UNIVERSITY 
 
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 LOS ANGELES 
 
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 SCHOOL OF LAW 
 LIBRARY
 
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 FORMS 
 
 ADAPTED TO THE 
 
 PRACTICE 
 
 IN 
 
 VIRGINIA. 
 
 BY CONWAY ROBINSON. 
 
 VOLUME I. 
 
 RICHMOND : 
 
 PRINTED BY SHEPHERD AND COLIN 
 
 and sold by Smith </ Palmer. 
 1841.
 
 Entered, according to act of congress, on the twenty-seventh day 
 of May in the year eighteen hundred and forty-one, by CONWAY 
 ROBINSON, in the clerk's office of the district court of the eastern 
 district of Virginia. 
 
 I
 
 PREFACE. 
 
 Many years ago, my father published a volume of forms for 
 clerks of courts, with precedents of declarations, indictments 
 and informations, and some forms of conveyances. During 
 the time that I was in a clerk's office, the first edition became 
 exhausted, and, with my father's approbation, I published a 
 second. The second edition having been prepared before I 
 had thought of the law as my profession, and while I was yet 
 in a state of minority, was not such a book as I would be wil- 
 ling to publish now. But notwithstanding its imperfections, 
 so great was the necessity for it that every copy has been dis- 
 posed of, and the demand still continues. Under such circum- 
 stances, it has seemed to me best to revise the work, and, at 
 the same time, adopt a plan of publication which will make it 
 more complete. 
 
 The plan upon which I have determined, is to publish forms 
 for parties, counsel, justices, sheriffs and other officers of courts; 
 to publish these, generally, in the order of the practice in Vir- 
 ginia, I mean the order of the work known as Robinson's Prac- 
 tice; to give after the caption to each form a reference to the 
 page in the practice, at which there is mentioned any statute, 
 decision or other matter connected with the form ; and occa- 
 sionally to refer to particular statutes or decisions when in con- 
 sequence of their recent date, or from any other cause, such 
 reference seems material. 
 
 The order of arrangement thus determined upon, while in 
 no wise inconvenient to those having occasion for the work in 
 attending to the calls of business, will, it seems to me, prove a 
 great facility to students reading the work on practice, who 
 will thus be enabled to refer to the forms in the order in which 
 the subjects are treated of.
 
 IV PREFACE. 
 
 The present volume contains such forms as are called for by 
 the first volume of the practice, and for the most part in the 
 order of that volume. There is indeed only one exception to 
 that order worth mentioning. The forms of declarations in 
 the actions of debt, covenant, assumpsit, trespass, detinue and 
 case, instead of being amongst the proceedings at rules, in 
 common personal actions, are placed at the end of the volume. 
 In this part of the volume, decisions upon rights and remedies 
 are given to a greater extent than has been thought necessary 
 or proper in any other portion of the work. 
 
 It will still remain to give, hereafter forms in suits in equity ; 
 in criminal causes ; in cases before courts of probate ; and in 
 other cases wherein appeals are demandable of right, such as 
 mills, roads and the like. All of these, as well as some forms 
 of conveyances, may perhaps be included in a single volume. 
 As, however, the legislation anticipated next winter may affect 
 somewhat the forms in criminal causes, I do not propose pub- 
 lishing another volume until after the next session of the legis- 
 lature. 
 
 It may not be amiss to add that when the whole work is 
 completed, such of the forms as are for justices and sheriffs, 
 maybe published separately, in a volume of moderate size. 
 
 CON. ROBINSON. 
 
 Richmond, June, 1st, 1841.
 
 TABLE 
 
 SHEWING THE CONTENTS AND ARRANGEMENT OP THIS VOLUME. 
 
 BOOK I. 
 
 FORMS IN THE COURTS OF LAW IN CIVIL CASES. 
 
 CHAPTER I. 
 
 PROCESS BY WHICH COMMON PERSONAL ACTIONS ARE COMMENCED. 
 
 1. Attorney's memorandum for the capias, - 1 
 
 2. Capias to institute an action, - 3 
 
 3. Affidavit to obtain bail, with justice's endorsement on the 
 
 writ, - - - - - 3 
 
 4. Summons against a judge of the general court, - 4 
 
 5. any other privileged person, - 5 
 
 6. a bank in a suit instituted in the county where 
 
 a branch is established, - 5 
 
 7. a corporation in any other case, - 5 
 
 8. Confession of judgment in the office, - 5 
 
 9. Notice by defendant in custody, that he will confess judgment 
 
 in the clerk's office, - 6 
 
 10. Return of capias, where it is executed and the bail required is 
 
 not given, - - - 7 
 
 11. Confession of judgment in the office by defendant in custody, 
 
 and he, not being prayed in custo- 
 dy, discharged therefrom, - 7 
 
 12. in the office by defendant in custody, 
 
 who is thereupon prayed in cus- 
 tody, - - 7 
 
 13. in court by defendant in custody, - 7 
 
 14. Return where bail is given before the return day of the* writ 
 
 is past, - - - 8 
 
 15. Bail being given in term time, order discharging defendant, 8 
 
 16. Return, where bail is not required and process is execu- 
 
 ted, - - - - 9 
 
 17. Return of not found, 9 
 
 18. of no inhabitant, 9
 
 VI TABLE OF CONTENTS. 
 
 CHAPTER II. 
 
 PROCEEDINGS AT RULES. 
 
 1. Entry where action abates by the return, 10 
 
 2. Award of alias capias, - 10 
 
 3. Alias writ, - 10 
 
 4. Award of pluries capias, - - 10 
 
 5. Pluries writ, 10 
 
 6. Award of testatum capias, 10 
 
 7. Writ of testatum capias, - 11 
 
 8. Attachment awarded to force an appearance, 11 
 
 9. Process of attachment, 11 
 
 10. Sheriff's return upon attachment, 12 
 
 11. Proclamation awarded, 12 
 
 12. Process of proclamation, 12 
 
 13. Sheriff's return upon process of proclamation, 
 
 14. Conditional judgment in a suit commenced by capias, 
 
 15. in a suit commenced by summons, - 13 
 
 16. where officer is kept off by force of 
 
 arms, - 13 
 
 17. after proclamation, 14 
 
 18. after attachment, - 14 
 
 19. confirmed, 14 
 
 20. Rule to declare, 14 
 
 21. Dismission for want of declaration, 14 
 
 22. for want of declaration set aside in court, 15 
 
 23. Plaintiff's next friend being dead, another admitted to sue, 15 
 
 24. Declaration filed against an infant, 15 
 
 25. Guardian assigned by the court to defend an infant, 15 
 
 26. Appearance of infant defendant by guardian, - 15 
 
 27. After infant attains his age, appearance by attorney, 15 
 
 28. Plea to the jurisdiction, 15 
 
 29. Plea in abatement to the person of the plaintiff, that he is an 
 
 alien enemy, 16 
 
 30. that the plaintiffs, suing as husband and 
 
 wife, never were married, 17 
 
 31. that plaintiff is a fictitious person, 17 
 
 32. to the person of the plaintiff, that he was 
 
 dead when the writ issued, 18 
 
 33. to the person of the defendant, that the 
 
 contract was made by him and his part- 
 ner jointly, and not by the defendant 
 
 separately, - 18 
 
 34. for variance between the writ and decla- 
 
 ration, 19 
 
 35. by a corporation for intrinsic matter, - 19 
 
 36. by a corporation for extrinsic matter, - 20 
 
 37. Entry of declaration, defendant's appearance, and rule to 
 
 plead, 20 
 
 38. at succeeding rule day, if defendant fail to plead, - 21
 
 TABLE OF CONTENTS. Vll 
 
 39. Entry of declaration, defendant's appearance, oyer of writ, 
 
 plea in abatement, and rule to reply, 21 
 
 40. at succeeding rule day, if plaintiff fail to reply, - * 22 
 
 41. Demurrer to plea to the jurisdiction, 22 
 
 42. to plea in abatement, - - 22 
 
 43. Replication to plea to the jurisdiction, - 22 
 
 44. Another replication, - - 23 
 
 45. Another, - - - 23 
 
 46. Entry of demurrer to plea, and joinder, - 23 
 
 47. of replication to plea, and rule to rejoin, - 23 
 
 48. of general rejoinder to replication, and issue joined, 23 
 
 49. Oyer of obligation and condition, and demurrer to declara- 
 
 tion, - 24 
 
 50. of obligation and condition, and demurrer to one of 
 
 the breaches assigned, - - 25 
 
 51. Entry of declaration, defendant's appearance, oyer of spe- 
 
 cialty, demurrer to declaration, and rule to join, - 25 
 
 52. at succeeding rule day, if plaintiff fail to join in de- 
 
 murrer, - - - 25 
 
 CHAPTER III. 
 
 SECURITY FOR COSTS. 
 
 1. Notice that security is required, - - 26 
 
 2. Rule entered in court, in lieu of notice, - 26 
 
 3. Bond, where security is given with the clerk, - 26 
 
 4. Recognizance, where security is given in court, - 27 
 
 5. Suit dismissed for want of security, after sixty days notice, 27 
 
 6. after rule requiring it, 27 
 
 CHAPTER IV. 
 
 RULE FOR BAIL, AND EXCEPTIONS TO BAIL. 
 
 1. Order ruling defendant to give bail, - 28 
 
 2. Exceptions to bail taken by an officer, -. 28 
 
 3. Entry of such exceptions, - - 28 
 
 4. Decision upon exceptions to bail taken by an officer, - 29 
 
 5. After officer is bound as bail, rule upon defendant to give 
 
 other special bail, - - 29 
 
 6. Entry of exceptions to bail taken by any other than an offi- 
 
 cer, - - - 29 
 
 7. Exceptions to bail taken by officer, for insufficiency happen- 
 
 ing after recognizance taken, - 29 
 
 8. Decision upon exceptions to bail in either of two last cases, 29
 
 VUl TABLE OF CONTENTS. 
 
 CHAPTER V. 
 
 SURRENDER OF DEFENDANT BY HIS BAIL. 
 
 1. Bail piece, - 30 
 
 2. Entry of surrender in court in pending suit, - 30 
 
 3. Defendant discharged on giving other good special bail, - 30 
 
 4. Entry of surrender in court after judgment, - 30 
 
 5. of defendant's surrender of himself in court after judg- 
 
 ment, - 31 
 
 6. Receipt for defendant, when surrender is not in court, 31 
 
 7. Notice of surrender out of court, 31 
 
 8. Notice of motion for exoneretur, 
 
 9. Exoneretur entered, 32 
 
 10. Writing charging defendant in execution, 33 
 
 11. Consent by creditor to discharge of principal, 33 
 
 CHAPTER VI. 
 
 DEATH OR CHANGE OF PARTIES. 
 
 1. Suggestion of plaintiff's death, - 34 
 
 2. Discontinuance of suit at second term after suggestion of 
 
 plaintiff's death, - 34 
 
 3. Order awarding scire facias to revive in the name of, or 
 
 against a representative, 34 
 
 4. Writ of scire facias to revive in the name of the represen- 
 
 tative of a party, 34 
 
 5. to revive suit commenced by an execu- 
 
 tor or administrator, in the name of 
 administrator de bonis non, 35 
 
 6. to revive suit brought by a curator, in 
 
 the name of executor or adminis- 
 trator, - 36 
 
 7. to revive against committee a suit de- 
 
 pending against idiot or lunatic, - 36 
 
 8. to revive against an idiot or lunatic a 
 
 suit depending against his commit- 
 tee, - 36 
 
 9. Sheriff's return upon scire facias against a party in the com- 
 
 monwealth, 36 
 
 10. Order awarding scire facias against defendant who is out of 
 
 the commonwealth, 37 
 
 11. Scire facias against defendant who is out of the common- 
 
 wealth, 37 
 
 12. Return of service upon agent, - 38 
 
 13. Publication, 
 
 14. Return of service by publication, - 38 
 
 15. Order reviving suit against personal representative by con- 
 
 sent, - 38
 
 TABLE OF CONTENTS. IX 
 
 16. Entry upon scire facias against personal representative be- 
 
 ing returned executed, - - 38 
 
 17. after return of a scire facias against personal repre- 
 
 sentative, when he pleads de novo, - 38 
 
 18. Order substituting an administrator de bonis non as plaintiff 
 
 in the place of an executor whose pow- 
 ers have been revoked, - 39 
 
 19. an administrator de bonis non as defen- 
 
 dant in the place of an executor whose 
 powers have been revoked, - 39 
 
 20. Entry where one of two plaintiffs dies, - 39 
 
 21. one of two defendants dies, - - 39 
 
 22. a feme plaintiff marries, 39 
 
 CHAPTER VII. 
 
 REMOVAL OF CAUSES. 
 
 1. Writ of habeas corpus cum causa, - 40 
 
 2. Return upon writ, - - - 40 
 
 3. Order upon return of writ, - 40 
 
 4. Certiorari awarded to remove a cause originally cognizable 
 
 in a circuit court, 41 
 
 5. to remove a cause, where justice cannot 
 
 be done in county court, - 41 
 
 6. to remove a cause for unreasonable ne- 
 
 glect or delay, - 41 
 
 7. Writ of certiorari to remove a cause, - 41 
 
 8. Order made in county court upon production of certiorari, 42 
 
 9. to docket cause upon return of certiorari, 42 
 
 10. Procedendo ad judicium, - 42 
 
 11. Order changing venue, - 43 
 
 12. removing cause in consequence of judge's situation, 43 
 
 13. Petition for removal of cause from state court to court of 
 
 United States, - 43 
 
 14. Bond given upon removal of a cause from state court to 
 
 court of United States, - 43 
 
 15. Order for the removal of a cause from state court to court of 
 
 United States, - 44 
 
 CHAPTER VIII. 
 
 DEPOSITIONS OF WITNESSES. 
 
 1. Affidavit that witness is unable to attend court, - 45 
 
 2. where there is a single witness to a material point, 45 
 where witness resides out of the commonwealth, 45 
 
 4. Order awarding commission to take depositions de bene esse, 46 
 
 5. to take depositions in chief, of 
 
 witnesses residing in another 
 state, 46 
 
 ii
 
 X TABLE OF CONTENTS. 
 
 6. Order awarding commissions to both parties, to take the de- 
 
 positions of their witnesses in 
 
 the state, de bene esse, 46 
 
 7. to both parties to take the depo- 
 
 sitions of their witnesses out 
 
 of the state, 47 
 
 8. Commission to take deposition de bene esse, - 47 
 
 9. to take deposition of witness out of the com- 
 
 monwealth, 47 
 
 10. Notice of application for commission to take depositions in 
 
 a foreign country, 47 
 
 11. Commission awarded to take depositions in a foreign country, 48 
 
 12. Notice to take deposition, 48 
 
 13. to non-resident party, 49 
 
 14. Affidavit of service or publication of notice, 49 
 15 Return of a commission for taking depositions, 49 
 
 CHAPTER IX. 
 
 ATTENDANCE OF WITNESSES IN PERSON. 
 
 1. Subpoena for a witness to attend court, 51 
 
 2. for witness to attend arbitrators, - 51 
 
 3. for witness to attend on an order of survey, 51 
 
 4. Order awarding subpoena duces tecum, 51 
 
 5. Writ of subpoena duces tecum, - 52 
 
 6. Order awarding writ of habeas corpus ad testificandum, - 52 
 
 7. Writ of habeas corpus ad testificandum, 52 
 
 8. Witness brought up by habeas corpus remanded after giving 
 
 testimony, 52 
 
 9. Entry of rule upon a sheriff for not returning a subpoena, 53 
 
 10. Summons against the sheriff under the preceding order, 53 
 
 11. Entry of rule against a witness for not attending in obedi- 
 
 ence to a subpoena, 
 
 12. Summons against witness under the preceding order, 54 
 J3. Rule against a witness discharged, 54 
 
 14. Witness fined for his failure to attend, 54 
 
 15. Attachment awarded against a witness for contempt in not 
 
 attending, 54 
 
 16. Process of attachment, 55 
 
 17. Order committing to prison a witness who refuses to give evi- 
 
 dence, 55 
 
 18. in favour of witness for his attendance, 
 
 19. Attachment on order for attendance, - 55 
 
 20. Summons against an executor upon order for attendance, 55
 
 TABLE OF CONTENTS. XI 
 
 CHAPTER X. 
 
 DISCOVERY FROM A PARTY. 
 
 1. Interrogatories to a party to obtain a discovery from him 
 
 with affidavit subjoined, - - 57 
 
 2. Entry of interrogatories being filed, and order thereupon, 57 
 
 3. Affidavit to obtain the discovery and production of a writing 
 
 in the possession of adverse party, - 58 
 
 4. Entry of affidavit being filed, and order thereupon, - 58 
 
 CHAPTER XI. 
 
 PLEAS IN BAR, AND PROCEEDINGS THEREON TO ISSUE JOINED. 
 
 1. General rules, - - - - 59 
 
 2. Rules as to pleas concluding to the country, - 59 
 
 3. Plea of non-assumpsit, - - 59 
 
 4. nil debet, - - - 59 
 
 5. Affidavit denying execution of writing on which action is 
 
 brought, - - - - 60 
 
 6. Plea of non est factum by an obligor, with affidavit thereto, 61 
 
 7. by an executor or administrator, 61 
 
 8. by an administrator, with oyer of the 
 
 bond, and affidavit that it was de- 
 livered as an escrow, - 61 
 
 9. In action upon judgment in another state, entered upon con- 
 
 fession under power of attorney, plea denying the execu- 
 tion of the power of attorney and the validity of the judg- 
 ment, - 62 
 
 10. Plea by an administrator, in debt on collateral bond, denying 
 
 causes of action set forth in particular breaches, - 63 
 
 11. of no such record to debt on judgment of another state 
 
 in the union, - - - 63 
 
 12. of non detinet, - - 64 
 
 13. of not guilty in trespass or case, - 64 
 
 14. Course for plaintiff when plea concludes to the country, 64 
 
 15. Similiter to one plea, and demurrer to another, - 65 
 
 16. Rules as to special pleas, - - 65 
 
 17. Plea against a specialty under statute against usury, 66 
 
 18. act of April 16. 1831 , with affi- 
 
 davit, - 76 
 
 19. Another, - 71 
 
 20. Another, - - - 72 
 
 21. Pleas by common carrier to excuse the non-delivery of goods, 73 
 
 22. In debt on a bounds bond, oyer prayed, and plea of condi- 
 
 tions performed, - - - 75 
 
 23. Plea of conditions performed in other cases, - 75 
 
 24. In covenant for hire and clothing, plea of covenants performed, 76 
 
 25. In debt on bond, plea of payment before action brought, of 
 
 principal and interest mentioned in condition, 76
 
 Xll TABLE OF CONTENTS. 
 
 26. In debt on bond, plea by surety that creditor was required to 
 
 sue, and failed to do so, - 76 
 
 27. Another plea under same statute, 
 
 28. Accord and satisfaction, 
 
 29. Former judgment upon same matter, 
 
 30. Plea that action was not commenced in time, to an ordinary 
 
 action, 
 
 31. Like plea to action on store account, 79 
 
 32. against executor or administrator on open 
 
 account, 79 
 
 33. 34. Like pleas to actions on specialties, 79 
 35, 36. on judgments in other states, 79 
 
 37. Concerning pleas by an executor or administrator in respect 
 
 to the assets, - 80 
 
 38. Plea of no assets, - 80 
 
 39. no assets prater, 81 
 
 40. debts of superior dignity to a greater amount than 
 
 the assets in hand, - 81 
 
 41. Plea that distribution has been made of estate, and refunding 
 
 bonds taken, - 83 
 
 42. by an heir, of riens per discent, 83 
 
 43. of tender, 83 
 
 44. Concurring replications, 84 
 
 45. General replication to plea of usury, - 85 
 
 46. that action was not commenced 
 
 in time, 85 
 
 47. To plea that action was not commenced in time, special re- 
 
 plication to one count, that account concerns the trade of 
 merchandize between merchant and merchant ; and general 
 replication as to two counts, - .- 85 
 
 48. To plea that action on store account was not commenced in 
 
 two years, special replication that party died before the 
 two years expired, and suit was brought in one year from 
 his death, 85 
 
 49. To plea that action was not commenced in five years, special 
 
 replication that plaintiff's intestate was non compos till his 
 death, and action was brought in five years after that time, 86 
 
 50. To plea that action was not commenced in time, special re- 
 
 plication that defendant, by removal out of the country, 
 obstructed the plaintiff from bringing the action, 86 
 
 51. To plea of riens per discent, special replication under the 
 
 statute, 87 
 
 52. Entry of office judgment set aside by pleading to issue, 87 
 
 53. Entry at the time of pleading non assumpsit, nil debet, or 
 
 non detinet, of affidavit as to signature to writing, 88 
 
 54. Entry of plea of non est factum, and issue thereon, 88 
 
 55. Declaration demurred to ore tenus, and joinder in demurrer, 88 
 
 56. Plea ore tenus that action was not commenced within five 
 
 years, general replication thereto, and issue, 89 
 
 57. Entry of plea in writing being filed alleging payment, and of 
 
 replication thereto, and issue, 89
 
 TABLE OF CONTENTS. Xlll 
 
 58. Entry of plea in writing alleging performance of covenants, 
 
 and of replication thereto, and issue, - - 89 
 
 59. Entry of replication being filed to special plea, - 89 
 
 60. to plea of payment in action by admi- 
 
 nistrator of a surviving partner, and 
 
 issue joined, - - 89 
 
 61. to plea of payment, where the condition 
 
 is not set out in the declaration, 
 and oyer is not prayed ; and joinder 
 of issue, 
 
 62. Entry of rejoinder being filed to special replication, 
 
 63. of issue made up on rejoinder, 
 
 64. of agreement to prevent special pleading, 
 
 65. of plea filed, demurrer thereto, and joinder, 
 
 66. of account of set-offs being filed with plea, 
 
 67. of plea of tender, and money brought into court, 
 
 68. Entry of special pleas being filed under act of April 16. 
 
 1831, - - 91 
 
 69. being tendered under said act, and 
 
 not received for want of proper af- 
 fidavit, - - 91 
 
 70. under said act being rejected because 
 
 not offered in time, - - 91 
 
 71. under said act being rejected as 
 
 naught, - - 92 
 
 72. Entry of demurrer to two pleas under said act, with joinder ; 
 
 and general replication to third plea, with issue, 92 
 
 73. Additional plea offered, and objected to, but allowed to be 
 
 filed, - - 92 
 
 74. rejected because delayed too long, - 92 
 
 75. rejected because the matter thereof is alrea- 
 
 dy in issue, - - - 93 
 
 76. pleas rejected, and opinion of court excepted to, 93 
 
 77. Improper plea set aside, 93 
 
 78. General demurrer filed to declaration, after other pleas, - 93 
 
 79. Leave granted to amend declaration, and cause remanded to 
 
 rules, - - - - 93 
 
 80. After argument of a special demurrer to a plea, leave grant- 
 
 ed to amend the same, - 94 
 
 81. of demurrer to a replication, leave granted 
 
 to amend the same, - - 94 
 
 82. Order remanding the cause to the rules, for the issues to be 
 
 made up, - - - - 94 
 
 83. of continuance at the costs of the party asking it, 94
 
 XIV TABLE OF CONTENTS. 
 
 CHAPTER XII. 
 
 JUDGMENTS NOT ON VERDICT. 
 
 1. Entry of judgment in the office, when it becomes final, - 95 
 
 2. Where goods have been attached, order accompanying judg- 
 
 ment, - 95 
 
 3. Entry of judgment in the office, when it becomes final 
 
 against one of several defendants, 95 
 
 4. Nonsuit in an ordinary case, 96 
 
 5. after jury are sworn, but before they retire, 96 
 
 6. Discontinuance by plaintiff, after defendant's appearance, - 96 
 
 7. Retraxit, 96 
 
 8. Discontinuance by consent, without damages or costs, 96 
 
 9. Principal and interest brought into court, and judgment en- 
 
 tered only for costs, 97 
 
 10. Debt being paid after suit brought, suit dismissed at defen- 
 
 dant's costs, - 97 
 
 11. Certificate of defendant in slander produced and recorded 
 
 by consent, and suit dismissed at defendant's costs, 97 
 
 12. Judgment upon confession in court, in debt on bond or bill 
 
 penal, 97 
 
 13. for debt and interest demanded, 
 
 or for debt, interest and char- 
 ges of protest demanded, - 98 
 
 14. in debt on single bill or promis- 
 
 sory note, where no interest is 
 demanded, 98 
 
 15. in assumpsit or covenant, 98 
 
 16. in debt on bond wijth collateral 
 
 condition, * 99 
 
 17. in detinue, 99 
 
 18. in action of tort, - 99 
 
 19. Confession of judgment, with stay of execution, - 100 
 
 20. Where the judgment confessed is by an executor or admi- 
 
 nistrator, - - - - 100 
 
 21. the suit is against several defendants, and the action 
 
 is confessed by one, - 100 
 
 22. Power of attorney for confessing judgment, - - 100 
 
 23. Entry of judgment confessed under a power of attorney, - 101 
 
 24. In action of debt against an heir, he acknowledges the ac- 
 
 tion and shews the lands which he has by descent, and 
 
 judgment is entered to be levied of those lands, - 101 
 
 25. Submission of a controversy to arbitrators, - - 102 
 
 26. Affidavit of the execution of the submission, - - 102 
 
 27. Rule of court upon submission, - 103 
 
 28. Return of award made in pursuance of such submission, - 103 
 
 29. Award entered up as the judgment of the court, - 103 
 
 27. Order referring to arbitrators a pending suit, - - 103 
 
 28. of reference set aside, - 103 
 
 29. Another order of reference in a pending suit, - 104
 
 TABLE OF CONTENTS. XV 
 
 30. Award returned, and judgment pursuant thereto, - 104 
 
 31. Judgment of a justice of the peace, for money, affirmed on 
 
 appeal, - - 104 
 
 32. upon appeal from decision of a justice as to the 
 
 title of property taken under an execution up- 
 on a warrant, - 105 
 
 33. Opinion upon demurrer to declaration containing several 
 
 counts, some of which are good, 106 
 
 34. to a count, containing several 
 
 breaches, one of which is well 
 assigned, - - 106 
 
 35. to a declaration or count, contain- 
 
 ing a demand of several mat- 
 ters, which are divisible, and 
 one of which is well claimed, 106 
 
 36. to a declaration, in which there is 
 
 a misjoinder of counts, - 106 
 
 37. Where defendant has demurred and pleaded, judgment over- 
 
 ruling his demurrer, - 106 
 
 38. without pleading, judgment 
 
 overruling his demurrer, 
 
 and allowing him to plead, 107 
 
 39. without pleading, and his 
 
 demurrer being overrul- 
 ed, final judgment is en- 
 tered, - 107 
 
 40. Final judgment in favour of a defendant upon his demurrer 
 
 to the declaration, - - 107 
 
 41. After opinion in favour of defendant upon his demurrer, 
 
 joinder withdrawn, and leave to amend, - - 108 
 
 42. Judgment for defendant upon demurrer to a particular 
 
 count, - 108 
 
 43. plaintiff upon demurrer to a plea in abate- 
 
 ment, - - 108 
 
 44. defendant upon demurrer to his plea in abate- 
 
 ment, ... 108 
 
 45. defendant upon demurrer to a plea in abate- 
 
 ment, pleaded by him to particular counts, 109 
 
 46. plaintiff upon demurrer to a replication to a 
 
 plea in abatement, - 109 
 
 47. Another, where the plea was bad, the court going up to the 
 
 first fault, - 109 
 
 48. Judgment for defendant upon demurrer to replication to plea 
 
 in abatement, .... 109 
 
 49. Upon demurrer to plea, final judgment in favour of defen- 
 
 dant because declaration was bad, - 110 
 
 50. to plea, final judgment for defendant, plea 
 
 being adjudged good, - 110 
 
 51. Demurrer to one of defendant's pleas sustained, - 110 
 
 52. sustained to defendant's only plea, - 110
 
 XVI TABLE OF CONTENTS. 
 
 53. In debt on judgment, demurrer to plea sustained, and judg- 
 
 ment not being for interest, writ of enquiry awarded, - 111 
 
 54. Where plea is only to one count, demurrer thereto over- 
 
 ruled, - 111 
 
 55. After court's opinion for defendant on demurrer to plea, 
 
 plaintiff allowed to withdraw his joinder and to reply, - 111 
 
 56. Upon demurrer to replication, final judgment in favour of 
 
 plaintiff because plea is bad, - - 111 
 
 57. Demurrer to replication overruled, and defendant allowed to 
 
 make up issue in fact, - 112 
 
 58. Upon demurrer to replication, final judgment in favour of 
 
 defendant, - 112 
 
 59. Plea being to one count, judgment for defendant upon his 
 
 demurrer to the replication thereto, 
 
 60. Judgment upon demurrer to rejoinder to replication, - 112 
 
 61. for defendant upon demurrer to rejoinder to repli- 
 
 cation, because replication is bad, - 113 
 
 62. Demurrers filed to certain counts in declaration; sixteen 
 
 pleas filed ; demurrers to some, and issues in fact upon 
 others, - - 113 
 
 63. Defendant in last case tendered two other pleas which were 
 
 refused; demurrers to certain counts in the declaration, 
 
 and to certain pleas, argued; and judgment thereupon, 113 
 
 64. Four pleas tendered, but first, third and fourth only received ; 
 
 replication to first and fourth, and issues ; replication al- 
 so to third, rejoinder thereto, and demurrer to rejoinder ; 
 judgment for plaintiff on demurrer ; and verdict for him 
 on other issues, - 114 
 
 65. After writ of enquiry awarded, damages assessed by the 
 
 court, and final judgment rendered, - - 115 
 
 CHAPTER XIII. 
 
 TRIAL BY JURY. 
 
 1. Order directing jurors to be summoned for a subsequent 
 
 day, - - 116 
 
 2. Sheriff being interested, order directing coroner to summon 
 
 jury, ; 116 
 
 3. and coroner being interested, order appointing a per- 
 
 son to summon a jury, - 116 
 
 4. Oath of jury to try an issue, - - 116 
 
 5. jury to enquire of damages, 116 
 
 6. witness on the voir dire, 116 
 
 7. witness in chief, - 117 
 
 8. Solemn affirmation by juror or witness, 117 
 
 9. Authentication entitling record of one state to be admitted 
 
 as evidence in another, 117 
 
 10. a power of attorney or deed from 
 
 another state to be received as 
 evidence in Virginia, 118
 
 TABLE OF CONTENTS. XVII 
 
 11. Protest of an inland bill of exchange, - 118 
 
 12. a foreign bill of exchange, - - 118 
 
 13. Notice of dishonour, - 118 
 
 14. Protest and affidavit under acts of Jan. 28. 1829 and Feb. 3. 
 
 1834, - 119 
 
 15. Bill of exceptions by defendant to opinion of circuit court, 
 
 admitting note as evidence, which he 
 had objected to on the ground of va- 
 riance, - 119 
 
 16. by plaintiff to opinion of county court, 
 
 admitting evidence offered by the 
 defendant, - - 119 
 
 17. by defendant to opinion refusing instruc- 
 
 tion asked for by him, - 120 
 
 18. Entry of the bill of exceptions, 120 
 
 19. Demurrer to evidence, - 121 
 
 20. Joinder by defendant in plaintiff's demurrer to evidence, 121 
 
 21. by plaintiff in defendant's demurrer to evidence, 121 
 
 22. Entry where there is a demurrer to evidence, - 121 
 
 23. Jury sworn, and having partly heard the evidence, adjourned, 122 
 
 24. having further heard the evidence, again adjourned, 122 
 
 25. having fully heard the evidence, sent out, and not agree- 
 
 ing, juror withdrawn and cause continued, - 122 
 
 26. having fully heard the evidence, sent out, and not agree- 
 
 ing, adjourned, ... 123 
 
 27. who had once retired, appeared after adjournment, and 
 
 after again retiring, returned a verdict, 123 
 
 28. Entry, where one of the jury, instead of taking an oath, 
 
 makes a solemn affirmation, - - 123 
 
 CHAPTER XIV. 
 
 VERDICT AND JUDGMENT. 
 
 1. Verdict on writ of enquiry, except in detinue, - 124 
 
 2. on writ of enquiry in detinue, - 125 
 
 3. upon issue or issues, where the finding is general and 
 
 not extended into form, - - 125 
 
 4. upon issue or issues, where the finding responds to 
 
 the same, or is extended by the clerk into form, 125 
 
 5. for plaintiff in action against officer for an escape, 
 
 to which not guilty is pleaded, - - 126 
 
 6. for plaintiff on plea of no assets, - - 126 
 
 7. of debts of superior dignity to 
 
 a greater amount than the as- 
 sets in hand, - 127 
 
 8. in action of debt against an heir, upon replication 
 
 under the statute to plea of riens per discent, 127 
 
 9. where one of the defendants is a devisee who had 
 
 aliened, and the replication is similar, 127 
 
 iii
 
 XV111 TABLE OF CONTENTS. 
 
 10. Verdict allowing interest and fixing period at which it shall 
 
 commence, - - 127 
 
 11. Where rate of interest is governed by the laws of another 
 
 state, 128 
 
 12. Verdict for plaintiff in debt upon a penal obligation, 128 
 
 13. assessing damages for detention, where principal and 
 
 interest exceed the penalty, 128 
 
 14. Verdict for plaintiff in debt upon a note or single bill, 128 
 
 15. on note, responding to plea of 
 
 nil debet, 128 
 
 16. on single bill, responding to 
 
 plea of payment, 129 
 
 17. on a bond with collateral condi- 
 
 tion, 129 
 
 18. Verdict for plaintiff in covenant, 129 
 
 19. in assumpsit, - 129 
 
 20. responding to plea of non assumpsit, 130 
 
 21. for defendant responding to plea of non assumpsit as 
 
 to part, and tender as to residue, - 130 
 
 22. Response in favour of defendant as to tender of part, and in 
 
 favour of plaintiff upon plea of non assumpsit, 130 
 
 23. Response in assumpsit to plea of infancy, 130 
 
 24. Verdict in action of assumpsit for sterling money, assessing 
 
 damages in current money, - 131 
 
 25. for plaintiff in detinue, responding to plea of non 
 
 detinet, - - 131 
 
 26. for plaintiff in action for a tort, - 131 
 
 27. where there is a demurrer to evidence, assessing da- 
 
 mages conditionally, - 131 
 
 28. where evidence is demurred to in detinue, assessing 
 
 price and damages conditionally, 132 
 
 29. Special verdict, 
 
 30. Entry of special verdict, - 132 
 
 31. Special verdict set aside, and venire de novo awarded, 133 
 
 32. Verdict for plaintiff, subject to opinion on a point reserved, 133 
 
 33. reserving point set aside, and venire de novo awarded, 133 
 
 34. Case agreed in lieu of a special verdict, 133 
 
 35. set aside, - - 133 
 
 36. Motion for new trial, and part of damages being released, 
 
 motion overruled, - 133 
 
 37. granted, - 134 
 
 38. Where some defendants are convicted and others acquitted, 
 
 new trial granted the convicted defendants, 134 
 
 39. Where damages are assessed against one defendant who 
 
 made default, and the others having pleaded are acquitted, 
 
 new trial granted as to one of the acquitted defendants, 134 
 
 40. Motion for new trial being overruled, opinion of court ex- 
 
 cepted to, 135 
 
 41. granted, opinion of court excep- 
 
 ted to, 135
 
 TABLE OF CONTENTS. XIX 
 
 42. Judgment arrested because verdict was rendered as upon an 
 
 issue, where no plea had been filed, 135 
 
 43. Motion in arrest of judgment overruled, and judgment for 
 
 plaintiff, 136 
 
 44. Judgment for plaintiff, notwithstanding failure to respond to 
 
 one of the issues ; it being immaterial, - 136 
 
 45. Judgment for plaintiff, notwithstanding verdict for defen- 
 
 dant on one of the issues; it being immaterial, 136 
 
 46. Verdict and judgment under act of April 16. 1831, where 
 
 defendant is relieved against 
 
 his single bill in toto, 136 
 
 47. same act, where defendant is 
 
 relieved against his obliga- 
 tion in part, - 137 
 
 48. same act, where the jury as- 
 
 sess damages less than 
 plaintiff's demand, 137 
 
 49. same act, where the jury 
 
 assess damages exceeding 
 plaintiff's demand, 137 
 
 50. Verdict finding defendant guilty of dealing with a slave, and 
 
 judgment thereupon, 138 
 
 51. and judgment for plaintiff in debt qui tarn, on plea 
 
 of nil debet, 138 
 
 52. in debt qui tarn, for plaintiff as to 
 
 part, and for defendant as to re- 
 sidue, - 138 
 
 53. for overseers of poor, in debt on a 
 
 penal law, - 139 
 
 54. Judgment for plaintiff in debt on simple contract or single bill, 139 
 
 55. on a protested foreign bill of 
 
 exchange, - 140 
 
 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 ex- 
 pressed in such bill, ... 140 
 
 57. Judgment for plaintiff in debt on penal obligation for pay- 
 
 ment of money, 140 
 
 58. on penal obligation for ster- 
 
 ling money, 141 
 
 59. in debt on bond with collate- 
 
 ral condition, - 141 
 
 60. in debt on collateral bond, 
 
 which remains as a security 
 
 for future damages, 141 
 
 61. in debt on collateral bond, 
 
 which remains as a security 
 
 for future instalments, 142 
 
 62. Judgment in debt on collateral bond, where the jury find 
 
 under 6.66 cents, 142
 
 XX TABLE OF CONTENTS. 
 
 63. Judgment for plaintiff in detinue, 
 
 64. in covenant or assumpsit, 
 
 65. in an action for a tort, 143 
 
 66. Judgment in action of assault and battery, or slander, where 
 
 less than $ 16.66 cents is found in a circuit 
 court, or less than $ 6.66 cents in a county or 
 corporation court, 143 
 
 67. where the jury find under $ 6.66 cents in trespass, 
 
 case, or covenant, - 
 
 68. de bonis in action against personal representative, 144 
 
 69. de bonis in action against personal representative, 
 
 with a special agreement to prevent his being 
 charged beyond the assets, - 144 
 
 70. in action against personal representative, to be le- 
 
 vied for part de bonis, and for the residue when 
 assets, 144 
 
 71. in action against personal representative, to be le- 
 
 vied for the whole when assets, - 145 
 
 72. for costs of personal representative, where the 
 
 plaintiff has judgment against him when as- 
 sets, - - - 145 
 
 73. against a personal representative in detinue, - 145 
 
 74. In action on contract against two defendants, one of whom 
 
 is discharged, judgment against the other, 145 
 
 75. Judgment in action of trespass, assault or false imprisonment 
 
 against several, one of whom is found guilty 
 [and another not, 146 
 
 76 in circuit court for plaintiff, where verdict is for 
 
 less than $ 50 in consequence of a set-off, 146 
 
 77. in circuit court for defendant in assumpsit, where 
 
 verdict is for less than $ 50, - 146 
 
 78. in circuit court for plaintiff upon verdict for less 
 
 than $ 50 in assumpsit on special contract, 
 where damages are in their nature uncertain, 147 
 
 79. in circuit court for defendant in debt on single 
 
 bill or promissory note, where verdict is for less 
 
 than $ 50 in consequence of payments, 147 
 
 80. Verdict shewing that a justice of the peace had cognizance, 
 
 plaintiff non-suited, - - 148 
 
 81. Judgment upon verdict found for defendant on a plea in 
 
 abatement, 148 
 
 82. found for defendant on a plea in bar, 148 
 
 83. Judgment for defendant's costs, where plaintiff is an execu- 
 
 tor or administrator, 148 
 
 84. against a relator after verdict for defendant, 149 
 
 85. upon demurrer to evidence, - 149 
 
 86. upon special verdict, points reserved, or case 
 
 agreed, 150 
 
 87. After judgment for plaintiff, satisfaction acknowledged as to 
 
 part, 150
 
 TABLE OF CONTENTS. XXI 
 
 88. The day after the judgment, parcel of the damages released, 150 
 
 89. After judgment for plaintiff, agreement by him to allow dis- 
 
 counts, - - -; - 150 
 
 90. Satisfaction of judgment acknowledged at a subsequent term, 150 
 
 CHAPTER XV. 
 
 DISTRESS AND REPLEVIN, 
 
 1. Affidavit to authorize a warrant of distress, - 151 
 
 2. Warrant of distress, - - 151 
 
 3. Bond given by tenant upon suing out writ of replevin, - 152 
 
 4. Writ of replevin by the tenant, - 152 
 
 5. where the property distrained is claimed by 
 
 any other than the tenant, - 153 
 
 6. Certificate of justice that he swore two freeholders to value 
 
 the property distrained, ... 153 
 
 7. Appraisement of the property distrained, - 153 
 
 8. Bond given by claimant of distrained property upon suing 
 
 out writ of replevin, - 154 
 
 9. Sheriff's return upon writ sued out by the tenant, 154 
 
 10. sued out by claimant of distrain- 
 
 ed property, - 154 
 
 11. Declaration in replevin, - 155 
 
 12. Plea alleging property to be in a third person, with a sug- 
 
 gestion in the nature of an avowry, - 155 
 
 13. Replication to last plea, and similiter, - - 156 
 
 14. Entry of issue made up in replevin in a county or corpora- 
 
 tion court, - - - 156 
 
 15. Another entry of issue made up in replevin, where the de- 
 
 fendant avowed, - 157 
 
 16. Avowry of distress, - 157 
 
 17. Plea of non tenuit, - - 158 
 
 18. nothing in arrear, - - 158 
 
 19. Appearance for defendant in circuit court, and rule to de- 
 
 clare, - - 158 
 
 20. Plaintiff in circuit court nonsuited at the rules for want of 
 
 declaration, - 158 
 
 21. Entry of declaration and conditional judgment at the rules 
 
 in a circuit court, - 159 
 
 22. Conditional judgment confirmed at rules in a circuit court, 159 
 
 23. Declaration filed, appearance at rules in circuit court, and 
 
 rule to plead, - 159 
 
 24. Plea to declaration at rules in circuit court, and rule to re- 
 
 ply, 159 
 
 25. Plaintiff nonsuited at rules in circuit court, for want of re- 
 
 plication, - 159 
 
 26. Avowry filed at rules in circuit court, and rule to plead, - 160 
 
 27. Plaintiff nonsuited at the rules in circuit court, for want of 
 
 plea to avowry, - 160
 
 XXH TABLE OF CONTENTS. 
 
 28. Plea filed to avowry at the rules in circuit court, and rule to 
 
 reply, 160 
 
 29. Avowant failing to reply, judgment entered for plaintiff in 
 
 circuit court at the rules, - 160 
 
 30. Verdict and judgment for plaintiff in replevin, 160 
 
 31. In replevin by the tenant, verdict for the avowant upon an 
 
 issue, and judgment thereupon, - - 161 
 
 32. Tenant being nonsuit before issue joined, writ of enquiry 
 
 executed, and judgment thereupon, - 161 
 
 33. In replevin by a claimant of the property, verdict for defen- 
 
 dant upon an issue, and judgment thereupon, 161 
 
 34. Claimant of property being nonsuit before issue joined, writ 
 
 of enquiry executed, and judgment thereupon, 162 
 
 35. Judgment for defendant against claimant, where the value of 
 
 the property is more than the rent, 162 
 
 CHAPTER XVI. 
 
 SUITS FOR FREEDOM. 
 
 1. Warrant issued by a justice upon complaint that a person is 
 
 illegally detained as a slave, - - 163 
 
 2. Bond required by a justice, upon the appearance of the 
 
 possessor of one alleged to be illegally detained as a 
 slave, ... 163 
 
 3. Warrant of justice committing complainant to custody, - 164 
 
 4. Petition to the court, by person who complains that he is il- 
 
 legally detained as a slave, - - 164 
 
 5. Order assigning counsel to the petitioner, - 165 
 
 6. awarding process to answer the complaint, 165 
 
 7. of court denying its interference, and directing no 
 
 process to be issued, - - 165 
 
 8. Bond given pursuant to order of court, to have complainant 
 
 forthcoming to answer its judgment, - 165 
 
 9. Process to answer the complaint, - 166 
 
 10. Declaration, 166 
 
 11. Conditional judgment, - - 166 
 
 12. judgment confirmed, and writ of enquiry award- 
 
 ed, - - - 166 
 
 13. Writ of enquiry executed, and judgment for plaintiff, - 167 
 
 14. Issue joined, and office judgment set aside, - 167 
 
 15. Verdict for plaintiff on the issue joined, and judgment there- 
 
 upon, 167 
 
 16. defendant on the issue joined, and judgment 
 
 thereupon, - - 167
 
 TABLE OF CONTENTS. XXlll 
 
 CHAPTER XVII. 
 
 CASES OP CAVEAT. 
 
 1. Summons issued on receiving a certified copy of a caveat, 168 
 
 2. not being executed, caveat dismissed with costs, 168 
 
 3. New summons awarded, - 168 
 
 4. Oath of jury, - - 169 
 
 5. Facts found, - - - . - 169 
 
 6. Upon facts found, judgment for defendant, - - 169 
 
 7. plaintiff, - - 169 
 
 8. defendant, without preju- 
 
 dice, - - 169 
 
 9. On a caveat against a grant upon a re-survey, judgment for 
 
 plaintiff upon the facts 
 found, - - 170 
 
 a re-survey, judgment for 
 defendant upon the 
 facts found, 170 
 
 CHAPTER XVHI. 
 
 ACTION OF EJECTMENT. 
 
 1. Notice to tenant to quit, - 171 
 
 2. Declaration in ejectment, - 171 
 
 3. Notice from the fictitious to the real defendant to appear at 
 
 court, - 172 
 
 4. to appear at 
 
 rules, - 173 
 
 5. Affidavit of service on the real defendant, - - 173 
 
 6. Statement shewing the profits and damages which the plain- 
 
 tiff means to demand, ... 173 
 
 7. Conditional order, ... 173 
 
 8. Judgment by default, ... 174 
 
 9. Defendant made and judgment confessed, - - 174 
 
 10. Person makes himself defendant, pleads general issue, and 
 
 enters into the common rule, - - 174 
 
 11. Where there are several tenants, who sever in pleading, and 
 
 each enters into the consent rule for himself, - 175 
 
 12. Order of survey, . - _ 175 
 
 13. Upon death of lessor, security for costs required, - 175 
 
 14. defendant, scire facias awarded against his 
 
 heirs or devisees, - - 176 
 
 15. Writ of scire facias against heirs or devisees, - 176 
 
 16. Upon return of scire facias executed, heirs or devisees made 
 
 parties to the action, ... 176 
 
 17. Term of demise enlarged, ... 176 
 
 18. A new demise added, - 177 
 
 19. Notice to plaintiff, who claims under a mortgage which is 
 
 satisfied, .... 177
 
 XXIV TABLE OF CONTENTS. 
 
 20. Notice to plaintiff who claims under a trust which is sa- 
 
 tisfied, 177 
 
 21. Notice by defendant, who is a vendee, or the heir of a ven- 
 
 dee, entitled to specific execution, 178 
 
 22. Special verdict returned, 178 
 
 23. Judgment, under the statute, for defendant entitled to a con- 
 
 veyance of the legal title from the vendor or his 
 heirs, 178 
 
 24. against vendee, or heirs of vendee, who made de- 
 
 fence under the statute, 179 
 
 25. General verdict for plaintiff, and judgment thereon, 179 
 
 26. Verdict for plaintiff, assessing damages for mesne profits ; 
 
 and judgment thereon, 179 
 
 27. less land than the quantity stated in the declara- 
 
 tion, and judgment thereupon, 180 
 
 28. General verdict for defendant, and judgment thereon, - 180 
 
 29. After verdict for plaintiff, term of demise enlarged, and then 
 
 judgment entered, - 180 
 
 30. Where land is recovered west of the Alleghany, and defen- 
 
 dant seeks to get the value of his improvements, judg- 
 ment suspended till allegations can be inquired into, - 181 
 
 31. Jury sworn to ascertain the additional value given to the land 
 
 by the improvements; and verdict found, 181 
 
 32. Pending injunction to judgment, term of demise having ex- 
 
 pired, rule to enlarge the same, 181 
 
 33. Rule to enlarge term which had expired pending injunction, 
 
 made absolute, and writ of possession awarded, 182 
 
 CHAPTER XIX. 
 
 WRITS OF RIGHT. 
 
 1. Writ of prcecipe quod reddat, - - 183 
 
 2. Count, 183 
 
 3. Conditional order, - 183 
 
 4. Judgment for want of appearance, 183 
 
 5. Where the prcecipe is returned not found, if in a circuit 
 
 court, - 184 
 
 6. Writ of exigi facias, and return thereon, - 184 
 
 7. Judgment for demandant upon return of exigi facias, - 184 
 
 8. Where the prcecipe is returned not found, if in a county or 
 
 corporation court, 184 
 
 9. Endorsement by the clerk on each new prcecipe, 185 
 
 10. Return upon each new prcecipe, 185 
 
 11. Another new prcecipe awarded, 185 
 
 12. Judgment for demandant after five prcecipes, 185 
 
 13. Plea of non-tenure, - 185 
 
 14. joint tenancy, - 186 
 
 15. several tenancy, - - 186 
 
 16. demandant's death before suit brought, - 186
 
 TABLE OF CONTENTS. XXV 
 
 17. Judgment where plea of non-tenure is sustained as to parcel 
 
 of the land demanded, - 186 
 
 18. joint tenancy is sustained, - 186 
 
 19. joint tenancy is disproved, - 186 
 
 20. Demurrer to the count, - - 187 
 
 21. Plea in bar, - - 187 
 
 22. Replication to plea in bar, ... 187 
 
 23. Entry of the mise being joined, - - 187 
 
 24. Defence by other than the tenant, - - 187 
 
 25. Rule made upon ascertaining that demandant was dead when 
 
 the suit was brought, ... 187 
 
 26. Scire facias awarded the heirs or devisees of demandant, 188 
 
 27. against the tenant's heirs or devisees, 188 
 
 28. Writ of scire facias in favour of demandant's heirs or devisees, 188 
 
 29. against tenant's heirs or devisees, 188 
 
 30. Upon return of scire facias issued in favour of heirs or de- 
 
 visees of demandant, they 
 
 made parties to the action, 189 
 
 31. against heirs or devisees of te- 
 
 nant, they made parties to the 
 
 action, - - 189 
 
 32. Charge to the recognitors of the assize, - - 189 
 
 33. General verdict for the tenant, and judgment thereupon, 189 
 
 34. demandant, and judgment thereupon, 189 
 
 35. demandant for part, and for tenant for 
 
 residue ; and judgment thereupon, 190 
 
 CHAPTER XX. 
 
 DOWER. 
 
 1. Order at the instance of the heirs, directing widow's dower to 
 
 be assigned, - - - 191 
 
 2. Assignment of widow's dower returned, and same established 
 
 by consent of her and the heirs, - 191 
 
 3. Writ de quarentina habenda, - 191 
 
 4. of unde nihilhabet, ... 191 
 
 5. Count, 192 
 
 6. Plea that husband was not seized of an estate of inheritance ; 
 
 and similiter thereto, - - 192 
 
 7. of jointure in lieu of dower, - - 192 
 
 8. Verdict for demandant where the husband died seized, and 
 
 judgment thereupon, 192 
 
 9. where the husband has aliened, and 
 
 judgment thereupon, - 192 
 
 10. Verdict for tenant, and judgment thereupon, - 192 
 iv
 
 XXVI TABLE OF CONTENTS. 
 
 CHAPTER XXI. 
 
 UNLAWFUL ENTRY OR DETAINER. 
 
 1. Complaint of unlawful entry or detainer, - 195 
 
 2. Affidavit that complaint is true, 195 
 
 3. Warrant to officer, 195 
 
 4. Officer's return upon warrant, - - 195 
 
 5. Court formed, jury impannelled, evidence heard, and verdict 
 
 returned, 196 
 
 6. Judgment for plaintiff, - - 196 
 
 7. defendant, 196 
 
 8. New trial granted, 197 
 
 9. at regular term, 197 
 
 10. Court adjourned in consequence of jury's not agreeing, 197 
 
 11. Jury failing to agree, juror withdrawn, and cause continued 
 
 till the next term, 197 
 
 12. After jury had failed to agree, new jury impannelled at re- 
 
 gular court, - 197 
 
 13. No court having been formed on the day appointed, jury im- 
 
 pannelled at the next court, 198 
 
 14. Bills of exception admitted to opinions of the court, 198 
 
 15. Certificate of counsel to procure suspension of the execution, 198 
 
 16. Order directing execution of the judgment to be suspended, 198 
 
 17. Bond given at the time of procuring a suspension of the ex- 
 
 ecution, - - 199 
 
 CHAPTER XXII. 
 
 WASTE. 
 
 1. Summons in action of waste by the remainderman against 
 
 tenant for life, - 200 
 
 2. Declaration, 200 
 
 3. Attachment awarded, 201 
 
 4. Process of attachment, 201 
 
 5. Distress awarded, 201 
 
 6. Process of distress, - 202 
 
 7. Defendant not appearing upon the distress, judgment by de- 
 
 fault, and process awarded to have the waste enquired of, 202 
 
 8. Process to have the waste enquired of, - 202 
 
 9. Writ of enquiry returned, judgment by default set aside, and 
 
 issue joined, - 203 
 
 10. Verdict for plaintiff as to part, and judgment thereupon, 203 
 
 CHAPTER XXIII. 
 
 PARTITION. 
 
 1. Summons on partition, 205 
 
 2. Judgment confessed, 205 
 
 3. Writ de partitione facienda, - 205 
 
 4. Return by sheriff, and partition established, - 206
 
 TABLE OF CONTENTS. XXVll 
 
 CHAPTER XXIV. 
 
 EXECUTIONS. 
 
 1. Fieri facias in debt, for debt and costs, - - 207 
 
 2. in debt, for debt, interest and costs, - 207 
 
 3. in debt qui tarn, - 208 
 
 4. in case upon a promise, for damages and costs, 208 
 
 5. in case upon a promise, for damages, interest 
 
 and costs, ... 208 
 
 6. in covenant, ... 208 
 in trespass, - 208 
 
 8. in case for a tort, - - 208 
 
 9. for plaintiff in replevin, - 208 
 
 10. for defendant in replevin, against the tenant, 209 
 
 11. for defendant in replevin, against plaintiff who 
 
 was not the tenant, - - 209 
 
 12. for plaintiff in ejectment, for his damages and 
 
 costs, - - 209 
 
 13. for demandant in a writ of right, for his damages 
 
 and costs, ... 209 
 
 14. for demandant in dower, for her damages and 
 
 costs, - - - 210 
 
 15. for damages recovered in action of waste, 210 
 
 16. for costs recovered by plaintiff on complaint for 
 
 unlawful entry or detainer, - 210 
 
 17. for defendant, for costs, or for costs and damages, 210 
 
 18. after dissolution of an injunction, 210 
 
 19. upon a judgment of a county court, affirming 
 
 a judgment of a justice of the peace, 211 
 
 20. upon a judgment against an executor or admi- 
 
 nistrator, to be levied de bonis, 211 
 
 21. returnable to rules, 212 
 
 22. Endorsement by clerk upon execution issued on a judgment 
 
 for a debt contracted before the first of Au- 
 gust 1837, - - 212 
 
 23. by sheriff upon Ji. fa. when it is delivered to 
 
 him to be executed, - - 212 
 
 24. Affidavit of a person who wishes the benefit of the act ex- 
 
 empting a portion of the property of poor debtors, - 212 
 
 25. Return upon fi. fa. prescribed by statute, - 212 
 
 26. of Ji. fa. which is levied upon goods on leased pre- 
 
 mises whereon rent is reserved, but not due, 213 
 
 27. of Ji. fa which is levied on goods on leased pre- 
 
 mises whereon rent is in arrear, - - 213 
 
 28. of the levy of a Ji. fa. where rent is claimed, and 
 
 the validity of the claim is doubted, - 214 
 
 29. Indemnifying bond, ... 214 
 
 30. Return where plaintiff refuses to give indemnifying bond, 
 
 and property is restored, - - 215 
 
 31. where indemnifying bond is given, - - 215
 
 XXV111 TABLE OF CONTENTS. 
 
 32. Bond for the forthcoming of property levied on, 215 
 
 33. Return of Ji. fa. levied, where a forthcoming bond is taken, 
 
 and the property, or some part of it, is not de- 
 livered, 216 
 
 34. of Ji. fa. levied on slaves, mules, work-oxen and horses, 216 
 
 35. Writing of debtor authorizing officer to dispense with the 
 
 provisions of the act of March 3. 1821, - 217 
 
 36. Return of officer, when act of March 3. 1621, is dispensed 
 
 with, 
 
 37. where money is received without any levy, 218 
 
 38. where money is received after the return day, under 
 
 an execution levied previously, - 218 
 
 39. where there is an execution against the goods and 
 
 chattels of the person to whom the money in the 
 officer's hands is payable, 218 
 
 40. Order directing money made under execution in favour of a 
 
 person, to be paid in satisfaction of an execution against 
 
 him, 218 
 
 41. Return where a surplus of the proceeds of goods sold under 
 
 execution remains after satisfying it, 219 
 
 42. where property, of which the sale is indemnified, sells 
 
 for more than enough to satisfy the execution, 219 
 
 43. where the goods remain in the sheriff's hands until 
 
 an injunction is obtained to the judgment, 219 
 
 44. where money is received by sheriff, but an injunction 
 
 is obtained to the execution before payment to the 
 plaintiff, 
 
 45. where goods remain in sheriff's hands unsold, 220 
 
 46. Writ of venditioni exponas, - - 220 
 
 47. Venditioni exponas to a late sheriff, - 220 
 
 48. Rule against a late sheriff to shew cause why a distringas 
 
 should not issue to compel him to sell, 220 
 
 49. made absolute, and distringas awarded, 221 
 
 50. Writ of distringas against a late sheriff, to compel him to sell, 221 
 
 51. Venditioni exponas for the sale of property taken by an of- 
 
 ficer who died before selling it, - 221 
 
 52. Writ of elegit, 222 
 
 53. Inquisition under elegit, - - 222 
 
 54. Capias ad satisfaciendum returnable to court, 222 
 
 55. returnable to rules, 223 
 
 56. Ca. sa. after return of no effects on an execution issued by a 
 
 justice of the peace, - 223 
 
 57. Endorsement by creditor where execution is delivered to the 
 
 sheriff of any other county than that in which creditor re- 
 sides, - - 223 
 
 58. Jailor's notice to creditor, or his agent, of the debtor's im- 
 
 prisonment, - 223 
 
 59. Return of ca. sa. on which defendant is arrested and com- 
 
 mitted to jail, - 224 
 
 60. Affidavit by sheriff that person in execution has escaped, 224
 
 TABLE OF CONTENTS. XXIX 
 
 61. Warrant to retake person in execution who has escaped from 
 
 prison, . - - - - 224 
 
 62. Note given by jailor to the person who delivers to him the 
 
 prisoner taken under the escape warrant, - 225 
 
 63. Return of the execution of the warrant to the court of the 
 
 county from which the prisoner escaped, - 225 
 
 64. Bond for the forthcoming of property tendered in discharge 
 
 of the body, - 225 
 
 65. Return of ca. sa. where debtor tenders property in discharge 
 
 of his body, - 226 
 
 66. Return of ca. sa. where debtor discharges his body by pay- 
 
 ing the money, - - 226 
 
 67. Order for marking and laying out the bounds and rules of 
 
 the prison, - 226 
 
 68. Bounds and rules of the prison adopted, - - 226 
 
 69. Prison bounds bond, - 227 
 
 70. Return where prisoner is admitted to the bounds, - 227 
 
 71. Warrant to retake prisoner who has escaped from the bounds, 227 
 
 72. Notice to creditor, of escape from the bounds, - 228 
 
 73. Sheriff's assignment to creditor, of bounds bond, - 228 
 
 74. Warrant to take person who failed to render his body to pri- 
 
 son according to condition of bounds bond, 228 
 
 75. Return of ca. sa. where debtor is discharged out of custody 
 
 upon obtaining an injunction, - - 228 
 
 76. Warrant of justice directing jailor to bring insolvent debtor 
 
 before him or some other justice, - - 229 
 
 77. Notice that person intends to take the oath of an insolvent 
 
 debtor, - - - 229 
 
 78. Schedule of insolvent, - - - 229 
 
 79. List of executions, ... 230 
 
 80. Oath of insolvent debtor, 230 
 
 81. Conveyance of the real estate mentioned in the schedule, 230 
 
 82. Warrant for insolvent's discharge, - - 231 
 
 83. Return of ca. sa. where debtor is discharged by taking oath 
 
 of insolvency, - 231 
 
 84. Entry where oath of insolvency is taken in court, - 232 
 
 85. Summons against a person stated t<T be indebted to, or to 
 
 have estate of, insolvent, - 232 
 
 86. Judgment by default against a person stated to be indebted 
 
 to insolvent, ... 233 
 
 87. New summons awarded against a person stated by an insol- 
 
 vent to be his debtor, - 233 
 
 88. Defendant appeared according to summons in last case, and 
 
 summons dismissed, ... 233 
 
 89. Ca. sa. directed to issue against a person who has been dis- 
 
 charged as an insolvent debtor, - - 234 
 
 90. Fi. fa. awarded against the goods acquired by a person after 
 
 taking the oath of insolvency, - - 234 
 
 91. Return of ca. sa. where debtor is discharged for non-pay- 
 
 ment of jail fees, - - 234
 
 XXX TABLE OF CONTENTS. 
 
 92. Return of ca. sa. where debtor was discharged by tender- 
 
 ing property which proved to be under incumbrance, - 235 
 
 93. Endorsement on new execution, to shew that property had 
 
 been tendered under a ca. sa. which was incumbered, 235 
 
 94. Debtor dying iu execution, new execution against his goods 
 
 and chattels, - 235 
 
 95. new execution against his lands 
 
 and tenements, 236 
 
 96. Extendi facias against an heir, after judgment on bond of 
 
 ancestor, 237 
 
 97. Distringas against a corporation, 238 
 
 98. in detinue, - 238 
 
 99. Fi. fa. in detinue, for damages and costs, in the same writ 
 
 with the distringas, 239 
 
 100. Ca. sa. in detinue, for damages and costs, along with the 
 
 distringas, - 239 
 
 101. Distringas directed to be superseded as to specific thing, 
 
 and executed for the alternative value, - 239 
 
 102. Alternative value, not being rendered to plaintiff, fieri fa- 
 
 cias, elegit or ca. sa. allowed to issue, 239 
 
 103. Writ of possession after judgment for plaintiff in eject- 
 
 ment, 240 
 
 104. Writ of seisin after judgment for demandant in a writ of 
 
 right, 240 
 
 105. for demandant in dower, 
 
 where the husband died 
 seized, - 241 
 
 106. for demandant in dower, 
 
 where the husband had 
 aliened, - 241 
 
 107. Writ of possession after judgment for plaintiff upon com- 
 
 plaint of unlawful entry or detainer, 242 
 
 108. seisin after judgment for plaintiff in action of 
 
 waste, 242 
 
 109. Execution upon judgment against principal and sureties, 
 
 quashed on motion of sureties, and exceptions filed by 
 plaintiff, 242 
 
 110. Another case of an execution upon judgment against prin- 
 
 cipal and surety, quashed on surety's motion, 243 
 
 111. Order upon defendant's motion to quash execution issued 
 
 by a justice of the peace, - 244 
 
 112. Order on plaintiff's motion, quashing execution and forth- 
 
 coming bond taken under it, and allowing him to sue out 
 new execution on the original judgment, 
 
 113. New execution directed to issue, - 244
 
 TABLE OF CONTENTS. XXXI 
 
 CHAPTER XXV. 
 
 SCIRE FACIAS AFTER JUDGMENT OR UPON RECOGNIZANCE. 
 
 1. Scire facias where execution has not issued within the 
 
 year, ... 245 
 
 2. upon death of plaintiff, for his executor or ad- 
 
 ministrator to have execution, - 245 
 
 3. upon death of defendant, to have execution 
 
 against his executor or administrator, - 246 
 
 4. upon the death of a party whose estate is 
 
 committed to a sheriff, - - 246 
 
 5. Upon a judgment in detinue against a decedent, scire facias 
 
 against his executor or administrator, 247 
 
 6. in ejectment, scire facias against defen- 
 
 dant's heir, - 247 
 
 7. for money, scire facias against heirs and 
 
 terretenants, to have execution of the 
 lands, - - 248 
 
 8. Scire facias by administrator de bonis non, - 248 
 
 9. against administrator de bonis non, - 249 
 
 1 0. where feme plaintiff marries after judgment, 249 
 
 11. where feme defendant marries after judgment, 250 
 
 12. where feme plaintiff marries after judgment, 
 
 and is survived by her husband, who dies be- 
 fore execution, - - 250 
 
 13. where, after judgment for husband and wife, 
 
 husband is survived by his wife, who dies be- 
 fore execution, - - 250 
 
 14. where, after judgment, plaintiff dies, and his 
 
 administratrix marries, - - 250 
 
 15. On a judgment providing for further breaches, scire facias 
 
 setting forth such breaches, - - 250 
 
 16. Scire facias on a judgment against a personal representative, 
 
 to be levied quando acciderint, - - 251 
 
 17. Where the sale of property is indemnified and the value is 
 
 recovered from the execution creditor, scire facias to 
 
 have new execution, - 252 
 
 18. Where tenant by elegit is evicted of lands held by extent, 
 
 scire facias to have new execution, - - 253 
 
 19. Scire facias to have execution against property acquired by 
 
 defendant after taking oath of insolvency, 253 
 
 20. to have execution against the property of a 
 
 debtor discharged on account of the credi- 
 tor's failure to pay the jail fees, - 254 
 
 21. upon recognizance of a surety for costs, - 254 
 
 22. upon recognizance of special bail taken by a 
 
 sheriff, - - - 255 
 
 23. upon recognizance of special bail taken by a 
 
 judge or justice of the peace, - 256
 
 XXXH TABLE OF CONTENTS. 
 
 24. Scire facias upon recognizance of special bail given in 
 
 court, 257 
 
 25. against special bail in detinue, upon recogni- 
 
 zance taken by a sheriff, 257 
 
 26. against executor or administrator of special 
 
 bail in action for debt or damages, 258 
 
 27. against an officer who discharged defendant 
 
 from custody without taking bail, or without 
 returning recognizance, - 259 
 
 28. Where bail taken by an officer is adjudged insufficient, scire 
 
 facias against the bail and the officer as joint cognizors, 259 
 
 29. Scire facias on recognizance to keep the peace, 260 
 
 30. on recognizance to appear and answer a fe- 
 
 lony, 261 
 
 31. on recognizance of witnesses to appear and 
 
 give evidence, - 261 
 
 32. Return of executed upon scire facias against special bail re- 
 
 turnable in term time, - 262 
 
 33. nihil upon scire facias, 262 
 
 34. Other returns upon scire facias, 262 
 
 35. Alias scire facias awarded, - - 262 
 
 36. Scire facias for renewal of a judgment being returned exe- 
 
 cuted, execution awarded, - 262 
 
 37. Where the scire facias is to renew a judgment in eject- 
 
 ment, - 262 
 
 38. Where judgment was against decedent and execution is 
 
 awarded against executor or administrator, 263 
 
 39. Upon scire facias to revive judgment in detinue against de- 
 
 cedent, award of execution against executor or adminis- 
 trator, 263 
 
 40. Award upon scire facias assigning new breaches, 263 
 
 41. of execution, at the suit of the governor of the com- 
 
 monwealth, upon a recognizance, 263 
 
 42. of execution on a scire facias against special bail in 
 
 debt, - 264 
 
 43. of execution on a scire facias against special bail in 
 
 detinue, - - 264 
 
 44. Return of scire facias against special bail amended, 264 
 
 45. Where, upon recognizance, scire facias issued against two, 
 
 and both died, process to revive awarded against repre- 
 sentative of last survivor, - - 265 
 
 46. Entry of demurrer to scire facias and joinder therein, - 265 
 
 47. plea of no such record, and general replication 
 
 thereto, - - 265 
 
 48. Oyer of record ; demurrer to scire facias ; and joinder, 266 
 
 49. Plea that execution had not issued, and scire facias was not 
 
 sued out within ten years, - 266 
 
 50. Where execution had issued but no return was made, plea 
 
 that ten years had elapsed, - 266 
 
 51. Another plea under same statute, more briefly drawn, - 267
 
 TABLE OF CONTENTS. XXXlll 
 
 52. Plea under same statute by an executor or administrator, to 
 
 a scire facias issued to revive a judgment obtained against 
 decedent, - - 267 
 
 53. Plea by executor or administrator that scire facias was issued 
 
 against him after the expiration of five years from his qua- 
 lification, .... 267 
 
 54. Entry of plea of payment, with general replication and issue; 
 
 and office judgment set aside, - - 267 
 
 55. Entry of judgment in the office, when it becomes final, - 268 
 
 56. On a scire facias assigning new breaches, damages assessed, 
 
 and judgment for plaintiff, - 268 
 
 57. Special bail surrendering principal after scire facias, judg- 
 
 ment against him for the costs, - - 268 
 
 58. Entry of judgment where there is a confession, - 269 
 
 59. Judgment on plea of no such record, where that is the only 
 
 plea, 269 
 
 60. for plaintiff where, besides no such record, there 
 
 is a second plea, ... 269 
 
 61. for defendant where issue is found for him, - 269 
 
 62. Fieri facias after award of execution upon scire facias re- 
 
 newing judgment for debt or damages, - 269 
 
 63. after award of execution against executor or 
 
 administrator upon scire facias reviving judg- 
 ment rendered in decedent's lifetime, 270 
 
 64. after award of execution in favour of executor 
 
 or administrator upon scire facias reviving 
 judgment obtained by decedent, - 270 
 
 65. Elegit after award of execution against an heir, upon scire 
 
 facias reviving against him judgment rendered 
 against his ancestor, - 271 
 
 66. Distringas and fi. fa. after award of execution against an 
 
 executor or administrator, upon scire facias reviving judg- 
 ment in detinue rendered against his decedent, - 271 
 
 67. Fieri facias after award of execution upon recognizance of 
 
 special bail in action for debt or damages, - 272 
 
 68. Execution after award thereof upon recognizance of special 
 
 bail in detinue, - 273 
 
 69. for the commonwealth, upon a recognizance against 
 
 the goods and chattels, lands and tenements, 273 
 
 
 
 CHAPTER XXVI. 
 
 MOTIONS FOR JUDGMENT AND AWARD OF EXECUTION. 
 
 1. Notice of motion on forthcoming bond, - - 274 
 
 2. Defendants not appearing, award of execution by default, 274 
 
 3. Entry where, after execution of forthcoming bond, an injunc- 
 
 tion was obtained, and the same being dissolved, damages 
 
 are included in the judgment, - - 275 
 
 4. Execution awarded by consent on forthcoming bond, - 275
 
 XXXIV TABLE OF CONTENTS. 
 
 5. Order quashing execution and forthcoming bond because of 
 
 defects in execution, 
 
 6. forthcoming bond as faulty, 275 
 
 7. Sheriff's return on execution amended, by stating that super- 
 
 sedeas was received before day of sale; and thereupon 
 motion overruled, 
 
 8. Continuance of motion, - 276 
 
 9. Non est factum pleaded; issue joined; verdict for plaintiff; 
 
 and judgment, 
 
 10. Motion heard, and continued for court to consider of its judg- 
 
 ment, 
 
 11. After time taken to consider, judgment for defendant upon 
 
 the merits, - 277 
 
 12. for plaintiff upon 
 
 the merits, - 277 
 
 13. Entry of exceptions to judgment, 
 
 14. Bond, where goods are distrained for rent, and restored to 
 
 the debtor, to pay at the end of three months, 277 
 
 15. Where sale is made of goods distrained, bond of the buyer 
 
 to pay at the end of three months, 278 
 
 16. Notice of motion on three months bond given by owner or 
 
 buyer of goods distrained, - 279 
 
 17. Entries upon motions on three months bonds, - 279 
 
 18. Notice of motion by surety against principal, 279 
 
 19. Judgment for surety, on motion by him against principal, 279 
 
 20. on motion by him against executor or 
 
 administrator of principal, 280 
 
 21. Fi. fa. after judgment for surety on motion by him against 
 
 principal, 280 
 
 22. for surety on motion by him against 
 
 executor or administrator of prin- 
 cipal, 281 
 
 23. Notice of motion by surety against cosurety, - 281 
 
 24. Judgment for surety, on motion by him against a cosurety, 281 
 
 25. on motion by him against executor or 
 
 administrator of cosurety, 282 
 
 26. Notice of motion by bail against principal, - 282 
 
 27. by a turnpike company against a delinquent 
 
 stockholder, - 282 
 
 28. by the Mutual assurance society against a 
 
 person insured, for quotas, - 283 
 
 29. by president and directors of literary fund 
 
 against treasurer of school commission- 
 ers and his sureties, - 284 
 
 30. by jailor against creditor for jail fees, 284 
 
 31. Another notice of motion for jail fees, against creditor who 
 
 resides out of the county, and has no agent in it, 285 
 
 32. Notice of motion by creditor against debtor for jail fees, 286 
 
 33. by client against attorney for money received, 286 
 
 34. by overseers of the poor against a prede- 
 
 cessor in office, - - 286
 
 TABLE OF CONTENTS. XXXV 
 
 35. Notice of motion against sheriff and sureties for poor rates 
 
 collected, - - 287 
 
 36. against sheriff for failing to pay county levy, 287 
 
 37. against sheriff for failing to render account 
 
 of county levy, - - 288 
 
 38. against an officer for clerk's fees collected, 288 
 
 39. against an officer for not returning an exe- 
 
 cution, - 289 
 
 40. Judgment on motion against officer for not returning execution, 290 
 
 41. Fi. fa. on judgment against officer for not returning execution, 290 
 
 42. Notice of motion against officer for not returning forfeited 
 
 forthcoming bond, - - 290 
 
 43. against officer for not returning the sche- 
 
 dule of an insolvent debtor, - 291 
 
 44. against officer for not returning account of 
 
 sales of insolvent's effects, - 291 
 
 45. for not returning account of sales of goods 
 
 sold under execution, - - 291 
 
 46. by creditor against officer for money re- 
 
 ceived under execution, - 292 
 
 47. Judgment for sheriff's costs, where, after notice by creditor, 
 
 motion was not made, - - 293 
 
 48. on motion by creditor against officer for money 
 
 received under execution, - - 293 
 
 49. on motion by creditor against officer for suffering 
 
 a debtor to escape, - - 293 
 
 50. Fi. fa. after judgment by creditor against officer for money 
 
 received under execution, - - 293 
 
 51. after judgment by creditor against officer for suffer- 
 
 ing debtor to escape, - - 294 
 
 52. Notice of motion against officer and sureties for surplus ari- 
 
 sing from sale under execution, - 294 
 
 53. against officer for money arising from the 
 
 sale of an insolvent's estate, - 294 
 
 54. Judgment on motion against officer for money arising from 
 
 the sale of an insolvent's estate, - - 295 
 
 55. Notice of motion against officer for money or goods received 
 
 under summons against the garnishee of an insolvent, 295 
 
 56. Where the court ascertains the value, in money, of rent re- 
 
 served in any thing other than money, and property dis- 
 trained for such rent is sold, notice of motion against offi- 
 cer for the proceeds, - . - 296 
 
 57. Notice of motion by sheriff against deputy, for amount of 
 
 judgment against sheriff for deputy's misconduct, - 297 
 
 58. Judgment in favour of sheriff against deputy and his sureties, 
 
 for amount of judgment against sheriff for deputy's default, 297 
 
 59. Notice of motion by sheriff against deputy, for money re- 
 
 ceived under execution, - 298 
 
 60. by sheriff against deputy and his sureties, 
 
 for taxes, - - 829
 
 XXXVI TABLE OF CONTENTS. 
 
 61. Notice of motion by sheriff against administrators of deputy, 
 
 for taxes; drawn more specially than 
 
 the last, 298 
 
 62. Fi. fa. upon judgment in favour of sheriff against deputy's 
 
 sureties, for taxes, - 299 
 
 63. Notice of motion by sheriff against deputy and his sureties, 
 
 for other moneys, 300 
 
 64. by sureties of sheriff for execution against 
 
 his lands, 300 
 
 65. by sheriff for execution against lands of 
 
 deputy and his sureties, 301 
 
 66. by sure-ties of deputy sheriff for execution 
 
 against his lands, 301 
 
 67. Upon what executions the clerk shall endorse that no security 
 
 is to be taken, 301 
 
 CHAPTER XXVII. 
 
 ATTACHMENTS. 
 
 1. Bond taken where attachment is granted against an abscond- 
 
 ing debtor for a debt exceeding $ 10 which has become 
 payable, 302 
 
 2. Attachment in such case, 303 
 
 3. Bond to the officer serving the attachment, for the purpose 
 
 of replevying the same, - - 304 
 
 4. Sheriff's return where attached effects are replevied, by giv- 
 
 ing bond and security, 304 
 
 5. of levy where no bond and security are taken 
 
 by him, - 304 
 
 6. Attachment dismissed, because it was issued without a proper 
 
 bond being taken, 305 
 
 7. Garnishee sworn; judgment against defendant; and then 
 
 judgment against garnishee, 305 
 
 8. Plaintiff alleging that garnishee has not discovered truly, jury 
 
 impannelled, and after their verdict, judgment against de- 
 fendant, and then against garnishee, 306 
 
 9. Judgment against a garnishee who owes more than is suffi- 
 
 cient to satisfy the demand against the 
 absconding debtor, - 306 
 
 10. absconding debtor, who neither replevies 
 
 nor makes defence, and order for sale 
 
 of attached effects, 306 
 
 11. Order where attached effects are to be sold to satisfy, first, 
 
 a prior judgment, and then a subsequent one, 307 
 
 12. before attachment is decided, for the sale of property 
 
 liable to perish, or to become impaired in value, or 
 which it may be expensive to keep, 307 
 
 13.' Attachment replevied by putting in bail in court, 308 
 
 14. Defendant admitted to make defence without replevying the 
 
 property attached, 308
 
 TABLE OF CONTENTS. XXXV11 
 
 15. Plea in abatement, 308 
 
 16. Plea by claimant of the goods attached, - - 309 
 
 17. Replication to plea of claimant, - - 309 
 
 18. Entry of claimant's plea, and replication thereto ; verdict for 
 
 claimant ; and judgment thereupon, - - 309 
 
 19. Verdict, on claimant's plea, in favour of the attaching cre- 
 
 ditor, and judgment thereupon, - - 310 
 
 20. Affidavit to obtain attachment, where debt is under $ 20, and 
 
 debtor removes his effects, - 310 
 
 21. Attachment where debt is under $20, and debtor removes 
 
 his effects, - 310 
 
 22. Affidavit to obtain attachment, where debtor removes before 
 
 debt is payable, - - - 311 
 
 23. Bond upon obtaining attachment for claim of $ 10 or up- 
 
 wards, where debtor removes before debt is payable, 311 
 
 24. Attachment for claim of $ 10 or upwards, where debtor re- 
 
 moves before debt is payable, - - 312 
 
 25. Another, where the creditor is a mercantile firm, - 312 
 
 26. Bond given by the debtor for the payment of the debt when 
 
 it shall become due, ... 313 
 
 27. Debtor not giving bond for payment of debt when it shall 
 
 become due, judgment against him, and order for sale of 
 attached effects, 313 
 
 28. Judgment against debtor for amount to become due, and 
 
 then judgment against garnishee, - - 314 
 
 29. Affidavit to obtain attachment where tenant will remove his 
 
 effects before rent will be payable, - - 314 
 
 30. Affidavit where the tenant has actually removed his effects 
 
 before the rent has become due, - - 315 
 
 31. Attachment where tenant will remove or has removed his ef- 
 
 fects before rent becomes payable, - - 315 
 
 32. Order quashing attachment for rent, - - 315 
 
 33. Recognizance for the payment of rent at the time it will be- 
 
 come due, - 316 
 
 34. Attachment having issued irregularly, order quashing same 
 
 and the recognizance taken under it, - - 316 
 
 35. Tenant not entering into recognizance for the payment of 
 
 the rent, goods attached ordered to be sold, - 317 
 
 36. Right to sue out the attachment contested, and judgment 
 
 entered for the tenant, ... 317 
 
 37. Where the rent is reserved in any other thing than money, 
 
 value ascertained in money, - 317 
 
 38. Affidavit to obtain attachment against a vessel, to meet mas- 
 
 ter's liability in a suit against him for carrying off a slave, 318 
 
 39. Bond given where attachment issues against a vessel, to meet 
 
 master's liability in a suit against him for carrying off a 
 slave, 318 
 
 40. Attachment against a vessel, to meet master's liability in a 
 
 suit against him for carrying off a slave, 318 
 
 41. Bond given to the officer having possession of vessel attached, 
 
 to get the same restored to the master, - 319
 
 XXXVlll TABLE OF CONTENTS. 
 
 42. Return by the officer, after levying attachment upon vessel, 319 
 
 43. Verdict and judgment in suit instituted for the recovery of 
 
 the penalty imposed for carrying a slave out of the county, 320 
 
 44. After judgment for plaintiff in suit against the master of a 
 
 vessel, order, in the attachment case, to sell the vessel in 
 satisfaction of the judgment, - 320 
 
 CHAPTER XXVIII. 
 
 COMPLAINT AGAINST FATHER OF BASTARD CHILD. 
 
 1. Examination of mother on oath, - 321 
 
 2. Warrant to apprehend the father, - 321 
 
 3. Recognizance of father to appear at next court, 322 
 
 4. Warrant for commitment to jail, in case no recognizance be 
 
 given to appear at court, 
 
 5. Default in not appearing at court recorded, and scire facias 
 
 awarded upon recognizance, 324 
 
 6. Case examined into by the court, and judgment given against 
 
 the father, 324 
 
 7. Recognizance required by the court not being given, order 
 
 committing the father to jail, - 326 
 
 8. Entry of the recognizance when given in court, 326 
 
 9. Notice of motion against the father and his sureties, for not 
 
 paying the money charged upon him, - 326 
 
 CHAPTER XXIX. 
 
 CLAIMS TO ESCHEATED LANDS OR THEIR PROCEEDS. 
 
 1. Information by attorney for the commonwealth for an intru- 
 
 sion upon land which was escheated, and of which the 
 commonwealth afterwards had possession, 328 
 
 2. After inquisition of escheat, claim to the lands by monstrans 
 
 de droit and traverse, - - 328 
 
 3. Issue made up on monstrans de droit and traverse, 329 
 
 4. Verdict for the claimant of the escheated lands, and judg- 
 
 ment that the inquisition be quashed, - 329 
 
 5. Issue made up in another case ; verdict for claimant; and 
 
 judgment that inquisition be quashed, and the hands of 
 
 the commonwealth amoved, - 329 
 
 6. Issue made up in another case ; verdict for claimant of a 
 
 leasehold interest ; and judgment that such interest be 
 reserved in the sale, - - 330 
 
 7. Petition by creditor of person whose lands have been es- 
 
 cheated, ... 330 
 
 8. Judgment on such petition, 331
 
 TABLE OF CONTENTS. XXXIX 
 
 CHAPTER XXX. 
 
 DEMANDS AGAINST THE COMMONWEALTH. 
 
 1. Petition by person having demand against the common- 
 
 wealth, - 332 
 
 2. Answer of auditor to such petition, - - 332 
 
 3. Judgment on such petition, - - 332 
 
 CHAPTER XXXI. 
 
 CORRECTION OF ERRORS IN SAME COURT. 
 
 1. Order of court correcting mistake in proceedings in the of- 
 
 fice during preceding vacation, - - 333 
 
 2. Notice of application to judge in vacation to amend judg- 
 
 ment, - 333 
 
 3. Amendment of judgment by judge in vacation, - 334 
 
 4. Notice of application to court to amend judgment, - 335 
 
 5. Judgment amended by the court, - - 335 
 
 6. Excess in judgment released by plaintiff at a subsequent 
 
 term, to cure error, - 336 
 
 7. in vacation by plaintiff, by 
 
 deed under hand and seal, 336 
 
 8. Petition for writ of error coram vobis, - - 337 
 
 9. Writ of error coram vobis awarded, - - 337 
 
 10. Writ of error coram vobis, - 338 
 
 11. Scire facias ad audiendum errores, - - 338 
 
 12. Error in fact confessed ; judgment reversed ; proceedings 
 
 subsequent to declaration set aside ; and cause sent to 
 rules, - - 339 
 
 13. Writ of error coram vobis awarded, because plaintiff was 
 
 dead when suit was brought, and the fact being admitted, 
 judgment reversed and writ quashed, - - 339 
 
 CHAPTER XXXII. 
 
 WRIT OF MANDAMUS. 
 
 1. Rule to shew cause \vhymandamus should not issue, - 341 
 
 2. made absolute, and conditional mandamus awarded, 
 
 to do the specific thing, or shew cause to the con- 
 trary, 342 
 
 3. Mandamus to a public officer, to obey a statute, or shew 
 
 cause to the contrary, - 342 
 
 4. to justices of a county court, to admit a deed to 
 
 record, or shew cause to the contrary, - 342 
 
 5. in New York, to judges of court below, to seal 
 
 bill of exceptions, or shew why it is not 
 done, 343
 
 Xl TABLE OF CONTENTS. 
 
 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, 345 
 
 7. Service of mandamus, and return thereof, - 345 
 
 8. Return being insufficient, peremptory mandamus awarded, 346 
 
 CHAPTER XXXIII. 
 
 WRIT OF PROHIBITION. 
 
 1. Notice to justice of the peace, of motion for writ of pro- 
 
 hibition, - 347 
 
 2. to opposite party, of the motion, 347 
 
 3. Suggestion that controversy before a justice involves the ti- 
 
 tle of an assignee to a freehold estate of 
 inheritance in an incorporeal heredita- 
 ment, 348 
 
 4. proceedings before a justice are by four 
 
 warrants for sums constituting together 
 but one debt, and that the debt exceeds 
 $ 20, 351 
 
 5. county court is illegally exercising jurisdic- 
 
 tion by prohibition, - 353 
 
 6. Writ of prohibition, - 354 
 
 CHAPTER XXXIV. 
 
 WRIT OF HABEAS CORPUS AD SUBJICIENDUM. 
 
 1. Petition for writ, - 356 
 
 2. Order awarding the writ, - 357 
 
 3. Writ of habeas corpus, - - 357 
 
 4. Return annexed to writ, - - 357 
 
 5. Endorsement upon writ, - - 358 
 
 6. Return made to writ, and case continued to another day, 358 
 
 7. Case heard, and petitioner discharged from custody, 358 
 
 8. Entry of return made to writ ; case heard ; and prisoner dis- 
 
 charged, ... 35g 
 
 CHAPTER XXXV. 
 
 WRITS OF ERROR AND SUPERSEDEAS. 
 
 1. Where party desires to appeal, order directing execution to 
 
 be suspended, - *i)o. 360 
 
 2. Bond given when the court suspends execution, to let the 
 
 party apply for an appeal, - . *u 360 
 
 3. Manner of transcribing the record, - - 361 
 
 4. Transcript of the record in a case wherein final judgment 
 
 has been entered in the office, - - 362
 
 TABLE OF CONTENTS. xli 
 
 5. Transcript in a case wherein damages have been assessed 
 
 and judgment rendered upon a writ of en- 
 quiry, ... 363 
 
 6. of an action on a bond made part of the record 
 
 by oyer, ... 353 
 
 7. of an action on a judgment, wherein profert was 
 
 made of the record of the judgment, and no 
 
 such record pleaded, - 363 
 
 8. of an action wherein an issue of fact was joined, 
 
 opinion at the trial excepted to, and judgment 
 
 rendered upon a verdict, - - 364 
 
 9. of an action of ejectment, - - 364 
 
 10. upon a writ of right, - - 365 
 
 11. upon a complaint for unlawful detainer, - 365 
 
 12. upon a monstrans de droit, - - 365 
 
 13. of a judgment on a forthcoming bond, obtained 
 
 by default, - - 370 
 
 14. of a motion on which the defendants appeared, 370 
 
 15. of a motion by a surety against the principal, 370 
 
 16. Petition to circuit court for a supersedeas, - - 371 
 
 17. Certificate of counsel, ... 371 
 
 18. Order denying supersedeas, - - 371 
 
 19. awarding supersedeas, _ - _ 373 
 
 20. Record, with order allowing writ, not delivered to clerk in * 
 
 fifteen days, but afterwards received by the court, - 372 
 
 21. Bond given before supersedeas is issued, - - 372 
 
 22. Writ of supersedeas to judgment of county or corporation 
 
 court, ... 373 
 
 23. Certiorari, .... 373 
 
 24. awarded defendant on suggestion of diminution, 373 
 
 25. Writ of certiorari issued after suggestion of diminution, 374 
 
 26. Petition for writ of error, where petitioner cannot give secu- 
 
 rity, - 374 
 
 27. Order awarding writ of error, where petitioner cannot give 
 
 security, - 374 
 
 28. Bond given for costs before writ of error is issued, - 375 
 
 29. Writ of error, - 375 
 
 30. Order quashing supersedeas which had been improvidently 
 
 allowed, - 375 
 
 31. Plaintiff being called, and not appearing, supersedeas dis- 
 
 missed, ... 376 
 
 32. Supersedeas revived by consent, - - 376 
 
 33. Scire facias awarded to revive, - - 376 
 
 34. Writ of scire facias, ... 376 
 
 35. Alias scire facias awarded, ... 377 
 
 36. Order of publication, ... 377 
 
 37. Where one of two plaintiffs dies, abatement as to him, - 377 
 
 38. Judgment of affirmance, ... 373 
 
 39. Affirmance after amending the transcript of the record, - 378 
 
 vi
 
 Xlii TABLE OF CONTENTS. 
 
 40. Affirmance after ascertaining variance between judgment and 
 
 declaration to be a clerical misprision, - 379 
 
 41. Scire facias to revive against plaintiff's executor returned 
 
 executed, and judgment affirmed, 379 
 
 42. Acknowledgment of no error, and judgment affirmed, - 379 
 
 43. After revival in appellate court, judgment reversed, and ver- 
 
 dict set aside, but action ordered to be abated, 379 
 
 44. Judgment for defendant reversed, because improperly given 
 
 for him upon demurrers to replications to se- 
 cond and third pleas, and new judgment enter- 
 ed for him by appellate court, upon demurrer 
 to rejoinder to replication to first plea, 380 
 
 45. in original action being erroneous, subsequent 
 
 judgment on forthcoming bond, depending on 
 
 it, likewise reversed, 381 
 
 46. reversed for error to the injury of defendant, and 
 
 costs recovered by him as the party prevailing, 381 
 
 47. reversed, because evidence was improperly exclu- 
 
 ded at the trial ; and cause sent back, 381 
 
 48. by default, reversed for defect in declaration ; and 
 
 writ being defective also, final judgment enter- 
 ed, - - 382 
 
 49. by default reversed for defect in declaration ; and 
 
 writ being correct, proceedings subsequent to 
 
 writ set aside, and cause remanded, 382 
 
 50. for plaintiff, where defendant had demurred, re- 
 
 versed for defect in declaration, and final judg- 
 ment entered, - - 382 
 
 51. for defendant on demurrer to declaration reversed ; 
 
 and there being no issue in fact, and the action 
 being for damages, cause remanded to have the 
 damages assessed, - 383 
 
 52. for defendant on demurrer to one plea reversed, 
 
 and cause remanded for trial of issue in fact 
 joined upon another plea, - 383 
 
 53. judgment for plaintiff, on special demurrer to his 
 
 replication, reversed ; but defect being only in 
 
 form, cause remanded, with leave to amend, 383 
 
 54. reversed because there were two issues, and ver- 
 
 dict responded only to one ; and cause reman- 
 ded for new trial on both, 384 
 
 55. being reversed and new trial ordered, such new 
 
 trial not confined to the issues joined, but fur- 
 ther matter allowed to be pleaded, 384 
 
 56. on motion reversed on the merits, and final judg- 
 
 ment entered, - - 385 
 
 57. Order overruling motion on forthcoming bond because of 
 
 supposed defect, reversed, and case remanded to 
 county court, ... 385 
 
 58. overruling motion on forthcoming bond reversed, and 
 
 final judgment entered, - - 385
 
 TABLE OF CONTENTS. xliJi 
 
 59. Affirmance of judgment in ejectment, - - 386 
 
 60. Judgment for plaintiff on complaint for unlawful detainer 
 
 reversed by circuit court, and writ of restitution awarded 
 
 to restore possession, ... 386 
 
 61. Supersedeas heard, and time taken to consider, - 387 
 
 62. partly heard, - - 387 
 
 63. fully heard, and time taken to consider, - 387 
 
 64. fully considered, and judgment, - 387 
 
 65. Ft. fa. on a judgment of circuit court affirming a judg- 
 
 ment of county court, - 387 
 
 66. on a judgment of circuit court reversing judgment 
 
 of county court, - 389 
 
 67. Distringas and Ji. fa. on a judgment of circuit court af- 
 
 firming a judgment of county court in detinue, 389 
 
 68. Writ of restitution after reversal of judgment on complaint 
 
 of unlawful detainer, under which possession had been 
 obtained, - - - - 390 
 
 69. Scire facias where execution has not issued within a year 
 
 after the affirmance, by circuit court, of judg- 
 ment of county court, - 390 
 
 70. against heirs and terretenants, to have execu- 
 
 tion of the lands upon a judgment of cir- 
 cuit court affirming a judgment of court be- 
 low, rendered on a scire facias, - 391 
 
 71. Award of execution thereupon, - - 391 
 
 72. Fi. fa. after award of execution upon scire facias renewing 
 
 judgment of affirmance, - - 392 
 
 73. award of execution against executor, upon scire 
 
 facias reviving judgment affirmed against 
 decedent, ... 392 
 
 74. award of execution in favour of executor, upon 
 
 scire facias reviving judgment affirmed in 
 decedent's lifetime, - - 392 
 
 75. Transcript of the record of a judgment in circuit court, in 
 
 a suit removed thither by certiorari, - - 393 
 
 76. Transcript of the record of a judgment in circuit court, 
 
 given on a supersedeas, ... 393 
 
 77. Writ of supersedeas to judgment of circuit court, - 394 
 
 78. Bond given when supersedeas is obtained to judgment of 
 
 circuit court, . ... 394 
 
 79. Reversal of judgment of circuit court, which reversed judg- 
 
 ment of county court on complaint of unlawful detainer ; 
 
 and writ of re-restitution awarded, - - 395 
 
 80. After circuit court has reversed two judgments of county 
 
 court, both judgments of circuit court reversed, and first 
 judgment of county court affirmed, - - 395 
 
 81. Decision of appellate court received by clerk of court be- 
 
 low, during the session of the court, and judg- 
 ment entered pursuant thereto, 396 
 
 82. of court of appeals received by clerk of circuit court 
 
 in vacation, and entry thereof, - 396
 
 TABLE OF CONTENTS. 
 
 83. After affirmance of judgment in detinue, proceedings to as- 
 
 certain the value of the hires of the slave recovered, 
 which have accrued since the verdict and judgment, 396 
 
 84. judgment on complaint of unlawful entry or detainer 
 
 is reversed, and case remanded, new jury impan- 
 nelled, - 397 
 
 85. Fi. fa. after affirmance, by court of appeals, of a judgment 
 
 of circuit court, - - 397 
 
 86. after affirmance, by court of appeals, of judgment of 
 
 circuit court which affirmed judgment of county 
 court, - 398 
 
 87. for costs, after affirmance, by court of appeals, of 
 
 judgment of circuit court which reversed order 
 
 of county court, - 398 
 
 88. for costs in court of appeals, after reversal by that 
 
 court of judgment of circuit court, 399 
 
 89. after judgment of court of appeals, reversing judg- 
 
 ment of circuit court which reversed judgment 
 of county court, and affirming the judgment of 
 county court, - 399 
 
 90. Writ of re-restitution after reversal of judgment of circuit 
 
 court, which reversed judgment of county court 
 
 on complaint of unlawful detainer, 399 
 
 91. Scire facias upon death of plaintiff or defendant, to have 
 
 execution for or against executor or adminis- 
 trator, upon a judgment of circuit court 
 which has been affirmed by the court of ap- 
 peals, - 400 
 
 92. upon death of plaintiff or defendant, to have 
 
 execution for or against executor or adminis- 
 trator after affirmance, by court of appeals, 
 of judgment of circuit court which affirmed 
 judgment of county court, 400 
 
 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 appeals, 401 
 
 CHAPTER XXXVI. 
 
 DECLARATIONS. 
 I, IN ACTIONS GENERALLY. 
 
 Names of parties, - 402 
 
 Statement of time, 402 
 
 Where a corporation sues, what must be alleged, 404 
 
 What counts may be joined, - - 405 
 
 What may be joined in same count, 406
 
 TABLE OF CONTENTS. xv 
 II. IN DEBT. 
 
 AVhat is to be demanded, - * * 406 
 
 Dtbtt and detinet, ... 407 
 Description of the parties, 
 
 of the note or obligation, - 407 
 
 Default of payment, ... 408 
 Precedents of declarations in debt, - 409 to 481 
 
 1. On a promissory note by the payee against the maker, 409 
 
 2. two promissory notes, - 409 
 
 3. a single bill, - -- -: 410 
 
 4. a penal bill payable on demand, - 411 
 
 5. two bonds, - 412 
 
 6. Against husband and wife on a bond given by her before the 
 
 marriage, ... 412 
 
 7. executors on the bond of testator, 413 
 
 8. On a joint bond against the surviving obligor, - 413 
 
 9. a joint bond against the representative of an obligor who 
 
 was survived by his co-obligor, - - 414 
 
 10. By representative of obligee against obligors, - 415 
 
 11. an administrator de bonis non with the will annexed 
 
 against two partners, upon a penal bill sealed by one 
 partner, for himself and his co-partner, by the authority 
 
 and in the presence of the co-partner, - 415 
 
 12. the administrator of a surviving partner against heirs on 
 
 a bond of their ancestor, 417 
 
 13. obligee against heirs and devisees of obligor jointly, 418 
 
 14. an assignee in his own name, - 418 
 
 15. In the name of obligee or payee for benefit of assignee, 421 
 
 16. Of bills of exchange generally, - 421 to 438 
 How drawn, accepted or endorsed, - - 421 
 Of the endorsement, whether general or special, - 422 
 Want of consideration, - - - 423 
 Consideration which makes the paper illegal and void, 425 
 What is deemed a foreign bill, . - - 425 
 Whether presentment for acceptance 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 acceptance may be made, - 426 
 To whom presentment for acceptance must be made, - 427 
 At what time protest for non-acceptance must be made, - 427 
 Upon refusal to accept, right to sue drawer or endorser, - 427 
 Drawee liable also, if he had promised to accept, - 427 
 Demand at place of payment not necessary to charge accep- 
 tor of bill or maker of note, - 428 
 
 But necessary to charge endorser, - - ' 428 
 
 When demand must be made, - - 428 
 
 Protest of foreign bill, evidence of dishonour, - 430 
 Due notice of dishonour necessary to charge endorser of 
 
 note, or drawer or endorser of a bill, 431
 
 TABLE OF CONTENTS. 
 
 How soon notice is to be given, - 431 
 
 In what terms the notice is to be expressed, 433 
 
 Drawer of bill, having no effects in drawee's hands, not dis- 
 charged by failure to make presentment or give notice, 435 
 Nor can objection of want of notice be made by endorser 
 who deceives holder by representing bill will be accept- 
 ed, 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 sufficient to dispense with other 
 
 proof of notice, 436 
 
 17. Under the statute giving debt jointly against drawer and 
 
 endorser of a foreign bill, protested for non-acceptance' 
 
 and non-payment, - 438 
 
 18. Against drawer and endorser of a note upon the footing of a 
 
 foreign bill, except as to damages, 441 
 
 19. the drawer of a bill of exchange, independently of 
 
 the statute, 443 
 
 20. the acceptor of a bill of exchange, 443 
 
 21. By the payee against the acceptor of an order, 444 
 
 22. For rent, 445 
 
 23. Counts to admit evidence to repel defence under statute of 
 
 limitations, - - 446 
 
 24. General counts, - 447 
 
 25. On a judgment, - 447 
 
 26. On a judgment against an executor, suggesting a devastavit, 447 
 
 27. Of the official bond of any executor, administrator, guar- 
 
 dian, committee, curator or other officer, 448 
 
 28. On the bond of an executor or administrator, 449 
 
 29. a guardian's bond, - - 452 
 
 30. a refunding bond given by legatees or distributees to an 
 
 executor or administrator, - 455 
 
 31. Against an officer for an escape, - 455 
 
 32. On a sheriff's bond, 455 
 
 33. the bond of a constable for breach of duty, under a dis- 
 
 tress for rent, - 460 
 
 34. By a marshal or sheriff on the bond of a deputy, who is in 
 
 default, 465 
 
 35. On an indemnifying bond taken by a sheriff or constable un- 
 
 der the statute, - 469 
 
 36. a common law bond of indemnity, - 471 
 
 37. a bounds bond, - - 471 
 
 38. On a bond given upon obtaining an appeal or supersedcas, 473 
 
 39. an injunction to a judg- 
 
 ment, 473 
 
 40. an injunction to a sale un- 
 
 der execution, - 474 
 
 41. an attachment against the 
 
 effects of an absconding 
 debtor, - 476
 
 TABLE OF CONTENTS. 
 
 42. By an heir on a bond to his ancestor conditioned for the 
 
 quiet enjoyment of lands, assigning a breach since the 
 ancestor's death, - - 476 
 
 43. On the bond of an officer of a banking company, or other 
 
 corporation, conditioned to perform the duties of his 
 office", - 478 
 
 44. a bond to transfer back, when required, bank stock, and 
 
 pay such dividends as might be declared thereon in 
 
 the mean time, - - 479 
 
 45. Against an officer conducting an election, under the statute 
 
 creating a penalty for shewing partiality, - 481 
 
 46. Upon the statute creating a penalty for receiving more than 
 
 lawful interest, - - - 481 
 
 II. IN COVENANT. 
 
 Obligation of covenantor construed according to its intent 
 
 and meaning, - 482 
 
 But whatever obligation really is, must be performed, - 482 
 Of obligations, where the covenants are dependent, - 482 
 Where on one side only, performance depends on prior per- 
 formance by other, ... 433 
 Where the covenants are wholly independent, - 484 
 When performance by plaintiff need not be averred or 
 
 proved, - 484 
 
 How breach of covenant is to be assigned, - 484 
 
 By and against whom action for breach of covenant may be 
 
 maintained, - 486 
 
 How title must be deduced by plaintiffs, claiming as heirs 
 
 or devisees of covenantee, ... 487 
 Precedents of declarations in covenant, - 4S8 to 498 
 
 1. On a covenant to warrant and defend the quantity of land 
 
 mentioned in a deed, - 488 
 
 2. and defend the title to land con- 
 
 veyed, - - 489 
 
 3. By lessor against lessee for breach of covenant to pay rent 
 
 reserved by deed, ... 490 
 
 4. For hire agreed to be paid for a slave and the value of clo- 
 
 thing which the hirer was to furnish, - - 492 
 
 5. On a covenant to pay the plaintiff at a certain rate for every 
 
 bushel of wheat which he should deliver, at a particu- 
 lar place, within a specified time, - - 492 
 
 6. a writing acknowledging the receipt of certain notes, 
 
 and stating how the same, when collected, were to be 
 applied, - - 494 
 
 7. Against a devisee on the specialty of testator, - 496 
 
 8. On an agreement to refer to arbitration and abide by the 
 
 award, .... 496 
 
 What must be comprehended in the award, - 496 
 
 To whom payment may be awarded, - - 496 
 
 By whom payment may be directed, - - 496
 
 Xlviii TABLE OF CONTENTS. 
 
 What award is considered mutual and final, 497 
 
 Who may sue for breach of the covenant, 498 
 
 Profert to be made of submission and award, 498 
 
 How much of award must be set forth, 498 
 
 III. IN ASSUMPSIT. 
 
 Assumpsit not to be brought on sealed instrument, 498 
 
 It may now be brought against a corporation, 499 
 
 Or by a corporation, - - 499 
 
 Time of the promise to be stated, 500 
 
 Consideration must be set out to support the promise, - 501 
 
 Promise must be stated, - - 502 
 
 Breach of the promise must be alleged, 502 
 Unnecessary length, in declarations, now discountenanced 
 
 in England, - 502 
 
 Precedents of declarations in assumpsit, - 503 to 554 
 
 1. On an inland bill of exchange against the acceptor by the 
 
 drawer, being also payee, - 503 
 
 2. Against the acceptor by the drawer, not being the payee, 503 
 
 3. the payee, not being the drawer, 503 
 
 4. the endorsee, - 503 
 
 5. drawer by payeee on non-acceptance, 504 
 
 6. endorsee on non-acceptance, 504 
 
 7. Against first endorser by an endorsee on non-acceptance, 505 
 
 8. second or third endorser by his endorsee on non-ac- 
 
 ceptance, - - 505 
 
 9. drawer or endorser, where action is brought after 
 
 expiration of time for payment, - 505 
 
 10. drawer or endorser of bill protested for non-accep- 
 
 tance or non-payment, where damages are claimed 
 
 under the Virginia statute, 507 
 
 11. drawer by an acceptor who accepted for accommo- 
 
 dation of drawer, 508 
 
 11. the acceptor of a foreign bill, - 509 
 
 12. On a promissory note, payable in bank notes or other arti- 
 
 cles of fluctuating value, - 509 
 
 13. Upon the promise of a person appearing as obligor in a 
 
 bond, to pay the same to one taking a transfer thereof from 
 
 the obligee, 511 
 
 14. Of the right and remedy of assignee against assignor, - 515 
 
 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 injury 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 obligor is a sufficient excuse for 
 
 not suing him, - - 516
 
 TABLE OF CONTENTS. xllX 
 
 Where no excuse for not suing, suit must be diligently pro- 
 secuted, .... 516 
 
 The result of the suit must be shewn, - - 516 
 
 If judgment against maker be injoined, assignor must not 
 
 be sued while injunction is pending, - 516 
 
 If maker be taken under a ca. sa. assignor must not be sued 
 
 while he continues charged in execution, - 517 
 
 But without issuing ca. sa. suit may be brought upon return 
 
 of nulla bona, - - - 517 
 
 Sheriff's return cannot be controverted, - 517 
 
 15. Count against assignor setting forth return of nulla bona, 517 
 
 16. alleging notorious insolvency, - 519 
 
 17. After judgment by second assignee against obligor, and re- 
 
 turn of nulla bona, count by first assignee against his as- 
 signor, .... 520 
 
 18. For breach of a promise to marry, - - 520 
 
 19. Of bailment, - - - ., .- 521 
 
 20. Against a common carrier, ... 522 
 
 21. a vendee for the price of goods sold and virtually 
 
 delivered, - - 523 
 
 22. a purchaser at auction, failing to comply with the 
 
 terms, for the loss upon a resale, 524 
 
 23. By the purchaser of a slave or other chattel upon the war- 
 
 ranty of title, - 527 
 
 24. a slave warranted sound, who was dis- 
 
 eased at the time, and remained so 
 
 until her death, 527 
 
 25. a horse warranted sound, (and offered 
 
 to be returned upon being discover- 
 ed to be unsound,) for the expense 
 of keeping, and the loss upon a re- 
 sale, - - 528 
 
 26. a horse warranted sound, who proved to 
 
 be unsound, but was not returned or 
 tendered, 529 
 
 27. seed warranted good, which were used 
 
 and proved not to be good, 529 
 
 28. an article sold for a particular purpose, 
 
 upon the implied warranty that it is 
 
 fit for that purpose, - 530 
 
 29. For the use and occupation of a house, - - 530 
 
 30. On a promise to pay the year's hire of a slave and furnish 
 
 him with clothing, - - 531 
 
 31. monthly hire for a slave, 533 
 
 32. On a writing promising to furnish the bond of another per- 
 
 son for the hire of a slave, - - 533 
 
 33. For services rendered as a physician, - - 533 
 
 34. By a high sheriff against the administrators of his deputy, 
 
 for money received by the deputy, virtute officii, 534 
 
 vii
 
 1 TABLE OF CONTENTS. 
 
 35. By an officer who took property under execution and sold 
 
 the same upon an agreement that he should be indem- 
 nified, 536 
 
 36. By a legatee upon a promise of the executor to pay his le- 
 
 gacy, - 541 
 
 37. Of cases in which the statute of frauds requires a writing, 542 
 
 38. Against an executor or administrator upon a promise to pay 
 
 a debt of the decedent, - 543 
 
 39. Upon a promise to answer for the debt, default or miscar- 
 
 riage of another person, - - 543 
 
 Statute applies where creditor has a double remedy, 543 
 
 Whether merchant's books are evidence that he had not a 
 
 double remedy, ... 544 
 
 Consideration need not be expressed in the writing, but may 
 
 be proved dehors, - 544 
 
 What is a promise to pay, and what a sufficient considera- 
 tion for it, - - 544 
 Declaration need not set out the writing, but must describe 
 
 the promise correctly, - - 545 
 
 If promise was conditional, condition must appear to have 
 
 been complied with, - - 545 
 
 Necessary sometimes to aver notice to defendant, 545 
 
 But not necessary to aver demand upon third person and his 
 
 refusal, ... 545 
 
 40. For money agreed to be paid in consideration of marriage, 549 
 
 41. Upon a contract for the sale of lands, - 549 
 
 42. an agreement which is not to be performed within one 
 
 year, ... 550 
 
 43. What may be recovered under the common counts, and 
 
 forms of such counts, to wit: I. for goods; 2. for work 
 and materials ; 3. for money lent ; 4. for money paid ; 5. 
 for money received ; and 6. for money found due on ac- 
 count stated, ... 550 to 554 
 
 44. General conclusion, ... 554 
 
 IV. IN TRESPASS. 
 
 Distinction between trespass and case, - 554 
 
 Of the different kinds of trespass, - 555 to 560 
 
 1. For a trespass to or upon the person, - - 555 
 
 2. upon real property, - - 555 
 By whom the action can and cannot be maintained, 555 
 Against whom the action 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 mentioned,- - - 556 
 Use of clause of alia enormia, - - 557 
 Forms of declarations, - - 557 
 
 3. For a trespass upon personal property, - 558 
 It lies for destroying or injuring slaves, - - 558 
 It lies against an officer for his tortious act, - 558
 
 TABLE OP CONTEXTS. H 
 
 Or for the tortious act of his deputy, - 558 
 
 When it lies for or against a personal 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 indispensable, - - 559 
 
 Forms of declarations, ... 560 
 
 V. IN DETINUE. 
 
 Object of the action, - - 560 
 
 For what it may be maintained, - - 560 
 
 Plaintiff must have title and defendant possession, - 560 
 
 What title is sufficient, 560 
 What possession in defendant will support the action against 
 
 him, - - - 562 
 Defendant's possession charges him in his individual charac- 
 ter, - 562 
 How the declaration may describe the slave or other thing 
 
 sued for, - 562 
 
 Averment of property necessary, - - 562 
 
 Value must be laid separately for each slave, - 562 
 
 Not necessary to allege a special demand, - - 562 
 
 Forms of the counts, ... 563 
 
 VI. IN CASE, 
 
 1. For a slave or other chattel converted by defendant to his use, 564 
 Action 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 executor or administrator will not 
 
 exonerate him, ... 564 
 
 When demand and refusal are not necessary to be shewn, 564 
 
 Form of declaration, - 564 
 
 2. For bank notes or bills of exchange lost by or stolen from 
 
 plaintiff, and converted by defendant to his use, - 565 
 
 Decisions upon this subject, - 565 
 
 3. For loss of, or injury to, a slave, occasioned by defendant's 
 
 neglect, - 566 
 
 Decisions upon the subject, - ... 566 
 
 Form of declaration, - 568 
 
 4. By the owner of a runaway slave against a sheriff for not fur- 
 
 nishing the slave, while in jail, with bed-covering and fuel, 569 
 
 5. By the owner of a slave received in jail, against the sheriff 
 
 for his negligence in suffering the slave to escape, - 571 
 
 6. Against a sheriff for an escape, - - 572 
 Where sheriff making arrest turns prisoner over to his suc- 
 cessor, - 572 
 
 7. For unlawful distress, - - 573 
 Where the trespass is waived, 573
 
 Hi TABLE OF CONTENTS. 
 
 8. Against the clerk of a court fc* improperly endorsing credits 
 
 on an execution, - 575 
 
 9. a deputy sheriff for an illegal sale under an execution, 575 
 
 10. By a sheriff who levied upon goods at the instance of an ex- 
 
 ecution creditor, and was compelled to pay damages to a 
 claimant of the goods, to recover the amount of those 
 damages from the execution creditor, 575 
 
 11. By a deputy sheriff against his principal for turning him out 
 
 of office without cause, - - 577 
 
 12. For raising a mill without authority, whereby a mill of the 
 
 plaintiff was rendered useless and the health of his family 
 injured, 577 
 
 13. Against a surveyor for fraudulently refusing to furnish copies 
 
 of surveys, - 578 
 
 13. Against a vendor for fraud, - 578 
 Action lies for false representation or suppression of truth, 578 
 Case of a false representation, - 578 
 
 of suppression of the truth, 579 
 
 Declaration must always allege fraud, - 579 
 
 14. For a fraudulent representation in any other transaction 
 
 than a sale, ... 583 
 
 Case of a partial representation, - 583 
 
 Whether the motive is material, 583 
 
 Enough that defendant knew he was making a false repre- 
 sentation, - - 584 
 What representation will be considered as made to the plain- 
 tiff, - 584 
 Class of cases in which the representation must now be in 
 
 writing, ... 535 
 
 15. For slander, - - 590 
 
 16. For proceeding under process of law, maliciously and with- 
 
 out probable cause, - 590 
 
 obtaining an attachment against property, 590 
 
 a prosecution or for conspiring or advising a prosecution, 590 
 
 Both malice and want of probable 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 a malicious 
 
 prosecution, - - 592 
 
 17. For criminal conversation with plaintiff's wife, - 592 
 Whether action lies for act done after agreement by husband 
 
 and wife to live separately, - 592 
 
 18. For debauching plaintiff's daughter, - 594 
 No criminal prosecution lies, - 594 
 Remedy by action, -A*{.-^; - 594 
 Form of declaration, ... 594
 
 TABLE OF CASES CITED 
 
 Albany Dutch church v. Vedder 
 
 and others, 14 Wend. 165, 478 
 
 Allen <fcc. v. Cunningham &c. 
 
 3 Leigh 395, 449 
 
 Allen's ex'or v. Harlan's adm'r, 
 
 6 Leigh 42, 35. 145. 238. 247 
 
 Allison v. The Bank, 6 Rand. 
 
 204, 478 
 
 Ambler and wife v. Norton, 4 Hen. 
 
 fy Munf. 23, 192 
 
 Amies v. Stevens, 1 Str. 128, 73 
 
 Amis v. Koger, 7 Leigh 221, 276. 374 
 Ammiden v. Smith &c. 1 Wheat. 
 
 447, 471 
 
 Ammonett v. Harris &c. 1 Hen. fy 
 
 Munf. 488, 78 
 
 Anderson v. Bullock &c. 4 Munf. 
 
 442, 408 
 
 Anderson's case, 5 Hand. 627, 594 
 
 Argenbright v. Campbell and wife, 
 
 3 Hen. $ Munf. 174, 408 
 
 Armistead v. Armistead, decided in 
 
 ct. of appeals of Va. Nov. 1839, 428 
 Armstrong v. Armstrongs, 1 Leigh 
 
 491, 497 
 
 Arnold n. Arnold, 3 Bingh. JV. C. 
 
 81, 500 
 
 Arnold v. Crane, 8 Johns. 30, 552 
 
 Arnold v. Hickman, 6 Munf. 15, 515 
 Ashby v. Kiger, 3 Rand. 50, 4 
 
 Aslin &c. v. Summersett, 1 Barn. 
 
 fy Aid. 135, 171 
 
 Atkinson v. M. A. Society, 
 
 6 Cranch 202, 283 
 
 Austin's adm'x v. Whitlock'a 
 
 ex'ors, 1 Munf. 487, 407. 492 
 
 Austin's ex'or v. Jones, Gilm. 
 
 350, 560 
 
 Austin v. Morse, 8 Wend. 476, 556 
 
 Avery v. Inhabitants of Tyringham, 
 
 3 Mass. rep. 160, 502 
 
 Aylett's ex'or v. Robinson, 9 Leigh 
 
 45, 79 
 
 Ayres v. Lewellen, 3 Leigh 609, 370. 375 
 
 B 
 
 Bagwell v. Babe, 1 Rand. 272, 16 
 
 Bailey &c. v. Beckwith, 7 Leigh 
 
 604, 407 
 
 Baird v. Blagrove, 1 Wash. 170, 407 
 Ball v. Dunsterville &c. 4 T. R. 
 
 313, 415 
 
 Bank of Columbia v. Hagner, 
 
 1 Peters 455, 482 
 Bank of Columbia v. Patterson's 
 
 adm'r, 7 Cranch 306, 499 
 
 Bank, Farmers v. Clarke, 4 Leigh 
 
 609, 10, 446 
 
 Bank, Farmers T. Vanmeter, 4 Rand. 
 
 553, 435 
 
 Bank of Marietta v. Pindall, 2 Rand. 
 
 477, 418 
 
 Bank, State v. Kurd, 12 Mass. R. 
 
 172, 552 
 
 Bank of United States v. Carneal, 
 
 2 Peters 542. 553, 428. 435 
 Bank of United States v. Daniel 
 
 &c. 12 Peters 32, 425 
 
 Bank of Washington r,. Triplett & 
 
 Neale, 1 Peters 25. 35, 426, 9 
 
 Banks v. Angell &c. 7 M. $f El. 
 
 843, 157 
 
 Bargamin v. Wercq's ex'or, 4 Leigh 
 
 412, 161 
 
 Barksdale v. Fenwick, 4 Call 492, 516 
 Barksdale v. Fenwick, 2 Hen. fy 
 t Munf. 114, note, 516 
 
 Barnett's ex'or v. Giles, governor, 
 
 6 Leigh 316, 24. 449 
 
 Barnett &c. v. Watson &c. 1 Wash. 
 
 372, 131 
 
 Barton v. Petit &c. 7 Cranch 288, 381 
 Bass v. Bass, 4 Hen. fy Munf. 478, 562 
 Beckwith v. Conal &c. 3 Bingh. 
 
 444, 565 
 
 Beecker t>. 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 ^<f . ^ EZ. 623, 158 
 Davis's adm'r v. Thomas &c. 
 
 5 Leigh 4, 421 
 Davison &c. v. Savage, 6 Taunt. 
 
 121, 402 
 
 Dawson r. Thruston and others, 
 
 justices of Frederick, 2 Hen. fy 
 
 Jtfwn/. 132, 342, 6 
 
 Day &c. v. Chism, 10 JPfceaf 449, 485, 6 
 De La Chaumette v. The bank of 
 
 England, 2 Barn, $ M. 385, 566 
 
 De Lacy v. Antoine &c. 7 Leigh 
 
 438, 356 
 
 Demott r. Field, 7 Coir. 58, 406 
 
 Deneale x. Stumps's ex'ors, 
 
 8 Peters 528, 266 
 
 Denham v. Stephenson, 1 Salk. 
 
 355, 417. 476. 487 
 
 Dey & Dox v. Mercer, 9 Wend. 129, 484 
 Dickens T. Beale, 10 Peters 572, 431, 5 
 Dickinson's adm'r &c. v. M'Craw, 
 
 4 Rand. 158, 476 
 
 Digges's ex'or n. Dunn's ex'or, 
 
 1 Munf. 56, 363 
 
 Dinwiddie justices v. Chesterfield 
 
 justices, 5 Call 556, 341 
 
 Dob v. Halsey, 16 Johns. 34, 60 
 
 Doe v. Penfield, 19 Johns. 308, 17 
 
 Donaghe v. Rankin, 4 Munf. 261, 590 
 Donaghe v. Roudeboush, 4 Munf. 
 
 251, 559 
 
 Doolittle v. Malcolm, 8 Leigh 608, 497, 8 
 Downes &c. x. Church, 13 Peters 
 
 205, 441 
 
 Downman v. Downman's ex'or, 
 
 1 Wash. 28, 83 
 
 Dox & Mercer v. Dey, 3 Wend. 356, 484 
 Drane v. Scholfield, 6 Leigh 
 
 386. 397, 516. 552 
 
 Drummond v. Crutcher, 2 Wash. 
 
 218, 419 
 
 Dugan n. The United States, 
 
 3 Wheat. 182, 423 
 
 Dulany v. Hodgkin, 5 Crunch 333, 516 
 Dumsday v. Hughes, 2 Scott 377, 187 
 Duvall v. Craig, 2 Wheat. 58, 484, 5, 7 
 Dykes & Co. . Woodhouse's adm'r, 
 
 3 Rand. 287, 447 
 
 E 
 Eales v. Dicker, 1 Mood, fy Malk. 
 
 324, 553, 4 
 
 Easley v. Craddock &c. 4 Rand. 
 
 423, 533 
 
 Easley x. Crockford, 10 Bingh. 243, 556 
 Eib v. Pindall's ex'x, 5 Leigh 109, 
 
 24.405 
 Ellis T. Chinnock, 7 Car. fy Payne 
 
 169, 529 
 
 Ellis x. Tbilman, 3 Call 3, 591 
 
 Ellis v. Turner's adm'r, 5 Munf. 196, 502 
 Ely &c. v. Ballantine, 7 Wend. 470, 18 
 Eppes's adm'rs v. Bagley's adm'r, 
 
 4 Munf. 466, 81 
 Eppes's ex'or x. Cole and wife, 4 Hen. 
 
 4, Munf. 161, 530 
 
 Eppes's heir v. Eppes's adm'r, 2 CaZZ 
 
 22, 476 
 
 Eubank and others v. Rail's ex'or, 
 
 4 Leigh 308, 335 
 
 Evans v. Gee, 11 Peters 80, 423, 7 
 
 Evans v. Smith, 1 WasA. 72, 407 
 
 Exon x. Russell, 4 M. 4- S. 503, 553 
 
 F 
 
 Fairfax r. Lewis, 2 Band. 35, 482, 4 
 Farleigh &c. x. Briant &c. 3 M. fy 
 
 .839, 418 
 
 Farmers bank x. Clarke, 4 Leigh 
 
 609, 10, 446
 
 Ivi 
 
 CASES CITED. 
 
 Farmers bank v. M. A. Society &c. 
 
 4 Leigh 69, 283 
 
 Farmers bank . Vanmeter, 4 Rand. 
 
 553, 435 
 
 Faulkner v. Anderson, Gilm. 221, 
 
 555. 557. 590 
 Faulkner's adm'x v. Harwood, 
 
 4 Rand. 245, 560 
 
 Fenton v. Emblers, 1 W. El. 353. 
 
 3 Burr. 1278, 550 
 Ferguson v. Highley, 2 Va. Cas. 255, 146 
 Ferguson v. Mitchell, 2 Cro. fy M. 
 
 687. Tyrwh. fy Gr. 179, 500 
 
 Field v. Cocke, Barradall's MS. rep. 
 
 173, 572 
 
 Fielder v. Starkin, 1 H. El. 17, 529 
 
 Fleming's ex'or v. Dunlop &c. 
 
 4 Leigh 338, 266 
 Foster &c. v. Charles, 6 Bingh. 396, 583 
 Fowler v. Sharp &c. 15 Johns. 323, 81 
 Fox v. Keeling, 2 Ad. fy Ellis 670, 481 
 Fox and Vowles v. Mountjoy ex'or 
 
 of Edwards, 6 Munf. 36, " 473 
 
 Free v. Burgoyne, 2 Bligh. JV. S. 65, 347 
 French and Brown v. The Common- 
 wealth, 5 Leigh 512, 328, 9. 365 
 Fry. v. Evans, 8 Wend. 530, 406 
 
 G 
 Gardner's adm'r v. Vidal, 6 Rand. 
 
 107, 80 
 
 Garland v. Bugg, 5 Munf. 166, 240 
 
 Garland . Davidson, 3 Munf. 189, 415 
 Garland t. Richesou, 4 Rand. 266, 421 
 Geill a. Jeremy &c. 1 Mood. & JtfaMc. 
 
 61, 432 
 
 Gibb v. Mather &c. 21 Eng. com. 
 
 law rep. 277, 432 
 
 Gibbs &c. ex'ors of Edwards v. 
 
 Southam, 5 Barn, fy Ores. 911, 408 
 Gill -e. Corbett &c. 3 Barn. </ Cress. 
 
 466, 566 
 
 Gilliat v. Lynch, 2 Leigh 503, 423 
 
 Goodall 0. Stuart, 2 Here. 4" Jtfwre/. 
 
 105, 517, 19 
 
 Gordon v. Frazier &c. 2 JFasA. 134, 378 
 Gordon &c. v. Brown's ex'or, 3 Hen. 
 
 fy Munf. 219, 410, 18 
 
 Gordon &c. v. Little, 8 Serg. fy 
 
 Rawle 536, 7, 73 
 
 Graham and Scott v. Graham and 
 
 Lane, 4 Munf. 205, 84 
 
 Grainger v. Hill &c. 4 Bingh. JV. C. 
 
 212, 592 
 
 Gray and Scott v. Campbell, 3 Munf. 
 
 251, 473 
 
 Gray &c. v. Scott &c. 4 Barn. $ 
 
 Cress. 103, 530 
 
 Grays v. Turnpike company, 4 Rand. 
 
 579, 404 
 
 Green 0. Reynolds, 2 JoAns. 207, 482 
 Green v. Watkins, 6 Wheat. 260, 
 Greenhow v. Barton, 1 Munf. 590, 28? 
 Greenhow t>. 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. </ S. 65, 554 
 Kite v. Long, 6 Rand. 457, 559 
 
 Hoge v. Trigg, 4 Jtfwre/. 150, 577 
 
 Holland v. Bird &c. 10 Bingh. 15, 574 
 Holliday and wife v. Littlepage, 
 
 2 Munf. 539, 562 
 
 Hollingsworth v. Milton, 8 Leigh 50, 444 
 Holt v. Ward, 2 Sir. 938, 520 
 
 Hooe r. Wilson, 5 Call 61, 423 
 
 Hord's ex'x v. Dishman, 2 Hen. fy 
 
 Munf. 600, 65 
 
 Horrel v. M'Alexander, 3 Rand. 94, 496 
 Hortons &c. . Townes, 6 Leigh 58, 16 
 Hoskins v. Wright, 1 Hen. $ Munf. 
 
 377, 549 
 
 Hoyle v. Young, 1 Wash. 150, 590 
 
 Hughes v. Moore, 7 Crunch 190, 24 
 Humphreys v. Pratt, 5 Bligh's par, 
 
 cos. JV. S. 154, 575 
 
 Hunter v. Fairfax's devisee, 1 Munf. 
 
 238, 386 
 
 Hunter n. Jones, 6 Rand. 541 , 561 
 
 Hutson n. Lowry and Neville, 2 Va. 
 Cas. 42, 351
 
 CASES CITED. 
 
 Ivii 
 
 Isaacs and others, 5 Rand. 634, 594 
 
 Isom v. Johns, 2 Munf. 272, 552 
 
 J 
 
 Jackson x. Anderson, 4 Taunt. 24, 524 
 Jackson's adm'x x. Henderson &c. 
 
 3 Leigh 196, 402. 430 
 
 Jackson x. Kough, 1 Caines' rep. 251, 177 
 Jackson v. Richards, 2 Caines' rep. 
 
 343 429 
 
 Jackson x. Webster, 6 Munf. 462, 61. 91 
 James v. M'Cubbin, 2 Call 723, 558 
 
 Jarrett's adm'r v. Jarrett, 7 Leigh 93, 
 
 24.494 
 
 Jeffrey v. Bastard, 4 Ad. fy E. 823, 154 
 Jenkins x. Hurt's commissioners, 
 
 2 Rand. 446, 408 
 
 Johnson v. Garland, 9 Leicrh 149, 
 
 314, 15, 16 
 
 Johnson v. Hackley, 6 Munf. 448, 517 
 Johnson v. Wygant, 11 Wend. 48, 483 
 Johnson &c. v. Wendle &c. 3 Bingh. 
 
 Jf. C. 225, 566 
 
 Joliffe v. Higgins, 6 Munf. 3, 552 
 
 Jones v. Bright and others, 5 Bingh. 
 
 533, 530 
 
 Jones v. Murdaugh, 2 Leigh 449, 559 
 Jones v. Owen, 5 Ad. fy E. 222, 554 
 Jones and Ford v. Anderson &c. 
 
 7 Leigh 308, 302 
 
 K 
 
 Kane v. M. A. Society, 6 Cranch 192, 283 
 Kayser v. Disher, 9 Leigh 357, 60, 
 
 406.541 
 
 Kempr. Mundell&c.9Le^A12, 93.406 
 Kent v. Armistead, 4 Munf. 72, 562 
 
 The King v. The sheriff of Hertford- 
 shire, 1 Barn, fy Ad. 672, 352 
 Kirtley v. Deck &c. 2 Munf. 10, 591 
 Knowles &c. v. Mitchell &c. 
 
 13 East 249, 553 
 
 L 
 Lamb x. Harrison's adm'r &c. 
 
 2 Leio-A 525, 471 
 Lancefield v. Allen &c. 1 Bligk's 
 
 par. cas. JV. 5. 592, 406 
 
 Lane v. Harrison, 6 Munf. 573, 465 
 
 Lane x. Thelwell, 1 M . fy W. 140, 500 
 Larowe v. Harding's adm'r, 2 Va. 
 
 Cas. 203, 147 
 
 Leaper v. Tatton, 16 East 420, 553 
 
 Lease v. Box, 1 Wils. 121, 418 
 
 Lee v. Love & Co. 1 Call 497, 515 
 
 Lee v. Welch, 2 Str. 793, 501 
 
 Lee & Fitzhugh x. Chilton, 5 Jtfun/. 
 
 407, 264 
 
 Lenox &c. r. Roberts, 2 fP&eai. 373, 431 
 Lewis v. Adams &c. 6 Leigh 320, 469 
 Lewis T. Burr, 2 Caines' cas. 195, 429 
 Lewis r. Farrel, 1 Str. 114, 592 
 
 Lewis r. Long, 3 Munf. 136, 509 
 
 Lewis v. Weldon and others, 
 
 3 Rand. 71, 492,9 
 
 viii 
 
 Lindenberger &c. v. Beall, 6 Wheat. 
 
 104, 431 
 
 Lithgow v. Com. 2 Fa. Cas. 305, 404 
 Livingston v. Rogers, 1 Caines 's 
 
 rep. 584, 501 
 
 Lockridge v. Carlisle, 6 Rand. 20, 482 
 Lomax v. Picot, 2 Rand. 247, 423 
 
 Love t>. 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. 
 
 <b 
 
 defendant by his attorney, and prayed oyer of the writ of 
 capias ad respondendum issued in this cause, which being read to 
 him, the said defendant filed a plea to the jurisdiction (or, a 
 plea in suspension or, a plea in abatement) and a day is there- 
 upon given the plaintiff until the next rules, to reply to the said 
 plea; and the same day is given the said defendant there &c. 
 
 40. Entry at succeeding rule day, if plaintiff Jail to reply. 1 Rob. 
 
 Prac. 165. 262. 
 
 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, 
 and pay to the defendant five dollars according to law, besides 
 the costs by the defendant about his defence expended. 
 
 41. Demurrer to plea to the jurisdiction. 
 
 In &c. A. B. v. C. D. And the said A. B. as to the said 
 plea of the said C. D. by him above pleaded, saith, that the 
 said plea and the matters therein contained, in manner and 
 form as the same are therein pleaded and set forth, are not suf- 
 ficient in law to preclude this court from taking cognizance of the 
 action aforesaid, and that the said A. B. is not bound by the law 
 of the land to answer the sarjie. And this he is ready to verify. 
 Wherefore, for want of a sufficient plea in this behalf, the said 
 A. B. prays judgment &c. and that the said C. D. may answer 
 further. 
 
 42. Demurrer to plea in abatement. 
 
 Like the last, inserting, in lieu of the words in italics, these 
 words : " to quash the writ aforesaid of him the said A. -B." or 
 such other words as may be adapted to the prayer of judgment 
 in the plea in abatement. In the conclusion, the words " and 
 that his writ aforesaid may be adjudged good," will be intro- 
 duced before the words " and that the said C. D. may answer 
 further." 
 
 43. Replication to plea to the jurisdiction. 1 Rob. Prac. 19. 
 
 20. 160. 
 
 A. B. v. C. D. And the said A. B. saith, that notwithstand- 
 ing any thing by the said C. D. in his said plea alleged, this 
 court ought not to be precluded from taking cognizance of the 
 action aforesaid, because he says, that G. H. and the said C.
 
 Proceedings at rules. 23 
 
 D. were and are, by bond, jointly (or, jointly and severally) 
 bound for the payment of money, and the said G. H. when 
 the said writ issued from this court, resided in the said county 
 of H. and the said G. H. and C. D. have been prosecuted 
 in the said county of H. in this action, jointly upon the said 
 bond, and the said writ so issued from this court was served 
 on the said C. D. in the said county of H. he being found 
 therein. And this the said A. B. is ready to verify. Where- 
 fore he prays judgment, and that the said C. D. may answer 
 to the said declaration of him the said A. B. 
 
 44. Another replication. 
 
 because he says, that the cause of the said action arose 
 
 in the said county of H. wherein the said writ was issued 
 against the said C. D. And this the said A. B. is ready to 
 verify. Wherefore &c. (as last.) 
 
 45. Another. 
 
 because he says, that the said C. D. hath no fixed or 
 
 known residence in any county or corporation within this com- 
 monwealth, and he was found in the said county of H. and the 
 said writ was issued against and served upon him in that coun- 
 ty. And this &c. (as before.) 
 
 46. Entry of demurrer to plea, and joinder. 1 Rob. Prac. 165. 
 
 The plaintiff by his attorney this day filed a demurrer to the 
 defendant's plea, and the defendant joined in the said demurrer. 
 
 47. Entry of replication to plea, and rule to rejoin. 1 Rob. Prac. 
 
 165. 
 
 The plaintiff by his attorney this day filed his replication to 
 the defendant's plea, and a day is thereupon given the defen- 
 dant until the next rules, to rejoin ; and the same day is given 
 the said plaintiff there &c. 
 
 48. Entry of general rejoinder to replication, and issue joined. 
 
 1 Rob. Prac. 165. 
 
 This day came the defendant by his attorney, and the said 
 defendant, to the replication of the plaintiff, rejoins generally, 
 and puts himself upon the country; and the plaintiff likewise.
 
 24 Proceedings at rules. 
 
 49. Oyer of obligation and condition, and demurrer to declaration. 
 
 1 Rob. Prac. 159. 160. 
 
 In &c. (as in No. 28.) A. C. ads J. jP. K. 
 
 And the said A. C. by his attorney comes and defends 
 the wrong and injury, when &c. and craves oyer* of the 
 said supposed writing obligatory in the said declaration men- 
 tioned, and it is read to him in these words: " Know all men" 
 &c. (Here insert it.) He also craves oyer of the condition of 
 the said supposed writing obligatory, and it is read to him in 
 these words: "The condition of the above obligation" &c. 
 (Here insert the condition.) Which being read and heard, the 
 said A. C. says, that the said declaration and the matters therein 
 contained, in manner and form as the same are therein stated 
 and set forth, are not sufficient in law for the said J. F. K. to 
 have or maintain his aforesaid action thereof against him the 
 said A, C. and that he the said A. C. is not bound by the law 
 of the land to answer the same. And this he is ready to verify. 
 Wherefore, for want of a sufficient declaration in this behalf, 
 the said A. C. prays judgment, and that the said /. F. K. may 
 be barred from having or maintaining his aforesaid action there- 
 of agai lilt him &c. 
 
 * Where there is an endorsement upon the specialty, but the 
 endorsement is not under seal, see Eibv. PindalVs ex'x, 5 Leigh 
 109. As to the effect of taking oyer only of the contract men- 
 tioned in one count of the declaration, see Hughes v. Moore, 7 
 Cranch 190. In regard to the consequences resulting from ta- 
 king oyer of the bond where there is no demurrer to the declara- 
 tion, see Meredith's adm'x v. Duval, 1 Munf. 76. and Jarretl's 
 adm'rs v. Jarrett, 7 Leigh 93. And where the pleadings termi- 
 nate in a demurrer, and there is a material variance between 
 the bond alleged in the declaration and the bond shewn on oyer, 
 see Bennett's ex' or v. Loyd, 6 Leigh 316. See also the cases 
 cited in 1 Rob. Prac. 159. 160. 
 
 50. Oyer of obligation and condition, and demurrer to one of the 
 
 breaches assigned. 
 
 o 
 
 (As last, down to the words " which being read and heard ;" 
 then proceed as follows :) the said , as to the said sup- 
 posed breach of the said condition secondly above assigned, 
 says, that the said declaration of the said in that par- 
 ticular, and the matter in the same contained, are not sufficient 
 
 in law for the said to have and maintain his said action 
 
 thereof against him the said , and that, to the said decla-
 
 Proceedings at rules. 25 
 
 ration in that particular, he the said is under no neces- 
 
 sit}', nor is in any way bound by the law of the land to answer. 
 And this he is ready to verify. Wherefore, for want of a suffi- 
 cient declaration in that particular, he the said prays 
 
 judgment, and that the said may be barred from having 
 
 or maintaining his said action thereof against him &c. 
 
 51. Entry of declaration, defendant's appearance, oyer of specialty, 
 demurrer to declaration, and rule to join. 1 Rob. Prac. 159. 
 
 This day came the plaintiff by his attorney, and filed his de- 
 claration against the defendant: Whereupon came also the 
 defendant by his attorney, and prayed oyer of the writing obli- 
 gatory in the declaration mentioned, and of the condition there- 
 of, which being read to him, the said defendant filed a general 
 demurrer to the declaration, and a day is thereupon given the 
 plaintiff until the next rules, to join in the said demurrer; and 
 the same day is given the said defendant there &c. 
 
 52. E?itry at succeeding rule day, if plaintiff" fail to join in demur- 
 
 rer. 1 Rob. Prac. 165. 262. 
 
 The plaintiff having been ruled to join in the defendant's de- 
 murrer, and failing so to do, on the motion of the defendant 
 &c. (as in No. 40.)
 
 26 Security for costs. 
 
 CHAPTER III. 
 
 SECURITY 1 FOR COSTS. 
 
 1. Notice that security is required. 1 Rob. Prac. 178. 
 
 To mr. A. B. attorney for C. D. 
 
 Sir, 
 
 An action at law having been commenced against me, in the 
 circuit superior court of law and chancery for the county of H. 
 in the name of C. D. who resides out of Virginia", notice is 
 hereby given to you, as his attorney, that security is required 
 for payment of the costs and damages which may be awarded 
 to the defendant in the said action, and also of the fees which 
 will become due to the officers of the court. Given under my 
 hand this day of 1840. 
 
 2. Rule entered in court, in lieu of notice. 1 Rob. Prac. 178. 
 
 The defendant, by his attorney, alleging that the plaintiff re- 
 sides out of this commonwealth, on the motion of the said de- 
 fendant it is ordered that this suit be dismissed, unless security 
 for the payment of such costs and damages as may be awarded 
 to the defendant, and also of the fees which will become due to 
 the officers of this court, be given with the clerk within sixty 
 days from this time. 
 
 3. Bond, where security is given with the clerk. 1 Rob. Prac. 178. 
 
 Know all men by these presents that I, W. F. W. am held 
 and firmly bound unto J. P. in the sum of $ 200, to be paid 
 unto the said J. P. his executors, administrators or assigns ; for 
 which paj'tnent well and truly to be made, I bind myself, my 
 heirs, executors and administrators, firmly by these presents. 
 Sealed with my seal, and dated this day of . 
 
 The condition of the above obligation is such, that whereas, 
 in a suit in the circuit superior court of law and chancery for 
 the county of H. between J. H. plaintiff and J. P. defendant, 
 the defendant alleged that the plaintiff resided out of the com- 
 monwealth, and thereupon, to wit, on the 12th day of April last, 
 the court ordered that the suit should be dismissed, unless se-
 
 Security for costs. 27 
 
 curity for the payment of such costs and damages as might be 
 awarded to the defendant, and also of the fees which would 
 become due to the officers of the court, should be given with 
 the clerk within sixty days from that time : Now if the above 
 bound W. F. W. shall well and truly pay all such costs and 
 damages as may be awarded to the defendant in case the plain- 
 tiff shall be cast in the said suit, and if the said W. F. W. shall 
 also pay all the fees which will become due from the said plain- 
 tiff to the officers of the said court, then the above obligation is 
 to be void, otherwise it is to remain in full force. 
 
 4. Recognizance, where security is given in court. 1 Rob. Prac. 178. 
 
 A. B. of this county comes into court, and undertakes for the 
 plaintiff, that he shall satisfy and pay all such costs and da- 
 mages as may be awarded to the defendant, in case the plaintiff 
 shall be cast in this suit, and also that he the said plaintiff shall 
 satisfy and pay all the fees which will become due from him 
 to the officers of this court ; or that he the said A. B. will sa- 
 tisfy and pay those costs, damages and fees for him. 
 
 5. Suit dismissed for want of security, after sixty days notice. 
 I Rob. Prac. 178. 262. 
 
 The plaintiff not residing in this commonwealth, and notice 
 having been given to his attorney by the defendant, that secu- 
 rity is required for payment of the costs and damages which 
 may be awarded the defendant, and also of the fees which will 
 become due to the officers of the court, and such security not 
 having been given within sixty days after that notice, or at any 
 time since; on the motiori of the defendant by his attorney, it 
 is ordered that this suit be dismissed, and that the plaintiff pay 
 to the defendant his costs by him about his defence in this be- 
 half expended. 
 
 6. Suit dismissed for want of security, after rule requiring it. I Rob. 
 Prac. 178. 262. 
 
 The plaintiff not having given the security required by an 
 order made at the last term, for payment of the costs and da- 
 mages which may be awarded to the defendant, and also of 
 the fees which will become due to the officers of the court ; on 
 the motion of the defendant &c. (as in the last form.)
 
 28 Rule for bail, and exceptions to bail. 
 
 CHAPTER IV. 
 
 RULE FOR BAIL, AND EXCEPTIONS TO BAIL. 
 
 1. Order ruling defendant to give bail. 1 Rob. Prac. 241.* 
 
 Bail not having been required in this action, on the motion of 
 the plaintiff by his attorney, and for good cause shewn, the 
 court doth rule the defendant to give special bail. 
 
 * When an action has been brought of such a nature that the 
 plaintiff could not of right demand bail, and there has been no 
 direction by a judge or justice for bail to be taken, the court 
 may notwithstanding, under the act in 1 Rev. Code, ch. 128. 
 150. rule the defendant to give special bail. But before this 
 rule is made, good cause must be shewn ; and this can only be 
 done by affidavit, verifying the justice of the plaintiff's action, 
 and shewing probable cause to apprehend that the defendant 
 will depart from the jurisdiction of the court. Hawthorn v. 
 Hunter, 8 Leigh 411. 
 
 2. Exceptions to bail taken by an officer. 1 Rob. Prac. 241. 
 
 In the circuit superior court of law and chancery for the 
 county of Henrico and city of Richmond. 
 Between A. B. plaintiff and C. D. defendant. 
 
 The plaintiff excepts to the sufficiency of the bail taken by 
 the officer in whose custody the defendant was. Dated this 
 
 , attorney for the plaintiff. 
 
 3. Entry of such exceptions. 1 Rob. Prac. 241, 2. 
 
 The plaintiff, by his attorney, this day filed exceptions to the 
 sufficiency of the bail taken by the officer in whose custody the 
 defendant was.
 
 Rule for bail, and exceptions to bail. 29 
 
 4. Decision upon exceptions to bail taken by an officer. 1 Rob. 
 
 Prac. 241. 
 
 A. B. deputy for C. D. sheriff of this county, having, when 
 the defendant was in his custody, taken E. F. as special bail 
 for the said defendant, and the plaintiff having filed exceptions 
 to the sufficiency of the said bail ; the court after hearing the 
 evidence adduced before it, doth adjudge the said bail to have 
 been insufficient at the time of taking the same. 
 
 5. After officer is bound as bail, rule upon defendant to give other 
 
 special.bail. I Rob. Prac. 242. 
 
 The officer who took the bail in this cause being bound in 
 consequence of the bail being adjudged to have been insufficient 
 at the time of taking the same ; on the motion of the said offi- 
 cer, and for good cause shewn, the court doth rule the defen- 
 dant to give other special bail. 
 
 6. Entry of exceptions to bail taken by any other than an officer. 
 I Rob. Prac. 241, 2. 
 
 The plaintiff, by his attorney, here in court excepts to the 
 special bail taken in this cause by A. B. a justice of the peace 
 of the county of H. 
 
 7. Exceptions to bail taken by officer, for insufficiency happening after 
 
 recognizance taken. 1 Rob. Prac. 241, 2. 
 
 The plaintiff, by his attorney, here in court excepts to the 
 special bail taken by the officer in whose custody the defendant 
 was, for insufficiency happening after the recognizance was 
 taken. 
 
 8. Decision upon exceptions to bail in either of two last cases. 1 Rob. 
 
 Prac. 241, 2. 
 
 The court, upon consideration of the exceptions made to the 
 special bail in this cause, and after hearing evidence in relation 
 thereto, doth sustain the said exceptions, and rule the defendant 
 to give other special bail.
 
 30 Surrender of defendant by his bail. 
 
 CHAPTER V. 
 
 SURRENDER OF DEFENDANT BY HIS BAIL. 
 
 1. Bail piece. 
 
 See 1 Rob. Prac. 199. 1 R. C. 1819, p. 501. 52. Sess. 
 Acts 1825-6, p. 23. 7. 
 
 2. Entry of surrender in court in pending suit. 1 Rob. Prac. 
 
 181, 2, 3. 
 
 E. F. special bail for the defendant, for the purpose of dis- 
 charging himself from his recognizance and undertaking as 
 such, this day in open court surrendered the said defendant ; 
 and the said E. F. from his said recognizance and undertaking 
 is therefore now discharged. And the defendant is committed 
 to the custody of the sheriff of this county. 
 Or, if the action be detinue : 
 
 E. F. special bail for the defendant, for the purpose of dis- 
 charging himself, so far as he can, from his recognizance and 
 undertaking as such, this day in open court surrendered the 
 said defendant ; whereby the said E. F. is now discharged from 
 the payment of the alternative value of the property in contro- 
 versy, and the costs and damages, but is not discharged from 
 the obligation to deliver the specific property. And the defen- 
 dant is thereupon committed to the custody of the sheriff of this 
 county. 
 
 3. Defendant discharged on giving other good special bail. 1 Rob. 
 
 Prac. 181, 2, 3. 
 
 A. B. of H. county, whose sufficiency is verified on oath to 
 the satisfaction of the court, comes into court, and undertakes 
 &c. (here enter the recognizance as in chapter I. No. 15.) 
 Whereupon it is ordered that the defendant be discharged from 
 custody. 
 
 4. Entry of surrender in court after judgment. 
 
 E. F. special bail for the defendant, against whom judgment 
 has been rendered in this suit, for the purpose of discharging
 
 Surrender of defendant by his bail. 31 
 
 himself, so far as he can, from his recognizance and underta- 
 king as such special bail, this day surrendered the said defendant 
 in open court. And on the prayer of the plaintiff", the said defen- 
 dant is committed to the custody of the sheriff of this county, charged 
 in execution upon the said judgment. 
 
 (Or, in lieu of the words in italics, say:) But the said defen- 
 dant is not committed to custody, the plaintiff's attorney not 
 desiring him to be charged in execution. 
 
 5. Entry of defendant's surrender of himself in court after judgment. 
 
 The defendant, against whom judgment has been rendered 
 in this suit, for the purpose of discharging his special bail, so 
 far as he can, from the recognizance and undertaking entered 
 into by the said special bail, this day surrendered himself in 
 open court. And on the prayer &c. Or: But &c. (as in the 
 last form.) 
 
 6. Receipt for defendant, when surrender is not in court. 1 Rob. 
 
 Prac. 183. 
 
 E. F. special bail for C. D. in an action pending* in the county 
 court of H. between A. B. plaintiff and the said C. D. and one 
 G. H. defendants,t this day surrendered to me the said C. D. 
 whose body 1 have received and have now in custody. 
 
 * Omit the word " pending," if there has been a judgment. 
 
 t Insert the words " wherein final judgment has been ren- 
 dered for the plaintiff," if such be the state of the case. 
 
 Or: 
 
 E. F. special bail for C. D. in an action in the county court 
 of H. between A. B. plaintiff and the said C. D. and one G. 
 H. defendants, has this day delivered to me a certified copy of 
 his recognizance, and a certificate annexed thereto from the 
 clerk of the said court, stating the situation of the said action, 
 and specifying that final judgment hath been rendered therein ; 
 and the said E. F. in discharge of his recognizance, has com- 
 mitted to my keeping the body of the said C. D. who was pre- 
 viously and is now in my custody under the following process, 
 to wit: (here describe it plainly.) Given under my hand this 
 day of . 
 
 7. Notice of surrender out of court. I Rob. Prac. 183. 
 
 To mr. A. B. Sir, Being special bail for C. D. in an action 
 in the county court of H. between A. B. plaintiff and the said
 
 32 Surrender of defendant oy his bail. 
 
 C. D. and one G. H. defendants, wherein final judgment has 
 been rendered for the plaintiff, and desiring to be discharged 
 from my recognizance, I have this day surrendered the said 
 C. 1). to the sheriff of the county of H. of which you will 
 please take notice. Given under my hand this day 
 
 Or: 
 
 To mr. A. B. Sir, Being special bail for C. D. in an ac- 
 tion in the county court of H. between A. B. plaintiff and the 
 said C. D. and one G. H. defendants, which C. D. is now im- 
 prisoned in the jail of the county of C. by virtue of legal pro- 
 cess, and desiring to surrender the said C. D. in discharge of 
 my recognizance, 1 have obtained a certified copy of the said 
 recognizance, and a certificate annexed thereto from the clerk of 
 the said court, stating the situation of the said action, and spe- 
 cifying that final judgment hath been rendered therein ; and I 
 have delivered the said certified copy of the recognizance, and 
 the said certificate of the clerk, to the sheriff in whose custody 
 the said C. D. is, and obtained his receipt. You will therefore 
 take notice that the said C. D. is now committed to the keeping 
 of the sheriff of the said county of C. in discharge of my said 
 
 recognizance as special bail. Given under my hand this 
 
 day of . 
 
 30. Notice of motion for exoneretur. I Rob. Prac. 184. 
 
 To mr. A. B. 
 
 Sir, 
 
 Take notice that on the first day of the next quarterly term 
 of the county court of H. I shall apply to the said court to enter 
 an exoneretur discharging me forever from my recognizance as 
 special bail for C. D. in an action in the said court between A. 
 B. plaintiff and the said C. D. and one G. H. defendants, where- 
 in final judgment has been rendered for the plaintiff. Given 
 under my hand this day of . 
 
 31. Exoneretur entered. I Rob. Prac. 184. 
 
 It appearing that E. F. special bail for the defendant C. D. 
 has surrendered his principal to the custody of the sheriff of 
 this county (or, has committed his principal to the keeping of 
 the sheriff of the county of C. in whose custody the said prin- 
 cipal was before) and the said E. F. exhibiting before the court 
 satisfactory evidence that in due time thereafter he gave to the 
 plaintiff such notice of the surrender (or commitment) as is re- 
 quired, and the plaintiff having had reasonable notice of the said
 
 Surrender of defendant by his bail. 33 
 
 . F.'s application for an exoneretur, the court is of opinion that 
 the said E. F. is now entitled to an exoneretur, and the same is 
 entered accordingly. Wherefore the said E. F. is discharged 
 from his recognizance, in the same manner as if he had surren- 
 dered his principal in court. 
 
 32. Writing charging defendant in execution. 1 Rob. Prac. 185. 
 
 To the sheriff of the county of H. Sir, E. F. special bail 
 for C. D. in an action in the county court of H. between A. B. 
 plaintiff and the said C. D. and one Gr. H. defendants (wherein 
 final judgment has been rendered for the plaintiff) having given 
 me notice that he has surrendered the said C. D. to you, / do 
 now, by this writing, charge the said C. D. in execution. Given 
 under my hand this day of . 
 
 33. Consent by creditor to discharge of principal. 1 Rob. Prac. 
 
 185. 
 
 (As last, except line in italics, in lieu of which proceed as fol- 
 lows :) And it not being intended by me to charge the said C. D. 
 in execution, I consent that he may be discharged without being 
 kept in custody twenty days.
 
 34 Death or cliange of parties. 
 
 CHAPTER VL 
 
 DEATH OR CHANGE OF PARTIES. 
 
 1. Suggestion of plaintiff's death. 1 Rob. Prac. 246. 
 
 The plaintiff having died, it is ordered that his death be sug- 
 gested upon the record. 
 
 2. Discontinuance of suit at second term after suggestion of plain- 
 
 tiff's death. 1 Rob. Prac. 246. 
 
 The representative of the plaintiff not having appeared and 
 prayed for a scire facias, and this being the second term since 
 the death of the said plaintiff was suggested upon the record, 
 it is ordered that this action be discontinued. 
 
 3. Order awarding scire facias to revive in the name of or against 
 
 a representative. 1 Rob. Prac. 187. 
 
 The plaintiff being dead, on the motion of S. P. executor of 
 his last will and testament, by his attorney, a writ of scire facias 
 is awarded him to revive this action in the name of the said 
 executor against the defendant, returnable here at the next 
 term. 
 
 Or: The defendant being dead, on the motion of the plaintiff 
 by his attorney, a writ of scire facias is awarded him to revive 
 this action against A. B. administrator of the estate of the said 
 defendant, returnable here at the next term. 
 
 4. Scire facias to revive in the name of the representative of a party. 
 
 1 Rob. Prac. 187. 
 
 The commonwealth &c. Whereas an action of has 
 
 been depending in our circuit superior court of law and chan- 
 cery for the county of H. between F. H. plaintiff and J. H. 
 defendant, and before judgment was given or verdict rendered 
 
 therein, the said died, and A. B. his executor (or, A. B. 
 
 his administrator or, A. B. sheriff of the county of H. who as 
 such is administrator, or administrator with the will annexed, of 
 the said F. H.) has applied for a scire facias against the defen-
 
 Death or change of parties. 35 
 
 dant : Therefore we command you that you make known to the 
 said J. H. that he be before the judge of our said court at &c. 
 on the first day of the next term, to shew cause, if any he can, 
 why the said action should not be proceeded in to a final judg- 
 ment. And have then there this writ. Witness &c. 
 
 If it be the defendant who has died, and the action is any other 
 than detinue, proceed as above to the word " died," and then as fol- 
 lows : And the plaintiff has applied for a scire facias against 
 A. B. executor (or, administrator) of the said J. H. (or, against 
 A. B. sheriff of the county of H. who as such is administrator, 
 or, administrator with the will annexed, of the said J. H.) : 
 Therefore we command you that you make known to the said 
 A. B. executor (or administrator) as aforesaid (or, A. B. sheriff 
 and administrator as aforesaid) that he be &c. (as above.) 
 
 If the action be detinue, and the defendant has died, proceed as 
 before to the word " died," and then -as follows : And now on behalf 
 of the said F. H. we are informed, that since the death of the 
 said .7. H. the property for which the said action was brought 
 has come to the hands* of A. B. executor (or administrator) of 
 the said J. H. (or, to the hands of A. B. sheriff &c.) And the 
 said F. H. has applied for a scire facias, according to the form 
 of the statute : Therefore &c. (as last.) 
 
 * The scire facias ought regularly to set forth, by way of sug- 
 gestion at least, that the property has come to the hands of the 
 representative since the decedent's death. For without such 
 allegation, the case does not appear to be one in which an ori- 
 ginal action could be maintained against the representative. 
 But if the scire facias be defective in this respect, the plaintiff 
 may file a declaration containing the necessary averments, or 
 he may have the writ quashed, and another sued out with the 
 proper suggestion therein. Allen's ex'or v. Harlan's adm'r, 6 
 Leigh 42. Catlett's ex'or v. Russell, 6 Leigh 344. 
 
 5. Scire facias to revive suit commenced by an executor or adminis- 
 trator, in the name of administrator de bonis non. 1 Rob. Prac. 
 
 188. 
 
 Whereas an action of has been pending in &c. be- 
 tween A. B. executor of the last will and testament (or, admi- 
 nistrator of the personal estate) of C. D. plaintiff, and E. F. de- 
 fendant, and before judgment was given or verdict rendered 
 therein, the said A. B. died, and certificate has been granted 
 G. H. for obtaining letters of administration on the estate of the 
 said C. D. unadministered by A. B. and the action aforesaid 
 having been brought upon a contract made (or, for a cause of
 
 36 Death or change of parties. 
 
 action which accrued) in the lifetime of the said C. D. he the 
 said G. H. administrator de bonis non as aforesaid, has applied 
 for a scire facias to revive the same : Therefore &c. 
 
 6. Scire facias to revive suit brought by a curator, in the name of 
 executor or administrator. Sess. Acts 1839, p. 42. ch. 66. ^ 1. 
 
 Whereas an action of has been pending in &c. be- 
 tween A. B. curator of the estate of C. D. deceased, plaintiff, 
 and E. F. defendant, and before judgment was given or verdict 
 rendered therein, certificate was granted G. H. for obtaining a 
 probat of the will of the said C. D. (or, for obtaining letters of 
 administration on the estate of the said C. D.) and the said G. 
 H. has applied for a. scire facias to revive the said action in his 
 name as executor (or administrator) as aforesaid : Therefore &c. 
 
 7. Scire facias to revive against committee a suit depending against 
 
 idiot or lunatic. 1 Rob. Prac. 247. 
 
 Whereas an action of has been depending in &c. be- 
 tween &c. and before judgment was rendered therein, the said 
 C. D. became a lunatic, and E. F. was appointed his commit- 
 tee ; and the plaintiff has applied for a scire facias against the 
 said committee : Therefore we command you that you make 
 known to the said E. F. committee as aforesaid, that he be &c. 
 
 8. Scire facias to revive against an idiot or lunatic a suit depending 
 
 against his committee. 1 Rob. Prac. 247. 
 
 Whereas an action of has been depending in &c. be- 
 tween A. B. plaintiff, and E. F. committee of C. D. a lunatic, 
 defendant, and before judgment was rendered therein, the said 
 C. D. was discharged from his committee; and the plaintiff has 
 applied for a scire facias against the said C. D. Therefore we 
 command you that you make known to the said C. D. that he 
 be &c. 
 
 9. Sheriff's return upon scire facias against a party in the common- 
 
 wealth. 1 Rob. Prac. 189. 
 
 When the defendant is found, a return of " executed" is suf- 
 ficient. 
 
 (When the defendant cannot be found, the return may be as 
 follows :) Not finding the defendant, I left a copy of this writ at 
 
 his usual place of abode, on the day of , with A. 
 
 B.* a free white person above the age of sixteen years, who
 
 Death or change of parties. 37 
 
 was found there, and is one of the family of the defendant ; and 
 I informed the said A. B. of the purport thereof. 
 
 Or: I left a copy of this writ, on the day of , 
 
 at the defendant's dwelling house, in a public place, to wit, in 
 his dining room, on the mantel-piece ; he the said defendant 
 being from home, and no free white person of his family being 
 found there, capable of receiving a notice for him. 
 
 * If the notice was left with the wife of the defendant, use 
 (after A. B.) the words " his wife." 
 
 10. Order awarding scire facias against defendant who is out of the 
 
 commonwealth. 1 Rob. Prac. 189, 90. 
 
 The plaintiff being dead, on the motion of S. P. executor of 
 his last will and testament, by his attorney, a writ of scire facias 
 is awarded him to revive this suit in the name of the said exe- 
 cutor against the defendant, returnable here at the next term. 
 And it appearing by an affidavit filed with the clerk, that the 
 defendant is out of the commonwealth, the said writ may be 
 served on the defendant's agent or attorney in fact, if any he 
 have within the commonwealth ; or, if he have no such agent 
 or attorney known, by publication for four weeks successively, 
 previous to the return day of the writ, in some newspaper pub- 
 lished in this commonwealth. 
 
 11. Scire facias against defendant who is out of the commonwealth. 
 
 1 Rob. Prac. 189, 90. 
 
 The commonwealth &c. Whereas an action of has 
 
 been depending in &c. between &c. and before judgment was 
 
 given or verdict rendered therein, the said died, and 
 
 his executor has applied for a scire facias against the de- 
 fendant ; and it appears by an affidavit filed with the clerk of 
 our said court, that the defendant is out of. the commonwealth, 
 by reason whereof, according to the statute in such case made, 
 the scire facias may be served on the defendant's agent or attor- 
 ney in fact, if any he have within the commonwealth, or, if he 
 have no such agent or attorney known, by publication for four 
 weeks successively, previous to the return day of the writ, in 
 some newspaper published in this commonwealth : Therefore 
 we command you that you make known, according to the sta- 
 tute aforesaid, that the said , the defendant aforesaid, be 
 
 before the judge of our said court, at &c. on &c. to shew &c. 
 (as in No. 4.)
 
 38 Death or change of parties. 
 
 12. Return of service upon agent. 1 Rob. Prac. 189. 
 
 A. B. being the defendant's agent (or, attorney in fact) within 
 this commonwealth, I have served this writ on the said A. B. 
 
 13. Publication. 1 Rob. Prac. 189, 90. 
 
 To mr. C. D. Sir, As you have not any known agent or 
 attorney in fact within this commonwealth, I therefore cause 
 publication to be made of the following writ, for the time and 
 in the manner required by the statute in such case. Given un- 
 der my hand this day of . 
 
 deputy for sheriff of H. county. 
 
 14. Return of service by publication. 1 Rob. Prac. 189, 90. 
 
 The within named C. D. having no known agent or attorney 
 in fact within this commonwealth, I have caused publication of 
 this writ to be made for four weeks successively, previous to the 
 return day thereof, in the Richmond Enquirer, a newspaper 
 printed within the commonwealth. 
 
 15. Order reviving suit against personal representative by consent. 
 
 Greenlee's adm'rv. Bailey, 9 Leigh 526. 
 
 The defendant J. M. having died, by consent as well of the 
 plaintiff as of /. A. administrator of the estate of the said S. 
 G. unadministered by the said J. M. it is ordered that this ac- 
 tion stand revived against him the said J. A. administrator as 
 aforesaid. 
 
 16. Entry upon scire facias against personal representative being 
 
 returned executed. * 1 Rob. Prac. 245. 
 
 The scire facias issued in this cause being returned executed 
 on the said E. F. it is ordered that the suit be proceeded in 
 against him as executor (or, administrator) of the said C. D. 
 
 17. Entry after return of a scire facias against personal representa- 
 
 tive, when he pleads de novo. 1 Rob. Prac. 245. 
 
 The scire facias issued in this cause against E. F. as executor 
 (or, administrator) of the said C. D. being returned executed, 
 this day came the said E. F. by his attorney, and on his motion 
 he is allowed to plead de novo to the plaintiff's action : where- 
 upon he pleaded &c. (or, he filed &c.)
 
 Death or change of parties. 39 
 
 18. Order substituting an administrator de bonis non as plaintiff in 
 the place of an executor whose powers have been revoked. 1 Rob. 
 Prac. 247. 
 
 The power of the said A. B. as executor (or, administrator) 
 having been revoked and annulled, and administration de bonis 
 non upon the estate of the said C. D. having been granted to E. 
 F. as appears by a copy of an order of the county court of H. 
 now here produced, on the motion of the said E. F. it is ordered 
 that this suit be hereafter conducted in his name as administra- 
 tor de bonis non aforesaid. 
 
 1 9. Order substituting an administrator be bonis non as defendant in 
 the place of an executor whose powers have been revoked. 1 Rob. 
 Prac. 247. 
 
 The power &c. as appears &c. on the motion of the plaintiff, 
 it is ordered that the said E. F. administrator de bonis non as 
 aforesaid, be substituted as defendant in this suit. 
 
 20. Entry where one of two plaintiffs dies. 1 Rob. Prac. 188. 246* 
 
 The plaintiff A. B. having died, and the cause of action sur- 
 viving to the surviving plaintiff, it is ordered that this action 
 proceed against the defendants at the suit of the said surviving 
 plaintiff. 
 
 21. Entry where one of two defendants dies. 1 Rob. Prac. 188. 246- 
 
 The defendant C. D. having died, and the cause of action sur- 
 viving against the surviving defendant, it is ordered that this 
 action proceed against him. 
 
 22. Entry where a feme plaintiff marries. 1 Rob. Prac. 248. 
 
 Satisfactory information being given of the marriage of the 
 plaintiff to C. D. it is ordered that the same be suggested upon- 
 the record, and that this suit be henceforth proceeded in in the 
 names of the said C. D. and the said A. his wife.
 
 40 Removal of causes. 
 
 CHAPTER VII. 
 
 REMOVAL OF CAUSES. 
 
 1. Writ of habeas corpus cum causa. 1 Rob. Prac. 190. 
 
 The commonwealth &c. Whereas it has been certified that 
 A. B. has been committed in a civil action to the jail of the city 
 of R. and is now actually in jail, for a matter cognizable in the 
 circuit superior court of law and chancery for the county of H. 
 and city of R. We therefore, upon the application of the said 
 A. B. command you that the body of the said A. B. by whatso- 
 ever name he is called, together with the day and cause of his 
 caption and detention, you have before the judge of our said 
 circuit superior court, at &c. on the first day of the next term, 
 to do and receive what our said judge then and there of him in 
 this part shall consider. And have &c. 
 
 2. Return upon habeas corpus cum causa. 
 
 The within named A. B. was taken into my custody on the 
 day of , by virtue of the following process, to wit: 
 
 (Here describe the same.) And he is detained for no other 
 cause. 
 
 3. Order upon return of habeas corpus cum causa. 1 Rob. Prac. 
 
 190, 91, 92. 
 
 The clerk having, upon the application of A. B. and a certifi- 
 cate of his being actually in the jail of the city of R. issued a 
 writ of habeas corpus cum causa, directed to the Serjeant of the 
 said city, returnable on this day, the said serjeant this day 
 brought before the court the body of the said A. B. and made 
 return upon the said writ, that the said A. B. was taken into his 
 
 custody on the day of , by virtue of the following 
 
 process, to wit (here describe the same) and that the said A. B. 
 is detained for no other cause. Whereupon, it appearing that 
 no issue or demurrer has been joined in the cause wherein the 
 said A. B. has been committed, the court doth order that the 
 said cause be removed into this court, and that the body of the 
 said A. B. be now committed to the jail of this court. And the
 
 Removal of causes. 41 
 
 clerk is directed to deliver a copy of this order to the said ser- 
 jeant, to be by him returned to the court from which the before 
 mentioned process issued. 
 
 4. Cerliorari awarded to remove a cause originally cognizable in a 
 
 circuit court. I Rob. Prac. 192. 
 
 This day came J. H. E. by his attorney, and moved the court 
 for a writ of certiorari to remove hither an action of trespass on 
 the case, depending in the court of hustings for the city of R. be- 
 tween the said J. H. E. plaintiff and H. L. C. defendant ; and. 
 the said H. L. C. came also by his attorney, and acknowledged to 
 have received legal notice of this motion. Whereupon, it appearing 
 that the cause of action in the said suit was originally cogniza- 
 ble in this court, a writ of certiorari is awarded agreeably to the 
 motion of the said J. H. E. returnable here &c. 
 
 If the adverse party does not appear and acknowledge notice, then, 
 in lieu of the words in italics, insert the following: and it being 
 shewn to the court that ten days previous notice of this motion 
 has been given in writing to the said H. L. C. he was solemnly 
 called, but came not. 
 
 5. Certiorari awarded to remove a cause, where justice cannot be done 
 
 in county court. 1 Rob. Prac. 192. 
 
 This day &c. (as before.) Whereupon, it appearing to the 
 court that justice cannot be done in the said cause, and that it 
 has come to the knowledge of the said J. H. E. after issue joined 
 (or, writ of enquiry awarded) in the said suit, a writ of certiorari 
 is awarded &c. (as before.) 
 
 6. Certiorari awarded to remove a cause, for unreasonable neglect or 
 
 delay. 1 Rob. Prac. 192. 
 
 This day came A. B. by his attorney, and presented a peti- 
 tion for a writ of certiorari to remove hither an action of , 
 
 depending in &c. between the said A. JB. plaintiff and C. D. 
 defendant, which petition is verified by oath ; and the said &c. 
 (or, it being shewn &c.) Whereupon, it appearing that the said 
 county court has unreasonably neglected or delayed to decide 
 the said cause, a writ of certiorari is awarded &c. (as before.) 
 
 7. Writ of certiorari to remove a cause. 1 Rob. Prac. 192. 
 
 The commonwealth of Virginia to the justices of our court of 
 G. county, greeting : For certain causes moved before the judge 
 6
 
 42 Removal of causes. 
 
 of our circuit superior court of law and chancery for &c. we 
 command you and every of you, that you or one of you, under 
 your or one of your seals, the record and proceedings in a cer- 
 tain action of between J. H. plaintiff and R. A. defendant, 
 
 with all things touching the same, as fully and wholly as the 
 same are before you now residing, to the judge of our said cir- 
 cuit superior court, at &c. on the first day of the next term, do 
 send and certify enclosed, together with this writ. Witness &c. 
 
 8. Order made in county court upon production of certiorari. 
 
 The plaintiffs (or, defendants) by their attorney, produced a 
 writ of certiorari) commanding the justices of this court, or any 
 one of them, to send and certify the record and proceedings in 
 this suit, with all things touching the same, to the judge of the 
 circuit superior court of law and chancery for this county, on 
 the first day of the next term : Whereupon it is ordered that the 
 same be certified accordingly. 
 
 9. Order to docket cause upon return of certiorari. 
 
 The writ of certiorari awarded on tuesday last, to remove hi- 
 ther an action of debt depending in the court of H. county, 
 wherein W. M. is plaintiff and C. L. is defendant, was this day 
 returned ; and J. H. M. a justice of the peace for the said county, 
 having, in pursuance of the said writ, certified and sent annexed 
 thereto a transcript of the record and proceedings in the said 
 action, with all things touching the same, as fully and wholly as 
 the same before the justices of the said county are residing : It 
 is thereupon ordered that the said cause be placed upon the 
 docket of this court, for a trial to be had therein. 
 
 10. Procedendo ad judicium. 
 
 The commonwealth of Virginia to the justices of our court of 
 H. county, greeting: Because that, in rendering judgment on a 
 certain writ of scire facias sued out of the said county court by 
 W. R. against D. R. &c. long delay hath intervened, to the great 
 damage of the said W. R. as from his complaint our judge of 
 our circuit superior court of law and chancery for our said 
 county has been informed : We command you, and every of 
 you, that on the said writ of scire facias, with all the celerity 
 you can, you proceed to judgment according to law, any thing 
 to the contrary notwithstanding. Witness J. R. clerk &c.
 
 Removal of causes. 43 
 
 11. Order changing venue. 1 Rob. Prac. 193. Boswell v. Flock- 
 heart, 8 Leigh 364. 
 
 On the motion of the defendant by his attorney, and for good 
 cause shewn to the court, it is ordered that the venue in this 
 cause be changed to the circuit superior court of law and chan- 
 cery for the county of H. 
 
 12. Order removing cause in consequence of judge's situation* 
 1 Rob. Prac. 193. Boswell v. FlocJeheart, 8 Leigh 364. 
 
 The judge of this court being interested in this cause (or, re- 
 lated to one of the parties or, so situated as to render it impro- 
 per, in his judgment, for him to preside at the trial of this cause) 
 it is ordered that the same be removed to the circuit superior 
 court of law and chancery for the county of C. that being one 
 of the courts within the fifth, an adjoining circuit, and the most 
 convenient court in that circuit. 
 
 13. Petition for removal of a cause from state court to court of 
 
 United States. 1 Rob. Prac. 237. 
 
 To the circuit superior court of law and chancery for the 
 county of Henrico and city of Richmond. 
 
 The petition of C. D. respectfully represents, that he is an 
 alien, and a suit has been commenced in this court against him 
 
 by A. B. (or, that he is a citizen of the state of , and a suit 
 
 has been commenced against him in this court by A. B. a citizen 
 of this state) and the matter in dispute exceeds the sum (or, va- 
 lue) of five hundred dollars, exclusive of costs. He now prays 
 that the said cause may be removed for trial into the next circuit 
 court of the United Stales for the eastern district of Virginia, and 
 offers to give good and sufficient surety for his entering in the 
 said court, on the first day of its next session, copies of the pro- 
 cess against him, and also for his there appearing, and entering 
 special bail in the cause.* 
 
 * The words in italics are to be omitted, unless special bail was ori- 
 ginally requisite in the cause. 
 
 14. Bond given upon removal of a cause from state court to court of 
 United States. 1 Rob. Prac. 237. 
 
 Know all men &c. The condition of the above obligation is 
 such, that whereas a suit has been commenced in the circuit su- 
 perior court of law and chancery for the county of Henrico and
 
 44 Removal of causes. 
 
 city of Richmond in the state of Virginia, by A. B. against C. 
 D. the matter in dispute in which suit exceeds the sum (or, va- 
 lue) of five hundred dollars, exclusive of costs ; and the said C. 
 D. at the time of entering his appearance in the said court, filed 
 a petition setting forth that he was a citizen of the state of Ohio, 
 and the said A. B. a citizen of the said state of Virginia, and 
 praying for the removal of the cause for trial into the next cir- 
 cuit court of the United States for the eastern district of Virgi- 
 nia: Now if the said C. D. shall enter in the said circuit court 
 of the United States, on the first day of its next session, copies 
 of trie process against him, and shall there appear and enter special 
 bail in the said cause* then the above obligation is to be void, 
 otherwise to remain in full force. 
 
 * The words in italics are to be omitted, unless special bail was ori- 
 ginally requisite in the cause. 
 
 15. Order for the removal of a cause from a state court to a court of 
 the United States. 1 Rob. Prac. 237. 
 
 This day came the defendant by his attorney, and filed a pe- 
 tition for the removal of this cause for trial into the next circuit 
 court of the United States to be held for the eastern district of 
 Virginia, which petition sets forth that the defendant is a citizen 
 of the state of Ohio, and the plaintiff a citizen of this state, and 
 that the matter in dispute exceeds the sum (or, value) of five 
 hundred dollars, exclusive of costs. Whereupon, it appearing 
 to the satisfaction of the court that the facts set forth in the said 
 petition as to the citizenship of the parties and the matter in dis- 
 pute are true, and E. F. having executed a bond, with G. H. as 
 his surety, for entering in the said circuit court of the United 
 States, on the first day of its next session, copies of the process 
 against him, and also for his there appearing, and entering special 
 bail in the cause,* the court, deeming the surety good and suffi- 
 cient, doth accept the same, and will proceed no farther in the 
 cause. 
 
 * The words in italics will of course be omitted, where the bond does 
 not contain this provision.
 
 Depositions of witnesses. 45 
 
 CHAPTER VIII. 
 
 DEPOSITIONS OF WITNESSES. 
 
 1. Affidavit that witness is unable to attend court. 1 Rob. Prac. 194. 
 
 A. B. maketh oalh and saith, that E. F. is a witness for him 
 in an action in the circuit superior court of law and chancery 
 for the county of H. wherein he is plaintiff and C. D. is defen- 
 dant, and that the said witness is about to depart out of the li- 
 mits of this commonwealth. Or and that the said witness, he 
 verily believes, by reason of his age (or, sickness) will be una- 
 ble to attend the said court. 
 
 A. B. 
 
 Sworn to by the said A. B this day of , in open 
 
 court. 
 
 J. R. clerk. 
 
 Or : Sworn to this day of by the said A. B. be- 
 fore the clerk of the said court, in his office. 
 
 J. R. clerk. 
 
 Or: Sworn to this day of by the said A. B. be- 
 fore me, a justice of the peace for the county of H. 
 
 G. H. 
 
 2. Affidavit where there is a single witness to a material point. 
 I Rob. Prac. 194. 
 
 After describing the suit, proceed as follows: and that he verily 
 believes his claim,* or a material point thereof, depends solely 
 on the said witness. 
 
 * If the witness be for the defendant, the suit will be described accord- 
 ingly, and the word defence used instead of claim. 
 
 3. Affidavit where witness resides out of the commonwealth. 1 Rob. 
 
 Prac. 194. 
 
 After describing the suit, proceed as follows : and that the said 
 
 witness resides out of this commonwealth, in the state of , 
 
 and is now in that state. 
 
 Or: and that the said witness resides in a foreign country, 
 to wit, at &c.
 
 46 Depositions of witnesses. 
 
 4. Order awarding commission to take depositions de bene esse. 
 
 On the motion of the plaintiffs by their attorney, commissions 
 are awarded them to examine and take the depositions of W. 
 M. &c. witnesses for them in this cause, de bene esse ; the said 
 plaintiffs giving the defendants reasonable notice of the times 
 and places of executing the said commissions. 
 
 5. Order awarding commission to take depositions in chief, of wit- 
 
 nesses residing in another state. 
 
 On &c. (as last) witnesses for him in this cause, residing in 
 
 the state of , which are to be read in evidence at the 
 
 trial thereof; the said plaintiff giving the defendant reasonable 
 notice of the times and places of executing the said commis- 
 sions. 
 
 Where the opposite party consents to it, the following words may 
 be added: And by consent of the defendant, the said commis- 
 sions may be directed to any two justices of the peace of the 
 said state, or a notary public thereof. 
 
 Or: And by consent of the defendant, the commission to exa- 
 mine and take the deposition of the said W. M. may be directed 
 to and executed by A. M. &c. gentlemen, or any three of them, 
 and the commission to examine and take the deposition of the 
 said N. G. may be directed to and executed by W. C. &c. gen- 
 tlemen, or any three of them. 
 
 6. Commissions awarded both parties by consent, to take the deposi- 
 
 tions of their witnesses in the state generally, de bene esse. 
 
 By consent of the parties by their attorneys, commissions are 
 awarded them to examine and take the depositions of their wit- 
 nesses residing in this state, de bene esse ; giving each other rea- 
 sonable notice of the times and places of executing the same. 
 
 7. Commissions awarded both parties by consent, to take, the deposi- 
 tions of their witnesses out of the state, without naming them. 
 
 By consent of the parties by their attorneys, commissions are 
 awarded them to examine and take the depositions of their wit- 
 nesses in this cause, which are to be read in evidence at the trial 
 thereof; giving each other reasonable notice of the times and 
 places of executing the same.
 
 Depositions of witnesses. 47 
 
 8. Commission to take deposition de bene essc. 1 Rob. Prac. 194, 
 
 5, 6. Sess. Acts 1833-4, p. 75. ch. 61. 62. 2. 
 
 The commonwealth of Virginia to A. B. gent, justice of the 
 county of H. (or, to A. B. a notary public for the city of R. 
 or, to A. B. a commissioner appointed by the circuit superior 
 court of law and chancery for the county of H. in this com- 
 monwealth, for the taking of depositions.) Know ye that we, 
 trusting to your fidelity and provident circumspection in dili- 
 gently examining E. F. a witness de bene esse on behalf of A. 
 B. in a. suit now depending in our circuit superior court of law 
 and chancery for the county of H. between the said A. B. plain- 
 tiff and C. D. defendant, command you, that at such certain 
 day and place as you shall appoint, the witness aforesaid before 
 you you cause to come, and him diligently examine on the holy 
 evangelists of almighty God, and his examination into our said 
 court, without delay, you send and certify enclosed. 
 
 9. Commission to take deposition of witness out of the commonwealth* 
 
 I Rob. Prac. 196. 
 
 The commonwealth &c. to any two justices of the peace of 
 
 the state (or, territory or, district) of , who will certify 
 
 themselves to be such. Know ye that we, trusting to your fide- 
 lity and provident circumspection in diligently examining E. F. 
 a witness on behalf of A. B. in a suit &c. require you, that at 
 &c. you assemble yourselves, and the witness aforesaid before 
 you you cause to come &c. (as before.) 
 
 10. Notice of application for commission to take depositions in a 
 
 foreign country. 1 Rob. Prac. 196. 
 
 To mr. C. D. Sir, Take notice, that on the day of the 
 
 next term of the circuit superior court of law and chancery for 
 the county of H. 1 shall apply to the said court for a commis- 
 sion in a suit depending therein, in which I am plaintiff and you 
 are defendant, to be directed to certain commissioners, not ex- 
 ceeding five, to take the depositions of witnesses in the said 
 suit, residing in the city of London. If you desire that the com- 
 missioners should be nominated and agreed upon by the parties 
 litigant, you will please attend on the day aforesaid. Should 
 you not attend for the purpose, I shall at that time nominate the 
 commissioners myself. Given under my hand this day
 
 48 Depositions of witnesses. 
 
 11. Commission awarded to take depositions in a foreign country. 
 1 Rob. Prac. 196, 7. 
 
 R. S. &c. are nominated and agreed upon by the parties, to 
 take the depositions of their witnesses in this cause, residing in 
 the city of London; and the court doth direct a commission for 
 that purpose to issue from the clerk's office, directed to the said 
 commissioners, any three of whom may proceed to execute the 
 same. But either party having witnesses examined under the 
 said commission, is to give to the other reasonable notice of the 
 time and place of taking the depositions. 
 
 Or: 
 
 The plaintiff having made affidavit that A. B. a witness for 
 him, resides in a foreign country, to wit, in the city of London, 
 and having given the defendant notice according to law of his 
 intention to apply for a commission, so that commissioners 
 might be nominated and agreed upon by the parties, and the 
 defendant not attending for the purpose, the plaintiff himself 
 nominated the following as commissioners, to wit : (here name 
 them.) And the court, on the motion of the plaintiff, doth di- 
 rect a commission to issue from the clerk's office, directed to 
 the commissioners so nominated by the plaintiff, any three of 
 whom may proceed to execute the commission. But the plain- 
 tiff is to give the defendant reasonable notice of the time and 
 place of taking the deposition. 
 
 12. Notice to take depositions. 1 Rob.- Prac. 197. 
 
 To mr. B. S. Sir, Take notice, that on the first day of Sep- 
 tember next, between the hours of nine in the forenoon and six 
 in the afternoon of that day, at the counting house in the city of 
 L. in the kingdom of Great Britain, known as the counting 
 house of J. G. and company, we shall proceed to take the depo- 
 sitions of A. B. and C. (or, of certain witnesses) to be used as 
 evidence for us in a suit now pending in &c. wherein we, J. G. 
 and W. G. merchants and partners under the firm of J. G. and 
 company, are plaintiffs, and you the said B. S. are defendant ; 
 and if, from any cause, the taking of the said depositions shall 
 not be commenced, or, being commenced, should not be com- 
 pleted on that day, the taking of the same will be adjourned 
 from time to time until the said depositions shall be completed. 
 Given under our hands this day of .
 
 Depositions of witnesses. 49 
 
 13. Notice to nonresident party. 1 Rob. Prac. 197, 8. 
 
 To mr. A. B. Sir, Having obtained a commission to take 
 the deposition of E. F. a witness for me in a suit depending in 
 &c. wherein you are plaintiff and I am defendant, and you not 
 residing within the commonwealth, and having no attorney in 
 fact within the same, to whom notice of the time and place of 
 taking the said deposition can be given, I now publish, tor your 
 information, that the said witness will be examined on &c. be- 
 tween the hours &c. at &c. and his deposition will be then and 
 there taken in the suit aforesaid, for the purpose of being read 
 as evidence therein. If however, from any cause not foreseen, 
 the taking &c. (as last.) 
 
 14. Affidavit of service or publication of notice. 1 Rob. Prac. 
 
 197, S. 
 
 This must of course vary according to circumstances. Where a 
 copy of the notice is delivered to the party in person, the affidavit will 
 be as follows : 
 
 " H. county, to wit : This day G. H. who is upwards of years 
 
 of age, personally appeared before me, a justice of the peace for the 
 said county, and made oath (or, solemn affirmation) that he did, on the 
 
 day of , deliver to the above named A. B. a true copy of 
 
 the above written notice. Given under my hand this day of ." 
 
 Where the notice is delivered to any other than the party, or is left at 
 the party's place of residence, the affidavit must contain such facts as 
 are stated in the return of a sheriff, when he serves a scire facias in 
 that way ; as to which, see ante, chapter VI. No. 9. And it may be 
 well to observe that although, in the case of a scire facias, a copy may 
 be left with the wife of the defendant, yet in the case of a notice upon 
 any other legal occasion, it is not sufficient to deliver the same to the 
 wife, unless it appear also that she is a free white person above the age 
 of 16 years. 
 
 Where the notice is published in a public newspaper, the affidavit may 
 be "that the above notice has been published four weeks successively 
 
 in the , a newspaper printed within this commonwealth ; and 
 
 that the four weeks for which the said notice was so published, were 
 prior to the time mentioned therein for the examination of the witness." 
 
 15. Return of a commission for taking depositions. 1 Rob. Prac. 
 
 19S, 9. 200. 201. Lynch v. Thomas, 3 Leigh 682. 
 
 We J. K. and L. M. do certify that we are justices of the 
 
 peace for the county of in the state of . And 
 
 we further certify that pursuant to the commission hereunto an- 
 nexed, empowering us to examine E. F. and G. H. witnesses 
 on behalf of A. B. in a suit now depending in the circuit supe- 
 7
 
 50 Depositions of witnesses. 
 
 rior court of law and chancery for the county of H. in the state 
 of Virginia, between the said A. B. plaintiff and C. 1). defen- 
 dant, we assembled ourselves on the day, at the place, and be- 
 tween the hours mentioned in the notice hereunto annexed, that 
 
 is to say, on the day of , at , in the city of 
 
 , between the hours of in the forenoon and in 
 
 the afternoon, and neither of the witnesses aforesaid then came 
 before us : Wherefore we then and there adjourned the exami- 
 nation of the said witnesses until the day of , then 
 
 to be taken at the same place and between the same hours. 
 
 Signed by us on the said day of . 
 
 J. K. ) Justices of the 
 L. M. ) peace. 
 
 We the said /. K. and L. M. justices of the peace as afore- 
 said for the said county of in the state of , do 
 
 further certify, that we again assembled on the said day 
 
 of , at &c. between the hours of &c. and the witnesses 
 
 aforesaid then and there came before us, and we then and there 
 proceeded diligently to examine them on the holy evangelists 
 
 of almighty God, in the presence of attorney for the 
 
 plaintiff and attorney for the defendant. The said E. 
 
 F. having been first duly sworn, deposeth and saith as follows, 
 that is to say : (Here stale what the witness says, and then 
 state any questions asked him by either party, and his answers 
 thereto.) 
 
 Question by plaintiff's attorney. . 
 
 Answer. . 
 
 Question by defendant's attorney. . 
 
 Answer. . 
 
 And further this deponent saith not. 
 
 (Signed) E. F. 
 
 And the said G. H. having been first duly sworn, deposeth 
 and saith as follows, that is to say, &c. (as before,) 
 
 (Signed) G. H. 
 
 Which examinations being completed, we now send and cer- 
 tify the same into the said circuit superior court of law and 
 chancery for the county of H. in the state of Virginia. 
 
 In testimony of all which, we hereunto subscribe our names 
 
 and affix our seals, on the said : day of , at the 
 
 place and between the hours before specified. 
 
 .7. K. [seal.] 
 L. M. [seal.] 
 
 The depositions are then to be enclosed, and the envelope sealed, and 
 directed as follows : " To the clerk of the circuit superior court of law 
 and chancery for the county of //. in the state of Virginia"
 
 Attendance of witnesses in person. 51 
 
 CHAPTER IX. 
 
 ATTENDANCE OF WITNESSES IN PERSON. 
 
 1. Subpoena for a witness to attend court. 1 Rob. Prac. 203. 
 
 We command you that you summon E. F. to appear before 
 &c. at &c. on &c. to testify and the truth to say on behalf of A. 
 B. in a certain matter of controversy in our said court depend- 
 ing and undetermined between the said A. B. plaintiff and C. 
 D. defendant. And this he shall in no wise omit, under the pe- 
 nalty of 100. And have then &c. 
 
 2. Subpoena for witness to attend arbitrators. 1 Rob. Prac. 203. 
 
 to appear at the house of mrs. S. B. in the said county 
 
 of H. on the third day of July next, to give evidence on behalf 
 of T. G. before the referees to whose determination the matters 
 in difference in an action at law depending in our circuit supe- 
 rior court of law and chancery for the said county of H. be- 
 tween the said T. G. plaintiff and J. S. defendant, have, by 
 an order of the said court, been referred. And this he shall in 
 no wise omit &c. 
 
 3. Subpcena'for witness to attend on an order of survey. 1 Rob. 
 
 Prac. 203. 
 
 upon the lands in controversy in a suit now depending 
 
 in &c. between &c. on the first day of June next, if fair, if not, 
 the next fair day, then and there to testify and the truth to say 
 in behalf of the said C. D. before the surveyor of the said 
 county, acting under the order of survey in the said suit. And 
 this he shall in no wise omit &c. 
 
 4. Order awarding subpcena duces tecum. 1 Rob. Prac. 203, 4. 
 
 On the motion of the plaintiff by his attorney, it is ordered 
 that the clerk of the court of H. county be summoned to attend 
 here on the 7th day of the present term, with the original bond 
 now filed in his office, as it is said, in a suit lately depending in 
 the said court between A. B. plaintiff and E. F. defendant.
 
 52 Attendance of witnesses in person. 
 
 5. Writ of subpoena duces tecum. 1 Rob. Prac. 203, 4. 
 
 We command you that you summon W. M. clerk of the court 
 of our said county, to appear before the judge of our circuit 
 superior court of law and chancery for the said county, now 
 sitting, at &c. on the seventh day of the present term, with the 
 original bond now filed in his office, as it is said, in a suit lately 
 depending in the said court between A. B. plaintiff and E. F. 
 defendant, then and there to testify and the truth to say on be- 
 half of &c. (as in No. 1.) 
 
 6. Order awarding writ of habeas corpus ad testificandum. 
 
 On the motion of F. G. a writ of habeas corpus is awarded, 
 to the sheriff of H. county to be directed, commanding him to 
 bring the body of D. M. who is confined as a debtor in the jail 
 of the said county, before this court, to give testimony on behalf 
 of the said F. G. at the suit of W. B. W. in a cause depending 
 in this court; returnable here immediately. 
 
 7. Writ of habeas corpus ad tcstificandum. 
 
 We command you that the body of Z. R. in our prison under 
 your custody, as it is said, detained, under safe and secure con- 
 duct, by whatsoever name the said Z. R. may be called in the 
 same, you have before the judge of our circuit superior court 
 of law and chancery for the county of H. now sitting at the ca- 
 pitol in the city of Richmond, immediately after the receipt of 
 this writ, then and there to testify and the truth to say in behalf 
 of A. B. in a certain matter of controversy in our said court be- 
 fore the said judge depending and undetermined, between the 
 said A. B. plaintiff and C. D. defendant ; and immediately after 
 the said Z. R. shall have given his testimony before the said 
 judge, that you return him the said Z. R. to our said prison, 
 under safe and secure conduct. And have then &c. 
 
 8. Witness brought up by habeas corpus remanded after giving 
 
 testimony. 
 
 Ordered that D. M. who was brought here this day by the 
 sheriff of H. county by virtue of a writ of habeas corpus, to give 
 evidence on behalf of F. G. at the suit of W. B. W. be re- 
 manded in custody of the said sheriff to the jail of the said 
 county.
 
 Attendance of witnesses in person. 53 
 
 9. Entry of rule upon a sheriff for not returning a subpoena. 1 Rob. 
 
 Prac. 253. 
 
 It appearing that in this cause a writ of subpoena was issued 
 by the clerk, directed to the sheriff of H. county, commanding 
 him to summon certain witnesses on behalf of the plaintiff to 
 
 appear on the day of this term, and to have here on that 
 
 day the said writ ; and it further appearing that the said writ 
 was delivered in due time to the said sheriff, and that he has 
 failed to return the same : On the motion of the said plaintiff, 
 the court doth order that A. B. sheriff of the said county of H. 
 be summoned to appear here on the first day of the next term, 
 to shew cause, if any he can, why an attachment should not be 
 issued against him for his said contempt. 
 
 10. Summons against the sheriff under the preceding order. 1 Rob. 
 
 Prac. 253. 
 
 The commonwealth of Virginia to the coroner of the county 
 of H. We command you that you summon A. B. sheriff of the 
 said county, to appear before the judge of our circuit superior 
 court of law and chancery for the county of C. at the court- 
 house, on the first day of the next term, to shew cause, if any 
 he can, why an attachment should not be issued against him for 
 his contempt in failing to return a writ of subpoena issued by the 
 clerk of our said court, in a suit between C. D. plaintiff and E. 
 F. defendant, and directed to the said sheriff, whereby he was 
 commanded to summon certain witnesses on behalf of the said 
 
 plaintiff to appear before the said court on the day of the 
 
 last term, and to have then there that writ; which writ, it ap- 
 peared to our said court, was delivered to the said sheriff in due 
 time. And have &c. Witness &c. 
 
 11. Entry of rule against a untness for not attending in obedience to 
 a subpoena. 1 Rob. Prac. 253, 4. 
 
 J. W. who was summoned to appear here on this day as a 
 witness on behalf of S. H. at the suit of S. M. was solemnly 
 called, but came not: whereupon, on the motion of the said S. 
 H. it is ordered that the said J. W. be summoned to appear here 
 on the first day of the next term, to shew cause, if any he can, 
 why he should not be fined (or, why an attachment should not 
 be issued against him) for his said contempt.
 
 54 Attendance of witnesses in person. 
 
 12. Summons against witness under the preceding order. 1 Rob. 
 
 Prac. 253, 4. 
 
 We command you that you summon E. F. to appear &c. to 
 shew cause, if any he can, why he should not be fined (or, why 
 an attachment should not be issued against him) for a certain 
 contempt by him to us offered in failing to attend the said court 
 at the last term, as a witness on behalf of A. B. in a certain 
 matter &c. between the said A. B. plaintiff and C. D. defen- 
 dant, in obedience to a subpoena issued from the said court, and 
 duly executed upon him the said E. F. And have then &c. 
 
 13. Rule against a witness discharged. 1 Rob. Prac. 253, 4. 
 
 J. W. against whom a rule was made at the last term for 
 failing to attend as a witness on behalf of S. H. at the suit of 
 S. M. shewing a reasonable excuse for such failure, the said 
 rule, on his motion, is now discharged. 
 
 14. Witness fined for his failure to attend. I Rob. Prac. 253, 4. 
 
 D. H. who was summoned to appear here to shew cause, if 
 any he could, why he should not be fined for his contempt in 
 failing to attend at the last term as a witness on beha-lf of J. B. 
 against R. R. was this day solemnly called, but came not (or, 
 this day appeared, but failed to shew sufficient cause): Where- 
 fore, on the motion of the said J. B. it is considered by the court 
 that the said D. H. for his said contempt, be fined sixteen dol- 
 lars to the use of the said J. B. 
 
 15. Attachment awarded against a witness for contempt in not 
 attending. 1 Rob. Prac. 254. 
 
 D. H. who was summoned to appear here to shew cause, if 
 any he could, why an attachment should not be issued against 
 him for his contempt in failing to attend at the last term as a 
 witness on behalf of J. B. against R. R. was this day solemnly 
 called, but came not : whereupon, on the motion of the said J. 
 B. the rule aforesaid against the said D. H. is made absolute, 
 and an attachment is accordingly awarded against him, return- 
 able here on the first day of the next term.
 
 Attendance of witnesses in person. 55 
 
 16. Attachment against witness for contempt in not attending. 
 1 Rob. Prac. 254. 
 
 We command you that you attach E. F. so that you have his 
 body before &c. at &c. on &c. to answer us as well of a certain 
 contempt by him to us offered in failing to attend the said court, 
 
 at term, as a witness on behalf of A. B. &c. (as in the 
 
 summons,) 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 have then &c. 
 
 17. Order committing to prison a witness who refuses to give evidence. 
 I Rob. Prac. 254. 
 
 A. B. who was summoned and is attending as a witness on 
 behalf of C. D. against E. F. having refused to give evidence 
 in the said cause, the court doth order that he be committed to 
 prison, there to remain without bail or mainprize until he shall 
 give such evidence. 
 
 18. Order in favour of witness for his attendance. 
 
 A. B. who was summoned to appear at this court for the pur- 
 pose of giving testimony on behalf of C. D. in his action against 
 E. F. having accordingly attended four days, it is ordered that 
 the said C. D. pay him $2.12 cents for his said attendance, and 
 cents for his ferriages ; and the said A. B. residing in and 
 being summoned out of another county, it is further ordered 
 that the said C. D. pay him $4.00 for travelling fifty miles to 
 the place of attendance, and the same distance in returning. , 
 
 19. Attachment on order for attendance. 
 
 We command you that you attach C. D. so that you have his 
 body before our justices of our said county court, at the court- 
 house, on the first monday in this month, to answer us of and 
 concerning those things which shall be then and there objected 
 against him, and to do and receive what our said court shall in 
 this part consider. And have &c. 
 
 Endorse For not paying unto A. B. $ 8.75 for his attendance 
 
 at , and his travelling and ferriages, as a witness for the 
 
 said C. D. against E. F. 
 
 20. Summons against an executor upon order for attendance. 
 
 Summon A. B. executor of C. D. deceased, to appear &c. 
 in November next, to shew cause, if any he can, why an at-
 
 56 Attendance of witnesses in person. 
 
 tachment should not issue against him, for that whereas, on the 
 2d day of August 1786, E. F. obtained an order of our said 
 court that the said C. D. should pay to the said E. F. $2.12, 
 for four days attendance in a certain suit then and there de- 
 pending between the said C. .D. plaintiff and G. H. defendant, 
 which costs, amounting in the whole to $2.12, the said testator 
 in his lifetime did not pay, and the said A. B. since his death 
 hath not paid. And this &c.
 
 Discovery from a party. 67 
 
 CHAPTER X. 
 
 DISCOVERY FROM A PARTY. 
 
 1. Interrogatories to a party to obtain a discovery from him. 1 Rob. 
 Prac. 242. M'Farland v. Hunter, 8 Leigh 489. 
 
 In ihe circuit superior court of law and chancery for the county 
 of Henricoand city of Richmond. 
 
 Between A. B. plaintiff and C. D. defendant : In an action 
 of debt. 
 
 The defendant, wishing a discovery from the plaintiff, to be 
 used in evidence at the trial of this action, propounds the follow- 
 ing interrogatories to the said plaintiff, to wit : 1. &c. (After wri- 
 ting out the interrogatories, conclude as follows :) And the said 
 defendant calls upon the plaintiff to answer the said interroga- 
 tories in solemn form, on his oath or affirmation. Dated this 
 
 , attorney for the defendant. 
 
 Affidavit. 
 
 C. D. the defendant above named, makelh oath and saith, that 
 &c. (Here stale the facts of the case accurately, so that the court 
 may deduce from those facts the conclusion that answers to the in- 
 terrogatories will be material evidence in the cause, and that 
 the interrogatories themselves are pertinent, and such as the ad- 
 verse party would be bound to answer unto upon a bill of dis- 
 covery in a court of chancery.) 
 
 (Signed) C. D. 
 
 Sworn to by the above named C. D. this day of , 
 
 before me, a justice of the peace for the county of H. 
 
 2. Entry of interrogatories being filed, and order thereupon. 
 I Rob. Prac. 242. 
 
 The defendant, wishing a discovery from the plaintiff, to be 
 used in evidence at the trial of this action, this day filed written 
 interrogatories to the plaintiff, which he calls upon the said plain- 
 tiff to answer in solemn form, on his oath or affirmation; and it 
 appearing to the court, by the affidavit of the defendant, that
 
 58 Discovery from a party. 
 
 answers to the said interrogatories will be material evidence in 
 the cause, and that the interrogatories themselves are pertinent, 
 and such as the plaintiff would be bound to answer unto upon 
 a bill of discovery in a court of chancery, the court allows the 
 said interrogatories, and requires the plaintiff to answer the same 
 in writing, and in solemn form, on his oath or affirmation. 
 
 3. Affidavit to obtain the discovery vnd production of a writing in 
 the possession of the adverse party. 1 Rob. Prac. 244. 
 
 In &c. Between &c. 
 
 C. D. the defendant above named, maketh oath and saith, that 
 at the time the articles of agreement mentioned in the declara- 
 tion were entered into, the plaintiffs executed another writing, 
 whereby they acknowledged that their whole claim against this 
 defendant under the said articles was for the amount of an ob- 
 ligation of this defendant for $ 6000, which they held. And the 
 said defendant farther maketh oath, that according to the tenor 
 of the obligation so held by the plaintiffs, this defendant was 
 only to pay the said sum of $ 6000 when the profits of his inte- 
 rest in the concern mentioned in the said articles might be worth 
 that sum ; and the said obligation will therefore be material evi- 
 dence for the defendant, touching the matters in controversy in 
 the said action. And the said defendant farther maketh oath, 
 that the said obligation was in the possession of the plaintiffs, or 
 of one of them, and he verily believes the same is still in their 
 possession, or in the possession of one of them. And the said 
 defendant farther maketh oath, that he hath no means of proving 
 the contents of the said obligation, but by the discovery and pro- 
 duction of the same by the plaintiffs. 
 
 (Signed) C. D. 
 
 Sworn to by the above named C. D. this day of , 
 
 before me, a justice of the peace for the county of H. 
 
 4. Entry of affidavit being filed, and order thereupon. 1 Rob. 
 
 Prac. 244. 
 
 The defendant this day filed an affidavit in the following 
 words : (Here insert the same.) Whereupon the court doth or- 
 der the plaintiffs to answer and say, upon their oaths or solemn 
 affirmations, whether they have in their possession any such ob- 
 ligation as that specified in the said affidavit, or any of the like 
 import, and if any such they have in their possession, to produce 
 the same.
 
 Pleas in bar and other proceedings till issue. 59 
 
 CHAPTER XL 
 
 PLEAS IN BAR, AND PROCEEDINGS THEREON TO ISSUE JOINED. 
 
 1. General rules. 
 
 The end of all pleading is to attain certainty and prevent surprise. 
 Hence it is a fundamental rule that the issue between the parties shall 
 present a single, individual, simple point. To this point the evidence 
 must be confined ; and to this point the verdict must respond. Carr, J. 
 in Boiling v. Mayor Sfc. of Petersburg, 3 Rand. 578. 
 
 Every plea or replication should be in itself a complete bar, or an- 
 swer to the bar. The matter of one plea or replication cannot be con- 
 sidered as incorporated with another. Opinion of the court in Henry 
 v. Stone, 2 Rand. 464. 
 
 2. Rules as to pleas concluding to the country. 
 
 Every plea which amounts to a negation of the existence of the cause 
 of action set out, must conclude to the country. If it confesses and 
 avoids, it should conclude with a verification. Carr, J. in Cleaton v. 
 Chambliss, 6 Rand. 91. 
 
 3. Plea of non assumpsit. 1 Rob. Prac. 210, 11. 
 
 In the circuit superior court of law and chancery for the county 
 of H. C. D. ads A. B. And the said C. D.* by his attorney 
 comes and defends the wrong and injury, when &c. and saith, 
 that Act did not undertake or promise in manner and form as 
 the said A. B. hath complained, and of this he puts himself 
 upon the country. 
 
 * If the defendant be an executor or administrator, call him in the 
 caption " C. D. executor &c." or, " administrator &c." and insert here 
 the words "executor (or, administrator) as aforesaid." 
 
 t If the defendant be an executor or administrator, instead of he, say 
 "the said E. F. deceased, in his lifetime." 
 
 Another, by a surviving partner. 
 
 that the said defendant and the said T. M. merchants 
 
 and partners as aforesaid, did not, in the lifetime of the said T. 
 M. undertake or promise in manner and form as the plaintiffs
 
 60 Pleas in bar and other proceedings till issue. 
 
 have complained in the first, second and fourth counts of their 
 declaration, and that the said defendant did not himself assume 
 in manner and form as the plaintiffs have complained in the 
 third and fifth counts of the said declaration ; and of this he 
 puts himself upon the country. 
 
 4. Plea of nil debet. 1 Rob. Prac. 207. 
 
 that he does not owe the said sum of money (or, the debt 
 
 and interest or, the principal, interest and charges of protest) 
 in the declaration demanded, or any part thereof, as the said A. 
 B. has complained ; and of this &c. (as last.) 
 
 5. Affidavit denying execution of writing on which action is brought. 
 
 I Rob. Prac. 207, 8. 
 
 In the circuit superior court of law and chancery for the county 
 of H. and city of R. May term 1840. 
 C. D. ads A. B. Action of debt. 
 
 The said C. D. maketh oath and saith, that the note upon 
 which the said action is brought was not made or signed by him. 
 
 (Signed) C. D. 
 Or: 
 
 E. F. administrator of C. D. ads A. B. The said E. F. ma- 
 keth oath and saith, that he hath good cause to believe, and does 
 believe, that the note upon which the said action is brought was 
 not made or signed by the said C. D. 
 
 (Signed) E. F. 
 
 Sworn to by the said before me, a justice of the peace 
 
 for the county of H. this day of . 
 
 Note. By a statute passed March 19. 1839, it is enacted "that in all 
 actions which may be hereafter commenced in the names of any persons 
 composing a copartnership, and the names of the several persons consti- 
 tuting such partnership shall be set forth in the declaration, the plaintiffs 
 shall not be required to prove the existence of the said partnership as 
 described in said declaration, unless the defendant or some other person 
 shall, by plea verified by affidavit, deny the existence of such partner- 
 ship." Sess. Acts 1839, p. 43. ch. 66. 4. This statute alters the rule 
 acted on in Dob v. Halsey, 16 Johns. 34. Wilson v. Wallace, 8 Serg. 
 
 6, Rawle 53. and in other cases, but the precise manner in which the 
 statute is to be carried out admits of some doubt. It would seem to be 
 sufficient, when the general issue is pleaded, to file an affidavit denying 
 the existence of the partnership. But it may be contended, upon the 
 words of the statute, that there must be a plea in terms denying the ex- 
 istence of the partnership, and that this plea must be verified by affidavit.
 
 Pleas in bar and other proceedings till issue. 61 
 
 6. Plea of non est faclum by an obligor. 1 Rob. Prac. 208. 
 
 In the &c. C. D. ads A. B. 
 
 And the said C. D. by E. F. his attorney comes and defends 
 the wrong and injury, when &c. and says, that the said supposed 
 writing obligatory in the declaration mentioned is not- his deed ; 
 and of this he puts himself upon the country. 
 
 Affidavit proving the same. 
 
 H. county, to wit : This day C. D. the defendant named in 
 the foregoing plea, personally appeared before me, a justice of 
 the peace for the said county, and made oath that the said plea 
 is true. Given under my hand this day of . 
 
 Note. In Jackson v. Webster, 6 Munf. 462. after the word true, was 
 added " to the best of his knowledge and belief;" and it was decided 
 that the insertion of these words in the affidavit was not sufficient cause 
 for excluding the plea. 
 
 7. Plea of non est faclum by an executor or administrator. 1 Rob. 
 
 Prac. 208. 
 
 In the plea, after the words " and the said C. D." insert " executor 
 (or, administrator) as aforesaid." And after the words " in the declara- 
 tion mentioned," insert " is not the deed of the said G. H. deceased." 
 
 Let the affidavit be as before, to the word oath, and then as follows : 
 " that he verily believes that the supposed writing obligatory, on which 
 the action above mentioned is founded, is not the deed of the said G. 
 H. deceased. Given under my hand this day of ." 
 
 8. Plea of non est factum by an administrator, with oyer of the bond, 
 and affidavit that it was delivered as an escrow. 1 Rob. Prac. 
 208. ' 
 
 And the said H. L. C. administrator as aforesaid, by his at- 
 torney, comes and defends the wrong and injury, when &c. and 
 craves oyer of the said supposed writing obligatory in the de- 
 claration mentioned, and it is read to him in these words : (Here 
 insert the obligation.) He also craves oyer of the condition of 
 the said supposed writing obligatory, and it is read to him in 
 these words : (Here insert the condition.) Which being read 
 and heard, the said H. L. C. administrator as aforesaid says, 
 that the said supposed writing obligatory is not the deed of the 
 said A. R. T. deceased ; and of this he puts himself upon the 
 country.
 
 62 Pleas in bar and other proceedings till issue. 
 
 Note. The plea of non est factum, whether general or special, is a denial of 
 the existence of the deed ; the uniform conclusion is to the country ; and the 
 plaintiff can never reply any new matter. Carr, J. in Cleaton v. Chambliss, 6 
 Rand. 91. 
 
 Affidavit. 
 
 * 
 
 Cily of R. to wit : H. L. C. administrator of A. R. T. de- 
 ceased, personally appeared before me, J. T. mayor of the said 
 city, and made oath, that he verily believes that the supposed 
 writing obligatory mentioned in the foregoing plea is not the deed 
 of the said A. R. T. deceased. The said H. L. C. further made 
 oath, that he believes the said A. R. T. agreed to be surety in 
 the said writing upon condition that the same should be execu- 
 ted by certain other persons as cosureties, and especially by one 
 R. G. S. and one R. M. that he verily believes, when the said 
 writing was presented to the said A. R. T. for his signature, the 
 name and seal of the said R. G. S. were attached thereto, and 
 the name of the said R. M. was inserted in the body of the said 
 writing, but the same was not signed by the said R. M. that 
 he believes the said A. R. T. thereupon signed and sealed the 
 said writing, and delivered the same to the person by whom it 
 was handed to him, upon this condition, that if the said R. M. 
 should execute the same as a cosurety, then the same should be 
 delivered as the deed of the said A. R. T. but not otherwise ; 
 that the same was never executed by the said R. M. and the 
 said H. L. C. believes the name of the said R. M. was erased 
 from the body thereof after the same went out of the hands of 
 the said A. R. T. Given under my hand this 10th day of July 
 1829. 
 
 9. In action upon judgment in another slate, entered upon confession 
 under power of attorney, plea demfng the execution of the power 
 of attorney and the validity of the judgment. 
 
 Wilson fyc. v. TJie Bank of Mount Pleasant, 6 Leigh 570. was an 
 action of debt in the circuit court of Ohio county by the bank of Mount 
 Pleasant against Wilson and others, on a judgment rendered against 
 them in the state of Ohio, by confession, under a power of attorney to 
 confess judgment, made before action brought. The defendants pleaded 
 that the power of attorney under which the judgment was confessed, 
 was given by some person to the defendants unknown, and was not 
 given or made by them, or any or either of them, and that they had no 
 notice of the pendency or commencement of the suit in Ohio in which 
 the judgment was so confessed. The bank demurred to the plea. And 
 the court of appeals overruled the demurrer, and held the plea to be a 
 bar to the action.
 
 Pleas in bar and other proceedings till issue. 63 
 
 10. Plea by an administrator, in debt on collateral bond, denying 
 
 causes of action set forth in particular breaches. 
 
 And for a further plea in this behalf, the said H. L. C. ad- 
 ministrator as aforesaid, according to the form of the statute in 
 such case made and provided, says, that the said J. P. ought 
 not to have or maintain his aforesaid action thereof against him, 
 because, as to the said supposed breach of the said condition 
 first above assigned, the said H. L. C. administrator as afore- 
 said (protesting that the said A. R. T. did not, in virtue of the 
 precept of the said warrant issued from the treasury of the 
 United States, levy the same upon any lands of the said W. D. 
 T. therein named) says, that the said A. R. T. did not, during 
 his continuance in his said office of deputy of the plaintiff, in 
 virtue of the precept of the said warrant, make sale of lands of 
 the said W. D. T. and collect and receive the proceeds of sales 
 thereof, amounting to the sum of $5286.62 cents, as the said J. 
 P. hath in that behalf alleged, nor did he collect and receive 
 the proceeds of sales thereof, amounting to any smaller sum : 
 and as to the said supposed breaches of the said condition, se- 
 condly, thirdly, fourthly and fifthly above assigned, the said 
 H. L. C. administrator as aforesaid, says, that the said A. R. T. 
 did not make returns upon the said several writs of Jieri facias 
 that the same were satisfied, in manner and form as the said J. 
 P. hath in that behalf alleged. And of this he the said H. L. 
 C. administrator as aforesaid, puts himself upon the country. 
 
 11. Plea of no such record to debt on judgment of another state in 
 
 the union. 
 
 And the said C. D. by his attorney comes and defends the 
 wrong and injury, when &c. and says, that there is not any re- 
 cord of the said supposed recovery in the said declaration men- 
 tioned, remaining in the said court, in manner and form as the 
 said A. B. hath above in his said declaration alleged. 
 
 Note. In Obin v. Knott, Fortescue 339. it is said that " nul tiel re- 
 cord, being in the negative, need not be averred." That is, as mr. 
 Archbold says, the plea " must not conclude with a verification by the 
 record, but with a verification merely." Arch. Civ. PI. 249. Accor- 
 dingly the usual conclusion is as follows : " And this he the said C. D. 
 is ready to verify. Wherefore he prays judgment if the said A. B. 
 ought to have or maintain his aforesaid action thereof against him the 
 said C. D. &/c." While, however, such is the proper conclusion when 
 the plea is pleaded in Virginia to an action upon a judgment obtained 
 in this state, it is by no means clear that the plea should so conclude 
 when the action is upon a judgment obtained in another state in the
 
 64 Pleas in bar and other proceedings till issue. 
 
 union. In Collins v. Lord Matthew, 5 East 473. the plaintiff's action 
 was in the court of king's bench of England upon a judgment reco- 
 vered in the court of exchequer in Ireland, and the judgment was stated 
 to be for certain specified sums, " as by the record and proceedings 
 thereof, remaining in the said court of our lord the king of his exche- 
 quer at Dublin in Ireland aforesaid, more fully appears." The defen- 
 dant pleaded nul tiel record, with a verification ; and the plaintiff de- 
 murred specially. In support of the demurrer, it was contended at first 
 that the case fell within the rule governing actions on foreign judgments, 
 to which it was settled that nul tiel record could not be pleaded. But 
 the court intimated a clear opinion that since the union between Great 
 Britain and Ireland, the judgments of the irish courts are properly 
 pleadable as records. And lord Ellenborough, C. J. said, that such re- 
 cords were now brought before the house of lords of the united king- 
 dom on appeals and writs of error, though no longer returnable into 
 this court (the court of king's bench) by certiorari. It was then contend- 
 ed, in support of the demurrer, that there being no method of bringing 
 the original irish record into the court of king's bench, there was no 
 way of trying its existence but by an examined copy, and that verified 
 on oath, of which the jury were to judge, and therefore that the plea 
 ought to have concluded to the country, and not with a verification. 
 This cause of demurrer was held to be well assigned. Lord Ellenbo- 
 rough said, though the irish judgment be a record, yet being only prove- 
 able by an examined copy on oath, the verity of the evidence could only 
 be tried by a jury, and not by the court ; and therefore the conclusion 
 should have been to the country. The other judges concurred, and 
 judgment was given for the plaintiff. If this decision shall be consi- 
 dered applicable to an action of debt in one state of this union upon a 
 judgment obtained in another, then to the above plea must be added the 
 words, " and of this he puts himself upon the country." 
 
 12. Plea of non detinet. 1 Rob. Prac. 80. 212. 
 
 that he doth not detain the said slave in the said decla- 
 ration mentioned, in manner and form as the said A. B. hath 
 complained against him, and of this he puts himself upon the 
 country. 
 
 13. Plea of not guilty in trespass or case. 1 Rob. Prac. 212, 3. 
 
 that he is not guilty of the said supposed trespasses (or, 
 
 grievances) above laid to his charge, or any or either of them, 
 in manner and form as the said A. B. hath above thereof com- 
 plained against him, and of this &c. 
 
 14. Course for plaintiff when plea concludes to the country. 
 
 As no issue can be made up without an express averment on the one 
 side, and a direct negative on the other, of the same fact, it is error to
 
 Pleas in bar and other proceedings till issue. 65 
 
 conclude a plea to the country which does not directly deny some mat- 
 ter directly averred on the other side. Green, J. in Buck v. Fouchee and 
 tcife, 1 Leigh 71. But after a conclusion to the country, all pleading 
 is closed, except to demur, or join issue by a similiter. Same judge. 
 " The plaintiff," says judge Carr, " can never reply any new matter 
 when a plea concludes to the country. He must either accept, by a 
 similiter, the issue tendered, or demur." See his opinion in Cleaton v. 
 Chambliss, 6 Rand. 91. 
 
 15. Similiter to one plea, and demurrer to another. 
 
 And the said plaintiff, as to the plea of the said defendants 
 by them first above pleaded, and whereof they have put them- 
 selves upon the country, doth the like. 
 
 And the said plaintiff, as to the plea of the said defendants 
 by them secondly above pleaded, saith, that the same and the 
 matters therein contained, in manner and form as the same are 
 therein pleaded and set forth, are not sufficient in law to bar or 
 preclude the said plaintiff from having or maintaining his afore- 
 said action thereof against them the said defendants, and that 
 he the said plaintiff is not bound by law to answer the same. 
 Wherefore, for want of a sufficient plea in this behalf, he the 
 said plaintiff prays judgment, and 
 
 (If in assumpsit) his damages by reason of the not performing 
 the said several promises and undertakings in the declaration 
 mentioned, to be adjudged to him, &c. 
 
 (If in debt for a penalty) his debt aforesaid, together with his 
 damages by him sustained by occasion of the detention thereof, 
 to be adjudged to him, &c. 
 
 And so in other actions, according to the nature of the case. 
 
 16. Rules as to special pleas. 
 
 When the plea denies nothing which has been alleged on the other 
 side, but seeks to avoid the matter alleged on the part of the plaintiff by 
 the allegation of a distinct fact, it will be error to conclude to the coun- 
 try. Buck v. Fouchee and wife, 1 Leigh 64. But upon demurrer to 
 the plea, the court will not regard this defect, unless it be specially as- 
 signed in the demurrer as cause thereof. Carthrae fyc. v. Clarke, 5 
 Leigh 268. 
 
 All special pleas in bar, where any new matter not before apparent 
 upon the record is alleged, ought to conclude with a verification, and a 
 submission to the judgment of the court upon the matter so alleged : 
 which the opposite party may either take issue upon, by a total denial 
 of the facts alleged ; or confess and avoid them ; or admit them to be 
 true, but deny their sufficiency in law to avail the party. Tucker, J. in 
 Hard's ex'x v. Dishman, 2 Hen. &> 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 <Sf Co. 2 Call 277.
 
 84 Pleas in bar and other proceedings till issue. 
 
 If, however, the tender be of a less sum than is justly due, it will not 
 prevent the subsequent recovery of interest on the sum so tendered, 
 from the time of the tender. S/wbe's ex'ors v. Carr and wife, 3 
 Munf. 10. 
 
 44. Concerning replications. 
 
 Where a plea concludes with a verification, the plaintiff cannot, regu- 
 larly, take issue directly upon the plea, but only by a general replication 
 concluding to the country ; and then the issue may be made up by ad- 
 ding the similiter. Green, J. in Reed v. Hanna's ex'or, 3 Rand 59. 
 
 Though there be no formal negative and affirmative, yet if the repli- 
 cation deny the whole substance of the plea, the conclusion may be to 
 the country. Carthrae Sfc. v. Clarke, 5 Leigh 268. 
 
 Although matter of record be pleaded, yet if such matter be not the 
 foundation of the action, but wholly collateral, it is not necessary that 
 there should be a verification by the record, with a conclusion to the 
 court. White v. Clay's ex'ors, 7 Leigh 68. was debt on an injunction 
 bond. The defendant pleaded that the injunction cause was still pend- 
 ing on a bill of review in the court of appeals, concluding with a veri- 
 fication ; plaintiff replied that the bill of review mentioned in the plea 
 had been decided by the court of appeals, concluding to the country ; 
 and issue was joined : on which verdict was found for the plaintiff, and 
 judgment rendered thereupon. 
 
 Where the replication does not deny, but avoids the allegations of the 
 plea, the conclusion to the court is proper. Wilson v. Codman's cx'or, 
 3 Cranch 208, 9. 
 
 In debt on a bond, the declaration was filed in the name of R. G. 
 and G. L. against A. S. ; the defendant pleaded conditions performed; 
 and a replication was filed, commencing in the name of R. G. v. A. S. 
 To this replication the defendant demurred specially, because the same 
 was no answer to the plea, as it respected G. L. one of the plaintiffs. 
 The court of appeals said, that it did not appear that 'the replication re- 
 lated to the bond in the declaration mentioned, as it purported to relate 
 to a suit by R. G. only, whereas the bond stated in the declaration was 
 shewn to have been given to R. G. and G. L. The replication was 
 therefore considered a departure from the declaration, and judgment 
 was given for the defendant on the demurrer. Graham 6f Scott v. 
 Graham Sf Lane, 4 Munf. 205. 
 
 In debt on bond, the defendant pleaded that at the time of executing 
 the bond she was a feme covert ; and the plaintiff replied that at that 
 time her husband had abjured the commonwealth, and was not then or 
 now a citizen thereof. This replication, however understood, was whol- 
 ly defective. If it intended to rely upon the common law abjuration of 
 the realm, that never existed here, or if it did, it could only be proved 
 by a record taken by a coroner, and by him certified to the proper court ; 
 and it should have been verified by the record. If it intended to rely 
 upon the expatriation of the husband under our statute, it should have 
 been shewn how he expatriated himself, by a recorded declaration by 
 deed, or in open -court, and that he had departed from the common- 
 wealth ; and even that would not have been sufficient, without the far-
 
 Pleas in bar and other proceedings till issue. 85 
 
 ther allegation that he resided abroad at the time of the execution of 
 the bond by the wife. The demurrer of the defendant to the replication 
 was therefore sustained. Branch v. Bowman, 2 Leigh 170. 
 
 45. General replication to plea of usury.* 
 
 And the plaintiffs, as to the plea of the defendants by them 
 first above pleaded, say, that they, by reason of any thing in 
 that plea alleged by the defendants, ought not to be barred from 
 having and maintaining their aforesaid action thereof against 
 them, because they say, that the said deed in the declaration 
 mentioned was made by the said W. M., C. (7., J. C. S. and 
 R. N. for a good and legal consideration, and not in pursuance of 
 or upon the said corrupt and unlawful agreement, or for the pur- 
 pose in the said first plea of the defendants mentioned, in man- 
 ner and form as the defendants in their said first plea in that 
 behalf have alleged. And this they pray may be enquired of 
 by the country ; and the defendants likewise. 
 
 * This is a copy of the replication filed to the first plea in Steptoe's adm'rs v. Har- 
 tley's ez'ors, 7 Leigh 501. with the defendants' similiter thereto. 
 
 46. General replication to plea that action was not commenced in 
 
 time. 1 Rob. Prac. 79. 
 
 And the said plaintiff, as to the said plea of the said defen- 
 dant by him above pleaded (or, by him secondly above pleaded) 
 saith, that he the said plaintiff, by reason of any thing by the 
 said defendant in that plea alleged, ought not to be barred from 
 having and maintaining his aforesaid action thereof against him 
 the said defendant, because he saith, that the said action was 
 commenced within five years next after the cause of the said 
 action. And this he the said plaintiff prays may be enquired of 
 by the country. 
 
 47. To pica that action was not commenced in lime, special replica- 
 tion as to one count, that account concerns the trade of merchandise 
 between merchant and merchant ; and general replication as to two 
 counts. 1 Rob. Prac. 101 to 105. Watson v. Lyle's adm'r, 4 
 Leigh 236. Robinson v. Alexander, 8 Bligh N. S. 352. 
 
 And the said plaintiffs, as to the said plea of the said defen- 
 dant by him secondly above pleaded, say, that they the said 
 plaintiffs, by reason of any thing by the said defendant in that 
 plea alleged, ought not to be barred from having and maintain- 
 ing their action against the defendant, because, as to so much 
 of the said plea as relates to the promise and undertaking men-
 
 86 Pleas in bar and other proceedings till issue. 
 
 tioned in the first count, the said plaintiffs say, the moneys men- 
 tioned in the said promise and undertaking, at the time of the 
 said promise and undertaking, became due and payable on an 
 account current between the said B. S. and T. M. as merchants 
 in the state of Virginia, and the said plaintiffs as merchants in 
 London in the kingdom of Great Britain, acting as factors of the 
 said S. and M. and the said account was wholly concerning the 
 trade of merchandise between the said S. and M. as merchants, 
 and the said plaintiffs as merchants and factors as aforesaid. 
 And this the said plaintiffs are ready to verify. Wherefore they 
 pray judgment, and their damages by them sustained by occa- 
 sion of the nonperformance of the said promise and undertaking 
 mentioned in the said first count, to be adjudged to them &c. 
 And the said plaintiffs, as to the residue of the said plea of the 
 said defendant, say, that the said several causes of action men- 
 tioned in the second and third counts of the said declaration, 
 did accrue to them the said plaintiffs within five years next be- 
 fore the commencement of this suit. And this the said plain- 
 tiffs pray may be enquired of by the country. 
 
 48. To pica that action on store account was not commenced in two 
 years, special replication that party died before the two years ex- 
 pired, and suit was brought in one year from his death. 1 Rob. 
 Prac. 105. 
 
 And the said plaintiff &c. (as in No. 46.) because he saith, that 
 before the expiration of the said term of two years the said E. 
 F. died, and this action was commenced within one year from 
 his death. And this the said plaintiff is ready to verify. Where- 
 fore he prays judgment, and his damages by him sustained by 
 occasion of the nonperformance of the said several promises and 
 undertakings in the said declaration mentioned, to be adjudged 
 to him &c. 
 
 49. To plea that action was not commenced in Jive years, special re- 
 plication that plaintiff's intestate was non compos till his death, 
 and action was brought in Jive years after that time. 1 Rob. Prac. 
 107, 8. Marsteller fyc. v. M' Clean, 7 Cranch 156. 
 
 And the said plaintiff &c. (as in No. 46.) because he saith, 
 that at the time when the said cause of action in the declaration 
 mentioned accrued, the said E. F. the person then entitled to 
 the said action, was non compos mentis, and so continued until the 
 
 time of his death, which happened on the day of , and 
 
 after his death administration of the estate of the said E. F. 
 was granted to the plaintiff, and the said plaintiff brought this 
 action within five years after the death of the said E. F. And
 
 Pleas in bar and other proceedings till issue. 87 
 
 this the said plaintiff is ready to verify. Wherefore he prays 
 judgment, &c. (concluding according to the nature of the case.) 
 
 If' in assumpsit concluding like the last. 
 
 If in debt and his debt aforesaid, together with his damages 
 by him sustained by occasion of the detention thereof, to be ad- 
 judged to him &c. 
 
 50. To plea that action was not commenced in lime, special replication 
 that defendant, by removal out of the country, obstructed the plain- 
 tiff from bringing the action. 1 Rob. Prac. 108, 9. 115, 16. 
 Wilkinson fy Co. v. Hollowa-y, 7 Leigh 277. 
 
 And the said plaintiff &c. (as in No. 46.) because he saith, 
 that the said defendant, by removal out of the country when the 
 said cause of action accrued, defeated and obstructed the plain- 
 tiff from bringing and maintaining his aforesaid action within the 
 time limited by the act for limitation of actions. And this the 
 said plaintiff is ready to verify. Wherefore the said plaintiff 
 saith, that the said defendant ought not to be admitted to plead 
 the said act in bar to this action, and he prays judgment &c. 
 (as last.) 
 
 51. To plea of riens per discent, special replication under the statute. 
 
 1 Rob. Prac. 220. 
 
 And the said plaintiff &c. (as in No. 46.) because, according 
 to the form of the statute in such case made and provided, he 
 says that the said defendant, after the death of the said E. F. 
 his father, and before the commencement of this suit, to wit, on 
 &c. had divers lands, tenements and hereditaments by descent 
 from his said father, to wit, at &c. aforesaid. And this he the 
 said plaintiff is ready to verify. Wherefore he prays judgment, 
 and his debt aforesaid, together with his damages by him sus- 
 tained by occasion of the detention thereof, to be adjudged to 
 him &c. 
 
 52. Entry of office judgment set aside by pleading to issue. 
 1 Rob. Prac. 205. 
 
 The defendant, by his attorney, pleads that* &c. (here state 
 the plea, if it be ore tenus.) Or: The defendant, by his attor- 
 ney, filed a plea in writing (or, pleas in writing.) Where- 
 upon, on the motion of the said defendant, it is ordered that the 
 judgment entered in the office against him be set aside. 
 
 * For example, in detinue (I Rob. Prac. SO. 212. 218.) that 
 
 he doth not detain the in the declaration mentioned, in
 
 88 Pleas in bar and other proceedings till issue. 
 
 manner and form as the plaintiff has complained, and of this he 
 puts himself upon the country; and the plaintiff likewise. 
 
 In trespass (I Rob. Prac. 212, 13. 218.) that he is not 
 
 guilty (or, that the said G. H. deceased in his lifetime was not 
 guilty) of the trespasses laid to his charge, in manner &c. (as in 
 detinue.) 
 
 In assumpsit (\ Rob. Prac. 210. 213. 218.) that he did not 
 
 undertake or promise (or, that the said G. H. deceased in his 
 lifetime did not undertake or promise) in manner &c. 
 
 In debt on simple contract (1 Rob. Prac. 207, 8. 213. 218.) 
 
 that he does not owe (or, if the defendant be an executor or admi- 
 nistrator, that he does not detain) the sum of money (or, the prin- 
 cipal and interest or, the principal, interest and charges of pro- 
 test) demanded in the declaration, or any part thereof, and of 
 this &c. 
 
 53. Entry, at the time of pleading non assumpsit, nil debet, or non 
 detinct, of affidavit as to signature to writing. 1 Rob. Prac. 
 207, 8. 
 
 And the said defendant, at the time of so pleading, filed an 
 affidavit that the writing on which this action is brought was not 
 made by him. Or thus: And at the time of entering the said 
 plea, there was filed an affidavit of , that he hath good 
 cause to believe, and does believe, that the writing on which this 
 action is brought was not made or signed by the said ~. 
 
 54. Entry of plea of non est factum and, issue thereon. 1 Rob. 
 
 Prac. 20S. 218. 
 
 The defendant, by his attorney, offered a plea of non est fac- 
 tum in writing, and the truth thereof being proved by his oath, 
 the said plea is received, and the plaintiff, by his attorney, joins 
 issue on the same. 
 
 Or: 
 
 The defendant, by his attorney, offered a plea of non est fac- 
 tum in writing, and the said defendant having proved by his oath, 
 that he verily believes that the deed on which the action is 
 founded is not the deed of the said G. H. deceased, the said 
 plea is received, and the plaintiff, by his attorney, joins issue on 
 the same. 
 
 55. Declaration demurred to ore tenus, and joinder in demurrer. 
 
 1 Rob. Prac. 206. 223. 
 
 The defendant, by his attorney, says that the plaintiff's de- 
 claration and the matters therein contained, in manner and form
 
 Pleas in bar and other proceedings till issue. 89 
 
 as the same are therein stated and set forth, are not sufficient in 
 law for the plaintiff to have or maintain his action against him 
 the defendant ; and the plaintiff says that the same are sufficient 
 for him the said plaintiff to have and maintain his said action. 
 
 56. Plea ore tenus, that action was not commenced within five years, 
 general replication thereto, and issue. 1 Rob. Prac. 206. 79. 
 
 says, that the plaintiff's action was not commenced 
 
 within five years next after the cause of such action ; and the 
 plaintiff replies that the said action was commenced within five 
 years next after the cause thereof, and this he prays may be en- 
 quired of by the country ; and the defendant likewise. 
 
 57. Entry of plea in writing being filed alleging payment, and of 
 
 replication thereto, and issue. 1 Rob. Prac. 209. 
 
 The defendant, by his attorney, filed a special plea in writing, 
 pleading payment in bar, to which the plaintiff, by his attorney, 
 replied that the defendant did not, before action brought, pay 
 the principal and interest due by the condition of the bond, and 
 this he prays may be enquired of by the country; and the de- 
 fendant likewise. 
 
 58. Entry of plea in writing alleging performance of covenants, and 
 
 of replication thereto, and issue. 1 Rob. Prac. 211. 
 
 pleading performance of the covenants alleged by the 
 
 plaintiff to have been broken, to which plea the plaintiff, by his 
 attorney, replies generally, and prays that the matter may be 
 enquired of by the country ; and the defendant doth the like. 
 
 59. Entry of replication being filed to special plea. 1 Rob. Prac. 
 
 218. 220. 
 
 The plaintiff, by his attorney, to the second plea of the defen- 
 dant replies &c. (or, filed a replication in writing.) 
 
 60. Entry of replication to plea of payment in action by administra- 
 tor of a surviving partner, and issue joined. 1 Rob. Prac. 219. 
 220. 
 
 The plaintiff, by his attorney, to the plea of payment pleaded 
 
 by the defendant, replies that the defendant had not, before this 
 
 action was brought, paid the said principal and interest, or any 
 
 part thereof, to the said A. B. and C. D. in the lifetime of the 
 
 12
 
 90 Pleas in bar and other proceedings till issue. 
 
 latter, or to the said A. B. after the death of the said C. D. or 
 to the plaintiff after the death of the said A. B. And this the 
 said plaintiff prays may be enquired of by the country ; and 
 the defendant likewise. 
 
 61. Entry of replication to plea of payment, where the condition is 
 not set out in the declaration, and oyer is not prayed ; and joinder 
 of issue. I Rob. Prac. 219. 220. 
 
 The plaintiff &c. replies that the defendant did not, before 
 this action was brought, pay the debt in the declaration men- 
 tioned, or any part thereof. And this the said plaintiff prays 
 may be enquired of by the country ; and the defendant like- 
 wise. 
 
 62. Entry of rejoinder being filed to special replication. 1 Rob. 
 
 Prac. 221. 
 
 The defendant, by his attorney, to the replication of the plain- 
 tiff to his plea, filed a rejoinder in writing (or, rejoins ge- 
 nerally, and puts himself upon the country.) 
 
 63. Entry of issue made up on rejoinder. 1 Rob. Prac. 221. 
 
 The plaintiff, by his attorney, to the rejoinder of the defen- 
 dant to his replication to the plea in this cause, and of 
 
 which the said defendant hath put himself upon the country, 
 doth the like. 
 
 64. Entry of agreement to prevent special pleading. 1 Rob. Prac. 
 
 218. 
 
 The plaintiff, by his attorney, agrees that the defendant may 
 give in evidence under the general issue (or, under the plea 
 which has been pleaded in this cause) any matter which could 
 be given in evidence under any special plea in bar, good in 
 law, 
 
 65. Entry of plea filed, demurrer thereto, and joinder. 1 Rob. 
 
 Prac. 223, 4. 
 
 The defendant filed a special plea in bar, to which the plain- 
 tiff filed a demurrer, and the defendant joined in the demurrer.
 
 Pleas in bar and other proceedings till issue. 91 
 
 66. Entry of account of set-offs being Jiled with plea. 1 Rob. 
 
 Prac. 224. 227. 
 
 After entering the plea, proceed thus : And the defendant filed 
 with his plea an account, stating the nature of the payments 
 and set-offs which he desires to prove, and the several items 
 thereof. 
 
 67. Entry of plea of tender, and money brought into court. 1 Rob. 
 
 Prac. 236. 
 
 The defendant, by his attorney, offered a plea of tender, and 
 the money tendered being brought into court, the said plea is 
 received, and the clerk is directed to deposit the money in the 
 bank of Virginia to the credit of this suit, subject to the future 
 order of the court. 
 
 68. Entry of special pleas being Jiled under act of April 16. 1831. 
 
 1 Rob. Prac. 229. 
 
 The defendant tendered three* special pleas in bar, in the 
 nature of pleas of set-off, under the statute of April 16. 1831 ; 
 and the said pleas being verified by affidavit in like manner as 
 pleas of non est faclumj the same are received and filed. 
 
 * The defendant is not restricted to one special plea under this statute. Mitchell 
 v. Scott fyc. Circuit court of Henrico and Richmond, June 1840. 
 
 t If the plea be verified by an affidavit like that to the plea of non est factum 
 in Jackson v. Webster, 6 Munf. 462. cited ante, p. 61. the verification will be suffi- 
 cient. S. C. 
 
 69. Entry of special pleas being tendered under said act, and not 
 received for want of proper affidavit. 1 Rob. Prac. 229, 30. 
 
 The defendants tendered &c. (as last) which pleas were ve- 
 rified by the affidavit of the defendant G. but there being no 
 verification by the defendant S. and the pleas being joint, the 
 same are not admitted to be filed. 
 
 70. Entry of special pleas under said act being rejected because not 
 
 offered in time. 1 Rob. Prac. 230. 
 
 The defendants tendered &c. (as in No. 68.) which pleas were 
 verified by a proper affidavit ; but the same are rejected for not 
 having been offered in due time.
 
 92 Pleas in bar and other proceedings till issue. 
 
 71. Entry of special pleas under said act being rejected as naught. 
 
 1 Rob. Prac. 230. 
 
 The defendant &c. (as in No. 68.) which pleas were verified 
 by a proper affidavit ; but the plaintiff opposed the filing of the 
 said pleas, upon the ground that the matters thereof would not 
 entitle the defendant either to recover damages at law from the 
 plaintiff, or to relief in equity against the obligation of the con- 
 tract upon him : And the court, after hearing the arguments of 
 counsel, being of that opinion, doth therefore reject the said pleas 
 as naught. 
 
 72. Entry of demurrer to two pleas under said act, with joinder ; 
 and general replication to third plea t with issue. 1 Rob. Prac. 
 230.' 
 
 To the first and second of the special pleas in bar, pleaded 
 by the defendant, the plaintiff demurs generally, so as to sub- 
 mit the merits of the said pleas, as to the substance thereof, to 
 the judgment of the court; and the defendant joins in the said 
 demurrer. And to the third plea the plaintiff replies, that he 
 ought not to be precluded from his action by reason of the mat- 
 ters in the said plea set forth, in manner and form as they are 
 therein pleaded, because the same are not true ; and this he 
 prays may be enquired of by the country ; and the defendant 
 likewise. 
 
 73. Additional plea offered, and objected to, but allowed to be filed. 
 
 I Rob. Prac. 231. 
 
 The defendant, by his attorney, this day offered an additional 
 special plea in bar, alleging that the same is necessary to the 
 defence of his cause. Whereupon the plaintiff, by his attorney, 
 opposed the filing of the same, upon the ground that it would 
 tend to delay the trial. But the court, being of opinion that the 
 said plea is essential to the justice of the case, and that good 
 reason is shewn by the defendant for not having pleaded it 
 sooner, doth heretfore allow the same to be filed. 
 
 74. Additional plea rejected because delayed too long. 1 Rob. 
 
 Prac. 232. 
 
 The defendant &c. Whereupon the plaintiff &c. (as last.) 
 And the court, being of opinion that no good reason appears 
 why the said plea was not sooner tendered, doth therefore re- 
 fuse to allow the same to be filed.
 
 Pleas in bar and other proceedings till issue. 93 
 
 75. Additional plea rejected because the matter thereof t* already in 
 
 issue, 1 Rob. Prac. 233. 
 
 The defendant, by his attorney, this day offered an additional 
 special plea in bar, and the plaintiff, by his attorney, objected 
 thereto that the matter thereof was already put in issue, and 
 moved that the same should be rejected : Whereupon the court, 
 being of opinion that the facts stated in the said plea are such 
 as might be given in evidence on the general issue which has 
 been heretofore pleaded, doth therefore reject the same. 
 
 ^ 
 
 76. Additional pleas rejected, and opinion of court excepted to. 
 
 White v. Toncray, 9 Leigh 347. 
 
 The defendant, by his attorney, this day offered two addi- 
 tional special pleas, and the plaintiff, by his attorney, objected 
 thereto, and moved that the same should be rejected : Where- 
 upon, the parties being heard, it is ordered that the said pleas 
 be rejected. To which opinion of the court the defendant ex- 
 cepted, and tendered his bill of exceptions, which was received, 
 signed and sealed by the court, and ordered to be made part of 
 the record in the cause. 
 
 77. Improper plea set aside. Kemp v. Mundell fyc. 9 Leigh 12. 
 
 The plaintiff, by his attorney, this day moved the court to set 
 aside the second plea in this cause, upon the ground that the 
 matter thereof could not properly be pleaded in this action ; and 
 the court, being of that opinion, accordingly set aside the said 
 second plea. 
 
 78. General demurrer filed to declaration, after other pleas. 1 Rob. 
 
 Prac. 232. 
 
 The defendant, by his attorney, in addition to the pleas here- 
 tofore pleaded by him, this day filed a general demurrer to the 
 plaintiff's declaration. 
 
 79. Leave granted to amend declaration, and cause remanded to 
 rules. I Rob. Prac. 233. 
 
 On the motion of the plaintiff by his attorney, leave is grant- 
 ed him to amend his declaration, upon condition of his paying 
 to the defendant the costs occasioned him by such amendment. 
 And the cause is remanded to the rules, for further proceedings 
 to be had therein.
 
 94 Pleas in bar and other proceedings till issue. 
 
 80. After argument of a special demurrer to a plea, leave granted to 
 amend the same. 1 Rob. Prac. 235. 
 
 This day came the parties by their attorneys, and thereupon 
 the matter of law arising upon the plaintiff's demurrer to the 
 defendant's plea being argued, it seems to the court that there 
 does exist in the said plea the defect which is specially alleged 
 in the demurrer as the cause thereof, and that the said plea is, 
 for that cause, insufficient in law to bar and preclude the plain- 
 tiff from having and maintaining his action against the defen- 
 dant. Whereupon the defendant moved for leave to withdraw 
 his joinder in the plaintiff's demurrer, and to amend his plea ; 
 and the leave is accordingly granted him, upon condition of his 
 paying the plaintiff the costs occasioned him by such amend- 
 ment. 
 
 81. After argument of demurrer to a replication, leave granted to 
 
 amend the same. 1 Rob. Prac. 235, 6. 
 
 arising upon the defendant's demurrer to the plaintiff's 
 
 replication to his plea being argued, it seems to the court that 
 the said replication is defective, but that the defect is only in 
 form. Whereupon the plaintiff moved for leave to withdraw 
 his joinder in the said demurrer, and to amend his said repli- 
 cation ; and the leave is accordingly granted him, upon condi- 
 tion of his paying the defendant the costs occasioned him by 
 such amendment. 
 
 82. Order remanding a cause to the rules, for the issues to be made 
 
 up. I Rob. Prac. 222. 
 
 Since this suit was placed upon the court docket, pleadings 
 having been filed, upon which issues are not made up, either in 
 law or in fact, it is ordered that the cause be remanded to the 
 rules, to be there further proceeded in. 
 
 83. Order of continuance at the costs of the party asking it. 1 Rob. 
 
 Prac. 250. 
 
 On the motion of the plaintiff (or, defendant) by his attorney, 
 it is ordered that this suit be continued till the next term. But 
 the continuance is at the costs of the said plaintiff (or, defen- 
 dant.)
 
 Judgments not on verdict. 95 
 
 CHAPTER XII. 
 
 JUDGMENTS NOT ON VERDICT. 
 
 1. Entry of judgment in the office, when it becomes final. 1 Rob. 
 
 Prac. 256, 7. 
 
 The judgment obtained at the rules not having been set aside, 
 and the plaintiff being now entitled to a final judgment, it is 
 therefore considered that the plaintiff recover against the defen- 
 dant 8200 the debt in the declaration mentioned, 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. 
 
 Or that the plaintiff recover against the defendant $ 200 the 
 debt (or, parcel of the debt) in the declaration mentioned, with 
 interest thereon &c. from &c. till payment, and his costs by him 
 &c. mercy &c. 
 
 Or that the plaintiff recover against the defendant $ 200, 
 with interest thereon &c. from &c. till payment, the debt and 
 interest in the declaration mentioned, and his costs by &c. 
 mercy &c. 
 
 2. Where goods have been attached, order accompanying judgment. 
 
 I Rob. Prac. 258. 
 
 And it is ordered that the sheriff make sale of the goods 
 
 by him attached, and out of the money arising from such sale, 
 satisfy this judgment, if the money be sufficient; and in case 
 there be any surplus, that he return the same to the defendant. 
 And the sheriff is required to return an account of the sale to 
 the court. 
 
 3. Entry of judgment in the office, when it becomes final against one 
 of several defendants. 1 Rob. Prac. 258 to 261. Sess. Acts 
 1839, p. 42. ch. 65. 
 
 The judgment obtained at the rules against the defendant D. 
 not having been set aside, and the plaintiff being now entitled
 
 96 Judgments not on verdict. 
 
 to a final judgment against him, it is therefore considered that 
 the plaintiff recover against the said defendant D. &c. (as in 
 No. 1.) 
 
 4. Nonsuit in an ordinary case. 1 Rob. Prac. 261, 2. 
 
 This day came the defendant by his attorney, and the plain- 
 tiff, though solemnly called, failed to come and prosecute his 
 suit: wherefore the said plaintiff is nonsuited, and ordered to 
 pay to the defendant five dollars damages according to law, be- 
 sides the costs by the said defendant about his defence ex- 
 pended. 
 
 5. Nonsuit after jury are sworn but before they retire. 1 Rob. Prac. 
 
 261, 2. 
 
 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 plaintiff was 
 solemnly called, but failed to come &c. (as before.) 
 
 6. Discontinuance by plaintiff" after defendant's appearance. 1 Rob. 
 
 Prac. 262. 
 
 This day came the parties by their attorneys, and the plain- 
 tiff not prosecuting this suit farther, but desiring the same to be 
 discontinued, it is ordered that he be nonsuited, and pay to the 
 defendant five dollars damages according to law, besides the 
 costs by the said defendant about his defence expended. 
 
 7. Retraxit. 1 Rob. Prac. 262, 3. 
 
 This day came the plaintiff in his proper person, and here in 
 open court he acknowledges that he cannot support his action, 
 and voluntarily withdraws the same, and renounces the cause 
 thereof: wherefore, on the motion of the defendant by his attor- 
 ney, it is considered by the court that the plaintiff take nothing 
 by his bill, but for his false clamor be in mercy &c. and that the 
 defendant go thereof without day, and recover against the plain- 
 tiff his costs by him about his defence expended. 
 
 8. Discontinuance by consent, without damages or costs. 
 
 This day came the parties by their attorneys, and the plain- 
 tiff, not caring to prosecute this suit farther, consents that the 
 same may be discontinued, provided there be no judgment
 
 Judgments not on verdict. 97 
 
 against him for damages or costs;* and the defendant agreeing 
 thereto, the said suit is discontinued accordingly. 
 
 * If only the damages be relinquished, omit here the words " or 
 costs," and after the words " the said suit is discontinued accordingly," 
 add these words : " and it is ordered that the plaintiff pay unto the de- 
 fendant his costs." 
 
 9. Principal and interest brought into court, and judgment entered 
 
 only for costs. 1 Rob. Prac. 256. 404. 
 
 The defendant this day brought into court $ 110.13 cents, the 
 amount of the principal and interest due upon the bond on which 
 this action is brought : Therefore the said defendant is dis- 
 charged from the penalty of the said bond. And it is considered 
 that the plaintiff recover against the defendant only his costs by 
 him about his suit expended. And the court doth order that 
 the money so brought into court be paid by the clerk to the 
 plaintiff, if he will receive it, and if not, that the same be depo- 
 sited by the clerk in the bank of Virginia to the credit of this 
 suit, subject to the future order of the court. 
 
 10. Debt being paid after suit brought, suit dismissed at defendant's 
 
 costs. 1 Rob. Prac. 404. 
 
 This day came the parties by their attorneys, and the plain- 
 tiff acknowledging that the debt for which this action was brought 
 has been paid since the action was commenced, by consent of 
 the said parties it is ordered that this suit be dismissed, and that 
 the defendant pay unto the plaintiff his costs. 
 
 11. Certificate of defendant in slander produced and recorded by con- 
 
 sent, and suit dismissed at defendant's costs. 
 
 This day &c. and thereupon, by their consent, a certain wri- 
 ting, which was produced in court by the defendant, is ordered 
 to be entered of record, and the same is as follows : (Here in- 
 sert it.) And by the further consent of the said parties, it is or- 
 dered that this suit be dismissed, and that the defendant pay to 
 the plaintiff his costs. 
 
 12. Judgment upon confession in court, in debt on bond or bill penal. 
 
 1 Rob. Prac. 263. 
 
 This day came the parties by their attorneys (or, the parties 
 in proper person or, as well the plaintiff by his attorney, as 
 13
 
 98 Judgments not on verdict. 
 
 the defendant in his proper person) and the defendant* acknow- 
 ledges the plaintiff's action : Therefore it is considered by the 
 court that the plaintiff recover against the defendant $200, the 
 debt &c. (as in No. I.) 
 
 * If there has been a plea, insert the words " relinquishing his former 
 plea," before the words " acknowledges the plaintiff's action." 
 
 13. Judgment upon confession, for debt and interest demanded, or for 
 
 debt, interest and charges of protest demanded. 
 
 that the plaintiff recover against the defendant $200, 
 
 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 and interest (or, the principal, inte- 
 rest and charges of protest) in the declaration demanded, and 
 his costs by him about his suit in this behalf expended. And 
 the said defendant in mercy &c. 
 
 14. Judgment upon confession, in debt on single bill or ftromissory 
 
 note, where no interest is demanded. I Rob. Prac. 264. 
 
 This day came &c. and the defendant, relinquishing his former 
 plea,* acknowledges the plaintiff's action fort the debt in the de- 
 claration demanded, with interest thereon from the day of 
 
 till paid, and the costs : Therefore it is considered by the 
 
 court that the plaintiff recover against the defendant $200 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 by &c. 
 
 * If there has been no plea, these words will of course be omitted. 
 
 t If the judgment be confessed for only part of the claim, insert here 
 " $ parcel of," and after the word " therefore" say, " with the as- 
 sent of the plaintiff, it is considered by the court that the plaintiff re- 
 cover against the defendant the said $ , with interest thereon &/c." 
 
 15. Judgment upon confession, in assumpsit or covenant. 1 Rob. 
 
 Prac. 264. 
 
 (As before to " acknowledges the plaintiff's action.") And the 
 parties agree that the plaintiff hath sustained damages, by occa- 
 sion of the nonperformance of the promises and assumptions* in the 
 declaration mentioned, to $ 100 besides his costs, and that there 
 
 shall be interest on the said damages from the day of : 
 
 Therefore it is considered by the court that the plaintiff recover
 
 Judgments not on verdict. 99 
 
 against the defendant his damages agreed as aforesaid, with in- 
 terest thereon to he computed after the rate of six per centora 
 
 per annum from the said day of till payment, and his 
 
 costs by &c. 
 
 * If the action be covenant, then, in lieu of the words in italics, use 
 these words " breaches assigned in the declaration, of the covenants 
 in the said" &/c. 
 
 16. Judgment upon confession, in debt on bond with collateral condi- 
 tion. 
 
 This day came &c. and the defendant &c. And the parties 
 agree that the plaintiff hath sustained damages, by occasion of 
 the breach assigned in the declaration, of the condition of the 
 writing obligatory in the said declaration mentioned, to $ 343.52 
 cents, and that there shall be interest on the said damages from 
 
 the day of : Therefore it is considered by the court 
 
 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 agreed 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 the costs. 
 
 17. Judgment upon confession in detinue. 
 
 This day &c. and the defendant &c. And the parties agree 
 that the slave in the declaration demanded is of the value of 
 $ 400, and that the plaintiff hath sustained damages, by occasion 
 
 of the detention of the said slave, to $ . Therefore it is 
 
 considered by the court that the plaintiff recover against the de- 
 fendant the negro man slave named Will, in the said declaration 
 demanded, if he may be had, or the value aforesaid of him if he 
 may not be had, together with the damages agreed as aforesaid, 
 and his costs &c. mercy &c. 
 
 18. Judgment upon confession in action of tort. 
 
 This day &c. and the defendant &c. And the parties agree 
 that the plaintiff hath sustained damages, by occasion of the 
 
 matters in the declaration mentioned, to S . Therefore it is 
 
 considered by the court that the plaintiff recover against the de- 
 fendant his damages agreed as aforesaid, and his costs &c. And 
 the said defendant may be taken.
 
 100 Judgments not on verdict. 
 
 \ . 1 /"^ ' . j t \ . i --':%- * 3J 
 
 19. Confession -of j'w&toknti with stay of execution. 
 
 MM " A jWn^ 
 
 After the fudgtyCMt, add these words: And the plaintiff agrees 
 
 to stay the execution of this judgment until the day of 
 
 next. 
 
 20. Where the judgment confessed is by an executor or administrator. 
 
 I Rob. Prac. 265. 
 
 Before the words " and the said defendant in mercy &c." insert 
 these words : " to be levied of the goods and chattels of the de- 
 cedent in the hands of the defendant to be administered." 
 
 If the single plea of fully administered was pleaded, and this is 
 admitted, the entry will be as follows: 
 
 This day came the parties by their attorneys, and the plain- 
 tiff, not denying the matters pleaded by the defendant, prays 
 such judgment as he is entitled to notwithstanding the said plea : 
 Therefore it is considered by the court that the plaintiff recover 
 against the defendant $ 200, with interest thereon &c. from &c. 
 till payment, the debt and interest in the declaration demanded, 
 and his costs &c. 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 as aforesaid, have come, or which shall 
 hereafter come, to the hands of the said defendant to be admi- 
 nistered. And it is further considered that the defendant reco- 
 ver against the plaintiff his costs by him about his defence ex- 
 pended. 
 
 21. Where the suit is against several defendants, and the action is 
 
 confessed by one. I Rob. Prac. 265, 6. 
 
 This day came &c. and the defendant A. relinquishing his 
 former plea, acknowledges the plaintiff's action. And the cause 
 remains without judgment upon that confession, until a final 
 judgment can be given as to all the defendants. 
 
 22. Power of attorney for confessing judgment. 1 Rob. Prac. 268. 
 
 To A. B. and C. D. attorneys practising in the circuit supe- 
 rior court of law and chancery for the county of H., jointly and 
 severally ; or to any other attorney practising in that court. 
 
 An action having been brought against me in the said court 
 by E. F. I hereby desire and authorize j'ou, or any one of you, 
 to appear for rne in the said action, and confess the same, and 
 surfer judgment to be entered therein against me for the sum of 
 $ , with interest- thereon from the day of till
 
 Judgments not on verdict. 101 
 
 paid, and the costs. And for so doing this shall be to you, and 
 every of you, a sufficient warrant and authority. In witness 
 whereof I have hereunto set my hand and seal, this day 
 
 [seal.] 
 
 Signed, sealed and delivered > 
 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- 
 <rival, being an averment of consideration, and not a description of the 
 instrument, the want of these words in the assignment will not be a valid 
 ground of objection for variance. See opinion of Roane, J. in M ' Wil- 
 liams v. Smith, 1 Call 125. And as to the evidence to sustain the aver- 
 ment, it is considered that every assignment imports in itself a valuable 
 consideration. See opinion of Tucker, J. in Gofidall v. Stuart, 2 H. &, 
 M. 111. 
 
 t It is considered that the sum received by the assignor, and not the 
 amount of the bond, fixes the extent of the assignor's liability when 
 there is proof to shew the sum received. See opinion of Green, J. in 
 ! Vhiticorth v. Adams, 5 Rand. 377. Stubbs v. Burwdl, 2 H. & M. 540. 
 But in the absence of proof shewing the sum which the assignor actu- 
 ally received for his assignment, it must be presumed that he received 
 an equal sum with that due upon the bond. See opinion of Carrington, 
 J. in Mackic's ex' or v. Davis, 2 Wash. 23! . And the assignee then re- 
 covers of the assignor the amount of the bond with the costs of the suit 
 against the obligor. See opinion of Fleming, J. in Goodall v. Stuart, 
 2 H. & M. 115. 
 
 16. Count against assignor alleging notorious insolvency. 
 
 After describing the obligation and stating the assignment, proceed 
 as follows : 
 
 And the plaintiffs say that the sum of money specified in the 
 said writing obligatory was not paid at the time appointed therein 
 for payment, or at any other time, before or since, but that the 
 same is still in arrear and unpaid. And the said plaintiffs aver, 
 that before the time of payment mentioned in the said writing 
 obligatory, the said /. B. B. became totally and notoriously in- 
 solvent, and unable to pay the said sum of money mentioned in 
 the said writing obligatory, or any part thereof, and that ever 
 since the said time of payment, the said J. B. B. has been and 
 still is totally and notoriously insolvent and unable to pay the 
 said sum of money, or any part thereof, and that the said plain- 
 tiffs have, hitherto, been unable to recover, and cannot now re- 
 cover, from the said J. B. B. the said sum of money, or any part 
 thereof. Of all which the said L. S. heretofore, to wit, on
 
 520 Declarations in assumpsit. 
 
 at &c. had notice. By reason whereof the said L. S. became 
 liable to pay to the plaintiffs the sum of money specified in the 
 said writing obligatory, &c. (as last). 
 
 17. After judgment by second assignee against obligor, and return 
 of nulla bona, count by first assignee against his assignor. See 
 Goodall v. Stuart, 2 H. & M. 105. 
 
 After describing the obligation, stating both assignments, and setting 
 forth the judgment against the obligor, and return of nulla bona, pro- 
 ceed as follows : 
 
 By reason whereof the said plaintiff became liable to pay to 
 the said T. N. the sum of money specified in the said writing 
 obligatory, with interest thereon as aforesaid and the costs afore- 
 said : and being so liable, the said plaintiff in consideration 
 thereof, afterwards, to wit, on &c. at &c. paid the same to the 
 said T. N. ; and the defendant was, then and there, liable to pay 
 the same to the plaintiff, and being so liable, afterwards, to wit, 
 on the day and year last aforesaid, at &c. undertook and pro- 
 mised the plaintiff to pay him the same, when he the said defen- 
 dant should be thereto afterwards required. Nevertheless &c. 
 (as in No. 15.) 
 
 18. For breach of a promise to marry. 
 
 Formerly, it was doubted whether any action could be maintained on 
 mutual promises to marry, but that is a point not now to be disputed. 
 Holt v. Ward, 2 Str. 938. 
 
 A contract to marry made by a person of full age with an infant is 
 not void but only voidable at the election of the infant. As to the per- 
 son of full age it absolutely binds. A demurrer was therefore sustained 
 to a plea alleging that the plaintiff at the time of the promise, was an 
 infant of 15 years of age. S. C. 
 
 The following precedent is copied from the declaration in the case of 
 Milstead v. Redman, 3 Munf. 219. 
 
 For that on the day of in the year , in 
 
 the county aforesaid, he the said J. M. then being sole and un- 
 married, in consideration that the said Jane, she being also then 
 sole and unmarried, at the special instance of the defendant, 
 had, then and there, agreed and undertaken, and faithfully pro- 
 mised the said defendant that she the said Jane the plaintiff 
 would take the said defendant to be her husband within the 
 space of six months then next following, he the said defendant 
 undertook and, then and there, faithfully promised the said 
 plaintiff Jane, that he the said Joseph, the defendant, would take 
 to his wife the said Jane the plaintiff, within the said space of
 
 Declarations in assumpsit. 521 
 
 six months then next following ; and the said Jane the plaintiff, 
 confiding in the said promise and undertaking of the said defen- 
 dant, hath always from thence, hitherto, refused to contract 
 matrimony with any other man whatsoever, and still remains 
 and is sole and unmarried, and always from the lime of making 
 the promises and undertakings aforesaid, for the said space of 
 six months, then next following, and always from thence after- 
 wards hitherto, she the said plaintiff being sole and unmarried, 
 was and is ready to take to her husband the said defendant, 
 and very often within that time, offered to take to be her hus- 
 band the said defendant. Yet the said defendant not in the 
 least regarding his many promises or oaths, but contriving and 
 fraudulently intending, craftily and subtily to deceive the said 
 plaintiff, hath not within the time aforesaid, nor at any time 
 since, taken to wife the said plaintiff, although often required so 
 to do; but he wholly hath refused and still doth refuse to take 
 her : Whereby, she the plaintiff is damaged $ 1000 ; and there- 
 fore she sues. 
 
 As to what may be pleaded by the defendant, see Young v. Murphy, 
 3 Bingh. N. C. 54. 32 Eng, Com. Law Rep. 38. 
 
 19. Of bailment. 
 
 Wheat may be the subject of bailment for the purpose of being con- 
 verted into flour for the use of the bailor. Such bailment undeniably 
 exists where the flour of the same wheat is to be received in return ; 
 and the character of the transaction is not lost, when, for general con- 
 venience, the wheat delivered at a mill by many customers, is agreed to 
 be put into a common stock and a return made out of the common mass 
 of flour. This was the case in Slaughter v. Green and others, 1 Rand. 
 3. The plaintiff delivered wheat into a mill of the defendants, and was 
 to receive therefor a certain quantity of flour. The quantity of flour 
 so to be returned was not to be out of the particular wheat delivered by 
 the plaintiff. But it appeared that by a common usage, the wheat sent 
 to the mill by different persons was mixed together, flour was ground 
 from the mass so mixed, and out of the flour so ground, each person 
 sending wheat to the mill was to receive a certain quantity, proportioned 
 to the quantity of wheat. Before the plaintiff received flour for his 
 wheat, the mill was accidentally burnt by fire. It was so burnt when 
 there was in the mill flour &,c. enough to satisfy all the claims upon the 
 mill for the same. The court of appeals held that the plaintiff was a 
 bailor, and the wheat remaining his property, the loss was to be borne by 
 him. 
 
 66
 
 522 Declarations in assumpsit. 
 
 20. Against a common carrier. 
 
 A common carrier is liable for all accidents to goods entrusted to him 
 for transportation, except such as arise from the act of God, the act of 
 the enemies of the commonwealth, or the act of the owners of the goods. 
 Murphy 4*c. v. Staton, 3 Munf. 239. 
 
 Although the defendant should prove that the navigation of the river, 
 on which the loss happened, is attended with so much danger that such 
 loss might happen notwithstanding the utmost endeavours of the water- 
 man and crew to prevent it, and though in connexion with this, there 
 be also proof that the person conducting the boat possesses competent 
 skill, that he has used due diligence and has provided hands of sufficient 
 strength and experience to assist him in the conduct of the boat, the de- 
 fendant will notwithstanding be held liable. S. C. 
 
 In the case in which the following declaration was filed, the defendant 
 pleaded certain pleas which were adjudged good on demurrer. See those 
 pleas, ante, p. 73. No. 21. 
 
 For that whereas the said E, W. heretofore, to wit, on the 
 
 day of at , to wit, at , in the county 
 
 of H. aforesaid, being, there, then and for some time before, 
 owner of certain boats employed by him, as a common carrier, 
 in carrying and conveying goods and merchandize, wheat, flour, 
 tobacco, and other articles and country productions, by water 
 from and to the city of R. in the county aforesaid, to and from 
 places on the canal, river, and branches of James river, in con- 
 sideration of this, that the said plaintiff to wit, on the day 
 
 of at Palmyra, on the Rivanna, a branch of James river, 
 
 at the request of the said E. W. had laden, in good order and 
 condition, on board a certain boat owned by him the said E. W. 
 and employed by him as aforesaid, eighty barrels of flour of 
 great value, to wit, of the value of $500, to be by him the said 
 E. W. in his said boat, for certain freight and reward to him in 
 that behalf, conveyed from Palmyra aforesaid to R. aforesaid, 
 and there (viz. at R. aforesaid) in like order and condition, and 
 without loss or damage, safely and securely delivered, and also 
 in consideration of the said freight and reward to him in that 
 behalf he the said E. W. undertook the said eighty barrels of 
 flour so as aforesaid laden on board his said boat at Palmyra 
 aforesaid thence without loss or damage safely and securely to 
 carry, convey, take care of, and deliver in good order and con- 
 dition at Richmond aforesaid, to the said plaintiff or his agent. 
 Nevertheless the said E, W. his servants and agents afterwards 
 
 to wit, on the day of at to wit, at in 
 
 the county aforesaid, so negligently and improvidenlly managed 
 the said eighty barrels of flour in carrying and conveying the 
 same from Palmyra aforesaid to Richmond aforesaid, and in
 
 Declarations in as&umpsit. 523 
 
 taking care thereof, that for the want of the care of the said E. 
 
 W. his servants, and agents, of the said barrels of flour 
 
 were greatly damaged by wet, and the residue thereof utterly 
 lost. Whereupon the said plaintiff' says he is injured, and hath 
 sustained damage to the value of $200, and therefore he brings 
 suit &c. 
 
 21. Against a vendee for the price of goods sold and virtually 
 
 delivered. 
 
 It is a settled rule of the common law that property in personal chat- 
 tels passes only by actual delivery of the thing except in cases in which 
 some equivalent delivery is agreed upon by the parties or is established 
 by custom or usage, and then a virtual delivery is substituted for actual 
 delivery of the thing. But, in these cases, unless the thing was in a 
 condition to be delivered without more to be done by the vendor, either 
 as regarded the price or the quantity, as there could be no actual delivery 
 until that was done by the vendor, so there can be no virtual delivery 
 equivalent to it. And all the cases on the subject appear to have turned 
 on the enquiry, whether from the nature of the subject, it was or was 
 not, in a deliverable condition, that is, without more to be done by the 
 vendor affecting the price or the quantity of the thing to be delivered. 
 Brooke, pres't, in Pleasants v. Pendleton, 6 Rand. 503. 
 
 The case just cited was a case of a cash sale in the city of Richmond, 
 by one merchant to another of 119 barrels of flour per bill of parcels, 
 lying in a certain warehouse. The seller gave to the purchaser an or- 
 der on the keeper of the warehouse for the delivery of the flour, speci- 
 fying the whole number of barrels sold, the different mill brands upon 
 the flour and the number of barrels of each brand. The purchaser 
 gave to the seller a bank check for the amount of the purchase. And 
 the seller executed a receipt for the same. On the morning after the 
 sale, before the flour was actually delivered, the warehouse caught fire, 
 and, with the flour in it, was entirely consumed, and the check, being in 
 the counting room of the seller, which was a part of the same building, 
 was consumed also. It appeared that it was in the common usage of 
 trade in the city of Richmond for flour in store to be sold by draft or or- 
 der on the storekeeper, and to pass by that mode of transfer through 
 many different hands, without actual delivery. Upon this case, the court 
 It-eld that the contract of sale was complete ; that the property in the 
 flour was in the purchaser ; and that he was to bear the loss. 
 
 In the same case it appeared that it was the usage in Richmond to 
 charge the seller with the storage and deliver the flour to his order when 
 called for ; that the storage due on said flour had not been paid at the 
 time of the fire ; but the warehouse keeper said that he would have de- 
 livered any flour of the seller to his order on demand, holding him re- 
 sponsible for the storage. It was further stated that it sometimes hap- 
 pened that the flour when about to be delivered required coopering, in 
 which case, according to usage, the cooperage is done by the storer, at 
 the expense of the vendor ; that sometimes out of a hundred barrels no 
 cooperage is required, but sometimes 40 out of a hundred barrels re-
 
 524 Declarations in assumpsit. 
 
 quire it. Upon these facts it was contended that the case fell within 
 that class of cases where something still remained to be done by the 
 vendor to complete the contract. But the court of appeals decided 
 otherwise, being of opinion that the charge for storage and the charge 
 for cooperage (if indeed the latter was required) would have presented 
 no obstacle to the delivery of the flour between the sale and the fire. 
 
 In the same case it further appeared that the vendor at the time of 
 the sale had in the warehouse 123 barrels of fine flour of the brands 
 specified, viz. two more of one brand and two more of another brand 
 than were sold, and it was contended that there was no such separation 
 as would enable the vendee to designate any particular barrels as his 
 property. It was however shewn that between barrels of fine flour of 
 the same mill brand, there was no difference in the market as to prictf, 
 and it could not have been of the slightest importance to the vendee 
 which two barrels were left out of the two brands of which there was a 
 surplus quantity. Upon this point the case of Jackson v. Anderson, 4 
 Taunt. 24. was an express authority, and it was held that the property in 
 the 119 barrels passed to the vendee, notwithstanding the want of sepa- 
 ration from the other flour. 
 
 22. Against a purchaser at auction, failing to comply with the terms 
 for the loss upon a resale. 
 
 Webster Sfc. v. Hoban, 7 Cranch 399. was a case of a sale of a house 
 at auction, and the terms of the agreement had to be sought for in the 
 articles exhibited by the auctioneer at the time of sale. They provided 
 " that the purchaser should secure the purchase money with interest by 
 his promissory notes with two approved endorsers, payable in 6 and 12 
 months," and "that the purchaser should be allowed 30 days to comply 
 with these terms, at which time, in case of compliance, he should re- 
 ceive a good and complete title to the property, and on failing to com- 
 ply within the 30 days, the property was then to be resold on account of 
 the first purchaser." The purchaser failed to give his promissory notes 
 within the 30 days, or at any time afterwards. And then the vendor, 
 without any resale of the property, brought an action against the pur- 
 chaser, contending that the remedy by resale was merely cumulative, 
 and did not take away the right of action against the defendant, for his 
 violation of the contract. It was however decided that the vendor 
 could maintain no action upon the contract, without first resorting to a 
 resale and ascertaining the deficit. 
 
 And thereupon the said plaintiff saith, that heretofore, to wit, 
 on the 24th day of June 1830, at the said county of H. to wit, 
 at the auction store of E. fy A. H. in the city of R. in the said 
 county of H. he the said plaintiff, put up and exposed to sale, by 
 public auction, under the direction of the said E. fy A. H. who 
 were then auctioneers in the said city, and the agents of the said 
 plaintiff in that behalf, a negro man slave named Christopher, 
 the property of the said plaintiff, then being at the auction store
 
 Declarations in assumpsit. 525 
 
 aforesaid, upon and subject to the following amongst other con- 
 ditions of sale, that is to say, that the highest bidder should be the 
 purchaser, that the purchaser should immediately pay down into 
 the hands of the auctioneers, that is to say, the said E. fy A. H. 
 the amount of the purchase money, and that the said plaintiff 
 should deliver the said slave to the purchaser, and give to the 
 purchaser a warranty, warranting the said slave against the 
 claims of all persons whatsoever, and likewise warranting him 
 to be sound and healthy, and free from rheumatism. And the 
 said plaintiff further saith, that on the said exposure to sale, to 
 wit, on the day and year first aforesaid, at the county aforesaid, 
 the said T. B. S. was the highest bidder for, and, then and there, 
 became, and was, in due manner, declared to be the purchaser 
 of the said slave, at and for a certain large sum of money, to 
 wit, the sum of $ 343. And thereupon, afterwards, to wit, at the 
 day and year first aforesaid, at the county aforesaid, in conside- 
 ration thereof, and that the said plaintiff, at the special instance 
 and request of the said T. B. S. had. then and there, underta- 
 ken and faithfully promised the said T. B. S. to perform and 
 fulfil all things in the said conditions of sale contained, on the 
 part of the vendor to be performed and fulfilled, he the said T. 
 B. S. undertook and, then and there, faithfully promised the said 
 plaintiff to perform and fulfil every thing in the said conditions 
 of sale on his part and behalf, as such purchaser as aforesaid, 
 to be performed and fulfilled. And the plaintiff avers, that al- 
 though he the said plaintiff for a longtime before and upon and 
 after the said 24th day of June 1830, was ready and willing to 
 deliver the said slave to the said T. B. S. and to give to the said 
 T. B. S. a warranty, warranting the said slave against the claims 
 of all persons whatsoever, and likewise warranting him to be 
 sound and healthy, and free from rheumatism, and afterwards, 
 to wit, on the day and year last aforesaid, at the county afore- 
 said, offered to the said T. B. S. upon his paying the said pur- 
 chase money, according to the said terms and conditions of sale, 
 to deliver the said slave to him the said T. B. S. and to execute 
 to the said T. B. S. a bill of sale for the said slave, warranting 
 and defending the right and title of the said slave against the 
 claims of all persons whatsoever, and likewise warranting him 
 sound and healthy, and more particularly free from rheumatism, 
 yet the said T. B. S. not regarding the said terms and condi- 
 tions of sale, nor his said promise and undertaking, did not, nor 
 would, on the said 24th day of June 1830, or at any other time, 
 pay the said purchase money according to the said terms and 
 conditions of sale, or any part thereof, but wholly neglected and 
 refused so to do, to wit, on the said 24th day of June 1830, at 
 the county aforesaid, and thereupon the said plaintiff afterwards,
 
 526 Declarations in assumpsit. 
 
 and after the said 24lh day of June 1830, to wit, on the 29th 
 day of June 1830, at the county aforesaid, again exposed the 
 said slave to sale, by public auction, under and subject to certain 
 terms and conditions of sale, which were to the same effect as 
 those hereinbefore mentioned, and the said slave was, then and 
 there, at such last mentioned exposure to sale as aforesaid, re- 
 sold for a much less price or sum of money than the said price 
 or sum for which he had been sold to the said T. B. S. as afore- 
 said, to wit, for the sum of $ 318, whereby there, then and there, 
 was a deficiency between the said price for which the said slave 
 was so sold to the said T. B. S. as aforesaid, and the price for 
 which the said slave was so sold on such resale to a large 
 amount, to wit, to the amount of $ 25, and the charges incurred 
 in keeping the said slave, from the time he was first sold as afore- 
 said until such resale, together with the charges attending such 
 resale, then and there, amounted to a certain other large sum of 
 money, to wit, the sum of $ 14.32 cents : of all which said pre- 
 mises the said T. B. S. afterwards, to wit, on the day and year 
 last aforesaid, at the county aforesaid, had notice: And by rea- 
 son of the premises, he the said T. B. S. then and there, be- 
 came liable to pay to the said plaintiff the said several sums of 
 25 dollars, and of 14 dollars 32 cents, to wit, at the county afore- 
 said. Yet the said T. B. S. hath not, although he was often re- 
 quested so to do, as yet paid the said sums of 25 dollars, and 14 
 dollars and 32 cents, or eilher of them, or any part thereof, but, 
 so to do, hath wholly refused, and still doth refuse, to wit, at the 
 county aforesaid. 
 
 Add common counts, according to the form in No. 43. 
 
 1st, for the price and value of a certain slave;. 
 
 2dly, for money which the defendant had become liable to pay to the 
 plaintiff for a deficiency between the price at which the defendant, be- 
 fore that time had become the purchaser from the plaintiff of a certain 
 slave bargained and sold to the defendant, at his special instance and re- 
 quest, and the nett amount produced upon a resale of the said slave af- 
 terwards made, in consequence of a failure by the defendant to comply 
 with the terms of his said purchase ; 
 
 3dly, for money lent; 
 
 4thly, for money paid ; 
 
 5thly, for money due on account stated ; 
 
 And then a general conclusion, according to the form in No. 44; 
 stating the promise and breach as to all except the first count. 
 
 \
 
 Declarations in assumpsit. 527 
 
 23. By tfte purchaser of a slave or other chattel upon the warranty 
 
 of title. 
 
 In an action on a warranty of title to a chattel, it is sufficient proof 
 of the warranty that the vendor affirmed the chattel to be his ; and the 
 action lies on such affirmation. Brockenbrough, J. in Brown v. Shields, 
 6 Leigh 445, 6. citing 3 Stark. Law Ev. part 4. p. 1661. Medina v. 
 Stoughton, 1 Salk. 210. 
 
 But a count in such action cannot be considered to be in assumpsit 
 when it lays no assumpsit or promise, and does not correspond at all 
 with the form of declaring in assumpsit upon a representation. Tucker, 
 P. in Brown v. Shields, 6 Leigh 465. 
 
 24. By the purchaser of a slave warranted sound, who was diseased 
 
 at the time, and remained so until her death. 
 
 For that whereas the said defendant heretofore, to wit, on the 
 9th day of December, in the year 1822, in the said county of 
 H. in consideration that the said plaintiff, at the special instance 
 and request of the said defendant, would buy of him, the said 
 defendant, three certain negro slaves named Rose, Maria and 
 Kendall, at and for a certain price or sum of money, to wit, the 
 sum of S 860, to be therefor paid by him the said plaintiff, he, 
 the said defendant, undertook and, then and there, faithfully 
 promised the said plaintiff that the said negro slaves then were 
 sound. And the said plaintiff avers, that he, confiding in the 
 said promise and undertaking of the said defendant, did after- 
 wards, to wit, on the same day and year aforesaid, at the parish 
 aforesaid, buy the said negro slaves of the said defendant, and 
 then and there, paid him for the same the said sum of $860. 
 Nevertheless, the said defendant, contriving and intending frau- 
 dulently to injure the said plaintiff, did not regard his said pro- 
 mise and undertaking, so by him made as aforesaid, but thereby 
 craftily and subtily deceived and defrauded the said plaintiff in 
 this, to wit, that the said negro slave named Rose, at the time 
 of the making of the said promise and undertaking of the said 
 defendant, was not sound, but on the contrary thereof, was at 
 
 the time unsound and diseased, and so remained until the 
 
 day of , in the year 1S23, when she died : Whereby the 
 
 said plaintiff was put to great expense of his money in and 
 about the feeding, taking care of and procuring medical atten- 
 dance upon the said negro slave, in the whole amounting to a 
 
 large sum of money, to wit, the sum of $ . 
 
 And whereas, afterwards, to wit, on the same day and year 
 aforesaid, in the county aforesaid, in consideration that the said 
 plaintiff, at the like special instance and request of the said de-
 
 528 Declarations in assumpsit. 
 
 fendant had, then and there, bought of him the said defendant, 
 three certain other negro slaves named Rose, Maria and Kendall, 
 at and for a certain other price or sum of money, then and 
 there, agreed upon between him, the said plaintiff', and the said 
 defendant, he, the said defendant, undertook and, then and 
 there, faithfully promised the said plaintiff that the said last 
 mentioned slaves, at the time of the sale thereof, were sound. 
 Nevertheless, the said defendant contriving &c. (as in first count 
 to ) in this, to wit, that the said negro slave named Rose, at 
 the time of the sale thereof, was not sound, but the said negro 
 slave was, then and there, diseased and unsound, and so re- 
 mained and continued until the day of , in the year 
 
 1823, when she died. Whereby &c. (as in first count.) Where- 
 fore the said plaintiff saith, that he is injured and has sustained 
 
 damage to the amount of $ ; and therefore he brings 
 
 his suit. 
 
 25. By the purchaser of a horse warranted sound, (and offered to be 
 returned upon being discovered to be unsoimd,) for the expense of 
 keeping, and the loss upon a resale. 
 
 In M 'Kenzie v. Hancock, Ryan &- Moody 436. 21 Eng. Com. Law 
 Rep. 484. Littledale, J. in his directions to the jury, said, that with re- 
 spect to the expenses of keeping the horse, though a contrary doctrine 
 very generally prevailed, he was of opinion that the plaintiff was enti- 
 tled to recover those expenses for such a period only, as, under all the 
 circumstances of the case, the jury might fairly consider a reasonable 
 time for the purpose of reselling the horse ; that the practice of reco- 
 vering damages for the keep of the horse, in actions of this sort, was 
 entirely of modern date. According to the old doctrine, it was the 
 duty of the purchaser, upon refusal of the seller to rescind the contract, 
 by taking back the horse, to sell him immediately ; and for this reason, 
 declarations in actions upon warranties, in the old entries, contain no 
 statement of such damages. He thought, however, that the plaintiff was 
 entitled to recover these expenses for so long a time as might reasona- 
 bly be occupied in endeavouring to sell the horse to the best advantage. 
 
 Accordingly, the law upon the subject is thus laid down in mr. Sel- 
 wyn's law of nisi prius, vol. I. p. 657. tit. Deceit I. 2. "As soon as the 
 unsoundness is discovered, the buyer should immediately tender the 
 horse to the seller, and, if he refuses to take him back, sell the horse as 
 soon as possible for the best price that can be procured ; for the pur- 
 chaser is entitled to recover for the keep of the horse for such time 
 only as would be required to resell the horse to the best advantage." 
 
 Chesterman v. Lamb, 2 Ad. &, E. 129. 29 Eng. Com. Law Rep. 48. 
 was an action of assumpsit on the warranty of a horse ; and one of the 
 counts alleged that the plaintiff was put to expense in keeping the horse. 
 The horse was warranted sound. He was tendered back as unsound, 
 and being refused was put at livery and afterwards sold by auction, (the 
 defendant being previously apprised of the intention so to sell him.)
 
 Declarations in assumpsit. 529 
 
 The jury, being of opinion that the horse was unsound at the time of 
 the warranty, found a verdict for the difference between .40. the price 
 given by the plaintiff, and 23 guineas, the sum produced upon the re- 
 sale; and also for<9. 17s. the expense of keeping the horse. 
 
 26. By the purchaser of a horse warranted sound, who proved to be 
 
 unsound, but was not returned or tendered. 
 
 If a horse which is warranted sound at the time of sale, be proved to 
 have been at that time unsound, an action of assumpsit lies upon the 
 warranty, although the horse has not been returned to the seller, and al- 
 though no notice has been given of the unsoundness. But a delay to 
 give notice or make complaint of the unsoundness, may furnish ground 
 for a presumption that the horse, at the time of the sale, had not the de- 
 fect complained of, and so make the proof, on the buyer's part, more dif- 
 ficult. Fielder v. Starkin, 1 H. Bl. 17. Pateshall v. Tranter, 3 Ad. 
 
 6 E. 103. 30 Eng. Com. Law Rep. 39. 
 
 Upon what principles the damages are assessed, see Watson v. Denton, 
 
 7 Car. &. Payne 85. 32 Eng. Com. Law Rep. 446. Ellis v. Chinnock, 
 7 Car. and Payne 169. 32 Eng. Com. Law Rep. 482. Clare v. May- 
 nard, 7 Car. & Payne 741. 32 Eng. Com. Law Rep. 713. S. C. 6 
 Ad. & E. 519. 33 Eng. Com. Law Rep. 137. 
 
 27. By the purchaser of seed warranted good, which were used and 
 
 proved not to be good. 
 
 In Poulton v. Lattimore, 9 Barn. & Cress. 259. 17 Eng. Com. Law 
 Rep. 373. Bayly, J. said : " The seller warranted the seed to be good 
 new growing seed. There was evidence to shew, and the jury have 
 found, that it was not good growing seed. It appears, however, that 
 after the sale, a competent judge tasted the seed, and told the defendant 
 that it was not good growing seed. The defendant did not then give 
 notice to the plaintiff that it was defective in quality, but he proceeded 
 to sow part and to sell the residue. It is insisted that he ought then to 
 have returned the seed, or to have given notice to the seller of its defec- 
 tive quality. As the plaintiff, however, gave an express warranty that it 
 was good growing seed, I think that the defendant might, without re- 
 turning it, shew it did not correspond with the warranty. Besides, the 
 buyer was not bound to trust the assertions of third parties, and to re- 
 turn the seed and treat it as if it was bad seed. He was at liberty to 
 try the seed and sow it. Probably without sowing it, the fact could not 
 be ascertained whether it would ultimately produce a good crop. From 
 the nature of the article, and of the contract of warranty, I think the 
 vendee was not bound to return the seed without using it ; that by keep- 
 ing it, he has not precluded himself from bringing an action for the 
 breach of the warranty." 
 67
 
 530 Declarations in assumpsit. 
 
 28. By the purchaser of an article sold for a particular purpose, 
 upon the implied warranty that it is Jit for that purpose. 
 
 The opinion intimated by lord Tenterden, in the case of Gray fyc. v. 
 Cox Sfc. 4 Barn. & Cress. 103. 10 Eng. Com. Law Rep. 283. that if a 
 person sells a commodity for a particular purpose, he must be understood 
 to warrant it reasonably fit and proper for such purpose, has been fully 
 discussed upon a declaration framed to - suit that opinion, and has re- 
 ceived the sanction of the court of common pleas. The decision was 
 made in Jones v. Bright and others, 5 Bingh. 533. 15 Eng. Com. Law 
 Rep. 529. " The law," says Best, C. J. " resolves itself into this; that 
 if a man sells generally, he undertakes that the article sold is fit for some 
 purpose : if he sells it for a particular purpose, he undertakes that it 
 shall be fit for that particular purpose." 
 
 In the case of Jones v. Bright fyc. copper was purchased for the pur- 
 pose of sheathing a ship. It was paid for, the copper was used, and the 
 ship proceeded on her voyage. The copper proved not to be fit for the 
 purpose, and, though the judges said the conduct of the seller was free 
 of fraud and most upright, the purchaser recovered upon the ground of 
 the unfitness of the copper for the purpose for which it was obtained. 
 
 29. For the use and occupation of a house. 
 
 The action of assumpsit for use and occupation of land, by permis- 
 sion of the plaintiff, may be maintained upon an express promise to pay for 
 the use of the land. Eppes's ex'ors \. Cole and icife, 4 H. & M. 161. 
 And the action also lies upon an implied, as well as an express promise. 
 Sutton v. Mandevillc, 1 Munf. 407. 
 
 And thereupon the said plaintiffs say that heretofore, to wit, 
 on the third day of December 1831, at R. to wit, in the said 
 county of H. by a certain agreement, then and there, made 
 between the said plaintiffs and the said A. L. B. it was 
 agreed by and between the said plaintiffs and the said A. L. B. 
 that the said plaintiffs should rent and deliver possession to the 
 said A. L. B. of a certain inn, with its premises and appurte- 
 nances, situate in the city of R. and county of H. whereof the 
 said plaintiffs were then lawfully possessed, and which was, and 
 is, commonly known by the name of the Eagle hotel, to be held 
 by the said A. L. B. from the said third day of December 1831, 
 for the term of one year, at a certain rent of five thousand dol- 
 lars per annum. And the said plaintiffs aver that they did, then 
 and there, deliver the possession of the said inn, with its pre- 
 mises and appurtenances, to the said A. L. B. who thenceforth 
 had, held and occupied the same, for the said term of one year. 
 By reason whereof the said A. L. B. became liable, at the ex- 
 piration of the said year, to pay to the said plaintiffs the said 
 sum of five thousand dollars; and being so liable, the said A.
 
 Declarations in assumpsit. 531 
 
 L. B. in consideration thereof, after the expiration of the said 
 year, to wit, on the said third day of December 1832, at the 
 county of H. undertook, and, then and there, faithfully promised 
 the said plaintiffs to pay them the said sum of money, when he 
 the said A. L. B. should be thereto afterwards requested. 
 
 And whereas also heretofore, to wit, on the third day of De- 
 cember 1832, at the said county of H. the said A. L. B. was 
 indebted to the said plaintiffs in the sum of five thousand dol- 
 lars, for the use, occupation and profits of a certain inn, com- 
 monly called or known by the name of the Eagle hotel, of the 
 said plaintiffs, by the said A. L. B. and at his special instance 
 and request, and by the sufferance and permission of the said 
 plaintiffs, for a long time before then elapsed, had, held, used, 
 occupied, received and taken, and being so indebted, the said 
 A. L. B. in consideration thereof, afterwards, to wit, on the day 
 and year last aforesaid, at the county aforesaid, undertook, and, 
 then and there, faithfully promised the said plaintiffs to pay them 
 the said sum of money when he the said A. L. B. should be there- 
 unto afterwards requested. Nevertheless the said A. L. B. not 
 regarding his said promises and undertakings, in the said first 
 and second counts mentioned, hath not, (although often requested 
 so to do,) as yet, paid, to the said plaintiffs, the said sums of mo- 
 ney, in the said first and second counts mentioned, or any, or either 
 of them, or any part thereof, but, to pay them the same, hath hi- 
 therto wholly neglected and refused, and still doth neglect and 
 refuse. 
 
 Add common counts in the form prescribed in No. 43. 
 
 For the use and occupation of a certain other messuage, with the ap- 
 purtenances, of the said plaintiffs, by the said A. L. B. at his special 
 instance and request, and by their sufferance and permission, for a long 
 time, before then elapsed, had, held, used, occupied, possessed and en- 
 joyed ; also, 
 
 For money lent ; money paid ; money received ; and money found due 
 on account stated. 
 
 And then conclude in the form prescribed in No. 44. 
 
 30. On a promise to pay the year's hire of a slave and furnish him 
 
 with clothing. 
 
 For this, to wit, that heretofore, to wit, on the 10th day of 
 February 1827, at the said county of H. in consideration that 
 the said plaintiff, at the special instance and request of the said 
 A. A. and C. J., had, then and there, hired to them the said A. 
 A. and C. J. for the year 1827, a certain negro slave named H. 
 the property of the said plaintiff, they the said A. A. and C. J* 
 promised to pay the plaintiff, on the first day of January 1828,
 
 532 Declarations in assunipsit. 
 
 the sum of $42.50 cts. for the hire of the said negro man H. for 
 the said year 1827, and also promised that the said negro man 
 H. should be returned clothed in the usual way that hirelings 
 are clothed. And although the said first day of January 1828 
 hath long since elapsed, yet the said plaintiff saith that the said 
 A. A. and C. J. not regarding their said promise and underta- 
 king, have not, nor hath either of them, paid to him the said 
 plaintiff the said sum of $42.50 cts. or any part thereof, and 
 that the said A. A. and C. J. have -not, nor hath either of them, 
 returned to the said plaintiff* the said negro man H. clothed in 
 the usual way that hirelings are clothed, but to pay the said sum 
 of $ 42.50 cts. or any part thereof, and to clothe, or furnish 
 clothing for, the said negro man H. they have, and each of them 
 hath, hitherto wholly neglected and refused. 
 
 And also for this, to wit, that heretofore, to wit, on the said 
 10th day of February 1827, at the county of H. aforesaid, in 
 consideration that the said plaintiff, at the special instance and 
 request of the said A. A. and C. J. had, then and there, hired to 
 him the said A. A., for the year 1827, on credit, a certain negro 
 man slave named H. the properly of the said plaintiff, they the 
 said A. A. and C. J. undertook, and, then and there, faithfully 
 promised the said plaintiff to pay him, on the first day of Janu- 
 ary 1828, the sum of $42.50 cts. for the hire of the said negro 
 man H. for the said year 1827, and, then and there, also un- 
 dertook and promised that the said negro man H., on the first 
 day of January 1828, should be returned to the plaintiff, clothed 
 in the usual way that hirelings are clothed. And although &c. 
 (like the first count.) 
 
 Add common counts in the form prescribed in No. 43. 
 
 For the hires of divers slaves, by the said plaintiff, before that time, 
 hired to the said defendants, at their special instance and request ; 
 
 For clothing, by the said plaintiff, before that time, provided for, and 
 furnished, to divers slaves, at the special instance and request of the said 
 defendants ; and 
 
 For money lent ; money paid ; money received ; and money due on an 
 account stated. 
 
 And then conclude in the form prescribed in No. 44. 
 
 * Though the promise was in writing, it was deemed most advisable 
 not to insert the words " by their certain note in writing bearing date 
 the day and year aforesaid." For if those words be inserted, it seems 
 necessary, under the decisions of the court of appeals, after setting forth 
 the writing, to allege a legal liability and a promise by reason thereof. 
 The decisions alluded to are cited ante, p. 502.
 
 Declarations in assumpsit. 533 
 
 31. On a promise to pay monthly hire for a slave. 
 
 For that whereas, heretofore, to wit, on &c. at &c. in consi- 
 deration that the said plaintiff, at the special instance and re- 
 quest of the said S. B. would suffer a certain slave named 
 Charles, the property of the said plaintiff, to serve the said S. B. 
 as a hireling, he the said S. B. undertook, and, then and there, 
 faithfully promised the said plaintiff, to pay him the said plain- 
 tiff, for such service of his said slave, certain hire, after the 
 rate of eight dollars per month. And the said plaintiff avers 
 that he, confiding in the said promise and undertaking of the 
 said S. B., did, afterwards, to wit, on &c. at &c. suffer his said 
 slave to serve the said' S. B., and the said slave did there serve 
 him the said S. B. for a long space of time, to wit, for the space of 
 twelve months, then next following, and that the hire of the said 
 slave, during the time aforesaid, and after the rate aforesaid, 
 amounted to a large sum of money, to wit, the sum of $96; 
 whereof the said S. B. afterwards, to wit, on &c. at &c. had 
 notice. 
 
 32. On a writing promising to furnish the bond of another person for 
 the hire of a slave. 
 
 If the contract for hiring be evidenced by a writing which states that 
 the hirer shall be entitled to the bond of a particular person, for the hire, 
 payable at the end of the year, the plaintiff cannot recover upon a gene- 
 ral indebitatus assumpsit for the hire of slaves. The special contract 
 does not authorize such a recovery, because it is not for the stated sum 
 due for the hires of the slaves, but only binds the party for such damages 
 as might have been assessed for a refusal to furnish the bond aforesaid. 
 The special contract differs from the evidence called for by the indebi- 
 tatus assumpsit count also in this, that the former would have warranted 
 a suit before the expiration of the year, upon a demand of the bond 
 and refusal thereof; whereas the case made by the indebitatus assumpsit 
 count presupposes the lapse of the year before the accruing of the action. 
 "Wooddy v. Flournoy, 6 Munf. 506. 
 
 33. For services rendered as a physician. 
 
 The relation of master and apprentice imposes it as a duty upon the 
 master to provide medical attendance for the apprentice, and, in such 
 case, a physician, who renders medical service, may maintain an action 
 against the master, upon his implied assumpsit. Easley v. Craddock fyc. 
 4 Rand. 423. Notwithstanding the legal obligation of the master, the 
 father of the apprentice will be responsible to the plaintiff, if the service 
 was rendered at his instance, but not otherwise. Ibid. 
 
 For that whereas the defendant, on , in the county of 
 
 , was indebted to the plaintiff, in $ , for advice,
 
 534 Declarations in assumpsit. 
 
 prescriptions and visits to, and for attendance upon, and medi- 
 cines prepared for, and administered to, the said R. D. and his 
 apprentices, servants and family, for, and towards, their cure, 
 (whilst they, from time to time before, respectively laboured 
 under various diseases and infirmities,) by the said plaintiff, as 
 a physician, at the special instance and request of the said R. D. 
 
 Add any of the common counts in the form prescribed in No. 43. and 
 then conclude in the form prescribed in No. 44. 
 
 34. By a high sheriff against the administrators of his deputy, for 
 money received by the deputy, virtute officii. 1 Rob. Prac. 52. 
 
 In all actions against sheriffs for money had and received by them, by 
 virtue of their office, the nature of the debt or demand should be so far 
 stated in the declaration as to distinguish it from a private debt or con- 
 tract, in order to prevent surprise. Overton and wife v. Hudson, 2 
 Wash. 172. 
 
 W. D. late sheriff of the county of H. (who sues for the be- 
 nefit of J. P. B.) complains of J. H. and S. P. administrators 
 with the will annexed of J. B. P. deceased, in custody &c. of a 
 plea of trespass on the case, for that whereas a certain E. B. 
 executrix of T. B. who sued for the benefit of W. L. heretofore, 
 to wit, on the 17th day of March 1826, sued out of the county 
 court of H. upon a judgment obtained in the said court, a writ of 
 fieri facias against the goods and chattels of F. L. deceased, at 
 the time of his death, in the hands of W. D. his executor, di- 
 rected to the sheriff of H. county, by which writ the said sheriff 
 was commanded that of the goods and chattels of F. L. de- 
 ceased, at the time of his death, in the hands of W. D. his exe- 
 cutor, late in his bailiwick, he should cause to be made $77.33 
 cents, with six per centum interest thereon, to be computed from 
 the 1st day of July 1S21 till paid, and $ 12.34 cents, which to 
 E. B. executrix of T. B. who sued for the benefit of W. L. in the 
 said county court of H. were adjudged as well for her damages 
 which she sustained by occasion of the non-performance of a 
 certain promise and assumption by the said L. in his lifetime, 
 to the said B. in his lifetime, made, as for her costs by her about 
 her suit in that behalf expended : whereof the said L.'s executor, 
 was convict as appeared of record ; and the said sheriff was by 
 the said writ commanded to have the said money before the 
 justices of the said county court of H. at the courthouse, on the 
 first monday in May, then next ensuing, to render to the said B.'s 
 executrix, who sued &c. of the damages, interest and costs afore- 
 said ; and he was also commanded to have, then there, that
 
 Declarations in assumpsit. 535 
 
 writ, which said writ afterwards, and before the return day 
 
 thereof, to wit, on the day of , in the year 1826, at 
 
 the said county of H. was delivered to the said J. B. P. who 
 then, and from thence until and at and after the return day of 
 the said writ, was a deputy for the plaintiff, who then, and from 
 thence until and at and after the said return day of the said 
 writ, was sheriff of the said county of H. to be executed in due 
 form of law. And the plaintiff saith that, by virtue of the said 
 writ, the said J. B. P. so being deputy sheriff as aforesaid, af- 
 terwards, and before the return day of the said writ was passed, 
 
 to wit, on the day of , in the year 1826, at the said 
 
 county of H. and within the bailiwick of the said sheriffj did 
 have and receive of and from the said W. D. executor as afore- 
 said of the said F. L. deceased, tlie sum of $ 108.21 cents, that 
 being the amount of the said writ, together with the legal costs 
 attending the same. By reason whereof the said J. B. P. de- 
 ceased, in his lifetime, became indebted to the plaintiff in the 
 said sum of $ 103.21 cents ; and being so indebted, he the said 
 J. B. P. deceased, in his lifetime, in consideration thereof after- 
 wards, to wit, on the day and year last aforesaid, at the county 
 aforesaid, undertook, and, then and there, faithfully promised the 
 said plaintiff to pay him the said last mentioned sum of money, 
 when he the said J. B. P. should be thereunto afterwards re- 
 quested. 
 
 And whereas also the said /. B. P. deceased, in his lifetime, 
 afterwards, to wit, on the day and year last aforesaid, at the 
 county aforesaid, was indebted to the said plaintiff in the further 
 sum of S 108.21 cents, for so much money by the said J. B. P. 
 before that time, had and received by virtue of his office of de- 
 puty sheriff of the county of H. to and for the use of the said 
 plaintiff as the sheriff of the said county of H. (the said plaintiff, 
 then and there, being sheriff of the said county of H. at the 
 time when the said money was so had and received by the said 
 J. B. P. by virtue of his said office of deputy sheriff) ; and, being 
 so indebted to the said plaintiff, he the said J. B. P. deceased, 
 in his lifetime, in consideration thereof afterwards, to wit, on the 
 same day and year last aforesaid, at the county aforesaid, un- 
 dertook, and, then and there, faithfully promised the said plain- 
 tiff to pay him the said last mentioned sum of money when he 
 the said /. B. P. deceased, should be thereunto afterwards re- 
 quested. 
 
 Nevertheless the said J. B. P. deceased, in his lifetime, and the 
 said J. H. and S. P. administrators as aforesaid, since the death 
 of the said J. B. P. not regarding the said several promises and 
 undertakings so made by the said J. B. P. in manner and form 
 aforesaid, have not, nor hath either of them, as yet, paid the said
 
 536 Declarations in assumpsit. 
 
 several sums of money, or any, or either, of them, or any part 
 thereof, to the said plaintiff (although often requested so to do), 
 but to pay the same, or any part thereof, to the said plaintiff, the 
 said J. B. P. deceased, in his lifetime, wholly refused, and the 
 said J. H. and S. P. administrators as aforesaid, and each of 
 them, have, ever since the death of the said J. B. P. hitherto, 
 wholly refused, and still refuse, so to do, to the damage of the 
 said plaintiff of $ 300 ; and therefore he brings suit &c. 
 
 35. By an officer who took property under execution and sold the 
 same upon an agreement that he should be indemnified. 
 
 In the case of Crawford and others \. Jarrctt's adm'r, 2 Leigh 630. 
 the declaration contained three special counts, and the defendants de- 
 murred to them. The counts were adjudged good, and the demurrer 
 thereto was overruled. The following precedent is taken from them : 
 
 For that the said E. J., being one of the constables, duly con- 
 stituted and qualified as such, within the county aforesaid, here- 
 tofore, to wit, on the first day of January 1816, at the county of 
 K. aforesaid, at the special instance and request of the said B. 
 A. C. served and levied seven several writs of Jieri facias issued 
 and signed by J. W. esq. a justice of the peace in and for the 
 said county, in favour of the said B. A. C- as plaintiff against 
 the goods and chattels of a certain A. W. and J. B. under and 
 by virtue of which said several writs of Jieri facias, at the like 
 special instance and request of the said B. A. C. he the said E. 
 J. took, into his possession, divers goods and chattels, the pro- 
 perty of the said A. W. and J. B. found and being in and upon 
 certain tenements, and leasehold premises, situated and being 
 in the county aforesaid, leased and demised to the said A. W. 
 and J. B. and others by a certain J. W. and a certain J. A. and 
 S. S. out of which leasehold premises, and other the tenements, 
 certain rents were reserved and payable, and then in arrear and 
 unpaid, by the said A. W. and J. B, to the said J. A. and S. S. 
 and to the said J. W., and which said several goods and chattels 
 were then held and taken as a distress for the satisfaction and 
 security of said rents, and which said rents so due, and then 
 and there in arrear, they the said J. A. and S. S. and the said 
 J. W. severally requested of the said B. A. C. and of the said 
 E. J. that they might be paid the respective sums of money so 
 to them due, and in arrear as aforesaid, that is to say, to the said 
 J. A. and S. S. the sum of $ 1068, and to the said J. W. the 
 sum of $75, and the quantity of 120 bushels of salt, in consi- 
 deration whereof, and on the further consideration that the said 
 E. J. would sell and dispose of the said goods and chattels
 
 Declarations in assumpsit. 537 
 
 under and by virtue of the said writs of fieri facias aforesaid, 
 and, out of the money arising from such sale, satisfy and dis- 
 charge the said several writs of fieri facias, or such money 
 thereof as the sale of the said goods and chattels might amount 
 to, they the said B. A. C., N. G. and J. D. S. at the county 
 aforesaid, on the 8th day of January in the year 1816, by their 
 certain agreement in writing, with their several proper names 
 by each of them thereunto subscribed, the date whereof is the 
 day and year last aforesaid, after reciting that the said E. J. 
 constable as aforesaid had, by virtue of seven executions in the 
 name of the said B. A. C. against the said A. W. and /. B. le- 
 vied the same on the following property, namely, seven chairs, 
 two tables, three beds and furniture, one bureau, one looking- 
 glass, one large and one small trunk, one wooden clock, one 
 cupboard and furniture, two pots, two ovens, one tea kettle arid 
 one small pot, the sale of which was forbidden by J. JF. t and 
 the sale of the balance of the property, that is to say, two yoke 
 of oxen and one cart by the said S. S., agreed and bound them- 
 selves to indemnify the said E. J. constable as aforesaid agree- 
 ably to law. And the said E. J. in fact, saith that he did sell 
 and dispose of the said goods and chattels under and by virtue 
 of the said several writs of fieri facias, and did pay over the 
 money, arising from such sale, to the said B. A. C. in satisfac- 
 tion and discharge of the said writs, amounting in the whole to 
 the sum of S 140, besides interest and costs. And the said E. 
 J. further saith that because of his taking and selling the said 
 goods and chattels, under and by virtue of the said writs of 
 fieri facias as-aforesaid, the said J. W. brought and prosecu'ted 
 two several actions on the case against him the said E. J. before 
 the superior court of law for the said county, in one of which 
 actions the said J. W. recovered, by verdict of a jury and by 
 judgment of the said court, against the said E. J. the sum of 
 $81 damages and $ 12.80 cents, his costs by him in that behalf 
 expended, and in the other of which actions the said J. W., by 
 like verdict and judgment, recovered against the said E. J. the 
 further sum of $64.50 cents damages and $13.61 cents, his 
 costs in that behalf expended. And the said E. J. further saith 
 that because of his taking and selling the said goods and chat- 
 tels under and by virtue of the said several writs ofjf.eri facias 
 the said /. A. and S. S. brought and prosecuted a certain ac- 
 tion on the case against him the said E. J. before the said supe- 
 rior court of law for K. county, and, by a verdict of a jury and 
 the judgment of the said court, they the said J. A. and S. S. 
 recovered against him the said E. J. the sum of $ 1163.40 cents 
 damages for his taking and selling the aforesaid goods and chat- 
 tels, and S 17.29 cents, their costs by them about their suit in 
 68
 
 538 Declarations in assumpsit. 
 
 that behalf expended, each and every of which judgments re- 
 main in full force against the said E. J., and, in no wise, va- 
 cated, reversed or annulled except $581.70 cents, part of the 
 last mentioned judgment, which has been released by the plain- 
 tiff in that cause, as will more fully and at large appear, refe- 
 rence being had to the said judgments and other proceedings. 
 And the said E. J. further saith that the said B; A. C., N. G. 
 and J. D. S. have not indemnified him agreeably to law, nor 
 hath the said B. A. C., 2V. G. or J. D. S. or either of them, in 
 any wise, saved harmless or indemnified the said E. J. or made 
 and executed to him a bond of indemnification, against the said 
 judgment, in manner and form as by the said agreement pro- 
 vided, but on the contrary the sa.\dE.J. hath been compelled to 
 pay and satisfy the said judgments to the several parties afore- 
 said in whose favour the same were rendered. 
 
 And also for that the said E. J. being one of the constables of 
 the said county, duly appointed and qualified as such, on the 
 1st day of January in the year 1816, at the county aforesaid, at 
 the special instance and request of the said B. A. C. and under 
 and by virtue of seven writs of fieri facias to him the said E. 
 J. directed, issued and signed by J. W. esq. a justice of the 
 peace in and for the said county, in favour of the said B. A. C. 
 and against the goods and chattels of a certain A. W. and J. B., 
 levied upon, and took into his possession, divers goods and chat- 
 tels, as and for the goods and chattels of the said A. W. and /. 
 B., in consideration whereof, and on the further consideration that 
 he the said E. J. would sell and dispose of the last mentioned 
 goods and chattels, under and by virtue of the last mentioned 
 writs of fieri facias, they the said B. A. C.,. N. G. and J. D. S. 
 then and there, undertook and faithfully promised the said E. J. 
 to indemnify and save him harmless, for the taking and selling 
 the said last mentioned goods and chattels, under and in satis- 
 faction of the said last mentioned writs of fieri facias. And the 
 said . /. in fact saith, that he did sell and dispose of the said 
 goods and chattels last mentioned, under and by virtue of the 
 said last mentioned writs of fieri facias, and in satisfaction 
 thereof, and, out of the proceeds of the said sale, did pay and 
 satisfy the said writs of fieri facias to the said B. A. C. And the 
 said .E. J. further saith that, because of his taking and selling 
 the last mentioned goods and chattels, under and by virtue of 
 the said last mentioned writs of fieri facias, a certain J. W. 
 brought and prosecuted two several actions on the case against 
 him the said E. J. before the superior court of law for K. county, 
 in one of which actions the said J. W. recovered against him 
 the said E. J. $81 damages, and $ 12.80 cents costs, and in the 
 other of which actions the said J. W. recovered against him the
 
 Declarations in assumpsit. 539 
 
 said E. J. the further sum of $ 64.50 cents damages, and $ 13.61 
 cents costs, for taking and selling the said last mentioned goods 
 and chattels. And the said E. J. further saith, that because of 
 his taking and selling the said last mentioned goods and chattels, 
 under and by virtue of the said writs of fieri facias last men- 
 tioned, a certain J. A. and S. S. brought and prosecuted a cer- 
 tain action on the case against him the said E. J. before the said 
 superior court of law, and, by the verdict of a jury and the 
 judgment of the said court, they the said J. A. and S S. reco- 
 vered against him the said E. J. the sum of $ 1163.40 cents da- 
 mages for his taking and selling the last mentioned goods and chat- 
 tels, and $ 17.29 cents costs, each and every of which last men- 
 tioned judgments remain in full force, against the said E. J. and 
 in no wise vacated, reversed or annulled, except $581.70 cents, 
 part of the last mentioned judgment, which was released by the 
 plaintiff in that case, as will more fully and at large appear by 
 reference to the said judgments and proceedings now remaining 
 in the said superior court of law. And the said E. J. further 
 saith, that the said B. A. C., N. G. and J. D. S. have not, nor hath 
 either of them, in anywise, indemnified him, or saved him harm- 
 less, from the effects of the said judgments, but that, on the con- 
 trary, he the said E. J. hath been compelled, by the process of 
 the law, to pay and satisfy the said three last mentioned judg- 
 ments, together with the costs thereon. 
 
 And for this also, to wit, that the said E. J. being one of the 
 constables, duly constituted and qualified as such, within the 
 county aforesaid, heretofore, to wit, on the first day of January 
 1816, at the county aforesaid, at the special instance and request 
 of the said B. A. C. served and levied other seven writs of fieri 
 facias, issued and signed by J. W. a justice of the peace in and 
 for the said county, in favour of said B. A. C. as plaintiff against 
 the goods and chattels of a certain A. W. and J. B., under and 
 by virtue of which said last mentioned several writs of fieri 
 facias, at the like special instance and request of the said B. A. C. 
 he the said E. J. took into his possession, divers other goods 
 and chattels, the property of the said A. W. and J. B, found and 
 being in and upon certain tenements and leasehold premises, si- 
 tuated and being in the county aforesaid, leased and demised to 
 the said A. W. and J. B. and others, by a certain J. W. and a 
 certain J. A. and S. S., out of which leasehold premises and 
 other the tenements, certain rents were reserved and payable, 
 and then in arrear and unpaid, by the said A. W. and J. B. to 
 the said J. A. and S. S. and to the said J. W., and which said 
 last mentioned several goods and chattels, were then held and 
 taken as a distress for the satisfaction and security of the said 
 rents, and which said rents so due, and, then and there, in arrear,
 
 540 Declarations in assumpsit. 
 
 they the said J. A. and S. S. and the said J. W. severally 
 requested of the said B. A. C. and of the said E. J. that they 
 might be paid the respective sums of money so to them due and 
 in arrear as aforesaid, that is to say, to the said J. A. and S. S. 
 the sum of $ 1068, and to the said J. W. the sum of $75, and 
 the quantity of 120 bushels of salt, in consideration whereof, and 
 in further consideration that the said E. J. would sell and dis- 
 pose of the said last mentioned goods and chattels, under and 
 by virtue of the said last mentioned writs of fieri facias afore- 
 said, they the said B.' A. C. and N. G. at the county aforesaid, 
 on the eighth day of January 1816, by virtue of a certain agree- 
 ment in writing, the date whereof is the day and year last afore- 
 said, after reciting that the said E. J. constable as aforesaid, had, 
 by virtue of seven executions in the name of the said B. A. C. 
 against the said J. W. and J. B. levied the same on the follow- 
 ing property, to wit, (here it was specified,) the sale of which 
 was forbidden by J. W. as to the household furniture, and the 
 sale of the balance of the property, that is to say, two yoke of 
 oxen and one cart by the said S. S., agreed and bound themselves 
 to indemnify the said E. J. constable as aforesaid, agreeably to 
 law, and the said defendant J. D. S. then and there, to wit, on 
 the day and year last aforesaid, at the county aforesaid, with his 
 own proper hand, signed and subscribed the said last mentioned 
 agreement, as security, together with the said N. G. to the said 
 B. A. C. and thereby, then and there, became a joint promissor 
 with the said B. A. C. and N. G. in the said last mentioned agree- 
 ment, and which said agreement, they the said defendants B. A. 
 C., N. G. and J. D. S. then and there, delivered to the said E. 
 J. as and for their joint agreement, promise and undertaking 
 to indemnify the said E. J. according to the tenour and effect of 
 said agreement, for the sale of the property in the said agree- 
 ment mentioned. And the said E. J. in fact saith, that he did 
 sell and dispose of the said goods and chattels last mentioned, 
 under and by virtue of the said last mentioned writs of fieri fa- 
 cias, and in satisfaction thereof, and, out of the proceeds of the 
 said sale, did pay and satisfy the said writs of fieri facias to the 
 said B. A. C. And the said E. J. further saith, that because of 
 his taking and selling the said last mentioned goods and chattels, 
 under and by virtue of the said last mentioned writs of fieri fa- 
 cias, the said J. W. brought and prosecuted two several actions 
 on the case against him the said E. J. before the superior court 
 of law for K. county, in the one of which actions, the said J. W. 
 recovered against the said E. J. $81 damages, and $ 12.80 cts. 
 costs, and in the other of which actions the said J. W. recovered 
 against him the said E. J. the further sum of $64.50 cents da- 
 mages, and $ 13.61 cents costs, for taking and selling said last
 
 Declarations in assumpsit. 541 
 
 mentioned goods and chattels. And the said E. J. further saith, 
 that because of his taking and selling the said last mentioned 
 goods and chattels, under and by virtue of the writs ofjierifa* 
 cias last mentioned, the said J. A. and S. S. brought and prose- 
 cuted a certain action on the case against him the said E. J. be- 
 fore the superior court of law for K. county, and, by the verdict 
 of the jury and the judgment of the said court, they the said /. 
 A. and S. S. recovered against him the said E. J. the sum of 
 S 1163.40 damages, for taking and selling the last mentioned 
 goods and chattels, and $ 17.29 cents costs, each and every of 
 which last mentioned judgments remain in full force against the 
 said -E. /., and, in no wise, vacated, reversed or annulled, except 
 S 581.70 cts. half of the damages in the last memioned judgment 
 assessed, which was released by the plaintiffs in that cause, as 
 will more fully and at large appear, by reference to the said 
 judgments and proceedings now remaining in the said superior 
 court of law, and of all which said premises the said defen- 
 dants, afterwards, to wit, on the 1st day of September 1817, had 
 notice, to wit, at the county aforesaid. And the said E. J. fur- 
 ther saith, that the said B. A. C., N. G. and J. D. S. although 
 often requested, have not indemnified him agreeably to law, nor 
 have they the said defendants, or either of them, saved harm- 
 less, or indemnified, the said E. J. or made and executed to him 
 a bond of indemnification, against the said judgments, in man- 
 ner and form as by the said agreement is provided, but, on the 
 contrary, the said E. J. hath been compelled to pay and satisfy 
 the said judgments, to the several parties aforesaid, in whose 
 favour the same were rendered. 
 
 Where an officer takes goods of a lessee in execution from off the 
 leased premises, and, upon receiving an instrument of indemnity from 
 the creditor, pays the proceeds to him, without discharging the landlord's 
 claim for rent, if a judgment be afterwards obtained by the landlord 
 against the officer, such judgment is sufficient proof of the officer's being 
 damnified, whether he has paid it or not. Crawford Sfc. v. Jarretfs adm'r, 
 2 Leigh 639. 
 
 It is not necessary, in such a case, that the plaintiff, before commenc- 
 ing his action, should make a demand upon the defendants to indemnify 
 him. Crawford fyc. v. Jarrett's adm'r, 2 Leigh 633. 
 
 36. By a legatee upon a promise of the executor to pay his legacy. 
 
 If an action at law will lie for a legacy, either upon an express or im- 
 plied promise, it is perfectly clear that it must be brought against the 
 executor in his individual, and not in his representative, character; and 
 the judgment must be de bonis propriis, not de boms testatoris. Opinion 
 of the court in Kayser, ex'or v. Disher, 9 Leigh 360.
 
 542 Declarations in assumpsit. 
 
 In the case just cited, Tucker, president, said he was himself well sa- 
 tisfied, 1. That an action at law against an executor for a legacy does 
 not lie without an express promise of the executor to pay. 2. That it 
 does lie upon such promise, where there is a good consideration ; for 
 example, where there are assets to pay the legacy. 3. That if the pro- 
 mise of the executor be unqualified, it amounts to a waiver of the re- 
 funding bond which he might have required of the legatee, and removes 
 a great difficulty in the proceeding at law. 4. That if the promise be 
 on condition of a refunding bond being given by the legatee, then, on 
 ordinary principles, there can be no recovery without proof of the per- 
 formance of that condition. 5. That no admission of assets, or mere 
 acknowledgment of indebtedness, without an express promise, will sus- 
 tain the action ; for, in those cases, the objection exists, if no other, 
 that the executor has a right to require a refunding bond from the le- 
 gatee, which a court of law cannot compel him to give. 
 
 In support of the second of these propositions, viz. that an action at 
 law lies against an executor for a legacy, upon an express promise of the 
 executor, where there is a good consideration, see Bceckcr v. Becckcr, 
 7 Johns. 99. Van Orden v. Van Orden, 10 Johns. 30. Swasey v. Lit- 
 tle Sfc. 7 Pick. 296. 
 
 37. Of cases in which the statute of frauds, requires a writing. 
 
 The act of Virginia to prevent frauds and perjuries, provides that no 
 action shall be brought whereby to charge any executor or administrator 
 upon any special promise to answer any debt or damages out of his own 
 estate, or whereby to charge the defendant upon any special promise to 
 answer for the debt, default or miscarriage of another person, or to 
 charge any person upon any agreement made upon consideration of mar- 
 riage, or upon any contract for the sale of lands, tenements or heredita- 
 ments, or the making any lease thereof for a longer term than one year, 
 or upon any agreement which is not to be performed within the space 
 of one year from the making thereof, unless the promise or agreement 
 upon which such action shall be brought, or some memorandum or note 
 thereof, shall be in writing, and signed by the party to be charged there- 
 with, or some other person by him thereunto lawfully authorized. 1 R. 
 C. 1819, p. 372. ch. 101. 1. 
 
 And an act passed Feb. 6. 1841, amending the act concerning frauds 
 and perjuries, provides that no action shall be brought whereby to charge 
 any person upon, or by reason of, any representation or assurance made 
 or given concerning or relating to the character, credit, ability, trade or 
 dealings of any other person, to the intent or purpose that such other 
 person may obtain credit, money or goods upon the same, unless such 
 representation or assurance be made in writing, signed by the party to 
 be charged therewith. Sess. acts 1840-41, p. 78. ch. 69. This act 
 will be in force from the first of January 1842.
 
 Declarations in assumpsit. 543 
 
 38. Against an executor or administrator upon a promise to pay a 
 
 debt of the decedent. 
 
 In order to maintain an action against an executor, to charge him 
 personally upon a promise to pay the debt of his testator, it must be 
 averred in the declaration that the defendant had assets, or that the 
 plaintiff forbore to sue, or that there was some other consideration. 
 Taliaferro v. Robb Sfc. 2 Call 258. 
 
 If a declaration in assumpsit, set forth that the plaintiff, being a cre- 
 ditor of a decedent, applied for administration of his estate, with a view 
 to secure his debt, and the defendant, stating that he was a creditor 
 likewise, assured him that, if he would withdraw his motion and suffer 
 the defendant to take the administration, he would pay the plaintiff his 
 debt out of the first money that should come to his hands as administra- 
 tor, " that thereupon the plaintiff did agree that he would relinquish his 
 right to administer, and the defendant agreed that he would administer 
 and pay the plaintiff out of the first money as aforesaid," and then avers 
 that the defendant did, then and there administer; such declaration is 
 defective, in not averring that the plaintiff did relinquish his pretension 
 to administer, pursuant to the agreement. Daniel v. Morton, 4 Munf. 
 120. 
 
 39. Upon a promise to answer for the debt, default or miscarriage of 
 
 another person. 
 
 STATUTE APPLIES WHERE CREDITOR HAS A DOUBLE REMEDY. Our 
 statute of frauds is precisely similar to that of England, touching a 
 promise to answer for the debt of another, and the distinction between 
 an original and collateral promise has been often, and solemnly, settled 
 in that country. That distinction seems to be this : that where the per- 
 son on whose behalf the promise is made is not discharged, but the per- 
 son promising agrees to see the debt paid, so that the promisee has a 
 double remedy, the promise is considered as collateral, and must be in 
 writing, but where the promiser undertakes to become the paymaster, it 
 becomes immediately his debt and he is liable without writing. Roane, 
 J. in Waggoner v. Gray's adm'rs, 2 H. &, M. 611. Tomlinson v. Gell, 
 6 Ad. & E. 564. 33 Eng. Com. Law Rep. 145. 
 
 This subject was again before the court of appeals in Cutler v. Hinton, 
 6 Rand. 509. and the principle acknowledged that where the promisee 
 has a double remedy, both against the promiser, and him in whose be- 
 half the promise is made, such promise is collateral and must be in 
 writing. In that case a witness proved that the promiser requested him 
 to tell a certain mercantile firm, or any other person of whom his son- 
 in-law might wish to purchase goods, that he would pay for his said son- 
 in-law to the amount of $ 4000. The court was of opinion that the 
 promisee had a double remedy ; for the son-in-law was to purchase the 
 goods, which of course would render him liable for them, and the pro- 
 miser was to pay the money for his son-in-law, not for himself. The 
 promise was therefore collateral, and, not being in writing, could raise 
 no claim against the promiser. It was so held in a court of equity, and
 
 544 Declarations in assumpsit. 
 
 the doctrine laid down that, upon this branch of the statute, there is no 
 difference of construction between courts of law and courts of equity. 
 
 WHETHER MERCHANT'S BOOKS ARE EVIDENCE THAT HE HAD NOT A 
 DOUBLE REMEDY. That the goods were charged by the merchants to 
 the promiser and not to the person on whose behalf the promise is made, 
 is noticed in the cases as a fact tending to shew to whom the credit 
 was originally given, but judge Carr, in delivering his opinion iu Cutler 
 v. Hinton, 6 Rand. 518. which was concurred in by two other judges, 
 says, that such entries, made in the books of merchants, are better evi- 
 dence against than for them. Where they charge the goods to the per- 
 son for whom they are furnished, it is strong to shew that they consi- 
 dered themselves dealing with him, and, (like the admissions of a party,) 
 may be safely taken against them, but it would be of dangerous tenden- 
 cy to say that by an entry made, by themselves, in their own books, they 
 could change the complexion of their case, and make that an original, 
 which would, otherwise, have been a collateral promise. 
 
 CONSIDERATION NEED NOT BE EXPRESSED IN THE WRITING, BUT MAY 
 BE PROVED DEIIORS. The main question in Colgin v. Henley, 6 Leigh 
 85. was, whether our statute of frauds makes it essential to the validity 
 of a written promise to pay the debt of another, that it should express on 
 its face the consideration on which it is founded. After examining 
 the english statute and the decisions upon it, and adverting to the diffe- 
 rence between the two statutes, pointed out in Violet v. Patton, 5 
 Cranch 142. the judges of the court of appeals came to the conclusion 
 that the consideration need not be expressed in the promise, but may be 
 proved at the trial, by parol evidence, as at the common law. 
 
 WHAT is A PROMISE TO PAY, AND WHAT A SUFFICIENT CONSIDERATION 
 FOR IT. There is nothing technical in the word promise. It is a word 
 in free and common use. Any writing signed by A. and addressed or 
 given to B., by which the writer declares his willingness, assent or inten- 
 tion to pay B. a certain sum of money, is a promise to pay that sum, 
 whatever be the form of words in which it is clothed ; and where the 
 words, of the party promising, are at all doubtful, the situation and cir- 
 cumstances of the parties will be taken into consideration, so that a 
 correct judgment may be formed of their respective intentions and un- 
 derstanding, at the time of the agreement. Carr, J. in Colgin v. Hen- 
 ley, 6 Leigh 94. 
 
 That the promise did not proceed upon the request of, or any consi- 
 deration moving to the defendant from, the person, whose debt is pro- 
 mised to be paid, is no valid objection. The defendant's engagement to 
 pay such debt, although unknown to that person, is binding upon him, 
 (the defendant,) provided it be founded on sufficient consideration. And, 
 as to the consideration, it is perfectly clear that it need not have any re- 
 lation to the interest of the party making the promise. It is sufficient 
 if it affect the interest of the person to whom it is made. Loss or dis- 
 advantage to the person to whom the promise is made, is as good a con- 
 sideration, as benefit or advantage to the person making it. Thus, a 
 forbearance to sue, or the surceasing of an action, is a good considera- 
 tion, although that may operate exclusively for the benefit of the origi- 
 nal debtor. Cabcll, J. in Colgin v. Henley, 6 Leigh 103, 4.'
 
 Declarations in assumpsit* 545 
 
 DECLARATION NEED NOT SET OUT THE WRITING BUT MUST DESCRIBE 
 THE PROMISE CORRECTLY. It is not necessary to set out the writing in 
 the declaration. The plaintiff may give in evidence any writing, con- 
 taining a promise, corresponding with that alleged in the declaration to 
 have been made. JH' Williams v. Willis, 1 Wash. 199. Colgin v. Hen- 
 ley, 6 Leigh 85. 
 
 That the declaration alleges the promise to have been made on a con- 
 sideration which does not appear on the face of the writing, furnishes no 
 reason for excluding the writing from the jury, if the promise itself be 
 well described. Colgin v. Henley, 6 Leigh 85. 
 
 IF PROMISE WAS CONDITIONAL, CONDITION MUST APPEAR TO HAVE 
 
 BEEN COMPLIED WITH. Where a promise is made by a party, to pay the 
 debt of another, upon a certain condition, no action can be maintained 
 upon the promise unless it appear that the condition was complied with. 
 In Couch v. Hooper, 2 Leigh 557. the condition was that the plaintiff 
 should dismiss a suit, he was prosecuting against the original debtor, at 
 his the plaintiff's costs. And, instead of doing that, the plaintiff dis- 
 missed the suit generally, leaving the defendant, in that suit, to pay his 
 portion of the costs. It was held that the plaintiff could not recover. 
 
 And though it was shewn that the defendant, after the general dis- 
 mission was entered, ratified the same, yet such ratification was held not 
 to avail the plaintiff, because that matter was not alleged in the declara- 
 tion, or put in issue by the pleadings. S. C. 
 
 NECESSARY SOMETIMES TO AVER NOTICE TO DEFENDANT. If the ac- 
 tion be upon a promise to pay for timber sold and delivered a third per- 
 son, the declaration will be bad, on general demurrer, unless it aver no- 
 tice to the defendant of the quantity, and value, of the timber sold and 
 delivered, because, without such averment, the plaintiff cannot know 
 what amount he has to pay, and perhaps it should also aver notice of a 
 failure in the third person to pay, because, without such information, he 
 would not know that it was his duty to pay. But, after verdict, the 
 omission of such averments must be considered as cured by the statute 
 of jfofails. Pasteur v. Parker and wife, 3 Rand. 458. 
 
 BUT NOT NECESSARY TO AVER DEMAND UPON THIRD PERSON AND 
 
 HIS REFUSAL. In such action, however, it is not necessary to prove, on 
 the trial, a demand upon the third person and his refusal to pay; for 
 such third person, being the debtor, is bound to seek his creditor, and 
 pay him ; and, on his failure to do so, and notice thereof, and of the 
 amount due to the defendant, the action may be supported without any 
 thing more. S. C. 
 
 For that whereas on the 17th day of January in the year 1828, 
 at the city of R. in the county aforesaid, in consideration that 
 the said plaintiffs, at the special instance and request of the said 
 Gr. T. would endorse a certain promissory note, made by a 
 certain A. R. for the sum of $507, dated at R. aforesaid, on 
 the said 17th day of January 1S28, payable to the said plain- 
 tiffs, or order, fifty days after date, without offset, negotiable and 
 payable at the Farmers Bank of Virginia, so that the said note 
 might be discounted at the said bank for the use, accommoda- 
 69
 
 546 Declarations in assumpsit. 
 
 tion and benefit of the said A. R. he the said G. T. undertook, 
 and, then and there, faithfully promised the said plaintiffs that 
 the said note should be faithfully and punctually paid by the 
 said A. R. when it should fall due, and that the said T. would, 
 well and truly, indemnify and defend the said plaintiffs from the 
 payment thereof, and all costs and damages thereupon. And the 
 said plaintiffs, in fact say, that they, confiding in the said promise 
 and undertaking of the said G. T. and, in consideration thereof, 
 did, afterwards, to wit, on the day and year aforesaid, at R. in 
 the county aforesaid, endorse the said note with the proper name 
 of their firm aforesaid, thereby making themselves responsible 
 as endorsers for the payment thereof, in order that the same 
 might be discounted, at the bank aforesaid, for the use, accom- 
 modation and benefit of the said A. R. and the said note after- 
 wards, to wit, on the said 17th day of January 1828, at R. in 
 the county aforesaid, was discounted, at the said Farmers Bank 
 of Virginia, for the use, accommodation and benefit of the said 
 A. R. and the proceeds of the said note were duly passed to her 
 credit, in the said bank. And the said plaintiffs further say, 
 that when the said note fell due, according to the tenour thereof, 
 the same was not paid by the said A. R. nor was any part thereof 
 so paid, according to the promise and undertaking of the said 
 G. T. nor did he indemnify and defend the said plaintiffs from 
 the payment thereof, and of all costs and damages thereupon, 
 but, on the contrary, on the 10th day of March in the year 1828, 
 when the said fifty days from the date of the said note had 
 elapsed, and the days of grace allowed thereupon according to 
 the custom of merchants and the usages of -said bank, had ex- 
 pired, payment of the said note was duly demanded at the said 
 bank, and payment thereof not being made by the said A. R. 
 or any person for her, the same was duly protested for non-pay- 
 ment, and due notice thereof given to the parties. Whereupon 
 the said plaintiffs afterwards, to wit, on the llth day of March 
 1828, at R. in the county aforesaid, were compelled to pay, and 
 did pay, to the said Farmers Bank of Virginia, the whole con- 
 tents of the said note, and the costs of protest, to wit, the sum 
 of $510.25 cents. Of all which the said G. T. afterwards, to 
 wit, on the day of , at , in the county afore- 
 said, had due notice. Yet the said G. T. not regarding his said 
 promise and undertaking, but contriving to injure and deceive 
 the plaintiffs, hath not, as yet, paid to them the money so as 
 aforesaid paid by them, for the note and protest aforesaid, or 
 any part thereof, and hath not, in any manner, indemnified or 
 defended them, according to his said promise and undertaking, 
 though he hath been, often thereunto, specially requested, but 
 the said sum of money remains wholly due and unpaid to the 
 plaintiffs, and undefended by the said G. T.
 
 Declarations in assumpsit. 547 
 
 And whereas afterwards, to wit, on the day of January 
 
 182S, at R. in the county aforesaid, in consideration that the 
 said plaintiffs, at the special instance and request of the said G. 
 T. would endorse a certain other promissory note made by a 
 certain A. R. for the sum of S 507, dated at R. aforesaid on the 
 17th day of January 1828, payable to the said plaintiffs, or or- 
 der, fifty days after date, without offset, negotiable and payable 
 at the Farmers Bank of Virginia, so that the note might be dis- 
 counted at the said bank, for the use and accommodation of the 
 said A. R. he the said G. T. then and there, undertook and faith- 
 fully promised the said plaintiffs, that when the said note should 
 fall due, the money therein mentioned should be paid either by the 
 said A. R. or by the said G. T. for her. And the plaintiffs aver, 
 that, confiding in the said promise and undertaking of the said 
 G. T. and in consideration thereof, they did afterwards, to wit, 
 on the said 17th day of January 182S, at R. in the county afore- 
 said, endorse the said note, with the proper name of their firm 
 aforesaid, thereby making themselves responsible as endorsers, 
 for the payment thereof, in order that the same might be discount- 
 ed at the bank aforesaid, for the use and accommodation of the 
 
 said A. R. and that afterwards, to wit, on the day of , 
 
 at R. in the county aforesaid, the said note was accordingly dis- 
 counted at the said bank, for the use and accommodation of the 
 said A. R. and the proceeds thereof duly passed to her credit 
 on the books of the said bank. And the said plaintiffs further 
 aver, that when the said note fell due, the money therein men- 
 tioned was not paid by the said A. R. or by the said G. T. for 
 her, according to the promise and undertaking of the said de- 
 fendant, but, on the contrary, when the same became due, and 
 was payable, according to the tenour thereof, and according to 
 the custom of merchants and of the said bank, to wit, on the 
 10th da} f of March 1828, at R. in the county aforesaid, payment 
 of the said note was duly demanded at the said bank, and, pay- 
 ment thereof not being made by the said A. R. or by the said 
 defendant, or by any other person for them, or either of them, 
 the same was duly protested for non-payment, and notice thereof 
 duly given to all the parties. Whereupon the said plaintiffs, 
 afterwards, to wit, on the llth day of March 1828, at R, in the 
 county aforesaid, were compelled to pay, and did pay, to the 
 said bank, the money mentioned in the said note, with the legal 
 costs of the protest thereof, being the sum of $510.25 cents. 
 
 Of all which the said defendant, afterwards, to wit, on the 
 
 day of , at , in the county aforesaid, had due no- 
 tice. By reason whereof the said defendant became liable to 
 pay, to the plaintiffs, the said sum of $ 510.25 cents, whensoever 
 after he should be thereunto requested. Yet the said defendant,
 
 548 Declarations in assumpsit. 
 
 not regarding his said promise and undertaking, but, contriving 
 to injure and deceive the plaintiffs, hath not paid to the plain- 
 tiffs the said sum of money last mentioned, or any part thereof, 
 and hath, in no wise, kept and performed his said promise and 
 undertaking, though he hath been often thereunto specially re- 
 quested, but the said sum of money yet remains altogether due 
 and unpaid to the plaintiffs, and the said promise and under- 
 taking of the defendant remains altogether unperformed. 
 
 And whereas afterwards, to wit, on the day of Janu- 
 ary 1828, at R. in the county aforesaid, a certain A. R. was in- 
 debted to the plaintiffs in the sum of $507, then clue and un- 
 paid, and the said G. T. was desirous that the said plaintiffs 
 should forbear and give day of payment to the said A. R. for 
 
 the money due as aforesaid, and thereupon, on the day of 
 
 January 1828, at R. in the county aforesaid, in consideration of 
 the premises, and that the said plaintiffs, at the special instance 
 and request of the said G. T. would forbear and give day of 
 payment to the said A. R. for the said sum of $507, for fifty 
 days, from and after the 17th day of January 1828, and would 
 take from the said A. R. for the payment thereof, a note dated 
 at R. on the said 17th day of January 1828, payable fifty days 
 after date to the said plaintiffs, without offset, negotiable and 
 payable at the Farmers Bank of Virginia, he the said G. T. un- 
 dertook, and, then and there, faithfully promised the said plain- 
 tiffs that the said note, when it fell due, according to its tenour, 
 and to the custom of merchants, and the usage of the said bank, 
 should be punctually paid. And the said plaintiffs aver that, 
 confiding in the said promise and undertaking of the said G. T. 
 and in consideration thereof, they did forbear and give day of 
 payment to the said A. R. for the said sum of $507, for fifty 
 days from and after the said 17th day of January 1828, and did 
 take from the said A. R. a note dated at R. on the said 17th 
 day of January 1828, for the payment of the said sum of $507, 
 payable fifty days afterdate to the said plaintiffs, without offset, 
 negotiable and payable at the said Farmers Bank of Virginia, 
 
 of which the said G. T. afterwards, to wit, on the day 
 
 of January 1828, at , in the county aforesaid, had due 
 
 notice. And the plaintiffs further aver that the said note, when 
 it fell due as aforesaid, was not paid, according to the promise 
 and undertaking of the G. T., but, on the contrary, on the 10th 
 day of March 1828, when the said note, according to its tenour, 
 and according to the custom of merchants, and the usage of the 
 said bank, was due and payable, payment thereof was duly de- 
 manded at the bank aforesaid, and, payment not being made, 
 the same was duly protested for non-payment, and notice 
 thereof duly given to the parties. By reason whereof the
 
 Declarations i:i assumpsit. 549 
 
 plaintiffs were compelled to lake up the said note, and pay the 
 contents thereof to the said Farmers Bank of Virginia, where 
 the same had been discounted, and to pay the additional sum 
 of $3.25 cents, the legal costs of the protest aforesaid. Of all 
 
 which the said defendant, afterwards, to wit, on the day 
 
 of , in the county aforesaid, had notice. Whereby the 
 
 said defendant became bound to pay the said plaintiffs the said 
 sum of $507, and the said further sum of $3.25 cents, when- 
 ever he should be, thereunto, afterwards requested. Yet the 
 said defendant, not regarding his said promise and undertaking, 
 but contriving to deceive and injure the plaintiffs, has not paid, 
 to them, the said last mentioned sums of money, or any part 
 thereof, and has not, in any manner, kept and performed his 
 said promise and undertaking, though often thereunto specially 
 requested, but the said sums of money to pay, and the said 
 promise and undertaking to keep and perform, has, altogether, 
 failed and refused, leaving the said sums of money still alto- 
 gether due and unpaid to the plaintiffs. 
 
 Some of the common counts can be added in the form prescribed in 
 No. 43. and the declaration concluded in the form prescribed in No. 44. 
 
 40. For money agreed to be paid in consideration of marriage. 
 
 If, in an action against an executor, the declaration states a promise 
 by the testator to give the plaintiff as much as he would give to any of 
 his children, and alleges a breach of the promise, it is not sufficient un- 
 less it aver the quantity or quality of the gifts made by the testator to 
 his own children, or at what time they were made, so as to reduce the 
 demand to some kind of certainty. Smith v.Mickie's ex' or, 1 Wash. 135. 
 
 If the declaration states a promise by the defendant to do equal jus- 
 tice to all his daughters, as it should be convenient to him, and con- 
 cludes with a general breach, it is not sufficient. There should certainly 
 be an averment that the defendant had given something to the rest of 
 his daughters, and perhaps the declaration should also allege that it was 
 convenient for him to make an advancement to the plaintiff. Chichester 
 v. Vass, 1 Call 83. 
 
 41. Upon a contract for the sale of lands. 
 
 In Hoskins v. Wright, 1 H. & M. 377. the first count in the decla- 
 ration was a general indebitatus assumpsit for a negro slave, a tract of 
 land, divers sums of money had and received, and divers sums of money 
 laid out and expended. Judge Lyons asked whether general indebitatus 
 assumpsit would lie for the price of a tract of land. He said, he had 
 always understood the practice to be, to bring a special action, stating 
 the circumstances of the contract.
 
 550 Declarations in assumpsit. 
 
 In Moss v. Stipp, 3 Munf. 159. the amended declaration set forth the 
 agreement particularly, and the pleadings terminated in , demurrer. 
 Judgment having been given on those pleadings, for the plaintiff, the 
 declaration may be referred to as a precedent. It is given verbatim in 
 the report, pages 161, 2, 3. 
 
 42. Upon an agreement which is not to be performed within one year. 
 
 The statute of frauds was passed in 1677, and fifteen years afterwards 
 this clause of the statute received a judicial construction. In Peter 
 and Compton, Skinn. 353. the defendant promised for one guinea, to 
 give the plaintiff so many at the day of his marriage. Holt, C. J. ad- 
 vised with all the judges, " and by the great opinion, (for there was di- 
 versity of opinion, and his own was contra,) where the agreement is to 
 be performed upon a contingent, and it does not appear within the 
 agreement that it is to be performed after a year, there a note in writing 
 is not necessary, for the contingent might happen within the year, but 
 where it appears by the whole tenour of the agreement that it is to be 
 performed after the year, there a note is necessary ; otherwise not." 
 
 An explanation of this decision, and of Holt's opinion, is given in 
 Smith v. West all, 1 Ld. Raym. 316. decided about five years afterwards. 
 It is said by Holt, " that if the marriage had taken effect within the year, 
 they all agreed that no writing was necessary, but, in the case before 
 them, the marriage did not happen within the year, but nine years after 
 the promise; and therefore he was of opinion that it ought to have been 
 in writing, because the design of the statute was, not to trust to the 
 memory of witnesses for a longer time than one year ; but the majority 
 of the judges were of opinion that it was not within the intent of the 
 statute of frauds." 
 
 The following cases have been decided since, Fenton v. Emblers, 1 
 W. Bl. 353. 3 Burr. 1278. Boy dell v. Drummond,n East. 142. Brace- 
 girdle v. Heald, I Barn. & Aid. 722. Wells v. Horton, 4 Bingh. 40. 13 
 Eng. Com. Law Rep. 332. Williams v. Jones, 5 Barn. & Cress. 108. 
 11 Eng. Com. Law Rep. 169. Bush v. Earl of Liverpool, 9 Barn. & 
 Cress. 392. 17 Eng. Com. Law Rep. 404. 
 
 43. Common counts. 
 The form prescribed by the judges of England, is as follows : 
 
 1. FOR GOODS. For that whereas the defendant on . 
 
 in the county of , was indebted to. the plaintiff, in $ 
 
 for the price and value of goods, then and there, bargained and 
 sold, (or sold and delivered,) by the plaintiff to the defendant, 
 at his request ; 
 
 2. FOR WORK AND MATERIALS and in $ , for the price 
 
 and value of work, then and there, done, and materials for the 
 same provided, by the plaintiff for the defendant, at his request ; 
 
 3. FOR MONEY LENT and in $ , for money then and 
 
 there, lent by 'the plaintiff to the defendant, at his request ;
 
 Declarations in assumpsit. 551 
 
 4. FOR MONEY PAID and in S for money, then and 
 
 there, paid by the plaintiff for the use of the defendant, at his 
 request; 
 
 5. FOR MONEY RECEIVED and in S for money, then 
 
 and there received by the defendant, for the use of the plaintiff; 
 
 6. FOR MONEY FOUND DUE ON ACCOUNT STATED and ill 
 
 $ , for money found due, from the defendant, to the plain- 
 tiff, on an account, then and there stated, between them. 
 
 1. For goods. The principle on which the cases have been decided, 
 as to the proper form of declaring, where the original contract has been 
 executory, but the period of credit has expired, or condition has been 
 performed, is, not that the law alters the mode of declaring on the ori- 
 ginal contract, and states it not according to the fact, but, that it con- 
 clusively infers that simple contract to pay the price for goods sold and 
 delivered, which would arise upon the facts of a sale and delivery, with- 
 out any special circumstances accompanying them. He who seeks to 
 disturb that inference must not content himself with merely shewing 
 conditions, or other special provisions, forming part of the contract at 
 the time of its being entered into. He must shew them in existence and 
 operation at the time of action brought. If not, they may be struck out 
 of consideration, and the contract treated as originally simple, uncondi- 
 tional and executed. Opinion of court in Beverley v. Lincoln, 6 Ad. 
 & E. 829. 33 Eng. Com. Law Rep. 222. 
 
 2. With respect to debts for work and labour, or other personal ser- 
 vices, the rule is, that however special the agreement was, yet if it was not 
 under seal, and the terms of it have been performed on the plaintiff's 
 part, and the remuneration was to be in money, the party may declare 
 either specially on the original executory agreement, or in indebitatus 
 assumpsit on the express promise to remunerate, (if there was one,) or 
 on the promise which the law implies on the execution of the agreement. 
 But this rule, so far as relates to the indebitatus assumpsit count has 
 never been carried further than to those cases where the remuneration, 
 contemplated by the parties, was in money. Where the remuneration 
 was not to be in money, but was to be in any other kind of personal 
 property, or in personal services, or in the doing any collateral act, 
 (as the delivery of a bond, or the like,) there, the general indebitatus 
 assumpsit count is not sufficient, but the declaration must be special. 
 Cabell, J. in Brooks \. Scott's ex'or, 2 Munf. 345. The rule laid down 
 in this case, was approved in the late case of Brown Sf Rives v. Ralston 
 4- Pleasants, 9 Leigh 532. See also, Wheeler v. Curtis fyc. 11 Wend. 
 653. 
 
 3. For money lent. In England, it frequently happens that papers 
 which cannot be received in support of a declaration counting upon 
 them as promissory notes, are admitted in connection with other evi- 
 dence, under a count for money lent. Thus, Childers v. Boulnois, 1 Dow. 
 & Ry. N. P. Cas. 8. 16 Eng. Com. Law Rep. 411. was assumpsit for 
 money lent, and in support of the claim, the plaintiff produced two 
 slips of paper, signed by the defendant, in the following terms : " I. O. 
 U. 400." and " I. O. U. 250." but neither of them having any stamp,
 
 552 Declarations in assumpsit. 
 
 date or address. This written evidence, and some parol evidence, of a 
 conversation about money, between the plaintiff and defendant, were 
 permitted to go to the jury. 
 
 4. For money paid. Where two parties are jointly liable for a debt, 
 and one of them pays the whole, he may recover a moiety of the debt, 
 under a count for money paid and advanced. Harris v. Harris, 2 Rand. 
 437. 
 
 Where one person pays money, at the request of another, and upon 
 his promise to repay it, such promise is obligatory, whether the person 
 who made the request was bound to pay the money or not. Moseley v. 
 Boush Sfc. 4 Rand. 392. 
 
 5. For money received. Where a defendant is bound, ex cequo et bono, 
 to restore to the plaintiff money which has come to his hands, the action 
 of assumpsit, for money had and received, is the proper action to compel 
 him to do so. Brockenbrough v. Ward's adm'r, 4 Rand. 352. 
 
 The plaintiff cannot, in such an action, recover back money levied, 
 by a sheriff, under a jieri facias, issued upon a judgment, which was 
 afterwards reversed, without proving that the money was received by the 
 defendant, or applied to his use. Isom v. Johns, 2 Munf. 272. 
 
 The assignor is liable merely for the money he has received for a con- 
 sideration that has failed, and the action of indebitatus assumpsit is pe- 
 culiarly appropriate against him. Tucker, P. in Drane v.. Scholfield, 6 
 Leigh 397. Hence, if there is a variance in the assignment offered in 
 evidence from that stated in the declaration, the note, with the assign- 
 ment, is nevertheless proper evidence on the general count for money 
 had and received. Roane, J. in M' Williams v. Smith, 1 Call 125. 
 
 Even where the action is by an assignee against a remote assignor, 
 the opinion has been expressed that the assignee may recover upon the 
 general counts for money had and received, and for money laid out and 
 expended. Opinion of Tucker, P. in Drane v. Scholfield, 6 Leigh 395. 
 
 Although in a count for money had and received, the sum in which 
 the defendant is alleged to be indebted, is left blank, it will, after verdict, 
 be sufficient to support the action, if damages are laid in the declaration 
 to a sufficient amount. Hall v. Smith, 3 Munf. 550. 
 
 HOW FAR BILLS OF EXCHANGE AND PROMISSORY NOTES ARE EVIDENCE 
 UNDER THE COUNTS FOR MONEY LENT, PAID AND RECEIVED. A promis- 
 
 sory note, which states a consideration on the face of it, or purports to be 
 for value received, though it be not negotiable, is admissible evidence for 
 the payee against the maker, under the money counts. Smith's adm'r v. 
 Smith, 2 Johns. 235. Arnold v. Crane, 8 Johns. 30. Sexton Sfc. v. John- 
 son, 10 Johns. 418. Wells v. Girling, 1 Gow 21. note. 5 Eng. Com. Law 
 Rep. 446. So, too, the common counts may avail in an action against 
 the drawer of a bill or order, by the payee, for there is privity between 
 them. See Jolliffe v. Higgins, 6 Munf. 3. 
 
 The authorities also shew that a count for money had and received, 
 may be maintained upon a negotiable promissory note, endorsed by the 
 party against whom the action is brought to the party who brings the 
 action. State Bank v. Hurd, 12 Mass. R. 172. For the endorsement is 
 prima facie evidence of a receipt of money from the holders by the en- 
 dorser, but the presumption, arising from the endorsement, may be de- 
 stroyed by shewing that the money was paid, not to the endorser, but to
 
 Declarations in as&umpsit. 553 
 
 the maker himself, and for his sole use. Page's administrator v. The 
 Bank of Alexandria, 7 Wheat. 35. 
 
 In New York, it is held that when a bill or check is payable to bearer, 
 the plaintiff, whether the first or a subsequent bearer, stands in the same 
 situation as the payee of any other bill. Cruger v. Armstrong tipc. 3 
 Johns. Cas. 5. Pierce v. Crafts, 12 Johns. 90. Mack v. Spencers, 4 
 Wend. 411. These decisions are opposed to the opinion expressed by 
 lord Ellenborough in Waynam v. Bend, 1 Campl. 175. There, the pro- 
 missory note was to L. Toader, or bearer, and the plaintiff, being the 
 bearer, contended that he might recover under the count for money had 
 and received. But as the plaintiff was not an original party to the bill, 
 and there was no evidence of any value being received by the defendant 
 from him, lord Ellenborough was of opinion that he could not recover 
 under any of the money counts. 
 
 In Weld v. Fisher, 4 Pick. 421. there were counts on promissory 
 notes, and for money lent and money paid ; and it was held that the en- 
 dorsee could give in evidence against the maker, promissory notes, under 
 the money counts. In Rockefeller v. Robison, 17 Wend. 206. the ques- 
 tion was whether in an action by the endorsee against the maker, a pro- 
 missory note could be given in evidence under the count for money lent, 
 and it was held that it could not. The court however express the opi- 
 nion, that the note would have been proper evidence under other money 
 counts. The suggestion is thrown out that the money paid by the en- 
 dorsee to the person from whom he receives the note, may be regarded 
 as money paid to the use of the maker. And it is said there can be no 
 question that the money would have been admissible under a count for 
 money had and received by the defendant to the plaintiff's use. These 
 decisions of the courts of Massachusetts and Neic York, are opposed to 
 the recent english decisions. In Exon v. Russell, 4 M. & S. 503. the 
 action was by the endorsee against the maker of a promissory note, and 
 the plaintiff was nonsuited because the note was misdescribed in the de- 
 claration, although there were money counts ; it being conceded that 
 they would not help him. So in Bentley Sfc. \. Northhouse, 1 Mood. 
 & Malk. 66. 22 Eng. Com. Law Rep. 251. the action being of the same 
 nature, lord Tenterden, C. J. said, the circumstance of the plaintiff being 
 an endorsee, would prevent him from recovering on the money counts. 
 Again, in Eales v. Dicker, 1 Mood. &, Malk. 324. 32 Eng. Com. Law 
 Rep. 323. where the action was by the endorsee against the acceptor of 
 a bill, the plaintiff being unable to proceed on the counts upon the bill, 
 because of a variance in the mode of statement, and there being the 
 usual money counts, Follett for the plaintiff proposed to give the bill, 
 which was admitted to be the defendant's acceptance, in evidence on the 
 count for money had and received. But Littledale, J. said, he was de- 
 cidedly of opinion that the bill was not evidence of money had and re- 
 ceived by the acceptor to the use of the holder. 
 
 6. On account stated. If there be an acknowledgment by the defen- 
 dant of a debt, due upon any account, it is sufficient to enable the plain- 
 tiff to recover upon the count on an account stated. Knowles Sfc. v. 
 Michel fyc. 13 East 249. On this count, evidence may be given in an 
 action by the endorsee against the acceptor of a bill of exchange, of the 
 acceptor's acknowledgment of the debt. Leapcr v. Tatton, 16 East 
 70
 
 554 Declarations in trespass. 
 
 420. Higlimore v. Primrose, 5 M. &, S. 65. Eales v. Dicker, 1 Mood. 
 &, Malk. 324. 22 Eng. Com. Law Rep. 323. Or in an action by the 
 endorsee against the endorser of a bill, of the endorser's acknowledg- 
 ment. Wagstaffe v. Boardman, 9 Dow. & Ry. 248. 22 Eng. Com. Law 
 Rep. 388. 
 
 44. General conclusion. 
 The form prescribed by the judges of England is as follows : 
 
 And whereas the defendant, afterwards, on &c. in considera- 
 tion of the premises, respectively, then and there, promised* to 
 pay the saidt several moneys, respectively, to the plaintiff, on 
 request, yet he hath disregarded his promises, and hath not paid 
 any of the said moneys, or any part thereof, to the plaintiff's da- 
 mage $ ; and thereupon he brings suit &c. 
 
 * In Jones v. Owen, 5 Ad. & E. 222. 31 Eng. Com. Law Rep. 319. 
 the declaration was objected to because it did not allege a promise to the 
 plaintiff. Lord Denman, C. J. said : " The declaration is in the form 
 given by our own rules. We cannot call them in question ; and inde- 
 pendently of them, it is good." 
 
 t If a promise and breach have been stated in the count or counts 
 placed first in the declaration, insert here the words last mentioned, so 
 that the promise here stated may be " to pay the said last mentioned se- 
 veral moneys respectively." 
 
 IV. IN TRESPASS. 
 
 DISTINCTION BETWEEN TRESPASS AND CASE. : The distinction be- 
 tween trespass, vi et armis, and trespass on the case, for consequential 
 damages, is this : where the act done is, in itself, an immediate injury to 
 another's person, or property, there trespass, vi et armis, will lie, but 
 where the act is not immediately injurious, but only by consequence, and 
 collaterally, there trespass, vi et armis, will not lie, but a special action 
 on the case for the damages consequent on such act. Taylor v. Rain- 
 bow, 2 H. & M. 423. 
 
 Taylor v. Rainbow was an action of trespass on the case. The de- 
 claration alleged that the defendant shot the plaintiff, and that, by reason 
 thereof, the left leg of the plaintiff was obliged to be taken off, and that, 
 in consequence thereof, his business was neglected, and he was obliged 
 to pay great sums of money to physicians and others. Held that case 
 would not lie. The action should have been trespass, vi et armis. 
 
 Where a writ of capias ad satisfaciendum is not void, but the arrest 
 under it only improperly timed, trespass will not lie against the plaintiff 
 who sued out the writ. Cameron v. Lightfoot, 2 W. Bl. 1190. It will 
 not lie, for example, for taking the defendant into custody, whilst attend- 
 ing as a witness, and detaining him in custody until he shewed that he 
 was attending under a subpoena. Moore v. Chapman, 3 II. & M. 260.
 
 Declarations in trespass. 
 
 Even though it be shewn that the debt has been paid, for \ 
 cution issued, still trespass will not lie. If the defendant 
 debt, he should apply to the court in which the judgment was 
 to quash the execution. Tucker, J. in S. C. 265. 
 
 1. For a trespass to oi~ upon the person. 
 
 Trespass is maintainable against husband and wife jointly, where they 
 have been jointly concerned in committing the injury. Vine \. Saun- 
 dcrs, 4 Bingh. 96. 33 Eng. Com. Law Rep. 290. 
 
 Precedents of declarations for trespasses to persons, are given by mr. 
 Chitty, in 2 Chitty's pleading, 850 to "858. The edition referred to is 
 5 Am. from 4 Lond. edi. Phila. 1828. 
 
 2. For a trespass upon real property. 
 
 BY WHOM THE ACTION* CAN AND CANNOT BE MAINTAINED. Possession 
 
 is indispensably necessary to support an action of trespass quart clausum 
 fregit. Truss v. Old, 6 Rand. 556. 
 
 The injury to the possession, is the gist of the action, and the action 
 cannot be supported, unless at the time the injury was committed, the 
 plaintiff was in actual possession. Opinions of the judges in Cooke v. 
 Thornton, 6 Rand. 8. 
 
 An infant cannot maintain the action for a trespass done to his lands, 
 whilst he is in the wardship of his guardian, because, during the conti- 
 nuance of the wardship, the possession of the ward's lands is in the 
 guardian, and not in the ward. Truss v. Old, 6 Rand. 556. The ac- 
 tion for the trespass belongs to the guardian, and he must account to the 
 ward for the damages recovered. Opinion in S. C. 560. It follows that 
 if a party enter upon the ward's lands, with the license of the guardian, 
 and cut and carry away the trees growing thereon, by his permission, 
 this will be no trespass by the party so entering, but the ward will have 
 recourse against his guardian to the extent of the injury done him. Opi- 
 nion in S. C. 560. 
 
 AGAINST WHOM THE ACTION CAN AND CANNOT BE MAINTAINED. 
 If the commonwealth is in actual possession of land, an individual, claim- 
 ing the same, cannot enter upon that possession, but must resort to his 
 petition of right, and if he enters, and is ousted by actual force, by the 
 officers or agents of the commonwealth, having lawful orders to do the 
 act, he cannot maintain trespass against them. Young v. Gooch and 
 Brotcn, 2 Leigh 596. 
 
 Although it appear that the plaintiff was a tenant at will, of the pre- 
 mises in question, to one of the defendants, and consequently that such 
 defendant might have entered upon the premises, without committing a 
 trespass, yet if it be found that the defendants, after such entry, broke 
 open the house and trunks of the plaintiff, and committed other enormi- 
 ties, such last mentioned acts shew quo animo, the defendants entered, 
 and make them trespassers ab initio. Faulkner v. Anderson, Gilm. 221. 
 
 To WHAT EXTENT PLAINTIFF MAY CLAIM REDRESS. After a trespass 
 
 and ouster committed upon the tenant in possession, if the latter bring
 
 6-56 Declarations in trespass. 
 
 an action of trespass quare clausum fregit, without first regaining the 
 possession, he can only recover in such action, damages for the original 
 trespass and ouster. It was so decided in Cooke v. Thornton, 6 Rand. 
 8. where a tenant was dispossessed by his landlord three years before 
 the expiration of his term, and brought his action of trespass without 
 making any re-entry. The court of appeals held, that the jury, in esti- 
 mating the damages, were not to consider the value of the term unex- 
 pired, at the date of the ouster, but were to confine themselves to the 
 first entry, to wit, the simple trespass and ouster. 
 
 The reason of this rule is, that trespass can only be upon land in the 
 possession of another. As soon as a party is out of possession, the 
 continued possession of the trespasser is no trespass upon him. But 
 when he regains the possession, he is, by relation, considered as having 
 had a continued possession, and may then, in an acti m of trespass, re- 
 cover the mesne profits and damages for the whole time he was dis- 
 possessed. Green, J. in Cooke v. Thornton, 6 Rand. 13. 
 
 The rule does not apply where the estate of the disseisee is deter- 
 mined by its own limitation, or by the act of God, so that the disseisee 
 cannot enter. There, the action will lie against the trespasser for the 
 continued dispossession without re-entry ; and this from the necessity 
 of the case. Opinions of judges Green and Cabell in Cooke v. Thorn- 
 ton, 6 Rand. 13 and 18. 
 
 How THE COUNT MUST BE FRAMED. The count must be made to con- 
 form to the right of recovery as here stated, and where the plaintiff has 
 been ousted from the possession, if he should lay the trespass with a 
 continuando, without shewing that he has re-entered, or that his estate 
 has determined, the count will be bad. Green, J. in Cooke v. Thorn- 
 ton, 6 Rand. 11. If the plaintiff has never been deprived of the pos- 
 session, the continuando is to be laid divcrsis diebus et vicibus. If he 
 has been dispossessed, and has regained the possession, he may lay the 
 continuando, without describing the trespass as done diversis diebus et 
 vicibus. Green, J. in S. C. 13. 
 
 ADVISABLE THAT THE PLACE BE MENTIONED. It is advisable that the 
 place be mentioned in the declaration. In Austin v. Morse, 8 Wend. 
 476. the close was merely stated to be situate in the town of Easton. 
 The defendant pleaded liberum tenemcntum, and the plaintiff replied, 
 taking issue upon the plea. The real question between the parties was 
 the ascertainment of a boundary line. But in the state of the plead- 
 ings, it was held, that according to the cases, the defendant verified his 
 plea by shewing title to any lands in the town of Easton. 
 
 The doctrine upon this subject is stated in Cocker v. Crompton Sfc. 
 1 Barn. & Cress. 489. 8 Eng. Com. Law Rep. 140. Bayley, J. says, 
 " According to the old form of pleading in trespass, the plaintiff did 
 not name his close. Then the defendant gave some name to the close ; 
 and if the plaintiff did not new assign, the common bar applied." 
 Holroyd, J. says, " In the old common bar, the defendant alone gave a 
 name to the close, and then the issue was, whether that close was the 
 defendant's freehold. In the rules of this court made in 1654, sec. 12. 
 it is said, ' For the avoiding of the common bar and new assignment, 
 the declaration upon an original quare clausum fregit, may mention the 
 place certainly, and so prevent the use and necessity of the common
 
 Declarations in trespass. 657 
 
 bar and new assignment,' and by sec. 16. ' The common bar and new 
 assignment is to be forborne where certainty is contained in the decla- 
 ration, equivalent to a new assignment.' " 
 
 Afterwards, says Baylcy, J. it became usual for the plaintiff to name 
 the close in the declaration. Then he may apply his evidence to any 
 close of that name in his possession, and the defendant does not main- 
 tain a plea of liberum tenementum by shewing that he is the owner of a 
 close of that name. In order to avail himself of such a plea, he must 
 set out the abuttals. 
 
 Cocker v. Crompton Sfc. was trespass for breaking and entering the 
 plaintiff's close called the Fold-yard, situate in the parish of Prestwick 
 cum Oldham, in the county of Lancaster. Plea, that the said close, in 
 the said count mentioned, and in which &.C., now is, and at the same 
 time, when &,c., was the close, soil and freehold of the said defendant 
 Crompton : wherefore he, in his own right, and the other defendants, as 
 his servants, broke and entered the same &/c. Replication that the 
 said close was not the close, soil and freehold of the said defendant 
 Crompton as alleged. At the trial it was proved that the plaintiff was 
 in possession of a close called the Fold-yard, and that a trespass had 
 been there committed, but it appeared that Crompton also had a close 
 called the Fold-yard in the same parish : whereupon it was objected for 
 the defendants that they were at liberty to apply all the evidence to that 
 close, and that the plaintiff must therefore be nonsuited. But the court 
 held otherwise. Holroyd, J. said, " The plaintiff in trespass declares 
 upon his possession, and it appears to me that the question upon the 
 issue was, whether the close described in the declaration, as the plain- 
 tiff's was the defendant's freehold or not. Now, there was evidence 
 that a close of that name, in the plaintiff's possession, was not the free- 
 hold of the defendant, and he had no right to substitute another close 
 as the subject matter of the issue." 
 
 USE OF CLAUSE OF ALIA ExoRMiA. While every act of trespass, 
 which will bear an action, must be stated in the declaration, in order to 
 be relied upon at the trial, such facts as are of an opposite character 
 may be given in evidence under the clause of alia enormia, contained 
 in the declaration. If the defendants went to the house of the plaintiff 
 to search for stolen goods, and broke and searched her trunks for this 
 purpose, the plaintiff under the clause of alia enormia may recover da- 
 mages for the injury to her reputation, arising from these facts. Faulk- 
 ner v. Anderson, Gilm. 221. 
 
 FORMS OF DECLARATIONS. Precedents of declarations for trespasses 
 to real property are given in 2 Chitty's pleading, 863 to 875. The 
 edition referred to, is the 5 Am. from the 4 Lond. edi. printed at Phi- 
 ladelphia in 1828. 
 
 The report of the case of Hefernaris ex' or v. Vidal, 6 Munf. 27. con- 
 tains the declaration in that case, which is of a peculiar character. 
 The action is against a justice of the peace for maliciously issuing a 
 warrant to a constable, requiring him to enter the house of the plaintiff 
 and search for slaves, by virtue of which the constable did forcibly en- 
 ter the close of the plaintiff, and did take and carry away out of the 
 possession of the plaintiff certain slaves, claimed by the plaintiff as his 
 own. After verdict for the plaintiff, it was objected that the declaration
 
 558 Declarations in trespass. 
 
 ought to have been trespass, and not case. The court of appeals said, 
 that it considered the action as an action of trespass, vi et armis, and, 
 thus considering it, affirmed the judgment. 
 
 3. For a trespass upon personal property. 
 
 IT LIES FOR DESTROYING OR INJURING SLAVES. An action of tres- 
 pass lies for destroying or injuring slaves as well as other personal pro- 
 perty. 
 
 Harris v. Nicholas, 5 Munf. 483. was an action of covenant, brought 
 on an obligation given by the hirer of a slave, which stated that the 
 slave was " to be returned well cloathed on or before the 25th of De- 
 cember." The allegation was, that the hirer did not return the slave. 
 By the pleadings, it appeared that the hirer, with the knowledge and as- 
 sent of the owner, delivered him to another person, to be employed up- 
 on the plantation of such person, and the overseer of that person, un- 
 lawfnlly, cruelly and excessively beat and whipped the slave, in conse- 
 quence whereof, the slave died, and the death happened before the time 
 mentioned in the obligation for the return of the slave. The court of 
 appeals was of opinion, that if the covenant could be considered as a 
 covenant to return the slave, as well as to secure the payment of the 
 money due for the hire, it ought not to be considered as a covenant to 
 insure such return in the event which happened, especially under the 
 usage and understanding of this country in relation to the subject. And 
 the court was further of opinion, that the hirer would not be held lia- 
 ble under the facts disclosed in the pleadings, (admitting that the over- 
 seer was his servant or agent,) as the act of the overseer which caused 
 the death of the slave was neither authorized by the hirer nor commit- 
 ted by the overseer in the usual and proper course of his duty as such, 
 but was a wilful and unauthorized trespass. 
 
 IT LIES AGAINST AN OFFICER FOR HIS TORTIOUS ACT. A justice of 
 
 the peace, within the district of Columbia, being exempt from the per- 
 formance of militia duty, it has been decided that an action of trespass 
 lies against the officer who makes distress, in order to satisfy a fine as- 
 sessed upon such justice by a court martial. Wise v. Withers, 3 
 Cranch 33J. 
 
 OR FOR THE TORTIOUS ACT OF ins DEPUTY. It has also been deci- 
 ded that trespass lies against a high sheriff for the tortious act of his de- 
 puty, as such. Tucker, J. in Moore's adni'r v. Dawncy Sfc. 3 H. &, M. 
 127. James \. M'Cubbin, 2 Call 273. 
 
 In James v. M'Cubbin, the declaration alleged that the deputy, in or- 
 der to injure the plaintiff, sundry horses, the property of the plaintiff, 
 drove, or procured to be driven, upon the land of J. M., where S. J3. 
 then lived as tenant, in order that he, the deputy, might levy a distress 
 warrant upon the said property, as deputy sheriff, which he did, and af- 
 terwards sold the said horses, to the plaintiff's damage. Verdict was 
 found for the plaintiff, upon which the county court gave judgment. 
 The district court reversed the judgment. But in the court of appeals 
 the judgment of the district court was reversed, and that of the county 
 court affirmed.
 
 Declarations in trespass. 559 
 
 WHEN IT LIES FOR OR AGAINST A PERSONAL REPRESENTATIVE. The 
 statute allowing trespass by or against executors or administrators, for 
 goods taken or carried away, in the lifetime of the testator or intestate, 
 with the decisions thereupon, and the statute allowing a suit for a tres- 
 pass, in injuring or destroying the slaves or other personal property of 
 another, to be brought or revived by the representative of the injured 
 party, or against the representative of the wrong-doer, are cited in 1 Rob. 
 Prac. 52, 3. 
 
 WHAT AMOUNTS TO A WAIVER OF THE TRESPASS. In Hlte v. Long, 6 
 Rand. 457. the plaintiff brought his action of trover to recover the value 
 of a horse, taken by the defendant out of his waggon, and he also brought 
 trespass to recover damages as well for the defendant's violence, in ta- 
 king that horse, as for trespass in stopping the plaintiff's team, in order 
 to take him. In the action of trover, there was a judgment for the de- 
 fendant, and this judgment was held to be a bar to the action of tres- 
 pass. It was not competent to the plaintiff to split one cause of action 
 into two. The action of trespass furnished a complete remedy, as well 
 for the value of the horse, as for the defendant's violence in taking him, 
 and his conduct in stopping the team ; but when the plaintiff elected 
 also to bring trover, that was, in law, a waiver of the whole trespass, as 
 well that committed in taking the horse, as in stopping the team ; and 
 afterwards no action could be maintained for the trespass so waived. 
 
 WHETHER THE DECLARATION MUST SPECIFY THE PROPERTY. Where 
 the declaration charges the taking away of " a quantity of poultry, to 
 wit, turkeys, geese, ducks and hens of the value of 30," judgment 
 will not be arrested because it does not state how many there were of 
 each description. Donaghe v. Roudeboush, 4 Munf. 251. But if the 
 action be under the statute for distraining the goods of the plaintiff for 
 rent when no rent was in arrear, and the declaration is, in general terms, 
 for causing a distress to be made and levied on tkc personal property of 
 the plaintiff, the want of specification of the goods may perhaps be fatal 
 on demurrer. Coalter, J. in Jones v. Murdaugh, 2 Leigh 449. 
 
 WHETHER DECLARATION MUST STATE POSSESSION OF PLAINTIFF. 
 Judgment will not be arrested because the declaration does not charge 
 that the goods taken by the defendant were in the possession of the plain- 
 tiff at the time of the taking, if they are charged to be the property of 
 the plaintiff. Donaghe v. Roudeboush, 4 Munf. 251. 
 
 AVERMENT OF PROPERTY INDISPENSABLE. The averment of property 
 in the plaintiff is indispensable. If, for example, the declaration should 
 merely charge that the defendant forcibly took a horse, in the possession 
 of the plaintiff, without claiming such horse to be the property of the 
 plaintiff, the declaration will be bad on demurrer. Hite v. Long, 6 
 Rand. 457. And where a declaration averred that whilst the plaintiff's 
 waggon and team were travelling on the highway, the defendant forcibly 
 took from the team a horse in the use and possession of the plaintiff, em- 
 ployed in drawing his waggon, whereby the waggon and team of the 
 plaintiff were detained in the public highway, and interrupted in the 
 prosecution of their trip, it was held that the defendant might justify, by 
 a plea averring that the horse was his property ; that the waggoner, (the 
 plaintiff not being present,) endeavoured to carry him off by violently 
 driving the team ; and that he stopped the team in order to retake his 
 horse, using no more force than was necessary for this purpose. Ibid.
 
 660 Declarations in detinue. 
 
 FORMS op DECLARATIONS. Precedents of declarations for trespasses 
 to personal property are given in Chitty's pleading, vol. 2. p. 858 to 863. 
 The edition referred to is the 5 Am. from the 4 Lond. edi. printed at 
 Philadelphia in 1828. 
 
 A declaration for destroying or injuring a slave may be as follows : 
 
 A. B. complains of C. D. in custody &c. of a plea of tres- 
 pass for this, to wit, that the said C. D. on &c. with force and 
 arms &c. to wit, at &c. beat, hurt, wounded and injured a cer- 
 tain slave named John, the property of him the said plaintiff', of 
 
 great value, to wit, of the value of $ , so greatly that, by 
 
 reason thereof, the said slave, (afterwards, to wit, on the day 
 and year aforesaid, died, and the plaintiff's property in the said 
 slave was thereby entirely destroyed,) to wit, at &c. aforesaid, 
 and other wrongs to the said plaintiff, then and there, did, to the 
 great damage of the said plaintiff, and against the peace of the 
 commonwealth. Wherefore the said plaintiff saith, that he is 
 
 injured, and hath sustained damage to the amount of $ ; 
 
 and therefore he brings suit &c. 
 
 (In lieu of the words in parenthesis, such words as the following can 
 be inserted, where the case makes it proper to do so was unable to work 
 
 for a long time, to wit, for months, and during all that time the 
 
 said plaintiff entirely lost, and was deprived of, all benefit of the said 
 slave). 
 
 In Vaughan's adm'r v. Winckler's ex'or, 4 Munf. 136. the action was 
 by an executor against an administrator, for a quantity of corn belong- 
 ing to the plaintiff's testator, which was taken by the defendant's intes- 
 tate. The reporter having given the declaration verbatim, it is sufficient 
 here to refer to it. 
 
 V. IN DETINUE. 
 
 OBJECT OF THE ACTION. The object of the action of detinue is to 
 recover the specific property detained, or its value, and damages for de- 
 tention. Brooke, J. in Austin's ex'or v. Jones, Gilm. 350. 
 
 FOR WHAT IT MAY BE MAINTAINED. In Virginia, detinue is the com- 
 mon action for the recovery of slaves. Sometimes it is brought for other 
 things. In Myers $f Son v. Friend fy Scott, 1 Rand. 12. it was main- 
 tained for a treasury note. 
 
 PLAINTIFF MUST HAVE TITLE AND DEFENDANT POSSESSION. The 
 plaintiff must prove title in himself and possession in the defendant. 
 
 WHAT TITLE is SUFFICIENT. The mortgagee of a slave may maintain 
 detinue against the mortgagor, after a forfeiture is incurred by a failure 
 to perform the condition, and the defendant cannot avoid a recovery by 
 shewing a mere acceptance of payment after the forfeiture, without any 
 release of the title. Faulkner's adm'x v. Harwood, 4 Rand. 245. It fol- 
 lows that a surety in the bond secured by the mortgage, who pays it off
 
 Declarations in detinue. 561 
 
 subsequent to the forfeiture, may obtain at law the same benefit from the 
 deed that he would be entitled to in equity upon the principle of substi- 
 tution. For, with the consent of the mortgagee, an action may be 
 maintained in his name against the mortgagor, to recover the slave for 
 the benefit of the surety. Ibid. 
 
 In Hunter \. Jones, 6 Rand. 541. the facts-were these : The widow of 
 an intestate administered mi his estate, and, by consent of the guardian 
 of his only child, made a purchase of several slaves with the moneys 
 of the estate. The widow afterwards married, and then an order was 
 made appointing commissioners to allot to her, for life, her share of the 
 slaves. The husband and wife, and the guardian of the infant, attend- 
 ed at the division, when the slaves so purchased were brought forward 
 by the husband and wife, as part of the estate. No other account was 
 given of the profits of the estate, and the guardian agreed to accept the 
 slaves so purchased, as part of the estate, in lieu of such account. 
 They were accordingly treated as such by the assent of all parties; were 
 divided by the commissioners as of the estate of the intestate, and this 
 division was returned and recorded. In this division there was an allot- 
 ment to the widow, for life, of one of the slaves so purchased, but the 
 husband, notwithstanding, afterwards sold this slave as the absolute pro- 
 perty of the wife. Upon the death of the wife, an action was brought 
 by the child, as distributee of the intestate, to recover this slave from 
 the second husband's vendee. The court of appeals held, that as the 
 parties had agreed to consider the slaves purchased with the means of 
 the estate, as though they originally belonged to it, and had treated them 
 as such, instead of calling the administratrix to account for the estate, 
 it was an arrangement that bound her and her husband, and was equally 
 binding on those claiming under him, so as to vest the title in the plain- 
 tiff, in like manner as if they had belonged to the intestate. 
 
 A legatee cannot recover a slave bequeathed to him without proving 
 the assent of the executor to the legacy. Hairston v. Hall, 3 Call 218. 
 And see Royall v. Eppcs, 2 Munf. 478. 
 
 After the assent of the executor, the property in the specific thing be- 
 queathed, vests in the legatee, and he may have an action, at common 
 law, for the recovery of the legacy, against a stranger, or the executor, 
 as the case may be. Opinion of court in Smith and wife \. Townes's 
 arlm'r, 4 Munf. 193. 
 
 The assent of the executor is not unavailing where the specific thing 
 was out of the possession of the testator, at the time of his death. He 
 has the power of bequeathing any specific article of personal property 
 owned by him, although he may be out of possession. The property 
 will pass by the will in this as in other cases, on the executor's giving his 
 assent. And the assent being once given, the legatee is complete own- 
 er, and may sue in his own name. Smith and wife v. Tmones's adm'r, 
 4 Munf. 193. 
 
 It is well established, that an assent of the executor to the first taker's 
 possession and enjoyment of the legacy, is an assent to the remainder- 
 man. 
 
 In Lynch v. Thomas, 3 Leigh, 682. a testator bequeathed a slave to 
 an infant son, and directed that the wife should hold the slave till his 
 son attained to full age. The testator died in 1796, and soon afterwards 
 71
 
 562 Declarations in detinue. 
 
 the executor delivered the slave to the wife. The wife died in 1815, 
 and then the son brought detinue for the slave and her increase, against 
 a person who had acquired possession thereof. It was held, that the 
 assent of the executor to the wife's taking possession under the will, 
 was an assent to the son's legacy, and vested him with the legal title to 
 maintain detinue. 
 
 If a plaintiff in detinue shew that he had five years peaceable posses- 
 sion, acquired without force or fraud, and that the defendant obtained 
 possession after the plaintiff had been so possessed, the plaintiff shews 
 such a title as will enable him to recover. Newby's adm'r v. Blakey, 
 3 H: & M. 57. And see Mortimer v. Branifield, 3 Munf. 122. But 
 the title thus shewn does not affect the rights of persons coming within 
 the exceptions to the act of limitations. Blakey v. Newby's adm'r, 6 
 Munf. 64. 
 
 After a judgment in detinue for a slave, the plaintiff cannot bring a 
 subsequent action of detinue for the same slave, in the common form, 
 and rely upon the judgment as evidence of title. If any action, other 
 than a scire facias, can be maintained on a judgment in detinue, 
 such action must be brought upon the judgment itself. In such case, 
 the judgment must, at all events, be declared upon, and not merely re- 
 lied on as evidence of title. Wither' s ex'x v. Wither's ex'or, 6 Munf. 
 10. 
 
 WHAT POSSESSION IN DEFENDANT WILL SUPPORT THE ACTION 
 AGAINST HIM. Proof of possession at a day anterior to the bringing of 
 the suit, is sufficient to charge the defendant, unless he can shew that he 
 was lawfully evicted. Burnley v. Lambert, 1 Wash. 308. Lynch v. 
 Thomas, 3 Leigh 682. 
 
 DEFENDANT'S POSSESSION CHARGES HIM IN HIS INDIVIDUAL CHA- 
 RACTER. An administrator, who has been holding slaves, in which his 
 intestate had only an estate for life, and is sued for those slaves by the 
 person entitled after the death of tenant for life, will be held liable per- 
 sonally. The action of detinue lies, in such a case, against him in his 
 individual character. Roy all v. JEppes, 2 Munf. 479. See also New- 
 sum v. Neivsum, 1 Leigh 86. 
 
 HOW THE DECLARATION MAY DESCRIBE THE SLAVE OR OTHER 
 
 THING SUED FOR. Detinue may be maintained for an infant negro, 
 child of such a mother, without any other description. By chancellor 
 Taylor, in Bass v. Bass, 4 H. &- M. 478. See also Royall v. JEppes, 
 2 Munf. 489. 
 
 AVERMENT OF PROPERTY NECESSARY. In detinue for a slave, the 
 declaration will be insufficient to support the action, unless it state that 
 the slave belonged to, or was the property of the plaintiff. Kent v. Ar- 
 mi stead, 4 Munf. 72. 
 
 VALUE MUST BE LAID SEPARATELY FOR EACH SLAVE. The decla- 
 ration should lay a separate value as to each slave demanded thereby : 
 otherwise, it will be held bad on general demurrer. Opinion of court, 
 in Holladay Sf wife v. Littlepage, 2 Munf. 539. But if there be no 
 demurrer, and there is a verdict for the plaintiff, in which the values are 
 severed, the defect will be thereby cured. S. C. 
 
 NOT NECESSARY TO ALLEGE A SPECIAL DEMAND. The general alle- 
 gation of licet saipius requisitus is sufficient without stating a special 
 demand. Mortimer v. Branifield, 3 Munf. 122.
 
 Declarations in detinue. 563 
 
 FORMS OF THE COUNTS. Forms of counts in detinue are given in 
 Chitty's pleading, vol. 2, of 5 Am. from 4 Lond. edi. p. 592, 3, 4. 
 Those forms are followed, with very little variation, in the following de- 
 claration for a slave. 
 
 C. L. complains of L. J. in custody &c. of a plea, that he 
 render to the said plaintiff a negro woman slave, named Alice, the 
 properly of him the said plaintiff, of great value, to wit, of the 
 value of S 600, which from the said plaintiff he unjustly detains. 
 And thereupon the said plaintiff saith, that heretofore, to wit, 
 on &c. at &c. he, the said plaintiff, delivered to the said L. J. 
 the said negro woman slave named Alice, the property of the 
 said plaintiff, of great value, to wit, of the value of $ 600, to be 
 redelivered by the said L. J. to the said plaintiff, when he the 
 said L. J. should be thereunto afterwards requested. Never- 
 theless, the said L. J. although he was afterwards, to wit, on 
 &c. at &c. aforesaid, requested by the said plaintiff so to do, 
 hath not as yet delivered the said slave to the said plaintiff, but 
 hath hitherto wholly neglected and refused, and still doth neglect 
 and refuse so to do, and still unjustly detains the same from the 
 said plaintiff, to wit, at &c. aforesaid. 
 
 And whereas, also, heretofore, to wit, on &c. aforesaid, at 
 &c. aforesaid, the said plaintiff was lawfully possessed of a cer- 
 tain other slave, to wit, a negro woman named Alice, of great 
 value, to wit, of the value of $ 600, as of his own property, and 
 being so possessed thereof, he the said plaintiff afterwards, to 
 wit, on &c. aforesaid, at &c. aforesaid, casually lost the said 
 slave out of his possession, and the same, afterwards, to wit, on 
 &c. aforesaid, at See. aforesaid, came to the possession of the 
 said L. J. by finding. Nevertheless, the said L. J. well know- 
 ing the said slave to be the property of him the said plaintiff, 
 and of right to belong and appertain to him, hath not, as yet, 
 delivered the said last mentioned slave to the said plaintiff, al- 
 though he was afterwards, to wit, on &c. at &c. aforesaid, re- 
 quested by the said plaintiff so to do, but hath hitherto wholly 
 refused so to do, and hath detained, and still doth detain, the 
 same from the said plaintiff, to wit, at &c. aforesaid, to the da- 
 mage of the said plaintiff of $ 600 ; and therefore he brings his 
 suit &c.
 
 564 Declarations in case. 
 
 VI. IN CASE. 
 
 1. For a slave or other chattel converted ly defendant to his use. 
 
 ACTION MAY BE MAINTAINED BY A TRUSTEE. A trustee having the 
 legal title to a slave or other chattel, may assert that title by any action 
 which is given to the legal owner of property. Where trover is the pro- 
 per action to be brought by any other legal owner, the trustee may bring 
 it also, and a court of law will not limit his recovery to nominal da- 
 mages. He will recover the full value of the property, notwithstanding 
 the recovery, by vesting the title of the trust subject in the defendant, 
 will have the effect of aliening that subject against the purpose of the 
 trust. Opinion of Carr, J. in Newsum v. Newsum, 1 Leigh 92. 
 
 IT WILL NOT LIE AGAINST AN AGENT WHO HAS MADE PAYMENT TO HIS 
 
 PRINCIPAL WITHOUT NOTICE. In Travis v. Claiborne, 5 Munf. 435. a 
 slave had been conveyed by deed of trust to secure a debt. The maker 
 of the deed afterwards delivered the slave to the defendant, as his agent, 
 and, in that character, the defendant carried the slave to the western 
 country, sold him, and, after deducting his commission, paid over the 
 proceeds to his principal. The defendant had no notice of the lien upon 
 the slave, until after he had paid his money to his principal, except such 
 notice as might be implied from the recording of the deed. Trover was 
 brought against the defendant by the trustee. And it was held that, as 
 he had acted merely as agent, and had paid over the money to his princi- 
 pal, without notice, the action would not lie against him, though it would 
 against the principal. 
 
 BUT A PAYMENT OVER BY AN EXECUTOR OR ADMINISTRATOR WILL NOT 
 
 EXONERATE HIM. An attempt was made to apply the principle of this 
 decision to the case of Newsum v. Newsum, 1 Leigh 86. That was an 
 action of trover brought by the owner of a slave against a person who 
 had received the slave as administrator of an intestate's estate, sold him 
 in the same character, and paid over the proceeds of sale, as well as the 
 other assets of the estate, to the creditors of the intestate. All this was 
 done before the institution of the suit, and before notice of any defect in 
 the intestate's title. But the court of appeals did not regard this case as 
 analogous to that of principal and agent. The court was of opinion that 
 an administrator selling property as belonging to his intestate, acted at 
 his peril, and if he sold the property of another, he would have to answer 
 for it to that other, however he might have thought himself bound by 
 law to sell, and however fairly he might have applied the proceeds to the 
 debts of his intestate. 
 
 WHEN DEMAND AND REFUSAL ARE NOT NECESSARY TO BE SHEWN. 
 Demand and refusal, being only evidence of conversion, need not be 
 shewn when there is sufficient proof of actual conversion. Newsum v. 
 Newsum, 1 Leigh 86. 
 
 FORM OF DECLARATION. Forms of declarations in trover are given 
 in Chitty's pleading, vol. 2 of 5 Am. from 4 Lond. edi. p. 835 to 842. 
 The form in most cases is as follows, (the property being of course de- 
 scribed according to the nature of the case) :
 
 Declarations in case. 565 
 
 A. B. complains of C. D. in custody &c. of a plea of trespass 
 on the case. For that whereas, the said plaintiff, heretofore, to wit, 
 on &c. at &c. was lawfully possessed, as of his own property, of 
 certain goods and chattels, to wit, 200 bushels of indian corn, of 
 great value, to wit, of the value of S ,* and being so pos- 
 sessed thereof, he the said plaintiff afterwards, to wit, on the 
 day and year first above mentioned, at &c. aforesaid, casually 
 lost the said goods and chattels out of his possession ; and the 
 same afterwards, to wit, on &c. last aforesaid, at &c. aforesaid, 
 came to the possession of the said C. D. by finding. V'et the 
 said C. D. well knowing the said goods and chattels to be the 
 property of the said plaintiff, and of right to belong and apper- 
 tain to him, but contriving and fraudulently intending, craftily 
 and subtly, to deceive and defraud the said plaintiff in this be- 
 half, hath not, as yet, delivered the said goods and chattels, or 
 any part thereof, to the said plaintiff, although often requested 
 so to do, and hath, hitherto, wholly refused so to do, and after- 
 wards, to wit, on c. aforesaid, at &c. aforesaid, converted and 
 disposed of the said goods and chattels, to his own use, to the 
 
 damage of the said plaintiff S ; and therefore he brings 
 
 suit &c. 
 
 * In The mayor Sfc. of Reading v. Clarke, 4 Barn. &, Aid. 268. 6 Eng. 
 Com. Law Rep. 421. the court, in its opinion, remark, that " even in 
 trover and trespass for taking goods, the value is always stated." Whe- 
 ther the value need be stated, was before the court of appeals in Pear- 
 point v. Henry, 2 Wash. 192. The failure to state the price or value 
 was there made the ground of a motion in arrest of judgment, but. the 
 court overruled the motion. Roane, J. said, "It seems to be the better 
 opinion that a declaration in this action need not state the price of the 
 thing converted, though this is necessary in the action of detinue, where 
 the thing itself, or the value, is to be recovered." 
 
 2. For banlc notes or hills of exchange lost by or stolen from plaintiff, 
 and converted by defendant to his use. 
 
 DECISIONS ON THIS SUBJECT. One who has lost a note payable to the 
 bearer of it, or a bill of exchange endorsed in blank, ought immediately 
 to give notice of his loss to the public, in such a manner as is most likely 
 to prevent innocent persons from taking it. Beckwith v. Conal fyc. 3 
 Bingh. 444. 13 Eng. Com. Law Rep. 44. If, after such notice be given, a 
 person takes that note from a stranger without making such inquiries as 
 prudence would suggest to any one acquainted with the business of the 
 world, should be made, the owner of the note may recover the value of 
 it from him. Although the loss of the note has not been duly advertised, 
 yet if it has been received under circumstances which induce a belief 
 that the receiver knew that the holder had become possessed of it dis- 
 honestly, the true owner is entitled to recover its value from the receiver.
 
 566 Declarations in case. 
 
 The negligence of the owner is no excuse for the dishonesty of the re- 
 ceiver. But the negligence of the one may be an excuse for the negli- 
 gence of the other, and might authorize him to defend himself on the 
 maxim, potior est conditio possidentis. Best, C. J. in Snow v. Peacock, 
 3 Bingh. 406. 13 Eng. Com. Law Rep. 25. 
 
 In Snow v. Peacock, it was left to the jury to say, whether they thought 
 the plaintiffs had done all that it was proper for them to do, to make the 
 loss of the bill known to the world ; and if they had, whether the de- 
 fendant's clerk had used due caution at the time he took the bill. A 
 verdict being found for the plaintiff, a new trial was moved for on the 
 ground that the only question that should have been left to the jury was, 
 whether the defendants took the bill bona fide, and it was insisted that 
 want of caution on their part was only to be received as evidence of 
 mala fides. But the court of common pleas hefdihe direction to the jury 
 was right, and overruled the motion for a new trial. 
 
 The principle is equally well settled, that no person should take a bill 
 of exchange from another without using reasonable caution. Gillv. Cor- 
 bett Spc.3 Barn. &/ Cress. 466. 10 Eng. Com. Law Rep. 154. As far as 
 respects this matter, there is no difference between a bank bill and a bill 
 of exchange payable to a particular person, and by him endorsed in 
 blank. Both are payable to bearer. Best, C. J. in Snow v. Peacock, 3 
 Bingh. 406. 13 Eng. Com. Law Rep. 25. 
 
 In the following cases, the owners of notes and bills recovered against 
 the receivers or holders. Strange v. Wigney, 6 Bingh. 677. 19 Eng. 
 Com. Law Rep. 201. Easley \. Crockford, 10 Bingh. 243. 25 Eng. 
 Com. Law Rep. 116. See also Backhouse v. Harrison, 5 Barn. &. Ad. 
 1098. 27 Eng. Com. Law Rep. 276. 
 
 In the following cases, the receiver was protected. Snow fyc. v. Sad- 
 dler, 3 Bingh. 610. 13 Eng. Com. Law Rep. 69. De La Chaumette v. 
 The Bank of England, 2 Barn. & Adol. 385. 22 Eng. Com. Law Rep. 
 106. 
 
 The case of Johnson fyc. v. Wendle Sfc. 3 Bing. N. C. 225. does not 
 come within either class of cases. The action was trover against the 
 makers of a promissory note by the payees to whom, or to whose order, 
 the note was payable. It had never been endorsed by them, or by their 
 authority, nor was any person ever authorized by them to receive the 
 amount. The note was stolen from them by a clerk in their service, 
 who forged the endorsements upon it. Being presented with these en- 
 dorsements to the bankers of the defendants, it was paid by them. Af- 
 ter demand and refusal, the action of trover was brought, and judgment 
 was given for the plaintiffs. Tindal, C. J. said, "it would be of most 
 dangerous consequence if we were to give legality to a forged endorse- 
 ment of a bill of exchange. The general rule is, that no title can be 
 obtained through a forgery." 
 
 3. For loss of, or injury to a slave, occasioned by defendants 
 
 neglect. 
 
 DECISIONS UPON THE SUBJECT. Williams v. Moore, 3 Munf. 310. 
 was an action on the case to recover damages for an injury to the slave
 
 Declarations in case. 567 
 
 of the plaintiff, caused by the negligence of the defendant. In the re- 
 port of the case, the first count is given at length. It sets forth that 
 the defendant received of the plaintiff a slave at a certain price, under 
 an agreement that if he did not like her, he was to return her in two or 
 three weeks, and while she was in possession of the defendant, by being 
 exposed to the severity of the weather, her hands were so frozen that 
 she lost several of her fingers, and was otherwise disabled, so that she 
 was of little value, and thereupon the defendant refused to keep her, or 
 to compensate the plaintiff for her. The second count is stated by the 
 reporter to have resembled the first, except that it contained averments 
 that the slave was sound and in good health, when delivered to the de- 
 fendant, and that the injury she sustained was by his negligence. The 
 court of appeals directed the court below to instruct the jury, that " if 
 the injury to the slave was not imputable to the neglect of the defen- 
 dant, he would not be responsible therefor, unless he expressly agreed to 
 be so liable ; and that as no such agreement is charged to have been 
 made, he is only bound (according to the declaration) for ordinary care 
 of the slave, that is, such care as any man of common prudence, and 
 capable of governing a family, takes of his own concerns ; and that he 
 is therefore answerable for neglect only." 
 
 Beverley v. Brooke, 2 Wheat. 100. was a suit to recover the value of 
 three slaves, hired by the plaintiff to the defendant, as master of a ves- 
 sel called the Sophila, and received on board the vessel as mariners, on 
 the usual wages, without any special contract. The slaves escaped at 
 Liverpool, and were totally lost. The plaintiff being one of the own- 
 ers of the vessel, alleged that he hired the slaves for the voyage, on 
 which the vessel was bound, expecting the defendant would pursue the 
 orders he should receive. He contended that the true construction of 
 the defendant's orders, required him in the state of things which hap- 
 pened, to proceed to Tonningcn instead of Liverpool, and he insisted, 
 that if the defendant had violated his instructions, such violation sub- 
 jected him to every loss sustained in consequence thereof. But the su- 
 preme court of the United States decided otherwise. Marshall, C. J. 
 delivering the opinion of the court, said, " The court is not satisfied 
 that the danger of the slaves escaping, might not be as great on the con- 
 tinent as in England. But at any rate, Liverpool was one of the con- 
 tingent termini of the voyage, and was consequently within the hazards 
 to which the plaintiff knew his property might be exposed. The dan- 
 ger of losing them, should the Sophila proceed to Liverpool, did not 
 deter him from placing the slaves on board the vessel, nor from direct- 
 ing the master to go to Liverpool, nor from giving full discretion re- 
 specting his port, in an event which was far from being improbable." 
 The judgment for the defendant was therefore affirmed. 
 
 In Spencer \. Pilchcr, 8 Leigh 565. the evidence proved that the de- 
 fendant hired the slave from the 1st of January 1829, to the 25th of 
 December of that year. There was no special agreement made at the 
 time, how, or where he was to be employed ; but many circumstances 
 rendered it probable that he was to be employed that year, as he had 
 been the year before, on the defendant's plantation, in Wood county, in 
 the ordinary agricultural and domestic business of a farm, \vithout be- 
 ing subjected to extraordinary risks. The hire to be paid for him in
 
 568 Declarations in case. 
 
 1829, was the same that had been paid the year before, when the boy 
 was smaller, and was no more than was usually paid for boys of his age 
 and size, kept on farms in Wood county, if as much. On the 15th of 
 December, only ten days before the expiration of the term of hiring, 
 the defendant set out with two boats loaded with produce bound for 
 Cincinnati in Ohio, and thence to markets on the Mississippi, taking 
 the boy with him and only two others to manage the two boats. On 
 their voyage down the Ohio, and soon after they passed below the line 
 of Wood county, the slave was accidentally drowned. On this state of 
 facts, connected with certain declarations of the defendant before he set 
 out, admitting his responsibility in case of the loss of the slave, the 
 jury found a verdict for the plaintiff, and the circuit court gave judg- 
 ment thereupon, which judgment, the court of appeals affirmed. Par- 
 ker, J. said, " the jury might reasonably have inferred that the fair un- 
 derstanding of the contract was to employ the boy in agricultural or do- 
 mestic purposes in the county of Wood, or its vicinity. The com- 
 mencement of a voyage to Cincinnati and New Orleans, was a viola- 
 tion of that understanding, subjecting him to risks and dangers not con- 
 templated or estimated when the hiring took place. He was lost to the 
 owner in the prosecution of that unauthorized use of him, and I am of 
 opinion, that the bailee is responsible for the loss." 
 
 FORM OF DECLARATION. The following precedent is taken from the 
 declaration in Randolph \. Hill, 7 Leigh 383. Upon the question whe- 
 ther the verdict in this case should be set aside as contrary to evidence, 
 the judges who sat in the court of appeals were equally divided in 
 opinion, but there was no question as to the sufficiency of the declara- 
 tion. 
 
 For this, to wit, that whereas the said defendant, on the 
 
 day of , in the year 182 , at the county aforesaid, hired 
 
 of the plaintiff, for and during the space of one year, a negro 
 man slave, the property of the plaintiff, to work in the coal-pits 
 of the said defendant, in the county aforesaid, which said slave 
 was accordingly put into the possession of the said defendant for 
 the purpose aforesaid, and the defendant was bound to keep all 
 his machinery and utensils in proper order and repair, and to 
 work the said coal-pits in a good and collier like manner, and to 
 use due and ordinary care and diligence to prevent any hurt, 
 damage, injury or accident, from befalling or happening to the 
 labourers and workmen employed about the same, and working 
 in the said pits: yet the said defendant, well knowing the pre- 
 mises, but disregarding the rights and interests of the plaintiff 
 in this behalf, and careless of the safely of the property of the 
 
 said plaintiff, on the day of , in the year 182 , at 
 
 the county aforesaid, did carelessly and negligently suffer and 
 permit the said slave, so hired as aforesaid, by the said defen- 
 dant, of the said plaintiff, to descend and enter into the said 
 coal-pits at a time when there was impure, damp and noxious
 
 Declarations in case. 569 
 
 air therein, so that the safety of the said slave was greatly en- 
 dangered ; and he the said defendant well knowing the said 
 coal-pits to be filled with impure, damp and noxious air, as 
 aforesaid, on the day and year last aforesaid, at the county 
 aforesaid, did cause and direct the said slave to be kept at work 
 in the said pits, so filled with damp, impure and noxious air as 
 aforesaid, until the said slave, the property of the plaintiff, em- 
 ployed and hired as aforesaid, was killed. 
 
 And whereas also the said defendant, on the day of 
 
 , in the year 182 , at the county aforesaid, hired of the 
 
 plaintiff, for and during the space of one year, a negro man slave 
 named Jim, the properly of the said plaintiff, to work in the 
 coal-pits of the said defendant, in the county aforesaid, which 
 said slave, the property of the said plaintiff, was accordingly 
 delivered and put into the possession of the defendant for the 
 space aforesaid, and for the purpose aforesaid, and the said de- 
 fendant was bound to keep all his fixtures, machinery and uten- 
 sils and pits, in proper order and repair, and to work the said 
 pits in a good and collier like manner, and to use due and ordi- 
 nary care, management and diligence to prevent any hurt, da- 
 mage, injury or accident, from befalling or happening to the said 
 slave, the property of the plaintiff, while in his employment as 
 aforesaid : yet, the said defendant, well knowing the premises, 
 but disregarding the rights and interests of the plaintiff in this 
 behalf, and careless and negligent of the safety of the said slave, 
 
 the property of the said plaintiff, on the day of , 
 
 182 , daring the period for which the said slave was hired as 
 aforesaid to the said defendant, did order and direct, and cause, 
 the said slave to go into the said coal-pits of him the said de- 
 fendant, while the same was filled with nitrogen gas, whereby 
 the life of the said slave was greatly endangered and put in 
 jeopardy ; and the said defendant, on the day and year last 
 aforesaid, well knowing the said coal-pits to be filled with nitro- 
 gen gas, caused and directed the said slave, the property of the 
 plaintiff, to be kept at labour and work in the said coal-pits, so 
 filled as aforesaid with nitrogen gas, until the said slave, the 
 property of the said plaintiff, was thereby killed, whereby the 
 plaintiff saith he is injured and hath sustained damage to the 
 value of 1000 dollars ; and therefore he sues &c. 
 
 4. By the owner of a runaway slave against a sheriff for not fur- 
 nishing the slave, while in jail, with bed-covering and fuel. 
 
 The sheriff is ex ojficio jailor, and is bound to furnish a runaway com- 
 mitted to jail, in the winter season, with bed-covering and fire. Dabney 
 v. Taliaferro, 4 Rand. 256. If the sheriff neglect to make any provi- 
 72
 
 570 Declarations in case. 
 
 sion of this kind, and, in consequence of his negligence, the health of 
 the runaway be injured, the owner of the runaway may maintain an ac- 
 tion on the case, for damages, against the sheriff. Ibid. The action will 
 lie against the sheriff, although the misconduct was not by himself but 
 by his turnkey or servant. Ibid. 
 
 The following precedent is copied from the declaration in Dabncy \. 
 Taliaferro : 
 
 For that whereas, by the law and custom of this land, the she- 
 riff of each county within this commonwealth is the keeper of 
 the public jail for each county, respectively, and bound to keep 
 the said jail, in all things as the law directs, for the reception, 
 confinement and safe keeping of all persons committed by law- 
 ful authority, to be confined in said jails as prisoners : And 
 whereas the said sheriffs and keepers of the jails as aforesaid, 
 are bound by the laws of the land to furnish every prisoner con- 
 fined by lawful authority in the jails as aforesaid, with whole- 
 some and sufficient food, with sufficient fuel, when necessary 
 and proper, and with cleanly and sufficient bed-covering, and 
 when any prisoner so as aforesaid committed, by lawful autho- 
 rity, shall be a runaway negro slave, to advertise the same, from 
 time to time, in manner and form as by the act of assembly in 
 such case made and provided, is required : And whereas the 
 said G. D. before and at the time of the loss hereinafter next 
 mentioned, was, and from thence, hitherto, hath been, and still 
 is, sheriff and keeper of the jail of the county of K. W. afore- 
 said, and as such hath, for and during all that time, taken, and 
 still doth take, upon himself to perform the duties of keeper of 
 the jail of said county, and to keep the same, as by law directed, 
 for the reception, confinement and safe keeping of all prisoners 
 lawfully committed to the jail of the said county, and more es- 
 pecially for the safe keeping, care and preservation of runaway 
 negro slaves lawfully committed to the said jail as the law di- 
 rects. And the plaintiff in fact saith, that the said G. D., she- 
 riff and keeper of the public jail of the . aforesaid county, as 
 aforesaid, so being such keeper, and so taking upon himself all 
 the duties which appertain to, and of right belong, to his office 
 
 as keeper as aforesaid, heretofore, to wit, on the day of 
 
 January 1821, at the county aforesaid, then and there, did re- 
 ceive into the said jail, for safe keeping according to law, a cer- 
 tain runaway negro slave named Bartlett, the property of the 
 plaintiff, of great value, to wit, of the value of 500 dollars. And 
 the said plaintiff in fact further saith, that the said negro slave 
 named Bartlett, was, then and there, from thence until, and at 
 the time of the loss hereinafter mentioned, within the jail of the 
 said county confined, and during all that time abided in the said
 
 Declarations in case. 571 
 
 jail as a runaway. And the said plaintiff in fact further saith, 
 that at the time the said G. D., sheriff and keeper as aforesaid, 
 did receive the said runaway negro slave into the jail of the 
 said county as aforesaid, the said negro slave did of right belong 
 to the plaintiff, and was of sound health, limbs and body. Yet 
 the said G. D. so being sheriff and keeper of the jail of the 
 county of K. W. as aforesaid, not regarding his several under- 
 takings, and his duty as sheriff and keeper of the jail aforesaid, 
 as aforesaid, did not keep the said jail, and the said negro slave 
 last mentioned, therein confined as a runaway, and so received 
 in said jail as aforesaid, safely and without diminution of value 
 or loss, and furnish the said negro slave, confined as aforesaid, 
 with wholesome and sufficient food, with, fire when necessary 
 and proper, and with cleanly and sufficient bed-covering, and 
 advertise the said runaway, confined as aforesaid, from time to 
 time, as was his duty, and comply with his duty, as sheriff afore- 
 said, as the law directs, but, on the contrary thereof, the plaintiff 
 in fact saith, that the said G. D., sheriff and keeper aforesaid, 
 and those acting for him, so negligently and carelessly behaved 
 and conducted him and themselves, in that behalf, that after- 
 wards, and whilst the said runaway negro slave named Bartlelt, 
 remained and abided in the jail of the county of K. W., received 
 into and confined as aforesaid, to wit, on the same day and year 
 as aforesaid, the said negro slave, prisoner as aforesaid, became 
 diseased, frostbitten from cold, crippled and maimed, and was 
 injured by and through the mere negligence, carelessness, and de- 
 fault in duty of him the said G. D. sheriff and jailor as aforesaid, 
 and was, and still is, since his confinement aforesaid, wholly 
 lost, and of no value to, the plaintiff, to the damage of the plain- 
 tiff 1000 dollars : Wherefore he brings this suit. 
 
 5. By the owner of a slave received in jail, against the sheriff" for 
 his negligence in suffering the slave to escape. 
 
 Burley v. Griffith, 8 Leigh 442. was an action on the case, by the 
 owner of a slave, committed to jail for safe keeping, under the act of 
 Feb. 25. 1824, Sess. Acts 1823-4, p. 38. ch. 35. 4. Sup. to Rev. 
 Code, p. 237. In that case, it was decided that the warrant to the jai- 
 lor, authorizing him to receive the slave into his custody, and confine 
 him in jail, might go in evidence to the jury, although it was not sta- 
 ted, on the face of the warrant, that the justice granting it was of opi- 
 nion the slave might be so confined without public inconvenience, and 
 although the warrant was not under the seal of the justice. 
 
 It was objected to the declaration, in Burley v. Griffith, that the name 
 of the justice, who issued the warrant, was not stated. But the court 
 considered this an objection, having no substance in it. It was over" 
 ruled on general demurrer.
 
 672 Declarations in case. 
 
 The substance of the counts in Burley v. Griffith, is given in the re- 
 port of the case. 
 
 6. Against a sheriff for an escape. 1 Rob. Prac. 75, 6. 
 
 WHERE SHERIFF MAKING ARREST TURNS PRISONER OVER TO HIS 
 SUCCESSOR. Field v. Cocke, reported in BarradalTs MS. Rep. 173. 
 was an action on the case for an escape upon mesne process, and the ob- 
 jection was taken that Pitchford, the prisoner who escaped, was not so 
 delivered by Winn, the old sheriff, (in whose time he was first commit- 
 ted,) to the defendant, the new sheriff, as to make the defendant charge- 
 able for the escape. It appeared, that on the day the defendant was 
 sworn in office, Winn, the old sheriff, brought the keys of the prison 
 into the courthouse, where the defendant was, and laid them upon the 
 table, saying there were two prisoners in jail, upon which, the defendant 
 took up the keys. Pitchford was one of these prisoners, and he after- 
 wards remained in jail 61 days, during which time he was fed by the 
 defendant's order. At the end of the 61 days he broke prison. On the 
 part of the plaintiff, it was contended that as the prisoner was not in 
 execution, he might be delivered over to the new sheriff without inden- 
 ture. But the defendant insisted that an assignment by indenture was 
 necessary in all cases, whether the prisoner was in execution or not. 
 And so the court unanimously decided. 
 
 Soon after this decision, the act of 1748 was passed. For removing 
 all controversies touching the manner of turning over prisoners, upon a 
 sheriff's quitting his office, it enacted that the delivery of prisoners, by 
 indenture between the old sheriff and the new, according to the prac- 
 tice in England, or the entering upon record in the county court, the 
 names of the several prisoners and causes of their commitment, deli- 
 vered over to the new sheriff, shall be sufficient to discharge the late 
 sheriff from all suits or actions for any escape that shall happen after- 
 wards. 5 Hen. Stat. at Large 522. 14, 15. This statute is re-enacted 
 in the code of 1819, omitting merely the words " according to the prac- 
 tice in England." 1 R. C. 282. 26. 
 
 For that whereas, on the 10th day of April in the year 1789, 
 at a general court held before the judges thereof, at the court- 
 house in the city of R. to wit, in the county aforesaid, the said 
 A. administratrix of J. M. deceased, recovered a judgment 
 against one D. D. for &c. and 50s. for her costs by her about 
 her suit in that behalf expended, &c. as by the record and pro- 
 ceedings thereof in the said general court, before the judges 
 thereof, at the courthouse in the city of R. in the county afore- 
 said remaining, appears ; and whereupon it was in such man- 
 ner proceeded, that afterwards, to wit, on the 21st day of May, 
 in the year 1789, a certain writ of the commonwealth of capias 
 ad satisfaciendum, issued out of the general court aforesaid, 
 against the said D., directed to the then sheriff of the county of
 
 Declarations in case. 573 
 
 H. aforesaid, by which said writ the said then sheriff was com- 
 manded that he should take the said D. D. and have his body 
 before the general court at the capitol in Richmond, on the first 
 day of the court then next ensuing, to satisfy the said A. &c. 
 and that he should have then there that writ; which said writ, 
 afterwards, and before the general court next ensuing the said 
 21st May 1789, to wit, on the same day and year last men- 
 tioned, at the county aforesaid, was delivered to W. F. then 
 sheriff of the said county of H., by virtue of which said writ, 
 the said W. F. afterwards, and before the return day thereof, 
 
 to wit, on the day of , in the year 1789, at 
 
 the county aforesaid, (the said W. F. being then sheriff of the 
 county of H. aforesaid,) the said D. D. by his body took, and 
 arrested, and him in his custody there had and detained, until 
 the said W. F. afterwards, to wit, at a court held for the said 
 county of H. on the first clay of February, in the year 1790, at 
 the courthouse thereof, to wit, at the county aforesaid, entered 
 of record in the said court the name of the said D. D. and the 
 cause of his commitment, and duly delivered over the said D. 
 D. to the said J., the said I. then being sheriff of the said 
 county of H., and the said /., then and there, had and detained 
 the said D., by his body, for the cause aforesaid, until the said 
 I. contriving, and fraudulently intending to deprive the said 
 Anne of her remedy aforesaid, by reason of that imprisonment, 
 for obtaining the money aforesaid, afterwards, to wit, on the 
 
 day of , in the year , at the county 
 
 aforesaid, the said I. being, then and there, sheriff of the county 
 aforesaid, without any authority whatever, and without the li- 
 cense of the said Anne, or of the said general court, and against 
 the will of the said Anne, permitted the said D. D. to go at 
 large and escape where he would, and the said D. D. did, then 
 and there, escape with the consent of the said /., and hath, ever 
 since, eloigned himself to places altogether unknown to the said 
 Anne, and she, the said Anne, was not, at the time of the said 
 escape, and is not yet, paid the money afterwards, or any part 
 thereof, but, by reason of the premises, is deprived and de- 
 frauded of her remedy for obtaining the said money, to the da- 
 mage &c. 
 
 7. For unlawful distress. 1 Rob. Prac. 74, 5. 
 
 WHERE THE TRESPASS is WAIVED. Branscomb v. Bridges 4*c. 1 
 Barn. &, Cres. 145. 8 Eng. Com. Law Rep. 43. was case for an exces- 
 sive distress. It appeared by the plaintiff's evidence that the rent in 
 arrear had been tendered before the distress was made. Upon which it 
 was objected that the action should have been trespass not case, and it
 
 674 Declarations in case. 
 
 was argued that as the rent due had been tendered before the distress 
 was made, and no subsequent demand and refusal of it was proved, the 
 taking of the plaintiff's goods was without any colour of right, and 
 therefore properly the subject of an action of trespass. But the court 
 of king's bench overruled the objection. " Supposing," said the court, 
 " that trespass would lie, still the plaintiff was at liberty to waive the 
 trespass and bring an action on the case. It has frequently been deci- 
 ded that trover will lie after a wrongful taking, and that is a stronger 
 case; for there the goods are by the pleadings stated to have come law- 
 fully into the defendant's possession." 
 
 In Holland v. Bird Sfc. 10 Bing. 15. 25 Eng. Com. Law Rep. 14. it 
 was objected that the second count was misjoined, upon the ground that 
 it disclosed the subject matter of an action of trespass, while the residue 
 of the declaration was conceived in case. But the court of common 
 pleas thought the second count and the form of action correct. Tindal, 
 C. J. said, "The form of that count is, that the defendant having dis- 
 trained the plaintiff's goods for the rent of apartments demised to the 
 plaintiff, the plaintiff tendered the rent in arrear and the costs of the 
 distress, which the defendant ought to have accepted and redelivered 
 the plaintiff's goods, but when requested, wrongfully refused so to do. 
 In its very form therefore it is a count in case, because it consists of 
 matter of non-feasance, and non-feasance only. It is, in substance also 
 a count in case, the form of action which has been correctly adopted, 
 because, although a wrongful taking may be a ground of trespass, there 
 are many cases in which a party may waive the trespass and sue in case. 
 Such is the action in trover, and no one will deny that trover lies for the 
 subsequent detainer when the original seizure is an act of trespass. If 
 trover will lie, which is only a subdivision of the action on the case, 
 why should not case also, in its more expanded form. Branscomb v. 
 Bridges goes further than the present decision, because a sufficient ten- 
 der before the distress renders the whole proceeding, illegal ; a sufficient 
 tender after distress only the subsequent detainer. But even under the 
 old statute of Marlbridge, which gives an action on the case for taking 
 outrageous toll, the taking toll where none is due has been held outra- 
 geous within the equity of the statute, and consequently the subject of 
 an action on the case." 
 
 In Olinger v. M'Chesney, 7 Leigh 660. the first count in the declara- 
 tion was in case for a distress where no rent was in arrear and unpaid, 
 but the action was not brought under the statute, no sale having taken 
 place of the goods distrained. As a distress when there is no rent in 
 arrear, is a trespass, it was contended that case would not lie. But the 
 court of appeals decided that it was competent for the plaintiff to waive 
 the trespas^ and declare in case. 
 
 The second count in Holland v. Bird <$pc. and the substance of the 
 first count in Olinger v. M'Chesney, are set forth in the respective re- 
 ports of those cases.
 
 Declarations in case. 575 
 
 8. Against the, cleric, of a court for improperly endorsing credits on 
 
 an execution. 
 
 In an action against the clerk of a court for improperly endorsing 
 credits on an execution, it should be averred that the defendant, as clerk 
 of the court, made the endorsements on the execution, without the order 
 or consent of the plaintiff, or that the endorsements were made by direc- 
 tion of the defendant, without any such order or consent of the plaintiff. 
 If the declaration merely charge that the endorsements were made by 
 the clerk himself, or by his privity or consent, whereby the plaintiff lost 
 the amount credited by such endorsements, it does not set forth a good 
 cause of action. Monroe \. Webb's ex'ors, 4 Munf. 73. 
 
 9. Against a deputy sheriff for an illegal sale under an execution. 
 
 An action on the case will lie against a deputy sheriff for an illegal 
 sale under colour of his office, of property taken in execution, as for 
 example, a sale for cash where the law directs a sale on credit. Rich- 
 ardson v. Perkins, 4 Munf. 512. 
 
 10. By a sheriff who levied 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 damages from the execution 
 creditor. 
 
 The following precedent is taken from the fifth count in the case of 
 Humphreys v. Pratt, 5 Bligh's Par. Cas. N. S. 154. 
 
 And whereas before, and at the time of, the com milting of the 
 grievances in this count mentioned, to wit, on &c. at &c. the 
 said plaintiff' was sheriff of the county of , and the said 
 defendant had, then and there, caused to be delivered to the said 
 plaintiff, as such sheriff, a certain writ, commonly called a writ 
 of fieri facias, which had heretofore issued out of the court of 
 &c. at the suit of the said defendant against one D. P., bearing 
 te-ste the 28th day of November in the year , and returna- 
 ble &c. and directed to the sheriff of the said county of , 
 
 by which said writ, the said sheriff was commanded that of the 
 goods and chattels of the said D. P. in his bailiwick, he should 
 cause to be levied the sum of &c. ; and the said defendant, then 
 and there, represented and affirmed to the said plaintiff' that the 
 said D. P. was possessed of certain goods and chattels, liable to 
 be seized under the said writ, within his bailiwick, which goods 
 and chattels the said defendant would, then and there, cause to 
 be shewn to the said plaintiff, and, then and there, required the 
 said plaintiff to seize said goods and chattels under said execu- 
 tion. And the said plaintiff says that he, confiding in the said
 
 576 Declarations in case. 
 
 representation and affirmation of the said defendant, and be- 
 lieving the same to be true, and not knowing to the contrary 
 thereof, did, afterwards, to wit, on the day and year, and at the 
 place last aforesaid, seize, within his bailiwick, at the request, 
 and by the directions, and at the requisition of the said defen- 
 dant, under the said last mentioned writ, certain goods and chat- 
 tels, that is to say, nine cows and three heifers, which were, 
 then and there, shewn by the said defendant to the said plaintiff, 
 as and for the goods and chattels of the said D. P., liable to be 
 seized under said writ ; and that the said goods and chattels 
 were afterwards claimed by one J. P. as his property ; and that 
 the said defendant, after such seizure and claim, insisted and 
 asserted that the said claim was unfounded. And the said plain- 
 tiff further saith, that the said defendant, in truth and in fact, 
 deceived and defrauded the said plaintiff in this, to wit, that the 
 said last mentioned goods and chattels were not, at the time of 
 the delivery of the said writ to the plaintiff, the goods or chattels 
 or property of the said D. P., liable to be seized under said writ. 
 And the said plaintiff further saith, that afterwards, to wit, on 
 &c. at &c. one J. P. as the true and lawful owner of the said 
 last mentioned goods and chattels, at the time they were so 
 shewn to the said plaintiff, and seized under the last mentioned 
 writ, brought his certain action against the said plaintiff, in the 
 court of &c. before &c. to recover damages for the seizing and 
 taking of the said goods under the said last mentioned writ, and 
 such proceedings were thereupon had, in the said action, that 
 the said J. P. afterwards, to wit, on &c. before &c. at &c. by 
 the consideration and judgment of the said court, recovered 
 against the said plaintiff' a large sum of money, to wit, the sum of 
 50. as and for the value of the said goods and chattels, so seized 
 by the plaintiff as last aforesaid, and the further sum of .27. 15. 1. 
 for costs and charges by the said J. P. about his said suit in 
 that behalf expended, making together the sum of 77. 15. 1., 
 and that afterwards, to wit, on &c. at &c. the said plaintiff was 
 forced and obliged to pay, and, then and there, did pay to the 
 said J. P. the said sum of 77. 15. 1. and was also, then and 
 there, forced and obliged to lay out and expend a certain other 
 large sum of money, to wit, the sum of 40. in and about de- 
 fending the said action, so brought against him as last aforesaid, 
 and in and about taking and pursuing other necessary proceed- 
 ings, made incumbent upon him in consequence of the said sei- 
 zure and the said recovery, and was and is otherwise greatly in- 
 jured. And the said plaintiff says, that by reason of the said 
 several premises, he has been injured, and has sustained da- 
 mage to the amount of 500. ; and therefore he brings his suit 
 &c.
 
 Declarations in case. 577 
 
 At the trial of the general issue, there was a verdict under this count 
 for 77. 15. 1. The defendant moved in arrest of judgment, but his mo- 
 tion was overruled, and judgment entered on the verdict. The cause 
 was carried from the court of exchequer in Ireland, to the court of ex- 
 chequer chamber, and a majority of the judges were of opinion to af- 
 firm the judgment. It was then carried to the house of lords, and there 
 fully and ably argued, both upon principle and authority. At the con- 
 clusion of the argument, lord Tenterden said, that the case required 
 consideration. After such consideration, the judgment was affirmed. 
 There is no record at length of the reasons given in favour of affirm- 
 ance. But lord Tenterden " informed the reporter that he put the case 
 upon the ground that the sheriff was a public officer, and (as his lord- 
 ship expressed it) was placed between two fires." 
 
 11. By a deputy sheriff" against his principal for turning him out of 
 
 office without cause. 
 
 If a deputy sheriff sue his principal for turning him out of office, in 
 violation of his contract, the gist of the action is that the defendant so 
 turned him out without cause, and the declaration, in such an action, is 
 fully answered by a plea alleging that the plaintiff has been guilty of a 
 misfeasance and other improprieties in office. Hoge v. Trigg> 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