proceedings till issue. C. upon a certain writing obligatory sealed with the seal of the said W. C. in his lifetime, and such proceedings were thereupon had in this court in that plea, that the said E. J. afterwards, to wit, on the 21st day of February in the year last aforesaid, by the consideration and judgment of this court, recovered against the said defendants, as executors as aforesaid, her said debt of $867.89 cents, with interest thereon after the rate of six per centum per annum from the llth day of August 1828 till pay- ment, and also $ 5.67 cents for her costs by her about her suit in that behalf expended, to be levied of the goods and chattels of the said W. C. deceased in the hands of the defendants to be administered. And the said defendants further say, that after the death of the said W. C. to wit, on the 17th day of November 1828, one W. D. W. impleaded &c. (stating the proceedings and judg- ment in like manner as before.) And the said defendants say that the several judgments herein before mentioned, fully appear by the record and proceedings thereof remaining in this court; and that the said several judg- ments still remain in full force and unsatisfied. And the said defendants further say, that the said W. C. in his lifetime, to wit, on the 6th day of April 1825, at the city of R. aforesaid, by his certain writing obligatory sealed with his seal, promised to pay, on or before the first day of July next ensuing the date thereof, to one G. W. C. the just and full sum of $ 1000. lawful money of the United States, for the true pay- ment whereof he bound himself, his heirs,, executors and ad- ministrators, firmly by the said writing obligatory ; which said writing obligatory was so made as aforesaid for securing the payment of a just debt, and at the time of the death of the said W. C. was, and still is, in full force and effect, not in any wise cancelled or annulled, and before and at the time of the commencement of this suit there was, and still is, due and ow- ing to the said G. W. C. upon and by virtue of the said writing obligatory, a large sum of money, to wit, the sum of $ 931.96 cents with interest thereon after the rate of six per centum per annum from the 24th day of July 1828 till payment. And the said defendants further say, that they have not at this time any goods and chattels which were of the said W. C. deceased at the time of his death, in their hands to be admi- nistered, except goods and chattels of less value than is sufficient to satisfy the money due and owing on the several judgments aforesaid and on the writing obligatory aforesaid, to wit, of the value of $ , which goods and chattels are subject and liable to satisfy the said judgments and the said writing obliga- tory. And this they the said defendants are ready to verify. Wherefore they pray judgment if the said plaintiff ought Pleas in bar and other proceedings till issue. 83 further to have or maintain his aforesaid action thereof against them &c. 41. Plea under act of March 8. 1826, 2. that distribution has been made of estate, and refunding bonds taken. 1 Rob. Prac. 58. 115. ought not to have or maintain his action thereof against him, because he says, that after the expiration of one year from the time of his qualification as administrator as aforesaid, he made distribution of the estate of his intestate to E. F. and G. H. the distributees entitled thereto, and took from them refund- ing bonds with sufficient security, which have been duly filed in the clerk's office of the county court of H. by which court this defendant's letters of administration were granted; and at the time of making such distribution, this defendant was not apprized, either by the institution of a suit or by a notice in writing, of the existence of the claim asserted in this action. And this &c. (concluding like other pleas with a verification.) 42. Plea by an heir, of riens per discent. 1 Rob. Prac. 216. And the said defendant by his attorney comes and defends the wrong and injury, when &c. and says, that he ought not to be charged with the said debt by virtue of the said supposed writing obligatory, because he says, that he the said defendant, neither at the time of the commencement of this suit, nor at any time before or since, had any lands, tenements or hereditaments from the said E. F. his father, in fee simple. And this he is ready to verify. Wherefore he prays judgment if he, as son and heir of the said E. F. deceased, ought to be charged with the said debt by virtue of the said writing obligatory. 43. Plea of tender. A plea of tender is bad in form, if the day of the tender is left blank. So also if the defendant pleads that he offered the principal .53. and all the interest due thereon, instead of computing the interest to the day of tender, adding it to the principal, and saying that he offered a sum certain. So likewise if the plea be that the defendant was always ready from the time of the tender (which was 12 years after the day when the money was payable) instead of from the time when payment should have been made. Opinion of the court in Downman v. Downman's ex'ors, 1 Wash. 28. Skipwith v. Morton 4* Co. 2 Call 277. A tender may be given in evidence under the plea of payment, in or- der to extinguish the interest subsequent to the tender. Opinion of court in Skipwith v. Morton in the presence of > 23. Entry of judgment confessed under a power of attorney. 1 Rob. Prac. 268. This day came the plaintiff by his attorney, and produced a power of attorney for confessing judgment in this action, under the hand and seal of the defendant, attested by G. H. who proved the due execution thereof: whereupon J. JB. A. gent, appeared for the defendant by virtue of the said power, and the defendant, by his said attorney, acknowledges the plaintiff's ac- tion for &c. Therefore &c. 24. In action of debt against an heir, he acknowledges the action and shacs the lands which he has by descent, and judgment is entered to be levied of those lands. This day &c. and the defendant acknowledgeth the plaintiff's action, and saith that he hath by descent from the said T. C. his brother, in fee simple, one tenement in this county, situate &c. containing &c. with the appurtenances, and hath no other real estate descended to him from his said brother : Therefore it is considered by the court that the plaintiff recover against the de- fendant S 600 the debt in the declaration mentioned, of the tene- ment aforesaid with its appurtenances to be levied, and his costs &c. mercy &c. But because it is unknown how much the said tenement with its appurtenances is worth by the year in all the issues besides reprises, it is commanded the sheriff of the said county, that by the oath of good and lawful men of his bai- liwick, he diligently enquire how much the said tenement with its appurtenances is worth by the year in all issues besides re- prises, and that, inquisition thereof being by him diligently made, he deliver the said tenement with its appurtenances, according to the true value thereof, to the said plaintiff, without delay, to hold to the said plaintiff until he shall have levied thereof his debt and costs aforesaid ; and how &c. that the sheriff make known &c. But this judgment is to be discharged by the pay- ment of $ 300, with interest &c. till payment, and the costs. 102 Judgments not on verdict. 25. Submission of a controversy to arbitrators. 1 Rob. Prac. 269, 70. Whereas a controversy exists between A. B. and C. D. for which there is no remedy but by personal action or suit in equi- ty, unless they can settle the same by arbitration, and both of them desiring to end the said controversy, it has been agreed by them to refer to jE. F. and G. H. as arbitrators, all matters in controversy between them, with liberty to the said arbitrators, either before they enter upon the arbitration, or at any time pending the reference, to choose an umpire : Now the said A. jB. for himself, his heirs, executors and administrators, agrees with the said C. D., and the said C. D. for himself, his heirs, executors and administrators, agrees with the said A. B. to sub- mit to and perform the award of the said arbitrators, so as the said award be made in writing on or before the day of next ; or if the said arbitrators do not make their award by that time, then to submit to and perform the umpirage and award of the said person so by the said arbitrators to be chosen as umpire, so as the said umpire do make his said umpirage and award in writing on or before the day of next. And the said parties farther agree that this their submission to the award and umpirage aforesaid shall be made a rule of the cir- cuit superior court of law and chancery for the county of H. pursuant to the statute in such case. Sealed with the seals of the said A. B. and C. D. this day of . A. B. [seal.] C. D. [seal.] Sealed and delivered in the } presence of J. K. $ 26. Affidavit of the execution of the submission. 1 Rob. Prac. 270. J. K. maketh oath and saith, that A. B. and C. D. did each of them, in the presence of this affiant, acknowledge and deliver, as his act and deed, the submission hereunto annexed. And this affiant farther maketh oath, that the name J. K. subscribed to the said submission, as the witness thereof, is of the proper handwriting of this affiant. J. K. Sworn to this day of , before me, a justice of the peace for the county of H. Judgments not on verdict. 103 27. Rule of court upon submission. 1 Rob. Prac. 270. The following submission and affidavit were this day pro- duced in court, and the same being read, they are ordered to be filed, and entered in the proceedings of the court : (Here in- sert the submission and affidavit.) And a rule is thereupon made by the court, that the parties shall submit to and finally be concluded by the arbitration or umpirage which shall be made concerning them by the arbitra- tors or umpire, pursuant to the said submission. 28. Return of award made in pursuance cf such submsssion. 1 Rob. Prac. 270. An award between A. B. and C. D. made in pursuance of a submission entered in the proceedings of this court on the day of , was this day returned ; and the same lies for complaint to be made thereof, if any cause there be. 29. Award entered up as the judgment of the court. 1 Rob. Prac. 270. A. B. by his attorney, asking that the award between him and C. D. returned on the day of last, may now be entered up as the judgment of this court, and the time al- lowed by law for complaint thereof having elapsed without any such complaint being made, it is therefore considered by the court that the said A. B. pursuant to the said award, recover against the said C. D. the $ 200 therein mentioned, and his costs by him in this behalf expended. And the said defendant in mercy &c. 27. Order referring to arbitrators a pending suit. 1 Rob. Prac. 271. The parties, by their attorneys, mutually submit all matters in difference between them in this suit to the final determination of A. B. and C. D. and agree that their award, or the award of such person as they shall choose for an umpire thereupon, shall be made the judgment of the court. And the same is ordered accordingly. 28. Order of reference set aside. 1 Rob. Prac. 271. The plaintiff, by his attorney, this day moved the court to set aside the order referring this suit to arbitration ; and the 104 Judgments not on verdict. o court, after hearing the defendant in opposition to the motion, being t)f opinion that the execution of the order has been delayed an unreasonable length of time, doth for this reason set aside the said order, and direct that the cause be tried by a jury, in like manner as if the said order had never been entered. 29. Another order of reference in a pending suit. 1 Rob. Prac. 271, 2. The parties, by their attorneys, mutually submit all matters in difference between them in this suit to the final determina- tion of A. B. &c. gentlemen, and agree that their award, or the award of any two of them thereupon, shall be made the judg- ment of the court. And the same is ordered accordingly. 30. Award returned, and judgment pursuant thereto. 1 Rob. Prac. 279. An award made between the parties, under the order of re- ference in this suit, was this day returned: whereupon came the parties by their attorneys, and pursuant to the said award, it is considered by the court &c. (Or came the plaintiff by his attorney, and the defendant being solemnly called and not ap- pearing, it is, pursuant to the said award, considered by the court &c.) Note. The judgment must of course be such, in every case, as the award and the nature of the case may require. 31. Judgment of a justice of the peace, for money, affirmed on appeal. J. M, appellant, 1 On an appeal from a judgment of a jus- against > tice of the peace, recovered by the appel- H. J. appellee. 3 lee against the appellant, the 20th day of February 1808, for $15.25 cents, and 94 cents. This day came the parties by their attorneys, who being fully heard, and the evidence adduced maturely considered, it seems to the court that there is no error in the judgment aforesaid : Therefore it is considered that the same be affirmed, and that the appellee recover against the appellant and T. T. his surety the amount thereof, together with ten per centum per annum damages thereon from the aforesaid 20th day of February 1808 till payment, and his costs by him about his defence in this be- half expended. Judgments not on verdict. 105 32. Judgment upon appeal from decision of a justice as to the title of property taken under an execution upon a warrant. Sess. Acts 1839, ch. 68. p. 49. A. B. appellant, } On an appeal from an order made by a against >justice of the peace, upon a summons is- E. F. appellee. j sued at the instance of the appellee (or, appellant) to shew cause why certain property levied upon by virtue of an execution in favour of the appellant (or, appellee) against C. D. upon a judgment on a warrant, and claimed by the appellee (or, appellant) should not be discharged from the said execution. This day came the parties by their attorneys, who being fully heard, and the evidence maturely considered, the court doth adjudge that the property levied upon is liable to the execution levied on the same : Therefore it is considered that the order of the justice of the peace, directing the officer to restore the said property, be reversed and annulled, and that the appellant re- cover against the appellee his costs by him expended in the pro- secution of his appeal aforesaid here. And it appearing that in consequence of the said summons, an additional expense of S has been incurred by G. H. constable of this county, in keeping the said property, the court doth further order that the appellee pay that amount to the said constable. Or: doth adjudge that the property levied upon belongs to the claimant thereof, and is not liable to the execution levied on the same : Therefore it is considered that the order of the jus- tice of the peace, dismissing the said summons, be reversed and annulled, that the said property be restored to the appellant, and that the appellant recover against the appellee his costs by him expended in the prosecution of his appeal aforesaid here. And whatever expense has been incurred by G. H. constable of this county, in keeping the said property, is to be paid him by the appellee. If the order be affirmed : doth adjudge that &c. Therefore it is considered that the order of the justice of the peace, directing &c. be affirmed, and that the appellee recover against the appellant, and his surety, his costs by him about his defence in this behalf ex- pended. And the court doth further order that the expense &c. (The order will be such as may be equitable.) 14 106 Judgments not on verdict. o 33. Opinion upon demurrer to declaration containing several counts, some of which are good. 1 Rob. Prac. 281, 2. This day came the parlies by their attorneys, and thereupon the defendant's demurrer to the plaintiff's declaration being ar- gued, it seems to the court that some of the counts in the said de- claration are good, and therefore that the said declaration is suffi- cient in law for the plaintiff to have and maintain his action against the defendant. 34. Opinion upon demurrer to a count containing several breaches, one of which is well assigned. 1 Rob. Prac. 282, 3. . defendant's demurrer to the first count in the plaintiff's declaration being argued, it seerns to the court that one of the breaches contained in the said count is well assigned, and there- fore that the said count is sufficient &c. (as before.) 35. Opinion upon demurrer to a declaration or count containing a demand of several matters, which are divisible, and one of which is well claimed. 1 Rob. Prac. 282, 3. defendant's demurrer to the plaintiff's declaration (or, the first count in the plaintiff's declaration) being argued, it seems to the court that the said declaration (or, the said count) contains a demand of several matters which in their nature are divisible, and one of which matters, to wit, the 216. 10. is well claimed, and the court is therefore of opinion that the said declaration (or, the said count) is sufficient &c. (as before.) 36. Opinion upon demurrer to a declaration in which there is a mis- joinder of counts. 1 Rob. Prac. 284, 5. defendant's demurrer to the plaintiff's declaration being argued, it seems to the court that the plaintiff has joined in his declaration causes of action which the law does not allow to be joined, and therefore that the said declaration is not sufficient in law for the plaintiff to have and maintain his action against the defendant. .37. Where defendant has demurred and pleaded, judgment over- ruling his demurrer. 1'Rob. Prac. 286. After stating the court's opinion as in No. 33, 34, or 35, (if either of those forms be applicable) add these words: Whereupon it is con- sidered by the court that the said demurrer be overruled. Judgments not on verdict. 107 In common cases, use the form in No. 33, omitting the words in italics, and adding thereto these words: Therefore it is considered by the court that the said demurrer be overruled. 38. Where defendant has demurred without pleading, judgment over- ruling his demurrer and allowing him to 'plead. 1 Rob. Prac. 286. After attending to the directions in No. 37, add these words: And the defendant now desiring to plead to issue, he is allowed to do so. Whereupon he &c. (here enter the plea.) 39. Where defendant has demurred without pleading, and his de- murrer being overruled, final judgment is entered. 1 Rob. Prac. 286. This day came the parties by their attorneys, and thereupon the defendant's demurrer to the plaintiff's declaration being ar- gued, it seems to the court that the said declaration is sufficient in law for the plaintiff' to have and maintain his action against the defendant : Therefore it is considered by the court that the plaintiff recover against the defendant (as in No. 1, if it be a case in which, had there been no demurrer, judgment would have been given by default, without the interposition of a jury.) If the action be debt on a collateral bond, after the judgment for the debt and costs, add these words: But this judgment is to be discharged by the payment of such damages as the plaintiff has sustained by occasion of the breach of the condition of the writing obligatory in the declaration mentioned, and the costs ; which damages are to be enquired of by a jury. If the action sound entirely in damages, the entry may be made thm: Therefore it is considered by the court that the said de- murrer be overruled ; that the plaintiff recover against the de- fendant such damages as he has sustained by occasion of the matters in the declaration mentioned ; and that his said damages be enquired of by a jury. 40. Final judgment in favour of a defendant upon his demurrer to the declaration. I Rob. Prac. 287. that the said declaration is not sufficient in law for the plaintiff to have and maintain his action against the defendant : Therefore it is considered by the court that the plaintiff take nothing by his bill, but for his false clamour be in mercy &c. and that the defendant go thereof without day, and recover against the plaintiff his costs by him about his defence in this behalf expended. 108 Judgments not on verdict. 41. After opinion in favour of defendant upon his demurrer, joinder withdrawn, and leave to amend. 1 Rob. Prac. 287. that the said declaration is not sufficient in law for the plaintiff to have and maintain his action against the defendant. Whereupon, the plaintiff suggesting that the ground of the court's opinion is such as can be removed by an amendment, the court, at the instance of the said plaintiff, forbears to enter a final judg- ment for the defendant upon his demurrer, and allows the plain- tiff to withdraw his joinder therein, and amend his declaration. But the said plaintiff is to pay all the costs incurred by himself, or occasioned to the defendant, by his filing the said insufficient declaration. 42. Judgment for defendant upon demurrer to a particular count. I Rob. Prac. 287. This day came &c. and thereupon the defendant's demurrer to the first count in the plaintiff's declaration being argued, it seems to the court that the said first count is not sufficient in law for the plaintiff to have and maintain his action against the defendant upon that count: Therefore it is considered by the court that the plaintiff take nothing by his said first count, and that he pay all the costs incurred by himself, or occasioned to the defendant, by the said insufficient count. 43. Judgment for plaintiff upon demurrer to a plea in abatement. 1 Rob. Prac. 287, 8. This day came &c. and thereupon the plaintiff's demurrer to the defendant's plea in abatement being argued, it seems to the court that the matter contained in the said plea is not sufficient in law to quash the plaintiff's writ : Therefore it is considered by the court that the said plea be overruled, and that the plain- tiff recover against the defendant his full costs of suit to this time, a lawyer's fee only excepted. And the court doth order that the defendant to the plaintiff's delaration do further answer. 44. Judgment for defendant upon demurrer to his plea in abatement. I Rob. Prac. 288. is sufficient in law to quash the plaintiff's writ : There- fore it is considered that the same be quashed accordingly, and that the defendant recover against the plaintiff his costs by him about his defence in this behalf expended. Judgments not on verdict. 109 45. Judgment for defendant upon demurrer to a plea in abatement pleaded by him to particular counts. 1 Rob. Prac. 288, 9. This day came &c. and thereupon the plaintiff's demurrer to the plea in abatement pleaded by the defendant to the third, fourth and last counts of the plaintiff 's declaration being argued, it seems to the court that the matter contained in the said plea is sufficient in law to quash those counts, and so much of the writ as regards the same : Therefore it is considered that those counts, and so much of the writ as regards the same, be quashed accor- dingly, and that the plaintiff pay all costs incurred by himself, or occasioned to the defendant, by his filing those counts. 46. Judgment for plaintiff upon demurrer to a replication to a plea in abatement. 1 Rob. Prac. 289. This day came &c. and thereupon the defendant's demurrer to the plaintiff's replication to the said defendant's plea in abate- ment being argued, it seems to the court that the matter con- tained in the said replication is sufficient in law to maintain the plaintiff's writ : Therefore &c. (like the judgment for plaintiff upon demurrer to a plea in abatement. See No. 43.) 47. Another, where the plea was bad; the court going up to thejirst fault. I Rob. Prac. 289. This day came &c. and thereupon the defendant's demurrer to the plaintiff's replication to the said defendant's plea in abate- ment was argued, and in the argument it was insisted by the plaintiff, that though the replication might be bad, yet that the plea was bad also, and that, upon the principle of going up to the first fault in the pleadings, judgment should be given for the plaintiff. Whereupon the matters of law arising upon the said demurrer being maturely considered, it seems to the court that the matter contained in the defendant's plea is not sufficient in law to quash the plaintiff's writ : Therefore &c. (as in No. 43.) 48. Judgment for defendant upon demurrer to replication to plea in abatement. 1 Rob. Prac. 289. This day came &c. and thereupon the defendant's demurrer to the plaintiff's replication to the said defendant's plea in abate- ment being argued, it seems to the court that the matter con- tained in the said replication is not sufficient in law to maintain the plaintiff's writ : Therefore it is considered that the said writ be quashed, and that the defendant recover against the 110 Judgments not on verdict. plaintiff his costs by him about his defence in this behalf ex- pended. 49. Upon demurrer to plea, final judgment in favour of defendant because declaration was bad. 1 Rob. Prac. 289, 90. This day &c. and thereupon the plaintiff's demurrer to the defendant's second plea being argued, it was insisted on behalf of the defendant, that on the case made by the declaration, the plaintiff has no right to recover, and therefore that judgment should be given against him. Whereupon the matters of law arising upon the said demurrer being maturely considered, it seems to the court that the said declaration is not sufficient in law for the plaintiff to have and maintain his action against the defendant : Therefore &c. (like the judgment in favour of a defendant upon his demurrer to the declaration. See No. 40.) 50. Upon demurrer to plea, final judgment for defendant, plea being adjudged good. 1 Rob. Prac. 290. 291. This day &c. and thereupon the plaintiff's demurrer to the defendant's second plea being argued, it seems to the court that the matters contained in the said second plea are sufficient in law to bar and preclude the plaintiff from having or maintain- ing his action against the defendant: Therefore &c. (as last.) 51. Demurrer to one of defendant's pleas sustained. 1 Rob. Prac. 291. This day &c. and thereupon the plaintiff's demurrer to the second plea of the defendant being argued, it seems to the court that the matters contained in the said second plea are not suffi- cient in law to bar or preclude the plaintiff from having or main- taining his action against the defendant : Therefore it is con- sidered by the court that the demurrer to the said second plea be sustained. But no final judgment is given in the cause, be- cause there are issues in fact which remain to be tried. 52. Demurrer sustained to defendant's only plea. 1 Rob. Prac. 291. This day &c. and thereupon the plaintiff's demurrer to the defendant's plea being argued, it seems to the court that the matters contained in the said plea are not sufficient in law to bar or preclude the plaintiff from having or maintaining his ac- tion against the defendant: Therefore &c. (like the judgment in favour of a plaintiff upon defendant's demurrer to his decla- ration. See No. 39.) Judgments not on verdict. Ill 63. In debt on judgment, demurrer to plea sustained, and judgment not being for interest, writ of enquiry awarded. 1 Rob. Prac. 291. This day &c. and thereupon &c. it seems &c. Therefore it is considered by the court that the said demurrer be sustained. And on the motion of the plaintiff, it is ordered that the da- mages which the said plaintiff has sustained by occasion of the detention of the debt in the declaration demanded, be enquired of by a jury. 54. Where plea is only to one count, demurrer thereto overruled. 1 Rob. Prac. 291, 2. This day &c. and thereupon the plaintiff's demurrer to the defendant's plea to the third count of the said plaintiff's decla- ration being argued, it seems to the court that the matters con- tained in the said plea to the said third count are sufficient in law to bar and preclude the plaintiff from having or maintaining his action against the defendant on that count : Therefore it is considered by the court that the plaintiff take nothing by his said third count. 55. After court's opinion for defendant on demurrer to plea, plain- tiff allowed to withdraw his joinder and to reply. 1 Rob. Prac. 292. This day &c. and thereupon the plaintiff's demurrer to the defendant's plea being argued, it seems to the court that the matters contained in the said plea are sufficient in law to bar and preclude the plaintiff from having or maintaining his action against the defendant. Whereupon the plaintiff moved for leave to withdraw his joinder in the said demurrer, and to reply to the said plea : and the court being of opinion that the justice of the case requires that the said leave should be granted, the same is granted accordingly. But the plaintiff is to pay all the costs incurred by himself, or occasioned to the defendant, by his filing the said demurrer. 56. Upon demurrer to replication, Jinal judgment in favour of plain- tiff because plea is bad. 1 Rob. Prac. 292. This day &c. and thereupon the defendant's demurrer to the plaintiff's replication to his plea being argued, it was insisted by the plaintiff that the said plea is insufficient, and that, on the principle of going up to the first fault, the said plea should be 112 Judgments not on verdict. overruled, and judgment given for the plaintiff. Whereupon the matters of law arising upon the said demurrer being ma- turely considered, it seems to the court that the said plea is not sufficient in law to bar or preclude the plaintiff from having or maintaining his action against the defendant : Therefore &c. (like the judgment in favour of a plaintiff upon defendant's de- murrer to his declaration. See No. 39.) 57. Demurrer to replication overruled, and defendant allowed to make up issue in fact. 1 Rob. Prac. 293. This day &c. and thereupon the defendant's demurrer to the plaintiff's replication to his plea being argued, it seems to the court that the matters contained in the said replication are suffi- cient in law for the plaintiff to have and maintain his action against the defendant. Whereupon, on the motion of the de- fendant, he is allowed to make up an issue in fact upon the said replication, to be tried before a jury. 58. Upon demurrer to replication, final judgment in favour of de- fendant. 1 Rob. Prac. 293, 4. This day &c. and thereupon &c. it seems to the court that the matters contained in the said replication are not sufficient in law for the plaintiff to have and maintain his action against the de- fendant : Therefore &c. (like the judgment in favour of a de- fendant upon his demurrer to the declaration. See No. 40.) 59. Plea being to one count, judgment for defendant upon his de- murrer to the replication thereto. 1 Rob. Prac. 293. This day &c. and thereupon the defendant's demurrer to the plaintiff's replication to the said defendant's plea to the first count of the declaration being argued, it seems to the court that the matters contained in the said replication are not sufficient in law for the plaintiff to have and maintain his action against the defendant upon the said first count : Therefore it is considered by the court that the plaintiff take nothing by his said first count. 60. Judgment upon demurrer to rejoinder to replication. 1 Rob. Prac. 294. This day &c. and thereupon the plaintiff's demurrer to the rejoinder to his replication to the defendant's plea being argued, it seems to the court that the matters contained in the said re- joinder are (or, are not) sufficient &c. (like the judgment upon a demurrer to a plea.) Judgments not on verdict- 113 6 L. Judgment for defendant upon demurrer to rejoinder to replication, because replication is bad. 1 Rob. Prac. 294. This day &c. and thereupon the plaintiff's demurrer to the rejoinder to his replication to the defendant's plea being argued, it seems to the court that the matters contained in the said re- plication are not sufficient &c. Therefore &c. (like the judg- ment for a defendant upon demurrer to a declaration.) 62. Demurrers filed to certain counts in declaration ; sixteen pleas filed ; demurrers to some, and issues in fact upon others. This day came the parties by their attorneys, and thereupon the defendant filed a demurrer to the first and second counts in the plaintiff's declaration, and a demurrer to the third count in the said declaration, in which demurrers the plaintiff joined ; the said defendant also filed sixteen pleas in writing, to the third and fifth of which the plaintiff filed similiters,and to the first he replied generally ; the plaintiff filed a demurrer to the second and fourth, and also to the sixth, eleventh, twelfth, thirteenth and fourteenth pleas, in which demurrers the defendant joined; the plaintiff filed a replication to the seventh and eighth, to the ninth and tenth, and to the fifteenth and sixteenth pleas ; to which the defendant filed similiters. And thereupon, on the motion of the said defendant, it is ordered, that the judgment obtained in the office against him be set aside. 63. Defendant in last case tendered two other pleas, which were re- fused ; demurrers to certain counts in the declaration, and to cer- tain pleas, argued ; and judgment thereupon. This day came &c. and thereupon the defendant moved the court to allow two other pleas, which he tendered, to be filed ; but the plaintiff agreeing that the defendant may avail himself of any defence under the pleas already filed in this cause, that he might lawfully make under the two pleas so offered, the court doth refuse leave to file them. Whereupon, the matters of law arising upon the demurrer of the defendant to the first and se- cond counts in the plaintiff's declaration ; upon the demurrer of the said defendant to the third count in the said declaration, and upon the demurrers of the plaintiff to the second, fourth, sixth, eleventh, twelfth, thirteenth and fourteenth pleas pleaded by the defendant, being argued, it seems to the court here, that the first and second counts in the said declaration, and the matters therein contained, are sufficient in law for the plaintiff to have and maintain his action against the defendant; that the third 15 114 Judgments not on verdict. count in the said declaration, and the matters therein contained, are insufficient in law for the plaintiff' to have and maintain his said action upon that count ; and that the defendant's second, fourth, sixth, eleventh, twelfth, thirteenth and fourteenth pleas, and the matters therein contained, in manner and form as the same are therein set forth, are not sufficient in law to bar the plaintiff from having and maintaining his action against the de- fendant : Therefore it is considered by the court that the defen- dant's demurrer to the said first and second counts be overruled, his demurrer to the said third count sustained, and his said se- cond, fourth, sixth, eleventh, twelfth, thirteenth and fourteenth pleas be overruled ; that the defendant pay to the plaintiff the costs occasioned him by the said defendant's filing the said in- sufficient demurrer to the first and second counts in his decla- ration, and the insufficient pleas aforesaid ; and that the plaintiff pay to the defendant the costs occasioned him by the said plain- tiff's filing the said insufficient third count in his declaration. And on the motion of the defendant, this cause is continued till the next term, at his costs. 64. Four pleas tendered, but first, third and fourth only received ; replication to Jirst and fourth, and issues ; replication also to third, rejoinder thereto, and demurrer to rejoinder ; judgment for plaintiff on demurrer ; and verdict for him on other issues. This day came the parties by their attorneys, and thereupon the defendant tendered four pleas in writing, the first, third and fourth of which pleas were received and filed ; but the plaintiff objecting to the filing of the second, the court refused to allow the same to be filed ; the plaintiff' filed his replications to the defendant's first and fourth pleas, and issues on the same were joined between the parties ; to the defendant's third plea the plaintiff filed a replication, to which the defendant filed a re- joinder ; to that rejoinder the plaintiff filed a demurrer, and the defendant joined in the said demurrer: whereupon, the matters of law arising upon the plaintiff's demurrer to the said rejoinder being argued, it seems to the court here that the said rejoinder, and the matters and things therein alleged, are not sufficient in law to bar or preclude the plaintiff from having or maintaining his action against the defendant. And thereupon came a jury, to 'wit, W. II. &c. who being elected, tried and sworn the truth to speak upon the issues joined on the defendant's first and fourth pleas, upon their oath do say, that on the said issues they find for the plaintiff, and they do assess the plaintiff's damages by occasion &c. to &c. Therefore &c. Judgments not on verdict. 115 65. After writ of enquiry, damages assessed by the court, and final judgment rendered. Sess. Acts 1839, p. 43. ch. 66. $ 3. This day came the plaintiff by his attorney, and the defen- dant, though solemnly called, not appearing to require a jury, and the plaintiff requiring none, the court proceeded, in lieu of a jury, to assess the damages which the plaintiff has sustained by occasion of the matters in the declaration mentioned, and to ascertain the time from which interest on the principal sum shall run. Whereupon the court doth assess the said damages at $ , and ascertain the time from which interest shall run on the same to be the day of : Therefore it is con- sidered that the plaintiff recover against the defendant his da- mages assessed as aforesaid, with interest thereon to be com- puted after the rate of six per centum per annum from the said day of till payment, and his costs by him about his suit in this behalf expended. And the said defendant in mercy &c. 116 Trial by jury. CHAPTER XIII. TRIAL BY JURY. 1. Order directing jurors to be summoned for a subsequent day. I Rob. Prac. 295. To secure the attendance of fit jurors on Wednesday next, the court doth order that the sheriff summon eighteen jurors to attend the court on that day. 2. Sheriff" being interested, order directing coroner to summon jury. 1 Rob. Prac. 295. The sheriff of this county being interested in this suit, the court doth direct the coroner of the county to summon a jury to attend tomorrow for the trial of the issue. 3. Sheriff and coroners being interested, order appointing a person to summon a jury. 1 Rob. Prac. 295. . The sheriff and coroners of this county being interested in this suit, the court doth appoint A. B. to summon a jury to attend to- morrow for the trial of the issue; he the said A. B. first taking an oath that he will impartially perform that duty. 4. Oath of jury to try an issue. 1 Rob. Prac. 297. You shall well and truly try the issue (or, issues) joined be- tween A. B. plaintiff and C. D. defendant, and a true verdict give according to the evidence. So help you God. 5. Oath of jury to enquire of damages. 1 Rob. Prac. 297. You shall diligently enquire of damages in the suit between A. B. plaintiff and C. D. defendant, and a true verdict give ac- cording to the evidence. So help &c. 6. Oath of a witness on the voir dire. You shall swear that the answers which you shall give to such Trial by jury. 117 questions as this court shall propound to you, relating to the dif- ference depending between A. B. plaintiff and C. D. defendant, shall be the truth, the whole truth, and nothing but the truth. So help &c. 7. Oat h of witnesses in chief. The evidence that you and each of you shall give in the dif- ference depending between A. B. plaintiff and C. D. defendant, shall be the truth, the whole truth, and nothing but the truth. So help &c. 8. Solemn affirmation by juror or witness. You shall solemnly affirm that you will well and truly try &c. (as in No. 4.) or, that you will diligently enquire &c. (as in No. 5.) or, that the answers &c. (as in No. 6.) or, that the evidence that you shall give &c. (as in No. 7.) 9. Authentication entitling record of one state to be admitted as evi- dence in another. 1 Rob. Prac. 317. State of Virginia, Henrico county, to wit : I, J. R. clerk of the circuit superior court of law and chance- ry for the county of H. in the state of Virginia, do hereby certi- fy that the foregoing is a true transcript from the records of the said court. r n In testimony whereof I hereto set my hand and annex seal l.i f" > i -i i' i r J the seal ot the said court, this day ot . If the transcript be from a record in a suit, say that the foregoing is a true transcript from the records and judicial pro- ceedings of the said court, and contains the record and proceed- ings in a certain action of debt lately depending in the said court between A. B. plaintiff and C. D. defendant, with all things touching the same, as fully and wholly as they exist among the records and proceedings of the court aforesaid. In testimony &c. (as before.) Certificate of the judge in either case. Virginia, H. county, to wit : I, W. B. judge of the circuit superior court of law and chancery for the county of H. in the state of Virginia, and the only judge thereof, do certify that J. R. who hath given the preceding certificate, is clerk of the said court, and that his said attestation is in due form. Given under my hand this day of . 1 1 8 Trial by jury. 10. Authentication entitling a power of attorney or deed from ano- ther state to be received as evidence in Virginia. 1 Rob. Prac. 319. State of - , to wit : I, A. B. clerk of the &c. (describing the court) in the said state, being a court of record, do certify that C. D. who hath signed and sealed the foregoing power of attorney (or, deed) personally appeared in the said court on the - day of -- , and, before the said court, acknowledged the said power of at- torney (or, deed.) ,-. In testimony whereof I hereto set my hand and annex the seal of the said court, this - day of Or: - do certify that E. F., G. H. and J. K. the subscri- bing witnesses to the foregoing power of attorney (or, deed) per- sonally appeared in the said court on the - day of - , and it was then by them, before the said court, proved that A. B. who hath signed and sealed the said deed (or, power of attor- ney) acknowledged and delivered the same in their presence as his act and deed. In testimony &c. (as before.) If there be no seal, the authentication may be as follows : In testi- mony whereof, there being no seal belonging to the said court, I the said A. B. do hereto set my hand, this - day of - . State of - , to wit : I, L. M. presiding judge (or, justice) of the &c. do certify that A. B. whose name is affixed to the preceding certificate as clerk of the said court, is clerk thereof, and that his said attestation is in due form. Given under my hand this - day of - . 11. Protest of an inland bill of exchange. The form is prescribed in 1 R. C. 1819, p. 483. 12. Protest of a foreign bill of exchange. The form is given in Chitty on Bills, p. 310. 13. Notice of dishonour. Either expressly, or by necessary inference, the notice must disclose that the bill or note has been dishonoured. In respect to a bill, the two important facts are, that payment of the bill has been demanded of the acceptor, and that payment has not been obtained. In like manner, in the case of a note, the notice should shew a presentment, demand of payment, and refusal. See opinion of Tindal, C. J. in Boulton v. Welsh, 3 Bingh. N. C. 688. 32 Eng. Com. Law Rep. 283. Trial by jury. 119 14. Protest and affidavit under acts of January 28. 1829 and Feb- ruary 3. 1834. 1 Rob. Prac. 320. These acts are unskilfully drawn. It seems to be expected that the time, place and manner of giving notice of the protest should be stated in the protest itself. A more regular course would have been to direct the time, place and manner of giving the notice, with a copy thereof when written, to be subjoined to, endorsed on, or annexed to the pro- test. It would have been more regular, because the protest and the no- tice are in their nature separate and distinct things, and the former ought to precede the latter. The awkward phraseology of the act prevents the insertion here of any form under it. 15. Bill of exceptions by defendant to opinion of circuit court admit- ting note as evidence, which he had objected to on the ground of variance. 1 Rob. Prac. 344 to 348. B. v. C. fy I). Be it remembered, that after the jury were sworn to try the issue joined in this cause, the plaintiff, to main- tain the said issue on his part, offered to give in evidence to the jury, as the note on which this action is founded, a writing in the following words and figures, to wit : (here insert the note) : to which evidence the defendants by their counsel objected, as improper to go to the jury, because of the variance between the said writing so offered in evidence, and the note described in the plaintiff's declaration. But the court, being of opinion that the said variance is immaterial, overruled the objection to the said evidence, and permitted the same to go to the jury. To which opinion the defendants by their counsel excepted, and prayed that these their exceptions might be signed, sealed and enrolled ; which is done accordingly. [seal.] 16. Bill of exceptions by plaintiff' to opinion of county court admit- ting evidence offered by defendant. 1 Rob. Prac. 344 to 348. A. B. v. C. D. Be it remembered, that after the jury were sworn to try the issue joined in this cause, the plaintiff to main- tain the said issue on his part, gave in evidence to the jury (here state the evidence.) And thereupon the defendant, to maintain the said issue on his part, offered to give the following evidence to the jury, to wit: (here state the substance of the evidence objected to.) Whereupon the counsel for the plaintiff' insisted that the said evidence, so offered to be given by the defendant, was not admissible in law upon the said issue, and moved the court to exclude the same from going to the jury. But the court decided that the evidence so offered by the defendant was ad- missible, and the same was accordingly admitted to the jury, 120 Trial by jury. and left to their consideration. Whereupon, inasmuch as the exception alleged by the plaintiff to the admissibility of the said evidence, and which he prayed that the court would allow, has not been allowed, he the said plaintiff has now written the same exception, and required that the justices of the said court would put their seals hereunto in testimony thereof; and the said jus- tices accordingly do so. [seal] [seal] [seal] [seal] 17. Bill of exceptions by defendant to opinion refusing instruction asked for by him. 1 Rob. Prae. 344 to 348. (As last, to) And thereupon the defendant, to maintain the said issue on his part, gave in evidence to the jury, that* &c. (here state the defendant's evidence.) Whereupon the counsel for the defendant moved the court to instruct the jury as fol- lows, that is to say, (here state the instruction asked for.) But the court refused to give the said instruction to the jury. To which opinion of the court refusing the said instruction, the de- fendant by his counsel excepted, and tendered this his bill of exceptions, which he prays may be signed, sealed and made a part of the record in the cause ; and the same is done accor- dingly. * It is advisable always to state the substance of the evidence, or at least enough of it to shew the pertinency of the instruction which is asked, to the case before the jury. 18. Entry of the bill of exceptions. 1 Rob. Prac. 348. At the foot of the verdict and judgment, or other entry in the cause, insert the following Memorandum. The last cause being one wherein a supersedeas lies to a higher court, the plaintiff, at the trial thereof, alleged an exception, and prayed that the court would allow it ; but the same was not allowed, and the said plaintiff wrote his said ex- ception, and required that the justices would put their seals in testimony thereof, which they did accordingly. And the excep- tion so written, with the seals of the said justices, is ordered to be made a "part of the record in the cause. Or, more briefly as follows : Memorandum. On the trial of the last cause, the defendant by his attorney excepted to an opinion of the court given upon the said trial, and tendered his bill of exceptions, which was re- ceived, signed and sealed by the court, and ordered to be made part of the record in the cause. Trial by jury. 121 19. Demurrer to evidence. 1 Rob. Prac. 349. A. B. v. C. D. Be it remembered, that after the jury were sworn to try the issue joined in this cause, the defendant, to prove and maintain the said issue on his part, shewed in evi- dence to the jury, by one witness (E. F.) that &c. (here state the evidence.) And the plaintiff says that the matter aforesaid, so shewn in evidence to the jury by the defendant, is not suffi- cient in law to maintain the said issue on the part of the defen- dant, and that he* the said plaintiff is not bound by the law of the land to answer the same. Wherefore, for want of sufficient matter in that behalf to the said jury shewn in evidence, the said plaintiff prays judgment, and that the jury aforesaid may be discharged from giving any verdict upon the said issue, and that his damages by reason of the matters complained of may be adjudged to him &c. If the demurrer be by the defendant, then, instead of what follows the word judgment, say, " and that the said plaintiff may be barred from having or maintaining his aforesaid action thereof against him &c." 20. Joinder by defendant in plaintiff's demurrer to evidence. C. D. ads A. B. And the said defendant, inasmuch as he hath shewn in evidence to the jury sufficient matter to maintain the issue upon his part, and which the said defendant is ready to verify, and inasmuch as the said plaintiff doth not deny or in any manner answer the said matter, prays judgment, and that the said plaintiff may be barred from having or maintaining his action against the defendant, and that the jury may be discharged from giving their verdict upon the said issue. 21. Joinder by plaintiff in defendant's demurrer to evidence. A. B. v. C. D. And the said plaintiff, inasmuch as &c. (as in the last form, substituting merely plaintiff for defendant, and defendant for plaintiff) prays judgment, and his damages by rea- son of the matters complained of, to be adjudged to him &c. 22. Entry where there is a demurrer to evidence. 1 Rob. Prac. 349. 371. This day came the parties by their attorneys, and thereupon came a jury, to wit, A. B. &c. who being elected, tried and sworn the truth to speak upon the issue joined, the defendant 16 122 Trial by jury. filed a demurrer to the evidence of the plaintiff, and the plaintiff filed (or, entered) his joinder in the said demurrer. If the jury are discharged without giving any verdict, say Whereupon the jury aforesaid, by the assent of the parties, are discharged from giving any verdict upon the premises. For the form of the entry where there is a verdict assessing damages conditionally, or, if in detinue, where the "price and damages are as- sessed conditionally, see the next chapter, No. 27 and 28. 23. Jury siuorn, and having partly heard the evidence, adjourned. 1 Rob. Prac. 354. This day carne the parties by their attorneys, and thereupon came a jury, to wit, I. K. &c. who being elected, tried and sworn the truth to speak upon the issue joined, and having partly heard the evidence, by consent of the parties, and with the as- sent of the court, were adjourned till tomorrow morning, ten o'clock. 24. Jury, having further heard the evidence, again adjourned. 1 Rob. Prac. 354. This day came &c. and the jury sworn yesterday to try the issue in this cause appeared in court according to their adjourn- ment, and having further heard the evidence, by consent of the parties, and with the assent of the court, were again adjourned until tomorrow morning, ten o'clock. 25. Jury, having fully heard the evidence, sent out, and not agree- ing, juror withdrawn and cause continued. 1 Rob. Prac. 354. This day came &c. and the jury sworn to try the issue in this cause appeared in court according to their adjournment, and having fully heard the evidence, were sent out of court to con- sult of their verdict, after which consultation they returned into court and declared that they could not agree in a verdict : whereupon, by consent of the parties, and with the assent of the court, /. R. one of the jurors aforesaid was withdrawn, and the rest of the jury from rendering their verdict discharged. And the cause is continued till the next term, for a new trial to be had therein. Trial by jury. 123 26. Jury, having fully heard the evidence, sent out, and not agree- ing, adjourned. 1 Rob. Prac. 354. were sent out of court to consult of their verdict, and after some time returned, and not having agreed in a verdict, by consent of the parties were adjourned till tomorrow morning, ten o'clock. 27. Jury, who had once retired, appeared after adjournment, and after again retiring, returned a verdict. 1 Rob. Prac. 354. This day &c. and the jury sworn to try the issue in this cause appeared in court according to their adjournment, and being again sent out of court to consult of their verdict, after some time returned, and upon their oath do say &c. 28. Entry where one of the jury, instead of talcing an oath, makes a solemn affirmation. This day came the parties by their attorneys, and thereupon came a jury, to wit, A. B. &c. who being elected, tried and sworn, and W. D. who being elected, tried and charged, the truth to speak upon the issue joined, upon their oath and in solemn form do say &c. 124 Verdict and judgment. CHAPTER XIV. VERDICT AND JUDGMENT. 1. Verdict on writ of enquiry, except in detinue. 1 Rob. Prac. 370. This day came the plaintiff by his attorney, and a jury, to wit, A. B. &c. and the said jury being sworn (or, if any affirm, and the said jury being all sworn except C. D. who was charged) diligently to enquire of damages in this suit, upon their oath, (or, if any affirm, upon their oath and in solemn form) do say that the plaintiff hath sustained damages by occasion of (In trespass or case for tort) the matters in the declaration mentioned, to $ . (In covenant) the breaches assigned in the declaration, of the covenant therein mentioned, to $ , and they allow on the said damages interest from the day of till paid. (In assumpsit) the nonperformance of the promises and as- sumptions in the declaration mentioned, to $ , and they al- low on the said damages interest from the day of till paid. (In debt on a collateral bond) the breaches assigned in the de- claration, of the condition of the writing obligatory in the said declaration mentioned, to $ , and they allow on the said damages interest from the day of till paid. (In any other action of debt) the detention of the debt in the declaration demanded, to $ . 2. Verdict on writ of enquiry in detinue. 1 Rob. Prac. 370. This day &c. (as last) diligently to enquire the value of the slave in the declaration mentioned, and the plaintiff's da- mages by reason of his detention, upon their oath (or, upon their oath and in solemn form) do say that the said slave is of the value of $ 300, and that the plaintiff hath sustained damages by occasion of the detention of the said slave, to $ . Verdict and judgment. 125 3. Verdict upon issue or issues, where the finding is general and not extended into form. 1 Rob. Prac. 355. This day came the parties by their attorneys, and thereupon came a jury, to wit, A. B. &c. who being elected, tried and sworn (and if any affirm, say, and C. D. who being elected, tried and charged) the truth to speak upon the issue (or, issues) joined, upon their oath (or, if any affirm, upon their oath and in solemn form) do say that on the said issue (or, issues) joined they find for the plaintiff (or, defendant.) Or: that on the first of the said issues they find for the plain- tiff, and on the second of the said issues they find for the defen- dant. 4. Verdict upon issue or issues, where the finding responds to the same, or is extended by the clerk into form. Where the plea is non est factum do say that the writing obligatory in the declaration mentioned is not* the deed of the defendant, as the plaintiff hath alleged. Where the plea is nil debet that the defendant doth notf owe to the plaintiff the principal, interest and charges of pro- test (or, the debt and interest or, the debt) in the declaration demanded, or any part thereof,^ in manner and form as the plain- tiff hath complained against him. Where the plea is non assumpsit that the defendant did not undertake or promise, $ in manner and form as the plaintiff hath complained against him. Where the plea is not guilty that the defendant is nol\\ guilty of the premises laid to his charge, in manner and form as the plaintiff hath complained against him. Where there is a plea of coverture that at the time of ma- king the in the declaration mentioned, the defendant was and still is the wife^ of J. K. as the said defendant in pleading hath alleged. Where duress is pleaded that the defendant, at the time of the execution of the writing obligatory in the declaration men- * If the verdict be for the plaintiff, omit the word not. t If the verdict be for the plaintiff, the word not and the words or any part thereof will be omitted. | If the verdict be for the plaintiff, say did undertake and pro- mise. || If the verdict be for the plaintiff, omit the word not. ft If the verdict be for the plaintiff, say was and yet is a feme sole and not the wife. 126 Verdict and judgment. tioned, was imprisoned by the plaintiffs and others, of their covin, at the county in the said declaration mentioned, and there in prison detained until the said defendant, by force, duress, threats, and restraints of imprisonment, the writing obligatory aforesaid to the said plaintiffs then and there made, as the said defendant in pleading hath alleged. Where plea is non damnificalus that the plaintiff has not been damnified by reason of any matter, cause or thing set forth in the condition of the writing obligatory mentioned in the de- claration, as the defendants in pleading have alleged. Where plea is that action tvas not commenced in due time that this action was not$\ commenced within years next after the cause thereof, as the said defendant in pleading hath alle- ged. Or, if this be one of two issues, enter it thus: And further the jurors aforesaid upon their oath (or, upon their oath and in solemn form) do say that this action was not$ commenced within years next after the cause thereof, as the said defendant in his second plea hath alleged. JJ If the verdict be for the plaintiff, say was commenced within years next after the cause thereof, as the plaintiff by his repli- cation to the defendant's second plea hath alleged. 5. Verdict for plaintiff in action against officer for an escape, to which not guilty is pleaded. 1 Rob. Prac. 358. oath do say, that the said C. D. in the declaration named did escape with the consent of the defendant's officers (or, did escape through the negligence of the defendant's officers or, might have been retaken, and the defendant and his officers ne- glected to make immediate pursuit) and the said defendant is guilty in manner and form as the plaintiff against him hath complained. 6. Verdict for plaintiff on plea of no assets. 1 Rob. Prac. 359, 60. oath do say, that at the commencement of this suit, and at the time of the plea pleaded by the defendant, the said defendant had goods and chattels which were of the said J. R. deceased at the time of his death, in the hands of him the said defendant to be administered, to the value of $ (or, sufficient to satisfy the plaintiff" 's demand.) Or, in lieu of the words in italics, these words : which goods and chattels in the hands of the defendant to be administered, were, at the commencement of this suit, to the value of $ , and Verdict and judgment. 127 were, at the time of the plea pleaded by the defendant, to the value of $ . 7. Verdict for plaintiff on plea of debts of superior dignity to a greater amount than the assets in hand. 1 Rob. Prac. 359, 60. oath do say, that at the commencement of this suit, and at the time of the plea pleaded by the defendant, the said defendant had goods and chattels which were of the said W. C. deceased at the time of his death, in his hands to be adminis- tered, of greater value than was sufficient to satisfy the money due and owing on the judgments and the writing obligatory in the said plea mentioned, and- the goods and chattels over and beyond what was sufficient to satisfy the said judgments and the 'said writing obligatory, were to the value of $ at the commencement of this suit, and to the value of $ at the time of the plea pleaded by the defendant. (Or, were, at the commencement of this suit, and at the time of the said plea pleaded by the defendant, sufficient to satisfy the plaintiff's demand.) 8. Verdict in action of debt against an heir, upon replication under the statute to plea of riens per discent. 1 Rob. Prac. 360. that the defendant E. F. had lands, tenements and here- ditaments descended to him from his ancestor the said C. D. before the commencement of this suit, and that the said lands, tenements and hereditaments so descended were and are of the value of $ . 9. Verdict where one of the defendants is a devisee who had aliened, and the replication is similar. 1 Rob. Prac. 393. that the defendant G. H. had lands, tenements and here- ditaments devised to him by the said C. D. before the com- mencement of this suit, and that the lands, tenements and here- ditaments so devised to him were and are of the value of $ . 10. Verdict allowing interest and fixing period at which it shall com- mence. 1 Rob. Prac. 361. And the said jury ascertain the principal sum due to be $ , and they allow interest thereon, and fix the day of as the period at which the said interest shall commence. 128 Verdict and judgment. 11. Where rate of interest is governed by the laws of another state. 1 Rob. Prac. 362. And further the said jury say, that the contract was made and ought to have been performed in the state of , and that the rate of interest allowed by the laws of that state is per centum per annum. 12. Verdict for plaintiff in debt upon a penal obligation. 1 Rob. Prac. 363, 4. oath do say, that upon the issue joined they find for the plaintiff, but that the sum demanded is a penalty, and there is only due to the said plaintiff the principal sum of $ , with interest thereon from the day of . 13. Verdict assessing damages for detention, where principal and in- terest exceed the penalty. 1 Rob. Prac. 364. oath do say, that upon the issue joined they find for the plaintiff, and they ascertain the principal sum due to be $ , and allow interest thereon from this day ; and they further say that the plaintiff hath heretofore sustained damages, by occa- sion of the detention of his debt, to $ besides his costs. 14. Verdict for plaintiff in debt upon a note or single bill. 1 Rob. Prac. 365, 6. oath do say, that upon the issue (or, issues) joined they find for the plaintiff, and they ascertain $ to be the princi- pal sum due, and they allow interest thereon, and fix the day of as the period at which the interest shall commence. 15. Verdict for plaintiff in debt on note, responding to plea of nil debet. 1 Rob. Prac. 365. oath do say, that the defendant doth owe to the plaintiff the principal, interest and charges of protest in the declaration demanded, and they assess the plaintiff's damages, by occasion of the detention of the said principal, to one cent besides his costs. If there be no charges of protest that the defendant doth owe to the plaintiff the debt and interest in the declaration de- manded. If interest be not demanded that the defendant doth owe to the plaintiff the debt in the declaration demanded, and they do Verdict and judgment. 129 allow on the said debt interest from the day of till paid. If only part of the debt is found to be due that the defendant doth owe to the plaintiff $ parcel of the debt in the decla- ration demanded, and on the sum so found to be due they allow interest from the day of till paid. 16. Verdict for plaintiff" in debt on single bill, responding to plea of payment. 1 Rob. Prac. 356. 365. oath do say, that the debt and interest in the declaration demanded have not been paid, as the defendant in pleading hath alleged. If interest be not demanded that the debt in the declaration demanded has not been paid, as the defendant in pleading hath alleged, and they do allow on the said debt interest from the day of till paid. If only part of the debt remain unpaid that $ , parcel of the debt in the declaration demanded, has not been paid, and they allow interest thereon from the day of till paid. 17. Verdict for plaintiff in debt on a bond with collateral condition. 1 Rob. Prac. 366. oath do say, that upon the issue (or, issues) joined they find for the plaintiffs, and they assess the damages which the plaintiffs have sustained by occasion of the breaches assigned in the declaration, of the condition of the writing obligatory in the said declaration mentioned, to $ , and they allow on the said damages interest from the day of till paid. 18. Verdict for plaintiff in covenant. 1 Rob. Prac. 366. that on the issue (or, issues) joined they find for the plaintiff, and they assess the damages which the plaintiff has sustained by occasion of the breaches assigned in the declara- tion, of the covenants therein mentioned, to $ , and allow on the said damages interest from the day of till paid. 19. Verdict for plaintiff in assumpsit. 1 Rob. Prac. 356. 366. that on the issue joined they find for the plaintiff, and they assess the damages which the plaintiff has sustained by occasion of the nonperformance of the promises and assump- tions in the declaration mentioned, to $ , and allow on the said damages interest from the day of till paid. 17 130 Verdict and judgment. 20. Verdict for plaintiff responding to plea of non assumpsit. that the defendant* did undertake and promise in man- ner and form as the plaintiff has complained, and they assess the plaintiff's damages by reason of the not performing those promises and undertakings (or, that promise and undertaking) to $ , and allow &c. (as last.) * If the plea was non assumpsit by testator or intestate, say " that the defendant's testator (or, intestate) in his lifetime did &c." 21. Verdict for defendant responding to plea of non assumpsit as to part and tender as to residue. that the defendant did not undertake or promise to an amount beyond the sum of $ in his plea mentioned, and that the said defendant did tender and offer to pay to the plain- tiff the said sum of $ , in manner and form as the said de- fendant hath alleged. 22. Response in favour of defendant as to tender of part, and in favour of plaintiff upon plea of non assumpsit. that the defendant did* tender and offer to pay to the plaintiff the sum of $ in his plea mentioned, but* that the said defendant did undertake and promise to an amount beyond that sum, that is to say, to the amount of $ , parcel of the several sums of money in the declaration mentioned, in manner and form as the plaintiff hath complained against him, and they assess the plaintiff's damages by reason of the not performing the promises and undertakings in the said declaration mentioned, to $ , and allow &c. * If both parts of the plea be found for the plaintiff, then, after did insert not, and instead of but use the word and. 23. Response in assumpsit to plea of infancy. that the defendant, at the time of the making of the se- veral promises in the declaration mentioned, was* an infant within the age of twenty-one years, as the said defendant hath alleged. * If the issue be found for the plaintiff, then, after was insert not, and after responding to the issue, state the assessment of damages as usual. Verdict and judgment. 131 24. Verdict in action of assumpsit for sterling money, assessing damages in current money. that the defendant did undertake and promise in man- ner and form as the plaintiff has complained, and they assess the plaintiff's damages by reason of the not performing those promises and undertakings (or, that promise and undertaking) to .294. 12. current money of this commonwealth, and allow on the said damages interest from the day of till paid. Note. Where an action of assumpsit was brought for 171. 5. 4. sterling, of the value of <228. 7. laying the damages at <500. and upon the plea of non assumpsit the jury found for the plaintiff and as- sessed his damages to i294. 12. current money, it was held that the verdict was correct that the jury had very properly settled the value of the sterling money themselves, instead of leaving it to be ascertained by the court. Barnett fyc. v. Watson fyc. 1 Wash. 372. 25. Verdict for plaintiff in detinue, responding to plea of non detinet. I Rob. Prac. 367. that the defendant doth detain the slaves Tab, Betty and Jack in the declaration mentioned, in manner and form as the plaintiff against him hath complained, and that the said Tab is of the value of $ 200, and the said Betty and Jack each of the value of $ 300 ; and they do assess the damages which the plain- tiff hath sustained by occasion of the detention of the said slaves, to $ besides his costs. 26. Verdict for plaintiff in action for a tort. 1 Rob. Prac. 369. that on the issue joined they find for the plaintiff, and they assess the damages which the plaintiff has sustained by occasion of the matters in the declaration mentioned, to $ . 27. Verdict where there is a demurrer to evidence, assessing damages conditionally. 1 Rob. Prac. 371. After making use of No. 22. in the last chapter (p. 121.) as far as it goes, proceed thus: Whereupon it is told to the jurors afore- said that they shall enquire what damages the plaintiff has sus- tained by reason of the matter by him shewn in evidence, in case judgment shall be given for the plaintiff upon the said evi- dence. And the jurors aforesaid upon their oath do say, that in case judgment shall be given for the plaintiff upon the evidence aforesaid, then they assess the damages of the plaintiff by him 132 Verdict and judgment. sustained by reason of the matter by him shewn in evidence as aforesaid, to $ , and fix the day of as the period at which interest shall commence thereon.* And thereupon the jury aforesaid, by the assent of the parties, are discharged from giv- ing any farther verdict upon the premises. * These words will of course be omitted if interest be not allowed. 28. Verdict where evidence is demurred to in detinue, assessing price and damages conditionally. 1 Rob. Prac. 371. Pursue direction given in last form, and then proceed thus : Where- upon it is told to the jurors aforesaid that they shall enquire the value of the slave in the declaration mentioned, and the plain- tiff's damages by reason of his detention, in case judgment shall be given for the plaintiff upon the said evidence. And the ju- rors aforesaid upon their oath do say, that in case judgment shall be given for the plaintiff upon the evidence aforesaid, they ascertain the said slave to be of the value of $ 300, and that the plaintiff hath sustained damages by occasion of the detention of the said slave, to $ . And thereupon &c. (as last.) 29. Special verdict. 1 Rob. Prac. 372. A. B. v. C. D. We, the jury sworn to speak the truth upon the issue joined, upon our oath say that &c. (stating the facts proved at the trial, with certainty and precision.) But whether or not, upon the whole matter aforesaid, the issue joined be for the plaintiff or for the defendant, the jury do not know, and therefore they pray the advice of the court; and if upon the whole matter it shall seem to the court that the issue is for the plaintiff, then the jury find for the plaintiff upon the said issue, and in that case they assess the damages of the plaintiff to $ , and fix the day of as the period at which interest shall commence on the said damages. But if upon the whole matter aforesaid it shall seem to the court that the issue is for the defendant, then the jury find for the defendant upon the said issue. 30. Entry of special verdict. 1 Rob. Prac. 372. This day came the parties by their attorneys, and thereupon came a jury, to wit, A. B. &c. who being elected, tried and sworn the truth to speak upon the issue joined, upon their oath returned a special verdict in these words : (Here record the spe- cial verdict.) Verdict and judgment. 133 31. Special verdict set aside and venire de novo awarded.^1 Rob. Prac. 372, 3. The special verdict in this cause being defective and uncer- tain, the same is set aside, and a venire de novo awarded. 32. Verdict for plaintiff, subject to opinion on a point reserved. 1 Rob. Prac. 373. This day came &c. and thereupon came a jury, to wit, A. B. &c. who being elected, tried and sworn the truth to speak upon the issue joined, upon their oath do say that &c. (here the case is to be stated so far as is material to understand the particular point which is reserved.) And if the court shall be of opinion that &c. (here state the point) then they find for the plaintiff on the issue joined, and assess his damages by occasion of the matters in the declaration mentioned to $ , and fix the day of as the period at which interest shall com- mence on the said damages ; but if the court shall be of opi- nion that &c. then they find for the defendant on the said issue. 33. Verdict reserving point set aside, and venire de novo awarded. I Rob. Prac. 373, 4. The point reserved at the trial of this cause being upon a case stated too imperfectly for the court to determine the ques- tion of law arising thereupon, it is ordered that the verdict of the jury be set aside, and a venire de novo awarded. 34. Case agreed in lieu of a special verdict. 1 Rob. Prac. 374. This day came the parties by their attorneys, and a case was agreed by them, to be argued in lieu of a special verdict, which case is in the words following, to wit : (Here insert it.) 35. Case agreed set aside. 1 Rob. Prac. 374. The case agreed in this cause being defective and uncertain, the same is set aside, and a venire de novo awarded. 36. Motion for new trial, and part of damages being released, mo- tion overruled. \ Rob. Prac. 379. The defendant, by his attorney, this day moved the court to set aside the verdict rendered in this cause, and grant him a 134 Verdict and judgment. new trial therein, upon the ground that the damages assessed by the jury exceed those laid in the declaration or stated in the writ:* whereupon the plaintiff in open court released to the de- fendant $ parcel of the said damages, and the motion of the defendant is therefore overruled, and it is considered by the court that the plaintiff recover &c. * In lieu of the words in italics, the words " are excessive" may be inserted, when better adapted to the case. 37. Motion for new trial granted. 1 Rob. Prac. 375 to 380. On the motion of the defendant by his attorney, and for rea- sons appearing to the court, the verdict rendered in this cause is set aside, and a new trial granted the said defendant, upon condition of his paying the costs of the former trial. 38. Where some defendants are convicted and others acquitted, new trial granted the convicted defendants. 1 Rob. Prac. 379, 80. On the motion of the defendants A. B. and C. D. by their at- torney, and for reasons appearing to the court, the verdict ren- dered in this cause is set aside as to those defendants, and a new trial is granted them, upon condition of their paying the costs of the former trial. But the said verdict stands as to the defen- dants who are acquitted. 39. Where damages are assessed against one defendant who made de- fault, and the others having pleaded are acquitted, new trial grant- ed as to one of the acquitted defendants. Pierce v. Harris &fc. 10 Bingh. 331. 25 Eng. Com. Law Rep. 155. In this cause, in which a verdict has been rendered for all the defendants except the defendant P. who suffered judgment to go by default, and against whom damages have been assessed, the plaintiff by his attorney moved the court to set aside the verdict as to the defendant H. And the court, being dissatisfied with the verdict in favour of that defendant, is of opinion that the case as to him ought to be submitted to the consideration of a new jury, provided the plaintiff will pay to all the defendants except the said defendant P. their costs by them about their de- fence heretofore expended, and also enter a nolle prosequi as to all the defendants except the said H. and P. And it is accord- ingly ordered that as to the said defendant H. the verdict be set aside, and a new trial had against him, upon those condi- tions. But the defendant P. who has not joined in opposing the Verdict and judgment. 135 plaintiff's application, is not to be prejudiced by the new as- sessment of damages which may be made at the next trial. As to him the sum already assessed is to be considered the maxi- mum to which he can be made liable ; so that, although he may be liable to less, if upon the new trial the jury find less, yet he is not, under any circumstances, to be charged with more. 40. Motion for new trial being overruled, opinion of court excepted to. 1 Rob. Prac. 381, 2, 3. The defendant by his attorney moved the court to set aside the verdict rendered in this cause, and grant him a new trial therein, upon the ground that the said verdict is contrary to evi- dence ; which motion was overruled, and the defendant tendered a bill of exceptions, setting forth the facts proved upon the trial, which bill was received, signed and sealed by the court, and or- dered to be made a part of the record in the cause. 41. Motion for new trial being granted, opinion of court excepted to. 1 Rob. Prac. 383, 4. On the motion of the plaintiff by his attorney, and for reasons appearing to the court, the verdict rendered in this cause is set aside, and a new trial granted the said plaintiff, upon condition of his paying the costs of the former trial. Whereupon the de- fendant, by his attorney, tendered a bill of exceptions to the opinion of the court setting aside the said verdict and granting a new trial, which bill was received, signed and sealed by the court, and ordered to be made a part of the record in the cause. 42. Judgment arrested because verdict was rendered as upon an issue, when no plea had been filed. 1 Rob. Prac. 386, 7. M 'Million v. Dobbins, 9 Leigh 422. The plaintiff (or, defendant) by his attorney saith that judg- ment ought not to be given on the verdict in this cause, because the said verdict purports to have been rendered upon an issue, and though the record states that the jury were sworn to try the issue joined, it does not shew that any plea was filed by the de- fendant upon which issue could have been joined. Whereupon the matters of law arising upon the said plea in arrest of judg- ment being argued, it seems to the court that no judgment ought to be given on the said verdict. And it is ordered that the same be set aside. 136 Verdict and judgment. 43. Motion in arrest of judgment overruled, and judgment for plain- tiff. The defendant by his attorney saith that judgment ought not to be given on the verdict in this cause, because &c. (state the reasons.) Whereupon the matters of law arising upon the said plea in arrest of judgment being argued, it seems to the court that after the said verdict, judgment ought not to be stayed for the cause assigned : Therefore it is considered that the plain- tiff recover &c. (according to the nature of the case.) 44. Judgment for plaintiff, notwithstanding failure to respond to one of the issues ; it being immaterial. Ray v. Clemens, 6 Leigh 600. The defendant by his attorney saith that judgment ought not to be given on the verdict in this cause, because the said verdict does not respond to the issue joined on the second plea. Where- upon the matters of law arising upon the said plea in arrest of judgment being argued, it seems to the court that the second plea is bad, and the issue joined upon it immaterial, and there- fore that judgment ought not to be stayed for the cause assigned. Whereupon it is considered that the plaintiff recover &c. (accord- ing to the nature of the case.) 45. Judgment for plaintiff, notwithstanding verdict for defendant on one of the issues; it being immaterial. The People v. Haddock, 12 Wend. 475. After stating the verdict, proceed as follows : And the court being of opinion that the plaintiffs are entitled to judgment notwith- standing the verdict for the defendant on the issue joined on the plea, because the said issue does not go to the merits of the cause, it is therefore considered that the plaintiff recover &c. (according to the nature of the case.) 46. Verdict and judgment under act of April 16. 1831, where defen- dant is relieved against his single bill in toto. 1 Rob. Prac. 229. This day came the parties by their attorneys, and thereupon came a jury, to wit, A. B. &c. who being elected, tried and sworn the truth to speak upon the issue joined on the defendant's third plea, upon their oath do say that on the said issue they find for the defendant, and that the said defendant is entitled to relief against the obligation of the contract on which this action is founded, for the whole amount thereof: Therefore it is con- sidered by the court that the plaintiff take nothing by his bill, Verdict and judgment. 137 but for his false clamour be in mercy &c. and that the said de- fendant go thereof without day, and recover against the plaintiff his costs by him about his defence in this behalf expended. 47. Verdict and judgment under same act, where defendant is relieved against his obligation in part. 1 Rob. Prac. 229. that on the said issue they find for the defendant, and that the amount for which the defendant is entitled to relief against the obligation of his contract, by reason of the matters mentioned in his said plea, is $ : Therefore it is consi- dered by the court that the said amount be set off against the plaintiff's demand, and that the plaintiff recover against the de- fendant $ , the residue of the debt in the declaration de- manded, with interest thereon to be computed after the rate of six per centum per annum from the day of till pay- ment, and his costs by him about his suit in this behalf expen- ded. And the said defendant in mercy &c. 48. Verdict and judgment under same act, where the jury assess da- mages less than plaintiff's demand. 1 Rob. Prac. 229. that on the said issue they find for the defendant, and they do assess the damages which the defendant has sustained by reason of the matters pleaded by him, to $ : There- fore it is considered by the court that the same be allowed and applied as a set-off against the plaintiff's demand, and that the plaintiff recover &c. (as last.) 49. Verdict and judgment under same act, where the jury assess da- mages exceeding plaintiff's demand. 1 Rob. Prac. 229. that on the said issue they find for the defendant, and they do assess the damages which the defendant has sustained by reason of the matters pleaded by him, to $ , and fix the day of as the date from which interest is to be com- puted thereon. And the demand which the defendant has es- tablished against the plaintiff being greater in amount than the demand established by the plaintiff against him, it is therefore considered by the court that the plaintiff take nothing by his bill, but for his false clamour be in mercy &c. And the excess of the defendant's demand amounting to $ , with interest there- on from the day of , it is further considered that the defendant recover against the plaintiff the said excess, with in- terest thereon to be computed after the rate of six per centum 18 138 Verdict and judgment. per annum from the said day of till payment, and his costs by him about his defence in this behalf expended. 50. Verdict finding defendant guilty of dealing with a slave, and judgment, under act in R. C. 1819, p. 426. <> 19. upon the issue joined, upon their oath do say that the defendant is guilty of dealing with the slave in the declaration mentioned/ without the consent of the plaintiff, in manner and form as the plaintiff has complained, and that the things bought and received by him of the said slave (or, sold by him to the said slave) are of the value of $ : Therefore it is con- sidered by the court that the plaintiff recover against the defen- dant $ , being four times the value of the things so bought and received (or, sold) and his costs by him about his suit in this behalf expended. And the said defendant in mercy &c. 51. Verdict and judgment for plaintiff" in debt qui tarn, on plea of nil debet. that the defendant doth owe the $ 200 in the declaration mentioned, in manner and form as the plaintiff hath complained : Therefore it is considered by the court that the plaintiff, who sues as aforesaid, recover against the defendant the said sum of $ 200, one moiety thereof for the commonwealth, and the other moiety for his own use, and also that the plaintiff recover against the defendant his costs &c. mercy &c. 52. Verdict and judgment in debt qui tarn, for plaintiff" as to part, and for defendant as to residue.- that the defendant doth owe $ 180, parcel of the debt in the declaration mentioned, in manner and form as the plaintiff hath complained, and that the defendant doth not owe the resi- due of the said debt, as in pleading he hath alleged : There- fore it is considered by the court that the plaintiff, who sues as aforesaid, recover against the defendant the said sum of $ 180, one moiety thereof for the commonwealth, and the other moiety for his own use, and also that he recover against the defendant his costs &c. mercy &c. And as to the residue of the said supposed debt, that the plaintiff, for his false clamour, be in mercy &c. Verdict and judgment. 139 53. Verdict and judgment for overseers of poor, in debt on a penal law. that the defendant doth owe to the plaintiffs the debt in the declaration mentioned, in manner and form as the plaintiffs have complained : Therefore it is considered by the court that the plaintiffs recover against the defendant their debt aforesaid, amounting to $ 33.33 cents, to be applied to the use of the poor of the said county, and their costs &c. mercy &c. 54. Judgment for plaintiff in debt on simple contract or single bill. 1 Rob. Prac. 391, 2. (After a verdict finding for the plaintiff the debt and interest in the declaration mentioned, for which see No. 15 and 16.) Therefore it is considered by the court that the plaintiff recover against the defendant $ 100, with interest thereon to be computed after the rate of six per centum per annum from the day of till payment, the debt and interest aforesaid, and his costs by him about his suit in this behalf expended. And the said de- fendant in mercy &c. (In an action upon a protested negotiable note, after a verdict find- ing for the plaintiff the principal, interest and charges of protest in the declaration mentioned, and assessing nominal damages for the de- tention of such principal, as in No. 15.) Therefore it is considered by the court that the plaintiff recover against the defendant $ 100, with interest thereon to be computed after the rate of six per centum per annum from the day of till payment, and $ 3.25 cents, the principal, interest and charges of protest aforesaid, together with his damages assessed as aforesaid, and his costs &c. (as before.) (If the interest be not demanded in the declaration, and the jury find for the plaintiff the debt in the declaration mentioned, with in- terest from a stated time, as in No. 15 or 16.) Therefore it is con- sidered by the court that the plaintiff recover against the de- fendant $ 100, the debt aforesaid, with interest thereon to be computed after the rate of six per centum per annum from the said day of till payment, and his costs &c. ( Where the jury find for the plaintiff parcel of the debt with inte- rest, as in No. 15 or 16.) Therefore it is considered by the court that the plaintiff recover against the defendant the said $ , with interest thereon to be computed after the rate of six per centum per annum from the said day of till payment, and his costs &c. 140 Verdict and judgment. 55. Judgment for plaintiff" in debt on a protested foreign bill of ex- change. 1 R. C. p. 485, 6. 1. 2. 6. Scott v. Hornsby, 1 Call 46. oath do say, that the defendant doth owe to the plaintiff the principal, damages, interest and charges of protest in the declaration demanded : Therefore it is considered by the court that the plaintiff recover against the defendant ,200 sterling, the principal, damages and charges aforesaid, with interest on part thereof, the amount of the said principal, to be computed after the rate of six per centum per annum from the day of till payment, and his costs &c. mercy &c. But the said sterling money may be discharged in cur- rent money at the rate of per centum for difference of ex- change. 56. Judgment on foreign bill of exchange, where it is given for a debt due in current money of this commonwealth, or for current money advanced and paid, and the sum in current money that was paid or allowed for the same is not expressed in such bill. 1 R. C. p. 485. 4. Proud/it v. Murray, 1 Call 394. After recording the verdict, proceed as follows : Whereupon, in- asmuch as it appears by the description in the declaration, of the foreign bill of exchange therein mentioned, that the same was given for current money advanced and paid therefor, and the sum in current money that was paid or allowed for the same is not mentioned, the sum that is expressed in the said bill is therefore held and taken as current money. And it is accord- ingly considered that the plaintiff recover against the defendant 200 current money, for the principal, damages and charges aforesaid, with interest on part thereof, the amount of the said principal, to be computed &c. from &c. till payment, and his costs &c. mercy &c. 57. Judgment for plaintiff in debt on penal obligation for payment of money. 1 Rob. Prac. 392. 17. citing Heath fyc. v. BlaJcer Sfc. 2 Va. Cas. 215. After such verdict as in No. 12. Therefore it is considered by the court that the plaintiff recover against the defendant $200 the debt in the declaration demanded, and his costs by him about his suit in this behalf expended. And the said defendant in mercy &c. But this judgment is to be discharged by the payment of $ 100, with interest thereon to be computed after the rate of six per centum per annum from the day of till payment, and the costs. Verdict and judgment. Where the principal and interest exceed the penalty, and the jury assess damages for the detention of the debt, as in No. 13. There- fore it is considered by the court that the plaintiff recover against the defendant $ 74.66 cents the debt in the declaration demand- ed, together with his damages assessed as aforesaid, and his costs by him about his suit in this behalf expended. And the said defendant in mercy &c. But this judgment is to be dis- charged by the payment of $ 37.33 cents, with interest thereon to be computed after the rate of six per centum per annum from this day till payment, and the damages aforesaid, and the costs. 58. Judgment for plaintiff in debt on penal obligation for sterling money. 1 Rob. Prac. 393, 4. Therefore it is considered by the court that the plaintiff re- cover against the defendant 163. 3. 2. sterling, the debt in the declaration demanded, and his costs &c. mercy &c. But this judgment is to be discharged by the payment of 131. 11. 7. like money, with interest thereon &c. to be computed &c. till payment, and the costs. And it is to be discharged in cur- rent money, at the rate of 33 per centum for difference of ex- change.* * The entry of the judgment for sterling money which maybe discharged in current money at per cent, exchange, strictly pursues the law and uniform practice, leaving the defendants the alternative of paying in either money. Pen- dleton, president, in Scott v. Hornsby, 1 Call 46. 59. Judgment for plaintiff in debt on bond with collateral condition. 1 Rob. Prac. 394, and p. 17. where Newell v. Wood, 1 Munf. 555 is cited. After recording the verdict, as in No. 17. Therefore it is con- sidered by the court that the plaintiff recover against the defen- dant $ 1000 the debt in the declaration demanded, and his costs &c. mercy &c. But this judgment is to be discharged by the payment of the damages assessed as aforesaid, with in- terest thereon to be computed after the rate of six per centum per annum from the said day of till payment, and the costs. 60. Judgment for plaintiff in debt on collateral bond, which remains as a security for future damages. 1 Rob. Prac. 394, 5. If the recovery as to future injuries be not confined to the first relator, then, after the preceding entry, add these words : and such other da- mages as may be hereafter assessed, upon a writ or writs of 142 Verdict and judgment. scire facias being sued out, and new breaches assigned by the said C. C. or by any other person or persons injured. If the person for whom the first damages are assessed is the only per- son for whom there can be a recovery on the bond, omit the words in italics. 61. Judgment for plaintiff in debt on collateral bond, which remains as a security for future instalments. 1 Rob. Prac. 394. Therefore &c. (as in No. 59.) But this judgment is to be dis- charged by the payment of $ , with interest thereon to be computed after the rate of six per centum per annum from the day of till payment, and the costs, and such further sums as may be hereafter found to be due, upon a writ or writs of scire facias being sued out, and new breaches as- signed. 62. Judgment in debt on collateral bond, where the jury find under $ 6.66 cts. 1 Rob. Prac. 395. Harris v. Duncan, 2 Ad. & E. 158. 29 Eng. Com. Law Rep. 55. After recording the verdict And the court being satisfied that the action was neither frivolous nor vexatious, it is therefore con- sidered that the plaintiff recover &c. (as in No. 59.) (Or, if the court shall not be satisfied and enter upon the record that the action was neither frivolous nor vexatious :) Therefore it is considered by the court that the plaintiff recover against the de- fendant $ the debt in the declaration demanded, and that he recover, for his costs by him about his suit expended, as much as the sum so found, but no more. And this judgment is to be discharged by the defendant's paying the sum so found, without more costs than that sum. 63. Judgment for plaintiff" in detinue. 1 Rob. Prac. 395. After recording the verdict as in No. 25. Therefore it is consi- dered by the court that the plaintiff recover against the defen- dant the slaves aforesaid, of the values aforesaid, if they may be had, but if not, then the values aforesaid of them, or such of them respectively as may not be had, together with his damages assessed as aforesaid, and his costs by him about his suit in this behalf expended. And the said defendant in mercy &c. Verdict and judgment. 143 64. Judgment for plaintiff in covenant or assumpsit. 1 Rob. Prac. 395. After recording the verdict as in No. 18 or No. 19. Therefore it is considered by the court that the plaintiff recover against the defendant his damages assessed as aforesaid, with interest there- on to be computed after the rate of six per centum per annum from the said day of till payment, and his costs &c. mercy &c. 65. Judgment for plaintiff in an action for a tort. 1 Rob. Prac. 395. After recording the verdict as in No. 26. Therefore it is consi- dered by the court that the plaintiff recover against the defen- dant his damages assessed as aforesaid, and his costs &c. And the said defendant may be taken &c. 66. Judgment in action of assault and battery, or slander, where less than $16.66 is found in a circuit court, or less than $6.66 in a county or corporation court. 1 Rob. Prac. 396. Therefore it is considered that the plaintiff recover against the defendant his damages assessed as aforesaid, but that he shall not recover any costs. 67. Judgment where the jury find under $ 6.66 in trespass, case, or covenant. 1 Rob. Prac. 396. Harris v. Duncan, 2 Ad. & E. 158. 29 Eng. Com. Law Rep. 55. Therefore it is considered by the court that the plaintiff reco- ver against the defendant his damages found as aforesaid, and that he recover, for his costs by him about his suit expended, as much as the sum so found, but no more. Or, In trespass quare clausum fregit And the court being satisfied that the freehold title or interest of the land mentioned in the plaintiff's declaration was or might have been in question (or, that the trespass was wilful or malicious) it is therefore consi- dered that the plaintiff recover against the defendant his da- mages assessed as aforesaid, and his costs by him about his suit in this behalf expended. In other actions of trespass And the court being satisfied that the trespass was wilful or malicious, it is therefore considered &c. (as last.) 144 Verdict and judgment. In case or covenant And the court being satisfied that the ac- tion was neither frivolous nor vexatious, it is therefore consider- ed &c. (as last.) 68. Judgment de bonis in action against personal representative. 1 Rob. Prac. 396. Before the words " And the said defendant in mercy &c." in- sert these words : " to be levied of the goods and chattels of the decedent in the hands of the defendant to be administered." 69. Judgment de bonis in action against personal representative, with a special agreement to prevent his being charged beyond the assets. After the judgment as in the last form, add the following : Memorandum. It is ordered to be entered of record, that before the trial of the last cause, the plaintiffs assented to what follows'; that is to say, the said plaintiffs agree that their judg- ment is not to be paid until there shall be a sufficiency of assets in the hands of the defendant, after paying all debts of his de- cedent of superior dignity, of which he may have notice before the expiration of nine months* from the date of the defendant's qualification as administrator, and after paying all judgments heretofore obtained against the said defendant for debts of equal dignity, and after retaining any debt due from the decedent to the defendant of equal dignity, and paying likewise any debt for which the defendant may be surety for his intestate, that is so evidenced as to be of equal dignity. And the said plaintiffs furthermore agree that this judgment is not to operate as any admission or evidence of assets in the hands of the defendant. * The nine months had not expired when this entry was made. 70. Judgment in action against personal representative, to be levied for part de bonis, and for the residue when assets. 1 Rob. Prac. 397. to be levied, as to $ part thereof, of the goods and chattels of the decedent remaining in the hands of the de- fendant to be administered, and to be levied, as to the residue thereof, of the goods and chattels which were of the decedent at the time of his death, and which, since the said < plea pleaded by the defendant, have come, or which shall hereafter come, to the hands of the said defendant to be administered. Verdict and judgment. 145 71. Judgment in action against personal representative, to be levied for the whole when assets. 1 Rob. Prac. 397. to be levied of the goods and chattels which were of the decedent at the time of his death, and which, since the said plea pleaded by the defendant, have corne, or which shall here- after come, to the hands of the said defendant to be adminis- tered. 72. Judgment for costs of personal representative, where the plaintiff has judgment against him when assets. 1 Rob. Prac. 398. (If the administrator pleaded the single plea of fully adminis- tered, on which the plaintiff took issue, and the issue has been found for the defendant, then, after the judgment for plaintiff quando acciderint, as in the last form, proceed as follows :) " And it is further considered that the defendant recover against the plaintiff his costs by him about his defence expended." (If the administrator pleaded a plea denying the debt, and also fully administered, and issue being taken on both pleas, the first is found for the plaintiff and the second for the defendant, then, after the judgment for plaintiff quando acciderint, the entry will be thus :) u And it is further considered that the defendant recover against the plaintiff his separate costs by him expended about his defence on the second plea pleaded by the said defen- dant." 73. Judgment against a personal representative in detinue. Allen's ex'or v. Harlan's adm'r, 6 Leigh 42. Catlelt's ex'or v. Russell, Id. 344. Greenlce's adm'r v. Bailey, 9 Leigh 526. As in No. 63, except that, before the words " And the said de- fendant in mercy &c." will be inserted, "to be levied, as to the damages and costs aforesaid, of the goods and chattels of the decedent in the hands of the defendant to be administered." 74. In action on contract against two defendants, one of whom is dis- charged, judgment against the other. 1 Rob. Prac. 400. Sess. Acts 1838, p. 75. ch. 96. 2. Id. p. 73. ch. 95. $ 1. oath do say, that on the issue joined between the plain- tiff and the defendant B. they find for the said defendant, but that they find for the plaintiff upon the issue joined between him and the defendant C. and they assess the plaintiff's da- mages by occasion of the nonperformance of the promises and assumptions* in the declaration mentioned, to $ , and allow 19 146 Verdict and judgment. on the said damages interest from the day of till paid : Therefore it is considered by the court that the plaintiff' recover against the defendant C. his damages assessed as afore- said, with interest thereon to be computed after the rate of six per centum per annual from the day of till pay- ment, and his costs &c. mercy &c. And it is further con- sidered that the plaintiff take nothing by his bill as against the defendant B. but that he be in mercy &c. and that the said de- fendant B. go thereof without day, and recover against the plain- tiff his costs by him about his defence expended. * If the action be not assumpsit, the entry must of course be adapted to the nature of the case. 75. Judgment in action of trespass, assault or false imprisonment against several, one of whom is found guilty and another not. 1 Rob. Prac. 403. Murray v. Nichols fyc. 6 Bingh. 530. 19 Eng. Com. Law Rep. 159. oath do say, that the defendant B. is guilty as the plain- tiff against him complained, and they assess the plaintiff's da- mages by reason of the matters in the declaration mentioned, to $ . And farther the said jury upon their oath do say, that the defendant C. is not guilty as in pleading he hath alleged : Therefore it is considered by the court that the plaintiff recover against the said defendant B. his damages assessed as aforesaid, and his costs &c. And it is further considered that the plain- tiff take nothing by his bill as against the defendant C. but that he be in mercy &c. and that the said defendant go thereof with- out day, and recover against the plaintiff his costs by him about his defence expended. Or And it is farther considered that the plaintiff take no- thing by his bill as against the defendant C. and that the said defendant go thereof without day, but without recovering the costs of his defence, the court being satisfied that there was rea- sonable cause for making him a defendant to this action. 76. Judgment in circuit court for plaintiff, where verdict is for less than $ 50. in consequence of a set-off. 1 Rob. Prac. 18. citing Ferguson v. Highley, 2 Va. Gas. 255. oath do say, that on the issue joined they find for the plaintiff only the sum of $ 47.34 cents ; but the said jurors upon their oath do further say, that the finding for the plaintiff less than fifty dollars is in consequence of evidence given at the trial, of a set-off: Therefore it is considered by the court that the Verdict and judgment. 147 plaintiff recover against the defendant the said $ 47.34 cents, and his costs &c. mercy &c. 77. Judgment in circuit court for defendant in assumpsit, where ver- dict is for less than $ 50. 1 Rob. Prac. 18. citing Maitland v. M 'Dearman, 1 Va. Gas. 131. oath do say, that on the issue joined they find for the plaintiff, and they assess the plaintiff's damages by occasion of the nonperformance of the promises and assumptions in the de- claration mentioned, to $49. And it not appearing that the plaintiff's demand was reduced below the sum of $50. by any set-off against the same, and the action not being one in which the damages were in their nature uncertain and unknown until ascertained by the jury, it seems to the court that judgment ought to be stayed on the said verdict : Therefore it is consi- dered by the court that the plaintiff take nothing by his bill, but be in mercy &c. and that the defendant go thereof without day, and recover against the said plaintiff his costs by him about his defence in this behalf expended. 78. Judgment in circuit court for plaintiff upon verdict for less than $ 50. in assumpsit on special contract, where damages are in their nature uncertain. 1 Rob. Prac. 18. citing Pendred's adm'rs v. Pendred, 2 Va. Gas. 93. After recording the verdict as in last form Whereupon, the court being of opinion that in this action the damages sustained by the plaintiff by the breach of the contract in the declaration mentioned were in their nature altogether uncertain, and of ne- cessity unknown until ascertained by the jury, it seems to the court that judgment on the verdict ought not to be stayed : Therefore it is considered by the court that the plaintiff recover against the defendant his damages assessed as aforesaid, and his costs &c. mercy &c. 79. Judgment in circuit court for defendant in debt on single bill or promissory note, where verdict is for less than $ 50. in conse- quence of payments. 1 Rob. Prac. 18. citing Larowe v. Har- ding' s adm'r, 2 Va. Gas. 203. oath do say, that on the issue joined they find for the plaintiff only $ 40. parcel of the debt in the declaration de- manded ; and the said jurors upon their oath do farther say, that the balance of the said debt so demanded by the plaintiff was paid to the said plaintiff before the commencement of this 148 Verdict and judgment* action : Whereupon it seems to the court, that judgment cannot be given by this court for the plaintiff on the said verdict. And it is therefore considered that the said plaintiff take nothing by his bill, but be in mercy &c. and that the defendant go thereof without day, and recover against the said plaintiff his costs by him about his defence in this behalf expended. 80. Verdict shelving that a justice of the peace had cognizance, plaintiff nonsuited. 1 Rob. Prac. 3. oath do say, that on the issue joined they find for the plaintiff, and they assess the plaintiff's damages by occasion of the nonperformance of the promises and assumptions in the de- claration mentioned, to $ 10. Whereupon, inasmuch as it ap- pears by the said verdict that a justice of the peace had cogni- zance in this case, it is ordered that the plaintiff be nonsuited, and pay to the defendant &c. (as ante, p. 96. No. 4.) 81. Judgment upon verdict found for defendant on a plea in abate- ment. 1 Rob. Prac. 389. 403, 4. Therefore it is considered by the court that the plaintiff's writ be quashed, and that the defendant go thereof without day, and recover against the plaintiff his costs by him about his defence expended. 82. Judgment upon verdict found for defendant on a plea in bar. 1 Rob. Prac. 389. 403, 4. Price v. Harris fyc. 10 Bingh. 557. 25 Eng. Com. Law Rep. 242. Therefore it is considered by the court that the plaintiff lake nothing by his bill, but for his false clamour be in mercy &c. and that the defendant go thereof without day &c. (as last.) 83. Judgment for defendant's costs, where plaintiff is an executor or administrator. I Rob. Prac. 389. 403, 4. After entering judgment as in last form, add: to be levied of the goods and chattels of the testator (or, intestate) in the hands of the plaintiff to be administered. If the court shall be of opinion that the executor or administrator, in the prudent discharge of his official duty, ought not to have brought the action, add further if so much thereof be found, if not, then of his own proper goods and chattels. Verdict, and judgment. 149 84. Judgment against a relator after verdict for defendant. Therefore it is considered by the court that the plaintiffs take nothing by their bill, and that the defendants go thereof with- out day, and recover against W. D. W. the relator in this suit, their costs by them about their defence expended. 85. Judgment upon demurrer to evidence. 1 Rob. Prac. 404, 5, 6. This day came the parties by their attorneys, and thereupon the defendant's demurrer to the plaintiff's evidence being ar- gued, it seems to the court that the matter shewn in evidence to the jury is sufficient in law (or, is not sufficient in law) to main- tain the issue on the part of the plaintiff (or, defendant) : There- fore it is considered by the court (If for the defendant) that the plaintiff take nothing by his bill, but &c. (as in other judgments for defendant. See No. 82.) (If for the plaintiff, and, the action sounding in damages, the jury assessed them) that the plaintiff recover against the defendant $ 150. the damages by the jury in their verdict assessed, with interest thereon to be computed after the rate of six per centum per annum from the day of till payment, and also his costs by him &c. mercy &c. (If damages were assessed, and the action is on a collateral bond) that the plaintiff recover against the defendant $ the debt in the declaration demanded, and his costs &c. mercy &c. But this judgment is to be discharged by the payment of $ the damages by the jury in their verdict assessed, with interest &c. and the costs aforesaid. If the case be one in which, if the defendant had never pleaded, final judgment would have been given by default without the interpo- sition of a jury, such final judgment will of course be entered. If the case be one in which final judgment could not have been given by default without a writ of enquiry, and the former jury omit- ted to assess damages conditionally, such writ of enquiry should now be awarded, thus : that the plaintiff recover against the defendant what damages he ought to recover, and that his said damages be ascertained by a jury. Whereupon a jury, to wit, A. B. &c. being sworn diligently to enquire of damages in this suit, upon their oath &c. (as in No. 1.) Therefore it is considered by the court that the plaintiff recover &c. 150 Verdict and judgment. 86. Judgment upon special verdict, points reserved, or case agreed. 1 Rob. Prac. 406. This day came the parties by their attorneys, and thereupon the matters of law arising upon the special verdict* in this cause being argued, it seems to the court that the law is for the plain- tiff (or, defendant.) Therefore it is considered by the court (If for the defendant) that the plaintiff take nothing by his bill, but &c. (as in other judgments for defendant. See No. 82.) (If for the plaintiff] that the plaintiff recover against the de- fendant &c. (using such of the forms of a judgment upon de- murrer to evidence as may be applicable.) * Instead of the words " special verdict," insert " points reserved" or " case agreed," where proper. 87. After judgment for plaintiff, satisfaction acknowledged as to part. After the judgment, say Whereupon the plaintiff acknowledg- es that he has received satisfaction of the defendant for $ parcel of the damages aforesaid : Therefore, as to so much, the said defendant is acquitted and discharged. 88. The day after the judgment, parcel of the damages released. The plaintiff, by his attorney, freely here in court releases to the defendant $ parcel of the damages yesterday adjudged to him in this cause : Therefore, as to so much, the said de- fendant is acquitted and discharged. 89. After judgment for plaintiff, agreement by him to allow discounts. Winston v. Overseers of Poor, 4 Call 357. After the judgment, say And the plaintiff agrees to allow to the defendants all such discounts against this judgment as they shall make appear to be just, before G. W., B. C. and E. F. gent, or any two of them, on or before the day of next. 90. Satisfaction of judgment acknowledged at a subsequent term. The plaintiff, by his attorney, here in court acknowledges that the defendant has paid him the whole amount of principal, in- terest and costs recovered by the judgment rendered in this cause on the seventh day of June 1822, and that the said judg- ment is thereby wholly satisfied. Therefore the defendant from the force and effect of the said judgment is forever acquitted and discharged. Distress and replevin. 151 CHAPTER XV. DISTRESS AND REPLEVIN. 1. Affidavit to authorize a warrant of distress. Sess. Acts 1834-5, p. 43, 4. ch. 61. 1. H. county, to wit : This day A. B. personally appeared before me, a justice of the peace for the said county, and made oath that the sum of $ is in arrear to him from C. D. for one half year's rent of a tenement in the said county, reserved upon contract, and that he verily believes no part thereof hath been paid. Given under my hand this day of . 2. Warrant of distress. Sess. Acts 1834-5, p. 43, 4. ch. 61. 1. To any sheriff, constable, or other proper officer of the county of H. Whereas A. B. has this day made oath before me, a justice of the peace for the said county, that the sum of $ is in arrear to him from C. D. for one half year's rent of a tenement in the said county, reserved upon contract, and that he verily believes no part thereof hath been paid : Therefore, upon the authority of the said affidavit made as aforesaid, and upon the applica- tion of the said A. B. I the said justice do hereby authorize you, or any of you, to enter into or upon the said premises, and there make a distress of goods and chattels for the said sum of S due to the said A. B. for the said half year's rent.* Given un- der my hand this day of . * Clause to be inserted where property has been removed from the pre- mises. 1 R. C. 1819, p. 450. $ 17. 18. Sess. Acts 1822-3, p. 29. ch. 29. $ 2. And I the said justice do empower you to distrain any pro- perty which the said C. D. may have fraudulently conveyed away or permitted to be carried from the premises, at any time within thirty days after the same shall have been removed from the tenement : provided such property shall not have been sold for a bonafide consideration before it shall have been distrained. 152 Distress and replevin. 3. Bond given by tenant upon suing out writ of replevin. 1 Rob. Prac. 409. Know all men by these presents that we C. D. and E. F. are held and firmly bound unto A. B. in the sum of $ , to be paid to the said A. B. his executors, administrators or assigns ; for the payment whereof we bind ourselves jointly and several- ly, and each of us binds his heirs, executors and administrators. Sealed with our seals and dated this day of . The condition of the above obligation is such, that whereas the following goods and chattels, to wit, (here specify the pro- perty) have been distrained in the county of H. to satisfy A. B. the sum of $ said to be due to him from C. D. for rent, and the said C. D. has applied to the clerk of the circuit superior court of law and chancery for the said county of H. for a writ of replevin to replevy the said goods and chattels : Now if the said C. D. shall well and truly perform and satisfy the judgment of the said court in the said suit, in case he shall be cast there- in, then the above obligation is to be void, otherwise it is to re- main in full force. 4. Writ of replevin by the tenant. I Rob. Prac. 408, 9, 10, 11. The commonwealth of Virginia to the sheriff of H. county, greeting : Whereas the following goods and chattels to wit, (here specify the property) have been distrained in our said county, to satisfy A. B. the sum of $ said to be due to him from C. D. for rent, and the said C. D. alleging that the said goods and chattels have been wrongfully taken, and are unjustly detained, has applied to the clerk of our circuit superior court of law and chancery for the said county of H. for a writ of reple- vin to replevy the same, and has entered into bond with suffi- cient sureties, in the clerk's office of our said court, in the pe- nalty of at least double the value of the rent distrained for and costs of suit, to perform and satisfy the judgment of our said court in his suit, in case he shall be cast therein : Therefore we command you that without delay you replevy and cause to be delivered unto the said C. D. the goods and chattels aforesaid, and that you summon the said A. B. to appear &c. to answer the said C. D. of the wrongfully taking and unjustly detaining his said goods and chattels, to the damage of the said C. D. $ . And have then there this writ, and then and there make known in what manner you have executed the same. Witness &c. Distress and replevin. 153 6. Writ of replevin where the property distrained is claimed by any other than the tenant. 1 Rob. Prac. 408, 9, 10, 11. The commonwealth &c. Whereas the following goods and chattels, to wit, (here specify the property) have been distrained in our said county, to satisfy A. B. the sum of $ said to be due to him from C. D. for rent, and E. F. has suggested that the said goods and chattels so distrained are his property, and not the property of the said C. D. nor held in trust for the use of the said C. D. in any manner whatsoever, and that the same, in his opinion, are not liable to such distress : Therefore we command you, that upon the execution of a bond by the said E. F. with one or more sufficient sureties, in double the amount of the value of the said property, to be ascertained by two dis- interested freeholders to be sworn before some justice of the peace, and conditioned to perform and satisfy the judgment of the court in this suit, in case he shall be cast therein, you do immediately thereafter, without delay, replevy and cause to be delivered unto the said E. F. the goods and chattels aforesaid, and do also summon the said A. B. to appear &c. to answer the said E. F. of &c. (as last.) 6. Certificate of justice that he swore two freeholders to value the property distrained. 1 Rob. Prac. 408, 9. H. county, to wit : On this ' day of in the year , G. H. and J. K. two disinterested freeholders of the said county, were sworn by me L. M. a justice of the peace of the same county, well and truly to ascertain, to the best of their judgment, the value of the goods and chattels mentioned in a writ of replevin, sued out of the circuit superior court of law and chancery for the said county, by E. F. against A. B. As witness my hand. L. M. 7. Appraisement of the property distrained. 1 Rob. Prac. 408, 9. We G. H. and J. K. two freeholders of the county of H. being duly sworn before a justice of the peace, well and truly to ascertain, to the best of our judgment, the value of the goods and chattels mentioned in a writ of replevin, sued out of the circuit superior court of law and chancery for the said county, by E. F. against A. B., have viewed the said goods and chat- tels, and do appraise and value the same at the sum of $ . As witness our hands this day of . G. H. J. K. 20 154 Distress and replevin. 8. Bond given by claimant of distrained property upon suing out writ of replevin. 1 Rob. Prac. 408, 9. Know all men &c. (pursuing the form of the obligation in No. 3.) The condition of the above obligation is such, that whereas the following goods and chattels, to wit, (here specify the pro- perty) have been distrained in the county of H. to satisfy A. B. the sum of $ said to be due to him from C. D. for rent ; and E. F. suggesting that the said goods and chattels are his property, and not the property of the said C. D. nor held in trust for the use of the said C. D. in any manner whatsoever, and that the same, in his opinion, are not liable to such distress, has sued out of our circuit superior court of law and chancery for the said county of H. his writ of replevin, directed to the sheriff of the said county ; and two disinterested freeholders, sworn before a justice of the peace, have ascertained the value of the said property to be $ : Now if the said E. F. shall well and truly perform and satisfy the judgment of the said court in the said suit, in case he shall be cast therein, then the above obligation is to be void, otherwise it is to remain in full force. 9. Sheriff's return upon writ of replevin sued out by the tenant. On the day of I replevied and caused to be de- livered unto C. D. the goods and chattels within mentioned. And on the same day I summoned A. B. as commanded. 10. Sheriff's return upon writ of replevin sued out by claimant of distrained property. Messrs. G. H. and J. K. two disinterested freeholders, having been first duly sworn, as appears by the certificate of a justice of the peace, ascertained the value of the property within men- tioned to be $ , and E. JP. executed a bond, with N. O. his surety,* in double that amount, conditioned as the law di- rects. Whereupon, to wit, on the day of , I reple- vied and caused to be delivered unto E. F. the property afore- said. And on the same day I summoned A. B. as commanded. * As to the liability of the sheriff where he takes insufficient security, see Jef- frey v. Bastard, 4 Ad. & E. 823. 31 Eng. Com. Law Rep. 193. Distress and replevin. 155 11. Declaration in replevin. 1 Rob. Prac. 412, 13. Pope v. Tillman, 7 Taunt. 642. 2 Eng. Com. Law Rep. 243. Potten v. Bradley, 2 Moore & Payne 78. 17 Eng. Com. Law Rep. 203. In the court of hustings for the city of R. August term 1827. City of R. to wit : W. R. an inhabitant of the city of R. complains of H. B. M. also an inhabitant of the same city, for that the said H. B. M. heretofore, to wit, on the 18th day of June in the year 1827, at the said city of R. and within the jurisdiction of this court, in a certain dwellinghouse then and there occupied by a certain W. P. F. took the goods and chattels, to wit, one sideboard and one large mahogany dining table, of him the said W. R. of great value, to wit, of the value of $ 60, and unjustly detained the same against sureties and pledges, until &c. Wherefore the said W. R. saith that he is injured and hath sustained damage to the amount of $ 100. And therefore he brings his suit &c. 12. Plea alleging property to be in a third person, with a suggestion in the nature of an avowry. 1 Rob. Prac. 413. In the court of hustings for the city of R. August term 1827. H. B. M. ads. W. R. And the said H. B. M. by his attorney comes and defends the wrong and injury, when &c. and says, that the said goods and chattels in the said declaration men- tioned, at the said time when &c. were the property of W. P. F. in the said declaration named, and not of the said W. R. as by the said declaration is above supposed. And this he the said H. B. M. is ready to verify. Wherefore he prays judgment if the said W. R. ought to have or maintain his aforesaid action thereof against him &c. And for having the value of the said goods and chattels, with interest, damages and costs, according to the form of the statute in such case made and provided, the said H. B. M. well avows the taking of the said goods and chat- tels in the said declaration mentioned, of the said W.P. F. and justly &c. because he saith that he the said H. B. M. for a long time, to wit, for all the time during which the rent herein after- mentioned was accruing due, and from thence until and at the said time when &c. was landlord to the said W. P. F. of the said dwellinghouse in which &c. and that the said W. P. F. for a long time, to wit, for the space of one quarter of a year, end- ing on the first day of June in the year 1827, and from thence until and at the said time when &c. held and enjoyed the said dwellinghouse in which &c. with the appurtenances, as tenant thereof to the said H. B. M. under a certain demise thereof 156 Distress and replevin. theretofore made at and under a certain yearly rent, to wit, the yearly rent of one hundred and twenty dollars, payable quar- terly on the first day of June, on the first day of September, and on the first day of December in the year 1827, and on the first day of March in the year 1828, by even and equal portions ; and because the sum of thirty dollars of the rent aforesaid, for the space of one quarter of a year ending as aforesaid, on the said first day of June in the year aforesaid, and from thence until and at the said time when &c. was due and in arrear from the said W. P. F. to the said H. B. M. he the said H. B. M. well avows the taking of the said goods and chattels in the said dwellinghouse in which &c. and justly &c. as for and in the name of a distress for the said rent so due and in arrear to the said H. B. M. as aforesaid, and which still remains due and un- paid. And this he the said H. B. M. is ready to verify. Where- fore he prays judgment, and the value of the said goods and chattels to be adjudged to him, together with interest and' da- mages, and his costs by him about his defence in this behalf ex- pended, according to the form of the statute in such case made and provided. 13. Replication to last plea, and similiter. 1 Rob. Prac. 413. In &c. August term 1827. W. R. v. H. B. M. And the said W. R. as to the said plea in bar of the said H. B. M. to the said declaration of him the said W. R. saith that he, by reason of any thing by the said H. B. M. in that plea above alleged, ought not to be barred from having and maintaining his aforesaid action thereof against him the said H. B. M. because he saith that the said goods and chat- tels in the said declaration mentioned were not the property of the said W. P. F. as by the said plea is alleged. And of this he the said W. R. puts himself upon the country. And the said H. B. M. doth the like. 14. Entry of issue made up in replevin in a county or corporation court. 1 Rob. Prac. 410, 11, 12. This day came the parties by their attorneys, and thereupon the plaintiff filed his declaration ; the defendant filed his plea, with a suggestion thereto subjoined in the nature of an avowry ; and the plaintiff filed his replication, to which the defendant added a similiter. And the issue being now made up, the same is to be tried at the next term. Distress and replevin. 157 15. Another entry of issue made up in replevin, where the defendant avowed. This day came the parties by their attorneys, and thereupon the plaintiff filed his declaration, the defendant his avowry, the plaintiff his plea to the said avowry, and the avowant a similiter to the said plea. And the issue being now made up, the same is to be tried at the next term. 16. Avowry of distress. 1 Rob. Prac. 413 to 416. By the common law, where a distress is taken, the party dis- training is bound, upon replevin and avowry, to set out his title to the land. The english statute of 11 Geo. 2. ch. 19. 22. en- abled the landlord to recover by a shorter process. And the Virginia act of March 12. 1834 (Sess. Acts 1833-4, p. 76. ch. 64. <. 1.) seems intended to effect the same object. It contains the substance of the first part of the english statute, pointing out what is to be stated by the avowant, and omits only the latter part, which states what the avowant is excused from setting forth. In England it has been settled that in the case of a rent charge on land, payable to a person who has no reversionary interest in the land, the statute does not exempt the avowant from the ne- cessity of setting forth his title. The rent in this case, it is said by the judges, cannot be considered as rent service, or as rent reserved by a landlord and payable by his tenant. For there cannot be such rent where there is no reversion. Pluck v. Digges fyc. 5 Bligh's Par. Gas. N. S. 31. Although the statute provides that it shall be lawful for the defendant to avow generally, that the tenant of the lands and tenements whereon the distress is made, enjoyed the same un- der a grant or demise, at a certain rent, during the time wherein the rent distrained for accrued, which rent was then and still re- mains unpaid, yet when the avowry states a demise not from the avowant but from another, it must shew a holding under the avowant by virtue of that demise. If, on the face of the avow- ry, no connexion appears between the avowant and the person who made the demise, but a title is shewn in that person, to which the avowant is a stranger, the avowry must be adjudged bad upon demurrer. Banks v. Angell fyc. 7 Ad. & El. 843. 34 Eng. Com. Law Rep. 241. In 3 Chitty's PI. p. 1046 to 1057 (4th Lond. and 5th american edi.) will be found forms of avowries and cognizances under the english statute, adapted to various cases. 158 Distress and replevin. 17. Plea of non tenuit. 1 Rob. Prac. 418. Cooper v. Blandy fyc. 1 Bingh. N. C. 45. 27 Eng. Com. Law Rep. 304. And the said A. B. as to the said avowry of the said C. D. saith, that the said C. D. by reason of any thing by him in that avowry above alleged, ought not to avow the taking of the said goods and chattels in the said place in which &c. and justly &c. because he saith, that the said A. B. did not hold or enjoy the said dwellinghouse in which &c. with the appurtenances, as te- nant thereof to the said C. D. under the said supposed demise thereof in said avowry mentioned, in manner and form as the said C. D. hath above in his said avowry in that behalf alleged ; and this he the said A. B. prays may be enquired of by the country. 18. Plea of nothing in arrear. 1 Rob. Prac. 419, 20. Turberville v. Self, 4 Call 580. Davis v. Gyde, 2 Ad. & El. 623. 29 Eng. Com. Law Rep. 166. And the said A. B. &c. (as in plea of non tenuit) because he saith, that no part of the said supposed rent in the said avowry mentioned was or is in arrear from the said A. B. to the said C. D. in manner and form as the said C. D. hath in his said avow- ry in that behalf alleged ; and this he the said A. B. prays may be enquired of by the country. 19. Appearance for defendant in circuit court, and rule to declare. 1 Rob. Prac. 420. As ante, p. 14. No. 20. 20. Plaintiff in circuit court nonsuited at the rules for want of decla- ration. 1 Rob. Prac. 420. The plaintiff having been ruled to file his declaration, and failing so to do, on the motion of the defendant by his attorney, it is ordered that the said plaintiff be nonsuited. Whereupon the defendant filed a suggestion in the nature of an avowry ; and on his motion, it is further ordered that a jury enquire of the sum in arrear (or, the value of the property) and of the da- mages sustained by the said defendant by occasion of the plain- tiff's suing out his writ. Distress and replevin. 159 21. Entry of declaration and conditional judgment at the rules in a circuit court. 1 Rob. Prac. 412. 420, 21. This day came the plaintiff by his attorney, and filed his de- claration ; and the defendant being duly summoned and not ap- pearing, on the motion of the said plaintiff it is ordered that judgment be entered for him against the defendant, for what da- mages the said plaintiff ought to recover, unless the defendant shall appear at the next rules and answer the plaintiff's action. 22. Conditional judgment confirmed at rules in a circuit court. 1 Rob. Prac. 412. 420, 21. The defendant still failing to appear (or, the defendant ap- pearing but not answering the plaintiff's action) on the motion of the plaintiff by his attorney, it is ordered that the conditional judgment entered in this cause at the last rules stand confirmed, and that the plaintiff's damages be ascertained by a jury at the next term. 23. Declaration filed, appearance at rules in circuit court, and rule to plead. As ante, p. 20. No. 37. 24. Plea to declaration at rules in circuit court, and rule to reply. 1 Rob. Prac. 421. This day came the defendant by his attorney, and filed his plea to the plaintiff's declaration ; and a day is thereupon given the plaintiff until the next rules, to reply to the said plea. And the same day is given the said defendant there &c. 25. Plaintiff" nonsuited at rules in circuit court, for want of replica- tion. I Rob. Prac. 421. The plaintiff having been ruled to reply to the defendant's plea, and failing so to do, on the motion of the defendant by his attorney, it is ordered that the said plaintiff be nonsuited. Whereupon the defendant filed a suggestion in the nature of an avowry ; and on his motion, it is further ordered that a jury en- quire of the value of the property, and of the damages sustain- ed by the said avowant by occasion of the plaintiff's suing out his writ. 160 Distress and replevin. 26. Avowry filed at rules in circuit court, and rule to plead. 1 Rob. Prac. 421. This day came the defendant by his attorney, and filed his avowry ; and a day is thereupon given the plaintiff until the next rules, to plead to the said avowry. And the same day is given the avowant there &c. 27. Plaintiff nonsuited at the rules in circuit court, for want of plea to avowry. 1 Rob. Prac. 421. The plaintiff having been ruled to plead to the avowry, and failing so to do, on the motion of the avowant by his attorney, it is ordered that the said plaintiff be nonsuited, and that a jury enquire of the sum in arrear, and of the damages sustained by occasion of the plaintiff's suing out his writ. 28. Plea filed to avowry at the rules in circuit court, and rule to reply. 1 Rob. Prac. 421. This day came the plaintiff by his attorney, and filed his plea to the avowry ; and a day is thereupon given the avowant until the next rules, to reply to the said plea. And the same day is given the plaintiff there &c. 29. Avowant failing to reply, judgment entered for plaintiff in cir- cuit court at the rules. 1 Rob. Prac. 421. The avowant having been ruled to reply to the plaintiff's plea, and failing so to do, on the motion of the plaintiff by his attorney, it is ordered that judgment be entered for him against the defendant, for what damages the said plaintiff ought to re- cover, and that those damages be ascertained by a jury at the next term. 30. Verdict and judgment for plaintiff in replevin. 1 Rob. Prac. 422. oath do say, that on the issue joined they find for the plaintiff, and they do assess the plaintiff's damages by occasion of the wrongful taking and unjust detention of the goods and chattels in the declaration mentioned, to $ . Therefore it is considered by the court that the plaintiff recover against the defendant (or, avowant) his damages assessed as aforesaid, and his costs by him about his suit in this behalf expended. And the said defendant &c. Distress and replevin. 161 31. In replevin by the tenant, verdict for the avowant upon an issue, and judgment thereupon. 1 Rob. Prac. 422. oath do say, that on the issue joined they find for the avowant ; that $ the rent (or, of the rent) in the avowry mentioned was and is in arrear from the plaintiff to the avow- ant ; that the said rent became due on the day of ; and that the avowant has sustained damages by occasion of the plaintiff's suing out his writ of replevin in this cause, to $ . Therefore it is considered by the court that the avowant recover against the plaintiff $ the rent so in arrear as aforesaid, with interest thereon to be computed after the rate of six per centum per annum from the said day of till pay- ment, together with his damages assessed as aforesaid, and his costs by him in this behalf expended : and that the said avow- ant have execution thereof &c. 32. Tenant being nonsuit before issue joined, writ of enquiry executed and judgment thereupon. 1 Rob. Prac. 422. Bargamin v. Werccfs ex'or, 4 Leigh 412. This day came the avowant by his attorney, and a jury, to wit, A. B. &c. being sworn diligently to enquire of the rent in arrear and of the damages, upon their oath do say that $ , the rent (or, of the rent) mentioned in the suggestion of the de- fendant in the nature of an avowry, was and is in arrear from the plaintiff to the defendant ; that the said rent became due on the day of ; and that the defendant has sustained damages by occasion of the plaintiff's suing out his writ of re- plevin in this cause, to $ . Therefore it is considered by the court that the defendant recover &c. (as last) and that the said defendant have execution thereof &c. 33. In replevin by a claimant of the property, verdict for defendant upon an issue, and judgment thereupon. 1 Rob. Prac. 422. oath do say, that on the issue joined they find for the defendant ; that the goods and chattels replevied were of the value of $ 259.85 cents ; and that the defendant has sustained damages by occasion of the suing out the writ of replevin in this cause, to $ . Therefore it is considered by the court that the defendant recover against the plaintiff the value of the said goods and chattels so ascertained, with interest thereon to be computed after the rate of six per centum per annum from the 23d day of October 1823 till payment, together with his damages assessed as aforesaid, and his costs by him in this be- 21 162 Distress and replevin. half expended : and that the said defendant have execution thereof &c. 34. Claimant of property being nonsuit before issue joined, writ of enquiry executed, and judgment thereupon. 1 Rob. Prac. 423. This day came the defendant by his attorney, and a jury, to wit, A. B. &c. being sworn diligently to enquire of the value of the goods and chattels replevied, and of the damages sustained by the defendant by occasion of the suing out the writ of re- plevin in this cause, upon their oath do say that the said goods and chattels were of the value of $ , and that the defen- dant has sustained damages by the occasion aforesaid to $ . Therefore &c. (as last.) 35. Judgment for defendant against claimant, where the value of the property is more than the rent. 1 Rob. Prac. 423. After recording the verdict, proceed as follows : And the value so ascertained being more than the amount of the rent mentioned in the defendant's suggestion in the nature of an avowry, it is therefore considered by the court that the defendant recover against the plaintiff $ the amount of the said rent, with interest thereon to be computed after the rate of six per centum per annum from the day of till payment, together with his damages assessed as aforesaid, and his costs &c. Suits for freedom . 163 CHAPTER XVI. SUITS FOR FREEDOM. 1. Warrant issued by a justice upon complaint that a person is ille- gally detained as a slave. 1 Rob. Prac. 424. H. county, to wit : Whereas complaint has this day been made to me, a justice of the peace for the said county, by A. a man of colour residing in the said county, that he is illegally detained as a slave in the possession of B. C. You are therefore required to summon the said B. C. to appear before me, or some other magistrate of the said county, at , on the day of this month, to answer the complaint so made. And then and there make return how you shall have executed this warrant. Given under my hand this day of . To any constable of the ) county of H. ) 2. Bond required by a justice, upon the appearance of the possessor of one alleged to be illegally detained as a slave. 1 Rob. Prac. 424. Know all men by these presents that we B. C. of C. county, and T. G. of &c. are held and firmly bound unto J. W. esquire, governor of the commonwealth of Virginia, in the sum of $ , to be paid unto the said governor or his successors, for the use of the commonwealth; for the payment whereof we bind our- selves jointly and severally, and each of us binds his heirs, exe- cutors and administrators. Sealed with our seals and dated this day of . The condition of the above obligation is such, that whereas complaint was made to a justice of the peace for the county of H. by A. a man of colour residing in the said county, of his be- ing illegally detained as a slave in the possession of B. C. and the said justice thereupon issued his warrant summoning the said B. C. to appear to answer the said complaint, and upon his appearance he the said B. C. has been required to give bond with security, as the statute in such case directs : Now if the above bound B. C. shall suffer the said A. to appear at the next 164 Suits for freedom . court of the said county of H. for the purpose of petitioning the said court to be allowed to sue therein, in forma pauperis, for the recovery of his freedom, then the above obligation is to be void, otherwise to remain in full force. B. C. [seal]. T. G. [seal]. 3. Warrant of justice committing complainant to custody. 1 Rob. Prac. 424. H. county, to wit : To the of the said county. Whereas, upon complaint being made to me, a justice of the peace for the said county, by A. a man of colour residing therein, that he was illegally detained as a slave in the posses- sion of B. C. I issued a warrant summoning the said B. C. to appear to answer the said complaint, and upon his appearance I required him to give bond with security in the penalty of $ , conditioned that he should suffer the said A. to appear at the next court of the said county of H. for the purpose of pe- titioning the said court to be allowed to sue therein, in forma pauperis, for the recovery of his freedom ; and whereas the said B. C. has failed to give security as aforesaid : These are there- fore to require you, who are the officer by whom the warrant was served, to take the said A. into your custody, and him safely keep, at the expense of the said B. C. until the sitting of the next court for the said county, when you are to produce the said A. before the said court. Given &c. 4. Petition to the court, by person who complains that he is illegally detained as a slave. 1 Rob. Prac. 424, 5. To the court of the county of H. The petition of A. a man of colour respectfully represents, that he is illegally detained as a slave in the said county, in the possession of B. C. The material facts of his case are as fol- lows : (Here state them.) Upon these facts your petitioner con- ceives that he has good cause of action against the said B. C. And he prays the court to assign him counsel to prosecute his suit, and to take such further order in the premises as may be right and proper. H. county, to wit : This day personally appeared be- fore me, a justice of the peace for the said county, and made oath that he verily believes the foregoing petition states truly the material facts of the case. Given under my hand this day Suits for freedom. 165 5. Order assigning counsel to the petitioner. 1 Rob. Prac. 425. The petition of A. a man of colour, complaining that he is illegally detained as a slave in the said county in the possession of B. C. was this day presented to the court. And upon inspec- tion of the said petition and of the affidavit thereto subjoined, the court doth assign D. E. gentleman, as counsel to the com- plainant, to prosecute his suit. But before process issues upon the said petition, mr. E. is to make an exact statement to the court of the circumstances of the case, with his opinion there- upon. 6. Order awarding process to answer the complaint. 1 Rob. Prac. 425. D. E. gent, this day presented to the court a paper purport- ing to be an exact statement of the circumstances of the case of A. a man of colour, with his opinion thereupon. And the court, seeing no reason to deny its interference, doth order the clerk to issue process against B. C. to appear and answer the said A.'s complaint. And the said A. is to be in custody of the sheriff until the said B. C. shall give bond with security, either in court or with the clerk, in the penalty of $ , payable to the go- vernor or his successors, to have the said A. forthcoming to an- swer the judgment of the court, in which case the said A. is to be returned into his possession. And in case the said A. is re- turned into the possession of the said B. C. he is not to presume to beat or misuse him upon account of this suit, but is to suffer him to come to the clerk's office for subpoenas for his witnesses, and to attend their examinations, and the trial. 7. Order of court denying its interference and directing no process to be issued. 1 Rob. Prac. 425. D. E. gent, this day presented to the court a statement of the circumstances of the case of A. a man of colour, with his opi- nion thereupon : And from the said circumstances and opinion, it seems to the court that there is manifest reason for denying its interference. Wherefore it is ordered that no process be issued against the said C. D. to appear and answer the complaint. 8. Bond given pursuant to order of court, to have complainant forth- coming to answer its judgment. 1 Rob. Prac. 425. Know all men &c. (pursuing the form of the obligation given ante, p. 163. No. 2.) 166 Suits for freedom. The condition of the above obligation is such, that whereas, at a court held for the said county on &c. the said court, after ordering the clerk to issue process against B. C. to appear and answer the complaint of A. a man of colour, of his being ille- gally detained as a slave, did farther order that the said A. should be in custody of the sheriff until the said B. C. should give bond with security, either in court or with the clerk, in the penalty of $ , payable to the governor or his successors, to nave the said A. forthcoming to answer the judgment of the court:. Now if the said B. C. shall, when required by the said court, have the said A. forthcoming to answer the judgment of the said court in the premises, then the above obligation is to be void, otherwise to remain in full force. [seal], [seal]. 9. Process to answer the complaint. 1 Rob. Prac. 425, 6. The usual process is a writ of capias ad respondendum to an- swer an action of trespass, assault and battery and false impri- sonment. See p. 1. 2. 3. No. 1. 2. Endorse " This is an action to recover freedom. No bail re- quired." The writ issues, is made returnable, and is executed, like the writ of capias ad respondendum in ordinary actions. 10. Declaration. 1 Rob. Prac. 426. Like the declaration in an action of trespass, assault and bat- tery and false imprisonment. See opinion of Tucker, J. in Wil- son v. Isbell, 5 Call 427, 8. 11. Conditional judgment. 1 Rob. Prac. 427. This day came the plaintiff by his attorney, and filed his de- claration ; and the defendant being arrested and not appearing, on the moiion of the plaintiff, it is considered that he recover his freedom, together with the damages which he has sustained by occasion of the matters in the declaration mentioned, unless the defendant shall appear at the next rules and answer the plaintiff's action. 12. Conditional judgment confirmed, and writ of enquiry awarded. I Rob. Prac. 427. As in the action of trespass, assault and battery and false im- prisonment. See p. 14. No. 19. Suits for freedom. 167 13. Writ of enquiry executed, and judgment for plaintiff. 1 Rob. Prac. 427. This day came the plaintiff by his attorney, and a jury, to wit, A. B. &c. being sworn diligently to enquire of damages in this suit, upon their oath do say that the plaintiff hath sustained damages by occasion of the matters in the declaration men- tioned, to one cent : Therefore it is considered by the court that the plaintiff recover his freedom, and also that he recover against the defendant his damages assessed as aforesaid, and his costs &c. And the said defendant maybe taken &c. 14. Issue joined, and office judgment set aside. 1 Rob. Prac. 426, 7. The defendant by his attorney saith, that the plaintiff is a slave, and that he the said defendant is not guilty in manner and form as the plaintiff hath complained, and of this he puts himself upon the country; and the plaintiff by his attorney says that he is not a slave, but is free, and puts himself upon the country likewise. Whereupon, on the motion of the said de- fendant, it is ordered that the judgment entered in the office against him be set aside. 15. Verdict for plaintiff" on the issue joined, and judgment there- upon. 1 Rob. Prac. 432. This day came the parties by their attorneys, and thereupon came a jury, to wit, A. B. &c. who being elected, tried and sworn the truth to speak upon the issue joined, upon their oath do say that the plaintiff is not a slave, but is free, and that the said defendant is guilty in manner and form as the plaintiff has complained ; and they do assess the damages which the plain- tiff has sustained by occasion of the matters in the declaration mentioned, to one cent. Therefore it is considered by the court that the plaintiff recover his freedom, and also that he recover against the defendant his damages assessed as aforesaid, and his costs &c. And the said defendant may be taken &c. 16. Verdict for defendant on the issue joined, and judgment there- upon. I Rob. Prac. 432. oath do say, that the plaintiff is a slave, and that the defendant is not guilty in manner and form as the plaintiff has complained, as the said defendant in pleading has alleged. Therefore it is considered by the court that the plaintiff take no- thing by his bill, and that the defendant go thereof without day. 168 Cases of caveat. CHAPTER XVII. CASES OF CAVEAT. 1. Summons issued on receiving a certified copy of a caveat. 1 Rob. Prac. 435 to 438. The commonwealth &c. Whereas J. S. hath entered a caveat in the land office against the issuing a grant to B. S. and T. H. for 169 acres of land, lying in the said county of Gf. and sur- veyed by A. L. for the said S. and H., expressing in the said caveat the cause for which the grant should not issue (or, ex- pressing in the said caveat the nature of the right on which the said J. S. claims the said land) as follows, that is to say, (here recite the cause for which the caveat is entered) and the said J. S. hath duly filed with the register of the land office an affidavit that the said caveat is really and bona fide made with an inten- tion of procuring the lands for him the said J. S. and not in trust for the benefit of the said B. S. and T. H. ; all which appears by a certified copy of the said caveat and the affidavit aforesaid, taken from the register and delivered to the clerk of the circuit superior court of law and chancery for the said county of Gf. Therefore we command you that you summon the said B. S. and T. H. to appear on the first day of the next succeeding circuit court for the said county, and defend their right. And have &c. 2. Summons not being executed, caveat dismissed with costs. 1 Rob. Prac. 439. The summons issued upon this caveat not being returned (or, being returned not executed) it is ordered that the said caveat be dismissed, and that the caveator pay to the caveatee his costs by him about his defence expended. 3. New summons awarded on caveat. 1 Rob. Prac. 439. The summon issued upon this caveat not being executed, and the court being satisfied that the failure to execute the same did not proceed from the neglect of the plaintiff, on the motion of the said plaintiff by his attorney, a new summons is awarded against the defendant, returnable here on the first day of the next term. Cases of caveat. 169 4. Oath of jury on a caveat. 1 Rob. Prac. 439. In the caveat depending between A. B. plaintiff and C. D. defendant, you shall well and truly find such facts as are mate- rial to the cause and not agreed by the parties, and a true ver- dict give according to the evidence. So help you God. 5. Facts found upon a caveat. 1 Rob. Prac. 438. The summons issued upon this caveat being returned execu- ted, this day came the parties by their attorneys, and thereupon came a jury, to wit, A. B. &c. who being sworn well and truly to find such facts as are material to the cause and are not agreed by the parties, brought in a verdict in these words: (Here in- sert the verdict.) 6. Upon facts found on a caveat, judgment for defendant. 1 Rob. Prac. 438. This day came the parties by their attorneys, and thereupon the matters of law arising upon the facts found by the jury being argued, it seems to the court here that the law is for the defendant: Therefore it is considered that the defendant reco- ver against the plaintiff his costs by him about his defence in this behalf expended, and that the said defendant have a copy of this judgment, to deliver into the land office, for the purpose of vacating the said caveat. 7. Upon facts found on a caveat, judgment for plaintiff. 1 Rob. Prac. 438. This day came the parties &c. and thereupon &c. it seems to the court that the law is for the plaintiff: Therefore it is consi- dered that the plaintiff recover against the defendant his costs by him in this behalf expended, and that the said plaintiff have a copy of this judgment, so that he may deliver the same into the land office, and do what the law requires to entitle himself to a grant. S. Upon facts found on a caveat, judgment for defendant, without prejudice. 1 Rob. Prac. 439. Guerrant v. Bagby, 6 Munf. 160. After the form next before the last, add these words : But this judg- ment is not to prejudice any suit in chancery which the plaintiff may be advised to bring, to vacate the patent found by the jury, 22 170 Cases of caveat. or any patent that may issue to the defendant in consequence of this judgment. 9. On a caveat against a grant upon a resurvey, judgment for plain- tiff upon the facts found. 1 Rob. Prac. 440. Preston v. Har- vey, 2 Hen. & Munf. 55. Therefore it is considered that no grant issue to the caveatee in pursuance of his inclusive survey, made the 30th day of December 1793, under an order of the county court of B. grant- ing leave to comprehend in one survey his several adjoining claims. And it is further considered that the caveator recover against the caveatee his costs by him in this behalf expended. 10. On a caveat against a, grant upon a resurvey, judgment for de- fendant upon the facts found. 1 Rob. Prac. 440. Therefore it is considered that the said caveat be vacated, and that the defendant recover against the plaintiff his costs by him about his defence in this behalf expended. Ejectment. 171 CHAPTER XVIII. ACTION OF EJECTMENT. 1. Notice to tenant to quit. 1 Rob. Prac. 447. Aslin fyc. v. Sum- mersett, I Barn. & Ad. 135. 20 Eng. Com. Law Rep.. 361. To mr. C. D. Sir, I hereby (as agent for mr. J. N. your landlord, and on his be- half) give you notice to quit and deliver up possession of the house, lands and premises, with the appurtenances, situate at in the county of , which you hold of (him) as tenant thereof, on the day of next, when the cur- rent year of your tenancy will expire. Dated the day of . 2. Declaration in ejectment. 1 Rob. Prac. 450. 451. In the circuit superior court of law and chancery for the county of H. John Doe complains of Richard Roe, for this, to wit, that whereas J. W. on the third day of July in the year 1818, at the county of H. aforesaid, had demised to the said John Doe a cer- tain tenement in the city of R. in the county aforesaid, contain- ing half an acre of land, and numbered in the plan of the said city 547, with the appurtenances, to have and to hold the same to the said John Doe and his assigns, from the second day of July in the same year 1818, to the full end and term of twenty years thence next following, and fully to be completed and ended ; by virtue of which said demise the said John Doe en- tered into the said tenement with the appurtenances, and was thereof possessed for the term so thereof granted as aforesaid ; and the said John Doe being so possessed thereof, the said Rich- ard Roe afterwards, to wit, on the 13th day of August in the year last aforesaid, with force and arms entered into the said tenement with the appurtenances, which the said J. W. had so demised to the said John Doe for the term aforesaid, which is not expired, and ejected the said John Doe from his said tene- ment with the appurtenances,* and other wrongs to him then and there did, to the great damage of the said John Doe, and 172 Ejectment. against the peace of the commonwealth of Virginia. Where- fore the said John Doe saith that he is injured and hath sustained damage to the value of $500. And therefore he brings his suit &c. * If the plaintiff declares with more than one count, the Jlrst will stop here, and the second will be inserted as follows : And also for this, to wit, that whereas A. B. oh &c. at &c. had demised to the said John Doe a certain other tenement in &c. with the appur- tenances, to have and to hold the same to the said John Doe and his assigns, from the second day of July in the year last afore- said, to the full end and term of twenty years thence next fol- lowing, and fully to be complete and ended ; by virtue of which said last mentioned demise the said John Doe entered into the said last mentioned tenement with the appurtenances, and was thereof possessed for the said last mentioned term so thereof granted as aforesaid ; and the said John Doe being so possessed thereof, the said Richard Roe afterwards, to wit, on &c. with force and arms entered into the said lastmentioned tenement with the appurtenances, which the said A. B. had demised to the said John Doe for the term last aforesaid, which is not yet expired, and ejected the said John Doe from his said lastmen- tioned tenement with the appurtenances. The last count in the declaration will have, after the word " ap- purtenances" the concluding words "and other wrongs" &fc. as they are given above after the asterisk. 3. Notice from the fictitious to the real defendant to appear at court. I Rob. Prac. 451. To mr. /. B. I am informed that you are in possession of or claim title to the premises mentioned in this declaration of eject- ment, or to some part thereof; and I being sued in this action as a casual ejector, and having no claim or title to the same, do advise you to appear, in person or by attorney, in the circuit superior court of law and chancery for the county of H. on the first day of the next term, and then and there, by a rule of the said court, to cause yourself to be made defendant in my stead ; otherwise I shall suffer judgment to be entered against me, and you will be turned out of possession. Given under my hand this 19th day of March 1819. Yours &c. Richard Roe. Ejectment. 173 4. Notice from the fictitious to the real defendant to appear at rules. Sess. Acts 1838, p. 75. ch. 97. $ 1. (As last, to) do advise you to appear at the clerk's office of the circuit superior court of law and chancery for the county of H. at the rules to be holden for the said court on the first mon- day in - next, and then and there, by a rule for that pur- pose, to cause yourself to be made defendant in rny stead ; otherwise I shall suffer judgment to be entered against me, and you will be turned out of possession. Given under my hand this - day of - . 5. Affidavit of service on the real defendant. 1 Rob. Prac. 452. C. D. maketh oath and saith that he did, on the - day of - , personally serve J. B. tenant in possession of the pre- mises mentioned in the declaration of ejectment hereunto an- nexed, with a true copy of the said declaration and of the no- tice thereunder written, and at the same time read over to the said J. B. the said notice, and explained to him the intent and meaning of the said declaration and notice, and of the service thereof. C. D. Sworn to this - day of - , before me, a justice of the peace for the county of H. E. F. 6. Statement shewing the pro/its and damages which the plaintiff" means to demand. 1 Rob. Prac. 87. Sess. Acts 1838, p. 75. ch. 97. In the circuit superior court of law and chancery for the coun- ty of H. Between John Doe on the demise of - (or, on the several demises of - and - ) plaintiff, and Richard Roe defen- dant. The following statement shews the amount of profits and other damages up to the date of the notice, which the plaintiff means to demand: (They will then be stated.) 7. Conditional order. 1 Rob. Prac. 452. Sess. Acts 1838, p. 75. ch. 97. John Doe plaintiff } In ejectment for a certain tenement against > in the city of R. in the county of H. Richard Roe defendant. ) containing half an acre of land, and numbered in the plan of the said city 547, with the appurtenances, of the demise of J. W. 174 Ejectment. This day came the plaintiff by his attorney, and filed-his de- claration against the defendant, with a note from the said de- fendant to J. B. and an affidavit thereunder written, and also a statement shewing the amount of pro/its and other damages which the plaintiff means to demand.* Whereupon, it appearing by the said affidavit that the said J. B. the tenant in possession of the pre- mises, hath been duly served with a copy of the said declara- tion and the note thereunder written, and he not appearing al- though solemnly called,! it is ordered that unless he, having legal notice of this order, or those under whom he claims, or some or one of them, do appear here on the first day of the next term, and make himself, herself or themselves defendant or defen- dants in this suit in the room of the said Roe, plead the general issue, confess the lease, entry and ouster in the declaration sup- posed, and enter into the common rule to insist, at the trial, only on the title, judgment shall be given for the plaintiff, and a writ of possession awarded him. * If no such statement be filed, the words in italics will of course be omitted. t The words " although solemnly called" can be omitted when the order is entered at rules. 8. Judgment by default in ejectment. 1 Rob. Prac. 452. This day came the plaintiff by his attorney, and it appearing, by the affidavit of T. R. that T. B. tenant in possession of the premises, hath been duly served with a copy of the conditional order made in this cause, and he not appearing although solemn- ly called, it is considered by the court that the plaintiff recover against the defendant his term yet to corne, of and in the tene- ment aforesaid, with the appurtenances : Whereupon the plain- tiff prays a writ, to the sheriff of the said county to be directed, to cause him to have his possession of his term aforesaid, yet to come ; and to him it is granted, returnable here &c. 9. Defendant made and judgment confessed in ejectment. W. S. on his motion is admitted defendant in this suit, in the room of the said Roe. And thereupon, in his proper person, he comes and says that he cannot gainsay the plaintiff's action, and agrees that judgment may be entered for the plaintiff for his term yet to corne, of and in the tenement aforesaid, with the appurtenances : Therefore, with the assent of the plaintiff, it is considered by the court that the plaintiff recover against the said defendant his term aforesaid. And a writ is awarded the Ejectment. 175 plaintiff, to the sheriff of this county to be directed, to cause him to have his possession of his term aforesaid. 10. Person makes himself defendant, pleads general issue, and enters into the common rule. 1 Rob. Prac. 452. T. B. on his motion is admitted defendant in this suit, in the room of the said Roe, and thereupon, by his attorney, comes and defends the force and injury, when &c. pleads the general issue, confesses the lease, entry and onster in the declaration supposed, and agrees to insist, at the trial, only upon the title. 11. Where there are several tenants, who sever in pleading, and each enters into the consent rule for himself. 1 Rob. Prac. 453. Pot- ter v. Scoville, 5 Wend. 96. C. D., E. F. and G. H. alleging that they are in possession, severally, of distinct portions of the premises demanded, and hold by separate titles, without any connexion or community of interest, on their several motions they are admitted as defen- dants in this suit, not jointly, but severally. And thereupon each of them comes by his attorney, and defends the force and injury, when &c. pleads severally the general issue, and agrees to insist, at the trial, only upon the title. 12. Order of survey. 1 Rob. Prac. 454. On the motion of the plaintiff, it is ordered that the surveyor of this county do go upon the land in controversy, on the day of next, if fair, if not, the next fair day, and survey and lay out the same as either party shall require, and return three fair plats and reports thereof to the court ; and that any one of the justices of the county do then and there meet him, and examine and take the depositions of such witnesses as shall be produced by any of the parties, which are to be returned with the said plats and reports. And the sheriff of the county is to attend the said survey, and remove force if any shall be offered. 13. Upon death of lessor, security for costs required. 1 Rob. Prac. 454. It appearing to the satisfaction of the court that since this ac- tion was commenced the lessor of the plaintiff has died, on the motion of the defendant by his attorney, security is required for 176 Ejectment. the payment of such costs as may be awarded the said defen- dant. 14. Upon death of defendant, scire facias awarded against his heirs or devisees. 1 Rob. Prac. 454. The plaintiff, by his attorney, suggests to the court that the defendant has died, and that are his heirs (or, devisees.) Whereupon, on the motion of the plaintiff, a writ of scire facias is awarded against the said heirs (or, devisees.) 15. Writ of scire facias against defendant's heirs or devisees. 1 Rob. Prac. 472. The commonwealth &c. Whereas an action of ejectment was lately depending in our circuit superior court of law and chancery for the county of H. between John Doe lessee of A. B. plaintiff, and C. D. defendant, for the recovery of lands, and before verdict was rendered therein the said C. D. died ; and it is suggested that are the heirs (or, devisees) of the said C. D. Therefore, at the instance and on behalf of the plaintiff in the said action, we command you that you make known to the said , that they be before the judge of our said circuit superior court, at &c. on the first day of the next term, to shew cause, if any they can, why the said action should not be pro- ceeded in to a final judgment. And have &c. 16. Upon return of scire facias executed, heirs or devisees made par- ties to the action. 1 Rob. Prac. 454. The scire facias issued against the heirs (or, devisees) of the said C. D. being returned executed, and no good cause being shewn to the contrary of what followeth, it is ordered that the said heirs (or, devisees) be made parties to the action, and that the cause proceed in the same manner as if they had been ori- ginally parties thereto. And the said heirs (or, devisees) asking a continuance of the cause until the next term, the same is con- tinued accordingly. 17. Term of demise enlarged. I Rob. Prac. 454, 5. Blackwell v. Patton fyc. 7 Cranch 477. Walden v. Craig, 9 Wheat. 576. On the motion of the plaintiff by his attorney, leave is granted him to amend his declaration, by enlarging and extending his term in the demised premises mentioned in the said declaration. Whereupon the amendment was accordingly made, by inserting Ejectment. 177 the word " twenty" before the words "five years" in the said declaration, so as to make the term of the demise twenty-five instead of five years. 18. A new demise added. 1 Rob. Prac. 454. Jackson v. Kough, 1 Caines's Rep. 251. On the motion of the plaintiff by his attorney, and for good cause shewn, leave is granted him to amend his declaration, by adding a count upon the demise of another person : Whereupon the amendment was accordingly made, by adding a count upon the demise of E. F. 19. Notice to plaintiff" who claims ander a mortgage which is satis- Jied. 1 Rob. Prac. 457. To mr. A. B. Sir, An ejectment for the recovery of lands having been brought in the circuit superior court of law and chancery for the county of H. against me, at the suit of John Doe, lessee of you the said A. B. and you being* a mortgagee of those lands, and It the mortgagor thereof, I hereby give you notice that it is my intention, in my defence, to prove by legal evidence at the trial of the said action, that the whole debt to secure which the mort- gage was made, and all interest thereon, have been paid and satisfied (or, that the duty, to secure performance whereof the mortgage was made, has been fully performed.) Given under my hand this day of . * If the action be by the heirs of a mortgagee, insert here the words " the heirs of." t If the action be against the heir of the mortgagor, insert the words "the heir of;" or if it be against any other person claiming under the mortgagor or his heirs, insert the words " claiming under," or " claim- ing under the heirs of." 20. Notice to plaintiff who claims under a trust which is satisfied. I Rob. Prac. 457. To mr. A. B. Sir, An ejectment for the recovery of lands having been brought in the circuit superior court of law and chancery for the county of H. against me, at the suit of John Doe, lessee of you the said A. B. and you being* a trustee in whom the legal title of the lands claimed has been vested by deed of trust, and I beingt the grantor in the said deed of trust, I hereby give you notice that it is my intention, in my defence, to prove by legal 23 178 Ejectment. evidence at the trial of the said action, that the trust for which the said deed of trust was made, and all the purposes of the said deed, have been fully accomplished. Given under my hand this day of . * If the action be by the heirs of a trustee, insert the words " the heirs of." t If the action be against the heir of the grantor, insert the words " the heir of;" or if it be against any other person claiming under the grantor or his heirs, insert, instead of " being," the words " claiming under," or " claiming under the heirs of." 21. Notice by defendant who is a vendee, or the heir of a vendee, en- titled to specific execution. 1 Rob. Prac. 458. To mr. A. B. Sir, An ejectment having been brought in the circuit superior court of law and chancery for the county of H. by John Doe as lessee of you the said A. B. against me, for recovery of lands sold by you* the said A. B. to me,t and I having plain written evidence of my purchase and of the precise terms thereof, duly signed, and having moreover paid all the purchase money by me contracted to be paid, and done and performed all things on my part contracted to be done and performed, I hereby give you notice that at the trial of the cause I shall give in evidence the written contract under which I claim and hold, and shall adduce all other legal evidence of the facts aforesaid, upon which my equitable right depends. Given under my hand this day * If the action be by the heirs of the vendor, then, in lieu of the words " by you the said A. B." insert " by C. D. whose heirs you are." t If the action be against the heirs of the vendee, then, in lieu of the words " to me," insert " to E. F. whose heir I am." 22. Special verdict returned. 1 Rob. Prac. 458. This day came the parties by their attorneys, and thereupon came a jury, to wit, A. B. &c. who being elected, tried and sworn the truth to speak upon the issue joined, upon their oath returned a special verdict in these words : (Here insert it.) 23. Judgment, under the statute, for defendant entitled to a convey- ance of the legal title from the vendor or his heirs. 1 Rob. Prac. 458, 9. This day came the parties by their attorneys, and thereupon the special verdict found in this cause being maturely consider- Ejectment. 179 ed, the court is of opinion that the defendant would in equity be entitled to specific execution of the contract found by the ver- dict, and to a conveyance of the legal title of the land to him from the lessor of the plaintiff, without any condition proper in equity to be on him imposed : Therefore it is considered by the court that the plaintiff take nothing by his bill, but for his false clamour be in mercy &c. and that the defendant go thereof without day, and recover against the lessor of the plaintiff his costs by him about his defence in this behalf expended. 24. Judgment against vendee, or heirs of vendee, who made defence under the statute. 1 Rob. Prac. 458, 9. This day came &c. and thereupon &c. the court is of opinion that the legal title of the land is in the lessor of the plaintiff, and that the defendant would not be entitled in equity to an uncon- ditional decree for a conveyance of that legal title to him : Therefore it is considered by the court that the plaintiff recover against the defendant his term yet to come, of and in the mes- suage and lands, with the appurtenances, in the said verdict mentioned, together with one cent the damages assessed by the jury, and his costs by him about his suit in this behalf expended. And the said defendant may be taken &c. Whereupon the plaintiff prays a writ, to the sheriff of this county to be direct- ed, to cause him to have his possession of his term aforesaid, yet to come &c. And to him it is granted. 25. General verdict for plaintiff, and judgment thereon. 1 Rob. Prac. 460. 462. oath do say that the defendant is guilty in manner and form as the plaintiff hath complained, and they do assess the plaintiff's damages by occasion thereof to one cent besides his costs : Therefore it is considered by the court that the plaintiff recover against the defendant his term (or, terms) yet to come, of and in the lands, with the appurtenances, in the declaration mentioned, together with his damages assessed as aforesaid, and his costs &c. (as last.) 26. Verdict for plaintiff, assessing damages for mesne profits ; and judgment thereon. 1 Rob. Prac. 87. Sess. Acts 1838, p. 75. ch. 97. $ 2. oath do say that the defendant is guilty in manner and form as the plaintiff hath complained, and they do assess the damages for the mesne profits of the lands in the declaration 180 Ejectment. mentioned, to $ . Therefore it is considered by the court that the plaintiff recover against the defendant his term (or, terms) yet to come, of and in the said lands with their appurte- nances, together with the damages assessed as aforesaid, and the costs by the plaintiff about his suit in this behalf expended ; which damages, as well as the costs, are for the use of the lessor of the plaintiff, his executors or administrators. And the said defendant may be taken &c. Whereupon &c. (as in No. 24.) 27. Verdict for less land than the quantity stated in the declaration, and judgment thereupon. I Rob. Prac. 461, 2, 3. oath returned a verdict in these words : (Here insert it.) Therefore it is considered by the court that the plaintiff recover against the defendant his term yet to come, of and in the 400 acres of land in the said verdict specified, being part of the lands in the declaration mentioned, together with his damages assessed as aforesaid, and his costs &c. And the said defendant may be taken &c. And as to the residue of the premises in the declaration mentioned, it is considered that the plaintiff, for his false clamour, be in mercy &c. and that the defendant go thereof without day. Whereupon the plaintiff prays &c. 28. General verdict for defendant, and judgment thereon. 1 Rob. Prac. 460, 61, 63. oath do say that the defendant is not guilty of the tres- pass and ejectment in the declaration complained of, as in plead- ing he hath alleged. Therefore &c. (as in No. 23.) 29. After verdict for plaintiff, term of demise enlarged, and then judgment entered. 1 Rob. Prac. 455. Throckmorton v. Cooper's lessee, 3 Munf. 93. It appearing to the court that pending this suit the term of the demise mentioned in the declaration has expired, on the motion of the plaintiff by his attorney, the court doth allow him to amend the said declaration, by enlarging his term : And the amendment being accordingly made, by inserting the word " twenty" before the words " five years" in the declaration, so as to make the term of the plaintiff twenty-five instead of five years, it is thereupon considered by the court that the plaintiff recover against the defendant his term yet to come, of and in the piece or parcel of land, with the appurtenances, in the said declaration mentioned, together with one cent the damages by the jurors in their verdict assessed, and his costs &c. (as in other judgments for the plaintiff.) Ejectment. 181 30. Where land is recovered west of the Alleghany, and defendant seeks to get the value of his improvements, judgment suspended till allegations can be enquired into. 1 Rob. Prac. 463. The defendant in possession, against whom judgment was entered in this suit, having adduced evidence before this court, tending to shew that he, and those under whom he claims and whose rights he holds, have bona Jide settled the land recovered, under and by virtue of grants from the commonwealth issued previous to the passage of the act of March 10th 1832, and made valuable and permanent improvements thereon, over and above the value of the use and occupation thereof; and the court being satisfied of the probable truth of these allegations; it is ordered that the execution of the said judgment be sus- pended, until the said allegations can be enquired of by a jury. 31. Jury sworn to ascertain the additional value given to the land by the improvements ; and verdict found. 1 Rob. Prac. 463. This day came the parties by their attorneys, and thereupon came a jury, to wit, A. B. &c. who being impannelled and sworn, well and truly to ascertain the reasonable additional value given to the land recovered in this suit, by the permanent im- provements made on the same, previous to notice delivered by the plaintiff or his agent, in writing, to the defendant or tenant in possession, of the adverse title, over and above a reasonable allowance for the use and occupation thereof, upon their oath do say that they ascertain the reasonable additional value so given to the said land by the permanent improvements made as afore- said, to be S . And the amount so ascertained by the jury constituting a lien on the said lands, it is ordered that no process issue for changing the possession thereof, until the said amount shall be fully paid and discharged. 32. Pending injunction to judgment, term of demise having expired, rule to enlarge the same. 1 Rob. Prac. 455. Noland v. Crom- well, 6 Munf. 185. It appearing to the court that within a year after judgment was rendered for the plaintiff, an injunction was awarded there- to, which has been dissolved within the year last past, and it further appearing that, pending the injunction, the term of the demise mentioned in the declaration has expired; on the mo- lion of the plaintiff by his attorney, it is ordered that the defen- dant be summoned to appear here on Saturday next, to shew cause, if any he can, why the said term should not be enlarged, 182 Ejectment. and a writ awarded the plaintiff to have possession of the term so enlarged. 33. Rule to enlarge term which had expired pending injunction, made absolute, and writ of possession awarded. 1 Rob. Prac. 455. Noland v. Cromwell, 6 Munf. 185. This day came the plaintiff by his attorney, and the summons awarded against the defendant on Wednesday last being returned executed, the said defendant was solemnly called, but came not : whereupon it is ordered that the rule against him be made abso- lute. And the term of the plaintiff being accordingly enlarged, by making it twenty-five instead of five years, a writ is awarded the said plaintiff, to cause him to have his possession of his term aforesaid, yet to come &c. Writs of right. 183 CHAPTER XIX. WRITS OF RIGHT. 1. Writ of prcscipe quod reddat. 1 Rob. Prac. 465. This writ is to be in the form or to the effect prescribed by the act in 1 R. C. 1819, p. 463. ch. 118. 1. 2. Count. 1 Rob. Prac. 466. This is to be in the form or to the effect prescribed by the act in 1 R. C. 1819, p. 464. 3. Conditional order. 1 Rob. Prac. 467. % This day came the demandant by his attorney, and filed his count ; and the tenant having been summoned and not appear- ing, the court doth order that unless he appear at the next term, judgment shall be given against him. But the demandant is to have a copy of this order delivered to the tenant, or left at the place of his usual abode, fifteen days or more before the next term ; and affidavit made thereof. 4. Judgment for want of appearance. 1 Rob. Prac. 467. This day came the demandant by his attorney, and it appear- ing by the affidavit of H. L. C. that he delivered a copy of the conditional order made in this cause to the tenant, more than fifteen days before the commencement of the present term, the said tenant was this day solemnly called, but came not: There- fore it is considered by the court that the demandant recover against the tenant his seisin of the said tenement with the ap- purtenances, to hold to him and his heirs, quit of the said tenant arid his heirs forever ; and also that the demandant recover against the tenant his costs &c. And the said tenant in mercy &c. Whereupon the demandant prays a writ, to the sheriff of this county to be directed, to cause him to have his seisin afore- said ; and to him it is granted. 184 Writs of right. 5. Where the prcecipe is returned not found, if in a circuit court. 1 Rob. Prac. 467. The writ of prcecipe quod reddat issued in this cause, directed to the sheriff of this county, being returned by the said sheriff that the tenant is not found in his bailiwick, on the motion of the demandant by his attorney, he is allowed to sue forth a writ of exigi facias, returnable here at the next term. And the court doth direct that a copy of the writ be printed, within four weeks after the teste thereof, in the Richmond Enquirer. Note. When the residence or last place of abode of the tenant shall be out of the county in which the land demanded lieth, a like writ of exigi facias should also be awarded to the sheriff of the latter county. 6. Writ of exigi facias, and return thereon. 1 Rob. Prac. 467. The writ is to be in the form or to the effect prescribed by the act in 1 R. C. 1819, p. 465. ch. 118. $ 2. (Return.} I have caused the within named C. D. to be re- quired from county court to county court, until five courts be passed, as by this writ I was commanded, and the said*C. D. hath not appeared. ^ 7. Judgment for demandant upon return of exigi facias. 1 Rob. Prac. 467. This day came the demandant by his attorney and filed his count, and the writ of exigi facias awarded in this cause being returned in due form, and the same appearing by an affidavit of H. L. C. to have been printed as directed by the order made at the last term, the tenant was this day solemnly called, but came not : Therefore &c. (as in No. 4.) 8. Where the prcecipe is returned not found, if in a county or corpo- ration court. 1 Rob. Prac. 467. The writ of prcecipe quod reddat issued in this cause, directed to the sheriff of this county, being returned by the said sheriff that the tenant is not found in his bailiwick, on the motion of the demandant by his attorney, he is allowed to sue forth a new prcecipe. And the court directs that the Richmond Enquirer shall be the public newspaper wherein the prcecipe is to be printed within four weeks after the teste thereof. Note. When the residence or last place of abode of the tenant shall be out of the county, city or borough in which the land demanded lieth, a testatum pracipe should also be awarded to the sheriff or proper officer of the latter county, city or borough. Writs of right. 185 9. Endorsement by the cleric on each new prcecipe. 1 Rob. Prac. 467, 8. The officer to whom this writ is directed is required, within fourteen days after its teste, to set up a copy of the writ at the door of his courthouse. C. H. clerk. 10. Return upon each new prcecipe. 1 Rob. Prac. 467, 8. The tenant named in the within writ is not found in my bai- liwick, and, within fourteen days after its teste, I set up a copy of the writ at the door of the courthouse. 11. Another new prcecipe awarded. 1 Rob. Prac. 467. Return being made upon the prcecipe awarded in this cause at the last term, directed to the sheriff of this county, that the tenant is not found in his bailiwick, and that, within fourteen days after its teste, he set up a copy of the writ at the door of the courthouse, on the motion of the demandant by his attorney, he is allowed to sue forth a new prcecipe. 12. Judgment for demandant after Jive prcecipes. 1 Rob. Prac. 467, 8. The first writ of prcecipe quodreddat issued in this cause having been returned by the officer to whom it was directed, that the tenant was not found in his bailiwick, and the demandant hav- ing thereupon sued forth a new prcecipe every court for five courts following successively, and return of the said five writs being made, that the tenant was not found in the bailiwick of the officer to whom they were directed, and that a copy of each had been set up at the door of the courthouse within fourteen days after its teste, as required by law, and it appearing that a copy of the first was printed in the Richmond Enquirer within four weeks after the teste thereof, and the tenant not having ap- peared at the court to which any one of the said writs was re- turnable, and not now appearing, the demandant this day filed his count, and it is thereupon considered by the court that the said demandant recover against the tenant his seisin of &c. (as in No. 4.) 13. Plea of nontenure. See concerning it, 1 Rob. Prac. 468, 9. 24 .y 186 Writs of right. 14. Plea of joint tenancy. See concerning it, 1 Rob. Prac. 468, 9. 15. Plea of several tenancy. See concerning it, 1 Rob. Prac. 465. 468, 9. 16. Plea of demandant's death before suit brought. See concerning it, 1 Rob. Prac. 469, 70. 122, 17. Judgment where plea of nontenure is sustained as to parcel of the land demanded. 1 Rob. Prac. 469. After recording the juries verdict upon the issue, or the court's opinion upon the demurrer, proceed as follows : Therefore it is con- sidered that the writ be abated for the quantity of the nontenure found by the jur}' (or, alleged in the said plea) and that the de- fendant go thereof without day. 18. Judgment where plea of joint tenancy is sustained. 1 Rob. Prac. 469. Therefore it is considered that the writ be abated, and that the defendant go thereof without day. And it is further consi- dered that the defendant recover against the demandant his costs by him about his defence in this behalf expended. 19. Judgment where plea of joint tenancy is disproved. 1 Rob. Prac. 469. This day came the parties by their attorneys, and thereupon came a jury, to wit, A. B. &c. who being elected, tried and sworn the truth to speak upon the issue joined, upon their oath do say that on the said issue they find against the truth of the plea pleaded by the defendant, and they assess the demandant's damages by reason of the defendant's withholding possession of the tenement demanded, to $ . Therefore it is consi- dered by the court that the demandant recover against the de- fendant his seisin of the said tenement, to hold to him and his heirs, quit of the said defendant and his heirs forever. And it is further considered that the demandant recover against the de- fendant, according to the statute, $ , being double the da- mages assessed by the jury, and his costs &c. mercy &c. Whereupon &c. (as in other judgments for the demandant's seisin.) Writs of right. 187 20. Demurrer to the count. See concerning it, 1 Rob. Prac. 470. 21. Plea in bar. 1 Rob. Prac. 470, 71. . The plea should be in the form or to the effect prescribed by the act in 1 R. C. 1819, p. 464. 22. Replication to plea in bar. 1 Rob. Prac. 471. The replication should be in the form or to the effect prescribed by the act in 1 R. C. 1819, p. 464. 23. Entry of the mise being joined. 1 Rob. Prac. 471. This day came the parties by their attorneys, and the deman- dants filed their count against the tenants, to which count the tenants filed their plea, and to that plea the demandants filed their replication ; so that the mise is now joined between the parties. 24. Defence by other than the tenant. See concerning it, 1 Rob. Prac. 471. 25. Rule made upon ascertaining that demandant was dead when the suit was brought. 1 Rob. Prac. 122. Dumsday v. Hughes, 2 Scott 377. 30 Eng. Com. Law Rep. 454. The tenants this day filed affidavits going to shew that the person who is called demandant died many years before' the in- stitution of the suit, that the tenants were ignorant of this fact till after the mise was joined, and that the suit was in truth pro- secuted by one J. W. who was aware of the said death ; and the said tenants moved for a rule upon the counsel, attorneys and agents engaged in the prosecution of the suit ; which motion was resisted by the said W. who filed an affidavit setting forth that he claimed title under the said demandant, and that he be- lieved he had sufficient title to enable him to recover, but con- taining no suggestion that he believed the demandant was living when the suit was commenced. On consideration whereof, the court doth order that proceedings in this cause be stayed, till it be shewn by proof that the demandant was living at the com- mencement thereof; and it is further ordered that the attorney who brought this suit, and the said J. W. at whose in- 188 Writs of right. stance it was commenced, be summoned to appear here on &c. to shew cause, if any they can, why an attachment should not be issued against them for their contempt of this court, and abuse of its process, in suing in the name of a dead man. 26. Scire facias awarded the heirs or devisees of demandant. 1 Rob. Prac. 472. The demandant having died since this suit was brought, and it being suggested that are his heirs (or, devisees), on their motion a writ of scire facias is awarded them against the tenant. 27. Scire facias awarded against the tenant's heirs or devisees. 1 Rob. Prac. 472. The demandant, by his attorney, suggests that the tenant has died, and that are his heirs (or, devisees.) Whereupon, on the motion of the said demandant, a writ of scire facias is awarded him against the said heirs (or, devisees.) 28. Writ of scire facias in favour of demandant's heirs or devisees. I Rob. Prac. 472. The commonwealth &c. Whereas a writ of right was lately depending in our circuit superior court of law and chancery for the county of H. for the recovery of a certain tenement, wherein A. B. was demandant and C. D. tenant, and before verdict ren- dered the said A. B. died ; and it is suggested that are the heirs (or, devisees) of the said A. B. Wherefore, at their instance and on their behalf, we command you that you make known to the said C. D. that he be before &c. at &c. on &c. to shew cause &c. (as in p. 176. No. 15.) Note. As to the right of the devisees to maintain a writ of right, or a scire fa- cias to revive, see 1 Rob. Prac. 473 to 476, and Taylor's devisees v. Rightmire, 8 Leigh 468. 29. Writ of scire facias against tenant's heirs or devisees. 1 Rob. Prac. 472. The commonwealth &c. Whereas &c. (as last) and before verdict rendered the said C. D. died, and it is suggested that are the heirs (or, devisees) of the said C. D. Where- fore, at the instance of the said A. B. and on his behalf, we command you that you make known to the said that they Writs of right. be before &c. at &c. on &c. to shew cause &c. (as in p. 176. No. 15.) 30. Upon return of scire facias issued in favour of heirs or devisees of demandant, they made parties to the action. 1 Rob. Prac. 472. The scire facias issued on behalf of the heirs (or, devisees) of the said A. B. against the tenant being returned executed, and no good cause being shewn to the contrary of what fol- loweth, it is ordered that the said heirs (or, devisees) be made parties to the action, and that the cause proceed in the same manner as if they had been originally parties thereto. 31. Upon return of scire facias against heirs or devisees of tenant, they made parties to the action. 1 Rob. Prac. 472. As in p. 176. No. 16. 32. Charge to the recognitors of the assize. 1 Rob. Prac. 472. The charge is to be in the form or to the effect prescribed by the act in 1 R. C. 1819, p. 464. 33. General verdict for the tenant, and judgment thereupon. 1 Rob. Prac. 472. 478. 479. This day came the parties by their attorneys, and there- upon twelve good and lawful men, qualified as jurors are re- quired to be, to wit, A. B. &c. were elected, tried and charged to make recognition of the assize, and say the truth, whether the tenant hath more right to hold the tenement which the de- maTidant demandeth against him by his writ of right, or the de- mandant to have it as he demandeth ; and the said recognitors of the assize upon their oath do say, that the tenant hath more right to hold the said tenement, than the demandant to have it as he demandeth. Therefore it is considered by the court that the tenant hold the said tenement to him and his heirs, quit of the demandant and his heirs forever, and also that the tenant recover against the demandant his costs by him in this behalf expended. And the said demandant in mercy &c. 34. General verdict for the demandant, and judgment thereupon. I Rob. Prac. 472. 478. 479. This day &c. (as last) and the said recognitors of the assize upon their oath do say, that the demandant hath more right to 190 Writs of right. have the tenement which he demandeth, than the tenant hath to hold it, and they assess the damages of the demandant by reason of the tenant's withholding possession of the said tenement, to $ . Therefore it is considered by the court that the deman- dant recover against the tenant his seisin of the said tenement, to hold to him the said demandant and his heirs, quit of the said tenant and his heirs forever ; and also that the said demandant recover against the tenant his damages assessed as aforesaid, and his costs &c. mercy &c. Whereupon the demandant prays a writ, to cause him to have his seisin aforesaid ; and to him it is granted, returnable here &c. 35. General verdict for demandant for part, and for tenant for re- sidue ; and judgment thereupon. 1 Rob. Prac. 478. oath do say, as to 48 acres of land, particularly laid down and denoted in the surveyor's plat returned in this cause, parcel of the tenement in the count demanded, that the deman- dant hath more right to have the same than the tenant, and as to the residue of the tenement demanded, that the tenant hath more right to hold the same than the demandant to have it ; and the said recognitors assess the damages of the demandant by reason of the tenant's withholding possession of the said 48 acres, to $ . Therefore it is considered by the court that the demandant recover against the tenant his seisin of the said 48 acres of land, to hold to him the said demandant and his heirs, quit of the said tenant and his heirs forever, and that the tenant hold the residue of the said tenement to him and his heirs, quit of the demandant and his heirs forever. And it is further considered that the demandant recover against the tenant his damages &c. (as last.) Dower. 191 CHAPTER XX. DOWER. 1. Order at the instance of the heirs, directing widow's dower to be assigned. 1 Rob. Prac. 483. o A. B. and C. D. heirs of E. F. deceased, stating that G. F. the widow of the said deceased is entitled to be endowed of one third part of the real estate in this county, whereof her hus- band died seized of an estate of inheritance, and the said heirs desiring that her dower therein should be assigned her, and asking that commissioners may be appointed for that purpose ; the court, at the instance of the said heirs, appoints J. P. &c. or any two of them, commissioners to assign to the said G. F. her dower aforesaid, and make report to the court of such as- signment. 2. Assignment of widow's dower returned, and same established by consent of her and the heirs. 1 Rob. Prac. 483. J. P. &c. two of the commissioners heretofore appointed to assign to G. F. her dower in the real estate in this county whereof her husband E. F. died seized, this day made a report of their assignment ; and the said G. F. being willing to accept the same as a just assignment, the court, by consent as well of her the said G. F. as of the heirs of the said E. F. doth estab- lish the said assignment, and order that she hold the lands so assigned to her, as and for her dower as aforesaid. 3. Writ de quarantina habenda. 1 Rob. Prac. 484. Concerning this writ, see Fitzherbert's Natura Brevium [161. 162.] 4. Writ of unde nihil habet. 1 Rob. Prac. 485, 6. The commonwealth of Virginia to the sheriff of F. county, greeting : Command G. F. N. that justly and without delay he render unto J. A. and C. his wife, late C. N. who was the wife of J. H. N. deceased, her reasonable dower which falls to her 192 Dower. share of a tenement which was the said J. H. N.'s in his life- time, situate &c. whereof she hath nothing, as she saith, and whereof she complains that the said G. F. N. unjustly deforceth her ; and unless he render the same, then summon the said G. F. N. that he be before &c. at &c. on &c. to answer the said J. and C. of the plea aforesaid. And have then there this writ. Witness &c. 5. Count. 1 Rob. Prac. 486. The following count was filed in Ambler fywife v. Norton, 4 Hen. & Munf. 23. - F. county, to wit : J. A. and C. his wife, late C. N. and late the wife of J. H. N. deceased, by O. W. their attorney, demand against G. F. N. the one third part of and in a freehold of a certain part or proportion of lot number 62. situate in the corpo- ration of W. in the parish of F. in the county of .F. and within the jurisdiction of this court, being part of a lot on which the storehouse now occupied by T. V. stands, extending 28 feet front on London street, beginning at &c. and extending &c. with the appurtenances, which they claim as the reasonable dower of the said C. of the endowment of the said J. H. N. deceased, her late husband, by writ of dower, whereof she or they have nothing, and whereof they complain that the said G. F. N. de- forceth her &c. 6. Plea that husband was not seized of an estate of inheritance ; with similiter thereto. The said tenant comes and defends the force and injury, when &c. and says that the said demandants ought not to have and maintain their action aforesaid against him, because he says that the said J. H. N. or any other person to his use, was not, at any time during the coverture of the said C. with him, seized of an estate of inheritance in the premises in the declaration mention- ed, or of any part thereof, and of this he puts himself upon the country ; and the demandants likewise. 7. Plea of jointure in lieu of dower. 1 Rob. Prac. 487, 8. The following plea was pleaded in Ambler 8f wife v. Norton, 4 Hen. & Munf. 23. And the said tenant, by leave of the court, and by virtue of the act of assembly in such case made and provided, for further plea saith that the said demandants ought not to have and main- tain their action aforesaid against him, because he says that du- Dower. 193 ring the coverture of the said C. with the said J. H. N. to wit, on the 19th day of November 1792, the said J. H. N. duly made and executed his last will and testament, whereby the said J. devised that the said C. his wife should receive an annual in- come of 150. during her life, out of the estate of the said J. and that she should have the full use of the mansion house and other houses of the said J. where the said J. did then live, to- gether with the ground on which they stand, and the garden, stable and stable-lot, during the life of the said C. likewise the free use of all the household and kitchen furniture, plate, linen, pictures, books, carnages, horses, cattle and house servants for her life, and the said J. did, in and by the said will, also give and bequeath to the said C. mulatto Hannah and her issue ; and the said /. did afterwards, during the coverture of the said C. with him, to wit, on the 6th day of January 1794, duly make and publish a codicil to his said will, whereby he bequeathed to the said C. 200. during her life, in lieu of the said 150. bequeathed to her in the said will, and did moreover bequeath to the said C. black Betty and her issue ; and the said J. did also, during the coverture of the said C. with him, to wit, on the 13th day of October 1795, duly make and publish one farther codicil to his said will, whereby he bequeathed to the said C. all the plate to which he was entitled on the death of mrs. M. P. which said will and the codicils annexed thereto have, since the death of the said /. been duly proved and recorded in the court of J 1 . county, and are now in full force. And the said tenant in fact sailh that the said several bequests and devises in the said will and codicils before set forth, were in lieu of the said C.'s right of dower in the estate of the said J. and that the said C. did, after the death of the said J. and before the com- mencement of this suit, actually enter into and occupy the great- est part of the property so as aforesaid devised to her, to wit, the mansion house and other houses where the said J. did live, and the stable and stable-lot and garden, and hath ever since been in the possession and occupation thereof, in lieu of her dower aforesaid. And this he is ready to verify. Wherefore he prays judgment if the said demandants their action aforesaid against him ought to have or maintain &c. 8. Verdict for demandant where the husband died seized, and judg- ment thereupon. 1 Rob. Prac. 489, 90. that on the issue joined they find for the demandant ; and farther the said jurors upon their oath do say, that the said J. G. the husband of the demandant died seized of the lands, of her dower whereof the tenant hath deforced her, and that the 25 194 Dower. value of her said dower, from the time of the death of her hus- band unto this day, is $ , and they assess the said deman- dant's damages to that sum : Therefore it is considered by the court that the demandant recover against the tenant her seisin of one full and equal third part of the said lands, to hold to her in severally, as and for her dower in the said lands ; and also that the demandant recover against the tenant her damages as- sessed as aforesaid, and her costs &c. And the said tenant in mercy &c. Whereupon the demandant prays a writ, to cause her to have the seisin so recovered ; and to her it is granted. 9. Verdict for demandant where the husband has aliened, and judg- ment thereupon. 1 Rob. Prac. 490 to 493. that on the issue joined they find for the demandant ; and farther the said jurors upon their oath do say, that the said J. G. the husband of the demandant, though seized during the coverture, of the land, of her dower whereof the tenant hath deforced her, did not die seized of the said land, but the said J. G. aliened the same, on the day of , to the tenant (or, to , under whom the tenant claims) and the said land was, at the time of the alienation, of the value of $ , and is now of the value of $ . Therefore it is considered by the court that the demandant recover against the tenant her sei- sin of what was one full and equal third part of the said land, according to the value thereof at the time of the alienation by her husband, to hold to her in severalty, as and for her dower in the said land. And the said tenant in mercy &c. And a writ is awarded the demandant, to cause her to have her seisin in a part of the said land, which shall be the same proportion thereof, that one third of the value of the land at the time of the alienation, is of the whole value thereof at this time. 10. Verdict for tenant, and judgment thereupon. 1 Rob. Prac. 495. oath do say, that on the issue joined they find for the tenant. Therefore it is considered by the court that the tenant hold the tenement demanded against him, quit of the deman- dant, and recover against the said demandant his costs by him in this behalf expended. And the said demandant in mercy &c. Unlawful entry or detainer. 195 CHAPTER XXI. UNLAWFUL ENTRY OR DETAINER. 1. Complaint of unlawful entry or detainer. 1 Rob. Prac. 496, 7. This is to be in the form or to the effect prescribed by the act in 1 R. C. 1819, p. 455. 4 2. Affidavit that complaint is true. 1 Rob. Prac. 497. The complaint is to be verified by oath or affirmation, certified at the foot thereof, in the manner prescribed by the act in 1 R. C. 1819, p. 456. 5. But the oath or affirmation maybe either by the plaintiff him- self or by any other person for him, and may be taken before any justice of the peace within the commonwealth. Sess. Acts 1825-6, p. 26. 5. 3. Warrant to officer. 1 Rob. Prac. 497. The warrant is to be to the effect prescribed by the act in 1 R. C. 1819, p. 456. 6. 4. Officer's return upon warrant. 1 Rob. Prac. 497. I served this warrant on the defendant within named, more than eight days before the return day, by delivering him a copy thereof. Or: The defendant within named could not be found, and I served this warrant more than eight days before the return day, by de- livering a copy thereof to , a white person of his family, above the age of 16 years, at his usual place of residence. Or: The defendant within named could not be found, and no white person of his family, above the age of 16 years, being found at his usual place of residence, I served this warrant more than eight days before the return day, by setting up a copy on the tenement within mentioned, in a conspicuous place to wit, in &c. (here specify the place.) 196 Unlawful entry or detainer. And, in either case, continue the return as follows : I have also given notice of this warrant to messrs. and , two justices of the peace for this county, and re- quested their attendance at the time and place within mentioned. And I have summoned the following freeholders, to wit, A. B. &c. (here name them) to be attendant upon the justices, as jurors to try the complaint. 5. Court formed, jury impannelled, evidence heard, and verdict re- turned. 1 Rob. Prac. 497, 8. At the courthouse of the county of H. on the day of ~, A. B. and C. D. gent, justices of this county, atten- ded, and constituted a court for the trial of a complaint of E. F. against G. H. for forcibly turning him out of possession (or, un- lawfully turning him out of possession or, unlawfully holding him out of possession) of a certain tenement, containing &c. lying &c. Whereupon, it appearing that the defendant has been duly served with the warrant, the court proceeded to impannel a jury for the trial of the complaint, and J. K. &c. having been accordingly impannelled, they were charged on oath in the man- ner prescribed by the statute,* and the justices admitted before them all legal evidence which was offered, as well on the part of the defendant as on the part of the plaintiff, and suffered each party to be heard by counsel ; and the said jury, after hearing the evidence and the arguments of counsel, unanimously agreed upon a verdict, and found the same in the following words, to wit : (Here insert it.) * See 1 R. C. 1819, p. 457, 8. 6. Judgment for plaintiff. 1 Rob. Prac. 498. After recording the verdict as in the last entry, proceed as follows : Therefore it is considered by the court that the plaintiff recover against the defendant possession of the tenement aforesaid, and his costs by him in this behalf expended. And a writ of habcre facias possessionem is awarded, to cause the said plaintiff to have such possession. 7. Judgment for defendant. 1 Rob. Prac. 499. After recording the verdict, proceed as follows : Therefore it is considered by the court that the said complaint be dismissed, and that the defendant recover against the plaintiff his costs by him in this behalf expended. Unlawful entry or detainer. 197 8. New trial granted. 1 Rob. Prac, 498. After recording the verdict as in No. 5. proceed as follows : Where- upon, on the motion of the plaintiff (or, defendant) and for rea- sons appearing to the court, the said verdict is set aside, and a new trial granted, upon the condition that the plaintiff (or, de- fendant) pay the costs of the former trial. And the cause is continued to the regular term of this court, for the new trial to be there had. 9. New trial at regular term. 1 Rob. Prac. 498. 500. This day came the parties by their attorneys, and thereupon a jury of freeholders was impannelled in the manner in which other juries are impannelled, and being so impannelled, they were charged on oath in the manner prescribed by the statute, and the court admitted before them &c. (as in No. 5.) 10. Court adjourned in consequence of jury's not agreeing. 1 Rob. Prac. 497, 8. (As in No. 5. to) and the said jury, after hearing the evi- dence and the arguments of counsel, were sent out of court to consult of their verdict, and after some time, not having agreed in their verdict, by consent of the parties were adjourned till monday morning, eleven o'clock, till which time the court is ad- journed. 1 1 . Jury failing to agree, juror withdrawn, and cause continued till the next term. Sess. Acts 1833-4, p. 76. ch. 65. (As last, to) and after some time returned, and declared that they could not agree in a verdict. Whereupon, by consent of the parties and with the assent of the court, J. R. one of the jurors aforesaid was withdrawn, and the rest of the jury from rendering their verdict discharged. And the cause is continued till the next regular court of this county, when a jury of free- holders, summoned in the ordinary manner, is to be impannelled for the trial of the same. 12. After jury had failed to agree, new jury impannelled at regular court. Sess. Acts 1833-4, p. 76. ch. 65. This day came the parties by their attorneys, and thereupon a jury of freeholders, summoned in the ordinary manner, to wit, A. B. &c. were impannelled for the trial of this cause, and 198 Unlawful entry or detainer. charged on oath in the manner prescribed by the statute, and the court admitted before them &c. (as in No. 5.) 13. No court having been formed on the day appointed, jury impan- nelled at the next court. Sess. Acts 1833-4, p. 76. ch. 65. The justices summoned to form a court on the day of , for the trial of a complaint of E. F. against G. H. for forcibly turning him out of possession (or, unlawfully turning him out of possession or, unlawfully holding him out of pos- session) of a certain tenement, containing &c. lying &c. having failed to meet, and no court having been formed on the day ap- pointed, a jury of freeholders, summoned in the ordinary man- ner, to wit, A. B. &c. were this day impannelled for the trial of the cause, and charged on oath in the manner prescribed by the statute, and the court admitted before them &c. (as in No. 5.) 14. Bills of exception admitted to opinions of the court. 1 Rob. Prac. 499. Memorandum. In the course of the trial of the foregoing complaint, certain questions of law were submitted by the de- fendant and decided by the court, and the defendant excepted to the opinions, and tendered his bills of exception, which were received, signed and sealed by the court, and ordered to be made part of the record in the cause. 15. Certificate of counsel to procure suspension of the execution. 1 Rob. Prac. 499. I, , counsel practising in the court of H. county, do certify that in my opinion the judgment this day rendered in the said court against C. D. upon the complaint of A. B. is erro- neous, and that I mean to apply for a writ of error or superse- deas to correct it. Given under my hand this day of . 16. Order directing execution of the judgment to be suspended. I Rob. Prac. 499. After the entry of the judgment against the defendant, proceed as follows: Whereupon the defendant produced the certificate of counsel practising in the court, that in his opinion the judgment is erroneous, and that he means to apply for a writ of error or supersedeas to correct it ; and on the motion of the said defen- dant, the execution of the judgment is to be suspended for the period of twenty days, provided bond be given in the penalty Unlawful entry or detainer. 199 of $ , payable to the plaintiff, with good security, and with such condition as the law directs ; which bond being there- upon given, the execution of the said judgment is suspended accordingly, for the said period of twenty days. 1 7. Bond given at the time of procuring a suspension of the execu- tion. 1 Rob. Prac. 499. Know all men &c. The condition of the above obligation is such, that whereas, by the judgment of the court of H. county, this day rendered, the above named A. B. has recovered against the above bound C. D. possession of a certain tenement, con- taining &c. lying &c. and on the motion of the said C. D. who produced the certificate of counsel practising in the court, that in his opinion the judgment is erroneous, and that he means to apply for a writ of error or supersedeas to correct it, the court has suspended the execution of the said judgment for the period of twenty days : Now if the said C. D. shall indemnify the said A. B. for all waste or injury to the tenement and its appurte- nances, which may be done or permitted by the said C. D. or any claiming under him, then the above obligation is to be void, otherwise to remain in full force. 200 Waste. CHAPTER XXII. WASTE. 1. Summons in action of waste by the remainderman against tenant for life. 1 Rob. Prac. 500. */ / that you summon J. G. and F. his wife, that they be before &c. to answer J. R. and A. his wife of a plea wherefore, when, by the laws of this commonwealth, tenant for term of life cannot lawfully commit waste, during his estate, of the houses, woods, or any other thing belonging to the tenement held by him, without special license in writing so to do, the said J. G. and F. his wife, who hold for the life of the said jP. a tene- ment in the county of C. of which the remainder is in the said A. the wife of J. R. have committed waste, during their said es- tate, of the houses, woods and other things belonging to the said tenement, without any such license as aforesaid, to the dishe- rison of the said J. R. and A. his wife. And have &c. 2. Declaration in action of waste by the remainderman against tenant for life. 1 Rob. Prac. 500. N.*A. S. an infant under the age of 21 years, only child and heir of W. S. by J.J. TV. her next friend, complains of E. S., of a plea for this, to wit ; that, by the laws of this commonwealth, tenant for term of life cannot lawfully commit waste, during his or her estate, of the houses, woods, or any other thing belong- ing to the tenement held by him or her, without special license in writing so to do ; and a certain tenement of 160 acres of land, 10 acres of pasture and 60 acres of wood, situate, lying and being in the county aforesaid, was, by R. S. the elder, late of the said county, deceased, by his last will and testament, bear- ing date the fifth day of June 1782, and duly proved and re- corded, devised to the said E. S. during her life, and after her death to W. S. aforesaid and his heirs forever, by virtue of which devise the said E. S. after the death of the said R. en- tered upon and took possession of the said premises, and still is possessed thereof, and the aforesaid W. S. who was living at the death of the said R. was, by virtue of the said devise to him as aforesaid, during his life, seized thereof as tenant in fee Waste. 201 simple in remainder, and being so thereof seized at the time of his death, died intestate, leaving the plaintiff his only child and heir, who thereupon became seized, as tenant in fee simple in remainder, of all and singular the premises aforesaid, and ever since has continued seized of the same ; and the said E. S. being so possessed as aforesaid of the said premises for the term of her life, she the said E. S. on the first day of January 1785, and at di- vers days and times since, at the county of H. aforesaid, did commit waste of the same, that is to say, 5000 pine timber trees, 10000 oak timber trees, and 2000 poplar trees, which were growing on the said premises, of the price of 12 shillings for each tree, did cut down, sell and carry away, and 20000 other oak timber trees, in the wood aforesaid here and there growing, and on the premises aforesaid standing, of the price of 10 shillings each, did wantonly, needlessly and vvastefully cut down and destroy, to the disinheriting of the said plaintiff. Whereby the said plaintiff is injured and hath sustained damage to the value of $ ; and therefore she brings suit &c. And she also brings here into court the last will and testament of the aforesaid R- S. deceased, with the probate thereof. 3. Attachment awarded in action of waste. 1 Rob. Prac. 501. The plaintiff, by her next friend, this day filed her declaration against the defendant ; and the sheriff having made return that he had duly summoned the defendant, and she not appearing, on the motion of the plaintiff, an attachment is awarded her against the defendant, returnable here at the next term. 4. Process of attachment. 1 Rob. Prac. 501. that you attach C. D. so that you have his body before &c. to answer us as well of a certain contempt by him to us of- fered, as it is said, as upon those things which to him shall be then and there objected, and further to do and receive what our said court shall in that part consider. And this you shall in no wise omit. And have &c. (Endorse] For not appearing pursuant to a summons in an action of waste brought by A. B. against the within named C. D. 5. Distress awarded. 1 Rob. Prac. 501. The sheriff having made return on the attachment awarded against the defendant, that he had executed the same, and the said defendant still failing to appear, on the motion of the 26 202 Waste. plaintiff by her next friend, process of distress is awarded her against the defendant, returnable to the next term. 6. Process of distress. 1 Rob. Prac. 501. that you distrain E. S. by all her lands and chattels within your bailiwick, so that neither she, nor any through her, lay hands on the same until you shall receive another precept from us, and that of the issues of the same you answer to us, so that you have her body before the justices of the court of our said county, at the courthouse, on the first monday in November next, to answer &c. (as in the summons) and also to hear her judgment of her many defaults. And have &c. 7. Defendant not appearing upon the distress, judgment by default, and process awarded to have the waste enquired of. 1 Rob. Prac. 501. The sheriff having made return on the process of distress awarded against the defendant, that he had distrained her by all her lands and chattels within his bailiwick, as by the said writ he was commanded, and the said defendant still failing to appear; on the motion of the plaintiff by her next friend, it is considered that the plaintiff recover against the defendant the tenement wasted, and that the said defendant recompense the plaintiff in three times the amount at which the waste shall be assessed. And process is awarded, to the sheriff of this county directed, commanding him in his proper person to repair to the tenement aforesaid, and there, by a jury, enquire of the waste ; which process is to be returnable to the next term. 8. Process to have the waste enquired of. I Rob. Prac. 501. Whereas we lately commanded you that you should distrain E. S. by all her lands and chattels in your bailiwick, so that &c. (reciting the process of distress in the past tense, to the words "to the disherison of the said ," inclusive) and upon the said process you made return that &c. (reciting the return.) Nevertheless the said E. S. did not appear upon the said dis- tress, but again made default. Whereupon, according to the statute in that case made, it was considered in our said court that in your proper person you shall repair to the tenement afore- said, and there, by a jury, enquire of the waste committed upon the same. Therefore we command you that in your proper per- son you repair to the said tenement, that is to say, unto &c. (here specifying the tenement as described in the declaration) and Waste. 203 there cause to come before you twelve good and lawful men of that vicinage, by whom the truth of the matter may the better be known, and whom neither of the parties to the action touch by any affinity ; and by their oaths diligently enquire what waste the aforesaid E. has committed upon the said tenement, that is to say, in &c. (here setting forth the nature of the waste as al- leged in the declaration) to the disherison of the said ; and the inquisition which you shall take herein, you have before the court of our said county, at the courthouse, on the first mon- day in March next. And have also then &c. 9. Writ of enquiry returned, judgment by default set aside, and issue joined. 1 Rob. Prac. 500. 501. B. C. gent, sheriff of this county made return, that pursuant to the writ of enquiry awarded in this cause, and to the said sheriff directed, he went in his proper person, on the day of , to the tenement in the said writ mentioned, and there caused the waste to be enquired of by a jury, whose verdict ap- pears by a certain inquisition returned with the writ. Where- upon came as well the defendant by her attorney, as the plain- tiff by her next friend, and on the motion of the defendant, who offers to plead to issue immediately, it is ordered that the judg- ment obtained against her in the office, and the writ of enquiry then awarded, and the proceedings had thereupon, be set aside, she paying the costs of those proceedings. And the said defen- dant, for plea, saith that she has not committed the waste com- plained of in the declaration, and of this she puts herself upon the country ; and the plaintiff likewise. 10. Verdict for plaintiff as to part, and judgment thereupon. 1 Rob. Prac. 500. 501. This day came as well the plaintiff by her next friend, as the defendant by her attorney, and thereupon came a jury, to wit, /. M. &c. who being elected, tried and sworn the truth to speak upon the issue joined, upon their oath do say that the defendant, during her estate, has committed waste of the timber trees be- longing to three acres of land, parcel of the tenement in the de- claration mentioned, which three acres are bounded as follows, that is to say, (describing the parcel as in the verdict) and that she has committed no waste of any thing belonging to the resi- due of the said tenement; and farther the said jurors upon their oath do say that the damages of the plaintiff, by occasion of the waste on the said three acres of land, are $ , and the waste on the same is accordingly assessed by them at that amount. 204 Waste. Therefore it is considered by the court that the plaintiff recover against the defendant her seisin of the three acres of land so wasted as aforesaid, together with $ as a recompense for her injury, being three times the amount at which the waste is assessed. And the said defendant in mercy &c. And a writ is awarded the plaintiff, to cause her to have her full seisin of the said three acres of land so wasted as aforesaid. Partition. 205 CHAPTER XXIII. PARTITION. 1. Summons in partition. 1 Rob. Prac. 501, 2. We command you that you summon C. D. if he be found within your bailiwick, to appear before &c. to answer A. B. of a plea wherefore, when A. B. and C. D. together and undivided hold two messuages and two hundred acres of land, with the appurtenances, lying and being in the county aforesaid, the said C. D. to make partition thereof between them according to the form of the statute in that case made and provided, doth gain- say, and the same to be done, unjustly doth not permit. And have &c. 2. Judgment confessed. 1 Rob. Prac. 501, 2. A. H. widow, plaintiff, } Upon a writ for making against > partition of a tenement of T. J. and M. his wife, defendants. ) 200 acres of land, with the appurtenances, in this county. This day came as well the plaintiff by her attorney, as the de- fendants in their proper persons, and the defendants say that they cannot gainsay the action of the plaintiff, and grant that partition between the defendants and the plaintiff, of the tene- ment aforesaid with the appurtenances, be made &c. There- fore it is considered by the court that partition between them, of the tenement aforesaid with the appurtenances, be made &c. but that the defendants be not amerced, because they came the first day, according to the summons. And for making such par- tition, the court doth award a writ de partitione facienda, accord- ing to the form devised in the general court and adapted to the case. 3. Writ de partitione facienda. 1 Rob. Prac. 501, 2. Whereas T. I. and M. his wife were lately summoned in our court of our county aforesaid, before our justices of our said court, at the courthouse, to answer A. H. widow, of a plea 206 Partition. wherefore, when the said A. H. and T. 1. and M. his wife, to- gether and undivided hold 2400 acres of land, with the appur- tenances, in the said county, the said T. 1. and M. his wife, that partition thereof should be made between them, according to the form of the statute in that case made and provided, refused, and the same to be done did not permit, unjustly &c. and the said T. I. and M. his wife, afterwards in our said court, granted that partition thereof should be made ; whereupon it is consi- dered in our said court, before our said justices, at the courthouse aforesaid, that partition should be made between them of the tenement aforesaid : Therefore, we command you, that having taken with you 12 good and lawful men of your county, by whom the truth of the matter may be the better known, in your pro- per person you go to the tenement aforesaid, with the appurte- nances, and there, by their oath, in the presence of the parties aforesaid, by you to be warned, if they are willing to be pre- sent, the tenement aforesaid with the appurtenances, by the oath of the good and lawful men aforesaid, respect being had to the true value thereof, into two equal parts you cause to be divided, and deliver and assign one part thereof to the said A. H. and the other part thereof to the said T. 1. and M. bis wife, to be held in severally, so that neither the said A. H. nor the said T. I. and M. his wife may have more of the tenements aforesaid with the appurtenances than they ought to have, so that as well the said A. H. as the said T. I. and M. his wife, of their pur- party may apportion themselves ; and that you have such par- tition, distinctly and openly made, before our justices of our said county court, at the courthouse, on the first monday in next month, under your seal and the seals of those by whose oath you shall make such partition ; and have then there the names of those by whose oath you shall make the said partition, and this writ. Witness &c. 4. Return by sheriff", and partition established. 1 Rob Prac. 500. 501. This day came as well the plaintiff by her attorney, as the defendants in their proper persons, and the sheriff, to wit, A. B. now returned here a certain partition between the parties, of the tenement aforesaid with the appurtenances, by him the said sheriff, by virtue of the said writ, by the oath of 12 good and lawful men, made, in these words: "I, A. B" &c. Therefore it is considered by the court that the partition aforesaid be held stable forever &c. Executions. 207 CHAPTER XXIV. EXECUTIONS. To whom executions are directed, when they are returnable, and by whom they bear teste, is stated in 1 Rob. Prac. 507, 8, 9. A sugges- tion is there made in relation to the return day of executions issuing from the circuit courts, which has been since adopted by an act passed at the session of 1834-5. Sess. Acts, p. 36. ch. 49. By the act in 1 R. C. 1819, p. 524. I . it is declared that the forms of the several writs of execution shall be as therein stated, mutatis mu- tandis. In adapting those forms to the various cases which arise, there are some parts which it is necessary to change, and those parts are changed accordingly in the forms which follow. 1. Fieri facias in debt, for debt and costs. The commonwealth of Virginia to the sheriff of county, greeting : We command you that of the goods and chattels of A. B. late in your bailiwick, you cause to be made the sum of , which C. D. lately in our circuit superior court of law and chancery for the county of H. (or, in our county court of H.) hath recovered against him for debt, also the sum of , which to the said C. D. in the same court were adjudged for his costs in that suit expended, whereof the said A. B. is convicted as ap- pears to us of record, and that you have the said sums of money before the judge (or, justices) of our said court, on the first day of the next term (or, on the day of next) to render to the said C. D. of the debt and costs aforesaid. And have then there this writ. Witness &c. If the judgment be on a penal obligation, make the following en- dorsement: Memorandum. This execution is to be discharged by the payment of , with interest thereon to be computed after the rate of six per centum per annum from the day of till payment, and the costs within mentioned. 2. Fieri facias in debt, for debt, interest and costs. you cause to be made the sum of , with interest thereon to be computed after the rate of six per centum per an- num from the day of till payment, which C. D. late- ly in &c. hath recovered against him as well for a certain debt as for interest thereon ; also &c. 208 Executions. 3. Fieri facias in debt qui tarn. you cause to be made the sum of , which C. D. lately in &c. as well for us as for himself hath recovered against the said A. B. for debt ; also &c. 4. Fieri facias in case upon a promise, for damages and costs. you cause to be made the sum of , which C. D. late- ly in &c. hath recovered against him for his damages which he sustained by reason of his the said A. B.'s not performing a cer- tain promise and assumption (or, certain promises and assump- tions) to the said C. D. by the said A.B. lately made ; also &c. 5. Fi. fa. in case upon a promise, for damages, interest and costs. you cause to be made the sum of , with interest thereon to be computed after the rate of six per centum per an- num from the day of' till payment, which C. D. lately in &c. hath recovered against him as well for his damages which &c. as for interest on those damages ; also &c. 6. Fi. fa. in covenant. As in case upon a promise, inserting, in lieu of the words " by reason of his not performing a certain promise and assumption to the said C. D. by the said A. B." the following : " by occasion of a breach of a certain covenant between the said A. B. and C. D." 7. Fi. fa. in trespass. by occasion of a certain trespass by the said A. B. to the said C. D. offered. 8. Fi. fa. in case for a tort. by occasion of a certain grievance then lately commit- ted by the said A. B. to the said C. D. 9. Fi. fa. for plaintiff" in replevin. by occasion of the taking and unjustly detaining the goods and chattels of the said A. B. by the said C. D. Executions. 209 10. Fi. fa. for defendant in replevin, against the tenant. We command you that of the goods and chattels of A. B. late in your bailiwick, you cause to be made $ , with in- terest thereon to be computed after the rate of six per centum per annum from the day of till payment, which C. D. lately in &c. hath recovered against him for rent in arrear and legal interest thereon, also $ which the said C. D. recovered in the same court for the damages sustained by him by the said A. B.'s suing out a writ of replevin, and the farther sum of $ adjudged to him the said C. D. for his costs by him about his defence of that writ expended ; whereof the said A. B. is convict as appears of record ; and that you have the said sums of money before &c. at &c. on &c. to render to the said C. D. of the rent, interest, damages and costs aforesaid. And have &c. 11. Fi. fa. for defendant in replevin, against plaintiff" who was not the tenant. (As last, to) which C. D. lately in &c. hath recovered against the said A. B. as well for the value of certain property dis- trained for rent due him from E. F. and replevied by the said A. B. as for interest thereon from the date of the writ of re- plevin, also $ which the said C. D. recovered in the same court for the damages sustained by him by occasion of the suing out that writ, and the further sum of $ adjudged to him the said C. D. for his costs by him about his defence expended ; whereof &c. and that you have &c. to render to the said C. D. of the value, interest, damages and costs aforesaid. And have &c. 12. Fi. fa. for plaintiff in ejectment, for his damages and costs. Same as in other cases for damages and costs, except that, after the words " by reason of" or " by occasion of," will be inserted " a certain trespass and ejectment (or, certain trespasses and ejectments) lately committed by the said C. D." 13. Fi. fa. for demandant in a writ of right, for his damages and costs. Same as in other cases for damages and costs, except that, after the words " by reason of" or " by occasion of," will be inserted " the said C. DSs withholding possession of a certain tenement which the said A. B. demanded against him." 27 210 Executions. 14. Fi. fa for demandant in dower, for her damages and costs. that of the goods and chattels of E. F. in your baili- wick, you cause to be made $ , which A. D. widow of C. D. deceased, lately in &c. hath recovered against him for her damages because of the said E. F.'s deforcing her of her dower of certain lands whereof her husband died seized, and which dower she has recovered, also $ which to the said A. D. in the same court were adjudged for her costs in that suit ex- pended, whereof the said E. F. is convicted as appears of re- cord ; and that you have &c. 15. Fi. fa. for damages recovered in action of waste. that of the goods and chattels of C. D. in your baili- wick, you cause to be made $ , which A. B. lately in &c. recovered against the said C. D. in an action against him for committing waste of things belonging to a tenement whereof the said C. D. was tenant for life, and the reversion whereof was in the said A. B. the said sum of $ being three times the amount at which the waste was assessed ; whereof the said C. D. is convicted as appears of record ; and that you have &c. 16. Fi. fa. for costs recovered by plaintiff on complaint for unlawful entry or detainer. that of &c. you cause &c. which A. B. lately in &c. hath recovered against the said C. D. for his costs by him expended in prosecuting a complaint against the said C. D. for forcibly turning him out of possession (or, unlawfully turning him out of possession or, unlawfully holding him out of possession) of a certain tenement ; whereof the said C. D. is convicted as ap- pears of record ; and that you have &c. 17. Fi. fa. for defendant, for costs, or for costs and damages. you cause to be made the sum of , which C. D. lately in &c. hath recovered against the said A. B. for his costs by him expended about his defence of a certain action of at the suit of the said A. B. (or, if in ejectment, a certain action of trespass and ejectment at the suit of John Doe lessee of the said A. B.) If damages be recovered, continue as follows : and also five dol- lars, which the said C. D. in the same court hath recovered against the said A. B. because of his failure (or, the failure of the said John Doe) to prosecute his said suit; whereof &c. Executions. 211 18. Fi. fa. after dissolution of an injunction. As in other cases, until after the words " for his costs &c. in that behalf expended," and then say " and also $ , to which the said is entitled for his damages by reason of the said 's retarding the execution of the judgment afore- said by an injunction ; whereof the said is convict" &c. Endorse This execution is not to be levied for the interest on the within mentioned sum of $ from the day of till the day of ; the damages within men- tioned being in lieu thereof. 19. Fi. fa. upon a judgment of a county court, affirming a judg- ment of a justice of the peace. that of the goods and chattels of S. A. and B. D. in your bailiwick, you cause to be made $20. with interest there- on to be computed after the rate of six per centum per annum from the 2d day of January 1821 till the 6th day of March 1822, and $ 1.04 cents, which W. C. lately recovered against the said S. A. by the judgment of a justice of the peace for the said county of Henrico, together with damages after the rate of ten per centum per annum upon the whole amount of the said judg- ment from the said 6th day of March 1822 till payment; also $ 3.81 cents, which to the said W. C. lately in our court of our said county of H. were adjudged for his costs by him expended by reason of the appeal of the said S. A. from the judgment aforesaid ; upon which appeal the said S. A. gave the said B. D. as his surety for the payment of the said judgment, and all costs and damages, in case the same should be affirmed ; and the same, in our said county court, has been affirmed ; whereof the said S. A. and B. D. are convict &c. Endorse No security to be taken. 20. Fi. fa. upon a judgment against an executor or administrator, to be levied de bonis. that of the goods and chattels in your bailiwick which were of deceased at the time of his death, in the hands of executrix of his last will and testament (or, adminis- tratrix of his personal estate) to be administered, you cause to be made the sum of &c. which , lately in &c. hath reco- vered against the said as executrix (or, administratrix) as aforesaid, &c. 212 Executions. 21. Fi. fa. returnable to rules. Instead of " And that you have &c." say " And how you shall have executed this writ, make known at the clerk's office of our said circuit superior court at the rules to be holden for the said court on the first monday in next. And have then there this writ. Witness &c." 22. Endorsement by clerk upon execution issued on a judgment for a debt contracted before the first of August 1837. Sess. Acts 1836-7, p. 46. ch. 69. 2. This debt was contracted before the first day of August eigh- teen hundred and thirty-seven. 23- Endorsement by sheriff upon fi. fa. when it is delivered to him to be executed. 1 Rob. Prac. 510. This writ was received by me on the day of . (Where the case makes it proper, add :) Another like writ was delivered against the same person on the same day, in favour of A. B. The writ of A. B. was the first delivered. 24. Affidavit of a person who wishes the benefit of the act exempting a portion of the property of poor debtors. Sess. Acts 1836-7, p. 46. ch. 69. $ 1. H. county, to wit : C. D. maketh oath and saith that he hath no personal property except what is exempted by an act of as- sembly passed March 30. 1837, entitled "an 'act exempting a certain portion of the property of poor debtors from execution and other liabilities," and what has been surrendered to the she- rift' of the county of H. to satisfy an execution against him at the suit of A. B. (Signed) C. D. Sworn to this day of , before me, a justice of the peace for the county of H. E. F. 25. Return upon fi. fa. prescribed by statute. 1 Rob. Prac. 536. The Ji. fa. is to be returned according to the form given in 1 R. C. 1819, p. 526. when that form is suited to the case. Executions. 213 26. Return offi. fa. which is levied upon goods on leased premises whereon rent is reserved but not due. 1 Rob. Prac. 524, 5. By virtue of this writ, I levied the same, on the day of , upon the following goods and chattels, to wit, (here spe- cify them) upon certain premises leased by A. B. to the within named C. D. whereon a rent of $ a year was reserved, pay- able the day of . The tenant not tendering bond with sureties for the payment of the rent at the time it would become due, I proceeded, after advertising the said goods and chattels according to law, to sell the same by auction, on the day of , at . In the first place 1 sold so much as was necessary for payment of the rent, on a credit till the said day of , the purchasers giving good security for the payment, and I assigned to the landlord their bonds, to wit, the bond of wilh his surety, for $ , and the bond of with his surety, for $ , as will appear by the landlord's receipt for the said bonds, which is herewith returned. The residue of the said goods and chattels were sold for ready money, and produced $ , of which I have retained $ for my commissions, and the balance I have paid to the plaintiff, as will appear by his receipt hereon. An account of the sales is returned herewith, as the law directs. 27. Return of fi. fa. which is levied on goods on leased premises whereon rent is in arrear. 1 Rob. Prac. 524, 5. The following goods and chattels of the defendant, to wit, &c. being upon a tenement leased to him by A. B. for S a year,* and there being more than one year's rent in arrear, the plaintiff paid to the said A. B. one year's rent. Whereupon I levied, on the day of , upon the said goods and chattels, as well for the money so paid for rent, as for the execution money, and after publishing notice of the time and place of sale according to law, I proceeded, on the day of , at , to sell the said goods and chattels by auction, for the best price that could be got for the same. An account of the sales is returned herewith. The amount thereof is $ , of which I have retained $ for my commissions, and applied $ to repay the plaintiff the money paid by him for rent. The balance of $ I have paid to the said plaintiff in part of this execution. His receipts for the money paid him are hereon endorsed. * If there be less than one year's rent in arrear, then, in lieu of the words in italics, insert the following : " and $ being due for the rent of the said premises, the plaintiff paid to the said A. B. the rent so due." 214 Executions. 28. Return of the levy of a fi. fa. where rent is claimed and the va- lidity of the claim is doubted. 1 Rob. Prac. 525, 6. By virtue of this writ, I levied the same on the following goods and chattels, to wit, (here specify them.) At the time of taking the same, A. B. claimed that there should be paid to him $ , which he alleged to be due him for the rent of the premises upon which the said goods and chattels were lying. But the execu- tion creditor insisting that the said A. B. was entitled to nothing, I have as yet paid nothing on account of rent. After publish- ing notice of the time and place of sale according to law, I pro- ceeded, on the day of , to sell by auction the goods and chattels taken, for the best price that could be got for the same. An account of the sales is herewith returned, specifying the several articles sold, the persons to whom sold, and the prices thereof. The whole amount of sales being $ , I re- tain $ for my commissions, and the balance of $ I have here in court, so that the court may dispose of the same according to the respective rights of the said A. B. and the exe- cution creditor. 29. Indemnifying bond. 1 Rob. Prac. 530. and 63 to 66. Know all men by these presents that we A. B. and G. H. are held and firmly bound unto E. F. high sheriff of the county of H. in the sum of $ , to be paid to the said E. F. his execu- tors, administrators or assigns ; for the payment whereof we bind ourselves jointly and severally, and each of us binds his heirs, executors and administrators. Sealed with our seals and dated this : day of in the year . The condition of the above obligation is such, that whereas the above named A. B. upon a judgment obtained by him in the circuit superior court of law and chancery for the county of H. against C. D. has sued out a writ of fieri facias for taking the goods and chattels of the said C. D. to satisfy him the said A. B. the sum of $ with interest thereon from the day of till paid, and $ costs, which writ is directed to the sheriff of the said county, and J. K. deputy for E. F. high sheriff of the said county, has levied the said execution on the following property, to wit, (here specify it) and a doubt arising whether the right of the said property is in the said C. D. or not, the said sheriff" has applied to the said A. B. for an indemnifying bond, according to the statute in such case : Now if the said A. B. and G. H. their heirs, executors or administrators, shall indem- nify the said E. F. the sheriff aforesaid, against all damages which he may sustain in consequence of the seizure or sale of Executions. 215 the property on which the said execution has been levied, and moreover shall pay and satisfy to any person or persons claim- ing title to the said property all damages which such person or persons may sustain in consequence of such seizure or sale, and shall warrant and defend to the purchaser or purchasers of the property such interest and estate therein as shall be sold under the execution, then the above obligation is to be void, otherwise it is to remain in full force. 30. Return where plaintiff" refuses to give indemnifying bond, and property is restored. 1 Rob. Prac. 63. I levied this execution on the following property, to wit, (here specify it) and a doubt arising whether the right of the said property was in the debtor or not, I gave the plaintiff notice, a reasonable time before the day appointed for the sale thereof, that an indemnifying bond with security would be required of him, conditioned according to the statute in such case, which bond the plaintiff refused to give, and on the day appointed for the sale, I restored the property to the party from whose posses- sion it was taken. 31. Return where indemnifying bond is given. I Rob. Prac. 63. I levied this execution on the following property, to wit, (here specify it) and a doubt arising whether the right of the said pro- perty was in the debtor or not, I applied to the plaintiff for an indemnifying bond according to the statute, which he gave, with C. D. his surety, and the same is herewith returned. (The re- turn will go on to state whatever else is done ; for the manner of doing which, refer to such of the other returns in this chap- ter as may be suited to the case.) 32. Bond for the forthcoming of property levied on. 1 Rob. Prac. 529, SO^and 591 to 602. Know all men by these presents that we C. D. and G. H. are held and firmly bound unto A. B. in the sum of $ , to be paid to the said A. B. his executors, administrators or assigns ; for the payment whereof we bind ourselves jointly and several- ly, and each of us binds his heirs, executors and administrators. Sealed with our seals and dated this day of . The condition of the above obligation is such, that whereas the above named A. B. upon a judgment obtained by him in the circuit superior court of law and chancery for the county of H. against C. D. and E. F. has sued out a writ o(' fieri facias for 216 Executions. taking their goods and chattels, which writ is directed to the sheriff of the said county, and by virtue thereof the following goods and chattels, to wit, (here specify them) have been taken by J. K. deputy for L. M. sheriff of the said county, to satisfy the said execution, the amount whereof at this time, including the sheriff's fee and commissions, is $ ; and the said C. D. the owner of the goods and chattels so taken, desires that the said goods and chattels should be suffered to remain in his pos- session and at his risk, until the day of sale, and has offered to give sufficient security to the sheriff to have the same forth- coming at that time : Now if the said C. D. shall have the said goods and chattels forthcoming on the day of next, at , being the day and place of sale appointed by the sheriff, then the above obligation is to be void, otherwise it is to remain in full force. 33. Return of fi. fa. levied, where a forthcoming bond is taken, and the property, or some part of it, is not delivered. 1 Rob. Prac. 529, 30. By virtue of this writ, the following goods and chattels, to wit, (here specify them) were taken by me to satisfy the same, and I appointed the day of , at , to make the sale. C. D. the owner thereof, wishing the said goods and chat- tels to remain in his possession until the day of sale, I took a bond from him, with Gf. H. as surety, to have the same forth- coming at that time. Notice of the time and place of sale was published as the law directs. But on the day of sale,* only a part of the property was delivered, to wit, (here specify the part delivered.) I sold by auction the property so .delivered, for the best price that could be got for the same, and the amount of sales is only $ , as will appear by the account of sales here- with returned. $ is retained by me for my fee and com- mission, and the balance of $ has been paid to the plain- tiff, and his receipt taken for the same hereon. The forthcoming bond is herewith returned. * If no part of the property was delivered, after the words " on the day of sale" add merely " no part of the property was delivered, and the forthcoming bond being thereby forfeited, I return the same herewith." 34. Return off,, fa. levied on slaves, mules, work-oxen and horses. 1 Rob. Prac. 530, 31. 533. 536. By virtue of this writ, I levied the same, on the day of > upon the following slaves, mules, work-oxen and horses, Executions. 217 to wit, (here name the slaves and describe the other property) and at the term of the county court, I advertised that the same would be sold at the courthouse on the first day of the succeeding term, between the hours of twelve o'clock and four o'clock in the afternoon. 1 also published notice of the time and place of sale, at , a public place near the residence of the debtor, more than ten days before the sale. On the first day of the court, within the hours aforesaid, sales were made of the property, an account of which sales is herewith returned. The whole amount of sales is $ , from which I have deduct- ed $ for my commissions, and $ for supporting the slaves, horses, rnules and oxen from the time they were levied on until they were sold, and the balance of $ I have paid to the plaintiff, as appears by his receipt hereon. 35. Writing of debtor authorizing officer to dispense with the provi- sions of the act of March 3. 1821. 1 Rob. Prac. 530, 31. Certain slaves, mules, work-oxen and horses of mine having been taken by deputy for sheriff of H. county, under an execution from the court of the said county, I authorize the officer who levied the said execution to dispense with the provisions of the act of March 3. 1821, directing sales of such property to be made at the courthouse of the county, on the first day of the usual term of the court of the county succeeding that on which it is advertised, between the hours of twelve o'clock and four o'clock in the afternoon. And I consent that the same proceedings may be had as if the said act had never passed. 36. Return of officer, when act of March 3. 1821 is dispensed with. 1 Rob. Prac. 530, 31. 536. By virtue of this writ, I levied the same, on the day of , upon the following slaves, mules, work-oxen and horses, to wit, (here name the slaves and describe the other property.) On (or, before) the court-day for advertising the property, the debtor, in writing, authorized me to dispense with the provisions of the act of March 3. 1821. Whereupon I published notice, at the door of the courthouse of the county, on the first day of court, and at , a public place near the residence of the debtor, ten days before the sale, that the property would be sold at , on the day of , between the hours of ten in the morning and four in the afternoon, and the property was then and there sold by auction, for the best price that could 28 218 Executions. be got for the same. An account of the sales is herewith re- turned. The whole amount &c. (as in No. 34.) 37. Return where money is received without any levy. 1 Rob. Prac. 532. I have received from the defendant $ , the amount of this execution, of which I have retained $ for my com- missions, and the balance of $ I have paid to the plain- tiff, as appears by his receipt hereon. 38. Return where money is received after the return day, under an execution levied previously. 1 Rob. Prac. 532. After stating the levy, the taking the forthcoming bond, if any, and the advertisement, proceed as follows: On the day appointed for the sale, but before the same was commenced, the said paid me $ , the amount of the execution, and kept his proper- ty (or, his property was restored to him.) I have retained $ for my commissions &c. (as in other cases.) 39. Return where there is an execution against the goods and chattels of the person to whom the money in the officer's hands is payable. 1 Rob. Prac. 511, 12. 533, 4. After proceeding as in other cases, as far as will shew the net amount in the officer's hands, continue as follows: On the day of , a writ of Jieri facias was delivered to me against the goods and chattels of the said C. D. in favour of A. B. from the court of H. county, for &c. in consequence whereof I now bring into court the said sum of $ , made for the said C. D. under this execution, so that the court may dispose of the same. 40. Order directing money made under execution in favour of a per- son, to be paid in satisfaction of an execution against him. 1 Rob. Prac. 534, 5. Upon the writ of Jieri facias sued out by C. D. against the goods and chattels of E. F. directed to the sheriff of this coun- ty, the said sheriff this day made a return to the following ef- fect, to wit, (here state it.) Whereupon, the court being satis- fied that the legal and equitable right to the money made by the sheriff is in the said C. D. and the execution against his goods and chattels, in the hands of the same sheriff, appearing to be for more than the money made, the court doth direct the sheriff Executions. 219 to pay over the said money in satisfaction of the said execution against the goods and chattels of the said C. D. 41. Return where a surplus of the proceeds of goods sold under exe- cution remains after satisfying it. 1 Rob. Prac. 534, 5. After proceeding as in other cases, as far as will shew the amount of sales, continue as follows : Out of the proceeds of sale, after retaining $ for my fee and commissions, and $ for supporting the while they were in my possession, I have satisfied this execution by paying $ , the amount thereof, to the plaintiff, as appears by his receipt hereon ; and the surplus, amounting to $ , has been paid to the defen- dant, as will appear by his receipt. 42. Return where property, of which the sale is indemnified, sells for more than enough to satisfy the execution. 1 Rob. Prac. 535. After proceeding as far as will shew the amount of sales, continue as follows : Out of the proceeds of sale, after retaining $ ; for my fee and commissions, and $ for supporting the while they were in my possession, 1 have satisfied this execution by paying $ , the amount thereof, to the plain- tiff, as appears by his receipt hereon. After making such satis- faction, there remains in my hands a surplus of $ , which I now bring into court, so that the court may make such order for the disposition thereof until the question about the title to the property is decided, as justice and the rights of the parties shall require. 43. Return where the goods taken remain in the sheriff's hands until an injunction is obtained to the judgment. 1 Rob. Prac. 535, 6. After stating the levy, the talcing the forthcoming bond, if any, and the advertisement, proceed as follows : Afterwards, and before any sale was made under this execution, the defendant obtained from the circuit superior court of law and chancery for the coun- ty of H. an injunction to the judgment on which the execution issued, and the goods and chattels taken were thereupon re- stored to the defendant. 220 Executions. 44. Return where money is received by sheriff, but an injunction is obtained to the execution before payment to plaintiff. 1 Rob. Prac. 536. After proceeding as in other cases, as far as will shew the amount received, continue as follows: The defendant afterwards obtained an injunction to the execution, before the money so re- ceived was paid to the plaintiff, and thereupon I repaid the said money to the defendant, as appears by his receipt hereon. 45. Return where goods remain in sheriff's hands unsold. 1 Rob. Prac. 536, 7. After stating the levy, the taking the forthcoming bond, if any, and the advertisement, proceed as follows : On the day and at the place appointed for the sale, I attempted to sell by auction the goods and chattels taken, but there were no buyers, and the said goods and chattels remain in my hands unsold. 46. Writ of venditioni exponas. 1 Rob. Prac. 536, 7. When the goods remain unsold in the hands of the officer who took them, the writ of venditioni exponas is directed to such officer, and is- sues in the form prescribed by the act in 1 R. C. 1819, p. 533. 23. 47. Venditioni exponas to a late sheriff. 1 Rob. Prac. 537. The commonwealth of Virginia to J. H. late sheriff of F. county, greeting: We command you that you expose to sale those goods and chattels of J. S. to the value of $641. &c. which, according to our command, you have taken, and which remain in your hands unsold for want of buyers, as you have certified to our judge of &c. to satisfy H. C. the said sum of $ 641. &c. whereof, in our said court, he hath recovered execu- tion against the said J. S. by virtue of a judgment in the said court ; and that you have the same before &c. at &c. on &c. 48. Rule against a late sheriff to shew cause why a distringas should not issue to compel him to sell. 1 Rob. Prac. 537. On the motion of J. Lyle by his attorney, it is ordered that J. Lyon late sheriff of H. county be summoned to appear here on the first day of the next term, to shew cause, if any he can, why a distringas should not issue against him, to compel him to sell those goods and chattels of J. M. and J. O. which were taken by B. W. his deputy, by virtue of a writ ofjieri facias Executions. 221 issued out of this court by the said Lyle against the said M. and O. and which remain unsold, as appears by the said WSs return on the said execution. 49. Rule made absolute, and distringas awarded. 1 Rob. Prac. 537. J. L. late sheriff of H. county having been duly summoned to appear here on this day, to shew cause, if any he could, why a distringas should not issue against him, to compel him &c. (as last) the said /. L. late sheriff as aforesaid was this day solemn- ly called, but failed to appear to shew such cause. Whereupon, on the motion of the said J. Lyle by his attorney, it is ordered that the rule against the said J. L. late sheriff as aforesaid be made absolute, and that a distringas issue against him, to com- pel him to proceed to sell the goods and chattels aforesaid. 50. Writ of distringas against a late sheriff, to compel him to sell. I Rob. Prac. 537. that you distrain J. L. late sheriff of the said county, by all his lands and chattels, so that neither he nor any for him thereto put hands, and that of the issues thereof to us you an- swer, that he may sell those goods and chattels of J. M. and J. O. which, according to our command, he, by B. W. his deputy, took into his hands, that of the said goods and chattels he might cause to be made &c. (as in the fieri facias) which J. L. lately, by the judgment of our &c. recovered against the said J. M. and J. O. which goods and chattels remain unsold, as the said J. L. late sheriff as aforesaid, by the said B. W. his deputy, has cer- tified to the judge of our said court ; and that he may have the produce of the said sales, or sufficient thereof &c. 51. Venditioni exponas far the sale of property taken by an officer who died before selling it.* 1 Rob. Prac. 537, 8. The commonwealth of Virginia to the coroner of the county of H. greeting: Whereas, on the 29th da} r of March last, by our writ of Jieri facias bearing dale on that day, we commanded the then coroner of our said county, that of the goods and chat- tels of S. M. deceased, in the hands of W. D. sheriff of the said county and administrator of the said S. M. deceased, in his baili- wick, he should cause to be made $245.98 cents, with interest thereon to be computed after the rate of six per centum per an- num from the third day of June 1823 till payment, and $ 10.30 cents, which L. J. in our &c. had recovered against the said W. 222 Executions. D. sheriff and administrator as aforesaid, as well for a certain debt and interest thereon, as for his costs by him about his suit in that behalf expended ; and now on behalf of the said L. J. we are informed that T. A. who, at the date of our said writ of fieri facias, was coroner of our said county, did, by virtue of our said writ, take goods and chattels of the said S. M. deceased, in the hands of the said W. D. sheriff as aforesaid, to be admi- nistered, and afterwards died before he sold those goods and chat- tels : Therefore we command you that you receive the said goods and chattels, so taken under execution, from the represen- tatives of the said T. A. deceased, who are hereby required to deliver the same to you, upon your producing to them this writ, and executing to them a receipt for the same; and that you ex- pose to sale the said goods and chattels, to satisfy the said L. J. the said sum of $245.98 cents, with interest thereon as afore- said, and the said $ 10.30 cents. And how you shall have exe- cuted this writ, make known &c. And have &c. * In this case there was no return upon the fieri facias, the coroner having died before he made a return. The plaintiff informed the clerk that the coroner had taken property, and died before he sold it; and the writ of venditioni exponas was issued upon this information, as is therein stated. 52. Writ of elcgit. I Rob. Prac. 540. For the form of the elegit, see 1 R. C. 1819, p. 525. 53. Inqusition under elegit. 1 Rob. Prac. 548. For the form of the inquisition, see 1 R. C. 1819, p. 526. 54. Capias ad satisfaciendum returnable to court. 1 Rob. Prac. 548. We command you that you take A. B. late of , if he be found within your bailiwick, and him safely keep, so that you have his body before our judge of our circuit superior court of law and chancery for the county of H. at the courthouse, on the first day of the next term (or, before our justices of our county court of H. at the courthouse, on the first day of the next term) to satisfy C. D. the sum of$ , which the said C. D. hath recovered against him for debt,* also the sum of $ , which to the said C. D. in the same court were adjudged for his costs in that suit expended, whereof the said A. B. is convicted as ap- pears to us of record. And have then there this writ. Wit- ness &c. * This writ, it will be perceived, is upon a judgment in debt, and is merely for the debt and costs. The change proper to adapt it to any Executions. 223 other case can readily be made by referring to the forms of writs of fieri facias. 55. Capias ad satisfaciendum returnable to rules. 1 Rob. Prac. 548. and him safely keep, until he shall 'satisfy &c. where- of &c. as appears to us of record. And how you shall have executed this writ, make known at the clerk's office of our said circuit superior court, at the rules to be holden for the said court on the first monday in next. And have then there this writ. Witness &c. 56. Ca. sa. after return of no effects on an execution issued by a jus- tice of the peace. 1 Rob. Prac. 570. Whereas A. B. by the judgment of a justice of the peace for the city of Richmond, has lately recovered against C. D. $20. with interest thereon to be computed after the rate of six per centum per annum from the day of till payment, and also his costs by him in that behalf expended ; and the con- stable to whom execution upon the said judgment was directed by a justice of the peace, not being able to find goods and chat- tels to satisfy the same, has made return thereof to the clerk of our court of hustings for the said city, who has docketed the same according to law: Therefore, at the instance of the said A. B. we command you that you take the said C. D. if he be found within your bailiwick, and him safely keep, so that you have his body before the justices of our said court of hustings, at &c. on &c. to satisfy the said A. B. the said sum of $20. with interest thereon as aforesaid, and also $ for his costs aforesaid. And have then there this writ. Witness &c. 57. Endorsement by creditor where execution is delivered to the sheriff of any other county than that in which creditor resides. 1 Rob. Prac. 550. 1 R. C. 1819, p. 544. $ 54. I name A. B. in the county of C. to be my agent for the pur- pose of receiving the money on this execution, and for giving to and receiving from the sheriff any notices which may be neces- sary relating thereto. 58. Jailor's notice to creditor or his agent, of the debtor's imprison- ment. 1 Rob. Prac. 550. To mr. C. D. (or, mr. A. B. agent for C. D.) Sir, E. F. is confined in the jail of the county of H. as a 224 Executions. debtor, by virtue of a writ of capias ad satisfaciendum issued from the court of county at your instance and in your name (or, at.the instance of the said C. D. and in his name.) 1 now notify you of the imprisonment of the said E. F. and that you are (or, and that the said C. D. is) held responsible to the jailor for the fees chargeable on account of the said imprisonment. Given under my hand this day of . 59. Return of ca. sa. on which defendant is arrested and committed to jail. I Rob. Prac. 550. By virtue of this writ to me directed, I took the within named A. B. on the day of , and thereupon committed him to the jail of the county (or, corporation) where I keep him safe- ly, as commanded. 60. Affidavit by sheriff that 'person in execution has escaped. 1 Rob. Prac. 550. 1 R. C. 1819, p. 548. 1. E. F. deputy for G. H. sheriff of the county of H. maketh oath and saith, that C. D. who was committed to the prison of the said county in execution at the suit of A. B. by virtue of a writ of capias ad satisfaciendum from the court of county, for &c. escaped from the said prison on the day of . E. F. Sworn to before me, a justice of the peace in and for the said county of H. this day of . 61. Warrant to retaTce person in execution who has escaped from pri- son. 1 Rob. Prac. 550. 1 R. C. 1819, p. 548. $ 1. To all sheriffs, mayors, Serjeants, bailiffs and constables within the commonwealth of Virginia. Whereas E. F. deputy for G. H. sheriff of the county of H. has this day made oath before me, a justice of the peace in and for the said county, that C. D. who was committed to the prison of the said county in exe- cution at the suit of A. B. by virtue of a writ of capias ad satis- faciendum from the court of county, for &c. escaped from the said prison on the day of : These are therefore, in the name of the commonwealth, to command you and every of you, in your respective counties, cities, towns and precincts, to seize and retake the said C. D. and him, so retaken, forthwith to convey and commit to the prison where debtors are usually kept in the county or corporation where such retaking shall be, there to be kept in safe custody until he be thence discharged by due course of law, delivering this warrant to the sheriff or Executions. 225 other officer by whom such prison may be kept, who is hereby required to obey the same, and to receive the said C. D. into his safe custody, and to do whatever else is in such case re- quired by law. Given under my hand and seal this day of . [seal]. 62. Note given by jailor to the person who delivers to him the prisoner taken under the escape warrant. 1 Rob. Prac. 550. 1 R. C. 1819, p. 548. 1. I have this day received into my custody, from , one of the constables of the county of C. the body of C. D. who was committed to the prison of the county of H. in execution at the suit of A. B. by virtue of a writ of capias ad satisfaciendum from the court of county, for &c. and escaped from the said pri- son, and was seized and retaken in this county by the said , by virtue of an escape warrant. Given under my hand this day of . , deputy for sheriff and jailor of the county of C. 63. Return of the execution of the warrant to the court of the county from which the prisoner escaped. To the court of the county of H. On the day of , I received into my custody, from &c. (as last, to the end.) 64. Bond for the forthcoming of property tendered in discharge of the body. I Rob. Prac. 550, 51. Know all men &c. (like the obligation for the forthcoming of property levied on, which see ante, No. 32.) The condition of the above obligation is such, that whereas the above named A. B. upon a judgment obtained by him in the circuit superior court of law and chancery for the county of H. against C. D. and E. F. has sued out a writ of capias ad sa- tisfaciendum for taking their bodies, which writ is directed to the sheriff of the said county, and by virtue thereof J. K. deputy for L. M. sheriff of the said county has taken the body of the said C. D. to satisfy the said execution, the amount whereof at this time, including the sheriff's fee and commissions, is $ , and the said C. D. has tendered to the officer serving the said writ the following property, to wit, (here specify it) which property so tendered the said officer has received, and has thereupon dis- charged the said C. D. out of custody, and the said C. D. the 29 226 Executions. owner of the property so tendered, desires that the said property should be suffered to remain in his possession and at his risk until the day of sale, and has offered to give sufficient security to the sheriff to have the same forthcoming at that time : Now if the said C. D. shall have the property aforesaid forthcoming on the day of next, at , being the day and place of sale appointed by the sheriff, then the above obligation is to be void, otherwise it is to remain in full force. 65. Return of ca. sa. where debtor lenders property in discharge of his body. 1 Rob. Prac. 550. 551. This writ was served, the day of , on the defen- dant, who thereupon tendered to me a slave named , and the following other personal property, to wit, (here specify it.) And the said property being supposed by me to be of the value of the debt and costs for which the execution issued, I received the same, and discharged the debtor out of custody. (The re- sidue of the return will be as in the case of goods taken upon a fi.fa.) 66. Return of ca. sa. where debtor discharges his body by paying the money. 1 Rob. Prac. 551, 2. This writ was served, the day of , on the defen- dant, who thereupon paid me $ , the amount thereof, inclu- ding my fee and commissions. Retaining thereout S for the said fee and commissions, I have the balance of $ ready to pay to the plaintiff (or, I have paid the balance of $ to the plaintiff, as will appear by his receipt hereon.) 67. Order for marking and laying out the bounds and rules of the prison. 1 Rob. Prac. 552. 1 R. C. 1819, p. 251. 18. Ordered that the surveyor of this county mark and lay out not exceeding ten acres of land adjoining to the county prison, for the bounds and rules of the same, and make report thereof to the court. 68. Bounds and rules of the prison adopted. 1 R. C. 1819, p. 251. $ 18. Pursuant to the order entered at term, the surveyor of this county this day made the following report : (Here insert it.) Whereupon the court approves the said report, and marks and lays out the bounds and rules of the county prison in the man- ner mentioned therein. Executions. 227 69. Prison bounds bond. 1 Rob. Prac. 66. 552. 1 R. C. 1819, p. 535. 30. Know all men by these presents that we C. D. and E. F. are held and firmly bound unto G. H. sheriff of the county of if. in the sum of , to be paid to the said G. H. bis executors, ad- ministrators or assigns ; for the payment whereof we bind our- selves jointly and severally, and each of us binds his heirs, exe- cutors and administrators. Sealed with our seals and dated this day of . The condition of the above obligation is such, that whereas the above bound C. D. has been taken by J. K. deputy for G. H. sheriff of the county of H. by virtue of a writ of capias ad satis- faciendum issued from the office of the court of county at the suit of A. B. for &c. and has been committed to the prison of the said county of H. where he still remains charged in exe- cution upon the writ aforesaid : Now if the said C. D. shall not depart or go out of the rules or bounds of the said prison, and shall render his body to prison in satisfaction of the said execu- tion at or before the expiration of one year from the date hereof, then the above obligation is to be void, otherwise it is to remain in full force. 70. Return where prisoner is admitted to the bounds. 1 Rob. Prac. 66. 552. 1 R. C. 1819, p. 535. $ 30. By virtue of this writ to me directed, I took the within named C. D. on the day of , and committed him to the county prison. Afterwards, to wit, on the day of , he entered into a prison bounds bond, with E. F. his surety, in the penalty of $ , and from that time had the privilege which the law in such cases allows. 71. Warrant to retake prisoner who has escaped from the prison bounds. 1 R. C. 1819, p. 549. 2. (As in No. 61. to) by virtue of a writ of capias ad satis- faciendum from the court of county, for &c. and obtained the liberty of the prison rules by giving bond and security for the same, escaped and went out of the same on the day of , and the said sheriff has applied to me for an escape warrant to retake the said , according to the directions of the act of assembly : These are therefore &c. (as in No. 61. to the end.) 228 Executions. 72. Notice to creditor, of escape from the prison bounds. 1 R. C. 1819, p. 549. 2. To A. B. Notice is hereby given you, that C. D. who was committed to the prison of the county of H. in execution at your suit, by virtue of a writ of capias ad satisfacicndum from the court of county, for &c. and obtained the liberty of the prison rules by giving bond and security for the same, escaped and went out of the same on this day. Given under my hand this day of . 73. Sheriff's assignment to creditor, of prison bounds bond. 1 R. C. 1819, p. 549. 2. The within named C. D. having escaped and gone out of the prison rules, I hereby assign over and now deliver this bond to A. B. the creditor within named, as the act of assembly in such case directs. Given under my hand this day of . 74. Warrant to take person who failed to render his body to prison according to the condition of prison bounds bond. 1 Rob. Prac. 552. 1 R. C. 1819, p. 535. 30. (As in No. 61. to) by virtue of a writ of capias ad satis- faciendum from the court of county, for &c. and who, on the day of , obtained the liberty of the prison rules by giving bond and security according to the statute, has not, although one year has expired since the date of the said bond, rendered his body to prison according to the condition thereof; and the said E. F. having further made oath" before me that the said C. D. has not been discharged by due course of law : These are therefore &c. (as in No. 61. to the end.) 75. Return of ca. sa. where debtor is discharged out of custody upon obtaining an injunction. 1 Rob. Prac. 552, 3. By virtue of this writ, I took the within named C. D. on the day of , and thereupon committed him to the jail of the county (or, corporation) where I kept him safely until the day of , when I received a subpoena in chancery from the circuit superior court of law and chancery for the coun- ty of H. in the name of the said C. D. against the within named A. B. with an endorsement thereon, stating that it was to injoin further proceedings on the judgment on which this writ issued. Whereupon I discharged the said C. D. from custody. Executions. 229 76. Warrant of justice directing jailor to bring insolvent debtor before him or some other justice. 1 Rob. Prac. 553. 1 R. C. 1819, p. 536. 31. Sess. Acts 1833-4, p. 77. ch. 66. 1. To the jailor or keeper of the prison of the county of H. Whereas information has been given to me, a justice of the peace for the said county of H. that C. D. has been committed to the jail of the said county, charged in execution by virtue of a judgment (or, by virtue of a capias ad satisfaciendum upon a judgment) obtained by A. B. against the said C. D. in a suit in the circuit superior court of law and chancery for the said county of H. (or, in the county court of H.) and that the said C. D. is insolvent, and desires to be relieved from his imprison- ment: These are therefore, in the name of the commonwealth, to command you to bring the body of the said C. D. before me, or some other justice of the peace for the said county of H. at the courthouse thereof, on the day of -, together with a list of the several executions with which the said C. D. stands charged in the said jail. And have then there this pre- cept. Given under my hand and seal this day of . 77. Notice that person intends to take the oath of an insolvent debtor. I Rob. Prac. 553. 1 R. C. 1819, p. 536. Sess. Acts 1827-8, p. 25. ch. 32. $ 1. To mr. A. B. Having been committed to the jail of the county of H. charged in execution by virtue of a judgment (or, by virtue of a capias ad satisfaciendum upon a judgment) ob- tained by you against me, in a suit in the circuit superior court of law and chancery for the said county of H. (or, in the county court of H.) and being insolvent, and desiring to be relieved from my imprisonment, I now give you notice that I am to be brought before a justice of the peace for the county of H. at the courthouse thereof, on the day of , be- tween the hours of and , and intend then and there to take the oath of an insolvent debtor. Subjoined hereto is a copy of the schedule which I mean to offer. 78. Schedule of insolvent. 1 R. C. 1819, p. 536. Sess. Acts 1836-7, p. 46, 7. ch. 69. 1. 3. The following is a schedule of the whole estate of C. D. Having, by virtue of the first and third sections of an act of assembly passed the 30th of March 1837, entitled " an act ex- empting a certain portion of the property of poor debtors from execution and other liabilities," set apart the following proper- 230 Executions. ty, to wit, (here specify it,) the residue of my estate is as fol- lows : (here specify it.) Given under my hand this day of C. D. 79. List of executions. I R. C. 1819, p. 536. 31. The following is a list of the several executions with which C. D. stands charged in the jail of the county of H. A capias ad satisfaciendum from the circuit superior court of law and chancery for the county of H. in favour of A. B. against the said C. D. for $ , with interest thereon from the day of till paid, and the costs. And a capias &c. (specifying any other which there may be.) Given under my hand this day of . , deputy for sheriff and jailor of the county of H. 80. Oath of insolvent debtor. The prisoner takes the comprehensive and solemn oath prescribed by the act in 1 R. C. 1819, p. 536. 31. 81. Conveyance of the real 'estate mentioned in the schedule. 1 Rob. Prac. 553. 1 R. C. 1819, p. 537. $ 32. This indenture made this day of , between C. D. of the county of H. of the one part, and E. F. sheriff' of the said county of the other part : Whereas the said C. D. has been committed to the jail of the county of H. charged in execution by virtue of a capias ad satisfaciendum obtained by A. B. against the said C. D. upon a judgment in the circuit superior court of law and chancery for the county of H. for $ , with interest thereon from the day of till paid, and the costs, and the said C. D. being insolvent, and desiring to be relieved from his imprisonment, has, by virtue of a warrant issued for that pur- pose, been brought before a justice of the peace for the said county of H. at the courthouse thereof, on this day, and has subscribed and delivered in a schedule of his estate, which schedule contains the following real estate, to wit, (here de- scribe it.) Now therefore this indenture witnesseth, that the said C. D. pursuant to the act of assembly in such case made, and for the consideration of five dollars to him in hand paid by the said E. F. before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, has granted, bar- gained and sold, and by these presents doth grant, bargain, sell and convey unto the said E. F. sheriff as aforesaid, all the real Executions. 231 estate herein before mentioned and described, to be by him dis- posed of according to law. In witness whereof the said C. D. has hereunto set his hand and affixed his seal on the day and year herein first mentioned. Signed, sealed and delivered ) [seal], in the presence of 82. Warrant for insolvent's discharge. 1 Rob. Prac. 553. 1 R. C. 1819, p. 537. $ 33. To the jailor or keeper of the prison of the county of H. Whereas, in obedience to a warrant issued for that purpose, you brought C. D. before me, a justice of the peace for the said county, at the courthouse thereof, on this day, with a list of the several executions with which he stood charged in your jail, and by the said list it appeared that the only execution with which the said C. D. stood charged in the said jail was a capias ad satisfacicndum from the circuit superior court of law and chan- cery for the county of H. in favour of A. B. against the said C. D. for $ , with interest thereon from the day of- till paid, and the costs : And whereas it was shewn to me that the said C. D. gave to the said A. B. reasonable notice of his in- tention to take the oath of an insolvent debtor, and of the time and place thereof, and served with the said notice a copy of the schedule which he meant to offer; and the said C. D. upon coming before me at the said time and place, has subscribed and delivered in a schedule of his estate, and taken the oath prescribed by the thirty-first section of the act entitled " an act to reduce into one act the several acts concerning executions and for the relief of insolvent debtors," and done all that the said act requires to entitle him to be discharged : These are therefore to command you, in the name of the commonwealth, forthwith to discharge the said C. D. if he be detained in your custody for no other cause than the execution aforesaid. And for so doing, this shall be your warrant. Given under my hand and seal this day of . [seal]. 83. Return of ca. sa. where debtor is discharged by taking oath of insolvency. 1 Rob. Prac. 553. 1 R. C. 1819, p. 536, 7. By virtue of this writ, I took the within named C. D. on the day of , and thereupon committed him to the jail of the county, where I kept him safely until the day of , when he took the oath of an insolvent debtor before , a justice of the peace for the said county, and was dis- 232 Executions. charged by his warrant. The schedule is herewith returned. (Or, The schedule is returned to the office of the court of county, from which office an execution issued against the said C. D. which came to my hands before this.) 84. Entry where oath of insolvency is taken in court. 1 Rob. Prac. 553. 1 R. C. 1819, p. 536, 7. The jailor of this county brought before the court T. R. and certified that he stood charged in the said jail by virtue of a writ of capias ad satisfaciendum sued out of the court of Hanover coun- ty by J. D. against him, for $ , with interest thereon from the day of till paid, and the costs, and for no other cause. Whereupon, it appearing that the said T. R. has given to the said J. D. reasonable notice of his intention to take the oath of an insolvent debtor before this court at this time, and served with the said notice a copy of the schedule which he meant to offer, the said T. R. upon coming before the court, sub- scribed and delivered in a schedule of his estate, and took the oath prescribed by the thirty-first section of the act entitled " an act to reduce into one act the several acts concerning executions and for the relief of insolvent debtors," and did all that the said act requires to entitle him to be discharged ; and it is therefore ordered that he be discharged from custody. 85. Summons against a person stated to be indebted to, or to have es- tate of, insolvent. 1 R. C. 1819, p. 538. 35. Whereas C. /. has lately been discharged as an insolvent debtor at the suit of A. B. and the schedule subscribed and de- livered in by the said C. J. mentions the sum of $ 25. to be due him from J. B. S. (or, mentions that the following goods and chattels belonging to him, to wit, &c. are in the possession of J. B. S.) as appears by the said schedule, remaining with the clerk of our circuit superior court of law and chancery for the county of H. Therefore we command you that you summon the said J. B. S. to appear before the judge of our said court, at the courthouse, on the first day of the next term, and then and there declare on oath whether the said money, or any part thereof, be really due from him to the said C. J. (or, whether such goods and chattels be really in his possession, and are the property of the said C. J.) And have &c. (Endorse) Issued at the instance of A. B. the creditor of the within named C. J. Executions. 233 86. Judgment by default against a person stated to be indebted to in- solvent. 1 R. C. 1819, p. 538. 35. J. L. who has been summoned to appear here on this day, and declare on oath whether the sum of $ 4.52 cents, with which he is charged in the schedule of J. B. an insolvent debtor, filed in the office of this court, be really due to the said J. B. was this day solemnly called, but failed to attend according to the summons, or to shew good cause for his nonattendance : There- fore it is considered by the court that W. P. sherifFof this coun- ty, recover against the said /. L. the said sum of $4^52 cents, together with the costs in this behalf expended, a lawyer's fee excepted. (Or the said sum of $4.52 cents, without costs.) Note. Whenever judgment shall be rendered against any person named as a debtor in the schedule of an insolvent, for the money or goods therein mentioned, or any part thereof, either by default or upon confession, the court may, in its discretion, allow costs to the creditor (except an attorney's fee) or enter judgment for the money or goods without costs, as in the opinion of such court the justice of the case may require. Sess. Acts 1833-4, p. 77. ch. 66. 2. 87. New summons awarded against a person stated by an insolvent to be his debtor. The summons issued by the clerk, at the instance of L. S. against R. A. named as a debtor in the schedule of J. B. an in- solvent debtor, filed in the office of this court, being returned not found, on the motion of the said L. S. by his attorney, a new summons is awarded against the said R. A. returnable here on the first day of the next term. 88. Defendant appeared according to summons awarded in last case, and summons dismissed. The summons awarded at the last term, on the motion of L. S., against R. A. who was named as debtor in the schedule of J. B. an insolvent debtor, filed in the office of this court, being returned executed, this day came as well the said L. S. by his attorney, as the said R. A. in his proper person, who, being sworn, declared that neither the sura of S5.77J cents, with which he is charged in the said schedule, nor any part thereof, is really due from him to the said J. B. Therefore it is ordered that the summons aforesaid be dismissed. 30 234 Executions. 89. Ca. sa. directed to issue against a person who has been dis- charged as an insolvent debtor. 1 Rob. Prac. 560, 61. C. D. having delivered in a schedule, taken the oath of insol- vency, and been discharged as an insolvent debtor, since the judgment obtained against him in this court by A. B., the said A. B. this day moved the court to direct a writ of capias ad satisfaciendum to issue on his said judgment ; and for reasons ap- pearing: to the court, the same is directed accordingly. 90. Fi. fa. awarded against the goods acquired by a person after taking the oath of insolvency. 1 Rob. Prac. 560, 61. C. D. having delivered in a schedule, taken the oath of insol- vency, and been discharged as an insolvent debtor, under an execution issued from this court at the suit of A. B., the said A. B. by his attorney this day moved the court to award exe- cution against the goods and chattels acquired by the said C. D. since taking the said oath ; and it appearing that the said C. D. has had ten days previous notice of this motion, he was solemn- ly called, but came not : Whereupon the court doth award exe- cution according to the said motion. 91. Return of ca. sa. where debtor is discharged for nonpayment of jail fees. 1 Rob. Prac. 561. After stating the arrest and commitment, proceed as follows : On the day of I notified the creditor, in writing, of the imprisonment of his debtor ; and at the termination of sixty days, I demanded of him $ , the amount of my account for the maintenance of the debtor. The creditor failing to make payment of the said account, 1 obtained a judgment against him for the amount thereof, upon ten days notice, by motion to the court of my county. Return was made on two several execu- tions, by the officer to whom they were directed, that he could not make the said amount ; and I thereupon discharged the debtor out of custody. If the ca. sa. has previously been returned, it will be proper to embrace the substance of this return in a separate paper, commencing as follows : C. D. having been confined as a debtor in the jail of my coun- ty, by virtue of a writ of capias ad satisfaciendum issued from &c. wherein A. B. was the creditor, the said creditor was, on the day of , notified by me in writing, of &c. (as before.) Executions. 235 92. Return of ca. sa. where debtor was discharged by tendering property which proved to be under incumbrance. 1 Rob. Prac. 562. After stating the service of the ca. sa., the tender of property, and the discharge of the debtor out of custody, proceed as follows : The property so tendered proved to be under an incumbrance, by deed of trust executed by the said to for the benefit of , and I could not sell it. 93. Endorsement on new execution, to shew that property had been tendered under a ca. sa. which, was incumbered. 1 Rob. Prac. 562. When a former writ of capias ad satisfaciendum was served in this case upon the debtor, he tendered to the officer serving the same, personal property, and was thereupon discharged out of custody. The return upon that writ shews that the property so tendered proved to be under an incumbrance, and could not be sold. 94. Debtor dying in execution, new execution against his goods and chattels. 1 Rob. Prac. 560. The commonwealth &c. Whereas, on the day of , by a writ of capias ad satisfaciendum sued out of the circuit superior court of law and chancery for the county of H. to you directed, we commanded you that you should take C. D. and him safely keep until he should satisfy A. B. $ 100. with interest thereon to be computed after the rate of six per centum per annum from the day of till payment, which he in our said court had recovered as well for a certain debt as for interest thereon, and also a sum adjudged to him the said A. B. for the costs by him about his suit expended ; and after- wards, by your return on the said writ, you made known that you had taken the said C. D. and committed him to the county prison : and now we are informed that the said C. D. being so in prison, charged in execution, happened to die in execution ; and the said A. B. has applied for new execution against the goods and chattels of the said deceased : Therefore we com- mand you that of the goods and chattels of the said C. D. de- ceased, in your bailiwick, you cause to be made the said $ 100. with interest thereon as aforesaid, and $ for the costs afore- said ; and that you have the said sums of money before &c. at &c. on &c. to render to the said A. B. of the debt, interest and costs aforesaid. And have &c. 236 Executions. Note. Impey, in his Practice, p. 337. says : " If a man died in ex- ecution, formerly his executors were no farther chargeable ; but now, by stat. 21 Jac. 1. ch. 24. though he die in execution, yet the plaintiff may have an execution against his lands, goods and chattels. But the judgment must be revived by a scire facias." It is to be observed that the english statute gives to the creditor or creditors execution against the lands and tenements, goods and chattels, or any of them, of the per- son so deceased, " in such manner and form, to all intents and purposes, as he or they or any of them might have had by the laws and statutes of this realm, if such person so deceased had never been taken or charged in execution." And if the debtor had never been taken in execution, there could not, after his death, be execution against his lands and tenements, goods and chattels, without a scire facias. Such would be the rule, although a capias ad satisfaciendum might have been issued and never served. Upon comparing the two statutes, it will be found that the Vir- ginia act omits the words " in such manner and form," and the follow- ing words preceding the proviso. It enacts, in very general and unqua- lified language, that the creditor may, " after the death of the person so dying in execution, lawfully sue forth and have new execution against the lands and tenements, goods and chattels, or any of them, of the per- son so deceased." Literally construed, it seems not to require a notice of any kind before issuing execution. But it may be advisable, if the creditor proceeds without a scire facias, that there should be a motion to the court for the execution, and notice of the motion, wherever that is practicable. 95. Debtor dying in execution, new execution against his lands and tenements. 1 Rob. Prac. 560. Whereas A. B. at a circuit superior court of law and chan- cery for the county of H. held before the judge of the said court on the day of , recovered against- C. D. the sum of $ 100. with interest thereon to be computed after the rate of six per centum per annum from the day of till pay- ment, as well for a certain debt as for interest thereon, and also recovered against the said C. D. his costs in that suit expended, whereof the said C. D. is convicted as appears to us of record : and whereas a writ of capias ad satisfaciendum was sued out upon the said judgment, directed to the sheriff of county, and the said sheriff, by his return on the said writ, made known that he had taken the said C. D. and committed him to the county prison : and now we are informed that, the said C. D. being so in prison, charged in execution, happened to die in exe- cution ; and the said A. B. has applied for new execution against the lands and tenements of the said deceased : Therefore we command you that you cause to be delivered, by reasonable price and extent, a moiety of all the lands and tenements, in your bailiwick, whereof the said C. D. was seized at the day of Executions. 237 obtaining the said judgment, or at any time afterwards, except only such lands and tenements of the said C. T>. as have, at any time since the said judgment, been sold by him bonajide for the payment of any of his creditors at whose suit he was in execu- tion, and the money paid, or secured to be paid, to any such cre- ditors, with their privity, in discharge of his or their debts, or some part thereof; to have and to hold the said moiety to him the said A. B. as his freehold, to him and his assigns, until he shall have levied thereof the debt and interest, and $ the costs aforesaid ; and that you certify our judge of our said court, under your own seal and the seals of those by whose oath you shall make this extent and appraisement, how you execute this writ, at the courthouse of our said county, on the first day of the next term. And have &c. See the note to the last form. 96. Extendi facias against an heir, after judgment on bond of an- cestor. I Rob. Prac. 570. Whereas D. J. in our court of our county aforesaid, held be- fore our justices of our said court, at the courthouse, by the judg- ment of the said court hath recovered against R. C. brother and heir of T. C. deceased, 200. for debt, and also &c. which to the said D. in the same court were adjudged for his costs by him about his suit in that behalf expended, to be levied of one tenement containing 50 acres of land with the appurtenances, in the county aforesaid, which descended to the said R. in fee simple from the said T. his brother, as by the record of the said judgment in our said court manifestly appears : But because it is unknown how much the said tenement with its appurtenances is worth by the year in all the issues besides reprises, we com- mand you that by the oath of good and lawful men of your baili- wick, you diligently enquire how much the said tenement with its appurtenances is worth by the year in all issues besides re- prises, and such inquisition being thereof by you diligently made, you deliver the said tenement with its appurtenances, according to the true value thereof, to the said D. without delay, to hold to the said D. and his assigns, until he shall thereof have levied his debt and costs aforesaid. And how you shall execute this writ, make known to the justices of our said court, at the court- house, on the first day of the next term. And have then there the names of those by whose oath you make the said in- quisition, and this writ. Witness &c. 238 Executions. 97. Distringas against a corporation. 1 Rob. Prac. 568. Sess. Acts 1836-7, p. 45. ch. 68. 4. We command you that you distrain the , being a cor- poration, by all the lands and chattels of the said corporation in your bailiwick, so that neither the said corporation, nor any one through it, lay hands on the same until you shall have another command from us in that behalf, and that you answer to us for the issues of the same, so that the said corporation render to the sum of $ , with interest thereon to be computed after the rate of six per centum per annum from the day of till payment, which the said lately in our &c. hath recovered against the as well for a certain debt as for interest thereon, also $ which to the said in the same court were adjudged for his costs by him about his suit in that behalf expended ; whereof the is convict as appears of record. And in what manner you shall have executed this our command, make known &c. And have &c. 98. Distringas in detinue. 1 Rob. Prac. 569. We command you that you distrain C. D. by all his lands and chattels in your bailiwick, so that neither he nor anyone through him lay hands on the same until you shall have another com- mand from us in that behalf, and that you answer to us for the issues of the same, so that he render to A. B. two negro slaves named Casar and Pompey, of the prices of $ 400. each, which the said A. B. lately in our court of &c. hath recovered against the said C. D. if the said slaves may be had, but if not, then the prices aforesaid of them, or of such of them as may not be had ; whereof the said C. D. is convict as appears of record. And in what manner you shall have executed this our command, make known &c. If the judgment be against an executor or administrator, add, after C. D. where the name first occurs, the words " executor of the last will and testament (or, administrator of the personal estate) of E. F. de- ceased ;" and when it occurs again, add, after C. D. " executor (or, ad- ministrator) as aforesaid." No other change is necessary ; the deten- tion by the executor or administrator being a wrong of his own, which subjects him personally to a judgment for the slaves or their alternative value. Allen's ex' or v. Harlem's adm'r, 6 Leigh 42. Catlett's ex' or v. Russell, Id. 344. Greenlee's adm'r v. Bailey, 9 Leigh 526. Executions. 239 99. Fi. fa. in detinue for damages and costs, in the same writ with the distringas. 1 Rob. Prac. 569. We also command you that of the goods and chattels of the said C. D. in your bailiwick (or, if against an executor or adminis- trator, of the goods and chattels in your bailiwick which were of the said E. F. deceased at the time of his death, in the hands of the said C. D. executor or, administrator as aforesaid) you cause to be made $ , which to the said A. B. in the same court were adjudged as well for his damages which he sus- tained by occasion of the detention of the said slaves, as for his costs by him about his suit in that behalf expended, whereof the said C. D. (or, the said C. D. executor as aforesaid or, admi- nistrator as aforesaid) is also convict as appears of record ; and that you have that money before &c. at &c. on the same day above written, to render to the said A. B. for the damages and costs aforesaid. And have then there &c. 100. Ca. sa. in detinue, for damages and costs, along with the distrin- gas. 1 Rob. Prac. 569. We also command you that you take the said A. B. if he be found within your bailiwick, &c. to satisfy the said C. D. $20. which to the said C. D. &c. whereof the said A. B. is also con- vict &c. And have &c. 101. Distringas directed to be superseded as to specific thing, and executed for the alternative value. 1 Rob. Prac. 569. For good cause shewn, the court directs the distringas issued upon the judgment in this action, to be superseded so far as it relates to the specific property, and to be executed for the alter- native price or value only. 102. Alternative value not being rendered to plaintiff, fieri facias, elegit, or ca. sa. allowed to issue. 1 Rob. Prac. 569, 70. The distringas issued upon the judgment in this action having been heretofore superseded as to the specific property, and di- rected to be executed for the alternative price or value only, and the defendant having nevertheless failed to render to the plaintiff the said alternative price or value, the court doth now allow the said plaintiff to prosecute a writ of fieri facias, elegit, or capias ad satisfaciendum, for taking the goods, lands or body of the defendant to satisfy the said plaintiff the alternative price or value aforesaid. 240 Executions. Note. Garland v. Bugg, 5 Munf. 166 is the authority for this order. It is proper to add, that by a late act, the plaintiff in actions of detinue, after judgment rendered therein, " may sue out and prosecute, at his elec- tion, either a distringas or an execution for the specific property, if to be found, or any other execution necessary to recover the alternative value thereof, now authorized by law upon other judgments." See the act in Sess. Acts of 1839, p. 44. ch. 69. 103. Writ of possession after judgment for plaintiff in ejectment. 1 Rob. Prac. 462, 3. Whereas Aminadab Seekright, late in our &c. hath recovered against K. Anderson his term yet to come, of and in one mes- suage and 100 acres of land, with the appurtenances, lying and being in the county aforesaid, which A. B. to him the said A. S. did demise for a term of years which is not yet ended, to wit, from the 30th day of June L792, until the full end and term of 20 years thence next following and fully to be completed and ended, by virtue of which demise the said A. S. into the said demised premises entered, and was thereof possessed until the said R. A. afterwards, to wit, on the 3d day of May 1793, with force and arms, into the said demised premises, in and upon the possession of him the said A. S. thereof entered, and him the said A. S. therefrom did eject; whereof the said R. A. is con- vict, as appears to us of record : Therefore we command you that the said A. S. his possession of his term aforesaid yet to come, of and in the said premises, you cause to have. And how you shall execute this writ, make known &c. And have &c. 104. Writ of seisin after judgment for demandant in a writ of right. I Rob. Prac. 479. Whereas, upon a certain writ of right prosecuted in our cir- cuit superior court of law and chancery for the county of H. between A. B. demandant and C. D. tenant, for &c. (here de- scribe the tenement) it was lately considered by our said court that the demandant recover against the tenant his seisin of the said tenement, to hold to him the said demandant and his heirs, quit of the said tenant and his heirs forever : Therefore we com- mand you that you cause the said A. B. to have his seisin of the tenement aforesaid, without delay. And how &c. And have &c. Executions. 241 105. Writ of seisin after judgment for demandant in dower, where the husband died seized. 1 Rob. Prac. 490. 493, 4, 5. Whereas A. D> widow of C. D. deceased, lately claimed to be endowed of one full and equal third part of &c. (here de- scribe the tenements) and to recover her said dower, prosecuted her writ of unde nihil habet against E. F. in our &c. whereupon it is considered by our said court that the said A. D. recover against the said E. F. her seisin of one full and equal third part of the said tenements, to hold to her in severally, as and for her dower therein : Therefore we command you that you cause the said A. D. to have, without delay, her seisin of one full and equal third part of the tenements aforesaid, to hold to her in se- verally as aforesaid. And how &c. And have &c. 106. Writ of seisin after judgment for demandant in dower, where the husband had aliened. 1 Rob. Prac. 490 lo 493. Whereas A. D. widow of C. D. deceased, lately claimed to be endowed of one full and equal third part of &c. (here de- scribe the land) and to recover her said dower, prosecuted her writ of unde nihil habet against E. F. in our &c. on which issue was joined between her and the said E. F. and the jurors found for her upon the said issue, and farther the said jurors found that the said C. D. the husband of the said A. D. though seized, during ihe coverlure, of the said land, did not die seized thereof, but aliened the same on ihe day of to the said E. F. (or, to , under whom the said E. F. claimed) and that the said land was of the value of $ at the time of the aliena- tion, and was of ihe value of $ on the day the said jury were so impannelled ; whereupon, by the judgment of our said court, it was considered that the said A. D. recover against ihe said E. F. her seisin of whal was one full and equal third part of the said land, according lo the value thereof al ihe time of the alienation by her husband, to hold to her in severally, as and for her dower in ihe said land : Therefore we command you that you cause the said A. D. to have, wilhout delay, her seisin in a part of the said land, which shall be the same proportion ihereof, thai one ihird of ihe sum found lo be the value of ihe land at the time of the alienation, is of the sum found to be ihe whole value ihereof at the time the jury were impannelled ; to hold such part to her in severally as aforesaid. And how &c. And have &c. 31 242 Executions. 107. Writ of possession after judgment for plaintiff upon complaint of unlawful entry or detainer. 1 Rob. Prac. 498. We command you that you cause J. M. to have his posses- sion of a certain tenement containing &c. lying &c. which he lately, in our court of hustings for the city of JR. hath recovered against N. H. R. and M. G. whereof they have been convicted of unlawfully turning him out of possession (or, unlawfully hold- ing him out of possession) as appears of record. And how you shall have executed this writ, make known &c. 108. Writ of seisin after judgment for plaintiff in action of waste. I Rob. Prac. 501. Whereas C. D. tenant for life of a certain tenement in the county of H. the reversion whereof is in A. B. has lately been convicted in &c. of committing waste, during his estate, of the timber trees belonging to three acres of land, parcel of the said tenement, which three acres are bounded as follows, that is to say, (describing the parcel as in the verdict) : Therefore we command you that without delay you cause the said A. B. to have his full seisin of the said three acres of land so wasted as aforesaid. And how &c. 109. Execution upon judgment against principal and sureties quashed on motion of sureties, and exceptions filed by plaintiff. 1 Rob. Prac. 538, 9. 570, 71. Bullitt's ex'ors v. Winstons, 1 Munf. 269. On the motion of S. J. W. and E. W. to quash an execution sued out of this court by T. H. and T. J. B. executors of C. B. deceased, against the goods and chattels of J. C. L. and the said S. J. W. and E. W. on the 21st day of February 1804, upon a judgment obtained in this court: This day came as well the said S. J. W. and E. W. as the said executors, by their at- torneys, and the evidence on the said motion being heard, the court is of opinion that such proceedings have been had under a former execution in this case, as make it improper and illegal to levy that issued on the said 21st of February 1804 ; and it is therefore ordered that the said last mentioned execution be quashed. To which opinion of the court quashing the said execution, the defendants in the motion tendered a bill of ex- ceptions, which was received, signed and sealed by^the court, and ordered to be made part of the record upon the motion. Executions. 243 110. Another case of an execution upon judgment against principal and surety quashed on surety's motion. Steele v. Boyd, 6 Leigh 547. Since the judgment of this court awarding execution to E. B. against D. S., S. S. and /. S. upon a bond for the forthcom- ing of property, a writ of fieri facias having been sued out, and levied upon the property of S. S. one of the sureties in the said bond, the said S. . by his attorney this day moved the court to discharge the saia levy, and to exonerate him from all further process of execution in the case, on the ground that the said E. B. has made a compromise with the said D. S. the principal, and given him time to pay the debt, without the knowledge or consent of the said S. S. Whereupon the said E. B. appeared, by her attorney, in opposition to the motion, and the evidence adduced on both sides being considered, and the parties fully heard, it seems to the court to be established by the said evi- dence, that after the award of execution on the forthcoming bond, the said D. S. filed a bill of injunction to stay proceed- ings in the case, and an agreement of compromise was there- upon made between him and the said E. B. without the know- ledge or consent of the said S. S. his surety as aforesaid, that he would dismiss the said bill at his costs, and pay her $250. in annual instalments of $50. each, and she would take that sum in those instalments, in full discharge of the debt due on the forthcoming bond ; and that afterwards, in pursuance of the said agreement of compromise, the said D. S. accordingly dismissed his bill, and paid, at different times, nearly the whole amount of 250 dollars : and the court is of opinion that the effect of the said agreement of compromise, and the dismission and pay- ments in pursuance thereof, was to exonerate the said S. S. the surety from all liability on the said forthcoming bond. Therefore it is ordered that the levy of the last execution on the property of the said S. S. be discharged, that the sheriff, who made the said levy, restore the said property to him, and that he be exo- nerated from all further process of execution on the said forth- coming bond ; and it is further ordered that the said E. B. shall be at liberty to sue out new execution on the said forthcoming bond against all the obligors, but without the right to cause the same, to be levied on S. S. or his property ; and that, to give ef- fect to this order, the clerk make the proper endorsement on all future executions to be issued on the said forthcoming bond. 244 Executions. 111. Order upon defendant's motion to quash execution issued by a justice of the peace, Sess. Acts 1839-40, p. 50. ch. 58. 1. C. D. this day moved the court to quash an execution issued by a justice of the peace of this county, upon a judgment on a warrant in favour of A. B. against the said C. D. ; and it appearing that ten days notice of this motion has been given to the said A. B. he was solemnly called, but came not : whereupon the court, having heard the evidence adduced by the said C. D. is of opinion that the said execution issued ille- gally, and doth order that the same be quashed. 112. Order on plaintiff's motion, quashing execution and forthcom~ ing bond taken under it, and allowing him to sue out new execution on the original judgment. 1 Rob. Prac. 572. W. F. by his attorney, this day moved the court to quash the execution sued out of this court by him against R. L. and J. G. and the forthcoming bond taken under the same from the said R. L. and produced notice of the motion to the said R. L. and J. G. who were solemnly called, but came not: whereupon, evidence being adduced shewing that the surety in the said bond is insolvent, and was insolvent at the time of his being taken, it is therefore considered by the court that the execution and bond aforesaid be quashed, pursuant to the motion of the said W. F. and that he may sue out new execution upon his original judgment against the said R. L. and J. G. 113. few execution directed to issue. 1 Rob. Prac. 572. Ward v, Vass, 7 Leigh 135. A. B. by his attorney, informing the court that since the re- turn of the execution upon his judgment against C. D. and E. F. the clerk has declined issuing a new execution without the direction of the court, and asking that such direction be given, the court, after hearing from the clerk his view of the case, and after inspecting the said return, doth order and direct that a new execution may issue upon the judgment aforesaid. Sclre facias offer judgment or upon recognizance. 245 CHAPTER XXV. SCIRE FACIAS AFTER JUDGMENT OR UPON RECOGNIZANCE. 1. Scire facias where execution has not issued within the year. 1 Rob. Prac. 573. The commonwealth of Virginia to the sheriff of H. county, greeting :* Whereas G. M. at a circuit superior court of law and chancery held for the county of H. at the courthouse, on the day of , by the judgment of our said court, recover- ed against R. W. and A. 5.t $ 100. with interest thereon to be computed after the rate of six per centum per annum from the day of till payment, for a certain debt and the in- terest thereon, and also $ for his costs by him about his suit in that behalf expended ; whereof the said R. W. and A. B. are convicted, as by the record thereof in our same court manifestly appears. And now, on behalf of the said G. M- it is said, that although judgment be given as aforesaid, yet execu- tion of the debt, interest and costs aforesaid still remains to be made. But more than a year has passed since the judgment. Therefore, at the instance of the said G. M. we command you that you make known to the said R. W. and A. B. that they be &c4 at &c. on &c. to shew, if they have any thing to say, why the said G. M. ought not to have execution against them of the debt, interest and costs aforesaid, according to the judgment aforesaid. And have then there this writ. Witness &c. * To whom directed, see 1 Rob. Prac. 580. t The judgment must be correctly stated according to the nature of the case. Bee 1 Rob. Prac. 580. t When returnable, see 1 Rob. Prac. 582. 2. Scire facias upon death of plaintiff", for his executor or adminis- trator to have execution. 1 Rob. Prac. 574. After reciting the judgment as above, to the words " whereof the said are convicted, as by the record thereof in our same court manifestly appears" inclusive of those words, proceed as follows : And afterwards the said died, having first made his last will and testament, and thereof appointed E. F. executor, who, since the death of the said , hath duly proved the 246 Scire facias after judgment or upon recognizance. said will, and taken upon himself the execution of the same (or died intestate, since whose death, ad ministration of the per- sonal estate of the said deceased has been granted to E. F.) as we have been informed. And now, on behalf of the said E. F. as such executor (or, administrator) as aforesaid, it is said, that although judgment be given as aforesaid, yet execution of the debt (or, damages) interest and costs aforesaid still remains to be made. Therefore, at the instance of the said E. F. executor (or, administrator) as aforesaid, we command &c. (as last, ex- cept that, instead of " G. M." will be inserted " E. F. executor (or, administrator) as aforesaid." 3. Scire facias upon death of defendant, to have execution against his executor or administrator 1 Rob. Prac. 574. The last form may be used, omitting the words " executor (or, administrator) as aforesaid," after the plaintiff's name, and inserting them after the defendant's, and making the conclusion as follows : " to shew, if he has any thing to say, why the said G. M. ought not to have execution against him the said , as such executor (or, administrator) as aforesaid, of the debt (or, damages) interest and costs aforesaid, to be levied of the goods and chattels which were of the said at the time of his death, in the hands of the said to be administered. And have then there this writ. Witness &c." 4. Scire facias upon the death of a party whose estate is committed to a sheriff. And afterwards the said L. J. died, having first made his last will and testament, and thereof appointed E. F. and G. H. executors, but the executors therein named having refused to undertake the executorship, and no person having applied for administration with the will annexed of the said L. J. the court of the said county has ordered W. D. sheriff of the said county, to take the estate of the said L. J. deceased into his possession (or died intestate, as it is said, and the court of the said coun- ty has ordered W. D. sheriff of the said county, to take the es- tate of the said L. J. deceased into his possession); by virtue of which order, and of the act of assembly in such case made, the said W. D. sheriff as aforesaid, is administrator with the will annexed (or, administrator) of the said L. J. deceased, entitled to all the rights, and bound to perform all the duties, of such ad- ministrator. And now &c. (proceeding as in No. 2. or No. 3.) Scire facias after judgment or upon recognizance. 247 5. Upon a judgment in detinue against a decedent, scire facias against his executor or administrator. Allen's ex 1 or v. Harlan's adm'r, 6 Leigh 42. CatletCs ex'or v. Russell, 6 Leigh 344. Greenlee's adrn'r v. Bailey, 9 Leigh 526. Whereas J. M. W. at &c. recovered against A. M. the fol- lowing negro slaves, to wit, Isaac a negro man, &c. of the price of 100. each, if they might be had, but if not, then the prices aforesaid of them, or of such of them respectively as might not be had, and also $40. which to the said J. M. W. in the same court were adjudged as well for his damages which he sustained by occasion of the detention of the said slaves, as for his costs by him about his suit in that behalf expended : whereof the said A. M. was convicted, as by the record thereof in our same court manifestly appears. And now, on behalf of the said J. M. W. it is said, that although judgment be given as aforesaid, yet execution thereof still remains to be had ; and we are in- formed that since the said judgment was given, the said A. M. has died, having first made his last will and testament, and thereof appointed E. F. executor, who hath proved the same, and taken upon himself the burthen of its execution (or died intestate, and administration of his personal estate has been granted to E. F.) ; and we are further informed that since the death of the said A. M. the slaves aforesaid have come to the hands and possession of the said E. F. executor (or, adminis- trator) as aforesaid. Therefore, at the instance of the said J. M. W. we command you that you make known to the said E. F, executor (or, administrator) as aforesaid, that he be &c. at &c. on &c. to shew, if he have any thing to say, why the said J. M. W. ought not to have execution against him for the slaves afore- said, if they may be had, but if not, then for the prices afore- said of them, or of such of them respectively as may not be had, and execution against him, as such executor (or, adminis- trator) as aforesaid, of the damages and costs aforesaid, to be levied, as to the said damages and costs, of the goods and chattels which were of the said A. M. at the time of his death, in the hands of the said E. F. to be administered. And have then there &c. 6. Upon judgment in ejectment, scire facias against defendant's heir. I Rob. Prac. 574, 5. Whereas John Doe lessee of J. T. at &c. recovered against jR. B. his term then to come, of and in two messuages with the appurtenances, in the county aforesaid, &c. (describe them) whereof the said R. B. is convicted, as by the record of the said 248 Scire facias after judgment or upon recognizance. recovery, remaining in our said court, appears : And whereas a writ was awarded to cause the said John Doe to have his posses- sion of his terra aforesaid, but before the said writ was issued, the said R. B. died intestate, leaving R. B. his only child and heir, and the said John Doe has not yet had possession of his said term : Wherefore we command you that you make known to the said R. B. son and heir of the said jR. B. deceased, that he be &c. at &c. on &c. to shew, if he has any thing to say, why the said John Doe ought not to have a writ to cause him to have his possession of his term aforesaid, according to the form and effect of the judgment aforesaid. And have &c. Wit- ness &c. 7. Upon a judgment for money, scire facias aginst heirs and terre* tenants, to have execution of the lands. 1 Rob. Prac. 574, 5. Whereas &c. whereof &c. (as in No. 1. to "manifestly ap- pears.") And after the giving of the said judgment, the said died, leaving his heirs* as we have been in- formed. And we are farther informed that the said was, at the day of obtaining the said judgment, and afterwards, seized of lands and tenements to him and his heirs, and that exe- cution of the debt (or, damages) interest and costs aforesaid still remains to be made. Therefore, at the instance of the said , we command you that you make known to the said , as such heirs of the said as aforesaid, and also to the tenants of all the lands and tenements in your baili- wick, whereof the said , at the day of obtaining the said judgment, or at any time afterwards, was seized to him and his heirs, that they be &c. at &c. on &c. to shew* if they have any thing to say, why the said debt (or, damages) interest and costs aforesaid ought not to be levied of the said lands and tene- ments, according to the effect of the judgment aforesaid. And have &c. Witness &c. 8. Scire facias by administrator de bonis non. 1 Rob. Prac. 57fr. Whereas A. B. as executor of the last will and testament (or, as administrator of the personal estate) of C. D. deceased", at &c. by &c. recovered against E. F. &c. (recite the judgment) whereof the said E. F. is convicted, as by the record thereof in the same court manifestly appears. And afterwards the said A. B. died, since whose death, administration of the personal estate of the said C. D. deceased, unadministered by the said A. B., with the will of the said C. D. annexed, has been granted to G. H. as we are informed. And now, on behalf of the said G. Scire facias after judgment or upon recognizance. 249 H. as such administrator as aforesaid, it is said, &c. (Conclude the writ as in the case of a scire facias upon death of plaintiff, for his administrator to have execution ; for which, see No. 2.) 9. Scire facias against administrator de bonis non. 1 Rob. Prac. 576. Whereas A. B. at &c. by &c. recovered against C. D. as exe- cutor of the last will and testament (or, as administrator of the personal estate) of E. F. deceased (recite the judgment) whereof the said C. D. as executor (or, administrator) as aforesaid, is con- victed, as by the record thereof in the same court manifestly ap- pears. And afterwards the said C. D. died, since whose death, administration of the personal estate of the said E. F. deceased, unadministered by the said C. D., with the will of the said E. F. annexed, has been granted to G. H. as we are informed. And now, on behalf of the said A. B. it is said, that although judg- ment be given as aforesaid, yet execution of the debt (or, da- mages) interest and costs aforesaid still remains to be made. Therefore, at the instance of the said A. B. we command you that you make known to the said G. H. administrator as afore^ said, that he be &c. at &c. on &c. to shew, if he has any thing to say, why the said A. B. ought not to have execution against him the said G. H. as such administrator as aforesaid, of &c. (Conclude the writ as in the case of a scire facias, upon death of defendant, to have execution against his administrator; for which, see No. 3.) i 10. Scire facias where feme plaintiff marries after judgment. 1 Rob. Prac. 576, 7. 531. After reciting the judgment, and continuing as in other cases to the words " manifestly appears," proceed as follows : And afterwards the said intermarried with , and took him to husband, and thenceforward was, and noxv is, covert of the said , as we have been informed. And now, on behalf of the said and his wife, it is said, that although judgment be given as aforesaid, yet execution of the debt (or, damages) interest and costs aforesaid still remains to be made. Therefore, at the instance of the said and his wife, we command you &c. (as in No. 1.) 32 250 Scire facias after judgment or upon recognizance. 11. Where feme defendant marries after judgment. 1 Rob. Prac. 576, 7. The last form will answer, putting the plaintiff's name instead of " and his wife." 12. Where feme plaintiff marries after recovering judgment, and is survived by her husband, who dies before execution. If the husband, surviving the wife, does not in his lifetime reduce her choses in action into possession, then, although in equity those claiming under him are entitled to them, they must be recovered not by his repre- sentatives, but the wife's, and they will take the property as trustees for the representatives of the husband. By lord Tenterden, C. J. in Betts v. Kimpton, 2 Barn. & Ad. 273. 22 Eng. Com. Law Rep. 71. 13. Where, after judgment for husband and wife, husband is survived by his wife, who dies before execution. 1 Rob. Prac. 577. Whereas A. B. and C. his wife, at &c. (reciting the judgment, and continuing as in other cases to the words " manifestly ap- pears.") And after the said judgment was given, the said A. B. died, leaving the said C. him surviving; and the said C. af- terwards died, &c. (as in other cases of scire facias, upon the death of plaintiff, for his executor or administrator to have exe- cution ; the form of which is No. 2.) 14. Where, after judgment, plaintiff dies, and his administratrix- marries. 1 Rob. Prac. 576, 7. 581. After reciting the judgment, and continuing as in other cases to the words " manifestly appears," proceed as follows : And after the said judgment was so given, the said A. B. died intestate, upon whose death, administration of the personal estate of the said deceased was granted to E. F. as we are informed ; and afterwards the said E. F. intermarried with , and took him to husband, and thenceforward was, and now is, covert of the said , as we are likewise informed. And now, on behalf of the said and E. his wife, it is said &c. 15. On a judgment providing for further breaches, scire facias set- ting forth such breaches. 1 Rob. Prac. 577. Whereas A. B. at &c. recovered against C. D. &c. $4361.10 cents, for a certain debt, and also $ 10.26 cents for his costs by him about his suit in that behalf expended, whereof the said C. Scire facias after judgment or upon recognizance. 251 D. is convict as appears of record ; but the said judgment was to be discharged by the payment of $ 334.38 cents, then as- sessed for the damages sustained by the said A. B. by occasion of the breach which had been assigned of the condition of the writing obligatory in the declaration in the said suit mentioned, with interest thereon &c. .till payment, and the costs aforesaid, and such other damages as might be thereafter assessed upon a writ or writs of scire facias being sued out on the said judg- ment, and new breaches of the condition of the said writing obligatory assigned. And now the said A. B. for further and other breaches of the condition of the said writing obligatory, according to the form of the statute in such case made and pro- vided, gives our said court here to understand and be inform- ed, &c. (assigning the further breaches ;) which said several breaches of the condition of the said writing obligatory so as- signed, the said A. B. doth aver, and give our said court here to understand and be informed, are further and other breaches than the breach for and by reason of which he obtained the said judgment so by him recovered as aforesaid ; and for which said other and further breaches he hath humbly besought us to pro- vide him a proper remedy : Therefore we command you that you make known to the said C. D. that he be &c. to shew cause, if any he can, why execution should not be had and awarded against him upon the judgment aforesaid, for the damages which the said A. B. hath sustained by reason of the said further and other breaches of the condition of the writing obligatory afore- said. And have then there &c. Witness &c. 16. Scire facias on a judgment against a personal representative, to be levied quando acciderint. 1 Rob. Prac. 577. 581, 2. Whereas A. B. at &c. by &c. recovered against C. D. execu- tor of the last will and testament (or, administrator of the per- sonal estate) of E. F. deceased, $ , with interest &c. and also $ for his costs &c. to be levied of the goods and chattels which were of the said E. F. deceased at the time of his death, and which, since the plea pleaded by the said C. D. in the said suit, had come, or which should thereafter come, to the hands of the said C. D. as such executor (or, administrator) to be administered ; as by the record of the said judgment in our same court manifestly appears. And now, on behalf of the said A. B. it is said, that although judgment be given as afore- said, yet execution of the debt (or, damages) interest and costs aforesaid still remains to be made ; and that since the said plea pleaded, divers goods and chattels which were of the said E. F. at the time of his death, came to and are now in the 252 Scire facias after judgment or upon recognizance. hands of the said C. D. as executor (or, administrator) as afore- said, to be administered. Therefore, at the instance of the said A. B. we command you that you make known to the said C. D. executor (or, administrator) as aforesaid, that he be &c. at &c. on &c. to shew, if he has any thing to say, why the said A. B. ought not to have execution against him the said C. D. executor (or, administrator) as aforesaid, of the debt (or, damages). inte- rest and costs aforesaid, according to the judgment aforesaid, to be levied of the goods and chattels which were of the said E. F. deceased at the time of his death, and which have come to and are now in the hands of the said C. D. as executor (or, administrator) as aforesaid, to be administered, And have 17. Where the sale of property is indemnified and the value is re- covered from the execution creditor, scire facias to have new execu- tion. 1 Rob. Prac. 540. 578. Whereas A. B. at &c. by &c. recovered against C. D. &c. (reciting the judgment as in No. 1. to " manifestly appears.") And after the said judgment was so given, a writ of fieri facias was sued out thereupon, directed to the sheriff of the county of H. who levied the same on the following property, to wit, (here specify it) ; and a doubt arising whether the right of the proper- ty was in the said C. D. or not, the said sheriff applied to the said A. B. for an indemnifying bond with security, conditioned according to the statutes in such case ; which bond was accord- ingly given, and the sheriff, after such notice as the law re- quires, sold the said property, on the - day of - , for the sum of $ ; - . - . And afterwards one E. F. who claimed the said property, prosecuted his action upon the said bond, and in the said action recovered against the said A. B. damages to the amount of the said sum of $ - ; which being shewn to the court from which the said execution issued, our said court did thereupon quash so much of the return on the said execu- tion as related to the sale aforesaid. And now the said A. B. desires that a new writ or writs of execution may be awarded, for the amount for which the said propert)' was sold, together with legal interest from the day of sale. Therefore we com- mand you that you make known to the said C. D. that he be &c. at &c. on &c. to shew, if he has any thing to say, why a new writ or writs of execution should not be accordingly award" ed And have &c. Scire facias after judgment or upon recognizance. 253 18. Where tenant by elegit is evicted of lands held by extent, scire facias to have new execution, 1 Rob. Prac. 548. 578. Whereas A. B. at &c. by &c. recovered against C. D. &c. (reciting the judgment as in No. 1. to " manifestly appears.") And after the said judgment was so given, the said A. B. pro- secuted a writ of elegit thereon, directed to the sheriff' of H. county, which was returned by the said sheriff with an inquisi- tion taken the day of , whereby it was found that the said C. D. on the day of the caption of the said inquisition, was possessed of no goods and chattels as of his own proper goods, but that the said C. D. at the time of rendering the judg- ment aforesaid, was seized in his own demesne, as of fee, of and in (here specify the houses and lands) with the appurtenan- ces, of the annual value, in all the issues beyond reprises, of $ , of which were a true and equal moiety of all and singular the lands, tenements and hereditaments whatsoever, in the county aforesaid, of the said C. D. ; which said moiety he the said sheriff, the day aforesaid, to the said A, B., at a reason- able extent, delivered, to hold to him and his assigns as his free- hold, until he should have levied the debt (or, damages) interest and costs aforesaid. And now, on behalf of the said A. B. it is said, that he the said A. B. being tenant as aforesaid under and by the said writ of elegit, was, before satisfaction made him for his debt (or, damages) interest and costs aforesaid, to wit, on the day of , evicted of his title in the lands, tene- ments and hereditaments which he held by virtue of the extent aforesaid, by judgment had against him at the suit of , without any fraud or default on the part of him the said A. B. Therefore, at the instance of the said A. B. we command you that you make known to the said C. D. that he be &c. at &c. on &c. to shew, if he has any thing to say, why the said A. B. may not sue out other writ of execution for the residue of his debt (or, damages) interest and costs aforesaid, appearing to remain unpaid. And have then there &c. 19. Scire facias to have execution against property acquired by de- fendant after taking oath of insolvency. 1 Rob. Prac. 560, 61. "578. 582. Whereas A. B. at &c. by &c. recovered against C. D. Sec. (reciting the judgment as in No. 1. to " manifestly appears.") And after the said judgment was so obtained against the said C. D. the said A. B. prosecuted a writ of capias ad satisfaciendum thereon, directed to the sheriff of H. county, by virtue of which the said C. D. was taken in execution, and the said C. D. being 254 Scire facias after judgment or upon recognizance. so in execution, on the day of , delivered in such schedule and took such oath as the law prescribes for insolvent debtors, and performed in other things what the law in such cases requires, and thereupon was duly discharged as an insol- vent debtor. And now, on behalf of the said A. B. it is said, that since the said C. D. was so discharged, he has acquired and become possessed of divers lands and tenements, goods and chattels, and that nevertheless the debt (or, damages) interest and costs aforesaid still remain unpaid. Therefore, at the in- stance of the said A. B. we command you that you make known to the said C. D. that he be &c. at &c. on &c. to shew, if he has any thing to say, why the said A. B. may not have execution upon the judgment aforesaid, against the lands and tenements, goods and chattels which the said C. D. has so acquired or be- come possessed of since his said discharge. And have &c. 20. Scire facias to have execution against the property of a debtor discharged on account of the creditor's failure to pay the jail fees. I Rob. Prac. 561. 578. Whereas A. B. at &c. by &c. recovered against C. D. &c. (reciting the judgment as in No. 1. to "manifestly appears.") And after the said judgment was so given, the said A. B. sued out thereupon a writ of capias ad satisfaciendum directed to the sheriff of H. county, by virtue of which writ the said C. D. was taken in execution, but the said A. B. not paying to the jailor the fees chargeable on account of the imprisonment of the said C. D. the said C. D. was, on account of the failure of the said A. B. to pay the said fees, discharged by the jailor in the man- ner authorized by law. Wherefore, at the instance of the said A. B. we command you that you make known to the said C. D. that he be &c. at &c. on &c. to shew, if he has any thing to say, why the said A. B. may not have a new execution upon the judgment aforesaid, against the goods and chattels, lands and tenements of him the said C. D. And have &c. 21. Scire facias upon recognizance of a surety for costs. 1 Rob. Prac. 178. 578. Whereas, in an action of lately depending in our cir- cuit superior court of law and chancery for the county of H. be- tween C. D. plaintiff and E. F. defendant, A. B. of the said county of H. personally appeared in the said court on the day of , and undertook for the plaintiff, that he should satisfy and pay all such costs and damages as might be award- ed to the defendant in case the plaintiff should be cast in the Scire facias after judgment or upon recognizance. 255 said suit, and also that he the said plaintiff should satisfy and pay all the fees which would become due from him to the offi- cers of the said court, or that he the said A. B. would satisfy and pay those costs, damages and fees for him ; as by the record of the said recognizance, remaining in our said court, appears. And whereas, at a circuit superior court of law and chancery for the said county of H. held on the day of , it was considered by our said court that the plaintiff in the said action should take nothing, and that the defendant should recover against him his costs by him about his defence expended, which costs amount to $ ; whereof the said C. D. is convict, as appears also of record. Nevertheless the said C. J>. has not sa- tisfied and paid those costs, neither has the said A. B. satisfied and paid the same for him, as by the said E. F. we are inform- ed. Therefore we command you that you make known to the said A. B. that he be before &c. to shew, if any thing he has to say, why the said E. F. ought not to have execution against him of the costs aforesaid, according to the form and effect of the recognizance aforesaid. 22. Scire facias upon recognizance of special bail taken by a sheriff". I Rob. Prac. 578. 581. Whereas, on the day of , A. B. sued out of the clerk's office of our circuit superior court of law and chancery for the county of H. a writ of capias ad respondendum against C. D. returnable at the rules which were to be holden for the said court on the first monday in following, on which writ the plaintiff endorsed that it was an action of debt founded upon a writing obligatory for the payment of money, and that bail was required ; and the said writ being directed to the sheriff of the said county of H., G. H. deputy for J. K. sheriff of the said county, executed the same, and while the said C. D. was in his custody, and before the return day of the said writ was passed, to wit, upon the day of in the year , E. F. of the county of personally appeared before the said G. H. deputy for the said J. K. sheriff of the said county, and under- took for the said C. D. at the suit of the said A. B. in the said action, that in case the said C. D. should be cast in the said suit, he the said C. D. would pay and satisfy the condemnation of the court, or render his body to prison in execution for the same, or that he the said E. F. would do it for him ; which recogni- zance was taken and certified by the said deputy sheriff under his hand, and the same was underwritten, subscribed and sealed by the said E. F. as prescribed by law, and the said deputy she- riff thereupon discharged the said C. D. from custody, and he 256 Scire facias offer judgment or upon recognizance. returned the said recognizance, together with the writ, to the office from which the said writ issued, where it remains filed and preserved among the papers of the cause. And whereas, at &c. A. B. by the judgment of our said court given in the said action, recovered against the said C. D. &c. (recite the judgment as in other cases) ; whereof the said C. D. is convicted, as by the record of the said recovery, remaining in our said court, ap- pears. Nevertheless the said C. D. hath not as yet paid and satisfied to the said A. B. the debt (or, damages) interest and costs aforesaid, nor hath he rendered his body to prison in exe- cution for the same, according to the form and effect of the said recognizance, as we are informed. Therefore, at the instance of the said A. B. we command you that you make known to the said E. F. that he be &c. at &c. on &c. to shew, if he has any thing to say, why the said A. B. ought not to have execution against the said E. F. of the debt (or, damages) interest and costs aforesaid, according to the effect of the recognizance afore- said. And have &c 23. Scire facias upon recognizance of special bail taken by a judge or justice of the peace. 1 Rob. Prac. 578. 581. Whereas, in an action of lately depending in our circuit superior court of law and chancery for the county of H. between A. B. plaintiff and C. D. defendant, bail was lawfully required on the writ of capias ad respondendum, and the said writ being executed by the officer to whom it was directed, the defendant was discharged from custody upon giving good special bail to the action in the following manner, that is to say, after the re- turn day of the said writ, to wit, on the day of in the year , E. F. of the county of personally appeared before G. H. one of the judges of the general court (or, a jus- tice of the peace for the county of H. or, the corporation of jR.) and undertook for the said C. D. at the suit of the said A. B. in the said action, that in case the said C. D. should be cast in the said suit, he the said C. D. would pay and satisfy the condemnation of the court, or render his body to prison in exe- cution for the same, or that he the said E. F. would do it for him ; as appears by the said recognizance, which was duly trans- mitted by the said judge (or, justice) to the clerk of our said court, and remains filed with the papers in the said action. And whereas, at &c. (like the last form.) Scire facias after judgment or upon recognizance. 257 24. Scire facias upon recognizance of special bail given in court. 1 Rob. Prac. 578. 581. Whereas, in an action of lately depending in &c. be- tween A. B. plaintiff and C. D. defendant, the said court, for good cause shewn, ruled the defendant to give special bail, and on the day of in the year , E. F. of the county of personally appeared in the said court, and undertook for the defendant, that in case he should be cast in the said suit, he the said defendant would pay and satisfy the condemnation of the court, or render his body to prison in execution for the same, or that he the said E. F. would do it for him ; as by the record of the said recognizance, remaining in our said court, appears. And whereas, at &c. (like the two last forms.) 25. Scire facias against special bail in detinue, upon recognizance taken by a sheriff. I Rob. Prac. 578. 581. Cloud v. Cadet? s ex'or, 4 Leigh 462. Whereas, on the day of , A. B. sued out of &c. a writ of capias ad respondendum against C. D. in an action of detinue for (here describe the property in the said writ named) which writ was returnable at the rules to be holden for the said court on the first monday in following, and on the same the plaintiff endorsed the true species of action, and that bail was required ; and the said writ being directed to &c. (as in No. 22. to) that in case the said C. D. should be cast in the said suit, he the said C. D. would satisfy the condemnation of the court, either by restoring to the said A. B. the specific property which he might recover in the said suit, and paying to him all costs and damages which he might recover therein, or by pay- ing to the plaintiff the alternative value of such property, with the costs and damages aforesaid, or would render his body to prison in execution for the same, or that he the said E. F. would do it for him ; which recognizance was taken and certified by &c. (as in No. 22. to) papers in the cause. And whereas at &c. A. B. by the judgment of our said court given in the said ac- tion, recovered against the said C. D. the said negro girl slave named Betty, of the value of $ 400. if she might be had, but if not, then the value aforesaid of her, together with $ 13. for his damages which he sustained by occasion of the detention of the said slave, and $ 16.47 cents for his costs by him about his suit in that behalf expended ; whereof the said C. D. is convicted, as by the record of the said recovery, remaining in our said court, appears. Nevertheless the said C. D. hath not satisfied the con- demnation of our said court, either by restoring to the said A. 33 258 Scire facias after judgment or upon recognizance. B. the specific property recovered in the said suit, and paying to him the costs and damages recovered therein, or by paying to him the alternative value of the said property, with the said costs and damages,* nor hath he rendered his body to prison in exe- cution for the same, according to the form and effect of the said re- cognizance, as we are informed. Therefore, at the instance of the said A. B. we command you that you make known to the said E. F. that he be &c. at &c. on &c. to shew, if he has any thing to say, why the said A. B. ought not to have execution against him the said E. F. according to the effect of his recognizance aforesaid. And have &c. * If the special bail has surrendered his principal within the time limited and in the manner provided by law for the dis- charge of other special bail, then, in lieu of the words in italics, insert the following : " but has only rendered the body of the said C. D. to prison in execution for the same, as we are in- formed, which surrender discharges the said C. D. only from the payment of the alternative value of the property so recovered, and the costs and damages aforesaid, and does not discharge him from the obligation to deliver the specific property, accord- ing to the effect of his said recognizance." 26. Scire facias against executor or administrator of special bail in action for debt or damages. After the other recitals in a scire facias against special bail, and before the word " Therefore" insert the following : And whereas, since the recognizance and undertaking by the said E. F. so as aforesaid made, he the said E. F. has died, having first made his last will and testament, and thereof appointed G. H. execu- tor, who, since the death of the said E. F. hath duly proved the said will, and taken upon himself the execution of the same (Or died intestate, since whose death, administration of the personal estate of the said deceased has been granted to G. H.) as we are informed. Therefore, at the instance of the said A. B. we command you that you make known to the said G. H. executor (or, administrator) as aforesaid, that he be &c. at &c. on &c. to shew, if he has any thing to say, why the said A. B. ought not to have execution against him the said G. H. as such executor (or, administrator) as aforesaid, of the debt (or, da- mages) interest and costs aforesaid, to be levied of the goods and chattels which were of the said E. F. at the time of his death, in the hands of the said G. H. to be administered, ac- cording to the effect of the recognizance aforesaid. And have &c. Witness &c. Scire facias after judgment or upon recognizance. 259 27. Scire facias against an officer who discharged defendant from custody without taking bail, or without returning recognizance. 1 Rob. Prac. 136. 578. Whereas &c. (as in No. 22. lo) executed the same, and dis- charged the said C. D. from custody without bail (or, executed the same, but did not return any recognizance of bail to the of- fice of the said court with the said writ) so that the said J. K. is to be regarded, lo all intents arid purposes, as the special bail of the said C. D. And whereas, at &c. A. B. by the judgment of our said court given in the said action, recovered against the said C. D. &c. (recite the judgment as in other cases); whereof the said C. D. is convicted, as by the record of the said recovery, remaining in our said court, appears. Nevertheless the said C. D. hath not as yet paid and satisfied to the said A. B. the debt (or, damages) interest and costs aforesaid, nor hath he rendered his body to prison in execution for the same, as we are informed. Therefore, at the instance of the said A. B. we command you that you make known to the said J. K. that he be &c. at &c. on &c. to shew, if he has any thing to say, why the said A. B. ought not to have execution against the said J. K. of the debt (or, damages) interest and costs aforesaid, according to the statute in such case made and provided. And have &c. 28. Where bail taken bij an officer is adjudged insufficient, scire fa- cias against the bail and the officer as joint cognizors. 1 Rob. Prac. 241. 578. Whereas &c. (as in No. 22. to) where it remains filed and preserved among the papers of the cause. And whereas ex- ceptions to the sufficiency of the bail so taken were made by the said A. B. within the time allowed by law, and the said court, on the day of , adjudged the said bail to have been insufficient at the time of taking it; by reason where- of the said J. K. is held bound with the bail and responsible to the said A. B, in the same manner as if the said J. K. had united with the bail, as a joint and several cognizor, in the re- cognizance aforesaid. And whereas, at &c. A. B. by the judg- ment of our said court given in the said action, recovered against the said C. D. &c. (recite the judgment as in other cases) ; whereof the said C. D. is convicted, as by the record of the said recovery, remaining in our said court, appears. Nevertheless the said C. D. hath not as yet paid and satisfied to the said A. B. the debt (or, damages) interest and costs afore- said, nor hath he rendered his body to prison in execution for the same, as we are informed. Therefore, at the instance of the 260 Scire facias after judgment or upon recognizance. said A. B. we command you that you make known to the said E. F. and J. K. that they be &c. at &c. on &c. to shew, if they have any thing to say, why the said A. B. ought not to have execution of the debt (or, damages) interest and costs aforesaid, against them the said E. F. and J. K. according to the effect of the said recognizance, and the statute in such case made and provided. And have &c. 29. Scire facias on recognizance to keep the peace. 1 Rob. Prac. 578. 582. Respublica v. Gobbet, 3 Yeates 93. Whereas, at a court held for the said county, the day of , before the justices of our said court, M. J., L. J. J. and W. R. personally appeared, and severally acknowledged them- selves to be indebted to , governor of this commonwealth, that is to say, the said M. J. in the sum of , and the said L. J. J. and W. R. in the sum of each, to be levied of their respective goods and chattels, lands and tenements, and to our said governor or his successors, for the use of the com- monwealth, rendered, with a condition that if the said M. J. should keep the peace and be of good behaviour towards all the citizens of this commonwealth, and particularly towards a cer- tain C. P. H. for the term of twelve months then next ensuing, then the recognizance aforesaid was to be void ; as by the re- cord of the said recognizance, remaining in our said court, ap- pears. And whereas the said M. J. has not kept the peace and been of good behaviour towards all the citizens of this common- wealth for the term of twelve months next ensuing the date of the said recognizance (or, if the twelve months have not elapsed when the scire facias issues, say has not, from the time of the said re- cognizance, kept the peace and been of good behaviour towards all the citizens of this commonwealth) but has broken the peace and been of bad behaviour, in this, that before the expiration of twelve months next ensuing the date of the said recognizance, to wit, on the day of , at the county aforesaid, he the said M. J. violently assaulted and beat one A. B. ; whereby the condition of the said recognizance is broken. Therefore we command you that you make known to the said M. J., L. J. J. and W. R. that they be &c. at &c. on &c. to shew, if any thing for themselves they have to say, why the said , governor as aforesaid, may not have, for our use, execution against the said M. J. of the said , and against the said L. J. J. and W. R. of the said each, to be levied of their respective goods and chattels, lands arid tenements, according to the form and effect of the recognizance aforesaid. And have &c. Scire facias after judgment or upon recognizance. 261 30. Scire facias on recognizance to appear and answer a felony. 1 Rob. Prac. 578. Whereas J. H. and S. H. at a court held for C. count}', at the courthouse, the eleventh day of January 1809, personally ap- peared before the justices of the said court, and acknowledged themselves severally indebted to W. H. C. governor of this com- monwealth, the said J. H. in the sum of $ 2500. and the said S. H. in the like sum of $2500. of their respective goods and chat- tels, lands and tenements to be levied, and to the said governor or his successors, for the use of the commonwealth, rendered j yet upon condition, that if the said J. H. should personally ap- pear before the judge of &c. at &c. on the first day of the then next term, to answer us of a certain felony whereof he stood ac- cused, and should not depart thence without the leave of the said court, then the said recognizance was to be void ; as by a copy of the said recognizance, to our said circuit superior court transmitted, and now remaining filed among the records thereof, manifestly appears. And whereas the said J. H. hath failed to make his personal appearance before the judge of our said cir- cuit superior court, at the time and place aforesaid, according to the condition of the said recognizance ; as appears of record. Therefore &c. (as last, to) execution against the said J. H. of the said $ 2500. and against the said S. H. of the like sum of $ 2500. to be levied &c. (as last.) 31. Scire facias on recognizance of witnesses to appear and give evi- dence. 1 Rob. Prac. 578. Whereas J. B., E. B. and D. U. of the county of A. afore- said, at a court held for the said county on the day of , personally appeared before the said court, and severally ac- knowledged themselves to be indebted to J. T. governor of this commonwealth, in the sum of 100. each, of their respective goods and chattels, lands and tenements to be levied, and to the said governor and his successors, for the use of the common- wealth, rendered; yet upon this condition, that if the said J. B. &c. should severally make their personal appearance before the judge of &c. at &c. on the first day of the then next term, to give evidence on behalf of the commonwealth against W. R. who stood accused of felony, and should not depart thence without the leave of the said court, then the said recognizance was to be void ; as by a copy of the said recognizance, to the clerk of our said circuit superior court transmitted, and now remaining filed among the records of the said court, manifestly appears. And whereas the said J. B. &c. have failed to make their personal 262 Scire facias after judgment or upon recognizance. appearance before &c. (as last.) Therefore &c. (as in No. 29. to) execution against them of the said sum of 100. each, to be levied &c. (as in No. 29.) 32. Return of executed upon scire facias against special bail return- able in term time. 1 Rob. Prac. 582, 3. This writ was executed by me on the day of , being more than ten days before the return day. 33. Return of nihil upon scire facias. 1 Rob. Prac. 582. 583. The within named C. D. resides in my county, but he hath not any thing therein whereby I can make known to him as with- in I am commanded, nor is he found in the same. 34. Other returns upon scire facias. 1 Rob. Prac. 582. See ante, p. 36. No. 9. and p. 38. No. 12. 13. 14. 35. Alias scire facias awarded. 1 Rob. Prac. 583. The writ of scire facias issued in this case not being execu- ted, an alias writ of scire facias is awarded against the defen- dant, returnable to the next rules. 36. Scire facias for renewal of a judgment being returned executed, execution awarded. 1 Rob. Prac. 583. The defendant having been duly warned, and not appearing, (or, the sheriff having made return &c.) on the motion of the plaintiff by his attorney, it is considered that the plaintiff may have execution against the defendant for $ , with interest thereon to be computed after the rate of six per centum per an- num from the : day of till payment, the debt and in- terest (or, the damages and interest) and $ the costs, in the writ aforesaid specified ; and also that the plaintiff recover against the defendant his costs by him expended in suing forth and prosecuting this writ. 37. If the scire facias be to renew a judgment in ejectment. . may have a writ to cause him to have his possession of his term yet to come, of and in the messuages, plantations and land, with the appurtenances, in the said writ mentioned, and may have execution against the defendant for $ 10. the dama- Scire facias after judgment or upon recognizance. 263 ges and costs in the writ aforesaid specified ; and it is farther considered that the plaintiff recover against the defendant his costs by him expended in suing forth and prosecuting this writ. 38. Upon scire facias to revive judgment against deceased, award of execution against executor or administrator. Add the words to be levied of the goods and chattels of the decedent in the hands of the defendant to be administered. 39. Upon scire facias to revive judgment in detinue against decedent, award of execution against executor or administrator. may have execution against the defendant for the fol- lowing negro slaves in the writ aforesaid mentioned, to wit, Isaac, &c. of the price of $ 300. each, as specified in the said writ, if they may be had, but if not, then the prices aforesaid of them, or of such of them respectively as may not be had, and may also have execution against the defendant for $ , the damages and costs in the said writ mentioned, to be levied, as to the said damages and costs, of the goods and chattels of the decedent in the hands of the defendant to be administered. And it is further considered that the plaintiff recover against the de- fendant his costs by him expended in suing forth and prosecu- ting this writ, to be levied also of the goods and chattels of the decedent in the hands of the defendant to be administered. 40. Award upon scire facias assigning new breaches. 1 Rob. Prac. 583, 4. may have execution against the defendant for the da- mages which the said plaintiff has sustained by reason of the new breaches assigned in the said writ, and that those damages be enquired of by a jury at the next term. 41. Award of execution, at the suit of the governor of the common- wealth, upon a recognizance. The defendant S. H. having been duly warned, and not ap- pearing, on the motion of the attorney for the commonwealth, it is considered that the said /. T. as governor aforesaid, may, for the use of the commonwealth, have execution against the de- fendant for the S 2500. in the writ aforesaid specified, of his goods and chattels, lands and tenements to be levied, according to the form and effect of his recognizance therein mentioned ; and also that the said J. T. governor as aforesaid, recover 264 Scire facias after judgment or upon recognizance* against the defendant the costs expended in suing forth and pro- secuting this writ. 42. Award of execution on a scire facias against special bail in debt. The defendant having been duly warned and not appearing, on the motion of the plaintiff by his attorney, it is considered that the plaintiff may have execution against the defendant for $ 350. the debt, and $ 9. the costs in the writ aforesaid specified, according to the form and effect of his recognizance therein mentioned; and also that the plaintiff recover against the said defendant his costs by him expended in suing forth and prose- cuting this writ. But this judgment may be discharged by the payment of $ 175. with interest &c. till payment, and the said $ 9. and the costs. 43. Award of execution on a scire facias against special bail in detinue. that the plaintiff may have execution against the defen- dant for the negro girl slave named Betty, of the value of $ 400. as specified in the said writ, if the said slave may be had, but if not, then the value aforesaid of her ; also that the plaintiff may have execution against the said defendant for $13. the da- mages, and $ 16.47 cents the costs in the said writ likewise spe- cified, according to the effect of his recognizance therein men- tioned ; and further that the plaintiff recover against the defen- dant his costs by him expended in suing forth and prosecuting this writ. Note. This entry is according to the form heretofore usually observ- ed. But the opinions of the judges in Cloud v. Catletfs ex' or, 4 Leigh 462. proceed upon the supposition that the judgment against special bail in detinue is never for the specific thing. An entry conforming to those opinions will be as follows : that the plaintiff may have execution against the defen- dant for $ 400. the value, specified in the said writ, of the slave therein named, and for $13. the damages, and $ 16.47 cents the costs &c. (as before.) 44. Return of scire facias against special bail amended. 1 Rob. Prac. 584. Lee fy Fitzhugh v. Chilton, 5 Munf. 407. Execution having been awarded in the office against the defen- dant when the second writ of scire facias was returned, and the re- Scire facias after judgment or upon recognizance. 265 turn of nihil not having been made on either writ in a proper manner, the plaintiff, by his attorney, this day moved the court to permit the sheriff to amend his returns, by stating that the defendant has nothing in his bailiwick by which he could be summoned. Whereupon the court permitted the sheriff to amend his return on the first scire facias, and the amendment was ac- cordingly made ; but the court refused to permit any amend- ment of the return on the second writ, and, instead thereof, quashed the last mentioned writ with the return thereon, and remanded the cause to the rules, to be further proceeded in. 45. Where, upon recognizance, scire facias issued against two, and both died, process to revive awarded against representative of last survivor. 1 Rob. Prac. 585. Commonwealth v. Haines, 2 Va. Gas. 134. Both of the defendants having died pending this writ, and the defendant E. F. being the last survivor, on the motion of the at- torney for the commonwealth, a writ of scire facias is awarded to revive this case against Gf. H. executor of the last will and testament (or, administrator of the personal estate) of the said E. F. deceased, returnable here at the next term. 46. Entry of demurrer to scire facias and joinder therein. 1 Rob. Prac. 584. The defendant, by his attorney, says that the matters con- tained in the said writ of scire facias, in manner and form as the same are therein stated and set forth, are not sufficient in law for the .plaintiff to have or maintain his said writ, and that he the said defendant is not bound by the law of the land to an- swer the same ; and in this demurrer of the defendant, the plain- tiff joins. 47. Entry of plea of no such record, and general replication thereto. 1 Rob. Prac. 585. The defendant, by his attorney, says that there is not any re- cord of the said supposed recovery (or, recognizance) in the said writ mentioned, remaining in this court, in manner and form as in the said writ is alleged ; to which plea the plaintiff, by his attorney, replies that there is such a record of the said reco- very (or, recognizance) remaining in this court, as in the said writ is alleged. (Or to which plea the plaintiff, by his attor- ney, replies generally.) 34 266 Scire facias after judgment or upon recognizance. 48. Oyer of record ; demurrer to scire facias ; and joinder. 1 Rob. Prac. 585, 6. Wood v. Commonwealth, 4 Rand. 330. The defendant, by his attorney, craves over of the record of the said supposed recovery (or, recognizance) in the said writ mentioned; which being read and heard, the said defendant says that the matters contained in the said writ &c. (as in No. 46.) 49. Plea that execution had not issued, and scire facias was not sued out within ten years. 1 Rob. Prac. 118. 119. 578. Deneale v. Stump's ex'ors, 8 Peters 528. In &c. C. D. ads A. B. And the said defendant, by his at- torney, comes and defends the wrong and injury, when &c. and says that the judgment in the said writ mentioned ought not to be revived, because he says that execution hath not issued upon the said judgment, and the said writ of scire facias was not is sued within ten years next after the date of the said judgment, but after more than ten years had expired. And this he is ready to verify. Wherefore he prays judgment, if the said judgment ought to be revived, and execution awarded the plaintiff there- upon. 50. Where execution had issued but no return ivas made, plea that ten years had elapsed. 1 Rob. Prac. 118. 119. 578. Fleming's ex' or v. Dunlop fyc. 4 Leigh 338. and says that the plaintiff ought not now to have execu- tion of the judgment in the said writ of scire facias mentioned, be- cause he says that since the said judgment was rendered, to wit, on the 29th day of June 1821, execution hath issued upon the said judgment, and no return is made thereon, and the term of ten years from the date of the said judgment had expired before the day on which the said writ of scire facias issued, and more than ten years had also elapsed between the return day of the exe- cution so issued as aforesaid and the day on which the said writ of scire facias issued ; and between the day on which the said judgment was rendered and the day on which the said writ of scire facias issued, no execution has been obtained upon the said judgment, other than that before mentioned, nor has there been any motion against any sheriff or other officer, or his or their security or securities, for not returning the said execution which so issued as aforesaid. And this he the said defendant is ready to verify. Wherefore he prays judgment if the said ought now to have execution &c. Scire facias after judgment or upon recognizance. 267 51. Another plea under same statute, more briefly drawn. because he says that since the said judgment was ren- dered, only one execution hath issued thereon, to wit, a writ of Jieri facias, which issued on the 29th day of June 1821, and upon the said execution no return is made, and the plaintiS''s writ of scire facias was sued out after the term of ten years from the date of the said judgment, and after the term of ten years from the return day of the said execution. And this &c. (as last.) 52. Plea under same statute by an executor or administrator, to a scire facias issued to revive a judgment obtained against dece- dent. and says that the plaintiff ought not to have execution of the judgment in the said writ of scire facias mentioned, to be levied of the goods and chattels of the said deceased, in his hands to be administered, because he says that &c. (as in either of the two last forms.) 53. Plea by executor or administrator that scire facias was issued against him after the expiration of Jive years from his qualifica- tion. 1 Rob. Prac. 118. 119. 578. In &c. E. F. executor (or, administrator) of C. D. ads A. B. And the said defendant, by his attorney, comes and de- fends the wrong and injury, when &c. and says that the said writ of scire facias ought not to be maintained against him as executor (or, administrator) as aforesaid, to revive the said judg- ment, because he says that the said scire facias was issued against him as executor (or, administrator) as aforesaid, to re- vive the said judgment, after the expiration of five years from the qualification of him the said defendant as executor (or, ad- ministrator) as aforesaid. And this he is ready to verify. Wherefore he prays judgment if the said plaintiff ought to maintain his aforesaid scire facias against him, to revive the said judgment. 54. Entry of plea of payment, with general replication and issue ; and office judgment set aside. 1 Rob. Prac. 586. The defendant, by his attorney, to the said writ of scire facias pleads, that before the suing out the said writ, he had paid the principal, interest and costs recovered by the judgment therein mentioned (or, that the principal, interest and costs recovered by the judgment therein mentioned had been paid) ; to which I 268 Scire facias after judgment or upon recognizance. plea the plaintiff, by his attorney, replies, that the said princi- pal, interest and costs were not paid as aforesaid, and this he prays may be enquired of by the country ; and the defendant likewise. Whereupon it is ordered that the judgment entered in the office against the said defendant be set aside. 55. Entry of judgment in the office, when it becomes final. 1 Rob. Prac. 586. The judgment by default obtained in the office not being set aside, it is therefore considered that the plaintiff may have exe- cution against the defendant for &c. (concluding the entry as in one of the forms from No. 36 to 43.) 56. On a scire facias assigning new breaches, damages assessed, and judgment for plaintiff". This day came the plaintiff by his attorney, and a jury, to wit, A. B. &c. being sworn diligently to enquire of damages in this cause, upon their oath do say, that they assess the damages which the plaintiff hath sustained by occasion of the breaches of the condition of the writing obligatory, assigned in the said writ, as followeth ; that is to say, for the breach by the said F. in not paying to R. W. the amount of an execution served by the said F. on T. E. at the suit of the said W. they assess the damages to $80. and for the breach by the said F. in not pay- ing to J. D. the amount of an execution served by the said F. on W. P. at the suit of the said D. they assess the damages to $ 20. Therefore it is ordered that it be added as a further rule to the judgment recovered in this cause at the last term, that the same may be discharged by the payment of the damages then as- sessed and the costs then recovered, and by the damages this day assessed and the costs of suing forth and prosecuting this writ, and by such other damages as may be hereafter assessed , upon a writ or writs of scire facias being sued out thereon, and new breaches assigned by any person or persons injured. 57. Special bail surrendering principal after scire facias, judgment against him for the costs. 1 Rob. Prac. 586. The defendant having, after this writ was issued, surrendered his principal within the time limited by law ; by consent of the parties by their attorneys, it is ordered that the said writ be dis- missed, and that the defendant pay to the plaintiff the costs ex- pended by him in suing forth and prosecuting the said writ. Scire facias after judgment or upon recognizance. 269 58. Entry of judgment where there is a confession. 1 Rob. Prac. 586. This day came the parties by their attorneys, and the defen- dants, relinquishing their former plea, say, that they cannot gainsay the plaintiff's having such execution against them as is sought by the said writ: Therefore it is considered by the court that the plaintiff may have execution against the defendants for &c. (as in other cases.) 59. Judgment on plea of no such record, where that is the only pica. 1 Rob. Prac. 587. This day came the parties by their attorneys, and thereupon the record of the supposed recovery (or, recognizance) in the writ aforesaid mentioned being seen and inspected, it seems to the court here that there is (or, is not) such a record of the said recovery (or, recognizance) as by the said writ is supposed : Therefore it is considered by the court that &c. (as in other cases where final judgment is given for plaintiff or defendant.) 60. Judgment for plaintiff where, besides no such record, there is a second plea. I Rob. Prac. 587. (Pursue the last form, to) as by the said writ is supposed. Whereupon came a jury, to wit, A. B. &c. who being elected, tried and sworn the truth to speak upon the issue joined on the defendant's second plea, upon their oath do say, that on the said issue they find for the plaintiff. Therefore it is considered by the court that &c. (as in other cases where final judgment is given for plaintiff.) 61. Judgment for defendant whe?'e issue is found for him. that on the said issue they find for the defendant. There- fore it is considered by the court that the plaintiff take nothing by his said writ, and that the defendant go thereof without day, and recover against the plaintiff his costs by him about his de- fence expended. 62. Fieri facias after award of execution upon scire facias reneiv- ing judgment for debt or damages. We command you that of the goods and chattels of C. D. late in your bailiwick, you cause to be made the sum of $ 150. with interest thereon to be computed after the rate of six per centum 270 Scire facias after judgment or upon recognizance. per annum from the day of till payment, and $10.50 cents, which A. B. lately in &c. hath recovered against the said C. D. as well for a certain debt and interest thereon (or, as well for his damages which he sustained by &c. and for interest on those damages) as for his costs by him about his suit in that be- half expended ; whereof the said C. D. is convict, as appears of record ; and also $ 20. which to the said A. B. lately in our said court, were adjudged for his costs by him expended in suing forth and prosecuting against the said C. D. our writ of scire facias; and whereupon it is considered by our said court that the said A. B. have execution against the said C. D. of the debt (or, damages) interest and costs aforesaid ; whereof he is also convict, as appears of record. And that you have &c. (Or, And how &c.) 63. Fieri facias after award of execution against executor or adminis- trator upo?i scire facias reviving judgment rendered in decedent's lifetime. / that of the goods and chattels of J. R. deceased, late in your bailiwick, in the hands of B. R. executor of the last will and testament (or, administrator of the personal estate) of the said J. R. deceased, you cause to be made the sum of &c. which A. B. lately in &c. hath recovered against the said J. R. in his lifetime, as well for &c. as for &c. whereof the said J. R. was convict, as appears of record; also $ , which to the said &c. and whereupon &c. of the debt (or, damages) interest and costs aforesaid, to be levied of the goods and chattels of the said J. R. deceased, in the hands of the said B. R. to be adminis- tered ; whereof he is convict, as appears also of record. And that &c. (Or, And how &c.) 64. Fieri facias after award of execution in favour of executor or administrator upon scire facias reviving judgment obtained by de- cedent. No. 62. or 63. may be used, as may best suit the case. Where the plaintiff's name first occurs, instead of saying " which A. B. lately in &c. hath recovered," say, " which A. B. in his life- time, in &c. recovered." After the words " as appears of re- cord," proceed as follows : " Also $ , which to E. F. execu- tor of the last will and testament (or, administrator of the per- sonal estate) of the said A. B. deceased, lately in &c. were adjudged &c. and whereupon it is considered by our said court that the said E. F. executor (or, administrator) as aforesaid, have execution &c. Scire facias after judgment or upon recognizance. 271 65. Elegit after award of execution against an heir, upon scire facias reviving against him judgment rendered against his ancestor. Whereas A. B. at a circuit superior court of law and chance- ry for the county of Henrico, on the day of , before our judge of the said court held, recovered against C. D. the sum of , with interest thereon &c. till payment, and $ , as well for &c. as for &c. whereof the said C. D. is convict, as appears of record. And the said A. B. has chosen to have de- livered to him a moiety of all the lands and tenements of the said C. D. to have and to hold the said moiety as his freehold, to him and his assigns, until he shall have levied thereof the debt (or, damages) interest and costs aforesaid, and since the death of the said C. D. has sued forth and prosecuted a writ of scire fa- cias upon the said judgment, against R. B. only child and heir of the said C. D. deceased ; whereupon it is considered by our said court that the said A. B. have execution against the said R. B. as son and heir of the said C. D. deceased, of the debt (or, damages) interest and costs aforesaid, and also for , the costs expended in suing forth and prosecuting the said writ, to be levied on the lands and tenements whereof the said C. D. was seized at the day of obtaining the said judgment, or at any time afterwards. Therefore we command you that you cause to be delivered a moiety of all the lands and tenements, in your bailiwick, whereof the said 0. D. was seized al the day of obtaining the said judgment, or at any time afterwards, by reasonable price and extent, to have and to hold the said moiety to him the said A. B. as his freehold, to him and his assigns, ac- cording to the form of the statute, until he shall have levied thereof the debt (or, damages) interest and costs aforesaid ; and that you certify our said judge, under your own seal and the seals of those by whose oath you shall make this extent and ap- praisement, how you shall have executed this writ, on the first day of the next term. And have then &c. 66. Distringas and fi. fa. after award of execution against an exe- cutor or administrator, upon scire facias reviving judgment in de- tinue rendered against his decedent. Whereas J. M. W. at &c. (reciting the judgment as in No. 5.) whereof the said A. M. was convicted, as appears of record. And whereas, after the said judgment was given, the said A. M. died, having first made his last will and testament, and thereof appointed E. F. executor, who proved the same and took upon himself the burthen of its execution (or died intestate, and ad- ministration of his personal estate has been granted to E. F.) 272 Scire facias after judgment or upon recognizance. and since the death of the said A. M. the slaves aforesaid have come to the hands and possession of the said E. F. executor (or, administrator) as aforesaid, and the said J. M. W. has sued forth and prosecuted against him, upon the said judgment, our writ of scire facias : Whereupon it is considered by our said court that the said J. M. W. have execution against the said E. F. for the slaves aforesaid, if they may be had, but if not, then the prices aforesaid of them, or of such of them respectively as may not be had, and also for $ , the damages and costs aforesaid, to be levied, as to the said damages and costs, of the goods and chattels of the decedent, in the hands of the said E. F. to be administered ; and it is further considered that the said J. M. W. recover against the said E. F. his costs by him ex- pended in suing forth and prosecuting the said writ, to be levied also of the goods and chattels of the decedent, in the hands of the said E. F. to be administered ; whereof the said E. F. is convict, as appears also of record. Therefore we command you that you distrain the said E. F. by all his lands and chat- tels in your bailiwick, so that neither he the said E. F. nor any one by him do lay hands on the same until you shall have ano- ther command from us in that behalf, and that you answer to us for the issues of the same, so that the said E. F. render to the said J. M. W. the slaves aforesaid, if they may be had, but if not, then the prices aforesaid of them, or of such of them re- spectively as may not be had. And in what manner you shall have executed this part of our command, make known &c. at &c. on &c. We also command you that you cause to be levied of the goods and chattels of the said A. M. deceased, late in your bailiwick, in the hands of the said E. F. executor (or, ad- ministrator) as aforesaid, the said $ , the damages and costs aforesaid, recovered by the judgment aforesaid, and also $ the costs expended in suing forth and prosecuting the said writ of scire facias ; and that you have that money &c. at &c. on the same day before mentioned. And have then there this writ. Witness &c. 67. Fieri facias after award of execution upon recognizance of special bail in action for debt or damages. that of the goods and chattels of E. F. special bail for T. C. late in your bailiwick, you cause to be made the sum of &c. which J. P. lately in &c. recovered against the said T. C. as well for &c. as for &c. also $ , which &c. (as in No. 62.) and whereupon &c. (as in No. 62.) whereof the said E. F. is convict, as appears of record. Scire facias after judgment or upon recognizance. 273 68. Execution after award thereof upon recognizance of special bail in detinue. Before the decision in Cloud v. Catlett's executor, 4 Leigh 462. the process used was a writ of distringas, by which the officer was com- manded that he should distrain the bail by all his lands and chattels, so that neither he nor any for him should thereto lay hands until some other precept was had, so that he should deliver to the plaintiff the specific property, if it might be had, but if not, then the alternative value. For the damages and costs, execution issued as in any other case of a pe- cuniary recovery. It seems, however, from the opinions in Cloud v. Catlett's executor, that the plaintiff is not at liberty to issue a distringas against the bail, to compel the delivery of the specific property, but is to have execution only for the value, damages and costs. Under this view, his process must of course be a Jieri facias, elegit, or capias ad satisfaciendum. 69. Execution for the commonwealth, upon a recognizance, against the goods and chattels, lands and tenements. 1 Rob. Prac. 587, 8. We command you that of the goods and chattels, lands and tenements of S. H. in your bailiwick, you cause to be made 8 2-500. which the said S. H. by recognizance entered into by J. H. and the said S. H. before the court of C. county, acknow- ledged himself to owe to W. H. C. governor of the common- wealth of Virginia, and to his successors, for the use of the com- monwealth ; also $ 3.57 cents, which to J. T. governor of the commonwealth of Virginia, and successor of the said W. H. C. late governor of the said commonwealth, for the use thereof, (or, which to the said W. H. C. governor as aforesaid, for the use of the commonwealth) in &c. were adjudged for the costs expended in suing forth and prosecuting against the said S. H. upon the said recognizance, our writ of scire facias ; and whereupon it is considered by our said circuit superior court, that the said J. T. governor and successor as aforesaid, (or, the said W. H. C. go- vernor as aforesaid) for the use of the said commonwealth, have execution against the said S. H. for the said $2500. of his goods and chattels, lands and tenements to be levied, and also that the said J. T. governor and successor as aforesaid (or, the said W. H. C. governor as aforesaid) recover against the said S. H. the costs aforesaid ; whereof the said S. H. is convict, as ap- pears of record ; and that you have &c. 35 274 Motions for judgment and award of execution. CHAPTER XXVT. MOTIONS FOR JUDGMENT AND AWARD OF EXECUTION. 1. Notice of motion on forthcoming bond, 1 Rob. Prac. 589, 90. 591, 2. To messrs. C. D. and E. F. Gentlemen, A bond having been executed by you to me, on the day of , in the penalty of $ , with a con- dition whereby, after reciting that upon a judgment obtained by me in the county court of H. against the said C. D. I had sued out a writ of fieri facias, directed to the sheriff of the said county, by virtue whereof certain goods and chattels had been taken by J. K. deputy for L. M. sheriff of the said county, to satisfy the said execution, the amount whereof at the date of the said bond, including the sheriff's fee and commissions, was $ , it was provided that if the said C. D. should have the said goods and chattels forthcoming on the day of , at , being the day and place of sale appointed by the sheriff, then the said obligation was to be void ; and the said C. D. having failed to deliver the said goods and chattels according to the condition of the bond, or to pay the money mentioned in the execution : notice is hereby given to you and each of you, that on the first day of the next term of the said county court, 1 shall move the said court to award execution upon the said bond, in my behalf, against you and each of you, for principal, interest and costs. Given under my hand this day of 2 Defendants not appearing, award of execution by default. 1 Rob. Prac. 598, 9. A. B. plaintiff } A motion on a bond conditioned against > for the forthcoming, on the day of C. D. and E. F. defendants. ) sale, of property taken under ex- ecution. This day came the plaintiff by his attorney, and it appearing, by the oath (or, affidavit) of a witness, that the defendants have had legal notice of this motion, they were solemnly called, but came not. Whereupon, the execution and bond aforesaid being Motions for judgment and award of execution. 275 produced and inspected, it is considered by the court that the plaintiff" may have execution against the defendants for $ 887.08 cents, the penalty of the said bond, and his costs by him in this behalf expended. And the said defendants in mercy &c. But this judgment is to be discharged by the payment of $443.54 cents, with interest thereon to be computed after the rate of six per centum per annum from the 18th day of May 1825 till pay- ment, and the costs. 3. Entry where, after execution of forthcoming bond, an injunction was obtained, and the same being dissolved, damages are included in the judgment. 1 Rob. Prac. 599. may have execution against the defendants for $ the penalty of the said bond, and $ damages according to law for retarding the proceedings, by an injunction, from the 18th day of July 1820 till the 5th day of February 1822, and also for the costs by the said plaintiff in this behalf expended. And the said defendants in mercy &c. But this judgment is to be discharged by the payment of $' , with interest thereon to be computed after the rate of six per centum per annum from the day of till the 18th day of July 1820, and from the 5th day of February 1822 till payment, and the damages and costs aforesaid. 4. Execution awarded by consent on forthcoming bond. This day came the parties by their attorneys, and by their consent it is considered &c. (as in No. 2. or No. 3.) 5. Order quashing execution and forthcoming bond because of defects in execution. 1 Rob. Prac. 601. Couch v. Miller, 2 Leigh 545. This day came the parties by their attorneys, and thereupon the defendant objected to the said bond, because of defects ap- parent on the face of the execution ; and the court being of opi- nion that such defects exist, it is ordered that the said execution and bond be quashed. 6. Order quashing forthcoming bond as faulty. 1 Rob. Prac. 597. This day came the parties by their attorneys, and the defen- dant moved to quash the said forthcoming bond, because the same is faulty. Whereupon, the parties being heard, it is or- dered that the said bond be quashed, pursuant to the said motion. 276 Motions for judgment and award of execution. 7. Sheriff's return on execution amended, by stating that supersedeas was received before day of sale ; and thereupon motion overruled. 1 Rob. Prac. 596, 7. RucTcer v. Harrison, 6 Munf. 181. This day came the parties by their attorneys, and it appear- ing that the sheriff has made a return on the execution, stating that the said C. D. failed to deliver up the property according to the condition of the bond, and the said sheriff now stating, here in court, that before the day of sale he received a writ of super- sedeas, issued by the clerk of the circuit superior court of law and chancery for the county of H. in the name of the said C. D. against the said A. B. superseding all further proceedings upon the judgment on which the said execution issued, the court doth permit him to amend his return, and state the fact of his receiv- ing such supersedeas as aforesaid. And thereupon the said amend- ment being made accordingly, the motion for an award of exe- cution on the said bond is overruled. 8. Continuance of motion. 1 Rob. Prac. 590. Wilkinson v. Hen- drick, 5 Call 12. Amis v. Roger, 7 Leigh 221. This day came the plaintiff by his attorney, and it appearing by the written notice to the defendant, and the affidavit at the foot thereof, that the said defendant hath had legal notice of this motion, he was solemnly called, but came not. Whereupon, at the instance of the said plaintiff, it is ordered that this motion be continued till next. Or: This day came the plaintiff by his attorney, and the defen- dant was solemnly called, but came not. Whereupon &c. (as before.) Or: This day came the parties by their attorneys, and by their consent (or, at the instance of the ) it is ordered that this motion be continued till next. 9. Non est factum pleaded ; issue joined ; verdict for plaintiff; and judgment. 1 Rob. Prac. 600. This day came the parties by their attorneys, and the defen- dant offered a plea of non est factum, and the truth thereof being proved by his oath, the said plea is received ; and the defen- dant having put himself upon the country, the plaintiff doth the like. Whereupon came a jury, to wit, A. B. &c. who being elected, tried and sworn the truth to speak upon the issue joined, Motions for judgment and award of execution. 277 upon their oath do say that on the said issue they find for the plaintiff. Therefore it is considered by the court that &c. (as in No. 2.) 10. Motion heard, and continued for court to consider of its judg- ment. This day came the parties by their attorneys, who being fully heard, it is ordered that the said motion be continued till , for the court to consider of its judgment to be given thereupon. 11. After time taken to consider, judgment for defendant upon the merits. 1 Rob. Prac. 590. This day &c. and the said motion having been maturely con- sidered upon its merits, the court is of opinion that the same is not supported by the evidence : Therefore it is considered that the plaintiff take nothing by his said motion, and that the defen- dant go thereof without day, and recover against the plaintiff his costs by him about his defence expended. 12. After time taken to consider, judgment for plaintiff upon the merits. 1 Rob. Prac. 600. Harpers fyc. v. Patton, 1 Leigh 306. This day came the parties by their attorneys, and the said motion having been maturely considered, the opinion of the court on the said motion is for the plaintiff: Therefore it is con- sidered that &c. (as in No. 2.) 13. Entry of exceptions to judgment. 1 Rob. Prac. 591. Memorandum. To the judgment given for the plaintiff on the said motion, the defendant excepted, and tendered a bill of exceptions, setting forth all the evidence ; which bill was re- ceived, signed and sealed by the court, and ordered to be made part of the record upon the said motion. 14. Bond, where goods are distrained for rent and restored to the debtor, to pay at the end of three months. 1 Rob. Prac. 602. Know all men &c. (The obligation may be like that ante, p. 215. No. 32.) The condition of the above obligation is such, that whereas certain goods of the above bound C. D. have been lawfully dis- trained, on behalf of A. B., by G. H. one of the constables of the county of H. upon certain premises in the said county, for 278 Motions for judgment and award of execution. rent of the said premises in arrear from the said C. D. to the said A. B. to the amount of $ ; and the said C. D. the tenant of the premises and owner of the goods, desiring to re- plevy the same, by sufficient security given to the said con- stable to pay the said money, and $ the costs, with law- ful interest for the same, at the end of three months, this bond is entered into accordingly, and the goods aforesaid are restored to the said C. D. Now if the above bound C. D. his heirs, executors or administrators, shall, at the end of three months from the date hereof, well and truly pay to the said A. B. his executors, administrators or assigns, $ , the money and costs aforesaid, with lawful interest for the same from this date, then the above obligation is to be void, otherwise it is to remain in full force. 15. Where sale is made of goods distrained, bond of the buyer to pay at the end of three months. 1 Rob. Prac. 602, 3. Sess. Acts 1834-5, p. 44. ch. 61. 3. Know all men &c. (as last.) The condition of the above obli- gation is such, that whereas certain goods of C. D. have been law- fully distrained, on behalf of A. B., by G. H. one of the constables of the county of H. upon certain premises in the said county, for rent of the said premises in arrear from the said C. D. to the said A. B. to the amount of $ ; and the said C. D. the te- nant and owner of the goods distrained, having failed, within the time prescribed by law, to replevy the same, by sufficient security given to the said constable to pay the money and all costs, with lawful interest for the same, at the end of three months, the said constable has, according to the statute in such case, sold the goods so distrained, by public auction, to the highest bidder, for money to be paid at the end of three months, where the sum is ten dollars or more ; which sale was made on this day, and at the said sale, part of the said goods was sold to the above bound E. F. for $ 11. and this bond is entered into for the same. Now if the above bound E. F. his heirs, execu- tors or administrators, shall, at the end of three months from the date hereof, well and truly pay to the said A. B. his execu- tors, administrators or assigns, the said sum of $ 11. with law- ful interest thereon from this date, then the above obligation is to be void, otherwise it is to remain in full force. Motions for judgment and award of execution. 279 16. Notice of motion on three months bond given by owner or buyer of goods distrained. 1 Rob. Prac. 603, 4. To messrs. C. D. and E. F. Gentlemen, A bond having been executed by you to me, on the day of , in the penalty of $ , with a condition where- by, after reciting that &c. (set forth the recitals) it was provided that &c. (state the condition) ; and the money not having been paid according to the condition of the bond, and the said bond having been lodged in the court of county; notice is hereby given to you and each of you, that on the first day of the next term of the said county court, I shall move the justices of the said court, wherein the said bond is so lodged, to award execution thereupon, with costs, in my behalf against you and each of you. Given under my hand this day of . 17. Entries upon motions on three months bonds. Like those on forthcoming bonds ; which see ante, No. 2. 4. 6. 8. 9. 10. 11. 12. 13. 18. Notice of motion by surety against principal. 1 Rob. Prac. 604, 5. To mr. C. D. Sir, Judgment having been entered up, in the circuit su- perior court of law and chancery for the county of H. at the suit of A. B. against me as surety for you, upon a bond, and $ , the amount of the said judgment, having been paid and dis- charged by me as such surety, on the day of ; notice is hereby given you, that on the first day of the next term of he said court wherein the said judgment was so entered up, I shall move the said court for judgment agaiost you, for the full amount which has been paid by me as aforesaid, with interest thereon from the time the same was so paid. Given under my hand this day of . 19. Judgment for surety, on motion by him against principal. 1 Rob. Prac. 604, 5, 6. On the motion of L. H. against T. M. This day came the plaintiff by his attorney, and it appearing by the affidavit of W. H. that the defendant hath had legal notice of this motion, he was solemnly called, but came not. Whereupon, the evidence 230 Motions for judgment and award of execution. adduced by the plaintiff being heard, it seems to the court, from the said evidence, that the plaintiff was surety for the defendant, in the bond upon which judgment has been entered up in this court against the said plaintiff at the suit of A. B.; and the court is also satisfied, from the said evidence, that $ , the amount of the said judgment, was paid and discharged by the plaintiff on the day of . Therefore it is considered by the court that the plaintiff recover against the defendant $ , the amount so paid, with interest thereon to be computed after the rate of six per centum per annum from the day of till pay- ment, and the costs by the said plaintiff in this behalf expended. And the said defendant in mercy &c. 20. Judgment for surety, on motion by him against executor or admi- nistrator of principal. I Rob. Prac. 604, 5, 6. On the motion of E. F. against G. H. executor (or, adminis- trator) of C. D. This day &c. Whereupon &c. it seems &c. that the plaintiff was surety for the defendant's testator (or, in- testate) in the bond &c. (as last, to " in this behalf expended") to be levied of the goods and chattels of the decedent, in the hands of the defendant to be administered. And the said de- fendant in mercy &c. 21. Fi. fa. after judgment for surety on motion by him against principal. that of the goods and chattels of T. M. late in your bailiwick, you cause to be made the sum of. $ , which J. R. lately in &c. hath recovered against the said T. M. being the amount of a judgment in the said court against the said J. R. at the suit of A. B. upon a bond in which the said J. R. was surety for the said T. M. and which amount the said J. R. paid ; with interest thereon to be computed after the rate of six per centum per annum from the day of till payment ; also $ , which to the said J. R. in the same court were ad- judged for his costs by him in that behalf expended : whereof the said T. M. is convict as appears of record. 22. Fi. fa. after judgment for surety on motion by him against exe- cutor or administrator of principal. that of the goods and chattels of T. F. deceased, late in your bailiwick, in the hands of W. R. F. and T. M. F. executors of the last will and testament (or, administra- tors of the personal estate) of the said T. F. deceased, you Motions for judgment and award of execution. 281 cause to be made the sum of $ , which T. P. lately in &c. hath recovered against the said W. R. F. and T. M. F. ex- ecutors (or, administrators) as aforesaid, being &c. (as last); whereof the said W. R. F. and T. M. F. executors (or, admi- nistrators) as aforesaid, are convict as appears of record. 23. Notice of motion by surety against cosurety. 1 Rob. Prac. 607. To mr. E. F. Sir, C. D. having become insolvent, and you and my- self being the sureties of the said C. D. jointly bound with him in a bond to A. B. for the payment of money, and judg- ment having been obtained, in the circuit superior court of law and chancery for the county of H. upon the said bond, against me as surety as aforesaid, for &c. (describing the judgment); notice is hereby given you, that on the first day of the next term of the said court wherein judgment has been soobtained,! shall move the said court to grant judgment and award execution against you, for your share and proportion of the debt, interest and costs recovered by the judgment aforesaid. Given under my hand this day of . (Signed) G. H. Note. The first section of the act in 1 R. C. 1819, p. 460. ch. 116. which gives a motion to the surety against the principal debtor or his representatives, only authorizes the motion where " the amount of such judgment or execution, or any part thereof, hath been paid or discharged by such security or securities, his, her or their heirs, executors or ad- ministrators." And yet the second section, which gives a motion to a surety against the other obligors and their representatives, contains no such language. No good reason is perceived for this difference. But it has nevertheless been deemed sufficient, in making a form adapted to the second section, that it should state such a case as comes within the terms of that section. 24. Judgment for surety, on motion by him against a cosurety. (As in No. 19. to) it seems to the court, from the said evidence, that C. D. has become insolvent, and that the plaintiff and de- fendant were the sureties of the said C. D. jointly bound with him in a bond to A. B. for the payment of money, and that judgment has been obtained in this court, upon the said bond, against the plaintiff, for &c. Therefore, on the motion of the plaintiff, it is considered by the court that the said plaintiff re- cover and have execution against the defendant for $ , being the said defendant's share and proportion of the said debt, with interest &c. (as in No. 19.) 36 282 Motions for judgment and award of execution. 25. Judgment for surety, on motion by him against executor or ad- ministrator of cosurety. (As in No. 19. to) it seems to the court, from the said evidence, that C. D. has become insolvent, and that the plaintiff and the defendant's testator (or, intestate) were the sureties &c. (as in No. 24. to) recover and have execution against the defendant for $ , being the share and proportion of the said debt of the defendant's testator (or, intestate), with interest &e. (as in No. 19.) to be levied &c. (as in No. 20.) 26. Notice of motion by bail against principal. 1 Rob. Prac. 607. To mr. C. D. Sir, Judgment having been entered up, in the circuit su- perior court of law and chancery for the county of H. on the day of , against me as special bail for you at the suit of A. B., and $ , the amount of the said judgment, having been paid and discharged by me on the day of ; notice is hereby given you, that on the first day of the next term of the said court wherein judgment has been so en- tered up against me, I shall move the said court for judgment against you, for the full amount of what has been so paid by me. Given under my hand this day of . 27. Notice of motion by a turnpike company against a delinquent stockholder. I Rob. Prac. 607. To mr. C. D. Sir, The president and directors of the company having, by resolution adopted on the day of , re- quired from the stockholders an advance of $ on each share, and having advertised the said requisition in the , a news- paper printed at the place appointed by the stockholders for their general meetings, and you having failed to pay, within one month after the same was advertised, the sum required of you by the said resolution, amounting, on your shares, to $ , the president and directors, after giving one month's no- tice of the time and place of sale, by advertisement in the same newspaper,* sold your said - shares at public auction on the day of , when became the purchaser thereof at the price of $ , to whom the same have been conveyed. The said sale not having produced the sum required to be advanced, with $ the incidental charges attending the sale, and you being an inhabitant of the county of H. notice Motions for judgment and award of execution. 283 is hereby given you, that on the first day of the next term of the court of the said county of H. the president and directors of the said company will move the said court for judgment against you for the balance of $ . Dated this day of . On behalf of the president and directors. * If the shares were offered for sale and there were no bidders After the words " by advertisement in the same newspaper," proceed as follows : " offered the said shares for sale at public auction, on the day of , and there were no bidders therefor. You being an inhabitant of the county of H., notice is hereby given you, that on the first day of the next term of the court of the said county, the president and directors of the said company will move the said court for judgment against you for $ the sum required to be advanced as aforesaid, with $ the incidental charges attending the said attempt to sell, amounting together to $ . Dated this day of 28. Notice of motion by the Mutual Assurance Society, against a person insured, for quotas. Kane v. M. A. Society, 6 Cranch 192. Atkinson v. Same, Id. 202. M. A. Society v. Korn fyc. 7 Cranch 396. Same v. Walk's ex'or, 1 Wheat. 279. Same v. Faxon fyc. 6 Wheat. 606. Curries adm'rs v. M. A. Society, 4 Hen. & Munf. 315. Greenhow v. Barton, 1 Munf. 590. Green- how v. Buck, 5 Munf. 263. Stratton v. M. A. Society, 6 Rand. 22. M. A. Society v. Stone fyc. 3 Leigh 218. Farmers Bank v. M. A. Society tyc. 4 Leigh 69. To mr. W. M. Sir, Take notice that on the day of the next term of the court of H. county, The Mutual Assurance Society against fire on buildings of the state of Virginia will, by their attorney, move the said court for judgment and award of execu- tion against you for the sum of $ , that being the amount of the quotas of the years 1820 and 1821, due to the said society per declaration numbered , and filed in the general office of assurance, and for interest on $ , part thereof, from the day of 1820, and on $ , the residue thereof, from the day of 1821, until payment, with costs, dama- ges and expenses according to law and the rules and regulations of the said society. J. R. principal agent of the said society. General office of assurance, > .Richmond, the day of . > * 284 Motions for judgment and award of execution. 29. Notice of motion by president and directors of literary fund against treasurer of school commissioners and his sureties. 1 Rob. Prac. 607. Naylor v. President 8fc. of Literary Fund, 5 Leigh 71. To A. B. &c. (naming the treasurer and his sureties.) Gentlemen, The school commissioners for the county of H. having, on the day of , appointed the said A. B. one of their own body, treasurer, who, on the day of , gave bond, with the said his sureties, in the court of the said coun- ty, payable to the president and directors of the literary fund, in the penalty of $2000. conditioned for the faithful application of and accounting for all moneys which might come to his hands by virtue of his office, and the sum of $ having after- wards come to the hands of the said A. B. in virtue of his said office, and the said A. B. having, by an order of the said com- missioners, made on the day of , been required to pay the same as follows, that is to say, (here specify to whom and in what sums the money was required to be paid), and the said treasurer having, on the day of , failed to pay the said money to the order of the said commissioners, when duly required thereto : notice is hereby given you, that on the first day of the next term of the court of the said county of H. a motion will be made in the name of the president and direc- tors of the literary fund, in the said court, for a judgment against you for the said money, with ten per centum per annum da- mages thereon from the time of the failure aforesaid till pay- ment, and for the costs. Dated this day of . } commissioners of L. M. &c. > schools for the ) county of H. 30. Notice of motion by jailor against creditor for jail fees. 1 Rob. Prac. 608. To mr. A. B, Sir, Having, on the day of , notified you in wri- ting, that C. D. was confined in the jail of the county of H. upon writ of capias ad satisfaciendum at your suit, and having, at the termination of the first sixty days of the said C. D.'s imprison- ment, demanded of you $ , the amount of my account for his maintenance, and you having failed to make payment thereof; I now give you notice, that on the first day of the next term of the court of the said county of H. I shall move the Motions for judgment and award of execution. 285 said court for judgment against you for the said $ , the amount of the account aforesaid. Given under my hand this day of . E. F. sheriff and jailor of the county of H. 31. Another notice of motion for jail fees, against creditor who re- sides out of the county and has no agent in it. 1 R. C. 1819, p. 544. 54. 1 Rob. Prac. 550. 608. To J. C. Sir, A writ of capias ad satisfaciendum from the circuit supe- rior court of law and chancery for the county of G. in your favour against J. S. S. by the name of J. S. S. acting executor of J. S. S. senior deceased, bearing date the 5th day of February 1834, and directed to the sheriff of H. county, was executed by the said sheriff on the said J. S. S. the 18th day of February 1834, and he was thereupon committed to the jail of H. county. Afterwards, to wit, on the 15th of May 1834, the said J. S. S. entered into a prison bounds bond with J. M. C. his surety, in the penalty of $ 1194.18 cents, conditioned as the law directs, and he was thereupon permitted to go out of prison in the man- ner authorized by law. After the expiration of the time during which the said J. S. S. was entitled to the rules or bounds of the prison, to wit, on the 21st of May 1835, he rendered his body to prison, and has since been closely confined in jail. As your residence is out of the county of H. and you have named no person in the county to be your agent for the purpose of receiving notices from the sheriff, I have not had it in my power heretofore to notify you of the imprisonment of the said J. S. S. My account for his maintenance from the 18th of February 1834 to the 15th of May following, and from the 21st of May 1835 to the 21st of July 1835, is hereto subjoined. I now demand of you dollars and cents, the amount of the said account, arid shall move the court of H. county, on the first monday in September next, for judgment against you for the said amount. Given under my hand this 8th day of August 1835. 286 Motions for judgment and award of execution. 32. Notice of motion by creditor against debtor for jail fees. 1 Rob. Prac. 608. To mr. C. D. Sir, In consequence of your remaining confined in the jail of the county of H. for sixty days from the - day of - , under a wri.t of capias ad satisfaciendum at my suit, the jailor of the said county, by motion to the court thereof, recover- ed a judgment against me, on the - day of - , for $ - , the amount of the prison fees chargeable for your maintenance, and I have been compelled to pay the same ; to wit, on the - day of - . Notice is therefore given you, that on the first day of the next term of the court of the said county, I shall move the said court for judgment against you for the amount which I have lawfully paid as aforesaid for your maintenance, with interest and costs. Given under my hand this - day 33. Notice of motion by client against attorney for money received. 1 Rob. Prac. 608. sum ^ - having been received by you as my attorney, on the - day of - , from the sheriff of the of H. under an execution sued out of the court of the said county, upon a judgment therein rendered on my behalf against C. D. and payment of the money so received having been demanded of you, and you having refused to pay the same when so demanded ; notice is hereby given you, that on the first day of the next term of the court of the said county, I shall move the said court to render judgment against you for the mo- ney so received, and to award damages in lieu of interest, not exceeding fifteen per centum per annum, from the time of your receiving the said mone3 r until it shall be paid. Given under my hand this - day of - . 34. Notice of motion by overseers of the poor against a predecessor in office. 2 R. C. 1819, p. 270. 271. 22. 23. Chapline v. Over- seers of poor, 7 Leigh 231. To C. D. Sir, The overseers of the poor of the county of O. now in office, having, at their annual meeting in -- , settled the accounts of the former overseers, and it being thereby ascer- Motions for judgment and award of execution. 287 tained that a balance of $ is in your hands, which you have failed to pay to the overseers of the poor now in office, al- though the same has been demanded of you ; notice is hereby given you, that on the first day of the next term of the court of the said county, we, the overseers of the poor of the said coun- ty now in office as aforesaid, shall move the said court to grant judgment against you for the said sum so due from you, with costs. Dated this day of . 35. Notice of motion against sheriff and sureties for poor rates col- lected. 1 Rob. Prac. 609. To A. B. &c. (naming the sheriff and his sureties.) Gentlemen, The poor rates for the county of H. placed, on the day of , in the hands of the said A. B. as sheriff' aforesaid for collection, amounting to $ , and the said A. B. having failed to account for and pay the poor rates so placed in his hands, to the overseers of the poor of the said county, or to their order, at the times and in the manner prescribed by law ; notice is hereby given you, that on the first day of the next term of the court of the said county, a motion will be made, in the name of the overseers of the poor of the said county, for judg- ment against you for whatever sum or sums of money may be due and in arrear from the said A. B. as sheriff as aforesaid, on account of the said poor rates, together with interest thereon from the time when due until paid, and costs ; and moreover, for the default of the said A. B. as sheriff" as aforesaid, the court will be asked to render judgment against him for damages on the principal sum due, not exceeding the rate of fifteen per centum per annum, in addition to the interest aforesaid, to be computed during the same time. Dated this day of- 36. Notice of motion against sheriff for failing to pay county levy. I Rob. Prac. 609. To A. B. &c. (naming the sheriff and his sureties.) Gentlemen, The justices of the county of H. having, at their court held in the month of last, laid a levy and assess- ment according to law on the tithable persons in their county, and of the sum to be assessed on the tithables, $ having been appropriated by the court to rne, and you the said A. B. the sheriff charged with the collection of the county levy, having hitherto wholly failed to pay the said sum of $ to me ; no- tice is hereby given you, that on the first day of the next term of the court of the said county, I shall move the said court for 288 Motions for judgment and award of execution. judgment against you for the sum due me, with interest therein from the day of , when the same was lawfully de- manded, till paid, and costs ; and moreover, for the default of the said A. B. as sheriff as aforesaid, the said court will be asked to render judgment against him for damages not exceed- ing the rate of fifteen per centum per annum. Given under my hand this day of . 37. Notice of motion against sheriff for failing to render account of county levy. I Rob. Prac. 609. To A. B. sheriff of the county of H. Sir, The justices of the county of H. having, at their court held in the month of last, laid a levy and assess- ment according to law on the tithable persons in their county, and you the said A. B. as sheriff as aforesaid, having been charged with the collection of the levy, and having, by an order of the said court made on the day of , been required to render to the said court, on the first day of the then next term, a fair and just account of the said levy, and having failed to render such account; notice is hereby given you, that on the first day of the next term of the circuit superior court of law and chancery for the said county, a motion will be made to the said court to render judgment against you, according to law, for a fine not exceeding two hundred dollars, for your said offence. Dated this day of . On behalf of the county of H. C. D. attorney for the said county. 38. Notice of motion against an officer for clerk's fees collected. I Rob. Prac. 609. To A. B. sheriff of the county of H. Sir,' I, C. D. clerk of the circuit superior court of law and chancery for the county of H. (or, of the court of H. county) having, on the day of , delivered to you my ac- counts of fees due from persons residing in the said county, amounting together to $ , and you having failed, on or before the first day of November last, to account with me for the said fees, and pay the same, abating your commission and other proper allowances ; notice is hereby given you, that on the first day of the next term of the court of the said county of H. I shall move the said court for judgment against you for the sum wherewith you are chargeable on account of the said fees, to- gether with damages thereon, not exceeding fifteen per centum Motions for judgment and award of execution. 289 per annum from the time when they ought to have been paid till the judgment shall be discharged. Given under my hand this day of . 39. Notice of motion against officer for not returning execution. J Rob. Prac. 610, 11. To A. B. sheriff of the county of H. Sir, A writ of Jieri facias having issued from the office of H. county court, on the day of , upon a judgment in my name against C. D. for $ , with interest thereon to be computed after the rate of six per centum per annum from the day of till payment, and $ costs, which writ was returnable to the first day of the then next term, and the same having come into the possession of your deputy, and he having failed to return the same to the office from whence it issued, on or before the return day thereof; notice is hereby given you, that on the first day of the next term of the court of the said county, I shall move the said court to fine you, accord- ing to law, for the failure to return the said execution. Given under my hand this day of . If one fine has already been imposed (As last, to " on or before the return day thereof") and the said court having, on the day of , fined you $ for the failure to return the said execution, and the same not being yet returned ; notice is hereby given you, that on &c. I shall move the said court to impose a further fine upon you, ac- cording to the statute in such case made, for the continued fail- ure to return the said execution. Given under my hand this day of . If the officer return the writ without noting how he hath executed it. 1 Rob. Prac. 612, 13. (After the words " having come into the possession of your deputy," proceed as follows :) and he having returned it to the office from whence it issued, without noting thereon how he hath executed the same; notice is hereby given you, that on &c. I shall move the said court to fine you, according to law, for the failure to make a proper return upon the said execution. Given under my hand this day of . 37 290 Motions for judgment and award of execution. 40. Judgment on motion against officer for not returning execution. 1 Rob. Prac. 610 to 613. On the motion of J. G. against E. F. sheriff of the county of if. This da} T came the parties by their attorneys, who being fully heard, it is considered by the court that the defendant be fined $ 230. to the use of the said J. G. for not returning, ac- cording to law, an execution sued out of this court by the plain- tiff against Z. B. which it appears was delivered to the defen- dant (or, G. H. the defendant's deputy) to execute ; and also that the plaintiff recover against the defendant his costs by him &c. mercy &c. 41. Fi. fa. upon judgment against officer for not returning execu- tion. you cause to be made the sum of , which J. R. lately in &c. hath recovered against the said M., it being the sum which the said M. was fined to the use of the said R. for not returning, according to law, an execution sued out of the said court by the said R. against R. C. which was delivered to the said M. (or, to W. L. the said JVf.'s deputy) to execute ; also $ , which to the said R. in the same court were adjudged for his costs &c. 42. Notice of motion against officer for not returning forfeited forth- coming bond. I Rob. Prac. 613. To A. B. sheriff of the county of H. Sir, Upon a judgment obtained in the court of H. county in my name against C. D. for &c. a writ ofjieri facias was issued from the office of the said court on the day of , re- turnable to the first day of the then next term, which writ came into the possession of G. H. your deputy, and was levied by him on goods and chattels of the said C. D. who gave bond, with E. F. his surety, to have the said goods and chattels forthcoming at the day of sale, but afterwards failed to deliver up the same according to the condition of his bond ; and the said G. H. your deputy as aforesaid, has failed to deliver the said bond to me, or any one for me, although it has been de- manded of him, and has also failed to return the same to the office aforesaid, on the return day of the execution. Notice is therefore given you, that on &c. I shall move the said court to fine you, according to law, for the said failure. Given under my hand this day of . Motions for judgment and award of- execution. 291 43. Notice of motion against officer for not returning the schedule of an insolvent debtor. 1 Rob. Prac. 613. To A. B. sheriff of the county of C. Sir, Upon a judgment obtained in the court of H. coun- ty in my name against C. D. for &c. a writ of capias ad satisfa- ciendum was issued from the office of the said court on the day of , returnable to the first day of the then next term, which writ came into the possession of G. H. your deputy, who took the said C. D. in execution, and the said C. D. rendered a schedule of his estate, took the oath prescribed by law, and was discharged as an insolvent debtor; but. the said G. H. your de- puty, though the oath was administered in the court of C. coun- ty, has failed to return a certified copy of the schedule to the of- fice of H. county court, as the statute in such case requires ; (or, though the oath was taken before a justice of the peace, has failed to return the schedule to the office of H. county court, as the statute in such case requires, neither has he made a return to the said office, shewing that any other execution had previ- ously come to his hands, with which the schedule is returned, and specifying the office to which the same is returned.) And more than thirty days having elapsed since the schedule was rendered and oath taken, notice is therefore given you, that on &c. I shall move the said court to fine you, according to law, for the failure to make such return as the law requires in such case. Given under my hand this day of . 44. Notice of motion against officer for not returning account of sales of insolvent's effects. 1 Rob. Prac. 613. (As last, to the words " was discharged as an insolvent deb- tor ;") and the said G. H. your deputy, on the day of , made sale of the effects, which came to his hands, of the said C. D. but he has failed to make a return to the office of H. coun- ty court, stating the amount made by such sale, and specifying the property sold, and the price of each article sold, as the sta- tute in such case requires ; and more than sixty days have elapsed since the said sale was made. Notice is therefore given you, that on &c. I shall move the said court to fine you &c. (as last.) 45. Notice of motion for not returning account of sales of goods sold under execution. 1 Rob. Prac. 613. (As in No. 42. to the words " was levied by him on goods and chattels of the said C. D") and the said G. H. your deputy 292 Motions for judgment, and award of execution. made sale, on the - day of -- , of the said goods and chattels, but he has failed to return, in the manner and time re- quired by the statute, an account of the sales made by him in virtue of the said execution. Notice is therefore given you, that on &c. I shall move the said court to fine you &c. (as last.) If the motion be by the defendant, the commencement of the notice will be as follows : " Upon a judgment obtained in &c. in the name of A. B. against me, for" &c. ; and afterwards, in lieu of the words " was levied by him on goods and chattels of the said C. D" say, " was levied by him on my goods and chattels." If the motion be by a purchaser of the property under the execution, the commencement will be as follows : " Upon a judgment obtained in &c. in the name of A. B. against C. D. for" &c. ; and after the words " made sale, on the -- day of - , of the said goods and chattels," insert, " and I became the purchaser of the same, but the said G. H. has failed" &c. 46. Notice of motion by creditor against officer for money received under execution. 1 Rob. Prac. 613 to 616. Chapman v. Chevis, 9 Leigh 297. To A. B. sheriff of the county of H. and C. D. &c. (naming them) his sureties. Gentlemen, Upon a judgment obtained in the court of H. county in my name against E. F. for &c. a writ of --- was issued from the office of the said court on the - day of -- , re- turnable to the first day of the then next -- term, and di- rected to the sheriff of H. county, upon which writ G. H. de- puty for the said A. B. sheriff as aforesaid, made return that &c. (state the return) ;* and the money so returned levied by the said G. H. on the said writ has not been paid to me. Notice is therefore given you, that on &c. I shall move the said court for judgment against you, jointly, for the money so returned levied on the said writ, with interest thereon at the rate of fifteen per centum per annum from the return day of the execution until the judg- ment shall be discharged. Given under my hand this -- day * If the execution was delivered to the sheriff of any other county than that where the creditor resides, then, after stating the return, proceed (in lieu of the words in italics) as follows: " and although, in consequence of my not residing in the coun- ty of H. I named --- in that county to be my agent for the purpose of receiving the money on the said execution, yet the Motions for judgment and award of execution. 293 said money has not been paid, either to the said or to me. (Or, as follows: and although a demand of the money returned levied by the said G. H. has been made of the said A. B. sheriff as aforesaid, in his county, by having a written order from me, yet the said money has not been paid, either to the said or to me.) 47. Judgment for sheriff's costs, where, after notice by creditor, mo- tion was not made. On the motion of C. D. by his attorney, it is ordered that A. B. pay him his costs occasioned by the notice given him by the said B. that he would move this court on this day for a judgment against him as sheriff of H. county, for the balance of the said jB.'s execution against R. J. ; which motion the said B. hath failed to make. 48. Judgment on motion by creditor against officer for money receiv- ed under execution. 1 Rob. Prac. 613 to 616. This day came &c. considered that the plaintiff re- cover against the defendants $ 185. being the sum returned levied by P. J. as deputy for the defendant A. B. by virtue of a writ ofjieri facias sued out of this court by the plaintiff against T. A. &c. with interest thereon at the rate of fifteen per centum per annum from the day of till payment, and his costs &c. mercy &c. 49. Judgment on motion by creditor against officer for suffering a debtor to escape. 1 Rob. Prac. 613 to 616. This day came &c. Whereupon, it appearing to the court, by the return upon the writ of capias ad satisfaciendum sued out of this court by the plaintiff against J. M. that the defendant hath taken the body of the said J. M. and suffered him to escape, with the consent of the said defendant, out of his custody, it is therefore considered by the court that the plaintiff recover against the defendant the money mentioned in the said writ, amounting to $ , with interest &c. (as last.) 50. Fi. fa. after judgment by creditor against officer for money re- ceived under execution. you cause to be made the sum of , which J. B. lately in &c. hath recovered against the said M. being the sum levied by P. J. his deputy, by virtue of a writ ofjieri facias 294 Motions for judgment and award of execution. sued out of the said court by the said J. B. against T. A. with interest thereon to be computed after the rale of fifteen per centum per annum from the clay of till payment, also $ which to the said J. B. in the same court were ad- judged for his costs &c. 51. Fi. fa. after judgment by creditor against officer for suffering a debtor to escape. you cause to be made the sum of , which /. R. lately in &c. hath recovered against the said M. for the money mentioned in a writ of capias ad satisfaciendum sued out of the said court by the said J. jR. against L. H. upon which return was made by the said M. that he had taken the body of the said H. and suffered him to escape, with the consent of the said M. out of his custody, with interest thereon &c. (as last.) 52. Notice of motion against officer and sureties for surplus arising from sale under execution. 1 Rob. Prac. 616. To A. B. sheriff of the county of H. and C. J>. &c. (naming them) his sureties. Gentlemen, Upon a judgment obtained in the court of H. coun- ty in the name of against me, for &c. a writ of was issued from the office of the said court on the day of , returnable to the first day of the then next term, and directed to the said sheriff of H. county, upon which writ G. H. deputy for the said A. B. sheriff as aforesaid,, made return that &c. (state the return) ; and there has been a failure to pay over to me the surplus money arising from the sale under the said execution, which surplus, after satisfying the said , the creditor aforesaid at whose suit the said sale was made, and all costs and charges of such sale, amounts to $ . Notice is therefore given you, that on &c. I shall move the said court for judgment against you, jointly, for the said surplus money, with interest thereon at the rate of fifteen per centum per annum from the return day of the execution until the judgment shall be dis- charged. Given under my hand this day of . 53. Notice of motion against officer for money arising from the sale of an insolvent's estate. 1 Rob. Prac. 616. (As in No. 43. to the words " was discharged as an insolvent debtor;") and the said 6r. H. your deputy has made a return to the office of H. county court, of a sale made by him, on the Motions for judgment and award of execution, 295 day of , of the effects, which came to his hands, of the said C. D. stating the amount made by such sale, and speci- fying the property sold, and the price of each article sold, by which return it appears that the money arising from the said sale amounts to $ : ; but that money has not been paid to me, as the statute in such case requires. Notice is therefore given you, that on &c. I shall move the said court for judgment against you for the said money, with interest thereon at the rate of fifteen per centum per annum, from the day on which the same ought to have been paid, until the judgment shall be discharged. Given under my hand this day of . 54. Judgment on motion against officer for money arising from the sale of an insolvent's estate. 1 Rob. Prac. 616. considered by the court that the plaintiff recover against the defendant $ 19. being the sum arising from the sale made by T. S. deputy for the defendant P. of property contained in the schedule delivered in by T. M. when in execution at the suit of the plaintiff, with interest thereon at the rate of fifteen per cen- tum per annum from the day of till payment, and his costs &c. 55. Notice of motion against officer for money or goods received un- der summons against the gamishee of an insolvent. 1 Rob. Prac. 616. To A. B. sheriff of the county of H. Sir, C. D. having been discharged as an insolvent debtor, under a writ of capias ad satisfaciendum sued out of the court of H. county at my suit, for &c. and the schedule subscribed and delivered in by the said C. D. mentioning a sum of $ to be due him from E. F. (or, mentioning the following goods and chattels as belonging to him and in the possession of E. F. to wit, &c.) the clerk of the said court, with whom the said sche- dule remained, issued a summons, at my instance, on the day of , against the said E. F. reciting the sum of money he was charged with (or, the particular gfoods and chattels said to be in his possession) and requiring him to appear at the next court, and declare on oath whether the said money, or any part thereof, was really due to the said C. D. (or, whether the said goods and chattels were really in his possession, and were the property of the said C. D.) ; and the said E. F. at the time of executing the said summons, tendered to you the money (or, the goods and chattels) mentioned therein, and you received the 296 Motions for judgment and award of execution. same, but you have failed to return the said summons (or, have made a false return on the said summons or, have failed to pay the money by you received.) Notice is therefore given you, that on &c. I shall move the said court to render judgment against you, according to law, for your said delinquency. Given under my hand this day of . 56. Where the court ascertains the value, in money, of rent reserved in any thing other than money, and property distrained for such rent is sold, notice of motion against officer for the proceeds. 1 Rob. Prac. 616. To A. B. sheriff of the county of H. Sir, After making distress of the property of C. D. for rent of a tenement in the county of H. leased by me to him, the rent whereof was reserved in wheat, I applied to the court of the said county to ascertain the value, in money, of the rent in arrear so reserved, and to order the property distrained, or so much thereof as might be necessary, to be sold for the satisfac- tion of such rent. Whereupon the said court, on the day of , after due notice of the application to the tenant, as- certained the value, in money, of the rent in arrear so reserved, to be $ , and ordered a sale of the property distrained, ano\ awarded costs to me, amounting to $ . In pursuance of which order, E. F. your deputy, who had distrained the proper- ty, proceeded, on the day of , to sell so much of the property distrained as aforesaid, as was necessary to raise the amount of money and costs aforesaid; .and the said E. F. your deputy accordingly received the money and costs afore- said, under the said order, but there has been a failure on his part, and on yours also, to pay over the same to me. Notice is therefore given you, that on &c. 1 shall move the said court for judgment against you for the money and costs so received, with interest thereon at the rate of fifteen per centum per annum, from the day on which the same ought to have been paid to me, until the judgment shall be discharged, and also for the costs of the motion. Given under my hand this day of . Motions for judgment and award of execution. 297 57. Notice of motion by sheriff against deputy, for amount of judg- ment against sheriff for deputy's misconduct. 1 Rob. Prac. 616 to 619. M' Daniel Sfc. v. Brown's ex>or, 8 Leigh 218. To mr. C. D. Sir, On the day of , judgment was rendered by the circuit superior court of law and chancery for the coun- ty of H. in favour of A. B. against me, as sheriff of the county of H. for the sum of &c. (stating the amount of the judgment) for and on account of your default and misconduct as my depu- ty in the said office of sheriff. Notice is therefore given you, that on &c. I shall move the said court to give judgment against you for the full amount of the judgment so rendered against me, and to award execution for the same. Given under my hand this day of . 58. Judgment in favour of sheriff against deputy and his sureties, for amount of judgment against sheriff for deputy's default. M : 'Da- niel 8p v. Brown's ex'or, 8 Leigh 218. On the motion of A. R. executor of J. B. late sheriff of this county, against A. T. late deputy sheriff of the said county, and C. D. and E. F. his sureties. This day came the parties by their attorneys, and the evidence being heard, it appears from the same, that a judgment has been rendered in this court, in favour of C. P. T. against the plaintiff as executor of the said J. B. late sheriff as aforesaid, on account of the default of the defendant A. T. as 'bis deputy, for the sum of $131.21 cents, with interest thereon at the rate of fifteen per centum per an- num from the 25th day of May 1824 till payment, and $4.86 cents costs ; and it further appears that the defendants C. D. and E. F. are the sureties for the said A. T. as deputy sheriff aforesaid. Whereupon, on the motion of the plaintiff, it is con- sidered by the court that the plaintiff recover and have execu- tion against the defendants for the full amount of the judgment aforesaid, that is to say, for the said sum of $ 131.21 cents, with interest thereon at the rate of fifteen per centum per annum from the said 25th day of May 1824 till payment, and the said $ 4.86 cents ; and it is farther considered that the plaintiff recover against the defendants his costs by him in this behalf expended. 38 298 Motions for judgment and award of execution. 59. Notice of motion by sheriff" against deputy, for money received under execution. 1 Rob. Prac. 619, 20. To mr. C. D. Sir, Upon a judgment obtained in the court of H. county, in the name of A. B. against E. F. for &c. a writ of was is- sued from the office of the said court on the day of , returnable to the first day of the then next term, and di- rected to the sheriff of H. county ; upon which writ you, as de- puty for me in the said office of sheriff, made return that &c. (state the return) ; and the money so returned levied by you on the said writ has not been paid, either to the said A. B. or to me. Notice is therefore given you, that on &c. I shall move the said court for judgment against you for the money so returned levied on the said writ, with interest thereon at the. rate of fifteen per centum per annum from the return day of the execution until the judgment shall be discharged. Given under my hand this day of . 60. Notice of motion by sheriff" against deputy and his sureties, for taxes. 1 Rob. Prac. 620. To C. D., E. F. &c. (naming the deputy and his sureties.) Gentlemen, On the day of , I, A. B. sheriff of the county of H. appointed the said C. D. to be my undersheriff, to collect the taxes required by law in the said county ; and the said C. D. has neglected and refused to account for and pay the said taxes to me, or to the treasurer, at the time appointed for paying the same. Notice is therefore given you, that on &c. I shall move the said court to give judgment against you, for all the money wherewith the said C. D. is chargeable on account of the said taxes, and five per centum damages and six per centum interest thereon ; judgment having been obtained against me, as high sheriff, for the same. Given under my hand this day 61. Notice of motion by sheriff against administrators of deputy, for taxes ; drawn more specially than the last. To J. H. and S. P. administrators with the will annexed of J. B. P. deceased, lately a deputy sheriff of the county of H. Take notice, that on the second day of the next court to be held for the said county of H. I shall, by my attorney, move the said court for a judgment and award of execution against you, Motions for judgment and award of execution. 299 as administrators as aforesaid, for the sum of $246.12 cents, which sum your testator the said J. B. P. deceased, in his life- time, after he was appointed by me to be my deputy sheriff, to collect the taxes required by law in the said county, and after he had qualified to his said office of deputy sheriff, to wit, after the day of March in the year 1826, and before the first day of September in the same year, received, by virtue of his said office of deputy sheriff, on account of the taxes required by law in the said county ; that is to say, the sum of $ was received by your said testator of each and every one of the following per- sons, to wit, of D. S. &c. as and for the tax imposed by law on a license to keep an ordinary ; the sum of $ was received by your said testator of each and every one of the following persons, to wit, of J. L. &c. as and for the tax imposed by law on a license to sell by retail goods, wares or merchandise of foreign or domestic growth or manufacture ; and the sum of $ was received by your said testator of a certain J. S. as and for the tax imposed by law on a license to a hawker or pedler to sell dry goods of foreign or domestic growth or manufacture: and which said several sums so received by the said J. B. P. de- ceased, in his lifetime, by virtue of his said office, for the taxes on the several licenses above specified, amounting in the whole to the said sum of $246.12 cents, he the said J. B. P. deceased, in his lifetime, did wholly neglect and refuse to account for and pay to me, or to the treasurer of the commonwealth ; and since the death of the said J. B. P. you, his administrators as afore- said, have also neglected and refused to account for and pay the same to me, or to the said treasurer, at the time appointed for paying the same, or at any other time, either before or since the period last mentioned. And I shall also move the said court for a judgment and award of execution against you, as administra- tors as aforesaid, for interest on the said sum of $ 246.12 cents, from the 1st day of November 1826 (the time appointed for pay- ing the same) till payment, and for the costs of the said motion. W. D. February 15. 1827. sheriff of the county of H. 62. Fi. fa. upon judgment in favour of sheriff against deputy's sureties, for taxes. that of the goods and chattels, in your bailiwick, of J. S. &c. sureties for P. S. deputy for W. J. late sheriff of H. county, you cause to be made $883.11 cents, which the said W. J. late sheriff of the said county of H. lately in &c. hath recovered against them for the money wherewith the said P. S. is chargeable, as deputy aforesaid, on account of the taxes he 63. Notice Oj 300 Motions for judgment and award of execution. had to collect in the said county of H. for the year 1795 ; also $44.15 cents, being the five per centum damages for which judgment has been heretofore obtained against the said W. J. and which the said W. J. has therefore recovered against the said J. S. &c. ; also interest on the said money and damages, at the rate of six per centum per annum, from the day of in the year till payment, and likewise $ , which to the said W. J. in our said county court were adjudged for his costs by him in that behalf expended : whereof the said J. S. &c. are convict &c. of motion by sheriff" against deputy and his sureties, for other moneys. 1 Rob. Prac. 620. To C. D., E. F. &c. (naming the deputy and his sureties.) Gentlemen, The said C. D. who came into the office of deputy sheriff under me, A. B. the sheriff of the county of H. is found in arrears for the following money received, or which ought to have been received, by him by virtue of his office, and for which 1, as his principal, am chargeable ; that is to say, for &c. (here specify the same) : and the said C. D. has not paid and delivered the said money to the person (or, persons) entitled thereto. Notice is therefore given you, that on &c. I shall move the said court to give such judgment against you as I am liable to by motion against me, on account of the said arrears, mis- conduct and default of the said C. D. Given under my hand this day of . 64. Notice of motion by sureties of sheriff for execution against his lands. 1 Rob. Prac. 620, 21. To A. B. sheriff of the county of H. Sir, Judgment having been entered up in the general court, on behalf of the commonwealth, against you as sheriff as aforesaid, and us as sureties for you, for a debt due to the com- monwealth, for which your lands were bound ; and we, as such sureties, having, on the day of , paid and discharged $ , the amount of the said judgment, and having after- wards, to wit, on the day of , in the same court, obtained judgment against you for the full amount paid by us as aforesaid, with interest thereon from the time the same was so paid, we are advised that your lands are bound to us, in like manner as they were bound to the commonwealth. Notice is therefore given you, that on &c. we shall move the general court Motions for judgment and award of execution. 301 to award a like execution against the said lands, to that which would have been issued on behalf of the commonwealth. Given under our hands this day of . 65. Notice of motion by sheriff for execution against lands of deputy and his sureties. 1 Rob. Prac. 621. To C. Z>., E. F. &c. (naming the deputy and his sureties.) Gentlemen, 1 am advised, that for the amount of the judgment recovered by me against you in the court of H. county on the day of , your lands are bound to me, in like manner as my lands were bound to the commonwealth : I therefore give you notice, that on &c. I shall move the said court to award a like execution against the said lands, to that which would have been issued on behalf of the commonwealth against mine. Given under my hand this day of . 66. Notice of motion by sureties of deputy sheriff for execution against his lands. I Rob. Prac. 621. To C. D. Sir, We having, as sureties for you as deputy sheriff of the county of H. paid a debt due from you, in that character, to A. B. the high sheriff of the said county, and a judgment having been recovered by us against you in the court of H. county on the day of , for the amount so paid, with interest and costs ; we are advised that your lands are bound to us, in like manner as they would have been bound to the high sheriff. We therefore give you notice, that on &c. we shall move the said court to award a like execution against your lands, to that which would have been issued on behalf of the high sheriff. Given under our hands this day of . 67. Upon what executions the clerk shall endorse that no security is to be taken. The cases are specified in 1 Rob. Prac. 621, 2. The statutes there referred to are 1 R. C. 1819, p. 530. 16. Id. p. 447. 2. Id. p. 532. 20. Id. p. 252. 24. 25. 26. Id. p. 254. 32. and Sess. Acts 1822-3, p. 32. 3. 302 Attachments. CHAPTER XXVIL ATTACHMENTS. 1. Bond taken where attachment is granted against an absconding debtor for a debt exceeding ten dollars, which has become payable. 1 Rob. Prac. 625. Know all men &c. (as in p. 152. No. 3.) The condition of the above obligation is such, that whereas complaint has this day been made to J. T. mayor of the city of R. that W. J. D. is indebted to J. F. the above bound W. H. and S. B. P. merchants and partners doing business under the firm of jF., H. and P. in the sum of $ 263.82 cents, with interest thereon from the third day of December 1833, and that the said W. J. D. is removing out of the said city of R. privately, or absconds or conceals himself, so that the ordinary process of law cannot be served on him, which complaint has been made on behalf of the said firm of JP., H. and P. by the said W. H. one of the said firm, and he has applied to the said mayor to grant an attachment in the name and on behalf of the said firm, against the estate of their said debtor, returnable to the next term of the court of hustings for the said city : Now, therefore, if the said jP., H. and P. shall satisfy and pay all costs which shall be awarded to the said W. J. D. in case the said F., H. and P. shall be cast in their suit, and also all damages which shall be recovered against them, or any of them, for suing out the said attachment, then the above obligation is to be void, otherwise to remain in full force and virtue. Signed, sealed and delivered > [seal], in the presence of ) [seal]. Note. In Jones f Ford \. Anderson Sfc. 7 Leigh 308. the attach- ment was against the estate of Watson, for a debt due to Jones fy Ford; and Samuel Ford, one of the firm at whose instance the attachment is- sued, gave his bond with sureties. In the condition of the bond it was set forth that an attachment had been granted to Samuel Ford, and the condition was that " the said Samuel Ford shall satisfy and pay all costs which shall be awarded to the said J. W. in case the said S. F. shall be cast in the said suit, and also all damages which shall be recovered against the said 8. F. for his suing out the said attachment." The bond Attachments. 303 not being such as was necessary to authorize an attachment for Jones fy Ford, the attachment was, for this reason, illegal, and was therefore quashed. 2. Attachment against absconding debtor for a debt exceeding ten dollars, which has become payable. 1 Rob. Prac. 623. 625, 6. City of R. to wit : To the serjeant or constable of the said city. Whereas complaint has this day been made to me, J. T. mayor of the city of R. that W. J. D. late an inhabitant of the said city, is indebted to J. F., W. H. and S. B. P. all inhabitants of the city of New York in the state of New York, and merchants and partners doing business under the firm of jP., H. and P. in the sum of $ 263.82 cents, with interest there- on from the third day of December 1833, due by promissory note dated October 1st 1833 and payable sixty days after date, and that the said W. J. D. is removing out of the said city of R. privately, or absconds or conceals himself, so that the ordina- ry process of law cannot be served on him, which complaint has been made on behalf of the said firm of F., H. and P. by the said W. H. one of the said firm, and he has applied to me, the said mayor, to grant an attachment in the name and on behalf of the said firm, against the estate of their said debtor, returnable to the next term of the court of hustings for the said city of jR. ;* and such bond and security being taken by me as the statute re- quires : These are therefore, in the name of the commonwealth, to require you to attach the estate of the said W. J. D. or so much thereof as shall be sufficient to satisfy the said sum of S 263.82 cents, together with interest thereon from the said third day of December 1833, and the costs. And you are empow- ered to serve and levy this attachment upon the slaves, goods and chattels of the said W. J. D. wherever the same shall be found, or in the hands of any person indebted to him or having any effects of his, and to summon such garnishee orgarnishees to appear at the next court of hustings to be held for the said city of R. there to answer, upon oath, what he or she is indebted to the said W. J. D. and what effects of the said W. J. D. he or she hath in his or her hands, or had at the time of serving this attachment. And you are then and there to make known how you have executed this warrant. Given under my hand this tenth day of December 1833. * Where the emergency makes it necessary to issue and serve the attachment on Sunday, insert here these words : " And though it is Sunday, proof is made before me that the said W. J. D. is actually moving or absconding on this day." 304 Attachments. 3. Bond to the officer serving the attachment, for the purpose of re- plevying the same. 1 Rob. Prac. 627. Know all men by these presents, that we C. D. and E. F. are held and firmly bound unto G. H. sheriff (or, serjeant or, con- stable) of the county (or, corporation) of , in the sum of , to be paid to the said Gr. H. his executors, administrators or assigns ; for the payment whereof we bind ourselves jointly and severally, and each of us binds his heirs, executors and ad- ministrators. Sealed with our seals and dated this day of in the year . The condition of the above obligation is such, that whereas, complaint having been made by A. B. to J. K. a justice of the peace for the county (or, corporation) of , that C. D. his debtor is removing out of the said county (or, corporation) pri- vately, or absconds or conceals himself, so that the ordinary pro- cess of law cannot be served on him, the said justice has grant- ed an attachment against the estate of the said debtor, or so much thereof as shall be sufficient to satisfy the said complain- ant his debt, amounting to $ , with interest thereon from the day of till paid, and the costs, which attach- ment bears date the day of , is returnable to the next county (or, corporation) court, and is directed to the sheriff or any constable of the said county (or, to the serjeant or con- stable of the said corporation) ; and whereas L. M. deputy for the said G. H. sheriff (or, serjeant or, constable) as aforesaid, has levied the said attachment upon sundry goods and chattels of the said C. D. and the said C. D. desires to replevy the same : Now if the said C. D. shall appear at the court to which the said attachment is returnable, and abide by and perform the order and judgment of the said court thereupon, then the above obligation is to be void, otherwise it is to remain in full force. 4. Sheriff's return where attached effects are replevied by giving bond and security. I Rob. Prac. 627. By virtue of this attachment, I levied the same, on the day of , upon the following goods and chattels, to wit, &c. and on the same day (or, on the day of ) the said C. D. replevied the same, by giving bond with E. F. his surety ; which bond is herewith returned. 5. Sheriff's return of levy where no bond and security are taken by him. 1 Rob. Prac. 625, 6, 7. By virtue of this attachment, I levied the same, on the day of , upon the following goods and chattels of the with- Attachments. 305 in named C. D. to wit, &c. I have also summoned as garni- shees the following persons, at the following times, to wit, E. F. on the clay of , and G. H. on the day of . 6. Attachment dismissed because it was issued without a proper bond being taken. 1 Rob. Prac. 625. A. B. having made complaint to a justice of the peace of this county, that C. D. his debtor was removing out of the county privately, or absconded or concealed himself, so that the ordi- nary process of law could not be served on him, and the said justice having granted an attachment against the estate of the said C. D. returnable to this court, which has been levied upon sundry goods and chattels, the said A. B. this day appeared by his attorney, and the said C. D. was solemnly called, but came not. Whereupon, it appearing that the said attachment was is- sued without such bond being taken as the statute requires, the court is of opinion that the said attachment is illegal, and doth order that the same be dismissed. 7. Garnishee sworn ; judgment against defendant ; and then judg- ment against garnishee. I Rob. Prac. 626 to 629. As last, to returnable to this court, and the sheriff (or, con- stable or, serjeant) having made return that he had summoned R. A. as garnishee, this day came the plaintiff by his attorney, and the said C. D. was solemnly called, but came not. Where- upon the said R. A. came into court, and being sworn, upon his oath declares that he is indebted to the said C. D. only the sum of $ 10. and that he has not now, and had not at the time of serving the said attachment, any other effects of the said C. D. in his hands. And it being proved that the said C. D. is indebt- ed to the plaintiff the sum of $ mentioned in the attach- ment, with interest thereon from the day of , it is therefore considered by the court that the plaintiff recover against the said C. D. the said $ , with interest thereon to be com- puted after the rate of six per centum per annum from the said day of till payment, and his costs by him in this behalf expended. And it is further considered that the plaintiff recover against the said jR. A. the aforesaid sum of $ 10. towards satisfying this judgment. 39 306 Attachments. 8. Plaintiff alleging that garnishee has not discovered truly, jury impannelled, and after their verdict, judgment against defendant, and then against garnishee. 1 Rob. Prac. 629. As last, to any other effects of the said C. D. in his hands. And thereupon the plaintiff alleging that the said R. A. hath not discovered the true amount due from him to the defendant, or what goods and chattels belonging to the defendant are in his possession, a jury, to wit, N. O. &c. were impannelled imme- diately, and the said jury being sworn diligently to enquire what is the true amount due from the said R. A. to the defendant, and what goods and chattels are in his possession belonging to the defendant, upon their oath do say, that there is due from the said R. A. to the defendant the sum of $ 13.33 cents, and no more, and that there are no goods and chattels in the said R. A.'s possession belonging to the defendant. And it being proved &c. (as last, to) the aforesaid sum of $ 13.33 cents, to- wards satisfying this judgment. If the jury find in the garnishee's favour, say upon their oath do say, that there is due from the said R. A. to the defen- dant the sum of $ 10. as stated by him, and no more, and that there are no goods arid chattels in the said R. A.'s possession be- longing to the defendant. And it being proved &c. (as in No. 7. to the end, adding) and that the said R. A. recover against the plaintiff his costs. 9. Judgment against a garnishee who owes more than is sufficient to satisfy the demand against the absconding debtor. 1 Rob. Prac. 629. As in No. 7. or 8. to the end of the judgment against the abscond- ing debtor, and then as follows : And inasmuch as the sum of money due from the said R. A. to the said C. D. is more than sufficient to satisfy the debt, interest and costs recovered against the said C. D., it is farther considered that the said R. A. out of the money so due from him, pay to the plaintiff the whole amount of the said debt, interest and costs, so recovered against the said C. D. 10. Judgment against absconding debtor who neither replevies nor makes defence, and order for sale of attached effects. 1 Rob. Prac. 628, 9. As in No. 6. to was solemnly called, but came not. Whereupon it being proved that the said C. D. is indebted &c. Attachments. 307 (as in No. 7. to the end of the judgment against the absconding debtor.) And it is ordered that the officer who levied the said attachment, sell and dispose of the goods and chattels attached as aforesaid, for and towards satisfaction of the plaintiff 's judg- ment, in the same manner as goods taken in execution upon a writ ofjieri facias. And the said officer is required to return to the clerk's office, within thirty days after such sale is made and completed, an account of the sales, specifying therein the several articles sold, the persons to whom sold, and the prices thereof. 11. Order where attached effects are to be sold to satisfy, first, a prior judgment, and then a subsequent one. 1 Rob. Prac. 628, 9. As in No. 6. to returnable to this court ; and return being made, that before the said attachment came to the officer's hands, ~ another had been delivered to him, in favour of TV. M. against the estate of the said C. D. which he levied upon sundry goods and chattels, and that he afterwards levied in this case upon the same goods and chattels, subject however to the prior levy in fa- vour of the said W. M. ; this day came the said A. B. by his at- torney, and the said C. D. was solemnly called, but came not. Whereupon, it being proved that the said C. D. is indebted &c. (as in No. 7. to the end of the judgment against the absconding debtor.) And it is ordered that the officer who levied the said attachments, after selling and disposing of the goods and chat- tels attached as aforesaid, and satisfying the judgment this day rendered on the said attachment in favour of the said W. M., pay and satisfy this judgment to the plaintiff, and restore the overplus, if any, to the defendant. And the said officer is re- quired &c. (as last.) 12. Order, before attachment is decided, for the sale of property lia- ble to perish, or to become impaired in value, or which it may be ex- pensive to keep. Sess. Acts 3838, p. 73. ch. 94. The attachment in this case having been levied upon proper- ty liable to perish (or, to become materially impaired in value or, which it may be expensive to keep), the court doth order that the officer who levied the said attachment, sell the property at- tached as aforesaid, at such time and place, on such terms, and after such public notice, as is required by law in the case of goods taken in execution upon a writ ofjieri facias. And the said officer is required &c. (as in No. 10.) 303 Attachments. 13. Attachment replevied by putting in bail in court. 1 Rob. Prac. 627. As in No. 6. to which has been levied upon sundry goods and chattels, the said C. D. this day appeared by attorney, for the purpose of replevying the same, and being ruled to put in good bail, E. F. of this county comes into court and undertakes for the said C. D. that in case he shall be cast in this suit, he shall pay and satisfy the condemnation of the court, or render his body to prison in execution for the same, or that he the said E. F. will do it for him. Whereupon it is ordered that the goods and chattels attached as aforesaid be restored to him the said C. D. And the cause is remanded to the rules, so that the plaintiff may file his declaration, and the case be regularly proceeded in. 14. Defendant admitted to make defence without replevying the pro- perty attached. 1 Rob. Prac. 628. As last, to the said C, D. this day appeared by attorney, and on his motion, he is admitted to make defence without giving bail ; but the property attached is not thereby to be replevied. Whereupon the defendant offered a plea in abatement, and the plaintiff, by his attorney, insisting that the plea is one which ought not to be received, the court, without deciding at this time whether the said plea shall be admitted or rejected, doth, by con- sent of the parties, order that the case be continued till the next term. 15. Plea in abatement. 1 Rob. Prac. 628. In the court of hustings for the city of R. April term 1832. R. C. M. ads C. M. Attachment. And the said R. C. M. in his proper person comes and defends the wrong and injury, when &c. and prays judgment of the said attachment of the said C. M. because he says that he the said R. C. M. on the day on which the said attachment was issued, or at any time before or since, was not removing out of the said corporation of R. pri- vately, nor has he at any time absconded or concealed himself, so that the ordinary process of law could not be served on him. And this he the said R. C. M. is ready to verify. Wherefore he prays judgment of the attachment aforesaid, and that the same may be quashed &c. For affidavit, see p. 16. No. 28. Attachments. 309 16. Plea by claimant of the goods attached. 1 Rob. Prac. 628. In &c. A. B. v. C. D. Attachment. E. F. by his attorney comes, and as well at the suit of the said A. B. as at the suit of the said C. D. defends the wrong and injury, when &c. and saith that the goods and chattels taken by virtue of the said attachment were not, at the time of levy- ing the said attachment or at any time since, the property of the said C. D. but were at that time, and are now, the proper goods and chattels of the said E. F. to wit, at the said county (or, corporation) of . And this he the said E. F. is ready to verify. Wherefore he prays judgment whether the said goods and chattels ought to be sold and disposed of to satisfy the debt, interest and costs in the said attachment mentioned. 17. Replication to plea of claimant. 1 Rob. Prac. 628. And the said A. B. saith that he, by reason of any thing by the said E. F. in pleading alleged, ought not to be precluded from having the goods and chattels, taken by virtue of the said attachment, sold and disposed of to satisfy the debt, interest and costs therein mentioned, because he saith that the said goods and chattels so taken were not, at the time of levying the said attachment or at any time since, the goods and chattels of the said E. F. but were at that time, and ever since have been, the proper goods and chattels of the said C. D. And this the said A. B. prays may be enquired of by the country ; and the said E. F. likewise. 18. Entry of claimant's plea, and replication thereto ; verdict for claimant ; and judgment thereupon. 1 Rob. Prac. 628. As in No. 6. to which has been levied upon sundry goods and chattels, this day came the plaintiff and E. F. by their at- torneys, and the said E. F. filed a plea claiming the goods and chattels taken by virtue of the said attachment, and the plain- tiff filed his replication thereto, praying that the matter may be enquired of by the country ; and the said E. F. prays the like. Whereupon the court doth direct that a jury be impannelled to enquire into the right of property ; and a jury, to wit, N. O. &c. being elected, tried and sworn the truth to speak upon the issue joined, upon their oath do say that the said goods and chattels so taken were not, at the time of levying the said at- tachment or at any time since, the property of the said C. D. but were at that time, and are now, the proper goods and chat- tels of the said E. F. Therefore it is ordered that the said goods 310 Attachments. and chattels so taken be delivered up to the said E. F. and it is considered that he recover against the plaintiff his costs by him in this behalf expended. And there being nothing now upon which the said attachment can operate as against the de- fendant C. D. it is ordered that the same, as to him, be dis- missed. 19. Verdict, on claimant's plea, in favour of the attaching creditor, and judgment thereupon. 1 Rob. Prac. 628. oath do say that the said goods and chattels so taken were not, at the time of levying the said attachment or at any time since, the goods and chattels of the said E. F. but were at that lime, and ever since have been, the proper goods and chat- tels of the said C. D. Therefore it is considered that the plain- tiff recover against the said E. F. his costs by him expended in making up the said issue, and about the trial thereof. 20. Affidavit to obtain attachment^ where debt is under $ 20. and deb- tor removes his effects. 1 Rob. Prac. 629. 1 R. C. 1819, p. 477. $ 10. H. county, to wit : A. B. maketh oath and saith that there is justly due to him from C. D. who resides in the said county, by a promissory note dated the day of and payable the day of , the sum of $ 19. with interest from the day last men- tioned, and that he hath grounds to suspect, and verily believes, that the said C. D. intends to remove his effects. A. B. Sworn to by the said A. B. this day of , before me, a justice of the peace for the county of H. E. F. 21. Attachment where debt is under $ 20. and debtor removes his effects. 1 Rob. Prac. 629. 1 R. C. 1819, p. 477. $ 10. To all sheriffs, Serjeants and constables within the common- wealth of Virginia. Whereas A. B. has this day come before me, a justice of the peace for the county of H. and made oath that there is justly due to him from C. D. who resides in the said county, by a pro- missory note dated the day of and payable the day of , the sum of $ 19. with interest from the day last mentioned, and that he hath grounds to suspect, and verily believes, that the said C. D. intends to remove his effects : These are therefore, in the name of the commonwealth, to re- Attachments. 311 quire you to attach the estate of the said C. D. or so much there- of as shall be sufficient to satisfy the said sum of $ 19. with in- terest thereon from the said day of , and the costs. And I do hereby make known to you and every of you, that, by virtue hereof, it is lawful as well for the sheriff or any constable of this county, as for the sheriff, serjeant, or any constable of any other county or corporation, to pursue and seize such effects. And the officer executing this warrant is to make return to the next court of the said county of H. how he has executed the same. Given under my hand this day of . 22. Affidavit to obtain attachment, where debtor removes before debt is payable. 1 Rob. Prac. 630. 1 R. C. 1819, p. 478. 14. H. county, to wit : A. B. maketh oath and saith, that he is the creditor of C. D. who resides in the said county (or, who has removed from the said county of H. where he last resided or, where his effects may be found) and the true amount of the said debt is $ , and it will be payable on the day of , being evi- denced by a promissory note payable at that time ; and that he hath good cause to suspect, and verily believes, that the said C. D. will remove himself, with his effects, out of the common- wealth before the said debt will become payable (or, that the said C. D. hath actually removed himself out of the common- wealth, before the said debt has become payable); and also that he had no knowledge, when the said debt was contracted, of the intention of the said C. D. so to remove. A. B. Sworn to by the said A. B. this day of , before me, a justice of the peace for the county of H. E. F. 23. Bond upon obtaining attachment for claim of $ 10. or upwards, where debtor removes before debt is payable. I Rob. Prac. 630. 1 R. C. 1819, p. 478. 14. Know all men &c. (as in p. 152. No. 3.) The condition of the above obligation is such, that whereas the above named A. B. has this day gone before E. F. a justice of the peace of the county of H. and made oath that &c. (re- citing the oath as in No. 22.) and the said A. B. has thereupon applied to the said justice to issue an attachment against the goods and chattels of the said C. D. returnable to the next court to be holden for the said county of H. Now therefore, if the said A. B. shall &c. (as in No. 1.) 312 Attachments. 24. Attachment for claim of $ 10. or upwards, where debtor removes before debt is payable. 1 Rob. Prac. 630. 1 R. C. 1819, p. 478. 14. H. county, to wit: To the sheriff or constable of the said county. Whereas A. B. has this day come before me, a justice of the peace for the said county of H. and made oath that &c. (as in No. 22.); and bond and security being taken by me from the said A. B. as the statute requires : These are therefore, in the name of the commonwealth, to require you to attach the goods and chattels of the said C. D. or so much thereof as shall be sufficient to satisfy the said sum of $ , and the costs ; and this attachment may be served by you on the goods and chattels of the said C. D. or on any garnishee or garnishees ; and you are required to make return to the next court to be holden for the said county of H. how you execute the same. Given under my hand this day of . 25. Another, where the creditor is a mercantile Jirm. 1 Rob. Prac. 630. City of R. to wit : To the serjeant or constable of the said city. Whereas W. H. an inhabitant out of this commonwealth, to wit, of the city of New York in the state of New York, has this day made oath before me, J. T. mayor of the city of R. in the state of Virginia, that W. J. D. late an inhabitant of the said city of R. (in which city he last resided) is indebted to /. F. the above named W. H. and S. B. P. inhabitants of the said city of New York in the state of New York, and merchants and part- ners doing business under the firm of F., H. and P. in the sum of $534.25 cents, part whereof will be payable on the 16th day of January 1834, and the residue on the 18th day of February 1834, that is to say, $264. by virtue of a note dated on the 15th day of October 1833, payable 90 days after date, and $270.25 cents for merchandise sold on the 15th of October 1833, paya- ble at four months; and the said W. H. further made oath that the said W. J. D. hath removed himself out of this common- wealth, leaving effects in the said city of R. and that he the said W. H. had no knowledge, and he verily believes the said J. F. and S. B. P. had no knowledge, when the said debts were con- tracted, that the said W. J. D. had any intention so to remove : These are therefore to require you to attach the goods and chat- tels of the said W. J. D. or so much thereof as will be sufficient to satisfy the said debts and the costs ; and such estate, so at- Attachments. 313 tached, in your hands to secure, or so to provide that the same may be liable to further proceedings thereon, to be had at the next term of the court of hustings to be held for the said city of R. ; when and where you are to make return how you have ex- ecuted this warrant. Given under my hand this 10th day of December 1833. 26. Bond given by the debtor for the payment of the debt when it shall become due. 1 R. C. 1819, p. 479. Know all men &c. (as in p. 152. No 3.) The condition of the above obligation is such, that whereas the above named A. B. has gone before E. F. a justice of the peace for the county of H. and made oath that &c. (as in No. 22.) ; and thereupon the said justice, taking bond and security from the said A. B. as the statute requires, has issued an attach- ment against the goods and chattels of the said C. D. returna- ble to the next court to be holden for the said county of H. which attachment has been served on sundry goods and chattels of the said C. D. Now therefore, if payment be made of the said debt when it shall become due, then the above obligation is to be void, otherwise it is to remain in full force. 27. Debtor not giving bond for payment of debt when it shall be- come due, judgment against him, and order for sale of attached effects. 1 R. C. 1819, p. 479. A. B. having gone before a justice of the peace of this coun- ty, and made oath that &c. (as in the attachment), and there- upon the said justice, taking bond and security from the said A. B. as the statute requires, having issued an attachment against the goods and chattels of the said C. D. returnable to this court, which has been served on sundry goods and chattels of the said C. D. ; the said A. B. this day appeared by his at- torney, and the said C. D. was solemnly called, but came not. Whereupon, due proof being adduced of the justice of the said debt, and of the intention of the said C. D. to remove (or, of the said C. D.'s having actually removed) out of this commonwealth, it is considered by the court that the plaintiff recover against the said C. D. his debt aforesaid, when the same shall be pay- able, and his costs by him in this behalf expended. And it is ordered that the officer who levied the said attachment, sell the goods and chattels attached as aforesaid, or so much thereof as shall be necessary, upon a credit until the time the plaintiff's claim shall be payable, taking a bond or bonds with good secu- rity from the purchaser or purchasers, and that he assign the 40 314 Attachments. same to the plaintiff, to the amount of his debt and costs ; and if it so happen that more of the goods attached shall be sold than shall be necessary to satisfy the said debt and costs, then the said officer is to take a bond with good security for the sur- plus, and assign the same to the defendant. And the said offi- cer is required &c. (as in No. 10.) Or, more briefly thus : And it is ordered that the officer who levied the said attach- ment, sell the goods and chattels attached as aforesaid, or so much thereof as shall be necessary, upon a credit until the time the plaintiff's claim shall be payable, taking a bond or bonds with good security from the purchaser or purchasers, and dis- posing of the same as the law directs. And the said officer is required &c. (as in No. 10.) 28. Judgment against debtor for amount to become due, and then judgment against garnishee. 1 R. C. 1819, p. 479. As last, to which has been served on E. F. as garnishee ; the said A. B. this day appeared by attorney, and the said C. D. was solemnly called, but came not. Whereupon the said E. F. came into court, and being sworn, upon his oath declared that he is indebted to the said C. D. only the sum of $ (or, that he will be indebted to the said C. D. the sum of $ on the day of next) and that he has not now, and had not at the time of serving the said attachment, any other effects of the said C. D. in his hands. And thereupon, due proof being adduced of the justice of the debt in the attachment mentioned, and of &c. (as in last form, to end of judgment against absconding debtor). And it is further considered that the plaintiff recover against the said E. F. the aforesaid sum of $ , towards satisfying this judgment. But execution against the said E. F. is stayed until the day of next. 29. Affidavit to obtain attachment where tenant will remove his effects before rent will be payable. 1 Rob. Prac. 631. Johnson v. Gar- land, 9 Leigh 149. H. county, to wit : A. B. maketh oath and saith, that a cer- tain tenement in the said county has been leased by him to C. D. for one year, from the first of July 1819 to the first of July 1820, and by the agreement between him and the said C. D. he the said C. D. was to pay for the said tenement, for the said year, $ 950. in quarteryearly sums, to wit, $237.50 cents on the 1st of October 1819, and the like sum of $237.50 cents on each first day of the succeeding January, April and July ; and by Attachments. 315 virtue of the said agreement, the sum of $237.50 cents will be due on the first of October next; and that he has just cause to suspect, and verily believes, that the said C. D. will remove his effects from the leased tenement before the said first day of Oc- tober next. A. B. Sworn to by the said A. B. this day of , before me, a justice of the peace for the county of H. 30. Affidavit where the tenant has actually removed his effects before the rent has become due. 1 R. C. 1819, p. 449. 10. Sess. Acts 1822-3, p. 29. ch. 29. 1. As last, to will be due on the first of October next ; and that the said C. D. has actually removed his effects from the said leased tenement, before the sum of $ 237.50 cents last mentioned hath become due, so that there is not left on the said tenement, property liable to distress, sufficient to secure the payment of the said sum of $237.50 cents. 31. Attachment where tenant will remove or has removed his effects before rent becomes payable. 1 Rob. Prac. 631. Johnson v. Garland, 9 Leigh 149. H. county to wit : To the sheriff or any constable of the said county. Whereas A. B. has this day come before me, a justice of the peace for the said county, and made oath that &c. (as in No. 29 or 30.) : These are therefore, in the name of the commonwealth, to require you to attach the goods and chattels of the said C. D. or so much thereof as will be sufficient to satisfy the said sum of $ 237.50 cents, to become due on the first of October next, and the costs ; and you are to make return to the next court to be holden for the said county of H. how you execute this war- rant. Given under my hand this day of . 32. Order quashing attachment for rent. 1 Rob. Prac. 631, 2. A. B. having gone before a justice of the peace of this coun- ty, and made oath that &c. (as in the attachment), and the said justice having thereupon issued an attachment against the goods and chattels of the said C. D. returnable to this court, which has been levied on sundry goods and chattels ; this day came the parties by their attorneys, and the attachment aforesaid being seen and inspected, and the parties fully heard, it seems to the court that, on the face of the said attachment, it appears that the 316 Attachments. same was illegally issued ; and it is therefore ordered that the said attachment be quashed, and that the plaintiff pay to the defendant his costs. 33. Recognizance for the payment of rent at the time it will become due. 1 Rob. Prac. 632. Johnson v. Garland, 9 Leigh 149. H. county, to wit : Be it remembered that on the day of in the year , C. D. and E. F. of the said county personally appeared before me, , a justice of the peace for the said county, and acknowledged themselves to be jointly and severally indebted to A. B. his executors, administrators or assigns, in the sum of $ , to be made of them jointly or severally, and to be levied of their joint and several goods and chattels, lands and tenements, if the said C. D. shall make de- fault in the condition hereunder written. The condition of the above written recognizance is such, that whereas A. B. has gone before a justice of the peace of the county of H. and made oath that &c. (as in the attachment), and the said justice has thereupon issued an attachment against the goods and chattels of the said C. D. returnable to the next court to be holden for the said county of H. Now if the said C. D. his heirs, executors or administrators, shall pay the rent for which the said attachment has issued, at the time the said rent shall become due, then the above recognizance is to be void, otherwise it is to remain in full force. 34. Attachment having issued irregularly, order quashing same and the recognizance taken under it. 1 Rob. Prac. 632. Johnson v. Garland, 9 Leigh 149. A. B. having gone before a justice of the peace of this coun- ty, and made oath that &c. (as in the attachment), and the said justice having thereupon issued an attachment against the goods and chattels of the said C. D. returnable to this court, and re- turn being made that the said C. D. entered into a recognizance, with E. F. his surety, for the payment of the said rent at the time it shall become due ; this day came as well the said A. B. as the said C. D. by their attorneys, and the said C. D. insist- ing that the said attachment issued irregularly, moved the court to quash the said attachment, and the recognizance taken under the same. Whereupon, the parties being fully heard, the court doth order that the said attachment and recognizance be quashed accordingly, and that the said A. B. pay to the said C. D. his costs by him- in this behalf expended. Attachments. 317 85. Tenant not entering into recognizance for the payment of the rent, goods attached ordered to be sold. 1 Rob. Prac. 632. A. B. having gone before a justice of the peace of this coun- ty, and made oath that &c. (as in the attachment), and the said justice having thereupon issued an attachment against the goods and chattels of the said C. D. returnable to this court, which has been levied upon sundry goods and chattels ; this day came the said A. B., and the said C. D. was solemnly called, but came not. Whereupon the court doth order the officer who levied the said attachment to sell the goods attached, for money to be paid at the time the rent for which the said attachment issued shall become due, the purchasers giving good security for such pay- ment : and the said officer is to assign the bonds taken for the same and the costs, to the said A. B. ; and the overplus of such sale, if any besides the charges of attachment and sale, he is to return to the said C. D. 36. Right to sue out the attachment contested, and judgment entered for the tenant. 1 Rob. Prac. 633. As last, to which has been levied upon sundry goods and chattels ; this day came as well the said A. B. as the said C. D. by their attorneys, and the said C. D. contested the right of the said A. B. to sue out the said attachment. Whereupon, it ap- pearing to the court that the said A. B. had not just cause to suspect that the said C. D. would remove his effects from the leased tenement before the time of payment of the rent, it is considered by the court that the attached effects be restored to the said C. D. and that he recover against the said A. B. his costs by him in this behalf expended. 37. Where the rent is reserved in any other thing than money, value ascertained in money. 1 R. C. 1819, p. 450. 13. Sess. Acts 1826-7, p. 25. ch. 27. 1. As in No. 35. to was solemnly called, but came not. Whereupon the court doth ascertain the value, in money, of the rent for which the said attachment issued, to be S , and doth order the officer who served the said attachment to sell &c. (as in No. 35.) 318 Attachments. 38. Affidavit to obtain attachment against a vessel, to meet master's liability in a suit against him for carrying off a slave. 1 R. C. 1819, p. 428. 30. 31. Sess. Acts 1826-7, p. 23. ch. 26. $ 1. H. county, to wit : A. B. maketh oath and saith, that C. D. master of a vessel called the , had lately on board his said vessel, in the said county, a slave named , owned by the said A. B., and sailed beyond the limits of the said county with the said slave on board ; and that he the said A. B. under the provisions of the act entitled "an act reducing into one the several acts con- cerning slaves, free negroes and mulattoes," passed the second day of March eighteen hundred and nineteen, has just cause of action against the said C. D. for carrying off and removing the said slave, in violation of the thirtieth section thereof, and that he hath instituted a suit therefor in the court of the said county of H., and that he verily believes that he will be unable to ob- tain satisfaction of the judgment to be recovered in said suit, without an attachment against the said vessel. A. B. Sworn to by the said A. B. this day of , before me, a justice of the peace for the county of H. E. F. 39. Bond given when attachment issues against a vessel, to meet mas- ter's liability in a suit against him for carrying off a slave. 1 R. C. 1819, p. 428. $ 30. 31. Sess. Acts 1826-7, p. 23. ch. 26. $ 1. Know all men &c. (as in p. 152. No. 3.) The condition of the above obligation is such, that whereas A. B. made affidavit before a justice of the peace of the coun- ty of H. on this day, that C. D. master &c. (reciting the affida- vit as in No. 38.) Now if the said A. B. his heirs, executors or administrators, shall indemnify the said C. D. and the owner of the said vessel, against any and all loss or injury which they or either of them may sustain by reason of such attachment, in case the defendant shall prevail in the said suit, then the above obligation is to be void, otherwise it is to remain in full force. 40. Attachment against a vessel, to meet master's liability in a suit against him for carrying off a slave. 1 R. C. 1819, p. 428. " 30. 31. Sess. Acts 1826-7, p. 23. 24. ch. 26. 1. 3. To the sheriffs, Serjeants, and constables of the commonwealth of Virginia. H. county, to wit : Whereas A. B. made affidavit before me, E. F. a justice of the peace for the county of H., on this day, that C. D. master Attachments. 319 &c. (reciting the affidavit as in No. 38.); and bond and security having been given as the statute requires : These are therefore, in the name of the commonwealth, to require you, in your re- spective counties and corporations, to attach the said vessel, with her tackle, apparel, bolts and furniture, and to hold the same liable to such proceedings as may be had in said suit. And I do hereby make known to every of you, that it is lawfal for any sheriff, serjeant, or other officer, to serve this attachment upon the said vessel, wheresoever the same may be found with- in the limits of this commonwealth. And return is to be made to the next term of the court of the said county of H. how this warrant shall be executed. Given under my hand this day of . 41. Bond given to the officer having possession of vessel attached, to get the same restored to the master. Sess. Acts 1826-7, p. 23. ch. 26. 1. Know all men &c. (as in p. 152. No. 3.) The condition of the above obligation is such, that whereas A. B. made affidavit before a justice of the peace of the county of H. on the day of , that C. D. master &c. (reci- ting the affidavit as in No. 38.), and thereupon the said justice issued an attachment, directed to the sheriffs, Serjeants and con- stables of the commonwealth, requiring them, in their respec- tive counties and corporations, to attach the said vessel, with her tackle, apparel, bolts and furniture, and to-hold the same liable to such proceedings as may be had in the said suit, and the said attachment has been levied by deputy for sheriff of the county of , who holds the property subject to the order of the court, and the master of the said vessel de- sires that the vessel, with her tackle, apparel, bolts and furni- ture, shall be restored to him : Now if the judgment of the court in the said suit shall be satisfied in case the plaintiff shall reco- ver therein, then the above obligation is to be void, otherwise it is to remain in full force. 42. Return by the officer, after levying attachment upon vessel. Sess. Acts 1826-7, p. 23. ch. 26. $ 1. By virtue of this attachment, I levied the same, on the day of , upon the vessel within mentioned, with her tackle, apparel, bolts and furniture, but on the day of the same were restored to the master, upon his giving me bond, with 6r. H. as surety, payable to the plaintiff, conditioned to satisfy the judgment of the court if the plaintiff shall recover in his suit. 320 Attachments. Or: By virtue of this attachment, I levied the same, on the day O f } upon the vessel within mentioned, with her tackle, apparel, bolts and furniture, and the said property is held by me subject to the order of the court. 43. Verdict and judgment in suit instituted for the recovery of the penalty imposed for carrying a slave out of the county. 1 R. C. 1819, p. 428. $ 30. 31. This day came the parties by their attorneys, and thereupon came a jury, to wit, E. F. &c. who being elected, tried and sworn the truth to speak upon the issue joined, upon their oath do say, that the defendant is guilty in manner and form as in the declaration against him is alleged ; that the value of the slave in the declaration mentioned is $ ; and that the amount of all costs and expenses incurred by the plaintiff in attempting to regain the said slave is $ . Therefore it is considered by the court that the plaintiff recover against the defendant $ , being double the value of the said slave, and double the amount of the said costs and expenses ; and also that the plaintiff re- cover against the defendant his costs by him about his suit in this behalf expended. And the said defendant in mercy &c. 44. After judgment for plaintiff in suit against the master of a ves- sel, order, in the attachment case, to sell the vessel in satisfaction of the judgment. Sess. Acts 1826-7, p. 24. ch. 26. 2. A. B. having made affidavit before a justice of the peace of the county of H. on the day of , that C. D. master &c. (reciting the affidavit as in No. 38.) ; and the said justice having thereupon issued an attachment, which has been levied on the said vessel with her tackle, apparel, bolts and furniture, by the sheriff of this county, who holds the same subject to the order of this court; this day came the parties by their attorneys, and judgment having been rendered, under the provisions of the before recited act, against the said C. D. in the suit aforesaid, for the sum of $ and the costs, and it appearing to the court that the said C. D. was really the master of the said vessel at the time this attachment was issued, the said vessel, her tackle, apparel, bolts and furniture are deemed and taken to be the pro- perty of the said C. D., and it is ordered that the officer who levied the said attachment sell and dispose of the same in satis- faction of the said judgment, in the same manner as goods taken in execution upon a writ of fieri facias. And the said officer is required &c. (as in No. 10.) Complaint against father of bastard child. 321 CHAPTER XXVIII. COMPLAINT AGAINST FATHER OF BASTARD CHILD. 1. Examination of mother on oath. 2 R. C. 1819, p. 272, 3. 31. 33. 1 Rob. Prac. 635. The examination of A. B. of the county of H. single woman, before E. F. a justice of the peace of the said county, taken in writing, this day of . The said A. B. being duly sworn, saith, that on the day of , at in the county aforesaid, she the said A. B. was delivered of a male (or, female) bastard child, and upon her oath she charges C. D. with being the father of the said bastard child. A.B. Taken and signed the day and year above written, > before me, the justice above named. E. F. ) If the woman reside in a corporate town, say The examination of A. B. a single white woman residing with- in the limits of the city of R. before , mayor of the said city, taken in writing, this day of . The said A. B. being duly sworn, saith, that on the day of , at in the city aforesaid, she &c. (as before). Taken and signed the day and year above ) written, before me, the said mayor. ) 2. Warrant to apprehend the father. 2 R. C. 1819, p. 272, 3. < 31. 33. 1 Rob. Prac. 635. H. county, to wit : Whereas A. B. of the said county, single woman, not being a servant or slave, was, on the day of , at in the county aforesaid, delivered of a male (or, female) bastard child, which is likely to become chargeable to the said county, and the said A. B. upon examination taken in writing before me, a justice of the peace for the said county, upon oath charged C. D. with being the father of the said bastard child ; and the said C. D. not being a servant, and being an inhabitant of the 41 322 Complaint against father of bastard child. said county, G. H. one of the overseers of the poor of the said county, has made application to me for the immediate appre- hending the said C. D. and for bringing him before me, or be- fore some other justice of the peace of the said county : where- fore I do command you, immediately to apprehend the said C. D. and bring him before me, or before any other justice of the peace of the said county, according to the act of assembly in such case made and provided. Given under my hand and seal this day of . [seal]. If the woman reside in a corporate town, say City of R. to wit : Whereas A. B. a single white woman re- siding within the limits of the said city, was, on the day of , at in the city aforesaid, delivered of a male (or, female) bastard child, which is likely to become chargeable to the said city, and the said A. B. upon examination taken in writing before me, mayor of the said city, upon oath charged C. D. with being the father of the said bastard child ; and the said C. D. not being a servant, and being an inhabitant of the said city ; upon application made to me by G. H. who resides in the said city, 1 do issue this warrant, and command you, im- mediately to apprehend the said C. D. and bring him before me, according to the act of assembly &c. (as before). 3. Recognizance of father to appear at next court. 2 R. C. 1819, "p. 272, 3. 1 Rob. Prac. 635. H. county, to wit : Be it remembered, that upon the day of in the year , C. D. and J. K. personally appeared before me, E. F. a justice of the peace for the said county, and acknowledged themselves jointly and severally indebted to T. W. G. governor of the commonwealth of Virginia, or his successors, in the sum of $ , to be levied of their and each of their goods and chat- tels, lands and tenements, to the use of the said commonwealth, if default be made in the performance of the condition hereun- der written. The condition of the above recognizance is, that whereas A. B. of the county of H. single woman, &c. (as in the warrant), and the said A. B. upon examination taken in writing before E. F. a justice &c. (as in the warrant, to) and being an inhabitant of the said county, the said justice, upon application made to him by G. H. one of the overseers of the poor of the said coun- ty, issued his warrant for the immediate apprehending the said Complaint against father of bastard child. 323 0. J>. and for bringing him before the said justice, or before some other justice of the peace of the said county, and by vir- tue of the said warrant the said C. D. has been brought before the said justice : Now if the said C. D. shall appear at the next court to beheld for the said county of H. and abide and perform such order or orders as shall be made by the said court, then the above recognizance is to be void, otherwise it is to remain in full force. If the woman reside in a corporate town, say City of R. to wit: Be it remembered, that upon the day of in the year , C. D. and J. K. personally appeared before me, E. F. mayor of the said city, and acknowledged &c. (as before.) The condition of the above recognizance is, that whereas A. B. a single white woman residing within the limits of the said city, was &c. (following the warrant) and the said A. B. upon examination taken in writing before E. F. mayor of the said city, (following the warrant, to) and being an inhabitant of the said city, the said mayor, upon application made to him by G. H. who resides in the said city, issued his warrant for the im- mediate apprehending the said C. D. and for bringing him be- fore the said mayor, and by virtue of the said warrant the said C. D. has been brought before the said mayor: Now if the said C. D. shall appear at the next court to be held for the said city of R. and abide such order or orders &c. (as before.) 4. Warrant for commitment to jail, in case no recognizance be given to appear at court. 2 R. C. 1819, p. 272, 8. 1 Rob. Prac. 635. H. county, to wit: Whereas &c. (as in No. 2. to) and being an inhabitant of the said county, upon application made to me by G. H. one of the overseers of the poor of the said county, I issued my warrant for the immediate apprehending the said C. D. and for bringing him before me, or before any other justice of the peace of the said county, and the said C. D. having been brought before me by virtue of the said warrant, I have required him to enter into a recognizance, with sufficient security, in the sum of $ , upon condition to appear at the next court to be held for the said county, and to abide and perform such order or orders as shall be made by the said court ; and the said C. D. not entering into such recognizance, with such security : These are therefore, in the name of the commonwealth, to command you to receive the said C. D. in the common jail of the said county, and him safely 324 Complaint against father of bastard child. keep therein until he shall be thence discharged by due course of law. Given under my hand and seal this day of . [seal]. If the woman reside in a corporate town, say City of R. to wit : Whereas &c. (as in the warrant for appre- hending, to) upon application made to me by G. H. who resides in the said city, 1 issued my warrant for the immediate appre- hending the said C. D. and for bringing him before me, and the said C. D. having been brought before me &c. (as before, sub- stituting merely city for county, and, after the word abide, omit- ting the words and perform.) 5. Default in not appearing at court recorded, and scire facias awarded upon recognizance. 2 R. C. 1819, p. 272. 1 Rob. Prac. 635. C. D. who was charged by A. B. single woman, with being the father of her bastard child, having, when brought before a jus- tice of the peace of this county upon that charge, entered into a recognizance with J. K. his surety, in the sum of $ , upon condition to appear at this court, and abide and perform such order or orders as should be made by the court ; the said C. D. was this day solemnly called^ but came not. Whereupon it is ordered that a writ of scire facias be issued against the said C. D. and his surety aforesaid, upon the said recognizance ; and the amount of the recovery thereupon is to be paid to the over- seers of the poor of the county, for the use of. the said poor. 6. Case examined into by the court, and judgment given against the father. 2 R. C. 1819, p. 272, 3. $ 31. 33. 1 Rob. Prac. 635. E. F. a justice of the peace of this county, this day returned an examination of A. B. of this county, single woman, taken before him in writing, upon oath, upon which examination the said A. B. charged C. D. with being the father of a bastard child of which she had been delivered ; and the said justice also returned a warrant issued by him, upon application made to him by Gf. H. one of the overseers of the poor of this county, for the apprehension of the said C. D., together with a recogni- zance entered into by the said C. D. when brought before him, conditioned to appear here, and abide and perform such order or orders as should be made by the court. Whereupon the said C. D. appeared accordingly. (Or, after the words " apprehension of the said C. D." and certified that the said C. D. when brought Complaint against father of bastard child. 325 before him, not entering into a recognizance with security to ap- pear at this court, was committed to the common jail of the county. Whereupon the said C. D. was brought into court.) If the woman reside in a corporate town, say E. F. mayor of this city, this day returned an examination of A. B. a single white woman residing within the limits of this city, taken before him in writing, upon oath, upon which exami- nation &c. (as before) ; and the said mayor also returned a war- rant issued by him, upon application made to him by G. H. who resides in the said city, for the apprehension of the said C. D., together with a recognizance &c. (as before, omitting merely the words and perform, and substituting city for county.') And after either form, proceed as follows : And the said A. B. being sworn and examined, the court, upon the circumstances of the case, doth adjudge the said C. D. to be the father of the said bastard child, and that the said child is likely to become chargeable to this county (or, city) for the term of years from the birth of the said child, to wit, for years from the day of . And the court, proceeding to take order for keeping the said child, doth charge the said C. D. with the payment, for the maintenance of the said child, of $ annually for the term aforesaid, in case the said child shall live so long, and if the child shall die before the expira- tion of the term, then for so many years of the said term as the child shall live ; which sum of $ so charged upon the said C. D. is to be paid by him, at the end of each year, to the overseers of the poor of this county.* And the court doth order that the said C. D. enter into a recognizance with sufficient se- curity, before this court, in the sum of $ , payable to the governor of this commonwealth for the time being, and his suc- cessors, to observe and^ perform the order of the court aforesaid. * If the woman reside in a corporate town, say " to the serjeant of this city, to be applied under the directions of this court, or of the over- seers of the poor of this city." t If the woman reside in a corporate town, the words observe and may be omitted. 326 Complaint against father of bastard child. 7. Recognizance required by the court not being given, order commit- ting the father to fail. 2 R. C. 1819, p. 272, 3, 4. $ 31. 32. 33. 1 Rob. Prac. 635. After the last form, proceed as follows : Whereupon, the said C. D. refusing to enter into such recognizance, it is ordered that he be committed to the common jail of this county (or, city) there to remain without bail or mainprize, until he shall enter into such recognizance, or until he shall discharge himself by taking the oath of an insolvent debtor and delivering in a sche- dule of his estate, in the manner directed by law for debtors in execution, or until the overseers of the poor* shall consent to his discharge. * If the woman reside in a corporate town, instead of the overseers of the poor, say, this court. S. Entry of the recognizance when given in court. 2 R. C. 1819, p. 272, 3. 4. 31. 33. 1 Rob. Prac. 635. After No. 6. proceed as follows : Whereupon the said C. D. and A. W. and B. D. his sureties, here in court acknowledge themselves to be jointly and severally indebted to T. W. G. go- vernor of this commonwealth, and his successors, in the sum of $ , of their and each of their goods and chattels, lands and tenements to be levied, and to the said governor and his successors, for the use of the commonwealth, rendered ; yet upon this condition, that if the said C. D. shall observe and* per- form the order of this court aforesaid, then this recognizance is to be void. * If the woman reside in a corporate town, the words observe and may be omitted. 9. Notice of motion against the father and his sureties, for not pay- ing the money charged upon him. 2 R. C. 1819, p. 272, 3, 4. 31. 33. To C. D., A. W. and B. D. Whereas, at a court held for H. county (or, for the city of R.) the day of , the said court adjudged you the said C. D. to be the father of a bastard child whereof had been delivered, and that the said child was likely to become chargeable to the said county (or, city) for the term of years from the birth of the said child, to wit, for years from the day of ; and the court, proceeding to take Complaint against father of bastard child. 327 order for keeping the said child, did charge you the said C. D. with the payment, for the maintenance of the said child, of $ annually for the term aforesaid, in case the said child should live so long, and if the child should die before the expi- ration of the term, then for so many years of the said term as the child should live, which sum of $ , so charged upon you the said C. D., was to be paid by you, at the end of each year, to the overseers of the poor of the said county (or, if in a corporate town, say, to the Serjeant of the said city, to be applied under the directions of the said court, or of the over- seers of the poor of the said city) ; and you the said C. D. did thereupon enter into a recognizance, with the said A. W. and B. D. your sureties, before the said court, in the sum of $ , to observe and perform (or, to perform) the order aforesaid of the said court : And whereas you the said C. D. have not paid the money so charged upon you, to the overseers of the poor of the said county, for (or, to the serjeant of the said city, to be applied, under the directions of the said court, or of the over- seers of the poor of the said city, to) the maintenance of the said child, but have therein made default, in this, that you have not paid the sum of $ , which ought to have been paid at the end of years from the day of : Notice is therefore given to you the said C. D., A. W. and B. D. that a motion will be made by the overseers of the poor of the said county of H. (or, by the serjeant of the said city or, the over- seers of the poor of the said city) to the court of the said coun- ty (or, city) on the first day of the next term, to enter up judg- ment and award execution against you for the said sum of $ , which the said C. D. has failed to pay as aforesaid. Dated this day of in the year . 328 Claims to escheated lands or their proceeds. CHAPTER XXIX. CLAIMS TO ESCHEATED LANDS OR THEIR PROCEEDS. 1. Information by attorney for the commonwealth for an intrusion upon land which was escheated and of which the commonwealth af- terwards had possession. Concerning this information, see the case of The Commonwealth v. Hite, 6 Leigh 588. 2. After inquisition of escheat, claim to the lands by monstrans de droit and traverse. I R. C. 1819, p. 295. 7. Id. p. 298, 18. 19. 1 Rob. Prac. 500. French fy Brown v. The Common- wealth, 5 Leigh 512. A. B. v. The commonwealth. Monstrans de droit and plea of traverse to an inquisition taken on 200 acres of land in Meck- lenburg. And the said A. B. by J. B. his attorney, comes and prays oyer of the inquisition aforesaid, which is read to him in these words : " An inquisition indented" &c. Whereupon the said A. B. saith that the said 200 acres of land and premises ought not to be sold and condemned, because he saith that the said lands and premises are the property of him the said A. B. as will appear by deed from a certain II. S. bearing date the 18th day of March 1765, and duly recorded in the county court of M. aforesaid. And this he is ready to verify &c. And the said A. B. by his attorney aforesaid, for plea, saith that the said 200 acres of land in the said inquisition mentioned are the property of him the said A. B. who is a citizen of this commonwealth, without that the same are the property of the said A. S. fy Co. or any other british subject whatsoever; and this he prays may be enquired of by the country &c. Claims to escheated lands or their proceeds. 329 3. Issue made up on monstrans de droit and traverse. 1 R. C. 1819, p. 295. 7. Id. p. 298. $ 18. 19. 1 Rob. Prac. 500. French Sf Brown v. The Commonwealth, 5 Leigh 512. A. B. plaintiff, "^ Upon a monstrans de droit and | traverse to an inquest of office against ) taken the 18th day of July 1782, before C. C. escheator The commonwealth of Virginia. J of M. county. This day came as well the plaintiff, by J. B. his counsel, as the attorney general for the commonwealth, and it appearing, from a deed produced in court, that the said A. B. hath some title to the estate contained in the said inquest of office, it is therefore ordered that the said monstrans de droit and traverse be not dismissed, but that the attorney general do reply thereto. And thereupon an issue was made up, ore tenus, the said attor- ney general having replied that the estate in the said inquest ot office found is not the property of the plaintiff. 4. Verdict found for the claimant of the escheated lands, and judg- ment that inquisition be gnashed. 1 R. C. 1819, p. 295. 7. Id. p. 298. $ 18. 19. 1 Rob. Prac. 500. French fy Brown v. The Commonwealth, 5 Leigh 512. This day came as well the plaintiff by his attorney, as the at- torney general for the commonwealth, and thereupon came a jury, to wit, N. A. &c. who being elected, tried and sworn the truth to speak upon the issue joined, upon their oath do say that the 200 acres of land in the said inquisition mentioned are the property of the plaintiff, as in pleading he hath alleged. There- fore it is considered by the court that the said inquisition, as to the said 200 acres of land, be quashed. 5. Issue made up in another case; verdict for claimant; and judg- ment that inquisition be quashed, and the hands of the common- wealth amoved. This day came &c. and the said attorney general having re- plied that the said R. L. junior is a british subject, within the meaning of the act of the general assembly concerning escheats and forfeitures from british subjects, an issue was made up, and thereupon came a jury, to wit, J. J. &c. who being &c. oath do say that the said R. L. junior is not a british subject within the meaning of the said act, as in pleading he hath al- leged. Therefore it is considered by the court that the said in- quest of office be quashed, and that the hands of the common- 42 330 Claims to escheated lands or their proceeds. wealth, from the tract of land with its appurtenances thereby escheated, be amoved. 6. Issue made up in another case; verdict for claimant of a leasehold interest ; and judgment that such interest be reserved in the sale. This day came &c. and the said attorney general having re- plied that the plaintiff hath no right to the said 100 acres, part of the land in the said inquisition found, an issue was made up, and thereupon came &c. who being &c. oath do say that the said J. P. hath a right to the said 100 acres for the term of years from the day of , paying the annual rent of 530lbs. of tobacco during the said term. Therefore it is considered by the court that the said interest of the plaintiff in the said 100 acres of land, for the term aforesaid, be reserv- ed to him in the future sale of the said estate, the said plaintiff paying the annual rent aforesaid during the said term. 7. Petition by creditor of person whose lands have been escheated. 1 R. C. 1819, p. 297. $ 14. 1 Rob. Prac. 636. Watson v. Lyle's adm'r, 4 Leigh 236. To the court of hustings for the city of R. The petition of A. B. respectfully represents, that C. D. died indebted to him the sum of $ 100. with interest thereon from the 1st day of April 1817, for which he holds the promissory note of the said C. D. ; that the said C. D, had not personal es- tate sufficient to pay his debts, but the said personal estate has been applied in paying them as far as it would extend, and the said sum of $ 100. with interest as aforesaid, is still bona Jide due and owing to your petitioner at this time. Your petitioner shews that the said C. D. died seized of lands in this city, which have been escheated to the commonwealth by J. R. escheator of this city. And he prays that the said J. R. escheator as aforesaid, may be made defendant hereto, and that the court may proceed to judgment according to the right of the case, and render the same for what shall appear to be due to him. A.B. A. B. the petitioner above named rnaketh oath and saith, that the amount of his demand is bona fide due and owing at this time. A. B. Sworn to by the said A. B. this day of , before me, an alderman of the city of R. Claims to escheated lands or their proceeds. 331 8. Judgment on petition by creditor of person whose lands have been escheated. 1 R. C. 1819, p. 297. $ 14. 1 Rob. Prac. 636. Watson v. Li/le's adm?r> 4 Leigh 236. D. C., G. F. and J. M. ex'ors of J. B. deceased, petitioners, against J. R. escheator of the city of R. defendant. Upon a petition exhibited by the petitioners, as creditors of J. M. deceased, who died seized of lands in this city, which have been escheated to the commonwealth. This day came as well the petitioners by their attorney, as the attorney for the commonwealth, who were fully heard. Whereupon, it appearing, as well by the affidavit of the said G. F. to the petition annexed, as by other evidence adduced by the petitioners, that the sum of $ 100. with interest thereon from the first day of April 1817, was bona fide due and owing to the said petitioners, at the time of preferring the said petition ; and it also appearing that W. D. W. serjeant of this city, and admi- nistrator of the personal estate of the said J. M. deceased, had fully administered all the goods and chattels of the said dece- dent, in his hands to be administered, before the preferring of the said petition ; it is therefore considered by the court that the petitioners recover the said sum of S 100. with interest thereon to be computed after the rate of six per centum per annum from the said first day of April 1817 till payment, and their costs by them in this behalf expended ; to be paid and satisfied out of the proceeds of the sale of the lands of the said J. M. deceased. 332 Demands against the commonwealth. .. CHAPTER XXX. DEMANDS AGAINST THE COMMONWEALTH. 1. Petition by person having demand against the commonwealth. 1 Rob. Prac. 33. 4, 5. 636, 7. Sess. Acts 1838, p. 27. ch. 14. To the circuit superior court of law and chancery for the county of H. and city of R. The petition of A. B. respectfully represents that &c. (stating the nature of the claim against the commonwealth) ; and the same has been presented to the audi- tor, who has disallowed the demand. Your petitioner thinks himself aggrieved thereby, and prays this court for redress. 2. Answer of auditor to petition of person having demand against the commonwealth. 1 Rob. Prac. 33, 4. 5. 636, 7. Sess. Acts 1838, p. 27. ch. 14. The answer of J. E. H. auditor of public accounts, to a peti- tion presented by A. B. to the circuit superior court of law and chancery for the county of H. and city of R. The reasons of this defendant for not allowing the said claim, and the objections which in his opinion the commonwealth ought to make thereto, are as follows : (state them.) . 3. Judgment upon petition of person having demand against the com- monwealth. 1 Rob. Prac. 33. 4, 5. 636, 7. Sess. Acts 1838, p. 27. ch. 14. This day came A. B. by his attorney, and presented a peti- tion for redress against a decision of the auditor disallowing a demand of his against the commonwealth ; and the auditor forthwith filed his answer to the said petition. Whereupon, the evidence offered on each side being heard, it seems to the court that &c. Therefore it is considered that &c. And the requiring it, the court doth certify that the material facts proved in this case are as follows : (state them) ; and this certificate is made a part of the record in the cause. Correction of errors in same court. 333 CHAPTER XXXI. CORRECTION OF ERRORS IN SAME COURT. 1. Order of court correcting mistake in proceedings in the office du- ring preceding vacation. 1 Rob. Prac. 639. The plaintiff, by his counsel, alleging that an error has hap- pened at the rules in receiving the three pleas filed in each of these causes, moved the court to set aside the act of the clerk in receiving the said pleas, on the ground that they ought to have been proved by the oath of the defendant S. as well as of the said defendant G. and that as to the defendant G. the affidavit was defective in not alleging the truth of the facts stated in the pleas, with the certainty and positiveness required by law ; and furthermore objected, that under the statute under which alone such pleas can be filed, the defendant is limited to one plea, and moved the court to direct the clerk to reject all the pleas, unless the defendant would elect one of said pleas, or some one plea under the said statute. And the questions of law arising upon the said motions being argued, the court is of opinion that the said defendants are not limited by the said statute to one plea, and that as to the defendant G. the affidavit is sufficient ; but the court is further of opinion that the said pleas were im- properly received, because they were not verified by the defen- dant S. And the court, proceeding to correct the error commit- ted in receiving the same, doth order that the act of the clerk in receiving the said pleas be set aside, and that the defendants be allowed to file other pleas, properly verified, at the next rules, and that the causes be proceeded in at the rules until issues are made up in law or in fact, or until the same be otherwise pro- perly matured. 2. Notice of application to judge in vacation to amend judgment. 1 Rob. Prac. 639. To N. M. Sir, In the record of a judgment of the circuit superior court of law and chancery for the county of H. rendered in our favour against you, there being a mistake of a sum of money, 334 Correction of errors in same court. and there being, among the record of the proceedings in the suit in which the said judgment was rendered, a bond whereby the said judgment may be safely amended, notice is hereby given to you, that on the day of , at the office of the said court, between the hours of and , application will be made to the judge of the said court to amend the said judg- ment according to the truth and justice of the case. Given un- der our hands this day of . T. T. W.H. 3. Amendment of judgment by judge in vacation. 1 Rob. Prac. 639. T. T. and W. H. plaintiffs v. N. M. defendant. The defendant in this case having been served with the no- tice hereto annexed, and it appearing to me that there was a mistake in the sum of money for which the judgment was ren- dered in this case, in the circuit superior court of law and chan- cery for the county of H. on the 13th day of April 1830, to the amount hereafter stated, which mistake may be safely amended by the bond on which the action is founded ; it is therefore considered by me that the said judgment be amen- ded in this, that the said judgment shall be discharged by the payment of $23673.80 cents principal sum, with interest at the rate of six per centum per annum from the first day of Septem- ber 1815 till paid, and by the further payment of the interest at the rate of six per centum per annum on $ 11836.90 cents from the first day of September 1815 till the first day of September 1820, which interest amounts to $3551.07 ceats, and such other sum or sums as may be hereafter found due, upon a writ or writs of scire facias being sued out on the said judgment. And on the motion of the plaintiffs, it is further considered by me that the writ of capias ad satisfaciendum issued by the clerk of the said court, on the 14th day of April 1830, against the body of the said defendant, be quashed, and the defendant be discharged from custody under the said execution. Given under my hand, in the clerk's office of said court, in the vacation thereof, this 28th day of April 1830. W. B. judge of the said court. Truly recorded. J. R. clerk. Correction of errors in same court. 335 4. Notice of application to court to amend judgment. 1 Rob. Prac. 639. Commonwealth v. Winstons, 5 Rand. 546. Eubank fy others v. Rails' s ex' or, 4 Leigh 308. Shelton's ex'ors v. Welsh's adm'rs, 7 Leigh 175. To G. W., J. W. and P. W. Take notice that instructions will be given the attorney gene- ral to move the general court, on the first day of the session of the said court to be holden in November next, to amend the judgment obtained against you by the commonwealth on the 16th of June last, upon your bond executed by you on the 21st of June 1819, in the penalty of $24722.88 cents, conditioned, among other things, for the payment of $ 4128.48 cents on or be- fore the second day of March 1824, with six per centum per annum interest thereon from the 19th day of April 1817 till pay- ment ; which said judgment was erroneously entered, in this, that it is made to carry interest from the second day of March 1824, instead of the aforesaid period, the 19th day of April 1817. J. E. H. auditor of public accounts. Auditor's office, August 17. 1824. 5. Judgment amended by the court. 1 Rob. Prac. 639. Common- wealth v. Winstons, 5 Rand. 546. Eubank &f others v. Ralls's ex'or, 4 Leigh 308. Shelton's ex'ors v. Welsh's adm'rs, 7 Leigh 175. This day came the attorney general on behalf of the com- monwealth, and produced a notice in writing, to G. W., J. W. and P. W. that an application would be made to this court, on this day, to amend a judgment rendered against them in this court on the 16th of June 1824, on behalf of the commonwealth. Whereupon came also the defendants by their attorney, and the attorney general and the defendants being fully heard, it seems to the court that in the record of the said judgment there is a mistake in carrying the interest from the second day of March 1824, instead of from the 19th day of April 1817, and that the judgment may be safely amended by the bond upon which the same is rendered, which bond is filed with the papers of the case. Therefore it is considered that the said judgment be so amended as to carry six per centum per annum interest on the sum of $4128.48 cents therein mentioned, from the 19th day of April 1817 till payment, instead of from the 2d day of March 1824, as was erroneously entered ; and also that the common- wealth recover against the defendants the costs of this motion. 336 Correction of errors in same court. 6. Excess in judgment released by plaintiff at a subsequent term, to cure error. 1 Rob. Prac. 643, 4. In this case, in which judgment was rendered at the last term, the bond, by mistake, being conditioned for the payment of a larger sum of money than by law ought to have been required thereby, the plaintiff here in court releases $ with interest thereon from the day of , being the excess, and agrees that the said judgment may be discharged by the pay- ment of the residue, of $ , with interest thereon from the said day of till payment, and the costs. Or: In this case, verdict having been rendered at the last term for more damages than the plaintiff demanded, and judgment having been given accordingly, the plaintiff here in open court releases $ parcel of the damages assessed, being the excess, and acknowledges that the whole amount which he is to receive by virtue of the said judgment is $ , with interest thereon from the day of till paid, and the costs. 7. Excess in judgment released in vacation by plaintiff, by deed un- der hand and seal. 1 Rob. Prac. 643, 4. Whereas a certain bond, upon which judgment was rendered at the last term of the circuit superior court of law and chance- ry for the county of H. in my favour against C. D. and E. JP., by mistake is conditioned for the payment of a larger sum of money than by law ought to have been required thereby ; now therefore, I the said A. B. do hereby release -to the said C. D. and E. F. $ with interest thereon from the day of , being the excess, and do agree that the said judgment may be discharged by the payment of the residue, of $ , with interest thereon from the said day of till pay- ment, and the costs. Given under my hand and seal this day of . [seal]. Witnessed by me, the clerk (or, deputy ) clerk) of the said court. G. H. > Or: Whereas, at the last term of the circuit superior court of law and chancery for the county of H. in a suit wherein I was plain- tiff and C. D. was defendant, verdict was rendered for me for more damages than I demanded, and judgment was given for the same ; now therefore, I the said A. B. do hereby release to the said C. D. $ , parcel of the damages assessed, being the ex- cess, and acknowledge that the whole amount which I am to re- Correction of errors in same court. 337 ceive by virtue of the said judgment is $ , with interest thereon from the day of till paid, and the costs. Given under my hand and seal this day of . [seal]. Witnessed by me, the clerk (or, deputy clerk) of the said court. G. H. 8. Petition for writ of error coram vobis. 1 Rob. Prac. 644, .5. Sess. Acts 1838, p. 74. ch. 96. 1. To W. B. esquire, judge of the circuit superior court of law and chancery for the county of H. Your petitioners J. W., G. M. W. t N. W. and W. W. (the said N. and W. being infants, by the said J. their next friend) re- spectfully represent, that your petitioners, as the heirs of B. W. deceased, were impleaded in the said court by W. G. adminis- trator of J. G. deceased, in an action of debt, in which said ac- tion such proceedings were had, that at a term of said court held on the day of , the conditional judgment pre- viously entered in the office of said court against your petitioners for default of appearance, was finally confirmed against them for the sum of 1524.11. the debt in the declaration mentioned, and costs, but to be discharged by the payment of 141.15.5. with interest to be computed thereon after the rale of six per centum per annum from the second day of July 1803 till pay- ment, and the costs ; all which will more fully appear by refer- ence to the record of the proceedings aforesaid, hereunto an- nexed. Your petitioners are advised that there is error in the said judgment, in this, that at the time when it was obtained, your petitioners the said N. and W. were infants under the age of 21 years, and, by reason of their said infancy, incapable of defending themselves, nor was any person assigned as guardian, or otherwise, to defend them therein. Wherefore your petition- ers pray a writ of error coram vobis, in order that the error afore- said may be inquired into, and the said judgment reversed. 9. Writ of error coram vobis awarded. 1 Rob. Prac. 644, 5. On the petition of J. W. and N. W. (the said N. being an in- fant, by the said J. his next friend) a writ of error coram vobis is awarded them to a judgment of this court recovered on the 14th day of November 1823, by W. G. administrator of J. G. de- ceased, against the said J. W. and N. W. And thereupon a writ of scire facias is awarded against the said W. G. adminis- trator as aforesaid, to warn him to appear, to hear the record and proceedings in the said suit, returnable here on Wednesday next. 43 338 Correction of errors in same court. 10. Writ of error coram vobis.* 1 Rob. Prac. 644, 5. The commonwealth of Virginia to the judge of the &c. greet- ing : Because, in the record and proceedings, and also in the rendering of the judgment, in a certain action of debt instituted in our said court by W. G. administrator of J. G. deceased, against J. W. (which said record and proceedings before you now remain, as it is said,) manifest error hath happened, to the great damage of the said J. W. as by his complaint we have understood ; we, being willing that the error, if any hath been, should be duly corrected, and full and speedy justice done to the parties aforesaid in this behalf, command you, that if judg- ment be given in the action aforesaid, then, the record and pro- ceedings aforesaid being inspected, you farther cause to be done therein, to correct that error, what of right and according to law ought to be done. Witness J. R. clerk &c. * In the court of king's bench in England, this writ is called a writ of error coram nobis, from the words qua coram nobis resident. In the court of common pleas, it is called a writ of error coram vobis, or qua; coram vobis resident ; and this is the name by which it is known in Vir- ginia. 11. Scire facias ad audiendum errores. 1 Rob. Prac. 644, 5. The commonwealth of Virginia to the sheriff of H. county' greeting : Whereas, on the petition of J. W. alleging that in the record and proceedings, and also in the rendition of the judg- ment, in a certain action of debt instituted in our &c. by W. G. administrator of J. G. deceased, against J. W., manifest error hath happened, to the great damage of the said petitioner, a writ of error hath been awarded by our same court, that the record and proceedings aforesaid being inspected, it may cause to be done therein, to correct that error, what of right and according to law ought to be done : Therefore we command you that you make known to the said W. G. that he be before the judge of our said court, at &c. on &c. then and there to hear the record and proceedings aforesaid, if to him it shall seem expedient; and further to do and receive what our said court shall in this part consider. And have then &c. This form, and the writ of error preceding it, were taken from Lilly's Entries. In the case in which they were used, the writ of error was awarded without requiring bond and security, and the writ had no effect as a supersedeas. When it is desired to have the effect of a supersedeas let the command be as follows : Correction of errors in same court. 339 Therefore we command you that from all further proceedings on the judgment aforesaid you altogether supersede, and that you make known to &c. If the writ of error be awarded in vacation, then, instead of the words by our same court, say, in vacation, by the judge of our said court ; and in lieu of the word it, say, the said court. 12. Error in fact confessed ; judgment reversed ; proceedings subse- quent to declaration set aside; and cause sent to rules. 1 Rob. Prac. 644, 5, This day came as well the plaintiff N. W. by J. W. his next friend, as the plaintiff J. W. and the defendant, by their attor- neys, and thereupon the said defendant admits the fact, by the plaintiffs in their petition alleged, that at the time of the rendi- tion of the said judgment, the plaintiff N. was an infant under the age of 21 years, and acknowledges that there is error in the record and proceedings aforesaid, and also in the rendition of the judgment aforesaid : Therefore it is considered by the court that the judgment aforesaid be reversed and annulled, and that the plaintiffs recover against the defendant their costs by them expended in suing forth and prosecuting this writ ; to be levied &c. And this court proceeding further to correct the error in the record and proceedings in the said action, it is ordered, that the common order, and the confirmation thereof, in the said ac- tion entered, be set aside ; and that the same be placed on the rule docket of this court, for other proceedings to be had there- in. And on the motion of W. G. administrator as aforesaid, J. W. is assigned guardian to the said infant N. W. to defend him in the said suit. 13. Writ of error coram vobis awarded, because plaintiff" was dead when suit was brought ; and the fact being admitted, judgment re- versed and writ quashed. 1 Rob. Prac. 644, 5. On the petition of G. M. G. a writ of error coram vobis is awar- ded him to a judgment rendered against him in this court, the 9th day of April 1821, in favour of M. A. Whereupon came as well the said G. M. G. by his attorney, as A. P. U. attor- ney for the representative of the said M. A. (who is now dead) and the said U. admitted the facts set forth in the plaintiff's pe- tition, and agreed that the court should proceed to judgment thereupon, in the same manner as if the said representative were regularly before the court upon return of a writ of scire facias against him ; and it appearing to the court, by the said 340 Correction of errors in same court. petition, that the said M. A. was dead before the original writ in the said cause was issued, it is considered that the judgment aforesaid be reversed and annulled, and that the original writ aforesaid, and all proceedings had thereupon, be quashed. Writ of mandamus. 341 CHAPTER XXXII. WRIT OF MANDAMUS. 1. Rule to shew cause why mandamus should not issue. 1 Rob. Prac. 25. 649. Sess. Acts 1836-7, p. 37. ch. 57. On the motion of R. G. by W. M. his attorney, supported by an affidavit of the said W. M. filed, it is ordered that J. B. trea- surer of the commonwealth of Virginia, after being previously served with a copy of this order, do appear here on the 13th day of the present term, and shew cause, if any he can, wherefore the commonwealth's writ of mandamus should not be awarded the said R. G. to command the said treasurer, in conformity with an act of the general assembly for calling in and register- ing certificates of the public debt of this state, passed January 28th 1802, to receive of the said R. G. a certain certificate of debt due from the said commonwealth, in the following words : (here insert it) and grant a receipt therefor, according to the pro- visions of the said act. Note. In the case of Dinwiddie Justices v. Chesterfield Justices, 5 Call 556. without any previous rule to shew cause, the district court awarded a writ of mandamus nisi, to which the court of Dinwiddie made a return by attorney, and then a peremptory mandamus was awarded. The court of appeals held that as there was no. rule to shew cause, the mandamus issued improvidently, and for this reason reversed the judg- ment and quashed the writ. This objection was considered open to the Dinwiddie justices, because they had not appeared to the conditional mandamus, nor made a return thereon. Judge Tucker said, " The re- turn to a mandamus must be made by the person or persons to whom the writ is directed. But in this case it is made by the attorney, and not by the justices, or by the court under their county seal, certified by the clerk of the county : one or other of which modes (I am not prepared to say which) appears to me to be more proper than that which has been adopted. For I presume it will not be contended that they could be made liable in an action for a false return not made by themselves, but by the attorney ; which of itself satisfies me of the insufficiency of the return." 342 Writ of mandamus. 2. Rule made absolute, and conditional mandamus awarded, to do the specific thing, or shew cause to the contrary. 1 Rob. Prac. 649. On the motion of R. G. against J. B. treasurer of the com- monwealth of Virginia, for a writ of mandamus commanding the said treasurer to receive a certain certificate and grant a receipt therefor This day came as well the plaintiff by his attorney, as the attorney general for the commonwealth, who being fully heard, it is considered by the court that the said rule be made absolute, and that a mandamus be awarded returnable here at the next term, commanding the said J. B. treasurer as afore- said, to receive the said certificate, and grant the plaintiff a re- ceipt therefor, specifying the amount of such certificate, and distinguishing the principal from the interest thereof, according to law ; or else that the said J. B. shew cause, at the next court, why he has not done so. 3. Mandamus to a public officer, to obey a statute, or shew cause to the contrary. In the case of Amos Kendall, postmaster general of the United States v. The United States, on the relation of Stokes and others, reported in 12 Peters 524. the mandamus nisi, after stating the proceedings which had taken place in the case, proceeded as follows : Therefore you are hereby commanded and enjoined, that im- mediately after the receipt of this writ, and without delay, you do fully comply with, obey and execute, on your part, the afore- said act of congress of 2d July 1836, by crediting said mail contractors with the full and entire sum so awarded and deci- ded as aforesaid to be due to them, by the solicitor of the trea- sury, according to the true intent and meaning of the said award and decision, so that complaint be not again made to the said circuit court; and that you certify perfect obedience to and due execution of this writ, to the said circuit court, on Saturday the tenth day of June instant : or that you do, at ten o'clock of that day, shew cause to the said court why you have not so done as commanded. 4. Mandamus to justices of a county court, to admit a deed to record, or shew cause to the contrary. 1 Rob. Prac. 646, 7. Manns v. Givens Sfc. 7 Leigh 689. The following is a copy of the mandamus in Dawson v. Thruston and others, justices of Frederick, 2 Hen. &, Munf. 132, The commonwealth of Virginia to the justices of .F. county court, greeting: Whereas B. D. trustee for R. C. deceased, did, Writ of mandamus. 343 at a court held by you for the said county of F. at the court- house of said county, on the third day of April 1805, offer to acknowledge a deed of emancipation from him the said B. D. trustee for R. C. deceased, to the following persons, to wit, S. N. &c. (naming them) and then and there did desire that you the said justices, then sitting and holding a court for the said county of F. would admit the said deed to record, and also that you would certify on your record that as many of the said per- sons as appeared to your judgments to be so, were of sound mind and body, the males above the age of 21 years and un- der 45, and the females above the age of 18 years and under 45 : nevertheless you the said justices (to whom it doth of right belong to admit such deed to record, and to make such certifi- cate upon your record) have refused to admit the said deed to record, and also to certify on your record as aforesaid, to the great damage and grievance of him the said B. D. as by the complaint of the said B. D. we have understood : We therefore, being willing that due and speedy justice be done to the said B. D. in this behalf, as is reasonable, command you that you do admit the said deed of emancipation to record, and that you do certify on your record that as many of the said persons as ap- pear to your judgments to be so, are of sound mind and body, the males above the age of 21 years and under 45, and the fe- males above the age of 18 years and under 45 ; or signify to us cause to the contrary thereof; lest, in your default, complaint should come to us repeated. And how you shall execute this our command, certify to our judges of our general court at the next district court to be holden at Winchester, returning there this our writ. Witness &c. 5. Mandamus, in New York, to judges of court below, to seal bill of exceptions, or shew why it is not done. In Sikes v. Ranson, 6 Johns. Rep. 279. the supreme court of New York considered the question whether that court could interfere when a court below refuses to seal a bill of exceptions. The following is an extract from the court's opinion : " The practice in England under the statute of Westm. 2. (of which ours is a copy) seems to be to apply to the court of chancery for a writ grounded upon the statute. The form of the writ is to be found in the Register (182 a.) ; and lord Redesdale, in the case of Lessee of Lawlor v. Murray, 1 Sch. &, Lef. 75. calls it a mandatory writ, ' a sort of pre- rogative writ;' that the judges to whom it is directed must obey the writ by sealing the exceptions, or make a special return to the king in chan- cery. The writ, after reciting the complaint, commands the judges, si ita est, tune sigilla vestra fyc. et hoc, sub periculo quod incumbit, nulla- tenus omittatis. What that peril is, within the purview of the writ, does 344 Writ of mandamus. not distinctly appear ; though the books speak of an action on the sta- tute, at the instance of the party aggrieved. Show. P. C. 117. In The Rioters' case, 1 Vern. 175. a precedent was produced, where, in a like case, such a mandatory writ had issued out of chancery to the judge of the sheriff's court in London. But though no instance appears of such a writ issuing out of the king's bench when an inferior court refused to seal a bill of exceptions, there is no case denying to that court the power to award the writ. It is, in effect, a writ of mandamus, and it is so termed in the books." Though the supreme court of New York was of opinion, in Sikes v. Ranson, that it had jurisdiction to award the writ of mandamus, yet in that case the writ was denied, because the state of the case made it im- proper that it should be awarded. The bill of exceptions had been sealed at the term at which it was tendered, and at a subsequent term the court below was asked to amend the bill, according to a statement then presented. This the court below was not bound to do. In The People v. Judges of Westchestcr, 4 Cow. 73. a mandamus was issued in these words : The people &c. to the judges &c. of Westchester, greeting : Whereas it has lately been represented to us, in our supreme court of judicature, before our justices thereof, on the part and behalf of J. K. that at a court of common pleas held in and for the county of W. at &c. on &c. a certain suit, then and there pending in the said court of common pleas, before you the said judges, wherein J. K. was appellee and S. K. appellant, was ar- gued before you the said judges, and a judgment of nonsuit ren- dered therein by you the said judges, and that the said J. K. by his counsel learned in the law, did then and there except to the opinion of you the said judges in the said suit, and to the judg- ment therein by you so rendered as aforesaid,, and did then and there write his exceptions, and tender the same to you, and re- quest you to affix your seals to the same ; to which said excep- tions you the said judges refused to affix your seals : Where- upon we, being willing that justice should be done in the pre- mises, do command you that you the said judges do affix your seals to the said bill of exceptions, according to the statute in such case made and provided ; or, in default thereof, that you make known to us, in our supreme court of judicature, before our said justices thereof, at the capitol in the city of Albany, on the 3d monday of February next, why you have not done the same. Witness &c. A motion was made to quash this writ, on the ground that it was de- fective in form, in omitting to set forth or recite the bill of exceptions. But the motion was denied. Writ of mandamus. 345 6. Mandamus issued, in Virginia, to justices of county court, to affix their seals to bill of exceptions alleged to contain the truth, si ita est. The commonwealth of Virginia to A. B. Sec. gentlemen, jus- tices of our court of H. county, greeting : Whereas complaint hath been made by W. B. to our circuit superior court of law and chancery for H. county, that upon the trial of a certain ac- tion of debt lately depending in the said county court, wherein the said W. B. was plaintiff' and E. C. administrator of G. M. deceased was defendant, he the said W. B. did then and there offer to you the said justices, then sitting, his certain bill of ex- ceptions) in the words and figures following : (here insert the ex- ceptions, and did then and there require you the said justices to affix your seals to the said bill of exceptions, according to the statute in that case made and provided ; and that you the said justices did utterly refuse so to do, notwithstanding the said bill did, as is alleged, contain a true statement of the testimony ex- cepted to, and by you the said justices permitted to go to the jury : Therefore we command you, or the greater part of you, if it is so, to affix your seals to the said bill, according to the form of the statute in that case made and provided. And how you shall have executed this our command, certify to our judge of our said circuit superior court, at &c. on the first day of the next term, returning then and there this our writ. And this by no means omit. Witness &c. 7. Service of mandamus, and return thereof. In The People, at the relation of Tremper, v. Judges Sfc. of Ulster, 1 Johns. Rep. 64. an alternative mandamus had issued at the preceding term, and no return being made, an affidavit was read, stating that it had been served by delivering a copy thereof to each of the defendants and at the same time shewing the original ; and a motion was thereupon made that a peremptory mandamus should issue. The objection was taken, that a peremptory mandamus could not issue until a return was made to the first writ, and that there should be a rule for a return to the first mandamus ; as in other cases where a writ is not returned. But the court said, " It is not requisite that we should go through the process and delay of rules and attachments in order to compel a return to the first mandamus. The alternative in it was intended for the benefit and convenience of the defendants. As the first writ has been regularly served, we may, at our discretion, order a peremptory mandamus" 44 346 Writ of mandamus. 8. Return being insufficient, peremptory mandamus awarded. 1 Rob. Prac. 649, 50. 'Dawson v. Thruston fyc. 2 Hen. & Munf. 132. Return being made lo the conditional mandamus awarded at the last term, on the motion of B. D. trustee for R. C. deceased, directed to the justices of JP. county court; this day came the parties by their attorneys, who were fully heard, and the return aforesaid being seen and inspected, it seems to the court that the said return is insufficient. Therefore it is considered that a pe- remptory writ of mandamus be awarded, directed to the justices of the county court of F. commanding them to receive proof or acknowledgment of the deed of emancipation in the proceed- ings mentioned, and admit the same to record, and to certify on their record that as many of the persons named in the said deed as then appeared to their judgments to be so, were of sound mind and body on the 3d day of April 1805 (when they were before the court of the said count}', and the said B. D. offered to acknowledge the said deed), the males then above the age of twenty-one years and under forty-five, and the females then above the age of eighteen years and under forty-five. Writ of prohibition. 347 CHAPTER XXXIII. WRIT OF PROHIBITION. 1. Notice to justice of the peace, of motion for writ of prohibition. 1 Rob. Prac. 27. 650, 51. Sess. Acts 1836-7, p. 37. ch. 57. State v. Whyte fyc. 2 Nott & M'C. 174. State ads Wdhely, Id. 410. 412. 419. Free v. Burgoyne, 2 Bligh N. S. 65. To J. S. W. esq. Sir, Take notice, that on the day of the ensuing ses- sion of the &c. I shall, by counsel, move the said court to award a writ of prohibition, inhibiting you from proceeding to try and give judgment on a certain warrant issued by you, as a justice of the peace for the county of F. against me, at the suit of J. M. M. for certain rents claimed by him to be due from me for a certain lot in the town of Winchester. Winchester, May 6. 1808. J. M. Affidavit of service. F. county, to wit : C. W. this day made oath before me, a justice of the peace for said county, that on the 14th day of this month he delivered a true copy of the above notice to J. S. W. esq. Given under my hand this 16th day of May 1808. E. M. 2. Notice to opposite party, of motion for writ of prohibition. To J. M. M. Sir, Take notice, that on the day of the ensuing session of the &c. I shall move the said court to grant me a writ of prohibition against yourself and J. S. W. esq. justice of the peace for F. county, to prevent your further proceeding be- fore the said justice of the peace, and to inhibit him from further acting, on a certain claim exhibited before him by you against me, and from trying a warrant issued against me for certain 348 Writ of prohibition. rents claimed by you to be due from me for a lot in the town of Winchester. J- M. Winchester, May 6. 1808. Affidavit of service will be like that upon the notice to the justice. 3. Suggestion that controversy before a justice involves the title of an assignee to a freehold estate of inheritance in an incorporeal here- ditament. 1 Rob. Prac. 3. 4. 650. 651. The following is a copy of the suggestion in Miller v. Marshall Sfc, 1 Va. Cas. 158. Virginia, district of Winchester, to wit : Be it remembered that on the day of October 1807, at a superior court continued and held for the district composed of the counties of Frederick, Berkeley, Shenandoah and Jefferson, at Winchester, before the honourable A. S. esq. one of the judges of the general court of Virginia, then and there sitting, and holding a court for the said district, comes J. M. by his counsel, and gives the said court to understand and be informed, that whereas all and all manner of pleas and plaints involving the title or bounds of lands, or the right or title to any freehold estates, within the said commonwealth of Virginia and within the district aforesaid arising and happening, to certain courts of record within the said district, that is to say, to the courts of quarterly sessions of the counties and corporations within the said district, respec- tively, and to the court held according to law for the district aforesaid, do belong and appertain : And whereas, by the de- claration of rights, made by the representatives of the good people of Virginia assembled in full and free convention, at the capitol in the city of Williamsburg, on monday the 6th day of May 1776, it is declared and established, that in controversies respecting property, and suits between man and man, the an- cient trial by jury is preferable to any other, and ought to be held sacred : And whereas also an action of debt, account, or assumpsit will not lie for the recovery of a fee rent, or any fee simple estate or interest in an incorporeal hereditament : Ne- vertheless a certain J. M. M. esq. not ignorant of the premises, but contriving him the said J. M. wrongfully to aggrieve and oppress, and from the rights and jurisdiction of the courts of the said commonwealth to derogate, and the cognizance of pleas which to the said courts of record, and among others to the said district court, and not to the justices of peace out of court, be- longs, to another examination, before a justice of the peace out of court, to draw, before one J. S. W. esq. one of the common- Writ of prohibition. 349 wealth's justices of the peace in and for the county of jP. in the said district, and within the jurisdiction of this court, against the due form of law, and contrary to the laws, customs and usages of the land, for a certain supposed right by the said J. M. M. claimed to a certain freehold estate of inheritance in an incorporeal hereditament, that is to say, a certain yearly rent claimed to be issuing out of the lancfs and tenements of the said J. M. and payable to the said J. M. M. as assignee of D. F. (formerly D. M.) who was assignee of Thomas the late lord Fairfax, hath unjustly drawn the said J. M. in a plea to answer to a certain account, before the said J. S. W. by the said J. M. M. exhibited and stated, he the said J. M. M. before the said J. S. W. esq. craftily and subtly stating his demand, in sub- stance, as follows : " J. M. to J. M. M. - Dr. To one year's rent on lot designated by the let- ter C in the town of Winchester, due on the 29th of September 1797, at 5s. sterling per annum, . . 6. 8. Do. due 29th September 1798, - 6. 8. Do. due 29th September 1799, - 6. 8. Do. due 29th September 1800, - 6. 8. Do. due 29th September 1S01, - 6. 8. Do. due 29th September 1802, - 6. 8. Do. due 29th September 1803, - 6. 8. Do. due 29th September 1804, - 6.8. Do. due 29th September 1805, - 6. 8. 3. 0. 0. which said rent is reserved, by a deed under seal, conveying the said lot designated by the letter C to , signed by the late lord Fairfax, and dated , now in the custody of the said J. M., to him the said Thomas late lord Fairfax, his heirs and assigns for ever, and which said rent the said J. M. M. by divers good and sufficient conveyances in the law, has now a right to demand and have, but the payment of which he the said J. M. refuses to make. Wherefore he the said J. M. M. prays judgment against him for the same, with interest and costs ; and shall ever pray &c." Whereupon a warrant and summons issued, signed by the said J. S. W. esq. in substance as follows : " JP. county, set. " Summon J. M. to appear before me or some other justice of the peace for the said county, at Chappellier's tavern, near the White Post, on the 20th day of this month, to answer the com- plaint of J. M. M. for rent due, as appears by the annexed ac- 350 Writ of prohibition. count, amounting to ten dollars with interest. And have then there this warrant. Given under my hand this 9th day of June 1807. J. S. W. " To any sworn constable of district No. 2. to execute and return." Which said warrant hath been executed and returned, and is now depending before the said /. S. W. and undeter- mined. And the said J. M. saith that the rent reserved to the said lord Fairfax and his heirs and assigns, by the deed aforesaid under which the said J. M. M. claims the rent aforesaid, was a freehold estate of inheritance in an incorporeal hereditament, in the said lord Fairfax, and that the said J. M. M. claims the said rent as issuing out of the said lot, and payable to him and his heirs and assigns for ever. And the said J. M. further saith that the said demand, claimed and demanded by the said J. M. M. of him the said /. M. by warrant before the said J. S. W. and the amount stated and claimed by him as aforesaid, is the same with the aforesaid rent, and not other or different there- from. And the said J. M. M. him the said J. M. before the said J. S. W. as a justice of the peace aforesaid, of and upon the premises to appear, hath wrongfully obliged, and the said J. M. thereupon there to answer, and in the premises cause to be condemned, with all his power and endeavours daily con- trives, in contempt of the authority of the courts of record of the said commonwealth, against the laws and customs of the commonwealth, and to the manifest prejudice, damage and grievance of him the said J. M. And this he is ready to verify ; with this, that the said place called Chappellier' 's tavern, near the White Post, is within the said county of F. in the said district, and within the jurisdiction of this court, and that the said J. M. M. and J. S. W. are both of the said county of F. in the said district, and within the jurisdiction of this court, and the said lot of ground out of which the said rent is claimed to issue, and the said J. M. and all the persons and things concerned in the said matter of controversy, are within the said county of JP. in the said district, and within the jurisdiction of this court, and subject to its rules and process. Wherefore the said J. M. the aid of this court respectfully demanding, prays remedy by the commonwealth's writ of prohibition, to the said J. S. W. justice of the peace as aforesaid, or other justice, in form of law to be directed, to prohibit him and them from holding the plea afore- said, of and concerning the premises aforesaid, farther before him or them, or any of them. And it is granted him &c. Writ of prohibition. 351 Affidavit verifying the facts. F. county, set. J. M. this day personally appeared before me the subscriber, a justice of the peace in and for the county of F. and made oath that the matters of fact stated in the above and foregoing suggestion are true, to the best of his knowledge and belief. Given under my hand this 25th day of September 1807. E. M. 4. Suggestion that proceedings before a justice were by four warrants for sums constituting together but one debt, and that the debt ex- ceeded $20. I Rob. Prac. 4. 650, 51. The following is a copy of the suggestion in Hutson \. Lowry and Neville, 2 Va. Cas. 42. In &c. Be it remembered that on the day of in the year of our lord 1816, comes J. H. and gives the said court to understand and be informed, that all and all manner of pleas and plaints of debt exceeding the value of 20 dollars, and with- in the county aforesaid arising and happening, to certain courts of record within the said county, that is to say, to the court of quarterly sessions of the county aforesaid, and to the superior court of law for the county aforesaid, do belong and appertain. And whereas the said J. H. on the llth day of September in the year of our lord 1815, was indebted to one J. L. in the sum of $ 80. of lawful money of the United States, and the said J. H. so being indebted as aforesaid, afterwards, to wit, on the same day and year last aforesaid, by the procurement of the said J. L. who sought to oust the aforesaid courts of their afore- said jurisdictions, at the county aforesaid, made and delivered to the said J. L. four several single bills, sealed with the seal of the said J. H. whereby the said J. H. bound himself for the payment of the said $ 80. to the said J. L. that is to say, the said J. H. by each and every of said single bills, bound himself to pay to the said J. L. 20 dollars ; all which debt, and all of the said several single bills, were due and had become payable at or before the 12th day of December in the year of our lord 1815, whereby the courts aforesaid, or one of them, had and ought to have had jurisdiction touching any plea or action for the recovery or decision of the said debt and single bills afore- said. Nevertheless the said J. L. not ignorant of the premises, but contriving him the said J. H. wrongfully to aggrieve and op- press, and from the rights and jurisdiction of the courts of this 352 Writ of prohibition. commonwealth to derogate, and the cognizance of pleas which to the said courts of record, and not to justices of the peace, out of such court, belongs, to another examination before a jus- tice of the peace, out of a court of record, to draw, against the due form of laWj and contrary to the laws, customs and usages of the land, hath unjustly drawn the said /. H. in four several pleas, by colour of four several warrants, issued the day and year last aforesaid, for the recovering of the said debt of 80 dol- lars, (the whole thereof being then and there payable and due to the said J. L. and the whole being in arrear and unpaid,) be- fore J. S. a single justice of the peace for said county, he the said J. L. before the said J. S. craftily and subtly stating his demands to be four debts of 20 dollars each, due in manner and form aforesaid : and such proceedings were thereupon had by the procurement of the said J. L. and one J. N. a constable of the said county, that the said J. S. afterwards, to wit, on the 16th day of December 1815, at the county aforesaid, rendered in behalf of the said J. L. against the said J. H. against the will and consent of the said J. H. four several judgments for the sum of 20 dollars each, and interest and costs, making alto- gether 80 dollars, and interest and costs, by pretence of the said several warrants, and the debt and single bills aforesaid. And the said J. L. and J. N. by pretence of the said several judg- ments, to condemn the said J. H. in the payment of large sums of money, and to prosecute execution thereon against him, with all their power and endeavours, daily contrive ; in con- tempt of the authority of the courts of record of the said com- monwealth, and to the manifest prejudice, damage and grievance of him the said J. H. And this he is ready to. verify. Where- fore the said J. H. the aid of this court most respectfully de- manding, prays remedy by the commonwealth's writ of prohi- bition, to the said J. S. justice of the peace, and the said J. N. and J. L. as aforesaid, to be directed, in form of law, to prohi- bit him the said justice from holding the plea aforesaid, of and concerning the premises aforesaid, farther before him, and to prohibit the said J. L. and J. N. from proceeding in the pre- mises. Note. If there be one entire contract above $ 20. and a man severs it into divers small sums under $ 20. and proceeds before a justice for the separate sums, a prohibition will be granted, because this is consi- dered as done to defraud the proper court. It has also been contended that if there be several contracts between A. and B. at several times, for several sums, each under $ 20. and together they amount to more than $ 20. they must be put in suit. But the decision of the court of king's bench in The King v. The sheriff of Herefordshire, 1 Barn. &. Writ of prohibition. Ad. 672. 20 Eng. Com. Law Rep. 466. is against this proposition. It appeared in that case, that the plaintiff, who was a carrier, had conveyed goods for the defendant, and the carriage amounted to 1. 4. In about a month afterwards, he carried more goods for the defendant, and the carriage upon that occasion also amounted to \. 4. And for these sums, respectively, he commenced two suits in the county court. A motion was made for a rule upon the sheriff, to shew cause why a writ should not issue to prohibit him from proceeding in the two suits in his county court. And it was urged before the court of king's bench, that these two items must be considered as constituting but one entire debt or demand, and if so considered, then that the plaintiff had no right to split that demand, in order to bring several suits for different portions of it in the county court. The court, however, refused the rule. Lord Tenterden, C. J. said, " I am of opinion that this case does not come within the rule of law which prohibits the splitting of a cause of action into several portions, for the purpose of commencing suits for each in an inferior court ; to be so, the cause of action must be one arid entire. But in this case the two items of 1. 4. each are perfectly distinct debts, the one having no connexion with the other. When the defen- dant incurred the debt stated in the first item, the plaintiff might have sued him for it in the county court ; and his having incurred another and distinct debt with the plaintiff afterwards, should not, I think, have the effect of depriving the plaintiff of his remedy in the county court for the first debt. And if he may still have that remedy for the first debt, he has it of course for the second also." 5. Suggestion that county court is illegally exercising jurisdiction by prohibition. 1 Rob. Prac. 650, 51. In &c. Be it remembered that C. G. I. in his proper person cornes here into court, and gives the court now here to under- stand and be informed, that heretofore, to wit, on the 25th day of September 1824, at the county of L. aforesaid, before one J. B. one of the commonwealth's justices of the peace for said county, he the said C. G. I. by warrant in a plea of debt then and there returned and prosecuted before the said justice of the peace, and by the consideration and judgment of the said jus- tice of the peace, recovered against one L. M. of the same county, 10 dollars for debt, and 1 dollar and 50 cents interest, with 4 dollars and 88 cents for the costs of him the said C. G. L about the prosecution of the said warrant expended. And the said C. G. L further gives the court to understand and be in- formed, that afterwards and heretofore, to wit, on the 15th day of December 1824, at the said county, before the county court of the said county, the said L. M. contriving and wrongfully intending to draw him the said C. G. I. and the judgment and matter of controversy aforesaid, into question before the said county court, did then and there, before the justices of the 45 354 Writ of prohibition. said county, exhibit a certain petition to the said county court, complaining of certain supposed errors in the aforesaid judg- ment, and praying the said county court to grant him the said L. M. a writ of prohibition, to prohibit the said J. B. and all other officers from proceeding further in the said judgment; and such proceedings on such petition were had, that afterwards, to wit, on the day and year last aforesaid, at _L. county aforesaid, the said county court, by the promotion of the said L. M. awarded such writ of prohibition, and afterwards, to wit, on the 15th day of January 1825, at L. county aforesaid, the said county court, by the promotion of the said L. M. ordered that the said prohibition should stand final between the parties. And the said C. G. I. further gives the court to understand and be in- formed, that the said county court of L. have proceeded as afore- said by the promotion of the said L. M. unlawfully and without jurisdiction, and against the will of him the said C. G. I. and that the said L. M. and the same county court have hitherto wrongfully continued, and yet do wrongfully continue, to enforce the said order so made as aforesaid on the said 15th day of January 1825, thereby wrongfully usurping the lawful jurisdic- tion of awarding a prohibition, which lawfully appertains only to this honourable court, and thereby wrongfully, injuriously, and unlawfully restraining and inhibiting him the said C. G. I. from having execution of his said judgment, and from all pro- ceedings thereon. Wherefore the said C. G. L now here prays that the commonwealth's writ may be awarded, to prohibit the said county court and the said L. M. from prosecuting and en- forcing the said order of said county court. 6. Writ of prohibition. The commonwealth of Virginia to E. F. a justice of the peace for the county of L. Whereas, when any debt or penalty, ex- clusive of interest, shall exceed twenty dollars, the same is not cognizable and determinable by any one justice of the peace in this commonwealth, but of causes whose value exceeds twenty dollars, our county and corporation courts may take cog- nizance, and hear and determine the same, and of causes, mat- ters and things at common law, which amount to fifty dollars, our circuit superior courts of law and chancery have jurisdic- tion likewise : And whereas you the said justice have, as we are informed, given judgment for A. B. against C. D. for a debt of $ 80. besides interest and costs, that is to say, upon four war- rants, each for $20, have given judgment in each case for $20, besides interest and costs : We therefore command you, if it be so, that then you absolutely supersede the said plea or pleas Writ of prohibition. 355 of the said A. B. from being farther holden before you, and also supersede further proceedings on the judgment or judgments given as aforesaid ; and on our behalf that you tell the aforesaid A. B. that he may, upon request, obtain our writ of the debt aforesaid against the aforesaid C. D. in the court of our said county, or in the circuit superior court of law and chancery for our said county, if it shall seem to him expedient. Witness &c. 356 Writ of habeas corpus ad, subjiciendum. CHAPTER XXXIV. WRIT OF HABEAS CORPUS AD SUBJICIENDUM. 1. Petition for writ. 1 Rob Prac. 22. 651, 2. U. States v. Ha- milton, 3 Dal. 17. Ex parte Buford, 3 Cranch 448. Ex parte Wilson, 6 Cranch 52. Ex parte Kearney, 7 Wheat. 38. De Lacy v. Antoine &c. 7 Leigh 438. To the honourable W. B. judge of the circuit superior court of law and chancery for the county of H. The petition of J. H. P. of the city of R. respectfully repre- sents, that he has been arrested by the marshal of the eastern district of Virginia, namely, E. C. and that he is now detained in his custody, under and by virtue of an alleged order or pro- cess of attachment, which purports to have been issued by the court therein styled the United States circuit court of the district of Columbia for the county of Alexandria, for an alleged disobe- dience of your petitioner to a prior order of said court, to ap- pear as a witness before the said court to give evidence touch- ing alleged matters of public complaint therein depending. Your petitioner represents that he is a citizen and resident, and always has been, of the commonwealth of Virginia, and, as such, is not subject to be ordered and controlled by the process of the said court, in respect of the matters alleged against him ; and further, that there is no law which authorizes the court afore- said to issue the said process, and that the marshal aforesaid has no authority to arrest your petitioner thereon. Therefore your petitioner prays your honour to award to him the writ of habeas corpus, to the said marshal directed, requiring him to bring before you the body of your petitioner, with the causes of his detention, so that the same may be enquired into, and relief afforded your petitioner. J. H. P. Affidavit. In open court, November 14. 1833, the above named J. H. P. made oath that he is now detained in the custody of the marshal of the eastern district of Virginia, as within stated. J. R. clerk. Writ of habeas corpus ad subjiciendum. 357 2. Order awarding the writ. 1 Rob. Prac. 651, 2. On the petition of J. H. P. stating that he is illegally detained in the custody of the marshal of the eastern district of Virginia, by virtue of an attachment issued out of the United States cir- cuit court for the district of Columbia, a writ of habeas corpus is awarded him, to the said marshal to be directed, commanding him to have the body of the petitioner before this court to-mor- row morning at 10 o'clock, together with the day and cause of his caption and detention. 3. Writ of habeas corpus. 1 Rob. Prac. 651, 2. The commonwealth of Virginia to the marshal of the eastern district of Virginia greeting : We command you that the body of J. H. P. detained by you, and under your custody, as it is said, together with the day and cause of his caption and deten- tion, by whatsoever name he may be called, you have to-mor- row morning at 10 o'clock before the judge of our circuit supe- rior court of law and chancery for H. county, now sitting, at the capitol in the city of jR. to do, submit to, and receive all and singular those things, which shall then and there be consi- dered of him in this behalf. And have then there this writ. Wit- ness J. R. clerk of our said circuit superior court, at Richmond the 14th day of November 1833, in the 58th year of our foun- dation. J. R. 4. Return annexed to writ. 1 Rob. Prac. 651, 2. In obedience to the within writ of habeas corpus, to me direct- ed, I hereby certify to the circuit superior court of law and chancery of the county of H. that the said J. H. P. in the said writ named, was by me taken on the 14th inst. and is detained in custody by me, under authority of a certain process, called an alias attachment, issued from the circuit court of the district of Columbia, for the county of Alexandria, dated the 12th day of October 1833, and to me directed, whereby I am commanded to attach the body of the said J. H. P. and to have him before the said circuit court of the district of Columbia, for the county of Alexandria, immediately, to answer the United States of Ame- rica, touching a certain 'contempt by him committed, in not at- tending the said court as a witness, after being thereto legally summoned ; of which said process of attachment, I hereto annex a full copy. And I now have the body of the said J. H. P. be- 358 Writ of habeas corpus ad subjiciendum. fore this court, as by the said writ of habeas corpus I am com- manded. E. C. United States marshal of the eastern district of Virginia. November 15. 1833. 5. Endorsement upon writ. 1 Rob. Prac. 651, 2. The execution of this writ and return thereupon, appears by the schedule hereto annexed. E. C. United States marshal of the eastern district of Virginia. November 15. 1833. 6. Return made to writ, and case continued to another day. 1 Rob. Prac. 651, 2. E. C. marshal of the eastern district of Virginia, in obedi- ence to the writ of Jiabeas corpus yesterday awarded, and to him directed, brought into court J. H. P. in the said writ named, and certified that the cause of the detention of the said P. would appear by a schedule annexed to the said writ : which being inspected, for reasons appearingtothe court, the further con- sideration of the petition of the said P. is postponed till to-mor- row morning, 10 o'clock. And it is ordered that he be conti- nued in the custody of the said marshal, until the further order of the court. 7. Case heard, and petitioner discharged from -custody. 1 Rob. Prac. 651, 2. J. H. P. was this day again brought into court by E. C. mar- shal of the eastern district of Virginia : and the court, after hearing and considering the arguments of counsel, as well in behalf of the said J. H. P. upon his petition, as in opposition thereto, is of opinion that the said P. is illegally detained in the custody of the said marshal. It is therefore ordered that he be discharged therefrom. 8. Entry of return made to writ ; case heard; and prisoner dis- charged. 1 Rob. Prac. 651, 2. This day, J. L. was brought into court by the sheriff of this county, in obedience to the writ of habeas corpus yesterday awarded, and to the said sheriff directed ; and the said sheriff certified that the said L. was taken into his custody and de- Writ of habeas corpm ad subjiciendum. 359 tained by virtue of a writ of capias ad satisfaciendum, issued from the clerk's office of this court on the 30th day of October last, in favour of D. P. and for no other cause : And it appear- ing to the court, that the judgment on which the said execution issued was rendered on the 21st day of December 1819; that the said L. took the oath of an insolvent debtor before the county court of H. on the 7th day of May 1821, and that since that time no execution has been ordered by this court to issue upon the judgment aforesaid ; it seems to the court that the said J. L. is illegally detained in custody, and it is therefore ordered that he be discharged. Another. S. T. a captain in the army of the United States, in obedience to the writ of habeas corpus yesterday awarded, and to him di- rected, brought into court R. S. in the said writ named, who is detained in his custody as a captain in the army of the United States, under an enlistment to serve in the army of the said United States. Whereupon came, as well W. W. who claims the said S. as his apprentice, as the said S. T. by their attor- neys ; and it appearing to the court that the said R. S. hath been legally bound to the said W. W. for a term of years which is not yet expired, it is ordered that he be discharged from the custody of the said S. T. 360 Writs of error and supersedeas. CHAPTER XXXV. WRITS OF ERROR AND SUPERSEDEAS. 1. Where party desires to appeal, order directing execution to be suspended. 1 Rob. Prac. 659. The defendant stating that he thinks himself aggrieved by the judgment rendered in this case, at the present term, and that he desires to appeal therefrom to the circuit court of this county, and intends to apply for an appeal pursuant to the pro- visions of the judicial act, passed April 16. 1831, the court doth fix sixty da}'S as the time within which the said C. D. may ap- ply for such appeal, and doth order that execution of the said judgment be suspended for that time, provided the said defen- dant or some responsible person shall enter into bond with suffi- cient security, in the penalty of $ , with a condition ac- cording to law. Whereupon the said C. D. entered into such bond with E. F. his security ; and execution of the judgment is suspended as aforesaid. 2. Bond given when the court suspends execution to let the party apply for an appeal. 1 Rob. Prac. 659. Know all men &c. (as in p. 152. No. 3.) The condition of the above obligation is such, that whereas the above bound C. D. thinks himself aggrieved by a judgment of the court of H. county, rendered on the day of , in favour of A. B. against the said C. D. for &c. (stating the judgment) ; and the said C. D. desiring to appeal therefrom to the circuit court of this county, and intending to apply for an appeal pur- suant to the provisions of the judicial act, passed April 16. 1831, the said county court, on this day, has fixed sixty days as the time within which the said C. D. may apply for such ap- peal, and has ordered that execution of the said judgment be suspended for that time, provided the said C. D. or some re- sponsible person shall enter into bond with sufficient security, in the penalty of $ , with a condition according to law: Now if the said C. D. his heirs, executors or administrators, shall pay to the said E. F. his executors, administrators or as- signs, all costs and damages and the profits of the property reco- Writs of error and supersedeas. 361 vered, in case the said judgment be affirmed, or the said C. D. shall fail to obtain or prosecute an appeal, then the above obli- gation is to be void, otherwise it is to remain in full force. 3. Manner of transcribing the record. Judging from the records which are every day brought to counsel, practising in the court of appeals., there must be a great diminution of clerical knowledge throughout the commonwealth. It is difficult to ac- count for that want of skill in making up a record, which is so often manifested, except by supposing that persons are frequently appointed to fill clerkships, who have not undergone the previous training indispen- sable to make a clerk. At common law, when there is a verdict, no written evidence is con- sidered as forming a part of the record, unless mentioned in the plead- ings with a profert in curia, or made a part of the record by praying oyer thereof and setting it forth in Juzc verba, or specially found in a special verdict, or set forth in Jicec verba, by a bill of exceptions or de- murrer to evidence. In the latter cases it is usual, in order to save time, only to insert at the trial a few of the initial words, by way of identifying the papers, and then the clerk copies them at length, either in the body of the verdict or bill of exceptions, or certifies them as the papers referred to by the initial words. Tucker, J. in Carr's ex' or v. An- derson, 2 Hen. &- Munf. 365. The copying, at the end of a record, a mass of documents which have not been made part of the record in any regular mode, brings in- creased charges upon parties, and adds to the labour of counsel and judges in the appellate court, without producing the slightest advan- tage. In Moore v. Chapman, 3 Hen. & Munf. 267. judge Tucker says : " I have taken no notice of the evidence which might have been given to the jury, except what is stated in the bill of exceptions ; the mass of pa- pers copied at the end of the record, as has been more than once deci- ded, though certified by the clerk to have been filed in the cause, not being properly before this court." Again, in the more recent case of Bowyer v. Chesnut, 4 Leigh 4. two depositions were copied, and the clerk certified that these deposi- tions were read in evidence for the plaintiff at the trial. Upon this oc- casion, Tucker, president, said, the depositions " are no part of the re- cord. The clerk's certificate that they were read and filed cannot be received as evidence of that fact ; for the appellate court can never know what took place at the trial from the clerk's certificate. That is not within his province. The evidence produced upon the trial can only be known by its being spread upon the record, by bill of excep- tions, or by the certificate of the judge himself. The very object of the institution of bills of exceptions was to enable a party to spread upon the record the matters that occurred at the trial ; the improper evidence introduced, the instructions asked, the opinions given, and other matters of which, the party could not otherwise avail himself in an appellate court. Unless this is done, the court sees nothing but the process, the pleadings, the verdict and the judgment. The certificate 46 362 Writs of error and supersedeas. of counsel affords no evidence of opinions expressed or evidence given ; nor the certificate of the clerk, of the papers produced before the jury, or the depositions read in the cause." Endorse upon the record. The fee of the clerk of the court of county, for making out this transcript of the record, is L. N. E. clerk. As to the necessity of this endorsement, see 1 Rob. Prac. 671, 2. 4. Transcript of the record in a case wherein final judgment has been entered in the office. 1 Rob. Prac. 654. Pleas at the courthouse of the county of , before the court of the said county, on monday, the fourteenth day of November, in the year one thousand eight hundred and twen- ty-five. Be it remembered, that heretofore, to wit, on the first day of August in the year aforesaid, came G. S. by his attorney, and sued out of the office of the said court a writ of capias ad re- spondcndnm against G. W. B. which writ with the endorsement and return thereon made, is in the words and figures following : " The commonwealth" &c. (here insert the writ). (Endorsement.) " This is an action of debt upon a note in writing for the payment of money. No bail required. for plaintiff," (Return.) "Executed on the second day of August 1825. H. L. C. deputy for W. D. sheriff of H. county. 1 ' And at another day, to wit, at rules held in the clerk's office of the said court on the first monday in September 1825, being the fifth day of the month, came the plaintiff by his attorney, and filed his declaration against the defendant, which declara- tion is in these words : (here insert the declaration). Where- upon, the defendant being arrested and not appearing, on the motion of the plaintiff by his attorney, it was ordered that judgment be entered for &c. (pursuing the form of the condi- tional judgment) unless the defendant should appear and plead to issue at the then next rules. At which day, to wit, at rules held in the office of the said court on the first monday in October 1.825, being the third day of the month, the defendant still failing to appear, on the motion of the plaintiff by his attorney, it was ordered that &c. (pursu- ing the. form of the conditional judgment confirmed). And now at this day, to wit, at a court held for the said county of H. at the courthouse, on the same day and year first Writs of error and supersedeas. 363 herein mentioned, to wit, on monday the &c. (state the final judgment.) The following is a copy of the note in writing upon which this action was ibunded : (here insert the note.) 5. Transcript of the record in a case wherein damages have been assessed and judgment rendered upon a writ of enquiry. 1 Rob. Prac. 654. Like the last form, omitting merely the concluding lines which intro- duce the paper whereon the action is founded. After verdict upon a writ of enquiry, though the action be upon a bond with collateral con- dition, the bond is no part of the record. 6. Transcript of the record of an action on a bond made part of the record by oyer. 1 Rob. Prac. 655, 6. Pleas &c. Be it remembered that heretofore, to wit, at rules held in the clerk's office of the said court on the first monday in , being the day of the month, came E. O. and R. O. by their attorney, and filed their declaration against D. R. in cus- tody &c. of a plea of debt, which declaration is in these words, to wit : (here insert it). Whereupon came also the defendant by his attorney, and prayed oyer of the writing obligatory in the declaration men- tioned, and of the condition of the said writing obligatory, and the same were read to him in these words, to wit: " Know all men," &c. (here insert them). And thereupon a day was given the defendant until the next rules, to plead to the plaintiff's de- claration ; and the same day was given to the plaintiffs there &c. At which day, to wit, at rules held in the clerk's office of the said court on the first monday in , being the day of the month, came the plaintiff by his attorney, &c. (stating the proceedings as they took place). 7. Transact of the record of an action on a judgment, wherein profert was made of the record of the judgment, and no such record pleaded. 1 Rob. Prac. 655. Digges's ex'or v. Dunn's ex* or,' 1 Munf. 56. Pleas &c. Be it remembered that heretofore, to wit, at rules held in the office of the said court on the first monday in , being the day of the month, came S. P. by his attorney, and filed his declaration against M. G. of a plea of , which decla- 364 Writs of error and supcrsedcas. ration is in these words : (here insert the declaration). Where- upon &c. (pursuing the form of the conditional judgment). At which day, to wit, at rules held in the office of the said court on the first monday in , being the day of ihe month, (state the conditional judgment confirmed). And at another day, to wit, at a court held for the said county on the day of , (state the plea and issue). And now at this day, to wit, at a court held for the said county of H. at the courthouse, on the same day and year first herein mentioned, to wit, on the day of , (state the final judgment). The transcript of the record of the judgment in the declara- tion mentioned, brought by the plaintiff into court, and inspected by the court, is in the words following to wit : (here insert the same). 8. Transcript of the record of an action wherein an issue of fact was joined, opinion at the trial cxccpted to, and judgment rendered upon a verdict. 1 Rob. Prac. 655, 6. Like the last form, omitting merely the concluding lines, which in- troduce the transcript of the record in that case, and, in lieu thereof, copying, at the foot of the judgment, the entry of the bill of excep- tions, thus : Memorandum. At the trial of this cause, &c. (see p. 120. No. 18). The said bill of exceptions is in these words, to wit : (here insert the same). 9. Transcript of the record of an action of ejectment. 1 Rob. Prac. 441. 654-6. Pleas &c. Be it remembered that heretofore, to wit, at a circuit superior court of law and chancery held for the county of H. at the courthouse, on &c. came Aminadab Scclcright by his attorney, and filed his declaration against jP. D. of a plea of trespass and ejectment; which declaration, and the note and affidavit there- under written (or, thereon endorsed) are in the words following: (here insert them). And it appearing by the affidavit of &c. (state the common order). And at another day, to wit, at Sec. (stating the proceedings as they took place). Writs of error and supersedcas. 365 10. Transcript of the record upon a writ of right. 1 Rob. Prac. 464. 654-6. Pleas &c. Be it remembered that heretofore, to wit, on the 25th day of October 1S25, was issued out of the office of the said court a writ of right, which, with the return thereon, is in these words : (here insert the writ and return). And at another day, to wit, at a circuit superior court of law and chancery held for the county of H. at &c. on &c. came the adult demandants by their attorney, and the infant demandants by their next friends, and filed their count against the tenants ; which count is in these words : (here insert the count). And it appearing by the return &c. (state the conditional order, and then the subsequent proceedings as they took place). 11. Transcript of the record upon a complaint for unlawful detainer. I Rob. Prac. 496. 654-6. Be it remembered that at the courthouse of the county of H. on the day of , A. B. and C. D. gent, justices of the said county attended, and constituted a court for the trial of a complaint of E. F. against 6r. H. for unlawfully holding him out of possession of a certain tenement containing &c. lying &c. Whereupon &c. (state the proceedings that took place). The complaint of the plaintiff', with his verification of the same, and the warrant issued upon the said complaint, with the return thereon, are in the words following, to wit : (here insert them). 12. Transcript of the record upon a momtrans de droit. 1 Rob. Prac. 500. The following is a copy of the record in French fy Brown v. The Commomoealth, 5 Leigh 512. Pleas at the capitol in the city of R. before the superior court of law for H. county, held for the trial of civil causes, on tuesday the tenth day of April in the year one thousand eight hun- dred and twenty-seven. Be it remembered that heretofore, to wit, on the 24th day of April 1826, A. F. and E. B. filed in the clerk's office of the said superior court, in the vacation thereof, a certain monstrans de droit to an inquisition taken before J. R. escheator for the city of R. which monstrans is in the words and figures following, to wit : 366 Writs of error and supcrsedeas. F. and B. v. Commonwealth. Monstrans de droit. And now at this day, to wit, the 24th day of April 1826, came A. F. and E. B. by A. F. their attorney, and pray oyer of the inquisition taken before J. R. escheator for the city of R. on the 5th day of April 1825, and it is read to them in the words and figures following, to wit : ( Oyer of inquisition.) " Inquisition indented and taken on this 5th day of April 1825, at the courthouse in the city of R. between J. R. escheator of the commonwealth of Virginia in and for the said city, of the one part, and R. P. &c. (here the jury were named) good and lawful men and freeholders of the said city, returned and im- pannelled by the serjeant of the said city, and duly sworn, of the other part, who being charged to enquire what lands and tenements M. B. and P. B. late of the said city, now deceased, died seized of; whether they left any heir, or made any dispo- sition of such lands in their lifetime : and whether the said M. B. and P. B. were aliens at the time of their death, upon their oath aforesaid do say, that the said M. B. and P. B. long before their death, were seized of a certain lot, piece or parcel of ground, lying and being, at the time of their deaths, in the county of H. and now being within the limits of the city of R. contain- ing one half of an acre, conveyed to them the said M. and P. by deed from W. C. dated the first day of September 1783, and recorded in the clerk's office of the county court of H. on the 6th day of October 1783, as by reference to the said deed will more fully appear ; and being so seized, the said M. B. died sometime in the year 1791, and the said P. B. died sometime in the year 1793, without heirs. And the jurors aforesaid, upon their oath aforesaid, do further say, that the said M. B. and P. B. did not make any disposition of the said land in their lifetime, to their knowledge." (Here followed the signatures and seals of the jurors, and the signature and seal of the escheator.) (Monstrans de droit.) " Which being read, heard and understood, they complain, that under colour of the premises in the inquisition aforesaid specified, they are grievously vexed and disquieted, and that the said tract or parcel of land, with the appurtenances, in the hands of the commonwealth is taken and seized, and that not justly, viz. because, protesting that the inquisition aforesaid, and the matters therein contained, are not sufficient in law, to which they have no necessity, nor are they bound by the law of the land in any manner to answer, for shewing their right neverthe- less in that behalf, the said F. and B. by their attorney afore- said, say, that on the said 5th day of April 1825, when the said Writs of error and supersedeas. 367 inquisition was taken, the said F. and B. were seized and pos- sessed of the said tract or parcel of land, with its appurte- nances, in their demesne as of fee, and that the said jF. and B. and those under whom they claim, had been continually so seized and possessed for more than thirty years next before the said 5th day of April 1825, and next before the commencement of the proceedings in which said inquisition was found, and had during that term paid to the commonwealth of Virginia the an- nual taxes assessed thereon, to wit, the sum of for each and every year of more than thirty years next preceding the said 5th day of April 1825 and the commencement of the pro- ceedings aforesaid. And so the said F. and B. say that the said tract or parcel of land, with its appurtenances, was, on the said 5th day of April 1825, and yet is, their own proper freehold and fee ; wherefrom, by the inquisition aforesaid, they have been unjustly removed. And this they are ready to verify. And the said F. and B. further say that the title of the commonwealth, found by the inquisition aforesaid, accrued more than thirty years before the commencement of the proceedings in which said inquisition was found, to wit, on the day of in the year 1793 ; and that, for more than thirty years next be- fore the commencement of said proceedings, the said tract or parcel of land had been settled, and continually, for the said pe- riod of more than thirty years, had been held and claimed as their proper freehold and fee, by the said F. and B. and by those under whom they claim, and was so held and claimed by the said JP. and B. when the said proceedings were commenced, and continually thereafter, until and upon the said 5th day of April 1825; and that, during the whole of the said term, the said F. and B. and those under whom they claim, paid to the said commonwealth the taxes assessed on the said tract or par- cel of land, to wit, the sum of for each of more than thirty years next before the commencement of said proceedings ; and that, in consideration of the said settlement, possession, and payment of taxes, and by virtue of the act of assembly in that case made and provided, the right of the commonwealth to the said tract or parcel of land, with its appurtenances, was re- leased to the said F. and B. And so the said F. and B. say, that on the said 5th day of April 1825, when the said inquisi- tion was taken, the said tract or parcel of land, with its appur- tenances, was their proper freehold and fee, and still continues to be so. And this they are ready to verify. Wherefore the said F. and B. pray that the hands of the commonwealth from the said tract or parcel of land with its appurtenances may be amoved, and that they the said F. and B. to their possession thereof may be restored." 368 Writs of error and supcrsedeas. And at another day, to wit, at a superior court of law for H. county, held for the trial of civil causes, at the capitol in the city of _R. on tuesday the seventh day of November in the year 1826, the said monstrans de droit was produced in court. Where- upon came as well the said A. F. and E. B. by their attorney, as the attorney general for the commonwealth, and the said at- torney general tendered a demurrer to the said monstrans de droit, and a replication to the first plea in the said monstrans de droit contained. (Demurrer and replication objected to, but allowed.) To the reception of which demurrer and plea the said A. F. and E. B. objected, upon the ground that though the said attor- ney general might demur, or reply to the said monstrans de droit, yet he could not both demur and reply thereto. But the court, being of opinion that the said A. F. and E. B. are plaintiffs in this case, received as well the demurrer as the replication afore- said ; and the same being filed, the said A. F. and E. B. filed their joinder in the demurrer, and a similiter to the said replica- tion ; which demurrer and joinder, replication and similiter are as follows : (Demurrer.) " And now at this day, to wit, on the 7th day of November in the year 1826, J. R. the now attorney general of the com- monwealth, who for the commonwealth in this behalf prosecutes and defends, now here present in court in his proper person, by protestation not acknowledging anything in the pleas of the said A. and E. to be true in manner and form as they in their said pleas have above pleaded, for replication nevertheless for the commonwealth saith, that the said pleas of the said A. and E. and the matters therein contained, are not sufficient in law. Wherefore, on account of the insufficiency of the said pleas, the said attorney general of the commonwealth prays judgment for the commonwealth, of the court now here, and that the said tract or parcel of land with the appurtenances, in the said inquisition mentioned, may remain in the hands and possession of the com- monwealth." (Joinder in demurrer.) " And the said A. and E. by their said attorney say, that for- asmuch as they have above, in their said pleas, alleged suffi- cient matter to have the premises aforesaid out of the hands of the commonwealth, which matter they are ready to verify, and which the said attorney general of the commonwealth hath not now for the commonwealth gainsaid, but hath altogether refused to admit the verification thereof, therefore the said A. and E. now, as before, pray judgment that the hands of the common- wealth be removed from the said tract or parcel of land with Writs of error and supersedeas. 369 the appurtenances, and that they to their possession of the same with the appurtenances, and the issues and profits thereof in the mean time received, may be restored." (Replication and similiter.) " And for further plea in this behalf, by leave of the court for this purpose first had and obtained, according to the statute in such case made and provided, the said attorney general of the commonwealth, who for the commonwealth in this behalf pro- secutes and defends, for replication to the first plea by the said F. and B. above pleaded, saith, that on the 5th day of April 1825, when the said inquisition was taken, the said F. and B. were not seized and possessed of the said parcel of land, with its appurtenances, in their demesne as of fee, and that the said F. and B. and those under whom they claim, had not been con- tinually so seized and possessed for more than thirty years next before the said 5th day of April 1325, and next before the com- mencement of the proceedings in which the said inquisition was found, and had not during that time paid to the commonwealth the annual taxes assessed thereon, for each and every year next preceding the said 5th day of April 1S25 and the commence- ment of the proceedings aforesaid. And this the said attorney general prays may be enquired of by the country ; and the said A. F. and E. B. likewise." (Demurrer argued.) And at another day, to wit, at a superior court of law for the said county of H. held for the trial of civil causes, at the capitol aforesaid, on thursday the 5th day of April in the year 1S27, came as well the plaintiffs by their attorney, as the attorney for the commonwealth ; and thereupon the matters of law arising upon the demurrer filed by the said attorney for the common- wealth to the said monstrans de droit were argued ; but because the court is not advised of its judgment to be given in the pre- mises, time is taken to consider thereof. (Judgment for the commonwealth.) And now at this day, to wit, at the same superior court of law, continued and held at the capitol aforesaid on the same day and year first herein mentioned, to wit, tuesday the tenth day of April 1S27, came as well the plaintiffs by their attorney, as the attorney for the commonwealth ; and the court, having maturely considered the matters of law arising upon the de- murrer filed by the attorney for the commonwealth to the said monstrans de droit, is of opinion that the said monstrans de droit, and the matters therein contained, are not sufficient in law. Therefore it is considered that the plaintiffs take nothing by their said monstrans de droit, but for their false clamour be in mercy 47 370 Writs of error and supersedeas. &c. and that the commonwealth recover against the plaintiffs her costs by her in this behalf expended. 13. Transcript of the record of a judgment on a forthcoming bond, obtained by default. 1 Rob. Prac. 601. 654. Pleas &c. Be it remembered that at this same term, to wit, at a circuit superior court of law and chancery held for the county of H. at the courthouse, on the day and year aforesaid, to wit, on the day of in the year , on the motion of A. B. plaintiff against C. D. and E. F. defendants, on a bond conditioned for the forthcoming, on the day of sale, of property taken under execution, which bond is in these words, to wit, (here insert the bond), came the plaintiff by his attorney &c. (copying the entry in p. 274. No. 2). The following is a copy of the execution returned with the bond above mentioned, and remaining filed therewith, and also of the return on the said execution : (here copy the execution and return). 14. Transect of the record of a motion on which the defendants appeared. 1 Rob. Prac. 591. 654. Where the defendant has appeared, without making any objection to the proceeding for want of notice, and without filing any bill of excep- tions, an appellate court will presume that there was due notice. In such a case, if the clerk copy into the record a paper as being the notice filed upon the motion, the appellate court will not regard it as any part of the record. Ayres v. Lewellen, 3 Leigh 609. In a case in which judgment has been rendered on a forthcoming bond, there may be a variance from the execution in the recital of the bond, but if the defendant appeared in the court below, and did not make the execution a part of the record by bill of exceptions or other- wise, nor raise any objection there on account of the variance, an ap- pellate court will not regard it. See 1 Rob. Prac. 601. If no objection that the evidence is defective be stated on the record, an appellate court will presume that it was sufficient to warrant the judgment, on the same principle that upon an appeal from a general ver- dict, where no evidence is stated, its sufficiency to justify the verdict is presumed ; the cases being in principle the same. Winston v. Over- seers of Poor, 4 Call 357. 15. Transcript of the record of a motion by a surety against his principal. Where judgment has been rendered on behalf of a surety against his principal, upon due notice, and the proofs upon which the judgment was given are not made a part of the record in a legal manner, an ap- Writs of error and supersedeas. 371 pellate court cannot go into the enquiry whether the plaintiff was surety for the defendant, or whether the plaintiff has paid the money which he seeks to recover from the defendant. These facts, being the foundation of the motion, will be presumed by the appellate court to have been pro- perly in proof in the court below. An appellate court will so presume, though it be a case in which the defendant failed to appear in the court below, and judgment was rendered against him by default. Nor can the omission by the defendant to have the proofs made part of the record by bill of exceptions, or some other legal mode, be supplied by the clerk's copying certain papers at the foot of the record, and certifying that those papers were the evidence upon which the judgment was founded. The certificate of the clerk to that effect can have no more weight than that of any other individual. It is not competent to him to certify what use was made of the papers. That must be shewn by the record in the cause. Cunningham v. Mitchell, 4 Rand. 189. cited in 1 Rob. Prac. 606. 16. Petition to circuit court for a supersedeas. 1 Rob. Prac. 653. 656, 7. 660, 61. To the circuit superior court of law and chancery for the county of H. The petition of C. D. respectfully represents, that he is ag- grieved by a final judgment of the county court of H. rendered on the day of , in an action of , wherein A. B. was plaintiff and the said C. D. defendant. A transcript of the record of the judgment complained of is herewith presented, by which it will be perceived that the case is as follows : (here stale the case). Your petitioner assigns the following errors in the said judgment : (here set them forth). And for the said er- rors, he prays a writ of supersedeas to the judgment aforesaid. C. D. by his counsel. 17. Certificate of counsel. 1 Rob. Prac. 657. I, , an attorney practising in the circuit superior court of law and chancery for the county of , do certify that in my opinion there is sufficient matter for reversing the judg- ment complained of in the foregoing petition. 18. Order denying supersedeas. 1 Rob. Prac. 653. C. D. preferred a petition for a writ of supersedeas to a judg- ment of the county court of H. rendered on the day of , in an action of , wherein A. B. was plaintiff and the said C. D. defendant, with a certificate of counsel practising in this court, that in his opinion there is sufficient matter for re- 372 Writs of error and supersedeas, versing the judgment complained of, and also with a transcript of the record of the said judgment, annexed to the said peti- tion. Whereupon the said transcript of the record being seen and inspected, the court deems the judgment complained of plainly right, and doth therefore deny the writ of supersedeas prayed for. 19. Order awarding supersedeas. 1 Rob. Prac. 653. 658, 9. As last, to being seen and inspected, the court is of opinion that there is reasonable doubt of the justice of the judgment complained of, fit and proper to be argued and considered, and doth therefore allow the writ of supersedeas prayed for.* But before the issuing of the said writ, the said C. D. or some re- sponsible person is to enter into bond> with sufficient security, in the penalty of $ , with condition to pay the amount of the recovery, and all costs and damages which may be awarded, in case the judgment be affirmed. * The entry will stop here, where the petitioner is an executor or administrator, and obtains a supersedeas to a judgment against him in that character. 20. Record, with order allowing writ, not delivered to clerk in 15 days, but afterwards received by the court. 1 Rob. Prac. 658. A supersedeas having been allowed by the judge of this court in vacation, to a judgment of the county court of H. rendered against C. D. at the suit of A. B., and the said C. D. the party who prayed the supersedeas, not having delivered the record, with the order allowing the said writ, to the clerk of this court within fifteen days after the writ of supersedeas was allowed, this court, for good cause shewn, doth now receive the same. 21. Bond given before supersedeas is issued. 1 Rob. Prac. 658. Know all men &c. The condition of the above obligation is such, that whereas C. D. hath preferred to the circuit su- perior court of law and chancery for the county of H. (or, to the judge of the &c.) a petition for a writ of super seaeas to a judg- ment of .the county court of H. rendered on the day of , in an action of , wherein A. B. was plaintiff and the said C. D. defendant, whereby it was considered that &c. (stating the judgment) ; and the said circuit court (or, judge) hath allowed the supersedeas prayed for, upon the terms provided by law, and has fixed the penalty of the bond to be $ : Now if the said C. D. his executors or administrators, shall pro- secute the said writ with effect, or shall well and truly pay the Writs of error and supersedeas. 373 amount of the judgment aforesaid of the said county court, and all such costs and damages as shall be awarded, in case the said judgment shall be affirmed, then the above obligation is to be void, otherwise it is to remain in full force. 22. Writ of supersedeas to judgment of county or corporation court. 1 Rob. Prac. 660, 61. The commonwealth &c. We command you that from all further proceedings on a judgment of the county court of H. rendered on the day of , in an action of , between A. B. plaintiff and the said C. D. defendant, whereby it was considered that &c. (stating the judgment) you altogether supersede ; which judgment before our circuit superior court of law and chancery for the said county of H. for cause of error in the same to be corrected, on the petition of the said C. D. we have caused to come, he the said C. D. having given security to prosecute with effect, and if the judgment aforesaid shall be af- firmed, to pay the same, and all such damages and costs as shall be awarded. We also command you that you give notice to the said A, B. that he be before the judge of our said circuit supe- rior court, at &c. on the first day of the next term, then and there to have a rehearing of the whole matter in the judgment afore- said contained. And have then &c. 23. Certiorari. 1 Rob. Prac. 661, 2. The commonwealth &c. Whereas, on the petition of C. D. a supersedeas has issued out of our circuit superior court of law and chancery for the county of H. to a judgment of the court of the said county, rendered on &c. in &c. between &c. whereby &c. ; and upon the said supersedeas there will be a rehearing of the whole matter in the judgment aforesaid contained : There- fore we command you that the record and proceedings in the said action, with all things touching the same, as fully and wholly as they now exist among the records of your office, to the judge of our said circuit superior court, at &c. on the first day of the next term, under your hand and seal you do certify, and safely send enclosed to the clerk of the said circuit superior court, to- gether with this writ. Witness &c. 24. Certiwari awarded, defendant, on suggestion of diminution. On the motion of the defendant by his attorney, who alleges diminution in the record sent hither, a writ of certiorari is award- ed, to be directed to the justices of the court of the said county, 374 Writs of error and supersedeas. to certify the record more fully to this court, returnable here on thursday the tenth day of the present term. 25. Writ of certiorari issued after suggestion of diminution. 1 Rob. Prac. 661, 2. The commonwealth of Virginia to the justices of the court of H. county, greeting : Whereas, on the petition of C. D. a super- sedeas was lately issued out of &c. to a judgment of &c. ren- dered on &c. in &c. between &c. whereby &c. and in the record and proceedings in the said action, sent to our said circuit supe- rior court by reason of the said supersedeas, diminution is sug- gested : Therefore we command you and every of you, that you or one of you, under your or one of your hands and seals, the record and proceedings aforesaid more fully to the judge of our said circuit superior court, at &c. on &c. do send and certify en- closed, returning also this writ. Witness &c. 26. Petition for writ of error, where petitioner cannot give security. 1 Rob. Prac. 661. Amis v. Koger, 7 Leigh 221. Like the petition for a supersedcas in No. 16. to the end of the as- signment of errors, and then as follows : And for the said errors, he prays a writ of error to the said judgment. Your petitioner is unable to give security for the satisfaction of the said judgment, and therefore asks that the said writ of error may be granted upon condition that bond and security be given only for the costs thereof. 27. Order awarding writ of error, where petitioner cannot give security.' 1 Rob. Prac. 661. C. D. preferred a petition for a writ of error to a judgment of the county court of H. rendered on the day of , in an action of , between A. B. plaintiff and the said C. D. defendant, with a certificate of counsel that in "his opinion there is sufficient matter for reversing the judgment complained of, and also with a transcript of the record of the said judgment, annexed to the said petition. Whereupon, the said transcript of the record being seen and inspected, the court is of opinion that there is reasonable doubt of the justice of the judgment com- plained of, fit and proper to be argued and considered, and doth therefore allow the writ of error prayed for. And the said C. D. alleging that he is unable to give security for the satisfaction of the said judgment, the said writ of error is granted upon condi- tion that bond and security be given in the penalty of $ , Writs of error and supersedeas. 375 for the costs thereof. But it is not to operate as a supersedeas to the judgment, or in any manner hinder or delay the execution thereof. 28. Bond given for costs before writ of error is issued. 1 Rob. Prac. 661. Like the supersedeas bond in No. 21. (inserting " error" for "su- persedeas") to and the said circuit court hath allowed the writ of error prayed for : and the said C. D. alleging that he is una- ble to give security for the satisfaction of the said judgment, the said writ of error has been granted upon condition that bond and security be given in the penalty of $ , for the costs thereof: Now if the said C. D. his executors or administrators, shall prosecute the said writ with effect, or shall well and truly pay all such costs as may be awarded against him or them upon the said writ, then the above obligation is to be void, otherwise it is to remain in full force. 29. Writ of error. I Rob. Prac. 661. The commonwealth of Virginia to the justices of the court of H. county, greeting : Because, in the giving of judgment in a certain action of , which was in our said court before you depending, between A. B. plaintiff and C. D. defendant, ma- nifest error hath happened, to the great damage of the said C.D. as by his complaint to our circuit superior court of law and chancery for the said county of H. is alleged : We, being wil- ling that the error (if any there be) should in due manner be cor- rected, and full arid speedy justice done to the parties aforesaid in this behalf, command you that if final judgment be thereupon by you given, then to our said circuit superior court, on the first day of the next term, you, or one of you, distinctly and openly send the record and proceedings in the said action, with all things touching the same, together with this writ, that, the re- cord and proceedings aforesaid being inspected, we may further cause to be done thereupon what of right and according to law ought to be done. Witness , clerk of our said circuit superior court, at &c. 30. Order quashing supersedeas which had been improvidently allowed. Ayres v. Lewellin, 3 Leigh 609. This day came the parties by their attorneys, and the court, on inspecting the transcript of the record of the judgment afore- said, being of opinion that the writ of supersedeas awarded thereto 376 Writs of error and supersedeas. was improvidently allowed, it is ordered that the same be quashed, and that the plaintiff pay to the defendant his costs by him in this court expended. 31. Plaintiff being called and not appearing, supersedeas dismissed. The plaintiff being solemnly called and not appearing, on the motion of the defendant by his attorney, it is ordered that this superscdeas be dismissed, and that the plaintiff pay to the defen- dant his costs by him in this court expended. 32. Supersedeas revived by consent. 1 Rob. Prac. 662, 3. The plaintiff being dead, by consent of /. C. his executor and the defendant by their attorneys, it is ordered that this superse- deas stand and be revived in the name of the said executor. 33. Scire facias awarded to revive. 1 Rob. Prac. 662, 3. Green v. Watkins, 6 Wheat. 260. and rule XXXI. prefixed to same volume. The plaintiff being dead, on the motion of the defendant by his attorney, a writ of scire facias is awarded him, to revive this superscdeas in the name of J. W. the executor of the said plain- tiff, returnable here &c. 34. Writ of scire facias. 1 Rob. Prac. 662, 3. Whereas lately in our court of our said county, by the judg- ment of that court, it was considered that W. G. M. executor of L. H. deceased recover against L. H. &c. (state the judgment) ; as by the record and process thereupon, which before our circuit superior court of law and chancery for the said county, by rea- son of a writ of error (or, supersedeas) to the said judgment, upon the petition of the said L. H. were lately sent, to us appears : And whereas, after the said writ of error (or, supersedeas) was sued out, and before our said circuit superior court had given its judgment in the case, the said died, having first made his last will and testament, and thereof appointed E. F. execu- tor, who, since the death of the said , hath duly proved the said will, and taken upon himself the execution of the same (or died intestate, since whose death, administration of the per- sonal estate of the said deceased has been granted to E. F.) as we are informed : And the said having supplicated us for a proper remedy in this behalf, and we being willing that speedy justice be done to the said parties : Therefore we com- Writs of error and supersedeas. 377 mand you that you make known to the said that he be before the judge of our said circuit superior court, at the court- house, on the first day of the next term, to shew cause, if any he can, why the said writ of error (or, supersedeas) should not be revived against him, *the judgment aforesaid examined, and the er- ror, if any, corrected; and further to do and receive what our said court then and there of him in this part shall consider. And have &c. * If the scire facias is issued at the instance of the defendant in error, instead of the words in italics, say, " and the judgment aforesaid af- firmed." 35. Alias scire facias awarded. The writ of scire facias awarded at the last term, to revive this supersedeas, not being returned, on the motion of the plaintiff by his attorney, an alias writ of scire facias is awarded him, re- turnable here &c. 36. Order of publication. The alias writ of scire facias heretofore awarded against the defendant, to revive this cause in the name of A. B. the execu- tor of the plaintiff, not being executed, and it appearing to the satisfaction of the court that the said defendant is not an inha- bitant of this commonwealth ; on the motion of the said execu- tor, it is ordered that the said defendant do appear here on the first day of the next term, and shew cause, if any he can, why the said supersedeas should not stand and be revived in the name of the said executor, and proceeded in against the said defen- dant ; and that a copy of this order be forthwith inserted in some newspaper printed in the city of Richmond, for two months successively, and posted at the front door of the capitol in the said city. 37. Where one of two plaintiffs dies, abatement as to him. 1 Rob. Prac. 663. Hairston v. Woods, 9 Leigh 308. The plaintiff S. H. having died, it is ordered that this super- sedeas abate as to him, and proceed at the suit of the surviving plaintiff against the defendant. 48 378 Writs of error and supersedeas. 38. Judgment of affirmance. 1 Rob. Prac. 662, 3, 4. S. W. plaintiff } Upon a writ of supersedeas to a judg- against > ment of the court of G. county, reco- G. B. defendant. ) vered, on the 20th day of January 1794, by the defendant against the plaintiff, for $180 and costs, but to be discharged &c. This day came the parties by their attorneys,* and thereupon the transcript of the record of the judgment aforesaid being seen and inspected, it seems to the court here that there is no error in the said judgment : Therefore it is considered that the same be affirmed, and that the defendant recover against the plaintiff his costs by him about his defence in this behalf ex- pended. (If the plaintiff in error be an executor or adminis- trator, add the following words :) to be levied of the goods and chattels of the decedent, in the hands of the plaintiff to be ad- ministered. * If the defendant only appear, say This day came the defen- dant by his attorney, and the plaintiff, being solemnly called, came not. Whereupon the transcript &c. If the affirmance be by consent^ say This day came the parties by their attorneys, and by their consent, it is considered &c. 39. Affirmance after amending the transcript of the record* At the foot of the judgment of affirmance was the following: Memorandum, that on the motion of R. P. fy Co. the defen- cision in the last suit, by their attorney, and previous to a de- cision therein, the clerk of this court, by order of the court, amended the transcript of the record of the judgment of the said county court, by inserting therein, after the word " ex- pended" in the judgment, these words, "to be levied of the goods and chattels of the testator in the hands of the defendants to be administered ;" it appearing to the court that the same were omitted through misprision of the clerk of the said county court. * I recollect a case (though I have forgotten the names of the parties) where, upon an appeal from the county court of Middlesex to the district court of King and Queen, a variance was suggested between the mi- nutes and the record, and the clerk being summoned to attend the dis- trict court with his minute book, and the variance appearing, he was directed by the court to amend the record ; and this proceeding was sanctioned, upon an appeal to this court. By Lyons, J. in Gordon v. Frazier Sfc. 2 Wash. 134. Writs of error and supersedeas. 379 40. Affirmance after ascertaining variance between judgment and declaration to be a clerical misprision. This day came the parlies by their attorneys, and thereupon, as well the transcript of the record of the judgment aforesaid, as the minutes of the proceedings of the said county court, and the original papers filed in the cause, now produced in court by the clerk of the said county court, being seen and inspected, it appears from the said minute book and original papers, that the variance between the judgment aforesaid and the declaration is occasioned by a misprision of the clerk, and therefore that there is no error in the said judgment : Therefore it is considered that the same be affirmed &c. 41. Scire facias to revive against plaintiff ' s executor returned exe- cuted, and judgment ajjirmed. This day came the defendant by his attorney, and the writ of scire facias awarded at the last term against the plaintiff, to re- vive this cause, being returned executed, the said plaintiff was solemnly called, but came not. Whereupon the transcript of the record of the judgment aforesaid being seen and inspected, it seems to the court here that there is no error in the said judg- ment : Therefore it is considered that the same be affirmed, and levied of the goods and chattels of the said testator, in the hands of the plaintiff to be administered ; and also that the defendant recover against the plaintiff his costs by him in this court ex- pended, to be levied also of the goods and chattels of the said testator, in the hands of the plaintiff to be administered. 42. Acknowledgment of no error, and judgment ajjirmed. This day came the parties by their attorneys, and the plaintiff acknowledges that there is no error in the said judgment : Therefore it is considered &c. 43. After revival in appellate court, judgment reversed and verdict set aside, but action ordered to be abated. 1 Rob. Prac. 663. it seems to the court here, that there is error in the said judgment, in this, that the instruction given to the jury at the trial was erroneous: Therefore it is considered that the said judgment be reversed and annulled, and that the plaintiff reco- ver against the defendant* &c. And this court proceeding to give such judgment as the said county court ought to have given, it is further considered that the verdict of the jury be set aside. 380 Writs of error and superseded*. And the cause is sent back to the said county court, wherein an abatement is to be entered by reason of the death which has occurred, inasmuch as the action was not originally maintaina- ble by (or, against) an executor or administrator. * If the supersedeas has been revived in the name of the personal re- presentative of the plaintiff in error, say " the costs expended, as well by his decedent as by himself, in the prosecution of his writ aforesaid here." If the revival has been against the representative of the defen- dant in error, say " his costs by him expended in the prosecution of his writ aforesaid here, to be levied of the goods and chattels of the de- cedent, in the hands of the defendant to be administered." 44. Judgment for defendant reversed, because improperly given for kirn upon demurrers to replications to second and third pleas, and new judgment entered for him by appellate court, upon demurrer to rejoinder to replication to first plea. 1 Rob. Prac. 665. it seems to the court here, that there is error in the said judgment, in this, that the said county court has given judgment generally upon all the pleadings in favour of the defendant, in- stead of giving judgment for him only upon the demurrer to the rejoinder to the replication to his first plea ; which error is inju- rious to the plaintiff; for though the defendant must have final judgment in this action, because of the defect in the replication to his first plea, yet that defect is in a matter which might be remedied in a new action, whereas the second and third pleas go to the foundation of the action, and a judgment for the de- fendant upon his demurrers to the replications to those pleas would be a bar to a future action for the same cause, when, in the opinion of this court, the matter alleged by those pleas is fully avoided by the replications thereto : Therefore it is consi- dered that the judgment aforesaid be reversed and annulled, and that the plaintiff recover against the defendant his costs by him expended in the prosecution of his writ aforesaid here. And this court proceeding to give such judgment as the said county court ought to have given, it is further considered that the defen- dant's demurrers to the plaintiff's replications to his second and third pleas be overruled ; that the plaintiff's demurrer to the de- fendant's rejoinder to the replication to his first plea be also over- ruled ; and that the said plaintiff take nothing by his bill in this action, but be in mercy &c. and that the defendant go thereof without day, and recover against the plaintiff his costs by him about his defence of the said action expended. Writs of error and super scdeas. 381 45. Judgment in original action being erroneous, subsequent judgment on forthcoming bond, depending on it, likewise reversed. 1 Rob. Prac. 665. Barton v. Petit ft. 7 Cranch 288. it seems to the court here, that there is error in the judg- ment in the original action, in this, that the said county court erred in admitting in evidence, at the trial, the document men- tioned in the first bill of exceptions ; and it also seems to the court, that as the subsequent judgment on the forthcoming bond depends on the prior judgment in the action, that subsequent judgment cannot remain in force : Therefore it is considered that the judgment in the original action, and the judgment on the forthcoming bond, be each reversed and annulled ; that the said forthcoming bond, and the execution under which it was taken, be quashed ; and that the plaintiff recover against the defendant his costs by him expended in the prosecution of his writ afore- said here. And this court proceeding to give such judgment as the said county court ought to have given, it is further considered that the verdict of the jury be set aside. And the cause is re- manded to the said county court, for a new trial to be had therein, on which new trial the document aforesaid is not again to be received as evidence. 46. Judgment reversed for error to the injury of defendant, and costs recovered by him as the party prevailing. 1 Rob. Prac. 666. it seems to the court here, that there is error in the said judgment, in this, that &c. (stating the error) : Therefore it is considered that the said judgment be reversed and annulled ; but the said error being to the injury of the defendant in error, it is therefore considered that the said defendant, as the party substantially prevailing, recover against the plaintiff his costs by him about his defence in this behalf expended. And this court proceeding to give such judgment as the said county court ought to have given, it is further considered that &c. 47. Judgment reversed, because evidence was improperly excluded at the trial; and cause sent back. 1 Rob. Prac. 666, 7. it seems to the court here, that there is error in the said judgment, in this,* that the evidence stated in the first bill of exceptions to have been excluded by the said county court, ought to have been received : Therefore it is considered that the said judgment be reversed and annulled, and that the plaintiff reco- ver against the defendant his costs by him expended in the pro- secution of his writ aforesaid here. And this court proceeding 382 Writs of error and supersedeas. to give such judgment as the said county court ought to have given, it is further considered that the verdict of the jury be set aside. And the cause is remanded to the said county court, for a new trial to be had therein, on which new trial the evidence erroneously excluded as aforesaid is to be admitted, if the same shall be again offered. * If the error be in admitting improper evidence, the form in No. 45. may be adapted to the case. 48. Judgment by default reversed for defect in declaration ; and writ being defective also, Jina^udgment entered. 1 Rob. Prac. 667. it seems to the court that there is error in the said judg- ment, in this, that the declaration is radically defective, and that the writ is defective also : Therefore it is considered that the said judgment be reversed and annulled, and that the plaintiff recover against the defendant his costs by him expended in the prosecution of his writ aforesaid here. And this court proceed- ing to give such judgment as the said county court ought to have given, it is further considered that the plaintiff in the action take nothing, but for his false clamour be in mercy &c. and that the defendant in the action go thereof without day, and recover against the said plaintiff his costs by him about his defence of the said action expended. 49. Judgment by default reversed for defect in declaration ; and writ being correct, jjrocecdi7igs subsequent to writ set aside, and cause remanded. 1 Rob. Prac. 667. Shelton's ex'ors v. Welsh's adm'rs, 7 Leigh 175. it seems to the court that there is error in the said judg- ment, in this, that the declaration is radically defective : There- fore it is considered &c. (as last). And this court proceeding &c. (as last), it is further considered that all the proceedings subsequent to the writ be set aside. And the cause is remanded to the said county court, to be by that court sent to the rules, and proceeded in from the writ. 50. Judgment for plaintiff, where defendant had demurred, reversed for defect in declaration, and Jinal judgment entered. 1 Rob. Prac. 667. it seems to the court that there is error in the said judg- ment, in this, that the matters contained in the declaration are not sufficient in law to have and maintain the action, and that Writs of error and supersedeas. 383 the demurrer to the said declaration ought to have been sus- tained : Therefore it is considered &c. (as before). And this court proceeding &c. (as before), it is further considered that the demurrer to the declaration be sustained, and that the plaintiff in the action take nothing, but for his false clamour be in mercy &c. and that the defendant in the action go thereof without day, and recover against the said plaintiff his costs by him about his defence of the said action expended. 51. Judgment for defendant on demurrer to declaration reversed; and there being no issue in fact, and the action tying for damages, came remanded to have the damages assessed. 1 Rob. Prac. 667. it seems to the court that there is error in the said judg- ment, in this, that the matters contained in the declaration are sufficient in law to have and maintain the action, and that the demurrer to the said declaration ought to have been overruled : Therefore it is considered &c. (as before). And this court pro- ceeding &c. (as before), it is further considered that the demurrer to the declaration be overruled, and that the plaintiff in the ac- tion recover against the defendant in the action such damages as the said plaintiff has sustained by occasion of the matters in the declaration mentioned, which damages are to be enquired of by a jury. And the cause is remanded to the said county court, for further proceedings to be had therein. 52. Judgment for defendant on demurrer to one plea reversed, and cause remanded for trial of issue in fact joined upon another plea. 1 Rob. Prac. 668. it seems to the court here, that there is error in the said judgment, in this, that the matters contained in the second plea are not sufficient in law to bar or preclude the plaintiff from having or maintaining his action, and that the demurrer to the said second plea ought to have been sustained : Therefore it is considered &c. (as before). And this court proceeding &c. (as before), it is further considered that the demurrer to the said se- cond plea be sustained, and that a trial be had of the issue in fact joined upon the first plea. And the cause is remanded to the said county court, for further proceedings to be had therein. 53. Judgment for plaintiff, on special demurrer to his replication, re- versed ; but defect being only in form, cause remanded, with leave to amend. 1 Rob. Prac. 667, 8. it seems to the court here, that there is error in the said judgment, in this, that the matters contained in the replication, 384 Writs of error and supersedeas. in the form in which they are pleaded, are not sufficient in law to have and maintain the action : Therefore it is considered &c. (as before). And this court, proceeding &c. (as before), is of opinion that the demurrer to the replication ought to be sustain- ed, and the costs occasioned by the filing the said insufficient replication ought to be paid by the party filing the same ; but inasmuch as the said replication is defective only in form, the court is further of opinion that the plaintiff in the action ought to be allowed to amend the same, on his paying such costs as aforesaid, without having judgment entered against him upon the demurrer. And the cause is remanded to the said county court, with directions to allow such amendment, on the terms aforesaid, if a motion be made for that purpose ; and if no such motion be made, then to enter final judgment for the defendant in the action, upon the said demurrer. 54. Judgment reversed because there were two issues, and verdict re- sponded only to one; and cause remanded for new trial on both. I Rob. Prac. 668. it seems to the court here, that there is error in the said judgment, in this, that there were two issues joined between the parties, and the verdict is only responsive to one : Therefore &c. (as before). And this court proceeding &c. (as before), it is further considered that the verdict be altogether set aside, and a new trial had in the cause upon both issues. And the cause is v remanded to the said county court, for such new trial to be had therein. 55. Judgment being reversed a?id new trial ordered, such new trial not confined to the issues joined, but further matter allowed to be pleaded. 1 Rob. Prac. 668. it seems to the court here, that there is error in the said judgment in this, that &c. (state the error) : Therefore &c. (as before). And this court proceeding &c. (as before), it is further considered that the verdict be altogether set aside, that a new trial be had in the cause, and that the defendant have leave to plead the matter which arose after his original plea, and was relied upon by him at the former trial, in the nature of a plea puis darrein continuance. And the cause is remanded to the said county court, for further proceedings to be had therein. Writs of error and superscdeas. 385 56. Judgment on motion reversed on the merits, and final judgment entered. 1 Rob. Prac. 590, 91. it seems to the court here, that the said judgment is er- roneous, because the motion is not supported by the evidence : Therefore &c. (as before). And this court proceeding &c. (as before), it is further considered that the plaintiff in the said mo- tion take nothing thereby, and that the defendant in the motion go thereof without clay, and recover against the plaintiff his costs by him about his defence in the said county court ex- pended. 57. Order overruling motion on forthcoming bond because of supposed defect, reversed, and case remanded to county court. 1 Rob. Prac. 601, 2. it seems to the court here, that there is no such defect in the said forthcoming bond as the said county court supposed, and that the order of the said county court overruling the mo- tion for an award of execution on the said bond, because of such supposed defect, is erroneous : Therefore it is considered that the said order be reversed and annulled, and that the plaintiff recover against the defendant his costs by him expended in the prosecution of his writ aforesaid here. And this court proceed- ing to give such judgment as the said county court ought to have given, it is further considered that the motion to quash the said bond, because of the supposed defect aforesaid, be over- ruled. But inasmuch as the defendant in the motion may have other objections, which were not brought forward, in conse- quence of the opinion of the county court being in his favour on the point first made, this court doth not now proceed to give final judgment for award of execution, but doth order that the cause be remanded to the said county court, where the defen- dant in the motion is to be allowed to oppose a judgment by proof of payments, or by any other legal objections not involved in the opinion already given. 58. Order overruling motion on forthcoming bond reversed, and final judgment entered. it seems to the court here, that the order of the said county court, overruling the motion for an award of execution on the said bond, is erroneous: Therefore it is considered &c. (as last). And this court proceeding &c. (as last), it is further con- sidered that the plaintiff recover against the defendants $420. 50 cents, the penalty of the said bond, and his costs by him in 49 386 Writs of error and supersedeas. the said county court expended. mercy &c. But this judg- ment is to be discharged by the payment of $ , with in- terest &c. 59. Affirmance of judgment in ejectment. S. M. plaintiff' ) Upon a writ of supersedeas to a against >judgment of the court of hustings John Doe defendant. ) for the city of Richmond rendered on the day of , whereby it was considered that the defendant recover against the plaintiff his term yet to come, of and in one certain tenement or parcel of land, lying &c. of the demise of G. F. together with one penny damages, and his costs. This day came the parties by their attorneys, who being heard, and the transcript of the record of the judgment afore- said being seen and inspected, it seems to the court here, that there is no error in the said judgment: Therefore it is consi- dered that the same be affirmed, and that the defendant recover against the plaintiff his costs by him about his defence in this court expended.* Whereupon the defendant prays a writ, to the sheriff of this county to be directed, to cause him to have his possession of his term aforesaid yet to come &c. And to him it is granted, returnable &c. * If, pending the writ of supersedeas, the term of the demise has ex- pired, an entry may be made, according to Hunter v. Fairfax's devisee, 1 Munf. 238. as follows : And it appearing that the term of the demise mentioned in the declaration has expired, on the motion of the , the court doth allow him to amend his said declaration and enlarge his term, by striking out the word " ten" and inserting the words " twenty three ;" and the declaration being thus amended and the term thus enlarged, the prays a writ, to the sheriff of this county to be directed, to cause him to have his possession of his term aforesaid yet to come &c. And to him it is granted, returnable &c. 60. Judgment for plaintiff" on complaint for unlawful detainer re- versed by circuit court, and writ of restitution awarded, to restore possession. 1 Rob. Prac. 499. C. D. plaintiff ^ Upon a writ of supersedeas to a against > judgment of the court of A. B. defendant. ) county, rendered on the day Writs of error and supersedcas. 387 of , whereby it was considered that the defendant reco- ver against the plaintiff possession of a certain tenement con- taining &c. lying &c. it seems to the court here, that the said county court erred in excluding from the jury the evidence mentioned in the said bill of exceptions : Therefore it is considered that the judg- ment aforesaid be reversed and annulled, and that the plaintiff recover against the defendant his costs by him expended in the prosecution of his writ aforesaid here, and be restored to the possession which he has lost by occasion of the said judgment, for which purpose a writ of restitution is awarded him. And this court proceeding &c. (as in No. 47). 61 . Supersedeas heard, and time taken to consider. This cause was this day heard upon the transcript of the re- cord of the judgment aforesaid, and the arguments of counsel ; but because the court is not yet advised of its judgment to be given in the premises, time is taken to consider thereof. 62. Supersedeas partly heard. This cause was this day partly heard upon &c. (as last, to) counsel, and is continued till to-morrow for a further hearing thereof. 63. Supersedeas fully heard, and time taken to consider. This cause was this day fully heard upon &c. (as in No. 61). 64. Supersedeas fully considered, and judgment. This day came the parties by their attorneys, and the court, having maturely considered the transcript of the record of the judgment aforesaid, and the arguments in this cause, is of opi- nion that &c. 65. Fi. fa. on a judgment of circuit court affirming a judgment of county court. 1 Rob. Prac. 673. We command you that of the goods and chattels of C. D. late in your bailiwick, you cause to be made the sum of ,* with interest thereon to be computed after the rate of six per centum per annum from the day of till payment, and $ , which A. B. lately in our court of H. county, hath recovered against the said C. D. as well for a certain debt and 388 Writs of error and supersedeas. the interest thereon, as for his costs by him about his suit in that behalf expended, as by an inspection of the transcript of the record of the said judgment, which before our circuit superior court of law and chancery for the said county, by reason of our writ of supersedeas to the said judgment, was lately sent, ap- peareth, and which judgment, in our said circuit superior court, is in all things affirmed ; also $- , which to the said A. B. in our said circuit superior court were adjudged for his costs by him expended in defending the said writ of supersedeas ; whereof the said C. D. is convict, as appears of record. * If the judgment of the county court be merely for costs, say the sum of , which A. B. lately in our court of H. county, recovered against the said C. I), for his costs by him expended in defending a cer- tain action of at the suit of the said C. D. as by an inspection &c. And so, in every case, the recovery will be stated according to the na- ture of the action and the judgment. If the judgment was against ttco, and the supersedeas has abated as to one by his death, say the sum of &c. which A. B. lately in &,c. hath recovered against the said C, D. and one E. F. as well &.c. as by an inspection &c. by reason of our writ of supersedeas to the said judg- ment, was lately sent, appeareth, upon which writ of supersedeas an abatement was entered as to the said E. F. by his death, and the judg- ment aforesaid as to the said C. D. is in all things affirmed; also &c. If the judgment was against one, who died after obtaining the super- sedeas, and the judgment of affirmance is against his executor, say that of the goods and chattels of C. D. deceased, late in your bailiwick, in the hands of E. F. executor of his last will and testament, you cause to be made the sum of &c. which A. B. lately in &,c. recovered against the said C, D. deceased, in his lifetime, as well &c. as by an inspection &c. by reason of our writ of supersedeas to the' said judgment, was lately sent, appeareth, which writ of supersedeas was revived in the name of the said E. F. executor as aforesaid, and thereupon it was considered by our said circuit superior court, that the said judgment be affirmed, and levied df the goods and chattels of the said C. D. deceased in the hands of the said E. F. to be administered ; also &c. If the judgment icas recovered by one who died after the supersedeas was obtained, and the judgment of affirmance is in favour of his execu- tor, say the sum of &c. which A. B. in his lifetime, in &c. recovered against the said C. D. as well &c. as by an inspection &,c. by reason of our writ of supersedeas to the said judgment, was lately sent, appeareth, which writ of supersedeas was revived against E. F. executor of the last will and testament of the said A. B. and the judgment aforesaid was afterwards, in our said circuit superior court, in all things affirmed. Writs of error and supersedeas. 3S9 66. Fi. fa. oil a judgment of circuit superior court reversing judg- ment of county court. 1 Rob. Prac. 673. the sum of , -which to A. B. lately in our circuit superior court of law and chancery for the county of H. were adjudged for his costs by him expended in suing forth and pro- secuting our writ of supersedeas to a judgment of the court of hustings for the city of R. recovered against him by C. D. and which judgment in our said circuit superior court is reversed ; also $ ,* with interest &c. which the said A. B. in our said circuit superior court, recovered against the said C. D. as well for his damages which he sustained by reason of the said C. DSs not performing a certain promise and assumption, to the said A. B. by the said C. D. made, and interest thereupon, as for his costs by him about his suit in the said court of hustings expended ; whereof &c. * If, in proceeding to give such judgment as the court below ought to have given, the circuit court merely gives judgment for costs in the court below, say " also $ , which the said A. B. in our said circuit superior court, recovered against the said C. D. for his costs by him expended in defending a certain action of at the suit of the said A. B." If the judgment of the circuit court be merely for the costs upon the supersedeas, then, of course, all will be omitted from the word also, to whereof. 67. Distringas and fi. fa. on a judgment of circuit court affirming a judgment of county court in detinue. 1 Rob. Prac. 673. As in p. 238. No. 98. to or of such of them as may not be had, as by an inspection of the transcript of the record of the said judgment, which before our circuit superior court of law and chancery for the said county, by reason of our writ of su- persedeas to the said judgment, was lately sent, appeareth, and which said judgment, in our said circuit superior court, is in all things affirmed. We also command you that of the goods and chattels &c. (as in p. 239. No. 99. to) which to the said A. B. in the said county court were adjudged, as well for his da- mages which he sustained by occasion of the detention of the said slaves, as for his costs by him about his suit in that behalf expended; and also $ , which to the said A. B. in our said circuit superior court were adjudged for his costs by him expended in defending the said writ of supersedeas; whereof the said C. D. (or, the said C. D. executor as aforesaid or, ad- ministrator as aforesaid) is convict, as appears of record. And in what manner you shall have executed this our command, 390 Writs of error and supersedeas. make known &c. And have then there this writ, and also the said money, to render to the said A. B. for the damages and costs aforesaid. 68. Writ of restitution after reversal of judgment on complaint of unlawful detainer, under which possession had been obtained. 1 Rob. Prac. 499. The commonwealth of Virginia to the sheriff of the county of , greeting: Whereas, at the courthouse of the said county, on &c. (as in p. 196. to) whereupon such proceedings were had in our said court, that by the judgment of our said court the said E. F. recovered against the said G. H. possession of the tenement aforesaid, and his costs by him in that behalf expended, and a writ of ftabcre facias possessionem was awarded, to cause the said E. F. to have such possession, and by virtue of the said writ he obtained such possession : And whereas af- terwards a writ of supersedeas was allowed to the said judgment, and such proceedings were had upon the said writ of supersedeas in our circuit superior court of law and chancery for the said county, that by our said circuit superior court it was considered that the judgment aforesaid should be reversed and annulled, and that the said G. H. should be restored to the possession which he had lost by reason of the said judgment, for which purpose a writ of restitution was awarded him, as appears of record : Therefore we command you that, without delay, you cause the said G. H. to be restored to the possession of the te- nement aforesaid. And in what manner you shall execute this writ, make known &c. And have then there this writ. 69. -Scire facias where execution has not issued within a year after the affirmance, by circuit court, of judgment of county court. Whereas G. M. at a court held for the said county of H. at the courthouse &c. (as in p. 245. No. 1. to) costs by him about his suit in that behalf expended ; to which judgment a writ of superse- deas was allowed ; and at a circuit superior court of law and chancery held for the said county on the day of , it seemed to our said circuit superior court that there was no error in the said judgment, and it was therefore considered by our said circuit superior court that the same be affirmed, and that the said G. M. recover against the said R. W. and A. B. $ for his costs by him about his defence of the said writ of supersedeas expended ; whereof the said R. W. and A. B. are convicted, as by the record thereof in our said circuit superior court manifestly appears. And now, on behalf of the Writs of error and superseded*. 391 said G. M. it is said, that although the judgment of the said county court be affirmed as aforesaid, yet execution of the debt, interest and costs aforesaid still remains to be made. But more than a year has passed since the judgment of affirmance by our said circuit superior court. Therefore &c. (as in p. 245. No. 1. to) according to the judgments aforesaid. And have then there this writ. Witness &c. 70. Scire facias against heirs and terretenants, to have execution of the lands upon a judgment of circuit court affirming judgment of court belmv, rendered on a scire facias. Whereas T. G. in his lifetime, at a court of hustings held for the city of R. the day of , by &c. (as in p. 245. No. 1. to) costs by him about his suit in that behalf expended. And whereas, at a court of hustings held for the said city the day of , by the judgment of the same court it was considered that M. W. H. executor of the last will and testa- ment of the said T. G. deceased, might have execution against the said for the debt, interest and costs aforesaid, and also for $5.26 cents for his costs by him expended in suing forth and prosecuting against the said our writ of scire fa- cias ; to which judgment a writ of supersedcas was allowed ; and at a circuit superior court &c. (as last, to) be affirmed, and that the said M. W. H. executor as aforesaid, recover against the said his costs by him about his defence of the said writ of supersedeas expended ; whereof the said was convicted, as by the record thereof in our said circuit superior court mani- festly appears. And after the giving of the said last mentioned judgment, the said died, leaving his heirs, as we have been informed ; and we are further informed that the said was, at the day the first judgment of our said court of hustings was rendered, and afterwards, seized &c. (as in p. 248. No. 7. to) at the day of obtaining the said first judgment of our said court of hustings, or at any time afterwards, &c. (as in p. 248. No. 7. to) according to the effect of the several judgments aforesaid. And have &c. 71. Award of execution upon scire facias against heirs and terre- tcnants, to have execution of the lands upon a judgment of circuit court affirming judgment of court below. This day came the parties by their attorneys, and by their consent it is considered by the court that the plaintiff may have execution against the defendants, for $ , with interest thereon &c. the debt and interest, and $ 5.36 cents, $ 5.26 cents, 392 Writs of error and super sedcas. and $5.86 cents, the costs, in the writ aforesaid specified, and also that the plaintiff recover against the defendants his costs by him expended in suing forth and prosecuting this writ ; to be levied of the lands and tenements whereof the said was seized at the day of obtaining the judgment in the said writ first mentioned, or at any time afterwards. 72. Fi. fa. after award of execution upon scire facias renewing judgment of affirmance. As in No. 65. to the end, and then say and also $ 20, which to the said A. B. lately in our said circuit superior court were adjudged &c. (as in p. 270. No. 62.) and whereupon it is consi- dered by our said circuit superior court that the said A. B. have execution against the said C. D. of the debt, interest and costs aforesaid, as appears also of record. 73. Fi. fa. after award of execution against executor, upon scire facias reviving judgment affirmed against decedent. that of the goods and chattels of C. D. deceased, late in your bailiwick, in the hands of E. F. executor of his last will and testament, you cause to be made the sum of &c. (as in No. 65. inserting after C. D. the words " in his lifetime," and con- tinuing to) whereof the said C. D. was convict, as appears of record ; and also $ , which to the said A. B. lately in our said circuit superior court, were adjudged for his costs by him expended in suing forth and prosecuting against the said E. F. executor as aforesaid, our writ of scire facias ; and where- upon it is considered by our said circuit superior court that the said A. B. have execution against the said E. F. executor as aforesaid, of the debt, interest and costs aforesaid, to be levied of the goods and chattels of the said C. D. deceased, in the hands of the said E. F. to be administered ; as appears also of record. 74. Fi. fa. after award of execution in favour of executor, upon scire facias reviving judgment affirmed in decedent's lifetime. As in No. 65. using, instead of " which A. B. lately in &c. hath re- covered," the words " which A. B. in his lifetime in &c. recovered," and adding in a subsequent place, after A. B., the words " in his life- time." After the words " as appears of record," proceed as follows : " also $ , which to E. F. executor of the last will and testament of the said A. B. deceased, lately in our said circuit superior court were adjudged for his costs by him expended in suing forth and prose- cuting against the said C. D. our writ of scire facias ; and whereupon Writs of error and supersedeas. 393 it is considered by our said circuit superior court that the said E. F. executor as aforesaid, have execution against the said C. D. of the debt, interest and costs aforesaid, as appears also of record." 75. Transcript of the record of a judgment in circuit court, in a suit removed thither by certiorari. 1 Rob. Prac. 190. 654. Pleas &c. (according to the usual form). Be it remembered that heretofore, to wit, at a circuit superior court of law and chancery held for the said county of H. on the day of , came &c. (copying the order awarding the certiorari).' The following is the notice of which a copy was given in writing to the said C. D. (Here copy it. If the order states that notice was acknowledged, or that the opposite party ap- peared, the notice need not be copied in the record). Pursuant to the order of the said circuit superior court, a writ of~certiorari was issued on the day of , which, with the return thereon, is in these words : " The common- wealth" &c. The record and proceedings referred to in the said return are in these words : (here insert the record). At a circuit superior court of law and chancery held for the said county of H. on the day of , the writ of cer- t'l'jrari awarded &c. (copying the order to docket cause upon re- turn of certiorari). And at &c. (copying the subsequent proceedings in the circuit court). .76. Transcript of the, record of a judgment in circuit court, given on a supersedeas. Pleas &c. Be it remembered that heretofore, to wit, at a circuit superior court of law and chancery held for the said county of H. on the day of , C. D. preferred &c. (copying the order as in No. 18. to the words) annexed to the said petition. The said petition, certificate of counsel, and transcript of the record are in the words following, to wit : (here copy them). Whereupon the said transcript of the record being seen and inspected, the court &c. (copying the residue of the order, as in No. 19.) On the ' day of , the following bond was entered into : (here copy it). And thereupon, pursuant to the said order of the said circuit superior court, a writ of supersedeas was issued on the said 50 394 Writs of error and supersedeas. day of , which writ has not been returned (or, which writ, with the return thereon, is in these words : " The common- wealth" &c.) And now at this day, to wit, at a circuit superior court oflaw and chancery held for the said county of H. on the same day and year first herein mentioned, to wit, on the day of , (copy the judgment). 77. Writ of supersedeas to judgment of circuit court. 1 Rob. Prac. 670, 71. Like the writ of supersedeas to a judgment of a county or corpora- tion court (the form of which is in No. 22.) omitting the words " he the said C. D, having given security to prosecute with effect, and if the judgment aforesaid shall be affirmed, to pay the same, and all such da- mages and costs as shall be awarded." (Endorse) This writ of supersedeas is not to be effectual until the withinnamed C. D. or some responsible person, shall enter into bond with sufficient security, in the clerk's office of the cir- cuit superior court of law and chancery for the county of , in the penalty of $ , conditioned as the law directs, and a certificate of the due execution thereof shall be endorsed here- on by the clerk of the said court. 78. Bond given when supersedeas is obtained to judgment of circuit court. I Rob. Prac. 670, 71. Know all men &c. The condition of the above obligation is such, that whereas the clerk of the court of appeals has issued a writ of supersedeas in the name of the commonwealth, to the sheriff of county directed, commanding the said sheriff that from all further proceedings on a judgment of the circuit superior court of law and chancery for the county of H. ren- dered on the day of , in &c. between &c. whereby &c. (following the words of the supersedeas) he should altogether supersede, but on the said writ the said clerk of the court of ap- peals has endorsed that it is not to be effectual until &c. (follow- ing the language of the endorsement) : Now if the said C. D. his executors or administrators, shall prosecute the, said writ with effect, or shall well and truly pay the amount of the judg- ment aforesaid of the said circuit superior court, and all such costs and damages as shall be awarded, in case the said judg- ment shall be affirmed, then the above obligation is to be void, otherwise it is to remain in full force. Writs of error and supersedeas. 395 79. Reversal of judgment of circuit court, which reversed judgment of county court on complaint of unlawful detainer; and writ of re- restitution awarded. 1 Rob. Prac. 499. it seems to the court that the said circuit superior court erred in reversing the judgment of the said county court : Therefore it is considered that the judgment aforesaid of the said circuit superior court be reversed and annulled, and that the plaintiff recover against the defendant his costs by him ex- pended in the prosecution of his writ aforesaid here ; and if the defendant has, under the judgment of the said circuit superior court, and the writ of restitution thereby awarded, obtained possession of the said tenement, that the plaintiff be restored to the possession which he has lost by occasion of the said judg- ment of the circuit superior court, for which purpose a writ of rerestitution is in such case to be awarded by that court. And this court proceeding to give such judgment as the said circuit superior court ought to have given, it is further considered that the judgment of the said county court be affirmed, and that the plaintiff' recover against the defendant his costs by him about his defence in the said circuit superior court expended. Which is ordered to be certified to the said circuit superior court. 80. After circuit court has reversed two judgments of county court, both judgments of circuit court reversed, and first judgment of county court affirmed. 1 Rob. Prac. 671. it seems to the court that the said circuit superior court erred in its reversal of the first judgment of the county court : Therefore it is considered that both the judgments of the said circuit superior court, and all the proceedings in the county court subsequent to the first judgment of the circuit court, be reversed and set aside, and that the plaintiff recover against the defendant his costs by him expended in the prosecution of his writ aforesaid here, and also the costs by him expended, both in the county court and circuit court, subsequent to the first judgment of the said circuit court. And this court proceeding to give such judgment as the said circuit court ought to have given on the writ of supersedeas to the first judgment of the county court, it is further considered that the said first judgment of the county court be affirmed, and that the plaintiff here, who was defendant in the said writ of supersedeas to the first judg- ment of the county court, recover against the defendant here his costs by him about his defence of that writ expended. Which is ordered to be certified to the said circuit superior court. 396 Writs of error and supersedeas. 81. Decision of appellate court received by clerk of court below during the session of the court, and judgment entered pursuant thereto. 1 Rob. Prac. 672, 3. A copy of the decision of the court of appeals in this cause, certified by the clerk of that court, was this day produced to the court, and is in these words : (here insert it). In pursuance whereof, it is considered that the judgment afore- said of this court be affirmed, and that the plaintiff (or, the said A. B.) recover against the defendant (or, the said C. D.) his costs by him about his defence in the court of appeals expended. Or, if the judgment be reversed In pursuance whereof, it is considered that &c. (following, as near as may be, the decision of the appellate court). 82. Decision of court of appeals received by clerk of circuit court in vacation, and entry thereof. 1 Rob. Prac. 672, 3. In the office of the circuit superior court of law and chancery for the county of -, the clay of . A copy of the decision of the court of appeals in this cause, certified by the clerk of that court, was this day received by the clerk of the said circuit superior court, in the vacation of the court; and the same being now entered of record, according to the statute, at the end of the proceedings of the preceding term, is in the words follow-ing to wit : (here insert it). 83. After affirmance of judgment in detinue, proceedings to ascertain the value of the hires of the slave recovered, which have accrued since the verdict and judgment given therefor. 1 Rob. Prac. 673, 4. The plaintiff gives the court to understand that he now seeks a recovery from the defendant of the value of the hires of the slave recovered in this action, which have accrued from the date of the verdict upon which the judgment of this court was rendered ; and it appears that the defendant has had four weeks notice of the motion now made by the said plaintiff for a writ of enquiry. Whereupon it is ordered that the value of the said hires be ascertained by a jury. And thereupon came a jury, to wit, A. B. &c. who being sworn diligently to enquire and as- certain the value of the said hires, upon their oath do say that they ascertain the value of the same to be $ . There- fore it is considered by the court that the plaintiff recover against the defendant the said sum of $ , and the costs of exe- cuting this writ of enquiry, including an attorney's fee. Writs of error and super sedeas. 397 84. After judgment on complaint for unlawful entry or detainer is reversed, and case remanded, new jury impannelled. 1 Rob. Prac. 500. This clay came the parties by their attorneys, and thereupon a jury of freeholders was impannelled for the new trial required in this cause, in the manner in which other juries are impan- nelled in this court, and charged on oath in the manner prescri- bed by the statute ; and the court admitted before them &c. (as in p. 196. No. 5). 85. Fi. fa. after affirmance by court of a.ppcals of judgment of circuit court. 1 Rob. Prac. 673. As in No. 65. to which A. B. lately in our circuit superior court of law and chancery for the county of H. hath recovered against the said C. D. as well for a certain debt and the interest thereon, as for his costs by him about his suit in that behalf ex- pended ; also $ : , which to the said A. B. in the same court, in pursuance of the judgment of affirmance of our court of ap- peals, given upon a writ of supersedeas to the judgment aforesaid of our said circuit superior court, were adjudged for his costs by him expended in defending the said writ of supersedeas; whereof the said C. D. is convict, as appears of record j and that &c. If the judgment of the circuit court be merely for costs, say the sum of $ , which A. B. lately in our circuit superior court of law and chancery for the county of H. recovered against the said C. D. for his costs by him expended in defending a certain action of at the suit of the said C. D. ; also &c. And so in every case the recovery will be stated according to the nature of the action and the judgment. If the judgment teas against two, and the supersedeas abated as to one by his death, say the sum of &c. which A. B. lately in &c. hath re- covered against the said C. D. and one E. F. as well &c. ; also $ , which to the said A. B. in the same court, in pursuance of the judg- ment of affirmance of our court of appeals, given upon a writ of super- sedeas to the judgment aforesaid of our said circuit superior court (which writ of supersedeas was abated as to the said E. F. by his death) were adjudged for the costs by the said A. B. expended in defending the said writ of supersedeas. If the judgment was against one, who died after obtaining the super- sedeas, and the judgment of affirmance is against his executor, say that of the goods and chattels of C. D. deceased, late in your bailiwick, in the hands of E. F. executor of his last will and testament, you cause to be made the sum of &c. which A. B. lately in &c. recovered against the said C. D. deceased, in his lifetime, as well &c. to which judgment 398 Writs of error and supersedeas. a writ of supersedeas was allowed, and the said C. D. dying pending that writ, the same was revived in the name of the said E. F. executor as aforesaid, and afterwards it was considered by our court of appeals that the judgment aforesaid be affirmed, and levied of the goods and chattels of the said C. D. deceased in the hands of the said E. F. to be administered ; also $ , which to the said A. B. in pursuance of the said judgment of affirmance of our court of appeals, were adjudged for his costs by him expended in defending the said writ of supersedeas. If the judgment was by one, loho died after the supersedeas was ob- tained, and the judgment of affirmance is in favour of his executor, say the sum of &c. which A. B. in his lifetime, in &.c. recovered against the said C. D. as well &,c. to which judgment a writ of supersedeas was allowed, and the said A, B. dying pending that writ, the same was re- vived against the said E. F. executor as aforesaid, and afterwards it was considered by our court of appeals that the judgment aforesaid be af- firmed ; also $ , which to the said E. F. executor as aforesaid, in pursuance of the said judgment of affirmance of our court of ap- peals, were adjudged for the costs expended in defending the said writ of supersedeas. If the judgment was against two or more, and the supersedeas only by one, say that of the goods and chattels of C. D. and E. F. late &,c. which A. B. lately in &c. hath recovered against the said C. D, and E. F. as well &,c. as by &.c. which before &c. by reason of a writ of supersedeas to the said judgment, allowed on the petition of the said E. F. was lately sent, appeareth, and which &LC. ; also of the goods and chattels of the said E. F. in your bailiwick, you cause to be made $ , which to &c. ; whereof the said C. D. and E. F. are convict, as appears of record, 86. Ft. fa. after affirmance, by court of appeals, of judgment of cir- cuit court which affirmed judgment of county court. As in No. 65. to expended in defending the said writ of super- sedeas ; also $ , which to the said A. B. in our said circuit superior court, in pursuance &c. (as in No. 85. to) the said writ of supersedeas last mentioned ; whereof the said C. D. is con- vict &c. S7. Fi. fa. for costs, after affirmance, by court of appeals, of judg- ment of circuit court which reversed order of county court. that of the goods and chattels of C. D. late in your bailiwick, you cause to be made the sum of $ , which A. B. lately in our circuit superior court of law and chancery for the county of H. recovered against the sara. C. D. as well for his costs by him expended in suing forth and prosecuting our writ of supersedeas to a certain order made by the court of the said county, on the motion of the said A. B. which order, in our said circuit superior court, is reversed, as for his costs by Writs of error and superseded*. 399 him about his defence of the said motion in the said county court expended ; also $ , which to the said A. B. in pur- suance of the judgment of our court of appeals, affirming the judgment of our said circuit superior court, to which a writ of supersedeas was allowed on the petition of the said C. D., were adjudged for the costs by the said A. B. expended in defending the said writ of supersedeas ; whereof &c. 88. Fi. fa. for costs incurred in court of appeals, q/ter reversal by that court of judgment of circuit court. that of the goods and chattels of C. D. late in your bai- liwick, you cause to be made the sum of $ , which A. B. lately in our circuit superior court of law and chancery for the county of H. in pursuance of the judgment of our court of ap- peals, given on a writ of supersedeas allowed on the petition of the said A. B. to a judgment of our circuit superior court, and which judgment is, in our court of appeals, reversed, were ad- judged for the costs by the said A. B. expended in suing forth and prosecuting the said writ of supersedeas. 89. Fi. fa. after judgment of court of appeals, reversing judgment of circuit court which reversed judgment of county court, and af- firming the judgment of county court. As in No. 65. to was lately sent, appeareth, upon which writ of supersedeas it was considered by our circuit superior court of law and chancery for the said county, that the said judgment be reversed and annulled ; whereupon a writ of supersedeas was allowed to the judgment of our said circuit superior court, and by our court of appeals it was considered that the judgment of the said circuit superior court be reversed, and the judgment of the said county court affirmed ; also $ , which to the said A. B. in our said circuit superior court, in pursuance of the judg- ment of the court of appeals, were adjudged for his costs by him expended in defending the said writ of supersedeas to the judgment of the county court, and in prosecuting the said writ of supersedeas to the judgment of the circuit superior court ; whereof the said C. D. is convict &c. 90. Writ of rerestitution after reversal of judgment of circuit court, which reversecrjudgment of county court on complaint of unlawful detainer. I Rob. Prac. 499. As in No. 68. to for which purpose a writ of restitution was awarded him ; and whereas afterwards a writ of supersedeas was 400 Writs of error and supersedeas. allowed to the judgment of our said circuit superior court, and such proceedings were had upon the said last mentioned writ of supersedeas in our court of appeals, that by our said court of ap- peals it was considered that the judgment aforesaid of the said circuit superior court should be reversed and annulled, and if ihe said G. H. had, under the judgment of the said circuit su- perior court, and the writ of restitution thereby awarded, ob- tained possession of the said tenement, that the said E. F. should be restored to the possession which he had lost by occa- sion of the said judgment of the circuit superior court, for which purpose a writ of rerestitution was in such case to be awarded by that court ; as appears by a copy of the decision of the court of appeals, certified by the clerk thereof, and trans- mitted to the clerk of our said circuit superior court : Therefore we command you, in case the said G. H. has, under the judg- ment of the said circuit superior court, and the writ of restitu- tion thereby awarded, obtained possession of the said tenement, that without delay you cause the said E. F. to be restored to the possession thereof. And in what manner you shall execute this writ, make known &c. 91. Scirc facias upon death of plaintiff or defendant, to have execu- tion for or against executor or administrator, upon a judgment of circuit court which has been affirmed by the court of appeals. As in p. 245. No. 1. to costs by him about his suit in that be- half expended ; to which judgment a writ of supersedeas was al- lowed on the petition of the said , and at a court of ap- peals held at the capitol in the city of R. on the day of , it seemed to our said court of appeals that there was no error in the said judgment, and by the said court it was consi- dered that the same be affirmed, and that the said should recover against the said his costs by him about his de- fence in the said court of appeals expended, which costs amount to $ ; and at a circuit superior court of law and chan- cery held for the said county of H. on the day of , a copy of the decision of the court of appeals, certified by the clerk of that court, was produced to the said circuit superior court, and in pursuance thereof it was considered by the said circuit superior court that its judgment aforesaid be affirmed, and that the said recover against the said his costs by him about his defence in the said court of appeals expended ; (or and in the office of the said circuit superior court of law and chancery for the county of H. the day of , a copy of the said decision of the court of appeals, certified by the clerk of that court, was received by the clerk of the said Writs of error and supersedeas. 401 circuit superior court, in the vacation of the court, and the same was duly entered of record, according to the statute, at the end of the proceedings of the preceding term) ; whereof the said was convicted, as by the record thereof manifestly ap- pears. And whereas afterwards the said died, having &c. (as in p. 245. ]No. 2. or p. 246. No. 3.) And now on behalf &c. (as in same) it is said, that although such judgments be given as aforesaid, yet &c. (as in same, substituting merely for "judgment," where it occurs in No. 2. the word "judgments.") 92. Scirc facias upon death of plaintiff or defendant, to have execu- tion for or against executor or administrator, after affirmance, by court of appeals, of judgment of circuit court which affirmed judg- ment of county court. As in No. 69. to defence of the said writ of supersedeas ex- pended ; to which judgment of our circuit superior court a writ of supersedeas was allowed on the petition of the said -, and at a court of appeals held at the capitol in the city of R. on the day of , it seemed to our said court of appeals that there was no error in the said judgment of our circuit su- perior court, and by our court of appeals it was considered &c. (as last). 93. Fi. fa. after award of execution on scire facias reviving, in name of executor or administrator, a judgment of circuit court which has been affirmed in the court of appedls. As in No. 85. to whereof the said C. D. was convict, as appears of record ; and also $ , which to , executor of the last will and testament (or, administrator of the personal estate) of the said C. D. deceased, in the same circuit superior court were adjudged for his costs by him expended in suing forth and prosecuting against the said our writ of scire facias ; and whereupon it is considered by our said court that the said , executor (or, administrator) as aforesaid, have execution against the said C. D. of the debt (or, damages) interest and costs aforesaid ; whereof he is also convict, as ap- pears of record. 51 402 Declarations. CHAPTER XXXVI. DECLARATIONS. I. IN ACTIONS GENERALLY. It is not deemed necessary to repeat here what is said in 1 Rob. Prac. 141 to 156. Some additional cases, upon points applicable to declara- tions generally, will however be referred to. NAMES OF PARTIES. In Davison Sfc. v. Savage, 6 Taunt. 121. 1 Eng. Com. Law Rep. 333. the declaration stated that James Savage was at- tached to answer four persons named of a plea of trespass, and thereupon the said plaintiffs complained for that/te said defendant &c. (describing the plaintiffs and defendant throughout the residue of the declaration no otherwise than by the phrase " the said plaintiffs" and " the said defen- dant"]. The defendant demurred specially, and in his assignment of the cause as well as in the argument insisted that upon every occurrence of the parties they ought to be described by their names. But the court intimated a decided opinion that the words "plaintiffs" and "defen- dant" were a sufficient description. The same cause of demurrer was assigned in Stevenson v. Hunter, 6 Taunt. 40G. 1 Eng. Com. Law Rep. 428. But the counsel who was to have argued in support of the demurrer, admitted that after the intima- tion given by the court in Davison v. Savage he could not maintain it. And Oibbs, C. J. said it would not be proper to permit the point to be argued. STATEMENT OF TIME. The time is usually stated under a scilicet; and this scilicet is often rejected when it makes nonsense or is repug- nant. In Bynner v. Russell, 1 Bingh. 23. 8 Eng. Com. Law Rep. 230. the action was on a bill of exchange ; and the declaration, after stating the delivery of the bill to the plaintiff, averred that " afterwards, and when the said bill of exchange became due and payable according to the tenour and effect thereof, to wit, on the 31st day of March 1822, to wit, at &.c. the said bill of exchange was in due manner and according to the usage and custom of merchants, presented and shewn for payment." The defendant demurred specially, assigning for cause that the 31st March 1822 was a sunday : and therefore the bill ought not to have been presented on that day, but on the day before. But the court held, that the day was immaterial, being specified under a to wit, and in an aver- ment that the bill was presented when it became due and payable. The authority of the foregoing case governed the decision of the court of appeals in Jackson's adm'x v. Henderson fyc. 3 Leigh 196. There were six special counts which, after setting out the bill of exchange as bearing date the 26th June 1816, and payable 180 days after date, al- leged that " afterwards, when the said bill became due and payable ac- Declarations. 403 cording to the tenour and effect thereof, to wit, on the 27th December 1816, at. &c." the bill was presented. Upon counting, it was found that the 27th December 1816, was the fourth day after the expiration of the 180 days. The court of appeals rejected the scilicet, and considered the declaration as stating the case of a presentment, " when the bill be- came due and payable." There is a material difference between allegations which are descrip- tive and allegations containing no matter of description. In this latter case, although the fact be alleged as of one time, and the proof is of another, yet the repugnancy is immaterial. The allegation is not con- sidered as a specific allegation of time. It is taken only as a substan- tial allegation of a particular fact; and it is sufficient if there be such proof as, in substance, supports the allegation. Purcell v. Macnamara, 9 East 157. was an action on the case for a malicious prosecution ; and the declaration, after stating that on a certain day, the defendant indicted the plaintiff for perjury, alleged that the defendant " prosecuted the said indictment against the plaintiff until afterwards, to wit, on the morrow of the holy Trinity" in &c. the plaintiff was acquitted. At the trial the copy of the record of the indictment being given in evidence, it appeared that the trial and acquittal took place " on tuesday next after the end of Easter term ;" and the variance was objected to as fatal. The court of king's bench considering the substance of the allegation to be that the plaintiff was acquitted, held that to support the allegation it was suffi- cient to shew that the acquittal took place before the action was brought. The precise day of the acquittal was unimportant. The decision of the court of king's bench in Purcell v. Macnamara, was followed by the court of appeals in Mowry v. Miller, 3 Leigh 561. In this last case, the declaration alleged that " afterwards, to wit, on the 7th of October 1825," the plaintiff was acquitted, and the record pro- duced at the trial shewed that the acquittal was on the 7th of November 1825. The variance was considered immaterial. The decision in Purcell v. Macnamara has been also approved by the court of king's bench in the more recent case of Phillips \. Shaw, 4 Barn. & Aid. 435. 5 id. 964. 6 Eng. Com. Law Rep. 477. 7 id. 318. The decla- ration in the latter case stated that the defendant undertook to indemnify the plaintiff as bail in a suit of Paige v. Pinnock, and alleged that after- wards, to wit, " in Michaelmas term, 58 Geo. 3." judgment was recovered in the said suit. At the trial it appeared by the record that the judg- ment was obtained in Hilary term, 58 Geo. 3. ; and the variance was objected as fatal. But the court held the substantial matter to be that before the action was brought, judgment had been recovered ; and con- sidered it immaterial at what particular time that judgment was obtained. In Taylor's adm'r v. The Bank of Alexandria, 5 Leigh 471. the ma- terial and substantive part of the allegation was, that the charter of the bank was continued by certain acts of congress to that effect and for that purpose passed ; and then there came the videlicet, " that is to say, the act of congress passed the 15th of February 1811, entitled &.c." The reading of the act was objected to at the trial because it was passed the 15th of February 1810 and not the 15th of February 1811. As the whole of the recital was under a videlicet, exactness as to the day was held immaterial. 404 Declarations. WHERE A CORPORATION SUES, WHAT MUST BE ALLEGED. It is not to be inferred from the preceding case, that where a corporation sues, it is necessary to allege in the declaration, the charter of incorporation or to make an averment that the corporation has a legal right to sue in the name which it uses. See Rees v. Conococheague Bank, 5 Rand. 326. Opn. of Carr, J. in Grays v. Turnpike company, 4 Rand. 579. Lithgow v. Com. 2 Va. Cas. 305. In the very case of Taylor's adm'rv. The Bank of Alexandria, there was a general demurrer to the declaration of the bank, and Tucker, pre- sident, in delivering the opinion of the court, said, " If the defect for which the defendant demurred was any want of form in pleading the acts of congress for the continuance of the corporate powers of the bank, two answers present themselves: 1. That it was not necessary to set forth in the declaration how the company was incorporated but it would have been sufficient for the plaintiffs on the general issue to prove their incorporation ; Grays v. Turnpike company, 4 Rand. 578. follow- ing the long established principles of the english courts : 2. Even if it had been necessary, the fact of the incorporation and the continuance of the charter is alleged substantially, and, though the allegation be in- formal, the defendant could not, upon his general demurrer, take advan- tage of want of form." In New York, it appears to be considered proper for the plaintiffs to aver in their declaration, pursuant to the statute 2 R. S. 459. 13. that they are a corporation, setting forth the title of the act creating the cor- poration and the date of its passage ; and then there may be a plea of nul tiel corporation concluding to the country. Onondaga County Bank v. Carr, 17 Wend. 443. The by-laws of all corporate bodies, including all municipal corpora- tions, must be set forth in pleading when they are sought to be enforced by an action or are set up as protection on the record. In Harker v. The Mayor fyc. of New York, 17 Wend. 199. the mayor, aldermen and commonalty of the city of New York declared against Harker for that he, being an inhabitant of the city, suffered and permitted two of his carts to be driven without having his name printed thereon, contrary to the 3d section of title 7th of a law of the mayor, aldermen and common- alty of the city of New York to regulate carts and cartmen. It was insisted that the declaration was insufficient because the ordinance of the corporation, under which the suit was brought, was not set out. And the court held the objection to be well taken, saying it could not judi- cially notice these cart laws or any other corporate regulations. Although a corporation cannot sue but in its true name, yet that will not prevent its claiming under a contract made with it, by a mistaken name, provided there be enough to distinguish it and shew that it was the corporation intended. In such case, the mistake may be averred in pleading or shewn in evidence upon the general issue. Thus in The Culpeper Agricultural and Manufacturing Society v. Digges fyc. 6 Rand. 165. the declaration averred that the defendants executed their obligation to the plaintiffs, by the name of " The President and Mana- gers of the Culpeper Agricultural and Manufacturing Society;" and the defendants, by demurring to the declaration, raised the question whether such an averment could be made. The court of appeals held that it Declarations. 405 was competent to the plaintiffs to make the averment, and overruled the demurrer. WHAT COUNTS MAY BE JOINED. Some remarks upon the misjoinder of counts will be found in 1 Rob. Prac. 284, 5, 6. In Virginia as well as in England, there may be united, in the same action of debt, a count upon a specialty and a count on a simple con- tract. Eib v. PindalVs ex'x, 5 Leigh 109. So also, in the same action of debt, there may be united with a count on a judgment, counts for goods sold, money lent and advanced, money paid, laid out and expended, and money had and received. Union Cot- ton Manufactory v. Lobdell fyc. 13 Johns. 462. But the counts so joined must all be framed in debt; the joinder of counts in debt and assumpsit not being allowed. In Bull v. Neale, 3 Barn. &/ Aid. 208. 5 Eng. Com. Law Rep. 264. the record stated that the plaintiff had brought his bill against defendant, being in custody &-c., in a plea of debt, and the commencement of the declaration was in the common form in debt. The first count then stated that defendant was indebted to the plaintiff for work and labour &c. and, being indebted, that defendant undertook and promised to pay upon request, whereby an action hath accrued &c. The second count was upon a quantum meruit and in form like the first. The other counts were properly framed in debt. To this declaration there was a demurrer, assigning for cause the misjoinder of debt and assumpsit; and Dalton v. Smith, 2 Smith's Rep. 618. was relied upon in support of the demurrer. The court intimated that that case was precisely in point ; and the plaintiff asked leave to amend. Counts in covenant cannot be joined with counts in assumpsit. Pell v. Lovett, 19 Wend. 546. Neither can counts in assumpsit be joined with counts in tort. Cor- bettv. PacJcington, 6 Barn. & Cress. 268. 13. Eng. Com. Law Rep. 170. Nor can a count in trespass, or for any tort committed with force, be joined with a count in case for trover, or any tort implying no force. In the former case, the judgment is beside damages quod defendens capiatur pro Jine. In the latter, it is quod sit in misericordiam. Cooper v. Bis- sell, 16 Johns. 146. Hensworth v. Fowkcs, 4 Barn. & Ad. 449. 24 Eng. Com. Law Rep. 99. In Boyle v. Towncs, 9 Leigh 158. the action was detinue, and the declaration contained two counts, both upon Towncs' s own possession. In the first count he stated his possession of the slave, as of his own property. In the second count he declared that, as curator and recei- ver appointed by order of the hustings court of Petersburg sitting in chancery, in the case of Patterson's administratrix against Boyle's ad- ministrator and others, he was lawfully possessed of the slave, as one of the slaves belonging to the trust fund in the said chancery suit, and, so being possessed of the said slave, casually lest the same out of his pos- session. It was argued that this was a misjoinder of action. But it was held otherwise. Tucker, president, said, " The plaintiff is the same in both counts ; and though he claims the possession on two grounds, first on the ground of the right of property, and next of the mere right of possession, yet, on each ground, the claim is in his own right ; and, whether he succeed on one or the other count, the judg- 406 Declarations in debt. ment must be precisely the same. Neither count sets forth a claim in outer droit." A count against an executor in his representative character cannot be joined with a count against him individually. Kayser v. Dishcr, 9 Leigh 357. Myer Sfc. v. Cole Sfc. 12 Johns. 349. Demott v. Field, 7 Cow. 58. But in an action by executors, with counts on promises to the testa- tor, there may be united counts on promises to the executor as such, whenever the money recovered will be assets in the hands of the execu- tors. Fry v. Evans, 8 Wend. 530. Lancefield v. Allen fyc. 1 Bligh's Par. Cas. N. S. 592. The declaration though, in such a case, must be throughout in the representative character of the plaintiff, and the- causes of action which accrued to the plaintiif must appear to have ac- crued to him in that character. Christopher v. Stockholm, 5 Wend. 36. WHAT MAY JOINED IN SAME COUNT. It is not uncommon, in an ac- tion of assumpsit, to include in one count several notes of hand ; so it is now the common practice to include in one count the three money counts. Savage, C. J. in Rathbun v. Emigh, 5 Wend. 409-10. Rathbun v. Emigh was an action for slander, and the question which arose, was as to the propriety of including in the same count, several sets of words. The words were all charged as spoken at the same time, in one conversation. They were all of the same signification, and merely varied so as to meet the proof in any of the forms of expression. The conclusion of the court was, that different sets of words, importing the same charge, laid as spoken at the same time might be included in the same count. II. IN DEBT. WHAT is TO BE DEMANDED. Where a declaration in debt contains two distinct counts, in each of which a debt of $ 600 is specified, the claim in the commencement of the declaration may be, and regularly ought to be, that the defendant render unto the plaintiff $ 1200. The People v. Van Eps, 4 Wend. 387. But a plaintiff should never demand more than by his declaration he shews himself entitled to. If, for example, he declare on a judgment or decree which as recited does not carry interest, he should merely demand the sum recovered by the judgment or decree. He should not demand it with interest. Shelton's ex'ors v. Welsh's adm'rs, 7 Leigh 175. This rule is not disturbed by the case of Kemp v. Mundell and others, 9 Leigh 12. In Maryland, interest is recoverable of right in actions on written contracts for the payment of money on a day certain, but the practice is, to give judgment for it in the form of damages, with a me- morandum, at the foot of the judgment, that the damages shall be re- leased, on payment of the interest. In conformity with this practice, the judgment of Mundell and others against Kemp was entered for $ 198 the debt, $ 400 damages and the costs, with a memorandum at the foot of the judgment, that the plaintiffs agreed to release the $ 400 damages, upon payment of the interest on the debt from the 30th No- vember 1822 till paid, and the costs of suit. In the action brought in Virginia upon the judgment, the plaintiffs, by their declaration, de- Declarations in debt. 407 manded $ 205, being the amount of the principal debt and costs and in- terest on the principal from the 30th November 1822. This declaration was sustained. DEBET AND DETINET. Sometimes a declaration is in the detinct only when it ought regularly to be in the debet and detinet. This was the ground of demurrer in Bailey fyc. v. Beckicith, 7 Leigh G04. In that case, the action having been brought upon a bond taken to the plaintiff, was an action in his own right, although he was styled executor in the bond, and technically the declaration should have been in the debet as well as the detinet. But the court held the allegation of the debet such mere matter of form, that it disregarded the omission even on special demurrer. DESCRIPTION op THE PARTIES. If the defendants are stated in the bond to be of the county of E. and this is omitted in the declaration, the variance is not material. Evans v. Smith, 1 Wash. 72. If a bond be payable to "James Whitlow, jun." and the declaration is in behalf of "James Whitlow, jun. alias James Whitlock," and states the obligation as executed to the plaintiff, the bond should not be re- jected as evidence because of such variance. Whitlock v. Ramsay's adm'x, 2 Munf. 510. If a declaration be in the name of W. P. and the bond produced on the trial be to " W. P. of the county of S. on account of messrs. G. Sf P. merchants in G." an objection to the admission of the bond ought not to be sustained. Peter v. Cooke's ez'or, 1 Wash. 257. The addi- tion in the bond to the name of the obligee is to be considered as merely descriptive of the person and the consideration on which the obligation was founded. Coalter, J. in Moore v. FcnwicTc, Gilm. 215. . In Porter v. Nekcrvis, 4 Rand. 359. the declaration was filed in the name of W. JV. Cashier of the Farmers Bank of Virginia, and stated the note to have been endorsed to the plaintiff". Upon a general demurrer to the declaration, it was held that the endorsement to W. N., by the name of " cashier of the Farmers Bank of Virginia," gave him the le- gal right to sue in his own name ;' and that the action in the name of W. N. with the addition aforesaid was but an action in his own name : The demurrer was therefore overruled. DESCRIPTION OF THE NOTE OR OBLIGATION. In an action against two defendants upon a bond, if it be charged that both of them acknow- ledged themselves to be indebted to the plaintiff, and the declaration pro- ceeds throughout as if the bond was jointly executed by both, the plain- tiff cannot give in evidence a writing which begins, " Know all men &c., that I, H. R., am held" &c. and is written throughout as if it were the acknowledgment of only one person. Such a writing, although it be signed by both defendants, materially varies from the one declared on. Bell v. Allen's adm'r, 3 Munf. 118. A declaration which makes profert of a writing obligatory, sealed with the seal of the defendant, will not be supported by the production of an instrument purporting in the body of it to be executed only under the hand of the party, although such instrument have a scroll affixed to it. Austin's adm'x v. Whitlock' s ez'ors, 1 Munf. 487. See also Baird v. Blagrove, I Wash. 170. 408 Declarations in debt. Though a writing purport that the maker thereof binds himself, his heirs &.c. to pay a sum of money for value received, yet if it is not ac- knowledged on the face thereof to be under his seal but only under his hand, such writing is not a specialty but only a promissory note, notwith- standing a scroll be annexed to it. Anderson v. Bullock fyc. 4 Munf. 442. See also Tucker, J. in Argcnbright \. Campbell 4* wife, 3 H. &/ M. 174. Jenkins v. Hurt's commissioners, 2 Rand. 446. and Peasley v. Boatwriglit, 2 Leigh 195. ' If such writing be in the form of a penal bill, the declaration shoul3 claim according to the legal effect of the contract, that is, the principal sum, and not the penalty, and should notice the penalty only by way of describing the writing sued upon. Jenkins v. Hurt's commissioners, 2 Rand. 446. DEFAULT OF PAYMENT. Where a bond is conditioned for the pay- ment of a sum of money generally, and the condition says nothing as to a demand, a plea alleging that there was no demand before action brought, is no answer to the action. In Gibbs 4'c. ex'ors of Edwards v. Southam, 5 Barn. & Ad. 911. 27 Eng. Com. Law Rep. 235. the action was debt on a bond for 1512. conditioned to pay 756. with interest after the rate of 5. for each 100. for a year, without fraud or further delay. To a plea that payment of the said sum of 756. with interest was not demanded before the exhibiting the bill, there was a demurrer. And the court sustained the demurrer, and entered judgment for the plaintiffs. A stipulation to pay on a particular day, unless some event shall hap- pen which in its nature may happen either before or after that day, ne- cessarily implies that the money is to be paid, if the event does not hap- pen before that day. Thus in Cobbs v. Fountaine, 3 Rand. 484. the ac- tion was upon a specialty by which the obligor undertook that, if W. C. who was prosecuted for murder was not found guilty of murder in the first degree, he would pay the obligee the sum of $ 200 on or before the 12th of September 1819. The plaintiff averred that W. C. was not sentenced for murder in the first degree, whereby action accrued to the plaintiff to recover the said sum of $ 200 after the 12th of September 1819. The defendant pleaded that W. C. had never been acquitted of murder in the first degree, but that the prosecution against him remained undetermined. And the court of appeals decided that this plea could not be sustained. The instrument could not be construed to mean that the plaintiff was not entitled to the money until W. C. was acquitted of murder in the first degree, but the meaning was that if W. C. was not found guilty of murder in the first degree and sentenced for that crime before the time appointed for the payment, the plaintiff was thereupon entitled to the money. Declarations in debt. 409 1. On a promissory note by the. payee against the maker. 1 Rob. Prac. 45. 46. In the circuit superior court of law and chancery for the county of H. (or In the court of H. county) march rules 1832. H. county, to wit : /. W. complains of M. F. in custody &c., of a plea that he render to the said plaintiff the sum of sixty dollars which he owes to the said plaintiff, and unjustly detains from him. And thereupon the said plaintiff saith that heretofore, to wit, on the first day of January 1827, at the said county of H., the said M. F. made his certain note in writing, bearing date the day and year aforesaid, and subscribed his name thereto, by which said note he the said M. F. then and there promised to pay, on or before the first day of January next after the date thereof, to the said plaintiff, sixty dollars. And the plaintiff avers, that although the said sum of sixty dollars hath, accord- ing to the tenour and effect of the said note, been long since due and payable, and although the said M. F. hath been often re- quested to pay the same to the said plaintiff, yet the said M. F. hath not paid to the said plaintiff the said sum of money, or any part thereof, but hath hitherto wholly neglected and refused so to do, and still doth neglect and refuse so to do, to the damage of the said plaintiff twenty dollars ; and therefore he brings suit &c. 2. On two promissory notes. In the circuit court of the United States for the fifth circuit and eastern district of Virginia. Eastern district of Virginia, to wit : P. H. and R. E. B. citizens of the state of New York,* trading as merchants and partners under the name and style of //. 4* B. complain of A. O. E. a citizen of the state of Virginia, residing in' the eastern district thereof, being in cus- tody &c. of a plea that he render to the said plaintiffs the sum of two thousand and thirty-four dollars and fifty-eight cents which to the said plaintiffs he owes, and from them unjustly detains. And thereupon the said plaintiffs say that heretofore, to wit, on the 12th day of April 1833, at New York, to wit, at the said eastern district of Virginia, the said A. O. E. made his certain promissory note in writing, bearing date the day and year aforesaid, and subscribed his name thereto, by which said note he the said A. O. E. then and there promised to pay, six months after the date thereof, to the said plaintiffs, by their 52 410 Declarations in debt. name and style aforesaid, t twelve hundred and twenty-seven dollars nineteen cents, parcel of the sum above demanded, for value received. And the said plaintiffs further say that hereto- fore, to wit, on the 10th day of October 1833, at New York, to wit, at the said eastern district of Virginia, the said A. O. E. made his certain other promissory note in writing, bearing date the day and year last aforesaid, and subscribed his name thereto, by which said note he the said A. O. E. then and there promised to pay, six months after the date thereof, to the said plaintiffs, by their name and style aforesaid, the further sum of eight hun- dred and seven dollars thirty-nine cents, which with the said twelve hundred and twenty-seven dollars nineteen cents amounts to the said sum of two thousand and thirty-four dollars and fifty-eight cents above demanded. Nevertheless the said A. O. ' E. (although often requested so to do) hath not as yet paid the said sum of two thousand and thirty -four dollars and fifty-eight cents above demanded, or any part thereof, to the said plaintiffs, but hath hitherto wholly neglected and refused, and still neglects and refuses so to do, to the damage of the said plaintiffs &c. (as in No. 1.) * In the courts of the United States, the declaration shews on its face a case to which the judicial power, of those courts, extends. tin Gordon fyc. v. Browne's ex' or, 3 H. &. M. 219. the declaration was in the names of three persons, surviving partners of themselves and four others, late merchants and partners acting under the style of A. F. upon a writing obligatory described as made to the said A. F. with- out alleging that the bond was made to themselves, by the name and style of A. F. The declaration so drawn was considered by judge Tucker to shew no right in the plaintiffs to bring the action. And judge Roane seems to have been of the same opinion. 3. On a single bill. In the court of hustings for the city of R. March rules 1829. City of R. to wit : E. J. an inhabitant of the city of R.* complains of R. H. K., also an inhabitant of the same city, being in cus- tody &c., of a plea that he render to the said plaintiff the sum of eighty dollars which he owes to, and unjustly detains from, the said plaintiff. And thereupon the said plaintiff saith that heretofore, to wit, on the 13th day of October 1828, at the said city of R., and within the jurisdiction of this court, the said R. H. K. by his certain writing obligatory, sealed with his seal, and to the court now here shewn, the date whereof is the day and year last aforesaid, promised and obliged himself to pay to the said plaintiff, on the first day of January next ensuing the date Declarations in debt. 411 ibereof, eighty dollars. And the plaintiff avers that although the said sum of eighty dollars, in the said writing obligatory specified, hath, according to the tenor and effect of the said writing obligatory, been, long since, due and payable, and al- though the said K. H. K. hath been often requested to pay the same to the said plaintiff, yet the said R. H. K. hath not paid to the said plaintiff the said sum of money, or any part thereof, but to pay the same to the said plaintiff hath hitherto wholly refused, and still doth refuse, to wit, at the said city, and within the jurisdiction aforesaid, to the damage of the said plaintiff &c. (as in No. 1.) * This declaration was filed in a suit brought anterior to the act of March 29. 1837, in sess. acts 1836-7, p. 270. 4. It was drawn in con- formity with the decisions cited in 1 Rob. Prac. 5. 6. 4. On a penal bill payable on demand. As in No. 1. to heretofore, to wit : on &c. at &c. the said T. H. by his certain writing obligatory, sealed with his seal, and now shewn to the court, the date whereof is the day and year last aforesaid, promised to pay on demand, to the said plain- tiffs, the sum of $93.71 for the payment of which he bound himself in the penal sum of $ 187.42. And the said plaintiff further saith that afterwards, to wit, on &c. at &c. the said plain- tiffs demanded* of the said T. H. the said sum of $93.71, but the said T. H. did not pay the same to the said plaintiffs, when so demanded, as by his said writing obligatory he promised to do, nor has he paid the same to the said plaintiffs at any other time, but therein has wholly failed, and made default. By rea- son whereof the said writing obligatory became forfeited, and action accrued to the said plaintiffs to demand and have, of and from the said T. H., the said sum of $ 187.42 above demanded. Nevertheless the said T. H. although thereunto often requested, hath not as yet paid to the said plaintiffs the said sum S 187.42, or any part thereof, but &c. (as in NO. 1.) * Carter v. Ring, 3 Camp. 459. was an action of debt on a bond in the penal sum of 3800. conditioned to pay 1900. on demand, with lawful interest, at the rate of 5 per cent, per annum until paid. The de- fendant, after oyer, pleaded that no demand of payment of the said sum of money, in the said condition mentioned, or of any interest thereupon, was ever made by the plaintiff. The plaintiff replied that a demand was made by him upon the defendant, and issue was joined. At the trial the plaintiff insisted that the bringing the action was a sufficient de- mand. But lord Ellenborougli was of opinion that the plaintiff was bound to prove a demand before action brought. 412 Declarations in debt.' * ' * 5. On two bonds. As in No. 1. to heretofore, to wit, on Sec. at &c. the said S. E. by his certain writing obligatory, sealed with his seal, and now shewn to the court, the date whereof is the day and year last aforesaid, acknowledged himself to be held and firmly bound unto the said plaintiff in the just and full sum of $ 3000, to be paid unto the said plaintiff. And the said plaintiff further saith that the said S. E. heretofore, to wit, on &c. at &c. by his certain other writing obligatory, sealed with his seal, arid now shewn to the court, the date whereof is the day and year last aforesaid, acknowledged himself to be held and firmly bound unto the said plaintiff in a certain other sum of $ 3000 to be paid unto the said plaintiff, which said two sums of $ 3000 amount together to the said sum of $6000 above demanded. Nevertheless the said S. E., although often requested so to do, hath not as yet paid the said sum of S 6000 above demanded, or any part thereof, to the said plaintiff, but hath hitherto wholly neglected and refused, and still neglects and refuses so to do, to the damage &c. (as in No. 1.) 6. Against husband and wife on a bond given by her before the marriage. W. R. complains of A. B. and S. his wife who before her in- termarriage with the said A. B. was S. M., being in custody &c., of a plea that they render to him the sum of $351 which they owe to, and unjustly detain from him. And thereupon the said plaintiff saith that the said S. whilst she was sole and un- married, to wit, on &c. at &c. by her certain writing obligatory, sealed with her seal, and to the court now here shewn, the date whereof is the day and year aforesaid, acknowledged herself to be held and firmly bound to the said plaintiff in the said sum of $ 351 above demanded to be paid to the said plaintiff. Never- theless the said S. whilst she was sole and unmarried, and the said A. B, and S. his wife since their intermarriage, (although often requested so to do), have not, nor hath either of them, as yet paid the said sum of $351 above demanded, or any part thereof, to the said plaintiff, but to pay the same, or any part thereof, to the said plaintiff, they have, and each of them hath, hitherto wholly neglected and refused, and they do and each of them doth, still neglect and refuse, to the damage &c. (as in No. 1.) Declarations in debt. 413 7. Against executors on tfie bond of testator. 1 Rob. Prac. 52. The case of Grymes v. Pendleton, 4 Call 130. judge Mercer observed, in WatTcins's ex'ors v. Tate, 3 Call 521. was an express authority to prove that at law the ^xecutors of two persons could not be joined in the same action. In that case, he said, the judges who sat in it, had unanimously given that opinion. But the president (judge Pendleton), who was one of the plaintiffs in Grymes v. Pendleton and did not sit in that cause, upon this reference to the decision in it, stated that he was never satisfied with that decision and wished the point to remain open to be reconsidered, should it again occur. J. D. and J. D. merchants and partners under the firm of J. fy J. D. complain of R. K. executrix of the last will and testament of J. K. deceased, being in custody &c. of a plea that she render to them $ 1645.18 cents which she unjustly detains from them. And thereupon the said plaintiffs say that the said J. K. in his lifetime, to wit, on &c. at &c. by his certain writing obligatory, sealed with his seal, and to the court now here shewn, the date whereof is the day and year aforesaid, acknowledged himself to be held and firmly bound to the said plaintiffs, by the said name of J. fy J. D. in the said sum of $ 1645.18 cents above demanded, to be paid to the said plaintiffs. Nevertheless the said J. K. in his lifetime did not pay nor hath the said R. K. ex- ecutrix as aforesaid since the death of the said J. K. as yet paid the said sum of $ 1645.18 cents above demanded, or any part thereof, to the said plaintiffs (although often requested so to do), but the said /. K. in his lifetime, so to do, wholly refused, and the said R. K. executrix as aforesaid, ever since the death of the said J. A", hitherto hath wholly refused, and still doth refuse, to pay the same, or any part thereof, to the said plaintiffs, to to wit, at &c. to the damage &c. (as in No. 1.) 8. On a joint botid against the surviving obligor. As in No. 1. to heretofore to wit, on &c. at &c. the said C. D. and one E. F., in the lifetime of the latter, by their certain writing obligatory &c. (here describe the obligation). And the plaintiff further saith that the said E. F. has departed this life, and that before his death the said C. D. and E. F. had not, nor had either of them, paid the said sum of money, or any part thereof: Whereby the plaintiff's right of action hath survived against the said C. D. to demand and recover from him the said .sum of money. Nevertheless the said C. D. although often re- quested so to do, hath not, nor hath any other person, as yet paid, to the said plaintiff, the said sum of money, or any part thereof, but payment of the same, and of every part thereof, 414 Declarations in debt. hath hitherto been wholly neglected, and such payment is still refused by the said C. D. to the damage &c. (as in No. 1.) 9. On a joint bond against the representative of an obligor who ivas survived by his co-obligor. 1 Rob. Prac. 49. As in No. 1. to complains of C. D. executor of the last will and testament of E. F. deceased (or administrator of the personal estate of E. F. deceased) being in custody &c. of a plea that he render to the said plaintiff the sum of $ , which he unjustly detains from him. And thereupon the said plaintiff saith that the said E. F. and one G. H. in the lifetime of the said E. F. to wit, on &c. at &c. by their certain writing obliga- tory &c. (here describe the obligation). Nevertheless the said E. F. and G. H. in the lifetime of the latter, did not pay, nor hath the said G. H. since the death of the said E. F. nor hath the said C. D. executor (or administrator) as aforesaid, paid the said sum of $ above demanded, or any part thereof, to the said plaintiff, although often requested so to do, but to pay the same, or any part thereof, they have, and each of them hath, wholly refused, and the said C. D. executor (or administrator) as aforesaid, still doth refuse to the damage of the said plaintiff &c. (as in No. 1.) 10. By representative of obligee against obligors. 1 Rob. Prac. 52. If a person who is administrator of another, take a bond payable to himself, with the addition of " administrator of" that other, the bond is not thereby made a credit of the decedent, but the person to whom the same is payable may maintain an action thereon in the debet and detinet, as for his own credit ; and after his death, that right of action will de- volve on his executor or administrator, and not on the representative of the first decedent. Bowden ex' or of Moore v. Taggart, 3 Munf. 513. So if one of two executors, take a bond payable to himself, with the addition of " executor of" the testator, without mentioning the other, and afterwards dies, the other surviving him, the right of action is in the executor or administrator of the executor to whom the bond is pay- able, and not in the surviving executor of the first testator. Pulliam's ex'x v. Johnson Sfc. 4 Munf. 71. W. H. and R. C. executors of the last will and testament of G. C. deceased complain of R. L. and J. P. being in custody &c. of a plea that they render to him the sum of $200 which they unjustly detain from him. And thereupon the said plain- tiffs say, that the said R. L. and J. P. on &c. at &c. by their certain writing obligatory, sealed with their seals, and to the court now here shewn, the date whereof is the same day and Declarations in debt. 415 year aforesaid, acknowledged themselves to be held and firmly bound unto the said G. C. in his lifetime, in the said sum of $200 above demanded, to be paid to the said G. C., his execu- tors, administrators or assigns, when they the said R. L. and J. P. should be thereunto afterwards requested. Nevertheless the said R. L. and J. P. (although often requested so to do) have not, nor hath either of them, as yet paid the said sum of $200 above demanded, or any part thereof, to the said G. C., in his lifetime,* or to the plaintiffs' executors as aforesaid, since the death of the said G. C., but to pay the same, or any part thereof, to the said G. C. in his lifetime, or to the plaintiffs since his death, they have, and each of them hath, hitherto wholly refused, and they do, and each of them doth, still refuse, to the damage of the said plaintiffs as executors as aforesaid- $ , and therefore they bring their suit &c. And the said plaintiffs bring here into court the certificate granted them for obtaining a probat of the will of the said G. C. deceased, whereby it fully appears to the said court here that the said plaintiffs are execu- tors of the last will and testament of the said G. C. deceased and have the execution thereof &c. * In an action by a surviving executor for a debt due the testator, if the declaration merely aver that the debt was not paid to the plaintiff, without averring that it was not paid to the testator of the plaintiff, or to either of his co-executors, it will be defective. BucJcner fyc. v. Mit- chell's ex'or, 2 Munf. 336. 11. Bij an administrator de bonis non with the will annexed against two partners, upon a penal bill sealed by one partner, for himself and his copartner, by the authority and in the presence of the co- partner. Ball v. Dunstervillc fyc. 4 T. R. 313. Maclcay fyc. v. Bloodgoods, 9 Johns. 285. Shelton v. Pollock fy Co. 1 H. & M. 423. Garland v. Davidson, 3 Munf. 189. Poindexter v. Waddy, 6 Munf. 420. 1 Rob. Prac. 52. H. county, to wit: D. E. administrator of the estate of J. H. senior deceased, unadministered by C. T. sheriff of K. W. county, with the will of the said J. H. senior annexed (to which said C. T. as sheriff aforesaid, had been committed for administration, the estate of the said J. H. senior, unadministered by A. H. executor of the last will and testament of the said J. H. senior, with the will of the said J. H. senior annexed), complains of L. W. and J. W. late partners under the firm of W. and W* in custody &c. of a plea that they the said W. and W. render unto the plaintiff the sum of eight hundred dollars which from the said plaintiff the 416 Declarations in debt. said W. Sf W. unjustly detain. And thereupon the said plain- tiff saith that the said L. W. and J. W. heretofore, to wit, on the 13th day of January 1826, and in the lifetime of the said J. H. senior deceased, by a certain writing obligatory, sealed by the said L. W. for and on behalf of himself and the said J. W. and by the authority and in the presence of the said J. W. (which writing obligatory is now here shewn to the court) promised to pay the said J. H. senior, on or before the first day of January next ensuing the date thereof, the sum of four hundred dollars, to which payment well and truly to be made, the said L. W. and J. W. bound themselves, jointly and severally, by the said writing obligatory, in the penal sum of eight hundred dollars. Yet the said L. W. and J. W. or either of them, did not pay to the said /. H. senior, on or before the said first day of Janu- ary last mentioned, although he was then alive, the said sum of four hundred dollars, as by their said writing obligatory they promised to do, but therein wholly failed and made default. Whereby the said writing obligatory, and penal sum aforesaid, became forfeited, and action accrued to the said J. H. senior, in his lifetime, afterwards to A. H. executor of the last will and tes- tament of the said J. H. senior, subsequently to the said C. J. sheriff as aforesaid, to whom was committed for administration the estate of the said J. H. senior, unadministered by the said A. H. with the' will of the said J. H. annexed, and lastly to the plaintiff as the administrator of the estate of the said J. H. senior, unadministered by the said C. T. with the will of the said J. H. senior annexed, to demand and have of and from the said L. W. and J. W. the said sum of eight hun- dred dollars above demanded. Nevertheless the said L. W. and /. W. have not, nor hath either of them, paid the said sum of eight hundred dollars, or any part thereof, to the said J. H. senior in his lifetime ; neither have they, or either of them, paid the same to the said A. H. executor as aforesaid, or to the said C. T. sheriff and administrator as aforesaid, or to the said plaintiff. But to pay the said sum of money, or any part thereof, they the said _L. W. and J. W. have, and each of them hath, hitherto wholly refused, and they do, and each of them doth, still refuse to pay the same, or any part thereof, to the plaintiff, to the damage of the said plaintiff fifty dollars ; and therefore he brings suit &c. And the said plaintiff brings here into court his letters of ad- ministration, whereby it sufficiently appears to the court that the said plaintiff is the administrator of the estate of the said J. H. senior deceased, unadministered by the said C. T. sheriff as aforesaid, with the will of the said /. H. senior annexed, and, as such administrator, hath the administration thereof &c. Declarations in debt. 417 12. By the administrator of a surviving partner against heirs on a bond of their ancestor. 1 Rob. Prac. 52. In declaring against a remote heir, he should be charged as heir of the heir of the obligor, or as heir of the obligor, with a videlicet setting forth the intervening descent. It will not do to charge him as immediate heir to the obligor, without noticing the intermediate descent. Waller's ex'ors v. Ellis, 2 Munf. 88. But it is unnecessary to state how the de- fendant is heir, for it may not be in the plaintiff's knowledge. S. C. The objection appears to have been overruled in the case of Denham v. Ste- phenson, 1 Salk. 355. in which it was made, and the court took this dis- tinction between an action by and against an heir. In the former case, the plaintiff must shew his pedigree and how heir, for it lies within his knowledge, but in the latter it is not necessary, for the plaintiff is a stranger, and it would be hard to compel him to set forth another's pedi- gree. J7~. G. administrator of the personal estate of J. G. deceased who was the surviving partner of the late firm of G. and K. which consisted of T. G. now deceased, J. K. also deceased and the said J. G., late merchants and partners, carrying on bu- siness under the above mentioned firm, complains of J. W. and A. W., sons and heirs, and J. R. and C. his wife, a daughter and heiress, of B. W. deceased, being in custody &c. of a plea that they render to him the said plaintiff the sum of 1524. 11. of lawful money of Virginia, which they owe to* and unjustly detain from him. And thereupon the said plaintiff saith that while the said firm of G. and K. was existing, and in the life- time of the said B. W. to wit, on &c. at &c. he the said B. W. whose heirs the said J. JF., A. W., and C. are, by bis certain writing obligatory, sealed with bis seal and to the court now here shewn, the date whereof is the day and year aforesaid, ac- knowledged himself to be held and firmly bound to the. said T. G., J. K., and J. G. by the name and stylet of G. and K. in the sum of 1524. 11. of current money of Virginia, to be paid to them, or the survivors, or survivor, of them, or the executor or administrator of such survivor, whenever he the said B. W. should be thereunto afterwards requested, for which payment, to be well and truly made, be the said B. W. bound himself and his heirs firmly by the said writing obligatory. Nevertheless the said B. W. in his lifetime, and the said J. W., A. W., J. R. and C. bis wife since the death of the said B. W., (although often requested so to do) have not, nor hath either of them paid the said sum of 1524. 11., or any part thereof, to the firm of G. and K. or any member thereof while it existed or to J. K. and J. G. the survivors of T. G. or to J. G. the last survivor or to tbe plaintiff, but the said B. W. in his lifetime did wholly refuse 53 418 Declarations in debt. so to do, and the said J. W., A. W., J. R. and C. his wife since his death have, and each of them hath, wholly refused so to do, to the damage &c. (as in No. 1.) And the said plaintiff brings here into court the certificate granted him for obtaining letters of administration on the estate of the said /. G. deceased, whereby it appears that he the said plaintiff is the administrator of the estate of the said J. 6r. de- ceased, and as such, hath the administration thereof &c. * An heir should be charged in the debet and detinet, but if charged in the detinet only, the defect is not fatal on general demurrer. Wal- ler's ex'ors v. Ellis, 2 Munf. 88. t See opinions of judges Tucker and Roane, in Gordon fyc. v. Browne's executor, 3 H. & M. 219, cited ante, p. 410. 13. By obligee against heirs and devisees of obligor jointly. 1 Rob. Prac. 52. In order to bring a case within the statute giving an action of debt against the heir and devisee, the relation of creditor and debtor must exist between the claimant and the devisor, in the lifetime of both. In Farley fyc. v. Briant fyc* 3 Ad. &, E. 839. 30 Eng. Com. Law Rep. 239. debt was brought against the heirs and devisees of John Briant. A lease having been granted to one Jenkins, the covenants by Jenkins were joined in by Briant, who thus became liable for their performance. There had been no breach of the covenants by Jenkins when Briant died. Briant, at the time he died, being only contingently liable for the breach of any covenant, the court of king's bench considered that he was not indebted at that time, and that it was not a legal fraud in him so to dispose of his lands by will as to prevent the covenantee from hav- ing recourse to them. A precedent of a declaration against heirs and devisees jointly will be found in 2 Chitty's Pleading p. 469. The edition referred to is the 5 Am. from 4 Lond. ed. Phila. 1828. 14. By an assignee i?i his own name. 1 Rob. Prac. 45, 6, 7. The assignee cannot sue as obligee, but must set forth the assignment in his declaration. Gordon fyc. v. Browne's ex'or, 3 H. &, M. 219. If the declaration allege that the note sued on was assigned by the payee to the plaintiff, but fail to state where the assignment was made, the defendant may demur specially to the declaration for this cause, but the defect is not one which can be taken advantage of on general de- murrer. Bank of Marietta v. Pindall, 2 Rand. 477. Profert need not be made of the assignment. Lease v. Box, 1 Wils. 121. If the declaration described the bond as given by the defendant to H. C. and by him assigned to the plaintiff, and upon the bond produced, it appears there was an assignment from H. C. to /. F. which has been Declarations in debt. 419 stricken out except the signature of H. C. above which is endorsed the assignment to the plaintiff, the bond, notwithstanding the appearance of the prior assignment, will be considered as answering the description contained in the declaration. Drummond v. Crutcher, 2 Wash. 218. Although the assignment be stated in the declaration to be for value received, yet it is not necessary for the plaintiff, after proving the assign- ment, to shew by other evidence that the same was made for value. Wilson v. Codman's ex'or, 3 Cranch 193. T. C. B. assignee of H. L. C., who was assignee of S. T. W., complains of J. R. C. being in custody &c., of a plea that he render to the said plaintiff' the sum of $ 85 with legal interest thereon from the first day of January 1834 which to the said plaintiff he owes, and from him unjustly detains. And there- upon the said plaintiff saith that heretofore, to wit, on &c. at &c. the said /. R. C. by his certain writing obligatory, sealed with his seal, and to the court now here shewn, the date whereof is the day and year last aforesaid, promised to pay or cause to be paid to the said S. T. W., or his assigns, on or before the first day of August next ensuing the date of the said writing obligatory, the just sum of $85 with interest thereon from the first day of January 1834. And the said plaintiff saith that after the making of the said writing obligatory, to wit, on the said 16th day of January 1834, at the said county of H., the said S. T. W. made an endorsement on the said writing obligatory, and subscribed his name thereto, and thereby the said S. T. W. as- signed the said writing obligatory to the said H. L. C. for value received ; whereof the said /. R. C., then and there, had notice ; and after the said assignment, to wit, on the 29th day of June 1834, at the said county of H., the said H. L. C. made an en- dorsement on the said writing obligatory, and subscribed his name thereto, and thereby assigned the said writing obligatory to the said plaintiff, for value received ; whereof the said J. R. C., then and there, also had notice. And the plaintiff avers that the said J. R. C., although thereunto often requested, hath not, as yet, paid, or caused to be paid, the said sum of $85 with lawful interest thereon as aforesaid, or any part thereof, either to the said S. T. W. before notice of his said assignment of the said writing obligatory, or to the said H. L. C. after the said as- signment to him of the said writing obligatory, and before notice of his assignment thereof to the plaintiff, or to the said plaintiff since the said assignment to him, but tb pay the same, and every part thereof, hath hitherto wholly refused, and still doth refuse, to the damage &c. (as in No. 1.) 420 Declarations in debt. Another. J. B. W. assignee of J. L. M. who was assignee of T. P. com- plains of A. L. B. who, being a member of the council of state, has been duly summoned, and R. A. who is in custody &c. of a plea that they the said A. L. B. and R. A. render to the said plaintiff the sum of two hundred and eighty-five dollars, which to the said plaintiff they owe, and from him unjustly detain. And thereupon the said plaintiff saith that heretofore, to wit, on &c. at &c. the said A. L. B. and R. A. by their certain writing obligatory, sealed with their seals, and to the court now here shewn, the date whereof is the day and year aforesaid, acknow- ledged themselves to be held and firmly bound unto the said T. P. in the just and full sum of two hundred and eighty-five dollars above demanded, to be paid unto the said T. P. or his assigns ; which said writing obligatory was and is subject to a certain condition thereunder written, to the effect following, to wit, that if the said A. L. B. should well and truly pay, or cause to be paid, on or before the first day of January 1829, unto the said T. P. or his assigns, the just sum of one hundred and forty-two dollars and fifty cents, then the said obligation was to be void, or else to remain in full force and virtue. And the said plain- tiff further saith that after the making of the said writing obli- gatory, to wit, on &c. at &c. the said T. P. made an endorsement on the said writing obligatory and subscribed his name thereto, and by the said endorsement assigned the said writing obliga- tory to the said J. L. M., whereof the said A. L. B. and R. A. then and there, had notice ; and after the last mentioned assign- ment, to wit, on &c. at &c. the said J. L. M. made his endorse- ment on the said wriling obligatory and subscribed his name thereto, and by his said endorsement duly assigned the said writing obligatory to the plaintiff, whereof the said A. L. B. and R. A. then and there, also had notice. And the said plaintiff further saith that the said A. L. B. although thereunto often re- quested, hath not as yet paid, or caused to be paid, the said sum of one hundred and forty-two dollars and fifty cents either to the said T. P. before notice of his said assignment of the said writing obligatory, or to the said J. L. M. after the said assign- ment to him of the said writing obligatory, and before notice of his assignment thereof to the plaintiff, or to the said plaintiff since the said assignment to him of the said writing obligatory. By means of which said premises, and by force of the act of assembly in such case made and provided, action hath accrued to demand and have of and from the said A. L. B. and R. A. the said sum of two hundred and eighty-five dollars above de- manded. ^Nevertheless the said A. L. B. and R. A., although Declarations in debt. 421 often requested so to do, have not, nor hath either of them as yet paid the said sum above demanded or any part thereof, either to the said T. P. before notice of the assignment aforesaid by the said P. of the said writing obligatory, or to the said J. L. M. after the assignment last mentioned, and before notice of the assignment aforesaid by the said M. of the said writing obliga- tory, or to the said plaintiff since the assignment of the said writing obligatory to him the said plaintiff: but to pay the same they have, and each of them hath, hitherto wholly refused ; and they do, and each of them doth, still refuse, to the damage &c. (as in No. 1.) 15. In the name of obligee or payee for benefit of assignee. Gar- land v. Richeson, 4 Rand. 266. 1 Rob. Prac. 47. In cases of assignment, it is the settled law that if, before the as- signee of a bond takes it, he applies to the obligor, informs him of his design to buy, and receives assurances that there is no objection to the bond and that it will be duly paid, the obligor cannot afterwards set up against the assignee the defence of payment or illegal consideration. Tucker, P. in Davis's adm'r v. TJiomas fyc. 5 Leigh 4. The case of Davis's adm'r v. Thomas fyc. was an action of debt on a promissory note, brought by Thomas, suing for the benefit of M. Davis against T. Davis, to which nil debet was pleaded. The defendant hav- ing adduced evidence to prove that the debt had been paid to the plain- tiff Thomas, evidence was adduced on the other side to prove, that be- fore the note was transferred by Thomas to M. Davis, T. Davis, the maker of the note, promised to pay the debt to M. Davis. The court of appeals was of opinion that it was competent to the plaintiff 1 , to move the court to instruct the jury if they believed the evidence of the pro- mise to pay was true, to disregard the evidence of payment to the plain- tiff; for if the former evidence was true, the defendant had no right to introduce the latter in support of his plea. 16. Of bills of exchange generally. I Rob. Prac. 47, 8, 9. How DRAWN, ACCEPTED OR ENDORSED. A party may be bound by writing his name on a blank piece of paper. His signature given in blank, with authority to fill up a bill or note, is a letter of credit to any amount ; and it is immaterial that the person taking the bill or note on the credit of his name, knew that the signature was obtained first, and the bill or note drawn afterwards. See opinion of Coalter, J. in Ben- nett v. Maule's adm'x, Gilm. 313. and opinion of Brooke, J. in Taylor, adm'r of Holloway v. Bruce, Gilm. 81. In Schultz v. Astley, 2 Bingh. N. C. 544. 29 Eng. Com. Law Rep. 414. the defendant wrote across several slips of paper, the words, " ac- cepted, payable at messrs. Praed's Sf Co. J. Astley," and delivered the slips of paper to John M. Hart. Afterwards, P. Clissold put his name to two of these papers in the places where the name of a drawer 422 Declarations in debt. and endorser of a bill of exchange ought to appear ; and subsequently, these two papers were filled up as bills of exchange for .500. each. It was objected that the giving a blank acceptance authorized only the party to whom it was given to draw the bill; or at all events, that it did not authorize Clissold, a stranger, to sign his name on the same blank piece of paper as drawer, the bill itself being subsequently written upon the paper by some other person. But the objection was overruled. Tindal, C. J. who delivered the opinion of the court, said, " the court could not see any distinction in principle where the bill has passed into the hands of third persons, between holding the acceptor liable for a given amount, when the bill is afterwards drawn in the name of the party who has obtained the acceptance, and when it is drawn by a stran- ger who becomes the drawer at the instance of the party to whom the acceptance is given. The blank acceptance is an acceptance of the bill which is afterwards put upon it ; and it seems to follow from the doctrine of lord Mansfield in Russell v. Langstajfe, Doug. 514. that it does not lie in the mouth of the acceptor to say, that the drawing or endorsing of the bill is irregular." In Robertson fyc. v. Williams 8fc. 5 Munf. 381. the note was origi- nally signed in blank, and endorsed in blank by the first endorser, and was sent to the second endorser to be filled up for a given sum, and dis- counted at bank for the accommodation of the maker. The second en- dorser having failed to obtain the desired accommodation, filled up the note with a larger amount than was intended, then obtained a third en- dorser upon it and got a broker to discount the note for his own use. The note was protested as to the drawer and two first endorsers and was retired from bank by the third endorser. He had endorsed it without consideration, paid the full amount of the note when he retired it from bank, and had no knowledge of the fraud of the second endorser until after it was so retired. It was held, that he might recover against the drawer and previous endorsers. OF THE ENDORSEMENT, WHETHER GENERAL OR SPECIAL. Where, by the endorsement of the payee, the note is made payable to an endorsee, or his order, and afterwards a greater negotiability is given to it, by a blank endorsement of the endorsee, that negotiability may be again re- stricted by the special endorsement of another endorsee. And if such special endorsement be made, a person afterwards receiving the note is bound to shew that he comes within the authority comprised in it. He must deduce a title under that person, to whom, or to whose order, it is made payable by the special endorsement last mentioned. He cannot strike out such special endorsement, and claim a property in the note under the blank endorsement. Opinion of the court in Myers Sf son v. Friend 8f Scott, 1 Rand. 12. This rule prevails where the person receiving the note, subsequent to the special endorsement, had never any property in the note, prior to the special endorsement. It is otherwise if the note should get back to the same person who made the special endorsement. In that case, the right appertains to him to strike out the special endorsement which he made, and bring an action under the previous blank endorsement. Opi- nion of court in S. C. Declarations in debt. 423 Such was the opinion of the supreme court of the United States in the case of Dugan v. The United States, 3 Wheat. 182. That court after an examination of the cases on the subject, (which cannot all of them be reconciled,) was of opinion, that if any person who endorses a bill of exchange to another, whether for value or for the purpose of col- lection, shall come to the possession thereof again, he shall be regarded, unless the contrary appear in evidence, as the bona Jide holder and pro- prietor of such bill, and shall be entitled to recover, notwithstanding there may be on it one or more endorsements in full, subsequent to the one to him, /without producing any receipt or endorsement back from ei- ther of such endorsers, whose names he may strike from the bill or not, as he may think proper. That the nominal plaintiff who has possession of the bill or note en- dorsed in blank, is riot the real party in interest, is not permitted to be shewn by a defendant who has no legal or equitable defence to the bill or note, as against the real owner thereof. See opinion of Walworth, chancellor, in Morton v. Rogers, 14 Wend. 5SO. A blank endorsement is conclusive proof of the assent of the endor- ser, to transfer the note to the holder, if he elects to take it as a trans- fer. And the assent of the holder to treat the endorsement as a trans- fer, is proved as well by suing on it in his own name as by writing over it an assignment to himself. If, therefore, a judgment be rendered on behalf of the endorsee, and the note, being made a part of the record, shews that the endorsement was in blank, an appellate court will regard the objection as of no importance. Rees \. Conococheague bank, 5 Rand. 326. See also Hooe v. Wilson, 5 Call 61. and Evans v. Gee, 11 Peters 80. WANT OF CONSIDERATION. As between the immediate parties to a bill or negotiable note, and an immediate endorser and endorsee, such bill or note has no peculiar character, distinguishing it from any other con- tract. It is open to all objections to the consideration or want of con- sideration, and all set-offs and equities between those parties which would be available in other contracts, not founded on a deed. See opinion of Green, J. in Gilliat v. Lynch, 2 Leigh 503. But it is very different when a third party acquires an interest for value. The endorsee of a negotiable note will not be affected by any equity which the drawer may have against the other parties, if such endorsee be a bona Jide holder of the note for full and valuable consideration, with- out notice of the equity, and took the note in a due course of trade. Lomax v. Picot, 2 Rand. 247. M'Neil Sfc. v. Baird, 6 Munf. 316. That the endorsee purchased with notice of the consideration for which the note was given, and that, after the purchase, the consideration failed, will not constitute the endorsee a holder with notice of the equity. Lomax \. Picot, 2 Rand. 247. And every negotiable security endorsed before it is payable, with intent to make it the absolute property of the endorsee, is endorsed in the due course of trade. Opinion of Green, J. in S. C. 260. The endorsement of a negotiable security prima facie imports an as- signment for full and valuable consideration. Green, J. in S. C. 259. As a general rule, therefore, even where there is a failure of conside- ration, or other equitable defence, as between the defendant and the 424 Declarations in debt. drawee or payee of the bill or note, or his immediate endorsee, it is not incumbent upon the plaintiff to prove when, or upon what consideration, the bill or note, upon which the suit is brought, was transferred to him, or how it came into his hands. The defendant however, may, in such cases, shew by testimony, the want of consideration, as between him and the immediate party with whom he contracted, and that the suit is brought for his benefit; or that the plaintiff received the bill or note, with a knowledge of the defendant's equitable rights in relation to the same, or under such circumstances that he cannot be considered the bona fide holder thereof. Opinion of Walworth, chancellor, in Morton v. Rogers, 14 Wend. 580, 81. In the case of Heath v. Sansom and Evans, 2 Barn. &- Ad. 291. 22 Eng. Com. Law Rep. 78. Littledale, J. lays it down " as a general rule, that if the note or acceptance were taken under such circumstances that the endorser himself could not recover, the endorsee must prove that he became. so for a good consideration ;" and Patteson, J. expresses a similar opinion. But lord Tenterden, C. J. founds his judgment in that case upon the particular circumstances of it, and so does Parke, J. He says, " I am of the same opinion on the special circumstances of the case, but I have always understood that an endorsement must be taken, prima facie, to have been given for value, and that the proof, at least of circumstances tending to throw suspicion on such endorsement, lies on the party disputing its validity, before the endorsee can be called upon to prove that he gave value for the bill. This doctrine appears to me to be correctly laid down by Eyre, C. J. in Collins v. Martin, 1 B. &. P. 648." " When," says Parlcc, J. " the note or acceptance has been obtained by felony, by fraud, or by duress, it has been usual to require proof of valuable consideration on the part of the endorsee ; and I do not dispute the propriety of that usage, as any one of these facts raises some suspi- cion of the title of the holder. But I am by no means satisfied that the same rule can be applied to all cases where an acceptance or note has been given without consideration." In the more recent case of Bramah fyc. v. Roberts fyc. 1 Bingh. N. C. 469. 27 Eng. Com. Law Rep. 460, all the judges concurred in the opinion that the third plea was bad. The action was by the endorsees against the acceptor, and the third plea was that the defendants were defrauded of the bill, and the acceptance was given by them without consideration. Tindal, C. J. in his opinion uses this language : " Inas- much as the endorsee of a bill of exchange is by law, prima facie, as- sumed to hold it for consideration ; inasmuch as we are not to presume a notice which would make him a fraudulent agent in taking a bill of exchange ; and inasmuch as this plea is silent upon the subject of want of consideration on the part of the endorsees, or of notice of the fraud, we are to ask ourselves whether upon the transfer of the bill of ex- change, the circumstance of the acceptor having been defrauded at the time when he gave the acceptance, is an answer against an innocent en- dorsee for a valuable consideration without notice. It seems to me that it is not a sufficient answer." Other late cases are referred to by chancellor Walworth, in Morton v. Rogers, conforming to the opinion of Parke, J. The conclusion de- Declarations in debt. 425 duced by the chancellor is that when the defendant shews upon the trial that the instrument on which the suit is brought, was lost or stolen, or that it was obtained from him either fraudulently or by force, or that it has been obtained by force or fraud from any previous holder, and put in circulation without the consent of the owner, the defendant, upon the proof of those circumstances, may require the plaintiff to shew that the note or bill came into his hands, or into the hands of some other per- son, from whom he rightfully received the same, for a good considera- tion, before it was due and dishonoured, and in the usual course of trade or business. CONSIDERATION WHICH MAKES THE PAPER ILLEGAL AND VOID. Where a statute has declared certain acts and things illegal, and that all contracts, securities &c. founded on them shall be void, as for instance the statutes against usury and gaming ; in these cases, the original taint adheres to the paper in whosesoever hands it may come. It is void, and the defence may be set up in Virginia as well against the innocent holder as the usurer or gambler himself. See opinion of Carr, J. in Taylor v. Beck, 3 Rand. 323. In like manner, although a note be valid as between the maker and the payee, yet if the payee endorse it for a usurious conside- ration, no title passes by the endorsement, and no action can be main- tained by the endorsee against the maker. Opinions of the judges in Whitworth v. Adams, 5 Rand. 333. In England, a change has been made by the stat. 5 & 6 W. 4. ch. 41. 1. After reciting that securities and instruments made void by virtue of the several acts therein mentioned, are sometimes endorsed, transferred, assigned or conveyed to purchasers or other persons for a valuable consideration, without notice of the original consideration for which such securities or instruments were given, and that the avoidance of such securities or instruments in the hands of such purchasers or other persons, is often attended with great hardship, the statute enacts that so much of the acts therein mentioned as enacts that any note, bill or mortgage shall be absolutely void, is thereby repealed ; but neverthe- less every note, bill or mortgage which, if this statute had not passed, would, by virtue of the acts therein mentioned, or any of them, have been absolutely void, shall be deemed and taken to have been made, drawn, accepted, given or executed for an illegal consideration, and the said acts shall have the same force and effect which they would respec- tively have had, if instead of enacting that any such note, bill or mort- gage should be absolutely void, such acts had respectively provided that every such note, bill or mortgage should be deemed and taken to have been made, drawn, accepted, given or executed for an illegal considera- tion. See the statute in 33 Eng. Com. Law Rep. 250. WHAT is DEEMED A FOREIGN BILL. It has been a question whether a bill drawn in one state of the Union upon a person living in another, was to be treated as a foreign or an inland bill. It has been adjudged by the supreme court of New York, that such a bill is a foreign bill. Halliday v. M'Dougall fyc. 20 Wend. 81. And the decisions of the supreme court of the United States are the same way. Buckner v. Finley Sfc. 2 Peters 586. Bank of the United States v. Daniel fyc. 12 Peters 32. It is difficult, says judge Washington, (in delivering the opinion of the supreme court,) to understand upon what principle, bills of exchange 54 426 Declarations in debt. drawn in one state upon another state can be considered as inland, " un- less in a state where they are declared to be such by a statute of that state." 2 Peters 592. By the statute of Virginia, it is enacted " that all bills of exchange or drafts for money in the nature of bills of exchange drawn by any per- son or persons residing in this state, on any person or persons in the United States, or in the territories thereof, or in the district of Columbia, shall be considered, in all cases whatsoever, as inland bills of exchange." 1 R. C, 1819, p. 483.-$ 1. But a bill of exchange drawn in another state on a house in Virginia, is a foreign bill, unless the law of the state in which the bill is drawn has expressly enacted otherwise. Brown <^* Sons \. Fergtison, 4 Leigh 37. WHETHER PRESENTMENT FOR ACCEPTANCE is NECESSARY. Bills of exchange payable at a given time after date, need not be presented for acceptance at all ; and payment may at once be demanded at their ma- turity. Story, J. in Townsley v. Sumrall, 2 Peters 178, 9. IF ACCEPTANCE BE REFUSED, NOTICE OF DISHONOUR NECESSARY. If a bill be presented and acceptance be refused, it is dishonoured ; and no- tice must be given. Marshall, C. J. in The Bank of Washington v. Triplett Sf Neale, 1 Peters 35. IN CASE OF FOREIGN BILL, PROTEST AND NOTICE BOTH NECESSARY. When a foreign bill is presented to the drawees for acceptance, and they refuse to accept, it is necessary, in order to entitle the holder to recover against the drawer or endorser, that there should be not only a notice of but also a protest for non-acceptance. Thompson v. Gumming, 2 Leigh 321. Contra, Brown v. Barry, 3 Dall. 365. Clarke v. Russell, id. 415. Wilson v. Lenox, 1 Cranch 193. And therefore where a bill is payable sixty days after sight, and, upon sight thereof, the drawees refuse to accept, although at the expiration of the sixty days it should be again presented for payment and payment should be refused, and there should then be protest for non-payment and notice thereof, this will not be suf- ficient to charge the endorser. Proof that the bill was duly protested for non-acceptance, and that the endorser had notice thereof, is indispen- sable. Thompson v. Camming, 2 Leigh 321. BY WHOM PRESENTMENT FOR ACCEPTANCE MAY BE MADE. A mo- tion was made to the court in Nelson v. Fatter all, 7 Leigh 179. to in- struct the jury that the notarial presentment of a foreign bill of ex- change for acceptance, and the notarial demand of acceptance of such a bill, must be made by the notary in person, and that the presentment thereof, or demand of acceptance, made by a clerk, is not sufficient to authorize the notary to protest the bill for non-acceptance, he having personally neither seen nor sought for the drawee. But the court re- fused to give the instruction so asked. In the court of appeals, judge Cabell expressed the opinion that the court below erred in refusing to give the instruction. But judge Brockenbrough thought it was properly re- fused, and so did the president. " It is proved," he says, " that there is a custom at Liverpool that bills may be demanded by a notary's clerk. I do not see why this may not be, at least, with this obvious qualification, that though the notary's authorized clerk may present the bill for ac- ceptance, and though the refusal to pay him upon demand may justify a protest by the notary, yet the notary's certificate is, in such case, no evi- Declarations in debt. 427 dence whatever of the facts of presentment and refusal, but they must be proved by the oaths of witnesses as other facts are." To WHOM PRESENTMENT FOR ACCEPTANCE MUST BE MADE. To JUS- tify the protest of a bill for non-acceptance, the presentment for accept- ance should be to the drawee, or his authorized agent. In Nelson v. Fotterall, 7 Leigh 179. the protest exhibited by the plaintiff, as proof of the presentment and dishonour of the bill, stated that the presentment was made to a clerk in the counting house of the drawee and that he re- fused to accept it. The president and judge Cabcll were of opinion, that the defendant was entitled to an instruction that such a presentment was not sufficient to justify a protest, unless the clerk was authorized to accept or refuse. AT WHAT TIME PROTEST FOR NON-ACCEPTANCE MUST BE MADE. It was insisted in Nelson v. Fotterall, 7 Leigh 179, that it was the duty of the holders of the bill at Liverpool, on tuesday the 27th of March 1827, when the drawee refused acceptance of the same, to put it in the hands of a notary public for protest, without waiting till the next day ; unless prevented by inevitable accident. It appeared in the case that fruitless attempts were made by the clerk of the holder to find the drawee at his counting room on Saturday the 24th of March, (the very day when the bill arrived in Liverpool,) and on monday the 26th ; that on the 27th, diligent search was made by the holder himself at the ex- change, the brokers' offices, and the news room, at which places the drawee did most of the little business which he transacted ; and that, in consequence of these searches and enquiries, the drawee at length made his appearance at the house of the holder, when the bill was presented to him and he refused to accept. The protest for non-acceptance was on the 28th of March 1827. It was the opinion of the circuit court that the evidence ought to be submitted to the jury for them to deter- mine, whether the business hours of the day, on which acceptance of the bill was refused, had not then elapsed, or so nearly elapsed that the bill could not be put in the hands of the notary on that day within the business hours thereof, and, if the fact was so, that the protest of said bill on the day following, was legal and regular. This opinion was sus- tained by the court of appeals. UPON REFUSAL TO ACCEPT, RIGHT TO SUE DRAWER OR ENDORSER. A refusal to accept is a breach of the contract of the drawer, and upon such refusal a right of action accrues to the payee or endorsee against the drawer, although the time limited by the bill, for its payment, may not have arrived. Evans v. Gee, 11 Peters 80. Every endorser is upon the same footing with the drawer. S. C. DRAWEE LIABLE ALSO, IF HE HAD PROMISED TO ACCEPT. In the case of Coolidge and others v. Payson and others, 2 Wheat. 66. the su- preme court of the United States, upon a review of the cases, came to the conclusion that a letter written within a reasonable time before or after the date of a bill of exchange, describing it in terms not to be mistaken, and promising to accept it, is, if shewn to the person who af- terwards takes the bill on the credit of the letter, a virtual acceptance binding the person who makes the promise. The cases of Schimmelpennick Sfc. v. Bayard Sfc. 1 Peters 285. and Boyce fyc. v. Edwards, 4 Peters 111. were considered not to be brought 423 Declarations in debt. within this rule. In the last case the letter did not describe any parti- cular bill in terms not to be mistaken. And it had no reference what- ever to the particular bill on which the action was brought. The court therefore held, that the action on the bill, as an accepted, bill could not be sustained. At the same time, the opinion was expressed that the evi- dence was very strong to sustain an action upon a count framed on the breach of the promise to accept. DEMAND AT PLACE OF PAYMENT NOT NECESSARY TO CHARGE AC- CEPTOR OF BILL OR MAKER OF NOTE. When a promissory note, or a bill of exchange, is payable at a particular place, it is necessary in Eng- land, to aver, and prove, a presentment at the place, though the action be against the maker or acceptor. Rowe v. Young, 2 Brod. &- Bingh. 165. 6 Bug. Com. Law Rep. 58. 2 Bligh. O. S. 391. Benson v. White, 4 Dow. 334. Williams v. Waring, 10 Barn. &, Cress. 21. 21 Eng. Com. Law Rep. 1. Gibb v. Mather Sfc. 21 Eng. Com. Law Rep. 277. But in the United States, it is settled otherwise. The decisions of the courts of the different states, were reviewed by the supreme court of the Uni- ted States, at January term 1839, in the case of Wallace v. M'Connell, 13 Peters 136. Those decisions appearing to be uniform that in an ac- tion on a promissory note or bill of exchange, where the suit is against the maker in the one case, or against the acceptor in the other, it is not necessary to aver, or prove, a presentment at the place; the supreme court thought it would be inexpedient to change the rule, even if the grounds upon which it was established had been deemed questionable, which however it did not mean to intimate. In November 1839, the question was before the court of appeals of Virginia, in the case of Armistead v. Armistead, not yet reported, and the decision was the same way. BUT NECESSARY TO CHARGE ENDORSER. When the suit is against the endorser of a note made payable at a particular place, it is neces- sary to charge him, that there should be presentment at the time and place, and payment then and there demanded. Watlcins v. Crouch Sf Co. 5 Leigh 522. No formal demand is, however, necessary for payment of a note pay- able at a particular bank, when the bank is itself the holder of the note, and the note is in the bank when it becomes due. Bank of the United States v. Carneal, 2 Peters 542. WHEN DEMAND MUST BE MADE. The allowance of days of grace, is a usage, which pervades the whole commercial world. It is now uni- versally understood to enter into every bill or note, of a mercantile cha- racter, and to form so completely a part of the contract, that the bill does not become due, in fact, or in law, on the day mentioned on its face, but on the last day of grace. A demand of payment previous to that day, will not authorize a protest, or charge the drawer of the bill. Marshall C. J. delivering opinion of court in The Bank of Washing- ton v. Triplett Sf Neale, 1 Peters 31. According to the general rules of law, the third day after that men- tioned in the bill or note as the day on which it becomes payable, is the last day of grace, unless the third day be a day on which either the law or custom has established " that no money is to be paid ;" and then the second is the last day of grace. The same custom of merchants, which, Declarations in debt. 429 as a general rule, allows three days of grace to the debtor, has limited that indulgence to two days in those cases where the third is not a day for the transaction of business. Opinion of court in Softer v. Burt, 20 Wend. 206. In Jackson v. Richards, 2 Caines's Rep. 343. the third day was sun- day and the demand was not made till monday. The opinion of the court was that where the third day is sunday, demand must be made on the second day. In Lewis v. Burr, 2 Caines's Cas. 195. the third day was the fourth of July. The jurors found that the fourth of July in each year is the anniversary day of the declaration of the independence of these United States, and for that reason is in practice, though not by law, generally observed by the citizens of the state of New York, as a public festival ; and also that some time in the month of May 1784, upon the institution of the bank of New York, which does no business on any fourth day of July, it became, and since continually has been, and still is, a general practice and usage, in the city of New York, for the holder of a pro- missory note, made by one person and endorsed by another, if the same become payable (allowing three days of grace) on the 4th day of July, in any year, to demand payment from the maker of such note, of the sum therein mentioned, on the 3d day of the same July, and if he refuse to pay the same, or if he- cannot be found, to the end that payment may be demanded of him, and if the said holder shall be minded to look to the said endorser for payment of the said note ; then forthwith, that is to say, on the same 3d day of July, to give notice to the said endorser, of such refusal to pay the sum mentioned in the said note, or that the maker thereof cannot be found, to the end that payment may be de- manded of him, and also that it is the intention of the said holder to look to the said endorser for the payment of the said sum. The su- preme court of Neic York held that the custom found by the jury was to prevail and the contract be governed by it. There may be a settled usage at a particular bank, or in a particular place, to demand payment on a later day than the third ; and when such usage is ascertained to exist, it will be respected. In Renner v. The Bank of Columbia, 9 Wheat. 581. the supreme court of the United States decided that where a note is made for the purpose of being negotiated at a bank, whose custom, known to the par- ties, it is to demand payment and give notice on the fourth day of grace, that custom forms a part of the law of such contract, at least so far as to bind their rights. Upon the principles and reasoning of that case, the same court in Mills v. The Bank of the United States, 11 Wheat. 438. came to the conclusion that when a note is made payable or negotiable at a bank whose invariable usage it is, to demand payment and give notice on the fourth day of grace, the parties are bound by that usage, whether they have a personal knowledge of it or not. In the case of such a note, the parties are presumed by implication to agree to be governed by the usage of the bank at which they have chosen to make the security itself negotiable. In the case of The Bank of Washington v. Triplett <$ Neale, 1 Pe- ters 25. the question was as to a bill drawn at Alexandria on a person 430 Declarations in debt. residing at Washington, and the opinion of the court was as follows : " The usage of the place on which the bill is drawn, or where payment is to be demanded, uniformly regulates the number of days of grace which must be allowed. This bill being drawn on a person residing in Washington, and being protested for non-payment in the same place, is, according to the law merchant, to be governed by the usage of Wash- ington," In an action upon a bill or note, the payment of which has been de- manded on the fourth day, it is advisable to allege the usage in the de- claration. In Jackson's adm'r v. Henderson Sfc. 3 Leigh 196. it was al- leged that when the bill became due and payable according to the tenour and effect thereof, it was presented for payment and payment demanded, but the acceptor failed to make payment, by means whereof the defen- dant (who was an endorser) became liable to pay, according to the usage and custom of merchants. At the trial it appeared that the bill was pre- sented, and demand of payment made, on the 27th of December 1816, which was the fourth day after the expiration of the 180 days limited in the bill for payment. The defendant moved the court to instruct the jury that the said 180 days, and three days of grace, having expired be- fore the 27th of December, the demand then made, was not a good and sufficient demand of the bill and for want of a good and sufficient de- mand, the defendant was discharged from liability on his endorsement. The circuit court refused this instruction. But the court of appeals held that it ought to have been given. Tucker, P. said, " The scilicet, being rejected,* the declaration states the case of a presentment ' when the bill became due and payable, that is, on the third day of grace ; for, as no custom is stated, the general law merchant must be intended ; and as the evidence proved the presentment on the fourth day instead of the third, it neither supported the declaration, nor shewed a cause of action." PROTEST OF FOREIGN BILL, EVIDENCE OF DISHONOUR. In the case of Totonslcy v. Sumrall, 2 Peters 170. the bill was drawn in Kentucky and payable at Neio Orleans in Louisiana. It was argued that this was an inland bill, and that a notarial protest was not, in such case, evidence of dishonour. But it was decided otherwise. The court say " that by the general custom of merchants in the United States, bills of exchange drawn in one state on another state are, if dishonoured, protested by a notary; and the production of such protest is the customary document of the dishonour. It is a practice founded in general convenience, and has been adopted for the same reasons which apply to foreign bills in the strictest sense." In Halliday v. M'Dougall fyc. 20 Wend. 81. the drawers and drawees residing in different states of the Union, the bill was regarded as a fo- reign bill, and the protest of the notary was considered to prove itself. What it contained as to the presentment and refusal was received as true. Though the protest of a foreign bill, under a notarial seal, is evidence of dishonour, yet the facts which it states in relation to the dishonour may nevertheless be controverted by other evidence. The protest is * See the decision on that point stated ante, p. 402, 3. Declarations in debt. 431 only prima facie evidence of such facts, not conclusive. Nelson \. Foiterall, 7 Leigh 180. DUE NOTICE OF DISHONOUR NECESSARY TO CHARGE ENDORSER OF NOTE OR DRAWER OR ENDORSER OF A BILL. If the holder fail to give due notice of dishonour to the drawer or endorsers of a bill, or the en- dorsers of a negotiable note, his laches will operate to discharge them from responsibility. Wood v. Carr's ex'ors, 1 Call 232. Turner v. Leech, 4 Barn. & Aid. 451. 6 Eng. Com. Law Rep. 484. Whether there has been due notice of dishonour, is a question which often arises. Many decisions on the subject are referred to by mr. jus- tice Baldwin, in his opinion in the late case of Dickens v. Seal, 10 Pe- ters 57'2. How SOON NOTICE is TO BE GIVEN. The general rule is, that each party must give notice of dishonour as soon as he reasonably can ; and this reasonable time is a question of law depending upon the circum- stances of each case. Carr, J. in Brown fy Sons v. Ferguson, 4 Leigh 50. It has been contended that notice could not be given on the same day that the bill or note became due, upon the ground that the acceptor or maker had the whole day to make payment. But it was settled other- wise, in the two following cases. In Bussard v. Levering, 6 Wheat. 102. the defendant was sued as drawer of an inland bill, payable at Baltimore. Evidence was given that after bank hours, on Saturday the fifth of April 1817, being the se- cond day of grace after the said bill became due, the same was presented by a notary to the acceptor for payment, and, not being paid, was duly protested. On the same day written notice was sent by the mail to the defendant, residing at Georgetown, D. C. notifying him of the non-pay- ment and protest of the bill. And it was shewn that such protest and notice, on the second day of grace, under those circumstances, was con- formable to the general usage in Baltimore. The supreme court of the United States was unanimously of opinion that by the general law mer- chant, notice of non-payment given to the drawer on the last day of grace after a demand upon the acceptor on the same day (and Saturday in this case was the last day of grace, the next day being Sunday), was sufficient to charge the drawer : and that the notice in this case given to the drawer by putting the same into the post office, was good. In Lindenberger fyc. v. Beall, 6 Wheat. 104. the defendant was sued as endorser of a negotiable note, and evidence was given by the notary that the note was by him demanded of the drawer on the third day of grace, and, not being paid, notice of the non-payment was enclosed in a letter addressed to the defendant at the city of Washington, and put into the post office at Georgetown. The supreme court was unanimously of opinion that after demand of the maker on the third day of grace, notice to the endorser on the same day was sufficient by the general law mer- chant ; and that evidence of the letter, containing notice, having been put into the post office, directed to the defendant at his place of resi- dence, was sufficient proof of the notice to be left to the jury, and that it was unnecessary to give notice to the defendant to produce the letter before such evidence could be admitted. These decisions only shew that notice may be given on the last day of grace ; not that it must be given on that day. 432 Declarations in debt. It is sufficient to give notice the next day, to a party living in the same town, or to send notice by the mail of the next day, to a party living elsewhere. Darbeshire fyc. v. Parker, 6 East 3. Lenox fyc. v. Ro- berts, 2 Wheat. 373. And if the next day be Sunday, notice may be given on monday or sent by monday'spost. So if the next day, instead of being sunday, be the fourth of July, the holder is excused from giving notice on that day, and may give it on the fifth. Cuyler v. Stevens, 4 Wend. 566. Each party, through whose hands the dishonoured bill may have passed, is allowed one entire day, for the purpose of giving notice. In Bray ffc. v. Hadwen, 5 M. & S. 68. it appeared that Glyn 6? Co. received notice at Launcetson on the morning of sunday the 17th, and put into the post on monday, a letter containing a notice, to the plaintiffs at Tavestock. But as the post left Launcetson at twelve at noon, and the letter was not put in until after twelve, it did not go from Launcetson till tuesday at twelve. The court of king's bench held that Glyn ^r Co. had the whole of monday to put their letter in the post, and that the notice was therefore good. In Hawkes fyc. v. Salter, 4 Bingh. 715. 15 Eng. Com. Law Rep. 125. it appeared that the bill was dishonoured at Norwich on Saturday ; that the post left Norwich for North Walsham, where the drawer lived, at half after nine in the morning ; and that no notice was sent by monday's post. Best, C. J. expressed himself clearly of opinion, that it would have been sufficient if the letter had been put into the post office before the mail started on the tuesday morning ; but there was no sufficient evidence that it had been put in, even on tuesday morning. In Geill v. Jeremy Sfc. 1 Mood. &, Malk. 61. 22 Eng. Com. Law Rep. 249. it appeared that the plaintiff received notice at nine o'clock in the morning of thursday ; that the post left the village where he resided at six that evening, and the mail bags were not made up at Charley (two miles off) till nine in the evening; but the plaintiff did not write by that post, and there being no post on friday, he did not write till Saturday. Lord Tenterden, C. J. said, " In these cases, it is of great importance to have a fixed rule, and not to resort to nice questions of the sufficiency, in each particular case, of a certain number of hours or minutes. The general rule is, that the party need not write on the very day that he re- ceives the notice. If there be no post on the following day, it makes no difference : the next day after the day on which he receives the no- tice is soon enough." Each party has a full day to give notice, but not so that the over dili- gence of one shall be made to supply the under diligence of another. Carr, J. in Brown Sf Sons v. Ferguson, 4 Leigh 50. In Brown fy Sons v. Ferguson, the bill was drawn at Baltimore, by Ferguson, on Foster fy Moore of Norfolk, in favour of M' Donald Sf Son of Baltimore, by whom it was endorsed. Brown Sf Sons of Bal- timore, being the holders, filled up the endorsement to W. tip J. Cum- mings of Petersburg, to whom they sent the bill for collection. W. f J. Gumming s endorsed it to Wilder, cashier of the bank of Virginia at Petersburg, who endorsed it to Williamson, cashier of the same bank at Norfolk. The facts found by the special verdict, in relation to no- tice, were substantially these : The bill was presented on the 3d April, Declarations in debt. 433 and returned to the bank at Norfolk on the 4th. By the next mail, which left Norfolk on the 5th, notice of the dishonour was forwarded to Witter, which reached him on the 7th. Thus far, all was regular. But the jury did not find when Wilder gave notice to W. $? J. Cummings, nor when they gave notice to Brown fy Sons. The fact was found that there was a daily mail from Petersburg to Baltimore, reaching the lat- ter place in about 45 hours, and that Brown fy Sons gave Ferguson no- tice on the 12th at Baltimore, saying, " Your draft &c. is this day re- turned under protest for non-payment." Hence it seemed correct to conclude that there must have been a delay of 24 hours more than there ought to have been, in the arrival of the notice at Baltimore : for Wil- der, receiving notice on the 7th, was bound to give it to W. fy J. Cum- mings on the 8th, and they ought t > have given it to Brown lip Sons by the mail of the 9th; which, if they had done, it would have reached Baltimore on the llth; whereas, no notice was in fact received by Brown fy Sons at Baltimore, till the 12th. Brown Sf Sons, it is true, gave immediate notice to Ferguson on the same day. Yet this over dili- gence on their part could not cure the want of due diligence in any of the parties standing before them. And Ferguson was held to be discharged. IN WHAT TERMS THE NOTICE IS TO BE EXPRESSED. In Mills V. The Bank of the United States, 11 Wheat. 431. the notice addressed to Mills was in these words : " Chilicothe, 22d of September 1819. Sir, you will hereby take notice that a note, drawn by Wood fy Ebert, dated 20th day of September 1819, for 3600 dollars, payable to you or order, in sixty days, at the office of discount and deposite of the bank of the United States at Chilicothe, and on which you are endorser, has been protested for non-payment and the holders thereof look to you. Yours respectfully, Levin Belt, mayor of Chilicothe. 1 ' The court below, charged the jury, first, that the notice was sufficient to charge the en- dorser, although it did not name the person who was holder of the note, nor state that a demand had been made at the bank when the note was due ; and secondly, that although the note in controversy was dated the 20th of July 1819, and was payable sixty days after date, yet if the jury should find that there was no other note payable in the office at Chilicothe, drawn by Wood 8f Ebert, and endorsed by defendant, ex- cept the note in controversy, the mistake in the date of the note, made by the notary, in the notice given to that defendant, did not impair the liability of the said defendant. In this opinion of the court below, the supreme court decided there was no error. In The Bank of the United States v. Carneal, 2 Peters 553. a sug- gestion was made at the bar, that a letter to the endorser, statino- the demand and dishonour of the note, is not sufficient, unless the party sending it also informs the endorser that he is looked to for payment. In the opinion of the court delivered by judge Story, it is said, " When such notice is sent by the holder, or by his order, it necessarily implies such a responsibility over. For what other purpose could it be sent? We know of no rule that requires any formal declaration to be made to this effect. It is sufficient, if it may be reasonably inferred from the nature of the notice." 55 434 Declarations in debt. The cases in the english courts, in which the language to be used in the notice has been a subject of consideration, have, most of them, oc- curred since these decisions of the supreme court. In Hartley v. Case, 4 Barn. &/ Cress. 339. 10 Eng. Com. Law Rep. 350. the action was by an endorsee against the drawer of a bill of ex- change, bearing date the 13th of April 1824, payable four months after date, accepted by JR. J. Case, the elder. To prove notice to the defen- dant of the dishonour of the bill, the plaintiff gave in evidence a letter from himself to the defendant, dated the 16th of August 1824, the day on which the bill became due, in these words : " I am desired to apply to you for the payment of the sum of 150. due to myself on a draft drawn by mr. Case on mr. Case, which I hope you will on receipt dis- charge, to prevent the necessity of law proceedings which otherwise will immediately take place." At the trial, the notice not being deemed sufficient, the plaintiff was non-suited. Afterwards a rule was obtained for setting aside the non-suit, on which occasion the judgment of the court of king's bench was delivered by Abbott, C. J. as follows : " There is no precise form of words necessary to be used in giving notice of the dishonour of a bill of exchange, but the language used must be such as to convey notice to the party what the bill is, and that payment of it has been refused by the acceptor. Here the letter in question did not con- vey to the defendant any such notice; it does not even say that the bill was ever accepted. We therefore think the notice was insufficient and the rule for a new trial must be discharged." Solarte Sfc. v. Palmer Sfc. was a suit by the assignees of an endorsee who became bankrupt against the endorser of a bill which was accepted and not paid at maturity. The plaintiffs caused to be written by messrs. J. <$f S. Pearce, their attorneys at law, the following letter to the defen- dants : " 17th Dec. 1825. Gent. A bill for 683. drawn by mr. Joseph Keats upon messrs. Daniel Jones Sf Co. and bearing your endorsement, has been put into our hands, by the assignees of J. R. Alzedo, with di- rections to take legal measures for the recovery thereof unless immedi- ately paid to, Gentlemen, Yours &,c. J. and S. Pearce." Addressed, " messrs. Palmer and JBouch." Which letter was on the said 17th of De- cember, by the directions and on behalf of the plaintiffs, sent to and re- ceived by the defendants. Lord Tenterden directed the jury that this letter was not sufficient notice of the dishonour and non-payment of the bill, and the court of exchequer chamber decided that the direction was proper, and affirmed the judgment which had been given for the defen- dants. Tindal, C. J. in delivering the judgment, said, " The notice should at least inform the party to whom it is addressed, either in ex- press terms or by necessary implication, that the bill has been disho- noured, and that the holder looks to him for payment of the amount. It is perfectly consistent with this letter that the bill has never been pre- sented at all and that the plaintiff means to rely upon some legal excuse for the non-presentment. It may not improbably have been written with a different intent than that of giving notice of the dishonour to the en- dorser, and may have been information that an action was about to be brought by the attorney, taking for granted that the notice of the bill's dishonour had been given in the ordinary way before the bill was put into his hands for the purpose of suing thereon. At all events, however Declarations in debt, 435 intended, it appears to us not to amount to such notice." See 7 Bingh. 530. 20 Eng. Com. Law Rep. 226. From this decision, in which the judges were unanimous, an appeal was taken to the house of lords, and the judges were there summoned to hear the argument. Williams, Holland, Alderson, Patteson, Taunton, Littledale, Vaughan, Gaselee and Park attended, and the question being put to them as to the sufficiency of the notice, their opinion deli- vered by Park, J. was unanimous against it. The following day, lord Brougham delivered the judgment of the house of lords affirming the judgment of the court of exchequer chamber. See 1 Bingh. N. C. 194. 27 Eng. Com. Law Rep. 351. 8 Bligh's Par. Cas. N. S. 874. The cases of Hartley v. Case and Solarte fyc. v. Palmer fyc. governed the decision in Boulton v. Welsh, 3 Bingh. N. C. 688. 32 Eng. Com. Law Rep. 283. cited ante, p. 118. where the notice was as follows : " 33 Northampton square, 22d October 1836. Sir, The promissory note for <200. drawn by Henry Hanley, dated the 18th July last, payable three months after date, and endorsed by you, became due yesterday and is returned to me unpaid. I therefore give you notice thereof and request you will let me have the amount thereof forthwith. W. J. Boul- ton." A verdict was taken for the plaintiff with leave for the defendant to move to enter a nonsuit, and a rule being obtained accordingly, the court of common pleas made it absolute. Tindal, C. J. said, " 1 do not see how it is possible to escape from the rule established by the two de- cided cases without resorting to such subtle distinctions as would make the rule itself useless in practice. Here the notice only states that the note became due and was returned unpaid. These facts are compatible with an entire omission to present the note to the maker." DRAWER OF BILL, HAVING NO EFFECTS IN DRAWEE'S HANDS, NOT DISCHARGED BY FAILURE TO MAKE PRESENTMENT OR GIVE NOTICE. Many cases establish that notice of dishonour, need not be given to a drawer who has no effects in the hands of the drawee. The rule and the modifications of it, are stated by mr. justice Baldwin in the opinion which he delivered in the case of Dickins v. Bcal, 10 Peters 577, 8. The reason assigned for this rule is, that the drawer, in such a case, is in no respect prejudiced by want of such notice, having no remedy against any other party on the bill. The reason equally applies to want of presentment for payment, since, if the bill were presented and paid by the drawee, the drawer would become indebted to him in the amount, instead of being indebted to the holder of the bill, and would be in no way benefitted by such presentment and payment. Terry fyc. v. Parker, 6 Ad. & E. 502. 33 Eng. Com. Law Rep. 129. NOR CAN OBJECTION OF WANT OF NOTICE BE MADE BY ENDORSER WHO DECEIVES HOLDER BY REPRESENTING BILL WILL BE ACCEPTED, WHEN HE KNOWS IT WILL NOT. It has been decided that an endorser who unites with the drawer to deceive the holder, by representing a bill as one that will probably be accepted, with a knowledge that it will not, is guilty of a fraud which deprives him of the right to insist upon notice. In the case of Tlie Farmers Bank v. Vanmeter, 4 Rand. 553. the endorser filed a bill stating that the bill of exchange was drawn and endorsed for the accommodation of the maker, for the purpose of procuring a discount at the bank ; and that there was no expectation that it would be paid by 436 Declarations in debt. the drawee ; and the answer of the bank, sworn to by the cashier, sta- ted that if these facts had been known, at the time of the discount, the bill would not have been discounted. The court was of opinion, that the transaction was such a fraud upon the bank that the endorser could not object the want of notice, either of non-acceptance or non- payment. BUT MERE KNOWLEDGE THAT BILL WILL NOT BE PAID, DOES NOT DIS- PENSE WITH NOTICE. But the mere knowledge of the drawer or endor- ser before the bill is payable, that it will not be paid, does not dispense with the necessity of notice of dishonour. Until such notice is re- ceived, the drawer or endorser is not to conclude that any resort will be had to him. It is reasonable that he should have notice that the holder designs to look to him, in order that he may have an opportunity of se- curing himself. Brown Sy Sons v. Ferguson, 4 Leigh 37. WHAT ACKNOWLEDGMENT is SUFFICIENT TO DISPENSE WITH OTHER PROOF OF NOTICE. In Walker v. Laverty and Gantley, 6 Munf. 487. the declaration was in debt against the drawer of a bill, and alleged pro- test and notice. At the trial, which was upon the general issue, the plaintiff introduced a witness who proved that he applied to the defen- dant for payment of the bill ; that the defendant acknowledged that the debt was a just one, and said he would pay it ; and that nothing was said in that conversation as to his waiving notice or not. The defendant moved the court to instruct the jury that unless the said acknowledg- ment was made with a knowledge of all the facts of the case as to laches of the holders of the said bill, the said evidence of the acknowledgment was not to be received ; which opinion the court refused to give, and in- structed the jury that such acknowledgment was a waiver of all notice. In the court of appeals, the judgment against the defendant was af- firmed. The court do not state the reasons or the authorities on which the judgment is founded, but judge Carr in his opinion in Pate v. M'Clure Sfc. 4 Rand. 170. refers to several cases which he considered sufficient to sustain the decision. In Thornton v. Wynn, 12 Wheat. 187. the supreme court of the United States proceed upon the ground that the promise to pay must be after full knowledge of all the circumstances necessary to apprise the party of his discharge from responsibility, by the laches of the holder. The evidence, in this case, was, that a few weeks before the institution of the suit, the note was presented to the endorser, who being informed that the maker had not paid the note, said he knew M. had not, and that M. was not to pay it ; that it was the concern of the defendant alone, and M. had nothing to do with it; that the note had been given for part of the purchase money of a certain race horse called Roller, and that the defendant offered to take up the said note if the plaintiff's agent would give him time and receive other notes mentioned in payment. This evidence was received as competent to support the action against the endorser, without any further proof of demand upon the maker or no- tice to the acceptor, and a verdict was found and judgment given there- upon for the plaintiff. But a bill of exceptions being taken to the opi- nion, the supreme court of the United States reversed the judgment, and remanded the cause for a new trial. Washington, J. delivering the Declarations in debt. 437 opinion of the court, said : "The declarations of the defendant amount to an unequivocal admission of the original liability of the defendant to pay the note, and nothing more. They do not necessarily admit the right of the holder to resort to him on the note, and that he had received no damage from the want of notice, unless the jury, to whom the con- clusion of the fact from the evidence ought to have been submitted, were satisfied that the defendant was also apprised of the laches of the holder, in not making a regular demand of payment of the note, by which he was discharged from his responsibility to pay it. The knowledge of this fact formed an indispensable part of the plaintiff's case, since, with- out it, it cannot fairly be inferred that the defendant intended to admit the right of the plaintiff to resort to him, if, in point of fact, he had been guilty of such laches as would discharge him in point of law. For any thing that appeared to the court below from the evidence stated in the bill of exceptions, the admissions of the defendant may have been made upon the presumption that the holder had done all that the law re- quired of him in order to charge the endorser. That due notice was not given to the defendant, he could not fail to know, but that a regular demand was made of the maker of the note, could not be inferred, by the court, from the admissions of the defendant." Mr. justice M' Lean, in his opinion in Raynolds fyc. v. Douglass fyc. 12 Peters 505. adverts to the preceding case and to some of the deci- sions of the english courts, but the more recent cases do not appear to have been noticed by him, and they will now be briefly adverted to. It is remarked by Mansfield, C. J. in Borradaile v. Lmce, 4 Taunt. 97. that in most of the cases, where the defendants have been held liable, they have either made an express promise to pay, or a promise when they had a full knowledge at the time that they were discharged, or where there was a real debt, binding in conscience, due from them. In- deed, in another part of his opinion, he says, he does not find any case, in which an endorser, after having been discharged by the laches of the holder, has been held liable upon his endorsement except where an ex- press promise to pay has been proved. In Hicks v. Beaufort, 4 Bingh. N. C. 229. 33 Eng. Com. Law Rep. 337. Tindal, C. J. says, " The cases go to this point only, that if after the dishonour of a bill, the drawer distinctly promises to pay, that is evi- dence from which it may be inferred he has received notice of the dis- honour ; because men are not prone to make admissions against them- selves; and therefore when the drawer promises to pay, it is to be pre- sumed he does so because he knows the acceptor has refused. Lundie \. Robertson, 7 East 231. goes no further than that. There, the defendant said, ' that he had not had regular notice, but as the debt was justly due he would pay it ;' and the jury having presumed, from these expressions, that he must have received notice of the dishonour, the court refused to interfere." The bill in the case of Hicks v. The Duke of Beaufort, was payable in December 1831. At the trial a witness stated that he called on the defendant, on the subject of the bill, in May 1832, when the defendant said, it was hard upon him as he had only drawn the bill for accommo- dation ; that if the acceptor did not pay, he must, but he desired the wit- ness would exhaust all his influence with the acceptor first. The witness '438 Declarations in debt. having then applied to the acceptor in vain, the defendant proposed to raise a sum of money by an annuity, on the life of the defendant and the acceptor, but the treaty was broken off and an action followed against the drawer. The judge left it to the jury to determine upon the evi- dence whether or not the defendant had received notice of the dishonour, and the jury found for the defendant. It was contended that the jury should have been directed, that if the witness were believed, the notice was to be regarded as proved or waived. But the court of common pleas did not consider there was such a distinct and unconditional pro- mise as to be conclusive upon the defendant that he had received notice of dishonour, and therefore refused to grant a new trial on the ground of misdirection. In Norris v. Salomonson, 4 Scott 257. 36 Eng. Com. Law Rep. 380. a witness deposed that in reply to an enquiry made by him of the drawer, as to whether or not he was aware of the bill having been dishonoured, the drawer said, " Yes : I have had a very civil letter on the subject from mr. G. (an intermediate endorser,) and / will call and arrange it." The jury returned a verdict for the plaintiff, and a motion was made to the court of common pleas for a new trial. Tindal, C. J. said, " The case seems to me to fall within those where a regular notice has been waived, or the proof of it at the trial dispensed with, by reason of the drawer's own conduct. The defendant admitted that he had received a notice of dishonour. The question having gone to the jury, I think we ought not to disturb their verdict." The rest of the court concurred. 17. Under the statute giving debt jointly against drawer and endorser of a foreign bill, protested for non-acceptance and non-payment. 1 Rob. Prac. 47. of a plea that they render to the plaintiffs the sum of ,2201. 14. 6. of sterling money of Great Britain,* with inte- rest at the rate of sis. per centum per annum on .2000. parcel of the said sum from the Sth day of February 1837, which, to the plaintiffs, the defendants owe, and from them unjustly detain. And thereupon the said plaintiffs say that heretofore, to wit, on &c. at the city of R. in Virginia, the said W.J.M. according to the custom of merchants in that behalf, made his certain bill of exchange in writing, the date whereof is the day and year last aforesaid, and subscribed thereto his name and style of &c., and then and there directed the said bill of exchange to W. O. and company, by the style and addition of messrs. W. O. fy Co. Liverpool, by which said bill of exchange the said W. J. M. then and there, required the said W. O. and company, sixty days after sight of that his first of exchange, (second and third of the same tenour and date not paid), to pay to the order of the said J. H. E. two thousand pounds sterling, in London, for $9600 current money, there, to wit, at R. aforesaid, received, and place the same to account of the said W. J. M. ; ant the Declarations in debt. 439 said W. J. M. then and there, to wit, on the same day and year last aforesaid, at R. aforesaid, delivered the said bill of ex- change to the said J. H. E. And the plaintiffs aver that the said places called and named in the said bill of exchange, Liverpool and London are not within the limits of the United States, or the territories thereof, or the district of Columbia, but are in foreign parts, to wit, in Great Britain aforesaid. And the said plain- tiffs further aver that, after the making of the said bill of ex- change as aforesaid, and before the same had been presented or shewn to the said W. O. and company, and also before payment of any part of the sum of money therein required to be paid, to wit, on the same day and year last aforesaid, at R. aforesaid, the said J. H. E. endorsed the said bill, and to that endorse- ment, subscribed his name and style of J. H. E. and then and there delivered the said bill, so endorsed, to the plaintiffs, and thereby, then and there, ordered and appointed the sum of ster- ling money specified in the said bill to be paid to the said plain- tiffs ; of which said endorsement and delivery the said W. J. M. afterwards, to wit, on the same day and year last aforesaid, at the city of R. aforesaid, had notice. And the plaintiffs further aver that the said bill of exchange, being still wholly unaccept- ed and unpaid, was after the said endorsement thereof, to wit, on &c. at Liverpool aforesaid, to wit, at the said city of R. duly presented and shewn, with the said endorsement thereon, to the said W. O. and company, for their acceptance thereof, according to the said custom of merchants, and the said W. O. and com- pany were, then and there, requested to accept the same, but that the said W. O. and company, then and there, wholly ne- glected and refused so to do, although the second and third bills of exchange, in the said first bill mentioned, were, then and there, wholly unaccepted and unpaid ; and thereupon, after- wards, to wit, on the same day arid year last aforesaid, at Li- verpool aforesaid, to wit, at the city of R. aforesaid, the said bill of exchange was duly protestedt for non-acceptance thereof, ac- cording to the said custom of merchants, the notarial charges of which said protest amount to 17 shillings and 6 pence sterling money aforesaid ; of all which premises, and especially of the said protest, the said defendants afterwards, to wit, on the day of January 1837, in the city of R. aforesaid, had due no- lice.| And the said plaintiffs further say that the said bill of ex- change was afterwards, when the same became payable, ac- cording to the tenour and effect thereof, to wit, on the 8th day of February 1837, at Liverpool aforesaid, to wit, in the city of R. aforesaid (the said bill, as well as the said second and third^ bills therein mentioned, then and there, being still wholly unac- cepted and unpaid), duly presented and shewn to the said W. 440 Declarations in debt. O. and company, for payment thereof, according to -the said custom of merchants, and the said W. O. and company were, then and there, required to pay the said sum of ,2000. sterling, specified in the said bill, according to the tenour and effect of the same, and of the said endorsement thereof, but the said W. O. and company did not, nor did or would the said defendants, or either of them, or any person or persons on behalf of the said defendants, or either of them, at the time when the said bill was so presented, and shewn for payment, as aforesaid, or at any other lime whatever, pay the said sum of ,2000. sterling, spe- cified in the said bill, or any part of the said sum last mention- ed, but, then and there, wholly neglected and refused so to do ; and thereupon the said bill was afterwards, to wit, on the same day and year last aforesaid, at Liverpool aforesaid, to wit, at the city of R. aforesaid, duly protested, for non-payment thereof, according to the said custom of merchants, the costs of which last mentioned protest amount to a further sum of 17 shillings and 6 pence, sterling money aforesaid : of all which last men- tioned premises, and especially of the said last mentioned pro- test, the said defendants afterwards, to wit, on the day of April 1837, at the said city of R. had due notice. By means of all which premises, and by force of the act of assembly in such case made and provided, the said defendants became liable to pay to the plaintiffs, and action accrued to the plaintiffs to demand and have of and from the said defendants, the princi- pal sum of sterling money specified in, and required to be paid by, the said first bill of exchange, and the costs of the said se- veral protests, and damages at the rate often per centum\\ on the said principal sum (which said principal sum, charges of pro- test and damages, together amount to, and make up, the sum of 2201. 14. 6. sterling money first herein mentioned), and also interest at the rate of six per centum per annum on .2000 ster- ling money aforesaid from the date of the said protest for non- payment, to wit, from the 8th day of February 1837 till pay- ment, as herein before mentioned. Nevertheless the said defen- dants, although often requested, have not, nor has either of them, as yet, paid to the plaintiffs, the said sum of .2201. 14. 6. sterling money as aforesaid, and interest as aforesaid, or any part thereof, but to pay to the plaintiffs, the same, or any part thereof, they the said defendants have, and each of them hath, hitherto wholly refused, and they do, and each of them doth, still refuse, to the damage of the said plaintiffs 100 pounds ster- ling money^" of Great Britain; and therefore they bring suit &c. * The value in current money is sometimes laid, through abundant caution, under an idea, perhaps, that since our separation from Great Declarations in debt. 441 Britain, sterling money is to be considered like other foreign money, and sued for as such. But as the laws made before the revolution res- pecting sterling money debts, remain in force, they may still be sued for and recovered without laying the value in current money ; the courts having the same power to settle the rate of exchange which they for- merly had. Although however there is no necessity for laying the value of the sterling money, yet, if it be laid, it is merely surplusage, and will not vitiate the declaration. SMpwith v. Baird, 2 Wash. 165. Brown v. Barry, 3 Ball. 368. tin Salomons v. Stavely, 3 Doug. 300. 26 Eng. Com. Law Rep. 117. the action was against the endorser of a foreign bill of exchange, and the declaration stated that the drawee " had refused to accept or pay the same, of all which premises the said defendant afterwards, and with all convenient speed, to wit, on &c. had notice." The defendant demur- red generally, but it being intimated from the bench that the not alleging a protest was form only, and could not be taken advantage of on general demurrer, the demurrer was withdrawn. Unless however the protest be set forth in the declaration, damages cannot be recovered in Virginia. See opinion of Tucker, P. in Nelson v. Fottcrall, 7 Leigh 220. and opinion of Brockenbrough, J. in S. C. 204. | In Slacum v. Pomeroy, 6 Cranch 221. it was argued that the act of assembly which gives the action of debt, not requiring notice to be laid in the declaration, that requisite which is only essential in an action founded on the custom of merchants, is totally dispensed with. But the supreme court was not of that opinion. The court say, " That in giving the action of debt to the holder of a bill of exchange, the legislature has not altered the character of the paper in other respects. It is still a pure commercial transaction, governed by commercial law. Notice of the protest is still necessary, and the omission to aver it in the decla- ration is still fatal." In Downes Sfc. v. Church, 13 Peters 205. the plaintiffs declared in assumpsit upon the second of the set of exchange, which second of the set was protested for non-acceptance, and the same, with the protest at- tached thereto, was read against the endorser at the trial. Whereupon a question arose, whether the plaintiffs could recover upon the said se- cond of exchange, without producing the first of the same set, or ac- counting for its non-production. The supreme court decided this ques- tion in the affirmative. || See Sess. Acts 1828-9, p. 27. ch. 24. Sup. to Rev. Code, p. 259. Slacum v. Pomeroy, 6 Cranch 221. fi In Scott's ex'ors v. Call, 1 Wash. 115. the action was for sterling money, and it was considered improper to lay the damages in current money. This explanation of the decision was made in Skipwith v. Baird, 2 Wash. 165. 18. Against drawer and endorser of a note upon the footing of a foreign bill except as to damages. 1 Rob. Prac. 47. that they render to the said plaintiff the sum of $ 500, with interest thereon at the rate of six per centum per annum from 56 442 Declarations in debt. the eighth day of June 1833 till payment, and $2.95 cents, the charges for the protest hereinafter mentioned, which to the said plaintiff they owe, and frorn him unjustly detain. And there- upon the said plaintiff saith that heretofore, to wit, on &c. at R. to wit, in the said county of H. the said J. M. B. made his cer- tain note in writing, bearing date the day and year last afore- said, and subscribed his name thereto, by which said note he, then and there, promised to pay, sixty days after the date thereof, to the said A. R. or order, $ 500 without offset, negotiable and payable at the bank of Virginia, for value received ; and the said A. R. after the making of the said note, and before the same became payable, to wit, on the said sixth day of April 1833, at &c. endorsed the said note, and subscribed his name to such endorsement, by which said endorsement the said A. R. then and there, ordered and appointed the said sum of mo- ney, in the said note specified, to be paid to the plaintiff; of which said endorsement, the said J. M. B. afterwards, to wit, on the said sixth day of April 1833, at &c. had notice. And the said plaintiff avers that afterwards, when the said note be- came due and payable, according to the tenour and effect thereof, to wit, on the said eighth day of June 1833, at the said bank of Virginia, to wit, at R. aforesaid, in the said county of H. the said note was duly presented at the said bank of Virginia, for payment thereof, and payment of the said sum of money therein specified was, then and there, duly required according to the te- nour and effect of the said note, but neither the said J. M. B. nor the said bank of Virginia, nor any person or persons whatsoever, did, when the said note was so presented for payment thereof, as aforesaid, or at any time, before or afterwards, pay the said sum of money therein specified, or any part thereof, but wholly neglected and failed so to do ; and thereupon the said note was duly protested for non-payment, to wit, on the said eighth day of June 1S33, at R. aforesaid, in the said county of H. and the charges of the said protest amount to $ 2.95 cents : of all which premises, and especially of the said protest, the said A. R. af- terwards, to wit, on the said eighth day of June 1833, at R. aforesaid, in the said county of H. had due notice. By means of which said premises, and by force of the act of assembly, in such case made and provided, the said J. M. B. and A. R. be- came liable to pay to the said plaintiff, and action accrued to the said plaintiff to demand and have of and from the said J. M. B. and A. R. the said principal, interest and charges of pro- test above demanded. Nevertheless the said J. M. B. and A. R., although often requested so to do, have not, nor hath either of them, as yet, paid to the^said plaintiff the principal, interest, and charges of protest aKovfc demandsdTor any part thereof, Declarations in debt. 443 but to pay the same, they have, and each of them hath, hitherto wholly neglected and refused, and they do, and each of them doth, still refuse, to the damage &c. (as in No. 1.) 19. Against the drawer of a bill of exchange, independently of the statute. In Hodges and Steward, Skinn. 346. it is said that indebitatus assump- $it lies against the drawer of a bill of exchange for value received. This case was relied on in Stratton \. Hill, 3 Price 253. reported also, though more briefly, in 2 Chitty 126. 18 Eng. Com. Law Rep. 274. The declaration was in debt, and two of the counts were on bills of ex- change, drawn by the defendant, payable to his own order and endorsed by him to the plaintiffs. To the objection taken that debt would not lie against the endorser, the plaintiff's counsel replied that debt might be maintained against the drawer of the bill who owed the debt, and for whose benefit the apparent consideration enured, and his character of principal debtor was not altered, nor his liability as drawer discharged. Between him and every person becoming possessed of the bill there was a continuing privity. The counsel for the defendant then took the ground that the defendant was not liable to the action of debt against him as drawer, after he had acquired the new character of endorser. But the court said the question appeared to be quite clear. The subse- quent endorsement by the drawer of the bill did not render him the less amenable on that account to any liability to which he was originally subject. 20. Against the acceptor of a bill of exchange. In SmitJi v. Segar, 3 H. & M. 394. decided in 1809, and Wilson v. Croicdhill, 2 Munf. 302. decided in 1811, the court of appeals held that an action of debt would not lie against the acceptor of a bill of ex- change, even for the payee. The question afterwards came before the supreme court of the United States, in the case of Raborg fyc. v. Pey- ton, 2 Wheat. 385. decided in 1817. Mr. justice Story, who delivered the opinion of the court, states the general principle that debt lies upon every express contract to pay a sum certain, and that it lies though there be only an implied contract, and after remarking that it has been sup- posed this principle does not apply to an action on a bill of exchange where the suit is brought by the payee against the acceptor, and ad- verting to the decision to that effect in Hardres 485. he examines the reasons assigned for that decision, contrasts the doctrine with others es- tablished in modern times, and comes to the conclusion that debt will lie not only for the payee, but also for the endorsee, of the bill against the acceptor, when it is expressed to be for value received. This was certified as the opinion of the supreme court, to the court below. More recently the subject has been considered in the court of king's bench. Priddy fyc. \. Henbrey, 1 Barn. &- Cress. 674. 8 Eng. Com. Law Rep. 179. decided in 1823, was debt against the acceptor by the drawers of a bill payable to themselves, or their order, for value re- 444 Declarations in debt. ceived in goods. This acceptance was considered an admission by the acceptor that he had previously received value in goods, and upon such an acceptance, Bayley, J. and Holroyd, J. (the only judges before whom the case was argued) were of opinion that the action of debt brought by the drawers, might be maintained. Here there was an immediate pri- vity between the plaintiffs and defendant independently of the bill. The defendant was immediate debtor to the plaintiffs, and he contracted by his acceptance to pay that debt. Cloves v. Williams, 3 Bingh. N. C. 868. 32 Eng. Com. Law Rep. 360. decided in 1837, was debt against the acceptor by an endorsee, and the court of common pleas held the action would not lie. 21. By the payee against the acceptor of an order. A general acceptance of an order binds the acceptor to the payee, by whom the same was taken bona Jide and for a valuable consideration paid by him, notwithstanding the consideration which induced the accep- tance afterwards fails ; such failure being without any fault on the part of the payee. Corbin's adm'r v. Southgate, 3 H. &. M. 319. Under the statute of Virginia cited in 1 Rob. Prac. 46. an action of debt may be maintained upon a note or writing by which the person sign- ing the same shall promise or oblige himself to pay a sum of money or quantity of tobacco to another. The effect of this statute does not seem to have been considered by the court of appeals in the cases of Smith v. Segar, 3 H. &, M. 394. and Wilson v. Croiodhill, 2 Munf. 302. and the view taken in Raborg c. v. Peyton, 2 Wheat. 385. made it unnecessary for the supreme court to consider whether the statute applied to the ac- ceptor of a bill or not. More recently in the case of Hollingsworth v. Milton, S Leigh 50. the statute was particularly noticed and the opinion expressed that under it, an action of debt would lie against the acceptor of an order. For by his acceptance he obliges himself to pay the amount of the draft to the payee. His obligation is absolute and unconditional. And he comes within the letter as well as the spirit of the statute. The following precedent is taken from the declaration in Hollings- worth v. Dunbar : that he render to the said plaintiff the sum of $ 172.50 cts. with lawful interest thereon from the 25th day of February 1825, which he owes to the said plaintiff and unjustly detains from him. And thereupon the said plaintiff saith that hereto- fore, to wit, on &c. at &c. a certain Z>. H. A. by his note in writing, signed with'the proper name of him the said D. H. A., by his own hand, did order the said J. P. H. to pay to the said E. M., or order, the said sum of $ 172.50 cents with interest from the 25th day of February, then last past, stating in the said note in writing that the said sum with interest as aforesaid was the balance due from the said H. to the said A. for wheat ; and afterwards, to wit, on &c. at &c. the said order was presented to the said /. P. H. who, then and there, by endorsement there- Declarations in debt. 445 on, signed with the proper name of him the said H. by his own hand, accepted the same, and thereby obliged himself to pay to the said plaintiff' the said sum of $ 172.50 cents with interest thereon as above demanded. Nevertheless the said J. P. H., although often requested so to do, hath not paid to the said plain- tiff the said sum of $ 172.50 cts. with interest thereon as above demanded, or any part thereof, but to pay the same, or any part thereof, hath hitherto wholly neglected and refused, and still doth neglect and refuse, to the damage &c. (as in No. 1.) 22. For rent. 1 Rob. Prac. 70. 71. 72. It was decided in Newton \. Wilson, 3 H. & M. 470. and MicMe v. Wood's ex' or, 5 Rand. 571. in conformity with the settled doctrine of the english courts, that a compensation stipulated to be paid for the use of land and personal property together, is net a sum in gross, but rent issuing out of the land. The following precedent is taken from the declaration in Newton v. Wilson : As in No. 1. to heretofore, to wit, on &c. at &c. the defen- dant entered into an agreement with the plaintiff (the date whereof is the same day and year aforesaid,) by which he un- dertook to pay the plaintiff, annually, four hundred dollars, for the use of his mills arid two tracts of land adjoining the same, containing two hundred acres more or less, lying in the said county at and near the great falls of Willis's river, for the term often years, commencing on the 25th day of January 1802, to- gether with the miller and stock of hogs. And the plaintiff avers that at the county aforesaid, on the day and year last above mentioned, he, being seized in fee of the said mills and two hun- dred acres of land, and possessed absolutely of the said miller and stock of hogs at the said mills, delivered the possession thereof to the defendant, all of which he accepted, agreeably to the terms and conditions expressed in the agreement aforesaid, in the nature of a lease for years, and was thereof possessed for and during one whole year, commencing on the said 25th Ja- nuary 1802, and ending on the 25th day of January 1803. By means whereof he became indebted to the plaintiff' in the sum of four hundred dollars as aforesaid, for the rent of that year, lobe paid when thereto required. Yet the defendant, although often required to pay the same, hath refused and still doth refuse so to do, to the damage &c. (as in No. 1.) 446 Declarations in debt. 23. Counts to admit evidence to repel defence under statute of limitations. In an action of debt on a promissory note, or other simple contract, if the defendant plead that the action was not commenced within five years next after the cause thereof, and the plaintiff reply generally, that the action was commenced within the said five years, and issue is there- upon joined, at the trial of such issue, the matter will be within a nar- row compass. It will only be necessary to see at what time the cause of action accrued, and at what time the suit was commenced. An in- spection of the writ will ascertain the last. .And cases have occurred in which it was only necessary to read the declaration to ascertain the first. Thus, in Butcher v. Hixton, 4 Leigh 519. the action was on a pro- missory note, and the declaration contained a single count, which set forth the note and shewed that it was payable the 15th of September 1820. It thus appeared on the face of the declaration that the cause of action accrued on the 15th of September 1820. The issue being whe- ther the cause of action accrued within five years next after the cause thereof, at the trial of that issue, it appeared that the action was not commenced till May 1826. On the note there was a credit for $ 4 00, paid the 22d of August 1822, and evidence was given that the princi- pal debtor within the five years next before the action brought, acknow- ledged that the debt was unpaid and justly due. The defendant, who was surety, demurred to the evidence. Tucker, P. and Carr, J. were of opinion, that even if the surety himself had within the five years ac- knowledged the debt and promised to pay it, the issue must still have been found for the defendant. What then is the proper course for a creditor who has not commenced his action within five years next after the cause thereof? If a good and sufficient promise has been made to him within five years, in what way can he have the benefit of that promise ? The answer is, by bringing assumpsit instead of debt, or if debt be brought, by adding to the count upon the original cause of action, some other count or counts under which the new promise can be given in evidence. The case of Butcher v. Hixton, says Tucker, P. " is not conceived to go further than to es- tablish the necessity of bringing assumpsit, or adding a count on inde- bitatus assumpsit where reliance is to be placed upon an acknowledg- ment, or promise to avoid the bar of the statute of limitations/' Again he says, "no serious inconvenience can be sustained, even in causes now pending, since in every case, upon motion, a second count in debt upon the new promise or acknowledgment, or a count in indtbitatus as- sumpsit, may be added for the amendment of the declaration." See his opinion in The Farmers Bank v. Clarke, 4 Leigh 609, 10. When judge Tucker speaks of adding a count in indebitatus assump- sit, he means the indebitatus count in debt. It will be advisable also to have a count in debt upon an insimul computassent. Declarations in debt. 447 t 24. General counts. Forms in debt of the indebitatus count, of the counts for money lent, money paid, and money had and received, and of the count upon an in- sitnul computassent, are given in Chitty's pleadings, vol. 3. of 5 Am. from 4 Lond. edi. p. 385, 6, 7. 25. On a judgment. In Newcomb v. Drummond, 4 Leigh 57. debt was maintained on a judg- ment obtained in a court, the office of which had been consumed by fire, and the record of this judgment, among other papers, wholly destroyed. The action was maintained, though an appeal had been taken from the judgment and an appeal bond executed, which appeal had not been fur- ther prosecuted, because of the fire which occurred soon afterwards. In Dykes fy Co. v. Woodkouse's adm'r, 3 Rand. 287. it was decided that an administrator de bonis non might maintain debt upon a judgment obtained by an executor. In an action upon a judgment for a penalty, to be discharged by a smaller sum with interest and costs, the plaintiff should declare for the penal sum, and not for such smaller sum and interest. Ragsdale v. Batte, 2 Wash. 201. Cody's adm'r v. Price, 4 Munf. 307. Formerly in an action on a judgment, the practice was to set out the whole record in the declaration, but that is not now necessary. Coalter, J. in S. C. 302. It was held in Dykes Sf Co. v. Woodhouse's adm'r, that a declaration stating that A. B. executor of C. D. recovered the judgment, sufficiently averred that the judgment was obtained by the executor, in that charac- ter. It was not deemed indispensable that the word "as" should be in- serted before the word " executor," nor that there should be a distinct averment that the judgment was for a debt due to the testator. Upon the declaration as it stood, the judgment was regarded as having been obtained by the executor as such, and for a debt or demand of his tes- tator. 26. On a judgment against an executor, suggesting a devastamt. I Rob. Prac. 53 Lo 57. and 215, 16. As in No. 1.* to heretofore, to wit, at a court held for the county of P. before the justices of the said county, at the court- house, on the day of in the year , by the judgment of that court, the said plaintiff recovered against C. D. as executor &c. (recite the judgment) ; whereof the said C. D. as executor as aforesaid, is convicted, as by the record there- of, in the same court, manifestly appears. And the plaintiff further saith that afterwards, to wit, on the day of in the year , a writ of fieri facias, bearing date the same day and year last aforesaid, was sued out of the court of the said county of P. upon the said judgment, directed to the sheriff 448 Declarations in debt. of the said county, whereby the said sheriff was commanded that of the goods and chattels of the said E. F. in the hands of the said C. D. executor as aforesaid, to be administered, he should cause to be made the said , upon which writ of fieri facias, the said sheriff by his deputy, afterwards made a return to the following effect (copy the return), as by the said writ and the return thereon made, remaining in the office of the said court of P. county, appears; and the said judgment still remains in full force and effect, not in the least reversed, an- nulled, set aside or satisfied. And the plaintiff avers, that at the time of the said judgment, to wit, on &c. at &c. divers goods and chattels, which were of the said E. F. at the time of his death, of great value, to wit of the value of the said , in form aforesaid recovered, had come to the hands of the said C. D. as executor as aforesaid, to be administered ; and which said goods and chattels, the said C. D. executor as aforesaid, afterwards, to wit, on the same day and year last aforesaid, at &c. aforesaid eloigned, wasted, and converted and disposed of to his own use. Whereby an action hath accrued to the said plain- tiff to demand and have of and from the said C. D. the said sum of above demanded. Nevertheless the said C. D. although often requested so to do, hath not paid to the plaintiff the said sum of , or any part thereof, but &c. (as in No. 1.) * If the plaintiff declare not in the debet and detinet, but in the deti- net only, he is not entitled to judgment against the defendant de bonis propriis but de bonis testatoris only. Spotswood \. Price, 3 H. &, M. 123. 27. Of the official bond of any executor, administrator, guardian, committee, curator or other officer. 1 Rob. Prac. 55. 59 and 60. The act of Feb. 13. 1838. declares that every action upon the official bond of any executor, administrator, guardian, committee, curator or other officer, whether such bond shall have been executed before or after the passage of this act, may be brought, maintained and prosecuted to judgment and final execution, in the names of the judges, justices or other person to whom such bond is made payable, for the benefit of the person injured by the breach of any condition of the said bond, whether such judges, justices or other person, to whom it is made payable, be alive or not ; and such suit shall not be abated, nor shall execution of the judgment thereon be hindered or delayed by any allegation of the death of the said judges, justices or other person, or any of them. Sess. Acts 1837-8, p. 72. ch. 93. 1. It further enacts that no exception shall be allowed to any such bond on the ground that any justice or justices, to whom the same may be made payable, was not sitting in the court at the time when the bond was executed, or that any other justice was sitting. But it provides Declarations in debt. 449 that nothing therein contained shall be so construed as to prevent suits being brought, on the bonds aforesaid, in the manner previously autho- rized by law, 2. 28. On the bond of an executor or administrator. 1 Rob. Prac. 55, 6, 7. and 215, 16. Three things must be shewn in order to establish a breach of the con- dition of the bond. 1. The plaintiff must have an ascertained demand against the estate. If he is a legatee under the testator's will, and, as such, alleges that he has been injured by the executor, no action can be maintained upon the bond of the executor until the legatee has established his claim, by a decree of a court of equity. Tucker, president, in Burnett 8fc. v. Har- well $c. 3 Leigh 94. 2. Assets in the hands of the executor. The necessity of proof of assets is obvious from the consideration that if no assets were received there could be no breach by devastavit; and the necessity of proving the amount of assets is also clear because it has been repeatedly decided that the jury must either find sufficient assets or the amount of assets. Tucker, president, in S. C. 96. 3. The return of the sheriff that no such assets can be had to satisfy the execution. A judgment against an executor or administrator, with a return on the execution " that he has removed out of the state," is not sufficient to authorize an action on the executor's bond. Turner fyc. v. Chinris ex'ors, 1 H. & M. 53. A return of " no unadministered or un- incumbered effects, whereof I can make the within debt, damages and costs" is sufficient. Allen 8fc. v. Cunningham Sfc. 3 Leigh 395. If the judgment against the executor be obtained by an administrator, and, upon the death of such administrator, administration, de bonis non, is granted, an action may be maintained upon the executor's bond at the relation of the administrator de bonis non. Allen fyc. v. Cunningham fyc. 3 Leigh 395. But where a creditor has obtained a judgment, or a legatee obtained a decree, against an executor, if there be an assignment of the judgment or decree, no action can be maintained on the executor's bond at the relation of such assignee ; for the previous judgment or decree does not ascertain that he is a party injured. The action must be at the relation of that creditor, or that legatee, who has obtained the judgment or de- cree. And an endorsement may be made upon the writ or declaration shewing that it is for the benefit of that person who has the assignment. Burnett and others v. Harwell fyc. 3 Leigh 89. The following precedent is taken from the declaration in Allen Sfc. v. Cunningham Sfc. 3 Leigh 395. : S. A., B. F., J. J. and P. P. justices of the court for the county of B.* who sue for the benefit of W. A. administrator of the goods, chattels and credits which were of R. H. deceased, at the time of his death, and which were unadministered by M. H. in his lifetime, who was the administrator of said R. H. de- 57 450 Declarations in debt. ceased, complain of W. C. and D. B. defendants in custody, and who are the only surviving obligors of E. B., N. B., D. B., W. C. and D. B. of a plea that the defendants render to the plaintiffs for the benefit of the said W. A. the sum of fifteen thou- sand dollars, which the defendants owe to the plaintiffs, and from them unjustly detain. For that whereas the said W. C. and D. B. defendants, together with E. B., N. B. and D. B. on the ninth day of February in the year 1807, in the county aforesaid, made their certain writing obligatory, sealed with their seals, and to the court now here shewn, the date whereof is the same day and year aforesaid, by which writing obligatory they acknow- ledged themselves to be held and firmly bound unto the said S. A., B. F., J. J. and P. P. gentlemen justices of the court for the county of B. then sitting, in the sum of fifteen thousand dollars, to the payment whereof, well and truly to be made to the said justices and their successors, they the said E. B., N. B., D. B., W. C. and D. B. bound themselves, and each of them, their, and each of their, heirs, executors and administrators, jointly and severally ; to which said writing obligatory, there was neverthe- less a condition underwritten and thereto annexed, which con- dition is to the following tenour arid effect, viz : The condition of the above obligation (viz: the writing obligatory aforesaid) is, that if the said E. B., administratrix of all the goods, chattels and credits of the said jR. B. deceased, do make a true and perfect inventory of all and singular the goods, chattels and credits of the said deceased, which have or shall come to the hands, possession or knowledge of her the said E. or in the hands or possession of any other person or persons for her, and the same so made do exhibit into the said court of B. county, when she shall be thereto required by the said court, and such goods, chattels and credits do Well and truly ad minister accord- ing to law, and further do make a just and true account of her actings and doings therein, when thereto required by the said court, and all the rest of the said goods, chattels and credits, which shall be found remaining upon the account of the said ad- ministratrix, the same being first examined and allowed by the justices of the said court for the time being, shall deliver and pay unto such persons respectively as are entitled to the same by law, and if it shall hereafter appear that any last will and testament was made by the deceased, and the same be proved in court, and the executor obtain a certificate of probat thereof, and the said E. do in such case, being required, render and de- liver up her letters of administration, then this obligation to be void, else to remain in full force. And the plaintiffs, in fact, say that the said E. B. has not kept, performed and fulfilled the condition aforesaid, of the said writing obligatory, but has alto- Declarations in debt. 451 gether failed so to do, and has broken the same, and, in divers instances and at various times, has failed to comply with, and perform the same. And the plaintiffs expressly aver that the said E. 'administratrix as aforesaid, did not administer the goods, chattels and credits of the said JR. B. deceased, according to law and agreeably to her undertaking. And proceeding to al- lege particular breaches of the said condition, t the plaintiffs say that a suit was instituted by R. H. in the county court of B. on the day of and year , to recover of the said E. B. administratrix as aforesaid, the amount of a bond executed to the said R. H. by the said R. B. for the sum of 125. 2. 9|. under the penalty of 254. 5. 6. ; that the said R. H. died be- fore judgment, and administration of his estate was granted to M. H. with his will annexed, in the county court aforesaid, ac- cording to law, and she prosecuted the said suit and obtained a judgment against the said E. B. administratrix as aforesaid, in the county aforesaid, for the sum of ,250. 5. 6. and costs, to be levied of the goods and chattels of the said R. B. in the hands of the said E. to be administered, if so much thereof she hath, but if not, then the costs to be levied of her own pro- per goods and chattels, which said judgment was however to be discharged by the payment of 125. 2. 9. with law- ful interest thereon from the first day of September 1801 and costs, subject to the following credits : 2. 3. 2. February 1802 ; 1. 10. 0. March 1802, and ^6. 17. 9. April 1802. And the plaintiffs, in fact, say that the said E. administratrix as aforesaid, appealed from the judgment aforesaid to the superior court of law for the said county of B. and the said superior court of law, after hearing the parties, affirmed the judgment of the county court with damages and costs to the appellees. And the plain- tiffs aver that the damages incurred according to law, amount to the sum of 8. and the costs recovered in the said superior court amount to $ ; on which said judgment an execution of fieri facias was sued out against the goods and chattels of the said R, B. in the hands of the said E. to be administered, and directed to the sheriff of B. county, which said execution was delivered to S. P. deputy sheriff for J. P. then sheriff of B. county, who made the following return, viz : "No unadministered or unincumbered effects, whereof I can make the within debt, damages and costs. S. P. deputy for J. P. sheriff of B. county." All of which, by the records and proceedings remain- ing in the county and superior court of law for B., manifestly ap- pears. Whereupon the said plaintiffs in fact further say, that the judgment aforesaid for the sum of 250. 5. 6. and the costs and damages, remains in full force and effect, no ways re- versed, annulled or satisfied. And the plaintiffs, in fact, say, 452 Declarations in debt. that at the time when the judgment aforesaid, in form aforesaid, was rendered, and at the time of issuing and returning the^/?m facias, to wit, on the 22d April 1813, in the county aforesaid, within the jurisdiction of this court, divers goods and chattels, which were of the said R. B. at the time of his death, to the value of 500. sufficient then to have satisfied the said judg- ment, costs and damages, had come to the hands of the said E. B. to be administered, which said goods and chattels the said E. B. administratrix aforesaid, afterwards, viz : on the same day and year last aforesaid, at the county aforesaid, and within the jurisdiction aforesaid, sold, eloigned, wasted, converted and disposed of, to her own proper use, in violation of the laws of the land, and of her undertaking in the condition of the said writing obligatory. By reason whereof, and by virtue of an act of assembly in such case made and provided, an action hath accrued to the plaintiffs to demand and have of the defendants W. C. and D. B. surviving obligors as aforesaid, the said sum of fifteen thousand dollars, for the use of the said W. A. who is ad- ministrator de bonis non of R. H. deceased. Nevertheless the said defendants, although often requested so to do, have not, nor hath either of them, nor hath any other person, as yet, paid to the plaintiffs the said sum of fifteen thousand dollars, or any part thereof, but &c. (as in No. 8.) * It is necessary that it should appear that the plaintiffs sue as jus- tices, and for whose benefit the suit is brought. Cabell Sfc. v. Hard- wick, 1 Call 345. The relator in a suit on an official bond ought always to set out in the pleadings his interest in and claim to relief upon it. Brooke, pres't, in Cowling v. Nansemond justices, 6 Rand. 252. t It is indispensable that a breach -or breaches of the condition of the bond be assigned in the declaration, or in some other part of the record. Ward 4*c. v. The Fairfax justices, 4 Munf. 494. 29. On a guardian's bond. An action lies against the surety in a guardian's bond, without any previous suit against the principal. The principles upon which it was formerly determined that an action could not be maintained upon the bond of an executor or administrator until a devastavit was established, in a previous suit, apply only to the cases of executors and administra- tors, and have no relation to a suit upon a guardian's bond. Call v. Ruffin, 1 Call 333. A bond given by a guardian to his ward after the latter had attained full age, for a specific sum stated to be the balance due upon a settle- ment of the guardianship account, will be taken as prima facie evi- dence of the amount due by the guardian, in an action against his sure- ty, but this prima facie evidence will be liable to be repelled by other evidence on the part of the surety. Brooke, president, in Hamlin's Declarations in debt. 453 adrir v. Atkinson Sfc. 6 Rand. 579. The acceptance by the ward of such a bond, and the fact that partial payments had been made thereon, will not however constitute a discharge of the surety. At all events, it is not such a discharge as the surety can give in evidence under the plea of conditions performed, in an action against him on the guardian's bond, ffamlin's adm'r v. Atkinson fyc. 6 Rand. 574. H. county, to wit : J. T. &c. (naming them) gentlemen justices of the court of hustings for the city of R. and successors of J. A., S. M., J. G. and J. R. late justices of the said court, who sue for the benefit and at the costs of A. P. P. complain of W. D. W. adminis- trator of the personal estate of R. D. deceased, being in custo- dy &c. of a plea that he render to the said plaintiffs the sum of five thousand dollars, which from the said plaintiffs the said TV. D. W. unjustly doth detain. And thereupon the said plaintiffs say that heretofore, and in the lifetime of the said R. D. to wit, at a court of hustings held for the city of R. on the nineteenth day of October 1820 (the said court then and still being holden at the said city and in the said county of H.) a certain W.D. P. was, by the said court of hustings, assigned guardian to the said A. P. P. and to one J. H. P. which said A. P. P. and J. H. P. were orphans of W. P. deceased ; and thereupon, to wit, on the said nineteenth day of October 1820, at the said city of JR. and in the said county of H. the said W. D. P. and R. D. made their certain writing obligatory, sealed with their seals, (which said writing obligatory now remains filed among the re- cords of the said court of hustings, and a copy whereof, duly attested by the clerk of the said court of hustings, is to the said superior court of law now here shewn), by which said writing obligatory the said W. D. P.. and R. D. acknowledged them- selves to be held and firmly bound unto the said J. A., S. M., J. G. and J. R. gentlemen justices of the court of hustings for the city of R. then sitting, in the sum of five thousand dollars above demanded, to the payment whereof, well and truly to be made to the said justices and their successors, they bound themselves, and each of them, their, and each of their, heirs, executors and administrators, jointly and severally, firmly by the said writing obligatory ; which said writing obligatory was, and is, subject to a certain condition, thereunder written, to the effect following, to wit : that if the said W. D. P. his executors and administra- tors, should well and truly pay and deliver, or cause to be paid and delivered, unto the said A. P. P. and J. H. P. orphans of W. P. deceased, all such estate or estates as then was, or were, or thereafter should appear to be, due to the said orphans, when, and as soon as, they should attain-to lawful age, or when thereto 454 Declarations in debt. required by the justices of the said hustings court, as also keep harmless the said justices last above named, their, and every one of their, heirs, executors and administrators, from all trouble and damages that should, or might, arise about the said estate, then the said obligation was to be void, otherwise to remain in full force. 1 And the said plaintiffs aver that the said A. P. P. has attained to lawful age, and that the said W. D. P. has not paid and delivered, or caused to be paid and delivered, unto the said A. P. P. all such estate as appears to be due to her the said A. P. P. but the said W. D. P. has failed so to do in this, to wit : that at a court of hustings held for the said city of R. on the twenty-fifth day of October 1828, (the said court then and still being holden at the said city and in the said county of H.) it was, by the said court, ordered that the said W. D. P. guar- dian of A. P. P. and /. H. P. should settle the accounts of his guardianship before H. B. commissioner of the said court, who was required to audit and state the same and make report there- of to the court; and afterwards to wit: at a court of hustings held for the said city of R. on the 23d day of January 1829> (the said court then and still being holder) at the said city and in the said county of H,) the said commissioner made a report of the account of the said W. D. P. as guardian of the said A. P. P. by which it appeared that on the 22d day of January 1829 the sum of nine hundred and twenty dollars and fifty-seven cents, with interest thereon from the eleventh day of July 1825 till payment, was due from the said W. D. P. to the said A. P. P. and the said account of the said W. D. P. as guardian of the said A. P. P. was thereupon, to wit, on the said 23d day of January 1829, at the said city, and in the county aforesaid, con- firmed by the said court of hustings and ordered to be recorded. And the said plaintiffs aver that the said sum of nine hundred and twenty dollars and fifty-seven cents, with interest as afore- said, so appearing to be due to the said A. P. P. is still due to her the said A. P. P. and that the said W. D. P. has not paid and delivered, or cause to be paid and delivered, the same to her the said A. P. P. although, since she the said A. P. P. has attained to lawful age, the said W. D. P. has been thereto often reo^ired, but the said W. D. P. to pay the same, or cause the same to be paid, hath hitherto wholly neglected and refused, and still neglects and refuses so to do. By reason of which breach of the said condition the said writing obligatory became forfeited, and thereby an action has accrued to the plaintiffs as successors of J. A., S. M., J. G. and J. R. late justices of the said court of hustings, to demand and have of and from the said W. D. W. administrator as aforesaid, the said sum of five thousand dollars. Nevertheless the said R. D. deceased, in his Declarations in debt. 455 lifetime, and the said W. D. W. administrator as aforesaid, since the death of the said R. and the said W. D. P. (although thereunto often requested) have not, nor hath either of them, as yet, paid to the said plaintiffs the said sum of five thousand dol- lars above demanded, or any part thereof; but to pay the same, or any part thereof, the said IL D. deceased, in his lifetime, and the said W, D. W. administrator as aforesaid, since his death, and the said W. D. P. have, hitherto, wholly neglected and re- fused, and the said W. D. W. administrator as aforesaid, still neglects and refuses, to the damage of the said plaintiffs five thousand dollars ; and therefore they bring suit against the said W. D. W. administrator as aforesaid. 30. On a refunding bond given by legatees or distributees to an exe- cutor or administrator. 1 Rob. Prac. 58. In an action of debt on a bond, conditioned " that the defendants should pay unto the plaintiff their respective proportions of all debts which he should be compelled to pay that should thereafter come against the estate," if the declaration allege " that on a day subsequent to the date of the bond the plaintiff paid by the consent of the defendants a debt which was then due from the estate, and which as administrator he was bound to pay, and that the defendants had not paid him their respec- tive parts, nor any proportion thereof," the breach is well enough as- signed. For if an administrator or executor be bound to pay a debt, and, to avoid the expense of a suit, actually does pay it, with the consent of the legatees or distributees, it is the same as if he had paid it after judgment. Moss fyc. v. Moss's adm'r, 4 H. &, M. 304. 31. Against an officer for an escape. 1 Rob. Prac. 75, 6. In an action of debt for an escape, of a person in execution, the whole debt is recovered or nothing. Hawkins fyc. v. Plomer fyc. 2 W. Bl. 1048. It is not competent to the jury to give less than the debt, because the damages sustained are less. Robertson fyc. v. Taylor, 2 Chitty 454. 18 Eng. Com. Law Rep. 394. But in an action on the case it would be otherwise. Tucker, P. in Perkins Sfc. v. Giles, governor, 9 Leigh 401. 32. On a sheriff's bond. 1 Rob. Prac. 60 to 63. Generally speaking, in an action on a bond with collateral condition, it is sufficient to assign a breach in the words of the condition. In Branch fyc. v. Randolph, 5 Call 546. the condition was that if Branch should, truly and faithfully, collect, pay and account for all taxes imposed in his county, by virtue of a certain act of assembly, then the obligation was to be void. And the only breach assigned was, that he had not, truly and faithfully, collected, paid and accounted for, all taxes imposed in the said county, by virtue of the said act, but had altogether failed to do so. The damages were assessed upon a writ of enquiry, and the 456 Declarations in debt. judgment for those damages was affirmed in the court of appeals ; the assignment of the breach being considered not too general. But it has been held that where the condition of a bond requires many things, the omission of any one of which would constitute a breach, a particular breach should be specified in the assignment. The People v. Brush, 6 Wend. 454. was an action of debt on the bond of Ketcham and another, conditioned that Ketcham " should well and faithfully, in all things, perform and execute the office of sheriff of the county of Dutch- ess, during his continuance in the said office by virtue, of the said appoint- ment, without fraud, deceit or oppression." And the first breach as- signed followed the language of the condition and alleged, in general terms, that Ketcham did not, well and faithfully, perform and execute the office of sheriff &/c. without fraud, deceit or oppression, but neglected and refused so to do. This breach was held to be too general. It was considered there would be inconvenience and hardship in requiring the sheriff, or his sureties, to come into court with no other notice than this. As the condition might have been broken in many ways, and by acts almost numberless, it was proper that the assignment should shew the subject matter of the complaint. In an action on the bond of a sheriff, against his sureties, in which the breach assigned is the escape of a debtor taken in execution, though the escape may have been voluntary by the sheriff, his sureties are not necessarily bound for the full amount of the debt. The recovery against them will be confined to the damages sustained. Perkins Sfc. v. Giles, governor, 9 Leigh 397. If the escaping debtor was hopelessly insolvent, there could be no damage, and, of course, only a nominal recovery. And so if the debtor was of acknowledged ability, though the creditor might be damaged by the delay and vexation consequent on the debtor's dis- charge, and might fairly recover in an action on the bond, yet he has not lost his debt, and therefore his damage cannot be measured by its amount. Tucker, P. in 8. C. 401. J. T. governor, or chief magistrate, of the commonwealth of Virginia, and successor of* J. P. P. late governor or chief magis- trate of the said common wealth, who sues for the benefit and at the costs and charges of J. W. administrator of the personal estate of B. W. deceased, unadministered by S. W. deceased, complains of JT. H. administrator of the personal estate of Gf. S. deceased (who in his lifetime was sheriff of the county of H.), in custody &c. of a plea that he the said J. H. administrator as aforesaid, render to the plaintiff the sum of thirty thousand dollars, which from him he unjustly detains : for that whereas the said G. S. in his lifetime, to wit, on the sixth day of July 1818, at the county aforesaid, by his certain writing obligatory, sealed with his seal, an attested copy whereof is to the court now here shewn, the date whereof is the day and year aforesaid (the ori- ginal of the said writing obligatory being entered of record and filed in the county court of H. that is to say, in this court), ac- knowledged himself with D. B., M. S., B. G., R. B., W. M. Declarations in debt. 457 B., T. O. B,, R. T. and J. S. to be held and firmly bound unlo the said J. P. P. then governor or chief magistrate of the com- monwealth of Virginia, in the just and full sum of thirty thou- sand dollars, which said sum is above demanded : And to the payment thereof, well and truly to be made to the said /. P. P. and his successors, for the use of the said commonwealth, they bound themselves, and each of them, their, and each of their, heirs, executors and administrators, jointly and severally, firmly by the said writing obligatory : which said writing obligatory was, and is, subject to a certain condition, thereunder written, whereby, after reciting to the effect following, to wit, that the said G. S. was constituted and appointed high sheriff of H. county, by a commission from the governor under the seal of the said commonwealth, dated the 16th day of June 1818, it was provided that if the said G S. should, well and truly, col- lect all officers' fees and dues put into his hands for collection, and should truly account for and pay the same to the officers to whom such fees are due, respectively, at such lime as is pre- scribed and limited by law, and should, well and truly, execute, and due return make, of all process and precepts to him di- rected, and satisfy all sums of money and tobacco, by him re- ceived, by virtue of any such process, to the person or persons to whom the same are due, his, her or their executors, adminis- trators, or assigns, and, in all things, should, truly and faithfully, execute and perform the said office of sheriff, during the time of his continuance therein, then the said obligation was to be void, or else remain in full force and virtue. And the plaintiff avers that the said G. S. did not perform the condition of the said writing obligatory, but therein wholly failed and made default. And the said plaintiff, for assigning a breach of the condition of the said writing obligatory, accord- ing to the form of the statute in such case made and provided, says that heretofore, to wit, at a superior court of law held for the said county of H. at the capitol in the city of R. to wit, in the same county of H. on the 26th day of September 1818, be- fore the judge of the said court, by the judgment of that court, the said S. W. then in full life, and administratrix of the perso- nal estate of the said B. W. deceased, as such administratrix, recovered against a certain A. C. and a certain A. T. the sec.u- rity for his appearance, a certain debt of $491.60 cents, and also $ 7.63 cents for the costs by the said S. W. about her suit expended ; but the said judgment was to be discharged by the payment of $ 245.80 cents, with interest thereon to be computed after the rate of six per centum per annum from the thirtieth day of May 1816 till payment, and the costs aforesaid, as by the re- cord and proceedings thereof, in the said superior court of law 58 458 Declarations in debt. still remaining, will more fully appear. And the said plaintiff further saith, that the said judgment being in full force, and the money thereby recovered remaining unsatisfied, she the said S. W. for obtaining satisfaction of the same, afterwards, to wit, on the 28th day of September 1818, sued and prosecuted, out of the said superior court of law, a certain writ of the common- wealth, called a. fieri facias, directed to the sheriff of county, by which said writ the said sheriff was commanded that of the goods and chattels of the said A. C. and the said A. T. the security for his appearance, in his the said sheriff's baili- wick, he should cause to be made the said $491.60 cents, the debt, and $7.63 cents, the costs aforesaid ; and the said sheriff was also commanded to make known how he should execute that writ, at the rules to be holden in the clerk's office of the said superior court, on the 19th day of January next after the date of the said writ, and also to have, then and there, the said writ; to which said writ a memorandum was subjoined to the effect following, to wit, that the same was to be discharged by the payment of 245 dollars and 80 cents, with interest thereon to be computed at the rate of six per centum per annum from the 30th day of May 1816 till payment, and the costs therein men- tioned, to wit, the said $ 7.63 cents. And the said writ of fieri facias, with the memorandum subjoined thereto as aforesaid, and before the return day thereof, to wit, on the seventeenth day of October 1818, at the said county of H. was delivered to one R. B. who, then and there, and from thence, until, and after the return of the said writ, was a duly qualified deputy of the said G. S. who, then and there, and from thence, until, and after the return of the said writ, was sheriff of the said county of H. to be executed in due form of law. By virtue of which writ, the said R. B. so being a deputy of the said G. S. who was sheriff of the said county of H. as aforesaid, afterwards, and before the return of the said writ, to wit, on the day of , at the county aforesaid, and within his bailiwick, as such deputy sheriff, seized and took in execution, divers goods and chattels of the said A. C. of great value, to wit, of the va- lue of the said 245 dollars 80 cents, with interest as aforesaid, and the costs aforesaid, whereout he might have levied the same. Yet the said R. B. so being such deputy sheriff of the county of H. as aforesaid, not regarding his duty as such, but contri- ving, and, wrongfully and unjustly, intending to injure and pre- judice the said S. W. administratrix as aforesaid, in that behalf, and to deprive her of the said last mentioned money, with in- terest and costs, and of the means of obtaining the same, did not pay the said money, with interest and costs as aforesaid, to the said S. W. at the return of the said writ ; and at the return of Declarations in debt. 459 the said writ, to wit, at the rules holden in the clerk's office of the said superior court on the 19th clay of January 1819, the said R. B. falsely and deceitfully made a return upon the said writ in the words following, to wit: " Levied upon two mules, and three carls and gear, the property of A. C. Bond and se- curity taken for the delivery of the same at the time and place of sale, and forfeited. R. B. deputy for G. S., S. H. C." as by the said writ, and the return thereof, remaining of record in the said superior court of law, fully appears. And the plaintiff doth aver that the said return is false and deceitful in this, that the said R. B. deputy as aforesaid, did not take security for the delivery of the said two mules, and three carts and gear, the property of A. C. (upon which the said writ of Jicri facias had been levied), at the time and place of sale, but suffered the said two mules, and three carts and gear to remain in the possession of the said A. C. after the said writ of fieri facias had been le- vied thereon, without taking any security from the said A. C. for the delivery of the said two mules, and three carts and gear, at the time and place of sale, without the leave or license of the said S. TV. administratrix as aforesaid, and against her will and consent. By means of which said premises, the said S. W. administratrix as aforesaid of the said B. W. deceased, was, in her lifetime, injured and deprived, and the said J. W. admi- nistrator of the personal estate of B. W. deceased, unadminis- tered by the said S. W. since her death, hath been injured and deprived of the means of obtaining the said sum of 245 dollars 80 cents, with interest and costs as aforesaid : And the said sum, with interest and costs, is still wholly unpaid. And so, by reason of the breach of the condition of the said writing obligatory above assigned, the said writing obligatory became forfeited, and thereby, and by virtue of the act of assembly in such case made and provided, an action has accrued to the plaintiff, governor, and successor as aforesaid, to demand and have of the said G. S. deceased, in his lifetime, and of the said J. H. his administrator, since his death, the said sum of $ 30,000 above demanded. Yet the said G. S. in his lifetime, and the said J. H. administrator as aforesaid, since his death, (although often requested so to do,) have not, nor has either of them, as yet, paid the said sum of $ 30,000, or any part thereof, to the said J. P. P. late governor as aforesaid, or to any of his suc- cessors, or to the plaintiff; neither have the said D. B., M. S., B. G., R. B., W. M. B., T. O. B., R. T. and J. S., or any person or persons whatever, paid to the said J. P. P. or any of his suc- cessors, or to the plaintiff, the said sum of thirty thousand dol- lars, or any part thereof, but to pay the same they have, and each of them hath, hitherto wholly refused ; and they do, and 460 Declarations in debt. each of them doth, still refuse to the damage of the plaintiff $ 200, and therefore he brings suit. And the plaintiff' brings here into court the letters of administration granted to the said J. W. whereby it fully appears to the said court here that the said J. W. is administrator of the personal estate of the said B. W. deceased, unadministered by the said S. W. deceased. * In Harriett's ez'or v. Giles, governor, 6 Leigh 316. the action was in the name of Giles, governor of Virginia, successor of Tyler, former governor, and the defendant pleaded that mr. Giles was not, but mr. Monroe was, the successor of governor Tyler, to whom the bond was given. This plea, though evidently filed to entrap, could not be pronounced to be bad in substance. It amounted, in effect, to a denial of the right of mr. Giles to sue as the successor of governor Tyler, and if the fact were true, as stated in the plea, it is obvious that mr. Giles could have no right to sue. The plaintiff having demurred, in- stead of replying, the court was constrained to consider the fact stated in the plea as admitted, and, as a necessary consequence, was obliged to hold the plea to be good. 33. On the bond of a constable for breach of duty, under a distress for rent. 1 Rob. Prac. 61. 62. J. F. governor of the commonwealth of Virginia, and suc- cessor to W. B. G. late governor of the said commonwealth, who sues at the instance of H. A. C., D. L. D., and J, H., and at their costs and charges, complains of J. C., J. B. C., W. S., and R. H. K. being in custody &c. of a plea that they render unto the said plaintiff the sum of $ 6000, which to the said plaintiff they owe, and from him unjustly detain. And there- upon the said plaintiff saith that heretofore, to wit, at a court of hustings held for the city of R. on the twenty-seventh day of November 1829, to wit, in the said county of H. the said court of hustings did appoint the said J. C. constable of the said city, and afterwards, during the same term of the said court, to wit, at a court of hustings held for the said city of R. on the fifth day of December 1829, to wit, in the said county of if. the said J. C. qualified to his said appointment by taking the several oaths required by law, and, with the said J. B. (7., W. S. and R. H. K. his securities, entered into, and acknowledged, a bond in the penalty of $ 6000, (which penalty included a penalty of $5000, and also a further sum of $1000, which to the said court of hustings seemed necessary to be taken as additional security of the constable of the said city, in consequence of the authority given him by law to execute writs of capias ad satisfa- ciendum, issued by the clerk of the said hustings court, upon judgments obtained before a magistrate,) which bond was con- Declarations in debt. 461 ditioned as the law directs, and was ordered by the said court of hustings to be recorded, as by the record of the said order of appointment, and the order setting forth the qualification to the said appointment, remaining in the said court of hustings, to wit, at the said county of H. fully appears. And the said plain- tiff' further saith that by the said bond, entered into and ac- knowledged as aforesaid, to wit, on the said fifth day of De- cember 1829, at the said county of H. which bond is sealed with the seals of the said /. C., J. B. C., W. S. and R. H. K. and dated the fourth day of December 1829, and a copy whereof duly certified by the clerk of the said court of hustings is now here to the court shewn, (the original remaining with the clerk of the said court filed among the records of the said court,) the said J. C., J. B. C., W. S. and R. H. K. acknowledged them- selves to be held and firmly bound unto his excellency W. B. G. then governor of the commonwealth of Virginia, in the just and full sum of $ 6000, to the payment whereof, well and truly to be made to the said governor and his successors, for the use of the commonwealth, they bound themselves, and each of them, their, and each of their, heirs, executors and administrators, jointly and severally, firmly, but the said bond was, and is, sub- ject to a certain condition, thereunder written, whereby, after reciting- to the effect following, to wit, that the said J. C. had been appointed, by the court of hustings for the city of R. con- stable of the said city, for and during the term of twelve months, from the date thereof, it was provided that if the said J. C. should, well and truly, discharge the duties of his office afore- said, during his continuance therein, then the above obligation was to be void, otherwise to remain in full force and virtue. And the said plaintiff avers that although the said J. C. has continued in the said office of constable of the city of R. from the time the said bond was entered into, and acknowledged as aforesaid, until and at and after the commencement of this ac- tion, yet the said J. C. has not, well and truly, discharged the duties of his office aforesaid, during his continuance therein, but has neglected and failed so to do. And the said plaintiff, for assigning a breach of the said condition of the said bond, says that after the said bond was entered into, and acknow- ledged as aforesaid, to wit, on the sixth day of March 1830, at the said city of R. and in the said county of H. divers goods and chattels of great value, to wit, of the value of $ 750, were distrained by the said J. C. as constable of the said city of R. under and by virtue of the authority of the said H. A. C., D. L. J>., and J. H. for certain arrears of rent, to wit, the sum of $750, reserved and due from S. B. C. and D. S. M. tavern keepers and partners under the firm of C. fy M. to the said H. 462 Declarations in debt. A. C.-, D. L. D. and J. H. upon a contract for certain premises in said city of R. and in the said county of H. to wit, the pre- mises known by tjie name of the Washington tavern in the said city, and the said C. fyM. did not within ten days after such dis- tress taken, and notice thereof, and the cause of such taking, replevy the said goods and chattels, by giving security to pay the said rent and all costs, with lawful interest for the same, at the end of three months; by reason whereof, it became, and was, the duty of the said J. C., constable as aforesaid, upon the expiration of the said ten days, to sell the goods and chattels so distrained for, by public auction, to the highest bidder, for money to be paid at the end of three months. And the plaintiff avers that the said J. C. constable as aforesaid, did not, in a reasonable time after the expiration of the said ten days, sell all the goods and chattels so distrained for, but neglected and failed to sell certain of the said goods and chattels, of great value, to wit, of the value of $ 150, for a long space of time, to wit, from the expiration of the said ten days until the twenty- sixth day of May 1830, to wit, at the said city of R. and in the county of H. aforesaid. And the said plaintiff, for assigning a further breach, of the said condition of the said writing obligatory, according to the form of the statute in such case made and provided, says that after the said bond was entered into, and acknowledged as aforesaid, to wit, on the sixth day of March 1830, at the said city of R. and in the said county of H. divers goods and chat- tels of great value, to wit, of the value of $ 750, were distrained by the said J. C. as constable of the said city of R. under and by virtue of the authority of the said H. A. C., D. L. D. and J. H. for certain arrears of rent, to wit, for the sum of $ 750, reserved and due from S. B. C. and D. S. M. tavern keep- ers and partners under the firm of C. fy M. to the said H. A. C., D. L' D. and J. H. upon a contract for certain premises in the said city of R. and in the said county of H. to wit, the premises known by the name of the Washington tavern in the said city; and the said C. fy M. did not, within ten days after such distress taken and notice thereof, and the cause of such taking, replevy the said goods and chattels, by giving security to pay the said rent, and all costs, with lawful interest for the same, at the end of three months; by reason whereof, it be- came, and was, the duty of the said J. C. constable as afore- said, to sell the goods arid chattels so distrained for, by public auction, to the highest bidder, for money to be paid at the end of three months. And the plaintiff avers that although the said J. C. constable as aforesaid, did, afterwards, to wit, on the se- venteenth day of March 1830, and on other days between that Declarations in debt. 463 day and the commencement of this suit, to wit, at the said city of R. and in the said county of H. make sales of the goods and chat- tels so distrained for, by public auction, to the highest bidder, yet the said J.-C. constable as aforesaid, did not, then and there, sell the said goods and chattels, as he ought to have done, for money to be paid at the end of three months, but, then and there, sold the same for ready money, and received the money therefor, from the buyers, amounting to a large sum, to wit, the sum of $750. And the said plaintiff further avers that the said J. C. constable as aforesaid, hath never paid the money so received, or any part thereof, to the said H. A. C., D. L. D. and J. H. or either of them, but hath wholly neglected and failed so to do, to wit, at the said city and the county aforesaid. And the said plaintiff, for assigning a further breach, of the said condition of the said writing obligatory, according to the form of the statute in such case made and provided, says that after the said bond was entered into, and acknowledged as aforesaid, to wit, on the sixth day of March 1830, at the said city of R. and in the said county of H. divers goods and chat- tels, of great value, to wit, of the value of $750, were dis- trained by the Said J. C., as constable of the said city of R. un- der and by virtue of the authority of the said H. A. C., D. L. D. and J. H. for certain arrears of rent, to wit, for the sum of $ 750, reserved and due from S. B. C. and D. S. M. tavern keep- ers and partners under the firm of C. fy M. to the said H. A. C., D. L. D. and J. H. upon a contract for certain premises in the said city of R. and in the said county of H. to wit, the pre- mises known by the name of the Washington tavern in the said city, and the said C. &f M. not having, within ten days after such distress taken, and notice thereof, and the cause of such taking, replevied the same, by giving sufficient security to the said J. C. constable as aforesaid, to pay the said rent and all costs, with lawful interest for the same, at the end of three months, the said J. C. constable as aforesaid, after the expiration of the said ten days, to wit, on the seventeenth day of March 1830, and on divers other days between that day and the commence- ment of this suit, to wit, at the said city, and in the county aforesaid, did make sales of the goods and chattels so distrained for, by public auction, to the highest bidder, for money to be paid at the end of three months; by reason whereof it became, and was, the duty of the said J. C. constable as aforesaid, to take bonds of the buyers of the goods and chattels so sold, with sufficient security to pay the money for which the same were sold, with interest, to the said H. A. C., D. L. D. and J. H. the landlords for whom the said distress was made, at the end of three months. And the plaintiff avers that the said J. C. con- 464 Declarations in debt. stable as aforesaid, did not, on the days of making the said sales, or at any other time or times before the commencement of this suit, take bonds, of the buyers of the goods and chattels so sold, with sufficient security, to pay the money,' for which the said goods and chattels were sold, with interest, to the said C. D. and H. at the end of three months ; but the said J. C. instead of taking such bonds, (as he ought to have done as constable aforesaid,) received from the buyers of the said goods and chat- tels the money, for which the same were sold, amounting to a large sum, to wit, the sum of $750. And the plaintiff further avers that the said J. C. constable as aforesaid, hath never paid the money so received, or any part thereof, to the said H, A. C., D. L. D. and J. H. or either of them, but has wholly neglected and failed so to do. And the said plaintiff, for assigning a further breach, of the condition of the said bond, according to the form of the statute in such case made and provided, says, that after the said bond was entered into, and acknowledged as aforesaid, to wit, on the sixth day of March 1830, at the said city of R. and in the said county of H. divers goods and chattels of great value, to wit, of the value of $ 750, were distrained by the said J. C. as- con- stable of the said city of R. under and by virtue of the authority of the said H. A. C., D. L. D. and J. H. for certain arrears of rent, to wit, for the sum of $750, reserved and due from S. B. C. and D. S. M. tavern keepers and partners, under the firm of C. fy M. to the said H. A. C., D. L. D. and J. H. upon a con- tract for certain premises in the said city of R. and in the said county of H. to wit, the premises known by the name of the Washington tavern in the said city; and the said C. fy M. not having, within ten days after such distress taken, and notice thereof, and the cause of such taking, replevied the said goods and chattels, by giving sufficient security to the said J. C. con- stable as aforesaid, to pay the said rent and all costs, with law- ful interest for the same, at the end of three months, the said J. C. constable as aforesaid, after the expiration of the said ten days, to wit, on the seventeenth day of March 1830, at the said city of R. and in the said county of H. did sell certain of the goods and chattels so distrained for, by public auction, to the highest bidder, for money to be paid at the end of three months ; and the money for which the said goods and chattels were, then and there, sold as aforesaid, amounted in the whole to a large sum, to wit, the sum of $301, and the said J. C. constable as aforesaid, did, then and there, take bonds of the buyers of the goods and chattels so sold, with security to pay the money, for which the said goods and chattels were sold, with interest, to the said H. A. C., D. L. D. and J. H. the landlords for whom Declarations in debt. 465 the said distress was made, at the end of three months ; by reason whereof, it became, and was, the duty of the said J. C. constable as aforesaid, before the expiration of the said three months, to deliver the bonds so taken, to the said H. A. C., D. L. D. and J. H. the landlords aforesaid, for whom the said dis- tress was made. And the plaintiff avers, that the said three months have long since expired, and the said J. C. constable as aforesaid, did not, before the expiration of the said three months, nor has he, at anytime since, delivered the said bonds so taken, or any of them, to the said H. A. C., D. L. D. and J. H. the landlords aforesaid for whom the said distress was made, or either of them, but the said J. C. constable as aforesaid, hath hitherto wholly neglected and refused to deliver to them the bonds so taken, or any of them, and still neglects and refuses so to do. Wherefore the said plaintiff saith that, by reason of the pre- mises herein before mentioned, the said H. A. C., D. L. D. and J. H. are injured and have sustained 'damages to'the amount of $6000, and the bond aforesaid hath become forfeited, and there- by action hath accrued to the said plaintiff, as governor of the commonwealth of Virginia, to demand and have of, and from the said /. C., J. B. C., W. S. and R. H. K. the said sum of $6000, above demanded. Yet the said J. C., J. B. C., W. S. and R. H. K. (although often requested so to do,) have not, nor hath either of them, as yet paid the said sum of $ 6000, above demanded, or any part thereof, either to the said W. B. G. go- vernor of the said commonwealth, or to the said plaintiff as his successor in office, but to pay the same they have, and each of them hath, hitherto wholly refused, and they do, and each of them doth, still refuse to pay the same to the plaintiff, to the damage of the said plaintiff $ 6000, and therefore he brings suit &c. 34. By a marshal or sheriff on the bond of a deputy who is in default. In an action by a sheriff upon the bond given by his deputy for the performance of his duty, if the breach, of the condition, assigned by the plaintiff, be the non-return of a forthcoming bond, it is no bar to the action that the plaintiff had theretofore obtained a judgment, by motion, for the non-return of the same bond. Opinion of court in Lane v. Harrison, 6 Munf. 573. In such action, if the defendant plead conditions performed, and the plaintiff, by his replication, sets forth a forthcoming bond, taken on an execution from a superior court of law, and alleges, as a breach of the condition, the non-return of the forthcoming bond, to the countfi court office, % such replication will be considered defective, and a demurrer thereto will be sustained. Lane v. Harrison, 6 Munf. 573. 59 466 Declarations in debt. J. P. plaintiff, complains of H. L. C. administrator of all and singular the goods and chattels, rights and credits of A. 11. T. deceased, defendant, in custody &c. of a plea that he render to him the sum of $ 40,000, current money of the United States, which from him he unjustly detains. For that whereas the said A. R. T. in his lifetime, to wit, on the 3d day of April 1822, at the county aforesaid, together with A. W., G. N. Gr., B. D., J. S. t H. B. and W. M. co-obligors with him the said T. jointly and severally bound, by his certain writing obligatory, sealed with his the said T.'s seal, and the seals of his said co-obligors, and to the court now here shewn, the date thereof being the same day and year aforesaid, acknowledged himself held and firmly bound unto the said plaintiff, by the name of J. P. mar- shal of the United States for the eastern district of Virginia, in the just and full sum of $ 40,000, current money of the United States, to be paid to the said plaintiff when he the said T. should be thereto afterwards requested, with a condition to the said writing obligatory annexed, in the words and tenour following, to wit : The condition of the above obligation is &c. (here the condition was set forth). And the plaintiff avers that the said T. having been, as in the said recited condition of the said wri- ting obligatory is mentioned, duly appointed the plaintiff's de- puty, in the plaintiff's said office of marshal, for and during the plaintiff's term of office, and in and for the bailiwick in the said recited condition described, did, in fact, hold and exercise the said office of deputy of the plaintiff, in and for the bailiwick aforesaid, for and during all the term of the plaintiff's said of- fice. And the plaintiff further avers, that the said T. did not, during his continuance in his said office of deputy of the plain- tiff, marshal as aforesaid, well and duly execute, and due re- turn make, of all process and precepts to the said marshal di- rected, and required to be executed in the bailiwick in the said recited condition described, for which the said T. was appointed deputy of the said marshal, and did not, during his continuance in his said office of deputy of the plaintiff, marshal as afore- said, pay and satisfy all sums of money and tobacco by him received, to the person or persons, bodies politic or corporate, to whom the same were due, his, or their lawful attorney, executors, administrators, or assigns, and did not, during his continuance in his said office of deputy of the plaintiff, marshal as aforesaid, truly and faithfully, perform, fulfil and execute all the duties pertaining to the said office of marshal of every kind and description whatever, in term time and vaca- tion, tn and for his the said T.'s bailiwick in the said recited condition described, for which he was appointed deputy as therein mentioned, but the said T. neglected and failed, in divers Declarations in debt. 467 instances, so to do, and committed divers breaches of the said recited condition of the said writing obligatory. And first in this, that a certain warrant, bearing date the 8th day of December 1821, was issued from the treasury of the United States under the hand and seal of S. P. agent of the trea- sury, and directed to the plaintiff" as marshal of the eastern dis- trict of Virginia, which said warrant was in the words and te- nour following, to wit : To J. P. esq. marshal for the eastern dis- trict of Virginia. Whereas &c. (here the warrant was set forth). And thg plaintiff avers that on the 13th of the same month of December, the said recited warrant duly came to the hands of the said T. as deputy of the plaintiff, marshal as aforesaid, to be executed within his the said T.'s bailiwick in the said re- cited condition described, and the said T. in virtue of the pre- cept of the said warrant, levied the same upon (among other property) certain lands of the said W. D. T. therein named, situate within the said T.'s said bailiwick, as deputy of the plaintiff, marshal as aforesaid, and the said T. afterwards, and during his continuance in his said office of deputy of the plain- tiff, marshal as aforesaid, in virtue of the precept of the said warrant, made sale of the said lands of the said W. D. T. upon which he had levied the same as aforesaid, and collected and received all the proceeds of his sales thereof, amounting to the sum of S 5286. 62 cents. Yet the said T. in his lifetime, or since his death the said defendant, did not pay, and hath never paid, the said sum of $5286.62 cents, or any part thereof, to the United States, or into the treasury thereof, or to any officer thereof, or other person or persons entitled to receive the same, but wholly failed and neglected so to do. Secondly in this &c. (To this breach was filed the demurrer, p. 24. No. 50. which demurrer was sustained. The principle settled on the demurrer is stated in 1 Rob. Prac. 532. Pcgram v. Thornton's adrn'r.) Thirdly, in this, that upon a judgment of the district court of the United States for the eastern district of Virginia, rendered on the day of April 1824 for the United States of Ameri- ca, plaintiffs against J. M. defendant, for 750 dollars debt and costs to be discharged by the payment of 375 dollars with in- terest thereon from the 20th day of December 1823 till pay- ment and the costs, amounting to $24.66 cts. a writ of fieri fa- cias was, by the said United States, sued out of the said court, dated the 19th day of April 1824, returnable the 15th day of October then next ensuing, and directed to the marshal of the said district; and afterwards, and during the continuance of the said T.'s office as deputy of the plaintiff, marshal as afore- said, the said last mentioned writ of fieri facias was duly deli- vered to the said T. to be by him, as the plaintiff's deputy, 468 Declarations in debt. executed within his said bailiwick, in the said recited condition of the said writing obligatory described, and the said T. levied the said last mentioned writ of fieri facias, and, in virtue of the precept thereof, made, collected and received* the money due to the United States thereupon, amounting to the sum of and made return upon the said last mentioned writ in the fol- lowing words, to wit: " Satisfied and money paid to the United States." And then returned the said last mentioned writ with the said recited return thereon endorsed and signed by him, as the plaintiff's deputy, to the said court. Yet the plaintiff avers that the said T. had not paid, and the said T. in his lifetime, or the said defendant since his death, did riot pay, and hath not paid, the said sum of so by the said T. received and collect- ed, in virtue of the said last mentioned writ, or any part thereof, to the said United States, or into the treasury thereof, or to any officer thereof, or other person or persons entitled to receive the same, but wholly neglected and failed so to do. Fourthly, in this, that upon a judgment of the district court of the United States for the eastern district of Virginia rendered on the 29th cfay of November 1824, awarding execution, upon a forthcoming bond, for the United States of America plaintiffs against F. G. T., S. O. and J. S. defendants for 512 dollars 40 cents, the penalty of the said bond and costs, to be discharged by the payment of $ 256.20 cts. with interest from the 15th day of August 1824 until payment, and the costs, amounting to $ 28.82 cts. a writ of fieri facias was by the said United States sued out of the said court, dated the 24th day of December 1824, returnable the 2d day of April then next ensuing, and di- rected to the marshal of the said district; and afterwards, and during the continuance of the said T.'s office of deputy of the plaintiff, marshal as aforesaid, the said last mentioned writ of fieri facias was duly delivered to the said T. to be by him, as the plaintiff's deputy, executed within his bailiwick, in the said recited condition of the said writing obligatory described, "and the said T. levied the said last mentioned writ of fcri facias, and, by virtue of the precept thereof, made, collected and re- ceived* the money due to the United States thereupon, amount- ing to the sum of and made return upon the said last mentioned writ in the following words, to wit : " The within execution is satisfied." And then returned the said last men- tioned writ, with the said recited return thereon endorsed, and signed by him as the plaintiff's deputy, to the said court. Yet the plaintiff avers that the said T. in his lifetime, or since his death the said defendant, did not pay, and hath never paid, the said sum of so as aforesaid by the said T. collected and received, by virtue of the said last mentioned writ ofjieri Declarations in debt. 469 facias, or any part thereof, to the said United States, or into the treasury thereof, or to any officer thereof, or other person or persons entitled to receive the same, but wholly failed and ne- glected so to do. Fifthly, in this, &c. (case of another return similar to that men- tioned in third breach.) Nevertheless the said T. in his lifetime, or since his death, the said defendant his administrator, hath not paid to the plain- tiff' the said sum of 40,000 dollars above demanded, or any part thereof, though thereunto often requested, but the same to the plaintiff to pay the said T. in his lifetime, and the defen- dant since his death, always refused, and the said defendant still refuses, to the plaintiff's damage dollars, and therefore he bringeth suit &c. * In Bennett's ex' or v. Giles, governor, 6 Leigh 316. instead of its being averred that the deputy sheriff had received the amount of the execu- tion, the averment was that he had acknowledged to have received the same. In this, the declaration was defective. 35. On an indemnifying bond talcen by a sheriff or constable under the statute. 1 Rob. Prac. 63, 4, 5, 6. Lewis v. Adams fyc. 6 Leigh 320. Stevens 'c. v. Bransford fye. 6 Leigh 246. The declaration in Carrington v. Anderson, 5 Munf. 32. is inserted at length, in the report of the case ; the reporter thinking it might be useful to practitioners. That declaration appears, however, to be very unskilfully drawn ; and it would probably have been adjudged bad, if it had been demurred to, and a question raised as to its sufficiency. The following precedent is taken from the declaration in Stevens Sfc. v. Bransford fyc. 6 Leigh 246. which appears to be better drawn : S. B. sergeant of the corporation of L. (who sues for the be- nefit of A. M. J.) complains of J. T. S., D. G. H. and T. A. H. in custody &c. of a plea that they render unto him the sum of $400, which to him they owe and from him unjustly detain, for .that the said defendants, on the 6th day of October 1823, at the corporation aforesaid, and within the jurisdiction of the court of said corporation, by their certain writing obligatory, sealed with their seals, and now here to this court shewn, the date whereof is the same day and year aforesaid, acknow- ledged themselves held and firmly bound unto the plaintiff, in the just and full sum of $400, to the payment whereof, well and truly to be made, to the plaintiff, his executors, administra- tors or assigns, they bound themselves, their heirs, executors and administrators, jointly and severally, firmly by said writing obligatory, with a condition thereto annexed, and underwritten, in substance and to the effect following, that is to say, That 470 Declarations in debt. whereas the said J. T. S. had sued out of the court of the cor- poration of L. a writ of fieri facias against the goods and chat- tels of N. H. upon a judgment obtained in said court, which writ, with the legal costs attending the same, amounted to the sum of $ 108.32 cts. And whereas the said plaintiff as ser- geant of the said corporation of L. as aforesaid, by virtue of the said writ, to him directed, had levied the same on one negro man slave named Joe, and, a doubt having arisen whether the right of the said property was in the said N. H. or not, the said plaintiff, as sergeant as aforesaid, had required of the said J. T. S. bond with good security to indemnify him the said plaintiff, pursuant to the act of assembly in such cases provided. If therefore the said defendants should indemnify the said plaintiff against all damages which he might sustain, in consequence of the seizure or sale of the property on which the said execution had been levied, and moreover should pay and satisfy to any person or persons, claiming title to the said property, all da- mages which such person or persons might sustain, in conse- quence of such seizure or sale, then the said writing obligatory to be void, otherwise to remain in full force. And the plaintiff avers that the said slave Joe was thereupon, then and there, to wit, on the day and year, and at the place last mentioned, by him, as sergeant as aforesaid, in virtue of the execution afore- said, sold to satisfy the same, and that the said slave, at the time of the seizure and sale of him as aforesaid, under the exe- cution aforesaid, was the lawful, rightful, bona fide and absolute property of the said A. M. J. and not the property of the said N. H. and that the said A. M. J. by the seizure and sale of the said slave as aforesaid hath sustained great damage to wit : to the value of $ 400, and the plaintiff, protesting that the said de- fendants, or any, or either of them, have not, in any thing, per- formed or fulfilled the said condition, of their said writing obli- gatory, further avers that the said defendants, nor any, or either of them, (although often thereto requested,) have not kept, "ful- filled or performed the said condition, of their said writing obli- gatory, in this, to wit, that they, or any, or either of them, (al- though often thereto requested,) have not paid or satisfied the said A. M. J. the damages sustained by him in consequence of the seizure and sale of said slave aforesaid, or any part thereof, but have hitherto wholly refused, and still do neglect and re- fuse so to do. By means whereof, and by virtue of the act of assembly in such cases made and provided, an action hath ac- crued to the plaintiff to demand and have of the said defen- dants the said sum of $400. Yet the said defendants, or any, or either of them, (although often thereto requested,) the said sum of $400 to the plaintiff have not paid, but the same to pay Declarations in debt. 471 have hitherto refused, and still do refuse, to the damage of the plaintiff' $ 400, and therefore he sues. 36. On a common law bond of indemnity. If a bond be given conditioned that the obligor shall pay all costs and damages which may be awarded in consequence of the obligor's deliver- ing to him a negro slave, a judgment obtained by a third person against the obligor is sufficient to sustain an action on the bond, without proof of satisfaction of the judgment. Murrell v. Johnson's adm'r, 1 H. &, M. 450. In debt on a bond, conditioned to indemnify obligee against the claim of a third person, or those representing him in case of his death, it was assigned as a breach that one of the representatives of such third person, to wit, his distributee had obtained a decree against the obligee. Upon demurrer to the declaration, it was objected that it did not appear that the administrator, or other legal representative of the third person afore- said, had obtained the decree or was a party to the suit. The court of appeals held that there was nothing in the objection. It might be that the proper parties were not before the court of chancery, when it made the decree relied on, and that the decree was erroneous upon this ground. But the error could not be availed of, in the action upon the bond. Lamb v. Harrison's adm'r fyc. 2 Leigh 525. Where a bond is conditioned to indemnify the obligee against the claim of a third party, and a decree for the amount of such claim is ren- dered against the executor of the obligee, and satisfied out of the es- tate of the obligee, an administrator de bonis non of the obligee may maintain an action on the indemnifying bond, and recover the amount paid by the executor, in his lifetime, out of the assets. Lamb v. Harri- son's adm'r fyc. 2 Leigh 525. 37. On a bounds bond. 1 Rob. Prac. 66 to 69. Simms fyc. v. Slaciim, 3 C ranch 300. Slacum v. Simms fyc. 5 Cranch 363. Ammidon v. Smith fyc. 1 Wheat. 447. J. S. assignee of W. F., late sheriff of H. county, complains of T. J. and B. J., in custody &c., of a plea that they render to him the sum of $300, which to him they owe, and from him unjustly detain : for this, that the said defendants, on the 18th day of November, in the year 1822, at the county aforesaid, by their certain writing obligatory, sealed with their seals, and to the court now here shewn, the date whereof is the same day and year aforesaid, acknowledged themselves to be held and firmly bound unto the said W. F. sheriff as aforesaid, and his successors in office, in the just and full sum of $ 300, to be paid to the said W. F. sheriff' as aforesaid, his successors in of- fice, his or their attorney, executors, administrators or assigns, and for the payment thereof, did bind themselves, their heirs, executors and administrators, jointly and severally, firmly by 472 Declarations in debt. their writing obligatory aforesaid, to which said writing obliga- tory a condition to the following effect and purport was and is annexed: (here insert the condition). And the plaintiff in fact saith,* that the said T. J. did not keep and observe the rules or bounds of the prison, as laid out by the said county court of H. but did, after the making and execution of the said bond, and before the expiration of one year from the date thereof, to wit, on the day of in the year , and at di- vers other times, at the county aforesaid, break and escape from the said prison rules or bounds, and go out of the same, at large, whithersoever he had a mind to go, and that the said T. J. did not, at the expiration of one year from the date of the said bond, render his body to prison, in satisfaction of the execution afore- said, but hath wholly failed, neglected and refused, and still fails, neglects and refuses so to do. And the said plaintiff in fact further saith, that after the breaking, escaping from, and going out of the prison rules or bounds aforesaid, by the said T. J., and after his said failure and refusal to render his body to prison in discharge of the execution aforesaid, t the said W. F., still being sheriff as aforesaid, did, on the day of in the year , at the county aforesaid, (the sum of money mentioned in the condition thereof being due and unpaid,) assign the said bond to the said plaintiff; of which said assign- ment the said defendants afterwards, to wit, on the day and year last mentioned, at the county aforesaid, had notice. By means of all which premises, and by virtue of the act of the general assembly in that case made and provided, an action hath ac- crued to the said plaintiff, as assignee aforesaid, to demand and recover of the said defendants, the said sum of $ 300. Yet the said defendants, although often requested, have not, nor hath either of them, paid to the said plaintiff the said sum of $300, or any part thereof, but the same to him to pay, have, and each of them hath hitherto refused, and they do, and each of them doth, still refuse, to the damage of the plaintiff of $ 300 ; and herefore he brings suit &c. * The fact of the escape is not to be introduced after the word whereas, but is to be positively alleged. Syme v. Griffin, 4 H. &, M. 277. In Smith and others v. Jansen, 8 Johns. 111. the breach suggested was that the prisoner did not remain a true and faithful prisoner according to the condition of the bond, but that he escaped without being dis- charged by due course of law. This suggestion assigned the breach generally by negativing the words of the condition, and was considered sufficient. t In Meredith's adm'r v. Duval, 1 Munf. 82. the declaration stated the escape to have been on the 1st of September 1790, and the assignment by the sheriff as of the 1st of March 1790, and the objection was made Declarations in debt. 473 that no breach appeared to have taken place at the time of the assign- ment. This objection was overruled, because oyer had been taken of the bond, and the assignment exhibited thereon appeared to be long pos- terior to the breach. 38. On a boiid given upon obtaining an appeal or supersedeas. 1 Rob. Prac. 69. 70. In an action upon an appeal or supersedeas bond, no objection can be taken for want of technical form in the judgment of affirmance, nor can the ground be taken that there was error in the judgment of affirm- ance, which was amended as a clerical error when it could only be cor- rected with propriety by an appellate court. The court, before which the action is brought, upon the appeal or supersedeas bond, must consi- der those proceedings as regular, and as obligatory on the parties, until they are reversed by proper authority. Miller v. M'Luer, Gilm. 338. If the appeal abate by the appellant's death, and there is no revival thereof, an action cannot be maintained against the surety in the appeal bond. Nelson v. Anderson, 2 Call 286. 39. On a bond given upon obtaining an injunction to a judgment. Where an injunction is obtained on account of a defect of title, in land sold to the plaintiff by the defendant, and that injunction is dissol- ved upon terms that the defendant shall execute a bond, for securing the title to the land in question, the defendant, after giving such bond, may maintain an action on the injunction bond, with as much effect as he could have done, had the injunction been dissolved unconditionally. Gray 3? Scott v. Campbell, 3 Munf. 251. Although the condition of the injunction bond does not in terms men- tion the damages, but merely provides for paying the judgment at law and the costs of the injunction, the damages may, notwithstanding, be recovered. Fox 8$ Vowles v. Mountjoy, ex' or of Edwards, 6 Munf. 36. If an injunction be awarded to a judgment at law, and after the dis- solution of that injunction, the complainant appeals to the court of ap- peals, the surety in the bond given for prosecuting the injunction, will not be liable for the costs and damages which may accrue on the appeal to the court of appeals. Woodson v. Johns, 3 Munf. 230. W. D. complains of J. V. and T. M., in custody &c. of a plea that they the said F. and M. the defendants, render to him the said D. the plaintiff, the sum of $ 2100, which to him they owe, and from him unjustly detain. And thereupon the said plaintiff saith, that heretofore, to wit, on the day of , in the j r ear , at the said county of , the said de- fendants by their certain writing obligatory &c. (set it forth) to which said writing obligatory there is a condition to the follow- ing effect, to wit, (here recite the condition). And the plaintiff in fact saith, that afterwards, to wit, at a circuit superior court 60 474 Declarations in debt. of law and chancery for the said county of held on the day of , the said circuit superior court did adjudge, order and decree, that the injunction aforesaid be dissolved, and that the said pay unto the said the costs by the said in the said circuit superior court expended. And the said plaintiff further saith, that the said costs in the said circuit superior court amount to $ , and that the damages to which he is entitled, at the rate of ten per centum per annum, from the time the said injunction was awarded until the said dissolution, on such sum as appears to be due, including the costs recovered at law, amount to a large sum of money, to wit, the sum of $ . And the said plaintiff' avers, that although the said injunction has been dissolved as aforesaid, yet the said J. V. hath not paid to the said plaintiff the money and costs due to him by virtue of the said judgment, nor hath he paid to the said plaintiff the costs awarded against the said J. V. by the decree of the said circuit superior court, nor hath he paid to the said plaintiff the damages aforesaid, but to pay the said money, costs and damages, and every part thereof, the said J. V. hath hitherto wholly neglected and refused. By reason whereof the said writing obligatory hath become forfeited, and action hath accrued to the said plaintiff to demand and have of and from the said defendants the said sum of $2100 above demanded. Yet &c. (as in No. 37.) 40. On a bond given upon obtaining an injunction to a sale under execution. The president, directors and company of the bank of the United States and F. B. D. complain of R. B. P. and D. P., being in custody &c. of a plea that they render to the plaintiffs the just and full sum of $20,481, lawful money of the Uni- ted States, which to the said plaintiffs they owe, and from the said plaintiffs unjustly detain. And thereupon the s"aid plaintiffs say, that heretofore, to wit, on the 15th day of February in the year 1838, at the Said county of H. the said R. B. P. and D. P. by their certain writing obligatory, sealed with their seals, the date whereof is the day and year last aforesaid, ac- knowledged &c. (here the obligation was set forth.) Which said writing obligatory was and is subject to a certain condition thereunder written, whereby, after reciting to the effect follow- ing, to wit, that &c. (here were set forth all the recitals in the condition), it was expressed, declared and provided to the effect following, to wit, that if the said R. B. P. should hold the said slaves, or their value, and upon a dissolution of the said injunc- tion (should it be dissolved), should produce and surrender the Declarations in debt. 475 same, in court, in satisfaction of said executions, and further- more should abide, perform and fulfil the decree, or decrees, of the said court, which might be made in the said cause, then the said obligation was to be void, otherwise to remain in full force and virtue, all which will appear by a duly certified copy of the said writing obligatory, and of the condition thereunder written, now here to the court shewn, the original thereof re- maining filed with the clerk of the said circuit court of the Uni- ted States for the fifth circuit and eastern district of Virginia. And the said plaintiffs further say, that when the said R. B. P. had executed and filed with the clerk of the said circuit court of the United States, bond with security as aforesaid, the said injunction order took effect, and the said R. B. P. thereupon, to wit, on the said 15th day of February 1838, at the county afore- said, received the said slaves. And the said plaintiffs further say that afterwards, to wir, at a court of the United States held for the fifth circuit and eastern district of Virginia, on the thirty- first day of May 1839, the said cause, in which the said jR. B. P. was plaintiff', and the said president, directors and company of the bank of the United States and F. B. D. were defendants, by consent as well of the plaintiff' as of the said defendants, came on to be heard upon the bill of the complainant, the answer of the defendant F. B. D. the examinations of witnesses and the exhibits filed, and was argued by counsel. On considera- tion whereof, the court did adjudge, order and decree, that the injunction awarded the plaintiff in the said cause, to injoin the defendants therein from selling, under the executions in the bill mentioned, the slaves in the said bill also mentioned, should be dissolved, and that the bill of the plaintiff in the said cause should be dismissed, but without costs to either part} 7 , as by the record and proceedings now remaining in the said circuit court of the United States for the fifth circuit and eastern district of Virginia, manifestly appears, a transcript whereof, duly certified, is now here to the court shewn. And the plaintiffs in this action in fact say, that the said R. B. P. did not hold the said slaves, and did not, upon the dissolution of the said injunction, produce and surrender the said slaves, or their value, in court, in satisfaction of said executions, according to the form and effect of the said condition, of the said writing obligatory, but to produce and sur- render the said slaves, or their value, in court, in satisfaction of said executions, has hitherto wholly neglected and refused, and still neglects and refuses to do so. By reason whereof the said writing obligatory became forfeited, and thereby an action has accrued to the plaintiffs in this action to demand and have of and from the said R. B. P. and D. P. the said sum of $ 20,481 above demanded. Yet the said R. B. P. and D. P. although 476 Declarations in debt. often requested so to do, have not, nor has either of them, as yet, paid to the plaintiffs in this action, or either of them, the said sum of $20,481, or any part thereof, but to pay the same, or any part thereof, to the plaintiffs in this action, or either of them, they have, and each of them hath, hitherto, wholly ne- glected and refused, and they do, and each of them doth, still neglect and refuse, to the damage of the said plaintiffs in this action $ 20,000 ; and therefore they bring suit &c. 41. On a bond given upon obtaining an attachment against the effects of an absconding debtor. In an action upon an attachment bond, conditioned that the defen- dant shall pay all costs and damages that may accrue from wrongfully suing out the attachment, the declaration is bad, on general demurrer, if it merely avers that the defendant " did not pay all such costs and damages as have accrued," without alleging that the attachment was wrongfully sued out, or that any costs and damages had been sustained. The mere allegation that the defendant had Tailed to pay the costs and damages that had accrued, is not a sufficient foundation for inferring that costs and damages had been actually sustained. A direct averment is essential. Dickinson, adm'r Sfc. v. M'Craw, 4 Rand. 158. But where damages have been sustained, it is not necessary that they should be previously assessed in some other action, to justify an action on the bond. Ibid. 42. By an heir on a bond to his ancestor conditioned for the quiet en- joyment of lands, assigning a breach since the ancestor's death. In shewing in the declaration how a party is heir, there is a difference between an action by and against an heir. In the- former case, he must shew his pedigree and how heir, for it lies in his proper knowledge, but in the latter he need not, for the plaintiff is a stranger and it would be hard to compel him to set forth another's pedigree. See Denham v. Stephenson, 1 Salk. 355. 2 Wms. Saund. 7e. In an action of covenant by an heir for breach of covenants contained in a conveyance of lands to the ancestor, the declaration averring that the " lands, covenants and writings aforesaid have descended to the plaintiff," it was objected after verdict that there was no sufficient aver- ment that the plaintiff was heir at law, but the objection was overruled. Woodford's heir v. Pendleton, 1 H. & M. 303. The following precedent is copied from the declaration in Eppes's heir v. Eppes's adm'r, 2 Call 22. in which case the action of the heir was maintained : P. E. eldest son, and heir at law, and devisee of P. E. de- ceased, complains of S. D. administrator of all and singular the goods and chattels, rights and credits of T. E. deceased, in custody &c. of a plea of debt, that he render to him the sum of Declarations in debt. 477 600. sterling, which from him he unjustly detains, for this, to wit, that whereas the said T. E. in his lifetime, to wit, on the first day of July, in the year 1761, at the county aforesaid, by his certain writing obligatory, sealed with his seal and to the court now here shewn, the date whereof is the same day and year aforesaid, acknowledged himself, his heirs, executors and administrators, to be held and firmly bound unto the said P. E. deceased, and to his heirs, executors and administrators, in the aforesaid sum of 600. sterling, to be paid when he the said T. or his heirs, executors or administrators, should be thereunto required, with a condition annexed to the said writing obligato- ry, in the words following, to wit : " The condition of this obli- gation is such, that if the above named T. E. his heirs and as- signs, and every of them, shall or may peaceably and quietly have, hold, occupy and enjoy the river plantation, devised to the said P. by his father L. E. deceased, with the appurtenances, and all ways, and woods, and waters thereunto belonging or appertaining, without the let, trouble, suit, eviction, disturbance or contradiction of the within bound T. E. his heirs, executors, administrators or assigns, or any other person or persons what- soever, having, claiming or pretending any right, title, interest or property of, in or to the said plantation or tract of land, or any part thereof, by, from or under the said T. E. or his heirs or assigns, according to the tenour, effect and true meaning of the last will of the said L. E., then this obligation is to be void, and of none effect." And the said P. E. the plaintiff, doth aver, that the said S. D. in right of E. T. his wife, who is grand- daughter of the aforesaid T. E. deceased, and heir at law of the same, actually instituted a suit in the county court of Charles City for the aforesaid lands against the plaintiff, and actually re- covered the same by verdict and judgment, (which upon an ap- peal has been affirmed,) and sued out execution thereon, and was thereby put into possession of the same lands, and is actu- tually in possession thereof at this time, so that the said P. E. the plaintiff, as son and heir at law, and devisee of the said P. E. deceased, is disturbed in and evicted out of the quiet posses- sion and enjoyment of the aforesaid lands : whereby the condi- tions aforesaid are wholly broken, and the aforesaid obligation has thereby become and remains in full force and virtue ; and hence an action accrues to the plaintiff, to have and demand of the defendant, the aforesaid sum of 600. sterling. Neverthe- less, the said T. E. in his lifetime, nor the said S. since the death of the said T. the said sum of 600. sterling, or any part thereof, to the said P. E. in his lifetime, or to the plaintiff since his death, hath not paid, but the same to him to pay, they have refused, and the said S. D. still doth refuse, to the damage of the plaintiff, 1000. and therefore he brings suit &c. 47 S Declarations in debt. 43. On tkc bond of an officer of a banking company r , or other corpo- ration, conditioned to perform the duties of his office. In the case of Albany Dutch church v. Vcdder and others, 14 Wend. 165. the action was on the bond of Gurit Gates as treasurer of the Reformed Protestant Dutch church in the city of Albany, and it was a part of the condition that he should " keep a separate account in the bank of Albany, as such treasurer, of all moneys received by him on account of said church." The assignment was " that the said Gurit Gates did not keep a separate account in the bank of Albany, as such treasurer, of all moneys received by him on account of said church," but large sums of money, amounting to the sum of $ 10,000, received by him as treasurer, were never deposited" &c. To this assignment there was a demurrer, but it was held good. Savage, C. J. who deli- vered the opinion of the court, said, " The plaintiffs do not shew that they have been damnified, nor do they furnish any data by which their damages may be assessed. Upon the assessment it may appear that al- though Gurit Gates did not keep a separate account in the bank of Albany, he had made his deposites in some other equally safe bank ; in which case, only nominal damages could be recovered upon the assign- ment. I am inclined however to think upon authority that the assign- ment is sufficient, although the plaintiffs would be entitled to recover only nominal damages. It seems to be well settled that it was not ne- cessary to set forth the several sums of money received by Gurit Gates, as such particularity would lead to too great prolixity." In Allison v. The Bank, 6 Rand. 204. the declaration, after negativ- ing the performance of the condition in the words thereof, proceeded to assign five several breaches, and there was a demurrer upon the ground that the assignment was too general. It will suffice to state one breach to shew the nature of the objection. The third breach charged the principal obligor with permitting fraudulently, and by the fraudulent keeping of the books, divers persons to over-check, and thereby obtain divers large sums of money from the bank to which" they were not enti- tled, and it was assigned for cause of demurrer that there was a failure to state time or place, names or sums of money. The court of appeals was of opinion that it would have been more formal to have stated some time when the acts were done, but as the breach was assigned to have been committed by the officer, whilst in office, it was considered sufficient. The>?aee was deemed immaterial ; and it was not considered incumbent on the plaintiffs to specify the names of all the persons from whom the money was received. In regard to the sums of money, it would clearly have been sufficient after the words " divers large sums of money" for the declaration to have gone on to state, " amounting to the sum of $ 10,000," or any other gross sum, and as the plaintiffs would not have been required to prove such sum, the omission to state it altogether was regarded as of no importance. In this case, a strong disposition was shewn by the court to get over objections on account of the omission of matters not necessary to be stated for any of the purposes of justice. Declarations in debt. 479 44. On a bond to transfer back, when required, bank stoclc, and pay such dividends as might be declared thereon in the mean time. W. H. P. complains of J. W. being in custody &c. of a plea that he render to the said plaintiff the sura of $32,000, which the said J". W. owes to the said plaintiff, and unjustly detains from him. And thereupon the said plaintiff saith, that hereto- fore, and in the lifetime of one G. W. who is since deceased, to wit, on the 12th day of December 1817, at the said county of H. the said J. W. and the said G. W. by their certain writing obligatory, sealed with their seals, and to the court now here shewn, the date whereof is the day and year aforesaid, acknow- ledged themselves to be held and firmly bound unto the said plaintiff in the sum of $ 16,000, for the payment of which, well and truly to be made, they bound themselves, and each of their heirs, executors and administrators, in the penal sum of $ 32,000, which said writing obligatory was, and is, subject to a certain condition thereunder written, whereby, after reciting to the ef- fect following, to wit, that the said plaintiff had, on the said 12th day of December 1817, delivered over scrip for stock in the bank of the United States, (meaning a certain bank incorporated by the name and style of the president, directors and company of the bank of the United States,) amounting to $ 10,000, to the said J. W. with full power and authority to lake out certificates for the same, in his own name, it was provided that if the said J. W. should, well and truly, pay over to the said plaintiff, his heirs, executors or assigns, all dividends arising on, and from, the said stock, as the same should be declared by the president and directors of the bank of the United States, (meaning the president and directors of the bank incorporated by the name and style of the president, directors and company of the bank of the United States,) and transfer the said stock to the said plain- tiff, his heirs and assigns, when required thereto, then, and in that case, the said obligation should be null and void. And the said plaintiff in fact saith, that the said J. W. hath not paid over, to the said plaintiff, all dividends arising on, and from, the said stock, as the same have been declared by the said presi- dent and directors of the said bank ; but, on the contrary thereof, the said plaintiff saith, that, although after the making of the said writing obligatory, to wit, on the twenty-eighth day of July 1828, at the county of H. aforesaid, certain dividends to a large amount, to wit, the sum of $ 4925 had arisen on, and from, the said stock, and been declared by the president and directors of the said bank, and although he the said J. W. afterwards, to wit, on the day and year last aforesaid, at the county aforesaid, had notice thereof, and was duly required to pay over, to the 480 Declarations in debt. said plaintiff, the said last mentioned sum of money, yet the said J. W. hath not, as yet, paid over, to the said plaintiff, the said last mentioned sum of money, or any part thereof, but to pay the said plaintiff the same, hath, hitherto, wholly neglected and refused, and still neglects and refuses so to do, to wit, at the county of H. aforesaid. And for assigning a further breach of the said condition, of the said writing obligatory, according to the form of the statute, in such case made and provided, the said plaintiff in fact saith that the said J. W. hath not transferred the said stock to the said plaintiff when required thereto ; but, on the contrary thereof, the said plaintiff saith that after the making of the said writing obligatory, to wit, on the twenty-eighth day of July 1828, at the county of H. aforesaid, the said J. W. was duly required to transfer the stock aforesaid, to the said plaintiff, but the said J. W. did not then, nor at any time before or since, transfer to the said plaintiff, the said stock, or any part thereof, but to transfer the same, to the said plaintiff, he the said J. W. hath, hitherto, wholly neglected and refused, and still neglects and refuses so to do, to wit, at the county of H. aforesaid. And the plaintiff avers that neither the said J. W. nor the said G. W. deceased, in his lifetime, nor any person since the death of the said G. W. acting as the representative of the said G. W. or in any other character or behalf, hath paid, to the said plaintiff, the said sum of $ 16,000, wherein the said J. and G. W. by the said writing obligatory, acknowledged themselves to be bound to the said plaintiff, but to pay the same, they have, and each of them hath, wholly failed and made default ; and by reason of the said breaches of the condition, of the said writing obligatory, and of the said failure and default, in pay- ing the said sum of $ 16,000, the said writing obligatory, and the aforesaid penal sum of $ 32,000, became ibrfeited ; and the said G. W. having departed this life, and the said J. W. having survived him, action hath accrued to the said plaintiff, to de- mand and have of and from the said J. W. the said sum of $32,000, above demanded. Nevertheless, the said J. W. and the said G. W. deceased, in his lifetime, (although thereunto often requested,) have not, nor hath either of them, as yet, paid, to the said plaintiff, the said sum of $ 32,000, above demanded, or any part thereof, nor hath the same, or any part thereof, been paid, to the said plaintiff, since the death of the said G. W. by any person as the repre- sentative of the said G. W. or in any other character or behalf, but to pay the same, or any part thereof, the said J. W. and the said G. W. deceased, in his lifetime, and the representative of the said G. W. since his death, and every other person, have Declarations in debt. 481 hitherto wholly neglected and refused, and the said J. W. still neglects and refuses, to the damage of the said plaintiff $ 32,000, and therefore he brings suit &c. 45. Against an officer conducting an election, under the statute crea- ting a penalty for shewing partiality. Sess. acts 1830-31. p. 29. ch. 1. $ 33. Sup. to Rev. Code, p. 112. In Sims v. Alderson, 8 Leigh 479. it was contended that the action of debt could not be maintained ; the statute providing for a recovery by bill, plaint or information. But the court of appeals overruled the ob- jection, considering debt to be comprehended in the word bill. In the same case the first count of the declaration was held good upon general demurrer. The plaintiff after shewing that his suit was qui-tam, and after demanding the precise penalty imposed by the statute, set forth that at the August elections for Fayette in 1831, he was a can- didate for the house of delegates, and that the defendant, being sheriff and conductor of the election, did interfere and shew partiality, in fa- vour of other candidates, and against him " by advising and urging per- sons to vote against him, and by refusing to receive votes of persons known to be favourable to him, though duly qualified, and urging their right to be heard in the said election, and to have their votes received and recorded in his favour." Nothing was considered to be omitted in this declaration so essential to the action as that judgment could not be given according to law and the very right of the case. 46. Upon the statute creating a penalty for receiving more than law- ful interest. 1 R. C. 1819, p. 374. 2. taken from 12 Ann. stat. 2. ch. 16. Fox v. Keeling, 2 Ad. & Ellis 670. 29 Eng. Com. Law Rep. 173. was an action of debt for penalties under 12 Ann. stat. 2. ch. 16. At the trial evidence was given- in support of the counts, but the witnesses were unable to state, in any instance, the day on which the usurious contract took place. For the defendants it was contended that, to sup- port the action, the precise day of the usurious contract must be proved. A verdict being taken for the plaintiff, a rule nisi was afterwards ob- tained from the court of King's bench for entering a nonsuit. Lord Denman, C. J. said, " It is clear from the authorities that time is of the essence of all usurious bargains, and that in a declaration alleging such a bargain, the date of the usurious contract must be stated, and must be proved as laid, even though under a videlicet. A different day can- not be proved, and some day must be stated and proved. In this case, though it is demonstrable that usury was committed, no day was shewn in evidence upon which the contract took place ; nothing was laid be- fore the jury which could enable them to say that the precise offence laid in the declaration was proved. We cannot contend with the de- cided cases. The rule must be absolute." Littledale, Williams and Coleridge, judges, concurred. 61 482 Declarations in covenant. II. IN COVENANT. OBLIGATION OF COVENANTOR CONSTRUED ACCORDING TO ITS INTENT AND MEANING. In Lockridge v. Carlisle, 6 Rand. 20. the covenant stated that the covenantor had received of the covenantee, notes on men in Virginia for collection to a specified amount, and he would be bound to the covenantee for the amount. The court of appeals decided that the covenant was not to pay at all events, but that the covenantor would use reasonable diligence in collecting the debts, and would pay the amount collected upon request. BUT WHATEVER OBLIGATION REALLY IS, MUST BE PERFORMED. Upon the principles of the common law, any one undertaking to do an act, or cause it to be done, is bound to do it, or cause it to be done, at his peril, and to find the means of doing it, unless it cannot possibly be done without the active concurrence of the party with whom the contract is made. Green, J. in Fairfax v. Lewis, 2 Rand. 35. In England, it seems to be doubtful, whether in case of a contract to convey, it is not necessary that the purchaser should prepare the convey- ance and tender it for execution, whether the contract provides that it shall be made at his expense or not. But, if it be necessary, it is an exception to the general rule of law, and founded upon the practice of the profession in that country as to conveyancing. No such practice prevails here. Green, J. in Fairfax v. Lewis, 2 Rand. 35. Tinney v. Ashley Sfc. 15 Pick. 546. In Fairfax v. Lewis, the defendant covenanted that he would cause a tract of land to be conveyed by a third person to the plaintiff. Breach of this covenant was assigned and the defendant pleaded that he had always been ready to cause the land to be conveyed, if he had been re- quired, but the plaintiff never demanded a conveyance. To this plea the plaintiff demurred, and his demurrer was sustained by the superior court of law. The court of appeals affirmed the judgment. OF OBLIGATIONS, WHERE THE COVENANTS ARE DEPENDENT. Where a contract is entire, and the covenants are dependent, the plaintiff is, in general, obliged to aver and prove a complete performance of all that was to be done and performed on his part, before he is entitled to de- mand payment from the other party. Tucker, P. in Clark v. Franklin, 7 Leigh 7. Opn. of court in Love v. Ross, 4 Call 604. Thus where the covenant of the vendor to convey is a condition pre- cedent to the obligation of the purchaser to pay the purchase money, there must, in every such case, be a conveyance or a tender to convey, and the vendor can maintain no action for the purchase money without alleging such conveyance or tender. Brockenbrough v. Ward's adrn'r, 4 Rand. 354. Bank of Columbia v. Hagner, 1 Peters 455. In Green v. Reynolds, 2 Johns. 207. by the articles entered into, the plaintiff, for the consideration thereinafter mentioned, covenanted to execute and deliver to the defendant a good and sufficient deed for 84 acres of land, on the first day of May 1806, and the defendant cove- nanted to pay, to the plaintiff, 1000 dollars, on the first day of May 1806, and a farther sum on a subsequent day, which was specified. The action being for the non-payment of the 1000 dollars, on the first of May 1806, and the declaration not averring that the plaintiff had ten- Declarations in covenant. 4S3 dered a deed on that day, the defendant demurred, and judgment was given in his favour. In Johnson v. Wygant, 11 Wend. 48. the defendant covenanted to pay the plaintiff for the land 155 in three equal annual payments, with interest annually on the whole sum until paid, " and upon the payment thereof, (the covenant proceeded,) I am to receive from the said John- son a good warrantee deed of said land." The consideration money, though payable by instalments, was all due before the bringing of the action, and the breach assigned, in all the counts, was the non-payment of the whole consideration money, and not of the first or second instal- ment. But there was no allegation that a deed had been made or ten- dered, and the declaration being demurred to, judgment was given for the defendant on the demurrer. Sutherland, J. who delivered the opinion of the court, said, " The payment of the last instalment, or the whole consideration money, and the giving of the deed, were to be concurrent acts. Upon the payment of the money, the deed was to be given. It is well settled that covenants like these are dependent, and that neither party can recover against the other, without averring a tender of per- formance on his part. A mere readiness to perform is not sufficient. If the vendor sues for the consideration money, he must aver a tender of such a deed as by the terms of the contract he was to give. If the ac- tion is brought by the vendee against the vendor for not conveying, he must aver a tender of the consideration money before suit brought." WHERE ON ONE SIDE ONLY, PERFORMANCE DEPENDS ON PRIOR PER- FORMANCE BY OTHER. Sometimes where language has been used not unlike that in the last case, the covenants have been considered, not as mutual conditions to be performed at the same time, but as conditions dependent on each other, in which the performance of one depended on the prior performance of the other. Thus in Northrup v. Northrup, 6 Cow. 296. the defendant covenanted to pay certain rent due and in ar- rear to one D. Tomlinson, on a certain farm, and all which should be- come due on the 25th of March 1825 ; the whole to be paid on that day; and the plaintiff covenanted that, on the defendant's so paying the rent, he the plaintiff would give up and discharge a certain bond and mortgage. In an action for not paying the rent at the day, the cove- nants were held to belong to that class in which the obligation to per- form one depended on the prior performance of the other. The giving up and discharging the bond and mortgage were to be subsequent to the payment. The enquiry always is what was the intention and understanding of the parties, to be derived from their contract. The conclusion, in the preceding case, that the performance by the plaintiff, of his part of the agreement, was naturally to be subsequent to the performance of the de- fendant, it is said in Slocum Sfc. v. Despard, 8 Wend. 615. must have rest- ed principally upon the circumstance that the payment to be made by the defendant was to be made to a third person, and not to the plaintiff him- self, and that the defendant was, of course, bound to produce evidence of the payment, which presupposed the act to have been done before the plaintiff was bound to perform. That circumstance, existing also in the latter case, was considered to be entitled to the same weight there, that was given to it in Northrup v. Northrup. Independently of that circum- 484 Declarations in covenant. stance, it was supposed, that neither case could be distinguished from many of those, in which the covenants have been held to be mutually dependent. In Dox and Mercer v. Dey, 3 Wend. 356. it appeared by the agree- ment, which was made in March, that Dey sold to Dox p Co. a speci- fied quantity of wheat, to be delivered on board of boats at or near a particular storehouse, at any time Dox Sf Co. might require, after the first day of April next, and he was to receive, for the same, a certain sum per bushel, on the first day of September next. In an action by Dox Sf Co. against Dey, for failing to deliver the wheat, the promise of Dey was held to be independent. For, by the terms of the agreement, the delivery of the wheat became due, and was demandable, on the first day of April, and the consideration money was not to be paid until the first of September thereafter. Afterwards, in the case of Dey v. Dox Sf Mercer, 9 Wend. 129. it was argued that as the promise to deliver the wheat was independent, the promise to pay the money must be also independent. But this, the court say, is an entire mistake. " In all cases, (except concurrent pro- mises, where the performance of both takes place at the same time,) where the performance of one promise is a condition precedent, and must be performed, or excused, before the right of action exists for the performance of the other promise, the one is independent and the other dependent. The definition of a dependent covenant or promise shews this : If A. covenants to do, or to abstain from doing, a certain act, in consideration of the prior performance of some covenant on the part of B., A.'s covenant is termed a dependent covenant, because B.'s right of sueing A. for a breach of this covenant, depends upon the prior per- formance, (or what is equivalent,) of the covenant to be performed by B., which, from its nature, is termed a condition precedent. But it is ob- vious that the covenant of B. is independent, because it must be per- formed without reference to the covenant of A., and for a breach of it, A. may recover damages, without shewing a performance himself." WHERE THE COVENANTS ARE WHOLLY INDEPENDENT. Courts lean against construing covenants to be independent, unless such is the ob- vious intent of the parties. Dakin v. Williams fyc. 11 Wend. 67. But if the justice of the case requires it, though the words of a covenant are dependent in form, the covenant shall yet be construed to be independent. Bream v. Marsh, 4 Leigh 24. WHEN PERFORMANCE BY PLAINTIFF NEED NOT BE AVERRED OR PROVED. Where the covenant alleged to be broken, is construed to be indepen- dent, it is clearly unnecessary for the plaintiff to aver or prove the per- formance of any covenant on his part. Green, J. in Fairfax v. Lewis, 2 Rand. 35 and 38. Duvall v. Craig, 2 Wheat. 58. And even where the covenants are dependent, if the defendant has prevented a perfor- mance by the plaintiff, it is not necessary that the plaintiff should aver or prove a complete performance to entitle him to his action. It is suffi- cient in such case to shew a readiness to perform, and that he was hin- dered by the defendant. Clark v. Franklin, 7 Leigh 1. How BREACH OF COVENANT is TO BE ASSIGNED. A breach should be so alleged that the covenant may clearly appear to have been broken. See opinion of Roane, J. in Austin's adm'x v. Whitlock's ex'ors, 1 Munf. Declarations in covenant. 485 492. But it is not necessary to assign a breach precisely in the words of the covenant. It is sufficient to lay it according to the intention of the parties, as collected from the instrument. In Buster's ex' or v. Wallace, 4 H. & M. 82. the declaration set forth a covenant to sell to the plaintiff a certain quantity of land in a parti- cular place, and to refund the money, or a due proportion, in case " the land, or any part thereof, should be lost." The breach assigned was that the defendant had no land at all in the place specified ; and it was held sufficient. In Pollard Sfc. v. Dwight Sfc. 4 Cranch 421. the defendants cove- nanted that they were " lawfully seized of the lands and premises, with their appurtenances, and had good right, and lawful authority, to sell and convey the same, in manner and form aforesaid ;" and the breach assigned was " that they were not, nor were any or either of them, law- fully seized and possessed of any estate whatever, in the said land and premises, nor in any part thereof, nor had the said defendants, or either of them, good right and lawful authority to sell and convey the said land and premises as aforesaid." It was objected to the declaration that it ought to have alleged a disseisin of the plaintiffs, to enable them to main- tain their action. This led to the enquiry whether the covenant of the vendors could be broken, as stated in the declaration, although no evic- tion had taken place ; and the court was of opinion that it might be so broken. In Duvall v. Craig, 2 Wheat. 59. the defendants, by their deed, cove- nanted that the premises, bargained and sold, were free from all former incumbrances by them. The declaration averred that the premises were not free from all former incumbrances by the defendants, but, on the contrary, two of the said defendants (who were named) had, theretofore, assigned the plat and certificate of survey to a certain J. H. C., by virtue of which assignment, the governor of Virginia had granted the land to said J. H. C., by a certain patent, which, at the time of the deed, was in full force, by reason of which assignment, patent and incumbrance, the plaintiff had been prevented from having, or enjoying, all, or any part, of the premises. Upon general demurrer, this was taken as an averment that the possession of the premises was legally withheld from the plaintiff by the parties in possession, under the prior title thus set up ; and the covenant was held to be thereby broken. It was not con- sidered a valid objection to the declaration that the prior title was stated to be under an assignment by only two of the covenantors ; nor that there was no profert of the assignment, nor that the assignment was not averred to have been made for a valuable consideration. Where the covenant stated in the declaration is a mere covenant of warranty, it is necessary to allege substantially, an eviction by title paramount, but no formal words are prescribed in which this allegation is to be made. In Day Sfc. \. Chism, 10 Wheat. 449. the plaintiffs averred " that the said Obadiali had not a good and sufficient title to the said tract of land ; and by reason thereof, the said plaintiffs were ousted and dispossessed of the said premises, by due course of law." This averment, the court thought, contained all the facts constituting an eviction by title paramount. " The person," says the court, " who, from want of title, is dispossessed and ousted by due course of law, must, we think, be evicted by title paramount." 486 Declarations in covenant. In Daniels ex'or v. Cook, 1 Wash. 306. the defendant's testator co- venanted for himself and his heirs to warrant the title to a slave against all persons whomsoever ; and the declaration charged that the slave had been recovered by W. M. by the judgment of the county court of King and Queen, and that neither the testator nor the executor had kept the testator's covenant. It was held unnecessary to charge in the declara- tion notice to the defendant, or his testator, of the pendency of the ac- tion of detinue. Breaches should not be assigned in the same count which are repug- nant to each other. In Day fyc. \. Chism, 10 Wheat. 453. the plain- tiffs alleged that from the defect of title in the vendor, they had not been able to obtain possession of the premises ; and also that they had been dispossessed of those premises by due course of law. These aver- ments were in opposition to each other. But the allegation that pos- session had never been obtained was immaterial, because not a breach of the covenant ; and a majority of the court thought it might be disre- garded on general demurrer. BY AND AGAINST WHOM ACTION FOR BREACH OF COVENANT MAY BE MAINTAINED. An action for breach of the covenants, contained in an indenture, cannot be maintained in the names of persons who are no parties to the indenture. If two overseers of the poor be parties to an indenture of apprenticeship, and the covenants be with them, but not with their successors, the action cannot be maintained in the names of the successors. Poindexter v. Wilton fyc. 3 Munf. 183. Where a covenant is with two jointly, to pay a sum of money to each, in such case, the interest is several, and, one of them having no interest in the performance of the duty to the other, the action must be several, not joint. In Carthrae v. Brown, 3 Leigh 98. the declaration alleged that the defendant covenanted with Brown and Jarman to pay them $ 300, to wit, to each of them one moiety thereof, on or before a speci- fied day, and also the sum of $ 400 at another day. The words, " to each of them, one moiety thereof," were considered a covenant to pay several sums to each of two persons, respectively, $ 150 to one, and 8 150 to the other ; and the words, " also the sum of $ 400," were con- sidered not to alter the character of the preceding covenant, but on the contrary to take their character from it. It was therefore held that an action brought by the surviving covenantee, to recover the whole money, could not be sustained. Where the covenants of both parties are expressed to be on their own behalf, and, for their due performance, they bind themselves each to the other, each may maintain an action of covenant against the other, in his individual capacity, notwithstanding the deed purports to have been signed and sealed by them, as agents for other persons, and the intro- ductory part is worded in like manner. Hartshorne v. Willis, 3 Munf. 557. If an agent, executor or trustee, bind himself, by a personal covenant, he is liable at law for a breach thereof, in the same manner as any other person, though he describe himself as covenanting as agent, executor or trustee ; for, in such case, the covenant binds him personally, and the addition of the words, as agent, executor or trustee, is but matter of de- scription, to shew the character in which he acts, for his own protec- Declarations in covenant. 4S7 tion, and in no degree affects the rights or remedies of the other parties. See opn. of court in Duvall \. Craig, 2 Wheat. 56. The statute of Virginia declaring that executors or administrators may sue or be sued, whether they be or be not named in the instrument, is cited in 1 Rob. Prac. 52. In DanieTs executor v. Cook, 1 Wash. 306. cited ante, p. 486. it was objected that an action would not lie against the executor, upon the co- venant of warranty, because the testator bound himself and his heirs, but the objection was overruled. Without enquiring whether the exe- cutor is bound by such a covenant in a conveyance of real estate, wherein he is not named, the court considered it clear that in personal contracts, if the testator be bound, the executor is also bound, though not named. In Payne's ex'ur v. Sampson, 2 Wash. 155. the action was for breach of covenants for quiet enjoyment of the land conveyed, and that the pre- mises were clear of incumbrances. The question was whether the ac- tion would lie against executors ; they not being specially named. The court of appeals held that it would. In Tabb's adm'r v. Binford, 4 Leigh 132. the bargainer covenanted for himself and his heirs with the bargainee that he the bargainer would warrant and forever defend to the bargainee, his heirs and assigns, the title to the lands, against all persons whatever. After eviction, an ac- tion for the breach of this covenant was brought against the adminis- trator of the bargainer ; and the action was sustained. The court of appeals considered the covenant to be a personal covenant, and held the personal representatives of the covenantor bound, although not named. How TITLE MUST BE DEDUCED BY PLAINTIFFS, CLAIMING AS HEIRS OR DEVISEES OF covENANTEE. In Day Spc. v. Chism, 10 Wheat. 452. the plaintiffs claimed both as heirs and devisees, and did not shew, in parti- cular, how they were heirs, nor did they set out the will. Marshall, C. J. delivering the opinion of the court said, " It is undoubtedly true, that their title cannot be in both characters, and that the will, if it passes the estate differently from what it would pass at law, defeats their title as heirs. But a man may devise lands to his heirs, and the statement that they are his heirs, as well as his devisees, though not a strictly ar- tificial mode of declaring, is an error of form, and not of substance. Of the same character is, we think, the omission to state how the plain- tiffs are heirs, or to set out the will. Although in the case of Denham v. Stephenson, 1 Salk. 355.* the court says ' that where H. sues as heir, he must shew his pedigree and content hares, for it lies in his proper knowledge,' the court does not say that the omission to do this would be fatal on a general demurrer, or that it is an error in substance." See also WoodforcFs heir v. Pendleton, 1 H. &. M. 303. cited ante, p. 476. * Cited ante, p. 417. and p. 476. 488 Declarations in covenant. 1. On a covenant to warrant and defend the quantity of land men- tioned in a deed. Wood/bra's heir v. Pendleton, 1 H. & M. 303. J. M. complains of C. T. in custody &c. of a plea of breach of covenant : For this, to wit, that the said C. and M. his wife, on the 17th day of March, in the year 1819, at the said county, by their certain indenture of bargain and sale, sealed with their seals, and to the court now here shewn, "the date whereof is the same day and year aforesaid, did, in consideration of $ 11,000 of lawful money of the United States, paid to them by the said J. before the signing, sealing and delivery of the said indenture, the receipt whereof was thereby acknowledged, grant, bargain, sell, alien and convey unto the said J. his heirs and assigns for- ever, a certain tract or parcel of land, and its appurtenances, containing by estimation 400 acres, being the same tract or parcel of land in the county of H. which &c. (here the descrip- tion contained in the deed was recited) ; and also two contiguous lots or parcels of land in the same county of H. designated by the appellation of No. 15, and No. 17, in a plan and survey of a tract of land called the Brook Farm, made by R. Y. surveyor for the city of R. for R. C. W. the 6th day of May, in the year 1817 ; which two lots are, in and by the said indenture, descri- bed to contain together 17 acres and 34 poles, and to be bounded as follows, to wit, (pursuing the description in the deed.) And the said C. T. in and by the said indenture of bargain and sale, did covenant with the said J. his heirs and assigns, as follows, to wit, to warrant and defend all the land thereby sold and conveyed, and the quantity thereof as therein specified, to- gether with all the privileges and appurtenances to the same in any manner belonging, unto the said J. and his heirs and assigns forever, from and against the claims and demands of all persons and every person whatsoever, to execute and deliver to the said J. M., his heirs and assigns, when thereto required, and free of any cost or charge whatever, to him or them, any other deed or deeds, and to do all other acts considered necessary by counsel, for confirming and quieting the title of him and them, in and to the several parcels of land thereby sold and conveyed, agreea- bly to the true intent and meaning of that indenture ; and lastly, that he the said C. T. was then in lawful possession of the said several parcels of land, and seized of an indefeasible title in fee simple therein, as by the said indenture, reference being thereto had, will more fully and at large appear. And although the said J. hath always, from the time of making the said indenture, hitherto, well and truly, performed, fulfilled and kept all things therein contained, on his part to be done and kept, according to the tenour and effect, and true intent and meaning thereof; yet Declarations in covenant. 489 the said J. saith that the said C., since the making the said inden- ture as aforesaid, hath not performed, fulfilled and kept the said covenants in the said indenture contained on his part to be per- formed, fulfilled and kept, according to the tenour and effect, and true intent and meaning of the said indenture, in this : that the said tract of land in the said indenture first mentioned, de- scribed and conveyed, as containing by estimation 400 acres, and warranted by the said C. as aforesaid to contain that quan- tity, does not in fact contain that quantity, but only the quantity of acres ; and that the said two lots designated in the said indenture by the appellation No. 15 and No. 17. and therein described and conveyed as containing together 17 acres and 34 poles, and warranted by the said C. to contain that quantity, do not in fact contain that quantity, but only the quantity of acres, to wit, at the county of H. aforesaid. And so the said J. in fact says, that the said C. (though often requested so to do), hath not kept the said covenant so made by the said C. with the said J. in manner and form aforesaid, but hath broken the same, and to keep the same with the said J. hitherto hath refused, and still doth refuse, to the damage of the said J. of $5000 ; and therefore he bringeth suit &c. 2. On a covenant to warrant and defend the title to land conveyed. The following precedent is taken from the declaration in Tabb's adm'r v. Binford, 4 Leigh 132. cited ante, p. 487. P. B. complains of J. P. B. administrator of T. T. deceased, of a plea of covenant broken in this, to wit, that whereas here- tofore, to wit, on the 1st March 1S15, at the county aforesaid, by a certain indenture made between the said T. T. in his life- time, of the one part, and the said P. B. of the other part, which said indeniure, sealed with the seal of the said T., is to the court now here shewn, the date whereof is the same day and year aforesaid, the said T. in consideration of the sum of 22S5 dol- lars to him, by said B. then paid, did grant, bargain and sell, alien, enfeofF and confirm unto him the said B. two certain tracts or parcels of land in the said county, one lying on the Great Cat-tail run, containing 397 acres, more or less, and the other on the Little Cat-tail run, containing fifty acres, more or less, bound- ed and described, as in the said indenture is more particularly set forth : to have and hold the said parcels of land, with their ap- purtenances, to said B. his heirs and assigns forever. And the said T. T. then and there, by the said indenture, did covenant for himself and his heirs, to and with the said B. that he the said T. would warrant and forever defend, to said B., his heirs and 62 4:90 Declarations in covenant. assigns, the title to the said tracts or parcels of land, against all persons whatever, as by the said indenture, reference being thereunto had, will, among other things, more fully appear. And the plaintiff, in fact, sailh that the said T. in his lifetime, and the defendant since his death, have not defended to him, the title to the said tracts or parcels of land, against all persons whatever; but, on the contrary thereof, , who at the time of making said indenture, and continually until the eviction hereafter mentioned, had, and still have, lawful title to the said lands, did enter into the same, in and upon the possession of the plaintiff in the said lands and appurtenances, and, by process of law, ejected and removed the plaintiff against his will from his possession and occupancy of said two tracts and parcels of land, with the appurtenances, and still holds him out of possession of the same, to wit, on &c. at &c. contrary to the form and effect of said indenture, and of said covenant by said T. so, in that behalf, made as aforesaid. By reason of all which premises, the said plaintiff hath not only lost the said tracts of land &c. and divers large sums of money, amounting in the whole to 1000 dollars, by him laid out and expended in improving said pre- mises, but hath also paid the costs and charges sustained by the lessees of said in prosecuting their action of ejectment in this court, against him the said B. for the recovery of said lands &c. amounting to the sum of dollars, and also di- vers other sums of money, amounting to the sum of dol- lars, in defending the said action of ejectment, to wit, &c. afore- said. And so the plaintiff saith the said T. in his lifetime, and the defendant since his death, have not kept the said covenant, but have broken the same ; and the said T. in his life, and since his death the defendant, though often requested, have not kept the said covenant, and the defendant doth still refuse to keep the same, to the damage of the plaintiff of $ 10,000. Where- fore he bringeth suit. 3. By lessor against lessee for brea-ch of covenant to pay rent reserved by deed. for that, whereas heretofore, to wit, on the first day of September, in the year 1815, at the county aforesaid, by a certain indenture, then and there made between the said W. 'of the one part, and the said G. of the other part, which indenture, sealed with the seal of the said G. is now here shewn to the court, the date whereof is the same day and year aforesaid, the said W. did demise, lease and to farm let unto the said G. a certain house and stable belonging to the said W. in the town of Bath, in the county of Berkeley, (except a cer- Declarations in covenant. 491 tain room in the said house, then known by No. 3.) lying and being on the street leading to HancocTctown, with all and singular the appurtenances thereunto belonging, (except as before ex- cepted,) to have and to hold the said house and stable, with their appurtenances, (except as before excepted,) unto him the said G. for the space of three years, to be fully completed and ended from the said first day of September aforesaid : yielding and paying therefor, to the said W. his heirs, executors, administra- tors or assigns, the annual or yearly rent of S 200, to be paid each and every year severally, on or before the first day of Sep- tember in each year, during the continuance of the said term. And so the said G. did thereby, for himself, his heirs, executors, administrators and assigns, covenant and agree to and with the said W., his heirs and assigns, that he the said Gf., his executors, administrators and assigns, would well and truly pay, or cause to be paid, to the said W. his heirs and assigns, the said yearly rent, or sum of $ 200, at the several days and times aforesaid, as by the said indenture, reference being thereto had, will (among other things) more fully and at large appear. By virtue of which said demise, the said G. afterwards, to wit, on the said first day of September 1815, entered into and upon all and sin- gular the said demised premises, with the appurtenances, and became and was possessed thereof for the said term, so to him thereof granted as aforesaid. And although the said W. hath always, from the time of making the said indenture, hitherto well and truly performed, fulfilled and kept, all things, in the said indenture contained, on his part to be performed, fulfilled and kept, according to the tenour and effect, true intent and meaning of the said indenture, to wit, at the county aforesaid : 5fet, (protesting that the said G. hath not performed, fulfilled or kept, any thing in the said indenture contained, on his part and behalf to be performed, fulfilled and kept, according to the te- nour and effect, true intent and meaning thereof,) the said W. says, that after the making of the said indenture, to wit, on the first day of September 1818, at the ?ame county, a large sum of money, to wit, the sum of $ 600, the whole of the rent afore- said for the whole of the said term then elapsed, became and was, and still is in arrea^ and unpaid to the said W. contrary to the tenour and effect, and true intent and meaning, of the said indenture, and of the said covenant of the said G. by him, in that behalf, so made as aforesaid. And so the said W, in fact saith, that the said &c. (as in No. 1.) 492 Declarations in covenant. 4. For hire agreed to be paid for a slave and the value of clothing which the hirer was to furnish. J. B. P. complains of L. W. in custody &c. of a plea of breach of covenant. And thereupon the said plaintiff saith that heretofore, to wit, on the first day of January 1827, at the said county of H. the said L. W. by a certain writing obligatory, sealed with the seal of the said L. W. and to the court now here shewn, the date whereof is the day and year aforesaid, did co- venant, promise and oblige himself to, and with, the said plain- tiff, in manner and form following, that is to say, that he the said L. W. should and would pay to the said plaintiff', on or before the first day of January 1828, seventy-five dollars, being for the hire, for the year 1827, of a negro man named Charles ; and also that he the said L. W. should, and would, furnish the said negro man named Charles with such clothes as are usually furnished hired negroes, together with a hat and blanket at the end of the said year 1827. And the plaintiff avers that the said-L. W. did not pay to him the said plaintiff the said sum of seventy-five dollars, on or before the first day of January 1828, as he ought to have done, according to the form and effect of his said cove- nant, in that behalf, so made as aforesaid, but hath, hitherto, wholly neglected and refused so to do, to wit, on the said first day of January 1828, at the county aforesaid. And the said plaintiff further avers, that the said L. W. did not furnish the said negro man named Charles with such clothes as are usually furnished hired negroes, nor with a hat or blanket, at the end of the year 1827, as he ought to have done, according to the form and effect of the said covenant, in that behalf, made as afore- said, but hath, hitherto, wholly neglected and refused so to do, contrary to the said writing obligatory and the said covenant of the said L. W. in that behalf, made as aforesaid, to wit, on the first day of January 1828, at the county aforesaid. Wherefore the said plaintiff says, that by reason of the said breaches of the said covenants of and by the said L. W. as hereinbefore mentioned, he has sustained damage to the amount of $ 150 ; and therefore he brings suit &c. 5, On a covenant to pay the plaintiff at a certain rate for every bushel of wheat which he should deliver, at a particular place, within a specified time. The following precedent is copied from the declaration in the case of Lewis v. Weldon and others, 3 Rand. 71. in which it was decided that the plaintiff had sufficiently averred the performance of the covenants, on his part, to entitle him to recover the price of the wheat which he delivered. Declarations in covenant. 493 L. L. complains of J. W., E. T., G. T. and A. O. in custody &c. of a plea of covenant broken, in this, that whereas by a certain article of agreement made at the county aforesaid, on the 13th day of January in the year 1813, and recited to be an article of agreement between the said L. L. of the one part, and the said J. ^W. (a certain B. T.) the said E. T., G. T. and A. O. of the other part, which said article, sealed only with the seals of the said /., E., G. and A. is to the court now here shewn, the date whereof is on the same day and year aforesaid, it is witnessed that the said L. had agreed to sell to the said J. &c. all the said L.'s crop of wheat, in the county of F. aforesaid, at the price of one dollar and fifty cents per bushel, or every sixty pounds weight of merchantable wheat, at the barn of the said L. the whole whereof to be delivered between the date of the said article and the first day of March then next ensuing ; and the said J., E., G. and A. covenanted with the said L. to pay the said L. for the said wheat at the rate of one dollar and fifty cents for each bushel, or every sixty pounds of wheat, which should be so delivered, within six months from the date of the said article, as by the said article will fully appear. And the said L. in fact saith, that he delivered to the aforesaid J. the whole crop of wheat aforesaid, to wit, 2484 bushels and 15 pounds, equal to pounds, at his barn, after the date of the said article, whereof he delivered 428 bushels, equal to pounds, before the first day of March then next ensuing, and he further in fact saith, that he was always ready to deliver the residue before the 1st of March at his barn aforesaid, but neither the said W. nor any person on his behalf, did attend at the barn aforesaid to receive the same until after the said 1st day of March, after which date, and before the 29th of June, 1813, he delivered the residue. And he further in fact saith, that the said J., E., G. and A. did not pay to the said L. for the said bushels of wheat at the rate of $ 1.50 cents per bushel, or at the rate of $ 1.50 cents for every sixty pounds so delivered, within six months from the date of the said article, against the form and effect of the said article, and of the said covenant of the said J., J5., G. and A. made in that behalf as aforesaid. And so the said L. saith, that the said /., E., G. and A. have not kept their covenant aforesaid, made with the said L. as aforesaid, but have broken the same, and to keep the same with the said L. hitherto have refused, and still do wholly re- fuse, to the damage of the said L. dollars ; and there- fore he brings suit &c. 494 Declarations in covenant. 6. On a writing acknowledging the receipt of certain notes, and stating how the same, when collected,^ were to be applied. The following precedent is taken from the declaration in Jarrett's adm'r v. Jarrett, 7 Leigh 93. The defendants demurred generally to the declaration, but all the counts were considered, by the court of ap- peals, to be good : and it was held therefore that the demurrer was rightly overruled. J. J. complains of J. D. S. and M. J. administrator and ad- ministratrix of all and singular the goods and chattels, rights and credits of E. J. deceased, at the time of his death, who died intestate, in custody &c. of a plea of breach of covenant. For that the said E. J. in his lifetime, on the 4th day of April, in the year 1817, at the county of K. aforesaid, by his certain co- venant in writing, sealed with his seal, and to the court now here shewn, the date whereof is the same day and year afore- said, acknowledged that he the said E. J. in his lifetime, had received from the said J. J. by the name of J. J. jr. two obliga- tions for collection ; the one, a note on a certain J. H. for the sum of 438 dollars 50 cents, the other, a note on B. F. R. for the sum of 150 dollars, which notes, when collected, the said E. J. in his lifetime, covenanted and promised to credit on a bond for 1000 dollars, due the first of May 1816, held by the said E. J. on a certain J. J. sr. as by the said covenant more fully appears. And the said J. J. in fact says, that although the said E. J. in his lifetime, to wit, on the first day of June 1817, at K. aforesaid, collected the amount of said note on the said J. H. for the sum of 438 dollars 50 cents, and also collected the amount of the said note on B. F. R. for the sum of 150 dollars, yet the said E. J. in his lifetime, nor the said J. D. S. and M. J. ad- ministrator and administratrix as aforesaid, since the decease of the said E. J. did not, nor would, credit the amount of the said notes, on the said bond, for 1000 dollars, which was due on the said 1st day of May 1816, held by the said E. J. against the said J. J. sr. And for that also, heretofore, to wit, on the 4th day of April, in the year 1817, at the county of K. aforesaid, the said E. J. in his lifetime, by his certain other covenant in writing, sealed with his seal, and to the court now here shewn, the date whereof is the same day and year last aforesaid, acknowledged that he. had re- ceived from the said J. J. by the name of/. J. jr. two certain other obligations for collection, to wit, one note on J. H. for the sum of 438 dollars 50 cents, the other a note on a certain B. F. R. for the sum of 150 dollars, which said notes, when collected, the said E. J. in his lifetime, covenanted to credit on a bond for 1000 Declarations in covenant. 495 dollars, due the 1st of May 1816, held by the said E. J. in his lifetime, against a certain J. J. sr. as by the said covenant more fully appears. And the said J. J. in fact says, that the said E. J. in his lifetime, nor the said J. D. S. and M. J. administrator and administratrix, did not, nor would, collect the amount of the said note on J. H, for the sum of 438 dollars 50 cents, nor did, nor would, collect the amount of the said note on B. F. R. for the sum of 150 dollars, nor did, nor would, use any en- deavour to collect the said notes, but, on the contrary thereof, omitted to make timely application for the same, and omitted to make any effort whatever for their recovery and collection, (although often requested so to do,) and also to account for the same. And for that also, heretofore, to wit, on the 4th day of April, in the year 1817, at the county aforesaid, the said E. J. in his lifetime, by his certain other covenant in writing, sealed with his seal, and to the court now here shewn, the date whereof is the same day and year last aforesaid, acknowledged that he had received from the said J. J. by the name of J. J. jr. two other certain obligations, to wit, one note on a certain J. H. for the sum of 438 dollars 50 cents, the other a note on a certain B. F. R. for the sum of 150 dollars, and, by the same covenant, pro- mised to endeavour to collect the amount of the said notes, and when collected, to credit the amount which might be collected on a certain bond for 1000 dollars, due the 1st of May 1816, held by the said E. J. upon a certain J. J. sr. And the said J. J. in fact says, that the said E. J. in his lifetime, nor the said J. D. S. and M. J. administrator and administratrix as afore- said, since the decease of said E. did not, nor would, collect the amount of the said note on J. H. for the sum of 438 dollars 50 cents, nor did, nor would, use any endeavour to collect the same, nor did, nor would, collect the amount of the said note on B. F. R. for the sum of 150 dollars, nor did, nor would, use any en- deavour to collect said notes, but, on the contrary thereof, omit- ted to make timely application for the amount of the same notes, or either of them, and omitted to make any effort what- ever for their recovery and collection, and have also failed in any manner to account for the same, although often requested so to do. And so the said E. J. in his lifetime, and the said J. D.' S. and M. J. administrator and administratrix as aforesaid, since the -decease of the said E, although often required, the said covenants aforesaid, with the said J. J. above in this behalf made, have not performed to him, but broke, and have altoge- ther denied, and yet do deny, to perform them, or either of them, to him, to the damage of the said plaintiff of $ 1000 ; and therefore he sues &c. 496 Declarations in covenant. 7. Against a devisee on the specialty of testator. The devisee was for the first time made chargeable, for the debts of his testator, in respect of lands devised to him, by the statute of 3 W. 4* M. which has been enacted in Virginia, and is in 1 R. C. 1819, p. 391. ch. 105. By this statute, the legislature, in terms, limited the means of recovery by the creditors, for whom it provided, to actions of debt. And the court of king's bench decided that the particular remedy given, by ac- tion of debt, on bonds and specialties, where there was no remedy be- fore, could not be extended by the judges to actions of covenant. Wil- son v. Knubley, 7 East. 128. Sugden on Vendors 584. The act of Virginia passed March 9. 1836, to amend the former statute, declares that the devisee of any messuage, laud, tenement or hereditament, or of any profit, term or charge out of the same, claiming under the will of any person who shall hereafter die, shall be liable to any action of covenant, or any other action, upon the deed of the testa- tor, which could be maintained against the heir, in like manner, and to the same extent, as the devisee is now liable to an action of debt, on the obligation of his testator. Sess. acts 1835, 6. p. 42. ch. 63. 8. On an agreement to refer to arbitration and abide by the award. 1 Rob. Prac. 269 to 280. WHAT MUST BE COMPREHENDED IN THE AWARD. Though the words of the award be less comprehensive than those of the submission, yet the award will be good unless it appear that something else was in dis- pute between the parties, besides what is comprehended therein. Thus in Horrel v. M' Alexander, 3 Rand. 94. the bond of submission stated that divers disputes had arisen between the parties, and all matters in dis- pute were submitted, and the award shewed that the arbitrators had decided on one matter only, namely a contract for the sale of the land. There was no evidence to shew that there was any thing in dispute be- tween the parties besides the land contract, and in the absence of such evidence, the divers disputes mentioned in the submission were pre- sumed to have arisen on the single subject of the land. The award was therefore held to be good. To WHOM PAYMENT MAY BE AWARDED. In general an award to pay to a stranger to the submission, is void, but this rule was not considered applicable to the case of Macon v. Crump, 1 Call 575. In that case the submission was of a matter between Macon and Crump as executor of Clapton, and the award was to pay to Crump and Parkeson executors of Clapton. Yet the award was held good. There was no doubt that all the executors of Clapton were in the contemplation of the submission when an account was to be adjusted in which the interest of his estate was involved. Each of the executors might, after the award, have re- ceived the money and granted a discharge. And the payment to Par- keson, as executor, would have been for the benefit of Crump as exe- cutor. BY WHOM PAYMENT MAY BE DIRECTED. Where the award directs payment by one who is a party to the submission, and by another who is Declarations in covenant. 497 no party, the latter portion of the award may sometimes be rejected as surplusage. In Richards v. Brockenbrough' s adm'r, 1 Rand. 449. the difference was between Beetle and Richards, but Brockenbrough became the surety of Beale, and the arbitration bond was conditioned that Beak and Brockenbrough should abide by the determination of the arbitra- tors. The award required Bcale and Brockenbrough to pay the money. And it was objected to as erroneous in making Brockenbrough jointly liable with Scale to pay the debt of the latter. The court of appeals said, it appeared by the award that no other matters were considered but those between Richards and Beale, and the direction that Bcale and Brockenbrough should pay was evidently made in adherence to the in- formality of expression, in the condition of the bond, which required " the said Beale and Brockenbrough" to stand to the award. The court was therefore of opinion that the direction as to Brockenbrough could only be regarded as surplusage. In Armstrong v. Armstrongs, 1 Leigh 491. the submission was be- tween Archibald Armstrong sen'r of the one part and Richard Arm- strong and Archibald Armstrong jr. of the other part, and stated that a dispute had taken place between the said parties, and they had chosen certain persons to settle the difference between the said parties, and fix the amount to be paid to either party. The award set forth that on set- tlement of accounts, it appeared that A. A. jr. was indebted to A. A. sen'r 127; and it directed that a certain sum for which R. A. had sued A. A. sen'r, with a moiety of the costs, should be deducted from the $ 127, and the balance be paid over to him by the other parties. Upon which, action was brought against R. A. and A. A. jr. by A. A. sen'r, for the sum awarded him. It was objected that the award was of mat- ter not submitted ; for it was said, the submission was only of matters in difference between the plaintiff and the defendants jointly, and the award did not ascertain that the defendants jointly owed the plaintiff any thing, nor that he owed any thing to them jointly. The court of appeals said, it was not to be presumed that the arbitrators would make .R. A. jointly liable with A. A. junior for a debt which the latter alone owed. That would be to presume against, instead of, in favour of the award. They would rather suppose that R. A. had joined in the sub- mission either as part of the firm on which A. A. sen'r had the demand, or as surety for A. A. jr., and they would presume that the arbitrators had before them evidence that R. A. was bound (either as principal or surety) for the debt. As to the private debt due to R. A., as he was bound for the whole sum due to A. A. sen'r, the deduction of this debt was in his (R. A.'s) favour, and he could not object. WHAT AWARD is CONSIDERED MUTUAL AND FINAL. An award of pay- ment, of a specific sum, by one party to another,- is mutual and suffi- cient, without directing the latter to execute a release or do any other act. Doolittle v. Malcom, 8 Leigh 608. M'Kinstrey v. Solomons, 2 Johns. Rep. 62. & C. 13 Johns. 27. In Doolittle v. Malcom, the award of the arbitrators was endorsed on the agreement of submission, and signed by them. It was in these words : " We the undersigned arbitrators do agree that A. L. D. shall pay to J. M. the sum of S 200 within six months after date. Septem- ber the 26th, 1831." This award was taken to settle all matters sub- 63 498 Declarations in assumpsit. mitted in the agreement, and was therefore held to be sufficiently certain and final. WHO MAY SUE FOR BREACH OF THE COVENANT. The party with whom the covenant of submission is made, is entitled to sue for breach of the covenant. In Macon v. Crump, 1 Call 575. the submission being be- tween Macon and Crump as executor of Clapton, and the award being to pay to Crump and Parkeson executors of Clapton, the action was brought by Crump, and his declaration set forth that in the dispute be- tween Macon and Crump executor of Clopton, a certain sum was awarded to the plaintiff. The defendant, after taking oyer of the cove- nant and award, demurred to the declaration. And the court of ap- peals overruled the demurrer, being of opinion that the award was set forth according to the operation of the law thereupon, and that Crump was entitled to sue in his own name. The suit of Macon v. Crump was in the plaintiff's own right, for a sum compounded of two sums whereof one was due to him in the cha- racter of executor. But the objection on this ground was overruled. Roane, J. said, " The answer is that the action is on a covenant made to the plaintiff, in his own right, on breach of which an action accrued to him, and his character of executor is no otherwise involved in the ac- tion than that he submitted a matter in which he was concerned as exe- cutor. The defendant might have saved his covenant, by paying a sum of money to him, (amongst other things,) in that character." PROFERT TO HE MADE OF SUBMISSION AND AWARD. In an action on a deed conditioned to abide by an award, and on an award made in pur- suance thereof, profert of the award is equally necessary with the deed to make out the cause of action. Roane, J. in Macon v. Crump, 1 Call 581. How MUCH OF AWARD MUST BE SET FORTH. In an action for not performing the award, the plaintiff need only shew so much of the award as is sufficient to state his demand. He need not shew the award on both sides ; if there be any thing by way of condition, precedent to the payment of the money, the defendant must set it forth in pleading. Opn. of ct. in M' Kinstry v. Solomons, 2 Johns. 62. Doolittle v. Mal- com, 8 Leigh 608. III. IN ASSUMPSIT. ASSUMPSIT NOT TO BE BROUGHT ON SEALED INSTRUMENT. When- ever a man may have an action on a sealed instrument, he is bound to resort to it. In Young v. Preston, 4 Cranch 239. the action was as- sumpsit, brought by Preston against Young, upon a quantum meruit, for work and labour. At the trial the defendant Young offered, in evi- dence, a sealed agreement between the parties, and offered further evi- dence that the work and labour, for which this action was brought, were done in consequence of that agreement, and prayed the court to in- struct the jury that if, from the evidence, they should be of opinion that the said work and labour was done in consequence of the sealed agree- ment, the action of assumpsit would not lie. But evidence having been offered to the jury that the plaintiff was prevented from completing the work mentioned in the agreement by the defendant, who employed Declarations in assumpsit. 499 another person to finish it, the court refused to give the instruction so asked, and thereupon instructed the jury that if they should be of opi- nion that the plaintiff was prevented by the defendant from proceeding to complete the said work, according to the said agreement, in a reason- able time, then the plaintiff had a right to recover, in this form of ac- tion, from the defendant, as much money as the plaintiff deserved to have for the work done by him for the defendant, although the same was done in consequence of the said agreement, and although the whole work mentioned in the said agreement was not completed. To which refusal and instruction the defendant excepted, and, verdict and judg- ment being rendered against him, he brought his writ of error. The supreme court reversed the judgment, some of the judges saying that the plaintiff had a clear right of action up*on the sealed instrument; for he might aver in his declaration that he had, in part, performed the work and was ready to do the rest but was prevented by the defendant.* The opinion of the court of appeals in Lewis v. Weldon and others, 3 Rand. 82. is in accordance with this decision. The case of The Marine Assurance Company v. Young, 1 Cranch 331. was an action of assumpsit against the company upon a policy of insurance given by the company under its common seal, and signed by the president and secretary. After verdict, the supreme court ordered the judgment to be arrested because the action was a special action upon the case on the policy, and the declaration shewed that the policy was a specialty. IT MAY NOW BE BROUGHT AGAINST A CORPORATION. " The technical doctrine, that a corporation could not contract, except under its seal, or, in other words, could not make a promise," mr. justice Story re- marks, " if it ever had been fully settled, must have been productive of great mischiefs. Indeed, as soon as the doctrine was established, that its regularly appointed agent, could contract in their name, without seal, it was impossible to support it; for otherwise the party, who trusted to such contract, would be without remedy against the corporation. Ac- cordingly, it would seem to be a sound rule of law that wherever a cor- poration is acting within the scope of the legitimate purposes of its in- stitution, all parol contracts made by its authorized agents, are express promises of the corporation ; and all duties imposed on them by law, and all benefits conferred at their request, raise implied promises, for the enforcement of which, an action may well lie." See opinion of court delivered by Story, J. in The Bank of Columbia v. Patterson's adm'r, 7 Cranch 306. The decisions in the United States upon this subject, are referred to with respect and approbation, by the court of king's bench in the late case of Bevcrley v. The Lincoln Gas Light and Coke Company, 6 Ad. &/ E. 829. 33 Eng. Com. Law Rep. 222. This was an action against the gas company for gas meters sold and delivered, and the decision in the case is that a corporation may be sued in assumpsit, as well as in debt, on an executed parol contract. OR BY A CORPORATION. Assuming it to be now established that a corporation may sue, or be sued, in assumpsit, upon executed contracts See ante, p. 484. and p. 492, 3. 500 Declarations in assiimpsit. of a certain kind, among which are included such as relate to the sup- ply of articles essential to the purposes for which the corporation is created, the question in Church v. The Imperial Gas Light and Coke Company, 6 Ad. & E. 846. 33 Eng. Com. Law Rep. 230. was whether in respect to the right of a corporation to maintain assttmpsit, there is any sound distinction between contracts executed and executory. The court of king's bench held, in the last case, that the action by the cor- poration, though upon an executory consideration, was well brought. TIME OF THE PROMISE TO BE STATED. In the case of a common as- sumpsit, the day is alleged only for form and the defendant cannot con- fine the plaintiff to the day alleged in the declaration. In Arnold v. Arnold, 3 Bingh. N. C. 81. 32 Eng. Com. Law Rep. 48. the writ issued on the 20th of February, and the promise was laid in the declaration on the 27th of February. After verdict for the plaintiff, it was moved to arrest the judgment on the ground that the cause of action appeared on the face of the record to have accrued after the issuing of the writ. But the court of common pleas held the day to be immaterial and overruled the motion. The court, in its opinion, took a distinction between an action on an oral promise and upon a promissory note, saying with re- spect to the latter that the day would be material. An objection to the declaration because of the manner in which the time is alleged, is listened to with very little favour in those cases in which the allegation is required to be made only for form. In Webb v. Baker, 7 Ad. & E. 841. 34 Eng. Com. Law Rep. 240. the declaration stated that the defendant, " on the 13th day of April A. I). 1836, was indebted to the plaintiff in 50'. for goods sold and delivered, by the plaintiff, to the defendant, and at his request; and in <50. for money found to be due, from the defendant to the plaintiff, on an account therein stated between them; and the defendant afterwards, on the day and year aforesaid, in consideration" &c. promised &c. Upon the argument of a demurrer to the declaration, it was admitted that accor- ding to Lane v. Thelwell, 1 M. & W. 140. Tyrwh. & Gr. 352. the statement of time was sufficient as to the goods sold and delivered, but it was insisted that the time of stating the account ought to have been more specifically pointed out, and Ferguson v. Mitchell, 2 Cro. &, M. 687. Tyrwh. & Gr. 179. was relied on. Lord Denman, C. J. after stating that the judgment of the court must be against the demurrer as being too large, said he could not himself see that the count was bad. In Bingley v. Durham, 8 Ad. & E. 775. 35 Eng. Com. Law Rep. 521. the declaration was in debt, and stated the defendant to be indebted to plaintiff in ,40. " for money found to be due, from the defendant to the plaintiff, on an account before then stated between them." Defen- dant demurred, assigning for cause that the count does not mention the specific time or any particular day on which the account is supposed to have been stated. He relied on Ferguson v. Mitchell before cited, and Spyer v. Thelwell, 2 Cro. M. & R. 692. 8. C. Tyr. &, Gr. 191. Lord Denman, C. J. said, "In those cases, all notice of time was omitted. Here the account is said to have been ' before then stated.' We think that the distinction is sufficient and that the plaintiff must have judgment." Declarations in assumpsit. 501 CONSIDERATION MUST BE SET OUT TO SUPPORT THE PROMISE. A con- sideration for the promise must be set out, and the consideration must appear to move from the plaintiff to the defendant. In Crow v. Rogers, \ Str. 59-2. the plaintiff declared that whereas one J. H. was indebted to the plaintiff in 7Q., upon a discourse between this H. and the de- fendant it was agreed that the defendant should pay the plaintiff's debt of 70. and that H. should make the defendant a title to a house. Then he averred that H. was always ready to perform his part of the agreement, and that the defendant, in consideration thereof, promised to pay the plaintiff. Upon demurrer, it was insisted that there was no con- sideration moving from the plaintiff to support this promise. And ac- cordingly, the court held the plaintiff was a stranger to the considera- tion, and gave judgment for the defendant. More recently, in Price v. Easton, 4 Barn. & Ad. 433. 24 Eng. Com. Law Rep. 96. the declaration stated that one W. P. was indebted to the plaintiff in 13., and the defendant, in consideration thereof, and in consideration that the said W. P. at the request of the defendant, had undertaken and faithfully promised the defendant to work for him, at certain wages agreed upon between them, and in consideration of W. P. leaving the amount which might be earned by him in the defendant's hands, he, the defendant, undertook and promised to pay the plaintiff the sum of 13. Averment that W. P. did work for the defendant and earned a large sum of money, and left the same, in his, the defendant's hands. Breach, non-payment to the plaintiff of 13. The plaintiff, having obtained a verdict, a rule nisi was obtained for arresting the judgment on the ground that the plaintiff was a mere stranger to the consideration. This rule was made absolute, lord Denman, C. J. saying the declaration could not be supported, as it did not shew any conside- ration for the promise moving from the plaintiff to the defendant. Though the promise be in writing, and the writing is specially de- clared on, still a consideration for the promise must appear on the face of the declaration. Beverleys \. Holmes, 4 Munf. 95. Moseley v. Jones, 5 Munf. 23. The precedents of declarations, upon mutual promises, where one is the consideration of the other, uniformly state the promises to have been made, at the same time; that when the plaintiff had promised, the de- fendant, in consideration thereof, then and there, assumed upon himself. In Livingston v. Rogers, 1 Caines'sRep. 584. which was an action upon an agreement, to deliver and receive stock, the three first counts stated that, in consideration the plaintiff had, at the defendant's request, promised to perform his part, the defendant, aftencards, to wit, on the same day promised. It thus appeared that the promise of the plaintiff was ante- cedent to that of the defendant. The promise of the defendant not being made at the same time with that of the plaintiff, but at a subse- quent period, the plaintiff's promise, at the time it was made, was with- out consideration, and therefore void. Being void, it was not sufficient to support the promise of the defendant. Where the consideration is laid as past and executed, it must be laid to have been done upon request. In Parker v. Crane, 6 Wend. 647. the consideration stated was the, sale and conveyance on a day which was then past, of the possession of 50 acres of land ; but it was not 502 Declarations in assumpsit. stated that the possession was sold, at the request of the defendant. The declaration was adjudged bad. PROMISE MUST BE STATED. In assumpsit, the defendant's underta- king and promise constituting the gist of the action, the declaration must state that the defendant undertook and promised. Lee v. Welch, 2 Str. 793. Or it must state something equivalent thereto. Avery v. In- habitants of Tyringham, 3 Mass. Rep. 160. Candler fyc. v. Rossiter, 10 Wend. 487. And the undertaking and promise, (or what is equiva- lent thereto,) must be directly averred. Winston's ex'or v. Francisco, 2 Wash. 187. Sexton v. Holmes, 3 Munf. 566. In Cookc v. Sims, 2 Call 39. the first count in the declaration charged that the defendant made a certain writing which it set forth in hcec verba, and the writing so set forth contained a promise by the defendant that on receiving a certain sum of the funded debt of the United States, he would pay the plaintiff a certain sum of money, but the promise was no otherwise alleged in this count. The court of appeals considered the cases as proving that, independent of the act of parliament in Eng- land and of our act of assembly, (neither of which apply,) an action of assumpsit will not lie on a promissory note singly, without adding a pro- mise. The count was therefore adjudged bad. The case of Wooddy v. Flournoy, 6 Munf. 306. is decided upon the same principle. The second count in this case was held to be defec- tive, because it did not aver that the defendants promised, but only set out the writing in which the promise was alleged to be contained. BREACH OF THE PROMISE MUST BE ALLEGED. A declaration upon an assumpsit to pay money, is insufficient to maintain the action, if it merely charge the assumpsit, but do not allege a breach thereof. Where there are three counts alleging promises to pay three several sums of money, and there is no breach laid at the end of the first or second, but at the end of the third it is alleged that the defendant has not paid the said sum of money, or any part thereof, such allegation can refer only to the third count, and the first and second counts will be regarded as defective. To make the breach extend to the three counts, the defen- dant should be charged with having failed to pay the several sums of money aforesaid, and every part thereof. Ellis v. Turner's adm'r, 5 Munf. 196. UNNECESSARY LENGTH, IN DECLARATIONS, NOW DISCOUNTENANCED IN ENGLAND. By a general rule of the judges of England, adopted in 1831, it is recited that declarations in actions upon bills of exchange, promissory notes, and the counts usually called the common counts, oc- casion unnecessary expense to parties, by reason of their length, and the judges, considering that the same may be drawn in a more concise form, have, for the prevention of such expense, prepared a schedule of forms and directions, and adopted regulations to prevent declarations for any of the demands mentioned in the schedule, or demands of a like nature, from exceeding in length such of the forms set forth or directed in the schedule, as may be applicable to the case. The schedule of forms and directions, so adopted, is published in the 20th volume of English Com- mon Law Reports, p. 324 to 328. and in 4 Bligh's Par. Cas. N. S. p. 585 to 592. The forms of the counts so prescribed upon bills of ex- change, and the common counts also, are hereinafter made use of, tinder their appropriate heads. Declarations in assumpsit. 503 1 . On an inland bill of exchange against the acceptor by the drawer, being also payee. After the usual commencement of " A. B. complains of C. D. being in custody &,c. of a plea of trespass on the case," the form prescribed by the judges of England is as follows : For that whereas the plaintiff, on the day of , in the year of our lord , in the county of , made his bill of exchange in writing, and directed the same to the defendant, and thereby required the defendant to pay to the plaintiff dollars, after the date (or after the sight) thereof, which pe- riod has now elapsed ; and the defendant, then and there, ac- cepted the said bill, and promised the plaintiff to pay the same, according to the tenour and effect thereof, and of his said accep- tance thereof, but did not pay the same when due. 2. Against the acceptor by the drawer, not being the payee. The form prescribed by the judges of England is as follows : As in No. 1. to and thereby required the defendant to pay to E. F. or order dollars, after the date (or after the sight) thereof, which period has now elapsed, and, then and there, de- livered the same to the said E. F., and the said defendant, then and there, accepted the same, and promised the plaintiff to pay the same, according to the tenour and effect thereof, and of his acceptance thereof, yet he did not pay the amount thereof, al- though the said bill was, on the day when it became due, there presented to him ; and thereupon the same was, then and there, returned to the plaintiff; of all which the defendant, then and there, had notice. 3. Against the acceptor by the payee, not being the drawer. For that whereas one E. F. on &c. (as in No. 1.) 4. Against the acceptor by the endorsee. The form prescribed by the judges of England is as follows : For that whereas one E. F. on &c. (as in No. 1. to) and thereby required the defendant to pay to the said E. F. (or to G. H.) or order dollars after date (or after sight) thereof, which period is now elapsed, and the defendant, then and there, accepted the said bill, and the said E. F. (or G. H.) then and 504 Declarations in assumpsit. there, endorsed the same to the plaintiff, (or and the said E. F. (or G. H.) then and there endorsed the same to /. K. and the said I. K. then and there, endorsed* the same to the plaintiff,) of all which the defendant, then and there, had due notice, and, then and there, promised the plaintiff to pay the amount thereof, according to the tenour and effect thereof, and of his acceptance thereof, yet he did not pay the same although the said bill was, on the day when it became due, there presented to him. * Where the action against the acceptor is not brought by the payee, but by a subsequent holder, it is indispensable for it to appear, on the face of the declaration, that such holder has title by endorsement. In Cunli/e Sfc. v. WhiteJiead, 3 Bingh. N. C. 828. 32 Eng. Com. Law Rep. 343. the declaration stated that W. Fraser, to whose order the bill was payable, endorsed the same to Messrs. Salomonson, Fraser fy Co. and that they delivered the same to the plaintiffs. Upon a demurrer to the declaration, judgment was given for the defendant. Tindal, C. J. said, " The endorsement by Fraser, to Salomonson, Fraser Sf Co. with- out an endorsement from the latter to the plaintiffs, does not give the plaintiffs a right to sue in this action. They cannot derive title from delivery alone." 5. Against the drawer by payee on non-acceptance. The form prescribed by the judges of England is as follows : For that whereas the defendant on &c. (as in No. 1. to) and directed the same to J. K., and thereby required the said J. K. to pay to the plaintiff dollars after the date (or after the sight) thereof, and, then and there, delivered the same to the said plaintiff, and the same was, then and there, presented to the said J. K. for acceptance, and the said J. K., then and there, refused to accept the same ; of all which the defendant, then and there, had due notice. The promise and breach will be alleged as stated hereafter in No. 44. 6. Against the drawer by endorsee on non-acceptance. The form prescribed by the judges of England is as follows : As in No. 5. to required the said J. K. to pay to the order of the said defendant dollars, after the sight (or after the date) thereof, and the said defendant, then and there, endor- sed the same to the plaintiff, (or to L. M. and the said L. M., then and there, endorsed the same to the plaintiff,) and the same was, then and there, presented to the said J. K. for acceptance, Declarations in assumpsit. 505 and the said J. JK., then and there, refused to accept the same ; of all which the defendant, then and there, had due notice. The promise and breach will be alleged as stated hereafter in No. 44. 7. Against first endorser by an endorsee on non-acceptance. The form prescribed by the judges of England is as follows : For that whereas one N. O. on &c. (as in No. 5. to) required the said J. K. to pay to the defendant or order dollars, after the date (or after the sight) thereof, and, then and there, delivered the same to the defendant, and the defendant, then and there, endorsed the said bill to &c. (as in No. 6.) The promise and breach will be alleged as stated hereafter in No, 44, 8. Against second or third endorser by his endorsee on non-acceptance, The form prescribed by the judges of England is as follows : For that whereas one N. O. on &c. (as in No. 5. to) required the said J. K. to pay to his order dollars, after the date (or after the sight) thereof, and the said N. O. t then and there, endorsed the said bill to the defendant, (or to L. M., and the said L. M., then and there, endorsed the same to the defendant,) and the defendant, then and there, endorsed the same to the plaintiff, and the same was &c. (as in No. 6.) The promise and breach will be alleged as stated hereafter in No. 44. 9. Against drawer or endorser, where action is brought after expira- tion of time for payment. , The directions of the judges of England are as follow : If the bill be payable at any time after date, insert immediately after the words denoting the time appointed for payment, the following words, viz : " which period has now elapsed;" and instead of averring that the bill was presented to the drawee for acceptance, and that he refused to accept the same, allege that the drawee, (naming him,) " did not pay the said bill, although the same was there presented to him on the day when it became due." If the bill be payable at any time after sight, insert after the words denoting the time appointed for payment, the following words, viz : " and the said" drawee, (naming him,) then and there, saio and accepted the same, and the said period has now elapsed;" and, instead of alleging that the bill was presented for acceptance and refused, allege that the 64 506 Declarations in assumpsit. drawee (naming him) " did not pay the said bill, although the same was presented to him on the day when it became due." In Henry Sfc. v. Burbidge, 3 Bingh. N. C. 501. 82 Eng. Com. Law Rep. 223. the first count of the declaration was as follows : For that whereas the defendant, on the 15th of March, 1836, made his bill of exchange in writing, and directed the same to one J. P. and thereby required the said J. P. to pay to the or- der of the defendant ^29. 18. 10., four months after the date thereof, which period has now elapsed ; and the defendant then endorsed the said bill to the plaintiffs ; and the said J. P. did not pay the said bill, although the same was presented to him on the day when it became due, whereof the defendant then had notice. To this count there was a demurrer, assigning for cause that it con- tained no promise by the defendant to pay the money. Martin, contra, relied on the opinion of Holt, C. J. in Starkey v. Cheescman, 1 Salk. 128. and also upon the circumstance that in an action against the ac- ceptor, it has been held unnecessary to allege a promise. The promise, he said, is implied to arise after the dishonour of the bill, and it is never proved at the trial. Tindal, C. J. said, " Nor is it in an action for goods sold and delivered. And I do not agree that an action against the drawer rests upon the same grounds as an action against the accep- tor of a bill. The acceptance constitutes, in effect, a promise to pay ; but in this action against the drawer, the bill is not a debt, but causes by implication of law, a promise to pay, if the acceptor fails to do so ; which promise should be alleged in the declaration. Mr. justice Bay- ley only says, ' This clause is unnecessary in an action against either the acceptor of a bill or the maker of a note; and it may be doubted, whether it is essential in any other,' Bayley on bills, 408. And though, where the objection was not taken till after judgment, Holt, C. J. said the drawing was a promise, he did not decide that where the objection is pointed out on special demurrer, the plaintiff is not bound to allege a promise." Park, J. and Vaughan, J. concurred. And judgment was given for the defendant. The declaration in Henry fyc. v. Burbidge, appears to be in the form prescribed by the judges of England, so far as the form is peculiar to the particular case. The pleader failed to notice that the english judges, in stopping the particular form where they did, supposed that in every declaration there would be besides the special count, some common counts, and they framed a general conclusion applicable both to the special and the common counts. In this general conclusion, there is the allegation of a promise and of the breach thereof. See the form of it in No. 44. Declarations in assumpsit. 507 10. Against drawer or endorser of bill protested for non-acceptance or nan-payment, where damages are claimed under the Virginia statute. The statute of Virginia provides that a bill of exchange or draft for money in the nature of a bill of exchange, drawn by any person or per- sons residing in (his state, on any person or persons in the United States, or in the territories thereof, or in the district of Columbia, shall be con- sidered as an inland bill ; and if such bill or draft shall be protested for non-acceptance or non-payment, the drawer or endorser shall be subject to the payment of one per centum damages thereon, and the bill or draft shall carry an interest of six^er centum per annum from the date of the protest, until the money therein drawn for shall be fully satisfied and paid. 1 R. C. 1819, p. 483. 1. The count which follows is against an endorser. It conforms to the rule of the english judges, as near as may be, inserting in it what seems proper to bring the case within the statute of Virginia. For that whereas on the 20th day of January 1834, at Rich- mond, to wit, in the said county of H., W. A., J. T. and T. G. T. then residing in the state of Virginia, and trading as partners under the firm of A. T. fy Co., made their bill of exchange in writing and subscribed thereto the name of their said firm, and directed the said bill to J. W. fy Co. by the name and addition of J. W. fy Co. New York, (the said New York being a city in the United States, and the said J. W. fy Co. being persons residing in the United States,) and thereby required the said J. W. fy Co. to pay, to the order of the said defendant, $ 535, one hundred and eighty days after the date thereof; and the said defendant, then and there, endorsed the said bill to the plaintiff, and sub- scribed his name to the said endorsement. If presented for acceptance, say and afterwards, on the day of , at New York aforesaid, to wit, in the said county of H. the said bill was presented to the said J. W. fyCo. for ac- ceptance, and the said J. W. fyCo. then and there, refused to ac- cept the same. Jf presented for payment, say and the said J. W. &f Co. did not pay the said bill, although the same was presented to them, on the day when it became due. And then, in either case, proceed as follows : And the said bill was thereupon duly protested for non-ac- ceptance (or non-payment) of all which the defendant, then and there, had due notice; and the said defendant afterwards &c. in consideration of the premises, then and there, promised to pay to the plaintiff on request the said money, with one per centum damages thereon, and interest on the said money at the rate of six per centum per annum, from the date of the said protest, to 50S Declarations in assumpsit. wit, from the day of until the said money should be paid. Yet he hath disregarded his promise and hath not paid the said money, damages and interest, or any part thereof. 11. Against drawer by an acceptor who accepted for accommodation of drawer. For that whereas heretofore, to wit, on the fourteenth day of August 1828, at New York, to wit, at the county of H. aforesaid, in consideration that the said plaintiff, for the accommodation, and at the special instance and request, of the said C. B. W., would accept two certain bills of exchange in writing, bearing date the day and year aforesaid, and made and drawn by the said C. B. W. on the plaintiff, by the name and address of " Mr. J. W. New York" by one of which bills the said C. B. W. re- quired the said plaintiff, four months after the date thereof, to pay to the order of mr. W. W. jr. $902.89 cts. as for value re- ceived, and by the other of which bills the said C. B. W. re- quired the said plaintiff, six months after the date thereof, to pay to the order of W. W.jr. $ 902.89 cts. as for value received, he the said C. B. W. undertook, and, then and there, faithfully promised the said plaintiff, to provide money for the payment of the said two bills of exchange, when the same should become payable, and to indemnify and save harmless the said plaintiff from any loss or damages, for, or by reason of, his acceptance of the said two bills of exchange as aforesaid. And the said plaintiff avers that he, confiding in the said promise and under- taking of the said C. B. W. did, afterwards, to wit, on the said fourteenth day of August 1828, at New YorJc, to wit, at the county of H. aforesaid, accept the said two bills of exchange ; and the same, being so accepted, were, then and there, delivered to the said W. W.jr., and the said two bills have long since be- come due and payable, to wit, at H. aforesaid ; yet the said C. B. W., not regarding his said promise and undertaking, did not, nor would, provide money for the payment of thfe said two bills of exchange, when the same became due and payable, nor in- demnify, or save harmless, him the said plaintiff, from any loss or damage for, or by reason of, his acceptance of the said two bills of exchange as aforesaid, but wholly neglected and refused so to do. By reason and in consequence whereof, the said plaintiff, as such acceptor of the said two bills of exchange, as aforesaid, afterwards, to wit, on the seventeenth day of Decem- ber 1828, at New Yorlc, to wit, at the county of H. aforesaid, was called upon, and forced and obliged, to pay, and did, then and there, pay to the holder of the first mentioned bill of ex- change, the said sum of $ 902.89 cents, in the said first men- Declarations in a,ssump&it. 509 tioned bill of exchange specified, and afterwards, to wit, on the seventeenth day of February 1829, at New York, to wit, at the said county of H. was called upon, and forced, and obliged, to pay, and did, then and there, pay to the holder of the said bill of exchange, secondly mentioned, the said sum of $902.89 cts. specified in the said bill of exchange secondly above mentioned ; which two sums of $ 902.89 cts. amount in the whole to a large sum of money, to wit, the sum of $ 1805.78 cts. and by means of the said premises the said plaintiff hath been, and is, dam- nified to the amount thereof, to wit, at the county of H. afore- said. 11. Against the acceptor of a foreign bill. Counts against acceptors of foreign bills may be drawn according to the principle of the counts against acceptors of inland bills, with the necessary variations. 12. On a promissory note, payable in bank notes or other articles of fluctuating value. Lewis v. Long, 3 Munf. 136. was on a writing obligatory, " to be paid in trade, such as is to be had, deer skins, furs, flax, snake root, beef, pork, bacon" &c. Although it was thus stipulated, in the obliga- tion, that deer skins and other articles would be received in payment, yet an action of debt was brought for the money. See opn. of Roane, J. p. 151. In the preceding case, the promiser was to pay in articles of fluctuating value, and the quantity of those articles which he would have to pay, depended upon the price of the articles at the time of payment. He was to pay in them, what would be equal in value, at that time, to the sum of money mentioned in the obligation. But if the quantity of the articles to be delivered be fixed, so that, at the day of payment, that quantity of such articles may fall short of the debt, the value of that quantity is what the creditor is to recover, and the mode of recovery is not by action of debt but by an action of covenant or assumpsit. In Beirne fyc. v. Dunlap, 8 Leigh 514. debt was brought on a writing obligatory, by which the obligors promised to pay to the obligee on or before a specified day, the sum of 813 dollars 79 cents, in notes of the United States bank, or either of the Virginia banks. This was consi- dered an engagement to pay so many of such bank notes as, on their face, would nominally make the sum of $ 813.79 cts. And there being no difference between bank paper and any other commodity, the value of the notes on the day of payment was the criterion by which to ascer- tain the damages. Debt not being the proper action to recover such damages, the demurrer of the defendants to the plaintiff's declaration was sustained. 510 Declarations in assumpsit. W. S. D. complains of the J. R. and K. company (who have been duly summoned) of a plea of trespass on the case. And thereupon the said plaintiff saith, that heretofore, to wit, on the first day of May 1840, at the said city of R. the defendants were indebted to the plaintiff in $ for the price and value of work, then and there, done, and materials for the same pro- vided, by the plaintiff for the defendants, at their request, and the said defendants, in consideration of the premises, made fifty- nine promissory notes in writing, with the names signed to the same of W. B. C. as secretary and of J. M. H. as president pro tern, (who were thereunto duly authorized), eighteen of which notes were for $ 20 each, eighteen others for $ 15 each, and twenty-three others for $ 10 each, and by each of the said 18 notes first mentioned, the said defendants, then and there, pro- mised to pay six months after the date thereof, for value re- ceived, $ 20 to the order of R. T. L. with interest until due, in current notes, at their office in Richmond, Virginia, and by each of the said 18 notes secondly mentioned, the said defendants, then and there, promised to pay six months after the date there- of, for value received, $ 15 to the order of the same R. T. .L. with interest, until due, in current notes, at their same office, and by each of the said 23 notes, the said defendants, then and there, promised to pay, six months after the date thereof, for value received, $ 10 to the order of the same R. T. L. with in- terest until due, in current notes, at their same office; and the said R. T. L., then and there, endorsed each and every one of the said fifty notes in writing to the plaintiff, and thereby ordered the sum mentioned in each of the said notes, with interest as therein specified, to be paid to the plaintiff, according to the tenour and effect thereof. By means whereof, the said defen- dants, then and there, became liable to pay to the said plaintiff the sums mentioned in the said notes, with interest as therein specified, according to the tenour and effect thereof, and being so liable, the said defendants in consideration thereof, after- wards, to wit, on the said first day of May 1840, at the said city, undertook and, then and there, faithfully promised the said plaintiff to pay him the said plaintiff, six months after the date thereof, the sums mentioned in the said notes, with interest as therein specified, in current notes, at their office aforesaid. And the plaintiff avers that the said defendants did not, six months after the date of the said notes, pay to him the said plaintiff, the sums mentioned in the said notes, with interest as therein specified, or any part thereof, in current notes, at their office aforesaid, according to the tenour and effect of the said notes, but to pay the same, and every part thereof, in such current notes, wholly failed and made default. And the said plaintiff Declarations in assumpsit. 511 further avers that the current notes in which the sums men- tioned in the said promissory notes, might and ought to have been paid, were, when the same ought to have been paid, ac- cording to the tenour and effect of the said promissory notes, and are now, of great value, to wit, of the value of 8 860, and the said defendants have not paid to the said plaintiff, the value of the said current notes, or any part thereof. By means of all which premises, the said plaintiff is injured and hath sustained damages to the amount of $ 1000, and therefore he brings suit c. 13. Upon the promise of a pwson appearing as obligor in a bond, to pay the same to one taking a transfer thereof from the obligee. An action of assumpsit may be maintained upon the promise of an an obligor to pay the amount of his bond to a third person, if such per- son would accept a transfer thereof. It was so decided in Cleaton v. Chambliss, 6 Rand. 86. In that case the obligors in a bond proposed, for valuable consideration, to transfer the same to a third person, and, after this proposition, the latter had a conversation with one of the obli- gors, in which that obligor promised him that if he would take the bond from the obligee, he the obligor would pay him the sum of money spe- cified in the same, when it should become due. The person to whom the promise was made, took a transfer of the bond without any written assignment, and afterwards brought suit in the name of the obligee, for his own benefit, on the bond. In that suit, non est factum was pleaded, and a verdict and judgment rendered for the defendant. An action of assunipsit was then brought upon the promise made before the transfer. The declaration set forth the foregoing facts. It averred that the bond had not been altered from the time of the promise until the rendition of the judgment, and concluded with charging the defendant's liability. Upon demurrer to the declaration it was held to be good. In the case of Cleaton \. Chambliss, the argument was chiefly on the demurrer to the sixth, seventh, eighth and ninth counts. All of these counts were considered good by judge Carr, and judge Coalter concur- red with him. Judge Cabell concurred as to the seventh and ninth, but dissented as to the sixth and eighth counts, which he thought not good on demurrer. The seventh and ninth counts were as follows : And whereas also on the day of , in the year 1819, at 3/. to wit, in the county of 6r. aforesaid, the said plain- tiff being, then and there, about to trade for, purchase and re- ceive from a certain _L. W. two single bills or obligations pur- porting to be the obligations of the said defendant and a certain T. C. sen'r deceased, and to be due the said L. W. for the sum of 440 dollars each, bearing date on the 30th day of August 1817, and payable one on the 1st May 1818, and the other on 512 Declarations in assumpsit. the 1st May 1819, in a certain conversation, then and there, had, held and moved, between the said plaintiff and the said defendant, he the said defendant assured the said plaintiff that the said sums, in the said obligations aforesaid mentioned, were justly due, and that if the said plaintiff would trade for, take, purchase and receive the said obligations, of and from the said W., that he the said defendant would, well and truly, pay, to the said plaintiff, the full amount of the said obligations, as ap- pearing due on the face of the said bills or obligations afore- said. And the said plaintiff, in fact, avers that he did, after- wards, at M. to wit, in the county of G. aforesaid, on the day of in the year 1819, in faith and reliance upon the said assurances, undertakings and assumptions of the said de- fendant, and at the special instance and request of the said de- fendant, and upon the express agreement, promise and assump- tion of the said defendant to pay to the plaintiff the said bills, bonds or obligations aforesaid, agreeably to the face and appa- rent dates of the same, trade for, take, purchase and receive the said bills, bonds or obligations aforesaid, of the said L. W. and pay to him a full and fair consideration for the same, to wit, the sum of 440 dollars with interest from 1st May 1818, and the sum of 440 dollars with interest from the 1st May 1819, at M. to wit, in the county of G. aforesaid, of all which the said de- fendant, then and there, had notice, to wit, at M. to wit, in the county of G. aforesaid, and on the day of in the year 1819. And the said plaintiff, in fact, avers that having traded for, purchased, and received the said bills or obligations of the said defendant and T. C. sen'r deceased, as before men- tioned, he did, afterwards, to wit, on the . day of 1821, institute actions of debt, upon the said writings obligato- ry, respectively, in the superior court of law, holden by law for the county of G. in the name of the said L. W. for the benefit, and at the costs and charges of the said plaintiff, against the said defendant. And the said defendant did, afterwards, to wit, on the day of in the year 1821, in the said superior court of law aforesaid, to the said actions of debt, on the said single bills aforesaid, instituted by the said plaintiff against him the said defendant, plead the plea of non est factvm to each of the said actions, and such proceedings were had, in the said ac- tions, that afterwards, to wit, on the day of in the year 1821, the jury sworn to try the issue joined in the said ac- tions, then and there, to wit, in the said superior court of law for the said county of G. found for the said defendant, and the final judgment of the said superior court of law, was thereupon given for the said defendant, in the said actions of debt respectively, although the said defendant had expressly promised and under- Declarations in assumpsit. 513 taken to pay, to the plaintiff, the said sums of money appearing due on the face of the said bills or obligations, to wit, on the day of in the year 1821, to wit, at the county of G. aforesaid, after the said defendant had, then and there, exa- mined the said bills or obligations, which, the plaintiff avers, did, then and there, purport to be of the same amount and dates, and payable at the same time aforesaid, and were, in no wise, afterwards altered or changed. And whereas also heretofore, to wit, on the day of 181 , and the county of M. to wit, at the county of G. afore- said, a certain L. W. was indebted to the said plaintiff io a large sum of money, to wit, the sum of dollars, and being so indebted, and being possessed of two certain single bills obligatory, purporting to have been duly executed by the defendant and one T. C. sen'r his security, bearing date on the 30th day of August 1817, for 440 dollars each, the one purport- ing to be payable on the first day of May 1818, and the other purporting to be payable on the first day of May 1819, the said JJ'. proposed to the said plaintiff to transfer to him the said plaintiff; in payment of the said sum of money to him due from the said W. and for a further sum to be paid by the said plain- tiff', the said two single bills, purporting to have been executed by the defendant and his security as aforesaid, and in a certain conversation, between the plaintiff and the defendant, of and concerning the said debt, due to the said plaintiff from the said W. and of and concerning the said single bills aforesaid, the de- fendant, then and there, to wit, on the day and year, and at the county aforesaid, promised the plaintiff that if he the plaintiff would take the said single bills from the said W. he the defen- dant would pay to him the plaintiff the sums of money speci- fied in the same, when they should become due as aforesaid. And the plaintiff, in fact, saith, that he, confiding in the said promises so as aforesaid by the defendant made, did take and obtain a transfer of the said single bills from the said W. with- out any written assignment thereof, and did accept the same from the said W. in payment of the said sum of money first mentioned in this count to have been due from him the said W. to him the said plaintiff, and did pay to the said W. the further sum of dollars, as the full value of the said single bills, which were thereupon transferred and delivered by the said W. to the plaintiff, to wit, on the day of in the year 181 , and at the county aforesaid, and the said W. did, thereupon and then and there, remove with his effects from this common- wealth. And the plaintiff further sailh, that afterwards, to wit, on the day of in the year 181 , at the county afore- said, he caused suits to be instituted in the name of the said W. 65 514 Declarations in assumpsit. for the benefit of the said plaintiff J. C. against the said T. C. jr. upon each of the said single bills, in the superior court of law of the county of G. and the said defendant, (being the de- fendant in the said suits,) did then and there, plead, in due form of law, the pleas of non est fa-ctum, to wit, that the said two sin- gle bills were not, and that neither of them was, the act or deed of him the said defendant, and issues being joined on the said pleas, and other proceedings being thereupon had in the said court, afterwards, to wit, on &c. at &c. juries were duly irnpan- nelled and sworn, in the said court, to try the said issues, and the said juries, then and there, found the said issues for the de- fendant, an^l that the said single bills were not the acts and deeds of the said defendant. Whereupon judgments were ren- dered by the said court in favour of the defendant, in the said suits, as by the records and proceedings of the said suits, in the said court remaining, doth more fully appear. And the plain- tiff further saith, that the said single bills, which by the verdicts and judgments aforesaid were decided to be not the single bills of the said defendant, and not in law valid and binding upon him, were the same single bills which the said plaintiff had pre- viously shewn to the said defendant, and which the said defen- dant had promised, in manner and form before recited, to pay to the said plaintiff, if he would take and obtain a transfer of the same, and further that the same had not been, in any manner, altered, erased, forged or counterfeited from the time of the said promise by the defendant to the plaintiff till the rendition of the said judgments. Whereby the defendant became bound and liable to pay to the plaintiff the said first mentioned sum of dollars which was due from the said W. to the said plaintiff, and the other sum of dollars which the plaintiff paid to the said W. for the said single bills, making in all the sum of 440 dollars with interest from the 1st day of May 1S18, and 440 dollars with interest from the 1st day of May .1819, and the defendant, being so bound and liable as aforesaid, in consideration thereof, afterwards, to wit, on the same day and year, and at the county aforesaid, assumed upon himself, and, then and there, promised the plaintiff to pay to him the said sums of money last aforesaid, when he the said defendant should be thereunto afterwards requested. Nevertheless the said defendant not at all regarding his said several promises, undertakings, and assumptions, in form aforesaid made, but contriving and fraudulently intending, craftily and subtily, to deceive and defraud the said plaintiff in this, has not yet paid the said several sums of money aforesaid, or any or either of them, or any part thereof, to the said plaintiffj although often requested so to do, but the said defendant to him the plaintiff to Declarations in assumpsit. 515 pay the same has hitherto wholly neglected and refused, and still doth neglect and refuse to pay the same, to the damage of the said plaintiff of $2000; and therefore he brings suit. 14. Right and remedy of assignee against assignor. How FAR ASSIGNOR is RESPONSIBLE. A person holding a bond, pay- able to another, may dispose of it, with the assignment of the obligee, and state, at the time, that there is to be no responsibility upon, or re- course against him. Yet if it turn out that not a cent was due upon the bond, at the time it was assigned, it may become the province of a jury to judge of the whole contract and say whether the party taking the bond meant to take upon himself all risks, and, among others, that of the bond having been, at the time of the assignment, already paid off, or only to take the risk of the insolvency of the obligors, and of the assignor. Mays v. Callison, 6 Leigh 230. Where, however, a bond is disposed of with an agreement that the party shall not be responsible, though he assign it, in general terms, he will not be responsible in an ordinary case, not even to a subsequent assignee, having no notice of the agreement. Stubbs v. Burwell, 2 H. &/ M. 536. In the absence of such agreement, the case of Mackie's ex' or v. Davis Sfc. 2 Wash. 219. cited in 1 Rob. Prac. 51, 2. settles the responsibility of the assignor to his assignee. ASSUMPSIT is THE PROPER REMEDY. No matter what may be the dig- nity of the debt assigned, nor what the nature of the instrument by which the assignment is made, the remedy for the assignee against the assignor, is by action of assumpsit. If, for example, a judgment be assigned, and afterwards reversed, upon such reversal, the assignee may maintain as- sumpsit against his assignor ; and the action will lie, notwithstanding the assignment is by a sealed instrument. The instrument of assignment, in such a case, is not considered the ground of the action, but only in- ducement thereto. Arnold v. Hickman, 6 Munf. 15. DUE DILIGENCE MUST APPEAR, AND GENERALLY THERE SHOULD BE A SUIT AGAINST OBLIGOR. Due diligence must appear, and this is, gene- rally speaking, to be established by shewing a suit against the obligor or maker, and the result thereof. Lee v. Love fy Co. 1 Call 497. WHERE FAILURE TO SUE DOES NO INJURY TO ASSIGNOR, SUIT MAY BE DISPENSED WITH, AS WHERE MAKER IS NOT LIABLE. There is HO 116063- sity for a suit, if the case be one in which no injury is done to the as- signor by the failure to sue, as in a case of exchange notes, where there is no consideration, except that of one note being given for the other. Thus in Colon Sf Vcale v. Lenox Sfc. 5 Rand. 331. Colon fy Veale were sued as assignors of a note made to them by Hartshorne ; and it was proved that this note was given in exchange for a note of the same date, and for the same amount, executed to Hartshorne by Colon fy Veale, which last mentioned note had never been paid. Upon this state of facts, Colon $$ Vcale had no right to require of Hartshorne to pay the first mentioned note, and consequently no suit against him was neces- sary. 516 Declarations in assumpsii. OR WHERE THE MAKER is INSOLVENT. Nor is it necessary to sue if the maker has been discharged under the former bankrupt laws, or un- der the insolvent law of this state, or if it can be shewn that the maker is in fact insolvent, so that a suit against him would have been wholly unavailing. Opinion of Roane, J. in Barksdale v. Fenwick, referred to in 2 H. & M. 114. note. Opinion of chancellor Taylor, in Saunders v. Marshall fyc. 4 H. & M. 455. Brown v. Ross, 6 Munf. 391. Coiner v. Hansbarger, 4 Leigh 452. Clarke v. Young Sf Co. 1 Cranch 180. Violet v. Patton, 5 Cranch 153. WHETHER NON-RESIDENCE OF OBLIGOR is A SUFFICIENT EXCUSE FOR NOT SUING HIM. Is absence from the country or non-residence a suffi- cient excuse for not suing the obligor? If the obligor is a non-resi- dent at the time of the execution of the bond, it is clearly not a good excuse. In such case the assignee knows the fact of non-residence, or must be presumed to know it, when he takes the assignment. He makes the contract on the usual terms of using due diligence, and impliedly stipulates that he will sue him, if necessary, where he resides. Such was the case of Dulany v. Hodgkin, 5 Cranch 333. The maker resided in Virginia, never having been in the district of Columbia; and suit was brought in the district against the assignor. It was held that the residence in a foreign jurisdiction was no excuse for not having sued the maker. The case of Dulany v. Hodgkin is cited and approved in Drane v. Scliolfield, 6 Leigh 386. WHERE NO EXCUSE FOR NOT SUING, SUIT MUST BE DILIGENTLY PROSE- CUTED. Where the assignee cannot shew such circumstances as will excuse him for not suing, his suit must not be unreasonably delayed or negligently prosecuted. Barksdale v. Fenwick, 4 Call 492. Bronaugh fy^Co. v. Scott, 5 Call 78. Drane v. Scholfield, 6 Leigh 386. In the case last mentioned, the note was executed in Fairfax county, on the 10th of June 1818, was assigned on the 18th of that month, and became due on the 12th of August in the same ye.ar. In the summer of that year, the maker removed to Maryland and established himself there, at a distance less than twenty miles from his former place of residence. When he removed, he had in possession two slaves, and he continued for some time to hold them, as well as some household furniture. The assignee allowed more than eighteen months to elapse before he brought suit in Maryland, and then failed to file his declaration another year ; and in the mean time the maker became insolvent. When the assignee sued the assignor, the latter demurred to the evidence, and upon the demurrer judgment was given for the defendant. It was considered to be clear that due diligence had not been used. THE RESULT OF THE SUIT MUST BE SHEWN. The result of the suit against the maker must be shewn in the action against the assignor. IF JUDGMENT AGAINST MAKER BE INJOINED, ASSIGNOR MUST NOT BE SUED WHILE INJUNCTION is PENDING. If the assignee obtains a judg- ment against the obligor, and the latter injoins it upon the ground of equitable discounts against the assignor prior to the assignment, the as- signee cannot thereupon maintain assumpsit against the assignor upon a general allegation that he was debarred by the injunction from collecting the money from the obligor. He must aver in his declaration that the Declarations in assumpsit. 517 injunction was made perpetual, or state the proceedings which were had therein. M' Clung v. Arbuckle, 6 Munf. 315. IF MAKER BE TAKEN UNDER A CA, SA. ASSIGNOR MUST NOT BE SUED WHILE HE CONTINUES CHARGED IN EXECUTION. After a judgment by the assignee against the obligor, if a ca. sa. be sued out which is returned " executed on the body of the defendant, who stands committed to the prison bounds &c.," and in this state of things an action is commenced by the assignee against the assignor, the action must be considered as brought prematurely. It cannot be maintained when, for aught that ap- pears, the obligor is still in custody, or may have paid the debt. John- ston v. Hacklcy, 6 Munf. 448, BUT WITHOUT ISSUING CA. SA. SUIT MAY BE BROUGHT UPON RETURN OF NULLA BONA. It is however not incumbent on the assignee to sue out a ca. sa, against the obligor in order to entitle himself to his action against the assignor. The assignee does all that is necessary when he recovers judgment against the obligor in the county in which he resides, and issues a fieri facias against his estate, upon which a return of nulla bona is made. Goodall v. Stuart, 2 H. & M. 105. And he may reco- ver against the assignor, although bail may not have been required in the suit against the obligor. Harrison's adm'r v. Raines's adm'x, 5 Munf. 451. See also Caton Sf Veale v. Lenox Sfc. 5 Rand. 31. SHERIFF'S RETURN CANNOT BE CONTROVERTED. In Goodall v . Stuart , 2 H. &. M. 105. the defendant offered to give evidence to prove that B. against whom the execution issued, had goods and effects sufficient to have satisfied the execution, at the time of its return by the sheriff of Goochland, but the district court refused to permit the evidence to go to the jury, and the court of appeals affirmed the judgment. Tucker, J. said, a fact verified by the sheriff's return, cannot be controverted in a suit between other persons ; for he is a sworn officer, and shall be pre- sumed to have done his duty, until the contrary be proved, by a recovery against him for his false return. See p. 112. Roane, J. said, it was not shewn that the assignee had any reason to believe that any other execu- tion would more probably have produced the money, or that the assignor gave any instructions on the subject. See p. 114. And Fleming, J. expressed it as his opinion that if the obligor had secreted his property from the sheriff, the assignor, who, it is presumed, best knew the circum- stances of his debtor, ought, in order to exonerate himself from his re- sponsibility, to have shewn the property to the sheriff. See p. 115. The principle established in Goodall v. Stuart, has been recently sanc- tioned in the case of Smith Sf Rickard v. Triplett fy Ntale, 4 Leigh 590. 15. Count against assignor setting forth return of nulla bona. For this, to wit, that a certain J. B. B. on the 29th day of June in the year 1819, in the said county, by his certain writing obligatory, sealed with his seal, the date of which is that just mentioned, bound himself to pay, ten days after the date thereof, to the said L. S. or his assigns, the sum of $73.81 cents; and the said L. S. after the making the said writing obligatory, to wit, on the day of , in the year , in the said 518 Declarations in assumpsit. county, for value received of him,* to wit, the amount of the said writing obligatory, assigned the said writing obligatory to the plaintiffs, and subscribed his name to the said assignment. And the plaintiffs aver, that the sum of money mentioned in the said writing obligatory, not having been paid, according to the tenour and effect thereof, the said plaintiffs, after the expiration of the time appointed for the payment of the same, to wit, on the day of in the year 1820, instituted an action of debt upon the said writing obligatory, to recover the sum of money specified therein, against the said J. B. B. in the court of hustings for the city of R., and on the 12th day of the same month, the said B. then being in custody on the original process sued out in the said action, confessed a judgment, in the office of the said court, in the said action for $ 73.81 cents, (the sum specified in the said writing obligatory,) with interest thereon, after the rate of six per centum per annum, from the 9th day of June in the year 1819 till paid, and the costs by the plaintiffs about their suit expended, to wit, $ 5.99, as by a transcript of the record and proceedings in that suit will appear. And the plaintiffs further aver, that upon the said judgment, they afterwards, to wit, the 14th day of the same month, in the same year, caused to be issued from the office of -the said court, a writ of fieri fa- cias, directed to the sergeant of the said city, commanding him to make of the goods and chattels of the said B. within his said corporation, (he then residing therein,) the said sum of $73.81 cents, with interest thereon as aforesaid, and also the costs afore- said, and to have the same before the justices of the said court, at the courthouse of the said city, on the third Wednesday in January next after the date of the said writ, to render to the plaintiffs; on which writ of fieri facias, the said sergeant made the following return, to wit : " No effects found in my bailiwick belonging to J. B. B. W. D. W. sergeant C. R." the said W. D. W. being, then and there, sergeant of the said city. And the said plaintiffs in fact say, that they have, hitherto, been wholly unable to obtain payment of the sum of money specified in the said writing obligatory, with the interest and costs aforesaid, or any part thereof. Of all which the said L. S. heretofore, to wit, on the day of , in the year , at the county aforesaid, had notice. By reason whereof the said L. S. be- came liable to pay to the plaintiffst the sum of money specified in the said writing obligatory, with interest thereon as aforesaid and the costs aforesaid ; and being so liable, the said L. S. in consideration thereof, afterwards, to wit, on the day and in the year last mentioned, in the county aforesaid, undertook and pro- mised the plaintiffs to pay them the same when he should be thereto afterwards required. Nevertheless the said L. S. al- Declarations in assumpsit. 519 though often required, has not paid to the plaintiffs the said sum of money, with interest thereon as aforesaid and the said costs, or any part thereof, but to pay the same, and every part thereof, has hitherto refused, and still does refuse, to the damage of the said plaintiffs $ 200 ; and therefore they bring suit &c. * The declaration is faulty, if it does not aver a consideration for the assignment. Without such averment, there would be no foundation for the assumpsit afterwards charged. Hall v. Smith Sfc. 3 Munf. 550. The statement in the declaration that the assignment was for value re- 4 Munf. 150. 12. For raising a mill without authority, whereby a mill of the plaintiff was rendered useless and the health of his family in- jured. While the suit was pending, in which the following declaration was filed, the plaintiff exhibited a bill in chancery, praying for an abate- ment of the nuisance, and for an injunction to prevent the defendant in the mean time from using the water. Chancellor Taylor refused the prayer of the bill, saying he was clearly of opinion that in the suit at law the parties were before the proper tribunal. He was of opinion that a court of equity might interfere in the case of a nuisance, where there is a flagrant violation of private right attended with public injury, when the law would neither afford an immediate nor an adequate remedy until irreparable injury might be done, but he did not think this one of those cases. See Wingfield v. Crenshaw, 4 H. & M. 474. for this, to wit, that whereas the said W. the plain- tiff, on the first day of January, in the year 1SOO, and long be- fore that time, and from that time to the day of the issuing of the original writ in this cause, was, hath been, and still is, the owner, proprietor, possessor and tenant, in fee simple, of a tract of 330 acres of land, adjoining to, and bordering on a certain river, called the Southanna, within the parish of S. M. in the county of H. aforesaid, the bed of which said river belongs to the commonwealth, and also of a mill seat and a water grist 73 578 Declarations in case. mill, belonging to the plaintiff on the said land. Nevertheless, the said T. the defendant, well knowing the premises, and con- triving to injure the plaintiff in the health of his family, resi- dent on the said land, and to debase the value thereof, as well as to render useless and destroy the mill seat and water grist mill aforesaid, of the plaintiff, on the first day of August 1803, at the county aforesaid, without any legal authority, did raise the dam of a certain mill to the defendant belonging, which was situate at a short distance below the said mill of the plain- tiff, on the river aforesaid, in the county of H. aforesaid : whereby the said lands of the plaintiff were overflowed, the health of the plaintiff's family resident thereon greatly injured, and the mill and mill seat aforesaid were drowned and render- ed useless to the plaintiff, to his damage 5000. and therefore he brings suit &c. 13. Against a surveyor for fraudulently refusing to furnish copies of surveys. An action on the case will lie against the surveyor of a county for fraudulently refusing to furnish copies of surveys, when lawfully demanded, and thereby enabling a third person to locate the lands therein described, before the plaintiff. Pres- ton v. Bowen, 6 Munf. 271. 13. Against a vendor for fraud. ACTION LIES FOR FALSE REPRESENTATION OR SUPPRESSION OF TRUTH. By the common law, the vendor is not answerable for the qua- lity of the thing sold, unless he either warrants its quality, or makes some false representation in respect of it, or knowing of the defect omits to disclose it, in which case the suppression of the truth is a fraud. Wilson v. Shackleford, 4 Rand. 5. CASE OF A FALSE REPRESENTATION. The main question in Pil- more v. Hood, 5 Bingh. N. C. 97. 35 Eng. Com. Law Rep. 43. was whether there was a substantive fraud stated on the face of the declara- tion. The statement amounted to this : that the defendant Hood, be- ing possessed of a public house, for a term of years, represented to one Bowmer, that the trade of the house was 180. per month, all re- tail over the counter, and Bowmer contracted with the defendant for the purchase of the lease of the premises, with the good will and pos- session thereof, for 1175. that Boicmer, not being able to complete the purchase, communicated to the plaintiff what the defendant had so represented as to the trade of the house, of which communication the defendant had notice, and the plaintiff confiding in the representation so made, an agreement was made, between the plaintiff Bowmer and the defendant, that the plaintiff should be the purchaser of the premi- ses, in the room and stead of Bowmer, and the plaintiff afterwards paid Declarations in case. 579 the said .1175. to the defendant. The falsity of the representation was averred, and it was averred that both at the time of the original agreement with Bowmer, and at the time of the subsequent agreement with the plaintiff, the defendant knew it to be false. The court of common pleas held the action to be maintainable, considering there was no material distinction between the case as stated, and the case as it would have been if the contract with Bowmer had gone on. By suf- fering the plaintiff to enter into the contract on the faith of the com- munication to Bowmer, the defendant was as much guilty of a deceit on the plaintiff as if he had, in terms, repeated the statement to the plaintiff. , CASE OP SUPPRESSION OF THE TRUTH. Where the plaintiff de- clared that the defendant, clandestinely and deceitfully, sold him a slave for a great price, knowing the said slave at the time, and for a long time before, laboured under an incurable disease, not discovered by the plaintiff, and was of no value, it was moved in arrest of judgment that the action would not lie without warranty. But judgment was rendered for the plaintiff. Waddill v. Chamberlayne, gen. ct. April 1735, report- ed by Barradall, and contained in Jefferson's Rep. 10. DECLARATION MUST ALWAYS ALLEGE FRAUD. A count is defective, as a count for deceit, unless it charge the act complained of to be false or fraudulent. In Brown v. Shields, 6 Leigh 440. the second count al- leged that the defendant represented a negro boy to be his absolute slave, and, by so representing, sold him to the plaintiff for $ 300 : whereas, in truth, the negro boy, at the time of the sale, was not the absolute slave of the defendant, but was entitled to his freedom, when he should attain to a certain age. But this count did not allege that the representation was false or fraudulent. All the judges held it to be defective. Tucker, P. said, " A representation, without a scienter, with an allegation ' that in truth the slave was entitled to freedom,' though it might have been the foundation of an assumpsit, if laid, certainly does not prove a deceit." And thereupon the said plaintiff saith, that before the com- mitting of the grievances, by the said W. M. M. as hereinafter mentioned, to wit, on the second day of March 1835, an act passed the general assembly of Virginia to incorporate the Vir- ginia exploring and mining company, by which it was declared that a certain J. B. G. and such other persons as might there- after be associated with him, for the purpose of mining, should be, and were thereby incorporated, and made a body politic and corporate, by the name and style of " The Virginia Exploring and Mining Company," for the purpose of exploring and mining, and they, and their successors, by the same name and style, made capable of purchasing, leasing, holding and conveying es- tate, real or personal, and by which it was further enacted that the capital stock of the said company should not be less than $ 100,000, nor more than $500,000, and should be divided into shares of $ 100 dollars each ; and before the committing of the 580 Declarations in case. grievances by the said W. M. M. hereinafter mentioned, there being some reason to believe that gold, or other metals, might be found on the land of W. W. in the county of L., and W. W. B., W. B. jr., W. A. T., D. A. T., W. B. and W. H. being wil- ling to undertake the search and exploration for the same, the said W. W., by a deed bearing date the 17th day of September 1833, leased to the said W. W. B., W. B. jr., W. A. T., D. A. T., W. B. and W. H., fifty acres of the said tract of land, to be laid off' by certain metes and bounds, around a vein then al- ready discovered, and to include the two pits or shafts then al- ready sunk on the said vein : to have and to hold the same to them, and their assigns, for the term of twenty-seven years, from the 17th day of September 1833, with certain provisos, and on certain conditions, in the said deed mentioned, and especially subject to an interest of the said W. W. in common with them ; and before the committing of the grievances by the said W. M. M. hereinafter mentioned, all the rights and interests granted by the said deed to the said W. W. B., W. B. jr., W. A. T., D. A. T., W. B. and W. H., and all the right and interest so re- served to the said W. W. in common with them, had, fora small consideration, been transferred to, and vested in, certain persons, of whom the defendant was one, to wit, in the defendant and J. B. G., J. S. F., B. C., J. W. M., F. J. W., W. W. S. t J. L. and J. M. L. in the following proportions, that is to say, the said W. M. M. had one seventh, the said J. B. G. another seventh, the said J. L. another seventh, the said J. M. L. a seventh and a fourth of a seventh, the said F. J. W. a seventh and a third of a seventh, the said J. S. F. one half of a, seventh, the said B. C. one third of a seventh, the said J. W. M. one third of a seventh, and the said W. W. S. one fourth of a seventh ; and for the purpose of enabling the defendant, and the said J. B. G., J. S. F., B. C., J. W. M., F. J. W., W. W. S., J. L. and J. M. L. to sell their rights and interests, and to obtain for the same a much greater price than the value thereof, the following plan was devised amongst them, that is to say, the capital stock of the Virginia exploring and mining company, was to be divided into 5000 shares, upon which $ 40 a share was to be paid, or secured to be paid, by each person becoming a subscriber to the stock, amounting, if that sum was paid on every share, to $ 200,000 for the whole ; the defendant and the said J. B. G., J. S. F., B. C., J. W. M., F. J. W., W. W. S., J. L. and J. M. L. were to dispose of their rights and interests before mentioned, to the Virginia exploring and mining company for $200,000, of which they were to receive in money $ 100,000, which was to be raised by the payment of S 40 a share on 2500 shares of stock, and for the other $ 100,000, they were to have the other Declarations in case. 681 half of the slock ; the taking in stock one half the purchase money was to be held forth to the public as evidence of a very favourable opinion of its value ; and such other representations were to be made as were calculated to induce subscriptions. And the said plaintiff further saith, that heretofore, to wit, on the day of August 1836, efforts were made by the said de- fendant, and the said J. B. G., J. S. jF., B. C., J. W. M., F. J. Jf., W. W. S., J. L. and J. M. L., to obtain subscriptions to the stock in the Virginia exploring and mining company, and the said defendant, to induce the plaintiff and others to make such subscriptions, did, then and there, in conversation with the plaintiff and others, falsely, fraudulently and deceitfully, pre- tend and represent to the plaintiff and others, that there was then in the orehouse upon the premises, sought to be disposed of, gold ore of very rich quality, and in very great quantity, the quantity being sometimes stated to be about 5000 bushels, at others from three to four thousand bushels, at others between two and three thousand bushels, and in none of the said conver- sations being represented at less than a thousand bushels ; that the ore in the orehouse alone, was sufficient to yield, and would yield, a very large sum of money, estimated at from twenty to twenty-five thousand dollars ; that the ore in the orehouse was taken from the tunnels on the said premises, one at about forty feet depth, and the other at about seventy feet depth, and chiefly from the latter, and was transferred to the orehouse from the buckets in which it came up, without any other selection than this, that the buckets were looked at as they came up, and those which appeared to the eye to contain ore not quite so good as the general quality, were emptied into a pile outside of the house ; that if the company should be compelled to stop at the point at which the exploration had then reached, there was a sufficiency of ore then already exposed, together with that in the orehouse, to reimburse to the stockholders the forty dollars a share requi- red on their subscriptions; that the mine had been recently opened by the defendant, and those associated with him, and no ore had been taken from it except that in the orehouse, a parcel of less than a hundred bushels like that in the orehouse, and a pile lying outside of the house not thought quite so good ; that from the said parcel of less than a hundred bushels, taken from the said tunnels, and not selected, but such as then lay in the orehouse, nearly six hundred dollars had been obtained ; that the residue of the ore from the seventy foot tunnel to the surface was believed to be equally good with that in the orehouse ; that the ore was believed to improve in richness, and the vein to in- crease in thickness, as it went deeper, and that the vein was supposed to continue a great distance north and south. And the 582 Declarations in case. said plaintiff farther saith, that, not knowing that these pre- tences and representations of the defendant to him were false, fraudulent and deceitful, but believing them to be true, and con- fiding in them, he the said plaintiff, in consequence of the said pretences and representations, then and there, subscribed for twenty-five shares of the stock in the Virginia exploring and mining company, and afterwards, to wit, on the day of September 1837, paid to the said defendant $ 250, and delivered to the said defendant his three negotiable notes, duly endorsed, for $250 each, which notes the said plaintiff afterwards, to wit, when the same became due and payable according to thetenour and effect thereof, paid and satisfied to the order of the de- fendant. And the said plaintiff avers that in truth and in fact, there was not in the said orehouse gold ore, in very great quantity, as was represented, but only a small quantity thereof, to wit, a quantity not exceeding 400 bushels ; and that the ore in the orehouse was not sufficient to yield a very large sum of money, as was represented, and did not, in fact, yield a very large sum of money, but was only sufficient to yield, and did only, in fact, yield a very small sum of mo- ney, to wit, a sum not exceeding 4000 dollars ; and that the ore in the orehouse, was not obtained from the said tunnels in the manner that was represented, but, on the contrary there- of, all the ore in the orehouse which came from the tunnels was selected from the other ore in the tunnels with much greater care than was represented, and the ore in the orehouse was moreover composed in part of ore obtained elsewhere than from the tunnels ; and that the ore then already exposed, toge- ther with that in the orehouse, was very far from being suffi- cient to reimburse to the stockholders the forty dollars a share, required on their subscriptions, but, on the contrary thereof, has proved insufficient to reimburse them any thing; and that the mine had not then recently been opened by the defendant and those associated with him, but had been opened a considerable time before, and ore had been taken from it besides that in the orehouse, and besides the said parcel of less than a hundred bushels, and besides the pile lying outside of the house; and that the ore taken from the said tunnels, and not selected, had never yielded so largely as was represented ; and that the resi- due of the ore from the seventy foot tunnel to the surface, was not equally good with that in the orehouse, but of very inferior quality ; and that the ore did not improve in richness as it went deeper; and that the vein did not continue a great distance north and south, but, on the contrary thereof, the vein was thin- ner north and south, and soon ran out to a thread, so as to be of no value, all which the said defendant, at the time of making Declarations in case. 583 his said false, fraudulent and deceitful representations, well knew. And so the plaintiff saith, that the said defendant, by means of the premises, heretofore, to wit, on the day of , 1836, at the said county of H. falsely and fraudulently deceived the said plaintiff", in relation to the shares of stock sub- scribed for by him the said plaintiff, and the said shares are of no use or value to him the said plaintiff! And the said plaintiff hath incurred further expense, to wit, an expense of $ 31.25 cts. in paying instalments required upon the said twenty-five shares of slock, for carrying on the business of the said exploring and mining company. And the said plaintiff also complains of the said defendant, for this, to wit, that the said defendant, heretofore, to wit, on the day of August 1836, at the said county of H., by his false, fraudulent and deceitful pretences and representations to the said plaintiff, in relation to a certain mine in the county of _L., then and there, induced the plaintiff to subscribe for twenty- five shares of stock in the Virginia exploring and mining com- pany ; and the said plaintiff, afterwards, to wit, on the day of September 1836, at the said county of H., paid for the same the sum of $ 1000 for the said defendant, at his request, and the said defendant then and there received the said sum of $ 1000, of the money of the plaintiff; and the said twenty-five shares of stock are of no use or value to the said plaintiff; and the said plaintiff hath incurred further expense, to wit, an ex- pense of $30.25 cts., in paying instalments required upon the said twenty-five shares of stock, for carrying on the business of the said exploring and mining company. Wherefore the said plaintiff saith that he is injured, and hath sustained damage to the amount of $2000, and therefore he brings suit &c. 14. For a fraudulent represe?itation in any other transaction than a sale. CASE OF A PARTIAL REPRESENTATION. Fraud may consist as well in the suppression of what is true, as in the representation of what is false. If a man, professing to answer a question, select those facts only which are likely to give a credit to the person, of whom he speaks, and keep back the rest, he is a more artful knave than he who tells a direct falsehood. See opn. of Chambre, J. in Tapp v. Lee, 3 B. &- P. 371. and opn. of Park, J. in Foster fyc. v. Charles, 6 Bingh. 396. 19 Eng. Com. Law Rep. 113. WHETHER THE MOTIVE is MATERIAL. It was urged in Foster Sfc. v. Charles, that it was not sufficient to shew that a representation, on which a plaintiff had acted, was false within the knowledge of the de- fendant, and that damage had ensued to the plaintiff, but that the plain- tiff must also shew the motive which actuated the defendant. TindaJ, 584 Declarations in case. C. J. said, " I am not aware of any authority for such a position, nor that it can be material what the motive was. The law will infer an im- proper motive, if what the defendant says is false within his own know- ledge, and is the occasion of damage to the plaintiff." ENOUGH THAT DEFENDANT KNEW HE WAS MAKING A FALSE RE- PRESENTATION. The first verdict in Foster fyc. v. Charles, having been for the defendant, a new trial was directed. Upon the second trial, Tindal, C. J. told the jury that if the defendant made representations concerning Jacque, the tendency of which was to occasion loss to the plaintiff, knowing such representations to be false, and intending there- by to benefit himself, he was guilty of fraud in the common acceptation of the term ; if he made such representations, knowing them to be false, without proposing thereby any advantage to himself, but proposing per- haps to benefit a third person, he was guilty of fraud in the legal ac- ceptation of the term, and responsible to the plaintiff for any injury re- sulting from such representation. The jury were of opinion that the de- fendant was not actuated by the baser motive of obtaining an advantage for himself, but, under the direction of -the judge, considered that he was guilty of fraud in law, by stating that which he knew to be false, and which was the cause of loss to the plaintiff. Upon the verdict which they found, the court of common pleas gave judgment for the plaintiff. 7 Bingh. 105. 20 Eng. Com. Law Rep. 64. The decision in Corbett 8$c. v. Brown, 8 Bingh. 33. 21 Eng. Com. Law Rep. 211. is upon the same principle. WHAT REPRESENTATION WILL BE CONSIDERED AS MADE TO THE PLAINTIFF. In each of the cases of Foster fyc. v. Charles, and Cor- bett Sfc. v. Brown, the representation was made immediately to the plaintiff. In Polhill v. Walter, 3 Barn. & Ad. 114. 23 Eng. Com. Law Rep. 38. it was not exactly so. It appeared in this case that a bill of exchange drawn on Hancorne was presented for acceptance by Armfield, one of the payees, and, at the time, Hancorne was absent. The defendant, who lived in the same house with him, was induced to write on the bill an acceptance as by the procuration of Hancorne, Armjield assuring him that the bill was perfectly regular, and the defendant fully believing that the acceptance would be sanctioned and the bill paid at maturity by the drawee. It was afterwards passed into the plaintiff's hands, and, being dishonoured when due, an action was brought against Hancorne. The defendant was called as a witness on the trial of that action, and he, negativing any authority from Hancorne, the plaintiff was non-suited. The ques- tion of deceit and fraud in the defendant, being left to the jury as a question of fact on the evidence, they negatived all fraud, and then the point was whether the action was maintainable notwithstanding. It was said by the plaintiff's counsel to be enough if a representation is made which the party making it knows to be untrue, and which is intended by him, or which, from the mode in which it is made, is calculated to induce another to act on the faith of it, in such way as that he may in- cur damage, and that damage is actually incurred. A wilful falsehood of such a nature, was contended to be, in the legal sense of the word, a fraud, and for this position was cited the cases of Foster fyc. v. Charles, and Corbett Sfc. v. Brown. The principle of those cases was Declarations in case. 585 held to apply. " Here," says lord Tenterden, in delivering the judgment of the court, " the representation is made to all to whom the bill may be offered in the course of circulation, and is, in fact, intended to be made to all, and the plaintiff is one of those ; and the defendant must be taken to have intended that all such persons should give credit to the acceptance, and thereby act upon the faith of the representation, be- cause that, in the ordinary course of business, is the natural and neces- sary result. If then, the defendant, when he wrote the acceptance, and thereby, in substance, represented that he had authority from the drawee to make it, knew that he had no such authority, (and upon the evidence there can be no doubt that he did,) the representation was untrue to his knowledge, and we think that an action will lie against him, by the plain- tiff, for the damage sustained in consequence." CLASS op CASES IN WHICH THE REPRESENTATION MUST NOW BE IN WRITING. The statute passed February 6. 1841, is cited ante, p. 542. And thereupon the said plaintiff saith, that the said plaintiff, before and at the time of the committing of the grievance by the said defendant as hereinafter mentioned, was, and from thence, hitherto, has been, and still is, a druggist, and the trade and business of a druggist hath, for and during all that time, used, exercised and carried on, and still doth use, exercise and carry on, at the city of B. in the state of M. to wit, at the county of H. ; and the said defendant, before the time of committing the grievance by the said defendant as hereinafter mentioned, was a druggist, and the trade and business of a druggist had, used, exercised, and carried on at the city of R. in the state of V. to wit, at the said county of H. ; and the said defendant, before the time of the committing of the grievance by the defendant, as hereinafter mentioned, had dealt with, and was trusted by, the said plaintiff, for divers goods, wares and merchandize, on credit, in the way of the said trade and busi- ness ; and at the time of the committing of the said grievance by the defendant, as hereinafter mentioned, one W. G. C. was using, exercising and carrying on the trade and business of a druggist, in the same house and place in which, before that time, the said defendant had used, exercised and carried on the said trade and business ; and the said W. G. C. was desirous to deal with, and be trusted by the said plaintiff, from time to time, for divers goods, wares and merchandize, on credit, in the way of the said trade and business ; and thereupon the said defen- dant, heretofore, to wit, on the 26th day of August 1833, at the said county of H. contriving and intending to deceive and defraud the said plaintiff, and wrongfully, deceitfully and frau- dulently, to induce, persuade and encourage the said plaintiff to deal with the said W. G. C. in the way of his trade and busi- less, and to sell and deliver to the said W. G. C., from time to 74 586 Declarations in case. time, divers goods ,wares, and merchandize, upon trust and cre- dit, wrongfully, deceitfully and fraudulently, then and there, made a representation in writing, which writing was signed by him, and by the said writing, then and there, wrongfully, de- ceitfully and fraudulently, represented and affirmed to the said plaintiff, in substance, that ill health having compelled him the said defendant to retire from business, he had sold out his entire stock to mr. W. G. C., who had then been in his employment for several years past ; that the said W. G. C. would probably want some articles in the plaintiff's way, and that he the defen- dant did not hesitate to express his conviction that he the W. G. C. would be found punctual in any engagement he might make with the said plaintiff, thereby, then and there, wrongfully, wil- fully, deceitfully and fraudulently conveying to the plaintiff this meaning, that the said W. G. C. had bought and paid for, and was the owner of, the defendant's entire stock of goods, wares and merchandize, and was fit to be trusted with goods on credit. And the said plaintiff saith, that at the time of the said repre- sentation and affirmation, and from time to time afterwards, to wit, until the day of , the said W. G. C. applied to the said plaintiff for goods to be sold to him the said W. G. C. on credit, in the way of the said plaintiff's trade and business of a druggist; and the said plaintiff, being unacquainted with the circumstances of the said W. G. C., except through the said representation and affirmation of the defendant, living at a dis- tance from the said W. G. C.'s place of residence, and not know- ing any thing to the contrary of the said representation and af- firmation, but confiding in and giving credit to the same, and believing therefrom that the said W. G. C. had a capital equal to the value of the said stock of goods, wares and merchandize, and was fit to be trusted with goods on credit, afterwards, to wit, on the said 26th of August 1833, at the city of B. in the state of M., to wit, at the county of H. aforesaid, and at divers other days and times, between that day and the day of , by means used in consequence of the said representation and affirmation, was induced to give credit to the said W. G. C., and did, in consequence of the said representation and affirma- tion, sell and deliver to him divers goods, on credit, to a large amount, to wit, to the amount of $ 2000, to wit, at the county of H. aforesaid : whereas, in truth and in fact, the said W. G. C., at the time of the said representation and affirmation, had not paid the said defendant for the said stock, but then stood in- debted to him for the same in a large sum of money, to wit, in the sum of $7291.65 cents, and it had been understood and agreed between the said W. G. C. and the defendant, before the time of the said representation and affirmation, that the Declarations in case. 587" said W. G. C. should give a lien on the said stock for the purpose of securing the payment of the said large sum of money : and whereas, in truth and in fact, the said W. G. C. at the time of the said representation and affirmation, was not fit to be trusted by the said plaintiff with goods on credit, and the said defendant knew at that time that he was not. And the said plaintiff further saith, that the sum of money for which goods were sold and delivered as aforesaid by the plain- tiff to the said W. G. C., is still wholly due and unpaid to the said plaintiff; that after the making the said representation and affirmation, to wit, on the 18th of February 1834, the said de- fendant procured a deed to be executed by the said W. G. C. to one J. M. as trustee for the said defendant, for the purpose of securing to the said defendant the payment of the said large sum of money, in which the said W. G. C. stood indebted to him, by which deed there was conveyed all the said C.'s stock in trade, as an apothecary and druggist ; that subsequently, to wit, on the 30th July 1834, the said defendant sold or caused to be sold, the whole stock on which the said deed was given, or so much thereof as remained at the time of the sale, and the whole proceeds thereof were applied towards the payment of the said large sum of money, in which the said C. stood indebted to him ; that the said W. G. C. is wholly insolvent, and the said plaintiff is wholly unable to obtain from him payment of the money which remains due and unpaid to the said plaintiff for the goods sold and delivered as aforesaid, to wit, at the county of H. aforesaid. And the said plaintiff also saith, that he, the said plaintiff, before and at the time of the committing of the grievance by the said defendant, as hereinafter in this count mentioned, was, and from thence, hitherto hath been, and still is a druggist, and the trade and business of a druggist hath, for, and during all that time, used, exercised and carried on, and still doth use, ex- ercise and carry on, at B. in the state of M., to wit, at the said county of H. ; and the defendant, before the committing of the said grievance hereinafter mentioned, had been a druggist, and the trade and business of a druggist had used, exercised and carried on at R. in the state of V., to wit, at the said county of H. ; and the said defendant, before the committing of the said grievance hereinafter mentioned, had sold to one W. G. C. all the stock in trade which he had as a druggist in the said city of jR., to wit, in the county of H., and the said W. G. C. in con- sequence of his purchase of the said stock, had, before the com- mitting of the said grievance by the said defendant, become in- debted to the defendant, and, at the time of the committing of the said grievance, was still indebted to the defendant in a large 588 Declarations in case. sum of money, to wit, in the sum of $7291.65 cts., and before the committing of the said grievance by the said defendant, as hereinafter mentioned, it had been understood and agreed be- tween the said W. G. C. and the defendant, that he the said W. G. C., for the purpose of securing the payment of the said large sum of money, would thereafter execute a mortgage, or deed of trust, or other lien on the stock in trade which he might have at the time of executing the same ; and the said W. G. C. after the said sale to him by the defendant, was desirous to deal with, and to be trusted by the said plaintiff, from time to time, for divers goods, wares and merchandize on credit, in the way of his trade and business ; and thereupon the said defendant, heretofore, to wit, on the 26th of August 1833, at R., to wit, in the said county of H., again colluding and intending to deceive and defraud the said plaintiff, and wrongfully, deceitfully and fraudulently to induce, persuade and encourage the said plain- tiff to deal with the W. G. C. in the way of his trade and busi- ness, and to sell and deliver to the said W. G. C. divers other goods, wares and merchandize upon trust and credit, then and there, wilfully, wrongfully, deceitfully and fraudulently in wri- ting, signed by the said defendant, by the name of H. C. M. represented to the plaintiff, by the name of mr. N. B. W. that ill health having compelled him the defendant to retire from busi- ness, he had sold out his entire stock to mr. W. G. C. who had then been in his employment for several years past ; that mr. C. would probably want some articles in the plaintiff's way, and that he the defendant did not hesitate to express his conviction that mr. C. would be found punctual in any agreement he might make with the plaintiff; and the said defendant, then and there, knowing that the said W. G. C. was indebted to him, in conse- quence of the said purchase of the said stock, in a large sum of money, to wit, the sum of $7291.65 cts., and that it had been understood and agreed that a mortgage, or deed of trust, or other lien should be given as aforesaid, then and there, although it was material that the said plaintiff should be informed of the same, wilfully, wrongfully, deceitfully and fraudulently with- held, suppressed and concealed from the plaintiff, the fact that the said W. G. C. stood indebted to him the defendant in the said large sum of money, and wilfully, wrongfully, deceitfully and fraudulently withheld, suppressed and concealed from the plain- tiff, the fact that the said W. G. C. was to execute a mortgage, or deed of trust, or other lien on the stock, as aforesaid, for the purpose of securing to the defendant payment of the said large sum of money, and wilfully, wrongfully, deceitfully and frau- dulently withheld, suppressed and concealed from the plain- tiff, that the said W. G. C. was indebted to the defendant in any Declarations in case. 589 sum of money, or was to execute any mortgage, deed of trust or other lien whatever, for the purpose of securing any sum of money to the defendant. And the said plaintiff' sailh, that the said W. G. C., then and there, applied to the said plaintiff to deal with him, in the way of the said plaintiff's trade and bu- siness, and then and there, and at divers other times, applied to the said plaintiff to be trusted by the said plaintiff, for divers goods, wares and merchandize, on credit, in the way of the said trade and business ; and the said plaintiff carrying on his busi- ness at a distance from the said W. G. C., and having no know- ledge of his circumstances, except that derived from the said representation of the defendant, supposing that the information given by the defendant to him was a fair representation of what the said defendant knew concerning the circumstances of the said W. G. C.; that the said defendant had stated nothing which was false, and suppressed nothing which he ought to have disclosed, and believing from the said representation that the said W. G. C. was a trustworthy person, did, in conse- quence of the said representation, so made by the defendant, and of the said defendant's withholding, suppressing and con- cealing the material facts herein before, in this count, mention- ed, afterwards, to wit, on the day and year last aforesaid, and for a long time, to wit, on divers other days and times between the day last aforesaid and the day of , at B. in the state of M., to wit, at the said county of H. deal with the said W. G. C. in the way of his trade and business, and give credit to the said W. G. C., and sell and deliver to him divers other goods, on credit, to a large amount, to wit, to the amount of $2000, to wit, at the said county of H. And the said plaintiff further saith that the said W. G. C. hath not, nor hath any other person, on his behalf, paid to the plaintiff the said last mention- ed sum of money, so due to him for the said last mentioned goods, or any part thereof; but, on the contrary hereof, since the said representation so made by the defendant, to wit, on the 18th February 1834, a deed was made by the said W. G. C. to one J. 31., conveying all the stock in trade which the said C. had at that time, in trust, for the purpose of securing to the de- fendant the payment of the said large sum of money, which was due from the said W. G. C. to the defendant, and after the said deed was made, to wit, on the 30th of July 1834, the said stock in trade so conveyed, or so much thereof as then remained, was sold, and the proceeds thereof applied to pay, or towards the payment of, the said large sum of money due from the said W. G. C. to the defendant, and the said W. G. C. is now insolvent, and the plaintiff is wholly unable to obtain from him payment of the said sum of money, so due to him for the said last men- 590 Declarations in case. tioned goods, or any part thereof, to wit, at the said county of H. : wherefore the said plaintiff saith that he is injured, and hath sustained damage to the amount of $2000, and therefore he brings suit &c. 15. For slander. 1 Rob. Prac. 77. The action of slander only lies for a defamation of character by speak- ing, writing, signs or pictures. It will not lie for an injury to reputation, occasioned by the mere fact of an illegal search for stolen goods. Opi- nion of court in Faulkner v. Anderson, Gilm. 227. Where the words are riot charged to have been spoken of, or con- cerning, the plaintiff, and there is nothing which can, by fair construc- tion, apply them to the plaintiff, the declaration will be insufficient. Cave v. Shelor and wife, 2 Munf. 193. Donaghe v. Rankin, 4 Munf. 261. Mil- ligan v. Thorn, 6 Wend. 412. A declaration laying the charge in the alternative, viz. that the de- fendant spoke certain words, " or words of the same import," is good after verdict. Bell v. Bugg, 4 Munf. 260. Words will be understood by the courts in the sense in which they were understood by the bystanders, notwithstanding there may be a pos- sible sense in which they may be esteemed innocent. Hoyle v. Young, 1 Wash. 150. Roane, J. in Cave v. Shelor and wife, 2 Munf. 194. Precedents of declarations for slander are given in 2 Chitty's plead- ing, p. 634 to 642. The edition referred to is the 5 Am. from 4 Lond. edi. printed at Philadelphia in 1828. 16. For proceeding under process of law, maliciously and without probable cause. FOR OBTAINING AN ATTACHMENT AGAINST PROPERTY. The action of trespass vi et armis, does not lie against a party obtaining an attachment against another's property. Shaver v. "White, 8f Dougherty, 6 Munf. 110. In such case, the act of the party obtaining the attachment is unaccom- panied with force, and he is 'only seeking redress of an injury by the regular forms of law. If indeed he has gone out of his proper province, and has endeavoured to make those forms subservient to the malignity of his views ; if he has instituted the action or proceeding with malice and without probable cause ; then he is responsible for his conduct, but not in this form of action. The action adapted to such a state of things is a special action on the case, for a malicious prosecution. Opinion of the court in S. C. Olinger v. M'Chesney, 7 Leigh 660. FOR A PROSECUTION, OR FOR CONSPIRING OR ADVISING A PROSECUTION. In Mowry v. Miller, 3 Leigh 561. it was insisted that though one who institutes a prosecution maliciously and without probable cause, or who conspires with another to institute such prosecution, is liable to an ac- tion, in the one case for a conspiracy, in the other for malicious prose- cution, yet to advise another to institute such prosecution was not ac- tionable. That was an action on the case, in which the declaration sub- stantially charged that the defendant, maliciously, and without probable Declarations in case. 591 cause, consulted with, advised and procured a third person, falsely, ma- liciously, and without probable cause, to prosecute the plaintiff for felony. This advice and procurement were held to be actionable. BOTH MALICE AND WANT OF PROBABLE CAUSE MUST BE AVERRED. The decisions have settled that both malice and the want of probable cause must be averred in the declaration, whether the action be for suing out an attachment, as in Young v. Gregorie fc. 3 Call 446. and Mar- shall v. Bussard, Gilm. 9. ; or for a malicious prosecution, as in Ellis \. Thilman, 3 Call 3. ; or for a conspiracy, as in Kirtley v. Deck fyc. 2 Munf. 10. In the case of Mowry v. Miller, before cited, it was objected, that from their connexion in the declaration, the words without probable cause applied only to the act of Zirkel, the prosecutor, not to the advice and procurement of the defendant. Tucker, P. after saying that the charges of malice, and want of probable cause, were reiterated, and stood in connexion with both, added, that according to his view the objection could not avail, if true. " The law," he observes, " requires the plain- tiff in this action to set forth that the prosecution was without probable cause. But, as this is merely because no man can maintain an action for a malicious prosecution, where there was probable cause, it is ob- vious that those words should be made to refer to the state of fact, as it respects the person prosecuted, and not to the degree of knowledge of that fact in the person prosecuting." This expression of opinion not being called for in the particular case, and being the dictum only of a single judge, it is reasonable to suppose that in any future case it would not have as much weight as the decision of the court of common pleas in Broad v. Ham, 5 Bingh. N. C. 722. 35 Eng. Com. Law Rep. 286. The case of Broad v. Ham was an action for charging the plaintiff with a felony, and procuring his committal by a magistrate, maliciously, and without reasonable or probable cause. At the trial, it appeared that the plaintiff, who was apprenticed to the defendant, had quitted the de- fendant's house under circumstances which had a suspicious appearance. At the same time the defendant missed a check for 10., which, after a search, was found by one of the defendant's shopmen, in the plaintiff's box. The box, however, was not locked. The defendant went before a magistrate, and upon his information that he had lost a check, and the deposition of the witness who found it, the plaintiff was committed. At this time 15. was due to the defendant as part of the premium upon the plaintiff's articles of apprenticeship ; and when the charge was pre- ferred, the plaintiff demanded the \o. There was some evidence at the trial from which it might be inferred that the defendant when he went before the magistrate, did not believe the plaintiff had committed a felony, but rather preferred the charge as a means of inducing pay- ment of the 15. The judge told the jury that if they thought the de- fendant himself believed the plaintiff had not committed a felony, that was some evidence of the absence of probable cause. A verdict having been found for the plaintiff, a rule nisi was obtained to set it aside on the ground that the jury had been misdirected in this particular ; and it was contended in support of the rule, that if the plaintiff had com- mitted a felony, or stood in such circumstances that a reasonable man 592 Declarations in case. would believe he had committed one, the defendant's belief was imma- terial with a view to the question whether there was reasonable and pro- bable cause for the charge. But the court of common pleas held the direction to be right, and discharged the rule. Tindal, C. J. said, " I cannot say that the defendant acted on probable cause, if the state of facts was such as to have no effect on his mind." Erskine, J. said, " It would be a monstrous proposition that a party who did not believe the guilt of the accused should be said to have reasonable and probable cause for making the charge." WHETHER IT MUST BE ALLEGED THAT THE PROCEEDING COMPLAINED OF is DETERMINED. In Lewis v. Parrel, 1 Str. 114. a case for a mali- cious prosecution of an indictment, judgment was given for the defen- dant on demurrer, because it was not shewn how the indictment was determined. And in Young v. Gregorie fyc. before cited, Carrington, J. said, the declaration would have been bad upon demurrer for omitting to shew that the attachment was determined. That the common action for a malicious arrest or malicious prosecu- tion, without probable cause, cannot be maintained until the termina- tion of the previous proceeding, is conceded in the cases of Grainger v. Hill $c. 4 Bingh. N. C. 212. 33 Eng. Com. Law Rep. 328. and Hey- wood v. Collinge, 9 Ad. & E. 268. 36 Eng. Com. Law Rep. 136. But in neither of these cases was the doctrine considered to be applicable. Grainger v. Hill was an action for abusing the process of the law by applying it to extort property from the plaintiff, and the plaintiff's re- medy was considered to be by an action on the case, applicable to such new and special circumstances. His complaint being that the process of the law had been abused, to effect an object not within the scope of the process, it was deemed immaterial whether the suit which that pro- cess commenced had been determined or not, or whether or not it was founded on reasonable and probable cause. Heywood v. Collinge was an action for an abuse pf the process of the court by maliciously arresting and detaining the plaintiff a second time for the same cause of action, in respect of which he had been duly discharged out of custody upon the first. " If," said Coleridge, J. " an action is not sustainable under such circumstances, we must be prepared to hold that the process of the court may be abused by a plaintiff for purposes how- ever wanton and malicious. We may suppose the case of a party ha- rassing the defendant under the forms of law, by maliciously suing out three writs for the same cause on the same day, and successively arrest- ing the defendant on all three of them. In such a case, the principle of the law allows an action, although in form it may have some novelty." FORM OF DECLARATION FOR ADVISING AND INDUCING A MALICIOUS PROSECUTION. In Mowry v. Miller, 3 Leigh 561. the defendant demur- red to the declaration, and the declaration was adjudged good. It may therefore be referred to as a precedent. In the report of the case, it is given verbatim. 17. For criminal conversation with plaintiff ' s wife. WHETHER ACTION LIES FOR ACT DONE AFTER AGREEMENT BY HUS- BAND AND WIFE TO LIVE SEPARATELY. The gist of this action being Declarations in case. 593 the loss of the comfort and society of the plaintiff's wife, it was held that the action could not be supported where it appeared that the plain- tiff and his wife had agreed to live separately, and there was no direct proof of any act of adultery before the separation. The commission by the defendant of several acts of adultery after the separation, was consi- dered not sufficient. Weedon v. Timbrell, 5 T. R. 357. In a more recent case, (Chambers v. Caulfield, 6 East 244.) lord El- lenborough desired that it might be argued upon the general point whe- ther the mere fact of a separation between husband and wife by deed was such an absolute renunciation of the husband's marital rights, as pre- cluded him from maintaining the action, saying that he did not consider that question concluded by the decision in Weedon v. Timbrell. However, in Chambers v. Caulfield, the deed had not provided for any separation without the approbation of trustees, and there being no evi- dence to shew that the separation was with their consent, the court was of opinion that the plaintiff's right to recover was not affected by the deed. The court said further, that if the wife did leave her husband with such approbation, the husband had not in this case, (as he was hoi- den to have done in Weedon v. Timbrell,) given up all claim to be de- rived from her comfort, society and assistance ; for the deed had provi- ded that she " might have the care of the younger children of the mar- riage, and visit the others, more especially when they should be ill, so as to require the attention of a mother." For that the said A. contriving, and wrongfully, wick- edly and unjustly intending to injure the said F. L., and to deprive him of the comfort, fellowship, society, aid and assistance of S. L. the wife of him the said jP. L., and to alienate and destroy her affection for him the said F. L., heretofore, to wit, on the day of in the year , and at divers other days and times between that day and the day of commencing this suit, at the county aforesaid, wrongful- ly, wickedly and unjustly debauched and carnally knew the said S. L., then and there, and still being the wife of him the said F. L., and thereby the affection of her the said S. L. for him the F. L. was, then and there, alienated and destroyed ; and also by means of the premises, he the said F. L. hath thence, hi- therto, wholly lost and been deprived of the comfort, fellowship, society, aid and assistance of the said S. L. his said wife, in his domestic affairs, which he the said jP. L. during all that time, ought to have had, and otherwise might, and would, have had, to wit, at the county aforesaid. Wherefore, the said JP. L. says that he is injured, and hath sustained damage to the amount of $ 1000 ; and therefore he brings suit &c. 75 594 Declarations in case. 18. For debauching plaintiff's daughter- No CRIMINAL PROSECUTION LIES. In Anderson's case, 5 Rand. 627. the defendant, who was a married man, was indicted for this, that he did entice, inveigle, take and carry away from the care and custody of her mother, a maiden, of the age of sixteen years and two months, and did afterwards carnally know and prostitute her. And the question was, whether the offence was a misdemeanour punishable by indictment at the common law ? It was insisted that it was comprehended within the class of offences contra bonos mores. But the general court decided that the indictment could not be sustained. See also the case of Isaacs and others, 5 Rand. 634. REMEDY BY ACTION. The remedy is by a civil action. In the case of Parker \. Elliott, 6 Munf. 587. and Gilm. 33. one ground of the de- murrer to the declaration was, that the action should have been trespass and not case, but the court decided that as the action was brought merely for debauching the plaintiff's daughter, the injury arising from which was as to the father only consequential, he might elect to bring an action on the case for the said injury, and the demurrer was therefore overruled. FORM OF DECLARATION. The following precedent is copied from the declaration in Parker v. Elliott : For that the said D. P. contriving, and wrongfully and unjust- ly intending to injure the said P. E. and to deprive him of the service and assistance of Potty E. the daughter and servant of him the said Philip E., heretofore, to wit, on the day of 1816, and at divers other days and times, between the day aforesaid and the day of commencing this suit, at the county aforesaid, debauched and carnally knew the said Polly E., then and there, and from thence up to the time of commencing this suit, being the daughter and servant of the said Philip ., where- by the said Polly E. became pregnant and sick with child, and so remained and continued for a long space of time, to wit, for the space of nine months then next following, at the expiration whereof, to wit, on the day of 1817, at the county aforesaid, she the said Polly E. was delivered of the child with which she was so pregnant, as aforesaid, to wit, at the county aforesaid : By means of which said several premises, the said Potty E. for a long space of time, to wit, from the day and year first above mentioned to the day and year last above mentioned, and for the space of one month thereafter, became and was una- ble to do or perform the necessary affairs of the said Philip E. so being her father and master as aforesaid : And thereby, he the said Philip E. lost and was deprived, during all the time aforesaid, of the services of his said daughter and servant, to wit, at the county aforesaid. And whereas, also, the said D. P. contriving, and unjustly and wrongfully intending to injure the said Philip E., and to de- Declarations in case. 595 prive him of the service and assistance of Polly E., the daughter and servant of him the said Philip E., to wit, on the day of 1816, at the county aforesaid, and on divers other days and times between that day and the day of commencing this suit, debauched and carnally knew the said Polly E., then and there, and from thence for a long space of time, to wit, up to the commencement of this suit, being the daughter and ser- vant of him the said Philip E., whereby the said Polly E. became pregnant and sick with child, and so remained and continued for a long space of time, to wit, for the space of nine months then next following, at the expiration whereof, to wit, on the day of at the county aforesaid, she the said Polly E. was de- livered of the child with which she was so pregnant as afore- said, to wit, at the county aforesaid : By means of which said several premises, she the said Polly E. for a long space of time, to wit, from the day and year first above mentioned, hitherto became, and was, unable to do or perform the necessary affairs and business of the said Philip E., so being her father and mas- ter as aforesaid : And thereby he the said Philip E. during all that time, lost and was deprived of the service of his said daugh- ter and servant, to wit, at the county aforesaid, and also by means of the said several premises, he the said Philip E. was forced and obliged to, and did necessarily pay, lay out and ex- pend, divers sums of money, amounting in the whole to a large sum of money, to wit, the sum of fifty dollars, in and about the nursing and taking care of the said Polly E., his said daughter and servant, and in and about the delivery of the said child, to wit, at the county aforesaid, to the damage of the said Philip E. two thousand dollars ; and therefore he brings suit &c. INDEX. ABATEMENT. 1. Wliere action is abated without plea. Entry of abatement by the return of no inhabitant, 10 Suggestion of plaintiff's death, 34 Discontinuance of suit at second term, after such suggestion, 34 Where one of two plaintiffs dies, 39. 377 Where one of two defendants dies, 39 Where it is ascertained when too late to plead in abatement, that demandant was dead at the time suit was brought, 187 2. Concerning pleas in abatement, 16 to 20 What facts must be stated in a plea to the person of the plain- tiff, that he is an alien enemy, 16 What must be stated in a plea that the plaintiffs, suing as hus- band and wife, never were mar- ried, 17 Under what circumstances plea that plaintiff is a fictitious per- son, will be sustained, 17 Plea to the person of the plain- tiff, that he was dead when the writ issued, 18. 186 Plea to the person of the defen- dant that the contract was made by him and his partner jointly, and not by the defendant sepa- rately, 18 Plea for variance between the writ and declaration, 19 Plea by a corporation for intrin- sic matter, 19 Plea by a corporation for extrin- sic matter, 20 Entry of plea, 21 Demurrer to plea, 22 Judgment for plaintiff upon de- murrer to plea, 108 Judgment for defendant upon de- murrer to plea, 109 Judgment for defendant upon de- murrer to a plea pleaded by him to particular counts, 109 Judgment for plaintiff upon de- murrer to a replication to a plea, 109 Another, where the plea was bad, the court going up to the first fault, 109 Judgment for defendant upon de- murrer to replication to plea, 109 When issue on plea will be found against defendant, 18 Judgment upon verdict found for defendant, 148 Plea upon attachment against ab- sconding debtor, 308 3. Where after judgment, matter in abatement is used. Writ of error coram Tobis awar- ded, because plaintiff was dead when suit was brought ; and the fact being admitted, judgment reversed and writ quashed, 339 After reversal in appellate court, action abated because not origi- nally maintainable by or against a personal representative, 379 ABSCONDING DEBTOR. See Attachment. ACCEPTOR. Nature and extent of acceptor's undertaking, 444 Whether debt lies against accep- tor of a bill of exchange, 443 It lies against acceptor of an or- der, 444 Precedent of a declaration in debt by payee against such acceptor, 444 ACCORD AND SATISFACTION. When it may be used as a bar, 77, 8 ACCOUNT STATED. Form of the count in debt, 447 Form in assumpsit, 551 What may be recovered there- under, 553, 4 ADMINISTRATOR. See Executors and Administrators. 598 INDEX. AFFIDAVIT. To obtain bail, 3. 4 To obtain a commission to take a deposition, 45 To obtain a discovery, 56, 7 Denying execution of instru- ment, 59. 61 Denying existence of partnership, 60 To obtain a warrant of distress, 151 By a poor debtor who wishes a portion of his property exempted, 212 By a sheriff to obtain an escape warrant, 224 In particular causes, such as eject- ment, unlawful entry or detainer, attachment, prohibition and ha- beas corpus, see those titles. AFFIRMANCE OF JUDGMENT. See titles Appeal, Supersedeas and Writ of Error. AGENT. When action will not lie against an agent, 564 ALMS CAPIAS. Award of alias capias, Form of the writ, ALIEN ENEMY. What facts must be stated in a plea that the plaintiff is an alien enemy, 16 AMENDMENT. 1. Correction of clerk' s mistake. Order of court correcting mis- take in proceedings in the office during preceding vacation, 333 2. Amendment of pleadings. Leave granted to amend declara- tion, 93 Leave granted to amend plea af- ter argument of demurrer there- to, 94 Leave granted to amend replica- tion after argument of demur- rer thereto, 94 After opinion in favour of a party upon his demurrer, joinder with- drawn and leave to amend, 108 3. Amendment of record in same court. Notice of application to judge in vacation to amend judgment, 333 Amendment of judgment by judge in vacation, 334 Notice of application to court to amend judgment, 335 Judgment amended by the court, 335 4. Amendment of record in appellate court. Affirmance of judgment after amending the transcript of the record, 378 APPEAL. Judgment upon appeal from de- cision of a justice as to the title of property taken under an exe- cution upon a warrant, 105 Judgment upon appeal from judg- ment of a justice for money, af- firming same, 104 Fi. fa. thereupon, 211 APPEAL BOND. Under what circumstances there may be a recovery on appeal bond, 473 APPEARANCE. Entry of defendant's appearance, 20. 21. 25 ARBITRATION AND AWARD. 1. In pending suit. Order referring to arbitrators a pending suit, 103 Order of reference set aside, 103 Another order of reference in a pending suit, 104 Subpoena for witness to attend ar- bitrators, 51 Award returned and judgment pursuant thereto, 104 2. Where submission is made a rule of court. Submission of the controversy, 102 Affidavit of the execution of the submission, 102 Rule of court upon submission, 103 Return of award made in pursu- ance of such submission, 103 Award entered up as the judg- ment of the court, 103 3. Action for not performing award. What must be comprehended in award, 496 To whom payment may be awar- ded, 496 By whom payment may be direc- ted, 496 What award is considered mu- tual and final, 497 Who may sue for breach of co- venant of submission, ' 498 INDEX. 599 Profert to be made of submission and award, 498 How much of award must be set forth, 498 ARREST OF JUDGMENT, Where verdict is rendered as up- on an issue, when no plea has been filed, 135 Cases in which motion in arrest of judgment was overruled, 136 ASSAULT AND BATTERY. See Trespass. ASSENT TO LEGACY. See Legacy, and 561 ASSETS. Concerning pleas by an executor or administrator in respect to the assets, 80 Plea of no assets, 80 Plea of no assets prater, 80 Plea of debts of superior dignity to a greater amount than the as- sets, 81, 2 Plea that distribution has been made and refunding bonds ta- ken, 83 Judgments in action against exe- cutors and administrators, 100, 144, 5 Special agreement to prevent de- fendant being charged beyond the assets, 144 ASSIGNMENT. 1 . Of action in name of obligee for assignee against obligor. Though debt may have been paid, plaintiff will recover if as- signee was induced by obligor to take the assignment, 421 2. Of action in name of assignee against obligor. How assignment must be set forth, 418 Whether profert of assignment should be made, 418 What variance between declara- tion and instrument is imma- terial, 418 Consideration of assignment need not be proved, 418 Forms of declarations, 418. 420 3. Right and remedy of assignee against assignor, 515 to 520 How far assignor is responsible, 515 Assumpsit is the proper remedy, 515 Due diligence must appear, and generally there should be a suit against obligor, 515 Where failure to sue does no in- jury to assignor, suit may be dispensed with, as where maker is not liable, 515 Or where the maker is insolvent, 516 Whether non-residence of obli- gor is a sufficient excuse for not suing him, 516 Where no excuse for not suing, suit must be diligently prosecu- ted, 516 The result of the suit must be shewn, 516 If judgment against maker be injoined, assignor must not be sued while injunction is pend- ing, 516 If maker be taken under a ca. sa. assignor must not be sued, while he continues charged in execu- tion, 517 But without issuing ca. sa. suit may be brought upon return of a nl in /iniiii, 517 Sheriff's return cannot be con- troverted, 517 Declaration must aver a conside- ration for the assignment, 519 What will sustain the averment, 519 Extent of assignor's liability, 519 Count against assignor setting forth return of nulla bona, 517 Count against assignor alleging notorious insolvency, 519 After judgment by second as- signee against obligor, and re- turn of nulla bona, count by first assignee against his as- signor, 520 ASSUMPSIT. 1. Of the action of assumpsit. Not to be brought on sealed in- strument, 498 May now be brought against a corporation, 499 Or by a corporation, 499 2. Rules applicable to declarations upon promises. Time of promise to be stated, 500 Consideration to be set out to sup- port promise, 501 Promise to be stated, 502 Breach of promise to be alleged, 502 3. Precedents of declarations in par- ticular cases of assumpsit. These precedents and the deci- sions relating thereto extend from 503 to 554 600 INDEX. The cases are enumerated in the table of contents prefixed to this volume. See xlviii. to 1. 4. Verdict. On writ of enquiry, 124 On plea of non-assumpsit, 125. 130 For plaintiff upon other issues, 129. 130 For sterling money, assessing da- mages in current money, 131 5. Judgment. Upon confession, 98 Upon verdict for plaintiff, 143 For plaintiff, where verdict in cir- cuit court for less than $ 50, 146, 7 For defendant, where verdict in circuit court for less than $ 50, 147 6. Execution. Writs of fieri facias, 208 ATTACHMENT. 1. Against defendant in common per- sonal action. Awarded to force appearance, 11 Form of the process, 11 Return thereon, 12 2. Against an absconding debtor, where debt has become payable. Bond taken where attachment is granted for a debtexceeding $10, 302 Process of attachment in such case, 303 How bond and attachment are made out where the plaintiffs are partners, 302, 3 When necessary to issue and serve attachment on Sunday, what must be stated, 303 Bond to officer serving attach- ment for purpose of replevying same, 304 Officer's return when such bond is given, 304 Return where no such bond is given, 304 Attachment dismissed, because issued without a proper bond being taken, 305 Garnishee sworn; judgment against defendant; and then judgment against garnishee, 305 Plaintiff alleging that garnishee has not discovered truly, jury impannelled, and after their ver- dict, judgment against defendant and then against garnishee, 306 Judgment against a garnishee who owes more than is sufficient to satisfy demand against ab- sconding debtor, 306 Judgment against absconding debtor who neither replevies nor makes defence, and order for sale of attached effects, 306 Order where attached effects are to be sold to satisfy, first, a prior judgment, and then a subsequent one, 307 Order, before attachment is deci- ded, for the sale of property lia- ble to perish, or to become im- paired in value, or which it may be expensive to keep, 307 Attachment replevied by putting in bail in court, 308 Defendant admitted to make de- fence without replevying the property attached, 308 Plea in abatement, 308 Plea by claimant of the goods at- tached, 309 Replication to plea of claimant, 309 Entry of claimant's plea, and re- plication thereto ; verdict for claimant; and judgment there- upon, 309 Verdict, on claimant's plea, in fa- vour of the attaching creditor, and judgment thereupon, 310 3. Where debt is under $ 20 and debtor removes his effects. Affidavit to obtain attachment, 310 Process of attachment, 310 4. Where debtor removes before debt is payable. Affidavit to obtain attachment, 311 Bond upon obtaining attachment for claim of $ 10 or upwards, 311 Process of attachment in such case, 312 Another, where the creditor is a mercantile firm, 312 Bond given by the debtor for the payment of the debt when it shall become due, 313 Debtor not giving bond for pay- ment of debt when it shall be- come due, judgment against him and order for sale of attached ef- fects, 313 Judgment against debtor for amount to become due, and then judgment against garnishee, 314 5. Where tenant removes his effects before rent is payable. Affidavit to obtain attachment where tenant will remove his ef- fects, 314 Affidavit where the tenant has actually removed his effects be- fore the rent has become due, 315 Attachment where tenant will re- move or has removed his effects before rent becomes payable, 315 Order quashing attachment, 315 INDEX. 601 Recognizance for the payment of rent at the time it will become due, 316 Attachment having issued irre- gularly, order quashing same and the recognizance taken un- der it, 316 Tenant not entering into recog- nizance for payment of the rent, goods attached ordered to be sold, 317 Right to sue out the attachment contested, and judgment enter- ed for the tenant, 317 Where the rent is reserved in any other thing than money, value ascertained in money, 317 6. Against a vessel, to meet master's liability in a suit against him for carrying off a slave. Affidavit to obtain attachment, 318 Bond given when attachment is- sues, 318 Process of attachment, 318 Bond given to the officer having possession of the vessel attach- ed, to get the same restored to the master, 319 Return by the officer, after levying attachment upon ves- sel, 319 Verdict and judgment in suit in- stituted for the recovery of the penalty imposed for carrying a slave out of the county, 320 After judgment for plaintiff in suit against the master of a vessel, order, in the attachment case, to sell the vessel in satis- faction of the judgment, 320 7. Of the remedy for issuing an at- tachment against the property of the plaintiff, as an abscond- ing debtor, maliciously and without probable cause, 590 to 592 8. Of the remedy on the attach- ment bond, 476 9. Of the process of attachment in the action of waste, see title Waste, and 201 10. Of the attachment for failing to obey a subp&na, see titles Sub- pana, Witness, and 54, 5 ATTENDANCE OF WITNESS. See Witness, and 55 ATTORNEY. Notice of motion by client against attorney for money re- ceived, 286 76 What entitles record of one state to be admitted as evidence in another, 117 What entitles a power of attor- ney or deed from another state to be received as evidence in Virginia, 118 AVOWRY. See Replevin. BAIL. 1. Affidavit to obtain bail, with justice's endorsement directing it, 3,4 2. Bail being given in term time, order discharging defendant from custody, 8 3. )Vhere bail is required after suit brought. Under what circumstances de- fendant may be ruled to give bail, 28 Order ruling defendant to give bail, 28 4. Of exceptions to bail and pro- ceedings thereupon. Exceptions to bail taken by an officer, 28 Entry of such exceptions, 23 Decision upon such exceptions, 29 After officer is bound as bail, rule upon defendant to give other bail, 29 Entry of exceptions to bail ta- ken by any other than an offi- cer, 29 Exceptions to bail taken by offi- cer, for insufficiency happen- ing after recognizance taken, 29 Decision upon exceptions, in ei- ther of two last cases, 29 5. Attachment replevied by putting in bail, in court, 308 6. Surrender by bail and proceed- ings thereupon. Bail piece, 30 Entry of surrender in court in pending suit, 30 Defendant discharged on giving other good bail, 30 Entry of surrender in court after judgment, 30 Entry of defendant's surrender of himself in court, after judg- ment, 31 602 INDEX. Receipt for defendant when sur- render is not in court, 31 Notice of surrender out of court, 31 Notice of motion of exoneretur, 32 Exoneretur entered, 32 Writing charging defendant in execution, 33 Consent by creditor to discharge of principal, 33 7. Scire facias upon recognizance of bail. Where taken by a sheriff, 255 Where taken by a judge or jus- tice, 256 Where given in court, 257 In detinue where recognizance is taken by a sheriff, 257 In action for debt or damages, against executor or administra- tor of bail, 258 8. Scire facias against an officer. Where he has discharged defen- dant from custody without ta- king bail or without returning recognizance, 259 Where bail taken by an officer is adjudged insufficient and scire facias is against bail and officer as joint cognizors, 259 9. Judgment against bail. Award of execution on scire fa- cias against bail in debt, 264 Award of execution on scire fa- cias against bail in detinue, 264 Bail surrendering principal after scire facias, judgment against him for the costs, 268 10. Execution against bail. Fieri facias after award of exe- cution upon recognizance of bail in action for debt or dama- ges, 272 Execution after award thereof upon recognizance of bail in de- tinue, 273 BAILMENT. Case in which wheat was the subject of bailment for the pur- pose of being converted into flour for the use of the bailor, 521 BANK. Summons against a bank in a suit instituted in a county where a branch is established, 5 BANK NOTES. When debt cannot be maintain- ed on a promissory note, paya- able in bank notes, 509 Declaration in assumpsit on such a note, 509, 510 BASTARD CHILD, Where complaint against one as father of bastard, 321 Examination of mother on oath, 321 Warrant to apprehend the father, 321 Recognizance of father to appear at next court, 322 Warrant for commitment to jail, in case no recognizance be gi- ven to appear at court, 323 Default in not appearing at court recorded, and scire facias awar- ded upon recognizance, 324 Case examined into by the court and judgment given against the father, 324 Recognizance required by the court not being given, order committing the father to jail, 326 Entry of the recognizance when given in court, 326 Notice of motion against the fa- ther and his sureties, for not paying the money charged up- on him, 326 BILL OF EXCEPTIONS. By defendant to opinion of cir- cuit court admitting note as evidence which he had ob- jected to on the ground of va- riance, 119 By plaintiff to opinion of coun- ty court admitting evidence of- fered by defendant, 119 By defendant to opinion refus- ing instruction asked for by him, 120 Entry of bill of exceptions, 120 Motion for new trial being over- ruled, opinion of court except- ed to, 135 Motion for new trial being granted, opinion of court ex- cepted to, 135 Transcript of the record of an action, wherein an issue of fact was joined, opinion at the trial excepted to, and judgment ren- dered upon a verdict, 364 Concerning exceptions upon mo- tions, or in cases of unlawful entry or detainer, see those ti- tles. Concerning the remedy where the bill of exceptions is not sealed, see title Mandamus, and 343, 4, 5 INDEX. 603 BILLS OF EXCHANGE. 1. How drawn, accepted or en- dorsed, 421 2. Of the consideration, 423, 4, 5 3. Distinction between foreign and inland bills, 425 4. Of the acceptance, refusal to ac- cept, dishonour thereby and no- tice thereof. Whether presentment for accep- tance is necessary, 426 If acceptance be refused, notice of dishonour necessary, 426 In case of foreign bill, protest and notice both necessary, 426 By whom presentment for ac- ceptance may be made, 426 To whom presentment for ac- ceptance must be made, 427 At what time protest for non-ac- ceptance must be made, 427 5. Rights of holder upon refusal to accept. Upon refusal to accept, right to sue drawer or endorser, 427 Drawee liable also, if he had promised to accept, 427 6. Demand of payment, dishonour in not paying and notice thereof. Demand at place of payment not necessary to charge accep- tor of bill or maker of note, 428 But necessary to charge endor- ser, 428 When demand must be made, 428 Protest of foreign bill, evidence of dishonour, 430 Due notice of dishonour neces- sary to charge endorser of note or drawer or endorser of a bill, 431 How soon notice is to be given, 431 In what terms the notice is to be expressed, 433 7. When proof of notice is dispensed with and when not. Drawer of bill, having no effects in drawee's hands, not dis- charged by failure to make pre- sentment or give notice, 435 Nor can objection of want of no- tice be made by endorser who deceives holder, by representing bill will be accepted when he knows it will not, 435 But mere knowledge that bill will not be paid does not dis- pense with notice, 436 What acknowledgment is suffi- cient to dispense with proof of notice, 436 8. Of the form of action. Whether debt lies against the drawer of a bill, independently of the statute, 443 Whether it lies against the ac- ceptor of a bill, 443, 4 9. Of the manner of declaring. Whether in action against en- dorser of foreign bill, protest and notice must be set forth, 441 10. Precedents of declarations in debt. Under the statute giving debt jointly against drawer and en- dorser of a foreign bill, pro- tested for non-acceptance and non-payment, 441 Against drawer and endorser of a note, upon the footing of a foreign bill, except as to dama- ges, 441 11. Precedents of declarations in as- sumpsit. Against acceptor by drawer, be- ing also payee, 503 Against acceptor by drawer, not being payee, 503 Against acceptor by payee, not being drawer, 503 Against acceptor by endorsee, 503, 4 Against drawer by payee, on non-acceptance, 504 Against drawer by endorsee, on non-acceptance, 504 Against first endorser by an en- dorsee, on non-acceptance, 505 Against second or third endorser by his endorsee, on non-accep- tance, 505 Against drawer or endorser, where action is brought after expiration of time for payment, 505 Against drawer or endorser of bill protested for non-accep- tance or non-payment, where damages are claimed under the Virginia statute, 507 Against drawer by an acceptor, who accepted for accommoda- tion of drawer, 508 Against acceptor of a foreign bill, 508 12. Whether at trial of action on se- cond of a set of bills, first must be produced, 441 13. Of the judgment. Judgment for plaintiff, in debt on a protested foreign bill, 140 Judgment on foreign bill, where it is given for a debt due in cur- rent money, or for current mo- ney advanced and paid, and the sum in current money that was paid or allowed is not expressed in the bill, 140 604 INDEX. BOND. Declaration in debt on two bonds, 412 Declarations in debt on joint bonds, 413 } 14 Declarations in debt on bonds by and against representa- tives, 414 to 418 Verdict for plaintiff in debt up- on a penal obligation, 128 Judgment thereon, ]4Q Verdict assessing damages for detention, where principal and interest exceed the penalty, 128 Judgment thereon, 141 Judgment for plaintiff in debt on .penal obligation for sterling mo- ney, 141 BOUNDS. Order for marking and laying out the bounds and rules of the prison, 226 Bounds and rules of the prison adopted, 226 BOUNDS BOND. Form of prison bounds bond, 227 Warrant to take person who fail- ed to render his body to prison, according to condition of bond, 228 Sheriff's assignment of bond to creditor, 228 In action on bond, how breach of condition must be assign- ed. 472, 3 Precedent of a declaration in such action, 471 Oyer prayed, and plea of condi- tions performed, 75 BREACH OF THE PEACE. Scire facias on recognizance to ieep the peace, 260 CAPIAS AD RESPONDEJYDUM. Attorney's memorandum for the capias, J Form of the capias, 3 Return of capias, where it is ex- ecuted and the bail required is not given, 7 Return where bail is given be- fore the return day is past, 8 Return where bail is not required and process is .executed, 9 CAPIAS AD SATISFACIEJYDUM. 1. Form of the writ. When returnable to court, 222 When returnable to rules, 223 After return of no effects on ex- ecution- issued by a justice, 223 2. Endorsement by creditor. Where execution is delivered to sheriff of any other county than that in which creditor re- sides, 223 3. Proceedings after service of ca. sa. Notice from jailor to creditor, or his agent, of debtor's imprison- ment, 223 Return where defendant is arrest- ed and committed to jail, 224 Return where debtor discharges his body by paying the money, 226 Bond for forthcoming of pro- perty tendered in discharge of body, 225 Return where property is so ten- dered, 226 Return where debtor was dis- charged by tendering property which proved to be under in- cumbrance, 235 Endorsement on new execution to shew that property had been tendered under a ca. sa. which was incumbered, 235 Retturn where debtor is dis- charged upon obtaining an injunction, 228 Return where prisoner is admit- to the bounds, 227 Concerning the bounds bond, and the breach of the condition, see title Bounds Bond; and con- cerning escape from prison or bounds, see title Escape. Concerning the proceedings, where defendant takes the oath of an insolvent debtor, see title Insolvent. CASE. 1. Distinction between trespass and case, 554 2. Precedents of declarations in special actions on the case. These precedents and tfee deci- cisions relating thereto, extend from 564 to 595 The particular cases are enume- rated in the table of contents prefixed to this volume. See li. and lii. 3. Verdict. On writ of enquiry, 124 On plea of not guilty, 125 On any other issue, 131 4. Judgment. Upon confession, 99 INDEX. 605 Upon verdict for plaintiff, 143 When the jury find under $6.66 cents, 143, 4 5. Execution. Writs of fieri facias, 208 CASE AGREED. Case agreed in lieu of a special verdict, 133 Case agreed set aside, 133 Judgment upon case agreed, 150 CAVEAT. Summons issued on receiving a certified copy of a caveat, 168 Summons not being executed, caveat dismissed with costs, 168 New summons awarded on ca- veat, 168 Oath of jury on a caveat, 169 Facts found upon a caveat, 169 Upon facts found on a caveat, judgment for defendant, 169 Upon facts found on a caveat, judgment for plaintiff, 169 Upon facts found on a caveat, judgment for defendant, with- out prejudice, 169 On a caveat against a grant upon a resurvey, judgment for plain- tiff upon the facts found, 170 On a caveat against a grant upon a resurvey, judgment for defen- dant upon the facts found, 170 CERTIORARI. Awarded to remove a cause ori- ginally cognizable in a circuit court, 41 Awarded to remove a cause where justice cannot be done in county court, 41 Awarded to remove a cause for unreasonable neglect or delay, 41 Form of certiorari to remove a cause, 41 Order made in county court upon production of certiorari, 42 Order to docket cause upon return of certiorari, 42 Form of certiorari in a case of supersedeas, 373 Certiorari awarded defendant on suggestion of diminution, 373 Form of certiorari issued on sug- gestion of diminution, 374 Transcript of the record of a judgment in circuit court, in a suit removed thither by certio- rari, 393 CHANGE OF PARTIES. See titles Abatement, Marriage, Revival of Suits, and Scire Fa- cias. CLERK. In an action against the clerk of a court for improperly endorsing credits on an execution, what must be averred in the declara- tion, 575 CLERK'S FEES. Notice of motion against an offi- cer for clerk's fees collected, 288 COLLATERAL BOND. In debt on collateral bond, plea by an administrator denying causes of action set forth in par- ticular breaches, 63 Verdict for plaintiff, 129 Judgment for plaintiff, 141 Judgment which remains as a se- curity for future damages, 141 Judgment which remains as a se- curity for future instalments, 142 Judgment where the jury find under $ 6.66 cents, 142 COMMISSION. See title Depositions. COMMITTEE. Of the official bond of a commit- tee, 448 Scire facias to revive against com- mittee a suit depending against idiot or lunatic, 36 Scire facias to revive against idiot or lunatic a suit depending against his committee, 36 COMMON CARRIER. Nature of his liability, 522 Declaration in assumpsit against a common carrier, 522 Pleas by common carrier to ex- cuse the non-delivery of goods, 73 COMMON COUNTS. Forms of counts in assumpsit for goods, for work and materials, for money lent, for money paid, for money received and for mo- 606 INDEX. ney found due on account sta- ted, and decisions relating there- to, 550 to 554 COMMON ORDER. See ConditionalJudgment,a,ViA 13.14 COMMON ORDER CONFIRMED. See Conditional Judgment Con- firmed, and 14 COMMONWEALTH. Petition by person having de- mand against the common- wealth, 332 Answer of auditor to such peti- tion, Judgment upon such petition, 332 CONDITIONAL JUDGMENT. In a suit commenced by capias, 13 In a suit commenced by summons, 13 Where the officer is kept off by force of arms, 13 After proclamation, 14 After attachment, 14 In replevin, 159 In suit for freedom, 166 In ejectment, 173 In a writ of right, 183 CONDITIONAL. JUDGMENT CONFIRMED. In common personal actions, 14 In replevin, 159 In suit for freedom, 166 See also titles Ejectment and Writ of Right. CONDITIONS PERFORMED. Plea of conditions performed to action of debt on bounds bond, 75 Plea of conditions performed in other cases, 75, 6 Defective replications to pleas of conditions performed, 84. 465 CONFESSION OF JUDGMENT. 1. In the office. Notice by defendant in custody that he will confess judgment in the office, 6 Entry of judgments confessed by defendant not in custody, 5 Entries of judgments confessed by defendant in custody, 7 How defendant prayed in custody may be discharged therefrom, 7 2. In court. In debt on bond or bill penal, 97 In debt on single bill or promis- sory note where no interest is demanded, 98 In debt for principal and interest, or principal, interest and char- ges of protestj 98 In debt on bond with collateral condition, 99 In assumpsit or covenant, 98 In detinue, 99 In action of tort, 99 Where stay of execution, 100 Where defendant is in custody, 7 Where defendant is an executor or administrator, 100 Where action is against several defendants, and the confession is by one, 100 In action of debt against an heir, he acknowledges the action and shews the lands which he has by descent, and judgment is enter- ed, to be levied of those lands, 101 Power of attorney for confessing judgment, 100 Entry of judgment under such power, 101 CONSTABLE. Declaration in debt on the bond of a constable for breach of duty under a distress for rent, 460 See also title Sheriffs. CONTEMPT. See titles Sulp&na, Witness, and 53, 4, 5 CONTINUANCE. Order of continuance at the costs of the party asking it, 94 CONVERSION. See Trover. CONVEYANCE. Conveyance of the real estate mentioned in the schedule of an insolvent, 230 CORPORATION. When a corporation sues, what must be alleged, 404 Assumpsit may now be brought by a corporation, 499 INDEX. 607 Or against a corporation, 499 Summons instituting action a- gainst a corporation, 5 Whether summons may be is- sued from one county or corpo- ration, directed to the officer of another, 19. 20 Corporation pleads by attorney, 20 Pleas in abatement by a corpo- ration, 19. 20 Distringas against a corporation, 238 COSTS. See Security for Costs, and 26, 7 Judgment for costs of personal representative, where the plain- tiff has judgment against him when assets, 145 Judgments for defendant's costs, upon verdicts for him, 148 Judgment for defendant's costs, where plaintiff is an executor or administrator, 148 Fi. fa. for defendant for costs, or for costs and damages, 210 COUNCIL. Summons instituting action a- gainst a member of the coun- cil of state, 5 COUNTY LEVY. Notice of motion against sheriff for failing to pay county levy, 287 Notice of motion against sheriff for failing to render account of county levy, 288 COVENANT. 1. Of the rights of the parties. Obligation of covenantor con- strued according to its intent and meaning, 482 But whatever obligation really is, must be performed, 482 Of obligations where the cove- nants are dependent, 482 Where on one side only, perform- ance depends on prior perform- ance by other, 483 Where the covenants are wholly independent, 484 Where performance by plaintiff need not be averred or proved, 484 2. Of the action. By and against whom action for breach of covenantmay be main- tained, 486 3. Of the mode of declaring. How breach of the covenant must be assigned, 484 How plaintiffs, claiming as heirs or devisees of covenantee must deduce title, 487 4. Precedents of declarations in cases for breach of covenant. These precedents and the deci- sions relating thereto extend from 488 to 496 The cases are enumerated in the table of contents prefixed to this volume. See Ivii. and Iviii. 5. Plea, replication and issue. In covenant for hire and cloth- ing, plea of covenants perfor- med, 76 Entry of plea in writing, alleging performance of covenants, and of replication thereto and issue, 89 8. Verdict. On writ of enquiry, 124 For plaintiff, upon an issue, 129 7. Judgment. Upon confession, 98 Upon verdict for plaintiff, 143 Where the jury find under $6.66 cents, 143, 4 3. Execution. Writs of fieri facias, 208 COVERTURE. Concerning replication to plea of coverture, 84, 5 Verdict upon issue on this plea, 125 CRIM. COJV. Of the action for criminal con- versation with plaintiff 's wife, 592 Whether action lies for act done after agreement by husband and wife to live separately, 592 Precedent of a declaration for crim. con. 593 CURATOR. Of the official bond of a curator, 448 Scire facias to revive suit brought by a curator in the name of exe- cutor or administrator, 36 D DEATH OF PARTIES. 1. Of death before suit or pending action, see title Abatement. 2. Of death after judgment and be- fore execution, see Scire facias. 3. Of death in execution. Debtor dying in execution, new execution against his goods and chattels, 235, 6 608 INDEX. Debtor dying in execution, new execution against his lands and tenements, 236 DEBET DETINET. An heir should be charged in the debet and detinet, 41 So also an executor when sued for a devastavit, 448 Consequence of declaring in the detinet only, instead of in the debet and detinet, 407. 448 DEBT. 1. Of the mode of declaring in debt. What is to be demanded, 406 Of the debet and detinet, 407 Description of the parties, 407 Description of the note or obliga- tion, 407 Where plaintiffs sue as partners, 410 Default of payment, 407 2. Precedents of declarations in debt. These precedents and the deci- sions relating thereto extend from 409 to 481 The cases are enumerated in the table of contents prefixed to this volume. See xlv. to xlvii. 3. Verdict. On writ of enquiry, 124 On issue, 125 4. Judgment. Upon confession, 97 to 101 In other cases, 139 to 142 5. Execution. Writs of fieri facias, 207, 8 DEBT See Qui Tarn. TJ1M. DEDTS OF SUPERIOR DIGNITY. Plea of debts of superior dignity to a greater amount than the assets in hand, 81, 2 Verdict for plaintiff on this plea, 127 DECLARATIONS. 1. Of declarations in actions gene- rally. As to names of parties, 402 As to statement of time, 402 What must be alleged, where a corporation sues, 404 What counts may be joined, 405 What may be joined in same count, 406 Unnecessary length, in declara- tions, now discountenanced in England, 502 2. Of declarations in particular actions. See under the appropriate head, as for example, Debt, Covenant, Assumpsit, Trespass, Detinue, Case, Replevin, Ejectment. 3. Proceedings concerning declara- tions. Entry of declaration, 20. 21. 25. 159 Rule to declare, 14 Dismission for want of declara- tion, 14 Dismission for want of declara- tion set aside in court, 15 Leave granted to amend decla- ration and cause remanded to rules, 93 See also title Demurrer. DEED. See Authentication, and See Mandamus, and DEMAND. 118 342 Demand at place of payment not necessary to charge acceptor of bill or maker of note, 428 But necessary to charge endorser, 428 When demand must be made, 428 When obligee in a bond is bound to prove demand before suit brought, 411 Declaration in debt on a penal obligation payable on demand, 411 DEMURRER. 1. Form of demurrer. To plea to the jurisdiction, 22 To plea in abatement, 22 To declaration on count, 24. 187 To one of the breaches assigned in declaration, 24 To a plea in bar, 65 3. Entries of demurrers, rules there- upon and joinders. Entry at rules of demurrer to de- claration, and rule to join, 25 Entry in court of declaration de- murred to ore tenus, and joinder in demurrer, 88 Entry of demurrer to scire fa- cias and joinder therein, 265, 6 Entry at rules of demurrer to plea and joinder, 23 Entry in court of plea filed, de- murrer thereto and joinder, 90 Entry of demurrer to two pleas under act of April 16. 1831, with joinder, 92 General demurrer filed to decla- ration after other pleas, 93 INDEX. 609 3. After argument of demurrer, leave to amend pleading demurred to. See title Amendment. 4. Entry of opinion upon demurrer. Upon demurrer to declaration containing several counts some of which are good, 106 Upon demurrer to a count con- taining several breaches, one of which is well assigned, 106 Upon demurrer to a declaration or count containing a demand of several matters which are divi- sible, and one of which is well claimed, 106 Upon demurrer to a declaration in which there is a misjoinder of counts, 106 After court's opinion for defen- dant on demurrer to plea, plain- tiff allowed to withdraw his joinder and to reply, 111 5. Entry of judgment upon demur- rer. Where defendant has demurred and pleaded, judgment overru- ling demurrer, 106 Where defendant has demurred without pleading, judgment overruling his demurrer and al- lowing him to plead, 107 Where defendant has demurred without pleading, and his de- murrer being overruled, final judgment is entered, 107 Final judgment in favour of a defendant upon his demurrer to the declaration, 107 Judgment for defendant upon de- murrer to a particular count, 108 Judgment for plaintiff upon de- murrer to a plea in abatement, 108 Judgment for defendant upon de- murrer to his plea, 108 Judgment for defendant upon de- murrer to a plea in abatement pleaded by him to particular counts, 109 Judgment for plaintiff upon de- murrer to a replication to a plea in abatement, 109 Judgment in another case for plaintiff upon such demurrer, because the plea was bad, 109 Judgment for defendant upon de- murrer to replication to plea in abatement, 109 Judgment for defendant upon de- murrer to plea in bar, because declaration was bad, 110 Judgment for defendant upon de- murrer to plea which was ad- judged good, 110 77 Demurrer to one of defendant's pleas sustained, 110 Demurrer sustained to defen- dant's only plea, ] 10 Demurrer sustained to plea in debt on judgment, and judg- ment not being for interest, writ of enquiry awarded, HI Where plea is only to one count, demurrer thereto overruled, 111 Upon demurrer to replication, fi- nal judgment in favour of plain- tiff because plea is bad, 111 Demurrer to replication over- ruled, and defendant allowed to make up issue in fact, 112 Upon demurrer to replication, fi- nal judgment in favour of de- fendant, 112 Plea being to one count, judg- ment for defendant upon his de- murrer to the replication there- to, 112 Judgment upon demurrer to re- joinder to replication, 112 Judgment for defendant upon de- murrer to rejoinder to replica- tion because replication is bad, 113 Demurrers filed to certain counts in the declaration ; sixteen pleas filed ; demurrers to some, and is- sues in fact upon others, 113 Defendant in last case tendered two other pleas which were re- fused ; demurrers argued ; and judgment thereupon, 113 Four pleas tendered, but first, third and fourth only received ; replication to first and fourth, and issues ; replication also to third, rejoinder thereto, and de- murrer to rejoinder; judgment for plaintiff on demurrer; and verdict for him on other issues, 114 6. Judgment in appellate court. Judgment for defendant reversed because improperly given for him upon demurrers to replica- tions to second and third pleas, and new judgment entered for him by appellate court, upon de- murrer to rejoinder to replica- tion to first plea, 380 Judgment for plaintiff, where de- fendant had demurred, reversed for defect in declaration, and fi- nal judgment entered, 382 Judgment for defendant on de- murrer to declaration reversed ; and there being no issue in fact, and the action being for dama- ges, cause remanded to have the damages assessed, 383 610 INDEX. Judgment for defendant on de- murrer to one plea, reversed, and cause remanded for trial of issue in fact joined upon ano- ther plea, 383 Judgment for plaintiff, on special demurrer to his replication, re- versed ; but defect being only in form, cause remanded, with leave to amend, 383 DEMURRER TO EVIDENCE. Form of demurrer to evidence, 121 Joinder by defendant in plaintiff's demurrer, 121 Joinder by plaintiff in defendant's demurrer, 121 Entry where there is a demurrer to evidence, 121 Verdict, assessing damages con- ditionally, 131 Verdict in detinue, assessing price and damages conditional- ly, 332 Judgment upon demurrer, 149 DEPOSITIONS OF WITNESSES. 1 . .'Ifjidarit to obtain commission from clerk. That witness is unable to attend court, 45 That there is a single witness to a material point, 45 That witness resides out of .the commonwealth, 45 2. Order of court awarding commis- sion. To take depositions de bene esse, 46 To take depositions, in chief, of witnesses residing in another state, 46 To take depositions, de lene esse, of witnesses for both parties in the state, 46 To take depositions, in chief, of witnesses for both parties out of the state, 46 3. Form of commission. To take deposition de bene esse, 47 To take deposition of witness out of the commonwealth, 47 4. Where witnesses are in a foreign country. Notice of application for commis- sion, 47 Order awarding commission, 48 5. Notice of time and place of taking depositions. Form of .notice, 48 Form wftbre notice is given to non-resident party, 49 Affidavit of service or publication of notice, 49 6. Return of commission, 49 DEPUTY SHERIFF. See Sheriff. DETINUE. 1. Object of the action and for what it may be maintained. 2. Plaintiff must have title and de- fendant possession. What title is sufficient, 560 What possession in defendant will support the action against him, 562 Defendant's possession charges him in his individual character, 562 3. Of the delaration. How it may describe the slave or other thing sued for, 562 Averment of property necessa- ry, 562 Value must be laid separately for each slave, 562 Not necessary to allege a special demand, 562 4. Forms of the counts, 563 5. Where defendant dies pending the action. What should be set forth in scire facias to revive action against defendant's representative, 35 Form of the scire facias, 34, 5 6. Verdict. On writ of enquiry, 124 For plaintiff, responding to plea of non defined, 131 Where evidence is demurred to, assessing price and damages conditionally, 132 7. Judgment. Upon confession, 99 After verdict for plaintiff, 142 Against a personal representa- tive, 145 8. Action on the judgment. Whether such an action can be maintained, 562 If it can, judgment must be de- clared on, 562 If not declared on, it cannot be relied on as evidence of title, 562 9. Execution on the judgment. Form of the writ of distringas, 238 Fi. fa. for damages and costs in same writ with distringas, 238 Ca. sa. for damages and costs in same writ with distringas, 239 Distringas directed to be super- seded as to specific thing, and executed for alternative value, 239 IXDEX. 611 Alternative value not being ren- dered, fi. fa., elegit or ca. sa. al- lowed to issue, 239, 40 10. Proceedings after judgment in appellate court. Distringas and fi. fa. on a judg- ment of circuit court, affirming judgment of county court, 389 After affirmance of judgment, proceedings to ascertain the va- lue of the hires of the slave re- covered, which have accrued since the verdict and judgment, 396 11. Proceedings after judgment, a- gainst defendant's executor or administrator. Form of scire facias, 247 Award of execution thereupon, 263 Distringas and fi. fa. after such award, 271 12. Proceedings after judgment, a- gainst defendant's bail. Form of scire facias, 257 Execution after award thereof, 273 DEVASTAVIT. Declaration in debt on a judg- ment against an executor, sug- gesting a devastarit, 447 Consequence of not declaring in such case in the debet as well as in the detinet, 448 DEVISEES. 1. IFhere proceeded against, for debts of testator. For what debts of testator, devi- sees are liable, 418 Declaration in debt by obligee against heirs and devisees of obligor jointly, 418 Remedy formerly confined to ac- tions of debt, 496 Now extended to actions of co- venant, 496 Verdict where one of the de- fendants is a devisee who had aliened, and the replication is under the statute, 127 2. When suit for land is revived against them, or in their names. Upon death of defendant in ejectment, scire facias awarded against devisees, 176 Writ of scire facias in such case, 176 Upon return of scire facias exe- cuted, devisees made parties to the action, 176 Upon death of party in a writ of right, scire facias awarded for or against devisees, 168 Writ of scire facias in such case, 188 Upon return of scire facias exe- cuted, devisees made parties to the action, 189 DISCONTINUANCE. Discontinuance of suit at second term, after suggestion of plain- tiff's death, 34 Discontinuance by plaintiff after defendant's appearance, 96 Discontinuance by consent, with- out damages or costs, 96 DISCOUNTS. After judgment for plaintiff, agreement by him to allow discounts, 150 DISCOVERY. Interrogatories to a party to ob- tain a discovery from him, 57 Affidavit to interrogatories, 57 Entry of interrogatories being filed and order thereupon, 57 Affidavit to obtain the discovery and production of a writing in the possession of the adverse party, 58 Entry of affidavit being filed and order thereupon, 58 DISMISSION. Dismission for want of declara- tion, 14 Dismission for want of declara- tion set aside in court, 15 Dismission for want of security for costs, 27 Debt being paid after suit brought, suit dismissed at defendant's costs, 97 Certificate of defendant in slan- der, produced and recorded by consent, and suit dismissed at defendant's costs, 97 DISSOLUTION OF INJUNCTION. See Injunction. DISTRESS. Affidavit to authorize distress, 151 Warrant of distress, 151 Clause to be inserted, where pro- perty has been removed from the premises, 151 Where goods are distrained for rent and restored to thV-debtor, bond to pay at the end of three months, 277 612 INDEX. Where sale is made of goods distrained, bond of the buyer to pay at the end of three months, 278 Notice of motion on 3 months bond, given by owner or buyer of goods distrained, 279 Entries upon motions on such bonds, 279 Where the court ascertains the value, in money, of rent re- served in any thing other than money, and property distrained for rent is sold, notice of mo- tion against officer for the pro- ceeds, 296 Declaration in debt on the bond of a constable, for breach of duty under a distress for rent, 460 Of the action for an unlawful distress, 573, 4 Of the process of distress, in action of waste, see title Waste, and 201, 2 DISTRIJYGAS. Rule against a late sheriff to shew cause why a distringas should not issue to compel him to sell, 220 Rule made absolute and distrin- gas awarded, 221 Writ of distringas against a late sheriff to compel him to sell, 221 Distringas against a corporation, 238 Distringas in detinue, 238 Distringas directed to be super- seded, as to specific thing, and executed for alternative value, 239 Distringas and fi.fa. after award of execution against an execu- tor or administrator, upon scire facias reviving judgment in detinue rendered against dece- dent, 271 Distringas and fi. fa. on a judg- ment of circuit court affirming judgment of county court, in detinue, 389 DISTRIBUTEE. Right of distributee to slaves purchased with the means of the estate, 561 DOWER. 1. Assignment by the heir. Order at the instance of the heirs, directing widow's dower to be assigned, 191 Assignment returned and same established by consent of wi- dow and the heirs, 191 2. Writ de quarentina habenda, 3. Action for dower. Writ of unde nihil habet, 191 Count, 192 Plea that husband was not seized of an estate of inheritance ; with similiter thereto, 192 Plea of jointure in lieu of dower, 192 Verdict for demandant where the husband died seized, and judg- ment thereupon, 193 Verdict for demandant where the husband has aliened, and judg- ment thereupon, 194 Verdict for tenant, and judgment thereupon, 194 Fi. fa. for demandant for her da- mages and costs, 210 Writ of seisin after judgment for demandant, where the husband died seized, 241 Writ of seizin after judgment for demandant, where the hus- band had aliened, 241 DURESS. Verdict upon plea of duress, 125 E EJECTMENT. Declaration in ejectment, 171 Notice from the fictitious to the real defendant to appear at court, 172 Notice from the fictitious to the real defendant to appear at rules, 173 Affidavit of service on the real defendant, 173 Statement shewing the profits and damages which the plaintiff means to demand, 173 Conditional order, 173 Judgment by default, 174 Defendant made and judgment confessed, 174 Person makes himself defendant, pleads general issue and enters into the common rule, 175 Where there are several tenants who sever in pleading, and each enters into the consent rule for himself, 175 Order of survey, 175 Upon death of lessor, security for costs required, 175 Upon death of defendant, scire facias awarded against his heirs or devisees, 176 Form of scire facias, 176 INDEX. 613 Upon return of scire facias exe- cuted, heirs or devisees made parties to the action, 176 Term of demise enlarged, 176 A new demise added, 177 Notice to plaintiff who claims under a mortgage or trust which is satisfied, 177, 8 Notice by defendant who is a vendee, or the heir of a ven- dee entitled to specific exe- cution, 178 Special verdict returned, 178 Judgment, under the statute, for defendant entitled to a convey- ance of the legal title from the vendor or his heirs, 178 Judgment against vendee, or heirs of vendee, who made de- fence under the statute, 179 General verdict for plaintiff, and judgment thereon, 179 Verdict for plaintiff, assessing da- mages for inesne profits, and judgment thereon, 179 Verdict for less land than the quantity stated in the declara- tion, and judgment thereupon, 180 General verdict for defendant, and judgment thereon, 180 After verdict for plaintiff, term of demise enlarged, and then judgment entered, 181 Where land is recovered west of the Mleghany, and defendant seeks to get the value of his improvements, judgment sus- pended till allegations can be enquired into, 181 Jury sworn to ascertain the addi- tional value given to the land by the improvements ; and ver- dict found, 181 Pending injunction to judgment, term of demise having expired, rule to enlarge the same, 181 Rule made absolute, and writ of possession awarded, 182 Transcript of the record, 364 Affirmance of judgment, 386 Fieri facias for damages and costs, 209 Writ of possession, 240 Scire facias, \ipon judgment, a- gainst defendant's heir, 247 Scire facias, for renewal of judg- ment being returned executed, award of execution thereupon, 262 ELECTION. Debt lies against an officer con- ducting an election, under the statute creating a penalty for shewing partiality, 481 What averments in the declara- tion are sufficient in such a case, 481 ELEGIT. Writ of elegit, 222 Inquisition under elegit, 222 Where tenant by elegit is evicted of lands held by extent, scire facias to have new execution, 253 Elegit after award of execution against an heir, upon scire fa- cias reviving against him, judg- ment rendered against his exe- cutor, 271 ERROR. See Amendment, Release, Writ of Error. ESCAPE. 1. Notice to creditor, affidavit by officer, escape warrant and pro- ceedings thereunder. Affidavit by sheriff that person in execution has escaped, 224 Warrant to retake prisoner who has escaped, 224 Note given by jailor to the per- son who delivers to him the pri- soner taken under the escape warrant, 225 Return of the execution of the warrant to the court of the county from which the prisoner escaped, 225 Warrant to retake prisoner who has escaped from the prison bounds, 227 Notice to creditor of escape from the bounds, 228 2. Action against officer for escape. Of the amount recovered in debt for an escape, 455 Distinction between debt and case, 455 In what manner prisoners may be delivered over to new sheriff, so as to discharge late sheriff from action for escape after- wards, 572 Declaration in case against new sheriff for escape of a prisoner so delivered, 572 Verdict for plaintiff in action against officer for an escape, to which not guilty is pleaded, 126 3. Motion against officer. Judgment on motion by credi- tor against officer for suffering a debtor to escape, 293 ft. fa. on such judgment, 294 614 INDEX. ESCHEAT. Information by attorney for the commonwealth for an intrusion upon land which was escheated, and of which the commonwealth afterwards had possession, 328 After inquisition of escheat, claim to the land by monstrans de droit or traverse, 328 Issue made up on monstrans de droit and traverse, 329 Verdict found for the claimant of the escheated lands, and judg- ment that inquisition be quash- ed, 329 Issue made up in another case ; verdict for claimant ; and judg- ment that inquisition be quash- ed and the hands of the com- monwealth amoved, 329 Issue made up in another case ; verdict for claimant of a lease- hold interest; and judgment that such interest be reserved in the sale, 330 Transcript of the record upon a monstrans de droit, 365 Petition by creditor of person whose lands have been escheat- ed, 330 Judgment on such petition, 331 EXCEPTIONS. See Bill of Exceptions. EXCEPTIONS TO BAIL. See Bail, and 28. 29 EXECUTIONS. 1. Of the manner of issuing execu- tions generally. To whom directed, when return- able, and by whom they bear teste, 207 2. Concerning the different sorts of executions. See their respective titles, to wit, Fieri Facias, Venditioni Expo- nas, Distringas, Elegit, Extendi Facias r and Capias ad Satisfa- ciendum. 3. Endorsement on execution. When the clerk must endorse that no security is to be taken, 301 When he must endorse that pro- perty had been tendered under aca. sa. which was incumbered, 235 4. Process where defendant dies in execution. New execution against goods and chattels, 235, 6 Or against lands and tenements, 236 5. Order quashing execution, or di- recting new one. Execution upon judgment against principal and sureties quashed on motion of sureties, and ex- ceptions filed by plaintiff, 242 Another case of an execution, upon judgment against princi- pal and surety, quashed on sure- ty's motion, 243 Order upon defendant's motion, to quash execution issued by a justice of the peace, 244 Order on plaintiff's motion quash- ing execution and forthcoming bond taken under it, and allow- ing him to sue out new execu- tion on the original judgment, 244 Order directing new execution to be issued, 244 See also title Forthcoming Bond. 6. Motion against officer for not returning execution or account of sales, or for not paying money. Notice of motion against officer for not returning execution, 289 Judgment on such motion, 290 Fi. fa. upon such judgment, 290 Notice of motion for not return- ing account of sales of goods sold under execution, 291 Notice of motion by creditor against officer for money receiv- ed under execution, 292 Judgment on such motion, 293 Fi. fa. on such judgment, 293 Notice of motion against officer and sureties for surplus arising from sale under execution, 294 Notice of motion by sheriff against deputy for money re- ceived under execution, 298 EXECUTORS AND ADMINISTRA- TORS. 1 . How to sue and declare for and against them on obligations for the payment of money. Executors of two persons cannot be sued in same action, 413 Declaration in debt against exe- cutors on bond of testator, 413 Declaration in debt on a joint bond against the representative of an obligor who was survived by his co-obligor, 414 Who is to sue on bond payable to one described as executor or administrator of another, 414 Declaration in debt by represen- tative of obligee against obli- gor, 414 INDEX. 615 What must be averred in decla- ration by a surviving executor for a debt due the testator, 415 Declaration in debt by an admi- nistrator de lonis non, with the will annexed, upon a penal bill, 415 2. Against an executor or adminis- trator and his sureties for a de- vastavit. Declaration in debt on a judg- ment against an executor sug- gesting a devastavit, 447 What exception to the official bond of an executor or adminis- trator is disallowed, 448 In whose names action upon such bond may be prosecuted, 448 What must be shewn to estab- lish a breach of the condition, 449 At whose relation the action may be maintained, 449 Precedent of a declaration on such bond, 449 What must appear on the face of the declaration, 452 3. For an executor or administrator on a refunding bond taken by him. When action may be maintained on such bond, 455 4. Under what circumstances ac- tion may be maintained on a bond of indemnity, by adminis- trator de bonis non of obligee, 471 5. Against executors and adminis- trators^ individually, upon pro- mises. When an action will lie for a le- gatee upon a promise of the ex- ecutor to pay his legacy, 541, 2 When an action will lie upon a promise of an executor or ad- ministrator to pay a debt of the decedent, 542, 3 6. For or against an executor or ad- ministrator for a trespass or con- version. When trespass lies for or against a personal representative, 559 Liability of executor or adminis- trator for slaves taken by him and appropriated as assets, which did not belong to dece- dent, 562. 564 7. On the subject of reviving suits or judgments, see titles Revival of Suits and Scire Facias. 8. Concerning pleas by an executor or administrator in respect to the assets. What must be pleaded, in what form, and what will be involved in the issues, 80. 81 Plea of no assets, 80 Plea of no assets prater, 81 Plea of debts of superior dignity to a greater amount than the as- sets in hand, 81, 2 Plea that distribution has been made of estate and refunding bonds taken, 83 9. Verdict against executor or admi- nistrator. On plea of no assets, 126 On plea of debts of superior dig- nity to a greater amount than the assets in hand, 127 10. Judgment where plaintiff is an executor or administrator. For defendant's costs, 148 11. Judgment in action against execu- tor or administrator upon con- fession whether de bonis or when assets, 100 Judgment de bonis in common case, 144 Judgment de bonis with a special agreement to prevent defendant being charged beyond the assets, 144 Judgment to be levied for part de bonis and for the residue when assets, 144 Judgment to be levied for the whole when assets, 145 Judgment for costs of personal representative, when the plain- tiff has judgment against him when assets, 145 12. Fi. fa. upon a judgment against an executor or administrator to be levied de bonis, 211 EXIGI FACIAS. Writ of exigi facias, 184 EXOJVERETUR. See Bail, and 32. 33 EXTENDI FACIAS. Extendi facias against an heir af- ter judgment on bond of ances- tor, 237 FALSE IMPRISONMENT. See Trespass. FIERI FACIAS. '- 1 . Form of fieri facias in various cases. In debt, for debt and costs, 207 In debt, for debt, interest and costs, 207 616 INDEX. In debt qui tarn, 208 In case upon a promise, for dama- ges and costs, 208 In case upon a promise, for dama- ges, interest and costs, 208 In covenant, 208 In trespass, 208 In case for tort, 208 In replevin for plaintiff, 208 In replevin for defendant against the tenant, 209 In replevin for defendant against plaintiff, not the tenant, 209 In ejectment for damages and costs, 209 In a writ of right for damages and costs, 209 In dower for damages and costs, 210 In waste, 210 On complaint of unlawful entry or detainer for costs, 210 For a defendant for costs, or for costs and damages, 210 After dissolution of an injunc- tion, 211 Upon a judgment of a county court, affirming a judgment of a justice of the peace, 211 Upon a judgment against an exe- cutor or administrator, to be levied de bonis, 211 Returnable to rules, 212 2. Endorsement on fieri facias. By clerk, when it is issued on a judgment for a debt contracted before the first of August 1837, 212 By sheriff when it is delivered to him, to be executed, 212 3. Affidavit of a person who wishes the benefit of the act exempting a portion of the property of poor debtors. 4. Return upon fieri facias. As prescribed by statute, 212 When levied upon goods on leas- ed premises wherein rent is re- served but not due, 213 When levied upon goods on leas- ed premises whereon rent is in arrear, 213 When levied in a case in which rent is claimed and the validity of the claim is doubted, 214 Where plaintiff refuses to give indemnifying bond, and proper- ty is restored, 215 Where indemnifying bond is given, 215 Where a forthcoming bond is ta- ken, and the property, or some part of it, is not delivered, 216 Where the levy is on slaves, mules, work-oxen and horses, 216 Where debtor authorizes officer to dispense with the provisions of the act of March 3. 1821, 217 Where money is received without any levy, 218 . Where money is received after the return day, under an execu- tion levied previously, 218 Where a surplus of the proceeds of goods sold under execution remains after satisfying it, 219 Where property of which the sale is indemnified, sells for more than enough to satisfy the exe- cution, 219 Where the goods taken remain in the sheriff's hands until an injunction is obtained to the judgment, 219 Where money is received by she- riff, but an injunction is obtain- ed to the execution, before pay- ment to the plaintiff, 220 Where goods remain in sheriff's hands unsold, 220 Where there is an execution against the goods and chattels of the person to whom the mo- ney in the officer's hands is pay- able, 218 5. Order upon return. Order directing money made un- der execution in favour of a per- son, to be paid in satisfaction of an execution against him, 218 6. After atcard of execution on scire facias. Renewing judgment for debt or damages, 269 Against executor or administra- tor, reviving judgment rendered in decedent's lifetime, 270 In favour of executor or admi- nistrator, reviving judgment ob- tained by decedent, 270 7. After judgment on motion. For surety against principal, 280 For surety on motion by him against executor or administra- tor of principal, 280 By creditor against officer for not returning execution, 290 By creditor against officer for money received under execu- tion, 293 By creditor against officer for suf- fering a debtor to escape, 294 In favour of sheriff against de- puty's sureties for taxes, 299 8. After judgment of circuit court, on a supersedeas. Affirming a judgment of county court, 387 INDEX. 617 Reversing judgment of county court, 389 9. After judgment of court of appeals. Affirming judgment of circuit court, 397 Affirming judgment of circuit court which affirmed judgment of county court, 398 Affirming judgment of circuit court which reversed order of county court, 398 Reversing judgment of circuit court, 399 Reversing judgment of circuit court (which reversed judgment of county court,) and affirming judgment of county court, 399 10. After award of execution on scire facias reviving judgment of ap- pellate court. On scire facias reviving against executor judgment against de- cedent obtained in county court and affirmed in circuit court, 392 On scire facias reviving in favour of executor, judgment by dece- dent so obtained and so affirmed, 392 On scire facias reviving in name of executor or administrator a judgment of circuit court which has been affirmed in the court of appeals, 401 FORCIBLE ENTRY. See Unlawful Entry or Detainer. FOREIGN BILL OF EXCHANGE. See title Bills of Exchange. FORTHCOMING BOND. 1. Form of the bond. For the forthcoming of property levied on, 215 For the forthcoming of property tendered in discharge of the body, 225 2. Remedy for failure to return the bond. Notice of motion against officer for not returning same, 290 See also, 465 3. Order on plaintiff's motion,quash- ing execution and forthcoming bond taken under it, and allow- ing plaintiff to sue out new exe- cution on the original judgment, 274 4 . Motion on the bond for award of execution. Notice of motion, 274 Defendants not appearing, award of execution by default, 274 Entry where, after execution of bond, an injunction was obtain- 78 ed, and the same being dissolv- ed, damages are included in the judgment, 275 Execution awarded by consent, 275 Order quashing execution and bond, because of defects in exe- cution, 275 Order quashing bond as faulty, 275 Sheriff's return on execution amended, by stating that super- sedeas was received before day of sale, and thereupon motion * overruled, 276 See also title Motion, and 276, 7 5. Transcript of the record of a judg- ment on a forthcoming bond, obtained by default, 370 6. Judgment in appellate court. Judgment in original action be- ing erroneous, subsequent judg- ment on forthcoming bond, de- pending on it, likewise reversedj 381 Order overruling motion on the bond, because of supposed de- fect, reversed, and case reman- ded to county court, 385 Order overruling motion on the bond reversed, and final judg- ment entered, 385 FRAUD. 1. Of the remedy against a vendor for fraud. Action lies for false representa- tion or suppression of truth, 578 Case of a false representation, 578 Case of suppression of the truth, 579 Declaration must always allege fraud, 579 Precedent of a declaration against a vendor for fraud, 579 to 583 2. Of the remedy for a fraudulent representation in any other trans~ action than a sale. Case of a partial representation, 583 Whether the motive is material, 583 Enough that defendant knew he was making a false representa- tion, 584 What representation will be con- sidered as made to the plaintiff, 584 Class of cases in which the repre- sentation must now be in wri- ting, 585 Precedent of a declaration for a fraudulent representation as to the credit of another, 585 to 590 3. Pleas against a specialty under the act of April 16. 1831, and proceedings thereupon. Defendant is not restricted to one special plea, 91 618 INDEX. Forms of pleas, 67 to 73 How plea must be verified, 91 Entry of special pleas being filed, 91 Entry of special pleas being ten- dered and not received for want of proper affidavit, 91 Entry of special pleas being re- jected because not offered in time, 91 Entry of special pleas being re- jected as naught, 92 Entry of demurrer to two pleas with joinder ; and general repli- cation to third plea with issue, 92 Verdict and judgment where de- fendant is relieved against his single bill in toto, 136 Verdict and judgment where de- fendant is relieved against his obligation in part, 137 Verdict and judgment where the jury assess damages less than plaintiff's demand, 137 Verdict and judgment where the jury assess damages exceeding plaintiff's demand, 137 FREEDOM. Warrant issued by a justice up- on complaint that a person is il- legally detained as a slave, 163 Bond required by a justice upon the appearance of the possessor of person, alleged to be so de- tained, 163 Warrant of justice committing complainant to custody, 164 Petition to the court by person who complains that he is illegal- ly detained, 164 Order assigning counsel to the petitioner, 165 Order awarding process to an- swer the complaint, 165 Order of court denying its inter- ference, and directing no pro- cess to be issued, 165 Bond given pursuant to order of court, to have complainant forth- coming to answer its judgment, 165 Process to answer the complaint, 166 Declaration, 166 Conditional judgment, 166 Conditional judgment confirmed and writ of enquiry awarded, 166 Writ of enquiry executed, and judgment for plaintiff, , 167 Issue joined and office judgment set aside, 167 Verdict for plaintiff on the issue joined, and judgment thereup- on, 167 Verdict for defendant on such is- sue and judgment thereupon, 167 FULLY ADMINISTERED. Concerning this plea, see 80, 81 FUTURE BREACHES. See ./Yew Breaches. G GARNISHEE. See titles Attachment and Insol- vent. GOODS SOLD. Liability of vendee for the price of goods sold and virtually deli- vered, 523 Common count for goods sold, 550 Under what circumstances the common count is proper, 551 GOVERNOR. Summons instituting action a- gainst the governor of the com- monwealth, 5 GUARDIAN. Of the official bond of a guar- dian, 449 When action . lies against the surety in such bond, 452 What is prima facie evidence in such action, 452 What is insufficient to discharge surety, 453 Precedent of a declaration on guardian's bond,. 452 GUARDIAN AD LITEM. See title Infant. H HABEAS CORPUS. 1. Habeas corpus cum causa. Form of the writ, 40 Return, 40 Order upon return, 40 2. Habeas corpus ad testificandum. Order awarding this writ, 52 Form of the writ, 52 Witness remanded after giving testimony, 52 IXDEX. 619 3. Haleas corpus ad subjiciendum. Petition for writ with affidavit subjoined, 356 Order awarding the writ, 357 Form of the writ, 357 Return annexed to writ, 357 Endorsement upon writ, 358 Return made to writ, and case continued to another day, 358 Case heard and petitioner dis- charged from custody, 358 Entry of return made to writ; case heard ; and prisoner dis- charged, 358, 9 HANDWRITING. Affidavit denying execution of writing, on which action is brought, 60 HEIR. 1. Action by an heir. Mode of declaring in such ac- tion, 417. 476 What is a sufficient averment of the plaintiff being heir, 476. 487 Declaration in debt by an heir on a bond to his ancestor condition- ed for the quiet enjoyment of lands, assigning a breach since the ancestor's death, 476 2. Action against heir on ancestor's bond. Less particularity required in set- ting forth the descent where an heir is sued, than when he sues, 4] 7 Mode of declaring in action a- gainst an heir, 417. 476 Heir should be charged in the de- bet and detinet, 417 Declaration in debt by the admi- nistrator of a surviving partner against heirs on a bond of their ancestor, 417 Heir acknowledges the action and shews the lands which he has by descent, and judgment entered to be levied of those lands, 101 Plea of riens per discent, 83 Verdict upon replication under the statute to such plea, 127 After judgment against heir, writ of extendi facias, 237 3. Scire facias against heir -upon judgment against ancestor for money. Form of the writ against heirs and terretenants, to have execu- tion of the lands, 248 After award of execution on such writ, form of the elegit, 271 Form of scire facias against heirs and terretenants, to have execu- tion of the lands, upon a judg- ment of circuit court affirming judgment of court below, ren- dered on a scire facias, 391 Award of execution upon such scire facias, 391 4. Revival against heir of action of ejectment. Award of scire facias, 176 Form of the writ, 176 Upon return of writ, heirs made parties, 176 5. Revival of writ of right, for or against heir. Award of scire facias, 188 Form of the writ, 188 Upon return of writ, heirs made parties, 189 6. Revival against heir of judgment in ejectment. Form of the writ of scire facias in such case, 247 HIRE. Declaration in covenant for hire agreed to be paid for a slave and the value of clothing which the hirer was to furnish, 492 Declaration in assumpsit on a promise to pay the year's hire of a slave and furnish him with clothing, 531 Declaration in assumpsit on a promise to pay monthly hire for a slave, 533 How to declare on a writing pro- mising to furnish the' bond of another person for the hire of a slave, 533 HUSBAND AND WIFE. Concerning action on promise to marry or to pay money in con- sideration of marriage, or con- cerning a change of parties in consequence of a marriage pending suit or after judgment, see title Marriage. What facts must be stated in plea that plaintiffs, suing as husband and wife, never were married, 17 Scire facias, where after judgment for husband and wife, husband is survived by his wife, who dies before execution, 250 Declaration in debt against hus- band and wife on a bond given by her before marriage,' 412 620 INDEX. When trespass is maintainable against husband and wife joint- ly, 555 Of the action for criminal con- versation with plaintiff's wife, 592 Whether action lies for act done after agreement by husband and wife to live separately, 592 Precedent of a declaration for crim. con. 593 IDIOTS AND LUNATICS. See Committee. IMMATERIAL ISSUE, , Judgment for plaintiff, notwith- standing failure to respond to one of the issues ; it being im- material, 136 Judgment for plaintiff, notwith- standing verdict for defendant on one of the issues; it being immaterial, 136 IMPROVEMENTS. Where land is recovered west of the Mleghany, and defendant seeks to get the value of his improvements, judgment sus- pended till allegations can be enquired into, 181 Jury sworn to ascertain the ad- ditional value given to the land by the improvements; and ver- dict found, 181 INDEBITATUS. Form in debt of common indebi- tatus count, 447 Forms in assumpsit, 550 to 654 Whether indebitatus assumpsit will lie for the price of a tract of land, 549 INDEMNITY. Form of an indemnifying bond under the statute, 214 Declaration in debt on such bond, 469 Of a bond of indemnity at com- mon law, 471 When action on such bond may be maintained, 471 Of instrument of indemnity not under seal, 541 What facts authorize a recovery on such instrument, 541 Declaration in assumpsit by an officer who took property under execution and sold the same upon an agreement that he should be indemnified, 536 See also titles Fieri facias and Scire facias. INFANT. Declaration, filed against an in- fant, 15 Guardian assigned to defend an infant, 15 Appearance of infant defendant by guardian, 15 After infant attains his age, ap- pearance by attorney, 15 Response in assumpsit to plea of infancy, 130 INFORMATION. Information for intrusion, 328 INJUNCTION. Fi. fa. after dissolution of an in- junction to a judgment for mo- ney, 275 Entry where, after execution of forthcoming bond, an injunc- tion was obtained, and the same being dissolved, dama- ges are included in the judg- ment, 275 Pending injunction to judgment in ejectment, term of demise having expired,- rule to enlarge the same, 181 Rule to enlarge term which had expired pending injunction, made absolute and writ of pos- session awarded, 182 INJUNCTION BOND. Under what circumstances there may be a recovery on an in- junction bond, 473 What may be recovered there- on, 473 Declaration in debt on a bond given upon obtaining an in- junction to a judgment, 473 Declaration on a bond given up- on obtaining an injunction to a sale under execution, 474 IJVSIMUL COMPUTASSENT. Form in debt of this count, 447 Form in assumpeit, 551 INDEX. 621 What may be recovered there- under, 553, 4 INSOLVENT. Warrant of justice directing jai- lor to bring insolvent debtor before him or some other jus- tice, 229 Notice that person intends to take the oath of an insolvent debtor, 229 Schedule of insolvent, 229 List of executions, 230 Oath of insolvent debtor, 230 Conveyance of the real estate mentioned in the schedule, 230 Warrant for insolvent's dis- charge, 231 Return of ca. sa. where debtor is discharged by taking oath of in- solvency, 231 Entry where oath of insolvency is taken in court, 232 Summons against a person sta- ted to be indebted to, or to have estate of insolvent, 232 Judgment against such person, 233 New summons awarded against such person, 233 Defendant appeared according to summons, and summons dis- missed, 233 Ca~ so, directed to issue against a person who has been dis- charged as an insolvent debtor, 234 Fi. fa. awarded against the goods acquired by a person after taking the oath of insolvency, 234 Scire facias to have execution against property acquired by defendant after taking oath of insolvency, 253 Notice of motion against officer for not returning the schedule of an insolvent debtor, 291 Notice of motion against officer for not returning account of sales of insolvent's effects, 291 Notice of motion against officer for money arising from the sale of an insolvent's estate, 294 Judgment on such motion, 295 Notice of motion against officer for money or goods received under summons against the garnishee of an insolvent, 295 INTEREST. Verdict allowing interest and fixing period at which it shall commence. 127 Verdict where rate of interest is governed by the laws of ano- ther state, 127 INTERROGATORIES. See Discovery, and 57, 8 INTRUSION. Information for intrusion, 328 J JAILOR AND JAIL FEES. Jailor's notice to creditor or his agent, of debtor's imprison- ment, 223 Notice of motion by jailor against creditor for jail fees, 284 Another notice of motion for jail fees against creditor who re- sides out of the county and has no agent in it, 285 Notice of motion by creditor against debtor for jail fees, 286 Return of ca. sa. where debtor is discharged for non-payment of jail fees, 234 Scire facias to have execution against property of debtor dis- charged on account of the cre- ditor's failure to pay the jail fees, 254 See also title Sheriff. JOINDER ON DEMURRER. See Demurrer. JOINDER OF CAUSES OF ACTION. What counts may be joined, 405 What may be joined in same count, 406 JOINT ACTION. Entry of judgment in the office when it becomes final against one of several defendants, 95 In action on contract against two defendants, one of whom is dis- charged, judgment against the other, 145 Judgment in an action of tres- pass, assault or false imprison- ment against several, one of whom is found guilty and ano- ther not, 146 JOINT BOND. Declaration in debt on a joint bond against the surviving obli- gor, 413 622 INDEX. Declaration in debt on a joint bond against the representative of an obligor who was survived by his co-obligor, 414 JOINT TENANCY. Plea of joint tenancy, 186 Judgment where plea of joint tenancy is sustained, 186 Judgment where plea of joint tenancy is disproved, 186 JOINTURE. Plea of jointure in lieu of dower, 192 JUDGE. Summons instituting action a- gainst a judge of the general court, 4 Against a judge of the court of appeals, 5 JUDGMENT. 1 . Ore confession. See title Confession of Judgment. 2. By default. See Office Judgment, and 95 3. On demurrer. See Demurrer, and 106 to 114 4. On verdict, 136 to 150 5. To action for original cause, plea of former judgment. When former judgment, upon same matter, may be pleaded in bar, 78 6. Of actions upon judgments, and declarations in such actions. Debt maintainable on a judgment the record of which has been destroyed, 447 Debt maintainable by an adminis- trator de bonis non upon a judg- ment obtained by an executor, 447 How to declare in debt on a judg- ment for a penalty, 447 In debt on a judgment, how much of the record must be set forth, 447 Where the judgment is obtained by an executor, how it must be described, 447 Precedent of a declaration in debt on a judgment against an exe- cutor suggesting a devastavit, 447 Whether action can be maintain- ed on a judgment in detinue, 562 7. Pleas to actions upon judgments. In action upon judgment in ano- ther state entered upon confes- sion under power of attorney, plea denying the execution of the power of attorney and the validity of the judgment, 62 Plea of no such record to action of debt on judgment of another state, 63 Pleas under statutes of limita- tion, 79. 80. and 266, 7 JURISDICTION. Strictness required in pleas to the jurisdiction, 16 Not necessary in any case to de- mur thereto specially, 16 Plea bad if pleaded in person, 16 Must not conclude quod billa cassetur, 16 Form of a plea to the jurisdiction, 15.16 Demurrer to such plea, 22 Replication to such plea, 22 Other replications, 23 JURY. Order directing jurors to be sum- moned for a subsequent day, 116 Sheriff being interested, order di- recting coroner to summon jury, 116 Sheriff and coroners being inte- rested, order appointing a person to summon a jury, 116 Jury sworn and having partly heard the evidence adjourned, 122 Jury having further heard the evidence again adjourned, 122 Jury having fully heard the evi- dence, sent out, and not agree] ing, juror withdrawn and cause continued, 122 Jury having fully heard the evi- dence, sent out, and not agree- ing, adjourned, 123 Jury who had once retired, ap- peared after adjournment, and after again retiring, returned a verdict, 123 Entry where one of the jury, instead of taking an oath, makes a solemn affirmation, 123 See also title Unlawful Entry or Detainer. JUSTICE OF THE PEACE. Verdict shewing that a justice of the peace had cognizance, plain- tiff non-suited, 148 Ca. sa. after return of no effects on an execution issued by a jus- tice of the peace, 223 Concerning appeals from judg- ments of justices of the peace, see title Appeal. INDEX. 623 LEGACY. Under what circumstances an ac- tion will lie on behalf of a lega- tee upon a promise of the exe- cutor to pay his legacy, and how the action must be brought, 541, 2 Of the action by a legatee to re- cover a slave or other property bequeathed to him, 561 Assent of executor to legacy ne- cessary, 561 Assent valid though testator had not possession when he died, 561 Assent to first taker is an assent to remainderman, 561 LIMITATION OF ACTIONS. See title Statute of Limitations. LITERARY FUND. Notice of motion by the president and directors of the literary fund against treasurer of school com- missioners and his sureties, 284 LOST NOTES. See Trover, and 565, 6 LUNATIC. See Committee. M MALICIOUS PROSECUTION. Of the remedy for proceeding under process of law, malicious- ly and without probable cause, 590 Where the process has been an attachment against plaintiff's property, 590 Where defendant has prosecuted the plaintiff, or conspired or ad- vised a prosecution, 590 Both malice and want of proba- ble cause must be averred, 591 Whether it must be alleged that the proceeding complained of is determined, 592 Form of declaration for advising and inducing malicious prosecu- tion, 592 MANDAMUS. Necessary to have a rule to shew cause why mandamus should not issue, 341 Entry of rule, 341 Rule made absolute, and condi- tional mandamus awarded, to do the specific thing, or shew cause to the contrary, 342 Form of mandamus to a public officer to obey a statute, or shew cause to the contrary, 342 Form of mandamus to justices of a county court, to admit a deed to record, or shew cause to the contrary, 342 Opinions in New York, concern- ing mandamus to judges of court below, to seal bill of exceptions, or shew why it is not done, 343, 4 Form of mandamus issued in New York, 343, 4 Mandamus issued, in Virginia, to justices of county court, to affix their seals to bill of excep- tions alleged to contain the truth, si ita est, 345 Service of mandamus, and return thereof, 345 Return of mandamus being in- sufficient, peremptory manda- mus awarded, 346 MARRIAGE. Action may be maintained for a breach of promise to marry, 520 Infant may sue adult for breach of such promise, 520 Declaration for breach of such promise, 520 What may be pleaded by the de- fendant, 521 In assumpsit for money agreed to be paid in consideration of marriage, what must be averred in the declaration, 549 Entry where feme plaintiff mar- ries pending suit, 39 Scire facias where feme plaintiff marries after judgment, 249 Scire facias where feme defen- dant marries after judgment, 250 Scire facias where plaintiff mar- ries after judgment and is sur- vived by her husband who dies before execution, 250 Scire facias where after judg- ment plaintiff dies and his ad- ministratrix marries, 250 MARSHAL. Declaration in debt by a marshal or sheriff on the bond of a de- puty who is in default, 465 MEMORANDUM. Attorney's memorandum for ca- pias, 1 624 INDEX. MERCHANTS' ACCOUNTS. To plea that action was not com- menced in time, special replica- tion to one count, that account concerns the trade of merchan- dize between merchant and mer- chant, 85 MESNE PROFITS. See Ejectment. MILL. Of the remedy against a defen- dant raising a mill without au- thority, whereby a mill of the plaintiff was rendered useless and the health of his family in- jured, 577 Precedent of a declaration in such case, 577 MISE. Entry of the mise being joined, 187 MISJOINDER OF CAUSES OF ACTION. What counts may be joined, 405 What may be joined in same count, 406 Opinion upon demurrer to a de- claration, in which there is a misjoinder of counts, 106 MONEY COUNTS. Forms in debt of the counts for money lent, money paid, and money received, 447 Forms in assumpsit of those counts, 550. 551 What may be recovered thereun- der, 551 to 554 MONSTRANS DE DROIT. See Escheat. MORTGAGE. Notice to plaintiff who claims under a mortgage which is satis- fied, 177 MOTION. Continuance of motion, 276 JWm est factum pleaded to mo- tion ; issue joined ; verdict for plaintiff and judgment, 276 Motion heard and continued for court to consider of its judg- ment, 277 After time taken to consider, judgment for defendant upon the merits, 277 After time taken to consider, judgment for plaintiff upon the merits, 277 Entry of exceptions to judgment on motion, 277 Execution upon judgment a- gainst principal and sureties being quashed on motion of sureties, exceptions filed by plaintiffs, 242 Transcript of the record of a mo- tion on which the defendant ap- peared, 370 Judgment on motion reversed on the merits and final judgment entered, 385 Judgment obtained on motion by sheriff against deputy for non- return of forthcoming bond, no bar to an action on deputy's bond to recover damages for non-return of same bond, 465 MUTUAL ASSURANCE SOCIETY. Notice of motion by the mutual assurance society against a per- son insured, for quotas, 283 N NEGLIGENCE. Under what circumstances ac- tion may be maintained for loss of, or injury to, a slave, occa- sioned by defendant's negli- gence, 566, 7, 8 Precedent of a declaration for such neglect by the owner a- gainst one to whom he hired the slave, 568, 9 Action lies for the owner of a runaway slave against a sheriff, for not furnishing the slave, while in jail, with bed-covering and fuel, 569, 70 Precedent of a declaration in such a case, 569, 70 Action lies for the owner of a slave, received in jail, against the sheriff for his negligence in suffering the slave to escape, 571, 2 Case in which declaration for such negligence was held good, 571 , 2 NEW TRIAL. Motion for new trial, and part of damages being released, motion overruled, 133 Motion for new trial granted, 134 INDEX. 625 Where some defendants are con- victed and others acquitted, new trial granted the convicted defendants, 134 Where damages are assessed a- gainst one defendant who made default, and the others, having pleaded, are acquitted, new trial granted as to one of the acquit- ted defendants, 134 Motion for new trial being over- ruled, opinion of court except- ed to, 135 Motion for new trial being grant- ed, opinion of court except- ed to, 135 See also title Unlawful Entry or Detainer. NEW BREACHES. Judgment for plaintiff in debt on collateral bond, which remains as a security for future damages, 141 Judgment for plaintiff in debt on collateral bond, which remains as a security for future instal- ments, 142 On a judgment providing for fu- ture breaches, scire facias set- ting forth such breaches, 250 Award of execution upon scire facias assigning new breaches, 263 On a scire facias assigning new breaches, damages assessed and judgment for plaintiff, 268 NEXT FRIEND. Plaintiff's next friend being dead, another admitted to sue, 15 JV/L DEBET. Plea of nil debet, 60 Entry of plea of nil debet and of office judgment being set aside, 87,8 Entry at the time of pleading nil debct, of affidavit as to signature to writing, 88 Verdict upon plea of nil debet, 1 25. 128 Verdict and judgment for plain- tiff in debt qui tarn on plea of nil debet, 138 Verdict and judgment in debt qui tarn, for plaintiff as to part, and for defendant as to residue, 138 NO ASSETS. Plea of no assets, 80. 81 Plea of no assets prater , 81 Verdict for plaintiff on plea of no assets, 126, 7 79 JVOJV ASSUMPSIT. Plea of non assumpsit by a defen- dant sued in his own right, 59 Plea of non assumpsit by an exe- cutor or administrator, 59 Plea of non assumpsit by a sur- . viving partner, 59 Entry of plea of non assumpsit, and of office judgment being set aside, 87, 8 Entry at the time of pleading non assumpsit, of affidavit as to sig- nature to writing, 88 Verdict on plea of non assumpsit, 130 Verdict for defendant, respond- ing to plea of non assumpsit as to part and tender as to residue, 130 Verdict for defendant as to ten- der of part, and for plaintiff upon plea of non assumpsit, 130 JVOJV DAMJVIFICATUS. Verdict for defendant on plea of non damnificatus, 126 JVOJV DETIWET. Plea of non detinet, 64 Entry of plea of non detinet and of office judgment being set aside, 87, 8 Entry at the time of pleading non detinet, of affidavit as to signa- ture to writing, 88 JVOJV EST FACTUM. Plea of non cst factum by one sued as obligor, 61 Affidavit proving the same, 61 Plea of non est factum by an exe- cutor or administrator with affi- davit thereto, 61 Plea of non est factum by an ad- ministrator, with oyer of the bond and affidavit that it was de- livered as an escrow, 61 Plea of non est factum always concludes to the country, 62 In action upon judgment in ano- ther state, entered upon confes- sion under power of attorney, plea denying the execution of the power of attorney and the validity of the judgment, 62 Entry of plea of non est factum and issue thereon, 88 Verdict upon plea of non est fac- tum, 125 JWra est factum pleaded to a mo- tion ; issue joined ; verdict for plaintiff and judgment, 276 626 INDEX. NONSUIT. 1. In a common personal action. At rules for want of declaration, 14 At rules for not complying with a rule for any other purpose, see title Rule. In court in an ordinary case, 96 In court after jnry are sworn, but before they retire, 96 Verdict shewing that a justice of the peace had cognizance, plaintiff nonsuited, 143 2. In replevin. Plaintiff nonsuited for want of declaration, 158 Plaintiff nonsuited for want of replication, 159 Plaintiff nonsuited for want of plea to avowry, 160 After nonsuit, writ of enquiry executed and judgment there- upon, 162 JV'O.V TEJYUIT. Plea of 7ion tcnuit, JV'OJV TENURE. 158 Plea of non tenure, 185 Judgment where this plea is sus- tained as to parcel of the land, 186 NO SUCH RECORD. Plea of no such record to debt on judgment of another state in the Union, 63 How the plea should conclude in such case, 63, 4 Entry of plea of no such record and general replication thereto, 265 J udgment on plea of no such re- cord, where that is the only plea, 269 Judgment for plaintiff, where, be- sides no such record, there is a second plea, 269 Transcript of the record of an action on a judgment wherein profert was made of the record of the judgment and no such re- cord pleaded, 363 NOT GUILTY. Plea of not guilty in trespass or case, 64 Entry of plea of not guilty and of office judgment being set aside, 87, 8 Verdict upon plea of not guilty, 125.126 NOTHING IN ARREAR. Plea of nothing in arrear, 158 NOTICE. 1. Before action brought. Notice of dishonour of bill or note, Notice to tenant to quit, 171 2. Pending action. By defendant that he will con- fess judgment in the office, 6 That security is required for costs, 27 Of application for commission to take depositions in a foreign country, 47 Of time and place of taking de- positions, 48 Of time and place of taking de- positions, to non-resident party, 49 In ejectment, 172, 3 To plaintiff, who claims under a mortgage or trust which is satis- fied, 177, 8 3. Of motion for writ of prohibi- tion, 347 4. After judgment, where defendant is imprisoned. Of surrender by bail, Of motion for exoneretur, 32 From jailor to creditor of debtor's imprisonment, Of escape from prison bounds, 228 That person intends to take the oath of insolvency, 229 5. Notices of motions for judgment and award of execution, 274 to 301 6. Notices of applications to amend judgments, 333. 335 O OATH OR AFFIRMATION. Solemn affirmation, 117 Oath of jury to try an issue, 116 Oath of jury to enquire of da- mages, 116 Oath of jury on a caveat, 169 Oath of jury in a writ of right, 189 Oath of a witness on the voir dire, 116 Oath of a witness in chief, 117 Oath of an insolvent debtor, 230 OFFICE JUDGMENT. Office judgment set aside by pleading to issue, 87. 167 Entry of judgment in the office when it becomes final, 95 INDEX. 627 Where goods have been attached, order accompanying judgment, 95 Entry of judgment in the office, when it becomes final against one of several defendants, 95 Entry of office judgment on a scire facias, being set aside by plea of payment, 267 Entry of j udgment in the office upon a scire facias when it be* comes final, 268 Transcript of the record in a ease wherein final judgment has been entered in the office, 362 Judgment by default reversed for defect in declaration ; and writ being defective also, final judg- ment entered, 382 Judgment by default reversed for defect in declaration ; and writ being correct, proceedings sub- sequent to writ set aside, and cause remanded, 382 OFFICIAL BOND. Of the official bond of any exe- cutor, administrator, guardian, committee, curator or other offi- cer, 449 What must be shewn in the de- claration on such a bond, 452 What must be shewn in the de- claration on the bond of an offi- cer of a banking company, or other corporation, conditioned to perform the duties of his office, 478 ORDER OF PUBLICATION. See Publication. OVERSEERS OF THE POOR. Verdict and judgment for over- seers of poor, in debt on a penal law, 139 Notice of motion by overseers of the poor against a predecessor in office, 286 OYER. Entry of oyer of writ, 21 In relation to oyer of the instru- ment declared on, 24 Oyer of obligation and condi- tion, 24. 25. 61. 75 Entry thereof, '-'"' Oyer of record, 266 Transcript of the record of an action on a bond made part of the record by oyer, 363 PARTITION. Summons in partition, 205 Judgment confessed, Writ departitione facienda, 205 Return by sheriff and partition established, 206 PARTNERS. Declaration by partners upon a bond or note, must shew that the same was made to them as such, 410 Form of a declaration by the ad- ministrator of a surviving part- ner en a bond, 417 Form of a declaration by an ad- ministrator de bonis non against two partners, upon a penal bill sealed by one partner, for him- self and his co-partner, by the authority and in the presence of the co-partner, 415 When plaintiffs suing as part- ners, need not prove partner- ship, 60 Plea in abatement to the person of the defendant that the con- tract was made by him and Ins partner jointly, and not by the defendant separately, 18 When the issue on such plea will be found against the defen- dant, 18 PAYMENT. In debt on bond, plea of payment before action brought, <>f pr pal and interest mentioned in condition, Entry of plea in writing Wing filed alleging payment, an replication thereto, and issue, 89 Entry of replication to plea of payment in action by adminis- trator of a surviving partner, and issue joined, Entry of replication to pica of payment where the coti'lit not set out in the declaration, and oyer is not prayed ; and joinder of issue, 90 Verdict for plaintiff in debt on ingle bill responding to pica of payment, Judgment in circuit court for de- fendant, in debt on single bill or promissory note where yerdict is for less than $ 50, in conse- quence of payments, 62S INDEX. 140 141 Upon scire facias on a judgment, entry of plea of payment, with general replication and issue ; and office judgment set aside, 267 PAYMENT INTO COURT. Principal and interest brought into court, and judgment enter- ed only for costs, 97 PENAL BILL. Declaration in debt on a penal bill, . 411 Verdict for plaintiff in debt on a penal obligation, 128 Judgment for plaintiff thereon, Judgment for plaintiff in debt on penal obligation for sterling money, PENAL LAW. Verdict and judgment for over- seers of poor, in debt on a pe- nal law, 139 PHYSICIAN. Remedy of a physician who at- tends an apprentice, 533 Declaration in assumpsit for ser- vices rendered as a physician, 533 PLEADING. Fundamental rule, 59 Entry of agreement to prevent special pleading, 90 PLEAS. l.To the jurisdiction. See title Jurisdiction, and 15 2. In abatement. See title Abate- ment, and 16 to 20 3. In bar. Rules as to pleas in bar gene- rally, 59 As to pleas concluding to the country, 59. 64, 5 Concerning the general issues, see under the appropriate heads, such as Non assumpsit, Nil de- bet, Non est factum, Non deti- net, Not guilty and No such re- cord. Course for plaintiff when plea concludes to the country, 64, 5 As to special pleas, 65 How they should conclude, 65 Whether wrong conclusion is ground of demurrer, 65, 6 Course for plaintiff when plea concludes with a verification, 65. 84 Entry of plea filed, demurrer thereto, and joinder, 90 Additional plea offered and ob- jected to, but allowed to be filed, 92 Additional plea rejected, because delayed too long, 92 Additional plea rejected, because the matter thereof is already in issue, 93 Additional pleas rejected, and opi- nion of court excepted to, 93 Improper plea set aside, 93 Sixteen pleas filed ; demurrers to some, and issues in fact upon others, 113 Defendant in last case tendered two other pleas which were re- jected, 113 Four pleas tendered, but first, third and fourth only received ; replication to first and fourth, and issues ; replication also to third, rejoinder thereto, and de- murrer to rejoinder; judgment for plaintiff on demurrer ; and verdict for him on other issues, 114 Concerning pleas under act of April 16. 1831, see title Fraud, and 91.92 PLENE ADMINISTRAVIT. Concerning this plea, 80 PLURIES CAPIAS. Award of pluries capias, 10 Pluries writ, 10 POINT RESERVED. Verdict for plaintiff subject to opinion on a point reserved, 133 Verdict reserving point set aside and venire de novo awarded, 133 Judgment upon points reserved, 150 POOR RATES. Notice of motion against sheriff and sureties for poor rates col- lected, 287 POSSESSION. Writ of possession after judg- ment for plaintiff in eject- ment, 240 Writ of possession after judg- ment for plaintiff upon com- plaint of unlawful entry or de- tainer, 242 INDEX. 629 POWER OF ATTORNEY. Power of attorney for confessing judgment, 100 Entry of judgment confessed un- der a power of attorney, 101 Authentication entitling a power of attorney from another state to be received as evidence in Virginia, 118 PRJECIPE QUOD REDD AT. Writ of prcecipe quod reddat, 118 PRIVILEGED PERSON. Summons against a, privileged person, 5 PROCEDEJYDO AD JUDICIUM. Form of the writ, 42 PROCLAMATION. Proclamation awarded, 12 Process of proclamation, 12 Sheriff's return upon process of proclamation, 12 PROFERT. When profert is unnecessary, 418 When it should be made, 498 PROHIBITION. Notices of motion for writ, with affidavit of service, 347 Suggestion that controversy be- fore a justice involves the title of an assignee to a freehold es- tate of inheritance in an incor- poreal hereditament, 348 Suggestion that proceedings be- fore justice were by four war- rants, for sums constituting to- gether but one debt, and that the debt exceeds $ 20, 351 Rule of law on this subject, 352, 3 Suggestion that county court is illegally exercising jurisdiction by prohibition, 353 Form of writ of prohibition, 354, 5 PROMISSORY NOTE. Declaration in debt on a promis- sory note by the payee against the maker, 409 Declaration in debt on two pro- missory notes, 409 When debt can and when it can- not be maintained on a promis- sory note, payable in bank notes or other articles of fluctuating value, 509 Declaration in assumpsit on such a note, 509 Verdict for plaintiff in debt up- on a note, 128 Verdict for plaintiff in debt on note, responding to plea of nil debet, 128 Judgment for plaintiff in debt on simple contract, 139 Judgment in circuit court for de- fendant in debt on promissory note, where verdict is for less than $50, in consequence of payments, 147 PROTEST. Concerning protest for non-ac- ceptance, 427 Concerning protest for non-pay- ment, 428 How far protest of foreign bill is evidence, 430 Form of protest of an inland bill of exchange, 118 Form of protest of a foreign bill of exchange, 118 Notice of dishonour, 115 Protest and affidavit under acts of assembly, 119 PUBLICATION. Order of publication upon a writ of error or supersedeas, 377 Concerning publication of scire facias, see Scire facias, and 38 Q QUARANTINE. Writ de quarentina habenda, 191 qui TAM. Verdict and judgment for plain- tiff in debt qui tarn, on plea of nil debet, 138 Verdict and judgment in debt qui tarn, for plaintiff as to part, and for defendant as to residue, 138 Fieri facias in debt qui tarn, 208 R RECOGNIZANCE. Concerning recognizance of spe- cial bail, see Bail. 630 INDEX. Scire facias on recognizance to keep the peace, 260 Scire facias on recognizance to appear and answer a felony, 261 Scire facias on recognizance of witnesses to appear and give evi- dence, 261 Where, upon recognizance, scire facias issued against two, and both died, process to revive a- warded against representative of last survivor, 265 Award of execution, for the com- monwealth, 263 Execution for the commonwealth, against the goods and chattels, lands and tenements, 273 RECORD. Manner of transcribing record, 361 Forms in various cases, 362 to 370. and 393, 4 Authentication entitling record of one state to be admitted as evidence in another, 117, 18 REFUNDING BOND. When action may be maintained on a refunding bond given by legatees or distributees to an ex- ecutor or administrator, 455 Plea that distribution has been made of estate and refunding bonds taken, 83 REJOINDER. Entry of general rejoinder to re- plication, and issue, 23 Entry of rejoinder being filed to special replication, 90 Entry of issue made up on re- joinder, 90 RELATOR. Judgment against relator, after verdict for defendant, 149 RELEASE. Motion for new trial, and part of damages being released, motion overruled, 133 The day after the judgment, par- cel of the damages released, 150 Excess in judgment released by plaintiff at a subsequent term, to cure error, 336 Excess in judgment released in vacation by plaintiff, by deed under hand and seal, 336 REMOVAL OF CAUSES. Order removing cause in conse- quence of judge's situation, 43 Petition for removal of cause from state court to court of United States, 43 Bond given upon such removal, 43 Order for such removal, 43 See titles Habeas corpus cum causa, Certiorari and Venue. RENT. Compensation for the use of land and personal property together, recoverable as rent, 445 Declaration in debt for such rent, 445 Declaration in covenant by les- sor against lessee for breach of covenant to pay rent reserved by deed, 490 When assumpsit lies for use and occupation, 530 Declaration in assumpsit, 530 See also titles Distress for rent, and Attachment. REPLEVIN. Bond given by tenant upon suing out writ of replevin, 152 Writ by the tenant, 152 Writ where the property distrain- ed, is claimed by any other than the tenant, 153 Certificate of justice that he swore two freeholders to value the property distrained, 153 Appraisement of the property distrained, 153 Bond given by claimant of dis- trained property upon suing out writ, 154 Sheriff's return upon writ sued out by the tenant, 154 Sheriff's return upon writ sued out by claimant of distrained property, 154 Declaration, 155 Plea alleging property to be in a third person, with a suggestion in the nature of an avowry, 155 Replication to last plea and simi- liter, 156 Entry of issue made up in a coun- ty or corporation court, 156 Another entry of issue made up, where the defendant avowed, 157 Avowry of distress, 157 Plea of non tenuit, Plea of nothing in arrear, 158 INDEX. 631 Appearance for defendant in cir- cuit court, and rule to declare, 158 Plaintiff in circuit court nonsuit- ed at the rules for want of de- claration, 158 Entry of declaration and condi- tional judgment, at the rules in circuit court, 159 Conditional judgment confirmed at rules in a circuit court, 159 Declaration filed, appearance at rules in circuit court, and rule to plead, 159 Plea to declaration at rules in cir- cuit court, and rule to reply, 159 Plaintiff nonsuited, at rules in circuit court, for want of repli- cation, 159 Avowry filed at rules in circuit court, and rule to plead, 160 Plaintiff nonsuited at the suc- ceeding rule day, 160 Plea filed to avowry at rules, in circuit court, and rule to reply, 160 Avowant failing to reply, judg- ment entered for plaintiff at succeeding rule day, 160 Verdict and judgment for plain- tiff, 160 In replevin by the tenant, ver- dict for the avowant upon an is- sue and judgment thereupon, 160 Tenant being nonsuit before is- sue joined, writ of enquiry exe- cuted and judgment thereupon, 161 In replevin by a claimant of the property, verdict for defendant upon an issue, and judgment thereupon, 161 Claimant of property being non- suit before issue joined, writ of enquiry executed, and judgment thereupon, 162 Judgment for defendant against claimant, when the value of the property is more than the rent, 162 Writs of fieri facias, 208, 9 REPLICATION. Replications to pleas to the juris- diction, 22. 23 Entry of replication filed at the rules, 23 General rules as to replications to pleas in bar, 59. 84 How replication should conclude, 84 Entry of replication being filed to special plea, 89 Entry of general replication to plea under act of April 16. 1831, with issue, 92 Cases in which replications were adjudged defective, 84,5 RESTITUTION. Writ of restitution awarded upon re versing judgment on complaint of unlawful entry or detainer, 386 Form of the writ, 390 After reversal of judgment of reversal, writ of re-restitution awarded, 395 Form of the writ, 399 RETRAXIT. Entry of retraxit, RETURN. 96 1. Upon capias ad respondendum. Where it is executed and the bail required is not given, 7 Where bail is given before the re- turn day of the writ is past, 8 Where bail is not required and process is executed, - 9 Of not found, 9 Of no inhabitant, 9 2. Upon other process issued in com- mon personal actions before judg- ment. Upon attachment, 12 Upon process of proclamation, 12 Upon scire facias against a party in the commonwealth, 36 Against a party out of the com- monwealth, 35 Of service upon agent, 38 Of service by publication, 38 3. In cases of a peculiar nature. Upon writ of replevin. See Re- plevin, and 154 Upon warrant in cose of unlaw- ful entry or detainer, 195 Under writ de partitione facienda, 206 Upon attachments against ab- sconding debtors, 304 In cases of habeas corpus, 357, 8, 9 4. Upon executions. On writs of fieri facias, 212 to 220 On writs of capias ad satisfacien- dum and e scape warrants, 224 to 235 Return on execution amended by stating that supersedeas was re- ceived before day of sale, 276 5. Upon writs of scire facias issued after judgment, or upon recogni- zance. Sundry returns, 262 Return of scire facias against spe- cial bail amended, 264 6. Motion for not making proper return. Of an execution, a forthcoming bond, schedule of an insolvent or account of sales, 289. 290. 291 632 INDEX. REVIVAL OF SUITS. Order reviving suit against perso- nal representative by consent, 38 Order substituting an adminis- tor de bonis non as plaintiff in the place of an executor whose powers have been revoked, 39 Order substituting an adminis- trator de bonis non as defendant in the place of an executor whose powers have been revoked, 39 Supersedeas revived by consent, 376 Concerning revival by scire fa- cias, see title Scire Facias. RIEJYS PER DISCENT. Plea by an heir, of riens per dis- cent, 83 Special replication under the sta- tute, 87 Verdict against an heir, upon re- plication under the statute, 327 RULES. Leave granted to amend decla- ration, and cause remanded to rules, 93 Order remanding a cause to the rules, for the issues to be made up, 94 RULE TO DECLARE. Rule to declare, 14. 158 Dismission at succeeding rule for want of declaration, 14. 158 RULE TO JOIN IN DEMURRER. Entry of rule to join in demur- rer to declaration, 25 Entry at succeeding rule day, if plaintiff fail to join in demur- rer, 25 RULE TO PLEAD. Entry of rule to plead, 20. 159 Entry at succeeding rule day, if defendant fail to plead, 21 In replevin, avowry filed at rules in circuit court, and rule to plead, 160 Plaintiff nonsuited at the suc- ceeding rule day for want of plea, 160 RULE TO REPLY. Entry of rule to reply, 21 Entry at succeeding rule day, if plaintiff fail to reply, 22 In replevin, plea to declaration at rules in circuit court, and rule to reply, 159 Plaintiff nonsuited at succeed- ing rule day, for want of repli- cation, 159 Plea filed to avowry at rules in circuit court, and rule to reply, 161 Avowant failing to reply, judg- ment entered for plaintiff in circuit court, at succeeding rule day, 160 RULE TO REJOIN. Entry of rule to rejoin, 23 RULE TO SHEW CAUSE. See Subpcena. RUNAWAY. See Slave, and 569, 70 S SATISFACTION. After judgment for plaintiff, sa- tisfaction acknowledged as to part, 150 Satisfaction of judgment ac- knowledged at a subsequent term, 150 SCHEDULE. See Insolvent. SCHOOL COMMISSIONERS. Notice of motion by president and directors of literary fund against treasurer of school commissioners, 284 SCILICET. When matter alleged under a scilicet, may be rejected, 402, 3 Cases of usury stand on pecu- liar ground, 481 SCIRE FACIAS. 1. To revive a personal action. Order awarding scire facias to revive suit in the name of or against a representative, 34 What must be set forth in scire facias to revive action of deti- INDEX. 633 nue against defendant's repre- sentative, 35 Forms of writs of scire facias to revive suits, 34, 5, 6 Sheriff's return upon scire fa- cias against a party in the com- monwealth, 36 Order awarding scire facias against defendant, who is out of the commonwealth, 37 Writ of scire facias against de- fendant, who is out of the com- monwealth, 37 Return to such writ, of service upon agent, 38 Publication of writ, 38 Return of service by publication, 38 Entry upon scire facias against personal representative being returned executed, 38 Entry after return of scire fa- cias against personal represen- tative, when he pleads de novo, 38 2. To revive a suit for land. Scire facias awarded for or against heirs or devisees, 176. 188 Writ of scire facias in such case, 176. 188 Upon return of scire facias executed, heirs or devisees made parties to the action, 176. 189 3. Form of writ after judgment or upon recognizance. Where execution has not issued within the year, 245 Upon death of plaintiff, for his executor or administrator to have execution, 245 Upon death of defendant to have execution against his executor or administrator, 246 Upon the death of a party whose estate is committed to a she- riff, 246 Upon death of defendant in deti- nue, to have execution against his executor or administrator, 247 Upon judgment in ejectment, against defendant's heir, 247 Upon a judgment for money, against heirs and terre tenants, to have execution of the lands, 248 By administrator de bonis non, 248 Against administrator de bonis non, 249 Where feme plaintiff marries after judgment, 249 Where feme defendant marries after judgment, 250 j W T here feme plaintiff marries af- ter recovering judgment, and is survived by her husband, who dies before execution, 250 80 Where, after judgment, plaintiff dies, and his administratrix marries, 250 On a judgment providing for fur- ther breaches, 250 On a judgment against a perso- nal representative, to be levied quando acciderint, 251 Where the sale of property is in- demnified, and the value is re- covered from the execution cre- ditor, to have new execution, 252 Where tenant by elegit is evict- ed of lands held by extent, to have new execution, 253 To have execution against pro- perty acquired by defendant af- ter taking oath of insolvency, 253 To have execution against the property of a debtor discharged on account of the creditor's failure to pay the jail fees, 254 Upon recognizance of a surety for costs, 254 Upon recognizance of special bail taken by a sheriff, 255 Upon recognizance of special bail taken by a judge or jus- tice of the peace, 256 Upon recognizance of special bail given in court, 257 Against special bail in detinue, upon recognizance taken by a sheriff, 257 Against executor or administra- tor of special bail, in action for debt or damages, 258 Against an officer who dischar- ged defendant from custody without taking bail, or without returning recognizance, 259 Where bail taken by an officer is adjudged insufficient, against the bail and the officer as joint cognizors, 259 On recognizance to keep the peace, 260 On recognizance to appear and answer a felony, 261 On recognizance of witnesses, to appear and give evidence, 261 4. Proceedings on scire facias is- sued after judgment or upon re- cognizance. Return of executed upon scire facias against special bail, re- turnable in term time, 262 Return of nihil, 262 Other returns, 262 Alias scire facias awarded, 262 Scire facias for renewal of a judgment being returned execu- ted, execution awarded, 262 634 INDEX. Where the scire facias is to re- new a judgment in ejectment, 262 Upon scire facias to revive judg- ment against deceased, award of execution against executor or administrator, 263 Where the scire facias is to re- vive a judgment in detinue, 263 Award upon scire facias assign- ing new breaches, 263 Award of execution for the com- monwealth, upon a recogni- zance, 263 Award of execution against spe- cial bail in debt, 264 Award of execution against spe- cial bail in detinue, 264 Return of scire facias against special bail amended, 264 Where, upon recognizance, scire facias issued against two, and both died, process to revive a- warded against representative of last survivor, 265 Entry of demurrer to scire fa- cias and joinder therein, 265 Entry of plea of no such record, and general replication thereto, 265 Oijer of record ; demurrer to scire facias ; and joinder, 266 Plea that execution had not is- sued, and scire facias was not sued out within ten years, 266 Where execution had issued, but no return was made, plea that ten years had elapsed, 266 Another plea under same sta- tute, more briefly drawn, 267 Plea under same statute by an executor, or administrator, to a scire facias issued to revive a judgment obtained against de- cedent, 267 Plea by executor or administra- tor that scire facias was issued against him, after the expiration of five years from his qualifica- tion, 267 Entry of plea of payment with general replication and issue ; and office judgment set aside, 267 Entry of judgment in the office, when it becomes final, 268 On a scire facias assigning new breaches, damages assessed, and judgment for plaintiff, 268 Special bail surrendering princi- pal after scire facias, judgment against him for the costs, 268 Entry of judgment where there is a confession, 269 Judgment on plea of no such re- cord, where that is the only plea, 269 Judgment for plaintiff where, be- sides no such record, there is a second plea, 269 Judgment for defendant where issue is found for him, 269 5. Jlfter award of execution on scire facias, forms of the executions which are issued. Fi. fa. for debt or damages reco- vered by a judgment which is renewed, 269 Fi. fa. where judgment against decedent is revived againstexe- cutor or administrator, 270 Fi. fa. where judgment obtained by decedent is revived in favour of executor or administrator, 270 Elegit where judgment against decedent is revived against his heir, 271 Distringas and f. fa. where judgment in detinue against de- cedent is revived against execu- tor or administrator, 271 Fi. fa. against special bail in ac- tion for debt or damages, 272 Execution against special bail in detinue, 273 Execution for the commonwealth against goods and chattels, lands and tenements, 273 6. Where there is a writ of error or supersedeas. Scire facias ad audiendum er- rores, 338 Award of scire facias to revive supersedeas, 376 Form of the writ, 376 Mias scire facias awarded, 377 Scire facias where execution has not issued within a year after affirmance by circuit court, of judgment of county court, 390 Scire facias against heirs and ter- retenants, to have execution of the lands upon a judgment of circuit court affirming a judgment of county court, ren- dered on a scire facias, 391 Award of execution upon such scire facias, 391 Fi. fa. after award of execution upon scire facias renewing a judgment of affirmance, 392 Fi. fa. after award of execution against executor, upon scire fa- cias reviving judgment affirm- ed against decedent, 392 Fi. fa. after award of execution in favour of executor, upon scire facias reviving judg- ment affirmed in decedent's lifetime, 392 INDEX. 635 Scire facias upon death of plain- tiff or defendant to have execu- tion for or against executor or administrator, upon a judgment of circuit court which has been affirmed by the court of appeals, 400 Where the judgment of circuit court affirmed a judgment of county court, 401 Fi. fa. after award of execution on scire facias, reviving in name of executor or administrator a judgment of circuit court which has been affirmed in the court of appeals, 401 SECURITY FOR COSTS. Notice that security is required, 26 Rule entered in court, in lieu of notice, 26 Bond, where security is given with the clerk, 26 Recognizance, where security is given in court, 27 Suit dismissed for want of secu- rity, after sixty days notice, 27 Suit dismissed for want of secu- rity, after rule requiring it, 27 Upon death of lessor in eject- ment, security for costs requir- ed, 175 Scire facias upon recognizance of a surety for costs, 254 SEDUCTION. Of the remedy for seduction, 594 No criminal prosecution lies, 594 Remedy by action, 594 Precedent of declaration for de- bauching plaintiffs daughter, 594 SEISIN. Writ of seisin after judgment for demandant on a writ of right, 240 Writ of seisin after judgment for demandant in dower, where the husband died seized, 241 Writ of seisin after judgment for demandant in dower, where the husband had aliened, 241 Writ of seisin after judgment for plaintiff in action of waste, 242 SERGEANT. See Sheriff. SET-OFF. Entry of account of set-offs be- ing filed with plea, 91 Concerning pleas under act of April 16. 1831, see title Fraud, 67 to 73. 91.92. and 136,7 Judgment in circuit court where verdict is for less than $50, in consequence of a set-off, 146 SEVERAL TENANCY. Flea of several tenancy, SHERIFF. 186 1. Concerning the duty of a sheriff in executing process and making returns, see titles Bait, Subpoina, Fieri Facias and Return. 2. Action in sheriff's name for ano- ther's benefit. Precedent of a declaration in debt on an indemnifying bond taken by a sheriff under the statute, 469 3. Action by sheriff against execu- tion creditor. Declaration in assumpsit by an officer who took property under execution and sold the same up- on an agreement that he should be indemnified, 536 Action lies for a sheriff who le- vied upon goods at the instance of an execution creditor, and was compelled to pay damages to a claimant of the goods, to recover the amount of those da- mages from the execution cre- ditor, although there may not have been any agreement to in- demnify, 575. 577 Precedent of a declaration in such a case, 575, 6, 7 4. Action against sheriff or his de- puty. Summons instituting action a- gainst sheriff, 5 How to declare against sheriffs for money received mrtute qfficii, 534 Debt lies against a sheriff con- ducting an election, under the statute creating a penalty for shewing partiality, 481 What averments in the declara- tion are sufficient in such a case, 481 Trespass lies against an officer for his tortious act or the tortious act of his deputy, 558 Action lies for the owner of a runaway slave against a sheriff for not furnishing the slave, while in jail, with bed-covering and fuel, 569, 70 Precedent of a declaration in such case, 569, 70 636 INDEX. What is deemed a sufficient war- rant to a jailor to receive a slave in his custody, 571, 2 Action lies for the owner of a slave, received in jail, against the sheriff for his negligence in suffering the slave to escape, 571,2 Case in which a declaration for such negligence was held suffi- cient, 571,2 In what manner prisoner may be delivered over by sheriff to his successor, so as to exempt the former for escape afterwards, 572 Declaration for such escape a- gainst the succeeding sheriff, 572 When action will lie against a deputy sheriff for an illegal sale under an execution, 575 5. Action on sheriff's bond. Of the manner of assigning breaches of the condition of a sheriff's bond, 455 In whose name the action on such bond may be maintained, 460 Precedent of a declaration against the administrator of a sheriff for taking insufficient security in a forthcoming bond, 455 On what principle damages will be assessed against the sureties where the breach assigned is the escape of a debtor taken in exe- cution, 456 6. Action by sheriff against deputy. Declaration in assumpsit by a high sheriff against the adminis- trators of his deputy for money received by the deputy mrtute officii, 534 How receipt of money by a de- puty must be averred, 469 What is no bar to an action by a sheriff on the bond of his de- puty, 465 Precedent of a declaration by a marshal or sheriff on the bond of a deputy who is in default, 465 7. Of the action by a deputy sheriff against his principal, for turning him out of office without cause, 577 8. For notices of motions against sheriffs and their sureties, of mo- tions by sheriff against deputies and their sureties, and of mo- tions by the sureties of a sheriff or of a deputy against their prin- cipals, as well as for judgments on such motions and executions thereupon, see 287 to 301 The forms embraced within the pages just referred to, are spe- cified in the table of contents prefixed to this volume. See xxxv. and xxxvi. SIMILITER. To plea, 64. 65. 88 To replication, 89. 90 To rejoinder, 90 SIMPLE CONTRACT. Judgment for plaintiff in debt on simple contract, 139 SINGLE BILL. Declaration in debt on a single bill, 410 Verdict for plaintiff thereupon, 128 Verdict for plaintiff thereupon, responding to plea of payment, 129 Judgment for plaintiff, 139 Judgment in circuit court for defendant where verdict is for less than $ 50, in consequence of payments, 147 SLANDER. When action of slander lies, 590 In what sense the words will be understood, 590 When the declaration will be sufficient and when not, 590 Precedents of declarations for slander, 590 Certificate of defendant in slan- der produced and recorded by consent, and suit dismissed at defendant's costs, 97 Judgment in slander where less than $16.66 is found in a cir- cuit court, or less than $6.66 in a county or corporation court, 143 SLAVE. Under what circumstances ac- tion may be maintained for loss of, or injury to a slave, occasioned by defendant's ne- glect, 566, 7, 8 Precedent of a declaration for such neglect by the owner against one to whom he hired the slave, 568 Under what circumstances ac- tion lies on behalf of the ow- ner of a runaway slave against a sheriff for not fur- nishing the slave, while in jail, with bed-covering and fuel, 569, 70 Precedent of a declaration in such case, 569, 70 INDEX. 637 What is deemed a sufficient warrant to a jailor to receive a slave in his custody, 571,2 Action lies for the owner of a slave, received in jail, against the sheriff for his negligence in suffering the slave to es- cape, 571,2 Case in which a declaration for such negligence was held suf- ficient, 571, 2 Verdict finding defendant guilty of dealing with a slave, and judgment thereupon, 138 See also titles Attachment and Freedom. SPECIAL BAIL. See Bail SPECIAL PLEAS. See Pleas. SPECIAL VERDICT. Form of a special verdict, 132 Entry of special verdict, 132 Special verdict set aside and venire de nuvo awarded, 133 Judgment upon special verdict, 150 Special verdict returned in eject- ment, 178 SPECIFIC EXECUTION. See Vendor and Vendee, and 178, 9 STATUTE OF FRAUDS. Provisions of the statute, 1. Of action against an executor or administrator upon a promise to pay a debt of the decedent, 543 2. Of action upon a promise to answer for the debt, default or miscarriage of another per- son. 543 Statute applies where creditor has a double remedy, 543 Whether books of a merchant are evidence that he had not a double remedy, 544 Consideration need not be ex- pressed in the writing, but may be proved rfeAors, 544 What is a promise to pay, and what a sufficient consideration for it, 544 Declaration need not set out the writing, but mnst describe the promise correctly, 545 If promise was conditional, con- dition must appear to have been complied with, 545 Necessary sometimes to aver no- tice to defendant, 545 But not necessary to aver de- mand upon third person and his refusal, 545 Precedent of a declaration upon such promise, 545 to 549 3. Of action for money agreed to be paid in consideration of mar- riage, 549 4. Of action upon a contract for the sale of lands, 549 5. Of action upon an agreement which is not to be performed within one year, 550 STATUTE OF LIMITATIONS. How far possession of slaves for five years operates to give title, 562 In what way a creditor suing in debt on a note which has been payable more than five years, must declare in order to have the benefit of a new promise made within the five years, 446 Forms of pleas under the various statutes of limitation, 7d. 79. 80 Various forms of replications to such pleas, 85. 86. 87 Plea oretenus, that action was not commenced within five years, general replication thereto, and issue, 89 Verdict on plea that action was not commenced in time, 126 Plea to scire facias on judgment, that execution had not issued and scire facias was not sued out within ten years, 266 Where execution had issued, but no return was made, plea that ten years had elapsed, 266 Another plea under same statute more briefly drawn, 267 Plea under same statute, by an executor or administrator, to a scire facias issued to revive a judgment obtained against de- cedent, 267 Plea by executor or administra- tor that scire facias was issued against him after the expiration of five years from his qualifica- tion, 267 STAY OF EXECUTION. Confession of judgment with stay of execution, 100 INDEX. STERLING MONEY. How sterling money debts are sued for and recovered, 440, 41 How in action for sterling mo- ney, the damages are laid, 441 In action of assumpsit for ster- ling money, though the decla- ration lays the damages in ster- ling, yet the damages may be as- sessed in current money, 131 Verdict in action of assumpsit for sterling money, assessing da- mages in current money, 131 Judgment for plaintiff in debt on a protested foreign bill of ex- change, 140 Judgment on foreign bill of ex- change, where it is given for a debt due in current money, or for current money advanced and paid, and the sum in current mo- ney that was paid or allowed is not expressed in the bill, 140 STOCK. Declaration in debt on a bond to transfer back, when required, bank stock, and 'pay such divi- dends as might be declared thereon in the mean time, 479 STOLEN NOTES. See Trover, and 565, 6 SUBMISSION. See Arbitration and Award. 1. Common form of subpozna. For a witness to attend court, 51 For a witness to attend arbitra- tors, 51 For a witness to attend on an or- der of survey, 51 2. Of the subpoena duces tecum. Order awarding same, 51 Form of the writ, 52 3. Rule against sheriff. Entry of rule for not returning a subpiena, ' 53 Summons against the sheriff un- der the preceding order, 53 4. Proceedings against witness. Entry of rule against a witness for not attending in obedience to a subpoena, 53 Summons against witness under the preceding order, 54 Rule against a witness discharg- ed, 54 Witness fined for his failure to attend, 54 Attachment awarded against a witness for contempt in not at- tending, 54 Form of the attachment, 55 See also title Witness, and 55, 6 SUBSTITUTION. Principle of substitution enables a surety in a bond secured by a mortgage, who pays it after for- feiture, to maintain action in name of mortgagee against mort- gagor, 560, 61 SUITS FOR FREEDOM. See Freedom. SUMMONS. Summons instituting an action against a judge of the general court, 4 Against any other privileged per- son, 5 Against a bank in a suit insti- tuted in the county where a branch is established, 5 Against a corporation in any other case, 5 SUPERSEDED. Petition to circuit court for a su- persedeas, 371 Certificate of counsel, 371 Order denying supersedeas, 371 Order awarding supersedeas, 372 Record with order allowing writ not delivered to clerk in fifteen days, but afterwards received by the court, 372 Bond given before the superse- deas is issued, 372 Form of the writ of supersedeas to judgment of county or cor- poration court, 373 Concerning the certiorari, see that title, and 373, 4 Order quashing supersedeas which had been improvident- ly allowed, 375 Plaintiff being called and not appearing, supersedeas dis- missed, 376 Supersedeas revived by consent, 376 Concerning revival by scire, fa- cias, see titles Scire facias, Pub- lication, and 376, 7 INDEX. 639 Where one of two plaintiffs dies, abatement as to him, 377 Judgments of affirmance and re- versal in various cases, 376 to 387 Supersedeas heard and time ta- ken to consider, 387 Supersedeas partly heard, 387 Supersedeas fully heard and time taken to consider, 387 Supersedeas fully considered and judgment, 387 After judgment in circuit court, forms of executions, writs of scire facias, judgments and ex- ecutions thereupon, 387 to 392 Transcript of the record of a judgment in circuit court, gi- ven on a Supersedeas, 393 Writ of supersedeas to judgment of circuit court, 394 Bond given when supersedeas is obtained to judgment of circuit court, 394 Forms of judgments on such su- persedeas, 395 Decision of appellate court re- ceived by clerk of court below, during the session of the court, and judgment entered pursuant thereto, 396 Decision of court of appeals, received by clerk of circuit court, in vacation, and entry thereof, 396 After affirmance of judgment in detinue, proceedings to ascer- tain the value of the hires of the slave recovered, which have accrued since the verdict and judgment, 396 After judgment on complaint for unlawful entry or detainer is reversed, and case remanded, new jury impannelled, 397 After judgment in court of ap- peals, forms of executions, writs of scire facias and executions awarded thereupon, 397 to 401 SUPERSEDEAS BOJYD. Form of the bond, 372. 394 Under what circumstances there may be a recovery on the bond, 473 SURETY. 1. Concerning surety's right of substitution, see Substitution, and 560, 61 2. Pleas by surety under statute, requiring action to be brought in a reasonable time after no- tice, 76, 7 3. Cases of execution upon judg- ment against principal and surety, being quashed on sure- ty's motion, 242, 3 4. Motion by surety against prin- cipal. Notice of such motion, 279 Judgment for surety, 279 Fi. fa. on the judgment, 280 Transcript of record, 370 5. Motion for surety against execu- tor or administrator of princi- pal. Judgment for surety on such mo- tion, 280 Fi. fa. on the judgment, 280 6. Motion by surety against co- surety. Notice of the motion, 281 Judgment for surety on such motion, 281 7. Concerning motions against the sureties of a sheriff or his deputy or by such sure- ties against their principal, see 287 to 301 SURRENDER BY BAIL. See Bail, and 30 to 33 SURVEY. Order of survey, 175 Subpcena for witness to attend survey, 51 SURVEYOR. Action lies against a surveyor for fraudulently refusing to furnish copies of surveys, 578 SUSPENSION OF EXECUTION. 1 . On judgment for unlawful entry or detainer. Certificate of counsel to procure suspension, 193 Order directing execution to be suspended, 198 Bond given at the time of pro- curing suspension, 199 2. On other judgments. Where party desires to appeal, order directing execution to be suspended, 360 Bond given when the court suspends execution, to let the party apply for an ap- peal, 360 640 INDEX. TAXES. Notice of motion by sheriff against deputy and his sure- ties, for taxes, 298 Notice of motion by sheriff against administrators of de- puty, for taxes, 298 Fi. fa. upon judgment in favour of sheriff against deputy's sure- ties, for taxes, 299 TENDER. Effect of tender of less sum than is due, 84 When tender may be given in evidence under plea of pay- ment, , 83 When plea of tender will be con- sidered bad in form, 83 Entry of plea of tender and mo- ney brought into court, 91 Verdict for defendant respond- ing to plea of non assumpsit as to part, and tender as to resi- due, 130 Response in favour of defendant as to tender of part, and in favour of plaintiff, upon plea of non assumpsit, 130 TESTATUM CAPIAS. Award of this writ, 10 Form of the writ, 11 THREE MONTHS BOND. See title Distress. TRESPASS. Distinction between trespass and case, 555 Of the different kinds of tres- pass, 555 to 560 1 . Trespass to or upon the person, 555 Against whom maintainable and form of declaration, 555 2. Trespass upon real property. By whom the action can and can- not be maintained, 555 Against whom it can and cannot be maintained, 555 To what extent plaintiff may claim redress, 555 How the count must be framed, 556 Advisable that the place be men- tioned, 556 Use of clause of alia enormia, 557 Forms of declarations, 557 3. Trespass upon personal pro- perty, 558 It lies for destroying or injuring slaves, 558 It lies against an officer for his tortious act, 558 Or for the tortious act of his de- puty, 558 When it lies for or against a per- sonal representative, 559 What amounts to a waiver of the trespass, 559 Whether the declaration must specify the property, 559 Whether declaration must state possession of plaintiff, 559 Averment of property indispen- sable, 559 Forms of declarations, 560 4. Verdict. On writ of enquiry, 124 For plaintiff on issue, 131 5. Judgment. Upon confession, 99 On verdict for plaintiff, 143 In action of assault and battery, or slander, where less than $ 16. 6t) is found in a circuit court, or less than $6.66 in a county or corporation court, 143 Where the jury find under $ 6.66 in trespass, 143 In action of trespass, assault or false imprisonment, against se- veral, one of Whom is found guilty and another not, 146 6. Execution. Writs of fieri facias, 208 TROVER. Action for a slave or other chat- tel converted by defendant to his use, may be maintained by a trustee, 564 It will not lie against an agent who has made payment to his principal without notice, 564 But a payment over by an execu- tor or administrator will not exonerate him, 564 When demand and refusal are not necessary to be shewn, 564 Under what circumstances action will lie for bank notes or bills of exchange lost by or stolen from plaintiff, and converted by de- fendant to his use, 565, 6 Form of declaration in trover, 565 Whether it is necessary in decla- ration to state price or value of thing converted, 565 INDEX. 641 TRUST. Notice to plaintiff who claims un- der a trust which is satisfied, 177 TRUSTEE. Under what circumstances, ac- tion of trover may be maintain- ed against a trustee, 564 TURNPIKE COMPANY. Notice of motion by a turnpike company against a delinquent stockholder, 282 U VJfDE mHlL HABET. Writ of unde nihil habet in dower, 191 UNLAWFUL ENTRY OR DE- TAINER. Complaint of unlawful entry or detainer, 195 Affidavit that complaint is true, 195 Warrant to officer, 195 Officer's return upon warrant, 195 Court formed, jury impannelled, evidence heard and verdict re- turned, 196 Judgment for plaintiff, 196 Judgment for defendant, 196 New trial granted, 197 New trial had at regular term, 197 Court adjourned in consequence of jury's not agreeing, 197 Jury failing to agree, juror with- drawn and cause continued till the next term, 197 After jury had failed to agree, new jury impannelled at regu- lar court, 197 No court having been formed on the day appointed, jury impan- nelled at the next court, 198 Bills of exception admitted to opinions of the court, 198 Certificate of counsel to procure suspension of the execution, 198 Order directing execution of the judgment to be suspended, 198 Bond given at the time of pro- curing a suspension of the exe- cution, 199 Fi. fa. for costs recovered by plaintiff, '210 Writ of possession after judgment for plaintiff, 242 Transcript of the record, 365 81 Judgment for plaintiff reversed by circuit court, and writ of res- titution awarded to restore pos- session, 336 Form of writ of restitution, 390 Reversal of judgment of circuit court, which reversed judgment of county court, and writ of re- restitution awarded, 395 Form of writ of re-restitution, 399 After judgment is reversed and case remanded, new jury im- pannelled, 397 USE AND OCCUPATION. Whea assumpsit lies for the use and occupation of land, 530 Declaration in such action, 530 USURY. In a declaration for usury, date of usurious contract must be al- leged and proved, 481 Plea against a specialty, under statute against usury, 66 General replication to plea of usury, 85 VARIANCE. Plea in abatement for variance be- tween the writ and declaration, 19 Concerning variance between al- legata and probata, see 402, 3. 418, 19. and 519 VENDOR AND VENDEE. 1. Of action against vendee for not complying with terms. Liability of vendee for the price of goods sold and virtually de- livered, 523 Remedy against a purchaser at auction, failing to comply with the terms, 524 Declaration in assumpsit against such purchaser, for the loss upon a resale, 524 2. Of the remedy against a vendor for fraud. Action lies for false representa- tion or suppression of truth, 578 Case of a false representation, 578 Case of suppression of the truth, 579 Declaration must always allege fraud, 579 Precedent of a declaration against a vendor for fraud, 579 to 583 642 INDEX. 3. How vendee may defend action avainst him for land. Notice by defendant who is a ven- dee, or the he4r of a vendee, entitled to specific execution, 178 Special verdict returned, 178 Judgment under the statute for defendant entitled to a convey- ance of the legal title from the vendor or his heirs, 178, 9 Judgment against vendee, or heirs of vendee, who made de- fence under the statute, 1 79 VEND IT1 ONI EXPOJYAS. Form of the writ in an ordinary case, 220 Form of the writ to a late sheriff, 220 Form of the writ for the sale of property taken by an officer who died before selling it, 221 VENIRE DE NOVO. Special verdict set aside and ve- nire de novo awarded, 133 VENUE. Omission in declaration to state the place, ground of special de- murrer, Order changing venue, 418 43 VERDICT. On writ of enquiry except in de- tinue, 124 On writ of enquiry in detinue, 124 Upon issue or issues, where the finding is general and not ex- tended into form, 128 Upon issue or issues where the finding responds to the same, or is extended by the clerk into form, 125 For the form of the verdict in any particular form of action, such as debt, covenant, assump- sit, trespass, detinue or case, or upon any particular issue, such as non est factum, nil debet, non assumpsit, non detinet or not guilty, refer to the appropriate head. W WARRANTY. Declaration upon a covenant to warrant and defend the quanti- ty of land mentioned in a deed, 488 Upon a covenant to warrant and defend the title to land convey- ed, 489 What amounts to a warranty of title to a chattel, 527 In assumpsit on such a warranty, what must be laid in the decla- ration, 527 Declaration in assumpsit by the purchaser of a slave warranted sound, who was_diseased at the time, and remained so until her death, 527 Right of the purchaser of a horse warranted sound (and offered to be returned upon being disco- vered to be unsound) to recover the expense of keeping and the loss upon a resale, 528 Action lies on behalf of the pur- chaser of a horse warranted sound, who proved to be un- sound, but was not returned or tendered, 529 Action lies on behalf of the pur- chaser of seed warranted good, which were used and proved not to be good, 529 Action lies on behalf of the pur- chaser of an article sold for a particular purpose, upon the im- plied warranty that it is fit for that purpose, 530 WASTE. Summons in action of waste, 200 Declaration, 200 Award of attachment, 201 Process of attachment, 201 Award of distress, 201 Process of distress, 202 Defendant not appearing upon the distress, judgment by de- fault, and process awarded to have the waste enquired of, 202 Form of such process, 202 Writ of enquiry returned, judg- ment by default set aside, and issue joined, 203 Verdict for plaintiff as to part, and judgment thereupon, 203 Fi. fa. for damages recovered, 21 Writ of seisin, 242 WITNESS. See Subpoena, and 51 to 55 Order committing to prison a wit- * ness who refuses to give evi- dence, 55 Order in favour of witness for his attendance, 55 INDEX. 643 Attachment on order for atten- dance, 55 Summons against an executor upon order for attendance, 55 WORK AND MATERIALS. Common count in assumpsit for work and materials, 550 When it is proper and when not, 551 WRIT OF ENQUIRY. Award of when conditional judg- ment is confirmed, 14 Award of when, after rule to plead, defendant is in default, 21 In debt on judgment, demurrer to plea sustained, and judgment not being for interest, writ of enquiry awarded, 111 After writ of enquiry, damages assessed by the court, and final judgment rendered, 115 Verdict on writ of enquiry, ex- cept in detinue, 124 Verdict on writ of enquiry in de- tinue, 124 In replevin, tenant being nonsuit before issue joined, writ of en- quiry executed and judgment thereupon, 161 Claimant of property being non- suit before issue joined, writ of enquiry executed and judgment thereupon, 162 Writ of enquiry awarded in suit for freedom, 166 Writ of enquiry executed in suit for freedom, and judgment for plaintiff, 167 Concerning writ of enquiry in waste, see title Waste, 202, 3 Transcript of the record in a case wherein damages have been as- sessed and judgment rendered on a writ of enquiry, 363 WRIT OF ERROR. 1. In same court. Petition for writ of error coram robis, 337 Writ awarded, 337 Form of the writ, 338 Scire facias ad audiendum er- ror es, 338 Error in fact confessed ; judgment reversed; proceedings subse- quent to declaration set aside ; and cause sent to rules, 339 Writ of error coram robis award- ed, because plaintiff was dead when suit was brought ; and the fact being admitted, judgment reversed and writ quashed, 339 2. From appellate court. Petition for writ of error, where petitioner cannot give security, 374 Order upon such petition, award- ing the writ, 374 Bond given for costs before writ is issued, 374 Form of the writ, 375 For proceedings, like those upon a writ of supersedeas, see title Supersedeas. WRIT OF RIGHT. Writ of prcecipe quod reddat, 183 Count, i&3 Conditional order, 183 Judgment for want of appear- ance, 183 Where the prcecipe is returned not found, if in a circuit court, 184 Writ of exigi facias and return thereon, J84 Judgment for demandant upon return of exigi facias, 184 Where the prcecipe is returned not found, if in a county or cor- poration court, 184 Endorsement by the clerk on each new prcecipe, 185 Return upon each new prcecipe, 185 Another new prcecipe awarded, 185 Judgment for demandant after five prcecipes, 185 Plea of non tenure, 185 Plea of joint tenancy, 186 Plea of several tenancy, 186 Plea of demandant's death before suit brought, 186 Judgment where plea of non-te- nure is sustained as to parcel of the land demanded, 186 Judgment where plea of joint te- nancy is sustained, 186 Judgment where plea of joint te- nancy is disproved, 186 Demurrer to the count, 187 Plea in bar, 187 Replication to plea in bar, 187 Entry of the mise being joined, 187 Defence by other than the te- nant, 187 Rule made upon ascertaining that demandant was dead, when the suit was brought, 187 Scire facias awarded the heirs or devisees of demandant, 188 Form of such scire facias, 188 Upon return thereof, heirs or de- visees made parties, 189 644 INDEX. Scire facias awarded against the tenant's heirs or devisees, 188 Form of such scire facias, 188 Upon return thereof, heirs or de- visees made parties, 189 Charge to the recognitors of the assize, 189 General verdict for the tenant, and judgment thereupon, 189 General verdict for the deman- dant, and judgment thereupon, 189 General verdict for demandant for part and for tenant for resi- due ; and judgment thereupon, 190 Transcript of the record, 365 Ft. fa. for demandant for his da- mages and costs, 209 Writ of seisin, 240