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Cornell University Library 
 KF 380.M66 1895 
 
 V.1 
 
 Institutes of common and statute law. 
 
 3 1924 018 830 947 
 
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INSTITUTES 
 
 OF 
 
 Common and Statute Law. 
 
 BY 
 
 JOHN B. MINOE, L L. D., 
 
 PEOFESSOE OF COMMON AND STATUTE LAW IN THE UNIVEESITY OF 
 
 VIEGINIA. 
 
 VOLUME U 
 
 THE EIGHTS WHICH RELATE TO THE PERSON. 
 Second Edition, Revised and Corrected. 
 
 RICHMOND: 
 
 PRINTED FOE THE AUTHOE. 
 
 SOLD BY M. M°KENNIE cfe SON, UNIVEESITY OF VIRGINIA ; 
 
 RANDOLPH & ENGLISH ; AND WEST, JOHNSTON, & 00., RICHMOND, VA. 
 
 1876. 
 
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Entered according to Act of Ccftgress, in the year 1876, 
 
 By John B. Minor, 
 In the OflSce of the Librarian of Congress, at Washington. 
 
 Printed by 
 
 Whittet & Shepperson, 
 
 Cor. loth and Main Sts., Richmond, Va, 
 
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TO HIS 
 
 FORMER AND PRESENT PUPILS, 
 THIS WORK 
 
 IS RESPECTFULLY AND AFFECTIONATELY INSCRIBED, 
 
 BY 
 
 THE AUTHOR. 
 
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PEEFACE TO THE FIRST EDITION. 
 
 No one can be more surprised than the author at the bulk and 
 character which this work has assumed. It was undertaken with 
 the purpose of presenting in print what the author had been ac- 
 customed, for many years, anmially to exhibit on the blackboard : 
 that 'is, a mere tabular analysis of part of his course of instruction 
 in the Law Department of the University, and was expected not 
 to exceed, at most, five or six hundred pages. Insensibly, how- 
 ever, the explanations connected with the successive heads of the 
 analysis became more and more comprehensive, until what was 
 designed to be a Synopsis turned out a Commentary. 
 
 One consequence of this unanticipated enlargement of the au- 
 thor's plan is that the title which he at first ^ave of " Synopsis of 
 Com,m,on and Statute Law." has become inapplicable, and he finds 
 himself reluctantly constrained to adopt another designation, 
 more pretentious, perhaps, than he might otherwise have chosen, 
 namely, " Institutes of Common and Statute Law-"' No one 
 who takes the trouble to bestow ever so cursory a survey on the 
 first volume will doubt that it is sufliciently elementary to merit 
 such a title, however he may question the " institutional method" 
 observed, and object to the propriety and perspicuity of the ar- 
 rangement in the minuter details. 
 
 The author's immediate object has been, not to address himself 
 to the legal profession at large, (whom, yet, he would like much 
 to please and satisfy,) but to prepare a text-book, to aid and sup- 
 plement his own oral instructions ; and many years' experience, 
 as a teacher of law, assures him that he is not mistaken in respect 
 to the signal efiiciency of the analytical arrangement which, with 
 that view, he has adopted. "Whether that analytical method, 
 thus prominently and systematically employed, will be, to a like 
 
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VI PEEFAOE. 
 
 extent, efficient with, other teachers of the science of law, or with, 
 persons who pursue their studies privately, can only be deter- 
 mined by actual tiial. The author is not sanguine that his legal 
 brethren generally, if they condescend to look into his pages at 
 all, will form a favorable opinion of the method in question, 
 although he conceives that, if they will take, the pains to find and 
 to foUow the clue to the expositions presented, they will discover 
 that the book affords no bad -medium for a rapid survey of topics 
 which there may be no opportimity to explore in more elaborate 
 treatises. 
 
 The work having been printed in instalments, for the use of 
 the author's pupils, as his health and leisure enabled him to con- 
 dense into some congruity the materials which he had collected, 
 traces of occasional want of homogeneousness will be discerned-; 
 but it is believed in nothing more important than the references 
 to the statutes of Virginia, which, down to page 192 of the first 
 volume, and page 496 of the second, are to the Code of 1860 and 
 the subsequent Sessions Acts, whilst afterwards they are to the 
 Code of 1873 and the Sessions Acts following. 
 
 The limits of the work have permitted no reference to the 
 statutes of States other than Virginia. Indeed, the author is of 
 opinion that it is not desirable to ply the student of the elements 
 with various and conflicting statutory provisions ; and that it is 
 essentially immaterial whether he learns the statute law of one 
 State or another, provided he learns it thoroughly. "When he has 
 become perfectly master of the general statutes of any one State, a 
 very short time, — a few weeks at farthest, — will suffice to acquaint 
 him with the corresponding statutes of any other State more dis 
 criminatingly than if his attention had been confined to the latter 
 exclusively, a proposition to support which, if any should doubt 
 it, the author might vouch a cloud of witnesses from the ranks of 
 his own pupils, who, in every State in the South and West, have 
 abundantly tested its truth. 
 
 The reader who opens the volumes for the first time cannot fail 
 to be struck, and perhaps will be repelled, by the very peculiar 
 arrangement, which, though familiar enough to those who for the 
 last thirty years have pursued their legal studies at the University 
 of Virginia, requires explanation. The arrangement is designed 
 to exhibit to the eye, on the page, not only the carefully digested 
 
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PEBFAOE. Vll 
 
 order of the propositions, but their relative subordination also, in- 
 dicated by their standing more or less to the right. The most 
 prominent propositions are designated by the Roman numerals I, 
 II, III, &c. , on the extreme left of the page ; and' then, as a guide 
 to the reader, the intended position of the subordinate headings 
 (designated by the Arabic numerals 1, 2, 3, &c.,) is shown by 
 small letters attached to the figures (1% 1^, 1", &c.). Thus, the 
 subordinate heading j?to^ in importance and comprehensiveness is 
 indicated by 1*, and the subsequent topics corresponding to that 
 (being placed as nearly under it as possible) are designated as 2'', 
 3*, &c. So the next in subordination is represented by 1", placed 
 a little further to the right, and the subsequent corresponding 
 heads (as nearly under 1^ as possible) by 2^, 3*, &c. 
 
 If the reader will turn to the table of contents, which is ar- 
 ranged upon this analytical method, he will have little difficulty 
 in understanding and following the plan, which, indeed, is only 
 novel in the extent to which it has been carried. 
 
 It is but too obvious that this arrangement leads to a great 
 loss of space on the page, but the author speaks with the autho- 
 rity of a very long experience when he avers that it contributes 
 vastly to clearness and accuracy of apprehension on the part of the 
 student. And vsdth more experience in book-making, or even with 
 the opportunity of frequent personal conference with the printer, 
 both which advantages were denied to the author, much of the 
 space lost might be saved. 
 
 The author's scheme, when he had in view only a skeleton 
 analysis like Lord Hale's, as enlarged by Blackstone, was to fol- 
 low in general the oiitlines of the latter writer's incomparable 
 Commentaries. Had he meditated originally so voluminous a 
 work as he has now partly completed, he would have ventm-ed to 
 deviate in many particulars from the analysis of Hale and Black- 
 stone, as, indeed, in the detailed development of many subjects,, 
 especially such as presented themselves for discussion after his 
 change of plan, he has actually done. Thus, to say nothing of 
 other particulars, he would not have contented himself with the 
 scanty synopsis he has offered of the English government, but 
 would have accompanied it with some parallel exposition of. the 
 institutions of our own country, a popular and comprehensive view 
 of which he takes to be no inconsiderable desideratum. 
 
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VUl PEEFACE. 
 
 The plan wlaich he has marked out contemplates four volumes 
 (three besides the present), embracing the topics following : 
 
 Yolume I. The Rights which concern or relate to the Person, 
 with an introduction corresponding to that of Blackstone. 
 
 "Volume II. The Rights which relate to Things Real, — ^that is, 
 lands, and real property generally. 
 
 Volume III. The Rights which relate to Things Personal ; and 
 
 Yolume lY. The Pemediesfor Wrongs, including an exposition 
 of the general Practice of the Law, and the subject of Pleading. 
 
 The author hopes to have the second volume fully printed in a 
 few months, and the two other volumes in the coiirse of one or 
 two years. 
 
 UNrvEEsiTT OF YiEGiNiA, March, 1875. 
 
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PREFACE TO THE SECOND EDITION. 
 
 The appearance of a second edition of the first two volumes of 
 this work after so brief an interval might seem to indicate a de- 
 gree of favor which the performance has not attained, nor indeed 
 has had an opportunity to achieve ; for although not denied to 
 those who sought for it, no attempt has been made to invite pur- 
 chasers, nor has it as yet been offered to the general public at 
 all. A reprint, however, having been made requisite by circum- 
 stances which need not be detailed, advantage has been taken of 
 the occasion to revise the text, to make many corrections and 
 some additions, and especially to put the whole in a more com- 
 pact form, thereby lessening the bulk, and in a still greater ratio, 
 the price. 
 
 The work having been received with more approbation than the 
 author had allowed himself to expect, a larger edition is now 
 ventiu-ed upon, the mei-its of which are submitted to the candid 
 judgment of the profession. 
 
 UiirivEESiTY OF YiEGmiA, Sept., 1876. 
 
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AIALYTICAL TABLE OF CONTENTS 
 
 OF BOOK I. 
 
 Page. 
 
 HiSTOEioAii Summary or important Epochs in the Law ; W. C. xxiii 
 1^. Section i. Summary of the most prominent Epochs in the 
 
 Law of England, ..... xxiv 
 
 2=1. Section ii. Data touching the Chronoldgy of English and 
 
 American Law, ..... xxvii 
 
 Inteoddotion ; W. C. 
 
 I. Section i. The Study of the Law ; W. C. 
 
 1^ The utility of the study of the law to various classes of persons, 2 
 2^ The cajases of the disuse of the study of the common law at 
 
 Oxford and Cambridge, .... 8 
 
 3^ Eeasons why the study of the law should be resumed at the 
 
 English Universities, ..... 17 
 
 4?-. Methods to facilitate the study of the law, 
 
 II. Section ii. The Nature of Laws in general; W. C. 
 la Definition of Law in its most general sense, 
 2^ The several kinds of Law ; W. C. 
 
 1*. The Divine Law, .... 
 
 2D. .Human Law ; W. C. 
 1<=. International Law, .... 
 2". Constitutional Law, 
 3°. Municipal Law; W. p. 
 l**. Definition of Municipal Law, 
 2<i. The several parts of a Law, declaratory, directory, re- 
 medial, and vindicatory, .... 28 
 3'!. The obUgation to obey the Laws, ... 28 
 4<i. The interpretation of Laws, .... 28 
 
 III. Section iii. The Laws of England ; W. C. 
 
 1^ The lex non scripta, unwritten, or Common Law ; W. C. 
 l*. Why called lex non scripta, .... 30 
 
 2* The Rise and Original of the lex non scripta, or common law, 30 
 3D. The several parts of the lex non scripta, or common law ; 
 W. C. 
 1'^. General Customs, ..... 31 
 
 2<=. Particular Customs, ..... 32 
 
 3°. Particular Laws ; W. C. 
 l<i What particular laws are admitted as part of the lex non 
 
 scripta, . . . . • . . 35 
 
 2^. The several species of Courts wherein the civil and canon 
 
 laws are permitted to be used, . . . 37 
 
 3^. The restraints in the employment of the civil and canon 
 
 laws, . . . . . . 37 
 
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 18 
 
 22 
 
 22 
 
 22 
 22 
 
 22 
 
Xll ANALTTIOAL TABLE OF CONTENTS OF BOOK I. 
 
 Page, 
 
 2*. The lex scripta, or Statute Law ; W. C. 
 1^. How Statutes are enacted, . . , . 37 
 
 2"° The different kinds of Statutes, .... 38 
 
 %'°. The rules to be observed with regard to the Construction 
 
 of Statutes, as prescribed by the common law, . 3& 
 
 4^. Eules to be observed with regard to the Construction of 
 ,. Statutes, as prescribed by law in Virginia, . . 41 
 
 3*. The Law prevaiHng in Virginia ; W. C. 
 1^. The law in Virginia previous to the Eevolution of 1776, 43 
 
 2*'. The law in Virginia since the Eevolution ; W. C. 
 !<'. The laws enacted by the direct authority of the Common- 
 wealth, . . , . . . • 44 
 2<=. The laws of the United States, ... 44 
 rV. Section iv. The countries subject to the laws of England ; W. C. 
 la The various countries subject to the authority of England, 45 
 2*. The territory immediately subject to the laws of England; W. C. 
 lb. The High Seas, ...... 48 
 
 2*. England, Wales, and Berwick ; W. C. 
 1". Ecclesiastical Divisions of the Territory of England, 48 
 
 2°. Civil Divisions of the Territory of England, . . . 4& 
 
 The Objects of the Common and Statute Law ; W. C. 
 L The Eights which concern or relate to the Person ; W. C. 
 1*. Eights which concern or relate to the Person in respect to 
 Natural Persons ; W. C. 
 V°. Chapter I. The Absolute rights which relate to the Person 
 in respect to Natural Persons ; W. C. 
 I''. The Nature of Liberty, .... 52 
 
 2'=. The Several Sorts of Absolute Eights; W. C. 
 11. The Eight of Personal Security, . . ■ 52 
 
 ' 21 The Eight of Personal Liberty, ... 55 
 
 31. The Eight of Private Property, ... 59 
 
 41 The Eight of Freedom of Conscience, . . 5& 
 
 3°. The Solemn Declarations and Guards of Absolute Eights ; 
 W. C. 
 11. Solemn Declarations and Guards of Absolute Eights in 
 
 England, ...... 60 
 
 21. Solemn Declarations and Guards of Absolute Eights in 
 
 Vii-ginia, . . . . . . 62 
 
 2^ Eelative Eights which concern the Person in respect to 
 Natural Persons ; W. C. 
 1'=. Eights which concern Persons in Public Eelations ; W. C. 
 11. Eights which concern Persons in the Eelation of Magis- 
 trates ; W. C. 
 1^. Supreme Magistrates ; W. C. 
 1*. Chaptee III. The Supreme Legislature in England, 
 
 or Parliament, ..... 67 
 
 2*. Chapter III. The Supreme Executive in England, or 
 
 the King ;*W. C. 
 \s. The Title to the Crown, .... 74 
 
 2 . Chapter IV. The King's Eoyal Family, . 75 
 
 3s. Chapter V. The Councils belonging to the King, 76 • 
 
 4e. Chapter VI. The King's Duties, . . 78 
 
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ANALYTICAL TABLE OF CONTENTS OF BOOK I. XIU 
 
 Page. 
 
 5s. Chapteb Vn. The King's Prerogative, . . 78 
 
 6g Chapteb VIII. The King's Revenue, ... 83 
 
 2^. Chapter IX. Subordinate Magistrates ; W. C. 
 1*. The Sheriff; W. C. 
 IS' The Antiquity and Original of the office of Sheriff, 91 
 2e. The Mode of Appointment and Eemoval of Sheriffs, 
 
 and of securing their fidelity in office, . . 91 
 
 3g The Duties of Sheriff, .... 94 
 
 4s. The Assistants employed by the Sheriff, . 96 
 
 2*. The Coroner ; W. C ,. 
 Is. Antiquity and Original o,f the office of Coroner, 100 
 
 2e. Mode of Appointment and Removal of Coroners, and 
 
 of securing their fidelity in office, . . 101 
 
 3= Duties of Coroner, . . . .102 
 
 4s Assistants whom Coroner may employ, . . 105 
 
 3*. Justices of the Peace ; W. C. 
 Is. Antiquity and Original of Justices of the Peace, 105 
 
 2s. Mode of Appointment and Removal of Justices of the 
 
 Peace, and of securing their fidelity in office, 106 
 
 3s. Duties of a Justice of the Peace, . . 108 
 
 # . Constables ; W. C. 
 Is. Antiquity and Original of the office of Constable, 109 
 
 2s. Mode of Appointment and Removal of Constables, 
 
 and of securing their fideUty in office, . 110 
 
 3s Duties of a Constable, . . . . 112 
 
 5*. Surveyors of Highways ; W. C. 
 Is- Antiquity and Original of the office of Surveyor of 
 
 Highways, . . . , 113 
 
 2s- Mode of Appointment and Removal of Surveyors of 
 
 Highways, and of securing their fidelity in office, 114 
 3s- Duties of Surveyors of Highways, . . 115 
 
 6*- Overseers of the Poor ; W. C. 
 Is- Antiquity and Original of the office of Overseer of the 
 
 Poor, ...... 121 
 
 2s- Mode of Appointment, Removal, and securing the 
 
 fidelity of Overseers of the Poor, . . 122 
 
 3s- Duties of Overseers of the Poor, . . 123 
 
 7*- Escheators ; W. C. 
 Is- Antiquity and Original of the office of Escheator, 128 
 
 2s- Mode of Appointment and Removal of Escheators, 
 
 and securing their fidelity in office, . . 130 
 
 3s- Duties of Escheator, .... 131 
 
 8*- Supervisors, ..... 133 
 
 2^- Chapteb X. Rights which concern the Person in the 
 Relation of People ; W. C. 
 le. The Doctrine of Allegiance, . . . 134 
 
 28. The different classes of People in a Country ; W. C. 
 If The different classes of People in England, as Aliens, 
 
 &c., 137 
 
 2*. The different classes of People in Virginia ; W. C. 
 is Ahens, ...... 138 
 
 2s. Citizens ; W. C. 
 
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XIV ANALYTICAL TABLE OF CONTENTS OF BOOK I. 
 
 Page. 
 
 l""- Persons who are or may be Citizens, by right of 
 
 Birth, 138 
 
 2'»- Naturalized Citizens, . . . . 139 
 
 3«. The Eights of the People as AHens or Citizens ; W. C. 
 1^ Pohtical Eights, ..... 141 
 
 2'. Eights of Property, . . • . 142 
 
 4". Chapter XI. The several classes of the people of Eng- 
 land ^ W. C 
 1* The Clergy, ..... 148 
 
 2*. Chaptek XII, The Laity ; W. C. 
 IK. The CivU State, ..... 153 
 
 2 . Chaptee XIII. The jUilitary State, . . 156 
 
 3 The Maritime State, .... 159 
 2". Chapteb XIV. The Private Eelations, and Eights and 
 
 Duties belonging thereto ; W. C. 
 l"i. Eelation of Master and Servant ; W. C. 
 1«. Definition of Master and Servant, . . 161 
 
 2«. The Several Classes of Servants ; W. C. 
 
 If. Slaves; W. C, 161 
 
 le. Origin, of Slavery in general, . . . 162 
 
 2e. Origin of Slavery in Virginia, its justification, and its 
 
 history there, . . ■ . . 163 
 
 3e. Slavery in its relations to the world ; W. C. 
 V^, The African Slave-trade, . . . 176 
 
 2^ Effect of Slave's going to another country, where 
 Slavery does not exist, supposing him to return to 
 the Slave domicil, .... 177 
 
 3^ Liability for seizing or harboring a Slave, or for his 
 price, where Slavery is lawful, the action being 
 brought where Slavery is unlawful, . . 179 
 
 ^. Liability of a Master to pay wages to a Slave who 
 continues to serve him, without contract, in a coun- 
 try where Slavery is not lawful, . . 179 
 5^. Effect of contract to render perpetual service, 179 
 46. Who shaU be deemed a negro or colored person, in 
 Virginia, 
 2* Menial Servants, 
 3*. Apprentices; W. C. 
 Is. Who are Apprentices, 
 £s. Mode of binding Apprentices, 
 3e. Obligation of Master, Apprentice, and 
 
 respectively, and Eights of Master, 
 4e- Authority of Master over Apprentice, 
 5^. Assignment by Master of indentures of 
 
 ship, .... 
 68. Adjustment of Controversies between 
 
 Apprentice, 
 7e. Punishment for harboring Apprentice, 
 Desertion, 
 
 8s. Dissolution of contract of Apprenticeship, . 187 
 
 4*. Laborers, .... 
 5'. Stewards, Bailiffs, Factors, Agents, &c.. 
 
 Parent, &c.. 
 
 Apprentice- 
 Master and 
 and for his 
 
 179 
 180 
 
 180 
 180 
 
 183 
 185 
 
 186 
 
 186 
 
 187 
 
 188 
 188 
 
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ANALYTieAL TABLE OF CONTENTS OF BOOK I. XV 
 
 Page. 
 
 3®. Manner in -whicli the relation of service affects Master 
 and Servant, respectively ; W. C. 
 1'. Eelation of Master and Servant depends on Contract ; 
 W. C. 
 Is. Mode of entering into Contract of Service, . 189 
 
 2s. Effect of Contract of Hiring for an indefinite time, 189 
 3s. Effect of entire Contract of Service, . . 190 
 
 4s. Effect upon Wages of Sickness of Servant, . 191 
 
 5s. Dissolution of Contract of Service, . . 191 
 
 6s Effect on Contract of Service of Marriage of female 
 
 Servant, ...... 194 
 
 7s. Authority of Master over Servant, . . 194 
 
 8s. Obhgation of Master in respect to Servant, . 194 
 
 2*. Pecuhar Privileges of Apprentice in England, . 194 
 
 3* Doctrine touching homicide of Masters by. Servants, 197 
 
 4*. Obligation of Master touching testimonials to Servant's 
 
 Character, . . . . . 197 
 
 5*. Doctrine touching liability of Servant to Master, 198 
 
 6 . Doctrine touching Servant's dealing for his own bene- 
 fit, with the subject of the Agency, . . 200, 222 
 4^. Manner in which strangers may be affected by the rela- 
 tion of Master and Servant ; W. C. 
 1* Doctrine touching the right of mutual personal De- 
 fence, and of Maintenance of Suits, as between Master 
 and Servant, ..... 200 
 
 2*. Doctrine touching seducing away, or retaining an- 
 other's servant, ..... 201 
 
 3'. Doctrine touching personal torts done to Servants, 201 
 4*. Doctrine touching contracts made and acts done by 
 Servant, in connexion with his Employment ; W. C. 
 Is. Doctrine touchiog Contracts made by Servant, in be- 
 half of his Master, .... 202 
 
 2s. Doctrine touching torts committed by Servants in 
 
 connexion with their Employments, . . 218 
 
 5^. Doctrine touching the Termination of the relation of 
 
 Master and Servant ; W. C. 
 1 *. Termination of Servant's Authority by express Mevo- 
 
 cation, ...... 223 
 
 2'. Termination of Servant's Authority bi/ Ms death or 
 
 that of the Master, .... 224 
 
 3*. Termination of Servant's Authority by a change in the 
 
 condition of the Master, e. g., Bankruptcy, &c., . 226 
 
 4*. Termination of Servant's Authority by the Completion 
 
 of the Business, or by the lapse of time prescribed, 227 
 6®. Doctrine touching UabUity of Master where Government 
 is concerned ;' W. C. 
 1*. LiabUity of Government for tortious acts and defaults 
 
 of its Servants, ..... 227 
 
 2' Liability of Superior Government-officer for the act or 
 
 default of his Subordinate, . . . 228 
 
 3*. Liability of a Municipal Corporation for the acts and 
 
 defaults of its Servants, .... 229 
 
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XVI ANALYTICAL TABLE OF CONTENTS OF BOOK I. 
 
 Page. 
 
 7^. Doctrine touching the hability of Employer for the acts 
 
 and defaults of a Oontrccotor, . . . 229 
 
 86. Doctrine touching the liability of the owner of Beal pro- 
 perty for its use for hurtful Purposes, . . 230 
 2'i. Ohaptee XV. The relation of Husband and Wife ; W. C. 
 1^. Definition and Character of Marriage, . . 230 
 2«. Method of Contracting Marriage ; W. C. 
 1* Willingness of Parties to Contract, . . 281 
 2^ Capacity of Parties to Contract ; W. C. 
 iB. Doctrine in England as to Disabilities to Contract 
 Marriage; W. C. 
 V^. Canonical Impediments, . . . .282 
 
 2\ Legal or Civil DisabSities, . . .237 
 
 2s Doctrine in Virginia touching Capacity to Contract 
 Marriage ; W. C. 
 l^^ Impediments which render a Marriage Voidable in 
 
 Virginia, ..... 239 
 
 2^ Disabilities which in Virginia render the Marriage 
 
 Yoidper se, . . . . . 241 
 
 3*. Actual Contract of Marriage ; W. C. 
 le. Contract of Actual Marriage in presenti / W. C. 
 1^ The Circumstances necessary to Actual Marriage at 
 
 Common Law, . . . . . 242 
 
 2^ The Circumstances made necessary to Marriage by 
 
 Statute in England, . . . . ' 243 
 
 3''. The Circumstances prescribed by Statute in Vir- 
 ginia, ...... 243 
 
 4*. The effect of Foreign Marriages, . . 247 
 
 5^ The Proof to be made of Marriage, . . 249 
 
 2e. Contract to Marry in future, . . . 249 
 
 3". Modes whereby Marriage is dissolved ; W. C. 
 
 1*. Death, ...... 253 
 
 %\ Divorce; W. C. 
 Is. The Several Kinds of Divorce, . . . 253 
 
 2g. The Causes for the Several Kinds of Divorce ; W. C. 
 1^ Causes for the Several Kinds of Divorce in England, 254 
 2''. Causes for the Several Kinds of Divorce in Virginia ; 
 W. C. 
 li. The Causes for Divorce a mensa et tofo in Virginia, 259 
 2'. The causes for Divorce a Vinculo Matrimonii '-a^ 
 Virginia, ...... 261 
 
 3s The Courts charged with the Cognizance of Divorce 
 
 Causes, ..:... 266 
 
 4s. The Effects of Divorce ; W. C. 
 V^. The Effects of Divorce in England, . . 271 
 
 2^ The Effects of Divorce in Virginia, . . 274 
 
 5s. Doctrine touching Foreign Sentences of Divorce: 
 W. C. 
 111. Doctrine in England, .... 279 
 
 2^ Doctrine in Virginia, .... 279 
 
 6s. Sundry Matrimonial Causes besides Divorce ; W. G. 
 l''. What are such Matrimonial Causes, . . 280 
 
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AiTALTTICAL TABLE OF CONTENTS OF BOOK I. XVll 
 
 Page. 
 
 2'^- The Courts in which such Causes are Cognizable, 283 
 4«. The Legal Consequences of Marriage ; W. C/ 
 1*. Effect of Marriage as between Hashand and Wife 
 
 themselves ; W. C. 
 Is. Effect of Marriage in respect to the Persons of Hus- 
 band and Wife, ..... 284 
 2s. Effect of Marriage in respect to the Property of the 
 Parties; W. C. 
 l^ Effect of Marriage with regard to Contracts and 
 other Transactions between Husband and Wife, 
 occurring before Marriage^ . . . 289 
 2^ Effect of Marriage with regard to Contracts, &c., be- 
 tween Husband and Wife, occurring during cover- 
 ture ; W. C. 
 IV Conveyances by Husband to Wife, and vice versa, 291 
 2' Executory Contracts as between Husband and Wife, 
 
 during coverture, .... 295 
 
 3' Testamentary Dispositions by either Consort in 
 
 favor of the other, .... 295 
 
 4'. Marriage Settlements, . . . 295 
 
 3^ Effect of Marriage on the Property of each Consort, 
 in regard to the other; W. C. 
 V- The Wife's ante-nuptial Conveyances m fraud of the 
 
 Husband's Marital Eights, . . . 298 
 
 2' . The Interest conferred by Marriage upon the Hus- 
 band and Wife respectively in the Property of the 
 other; W. C. 
 1\ Husband's interest in Wife's Property ; W. C. 
 1' Husband's interest iu Wife's Chattels, . 299 
 
 2^. Husband's iuterest in Wife's Freehold Lands, 311 
 2'^. Wife's interest in Husband's Property ; W. C. 
 \y. Wife's interest iu Husband's Chattels, . 313 
 
 2^ . Wife's interest ia Husband's Zawc?s, . 315 
 
 3K Wife's Separate Property, . . . 316 
 
 4'^. Husband and Wife Tenants by Entireties, . 333 
 
 2*. Effect of Maniage as to third Persons; W. C. 
 is. Effect as to third Persons, of the Wife's ante-nuptial 
 
 Contracts, ..... 335 
 
 2s. Effect of Contracts made by the Wife, during cover- 
 ture ; W. C. 
 1^ Effect of Wife's Contracts during Coverture, as re- 
 spects herself, ..... 336 
 2^1. Effect of Wife's Contracts during Coverture, as re- 
 spects the Husband, .... 341 
 3s. Doctrine touching the Husbands Liability for the 
 
 Wife's Torts, ..... 345 
 
 4s. Doctrine touching Suits by and against Husband 
 and Wife ; W. C. 
 1^ Actions by Husband and Wife, . . 347 
 
 2^ Actions against Husband and Wife, . . 357 
 
 3''. Suits as between Husband and Wife, or by or 
 
 against Wife alone, in the courts of equity, . 363 
 
 2a 
 
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XVIU ANALYTICAL TABLE OF CONTENTS OF BOOK I. 
 
 Page. 
 
 5s. Doctrine toucliing Liability of Married Women to 
 
 Ptmishment for Crime, . . . . 365 
 
 6s. Doctrine touching Husband and Wife beijig Wit- 
 nesses, the one for the other, . . . 366 
 3* Contrast of the Sexes, in respect to their several Mights 
 and Privileges ; W. C. 
 is. Difiference in respect of Crimes, . . 367 
 2s. Difference in respect of Civil Rights, . . 36& 
 31. Chaptee XVI. Kelation of Parent and ChUd ; W. C. 
 le. Legitimate Children ; W. C. 
 
 1*. Definition of a Legitimate Child, . . 374 
 
 2*. Duties of Parents to L^itimate Children; W. C. 
 Is Duty of Maintenance, .... 374 
 
 2s. Duty of Protection, .... 380 
 
 3s. Duty of Education, including sketch of Public School 
 
 System in Virginia, . . . 381 
 
 3*. Powers of Parents as to Legitimate Children ; W. C. 
 is Custody of Child's Person, and Power of correction, 397 
 2s. Parent's power to consent to the Marriage of a minor 
 
 child, ...... 402 
 
 3s. Power and control of Parents over minor child's 
 
 estate, ...... 403 
 
 4s Parent's Power to delegate his authority, . 404 
 
 5s Period when Parent's Power terminates, . 405 
 
 4*. Duties of legitimate children to Parents, . . 405 
 
 2^. Illegitimate Children or Bastards ; W. C. 
 1* Definition of an illegitimate child, or Bastard, . 407 
 
 2*. Duty of Parents to Bastards ; W. C. 
 is. Mode of compelling Father to support his Bastard 
 
 child, ...... 412 
 
 26. Custody of Bastard Children, . . . 4I6 
 
 3*. Eights and Incapacities of Bastards ; W. C. 
 is Eights and Incapacities of Bastards at common law ; 
 W. C. 
 V^. Eights of Bastards at common law, . . 416 
 
 2^. Incapacities of Bastards at common law, . 419 
 
 2s. Eights and Incapacities of Bastards in Virginia, 420 
 
 4'!. Chapter XVII. Eelation of Guardian and Ward; 
 W. C. 
 le. The different kinds of Guardians, the Modes of their 
 Appointment severally, and their Power and Dutv • 
 W. C. ^ 
 
 1*. The different kinds of Guardians, and Modes of their 
 Appointment severally ; W. C. 
 is. Guardian by Nature, .... 423 
 
 2s. Guardian for Nurture, .... 424 
 
 3s Guardian in Chivalry, .... 424 
 
 4s. Guardian in Socage, .... 425 
 
 5s. Guardian by Election, .... 426 
 
 6s, Guardian appointed by the Chancery Court, . 427 
 
 7s. Guardian by appointment of Ecclesiastical Court, 429 
 8s. Guardian under the Statute 4 & 5 Ph. & Mar. c. 8, 429 
 
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ANALYTICAL TABLE OF CONTENTS OF BOOK I. XIX 
 
 Page. 
 
 9s. Guardian appointed by Father, or Testamentary, or 
 
 Statutory Guardian, .... 430 
 
 lOe. Guardian by the Custom of Particular Places, 431 
 
 lis. Guardian ad litem, .... 482 
 
 2*. The Circumstances under which the different kinds of 
 Wardship occur, ..... 433 
 
 3*. The Powers and Duties of Guardian ; W. C. 
 le. Custody of Ward's person, and care of his Education, 436 
 2s. Care and Management of Ward's estate, . 439 
 
 4*'. Guardian's Accounts and Allowances ; W. C. 
 is. General doctrine of Accountfibility of Guardians, 444 
 
 2s. The particulars for which a Guardian is Accountable ; 
 W. C. 
 1^. Ward's Estate which did, or might have, come to 
 
 guardian's hands, . . . . . 446 
 
 2''. Losses arising from Guardian's Neglect, &c., . 446 
 
 'S^. Losses arising from Misconduct of Co-guardian 449 
 
 3s. Means provided in Virginia to compel the prompt 
 and accurate settlement of Guardian's Accounts; 
 W. C. 
 W The Commissioner of Accounts, . . 451 
 
 2^ The Eetum of the Inventory, and Account of Sales 
 
 by Guardian, ..... 452 
 
 3''. The Annual Settlement of Guardian's Accounts, 452 
 4s. Mode of stating Guardian's Accounts ; y^. C. 
 1^ The General Principles regulating the settlement of 
 
 Guardian's Accounts, .... 454 
 
 2\ The mode of charging Interest, in respect of Guar- 
 dians, . . . ... . 455 
 
 3^^. Allowances to Guardians, . . . 456 
 
 4^ Doctrine touching the VaUdity of a Guardian's pri- 
 vate settlement with his Ward, &c., . . 461 
 5^ Doctrine as to the Guardian's own Examination be- 
 fore the Commissioner, , . . 461 
 6^. Doctrine as to the production of Books and Vouch- 
 ers, . . . . . . . 462 
 
 1\ Mode of proceeding by Ward against Guardian, and 
 
 Limitation thereto, .... 463 
 
 8^. Form of stating Guardian's Accounts, . . 464 
 
 5*. Termination of the Wardship, . . . 471 
 
 2^. Doctrine touching the Capacities and Incapacities of In- 
 fants ; W. C. 
 1* Ages at which Infants are capable for divers pur- 
 poses, ...... 471 
 
 2^. The precise time when an Infant attains his Age, 472 
 
 3*. Doctrine touching the Privileges and Disabilities of 
 Infants; W. C. 
 IS Doctrine touching an Infant's Suing or being Sued, 473 
 2s. Doctrine touching Privileges and DisabiUties of In- 
 fants in relation to Property and Contracts ; W. C. 
 1^ Doctrine touching the Privileges and Disabilities of 
 Infants in relation to the Disposition of Property, 477 
 
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XX ANALYTICAL TABLE OF CONTElfTS OF BOOK I. 
 
 Page. 
 
 2\ Doctrine touching the Privileges and Disabilities of 
 
 Infants in relation to Contracts Ej^ecutory; W. C. 
 
 1' What Contracts of Infants are Valid, Void, and 
 
 Voidable, respectively, . . . 478 
 
 2\ What confirmation is required and sufficient of 
 
 such as are Voidable, . . . 488 
 
 3' . The Acts for which Infants are liable, notwithstand- 
 ing, their Infancy, .... 495 
 2^. Chaptee XVIII. The Rights which relate to Artificial Per- 
 sons, or Corporations ; W. C. 
 V. The Origin and Nature of Corporations, . . 498 
 2''. The several kinds of Corporations ; W. C. 
 1" The several kinds of Corporations, according to the num- 
 ber of Persons which compose them ; W. C. 
 1*. Corporations Aggregate, .... 501 
 2*. Corporations Sole, ..... 502 
 2". The several kinds of Corporations as Government is or is 
 not concerned therein ; W. C. . , 
 l<i. Public Corporations, .... 503 
 2<i Private Corporations, .... 503 
 3": The several kinds of Corporations according to the Object 
 and Design thereof ; W. C. 
 l<i. Ecclesiastical Corporations, .... 504 
 2'^. Lay Corporations ; W. C. 
 1^. CivQ Corporations ; W. C. 
 1*. The Nature of a Civil Corporation, . . 504 
 2* . Advantages of a Corporation in connexion with busi- 
 ness purposes, ..... 505 
 3*. Limited Partnerships, .... 506 
 2^. Eleemosynary Corporations, . . . 507 
 3*". The Creation and Organization of Corporations ; W. C. 
 l". The Creation of Corporations ; W. C. 
 l"! The Mode of creating Corporations ; W. C. 
 1^. Mode of creating Corporations in England, . 508 
 2". Mode of creating Corporations in Virginia, . 509 
 2*. The Circumstances which accompany the Creation of a 
 Corporation ; W. C. 
 1". Persons to be Incorporated, . . . 511 
 2». The Name of a Corporation, . . . 511 
 3e. The Place of a Corporation ; W. C. 
 1*. Place of a Corporation, as to Imposition of Taxes, 514 
 2*. Place of a Corporation, as respects its capacity to con- 
 duct business elsewhere, .... 517 
 3*. Place of a Corporation, as respects its capacity to Sue 
 and be Sued, when it depends on Mesidence or Citi- 
 zenship, ..... 529 
 2<=. The Organization of Corporations ; W. C. 
 1* The Acceptance of the Charter by the Corporators, 520 
 2'i. Proof of Acceptance of Charter, . . . 520 
 S"!. Attributes or Incidents of a Corporation at common law, 521 
 4<i. Admission and Election of Members and Officers, . ' 523 
 S<i. Disfranchisement of Members, and Amotion of Officers, 527 
 
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ANALYTICAL TABLE OF CONTENTS OF BOOK I. XXI 
 
 Page. 
 
 6*. Subscription for, and Assessment upon Shares in Joint- 
 Stock Companies, . . . . . 527 
 
 4^. The Powers and Modes of Action of Corporations ; W. C. 
 1". The Modes of Action of Corporations ; W. C. 
 11. Time of Meeting, ..... 531 
 
 2d. Place of Meeting, . . , . . 532 
 
 B^- Notice of meeting, ..... 532 
 
 4^- The Persons -who should compose the Meeting, and the 
 
 Eules which should govern their Action, . . 533 
 
 2". The Powers of Corporations ; W. C. 
 Id- Power to have Perpetual Succession, . . 534 
 
 21- Power to have a Common Seal, and to change it at 
 
 pleasure, ...... 535 
 
 3* Power to Contract and be Contracted with ; W. C. 
 1^ The Modes in which a Corporation may Contract, . 538 
 
 2®. With whom and in what Manner a Corporation Con- 
 tracts, ...... 538 
 
 3® What Contracts a Corporation may mate, . . 538 
 
 4^. Appointment of Agent by a Corporation, . . 541 
 
 41. Power to take, hold, transmit in succession, and ahenate 
 
 property as natural persons may, . . . 547 
 
 51. Power to make By-laws, .... 553 
 
 61. Power to Sue and be Sued ; W C. 
 I''. Doctrine as to the Capacity of Corporations to Sue and 
 
 be Sued, ...... 555 
 
 2^ Mode of proceeding in Siiits by or against Corpora- 
 tions ; W. C. 
 1*- Mode of proceeding in Suits where the Corporation is 
 
 Plaintiff, ...... 562 
 
 2*- Mode of proceeding where a Corporation is Defendant ; 
 W. C. 
 IK. The place where in Virginia Suit is to be instituted 
 
 against a Corporation, .... 564 
 
 2^. The Process to be employed to commence a Suit or 
 
 Action against a Corporation, . . . 564 
 
 3^. Mode of serving Process on a Corporation, . 565 
 
 4s. Proceeding in Suits against Corporations, after Pro- 
 cess served, . . . . * . 568 
 
 71. Power to remove Members and Of&cers, . . 570 
 
 3". Disabilities of Corporations, .... 570 
 
 5^ The Eelation of Members to the Corporation ; W. C. 
 1°. Personal Liabihty of Members for the Contracts and torts 
 of the Corporation, ..... 572 
 
 2". Nature and transfer of Stock in Joint-Stock Corporations, 573 
 6^. The Visitation of Corporations, . . . 573 
 
 7*". Judicial Proceedings to restrain and direct Corporations in 
 
 the exercise of their functions and franchises ; W. C. 
 1<= Writ of Mandamus, ..... 575 
 
 2". Writ of Quo Warranto, .... 575 
 
 8*. Dissolution of Corporations ; W. C. 
 1". The Consequences of the Dissolution of a Corporation, 576 
 2"=. Modes of Dissolving Corporations; W. C. 
 
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XXll ANALYTICAL TABLE OF CONTENTS OF BOOK I. 
 
 Page. 
 
 1*. Modes of dissolving Public Corporations ; W. C. 
 
 1«. Dissolution of a Corporation by Act of Legislature, 578 
 
 2^. Dissolution of a Corporation by the loss of all its Mem- 
 bers, or of an integral part of itself, by death or other- 
 wise, . . . . . ■ _ 579 
 
 3^. Dissolution of a Corporation by the Surrender of its 
 
 Franchise to be a Corporation, . . . 580 
 
 4«. Dissolution of a Corporation by Forfeiture, tor Non-user 
 
 or Mis-user of its Franchises, . . . 582 
 
 2<i. Modes of dissolving Private Corporations, . . 584 
 
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HISTORICAL SUMMARY 
 
 MOST IMPORTANT EPOCHS IN THE LAW. 
 
 In one of the best, as it is also one of the most interesting, 
 ■chapters on his Commentaries, Sir William Blaekstone, by way 
 of supplement to his work, presents an historical review of the 
 most remarkable changes that have happened in the law of Eng- 
 land; thus marking out some outlines of English juridical history, 
 by taking a chronological survey of the state of those laws, and 
 their successive mutations. To this elegant summary the stu- 
 ■dent's attention is invited the more earnestly, not only because of 
 its intrinsic value, but because it first suggested, and constitutes 
 the basis, (as Mr. Reeves himself states,) of that very admirable 
 performance, "The History of the English Law, from the time 
 of the Saxons to the accession of Elizabeth," by John Reeves, 
 Esq., to which frequent reference is made ia the following pages 
 of this work. (1 Beeves' Hist. E. L., Preface, v.) 
 
 The several periods under which Blaekstone considers the state 
 of the legal polity of England are the six following, namely: 
 
 1. From the earliest times to the Norman Conquest, (A. D. 
 1066). 
 
 2. From the Norman Conquest to the "reign of Edward I, the 
 English Justinian, as he is fondly styled, (A. D. 1272). 
 
 3. From thence to the Reformation, temp. Henry YIH, (A. D. 
 1509). 
 
 4. From the Reformation to the restoration of King Charles 
 II, (A. D. 1660). 
 
 5. From thence to the Revolution under William, Prince of 
 Orange, (A. D, 1688); and 
 
 Digitized by Microsoft® 
 
XXIV HISTOEICAL S0MMAET. 
 
 6. From the Kevolution to the date of the Commentaries, 
 (A. D. 1765,) somewhat more than a century ago. (4 Bl. Com. 
 407, & seq.) 
 
 Blackstone reserves this outline of juridical history for the final 
 chapter of his great work; and it is not without considerable 
 hesitation that a somewhat corresponding abstract is here ex- 
 hibited at the very beginning of these Institutes; nor has such a 
 departure from so illustrious an example been adventured upon 
 save after a long experience, wit^ successive classes of beginners, 
 of its utility. 
 
 It is proposed, in the first section which follows, to do no more 
 than present a tabular outline of the most note-worthy occur- 
 rences in the law of England, without any discussion thereof;, 
 and to follow that summary, in the second section, vrith a more 
 detailed, but still a mere tabular, exposition chronologically, of 
 the specially interesting incidents connected with the juridical 
 history of our own, as well as of the mother country. 
 
 The student is expected to learn the first section thoroughly, and 
 to make himself, by degrees, familiar with the outline of the 
 second, to which it is hoped he will constantly refer duriug the 
 persual of the ensuing volumes. 
 
 SECTION i. 
 
 SUMMARY OF THE MOST PROMINENT EPOCHS IN THE LAW" 
 
 OP ENGLAND. 
 
 A. D, 
 
 890. 19 Alfred. The local customs of the Heptarchy, collected and 
 digested by Alfred into one general Code, called Dome- 
 hook (Dom-boc), or lAher Judicialis ; which was stUl ex- 
 tant in the reign of Edward IV, (A. D. 1461), but is now 
 lost. 
 
 1041. 1 Edward the Confessor. Re-compilation of Alfred's Laws,, 
 which, in the lapse of a century and a half, had become 
 greatly corrupted by local usages. 
 
 1066. 1 William I. Norman Conquest ; followed (about A. D. 1086),. 
 by the introduction iuto England of the Feudal lorn, ia 
 its utmost rigor, by consent, too, of the Wittenagemote, 
 Commune Concilium, or Parliment ; thereby attaching to 
 lands, amongst several other very oppressive incidents, an 
 absolute inalienability, without the consent of the lord. 
 
 1138. 3 Stephen. Introduction into England, by the Ecclesiastics, of 
 the Roman Imperial Law, to the study of which the dis- 
 covery of a copy of Justinian's Pandects, at Amalfi, ia Italy, 
 about eigJ^yJ^ff/lJ^^fo^y^ftl^o^y liad been lost to the 
 
HI8T0EICAL 8UMMAET. XXV 
 
 A. D. 
 
 world for near five centuries, had given a powerful im- 
 pulse. 
 
 1215. 16 John. Magna Charta ratified by John, upon the demand 
 of his Barons, at JRunniniede, on the Thames, some miles 
 above London. It sets forth, with marvellous perspicacity, 
 the essential principles of rational liberty ; and is the trea- 
 sure-house whence the modern American constitutions 
 have derived most of their valuable elements. 
 
 1285. 13 Edward I. Statute de donis conditionalibus enacted, giving 
 rise to Estates tail; whereby lands were designed, by the 
 Nobles who enacted the law, to be settled upon families 
 inalienably, as long as any of the blood in the direct Hne 
 of descent subsi8ted^(13 Ed. I, c. 1). 
 
 1290. 18 Edward I. Statute of Quia emptores terrarum, whereby 
 feudal tenants were allowed to aUene lands in fee-simple, 
 without consent of the lord (18 Ed. I, c. 1). 
 
 1295. 23 Edward I. Real epoch of the Mouse of Commons, the early 
 germ of which appears in 49 Hen. Ill {k. D. 1263). 
 
 1370. 43 Edward III. The doctrine of Uses and Trusts introduced 
 by the Ecclesiastics, in order to evade the Statutes of 
 Mortmain, which forbade Corporations, -and especially 
 religious Corporations (Monasteries, &c.), from acquiring 
 lands without Hcense from the Crown. 
 
 1473. 12 Edward IV. Taltarum's Case, which determined that Bs- 
 tates-taU were barrable (^. e., conveyable) by the device of 
 a Common Itecovery (which is merely a judgment collu- 
 sively recovered by the intended grantee of the land) ; thus 
 defeating, after an interval of nearly two hundred years, 
 the sMlfully devised, but mischievous policy, of the great 
 Statute of Entails, 13 Edw. I, c. 1. 
 
 1586, 27 Henry VIII. Statute of Uses; whereby Uses, which before 
 were only equitable interests, were intended to be con- 
 verted into legal estates; the design being to abolish uses, 
 or equitable estates, altogether, although, by the construc- 
 tion of the courts, it fell very far short of that effect (27 
 Hen. VIII, c. 10). 
 
 1541. 32 Henry VIII. Statute of Wills; which allowed lands to be 
 transferred from one to another, by the last will of the 
 owner (32 Hen. VIII, c. 1, supplemented by 34 Hen. VIII, 
 c. 5). 
 
 1628. 3 Charles I. I'etition of Right; setting forth, as solemnly 
 acknowledged by the Crown, the fundamental doctrines 
 of EngHsh Uberty (3 Car. J, c. 1). 
 
 1660. 12 Charles II. Statute aboHshing Tenure in Chivalry, with 
 its oppressive incidents, and all oppressive feudal tenures, 
 retaining only tenure in Socage, and three others. 
 
 1678. 29 Charles II. Statute to prevent Frauds and Perjuries; by 
 requiring certain transactions to be in writing, and in 
 
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XXVI HISTORICAL SUMMARY. 
 
 A. D. 
 
 some instances solemnly authenticated besides, embracing 
 especially provisions touching — 
 
 1. Conveyances of land. 
 
 2. Contracts for the sale or lease of lands, and some other 
 
 Contracts. 
 
 3. Wills, particularly of lands (29 Car. II, c. 3, § 1 to 5). 
 
 1680. 31 Charles II. Habeas Corpus Act; whereby provision was 
 made for a prompt judicial inquiry into the legaHty of 
 every imprisonment alleged to be without sufficient lawful 
 warrant. 
 
 1688. 1 William and Mary. Gheai Revolution, accomphshed by the 
 agency of William, Prince of Orange ; whereby James II 
 was virtually expelled for mis government, and his daughter 
 Mary, the wife of the Prince of Orange, together with her 
 husband, were invited hy the two houses of parliament, to 
 occupy the vacant throne, upon conditions consonant with 
 the ancient liberties of England, as set forth anew in the 
 declaration known as the Bill of Bights (1 Wm. & M. St. 
 2, c. 2) : thus ascertaining the title to the crown of Great 
 Britain to be undeniably a parliamentary title, and not a 
 iitle jure divino. 
 
 1695. 7 William III. Statute allowing Coimsel to persons indicted 
 for treason (7 Wm. Ill, c. 3). 
 
 1700. 12 & 18 WiUiam III. Act of Settlement; settling the Crown 
 
 of Great Britain, upon failure of the issue of the Princess 
 Anne, Mary's sister, upon the Princess Sophia of Bruns- 
 wick, and the heirs of her body, being I'rotestants (12 & 
 18 Wm. Ill, c. 2). 
 
 1701. 12 & 13 William III. Statute (part of the Act of Settlement) 
 
 changing the tenure of office of the Judges of England, 
 from during the Kings pleasure to during good be- 
 haviour; the commission, however, being still liable to be 
 vacated by the demise of the Crown (12 & 13 Wm. Ill, 
 c. 2). 
 1714. 1 George I. Statute prolonging the duration of the parlia- 
 ment from three to seven years! (1 Geo. I, c. 38.) 
 
 1747. 20 George II. Statute allowing Counsel in Parliamentary 
 impeachments for treason (20 Geo. II, c. 30). 
 
 1752. 24 George II. Statute introducing the ^^ change of style," by 
 correcting the Julian Calender, after the example of Pope 
 Gregory XIII, in 1582 (24 Geo. II, c. 23). 
 
 1760. 1 George III. Statute making the tenure of office of Judges 
 to continue during good behavior, notwithstanding the 
 demise of the Crown (20 Geo. Ill, c. 23). 
 
 1800 39 & 40 George III. Legislative Union of Great Britain and 
 Ireland (39 & 40 Geo. Ill, c. 77). 
 
 1832. 2 WiOiam IV. Statute reforming the representation in Parlia- 
 ment (2 Wm. IV, c, 45). 
 
 1834. 4 WHUam IV. Statute introducing important reforms of the 
 practice o^g/^fl^j^/^.ts^^^^' ^- ^2)- 
 
HISTORICAL BUMMAEY. XXVll 
 
 A. D. 
 
 1834. 4 William IV. Statute modifying the common law canons of 
 Descent (3 & 4 Wm. IV, o. 106). 
 
 1837. 7 William IV. . Statute allowing Counsel in all Criminal Pro- 
 ceedings (6 & 7 Wm. IV, c. 114). 
 
 1845. 8 Victoria. Statute declaring all lands, as to the immediate 
 freehold thereof, to lie in grant as well as in livery (8 & 
 9 Vict. c. 106). 
 
 SECTION ii. 
 
 DATA TOUCHING THE CHKONOLOGY OF ENGLISH AND 
 AMERICAN LAW. 
 
 A. C. 
 
 55. Eomans landed in Britain, under Julius Csesar. 
 
 A. D. 
 
 186. Christianity introduced into Britain, at the request of 
 Lucius, King of the Britons, under the auspices 
 of Pope Eleutherius (Bede, Ecc. Hist. B. I, c. 
 4; 1 Eapin Hist. Eng. 28 (B. I). 
 
 408. Eomans finally abandoned Britain, ,temp. Emperor, 
 Honorius. 
 
 449. Saxons invited over by Britons, in order to assist in re- 
 pelling the Picts and Scots. 
 
 600. Saxon Heptai^chy established. 
 
 827. Kingdoms of Heptarchy united under Egbert. 
 
 882. First Invasion of the Danes. 
 
 871. Alfred the Great. 
 
 890. Local customs of the Heptarchy collected and di- 
 gested by Alfred into one general Code, called 
 Dome-hook (Dom-boc), or Liber Judicialis; 
 extant in the reign of Edward IV (A. D. 1461), 
 but now lost. (1 Bl. Com, 64-'5; 1 Eeeve's 
 Hist. Eng. Law, 25-'6.) 
 
 901. Edward the Elder. 
 
 925. Athelstan. 
 
 941. Edmund, 
 
 946. Edred. 
 
 955. Edwy. 
 " Edgar. 
 
 975. Edward the Martyr. 
 
 978. Etheked. 
 
 1013. The Danes, under Sweyn, enter London, whence 
 Ethelred, at their appoach, fled to Nor- 
 mandy; and Sweyn is proclaimed King. 
 
 1013. Sweyn, First Danish King. 
 
 1014. Ethelred restored. 
 
 1016. Edmtmd Ironside. 
 
 1016. Kingdom divided by Convention, between Ed- 
 mund and Canute, son of Sweyn. 
 
 1017. Canute succeeds to the whole, on Edmund's death. 
 
 Second Danish King. 
 
 Digitized by Microsoft® 
 
XXVIU HI8T0EICAL SUMMARY. 
 
 A. D. 
 
 1035. Harold Harefoot. Third Danish King. 
 
 1039. Hardi-Canute, or Canute II. Fourth Danish King. 
 
 1041. Edward the Confessor. Last Saxon King of th& 
 Koyal race. 
 1041. Re-compilation of Alfred's laws, which had 
 been greatly corrupted by local usages dur- 
 ing the one hundred and fifty years which 
 had elapsed since they were first collected. 
 Hence, as Alfred is the Conditor, so Edward 
 is styled Restitutor legum Anglicanarum. 
 (1 Bl. Com. 66; 1 Eeeves' Hist. Eng. Law, 
 25-'6; tRap. Hist. Eng. 147, & seq. ; Dis- 
 sert. Gov. of Ang. Sax. ; 2 Tum.'s Ang. Sax. 
 Hist. 181, & seq.) 
 S?Sy ■'■^^^- Harold, January 5. In violation of the law of suc- 
 cession. 
 
 1066. William I, October 14. First Norman King. Suc- 
 ceeded hy the Conquest of the Country. 
 1086. Feudal law introduced in its utmost rigor by- 
 consent of the Commune Concilium, Wit- 
 tena-gemote, or ParUament. (1 Reeves' Hist. 
 Eng. Law, 34 to 36 ; Hale's Hist. Com. Law^ 
 133 to 135, cv n (K) : Sax. Chron. A. D. 1086 ; 
 1 Hume's Eng. App'x II.) 
 1086. Dooms-day Book completed. A census of 
 lands, tenures, and tenants for the whole 
 realm ; a master-piece of state-craft. (1 
 Reeves' Hist. Eng. Law, 219 ; Hale's Hist. 
 Com. Law, 137, & seq., n's (a) and (M) ; 
 Roger of Hov. Chron. A. D. 1086 ; HaU. 
 Mid Ages, c. VIII ) 
 
 1087. William Rufus. September 26. 
 
 1100. Henry I. August 5. 
 
 During this reign, by a statute or assise, 
 not extant, the first limitation was imposed 
 on any action for lands — namely, that no 
 writ of Right should be brought on any title 
 accruing before 1 Hen. I. (2 Inst. Com. & 
 Stat. Law, c. xvii.) 
 Biois^^ 1135. Stephen. December 26. 
 ^^J' 1138. Roman Imperial (or Civil) Law introduced into 
 
 England by the Ecclesiastics. (1 Bl. Com. 
 18 ; 1 Insts. Com. & Stat. Law 12, 13 ; 1 
 Reeves' Hist. Eng. Law, 68.) 
 piantagenet 1154. Henry II. December 19. 
 
 Dynasty. ^^^^ ^q ^^^^ jj_ Constitutions of Clarendon, de- 
 
 fining and Hmiting the immunities of the 
 clergy, and the ecclesiastical jurisdiction. 
 (Hale's Hist. Com. Law. 164, & n (B) ; Mat. 
 Par. Chron. A. D. 1164.) 
 1187. 33 Henry II. Glanvil, " Treatise on the Laws 
 and Customs of England." 
 
 1189. Eich2jp^ggF%»j,<^^j5|5.^^^Jeptember 23. 
 
HISTORICAL S0MMAET. XXIX 
 
 A. D, 
 
 1194. "Laws of Oleron," compiled under Richard's ^^"^^^^^^^^ 
 direction, at the isle of Oleron, off the coast ^ ''' 
 of Prance, near the mouth of the Garonne, 
 upon his return from Palestine. (1 Reeves' 
 Hist. Eng. Law, 212 ; Hale's Hist. Com. 
 Law, 105, & n (D).) 
 1199. John. May 27. 
 
 11 15. 17 John. Magna Charta assented to by John, 
 at Rmmimede, on the Thames, a few miles 
 west of London. (1 Eap. Eng. 285, B. VIII ; 
 1 Reeves' Hist. Eng. Law, 209, 231 ; Hal. 
 Mid. Ages, c. Vin.) 
 1216. Henry IH October 28. 
 
 1225. 9 Henry III, c. 1 & seq. Magna Charta con- 
 firmed. First EngHsh Statute extant. The 
 Great Charter was confirmed, with occa- 
 sional variations, comparatively immaterial, 
 above thirty times. (1 Th. Co. Lit. 22 ; 2 
 Reeves' Hist. Eng. Law, 84-'5.) 
 
 1225. 9 Henry III, c. 36. First Statute of Mortmain. 
 (2 Bl. Com. 270 ; 1 Reeves' Hist. Eng. Law, 
 209, 231 ; 2 Insts. Com. & Stat. Law, c. xviii.) 
 
 1263. Bracton. " Treatise of the Laws and Customs 
 of England." (Hale's Hist. Com. Law, 
 289-'90 ; 2 Reeves' Hist. Eng. Law, 86 & seq. 
 4 Id. 570-71, & n. t.) 
 
 1265. House of Commons originated, or at least its 
 gerin recognized. (Bac. Abr Court of Par- 
 Hament, (A) ; 1 Hume's Eng. 432.) 
 
 1268. 52 Hen. III. Statute of Marlebridge, punish- 
 ing Waste in all tenants for hfe or years. 
 (2 Insts. Com. & Stat. Law, c. xviii.) 
 1272. Edward I. November 20. 
 
 1272. Beginning of the Year-books, or annually pub- 
 lished Reports of the Cases adjudged by the 
 principal Courts of England, taken and pub- 
 lished by pubUc authority. They were con- 
 tinued from 1 Edw. I, to the end of the 
 reign of Edw. in (A. D. 1377) ; intermitted 
 for twenty-two years, through the reign of 
 Ric. II; resumed again about 1 Hen. TV 
 (A. D. 1399) ; and kept up, but not with ab- 
 solute regularity, until 27 Hen. VIII (A. D. 
 1586). (2 Reeves' Hist. Eng Law, 357.) 
 
 1278. 6 Ed. I, c. 5. Statute of Gloucester, punish- 
 ing Waste with treble damages, and forfei- 
 ture of the thing (place) wasted (2 Insts. 
 Com. & Stat. Law, c. xviii.) 
 " 6 Edw. I, c. 3. Statute of Gloucester, limiting 
 the effect of collateral warranty by tenant 
 by the Curtesy, in barring the claim of the 
 wife's heir, to the heritage descended from 
 the father. (2 Inst. Com. & Stat. Law. c. xx.) 
 
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XXX HI8T0EICAL SUMMAET. 
 
 A. D. 
 
 Dyml^"^* 1279. 7. Edw. I, Statute 2. Second Statute of Mort- 
 
 main. 
 1280. Introduction by Ecclesiastics, of Common Re- 
 coveries, to evade the Statutes of Mortmain, 
 by a seeming but collusive recovery of the 
 lands by suit. (2 Bl. Com. 271 ; 2 Insts. 
 Com. & Stat. Law, c. xviu.) 
 1285. Fleta. "Commentaries upon the English Law." 
 Supplemental to Bracton. (2 Eeeves' Hist. 
 Eng. Law, 279.) 
 13 Edw. I, c. 1. Statute Westm. H, "de Bonis 
 Oonditipnalibus," creating Estates TaU. (2 
 Eeeves' Hist. Eng. Law, 164 ; 2 Insts. Com. 
 & Stat. Law, c. vii ) 
 " 13 Edw. I, c. 18. Statute "Westm. II, of Megit, 
 giving creditors an execution (afterwards call- 
 ed Elegit), against a moiety of debtor's j^z-ee- 
 hold lands. (2 Insts. Com. & Stat. Law, c. x.) 
 " 13 Edw. I, c. 18. Statute Westm. n, "de 
 Met catoribus," permitting a security for 
 money, called a recognizance of Statute 
 Staple, to be charged on all the lands of the 
 debtor. (2 Bl. Com. 160 ; 2 Insts. Com. & 
 Stat. Law, c. x.) 
 
 1289. Britton. A Compendium of Bracton, present- 
 
 ing a more distinct view (hi Norman French) 
 of the doctrines of the law. (2 Eeeves' Hist. 
 Eng. Law, 280.) 
 
 1290. 18 Edw. I, c. 1. Statute "Westm. HI, Quia 
 
 emptores terrarum, permitting the feudal 
 tenants of subjects (not of the Crown) to 
 aUene their lands in fee simple, vsdthout con- 
 sent of the lord ; the lands, however, to be 
 held not of the grantor, but of the chief lord 
 of the fee. (2 Eeeves' Hist. Eng. Law, 223 ; 
 2 Insts. Com. & Stat. Law, c. xix.) 
 
 1295. 23 Edw. L Eeal Epoch of House of Commons. 
 (1 Hume's Eng. 470.) 
 1307. Edward IL July 8. 
 
 1322. 15 Edw. II. Statute recognizing the House 
 of Commons. (1 Hal. Const'l History, 3.) 
 1326. Edward III January 25. 
 
 1326. 1 Edw. Ill, c. 12. Statute permitting tenants 
 in capite (i. e., of the King) to aliene then- 
 lands, subject to a reasonable fine to the 
 King for his consent. (3 Th. Co. Lit. 211-'12, 
 n (A).) 
 
 1330. 4 Edw. Ill, c. 14 Statute providing for an- 
 nual parliaments (2 Hal. Const. H. 72.) 
 
 1351. 23 Edw. Ill, c. 2. Statute defining treason, 
 and aboUshing the doctrine of constructive 
 treasons. (4 Bl. Com. 67 ; Synops. Crim. 
 
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HISTOEICAL SUMMARY. XXXI 
 
 A. D. 
 
 1363. 36 Edw. Ill, c. 15. Statute enacting that law- giy^^^'l^f °«t 
 proceedings should be conducted in the JEng- ^' 
 
 lish tongue, but be entered Xtnd enrolled in 
 Latin. Previously the proceedings had 
 been both conducted and enrolled in Nor- 
 man French; in -which language the law 
 treatises and reports continued to be written 
 for more than three hundred years after- 
 wards. (3 Bl. Com. 318, & seq ) 
 1370. 43 Edw. III. The doctrine of Uses and Trusts 
 introduced into the Enghsh law by the Ec 
 clesiastics, in order to evade the statutes of 
 Mortmain, and soon universally employed 
 by the people, in order to obviate feudal op- 
 pressions and inconveniences. (2 Bl. Com. 
 328; 2 Inst. Com. & Stat. Law, c. s, xviii.) 
 1377. 50 Edw. Ill, c. 6. Statute recognizing the ex- 
 istence of Uses. (2 Bl. Com. 328 ; 2 Inst. 
 Com. & Stat. Law, c. x.) 
 1377. Eichard II. June 22 
 
 1392. 15 Eic. II, c. 5. Fourth Statute of Mortmain, 
 subjecting Uses and Trusts to the Mort- 
 «ia«w policy. (2 Bl. Com. 329 ; 2 Inst. Com. 
 & Stat. Law, c. x, xvui.) 
 1399. Henry IV. September 30. Lanoaster- 
 
 1413. Henry V. March 21. Dy "asTy!" 
 
 1422. Henry VI September 1. 
 
 1461. Edward IV. March 4. ta°g?n?t''"' 
 
 1461. 1 Edw. IV Statute confirming all judicial Dynasty. 
 • acts and private business transactions oc- 
 curring in the "Time or Times of Henry 
 rV, Henry V, his son, and Henry VI, his 
 son, late in Deed, and not in Right, suc- 
 cessively Kings of England." (2 Eng. Stats, 
 at Large, 586.) 
 1473. 12 Edw. IV. Taltariinis Case, which determ- 
 ined Estates-tail to be barrable (that is, con- 
 veyable) by Common Recovery. (2 Bl. Com. 
 117 ; 2 Inst. Com. & Stat. Law, c. vii.) 
 1475. 14 Edw. IV. Littleton's Tenures composed, 
 but not printed until about 1481. (Lit. 
 Ten. Pref. ix; 1 Hargr. Co. Lit. Pref. v, xxii ; 
 4 Eeeves' Hist. Eng. Law, 113, & seq.) 
 1483. Edward V. April 9. 
 " Eichard HI. June 26. 
 
 1483. 1 Eic. in, c. 5. Statute vesting lands, where the 
 King, when Duke of Gloucester, had been fe- 
 offee to Uses, in the Cestui que Use. (1 Bl. 
 Com. 332 ; 2 Inst. Com. & Stat. Law, c. x.) 
 1485. Henry VII. August 22. Lancaster- 
 
 1496. 11 Hen. VII, c. 20. Statute limiting the effect andTmior 
 of Collateral Warranty by tenant in Dower, dynasty. 
 in barring the husband's heir, to the heritage 
 
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XXXU HISTORICAL SUMMAET. 
 
 A. D, 
 
 piaQtl^^OTet descended from the dowress. (2 Bl. Com. 
 
 and Tudor 303 ; 2 Inst. Com. & Stat. Law, c. xx.) 
 
 Dynasty. 150I,. 19 Hen. VII, c. 15. Subjecting Uses to exeaur- 
 
 tionfor debts, like legal estates. (2 Bl. Com. 
 332 ; 4 Beeves' ffist. Eng. Law, 139.) 
 1509. Henry VIIL April 22. 
 
 1532. 23 Hen. VIII. Reformation begun in England. 
 (4 Reeves' Hist. Eng. Law, 205, 437, 443 ; 
 
 1 Rap. Eng. 794, B. xv; Burnet's Hist. 
 Reform 'n ; 5 D'Aubigne's Hist. Beform'n.) 
 
 1537. 27 Hen. VIII, c. 10. Statute of Uses, convert- 
 ing Uses into legal estates, and designed to 
 abolisfi Uses altogether, although in that it 
 faUed of effect. (2 Bl Com. 333; 2 Inst. 
 Com. & Stat. Law, c. x, xx.) 
 
 1541, 32 Hen. VIII, c. 1. Statute q/ Wills, aUowing 
 lands to be disposed of by will, provided it 
 were in writing. Supplemented by Stat. 
 34 Hen. VIII, c. 5. (2 Bl. Com. 375.) 
 " 32 Hen. VIEI, c. 24. Statute dissolving mon- 
 asteries. 
 1547. Edward VI. January 28. 
 
 1552. 5 & 6 Bdw. VI, c. 16. Statute touching the 
 sale of offices. (2 Bl. Com. 36-'7, & n (31) ; 
 
 2 Inst. Com. & Stat. Law, c. xxi ; Bac. Abr. 
 Offices (F).) 
 
 1553. Mary. July 6. 
 
 1557. 4 & 5 Ph. & Mar. c. 8. Statute touching the 
 custody, and by construction the guardian- 
 ship, of female infants under sixteen, in re- 
 spect of marriage. (1 Bl. Com. 461 ; 1 Inst. 
 Com. & Stat. Law, 429-30.) 
 1558. Elizabeth. November 17. 
 
 1571. 18 Eliz. c. 5. Statute making voidable fraud- 
 ulent conveyances of lands and chattels, in 
 respect to creditors. (2 Bl Com. 296 ; 2 
 Insts. Com. & Stat. Law, c. xx.) 
 
 1585. 27 Eliz. c. 4. Statute making voidable fraudu- 
 lent conveyances of lands, in respect to pur- 
 chasers. (2 Bl. Com. 296 ; 2 Insts. Com. 
 & Stat. Law, c. xx.) 
 
 1601. 43 Eliz. c. 4. Statute declaratory chiefly of the 
 common law, touching and giving effect to 
 vague and indefinite charities. (2 Bl. Com. 
 376 ; 2 Insts. Com. & Stat. Law, c. x, xix ; 
 Vidal vs. Girard's Ex'ors, 2 How. 194 & 
 seq.) 
 Stuart 1603. James I. March 24. 
 
 Dynasty. 1606. 4 Jac. I. First Charter of Virginia to Sir 
 
 Thomas Gates and others, April 10, 1606. 
 (1 Hen. Stats, at Large, 57 & seq.) 
 
 1611. 8 Jac. I. First institution of private property 
 in Virginia. (2 Insts. Com. & Stat. Law, c. L) 
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HISTORICAL SDMMAET. XXXIU 
 
 A. D. 
 
 1619. 16 Jac. I. First Assembly held in Virginia, it 1^^^.^ 
 was long believed without regular authority 
 (1 Hen. Stats. 121, n*; Stith's Virginia, 
 160) ; but explorations in the British State 
 Paper office now show the contrary. (Colon'l 
 Records of Virginia, In trod. Note, vii.) 
 
 1620. 17 Jac. I. Slaves first introduced into Virginia 
 by a Dutch man-of-war. (Bev. Hist. Va. 51 ; 
 1 Burk's Va. 211 ; 1 Insts. Com. & Stat. 
 Law, 163 & seq.) 
 
 1623. 20 Jac. I First Assembly held in Virginia 
 
 whose proceedings were retained in the 
 colonial archives. (1 Hen. Stats 121.) 
 
 1624. 21 Jac. I, c. 16. First general Statute of Limi- 
 
 tations in England. (8 Bl. Com. 188 & seq. ; 
 Id. 306 & seq.'; 2 Insts. Com. & Stat. Law, 
 c. xvii.) 
 " 21 Jac. I. Charter of Virginia cancelled upon 
 writ of quo warranto in King's Bench, thus 
 converting the charter into a Frovincial or 
 Royal government, because it was supposed 
 to be a nursery of detnocracy. (1 Burk's 
 Va. 294 ; Campb. Va. 178-'4 ; 1 Insts. Com. 
 & Stat. Law, 47.) 
 1625. Charles I. March 27. 
 
 1628. 3 Car. I,c. 1. The famous statute known as 
 " The JPetition of Right,'^ setting forth very 
 emphatically some of the most important 
 rights of the people of England, to which 
 the king yielded a reluctant consent. It 
 may be considered as the first setting the 
 battle in array between liberty and prero- 
 gative. (1 Bl. Com. 128 ; 1 Inst. Com. & 
 atat. Law, 60 ; 1 Hal. Const. Hist. Eng. 286, 
 288.) 
 1628. 3 Car. I. Sir Edward Coke's Commentary on 
 Littleton's Tenures (1 Institute), printed. 
 (1 Hargr. Co. Lit. Pref. xxiii (to 13th edi- 
 tion).) 
 1640. 16 Car. I, c. 1. Statute providing for and 
 securing triennial parliaments. (2 Hal. 
 Const. 'Hist. Eng. 72-'3.) 
 1649. 23 Car. I. Charles I beheaded, January 30. 
 1649. Commonwealth. January 30. Common- 
 
 1649. 1 Commonwealth. Act of the General Assembly ^^^ ' 
 of Virginia, declaring the indignation of the 
 colony at the decapitation of Charles I ; and 
 avowing loyalty to his son, Charles II. (1 
 Hen. Stats. 359.) 
 1651. Capitulation and surrender of the colony of Vir- 
 ginia to the commissioners of the Common- 
 wealth of England. (1 Hen. State. 363, 365; 
 2 Burk's Va. 85 & seq. ; Camp. Va. 217 & seq.) 
 
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XXXIV HISTOEICAL SUMMARY. 
 
 A. D, 
 
 Oromweu 1654. Cromwell, (Oliver). January 9. 
 uynasty. ^^^^ Cromwell, (Eichard). September 13. 
 D^^^y. 1660. Charles II. May 29. 
 
 fi®" Considered as succeeding his father, 
 January 30, 1649, and the regnal years reck- 
 oned accordingly. 
 1660. 12 Car. II, c. 24. Stat, abolishing Tenure in 
 Chivalry, -with its oppressive incidents, and 
 all oppressive feudal tenures, retaining only 
 tenure in Socage, and three others. (2 Bl. 
 Com. 77.) 
 1664. 16 Car. II, c 1. Statute repealing act for trien- 
 nial parliaments. (2 Hal. Const. Hist. Eng. 
 244-'5.) 
 1678. 29 Car. II, c, 3. Statute to prevent Frauds and 
 JPerjuries, by .requiring certain transactions 
 to be in vjriting, and in some instances 
 solemnly authenticated besides; embracing 
 especially provisions touching — 
 
 1. Conveyances of land ; 
 
 2. Contracts for the sale or lease of lands, 
 and some other contracts. (2 Insts. Com. 
 & Stat. Law, c. six.) 
 
 I 3. Wills, especially of lands. 
 
 1680. 31 Car. II, c. 2. Statutes securing to the subject 
 the benefit of the writ of Habeas Corpus, 
 the statute being known as the "■ Habeas 
 Corpus Act." (2 Bl. Com. 135 & seq. ; Bac. 
 Abr. Habeas Corpus, (B).) 
 1685. James II. February 6. 
 
 Orange and 1689. WUliam and Mary. February 13. 
 
 Dynasty. 1689. 1 Wm. & Mar. Great Revolution, accomplished 
 
 by bhe agency of WiUiam, Prince of Orange ; 
 whereby James II was virtually expelled, 
 for mis-government, and his daughter Mary, 
 the wife of the Prince of Orange, together 
 with her husband, were iavited by the two 
 houses of Parliament, to occupy the vacant 
 throne, upon express conditions, consonant 
 with the ancient liberties of England, as set 
 forth anew in the declaration known as the 
 B'J^l of Bights. (1 Wm. & M. St. 2, c. 2 ; 
 3 Hal. Const. Hist. Eng. 62 & seq.) 
 1692. 3 & 4 Wm. & M. c. 14. Statute of Fraudulent 
 devises, making devisees of lands liable for 
 decedent's debts, nearly as heirs are. (2 Bl. 
 Com. 378.) 
 
 1694. 6 Wm, & M. c. 2. Statute establishing triennial 
 
 parliaments. (1 Bl. Com. 189.) 
 Synafty. l^^^" William III. December 28. 
 
 fi®° The regnal years are reckoned from 
 the accession of WOliam and Mary, in 1689. 
 
 1695. 7 Wm. Ill, c. 3. Statute allowing counsel to 
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HISTOEXCAL SUMMARY. XXXV 
 
 A. D. 
 
 persons indicted for treason. (4 Bl. Com. S"^*"^* 
 356; Synops. Crim. Law, 245.) ynasy. 
 
 1696. 8 & 9 Wm. Ill, c. 11. Statute allowing several 
 breaches of the condition to be assigned in 
 actions on bonds with collateral condition, 
 and judgment for the penalty, as at common 
 law, but to be discharged by the damages 
 assessed by a jury for the breaches. (Bac. 
 Abr. Oblig'n, {¥).) 
 
 1700. 12 & 13 Wm. Ill, c. 2. Statute known as the 
 "Act oj Settlement" settling the Crown of 
 Great Britain, upon the failure of the issue 
 of the Princess Anne, Mary's sister, (Mary 
 herself being now dead without issue), 
 upon the Princess Sophia, of Brunswick, and 
 the heirs of her body, being Protestants, 
 with some new provisions for better secur- 
 ing the religion, laws, dnd Uberties, which 
 the Statute declares to be " the birthright 
 of the people of England " (1 Bl. Com. 
 128 ; 3 Hal. Const. Hist. Eng. 134 & seq.) 
 " 12 & 13 Wm, III, c. 2. Statute (a portiSn of 
 the Act of Settlement) changing the tenure 
 of office of judges from during the King's 
 pleasure, to during good behavior; but still 
 leaving their commissions liable to be vaca- 
 ted by the demise of the crown. (1 Bl. Com. 
 267-8 ; 3 Hal. Const. Eng. Law, 135, 142-'3.) 
 1702. Anne. March 8. ^^^tj 
 
 1705. 3 & 4 Anne, c, 9. Statute making promissory 
 notes, payable unconditionally, to order, or 
 to bearer, and for a sum certain, assignable 
 like bills of exchange. (2 Bl. Com. 467.) 
 
 1705. 3 & 4 Anne. Statute in Virginia, making es- 
 
 tates-tail inahenable, except by act of As- 
 sembly. (3 Hen. Stat. 320.) 
 1706. 4 & 5 Anne, c. 16, § 21. Statute declaring all 
 collateral warranties by any ancestor, who 
 has no estate of inheritance in possession, to 
 be void against his heir. (2 lasts. Com. & 
 btat. Law, c. XX ; 2 Bl. Com. 303.) 
 
 1706. 4 & 5 Anne, c. 16, § 12, 13. Statute directing 
 
 judgment on money-bonds in a penalty, to 
 be entered for the penalty, but to be dis- 
 charged by payment of the principal sum, 
 with interest (3 Bl. Com. 435.) 
 
 1706. 4 & 5 Anne, c. 16, § 4, 5. Statute allowing de- 
 
 fendant to an action to plead as many pleas 
 as may be necessary. (3 Bl. Com. 308.) 
 
 1707. 5 Anne, c. 8. Statute consummating the Union 
 
 with Scotland. (1 Bl. Com. 95.) 
 1714. George I. August 1. D^^t^* 
 
 1714. 1 Geo. I, c. 38. Statute making the existing ■''"^^' 
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XXXVl HISTOEICAL SUMMABY. 
 
 A. D. 
 
 DyMl^'."^ Parliament (elected under the triennial Act) 
 
 to last for seven years! Providing also in 
 general for Septennial Parliaments. (1 Bl. 
 Com. 189; 3 Hal. Const. Hist. Eng. 171 
 & seq.) 
 1727. George II. June 11. 
 
 1734. 7 Geo. II. Statute in Virginia making estates- 
 tail alienable by deed simply, without an act 
 of Assembly, provided they were ascertained 
 by judicial inquiry, to be of less value' 
 than £200 sterling, &c. (4 Hen. Stats. 400.) 
 
 1747. 20 Geo. II, c. 30. Statute allowing counsel in 
 Parliamentary impeachments for treason. 
 (4 Bl. Com. 356 ; Synops. Ci-im. Law, 245.) 
 
 1752. 24 Geo. II, c. 23. Statute changing "the style," 
 and correcting the Julian Calendar, after 
 the manner of Pope Gregory XIII, in 1582. 
 (2 Insts. Com. & Stat. Law, c. ix.) 
 1760. George III. October 25. 
 
 1760. 1 Geo. Ill, c. 23. Statute making tenure of 
 office of Judges to be during good behavior, 
 and to continue notwithstanding the demise 
 of the Crown. (1 Bl. Com. 268.) 
 
 1765. 5 Geo. Ill, c. . Statute imposing stamp- 
 
 duties on American Colonies. 
 
 1766. 6 Geo. Ill, c. 12. Statute repealing the stamp- 
 
 duties, but reserving the power to tax. (1 
 Bl. Com. 109.) 
 
 1767. 7 Geo. Ill, c. Statute attempting the internal 
 
 taxation of the colonies, by duties on glass, 
 paper, tea, Sc. 
 1770. 10 Geo. Ill, c. Statute abohshing the duties 
 on the American colonies, except on tea 
 
 1773. 13 Geo. III. Destruction of cargoes of tea be- 
 
 longing io the East India Company, in the 
 harbor of Boston. 
 
 1774. 14 Geo. III. Assembling of the first Continen- 
 
 tal Congress at Philadelphia, September 6. 
 1776. 16 Geo. III. June 29. Declaration of Inde- 
 pendence by Virginia. 
 
 " 16 Geo. III. July 4. Declaration of the inde- 
 pendence of the Colonies by Congress. 
 
 " October 7. Estates taU in Virginia, converted 
 by act of Assembly into estates in fee-simple. 
 (9 Hen. Stats. 226 ; V. C. 1873, c. 112, § 9 ; 
 2 Insts. Com. & Stat. Law, c. vii.) 
 
 " October. Commission, consisting of Thomas 
 Jefferson and others, to revise the laws of 
 Virginia. (2 Insts. Com. & Stat. Law, c. 
 xiv.) 
 1778. Slave trade abolished by Virginia, near thirty 
 years before any other Governm,ent in the 
 
HISTOEIOAI- SUMMARY. XXXVll 
 
 D. 
 
 1779. June 18. Committee on revisal of laws re- 5™^^^*''^ 
 ported, but report not fully acted on until 
 1785. (2 Insts. Com. & Stat. Law, c. xiv.) 
 
 1781. March 1. Articles of Confederation ratified by 
 Maryland, the last of the States to assent to 
 them. 
 " May. Pelatiah Webster's pamphlet urging in- 
 sufficiency of existing articles of Confedera- 
 tion. 
 " October 19. Capitulation of Cornwallis at York- 
 town, in Virginia, virtually ending the war. 
 
 1783. September 3. Independence of United States 
 
 acknowledged by Great Britain, and treaty 
 of peace and of boundary negotiated at Paris. 
 
 1784. A conviction becoming general that a revisal of 
 
 the Articles of Confederation was indispens- 
 able, and the formation of a Government, 
 instead of a Confederation. 
 
 1786. January 21. A convention recommended by 
 
 Virginia to take into consideration the trade 
 of the United States, and the commercial 
 regulations necessary for the common in- 
 terest. (5 Ell. Debs. 113 & seq.) 
 " September 11. Assembly of convention of dele- 
 gates from Virginia, Delaware, Pennsylvania, 
 New Jersey, and New York, at Annapolis, 
 Md. It confined itself to recommending a 
 convention of delegates from all the States, 
 to meet at Philadelphia, in May, 1787, " to 
 devise such further provisions as shall appear 
 to them to be necef-sary to render the con- 
 stitution of the Federal Government ade- 
 quate to the exigencies of the Union." (5 
 Ell. Deb. 115-16.) 
 
 1787. November 23 Virginia comphes with the re- 
 
 commendation, and appoints delegates, the 
 other States following the example, except 
 Rhode Island, which never sent any. 
 
 " January 1. Statute in Virginia takes effect 
 (enacted October, 1785), abolishing the com- 
 mon law of Descents, and substituting a 
 wholly new system. (12 Hen. Stats. 138 ; 
 2 Insts. Com. & Stat. Law, c. xiv.) 
 
 " January 1. Statute in Virginia takes effect, 
 dispensing with " heirs" or any other spe- 
 cific word of inheritance, in order to create 
 an estate of inheritamce. (2 Insts. Com. & 
 Stat Law, c. vii; V. C. 1873, c. 112, §8.) 
 
 " May 14 Day appointed for the assembling of 
 the convention to " devise such further pro- 
 visions as shall appear to be necessary to 
 render the Constitution of the Federal Goy- 
 ernvnent adequate to the exigencies of the 
 
 nent adequate to the exigencies of 
 Digitizea by Microsoft^ 
 
XXXVUl HISTOEICAL SUMMARY. 
 
 A. D. 
 
 Brmwiok Union." But seven States (a majority of the 
 
 ^^ ^' thirteen) were not assembled until May 25. 
 
 1787. May 25. Convention was organized by electing 
 
 General Washington president, delegates 
 being present from Massachusetts, New 
 York, New Jersey, Delaware, Pennsylvania, 
 Virginia, North Carolina, Soiith Carolina, 
 and Georgia. Delegates appeared from 
 Connecticut and Maryland May 28, and 
 from New Hampshire July 23. 
 
 " September 17. Convention completed the work 
 of the Bederal Constitution, and reported 
 the same to the Congress of the Confed- 
 eration. 
 
 " September 28. Congress of Confederation or- 
 dered the Constitution to be transmitted 
 " to the several Legislatures, in order to be 
 submittfed to a convention of delegates 
 chosen in each State by the people thereof, 
 in conformity to the resolves of the Conven- 
 tion." (1 Stor. Const. § 277.) 
 
 1788. September 13. Eleven out of the twelve States 
 
 which took part in the formation of the Con- 
 stitution having ratified it by their conven- 
 tions (North Carolina dissenting), the Con- 
 gress of the Confederation appoints first 
 Wednesday in January, 1789, for the choice 
 of electors of president ; the first Wednesday 
 of February, 1789, for the assembling of the 
 electors to vote for a president; and the 
 first Wednesday in March, 1789,- at the then 
 seat of Congress (New York), as the time and 
 place for commencing proceedings under 
 the Constitution. (1 Stor. Const. § 278.) 
 
 1789. March 4. Day appointed for the organization 
 
 of the new government ; but so doubtful 
 was the experiment deemed that no quorum 
 of the two houses convened until April 6. 
 
 " April 6. A quorum of the two houses of Con- 
 gress was at length assembled, when the 
 votes for president being counted, it was 
 found that General George Washington was 
 unanim,ously elected president. 
 
 " April 30. General Washington was sworn into 
 office, and the government of the United 
 States then went into full operation, in all 
 its departments. 
 
 " September 24. Judiciary act passed, estabUsh 
 ing the judicial department of the United 
 States government (substantially as at pre- 
 sent). 
 
 ' November 21. North Carolina ratified the Con- 
 
HISTORICAL SUMMAEY. XXXIX 
 
 A. D. 
 
 1790. May 29. Ehode Island ratified the Constitution jg^'s^"" 
 of the United States. 
 ■' December. Seat of Federal government re- 
 moved from New York to Philadelphia. (1 
 Stor. Laws U. S. 10.) 
 
 1792. Slaves in Virginia made personalty, having 
 been declared to be real estate in 1705. (1 
 Stats, at Large (N. S.), 128.) 
 
 1800. November 17. The seat of the Federal govern- 
 ment permanently established on the Poto- 
 . mac, at Washington city. (1 Stor. Laws U. 
 S. 796.) 
 " 39 & 40 Geo. Ill, c. 77. Statute establishing a 
 legislative rinion between Great Britain and 
 Ireland. (1 Bl. Com. 104, & n (15).) 
 
 1807. March 7. United States statute abolishing 
 African slave-trade by subjects of the United 
 States. (2 Stor. Laws of U. S. 1050.) 
 " 47 Geo. Ill, c. 36. Statute aboUshing African 
 slave trade by British subjects. (1 Steph. 
 Com. 103.) 
 
 1817. 57 Geo. Ill, c. 6. Statute defining treason with 
 increased strictness. (3 Hal. Const. Hist, 
 Eng. 114, & seq.) 
 
 1819. 59 Geo. Ill, c. 46. Statute aboUshing in Eng- 
 
 land, trial by Wager of battel. (3 Steph. 
 Com. 582, n (u) ) 
 
 1820. January 1. Statute abolishing in Virginia the 
 
 doctrine of Carter v. Tyler (1 Call. 143), 
 touching the effect of limitations, coming 
 after estates-tail converted into estates in 
 fee-simple. (V. C. 1873, c. 112, § 9.) 
 " January 1. Statute abolishing in Virginia the 
 effect, at common law, of limitations to take 
 effect an. failure of issue or of heirs, heirs 
 of the body, &c., tying them up to refer to 
 issue, &c , living at the persons death, &c. 
 (V. C. 1873, c. 112, § 10.) 
 " January 1. Statute in Virginia empowering 
 Courts of Chancery to direct the sale of 
 lands belonging to infants and non-sane 
 persons. (V. C. 1873, c. 124, § 2.) 
 
 1820. George IV. January 29. 
 
 1829. 9 Geo. IV, c. 14. Lord Tenterden's Act, de- 
 claring that no promise by words only shall 
 prevent the bar of the Statute of Limitations, 
 unless it be in writing, signed by the party 
 to be charged, &c. (3 Steph. Com. 555; 
 Chit. Cont. 818.) 
 
 1830. WilHam IV. June 26. 
 
 1832. 2 Wm. IV, c. 45. Statute reforming the repre- 
 sentation in the English Parliament. (2 
 Steph. Com. 379.) 
 
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Xl HISTOEICAL StJMMAET. 
 
 A. D. 
 
 D^sl^f" ^^^*- ^ ^^ '^™- ^' «*■ 2'5' and c. 74. Statute abol- 
 
 ishing all warranties (that is, the ancient 
 covenant real, so called), together with all 
 real actions. (2 Inst. Com. & Stat. Law, o. 
 XX; Eawle's Cov'nts of Title, 24.) 
 " 3 & 4 Wm. IV, c. 42. Statute abolishing in 
 England trial by Wager of Law. (3 Steph. 
 Com. 525.) 
 " 3 & 4 Wm. IV, c. 42, § 1 1, 12. Statute (together 
 with Mules of Conrt of Hilary term, 1834) 
 modifying the rules of pleading, (1), By sub- 
 stituting special pleas for the general issues; 
 and (2), By doing away with needless forms. 
 (Steph. PI. 158, and 1st App'x, M.) 
 " 3 & 4 Wm. IV, c. 106. Statute modifying the 
 Common Law Canons of Descent. (2 Inst. 
 Com & Stat. Law, c. xiv.) 
 
 1837. 6 & 7 Wm. IV, o. 114. Statute aUowing Coun- 
 sel in all criminal proceedings. (4 Steph. 
 Com. 426 ; Synops. Crim, Law, 245.) 
 1837. Victoria. June 20. 
 
 1837. 7 Wm. IV, & 1 Vict. c. 26. Statute modifying 
 the ceremonies to attend the execution of 
 Wills. (Wms. Eeal Prop. 187, & seq.) 
 
 1845. 8 & 9 Vict. c. 106. Statute of Grants, declar- 
 ing lands, as to the immediate free-hold 
 thereof, to lie in grant, as weU as in livery. 
 
 1850. Statute of Grants, in Virginia, declaring lands, 
 as to the immediate free-hold thereof, to lie 
 in grant, as well as in livery. (V. C. 1873, 
 c. 112, § 4.) 
 " Statute in Virginia, essaying to abolish the Rule 
 in Shelley's Case, wherever the ancestor 
 takes an estate for his Ufe. (V. C. 1873, c. 
 112, § 11.) 
 " Statute in Virginia modifying the ceremonies 
 which are to accompany the making, &c., of 
 Wills, after the model of 7 Wm. IV, and 1 
 Vict. c. 26. (V. C. 1873, c. 118, § 1, & seq.) 
 " Statute in Virginia modifying the rules of plead- 
 ing, somewhat after the model of 3 & 4 
 Wm. IV, c. 42, and Rules of Court of Hilary 
 term 1834, but omitting, unhappily, to sub- 
 stitute special pleas for the general issues. 
 (V. C. 1873, c. 167, § 18, 21, 23, 25 to 81 ; 
 Id. c. 172, § 49.) 
 
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INSTITUTES 
 
 OF 
 
 COMMON AND STATUTE LAW. 
 
 INTEODUCTION. 
 
 Before entering upon an exposition of the doctrines and princi- 
 ples which are included within the wide domain of the " Common 
 and Statute Law," it will be expedient to follow the example of 
 the great Commentator upon the laws of England, and to present, 
 according to his general plan, an Introduction, which shall set 
 forth sundry preliminary topics indispensable to the full compre- 
 hension of that which is to follow. Nor must the student be im- 
 patient if he finds much transferred from Blackstone's pages, 
 which directly is applicable to England alone. In due time it will 
 be found that little or nothing is thus inserted which is not need- 
 ful to elucidate the institutions of our own country, and necessary 
 to a clear and intelligent apprehension of those rules of conduct 
 governing our people, which are for some time to engage our in- 
 quries. Deriving the bulk, nay almost the entirety, of our jurispru- 
 dence from England, we are hardly less interested than Black- 
 stone's auditors in remarking its importance as a subject of thought 
 and inquiry; in tracing out its originals in the mother country; 
 in examining the causes which have affected its progress there ; 
 and in determining those local divisions within which it operates. 
 This Introduction, therefore, will be occupied, as Blackstone's 
 is, with observations tending to illustrate, (1), The study of the 
 law ; (2), The nature of laws in general ; (3), The kinds and gen- 
 eral character of the laws of England^ and incidentally, of our 
 own country ; and (4), The countries subject to the authority and 
 to the laws of England ; with a glance also to the countries sub- 
 ject to our own laws; 
 Wherein consider, 
 
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2 THE UTILITY OF THE STUDY OF THE LAW. [iNTBO. 
 
 SECTION I. 
 
 On the Study of the Law. 
 
 I. The Study op the Law. 
 
 In order to bring together, in brief, what is most interesting 
 and profitable in connection with the study of the law, we must note, 
 (1), The utility of the study ; (2), The causes of the neglect and 
 disuse of it in the Universities of Oxford and Cambridge ; (3), 
 The reasons for resuming it there ; and (4), the methods whereby 
 the study may be facilitated ; 
 Wherein consider, * 
 
 l^ The Utility of the Study of the Law. 
 
 In discussing the utility of the study of the law to the various 
 educated classes of society, it is of course not designed to include 
 professional lawyers ; although, when it is considered how limit- 
 ed, inaccurate and undigested is the knowledge with which too 
 many enter upon the practice and painful responsibilities of the 
 profession, words of warning and expostulation would not be 
 misapplied. But it is proposed to exhibit the advantages of 
 some acquaintance with the leading principles of jurisprudence 
 with reference (1), To persons of fortune ; (2), To persons 
 engaged in mercantile and mechanical pursuits; and (3), To 
 members of the other learned professions ; 
 Wherein consider, 
 V\ Utility of the Study of the Law to Persons of Fortune. 
 
 The advantage to persons of independent estates of a know- 
 ledge of the leading doctrines of the law, may be set forth, 
 (1), In respect to their private concerns ; and (2), In respect 
 to business of a public nature ; 
 Wherein consider, 
 1". In respect to their Private Concerns; Wherein consider. 
 1* As regards their own Estates. 
 
 It is by no means safe for a man to depepd, in intricate 
 concerns of business, upon his own knowledge of legal 
 principles and processes. But some acquaintance with the 
 elements of the law will enable him at least to understand 
 where some of the quicksands are which occasionally swal- 
 low up fortunes, and admonish him to provide himself with 
 competent guidance, when one wholly uninstructed may 
 become a victim before he is aware of his danger. Sir 
 Edward Sugden's "Letters to a man of Property," in 
 England, and in this country the numerous attempts by emi- 
 nent writers at popular expositions of " Laws of Business," 
 and " Hand-Books of Law for Business Men," sufficiently 
 attest the general conviction, both within the profession 
 and without, that a certain familiarity with the rudiments 
 is eminently desirable to the two classes of men of pro- 
 perty, and men. of business.,. (1 Bl, Com. 7.) 
 Digitized by Michsoff® ' 
 
SEC. I.] THE UTILITY OF THE STUDY OF THE LAW. 3 
 
 2*. As respects the Making of Wills. 
 
 As the business of will-making is in too many instances 
 transacted without professional advice, with no other as- 
 sistance than may chance to be at hand, an intelligent ac- 
 quaintance with the ceremonies required by law, in order 
 to guard against fraud, and also with the force and effect of 
 the limitations wliich men usually desire to have inserted 
 in their wills, will often prove invaluable to others, his 
 neighbors and friends, as well as to the possessor himself. 
 The confusion and distress not seldom occasioned in fami- 
 lies by the want of this knowledge ; the uncertainty of the 
 testator's meaning, and tlie difficulty and expense of ascer- 
 taining it after his death ; the utter perversion of his real 
 purpose, from the necessity of being governed by his un- 
 guarded and erroneous use of terms, combine to illustrate, 
 very unhappily, how useful even a little systematic in- 
 struction upon such subjects may be. (1 Bl. Com. 7, 8.) 
 2". In respect to business of a Public Nature. 
 
 All men of property are liable to be called upon to act in 
 various public capacities of more or less importance, the 
 duties of all of which would be discharged with far more 
 efficiency to the public, and credit to themselves, if they 
 who exercise them were imbued with some legal knowledge. 
 Of these functions it may suffice to mention those of jurors, 
 justices of the peace, and legislators; 
 Wlierein consider, 
 1*. As Jurors. 
 
 The common law idea of a juror's office made it emi- 
 nently important and dignified. He is called on to estab- 
 lish the rights, to estimate the iiljuries, to weigh the gravest 
 accusations, and sometimes to dispose of the lives of his 
 fellow-citizens. In this situation he has frequently to de- 
 cide nice questions of great importance, in the solution of 
 which some acquaintance with legal doctrines, either ac- 
 quired before-hand, or picked up at hap-hazard in the pro- 
 gress of the cause, is indispensable ; especially where the 
 law and tbe fact are, as often happens, intimately blended 
 together. And the general incapacity of even our best 
 juries to do this with any tolerable propriety in intricate 
 cases, in conjunction with the neglect of special pleading 
 amongst us, and the disuse of the common law practice of 
 the judge summing up the evidence in the cause, and 
 charging .the jury as to the law, has tended grievously to 
 debase their authority, and to lead some so far to forget 
 the experience of the past as to anticipate with satis- 
 faction the abolition of trial by jury altogether. (1 Bl. 
 Com. 8.) 
 
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THE UTILITY OF THE STUDY OF THE LAW. [iNTKO, 
 
 2*. As Justices of the Peace. 
 
 Formerly the ranks of justices of the peace in all our 
 counties were replenished almost exclusively from the men 
 of property therein ; and although modern innovation has 
 done much to introduce into the commission of the peace a 
 class of men who have no tangible evidence to give of "an 
 interest in and attachment to the community," where they 
 distribute justice, yet wherever men of property are willing 
 to accept the office, if they are otherwise suitable, the peo- 
 ple are usually well pleased to confer it upon them. And 
 how ample a field of useflilness is here opened for a man 
 to exert his abilities, by maintaining good order in his 
 neighborhood; by punishing the criminal, the dissolute 
 and idle ; by protecting the peaceable and industrious ; and 
 above all, by healing petty differences, and preventing 
 vexatious prosecutions. But in order to attain these de- 
 sirable ends, the magistrate should understand his busi- 
 ness, and have not the will only, but the ability also, (under 
 which must be included the knowledge), to administer 
 legal and effectual justice. Else when, through passion, 
 through ignorance or folly, he has mistaken his authority, 
 he becomes the object of contempt from his inferiors, and 
 of censure from those to whom he is accountable. (1 Bl. 
 Com. 8, 9.) 
 
 3'*- As Legislators. 
 
 The duties of a legislator do not so much demand an 
 accurate technical acquaintance with the details of the 
 law, as that the person who proposes to engage with them 
 should be imbued with a knowledge of the general princi- 
 ples of jurisprudence, and with those great doctrines of 
 social and political right and wrong which ought in the 
 main to guide his course. A mere lawyer may indeed be 
 ignorant of, or inattentive to those general principles and 
 doctrines, as one not a professional jurist may be pro- 
 foundly tinctured with them; but in the main, the best 
 practical pathway to a really useful familiarity therewith 
 is through the elementary studies which fit one for the bar. 
 Very many of the problems with which a legislator must 
 deal, immediately and vitally concern the rights of the 
 citizen in respect to his person or his property, and cannot 
 be satisfactorily solved without adverting to the existing 
 rules which regulate those rights ; so that, if the lawgiver 
 has no familiar knowledge of such rules, he must either 
 depend upon such extrinsic information touching them as 
 he can procure, or must hazard both his own reputation 
 and the welfare of the community by following his caprices 
 or prejudices, or yielding himself helplessly to the persua- 
 sions of oth^^ifi^^^eifff^^^Qf^fg^t men of any culture 
 
SEC. I.J THE UTILITY OF TEE STUDY OF THE LAW. 5 
 
 in this country expect at some time in the com-se of thsir 
 lives to represent a smaller or larger constituency in the 
 legislative councils of the State or Federal government, it 
 would assuredly be well, ere they enter upon the role of 
 the lawgiver, to pay some attention to the rudiments of 
 the law. It may well be a subject of amazement, as 
 Blackstone observes, that whilst apprenticeships are held 
 necessary in almost every art; whilst a long course of 
 study must form the divine, the physician, and the practi- 
 cal professor of tlie laws; tliat every man thinks himself 
 born a legislator. " Yet TuUy," he continues, " was of a 
 different opinion (De. Leg. 3, 18): 'Est senaiori neces- 
 sarium,^ says he, 'nosse rempublicam; idque late patet ; genus 
 hoc omne seientice, dil.igentice, memorice est. Sine quoparatus 
 esse senator nullo pado potest: ' — it is necessary for a senator 
 to be thoroughly acquainted with the Constitution; and 
 this is a knowledge of the most extensive nature; a mat- 
 ter of science, of diligence, of reflection; without which 
 no senator can be possibly iit for his office." (1 Bl. Com. 
 9,10.) 
 
 The mischiefs that annually arise to the public interests 
 from inconsiderate alterations in the laws are too obvious 
 to escape attention; and it is but too plain that they are, 
 for the most part, owing to the defective education of 
 our* law-givers. " The common law of England," says 
 Blackstone, " has fared like other venerable ediiices of an- 
 tiquity, which (requiring in some particulars to be modern- 
 ized and adapted to the present needs of society) rash and 
 inexperienced workmen have ventured to new dress and 
 refine, with all the rage of modern (innovation, which they 
 term) improvement. Hence, frequently its symmetry has 
 been destroyed, its proportions distorted, and its majestic 
 simplicity exchanged for specious embellishments and fan- 
 tastic novelties. For, to say the truth, almost all the per- 
 plexed questions, almost all the niceties, intricacies and 
 delays (which have sometimes disgraced the English as 
 well as other courts of justice) owe their original, not to 
 the common law itself, but to innovations that have been 
 made in it by acts of parliament, ' over-laden,' as Sir Ed- 
 ward Coke expresses it, (3 Kep. Pref. ix.) 'with provisoes 
 and additions, and many times on a sudden penned or 
 corrected by men of none or very little judgment in the 
 law.' This great and well experienced judge declares 
 that in all his time he never knew two questions made 
 upon rights merely depending upon the common law; 
 and warmly laments the confusion introduced by ill-judging 
 and unlearned legislators. 'But if,' he subjoins, 'acts of 
 parliament were after the old-fashion penned, by such only 
 
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^THE UTILITY OF THE STUDY OF THE LAW. [iNTKO. 
 
 as perfectly knew what the common law was before the 
 making of any act of parliament concerning that matter^ 
 as, also, how far forth former statutes had provided remedy 
 for former mischiefs, and defects discovered by experience ; 
 then should very few questions in law arise, and the learned 
 should not so often and so much perplex their heads to 
 make atonement and peace by construction of law, be- 
 tween insensible and disagreeing words, sentences and 
 provisoes, as they now do. And if this inconvenience was 
 so heavily felt in the reign of Queen Elizabeth, you may 
 judge how the evil is increased in later times, when the 
 statute-book is swelled to ten times (and now to more than 
 ^fifty times) a larger bulk, unless it should be found that the 
 penners of our modern statutes have proportionably better 
 informed themselves in the knowledge of the common 
 law.'" (1 Bl. Com. 10, 11.) 
 
 Mr. Jefferson, who, in conjunction with two of the 
 most eminent jurists of the time (Messrs. Edmund Pen- 
 dleton and George Wythe), framed, in 1779, the first re- 
 visal of the laws of Virginia, mentions, with a just satis- 
 faction and pride, that after the labor of two years and a. 
 half, they " brought so much of the common law as it was 
 thought necessary to alter, all the British statutes from Jf(7^- 
 na Charta to the present day, and all the laws of Virginia 
 from the establishment of our legislature (or ratKer from the 
 separation from the mother-country), 4 Jac. I, to the present 
 time, which we thought should be retained, within the com- 
 pass of one hundred and twenty-six bills, making a prmted 
 folio of ninety -pages only." (1 Jeff. Mem. 36.) Doubtless, 
 the task of these eminent men was materially facilitated by 
 the usage which had prevailed from the origin of the col- 
 ony, of making periodical revisals of the colonial statute 
 law, thereby improving its scope and design, and simpli- 
 fying and perfecting its phraseology. It was, notwith- 
 standing, a great triumph of legislation thus to bring 
 within so brief a compass all the enactments necessary for 
 a modern civilized community, and it illustrates the expedi- 
 ency of invoking for such work the maturest wisdom and 
 learning which the society whose laws are to be revised can 
 supply. We have with us in Virginia, in the E,e visal of 1 849, 
 another exemplification of the great value, in the function 
 of law-making, of a large and accurate acquaintance with 
 the common and existing statute-law, as well as of prac- 
 tised ability in their actual applications. The just con- 
 ception of the whole, and the symmetry of the parts, was 
 in some particulars, appreciably marred after it left the 
 hands of the compilers, Messrs. Patton and Robinson ; but 
 in the eyes oyy^JlM^-^^^^m ^* ^' ^° enduring me- 
 
SEC. I.J THE UTILITY OF THE STUDY OF THE LAW. 7 
 
 inorial of the capacity, learning, and honest pains-taking 
 
 of the distinguished men who framed and marshalled its 
 
 provisions. 
 2". Utility of tlie Study of the Law to Persons engaged in Mer- 
 cantile and Jlechanical Pursuits. 
 
 To persons engaged in . mercantile pursuits, especially to 
 such who conduct them upon a large scale, some knowledge 
 of the principles of what is denominated mercantile law, that 
 is, of the law relating' to mercantile contracts and transac- 
 tions, is so indispensable that it is always acquired by such 
 persons to a greater or less extent, although for the most 
 part empirically, and of coiirse superficially, and sometimes 
 at the expense of great losses, which might and would have 
 been avoided by careful instruction in, and the diligent study 
 of, the elements of that branch of the science, even for two 
 or three months. 
 
 The mechanical avocations in general demand less im- 
 peratively an acquaintance with the rudiments of the law, 
 save only as those avocations trench, as they often do, upon 
 mercantile transactions. But the greater manufacturing 
 operations call for some intimacy, not only with mercantile 
 law, but with sundry departments of the profession besides, 
 such as the law of patents, the law regulating the use of 
 water-power, the law of railroads and other agencies of 
 transportation, the law of mining, &c. 
 3". Utility of the Study of the Law to Members of the other 
 Learned Projessions. 
 
 Some degree of legal knowledge is so well calculated to 
 discipline the understanding, and to enlarge its scope and 
 capacity, that the study of the law might very well be re- 
 commended for that reason alone to all persons who are 
 designed for employments calling specially into action the 
 intellectual powers. The clergyman, the physician, the 
 teacher, and the civil engineer, would certainly each and all 
 be better fitted for their respective callings by some system- 
 atic study of the elements of jurisprudence. 
 
 The clergyman would find his special account in being 
 able to advise his parishioners in respect to their secular con- 
 cerns, in those plain cases which often perplex men without 
 inducing them to invoke professional aid, and still more in 
 indicating to them, in more complex matters, the propriety of 
 not proceeding without legal advice. Engaged as he is about 
 the bed of sickness and suifering, a knowledge of the princi- 
 ples which regulate the limitations of property, and the 
 ceremonies attending the makiag of wills, would not seldom 
 prove of signal advantage to the dying, and to those who 
 survive them. 
 
 For the gentlemen of the faculty of physic, Blackstone 
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THE CAUBE8 OF THE NEGLECT OF [iNTEO. 
 
 observes, " I must frankly own that I see no special reason 
 why they in particular should apply themselves to the study 
 of the law, unless in common with other gentlemen, and to 
 complete the character of general and entensive knowledge; 
 a character which their profession, beyond others, has re- 
 markably deserved. They will give me leave, however, to 
 suggest, and that not ludicrously, that it might frequently be 
 of use to families upon sudden emergencies, if the physician 
 were acquainted with the doctrine of last wills and testa- 
 ments, at least so far as relates to the formal part of their 
 execution." (1- Bl. Com. 14.) But since Blackstone wrote, 
 forensic medicine has been publicly recognized as an impor- 
 tant branch of legal study ; and the converse has also been 
 acknowledged, namely, that medical men should be some- 
 what informed, at all events as to those departments of the 
 law to Vvhich their testimony as experts may relate, and as to 
 what may be reqaired to be proved or adjudged upon their 
 testimony; as in respect to cases of death by apparently 
 doubtful or suspicious means ; to cases of unsound mind ; to 
 cases of questionable legitimacy; to cases of the birth of a 
 living child, with a view to the husband's estate by the cur- 
 tesy, and the like; and to cases when want of a suflficient 
 disposing power in a last illness might be evident or pre- 
 sumed. The elaborate treatises of the Doctors Beck, of 
 Dr. Taylor, Dr. Ray, and of Messrs Wharton and Stille, 
 afford ample opportunities to the medico-juris-consult to pur- 
 sue these studies with efficiency and success. (1 Bl. Com. 
 14, n. 3.) 
 
 As no one in human society has more need to acquaint 
 himself with the traits and tendencies of man's nature than 
 the teacher of youth, so to none is the study of the science 
 of the law, whereby mankind seeks to restrain and direct 
 the perverted faculties of the race, more important and desir- 
 able, independently of any practical application which may be 
 made of it. But as a well informed teacher is often con- 
 sulted, by reason of his supposed book-knowledge, about 
 the business and domestic affairs of families, it will not a 
 little increase his usefulness to be so far versed in legal prin- 
 ciples as to be enabled to assist his neighbors when but lit- 
 tle technical knowledge is required, and to warn them when 
 professional aid should be sought. 
 
 The civil and mining engineer, on the other hand, will be 
 
 none the worse for understanding, in a general way, the law 
 
 of contracts, of highways and water courses, of mining and 
 
 of transportation, of patent rights, of mechanics' liens, &c. 
 
 '. The Causes of the Neglect and the Disuse of the Study of 
 
 the Law, for many ages, in the Universities of Oxford and 
 
 Cambridge. Digitized by Microsoft® 
 
SBC. I.J THE COMMON LAW IS OXFOED, ETC. 9 
 
 In 1753 Sir William Blackstone, upOn the advice of Mr. 
 Murray, who* shortly afterwards attained the dignity of Earl 
 of Mansfield, which he has made illustrious, began to read in 
 the University of Oxford lectiires upon the laws of England. 
 It was a private adventure, unsustained by academic sanction, 
 but it was eminently successful ; and for the first time since the 
 twelfth century it inaugurated in the chiefest of the national 
 schools, instruction in the laws of the realm, as a branch ot 
 liberal education. One of the earliest fruits of the acknow- 
 ledged excellence of these private lectures, was the author's 
 unanimous election to the first professorship of law, on the foun- 
 dation established under the will of Charles Viner, the laborious 
 compiler of that "Abridgment of Law and Equity," the twenty- 
 four folio volumes of which our predecessors read, and we 
 marvel at. To that place he was appointed on the 20th of 
 October, 1758, and five days afterwards, in his thirty-fifth year, 
 he delivered his " Introductory Lecture," which attracted uni- 
 %-ersal applause, and by an enthusiastic biographer is pro- 
 nounced to be " one of the most elegant and admired compo- 
 sitions which any age or country ever produced." The course 
 which followed did not disappoint the expectation engendered 
 by the " Introduction ;" and in 1765, in order to guard against 
 pirated editions, he himself published the first volume, under 
 the title of Commentaries on the Laws of Enghnd; and in the 
 course of the four following years, the other three volumes, 
 thus completing a work, as the same biographer fondly declares, 
 " that will transmit his name to posterity among the first class 
 of English authors, and will be universally read and admired, 
 as long as the laws, the constitution, and the language of this 
 country remain." 
 
 It cannot fail to awaken the curious inquiry of the student 
 how it came to pass that in England, a country always gov- 
 erned by law, and sitpremely jealous of any other government, 
 and a counti-y in which the profession of the law has been ever 
 the open pathway to the highest dignities and employments of 
 the State, the public teaching of that law was sedulously ex- 
 cluded from the two principal seminaries of the land for more 
 than four centuries. To that inquiry let us now address our- 
 selves, and observe, (1), The reasons for the phenomenon as- 
 signed by Sir John Fortescue ; and (2), The true reasons ; 
 W. C. 
 1". The Reason assigned by Sir John Fortescue for the Neglect 
 and Disuse of the Study of the Common Law, in the Univer- 
 sities of Oxford and Cambridge. 
 
 Sir John Fortescue was a very distinguished lawyer of 
 
 the 15th century, in the reign of Henry YI, and during the 
 
 exile of that King, whom he followed abroad, was appointed 
 
 tutor to the King's son, Edward, the Prince of Wales, and 
 
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10 THE CAUSES OF THE NEGLECT OF [iNTKO. 
 
 for the use of his royal pupil he is supposed to have composed 
 at that time that most interesting tractate, " De Laudibiis 
 Legum Anglice" which gives us the first minute history of 
 the legal institutions of England, and the earliest insight 
 into the professional education and habits of the period; and 
 yet in a manner so brief, and a style so easy and natural, that 
 the most elementary student may peruse it with satisfaction 
 and profit. The prince having inquired "why the laws of 
 England, being so good, so fruitful!, and so commodious, are 
 not taught in the Universities, as the civill and canon lawes 
 are ?" receives for answer -w^iat Blackstone justly denominates 
 the "jejune and unsatisfactory reason," that "in the Univer- 
 sities, sciences are not taught but in the Latine tongue; and 
 the lawes of England are to be learned in three several 
 tongues, to-witte, in the English tongue, the French tongue, 
 and the Latine tongue. * * * Wherefore, while the lawes 
 are learned in these three tongues, they cannot conveniently 
 bee taught or studied in the Universities, where onely the 
 Latine tongue is exercised." However, the Chief Justice 
 goes on to explain that little material inconvenience resulted 
 from the anomaly, for that there was in the Inns of Court, 
 between London and the then suburb of Westminster, in 
 close proximity to the courts held in Westminster Hall, a 
 juridical university of great fame, to which professional law- 
 yers might resort with as much profit as to the teachings of 
 a professor in the Universities. (1 Bl. Com. 16; Fortesc. de 
 laud. ch. 47, 48, 49.) 
 2". The true Reasons for the Disuse of the Study of the Com- 
 mon Law in the English Universities. 
 
 Let us note now Blackstone's more plausible and very 
 instructive account of the causes which led to the banishment 
 of the study of the municipal laws of England from her great 
 Universities. 
 
 That ancient collection of imwritten maxims and customs 
 which is called the common law, however compounded, or 
 from whatever foimtains derived, had subsisted in England 
 immemorially ; and although somewhat altered and impaired 
 by tlie violence of the times, had in a great measure weath- 
 ered (save as to landed property), the rude shock of the 
 Norman conquest. It had become greatly endeared to the 
 people in general, as well because its decisions were univer- 
 sally known and familiar, as because it was found excellently 
 adapted to the genius of the English nation. In the know- 
 ledge of this law consisted great part of the learning of those 
 dark ages; it was then taught, says Mr. Selden (inFletam., 7, 
 7), in the monasteries, in the tlniversiiies, and in the families 
 of the principal nobility. The clergy in particular, as they 
 then engrossed ^^^op^^^v^^-^^g^lj-^^-anch of learning, so 
 
SBC. I.] THE COMMON LAW IN OXFOED, ETC. 11 
 
 (like their predecessors, the British Druids), they were pecu- 
 liarly remarkable for their proficiency in the stiidy of the 
 law. Nullus clericus nisi causidicus, is the character given of 
 them soon after the Conquest, in the reign of William II, by 
 William of Malmesbnry, (Eng. Chron. B. iv. c. 1). The 
 judges, therefore, were usually created out of the sacred order, 
 as was likewise the case among the Normans; and all the 
 inferior offices were supplied by the lower clergy, which has 
 occasioned their successors to be denominated clerks to this 
 day. (1 Bl. Com. 17.) 
 
 But the introduction into England of great numbers of 
 foreign clergy, in the reigns of the Conqueror and of his two 
 sons, combined with other circumstances to work a great 
 change in this general reception of and zealous regard for 
 the common law. And we may observe that its exclusion 
 from the principal seats of public education in the two Uni- 
 versities is to be referred to (1), The traditional source of the 
 common law, and its sturdy adherence to the liberty of the 
 subject; (2), The discovery at Amalfi (A. D. 1130), of Jus- 
 tinian's Pandects, and their introduction into England (A. D. 
 1138), together with an enthusiasm for the Roman law; (3), 
 The devotion of the clergy to the Horn an law, and their ascen- 
 dency in the Universities; and (4), The establishment of a 
 juridical University in the Inns of Court, near Westminster 
 Hall. (1 Bl. Com.l7&seq): 
 W. C. 
 1°- The traditional Source of the Common Law, and its sturdy 
 adherence to the Liberty of the Subject. 
 
 The common law not^ being founded on definite enact- 
 ments, nor indeed deposited in systematic treatises, but being 
 handed down by tradition, use, and experience, and to be 
 learned chiefly by frequenting the courts where it was ad- 
 ministered, was abundantly distasteful to the foreign clergy 
 who after the Conquest thronged into England. Its stub- 
 born maintenance of the rights of the subject, its pro- 
 clivities towards self-government, and its disinclination to 
 the exercise of arbitrary power, contributed also to increase 
 the disgust for it felt by the Norman and Italian ecclesiastics, 
 who were solicitous to establish in its room a system of 
 despotic exaction on the one side, and of smooth servility 
 on the other. And this tendency received an impulse in 
 the latter part of the reign of Henry I, the last of the Con- 
 queror's sons, which had nearly completed the extinction of 
 the common law. 
 2". The Discovery at Amalfi, of Justinian's Pandects, and their 
 Introduction into England, together with an Enthusiasm for • 
 the Roman Law. 
 
 The event which had well nigh proved fatal to the com- 
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12 THE CAUSES OF THE NEGLECT OF [iNTEO. 
 
 men law was the accidental discovery, in A. D. 1130, at 
 Amalfi, an obscure town in Italy, of a copy of the Digest or 
 Pandects of Justinian, which had been lost to the world 
 for full five centuries. The civil or imperial Roman law 
 was thus brought into vogue all over the west of Europe, 
 where before it was quite laid aside, and in a manner for- 
 gotten, though some traces of its authority remained in 
 Italy and the eastern provinces of the empire. This now 
 became in a particular manner the favorite of the Popish 
 clergy, who borrowed the method and many of the maxims 
 of their canon law from^this oi'iginal. The study of it was 
 introduced into several continental universities, particularly 
 that of Bologna, where exercises were performed, lectures 
 read, and degrees conferred in this faculty, as in other 
 branches of science; and several nations on the continent, 
 just then beginning to recover from the convulsions conse- 
 quent upon the overthrow of the Roman empire, and set- 
 tling by degrees into peaceable forms of government, adopted 
 the civil law (being the best written system then extant) as 
 the basis of their several constitutions ; blending and inter- 
 weaving it among their own feodal customs, in some places 
 with a more extensive, in others a more confined authority. 
 <1 Bl. Com. 18.) 
 
 Nor was it long before the prevailing mode of the times 
 reached England. For Theobald, a Norman abbot, being 
 elected to the see of Canterbury, and extremely addicted 
 to this new study, brought over with him in his retinue (A. D. 
 1138) many learned proficients therein; and among the 
 rest Roger, surnamed Yacarius, whom lie placed in the Uni- 
 versity of Oxford, to teach it to the English people. But 
 it did not meet with the same easy reception in England, 
 where a mild and rational system of laws had been long 
 established, as it did upon tlie continent; and though the 
 monkish clergy, devoted to the Mali of a foreign primate, 
 received it with eagerness and zeal, yet the laity, who were 
 more interested to preserve the old constitution, and had 
 already severely felt the eft'ect of many Norman innova- 
 tions, continued wedded to the use of the Common law. 
 King Stephen immediately published a proclamation, for- 
 bidding the study of the laws then newly imported from 
 Italy, which was treated by the monks as a piece of impiety; 
 and though it might prevent the introduction of the civil 
 law process into our courts of justice, yet did not hinder the 
 clergy from reading and teaching it in their own schools 
 and monasteries. (1 Bl. Com. 18, 19.) 
 3". The Devotion of the Clergy to the Roman law, and their 
 Ascendency in the Universities of Oxford and Cambridge. 
 The ecclesia^cs^^a^g^||ius^be^jgi by signalizing their 
 
SEC. I.] THE COMMON LAW IN OXFORD, ETC. 13 
 
 zealous attachment and devotion to the Roman imperial 
 law, the nation seems from this time to have been divided 
 into two parties, the bishops and clergy, many of them 
 foreigners, who applied themselves wholly to the study of 
 the civil and canon laws, which now came to be inseparably 
 interwoven with each other; and the nobility and laity, who 
 adhered witli equal pertinacity to the old common law; 
 both of them reciprocally jealous of what they were unac- 
 quainted with, and neither of them, perhaps, allowing the 
 opposite system that real merit which is to be found in each. 
 The clergy extolled the principles of natural and universal 
 justice exhibited by the civil or Roman law in matters of 
 contract and the general transactions of life, whilst the 
 other party denounced the arbitrary and despotic maxims 
 which recommended it as a favorite to the Romish clergy,, 
 and rendered it deservedly odious to the people of England. 
 The fundamental principle of the Roman law — quod prineipi 
 placuii legis habet vijorem (Inst. 1, 2, 6,) — cannot be recon- 
 ciled with our Magna Charta, the judicium, parium vel lex 
 terrce. The irreconcilable conflict between the partisans 
 of the two systems was displayed on more than one memor- 
 able occasion, not always to the credit of the advocates of 
 the common law. We find it, on the one hand, in the 
 spleen with which the monastic writers speak of the muni- 
 cipal institutions of England; and on the other, in the de- 
 fiant temper with which, at the famous parliament of Mer- 
 ton (20 Hen. Ill, A. D. 1236), the barons responded to the 
 rational proposal of the prelates, to enact that bastards born 
 should be legitimated by the subsequent marriage of their 
 parents, — una voce responderunt, quod nolunt leges Anglice 
 mutare ! And we find the same jealousy prevailing more 
 than a century afterwards, but exhibited in a manner more 
 worthy of commendation, when, in 11 Ric. II (A. D. 1388), 
 the nobles declared, with a kind of prophetic spirit, "that 
 the realm of England hath never been unto this hour, 
 neither by the consent of oiir lord the King, and the lords 
 of parliament, shall it ever be ruled or governed by the 
 civil law." And of this temper between the clergy and 
 laity many more instances might be given. (1 Bl. Com. 
 19, & n. (4).) 
 
 While things were in this situation, the clergy, finding it 
 impossible to root out the common law, began to withdraw 
 themselves by degrees from the temporal courts; and to 
 that end, very early in the reign of King Henry III, epis- 
 copal constitutions or laws were published, forbidding all 
 ecclesiastics to appear inforo s(Beulari,iD. the temporal courts; 
 nor did they long continue to act as judges there, not caring 
 to take the oath of office — which was then found necessary^ 
 
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14: THE CAUSES OF THE NEGLECT OE [iNTRO. 
 
 — that they would in all things determine according to the 
 law and custom of the realm of England, though they still 
 kept possession of the high office of Chancellor (doubtless 
 from their possessing almost a monopoly of the learning of 
 the times), an office then of little juridical power ; and after- 
 wards, as its business increased by degrees, they modelled 
 the process of the court after the method of the civil law. 
 (1 Bl. Com. 20.) 
 
 But whithersoever they retired, and wherever their au- 
 thority extended, they carried with them the same zeal to 
 introduce the rules of the civil in exclusion of the common 
 law; as in the spiritual courts of all denominations, the 
 University Courts, and the High Court of Chancery; in all 
 of which the proceedings, and in some of them the rules of 
 decision, are to this day much conformed to the civil law. 
 And if it be considered that the Universities began about 
 that period to receive theii- form of scholastic discipline ; 
 that they were then, and till the time of the reformation, 
 continued to be entirely under the influence of the Popish 
 clergy, we may perceive the reason why the study of the 
 Roman law was in those days pursued with such alacrity in 
 these seats of learning, and why the common law was 
 despised and neglected. (1 Bl. Com. 20, 21.) 
 
 And after the reformation several causes conspired to 
 prevent the municipal law of England from becoming a part 
 of academical education. As, first, long usage and established 
 custom; which as in everything else, so especially in the 
 forms of scholastic exercise, have justly great weight and 
 authority. Secondly, the real intrinsic merit of the civil 
 law, considered upon the footing of reason, and not of obli- 
 gation, which was well known to the instructors of our youth, 
 whilst on the other hand tliey were totally ignorant of the 
 merit of the common law. But the principal reason of 
 all, that for so many ages hindered the introduction into 
 the Universities of this branch of learning was, that the 
 study of the common law, having been banished thence 
 prior to the reformation, fell into a quite difierent channel, 
 and, until Blackstone's experiment, was wholly, and since 
 has been chiefly cultivated in another place. (1 Bl. Com. 21.) 
 4"^. The Establishment of a Juridical University in the Inns 
 of Court, near Westminster Hall. 
 
 The common law being thus entirely abandoned by the 
 clergy, the study and practice of it devolved of course into 
 the hands of lay-men, who entertained upon their parts a 
 hearty aversion to the civil, and made no scruple to profess 
 their contempt, may even their ignorance of it, in the most 
 public manner. But still, as the balance of learning was 
 greatly on the side of the clergy, and as the common law 
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SEC. I.J THE COMMON LAW IN OXFORD, ETC. 15 
 
 was no longer taught, as formerly, in any part of the king- 
 dona, it must have been subjected to many inconveniences, 
 and perhaps would ha^'e been gradually lost and over-run 
 by the civil, (a suspicion well justified \>j the frequent tran- 
 scripts of Justinian to be met with in Bracton and Fleta,) 
 had it not been for the fixing of the Court of common 
 Pleas, in pursuance of Magna Charta, at Westminster, and 
 the consequent assembling there of the principal common 
 law juris-consults; and as the result the institution near by, 
 in a monastic residence once belonging to a religious order, 
 but subseqi^ently kno'wn as the imis of court, of a seminary 
 of juridical learning, which speedily became a University 
 of scarcely less dignity than its older sisters of Oxford and 
 Cambridge. 
 
 The judicial system of England, leaving out of view the 
 local courts, originally consisted of a chief Justiciary and 
 certain assistants, who held their courts always in the -hall 
 of the King's palace, at whichsover of the royal residences 
 he might for the time being chance to sojourn, (whence it was 
 styled the court of aula regia.) This was found to occa- 
 sion great inconvenience to the suitors in private causes, so 
 that it was made an article in Magna Charia, that " common 
 pleas, ?'. e. common causes, should no longer follow the 
 King's coiirt, but be held in some certain place;" in con- 
 sequence of which they have ever since been held, with some 
 casual exceptions, in the palace of Westminster only. This 
 brought together the stu.dents and practitioners of the 
 municipal law, who before were dispersed about the king- 
 dom, and formed them into an aggregate body ; whereby 
 a society was established of persons addicting themselves 
 wholly to the study of the laws of the land, and no longer 
 considering it as a mere subordinate pursuit for the amuse- 
 ment of leisure hours, soon raised those laws to that per- 
 fection which they suddenly attained under the auspices of 
 the English Justinian, King Edward I. (1 Bl. Com. 22, 
 23.) 
 
 In consequence of this lucky assemblage, they naturally 
 fell in a kind of collegiate order ; and being excluded from 
 Oxford and Cambridge, found it necessary to establish a 
 new University of their own. This they did by purchas- 
 ing at various times, certain houses (now called the Inns of 
 Court and of Chancery) between the city of Westminster, the 
 place of holding the King's courts, and thfe city of London. 
 Here exercises were performed, lectures read, and degrees 
 were at length conferred in the common law, as at other 
 Universities in the canon and civil. The degrees were those 
 oi barrister (first styled apprentices, from apprendre, to learn,) 
 who answered to our bachelors : as the state and degree of 
 
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16 CAUSES OF THE NEGLECT OF THE COMMON LAW. [iNTEO. *« 
 
 a sergeant, servieniis ad legem, did to that of doctor. (1 Bl. 
 Com. 23.) 
 
 The crown seems soon to have taken imder its protection 
 this infant seminarj' of the common law ; and the more 
 effectually to foster it, King Henry III, in the nineteenth 
 year of his reign, issued an order to the mayor and sheriffs 
 of London, commanding that no regent of any law school 
 loithin that city should, for tlie future, teach law therein. (1 
 Bl. Com. 24.) 
 
 In this juridical university (for such it is insisted to have 
 been by Fortescue and ^r Edward Coke), there are two 
 sorts of collegiate houses ; one called Inns of Chancery, in 
 which the younger students of the law were usually placed, 
 "learning or studying the originals, and, as it were, the 
 elements of the lawe, who proiiting therein, as they grew to 
 ripenesse, so are they admitted into the greater Innes of the 
 same studie, called the Innes of Court." And in these inns 
 of both kinds, he goes on to say, that knights and barona 
 with other noblemen of the realm, did place their children, 
 though they desire not to have them learned in the laws, 
 nor to live by the practice thereof; and that in his time 
 there were about two thousand students at these several inns, 
 nearly all of whom were of noble birth. (1 Bl. Com. 25 ; 
 3 Co. Pref. xxxvii; Fortesc. de laud. ch. 49.) 
 
 Thus it appears that, although under monkish influences 
 the universities neglected the study of the municipal law of 
 England, yet ample provision was made for it elsewhere, 
 and that in Fortescue's time, (the reign of Henry VI, say 
 A. D. 1460,) it was thought highly necessary, and was the 
 universal practice, for the young nobility and gentry to be 
 instructed in the originals and elements of the law. But 
 by degrees this custom has fallen into disuse ; so that in the 
 reign of Queen Elizabeth (say A. D. 1583), Sir Edward 
 Coke (3 Co. Pref. xxxvii.) does not reckon above a thousand 
 students (besides somewhat over three hundred who, in the 
 Inns of Chancery, were engaged with the elements of the 
 law), and in Blackstone's time (say A. D. 1765), the num- 
 ber was very considerably less. For which that writer as- 
 signs several reasons ; as, first, that the Inns of Chancery 
 were filled by the inferior branch of the profession, (that is, 
 attornies, solicitors, &c.) ; secondly, because all academic 
 government and superintendence, which in Fortescue's time 
 was vigorous, had ceased to be exercised ; and thirdly, be- 
 cause persons of birth and fortune, after completing their 
 academic education at the universities, had seldom the reso- 
 lution or leisure to enter upon a new scheme of study at 
 another place. (1 Bl. Com. 25-6.) 
 ^ The Inns of Court at present seem to afford fair facilities 
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fiEC. I.j EESUMING THE STUDY OF COMMON LAW IN OXFORD. 17 
 
 for the acqjiisition of a liberal knowledge of the law ; al- 
 though the . requirements are far inferior to what they 
 formerly were in the palmier days of the University. The 
 system is based upon certain regulations approved by the 
 four societies of the Inns of Court, namely, Gray's Inn, 
 Lincoln's Inn, the Inner Temple, and Middle Temple, and 
 is supervised by a committee known as " The Council of 
 Legal Education," composed of eight Benchers (officers 
 so-called), two from each Inn of Court, of which four con- 
 stitute a quorum. Instruction is given by six readers or 
 lecturers, namely, (1), On jurisprudence and civil and in- 
 ternational law ; (2), On the law of real property ; (3), On 
 the common law ; (4). On equity ; (5), On constitutional 
 law and legal history ; and (6), On Hindoo and Mahom- 
 medan law, and the law in force in British India. The 
 teaching is done partly by lectures, and partly by interro- 
 gation, and the periodical examinations to test proficiency, 
 are by printed and oral questions on books and subjects 
 specified in programme previously issued. In order to be 
 admitted as a student to any of the Inns of Court, one must 
 have passed a public examination at some of the Universities, 
 or must pass an examination on the English language, the 
 Latin language, and English history ; and in order to be 
 called to the bar, the student must have attained the age 
 of twenty-one years; must have " kept twelve terms;" and 
 must have attended during one whole year the lectures and 
 private classes of two of the readers, or have accomplished 
 an equivalent amount of study under a competent private 
 instructor. But some of these requirements may be di&- 
 pensed with by the authorities, to a greater or less extent. 
 For the purposes of education, the legal year is divided into 
 three terms of unequal length ; and what is meant by " keqh 
 ing terms" is dining a certain number of days in each term, 
 in the hall of that Inn of Court where one is entered ; that 
 is, in the case of those who are at the same time members of 
 any English, Scotch, or Irish university, three days, and in 
 the case of other persons, six. (1 Broom & Hadl. Com. 14, 
 n. (4).) 
 3*. The Reasons for Resuming the Study of the Municipal Law 
 at the Universities of Oxford and Cambridge. 
 
 Blackstone dilates at some length upon the expediency and 
 importance of restoring the teaching of municipal law to the 
 Universities, as in its elements a fit branch of liberal educa- 
 tion, and as a safe and valuable precursor of that more direct 
 and technical instruction nececessary for the professional law- 
 yer. It will suffice, however, here merely to sum up the rea- 
 sons, without enlarging upon them, observing that, while some 
 of these reasons are not applicable to the universities of this 
 
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18 METHODS TO FACILITATE [iNTEO, 
 
 country, yet the benefit of systematic instruction and assistance 
 in the acquisition of the legal elements, in some place of edu- 
 cation, is too vital to be overlooked. (1 Bl. Com. 25, & seq.) 
 1^. Because in modern times (that is, in Blackstone's time),, 
 no systematic instruction is given, nor academic restraint 
 employed at the Inns of Court. 
 2*. Because a new place of instruction (after completing a 
 course of general education), is unattractive to young 
 men. 
 3*- Because the study of law may sometimes be advanta- 
 geously blended with academic studies. 
 4*- Because, amid the quiet reflection of the Universities, 
 improvements in the doctrines ' and processes of the law 
 might often be devised ; and 
 5*. Because it would tend to attach to the Universities that 
 peculiarly influential class of men, the legal fraternity. 
 4*- The Methods whereby the Study of the Law may be facili- 
 tated. 
 
 It is an old and true saying, and in no branch of knowledge 
 truer than in the law, that " reading makes the full man, wri1> 
 ing the accurate man, and conversation the ready man " ; and 
 as fulness, accuracy and readiness are all essential requisites to 
 the really able and successful lawyer, these three agencies 
 may form the prominent texts of the discussion. Before fol- 
 lowing out those details, however, it will not be amiss to quote 
 the testimony of Sir Edward Coke. " Reading, hearing, con- 
 ference, meditation and recordation," says he, " are necessary, 
 I confess, to the knowledge of the common law, because it 
 consisteth upon so many, and almost infinite particulars ; but 
 an orderly observation in writing is most requisite of them all; 
 for reading without hearing is dark and irksome, and heai-ing 
 without reading is slippery and uncertain. Neither of them 
 trtdy yield seasonable fruit without conference, nor both of them 
 with conference, without meditation and recordation, nor all of 
 them together without due and orderly observation. Scribe 
 sapientiam tempore vacuitatis tuce, saith Solomon. And yet he 
 that at length by these means shall attain to be learned, 
 when he shall leave them off quite for his gain, or his ease, 
 soon shall he (I warrant him), lose a great part of his learn- 
 ing; therefore, as I allow not to the student any discontinuance 
 at all (for he shaU lose more in a month than he shall recover 
 in many), so do I commend perseverance to all, as to each of 
 these means an "inseparable incident." (1 Co. Pref. xxvii, 
 xxviii.) 
 W. G. 
 l**- Heading systematically. Elementary Treatises upon the sev- 
 eral Branches of the Law, in order to acquire distinct general 
 Ideas. Digitized by Microsoft® 
 
BBC. I.] THE STUDY OF THE LAW. 19 
 
 All will allow that more or less of systematic reading of 
 elementary treatises is an indispensable part of legal educa- 
 tion; but there is \;nliappily a strong tendency to be satisfied 
 with the less, and to repudiate the laborious more. There is 
 furthermore a disposition which the generous lovers of the 
 profession cannot but deplore, to imagine that no knowledge 
 of anything outside of the law is needful, neither of language, 
 nor science, nor literature, nor history; nay, that within the 
 precincts of the law itself, nothing is worthy of attention but 
 what is actually and directly demanded in the daily practice 
 of ihe'trade of an attorney. Liberal prehminary culture is 
 undervalued, and an undiseriminating perusal of one or more 
 text-writers, without any attempt to analyze or arrange their 
 contents, and without habitual reflection upon the proposi- 
 tions contained therein, in order to test their reasonableness, 
 their connexion, or their application, is considered too often 
 as a sufficient preparation for a vocation as thoroughly intel- 
 lectual as can engage a man's time or powers. 
 
 Reading under the direction, and with the constant aid of 
 an instructor, is probably more necessary in the law than in 
 most other subjects of the same recondite nature. Private 
 instruction may^he not less effective than that of the public 
 teacher, but it ought to be observed, that the mere fact 
 that one reads in a lawyer's office is of little or no value. 
 In order to make it beneficial, there must be daily interroga- 
 tions of the student, accompanied by abundant expositions 
 of the text, and unceasing efforts on the part of the teacher 
 to cause the pupil to note diversities, to apprehend what is 
 intricate, and above all, to reflect upon whatever he learns, 
 and to digest it. If a private instructor cannot be found able 
 and willing to do this, he who desires the earliest and most 
 complete success in the practice of the profession can do no- 
 thing else but resort to a law-school, where this needed sys- 
 tematic and daily instruction will be afforded him. 
 
 "The reason of the law is the life of the law," says Sir 
 Edward Coke ; " for though a man can tell the law, yet if he 
 know not the reason thereof, he shall soon forget his super- 
 ficial knowledge. But when he findeth the right reason of 
 the law, and so bringeth it to his natural reason, that he 
 comprehendeth it as his own, this will not only serve him for 
 the understanding of that particular case, but of many others ; 
 and this knowledge will long remain with him." " But if 
 by your study and industry you make not the reason of the 
 law your own, it is not possible for you long to retain it in 
 your memory." (1 Th. Co. Lit. 2.) 
 
 It is much more important to make oneself familiar with 
 a few good text-writers, than to read many cursorily, and 
 
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20 METHODS TO FACILITATE [iNTEO. 
 
 without thought and thorough analysis. And according to 
 the writer's experience and observation, the book which 
 ought 'always to constitute an indispensable part of every 
 student's elementary reading, is Sir Edward Coke's first In- 
 stitute, his Commentary on Littleton's Tenures; to which 
 Hawkins' Abridgment of Coke's Littleton will be found a 
 most useful aid. 
 
 When the rudiments of the law have been pretty fully 
 mastered, the student will find much satisfaction and instruc- 
 tion in the cautious perusal of cases adjudged, not indis- 
 criminately, as they occur in the Keports, but those which, 
 upon a re-survey of his elementary course, he discovers to be 
 leading cases, the types, exemplars, and sources of important 
 principles and doctrines. Of these leading cases collections 
 have now been made in several departments of the law, 
 which afford to all ranks of the profession invaluable assistance, 
 such as Smith's Leading Cases, WMte & Tudor's Leading Cases, 
 edited with conspicuous ability by Hare <fe Wallace, and Hare 
 and Wallace's American Leading Cases, &c. Lord Coke does 
 not omit to give the tyro a hint upon this point of the pre- 
 mature reading of cases. " I would advise our student," says 
 he, " that when he shall be enabled and armed to set upon the 
 year books, or reports of law, that he be furnished with all 
 the whole course of the law, that when he heareth a case 
 vouched and applied, either in Westminster Hall, (where it is 
 necessary for him to be a diligent hearer and observer of 
 cases at law,) or at readings or other exercises of learning, 
 he may find out and read the case so vouched; for that %rill 
 both fasten it in his memory, and be to him as good as an 
 exposition of that case. But that must not hinder his timely 
 and orderly reading, which (all excuses set apart) he must 
 bind himself unto ; for there be two things to be avoided by 
 him as enemies to learning, prwposiera lectio, and prmpropera 
 ■praxis:' (1 Th. Co. Lit. 2, 3.) 
 
 The same great lawyer further advises that the student 
 read the latest reports fii-st, for two causes, as he says ; First, 
 for that they are surest, and will the more safely settle his 
 judgment ; and Secondly, for that they are easier to be under- 
 stood than the more ancient ; but after the reading of them, 
 then to read the others and "all the ancient authors that 
 have written of o\w law; for I would wish our student to be 
 a complete lawyer:' (1 Th. Co. Lit. 3.) 
 
 At present, one who aspires to be a "complete laicyer," 
 must be far more eclectic than in Lord Coke's time. AU 
 the reports of adjudged cases then extant were not one fourth 
 of those annually issued in England and the United States 
 together, to say nothing of Australia, and other British 
 
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SEC. I.] THE STUDY OF THE LAW. 21 
 
 territories; and the text-writers known at that day con- 
 stituted a mere handful, as compared to the ponderous 
 weight of those under which a modern lawyer's shelves 
 groan. The ancient books of the common law which Coke 
 pronounces "right profitable" are no more than these 
 following, namely, Glanvil, Bracton, Britton, Fleta, Ingham, 
 NovcR Narrationes (New Pleadings,) Old Tenures, Old Natura 
 Brevium, Littleton, Doctor and Student, Fitzherbert's Natura 
 Brevium, and Stamford ; to which he adds as auxiliaries, the 
 Abridgments of Fitzherbert, Brooke, and Statham, the Book 
 of Assizes, and for Pleading, the great book of Entries. (3 
 Co. Pref. vii.) 
 
 2^- Making Written Abstracts, or common-pladng of Text- 
 writers, and of cases. 
 
 This common-placincf, or constant use of the pen in con- 
 densing and arranging one's acquisitions, is what Lord Coke 
 means by recordation ; and it is impossible to exaggerate the 
 benefit arising from the pjactice. It tends to clearness and 
 destinctness of apprehension, it dissipates obscurities, it en- 
 genders habits of reflection, it encourages and aids the 
 memory, and places in the hands of the student a facility 
 for frequent reviews, which is of itself a highly valuable aid 
 to substantial and thorough acquisition. The student should 
 suffer no book to pass through his hands without being sub- 
 jected to this process of analysis with the pen. 
 
 3''- Discussion of Law-points in conversation, and in Debating- 
 clubs. 
 
 These conversational discussions {conferences, as they are 
 denominated by Sir Edward Coke,) are extremely beneficial 
 to the student when conducted without heat, and with re- 
 ference to the development of truth. Topics are thus 
 surveyed from on all sides, and one is obliged to consider 
 the reason and grounds of the law with attention, and to note 
 distinctions which might otherwise have escaped him. He 
 learns also to attack and defend opinions, and finds by an 
 early experience what it is expedient for him to recognize, 
 that there are very few doctrines which men may not be found 
 bold enough to question, and that propositions axiomatic to 
 him do not seem equally beyond controversy to others. 
 Great readiness is thus gained in the use of his knowledge, 
 and also of his intellectual faculties ; and this to a lawyer is an 
 all important acquisition. 
 
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22 NATURE OF LAWS IN GENEEAL. [dSTEO. 
 
 SECTION n. 
 
 Of the Nature of Laws in General. 
 
 II. The Nature of Laws, in general ; "W. C. 
 1*. The definition of Law in its most comprehensive sense. 
 
 Law in its most comprehensive sense, is a rule of action for 
 intelligent beings, and in its practical and more limited sense 
 for men. (1 Bl. Com. 39, and n (1).) 
 2\ The several kinds of Law ; W. C. 
 l^ The Divine Law. 
 
 The divine law is prescribed by Divine authority. It is 
 founded partly on tlie law of Nature as discovered by reason, 
 and in part on Revelation. (1 Bl. Com. 41-'2.) 
 2*. Human Law. 
 
 Human law is prescribed by human authority ; 
 W. C. 
 1°. International Law. • 
 
 International law is the system of rules which regulates 
 the intercourse and determines the rights and obligations of 
 sovereign States. It is founded partly on the Divine law, 
 as discerned by reason, or disclosed by^revelation, and in 
 part on mutual agreements, express or implied. The ex- 
 positors of International law are approved text-writers, ad- 
 judications of International tribunals, (such as prize-courts, 
 and courts of mixed commission, or boards of arbitration,) 
 official opinions of professional advisers of government, &c. 
 (1 Bl. Com. 43 ; Wheat. Internat. Law, 47.) 
 2*^. Constitutional Law. 
 
 Constitutional law contains the doctrines and principles 
 which relate to the organization of government in general, 
 and of the governments of the United States, and of Virginia, 
 in particular. (Montesquieu's Spirit of Laws ; Sidney on 
 Government; Federalist; 2 Hives' Life, &c., of Madison; 
 5 Elliot's Debates ; Virginia Report, 1799-1800.) 
 3". Municipal Law ; W. C. 
 l**. The definition of municipal law ; W. C. 
 1*. Blackstone's definition of municipal law. 
 
 "A rule of civil conduct, prescribed by the supreme 
 power in a State, commanding what is right, and i)rohibiiing 
 lohat is w7^ong." (1 Bl. Com. 44.) 
 2^ Objections to Blackstone's definition ; "W. C. 
 1^. It ascribes laws to the supreme power in a State. 
 
 According to the just theory of government, as pro- 
 pounded by Montesquieu, neither of the three depart- 
 ments can be supreme, without destroying liberty. 
 (Montesq. Sp. Laws, B. XI, c. 6.) The legislative de- 
 partment, DigititedifJif, Miarasoi^Tily, and ought never ' 
 
«EC. U.J NATUEK OF LAWS IN 6ENEEAL. 23 
 
 to be, supreme, and in Virginia is not so. It is simply 
 the law-making department. 
 2''. The latter clause, "commanding," &c., is either su- 
 perfluous or erroneous. 
 
 If right and wrong are referred to the municipal law 
 itself, then whatever it commands is right, and what it 
 prohibits is icrong, and in that case the clause is insig- 
 nificant t/iutology. But if right and wrong are to be refer- 
 red to the law of God, as demonstrated by reason, or by 
 revelation, then the clause is erroneous, or at least deficient; 
 for though the municipal law may seldom or never com- 
 mand what is wrong, yet in multitudes of instances it 
 forbids what, apart from the prohibition, is right; that 
 is, not wrong. (1 Bl. Com. M, n (5).) 
 3^. A preferable definition of municipal law. 
 
 "A rule of civil conduct, prescribed by the law-making 
 -power in a State." (1 Kent's Com. 447.) 
 4". The several particulars contained in the definition. 
 
 These several particulars will lead us to observe that 
 (1), Municipal law is a rule ; (2), A rule of civil conduct ; 
 (3), A vvle prescribed ; and (4), A rule prescribed by the 
 law-making power in a State ; 
 W.C. 
 1'. Municipal Law is a Rule; "W. C. 
 1^. It is permanent, uniform, and universal, — and not 
 fluctuaiing, nor transient, like an order: 
 
 Hence private legislative acts do not conform to the 
 proper idea of a law, and are to be therefore depre- 
 •cated. The occasion for them is much circumscribed 
 in Virginia, by the abolition of estates-tail, and by com- 
 mitting the interests of infants, lunatics, etc., to the 
 Courts of Equity. (V. C. 1873, ch. 112, § 9 ; Id. ch. 
 124, § 1 to 12; Va. Const. 1869, Art. V, § 20.) 
 2^. It is coercive — not merely advisory. 
 38. It commands — and does not depend on assent. (1 Bl. 
 Com. 44.) 
 2''. Municipal Law is a Rule of Civil Conduct; W. C. 
 1^. It relates to conduct — not to opinion or faith. 
 2^. It relates to civil conduct — conduct as a citizen, — ^not 
 moral conduct. 
 (1 Bl. Com. 45.) 
 3*'. Municipal Law is a Rule prescribed. 
 
 Hence retrospective laws do not fully correspond with 
 the definition of a law, since they have for their subi'ect 
 one's past conduct. They are sometimes void, and are 
 never favored ; nor in construing a law can a retro- 
 active eifect be allowed, unless it be in express terms 
 
 Digitized by Microsoft® 
 
24: NATUKE OF LAWS IN GENEEAL. [iN-TEO. 
 
 retro-active. (1 Bl. Com. 45-'6; 1 Tuck Com. 3, B. I; 
 Elliott's Ex'or v. Lyell, 3 Call, 2TT; Com'th v. Hewet, 
 2 Hen. & M. 181; GasMns -v. Com'th, 1 Call, 197 j 
 Baugher v. Nelson, 9 Gill, 299 ; Potter's Dwar. Stats. 
 162-'3, & seq., and n (9) ) ; 
 W. C. 
 1^. The several classes of Retrospective Laws. 
 
 The classes of retrospective laws include, (1), Ketro- 
 spective laws touching crimes; (2), Ketrospective laws 
 touching civil rights ; and (3),iletrospective laws touch- 
 ing civil remedies; * 
 W. C. 
 1"^. Retrospective Laws touching Crimes. 
 
 These are called ex post facto laws; they are laws 
 which make an act punishable in a manner in which 
 it was not punishable when committed; or which 
 change the rules of evidence so that less or different 
 testimony is required to convict. (Fletcher v. Peck, 
 6 Cr. 87; Cummings v. Missom-i, 4 Wal. 277 ; Synops. 
 Crim. L. 8.) 
 
 Ex post facto laws are prohibited both to the States 
 and to Congress. (Va. Const. 1869, Art. V, § 14; 
 U. S. Const. Art. I, §x, 1 ; Id. § ix, 3 ; Federalist, Kos. 
 44, 84; 2 Stor. Const. § 1373, 1345; Ex-parte Gar- 
 land, 4 "Wal. 333 ; Cummings v. Missouri, 4 Wal. 277.) 
 2". Retrospective Laws, touching Civil Rights. , 
 
 Laws impairing the obligafion of contracts are prohibit- 
 ed to the States by the Federal Constitution, and to 
 Virginia by that of the State. (U. S. Const. Art. I, 
 § X, 1; Ya. Const. 1869, Art. V, § 14; Hepburn v. 
 Griswold, 8 Wal. 603; Legal Tender Cases, 12 Wal. 
 457 ; Homestead Cases, 22 Grat. 266 ; Antoni v. 
 Wright, Id. 833; Gimn v. Barry, 15 Wal. 610.) 
 
 Other retrospective laws touching rights are objec- 
 tionable, and they are never construed retrospectively, 
 unless in pursuance of eocpress words; but they are not 
 void. (Baugher v. Nelson, 9 Gill, 299 ; Elliott's Ex'or 
 V. Lyell, 3 Call, 279; Com'th v. Hewet, 2 Hen. & M. 
 181 ] Gaskins v. Com'th, 1 Call, 197; Day v. Pickett, 
 4 Mnnf. 109; Satterlee v. Mathewson, 2 Pet. 380; 
 Bac. Abr. Stat. (C); Drehman v. Stifle, 8 Wal. 603, 
 and cases cited ; Watson & als. v. Mercer, 8 Pet. 110 ; 
 Bait. & Susq'h R. R. Co. v. Nesbit & als., 10 How. 
 401-'2 ; Duval v. Malone, 14 Grat. 28.) 
 3''. Retrospective Laws touching Civil Remedies. 
 
 Retrospective laws touching civil remedies are not 
 only admitted to be valid, but are comparatively free 
 from 6b]^^^ij^^^^^g^eviBXij affect the obli- 
 
SEC. II. NATTJEE OF LAWS IN GENEEAL. 25 
 
 gation of contracts, in which case they are void. The 
 reason why retrospective laws touching remedies are 
 viewed with so much more leniency than when they 
 relate to rights seems to be that, in the nature of 
 things, remedies must be frequently changed in order 
 to subserve the convenience of society; and if the 
 practitioner were obliged to remember what remedy 
 was applicable, having reference to the date of the 
 cause of action, greater embarrassments would result 
 than from allowing the statute which alters a remedy 
 to have a retro-active effect. (Bronson v. Kinzie & 
 als., 1 How. 311 ; McCracken v. Haywood, 2 How. 
 645 ; Von Hoffman v. City of Quincy, 4 Wal. 548; 
 Quackenbush v. Danks, 1 Denio, 128 ; 3 Do. 594 ; 
 State V. Carew, 13 Richardson (Law), 506 ; Taylor v. 
 Stearns & als., 18 Grat. 244, 262, 272.) 
 
 But even as to remedies, a retrospective effect is not 
 allowed to any law, unless such effect be clearly contem- 
 plated by the legislature. (Baugher v. Nelson, 9 Gill,, 
 299 ; Elliott's Ex'or v. Lyell, 3 Call, 279, & seq.; Bac. 
 Abr. Stat. (C); Duval v. Malone, 14 Grat. 28.) 
 2^. The time whence Laws take effect; W. C. 
 l"*. Doctrine at Common Law. 
 
 Statutes took effect, at common law, from the iirst 
 day of the session of parliament at which they were 
 enacted, unless another day were named. (Rex v. 
 Thurston, 1 Lev. 91 ; Latless & als. v. Holmes, 4 T. 
 E. 660; Bac. Abr. Stat. (C.).) 
 2''. The modern English Eule. 
 
 Statutes take effect from the time they receive the 
 Royal assent, if no other day is specified. (Stat. 33 
 George III, c. 13; 1 Bl. Com. 185, n (77).) 
 S*". Rule in Virginia. 
 
 Statutes take effect from 1 July ensuing their enact- 
 ment, if no other day be specified. (V. C. 1873, ch. 
 15, § 3.) But generally it is specified that they shall 
 be in force from the day of their passage, which it is 
 presumed means their approval by the Governor, or their 
 enactment over his veto. (Va. Const. 1869, Art. IV, 
 §8.) 
 4". Rule in respect to United States Statutes. 
 
 They take effect from the time they receive the 
 President's approval, or are passed over his veto, if no 
 other day is specified. (1 Bright. Dig. 846, § 4; Id. 
 20, § 1.) 
 3«. Mode of Publication of Laws ; "W. C. 
 1". Mode of publication, at Common Law. 
 
 Before the invention of printing, laws were pub- 
 Digitized by Microsoft® 
 
26 NATURE OF LAWS IN GENERAL. [iNTRO. 
 
 lished by the sheriff of every county (in pursuance 
 of the king's writ, sent at the end of every session, 
 together with a transcript of the acts), by proclaiming 
 them at his county court, and keeping them there, 
 for copies to be made by all who chose. Since the 
 invention of printing, by publication by the king's 
 printer, and distribution of the printed copies through 
 the realm. (1 Bl. Com. 185, and n (78).) 
 2*". Mode of publication in Virginia. 
 
 In colonial times, copies of the statutes were read 
 publicly, on the first day of the " mounthlie eorts," and 
 were kept in those courts to be read by all who de- 
 sired it. (1 Hen. Stats. 177.) At present printed 
 copies are distributed to every judge, justice, and 
 clerk of any court in the State ; to every attorney for 
 the Commonwealth, and to every sheriff and ser- 
 geant, besides to a great nimiber of other public offi- 
 cers, and public institutions. (V. C. 1873, ch. 15, § 4 
 to 14.) 
 3". Mode of publication of the United States Statutes. 
 The Statutes of the United States are published 
 under direction of the Secretary of State, in one news- 
 paper of the District of Columbia, and in not more 
 than two in each State and Territory, and pamphlet- 
 copies distributed to the various ofiicers of the United 
 States, and amongst the several States and Territories 
 in proportion to the number of their representatives 
 in Congress. (1 Bright Dig. 20 to 22, § 1, 4 to 6 .) 
 4'. By the law-making power in a State ; 
 W. C. 
 1^. The Nature of Society, and of Civil Government. 
 Society was ordained by God, who created man- 
 kind with such wants and affinities that they cannot 
 exist without it. And as society cannot exist with- 
 out restraints, and some agency to enforce them, God 
 ordained government also. (1 Bl. Com. 47-48 ; Exod. 
 xviii. 20; Deut. xvi. 18-20; Prov. viii. 15; Rom. xiii. 
 
 2^. The qualities which ought to characterize Govern- 
 ment. 
 
 Government ought to possess wisdom to discern the 
 real interest of the community; goodness to endeavor 
 to pursue it ; and power to carry such knowledge and 
 intention into effect. (1 Bl. Com. 48.) 
 3^. The different Forms of Government ; 
 
 W. C. 
 1". The Simple Forms of Government. 
 1 Bl. C^ff^^;i^jci.QSQff@ 
 
SEO. n.] NATURE OF LAWS IN GENERAL. 27 
 
 w. c. 
 
 1'. Democracy. 
 
 Where the government is lodged in an assembly 
 
 consisting of all the free members of the community. 
 
 Aboimds in honesty of intention (towards itself), and 
 
 in patriotic zeal, but is wanting in wisdom to devise, 
 
 and in energy to execute. (1 Bl. Com. 49.) 
 
 2'. Aristocracy. 
 
 Where the government is lodged, not by delega- 
 tion, but by inherent authority, in a counsel, com- 
 posed of select members. 
 
 Excels in wisdom of design, but is wanting in hon- 
 esty of purpose, and in vigor of execution. (1 Bl. 
 Com. 49, 50.) 
 3'. Monarchy. 
 
 Where all power is entrusted to a single person. 
 Distinguished for vigor and concentration of pur- 
 pose, but is apt to be deficient in honesty of design, 
 and in wise providence. (1 Bl. Com 49, 50.) 
 2''. The Mixed Forms of Government; 
 W. C. 
 1'. The English Constitution; 
 1 Bl. Com. 50, 51. 
 
 W. C. 
 l"". Element of Monarchy. 
 
 The King. 
 2''. Element of Aristocracy. 
 
 The House of Lords. 
 3^. Element of Democracy. 
 
 The 'House of Commons, constituting the Re- 
 presentative-feature — the modern substitute for De- 
 mocracy, and divested of several of its defects. 
 2'. The American Constitutions ; 
 W. C. 
 1''. Element of Monarchy. 
 
 The President, and Governors of States. 
 2^- Element of Aristocracy. 
 
 Wholly wanting. 
 3". Element of Democracy. 
 
 The Chambers of Legislature, embracing the 
 representative feature ; and divided into two bodies 
 (sometimes, as in Congress, based on different 
 principles), whereby the undue superiority which 
 naturally attaches to the law-making power is 
 counteracted, greater deliberation is secured, and 
 the representation of different interests may be 
 obtained. 
 
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28 NATURE OF LAWS IN GENEEAL. [iNTEO. 
 
 4*. The obligation of every society to cause the best laws 
 possible to be enacted. 
 
 Every State is bound to preserve and perfect itself. 
 (Vat. B. I. §14 to 37.) 
 2*. The several parts of a Law ; W. C. 
 1*. Declaratory and Directory parts. 
 
 1 Bl. Com. 53 to 55. 
 2°. Remedial part. 
 1 Bl. Com. 56. 
 3". Yindicatory part. 
 
 Containing the sanction, which is always necessary to 
 cause obedience, and proposing punishment, rather than 
 rewards. (1 Bl. Com. 56-7.) 
 3*. The Obligation to obey the Laws. 
 
 It is a conscientious obligation, whether the law relate to 
 a thing malum prohibitum, or malum in se ; for without 
 obedience, society (which is a divine ordinance) cannot 
 exist. (1 Bl. Com. 58, and n (8).) And this deduction of 
 reason is confirmed by the Scripture precepts, "Submit 
 yourself to every ordinance of man, for the Lord's sake," 
 (1 Pet. ii. 13) ; " Let every soul be subject unto the higher 
 power*. For there is no power but of God : the powers 
 that be are ordained of God," (Kom. xiii. 1); "Wherefore, 
 ye must needs be subject, not only for wrath, but also for 
 conscience sake," (Rom. xiii. 5.) 
 4*. The Interpretation of Laws ; "W. C. 
 1*. The Method of Interpretation employed in the Roman 
 Law. 
 
 By reference to the Prince, who was the law-giver. 
 This is at war with the just and Necessary distribution of 
 powers in a well-ordered government, and is the essence 
 of tyranny. (Montesq. Sp. of L., B. XI, c. VI.; Va. 
 Const. 1869, Art. II.) 
 2°. The signs whereby to interpret the will of the law-giver. 
 IBl. Com. 69; 
 W. C. 
 1^. The Words. 
 
 Words are to be taken in their usual and popular 
 sense, except when they are technical, and then accord- 
 ing to the acceptation of the learned in the art. (1 Bl. 
 Com. 59.) 
 2'. The Context. 
 
 The context is very important in ascertaining the 
 meaning. Thus the preamble often helps the construc- 
 tion, as do other parts of the same law, or other laws in 
 pari materia. (1 Bl. Com. 60 ; Bac. Abr. Stat. (I). 3 ; 
 Dillard v. Tomlinson, 1 Munf. 206 ; Ailesbury v. Pat- 
 teson, 1 ^Sr^,§Siy Microsoft® 
 
SEC. n.] JVATUEE OF LAWS IN GENEKAL. , 29 
 
 3'. The subject matter. 
 
 Words are to be always understood as having regard 
 to the subject matter ; e. g., Stat. Edw. Ill, prohibiting 
 the " purchasing of provisions at Rome." (1 Bl. Com. 
 60.) 
 4^ The EflPects and Consequences. 
 
 An absm-d conclusion, or one productive of general 
 inconvenience, is a strong argument against the inter- 
 pretation which leads to it. Tlie argumentum ab incon- 
 venienti is powerful in law. Thus a law " forbidding the 
 drawing of blood in the streets," is not to be construed 
 to apply to a surgeon who bleeds a man in a fit, &c. (1 
 Bl. Com. 60 ; 1 Th. Co. Lit. 18, 19, & n (10).) 
 5'. The Reason and Spirit of the law. 
 
 The cause which moved the legislature to enact the 
 law, is always potent to determine its meaning, if the 
 words are dubious. (1 Bl. Com. 61"! ; 
 W. C. 
 1«. Natural Equity. 
 
 Natural equity is the mode of interpreting laws by 
 the reason of them, or the " correction of that wherein 
 the law (by reason of its universality), is deficient," (1 
 Bl. Com. 61) ; which must by no means be confounded 
 with technical equity, so familiar to English aud Ameri- 
 can lawyers. 
 2^. Technical Equity, as known to English and Ameri- 
 can Jmisprudence ; W. C. 
 1". Definition of Technical Equity. 
 
 Technical equity is tliat portion of remedial justice 
 which is exclusively administered in Courts of Equity, 
 in con tradis traction to that portion of remedial justice 
 which is exclusively administered by Courts of Com- 
 mon law. (1 Stor. Eq. § 25.) 
 2^. Principal Distinctions between Courts of Equity 
 and Courts of Common Law ; 
 
 (1 Stor. Eq. § 26 to § 33; 3 Bl. Com. 430 & seq.; 
 Id. 436 &c. ; Fonbl. Eq. 7, n (e) ; 
 W. C. 
 1'. Difference in the Rights which they recognize. 
 
 e. g., Trusts, and other Equitable Estates, Mis- 
 takes, Frauds, Unconscionable Bargains, &c. (1 Stor. 
 Eq. § 26 to 29.) 
 2\ Difference in the Forms of Remedy they apply. 
 
 Thus a Court of Equity grants an injunction to 
 prevent an irremediable injury; coerces a disclosure 
 on oath ; enforces specific performance of contracts, 
 &c. (1 Stor. Eq. § 26 to 28, 31.) 
 
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30 THE LAWS OF ENGLAND. INTKO.) 
 
 3'. Difference in the Modes of proceeding they adopt. 
 
 Thus a Court of Equity tries questions of fact 
 
 without a jury, by the court ; upon testimony never 
 
 oral, but always in the shape of depositions, &c, 
 
 (1 Stor. Eq. § 31.) 
 
 SECTION ni. 
 Of The Laws of England. 
 
 III. The Laws of England. 
 
 The Laws of England consist of (1), The lex non scripia (un- 
 written law), or common law; (2), The lex scripta, or statute 
 law; and under this head may also be mentioned, (3), The law 
 prevailing in Virginia ; 
 W.C. 
 1^. The lex non scripia, (unwritten law,) or common law. 
 
 The common law, in its most comprehensive sense, em- 
 braces general customs, pervading the whole realm, particular 
 customs, prevailing only in certain places, and particular laws, 
 which have been by degrees incorporated into the common 
 law, to a certain extent. But in its more ordinary acceptation, 
 the common law includes only general customs, and particular 
 laws, and not customs of particular places. It is in this sense 
 that the common law has been introduced into Virginia. 
 (1 Bl. Com. 62; V. C, 1873 ch. 15, § 1 ;) 
 W. C. 
 1*. Why called lex non scripta. 
 
 l!^ot because it is at present oral, and is transmitted only 
 by tradition, but because its original institution is not set 
 down in writing, like statutes ; — the mommients and evi- 
 dences thereof being contained in the records of courts of 
 justice, in books of reports of judicial decisions, and in text- 
 writers of authority. (1 Bl. Com. 63-'4 ; Hale's Hist. Com. 
 Law, 1, 2.) 
 2^. The rise and original of the lex non scripta, or common 
 law; W. C. 
 1°. Dome-Book, or Liber-Judicialis of Alfred. 
 
 This book was compiled by Alfred, from the various 
 local customs of the several provinces of his kingdom, say 
 A. D. 890. It was extant so late as the time of Edward 
 IV, (say A. D. 1461), but is now lost. (1 Bl. Com. 64-' 5; 
 1 Keeves' Hist. Eng. Law, 25.) 
 3'= Eesolution of Alfred's Code into three systems of laws, 
 about A. D. ^g^9^^^ ^y Microsoft® 
 
BEC. m.J THB LAWS OF ENGLAND. 31 
 
 1 Bl. Com. 65 ; 1 Eeeves' Hist. Eng. Law, 25-'6 ; Hale's 
 Hist. C. L. 53-'4. 
 
 W. C. 
 1'^. Mercen-Lage, — or Mercian Laws. 
 
 Prevailing in many of the mid-land counties, and in 
 those bordering on Wales. 
 2*. West- Saxon Lage, — or "West-Saxon Laws. 
 
 Prevailing in the South and West, from Kent to Devon- 
 shire. 
 3*. Dane-Lage, — or Danish Law. 
 
 Maintained in the rest of the mid-land counties, and on 
 the Eastern coast. 
 3". Digest of Edward the Confessor, say A. D. 1041. 
 
 A new edition, it would seem, of Alfred's Dome-book, 
 with additions and improvements. Hence Edward is styled 
 the Resiitutor, as Alfred is the legum Anglicanarum Condiior; 
 and the law thus systematized, is known as_;MS commune, or 
 Folc-rihte. (1 Bl. Com. 66 ; 1 Keeves' Hist. E. L., 25-'6 : 
 Hale's Hist. C. L. 5, n (B), 53-'4.) 
 3*. The several parts of the lex non scripta, or common law. 
 The several parts of the common law include, (1), General 
 customs; (2), Particular customs; and (3), Particular laws, 
 that is, the civil, or Roman, and the canon laws ; 
 W. C. 
 I*'. General Customs, — or the common law, more usually so 
 called. 
 
 1 Bl. Com. 67 and seq. 
 
 Founded on immemorial and universal usage, evidenced by 
 judicial decisions, and approved text-writers. The com- 
 mon law consists largely of statutes worn out by time, ac- 
 cording to Ld. Hale. (Hale's Hist, of Com. Law, & seq. 
 89; Bac.Abr. Statute); W. C. 
 1'^. Effect of Judicial Decisions in ascertaining the Law. 
 
 Precedents must be observed and respected when they 
 have been acted on as the basis of transactions of business, 
 because of the unendurable inconvenience which otherwise 
 would ensue from the uncertainty. (1 Bl. Com. 69 to Yl. ) 
 2'*. The subjects to which General Customs, or the Common 
 Law, relate. 
 
 The common law relates to and determines the form 
 and obligation of contracts, estates in real property, mari- 
 tal rights of husband and wife, civil remedies, the general 
 doctrine of crimes and punishments, &c. (1 Bl. Com. 68.) 
 3^. Depositaries of the Common Law. 
 
 1 Bl. Com. Yl to Y3, and Y2, n (10); 1 Eeeve's Hist. 
 Eng. Law, 221; 2 Do. 86, 2Y9 ; 1 Kent's Com. 470, &c.; 
 W. C. 
 1*. Beports of adjudged Cases. 
 
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32 THE LAWS or ENGLAND. [mTEOi 
 
 1 Kent's Com. 470, 498 ; 1 Bl. Com. 71-'2 ; "Wallace's 
 Report ; 
 W. C. 
 1' The Year-Books. 
 
 From 1 Edw. I to 28 Hen. VIII. (A. D. 1307 to 
 1537.) 
 2''. Coke's Keports. 
 
 From Elizabeth to James I. 
 3^. Croke's Reports. 
 
 From Elizabeth to Charles I. 
 4:'. Dyer's Keports. » 
 
 From Henry VIII to Elizabeth. 
 5^. Plowden's Reports. 
 
 From Edward YI to Elizabeth. 
 6^. More modern Reports. 
 2^ Approved Text Writers; W. C. 
 l"'. Glanvil — " Treatise on the Laws and Customs of Eng- 
 land." 
 
 Written temp. Henry II, — say A. D. 1187. 
 2^ Bracton — " Treatise of the Laws and Customs of Eng- 
 land." 
 
 Written temp. Henry III, — say A. D. 1265. 
 3^ Fleta — "Commentary upon the English Law." 
 
 Written in the Fleeiprison, temp. Edward I, — say A. D. 
 1285. 
 4'. Littleton's Tenures. 
 
 Written temp. Edward lY, — say A. D. 1475. 
 5^. Brooke's Grand Abridgment of the Law. 
 
 Written temp. Elizabeth, — say A. D. 1573. 
 6*^. Fitzherbert's Grand Abridgment of the Law. 
 Written temp. Elizabeth, — say A. D. 1565. 
 7'. Coke's Institutes. 
 
 Written temp. James I and Charles I, — A. D. 1621 
 to 1634; 
 W. C. 
 1«. First Institute. 
 
 "Commentary on "Littleton's Tenures," — A. D. 
 1621. 
 2^. Second Institute. 
 
 Commentary on Ancient Statutes, — A. D. 1629 to 
 1634. 
 38. Third Institute. 
 
 Treatise of Pleas of the Crown, — A. D. 1629 to 
 1634. 
 4«. Fom-th Institute. 
 
 Treatise on the Jurisdiction of Courts, — A. D. 1629 
 to 1634. 
 ^''. Particular Customs. 
 
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8EC. III. J THE LAWS OF ENGLAND. 33 
 
 Particular customs are such customs as do not prevail 
 throughout the kingdom, but affect only the people of par- 
 ticular districts, or particular classes of persons. (1 Bl. 
 Com. 74, & seq.); 
 W. C. 
 1'^. Instances of Particular Customs ; W. C. 
 1*. Custom of Gavelkind. 
 
 Prevailing in Kent and some other places, — that all 
 the sons shall succeed to the inheritance alike, &c. (1 
 Bl. Com. 75; 2 Do. 84.) 
 2'. Custom of Borough-English. 
 
 Prevailing in divers ancient boroTighs, — that the 
 youngest son shall be heir, &c. (1 Bl. Com. 75; 2 Do. 
 83.) 
 3®. Copyhold Customs. 
 
 1 Bl. Com. 75; 2 Do. 95, & seq.; Id. 147, & seq. 
 2'^- Rules relating to Particular Customs. 
 
 These rules are such as relate (1), To the proof of the 
 custom ; (2), To the legality of the custom ; and (3), To the 
 allowance of the custom. (1 Bl. Com. 76.) 
 W. C. 
 1". Rules touching the Proof of Particular Customs ; W. C. 
 1'. Rules touching Proof of Gavelkind and Borough-Eng- 
 lish. 
 
 There is no need to prove that the custom exists, but 
 only that the lands in question are subject thereto. Trial 
 is by a jury, and not by the court. 
 2''. Rules touching the Proof of Customs of London. 
 
 Proved l)y certificate from the Lord Mayor and Alder- 
 men, by tlie mouth of the Recorder, and not tried by 
 the jury. 
 3'. Rules touching the Proof of all other Private Cus- 
 toms. 
 
 They must be particularly pleaded, and as well the 
 existence of the custom must be proved, as that tlie thing 
 in dispute is within it. Trial is bj^ jury. 
 2". Legality of Particular Customs. 
 
 "Malus usus abolendus est." (1 Bl. Com. 76, &c). We 
 may note under this head, (1), The requisites of a good 
 custom; (2), The legality of customs in Virginia; and 
 (3), The contrast between custom and prescription ; 
 W. C. 
 1''. The Requisites of a Good Custom. 
 1 Bl. Com. 76, &c. 
 1*. Long continued. 
 
 In order to be supported as a good custom, it must 
 appear to have continued so long that the memory of 
 man runneth not to the contrary. (ITh. Co. Lit. 35.) 
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34 THE LAWS OF ENGLAND. [iNTKO. 
 
 Immemorial continuance is presumed from regular usage 
 for twenty years, not explained, or contradicted. (King 
 V. Joliffe, 2 B. & C. (9 E. C. L.) 54.) 
 2«. Uninterrupted. 
 
 At least in point of Right. 
 3^. Peaceable and acquiesced in. 
 4^. Reasonable ; i. e., not unreasonable. 
 
 Thus, even if there could be in Virginia (as there 
 cannot), a valid custom or usage operating as an excep- 
 tion to the general rules of the common law, a custom 
 or usage for a flour inspector, who by statute is to re- 
 ceive a specified compensation in money, to take to his 
 own use the flour drawn from the barrel in the process 
 of inspection, called the draft-flour, as an additional 
 compensation or perquisite, would be bad, as unreason- 
 ble, unjust, and contrary to law. (Delaplane v. Cren 
 shaw, 15 Grat. 457). 
 5^. Certain. 
 
 Id certum est, quod certum reddi potest. 
 6^. Compulsory. 
 
 7^. Consistent with other customs. 
 2'. The Legality of Customs in Yirginia. 
 
 Customs, as local laws, cannot exist in Yirginia, be- 
 cause, when our ancestors came hither ^in 1607, they 
 brought with them the universal common law, but "no 
 particular custom ; and so every local custom now alleged 
 to exist must have originated since that period, and there- 
 fore within the historic memory of man. (Harris v. 
 Carson, 7 Leigh, 632; Mason v. Moyers, 2 Rob. 606; 
 Delaplane v. Crenshaw, 15 Grat. 457.) 
 
 Let it be observed that the doctrine just stated does 
 by no means exclude the effect of usage or custom in 
 proving or modifying contracts, either express or im- 
 plied. Contracts are generally made with more or less 
 „ reference to existing custom or usage, and although, 
 where the agreement is in writing, it may not be altered 
 by proof of any such custom, save where the terms are 
 ambiguous, yet having due regard to that rule of evi- 
 dence, usage and custom are powerful auxiliaries to help 
 us to the meaning of the parties. (Governor for, &c. v. 
 Withers, 5 Grat. 24 ; Delaplane v. Crenshaw, 15 Grat. 
 457; Ragland & Co. v. Butler, 18 Grat. 336-7.) 
 3'. Contrast between Custom and Prescription. 
 
 Custom is a local law; prescription a source of private 
 title to property. 
 
 Both depend on immemorial continuance. In both, 
 twenty years adverse, honest, uninterrupted continuance 
 is proof of 
 
SEC. III.] THE LAWS OF ENGLAND. 35 
 
 Custom as a local loiu cannot exist in Vii'ginia, for 
 the reason stated on the preceding page. Prescription 
 may, because there is no historic date for the introduction 
 of property, as there is for the introduction of law. (Coal- 
 ter V. Hunter, 4 Eand. 38; Nichols v. Aylor, T Leigh, 
 546; 3 Kent's Com. 441; 1 Lom. Dig 673.) 
 3*. Allowance of Particular Customs; W. C. 
 1'. Customs (being in derogation of the common la^v') must 
 be construed strictly. 
 1 Bl. Com. 78,-'9. 
 S''. Customs must submit to the King's Prerogative. 
 1 Bl. Com. 79. 
 3"^. Particular Laws; 
 
 Let us observe under this head, (1), "What particular 
 laws are admitted as part of the common law; (2), The 
 several courts wherein they are used ; and (3), The restraints- 
 upon their employment; 
 W. C. 
 1*. What particular laws are admitted as part of the lex nan 
 scripta. 
 
 The particular laws which have been partially adopted 
 as part of the common law, but with a number of cautious 
 restrictions, are the Koman or civil law, and the canon or 
 ecclesiastical law. (1 Bl. Com. 79 & seq.) 
 W. C. 
 1^. The Koman or Civil Law. 
 1 Bl. Com. 80, 81. 
 W. C. 
 1^. The sources whence the Koman law was compiled. 
 The sources whence the Roman law was compiled 
 may be enumerated as follows; namely, 
 
 (1). The regal constitutions of their ancient kings; 
 (2). The XII. tables of the Decemviri; 
 (3). The laws enacted by the senate or people; 
 (4). The edicts of the Praetor; 
 (5). The responsa prudentum, or opinions of learned 
 lawyers; and 
 
 (6). The imperial decrees, or constitutions of succes- 
 sive Emperors. 
 1 Bl. Com. 80, 81. 
 2'. The parts of which the Roman law (the Corpus Juris 
 civilis) consists; Wherein of 
 1*. The Institutes of Justinian. 
 
 An elementary treatise for the use of beginners, com- 
 piled by Tribonian, a great jurist of the time, under the 
 order of the Emperor Justinian, about A. D. 533. 
 2^. The Pandects, or Digefet of .Justinian. 
 
 A digest,-m 50 books, of the general doctrines of the 
 Roman laBigftaisa^ib^iMfifysepii^ labor and success, by 
 
36 THE LAWS OF ENGLAND. [iNTEO. 
 
 Tribonian, under the order of Justinijin, about A. D. 
 533. It contains the opinions of the most eminent 
 jurists of the Roman world, digested with admirable 
 system, upon all subjects connected with the municipal 
 law of the empire. 
 
 Within less than a century after its completion, it 
 disappeared, and was lost to the world for nearly 600 
 years, when a copy of it was casually found at Anialfi, 
 in Italy, about A.D. 1130. 
 3*. Code of Justinian. 
 
 A new collection of'imperial enactments, or consti- 
 tutions, compiled by Tribonian, about A. D. 533. 
 4«. Novels or New Constitutions. 
 
 Being a Supplement to the Code, containing new 
 decrees of successive Emperors. 
 ly These fom- compose the Corpus Juris eivilis. 
 3'. Popular Expositions of Roman or Civil Law; "Wherein 
 of 
 1«. Gibbon's History of the Decline and Fall, &c , ch. 44. 
 [ 2". Browne's Civil and Admiralty Law, — Vol. I. 
 3«. Taylor's Civil Law,— p. 1 to '25. 
 4^. Kent's Corn's,— Vol. I, p. 515. 
 5^. Cooper's Justinian. 
 2'. The Canon Law. 
 
 The canon law embraces the whole body of Roman 
 Ecclesiastical Law. (1 Bl. Com. 82, & seq.) Let us 
 observe, (1), Whence the Canon law was originally com- 
 piled ; and (2), The depositaries of the Canon law ; 
 ' W. 0. 
 1''. Whence the Canon Law was compiled originally. 
 
 From opinions of ancient Latin Fathers, — the Decrees 
 of General Councils, — and the Decretal Epistles, and 
 Bulls of the Papal See. 
 2^. Depositaries of the Canon Law; W. C. 
 ^.1^. The Concordia discordantium Canonum, or Decretum 
 Gratiani, A. D. 1151 (3 books). 
 28. The Decretalia Gregonii Noni, A. D. 1230 (6 books). 
 3B. The Sextus Decretalium, A. D. 1298 (1 book). 
 4«. Tlie Clementine Constitutions, A. D. 1317. 
 5*. The Extravagantes Johannis, say A. D. 1320. 
 6^. The Extravagantes Communes. 
 
 'P^ These six constitute the Corpus Juris Canonici. 
 ^ 1^. Legatine Constitutions. 
 
 The legatine CI institutions are the constitutions from 
 time to time enacted in the English National Synods, 
 Temp. Henry III, A D. 1220 to 12GS, under' Otho 
 and Othobon, Legatds from Gregory IX, and Clement 
 
 „, X' • • QiQitizedpy. Microsoft® ' 
 8^. rrovmcial X/onstitutionB. 
 
SEC ni.J THE LAWS OF ENGLAND. 37 
 
 The provincial constitution s embrace the decrees of 
 Pro\ancial Synods held under divers Archbishops of 
 Canterbnry, from Henry III to Henry VIII. By 25 
 Henry YIII, it was enacted that there should be a re- 
 view of the canon law; and until it was made that all 
 . canons, constitutions, ordinances, and synodals provin- 
 cial, then made and not repugnant to the law of the 
 land, should be in force. And on this statute (no 
 such review having ever been made) now depends the 
 authority of the canon law in England. (1 Bl. Com. 
 83.) 
 S"*. The several Species of Courts wherein (under restrictions) 
 the Civil and Canon Laws are permitted to be used. 
 1 Bl. Com. 83, & seq. 
 W. C. 
 1'. The Courts Christian, or Ecclesiastical Courts. 
 2^ The Mihtary Courts. 
 3^ The Courts of Admiralty. 
 4*. The Courts of the two Universities. 
 
 The civil and .canon laws are used in Virginia in — 
 
 1. Causes Testamentary and Matrimonial; 
 
 2. The Military Courts — that is. Courts Martial; and 
 
 3. The Courts of Admiralty. 
 
 3''. The restraints in the employment of the Civil and Canon 
 Laws; W. C. 
 1'. The Courts of Common Law superintend and control 
 
 the Courts which use the Civil and Canon Laws. 
 2"*- The Common. Law reserves to itself the exposition of all 
 Acts of Parliament which concern those Courts, or their 
 jurisdiction. 
 3". An appeal lies from these Courts to the Crown, in the 
 last resort. 
 2". The lex scrlpia, or Statute Law. 
 
 Let us observe here, (1), How statutes are enacted; (2), 
 The different kinds of statutes; (3), The rule of construction 
 of statutes at common law ; and (4), The rules for the con- 
 struction of statutes prescribed in Virginia ; 
 W. C. 
 V\ How Statutes are enacted. 
 
 The mode of enacting statutes may be seen from 1 Bl. Com. 
 181, &, seq.; Bac. Abr. Court of Parliament (E. ); Id. Statute. 
 The student is invited to read attentively the passage of 
 Blackstone here cited, from page 181 to 185. 
 
 The ordinary mode of passing laws in Congress (and the 
 forms in the State legislatures are very similar) is briefly 
 thus, One day's notice of a motion for leave to bring in a 
 bill, in cases of a general nature, is requ.ired ; every bill must 
 have three readings before it is passed, and these readings 
 
38 THE LAWS OF ENGLAND. [iNTEO. 
 
 must be on diiferent days ; and no bill can be committed and 
 amended until it has been twice read. In the House of 
 Representatives, bills, after being twice read, are committed 
 to a committee of the whole house, when a chairman is ap- 
 pointed by the speaker to preside over the committee ; the 
 speaker leaves the chair and occupies the place of an ordinary 
 member. When a bill has passed one house it is transmitted 
 to the other, and goes through a similar form, though in the 
 Senate there is less formality, and bills are often committed 
 to a select committee chosen by ballot. If a bill be altered 
 or amended in the house to which it is transmitted, it is then 
 returned to the house in which it originated ; and if the two 
 houses cannot agree, they appoint each a committee to con- 
 fer on the subject. When a bill is engrossed, and has re- 
 ceived the sanction of both houses, it is sent to the President 
 for his approval. If he approves the bill, he signs it. If 
 he does not, he returns it within ten days (Sundays excepted), 
 with his objections, to that house in which it originated, which 
 enters the objections at large on its journal, and proceeds to 
 reconsider it. If then two-thirds of that house agree to the 
 bill, it is sent, with the objections, to the other house, and if 
 approved by two-thirds of that house, it becomes a law. 
 (Bac. Abr. Statute; Const. U. S. Art. I, § 7.) 
 2". The different kinds of Statutes; W. C. 
 1°- The different kinds of Statutes, in respect to Subject Mat- 
 ter; Wherein of 
 1"*. Public Statutes. 
 
 Such as regard, or affect materially, the whole or a great 
 part of the community, which must be notieed by the courts 
 ex officio, without being proved. (1 St. Ev. 231 ; Bac. Abr. 
 Stat. (F.); Pot. Dwar. Stat 52, & seq.) 
 2*. Private Statutes. 
 
 Being such as concern only a particular species, thing or 
 person, of which the judges will not take notice ex officio. 
 (1 Bl Com. 86, and n (21); Pot. Dwar. Stat. 52, & seq.); 
 W. C. 
 1®. Doctrine at Common Law, as to private Statutes. 
 
 Must be both pleaded and proved. Such statutes in 
 England are frequently used. (Pot. Dwar. Stats. 53, 
 and n (1).) 
 2". Doctrine by Statute, in Virginia, as to private acts ; W. C. 
 1^. Pleading and proof of private acts. 
 
 Need not be pleaded specially, but miist be proved. (Y. 
 
 C. 1873, ch. 172, § 1 ; Legrand v. H. Sidney Coll., 5 
 
 Munf 324; Somerville v. Wimbish, 7 Grat. 225.) 
 
 2''. Mode of Proof of private Statutes; W. C. 
 
 1^. By means of a copy certified by the officer charged 
 
 with the c!^^^6^imMM§.mMo\l^ of the Legislature. 
 
6EC. III. J THE LAWS OF ENGLAND. 39 
 
 In Virginia, that officer is the Clerk of the House of 
 Delegutes. (V. C. 1873, ch. 14, § 14.) 
 28. By means of an Examined copy, 
 
 Which a competent witness proves to have been 
 compared with the ori2;inal, and found accurate. (1 
 St. Ev. 232 ; Pot. Dwai\ Stat. 57.) 
 3°. By means of a copy published by the public printer. 
 V.'C. 1873, ch. 15, § 8; Pot. Dw'ar. Stats. 60. 
 
 fi®°Copies of Acts of Congress, published by authority, 
 are admitted in evidence in our courts, (Taylor's Adm'r 
 V. Bank of Alexandria, 5 Leigh, 471), and so Legisla- 
 tive Acts of the sister-States have sometimes been per- 
 mitted to be so proved, (Thompson v. Musser, 1 Dall. 
 462; Biddis v. James, 6 Binn. 321; Cox v. Robinson, 
 2 Stew. & Port. 91 ; Raynham v Canton, 3 Pick. 293), 
 but it is safer to comply with the Act of Congress, 
 (passed pursuant to Const. U. S. Art. IV, § 1), and have 
 them authenticated under the great seal of the State, (1 
 Bright. Dig. 265), which proves itself, no matter by 
 whom affixed. (U. S. v. Amedy, 11 Wheat. 392; Craig 
 v. Brown, 1 Pet. 352 ; Leland v. Wilkinson, 6 Pet. 
 317; Warner's Case 2 Va. Cas. 95; Hunter v. Fulcher, 
 5 Rand. 126.) 
 2"- The diiferent Kinds of Statutes, in respect to their nature 
 and object; 
 
 1 Bl, Com. 86 & seq ; 
 W. C. 
 1''. Declaratory Statutes. 
 
 Confirming and setting forth the old common law, 
 when it has fallen into disuse, or become disputable. (1 Bl. 
 Com. 86; Pot. Dwar. Stats. 55-'6.) 
 2'^. Remedial Statutes. 
 
 To supply defects, or abridge superfluities of the com- 
 mon law, arising out of the imperfections of human in- 
 stitutions, or out of a change of circumstances and times. 
 (1 Bl. Com. 86 ; Pot. Dwar. Stats. 58.) 
 W.C. 
 1°. Enlarging Statutes. 
 
 Enlarging the common law where too narrow and cir- 
 cumscribed. (1 Bl. Com. 86-'7.) 
 2", Restraining Statutes. 
 
 Limiting and restraining the common law, where too 
 lax, and luxuriant. (1 Bl. Com. 87.) 
 3". The Rules to be observed with regard to the construction 
 of Statutes, as prescribed by the Common law ; 
 
 (Bac. Abr. Statute (I); Potter's Dwar. on Stats. 184 & 
 seq I; Fox v. Com'th, 16 Grat. 9 & seq. ); 
 W.C. 
 
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40 THE LAWS OF ENGLAND. [iNTEO. 
 
 1". Advert to the three points of the Old law, the mischief and 
 the remedy, and let the construction tend to suppress the 
 mischief, and advance the remedy. 
 1 Bl. Com. 87. 
 
 2«. A Statute which treats of things or persons of inferior rank^ 
 cannot, by general words, be extended to those of a superior. 
 1 Bl. Com. 88. 
 
 3"- Penal Statutes must be construed strictly, but not so as to 
 defeat the clear intention. 
 
 1 Bl. Com. 88; Bac Abr. Stat. (I), 9.) 
 
 4:". Remedial Statutes (e. g., statutes aimed against frauds) 
 are to be construed liberally. 
 
 So far as a statute annuls a fraudulent or illegal transac- 
 tion, it is remedial, and to be liberally expounded. So far as 
 it acts upon the offender, by inflicting a penalty, it is 'penal, 
 and to be construed rigorously. (1 Bl. Com. 88-'9; Bac. 
 Abr. Stat. (I), 8.) 
 
 All laws for suppressing gaming, lotteries- &c , shall 
 be construed as remedial. (V. C. 1873, ch. 194, § 24; Shu- 
 mate's Case, 5 G-rat. 653.) 
 
 5". One part of a Statute must be construed by another, ut res 
 magis valeat, quam pereat. 
 
 1 Bl. Com. 89; Bac. Abr. Stat. (I), 2, 3. 
 
 6". A saving totally repugnant to the body of the Act is void. 
 But they must be reconciled if possible. 
 1 Bl. Com. 89. 
 
 7". Where the Common law and a statute differ, the Common 
 law gives place to the statute; and an old statute gives 
 place to a new one. (1 Bl. Com. 89.) 
 
 But they must be reconciled if possible, as if there be no 
 negative loords in the last law, they often may be. (Id. 90; 
 Yerger's Case, 8 Wal. 105.) 
 
 So, under the limited written constitutions of Amer- 
 ica, a statute totally repugnant to the constitution gives place 
 to the constitution. (Case of the Judges, 4 Call. 141 (the 
 second case upon that point in America, decided 1788, the 
 first being in Rhode Island, decided in 1786) ; Kemper v. 
 Hawkins, 1 Va. Cas. 20; Jackson v. Rose, 2 Va. Cas. 34; 
 Hunter v. Martin, 4 Muuf. 1; Crenshaw v. Slate Riv. Co., 
 6 Rand. 245; Goddin v. Crump. 8 Leigh, 120; Clopton's 
 Case, 9 Leigh, 109; Harrison Justices v. Holland, 3 Grat. 
 247; Sharpe v. Robertson, 5 Grat. 518; Fletcher v. Peck, 
 6 Cranch, 87 ; Gibbons v. Ogden, 9 Wheat, 1 ; McCulloch 
 v. Maryland, 4 Wheat, 316; Garland's Case, 4 Wal. 333; 
 Cummings v. Missouri, 4 Wal. 277; Legal Tender Cases, 12 
 Wal. 457; Gunn v. Barry, 15 Wal. 610; Antoni v. Wright,, 
 22 Grat. 833; Homestead Cases, Id. 266; Federalist, No. 
 '^^^™-^^J^'6i^m-l^mhrSm<§' & seq.; 3 Brough, 
 
BEG. in. J THE LAWS OF ENGLAND. 41 
 
 8''- If a Statute which repeals another is itself afterwards re- 
 pealed, the first is thereby revived. 
 1 Bl. Com. 90. 
 
 It is otherwise in Virginia, unless the latter repealing law 
 be passed during the same session. (V. C. 1873, ch. 15, § 14.) 
 But if the common law be repealed by a statute, which 
 is itself afterwards repealed, the common law is thereby 
 revived. (Insur. Co. of the Yalley v. Bailey's Adm'r, 16 
 Grat. 384; Booth's Case, Id. 529.) 
 9*^. Acts derogatory from the power of subsequent Legislatures 
 arc of no force. 
 1 Bl. Com. 90. 
 10°. Statutes that are impossible to be pei-formed are of no 
 validity. 
 
 Hence consequences and constructions, contradictory to 
 common reason and justice, are to be avoided as not within 
 the legislative intent. (Bonham's Case, 8 Co. 118, a; 1 Bl. 
 Com. 91.) But if the loords are clear, there seems in Eng- 
 land (where no limitation to the power of parliament exists) 
 no power in the courts to defeat the intent. (1 Bl. Com. 
 91 ; Pot. Dwar. Stat. 76, .& seq.) 
 
 Aliter in America, under our written, limited constitutions. 
 Supra, 7*^. See Loan Association v. Topeka, 20 Wal. 662, 
 «& seq. 
 11". In general revisals of Codes, it is the .established rule of 
 construction that the old law is not intended to be altered, 
 unless such intention plainly appears in the new Code. 
 
 (Taylor v; Delancey, 2 Ca. Cas. 143; Parramore v. Tay- 
 lor, 11 Grat. 242-'3; Steamb't Wenonah v. Bragdon, 21 
 Grat. 695.) 
 4*. Eules to be observed, with regard to the construction of 
 Statutes, as prescribed by law in "Virginia, in order to di- 
 minish verbiage in their enactment. 
 V. C. 1873, ch. 15, § 9. 
 W. C. 
 I"'. Tlie word "State," applied to a part of the United States, 
 shall include the District of Columbia and the several Ter- 
 ritories, and so also shall the words " United. States." 
 
 Contra, independently of statute. (Hepburn & Dundas 
 v.,Ellzey, 2 Cr. 342.) 
 2"=. The words " the governor" shall be equivalent to " the 
 executive power of this Commonwealth," or to " the person 
 having the executive power." The word "justice," or "jus- 
 tices," shall be construed as if the words " of the peace" 
 followed them. 
 3". Words purporting to give authority to three or more shall 
 be construed to give it to a majority, unless otherwise ex- 
 pressed. 
 
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42 THE LAWS OF ENGLAND. [iNTEO. 
 
 4". The words " personal representative" shall include an ex- 
 ecutor, an administrator, an administrator with a will an- 
 nexed, an administrator de bonis non, with or without a 
 will annexed, a sheriif, &c., committee, and every other 
 curator or committee of a decedent's estate, for or against 
 whom suits may be brought for causes of action accrued to 
 or against the decedent. 
 
 5°- The words "insane person" shall include every one who 
 is idiot, lunatic, non compos, or deranged. 
 
 6"- The word " oath" shall include an affirmation in all cases 
 where an affirmation mfty be substituted for an oath ; and 
 in like cases the word "sworn" shall include the word 
 "affirm." 
 
 7°. Unless otherwise expressed, the word " month" shall mean 
 a calendar month, and the word "year" a calendar year. 
 And the word "year" alone shall be equivalent to "year 
 of our Lord." 
 
 Accordant, independently of Statute, Brewer v. Harris, 5 
 Grat. 285; Vandewall's Case, 2 Va. Gas. 275; Sheets v. 
 Selden's Lessee, 2 Wal. 189-'90. 
 
 8". Where a Statute requires a notice to be given, or any 
 other act to be done a certain time before any motion or 
 proceeding, there must be that time exclusive of the day 
 for such motion or proceeding, but the day on which such 
 notice is given, or such act is done, may be counted as 
 part of the time. 
 
 This doctrine prevails independently of statute. (Sheets 
 V. Selden's Lessee, 2 Wal. 190.) 
 
 9"- Where a Gourt or other proceeding is directed to take 
 place on a particular day of the month, if that is Sunday, it 
 shall take place the next dny. And where a court or pro- 
 ceedings are to be adjourned from day to day, an adjourn- 
 ment from Saturday to Monday is legal. 
 10°. The word " land" or " lands," and the words " real estate," 
 shall include lands, tenements, and hereditaments, and all 
 rights thereto and interests therein, other than a chattel- 
 interest; and the words "personal estate" shall include 
 chattels real, and such other estate as upon the death of 
 the owner intestate, would devolve upon his personal re- 
 presentative. 
 11'^. The words "written" or "in writing" shall include any 
 representation of words, letters or figures, whether by print- 
 ing or otherwise. 
 12*^. The word " seal," in respect of any court or public office, 
 shall include an impression of such official seal made upon 
 the paper alone, as well as an impression made by means of 
 a wafer, or of wax affixed thereto. And in respect to a 
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8EC. III.j THE LAWS OF ENGLAND. 43 
 
 natural person, the word "seal" shall include a scroll affixed 
 by way of seal. 
 
 13". Singular words may extend to several persons or things, 
 and vice versa; words masculine may extend to females; and 
 the word "person" may be applied to bodies politic and 
 corporate, as well as to individuals. 
 
 14°. The words "preceding" and "following," referring to 
 sections of statutes, shall mean next preceding and next fol- 
 lowing. 
 
 15°. The construction and effect of certain words, descriptive 
 of subjects of taxation in the laws for the assessment and 
 collection of taxes. 
 
 V. C. 1873, ch. 15, § 10 to 12. 
 16°. Effect of a law repealing a former law. 
 
 A new law shall not be construed to repeal a former law, 
 as to any offence committed against the former, nor as to 
 any act done, or penalty incurred, or any right accrued or 
 claim arising under the former law, or in any way to affect 
 any such offence, act, penalty, right or claim, arising before 
 the new law takes effect; save only that the proceedings 
 thereafter had shall conform, as far as practicable, to the 
 laws in force at the time of such proceedings; and if any 
 penalty, &c. be mitigated by the new law, the provision, with 
 the consent of the party affected, may be applied to any 
 judgment subsequently pronounced. (1 V. C. 1873, ch. 15, 
 § 13 ; Campbell's Adm'r v. Montgomery, 1 Rob. 392 ; Phil- 
 lips' case, 19 Grat. 485; Crawford v. Halstead & al., 20 
 Grat. 220 & seq.) 
 3*. The Law prevailing in Virginia; W. C. 
 
 1". The law in Virginia previous to the Kevolution of 1776; 
 W. C. 
 1°. The common law of England, except particular customs. 
 (Harris v. Carson, 7 Leigh, 632 ; Mason v. Moyers, 2 Rob. 
 606.) 
 
 A pernicious and unwarrantable doctrine has been pro- 
 pounded, as we have seen (1 Kent's Com. 473), that English 
 statutes passed before the emigration of our ancestors, and ap- 
 plicable to our situation, and in amendment of the common 
 law, constitute apart of the common law of this country. Others 
 would embrace in the common laiu of these States all English 
 statutes in aid of the common law before the Revolution.- (1 
 Abb. U. S. Pr. 195). See Contra, Levy v. McCartee, 6 Pet. 
 1 10, as to the general doctrines. And in Virginia, it is point- 
 edly negatived by the ordinance of May, 1776, which adopts 
 as tlie law of the Commonwealth, until altered by tlie legisla- 
 ture, " the common law of England, all statutes or acts of 
 parliament made in aid of the common law, prior to 4 Jac. 
 
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4:4: THE LAWS OF ENGLAND.^ [iNTEO. 
 
 I, and which are of a general nature, not local to that king- 
 dom, together with the several acts of the general assembly 
 now in force," &c. (9 Hen. Stat. 127.) 
 2". The general Statutes of England, made in aid of the com- 
 mon law, and not local to England, prior to 4 Jac. I. 
 
 That being the date of the first charter of Virginia, the 
 Virginian community was thereby severed from that of Eng- 
 land; but they brought hither with them all the general laios 
 of the mother coimtry, but no particular customs. (1 Bl. 
 Com. 107; 1 Steph. Com. 98.) 
 3". The Statutes of England after 4 Jac. I, which specially 
 named Virginia, or the colonies generally. 
 1 Bl. Com. 108. 
 4:'^. Acts passed by the Colonial Assembly. 
 Hen. Stats, at Large, vols. 1 to 9. 
 2". The law in Virginia since the Revolution; W. C. 
 1". The laws enacted by direct authority of the Common- 
 wealth; W. C. 
 1*. The Common law of England, so far as not repugnant to 
 the Constitution, nor altered by the general assembly. 
 
 Ordinance of Convention of 1776, 9 Hen. Stats. 127; 
 13 Hen. Stats. 23; V. C. 1873, ch. 15, § 1; Findlay v. 
 Smith & ux, 6 Munf. 148 ; Coleman v. Moody, 4 Hen. & 
 Munf. 19. 
 2*. Remedial and Judicial writs, given by any act of parha- 
 ment, made in aid of the common law, prior to tlie 4th 
 year of James I, of a general nature, not local to Eng- 
 land. 
 
 V. C. 1873, ch. 15, §2. 
 3*. Acts of Assembly, and State Constitution and Bill of 
 Rights. 
 2". The laws of the United States. 
 
 ,The Constitution of the United States, and the laws 
 and treaties made in pursuance thereof, are the supreme 
 laio of the land, anything in the constitution or laws of any 
 State to the contrary notwithstauding. (U. S. Const. Art. 
 VI, §2.) 
 
 w. c. 
 
 T^. Constitution of United States. 
 
 2*- Acts of Congress made in pursuance of tlie Constitution. 
 
 3"*. Treaties made under the authority of the United States. 
 
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SEC, IV.] COUNTEIES SUBJECT TO THE LAWS OF ENGLAND. 45 
 
 SECTION IV. 
 
 Of the Countkies subjjcct to the Laws of England. 
 
 IV. The Coimti-ies subject to the Laws of England. 
 
 1 Bl. Com. 92 to 120; W. C. 
 1". The various countries subject to the authority of England; 
 W. C. 
 1". England and Wales. 
 
 These, since 21 Hen. YIII, o. 26, have had an entire com- 
 munion of laios, but they had a diversity of courts until 11 
 Geo. lY, and 1 Wm. IV, c. 70 (A. D. 1830), since which the 
 Welsh judicature is entirely incorporated with that of Eng- 
 land. (1 Bl. Com. 94:-'5 ; 3 Steph. Com. 455, n (f).) 
 2^ Scotland. 
 
 Upon the accession of James VI of Scotland to the Eng- 
 lish throne (as James I of England), A. D. 1602, there was 
 an union of crowns, but they continued distinct kingdoms 
 until 6 Anne (A. D. 1707), when they were united into one 
 by agreement of the parliaments of both nations. But the 
 municipal laws of Scotland still prevail there unless altered 
 by parliament, whose acts always extend to Scotland, unless 
 it be expressly excepted. (1 Bl. Com. 95 to 98 . 1 Steph. Com. 
 87.) 
 3^ Ireland. 
 
 Upon the conquest of Ireland by Henry II (A. D. 1171— 
 '2), the laws of England, including the common law, were 
 imposed, and their observance enforced (against the Brehon 
 law, to which the people were attached), in 12 John (A. D. 
 1211) ; in 30 Henry III (A. D. 1246) ; in 5 Edw. I (A. D. 
 1277); and finally, in 40 Edw. Ill (A. D. 1367). No statute 
 of England, since 12 John, was in force in Ireland, unless 
 expressly named (Ireland having a parliament of its own), 
 until it was incorporated as an integral part of the British 
 dominions (A. D. 1807), by 39 and 40 Geo. Ill, c. 67. Since 
 the union all acts of parliament extend to Ireland, unless it 
 be expressly excepted. (1 Bl. Com. 99 to 104; 1 Steph. Com. 
 88 to 95.) 
 J 4*. Berwick upon Tweed, 
 
 Berwick was originallj' part of the kingdom of Scotland, 
 from which it was conquered (A. D. 1296,) by Edward I, 
 wlio granted it a charter, and the town being afterwards 
 ceded by Edward Baliol, (A. D. 1333), to Edward III, the 
 latter granted further charters, (A. D. 1337 and 1357), 
 whereby he confirmed its privileges, and especially provided 
 that it should be governed by its ancient Scottish laivs. Its 
 present Constitution is by Statute 2 Jac. I, c. 28, (A. D. 
 1605), which confirms and enlarges its privileges, making it 
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46 COUNTEIES SUBJECT TO THE LAWS OF ENGLAND. [iNTKO. 
 
 a county of itself, that is a county of a town corporate. It 
 is bound, however, by all Acts of Parliament whether named 
 or not. (1 Bl. Com. 99; 1 Steph. Com. 87-'8; Eex v. 
 Cowles, 2 Burr. 850 & seq.) 
 6". The Isle of Man. 
 
 The Isle of Man is a distinct territory from England, and 
 not governed by its laws, nor bound by any Act of Parlia- 
 ment unless specially named. It was formerly a subordinate 
 feudatory kingdom, subject to the Kings of Norway, and 
 at length, through various transfers, granted by Henry VII, 
 (A. D. 1492), to Sir John Stanley, and after sundry grants 
 and forfeitures, it was conferred in 7 James I, (A. D. 1610), 
 on William Earl of Derby, from whose family it passed (A. 
 D. 1735), to the Duke of AthoU, and was finally purchased 
 by the Crown, in 5 Geo. Ill, (A. D. 1765), and thereby its 
 jura regalia were extinguished. (1 Bl. Com. lOo-'tt; 1 
 Steph. Com. 96-'7.) 
 6*'. Islands of Jersey, Guernsey, Sark, Alderney, &c., in the 
 British Channel. 
 
 These islands were parcel of the Duchy of Normandy, and 
 were united to the Crown of England by the first princes of 
 the Norman line. They are governed by their own laws, 
 collected in an ancient book entitled "ie Grand Cousiumier," 
 and are not bound by Acts of Parliament, unless specialli/ 
 named. An appeal lies from their courts to the King in 
 council. (1 Bl. Com. 106 ; 1 Steph. Com 97 ; Hale Hist. 
 Com. Law, 147 (ch. vi): Id. 266, (ch. ix).) 
 7". Isles of Wight, Portland, Thanet, &c. 
 
 These islands are comprised within some neighboring 
 county, and are to all intents and purposes parts of the realm 
 of England. (1 Bl. Com. 105; 1 Steph. Com. 95.) 
 8". Plantations and Colonies. 
 
 The plantations and colonies of England are not subject 
 to Acts of Parliament, unless particularly named. (1 Bl. 
 Com. 108; 1 Steph. Com. 99, 100.) 
 W. C. 
 1'^. Different kinds of Plantations or Colonies in respect to the 
 mode of acquisition ; W. C. 
 l"*. Plantations or Colonies settled by English subjects. 
 
 The settlers carry with them the general laws of Eng- 
 land, e. g., of Inheritance, Marriage, Contracts, Personal 
 Eights, &c., but not the constitutions of a more artificial 
 character, e. g., laws of police, revenue, maintenance of 
 religion, &c., nor local customs. (1 Bl. 107; 1 Steph. 
 Com. 98.) 
 2*. Colonies wrested by conquest or treaty from other 
 powers. 
 
 They re%y^bj5^o^Jaw8^^ntil changed by the 
 
SEC. IV.] COUNTRIES SUBJECT TO THE LAWS OF ENGLAND. 4:7 
 
 sovereign in council, or by parliament, or by such legisla- 
 ture as he or it shall provide; a principle applicable uni- 
 versally in modern times to newly acquired territory. 
 (1 Bl. Com. 107; 1 Steph. Com. 99; United States v. 
 Percheman, 7 Pet. 87.) 
 2"^. Different kinds of Colonies and Plantations, in respect of 
 interior polity. 
 
 They are all modelled after the Government of England. 
 (I Bl.'Com. 108 to 110; 1 Steph. Com. 101.) 
 W. C. 
 1*. Provincial Governments. 
 
 Constituted by Royal Commission, or by Act of Parlia- 
 ment, with a governor appointed by the crown, and a 
 Legislature usually consisting of a council appointed by 
 Royal authority, and a House of Representatives elected 
 by the people, with power to make laws not repugnant to 
 those of England, subject to a Veto-potver possessed by the 
 governor ; e. g., Virginia, from 1624 to 1776. (1 Bl. 
 Com. 108; 1 Steph. Com. 101.) 
 2*. Proprietary Governments. 
 
 Created by grants made by the crown, to individuals, 
 
 in the nature of feudatory principalities, with subordinate 
 
 ■ powers of legislation, (commonly exercised as supra 1'*), 
 
 but subject to the sovereignty of the mother-country; e. g., 
 
 Maryland, prior to 1776. (1 Bl. Com. 108.) 
 
 3*. Charter Governments. 
 
 In the nature of civil corporations, created by Royal 
 charter, with power to make laws for thein interior re- 
 gulation, not contrary to the laws of England, and with 
 such rights and authority as the charter confers. They 
 commonly organize a government after the model of 
 England; e. g., Virginia until 1624, Massachusetts, &c. 
 (1 Bl. Com. 109 ; 1 Steph. Com. 101-'2.) 
 9*. Foreign Dominions, belonging to the person of the King ; 
 e. g., Hanover formerly ; none at present. Hanover was 
 wholly unconnected with the laws of England, and in no wise 
 under the control of the English Parliament ; and since the 
 accession of Queen Victoria, in consequence of the Salique 
 law, (excluding females,) it has had a different sovereign. 
 (1 Bl. Com. 110; 1 Steph. Com. 106-'7; Bouv. Law Diet. 
 V. Salique.) 
 lO*" Possessions in the East Indies. 
 
 These arose out of the acquisitions of the " East India 
 Company," which was constituted, for trading purposes alone^ 
 by 6 Anne c. 17, (A. D. 1708,) out of two commercial cor- 
 porations previouslj' existing. After many mutations tend- 
 ing all in that direction, [viz. by Stat. 13 Geo. Ill, c. 63, (A. 
 D. 1773 ;) 24 Geo. Ill, c. 25, and 26 Geo. Ill, c. 16, (A. D. 
 
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48 COUNTEIES SUBJECT TO THE LAWS OF ENGLAND. [iNTEO. 
 
 1784, 1786 ;) 53 Geo. Ill, c. 155, (A. D. 1813;) and 3 & 4 
 Wm. IV, c. 85, (A. D. 1834,)] the local government of In- 
 dia was committed to a Governor-general, and a board of 
 councillors, with power to make laws for all persons, British 
 or native, thoroughout the territories, subject to the allow- 
 ance of the Board of Directors in London, and subject also 
 to the paramount authority of Parliament. (1 Steph. Com. 
 104 to 106 ;) and at length, in consequence of the Indian re- 
 volt of 1857-8, it was, in 1858, enacted by 21 and 22 Vict. 
 c. 106, that all territories in the possession or under the gov- 
 ermnent of the East India "Company, and all rights vested in 
 the said Company in relation thereto, should become vested * 
 in Her Majesty, and be exercised in her name, through the 
 agency of a Secretary of State. (Broom & Hadl. Com. 
 94.) 
 2^. The Territory immediately subject to the Laws of England. 
 W. C. 
 1". The High Seas, beginning at low-water mark. 
 
 These are subject to tlie jurisdiction of the Admiralty' 
 Courts, and not to that of the courts of common law. Be- 
 tween high and low-water, where the sea ebbs and flows, 
 the common law and the Admiralty have divisum imperium, 
 an alternate jurisdiction. (1 Bl. Com. 110; 1 Steph. Com. 
 108.) 
 2". England, Wales, and Berwick. 
 
 The territory immediately subject to tlie laws of England, 
 including England, Wales, and Berwick, is composed of, (1), 
 Ecclesiastical divisions; and (2), Civil divisions; 
 W. C. 
 1". Ecclesiastical Divisions of tlie Territorv of England, &c. 
 
 1 Bl. Com. Ill to 113; 1 Steph. PL 108 to 114 ; 
 
 W. C. 
 1*. Provinces of Canterbury and York, — presided over each 
 
 by an Arch-bishop. 
 
 The Arch-bishop of Canterbury is called tlie Primate of 
 
 all England. 
 2'\ Dioceses, — each presided over by a Bishop. 
 
 Twenty dioceses in the province of Canterbury, and six 
 
 in that of York. 
 3*- Arch-Deaconries, — each presided over by an Arch-dea- 
 con. Arch-deaconries are sub-divisions of dioceses. 
 4'^- Kural Deaneries, — each presided over formerly by a Eural 
 
 Dean. 
 
 Eural Deaneries are sub-divisions of Arch-deaconaries. 
 5'^. Parishes. 
 
 Parishes are sub-divisions of Rural-Deaneries. They are 
 
 the circuits of ground committed to one parson, vicar, or 
 
 other mini9te£),-g,-^y^e^ by Microsoft® 
 
SEC. IV.] COUNTRIES SUBJECT TO THE LAWS OF ENGLAND. 49 
 
 2"=. Civil Divisions of the Territory of England, &c. 
 
 1 Bl. Com. 114 to 120 ; 1 Steph. PI. 114 to 124. Their 
 formation, or at least their organization, is ascribed to 
 Alfred. They consist of, (1), Tithings, towns, vills or 
 boroughs ; (2), Of hundreds ; (3), Of lathes, rapes, and 
 t^ithtngs, or ridings ; and (4), Of counties ; 
 W. C. 
 1'^. Tithings, Towns, Vills, Boroughs. 
 
 These terms appear to have about the same meaning. 
 The name Tithing, is Saxon, and is so called because ten 
 freeholders, with their families, compose one, each free- 
 holder being surety for the rest. The head-man was called 
 Tithing-man or Borsholder (Borough^ s-ealder) ; and origi- 
 nally each such division had a church, thus corresponding 
 somewhat to parishes. (1 Bl. Com. 114-'15 ; 1 Steph. 
 Com. 114 to 116) ; 
 W. C. 
 ; l^ ■ Cities. 
 
 Large towns which are or have been the seat of a 
 Bishop's See. They usually possess the apparatus of 
 municipal government, with peculiar privileges, quite 
 separate from the county in vihich they are situated. 
 2°. Boroughs. 
 
 Cities, or other towns which send Burgesses to Parlia- 
 ment. 
 3^ Towns. 
 
 In modern times, collections of dwellings, with or with- 
 out corporate privileges, or municipal government. 
 2*. Hundreds. 
 
 Composed of ten Tithings, whose chief officer is a high 
 constable, or bailiif, and formerly provided with a Hun- 
 dred-court for the trial of causes. In the northen counties, 
 Hundreds are called Wapen-takes. The division seems to 
 have been borrowed from Denmark, and to have been de-, 
 rived originally from the Germans. (1 Bl. Com. 115 ; 1 
 Steph. Com. 117.) 
 3'^ Lathes (in Kent), Kapes (in Sussex), and Trithings or 
 Ridings (in Yorkshire). 
 
 Intermediate divisions between Tithings and Counties, 
 prevailing in a few counties. (1 Bl. Com. 116; 1 Steph. 
 Com. 118.) 
 4'*. Counties or Shires. 
 
 Counties, from French Count (Comes), or Earl, the 
 chief executive officer, the Sheriff {vice-comes), being his 
 deputy ; Shires, from Saxon Scir-an, to divide, whence the 
 acting executive was styled Scire-gerefa, shire-reeve, or 
 Sheriif — i. e.. Steward of the Shire. 
 
 The diviSigaff/g-agf Wi§SiMS>f<itL®n.de& for the convenient 
 4 
 
50 COUNTBIES SUBJECT TO THE LAWS OF ENGLAKD. [iNTEO. 
 
 dispatch oi judicial business, in local courts held before the 
 sheriff, in conjunction, for a time, with the bishop. In 
 modern times a similar use is made of the division, but 
 the courts are held by judges of the courts at "Westmin- 
 ster, who make periodical circuits for the purpose, or by 
 county-justices in certain criminal and police cases, at 
 Quarter Sessions, &c. 
 
 The division also subserves the ends of the allotment of 
 representation in parliament, and of taxation for local pur- 
 poses ; 
 W. C. 
 1*. Counties ordinary. 
 
 Under which are ranged at present almost all, if not 
 every one, of the counties of England and Wales. 
 2^- Counties Palatine — Chester, Durham, and Lancaster. 
 Called so a palatio, because the owners or chiefs thereof 
 had jwra regalia, the Earl of Chester and the Bishop of 
 Durham, probably because they bordered upon the in- 
 imical countries of "Wales and Scotland (on which ac- 
 count also there were formerly two other counties-pala- 
 tine — Pembrokeshire and Hexhamshire), and the Duke 
 of Lancaster, perhaps because he was of the blood-royal. 
 But none of these counties-palatine now remain in the 
 hands of a subject, Chester having been united to the 
 Crown by Henry III, Durham by Stat. 6 and 7 Wm. 
 IV, c. 19 (A. D. 1837), and Lancaster by Stat. 1 Henry 
 VII (A. D. 1485). (1 Bl. Com. 117 to 119 ; 1 Steph. 
 Com. 120 to 123.) 
 3^ Isle of Ely. 
 
 Never a county-palatine (though sometimes erroneously 
 so called), but formerly a royal franchise, with jura re- 
 galia, vested in the Bishop of Ely, which, however, were 
 transferred to the Crown by Stat. 6 and 7 Wm. IV, c. 
 87. (1 Bl. Com. 119; 1 Steph. Com. 123.) 
 4r°. Counties corporate. 
 
 Which are certain cities and towns, to which has been 
 granted by the Crown the privilege of being governed by 
 their own officers, and not by those of the county in which 
 they are situated ; e. g., London, York, Bristol, &c. (1 
 Bl. Com. 120; 1 Steph. Com. 123-'4.) 
 
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THE OBJECTS 
 
 THE COMMON AND STATUTE LAW. 
 
 BOOK THE FIRST. 
 OF THE EIGHTS WHICH RELATE TO THE PEESON. 
 
 The objects of the common and statute law, as may be gathered 
 rom the definition of municipal law, and its analysis, (ante p. 22, 
 1'^), are to define and secure rights, and to redress wrongs, so that the 
 whole subject, (omitting the consideration of crimes and punish- 
 ments,) may be classified under the several heads of, I. Eights 
 
 WHICH CONCEEN OE EELATE TO THE PeESON ; II. ElGHTS WHICH 
 
 coNCEEN OE EELATE TO Things ; and III. Modes of secueing 
 
 EIGHTS AGAINST INVASION, AND OF OBTAINING EEDEESS FOR WEONGS ; 
 
 w. c. 
 
 I. The Rights which conceen oe eelate to the Peeson. 
 Eights are correlative to Duties. They are said to be perfect 
 when their existence in no wise depends on the judgment of an- 
 other, e. g., in case of a debt; and imperfect when their existence 
 depends on circumstances to be determined by the discretion of 
 the party who is alleged to owe them, e. ^., in case of charity. A 
 p€r/ee< right may be enforced ; an imperfect one cannot be. 
 
 We are to discuss, (1), The rights which concern or relate to 
 the person, in respect to natural persons ; and (2), In respect to 
 artificial persons, or corporations ; 
 W. C. 
 1^. Eights which concern or relate to the Person, in respect to 
 Natural Persons. 
 
 Eights of this character are either (1), Absolute rights ; or 
 (2), Eelative rights ; » 
 
 W. C. 
 
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52 ABSOLUTE EIGHTS OF INDIVIDUALS. [bOOK I. 
 
 CHAPTER I. 
 
 Of the Absolute Rights of Individuals. 
 
 1"- The Absolute Rights, which relate to the Person, in re- 
 spect to Natural Persons. 
 
 Absolute rights are such rights as are independent of the 
 relations of men in society, and which belong to every one 
 alike. They constitute the liberties of the citizen. (1 Bl. Com. 
 123 & seq.) We may discuss the subject under the heads of, 
 (1), The nature of liberty ;^ (2), The several sorts of absolute 
 rights ; and (3), The solemn declarations and guards of abso- 
 lute rights ; 
 W. C. 
 l^ The Nature of Liberty ; W. C. 
 1*. Natural Liberty. 
 
 The right of disposing of Person and Property at plea- 
 sure, so it be not to the prejudice of another. (1 Bl. Com. 
 126, n (5) ; 2 Burlamaq. Nat. & Polit. Law, Pt. I. c. Ill, 
 §xv.) 
 2^ Civil Liberty. 
 
 Natural liberty so far restrained by human laws (and 
 no farther), as is necessary and expedient for the public 
 advantage. (1 Bl. Com. 125 : Id. 126, n (5).) ' 
 3*. Political Liberty. 
 
 The security with which, from the Constitution and 
 from the established government, the subjects enjoy civil 
 liberty. (1 Bl. Com. 126, n (6).) 
 2\ The Several Sorts of Absolute Rights. 
 
 The several sorts of absolute rights include, (1), The 
 right of personal security; (2), The right of personal lib- 
 erty ; (3), The right of personal property ; and (4), The 
 right ot freedom of science ; 
 W. C. 
 1"^- The Rights of Personal Security. 
 
 1 Bl. Com. 129 & seq ; 3 Bl. Com. 120, &c.; Synops. 
 Crim. Law, 37 & seq. 
 W. C. 
 ■ I''. Security of Life. 
 
 Security of life is guarded even in the womb, it being 
 a felony to bring about abortion ; and if the child be born 
 alive and die by reason of the injury, it is murder. (SjTiops. 
 Crim. Law, 55 ; 1 Bl. Com. 129, 130, & n (11).) An 
 unborn child, though illegitimate, may t9,ke property, if 
 sufficiently described, (e. g., as the child of such a woman). 
 (1 Bl. Com. 130, n (13) ; 2 Lom. Ex'ors, 35.) 
 2^- Security of Limbs, useful in fight, for defence or annoy- 
 ance. * 
 
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CHAP. I.J ABSOLUTE EIGHTS OF INDIVIDUALS. 53 
 
 1 Bl. Com. 130 & seq ; 3 Bl. Com. 121. 
 W. C. 
 1*^. The wilful Disabling of Limbs. 
 
 The wilful disabling of limbs useful in fight, consti- 
 tutes the crime of mayhem at common law. (1 Bl. Com. 
 130 ; Synops. Crim. Law, 67 ; 4 Bl. Com. 205.) 
 2'- Defence of Limbs. 
 
 The necessary defence of one's limbs will excuse even 
 homicide. 
 (1 Bl Com. 130.) 
 3''. Duress per minas. 
 
 The most solemn acts and agreements are invalidated, 
 if extorted by a loell-grounded apprehension of the loss 
 or disabling of limbs. (1 Bl. Com. 130-'31.) 
 4^. Support for Life and Member, provided for the Poor. 
 
 1 Bl. Com. 131. 
 6''. Continuance of Rights of Life and Member, determined 
 only by Death. 
 
 The common law acknowledges two sorts of death, 
 namely, (1), Civil death; and (2), Natural death. 
 W. C. 
 1«. Civil Death. 
 
 Civil death is the state of a person who, though 
 possessing natural life, has lost all his civil rights, and 
 as to them is considered as dead. (1 Bl. Com. 132 ;) 
 W. C, 
 l.*". Modes of Civil Death at Common Law ; W. C. 
 1'. Attainder of treason or felony. 
 
 1 Steph. Com. 132; 4 Bl. Com. 380. 
 2'. Banishment from, or Abjuration of the Realm. 
 1 Bl. Com. 132; Id. 133, n. (15); Bac. Abr. Bar. & 
 F. (M). 
 3'. Entering into Religion, i. e., becoming a monk pro- 
 fessed. 
 
 Even in the times of popery in England, the law 
 of England took no cognizance of monkish profes- 
 sion in any foreign country, and, therefore, this dis- 
 ability is held to be abolished since th.e reformation. 
 (1 Bl. Com. 132 ; Rex v. Lady Portington, 1 Salk. 
 162.) 
 2^. Effect of Civil Death at Common Law. 
 
 The party is regarded as actually dead, his will is 
 admitted to probate, or administration granted, &c. 
 (1 Bl. Com. 132.) 
 S^ Existing state of the law in England. 
 
 There can be no monkish profession in England 
 since the reformation, (and of foreign profession no 
 notice ^,fy|f^%k^)a^^^^|)bjuration of the realm 
 
54 ABSOLUTE EIGHTS OF INDIVIDUALS. [bOOK I. 
 
 as incident to the right of sanctuary, was abolished 
 by Stat. 21 Jac. I, c 28. (1 Bl. Com. 133; 4 Bl. 
 Com. 333.) It would seem, however, that abjuration 
 might arise in other ways. (4 Bl. Com. 124 ; Id. 56.) 
 And the books, since 21 Jac. I, seem to recognize it. 
 (Bogget V. Frier & si., 11 East 301 ;* 2 Inst. 629.) 
 It seems that banishment operates a civil death. (Bac. 
 Abr. B. & F. (M).) 
 
 4". Existing state of the law in Virginia. 
 
 Abjuration, banishment and monkish profession are 
 unknown to the* law of Yirginia, and it is believed 
 that there is no such thing with us as a Civil Death. 
 (Branch v. Bowman, 2 Leigh, ITO; Platner v. Sher- 
 wood, 6 Johns, (N. Y.) 127). 
 
 A sentence to the penitentary]^does not of itself, in- 
 dependently of statute, involve such a consequence. 
 [1 Bl. Com. 133, n. (15); Platner v. Sherwood, 6 
 John, 127] ; but it does lead in Virginia by statutes 
 to a commitment of the convict's estate to a Com- 
 mittee, to be managed very much as if he were dead, 
 (V. C. 1873 c. 206, § 6 to 12); and such conviction 
 is also ground of divorce a vinculo matrimonii. (Y. 
 C. 1873 c. 106, § 6.) 
 
 If one once a resident of Virginia is absent there- 
 from for seven years successively, he is presumed to be 
 dead, unless proved to have been alive within that 
 time. (V. C. 1873 c. 170, § 47; Bac. Abr. Dower, 
 &c., (C), 3; 1 Greenl. Evid. § 41.) 
 
 28. Natural Death; W. C. 
 1". Value set upon Life, as the gift of the Creator. 
 Life is not to be destroyed by the person himself, 
 or by any other, merely upon their own authority, 
 but it may be forfeited for the breach of the laws of 
 society, in very grave cases, for the preservation of 
 society. (1 Bl. Com. 133-'4; Do. 11, 12, 14; Grot, 
 de Jure, &c., B. II, c. 20, § 12, 2.) 
 
 2% Protection to Life afforded by Magna Charta; 
 
 Magna Charta condemns and forbids the arbitrary 
 killing or maiming the subject, without express warrant 
 of law. "Nullus liber homo aliquo modo destruatur, nisi 
 per legale judicium parium suorum aut per legem terrce." 
 (1 Bl. Com. 133 ; 1 Kap. Eng. 290, B. yiii.) 
 3". Security of Body. 
 
 In respect to menaces, assaults, beating and wounding. 
 
 * Note. — It was recognized in Bogget v. Frier & al., merely by a plea averring 
 that the plaintiff was a married woman, whose husband was a native-born citizen, 
 and had not abjured the realm, &c. , and yet that plaintiff was suing alone as &feme 
 sole. A demurrer to the V^^ffijfj^l^^^J^^'hJf'iVi-fi'^M^^ ^as laid on the abjuration. 
 
CHAP. I.] ABSOLUTE EIGHTS OF I1*,DIVID0ALS. 55 
 
 The same propositions are in the main true, as in respect 
 of security of limbs. (1 Bl. Com. 134; 3 Bl. Com. 120, 
 &c.) 
 4^ Security of Health. 
 
 In respect of practices which may annoy or injure it. 
 (1 Bl. Com. 134; Synops. of Grim. Law, 178, &c.; 3 
 Bl. Com. 122.) 
 5*- Security of Reputation. 
 
 In respect of acts of detraction or slander. (1 Bl. 
 Com. 134; Synops. of Crim. Law, 161, & seq. ; 3 Bl. 
 Com. 123 & seq.) 
 2". The Eight of Personal Liberty. 
 
 In discussing the right of personal liberty it is pro- 
 posed to advert (1), To the prohibition by the Great 
 Charter of imprisonment, unwarranted by law; (2), The 
 great importance of protecting the personal liberty of the 
 subject ; (3), The securities provided against the violation 
 of personal liberty; (4), What confinement amounts to 
 imprisonment; (5), Duress of imprisonment; (6), Re- 
 quirements as to warrants of commitment; and (7), 
 Involuntary exile. (1 Bl. Com. 134 ; 3 Bl. Com. 127 & seq. ; 
 W. C. 
 1°. Prohibition by the Great Charter of Imprisonment, un- 
 warranted by law. 
 
 "Nullus liber homo eapiaiur, vel imprisoneiur, nisi per 
 legale judicium parium suorum, vel per legem terrce." (4 
 Bl. Com. 349-'50; 1 Rap. Eng. 290, B. viii.) 
 2^. Great importance of protecting the Personal Liberty of 
 the Subject. 
 
 No engine of tyranny is so oppressive as that of irre- 
 sponsible and capricious imprisonment, nor any so dan- 
 gerous, because it is less likely to create seasonable alarm 
 amongst the people, as was formerly witnessed in France. 
 (1 Bl. Com. 135-'6.) 
 3°. Securities provided against the violation of Personal 
 Liberty; W. C. 
 1'. Securities provided in England. 
 
 The writ of Habeas Corpus — the great citizens' Writ 
 of Right, secured by many statutes, but especially by 
 31 Car. II, enforced by 56 Geo. Ill, c. 100. (1 Bl. 
 Com. 135 ; 1 Steph. Com. 135-'6 ; 3 Bl. Com. 129 & seq.) 
 By means of this writ, the lawfulness of the imprison- 
 ment alone is enquired into, not its j^Msto. {Ex-parte 
 Watkins, 3 Pet. 201, Exparte Kearney, 7 Wheat, 38.) 
 2'. Securities provided in Virginia. 
 
 The securities against the violation of personal lib- 
 erty, provided in Yirginia, relate as well to the Federal 
 
 as to the State government, so that we may observe. 
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56 ABSOLUTE BIGHTS OF INDIVIDUALS. [bOOK I. 
 
 (1), The constitutional guaranties to preserve the writ 
 of habeas corpus; (2), The mode of prosecuting the writ 
 of habeas corpus in the Virginia State courts ; (3), The 
 mode of prosecuting that writ in the courts of the United 
 States ; and (4), The doctrine as to the suspension of the 
 wi'it of habeas corpus. 
 1^. Constitutional guaranties to preserve the writ of 
 Habeas Corpus. 
 
 The Constitution of the United States (Art. I, § ix, 2), 
 and that of Virginia (Art. V, § 14, Const. 1869), provide 
 as to the two governments respectively, that the "privi- 
 lege of the writ of habeas corpus shall not be suspended, 
 unless when in cases of rebellion or invasion, the public 
 safety may require it." 
 2^. The mode of prosecuting the "Writ of Habeas Corpus 
 in the State Courts of Virginia. 
 
 The mode of prosecuting the writ of habeas corpus 
 in the State courts of Virginia may best be exhibited 
 by noting, (1), The courts or judges which may by law 
 grant the writ, and the terms on which it is granted; 
 (2), To whom the writ is addressed, and on whom 
 served; (3), Enforcement of prompt obedience; (4), The 
 judgment upon the writ ; the effect thereof, and mode of 
 enforcement ; (5), Writ of error to judgment ; and (6), 
 Instances of the application of a writ of habeas corpus. 
 V'. The Courts or Judges which may grant the writ, 
 and the terms on which granted. 
 
 By Statute the circuit, corporation, or county coiu'ts, 
 or judges thereof in vacation, upon petition, showing 
 by affidavit, or other evidence, probable cause to believe 
 that the party is detained without lawful aulhorit;/, 
 shall grant the writ, but may previously require bond 
 with surety, in reasonable penalty, not to escape by 
 the way, and to pay the costs and charges awarded 
 against him. (V. C. 1873, c. 153, § 1, 3.) And by the 
 Constitution, power might be (although it has not been,) 
 conferred on the Court of Appeals to grant the writ. 
 (Art. VI, § 2.) 
 
 But it must be observed that the State courts have 
 no authority to award a wiit of habeas corpus so as to 
 obstruct the exercise of the powers of the United States 
 government. The marshal, or other person having a 
 prisoner in custody under the authority of the United 
 States, should make return to such a writ issued by a 
 State court or judge, that the prisoner is held by au- 
 thority of the United States, without producing his 
 body. (Ableman V. Booth, 21 How. 506, 523; Tarble's 
 Case, 13 Wal. 397, 406.) 
 
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CHAP. I.J ABSOLUTE EIGHTS OF INDIVIDUALS. 57 
 
 2". To whom the "Writ is addressed, and on whom served. 
 Addressed to and served on the person who detains 
 the party, or has him in immediate custody, and it is 
 made returnable as soon as may be, before the same 
 or some other court or judge. (V. C. 1873, c. 153, 
 § 2, 4.) 
 
 S*". Enforcement of prompt obedience. 
 
 Three days after service of writ, or if the prisoner 
 has to be brought more than twenty miles, one day 
 more for every twenty miles of such further distance 
 is allowed; and a failure within that time to produce 
 him, with a statement of the cause of the detention, 
 before the court or judge, is punished by a forfeiture 
 of $300 to the petitioner. And the court or judge 
 may proceed as courts are wont to do, to enforce 
 obedience to the WTit, to compel the attendance of 
 witnesses, and to punish contempts. (V. C. 1873, c. 
 153, § 5, 9.) 
 
 4''. The Judgment, effect thereof, and mode of enforce- 
 ment. 
 
 The court or judge, upon the return, and any other 
 evidence, (including the affidavits of witnesses, taken 
 on reasonable notice), shall either discharge or re- 
 mand the prisoner, or. admit him to bail, as may be 
 proper, and adjudge the costs, including that of trans- 
 portation, to be paid as shall seem right. The facts, 
 at the instance of either party, shall be recorded, and 
 the record, if the proceeding is in vacation, shall be 
 signed by the judge, and certified to the clerk of the 
 circuit, corporation or county court for the county or 
 corporation in which the judgment is rendered, as 
 part of its records. The judgment is conclusive unless 
 reversed, save in an action for false imprisonment, 
 and is considered and enforced, even though rendered 
 by the judge in vacation, as if it were a judgment of 
 the court amongst whose records it is entered. (V. 
 C. 1873, c. 153, § 6 7, 8, 9, 10.) 
 
 5''- "Writ of Error to Judgment. 
 
 A writ of error lies as in any other case; and in the 
 discretion of the governor, or of the president of the 
 com't, the co^irt of appeals may be convened specially 
 to consider the case. (Y. C. 1873, c. 153, § 11, 12.) 
 
 6^- Instances of Application of Writ of Habeas Corpus, 
 See Ex-parte Pool & als., 2 Va. Gas. 276 ; McClintic 
 V. Lockridge, 11 Leigh, 253 ; Armstrong v. Stone & 
 ux. 9 Grat. 102 ; Elvira's Case, 16 Grat.561; Leftwich's 
 Case, 20 Grat. 716 ; Jones' Case, Id. 848 ; U. States 
 V. Cottingham, 1 Eob. 615 ; U. States v. Blakeney, 3 
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68 ABSOLUTE EIGHTS OF INDIVIDUALS. [bOOK I. 
 
 Grat. 405 ; TJ. States v. Lipscomb, 4 Grat. 41 ; Goo- 
 ley's Const'al Lim'ns, 339, &c. 
 3». Mode of prosecuting the writ of Habeas Corpus in 
 the Courts of the United States ; W. C. 
 1"- The Courts and Judges whence the writ may be ob- 
 tained. 
 
 From any Court of the United States but from the 
 Supreme Court, only when in the exercise of its ap- 
 pellate jurisdiction. {In re Metzger, 5 How. 176 ; In re 
 Kaine, 14 How. 103;), and also from any Justice o{ the 
 Supreme Court, or Judge of any Circuit or District 
 Court of the United States. (1 Bright. Dig. 301-'2; 
 1 U. S. Stats. 81, § 14 ; 4 U. S. Stats. 634, § 7; 5 U. S. 
 Stats. 539, § 1; 14 U. S. Stats. 385-'6, § 1; 15 U. S. 
 Stats. 44; Eev. Stats. U. S. 143, § 763, & seq.; Exp. 
 Yerger, 8 Wal. 97-'8, 105; McCardle's Case, 6 Wal. 
 324-'5 ; S. C. 7 Wal. 515 ; Exp. Lange, 18 Wal. 166.) 
 3'\ Instances of the application of the writ of Habeas 
 Corpus in the United States Courts. 
 
 See Ex-parie Bollman,4 Cr. 100 ; Ex-parte Watkins, 
 
 3 Pet. 193 ; S. C. 7 Pet. 568 ; Ex-parte Metzger, 5 How. 
 
 176 ; Ex-parie Kaine, 14 How. 103 ; Ex-parte Dorr, 3 
 
 How. 103 ; Ex-parte Randolph, 2 Brock. 488 ; Ableman 
 
 V. Booth, 21 How; 506 ;* Ex-parte Milligan, 4 Wal. 3; 
 
 Ex-parte Yerger, 8 Wal. 97-8 ; Ex-parte Lange, 166.) 
 
 4^. Doctrine as to Suspension of tbe writ of Habeas Corpus. 
 
 Allowed only when, in cases of rebellion or invasion, 
 
 the public safety may require it, which, it would seem, 
 
 is to be judged of exclusively by the legislature. (U. S. 
 
 Const. Art. I, § ix,'2; 2 Stor. Const. § 1342 ; 1 Tuck. 
 
 Bl. App'x, 292; Ya. Const. 1869, Art. Y, § 14.) 
 
 4°. What confinement amounts to Imprisonment. 
 
 The confinement of the person in anywise; e. g., keep- 
 ing one against his will in a private house, forcibly de- 
 taining him in the street, &c. (1 Bl. Com. 136.) 
 5°- Duress of Imprisonment. 
 
 Duress of imprisonment avoids the most solemn acts 
 and agreements thereby extorted, if the imprisonment be 
 illegal ; or if it be illegally perverted. (1 Bl. Com. 136- 
 '7; Cadaval v. Collins, 4 Ad. & El. (31 E. C. L.) 858. 
 6". Bequirements as to Warrants of Commitment. 
 
 Warrants of commitment to prison should be in 
 
 * Note. — The case of Ableman v. Bootli, 21 How. 506, demonstrates with great 
 force that a Habeas Oorpus awarded by a State judge or court has no authority 
 within the limits of the soveignty assigned by the Constitution to the United States. 
 The marshal, or other person haying the prisoner in custody under the authority 
 of the United States, should make a return to such a writ awarded by a State 
 judge or court, making known the authority by which he holds him, but ought 
 not to obey the process (§)i^zB(M)yMier<0GM(B3 Wal. 396, 406, &c.). 
 
CHAP. I.J ABSOLtJTE EIGHTS OF INDIVIDUALS. 59 
 
 writing, under the hand and seal, or at least under the 
 hand, of the officer committing, and should name the party, 
 if his name be known, and express the cause of commit- 
 ment; and if this last be omitted, the jailor is not bound 
 to detain the prisioner. (1 Bl. Com. 137 ; Synops. Grim. 
 Law, 215.) 
 7^- Involuntary Exile. 
 
 Sending a subject out of the country, without his own 
 consent, is violative of personal liberty, and prohibited by 
 the great charter, even though under the pretext of an 
 honorable office, as that of ambassador ; but it is provided 
 for in certain cases of crime by statute in England. (1 
 Bl. Com. 137, & n (18); 4 Do. 401.) 
 3*. The Right of Private Property, 
 1 Bl. Com. 138 & seq. 
 W. C. 
 1"- The Origin of Property. 
 
 The notion of property is founded in the law of Nature, 
 i. e., of God, but is liable to be qualified and restricted, 
 according to the exigences of society, by human law. (1 
 Bl. Com. 138 ; Do. 2 & seq ; Grot. De Jur. Bell & Pac. 
 B. II, c. I, § II, 4, 5; Puffend. B. IV, § VI; Mackin- 
 tosh's Essays, 36.) 
 2". Protection afforded to the Eight of Property by the 
 Great Charier. 
 
 No freeman shall be disseised or divested of his free- 
 hold, or of his liberties, or free custpms, but by the judg- 
 ment of his peers, or by the law of the land. (1 Bl. Com. 
 138-'9 ; 1 Rap. Eng. B. VIII, p. 291.) 
 3". Private property is not to be taken for public uses with- 
 out just compensation. 
 
 1 Bl. Com. 139, & n (19); U. S. Const. Amendments, 
 Art. V; Va. Const. 1869, Art. V, § 14.) 
 4*. No Taxes are to be imposed, save by consent of the peo- 
 ple, or their representatives. 
 
 1 Bl. Com. 140; Va. Const. 1869. Art. I, (Bill of 
 Rights,) § 8 ; Id. Art. X, § 10, 11, 1. 
 4''- The Right of Freedom of Conscience. 
 
 The idea of toleration of diversities of religious belief, but 
 with a marked preference accorded by law to a certain 
 form of faith, had, for a hundred years prior to our revolu- 
 tion, been familiar to the English mind in the mother- 
 country, and in the colonies. Justly regarding true re- 
 ligion as the most important interest of society, it was long 
 accepted as an axiom that the interposition and protection 
 of government were indispensable to preserve and dissemi- 
 nate it. When the Protestant reformation had for Eng- 
 land broken the bonds of Rome, and established the right 
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60 ABSOLUTE EIGHTS OF INDIVIDUALS. [BOOK I. 
 
 of individual judgment in the things which belong to God, 
 the State was constrained to tolerate differences of opinion ; 
 hut the idea still remained unshaken that the direct sup- 
 port and aid of government was required in order to main- 
 tain the purity of religious belief, and to propagate the 
 doctrines of the true faith amongst the people. The total 
 severance of religion from the State, in the interest of true 
 religion, and perfect freedom of conscience, as the most 
 effectual way of promoting sincere piety before God, were 
 ideas not known to the common law, but solemnly promul- 
 gated by the LegislatiTre of Virginia, in October, 1785, be- 
 ing one of the acts of which Mr. Jefferson was the author, 
 reported by the Commission of Bevisal in 1779. (12 Hen. 
 Stats. 84 ; 1 Jeff. Mem. 36-'7, 40.) 
 3". The Solemn Declarations, and Guards of Absolute Eights; 
 W. C. 
 1*. The Solemn Declarations and Guards of Absolute Eights 
 in England ; W. C. 
 1^. Solemn Declarations of Absolute Eights in England. 
 All of them being ■parliamentary declarations only, are 
 repealable by parliament. (1 Bl. Com. 127-8). They 
 include, (1), Magna Charta ; (2), Petition of right ; (3), 
 Habeas corf us act; (4), Bill of rights; and (5), Act of 
 settlement ; 
 W. C. 
 1^ Magna Charta, and its various confirmations. 
 
 Extorted from John by the Barons, A. D. 1215, at 
 Eunnymede, near Windsor. (2 Eoger of Wendover's 
 Chron. 309; 1 Eapin's Eng'd, 285_, B. YIII.). Con- 
 firmed by Henry III, during his minority, particularly 
 by Stat. 9 Hen. Ill, (A. D. 1225); and afterwards by a 
 great number of other statutes, no fewer, according to 
 Lord Coke, than thirty-two. (1 Bl. Com. 128.) 
 
 The following is the famous 29th chapter (Article 
 xlvi of the Cottonian MS, as printed by Eapin), which 
 is the foundation of English and American liberty : 
 
 " Nullus liber capiatur, vel imprisonetur, aui disseisiatur 
 de libera tenemento suo, vel libertaiibus, vel liberis consuetu- 
 dinibus suis, aui uilagetur, aui exuleiur, aui aliquo modo de- 
 siruaiur; nee super eum ibimus, nee super eum miitemus,nid 
 per legale judicium parium suorum, vel per legem ierrcB. 
 Nulli vendemus, nulli negabimus, aui differemus, rectum vel 
 jusiiiiam." (1 Eap. Eng. 290, & n (a), Book VIII ; 4 Bl. 
 Com. 424, n. (3).) 
 2'. Petition of Eight, 3 Car I, c. 1. 
 
 2 Eap. Eng. 270, B. XIX; 1 Bl. Com. 128; 1 Hah 
 Const. Hist, of Eng. 288, 285, & seq. 
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CHAP. I.] ABSOLUTE EIGHTS OF INDIVIDUALS. 61 
 
 The petition of right declares that no tax, tallage, aid, 
 gift, benevolence, or such like charge, shall be levied 
 without consent of parliament ; 
 
 That p.0 person shall be deprived of liberty, property 
 or life, but by the la-n-ful judgment of his peers, or by 
 the law of the land; 
 
 That neither the command of the King, nor of the 
 Privy Council, shall be a suflScient warrant for imprison- 
 ment, luitliout legal cause shown, nor any answer to the 
 writ of habeas corpus; 
 
 That soldiers shall not be billeted upon the people ; 
 
 That no man shall be adjudged of life or limb by any 
 summary course, as by martial law, or otherwise, nor by 
 virtue of any royal commission, but only according to 
 the laws of the realm; 
 
 That no exemption shall be allowed from the punish- 
 ments denounced against offenders by the laws of the 
 realm. 
 3*. Habeas Corpus Act, 31 Car. II, c. 2. 
 
 1 Bl. Com. 128 ; 3 do. 136 ; 3 Hal. Const. Hist. Eng. 
 & seq. 
 
 The habeas corpus act requires the Lord Chancellor or 
 any of the twelve (now eighteen) judges in vacation, 
 under heavii penalties, and the court of chancery, and the 
 courts of Westminster in term, to grant the writ of 
 habeas corpus immediately, upon complaint of illegal 
 imprisonment, and to discharge any person confined 
 without due warrant of law, and for lawful cause. (3 
 Bl. Com. 136-'7; Bac. Abr. Hab. Corp. (B).) 
 4*. Bill of Rights, 1 Wm. & M. stat. 2, c. 2. 
 
 The Bill of Rights of England is the declaration de- 
 livered by the Lords and Commons to the Prince and 
 Princess of Orange, 13 Feb. 1688, and afterwards en- 
 acted in Parliament, when they had become king and 
 queen, setting forth a summary of the most important 
 popular rights, and claiming them as the " ancient and 
 undoubted rights and liberties" of the people of Eng- 
 land. (2 Rap. Eng. 794, B. XXIV; 1 Bl. Com. 128 ; 3 
 Hal. Const. Hist, of Eng. 77.) 
 5'. Act of Settlement, 12 & 13 Wm. Ill, c. 2. 
 
 The Act of Settlement limits the crown to the Princess 
 Sophia of Brunswick (granddaughter of James I), "and 
 the heirs of her body, being Protestants," and re-asserts 
 the same "ancient and undoubted rights and liberties," 
 together with some new provisions. (1 Bl. Com. 128 ; 
 Id. 216; 2 Steph. Com. 489-'90; 3 Hal. Const. Hist. 
 134.) 
 3". The Guards for the Absolute Riglits provided in England. 
 
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62 ABSOLUTE EIGHTS OF INDIVIDUALS. [bOOK I. 
 
 1 Bl. Com. 141 & seq. ; 2 Steph. Com. 490 & seq. ; 
 W. C. 
 
 1*. The constitution, powers and privileges of Parliament. 
 1 Bl. Com. 141; Id. 146 & seq.; 2 Steph. Com. 490; 
 Id. 347 & seq. 
 2'. The limitation of the King's prerogative, by bounds 
 certain and notorious. 
 
 1 Bl. Com. 141 ; Id. 237 & seq. ; 2 Steph. Com. 494 
 & seq. 
 3*. The free and uncontrolled dispensation of the law in 
 the ordinary courts of justice. 
 
 The emphatic words of Magna Charta, spoken in the 
 person of the king, who- in judgment of law (says Sir 
 Edw. Coke), is ever present, and repeating them in all 
 his courts, are these : " Nulli vendemus, nulli negabimus, 
 aut differemus rectum vel justitiam." (1 Bl. Com. 141-2; 
 2 Steph. Com. 490 & seq.) 
 4*. The Eight of petitioning the King, or either house of 
 Parliament, for redress. 
 
 1 Bl. Com. 143; 2 Steph. Com. 493. 
 5*. The Bight of having arms for defence. 
 1 Bl. Com. 143-'4. 
 2*. The solemn Declarations and Guards of Absolute Rights 
 in Yirginia; 
 
 These declarations and safeguards are not, as in Eng- 
 land, merely such as the ordinary legislature provides, and 
 which therefore it may at pleasure dispense with, but they 
 are declarations and safe-guards provided by the constitu- 
 tion, or organic law, which has received the solemn and 
 direct sanction of the people themselves, in their highest 
 sovereign capacity, and which is a law to the legislature, all 
 whose acts transcending it are void. The difference, al- 
 though it has proved less important than had been fondly 
 hoped, is not to be despised, and is of great value so far as 
 the observance of the constitution is secured by the struc- 
 ture of the government, and the equilibrium of its depart- 
 ments ; 
 W. C. 
 l"*. The safe-guards in Virginia, of the Rights of Personal 
 Security, and Personal Liberty. 
 
 See Cooley's Const. Lim'ns, 256 & seq., 295 & seq. 
 W C. 
 1'. Safe-guards against encroachments hy the State Govern- 
 ment; W. C. 
 is. Prohibition of ex post facto laws. 
 
 Const. U. S. Art. I, § x, 1 ; Va. Const. 1869, 
 Art. V, § 14; Fletcher v. Peck, 6 Cr. 87; Cummings 
 
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CHAP. I.J ABSOLUTE EIGHTS OF INDIVIDUALS. 63 
 
 V. Missouri, 4 Wal. 277; Exp. Garland, 4 "Wal. 333, 
 374; 2 Stor. Const. § 1373; Gut's case, 9 Wal. 35. 
 2«. Prohibition of Bills of Attainder. 
 
 Const. U. S. Art. I, § x, 1 ; Va. Const. 1869, Art. 
 V, § 14; 2 Stor. Const. § 1344; Id. § 1373; Drehman 
 v. Stifle, 8 Wal. 601. 
 38. Suspension of Writ of Habeas Corpus prohibited, , 
 unless when in cases of invasion or rebellion, the pub^ 
 lie safety may require it. 
 
 Va. Const. 1869, Art. V, § 14. 
 4^. Prohibition of General Warrants, to search unnamed 
 places, or to arrest unnamed persons. 
 
 Ya. Const. 1869, Art. I, (Bill of Eights), § 12. 
 5^. Prohibition of excessive bail, excessive fines, and of 
 cruel and unusual punishments. 
 
 Va. Const. 1869, Art. I, (Bill of Eights), § 11. 
 6^. In Criminal prosecutions, right secm'ed to demand 
 cause and nature of accusation, to be confronted with 
 accusers and witnesses, and to call for evidence in one's 
 favor. 
 
 Va. Const. 1868, Art. I, (Bill of Eights), § 10. 
 7^. Trial secured by impartial jury of vicinage, whose 
 unanimous consent is required to convict. 
 
 Va. Const. 1869, Art. I, (Bill of Eights), § 10. 
 8^. Self-crimination not to be compelled. 
 
 Va. Const. 1869, Art. I, (Bill of Eights), § 10. 
 9^. Slavery and involuntary servitude (except for crime), 
 abolished, and prohibited for ever. 
 
 Const. U. S. Amendm't XIII; Va. Const. 1869, Art. 
 I, (BiU of Eights), § 19. 
 10^. No State to deprive any person of life, liberty, or 
 property without due process of law, nor to deny to 
 any person within its jurisdiction equal protection. 
 Const. U. S. Amendm'ts, Art. XIV. § 1. 
 2'. Safe-guards against encroachments on Eights of Per- 
 sonal Security, and Personal Liberty, by the Federal 
 Government; W. C. 
 Is. Prohibition of expost facto laws. 
 
 Const. U. S. Art. I, § ix. 3; Fletcher v. Peck, 6 Cr. 
 87; Calder v. Bull, 3 Dall, 386; Cummings v. Mis- 
 souri, 4 Wal. 277; Ex-parte Garland, 4 Wal,, 333; 2 
 Stor. Oonst. § 1345 ; Id. § 1373. 
 2s. Prohibition of Bills of Attainder. 
 
 Const. U. S. Art. I, § IX, 3; 4 Bl. Com. 259; 2 
 Stor. Const. § 1344. 
 36. Suspension of the Writ of Habeas Corpus prohibited, 
 unless when in case of invasion or rebellion, the public 
 safety may require it. 
 
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64 ABSOLUTE EIGHTS OF INDIVIDUAXS. [bOOK I. 
 
 Const. U. S. Art. I, § ix, 2; 2 Stor. Const. § 1338 
 & seq. 
 4s. Prohibition of General Warrants, to searcli unnamed 
 places, or to arrest unnamed persons; and also the 
 quartering of soldiers in private houses. 
 
 Const. U. S. Amendm't IV; Id. Art. Ill; 2 Stor. 
 Const. § 1900 & seq. 
 5^. Prohibition of excessive bail, excessive fines, and of 
 cruel and unusual punishments. 
 
 Const. U. S. Amendm't VIII; 2 Stor. Const. § 
 1903-'4. '' 
 
 6^. Prosecutions for capital, or otherwise infamous crimes, 
 to be only on presentment or indictment of a Grand 
 Jury, except in cases arising in the land or naval 
 forces, or in the militia, when in actual service in time 
 of war or public danger. 
 
 Const. U. S. Amendm't V; 2 Stor. Const. § 1784 
 & seq. ; Ex-parte Milligan, 4 Wal. 3. 
 7^. No one for the same oflfence to be put twice in jeo- 
 pardy of life or limb. 
 
 Const. U. S. Amendm't V; 2 Stor. Const. § 1787. 
 8s. Self -crimination not to be compelled. 
 
 Const. U. S. Amendm't V; 2 Stor. Const. 1788. 
 9^. None to be deprived of life, liberty, or property with- 
 oiit due process of law. 
 
 Const. U. S. Amendm't V; 2 Stor. Const. 1788-'9. 
 10^. Accused to enjoy the right to a speedy, and public 
 trial, by an impartial jury of the State and district 
 wherein the crime was committed. 
 
 Const. U. S. Amendm't VI; 2 Stor. Const. § 1791; 
 Gut's case, 9 Wal. 37. 
 11^. Accused to be informed of the nature and cause of 
 the accusation; to be confronted with the witnesses 
 against him ; to have compulsory process for witnesses 
 in his favor ; and to have counsel. 
 
 Const. U. S. Amendm't VI; 2 Stor. Const. § 1792 
 & seq. 
 2". The safe-guards in Virginia, of the Kight of Private 
 Property; W. C. 
 1*. Safe-guards against encroachments by the State Govern- 
 ment; W. C. 
 1'. Prohibition of the taking of private property for 
 public uses, without just compensation. 
 
 Va. Const. 1869, Art. V, § 14; 2 Stor. Const. § 1790 ; 
 
 Crenshaw v. Slate, Riv. Co., 6 Eand. 245 ; Jas. Eiv. 
 
 & Kan. Co. v. Turner, 9 Leigh, 313 ; Jas. Eiv. & Kan. 
 
 Co. V. Thompson & als., 3 Grat. 270; Pumpelly v. 
 
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CHAP. I.] ABSOLUTE EIGHTS OF INDiyiDUALS. 65 
 
 Gr. Bay Co., 13 "Wal. 166; Loan Assoc'n. v. Topeka, 
 20 Wal. 655; Cooley's Const. Lim. 351 & seq. 
 2^. Prohibition of laws impairing the obligation of Con- 
 tracts. 
 • -■■ Const. U. S. Art. I, § x, 1 ; Va. Const. 1869, Art. 
 
 Y, § 14; Bronson v. Kinzie & als., 1 How. 311; Mc- 
 Cracken v. Hayward, 2 How. 608; Von Hoffman v. 
 City of Quincy, 4 Wal. 548 ; Curran v. Arkansas, 15 
 How. 319 ; Taylor v. Stearns & als., 18 Grat. 244, 262, 
 272 ; Quackenbush v. Danks, 1 Denio, (N. Y.) 128 ; 
 S. C. 3 Denio, 594; State v. Oarew, 13 Richards. Law, 
 (S. C.) 506; 2 Stor. Const. § 1374 & seq.; White v. 
 Hart, 13 Wal. 646; Bk. of Old Domin'n v. McVeigh, 
 20 Grat. 457; Homestead cases, 22 Grat. 288; Antoni 
 V. Wright, 22 Grat. 841, & seq. ; Gunn v. Barry, 15 
 Wal. 622. 
 3*. Reservation of jury-trial in controversies respecting 
 property, and suits between man and man. 
 
 Va. Const. 1869, Art. I (Bill of Rights), § 13. ' 
 4*. Taxation to be only by consent of the people, or their 
 representatives. 
 
 Va. Const. Art. I (Bill of Rights), § 8. 
 6^. Taxation to be equal and uniform, and ad valorem. 
 
 Va. Const. 1869, Art. X, § 1 to 6. 
 6«. State-debt prohibited, (except in a few cases, e. g., 
 public defence, &c.,) whether State be principal or 
 surety. 
 
 Va. Const. 1869, Art. X, § 7, 12, 13 to 15. 
 7^. Proliibition of the suspension of laws, save by the 
 legislature. 
 
 Va. Const. 1869, Art. I (Bill of Rights), § 9. . 
 8^. No money to be paid out of the State-treasury save 
 in pursuance of appropriations made by law; and all 
 acts of appropriation to be determined by ayes and noes 
 recorded, and only by a majority of all the members 
 elected to each house. 
 
 Va. Const. 1869, Art. X, § 10, 11. 
 9*. Prohibition of Duty on Imports or Exports, &c. 
 
 Const. U. S. Art. I, § x, 2 ; 1 Stor. Const. § 1016 & 
 seq. 
 2*. Safe-guards against encroachments on Private Pro- 
 perty by the Federal Government; W. C. 
 1«. Prohibition of the taking of private property for 
 public uses, without 'just compensation. 
 
 Const. U. S. Amendm'ts V; 2 Stor. Const. § 1790; 
 2 Kent's Com. 275-'6; 1 Tuck. Bl. Appx. 305-'6. 
 2^. Reservation of Jury-trial in Suits at Common law, 
 where the value exceeds $20. 
 
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66 ABSOL0TE EIGHTS OF INDIVIDUALS. [bOOK I. 
 
 Const. U. S. Amendm'ts Y; 2 Stor. Const. § 1769 
 & seq. 
 3*. Direct taxation, (i. e. of lands and persons,) to be ap- 
 portioned amongst the States, according to population ; 
 Indirect to be uniform. 
 
 Const. U. S. Art. I, § ii, 3; Id. § viii, 1; 1 Stor. 
 Const. § 954 & seq.; Id. § 630 & seq.; Id. § 951, &c.; 
 Yeazie Bank v. Fenno, 8 Wal. 533. 
 4«. Prohibition of Duty on Exports. 
 
 Const. U. S. Art. I, § ix, 5 ; 1 Stor. Const. § 1013 & seq. 
 5*. Prohibition of pioference of ports of one State over 
 those of another. 
 
 Const. U. S. Art. I, § ix, 6. 
 3®. The Safe-guards in Yirginia, of the Right of Freedom 
 
 of Conscience ; "W. C. 
 1'. Safe-guards against encroachments by the State govern- 
 ment; W. C. 
 1*. Declaration that all men are equally entitled to the 
 free exercise of religion, according to the dictates of 
 conscience. 
 
 Ya. Const. 1869, Art. I (Bill of Rights), § 18. 
 2*. Prohibition of any restraint in respect of religious 
 worship, or belief, or support of ministry; or of reli- 
 ■ gious test, &c. (Ya. Const. 1869, Art. Y, § 14.) 
 2'. Safe-guards against encroachments by the Federal gov- 
 ernment; W. C. 
 
 Congress is to make no law respecting an estabHsh- 
 
 ment of religion, or prohibiting the free exercise thereof. 
 
 (Const. U. S. Amendm'ts, I; Cooley's Const. Lim. 467 
 
 & seq.) 
 
 4*. The constitutional provisions intended to secure all these 
 
 Rights; W. C. 
 
 1'. Against encroachments by the State govemmJent; W. C. 
 
 1^. Freedom of the press secured, and also of speech. 
 
 Ya. Const. Art. I (Bill of Rights), § 14. 
 2*. Declaration that equal civil and political rights and 
 public privileges belong to all citizens of the State. 
 
 Ya. Const. 1869, Art. I (Bill of Rights), § 20; 
 Const. U. S. Amendm'ts. Art. XIII, § 1 ; Id. Art. XIV, 
 
 §1. 
 3*^. Declaration that a Militia is the natural and safe de- 
 fence of a free State ; that standing armies in time of 
 peace are dangerous to liberty, and that in all cases 
 the military should be subordinate to the civil power. 
 (Ya. Const. 1869, Art. I (Bill of Rights), § 15.) 
 2'. Constitutional provisions to secure all the Absolute 
 Rights against encroachments by the Federal government ; 
 
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CHAP, n.] THE LEGISLATTIRE OE PARLIAMENT. 67 
 
 Is. Freedom of speech and of the press secm-ed. 
 
 Const. TJ. S. Amendments, Art. 1; Cooley'e Const. 
 Lim. 414 & seq. 
 28. Eight peaceably to assemble, and petition Govern- 
 ment for a redress of grievances, secured. 
 Const. U. S. Amendm'ts. Art. I. 
 3s. Right to keep and bear arms not to be infringed. 
 
 Const. U. S. Amendm'ts. Art. II; Cool. Const. Lim. 
 350. 
 2". Kelative Eights which concern the Person, in respect to 
 Natural Persons. 
 
 Being rights, with their correspondent duties, which con- 
 cern or relate to the person, and belong to persons, as they 
 are members of society, and stand in various relations to each 
 other, either (1), Public, or (2), Private. (1 Bl. Com. 145); 
 W. C. 
 1". The Public Relations, and the rights and correspondent 
 duties belonging thereto. 
 
 We are to discuss under this head, (1), The rights which 
 concern persons in the relation of magistrates; and (2), The 
 rights which concern persons in the relation of people ; 
 W. C. 
 l"". The Relation of Magistrates, and the rights and corres- 
 pondent duties belonging thereto; 
 
 Magistrates are either (1), Supreme; or (2), Subordi- 
 nate; and the doctrines touching the rights and corres- 
 pondent duties growing out of the relation are to be dis- 
 posed accordingly. (1 Bl. Com. 146 & seq.) 
 W. C. 
 1". Supreme Magistrates. 
 
 The supreme magistracy in England consists of (1), 
 The Supreme Legislature, or Parliament ; and (2), The 
 Supreme Executive, or King; as to the Judiciary, that is 
 treated by Blackstone as an emanation from, and a branch 
 of the Executive department. 
 W. C. 
 
 CHAPTER II. 
 
 Of the Paeliament. 
 
 V. The Legislature in England, or Parliament. 
 
 We may explore what is most necessary to be known 
 touching the parliament of England, or rather, as it 
 now is, of Great Britain and Ireland, by adverting to 
 (1), The original and antiquity of parliament; (2), The 
 
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68 THE LEGISLATURE OE PAELIAMENT. [bOOK I. 
 
 • 
 
 manner of the summons and assembling of parliament; 
 (3), The constituent parts of the parliament; (4), The 
 laws and customs of parliament; (5), The mode of pro- 
 ceeding in parliament; and (6), The mode of dissolution 
 of parliament. (1 Bl. Com. 146 & seq. ; Bac. Abr. Court 
 of Parliament ; Id. Statute.) 
 W. C. / 
 
 Is. The original and antiquity of Parliament. 
 
 A general council has been held immemorially in 
 England, under the several names of michel-synoth, or 
 great synod, mieh^gemote, or great meeting, wittena- 
 gemote, or meeting of wise men, commune concilium, 
 curia magna, assisa generalis, and since the Conquest, 
 Parliament, or assembly for conference. (1 Bl. Com. 
 147, & seq. ; Bac. Abr. Court of Parliament (A) ; 1 
 Hal. Const. Hist, of Eng. 2 & seq.; Stubbs' Const. 
 Hist. 566.) 
 2g. The Manner of the summons and assembling of Par- 
 liament. 
 
 Summoned by the King's ivrit, issuing out of chan- 
 cery, and addressed to each lord of parliament, com- 
 manding his attendance; and to every sheriff" of every 
 county, for the election of knights, citizens and bur- 
 gesses, within their respective counties, (i Bl. Com. 
 150; Bac. Abr. Court of Parliament, (C).) 
 
 The Convention-parliaments, which in 1660 restored 
 Charles II, and in 1688 disposed of the crown and 
 kingdom to Wilham and Mary, are justified by the 
 peculiar necessities of those occasions. (1 Bl. Com. 
 151-'2 ; 2 Hal. Const. Hist. 225, 238 ; 3 do. 70 & seq.) 
 At the return of the writ, the parliament does not 
 begin but in the presence of the Eing, either in person 
 or by representative, empowered by letters-patent, under 
 the great seal, if the King be out of the realm, or by 
 commission under the great seal, if he be within it. 
 (Bac. Abr. Court of Parliament, (C).) 
 3^. The constituent parts of the Parliament. 
 
 The constituent parts of the parliament are, (1), The 
 king or queen ; (2), The lords, spiritual and temporal ; 
 and (3), The commons. Each part has a negative, or 
 necessary voice in making all laws. (1 Bl. Com. 153 
 & seq ; Bac. Abr. Court of Parliament, (C).) 
 W. C. 
 V\ The King or Queen reigning. 
 
 1 BL Cora. 153 & seq. 
 2'\ The lords spiritual, and the lords temporal. 
 
 They seem to have been originally designed as dis- 
 tinct esfyt&tif&St9^Wti^%Wlf^^^ -^cts of Parliament, 
 
CHAP. II.J THE LEGISLATURE OR PARLLiMENT. 69 
 
 but in practice, they intermix in debate, and in votes, 
 
 and a raajority of the whole determines the action of 
 
 the assembly. (1 Bl. Com. 156.) 
 
 W. C. _ 
 
 1'. What lords spiritual are peers of Parliament. 
 
 The Archbishops of Canterbury and York, re- 
 spectively, one Irish Archbishop, and twenty -four 
 English bishojDS, and tln-ee Irish bishops, the Irish 
 prelates sitting by rotation. (1 Steph. Com. 358 ; 1 
 Bl. Com. 155, n (8); 1 Broom. & H. Com. 329, n 
 
 .(e)),* 
 2'. What temporal lords are peers of Parliament. 
 
 All the peers of England, by whatever title of no- 
 bility distinguished, dukes, marquises, earls, vis- 
 counts, or barons ; sixteen peers chosen for one parlia- 
 ment, who represent the Scottish nobility ; and twenty- 
 eight Irish peers, chosen for life. (1 Bl. Com. 157 ; 
 Id. 97 ; 2 Steph. Com. 359-'60.) 
 3'. The peculiar privileges of the lords, besides their 
 judicial capacity. 
 
 1 Bl. Com. 167-8 ; Steph. Com. 373 & seq. 
 W. C. 
 
 I'' To hunt iu the King's forests, severally, going and 
 returning. 
 
 1 Bl. Com. 167. 
 2*- To be attended in their own body, by the 
 judges, and the law-officers of the crown, ad 
 tractandum, et consilium impendendum, though not 
 ad consentiendum. 
 
 1 Bl. Com. 168 ; 2 Steph. Com. 373-'4:. 
 3*^. To make each, another lord of Parliament his 
 proxy, to vote for him in his absence. 
 
 Originally, this privilege was by license from the 
 crown, which the King has sometimes refused, but 
 now it is such a mere form that a license is pre- 
 sumed. (1 Bl. Com. 168, n (30) & (31) ; 2 Steph. 
 Com. 374.) 
 4t^ To enter each, a Protest, with his reasons, on the 
 journals, against any vote from which he dissents. 
 1 Bl. Com. 168, & n (32) ; 2 Steph. Com. 374. 
 6''- That bills affecting the right of the peerage shall 
 originate in the House of Lords, and shall suffer no 
 changes in the Commons. 
 1 Bl. Com. 168. 
 6"^ That the sixteen representative peers of Scotland, 
 
 * Note. — The recent dis-establiehment of the Irish Chiirch doubtless deprives 
 it of representation in Parliament. 
 
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70 THE LEGISLATUEE OE PAELIAMENT. [bOOK I. 
 
 and the twenty-eight representative peers of Ire- 
 land, shall be chosen by the nobility of those 
 countries respectively, the Scots for one parliament, 
 the Irish for life. 
 
 1 Bl. Com. 169; Id. 97; 2 Steph. Com. 375. 
 3'^. The Commons, or Representatives of the people. 
 Let us observe in this connection, (1), Who com- 
 pose the Commons house of parliament ; (2), Election 
 of members of parliament ; (3), The peculiar privileges 
 of the Commons. (1 Bl. Com. 158 & seq; Id. 169 & 
 seq ; 2 Steph. Com. 362 & seq ; Id. 375 & seq.) 
 W. C. 
 V. Who compose the Commons house of Parliament. 
 Representatives chosen by the people ; those from 
 the counties (elected by the proprietors of lands, &c.), 
 being styled Knights of Shires ; those from cities and 
 boroughs. Citizens and Burgesses ; and those from the 
 tvro universities, simply Representatives. (1 Bl. Com. 
 159 ; 2 Steph. Com. 362-'3.) 
 2'. Elections of Representatives in Parliament. 
 
 Herein consists the exercise of the democratical part 
 of the Constitution of England, whereby the requisite 
 honesty of intention towards the body-politic is sup- 
 posed to be blended with the required wisdom, know- 
 ledge, and capacity for deliberation. (1 Bl. Com. 
 170-'71.) We will take notice of, (1), The qualifica- 
 tions of the electors ; (2), The qualifications of the 
 elected; and (3), Writs of election and modes of 
 proceeding therein ; 
 
 W. C. 
 l'^. The Qualifications of the Electors, and the Inca- 
 pacities which Disqualify. 
 
 The object is to exclude such persons as, from 
 their dependent position, are esteemed to have no 
 will of their own; such as have proved by their 
 ill-conduct their unfitness to exercise so important 
 a trust ; and such as want the requisite discretion 
 and understanding to exercise it ; 
 W. C. 
 1'. Qualifications of Electors ; W. C. 
 1™. Qualifications of Electors of Knights of Shires ; 
 
 W. C. 
 1". The estate in respect of which they may vote. 
 Freeholds, and certain leaseholds, of a pre- 
 scribed value and duration. (2 Steph. Com. 
 380 ; 2 Wm. IV, c. 45.) 
 
 ' ^^^M-'l^^m^m^ been dull/ registered, ^ 
 
CHAP. II.] THE LEGISLATUEE OE PAELIAMEHT. 71 
 
 which is required to be done annually, by the 
 
 overseers of parishes. (2 Steph. Com. 381-'2.) 
 
 2". Qualifications of Electors oWitizens and Burgesses; 
 
 W. C. 
 
 1°. The estate, &c., in respect of which they may 
 
 vote. 
 
 It is necessary for the most part to be a " Bur- 
 gess or freeman," or " Freeman and liveryman," 
 or " Freeholder or burgage-tenant," with various 
 qualifications. (2 Steph. Corn. 284 & seq; 2 
 Wm. lY, c. 45.) 
 2°- Eegistration. 
 
 As in the counties. (2 Steph. Com. 388.) 
 3". Qualifications of Electors of Representatives of 
 the two Universities, and of that of Dublin. 
 
 The representation of the two Universities was 
 only permitted regularly, temp. Jac. I ; and that 
 of Dublin, since the union with L-eland. (1 Bl. 
 Com. 174 ; 2 Steph. Com. 384 ; Id. 393.) 
 2'. Incapacities and (fisqualifications of Electors. 
 2 Steph. Com. 389. 
 2". Qualifications of the Elected. 
 
 The qualifications of the elected are determined 
 in part by the law and custom of parliament, de- 
 clared by the House of Commons, and in part by 
 certain statutes. (1 Bl. Com. 175, &c.; 2 Steph. 
 Com. 390 & seq.) 
 W. C. 
 1^. Qualifications in respect to citizenship, age, and 
 understanding. 
 
 Aliens-born, minors, idiots, and mad-men, are 
 disqualified. (2 Steph. Com. 390.) 
 2K Qualifications in respect to previous conduct and 
 character. 
 
 Persons attainted of treason or felony, outlawed 
 on criminal prosecution, guilty of bribery or treat- 
 ing at elections (for that time and place), and de- 
 clared bankrupt (for the next twelve months, &c.|, 
 are disqualified. (2 Steph. Com. 390 ; 1 Bl. Com. 
 175.) 
 31 Qualifications in respect to the occupancy of some 
 other offiee or post (ministerial or judicial), or 
 some emolument from the crown. 
 
 Peers (of England), judges, clergymen, sheriffs, 
 mayors, and bailiflfs (within their respective juris- 
 dictions) ; occupants of any office under the crown ; 
 contractors and pensioners, are disqualified. (2 
 Steph. Com. 392 ; 1 Bl. Com. l75-'6.) 
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72 THE LEGI8LATUEE OE PAELIAMENT. [bOOK I. 
 
 4^. Qualifications in respect of Estate; 
 W. 0. 
 1™. Qualifications for Knights of Shires. 
 
 Keal estate, &c., to the clear annual value of 
 £600, &c. (2 Steph. Com. 392; 1 Bl. Com. 
 176.) 
 2™. Qualifications for Citizens and Burgesses. 
 
 Eeal estate, &c., to the clear annual value of 
 £300, &c. (2 Steph. Com. 393; 1 Bl. Com. 
 176.) 
 3™. Qualificatiolis for members of the Universities 
 of Oxford and Cambridge, and of Trinity Col- 
 lege, Dublin. 
 
 No estate required. (2 Steph. Com. 393.) 
 5^. Special Disqualifications. 
 
 A disqualification may arise for that Parliament, 
 by vote of House of Commons, and for ever by 
 statute. (2 Steph. Com. 393 ; 1 Bl. Com. 176, and 
 n (25).) 
 
 The exclusion of lawyers by ordinance of House 
 of Lords, (6 Hen. IV), was unconstitutional. The 
 parliament is branded with the name ofparliamen- 
 tum indodum, or the lack-learning parliament, and 
 Lord Coke says, that " there was never a good law- 
 made thereat." (1 Bl Com. 176.) 
 3*^. Writs of Election, and modes of proceeding 
 therein. 
 
 As soon as the parliament is summoned, the lord 
 chancellor (or if the vacancy happen during the 
 sitting of parliament, the speaker, by order of the 
 house, &c.,) sends his warrant to the clerk of the 
 crown in chancery; who thereupon issues writs of 
 election to the sheriffs, &c. (2 Steph. Com. 394 & 
 seq.; 1 Bl. Com. 177 & seq.) 
 3*. The peculiar privileges of the Commons. 
 
 ■ It is the peculiar privilege of the Commons to 
 originate all bills granting subsidies or parliamentary 
 aids, or levying money in any way, whether by taxes, 
 or pecuniary mulcts for offences ; — ^it being supposed 
 that as they are a temporary elective body, freely 
 nominated by the people, they are less likely to be 
 improperly influenced by the Crown, than the per- 
 manent hereditary body of the Lords, and so con- 
 stitute the safest depository of the vital power of 
 taxation. (1 Bl. Com. 169-'70 ; 2 Steph. Com. 375.) 
 4^. The laws and customs of parliament considered as 
 one aggregate body. 
 
 1 Bl. QsigitiiSd 1^ mt0rc8(^:'®v'^- Com. 364; 
 
CHAP. II.] THE LEGIBLATUKE OB PAKLIAMKNT. 73 
 
 1''- The power and iuriBdiction of parliament is trans- 
 cendent and absolute, confined within no bounds. 
 1 Bl. Com. 160 & seq. ' 
 2^- Each house is the exclusive judge of the right of its 
 members to sit, and of its own privileges. 
 1 Bl. Com. 164 & seq. 
 3'^. The most notorious privileges of either house. 
 
 The most important privileges of parliament con- 
 sist of the privilege of speech, (but not of publication 
 of speech), and freedom fi-om imprisonment save for 
 indictable offences, in which case the house to which 
 the person accused belongs, is entitled to be imme- 
 diately informed of the arrest, and of the cause of it. 
 (1 Bl. Com. 164 & seq.) 
 5^ Mode of proceeding in Parliament; "W. C. 
 l'^. Each house has its Speaker. 
 
 The speaker of the House of Lords is the lord chan- 
 cellor, or keeper of the great seal, or any other ap- 
 pointed by the King's commission. The speaker of 
 the House of Commons is elected by the house, but 
 must be approved by the King. In either House a 
 majority determines. In the House of Commons, the 
 speaker never votes, save in case of a tie; in the 
 Lords' House, the speaker, if a member, votes with 
 the rest, but has no casting voice. (1 Bl. Com. 181, 
 & n (73).) 
 2'*. Mode of passing Bills. 
 
 1 Bl. Com. 181 & seq. ; 2 Steph. Com. 405 & seq. ; 
 Ante. Introd. § III, 2^ 
 3*^. Mode of Adjournment, and of Prorogation; 
 
 An adjournment is no more than a continuance of 
 the session from one day to another, as the word signi- 
 fies, and may be done by either house separately. It 
 does not put an end to unfinished business, which at 
 the next meeting may be proceeded with, without any 
 fresh commencement. (PBl. Com. 186.) 
 
 A prorogation is a continuance of the parKament 
 from one session to another, and is done by royal au- 
 thority, expressed either by the lord chancellor in his 
 majesty's presence, or by commission from the crown, 
 or frequently by proclamation. Both houses are 
 necessarily prorogued at the same time. (1 Bl. Com. 
 187.) 
 6^. Mode of Dissolution of Parliament. 
 
 Dissolution is the civil death of the parliament ; 
 W. C. 
 1^. Dissolution is effected by the King's will, expressed 
 either in person, or by representation. 
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74 THE KrtTG AND HIS TITLES. [bOOK I. 
 
 1 Bl. Com. 188 ; 
 2''. Dissolution effected by the demise of the crown. 
 
 At common law, immediately upon the death of 
 • the reigning sovereign; by statutes 7 & 8 "Wm. Ill, 
 and 6 Anne, six months afterwards, unless sooner pro- 
 rogued or dissolved by the successor. (1 Bl. Com. 188.) 
 3''. Dissolutions effected by length of time; W. C. 
 1'. Doctrine at common law. 
 
 The duration of parliament was only limited by 
 the pleasure or ^eath of the Eling, although it was 
 required, at least by very early statutes (4 Edw. Ill, 
 and 36 Edw. Ill), to be assembled every year. (1 Bl. 
 Com. 189, n (83); Id. 153.) 
 2'. Doctrine by Stat., 6 Wm. & M. c. 2, and 16 Car. 11, c. 1. 
 That a new parliament shall be called within ' 
 three years after the determination of the former, and 
 that the sittings shall not bo intermitted above three 
 years at the most. (1 Bl. Com. 153, and n (6).) 
 3'. Doctrme by Stat. 1 Geo. I. 
 
 That a parliament may endure seven years. (4 Bl. 
 Com. 189.) 
 
 CHAPTEE ni. 
 
 Or THE KnfG AND HIS TlTLES. 
 
 2'. The King, or Supreme Executive power. 
 
 So much as is necessary to be known touching the 
 King may be stated under the heads following, namely: 
 (1), The title to the crown; (2), The King's royal fam- 
 ily; (3), The Bang's councils; (4), The King 's duties; 
 (5), The King's prerogative; (6), The King's revenue. 
 (1 Bl. Com. 190.)j 
 "W. C. * 
 
 1«. The title to the Crown. 
 
 Out of regard to the publie tranquility, the rule of 
 succession to the throne ought to be clear and indisput- 
 able. To that end, the crown is by common law and 
 constitutional custom, hereditary ; and this in a maimer 
 peculiar to itself; but that right of inheritance may 
 from time to time be changed or limited by act of par- 
 liament; under which limitations, the crown still con- 
 tinues hereditary. (1 Bl. Com. 190-'91.') 
 W.C. 
 1''. The attributes of the succession to the Crown. W. C. 
 1'. The cj&§itii§<i]^)^Qf&eQMditary, or descendible 
 
CHAP. IT.J THE king's EOYAL FAMILY. 75 
 
 to the next heir, on the death or demise of the last 
 occupant of the throne. 
 
 Succession by election, which would otherwise be 
 
 the most natural and expedient mode of succession, 
 
 proves upon experiment to give too much scope to 
 
 faction, intrigue and violence. (1 Bl. Com. 191 & seq.) 
 
 2'. Mode of descent of the Crown. 
 
 In general the same as in case of lands, preferring 
 males to females, and amongst males, the eldest; but 
 a similar preference of the eldest exists as to the 
 crown amongst females also, the regal lunctions being 
 indivisible.. Nor is the half-blood excluded. (1 Bl. 
 Com. 193-4.) 
 3'. The hereditary right to the Crown is not indefeasible. 
 Parliament (consisting of King, Lords and Com- 
 mons), may alter the line of descent, exclude the 
 immediate heir, and vest the inberitance in any one 
 else. (1 Bl. Com. 195.) 
 4'. However the Crown be limited or transferred, it is 
 still hereditary in the wearer. 
 1 Bl. Com. 196. 
 2^. Historical view of the succession to the Crown of 
 England. 
 
 1 Bl. Com. 196, & seq.; 2 Steph. Com. 441, & seq. 
 
 CHAPTER IV. 
 
 Of the King's Rotal Family. 
 
 2«. The King's Eoyal Family. 
 
 1 Bl. Com. 217, & seq.; 2 Steph. Com. 465, & seq.; 
 W. C. 
 1^. The Queen ; "Wherein of 
 1'. The queen regent, regnani, or sovereign. 
 
 Has the same powers, prerogatives, rights, digni- 
 ties and duties as if she had been a king ; e.g., Queen 
 Mary, Queen Elizabeth, Queen Anne, and Queen. 
 Victoria. (1 Bl Com. 217, & seq.) 
 2'. The Queen-consort. 
 
 The wife of the reigning king, by virtue of 
 her marriage, has divers prerogatives above other 
 women ; e. g., she is a public person, distinct from 
 the king; pays no toll, is liable to no amercement 
 in any court ; but is still the King's subject, not his 
 equal; she has many pecuniary advantages, and in 
 point 0©®(&afii3iy)j!ffMi(teaa3nS<Mmb has the same pro- 
 
76 COUNCILS BELONGING TO THE KING. [bOOK I. 
 
 tection as the King. If accused of treason, she is 
 tried by the peers of parliament. (1 Bl. Com. 218, 
 & seq.) 
 
 The husband of a queen regnant is her subject; as 
 George of Denmark to Queen Anne, and Prince Al- 
 bert to Queen Victoria. (1 Bl. Com. 222.) 
 3'. The Queen-doioo^er. 
 
 The Queen-dowager is the widow of .the King, and 
 
 enjoys most of the privileges belonging to her as 
 
 queen-consort. (1 Bl. Com. 223.) 
 
 2^. The Prince of Wales, or heir apparent to the crown, 
 
 his royal consort, and the princess-royal,, or eldest 
 
 daughter of the King. 
 
 These are all by law peculiarly protected, because 
 next in succession to the crown. (1 Bl. Com. 223, 
 & seq.) 
 3''. The king's younger children and grandchildren. 
 Being out of the immediate line of succession, they 
 are entitled only to a certain degree of precedence 
 before all peers and public officers. (1 Bl. Com. 224, 
 & seq.; 2 Steph. Com. 472, & seq.) 
 4^. More remote relations of the king. 
 
 Entitled not even to place or precedence, except 
 what belongs to them by their personal rank or dig- 
 nity. (1 Bl. Com. 225.) 
 
 CHAPTER V. 
 
 Of the Councils Belonging to the King. 
 
 3'. The Councils belonging to the King ; W. C. 
 
 The councils belonging to the King consist of (1), 
 The high court of Parliament; (2), The peers of the 
 realm; (3), The judges; and (4), The Privy Council; 
 W. C. 
 P- The High Court of Parliament. 
 
 Already treated of, Ante, p. 68, 1«, &c. 
 2^"- The Peers of the Eealm. 
 
 By virtue of their peerage they are hereditary coun- 
 sellors of the crown, and may be called together by 
 the King to impart their advice, either in time of par- 
 liament or when no parliament is sitting. (1 Bl. Com. 
 227, & seq.) 
 3^. The Judges of the Courts of Law, for law-matters. 
 1 Bl. Com. 229. 
 
 i\ The ^ftJ^itgSWhflVlicrosoft® 
 
CHAP. V.J THE Kmo's COtTHOILS. 7T 
 
 Called, by way of eminence, the Council, and de- 
 scribed by Sir Edward Coke as a noble, honorable, 
 and reverend assembly of the King, such as h£ wills to 
 be of his privy council. And as the King's unU solely 
 constitutes a privy councillor, so his will regulates the 
 number, which anciently was about twelve, but hav- 
 ing been inconveniently increased, it was by Charles 
 II (in 1679) limited to thirty, and has since been 
 again augmented, and is now indefinite. The incon- 
 venience is obviated by ordinarily summoning to ad- 
 vise the sovereign those only who hold the principal 
 offices of State, who are styled Cabinet-ministers. (1 
 Bl. Com. 230, & n (2); 2 Steph. Com. 480.); 
 W. C. 
 1'. The Qualifications of a Privy Councillor. 
 
 Must be a natural-born subject of England. (2 
 Steph. Com. 481 ; 1 Bl. Com. 230.) 
 2'. The duty of a Privy Councillor. 
 
 1 Bl. Com. 230 ; 2 Steph. Com. 481. 
 To advise the King honestly ; to be secret ; to 
 avoid corruption ; firmly to maintain the resolves of 
 the council; and in all things to act the part of a 
 good and true counsellor. 
 3*. The power of the Privy Coiincil. 
 
 1 Bl. Com. 231 ; 2 Steph. Com. 481. 
 W. C. 
 1*^- To enquire into all offences against the govern- 
 ment, and to commit the offenders. 
 
 But not to punish them, nor to place them beyond 
 the reach of the writ of habeas corpus. (1 Bl. 
 Com. 231 ; 2 Steph. Com. 481.) 
 2'^. To exercise certain judicial powers ; 
 W. C. 
 1^ Mode of Administering the Judicial Power. 
 
 This judicial power is administered by a com- 
 mittee of privy councillors, called the Judicial 
 Committee of the Privy Council, who hear the al- 
 legations and proofs, and report to the King in 
 council, by whom the judgment is finally given. 
 The Judicial Committee consists of the lord presi- 
 dent of the council, the lord chancellor, the occu- 
 pants of certain judicial oftices for the time being, 
 and all members of the council who have been 
 president, chancellor, or who have held any of the 
 said judicial offices. (2 Steph. Com. 482-'3.) 
 W. C. 
 2'. Cases wherein the Privy Council has Judicial 
 Power. 
 
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78 THE king's dtjties. [book r. 
 
 2 Steph. Com. 482. 
 W. C. 
 
 1™. Colonial causes arising out of the jurisdictioa 
 t of the kingdom. 
 
 2™. Appeals from the lord-chancellor, in matters of 
 
 lunacy, or idiocy. 
 3"". Appeals from the Ecclesiafitical and Maritime 
 
 Courts. 
 4". Applications to prolong the terms of patents 
 for new inventions, and to license the re-publica- 
 tion of book& under the copyright act. 
 5™. Questions between two provinces out of the 
 realm ; and claims asserted to an island or pro- 
 vince, as a feudal principality. 
 
 Upon principles of feudal sovereignty. 
 6™. Appeals from the Colonial Courts. 
 
 CHAPTER VI. 
 
 Of The King's Duties. 
 
 4«. The King's Duties. 
 
 The principal duty of the King is to govern his peo- 
 ple according to law. Nee regibus mfinita aut libera poiesias, : 
 was the constitution of our German ancestors, according 
 to Tacitus. And this is strongly expressed, not only 
 by Bracton and Fortescue, but also in the Year-books 
 (19 Hen. VI, 63) — " La ley est le plus haute inheritance 
 que le roy ad : car par la ley il mime ei touts ses sujets 
 sont neles, etsi le ley ne fuit, nul roi, et nul inheritance 
 sera." It is also preserved and sanctioned by the 
 terms of the coronation-oath : " I solemnly promise 
 and swear to govern the people of this kingdom of 
 England, and the dominions thereto belonging, ac- 
 cording, to the statutes in parliament agreed on, and the' 
 laws and customs of the same," &c. (1 Bl. Com. 233, 
 & n (1), & seq.) 
 
 CHAPTER VII. 
 
 Of the King's Peeeogative. 
 
 [. The King's Prerogative. 
 
 The word prerogative signifies that special pre-emi- 
 nence which the King has, in right of his royal dignity, 
 above all other persons, and out of the ordinary course 
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CHAP. Tn.J THE king's PEEKOGATITE. 19f 
 
 of the common law. It is not denied to the subjects 
 of England to discuss and examine its limits, so it be 
 done with decency and respect, notwithstanding the , 
 absurd claims to the contrary advanced by Queen Eliz- 
 abeth, and the Stuart princes who immediately suc- 
 ceeded her. But such was never the language of the 
 ancient constitution and laws. Thus Bracton states it 
 as a maxim of the English law, that " rex debet esse sub 
 lege, quia lex facii regem" and says, ^^ nihil enim aliiul 
 potest rex, nisi id solum quod dejure potest;" and even in 
 the reign of Charles I, Sir Heqry Finch, whilst he lays 
 down the law of prerogative in very strong and em- 
 phatic terms, yet qualifies it with the general restric- 
 tion that " the King's prerogative stretcheth not to the 
 doing of any vrrong." (1 Bl. Com. 238-'9 ; 2 Steph. Com. 
 485-'6.) 
 W. C. 
 1^- The King's incidental prerogatives. 
 
 Being only exceptions in favor of the crown to the 
 general rules established for the rest of the commu- 
 nity; e.g., that no costs can be recovered against the 
 King; that he cannot be a joint-tenant ; that his debt 
 shall be preferred to other debts, &c. These will be 
 considered in connection with the general rules to 
 which they are exceptions. (1 Bl. Com. 240.) 
 2^. The King's direct prerogatives ; W. C. 
 1*. The direct prerogatives which relate to the King's 
 dignity, or political character. 
 
 Being certain qualities inherent in his royal capa- 
 city, distinct from and superior to those of any other 
 individual in the nation, the design of which is to 
 secure to him that reverence, respect and obedience 
 which his high functions demand. (1 Bl. Com. 241 
 & seq.) ; 
 W. C. 
 1^- The King's personal sovereignty, or pre-eminence. 
 Hence he is exempt from all jurisdiction, civil 
 and criminal, as the tranquility and order of society 
 require that he should be. (1 Bl. Com. 242 ; Mon- 
 tesq. Sp. of Laws, B. XI, c. 6.) 
 W. C. 
 1'. The protection afforded to the subject against the 
 crown's invasion of rights by private injuries; 
 W. C. 
 1™. Private injuries in point of property. 
 
 The subject may petition the King in his court 
 of chancery, where redress will be afforded as a 
 matter of grace. (1 Bl. Com. 243.) 
 
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80 THE king's pbebogatite. [book I. 
 
 2"". Private injuries in point of person. 
 
 They cannot frequently occur, and when they 
 do, it is deemed better as a choice of evils to 
 submit to them, than to endanger the public 
 peace and security, by subjecting the sovereign 
 to answer. (1 Bl. Com. 243.) 
 2K The protection afforded against the Crown's pub- 
 lic oppressions; W. C. 
 1™. Ordinary public oppression. 
 
 Such oppression can only exist by the advice 
 «f evi? counsellors, and the assistance of wicked 
 ministers (the King being capable of performing 
 no ministerial act in person), and these may be 
 examined and punished. (1 Bl. Com. 244.) 
 2"". Extraordinary public oppressions tending to 
 dissolve the Constitution. 
 
 These are revolutionaiy proceedings, the oc- 
 currence of which the law cannot suppose. If 
 they do unforttmately happen, they must be met 
 by corresponding revolutionary and extraordinary 
 remedies, as in the case of Charles I, and James 
 II. (1 Bl. Com. 244-'5.) 
 2*. The 'King's absolute perfection; W. C. 
 V. The King can do no wrong. 
 
 This ancient and fundamental maxim means only 
 that whatever is exceptionable in the conduct of 
 public affairs, is to be imputed to the King's ad- 
 visers and ministerSj.and not to hixnseli personally ; 
 and that the prerogative being created for the 
 benefit of the people, cannot be exerted to their 
 prejudice. (1 Bl. Com. 246.) 
 2^ The King can think no wrong. 
 
 "Which means that the King can never mean to 
 do an unwise or an injm-ious action, and whatever 
 of that character proceeds from him is attributed 
 to mere fraud and deception, which renders the 
 act void. (1 Bl. Com. 246.) 
 
 This personal perfection, however, does not 
 preclude the temperate and respectful discussion , 
 of the King's conduct, even by individuals, and 
 much less in parliament. (1 Bl. Com. 247.) 
 3'. The King can be guilty of no laches, or negli- 
 gence. 
 
 Hence no delay will bar his right. The ancient 
 maxim is nullum tempus occurrit regi, it being in- 
 tended that the King is always busied for the public 
 good, and has not leisure to assert his rights. 
 
CKA.P. vn.J THE king's peebogatitb. 81 
 
 tainder for treason or felony; nor by infancy. (1 
 Bl. Com. 24:7-'8. 
 3''. The King's perpetuity. 
 
 In his political capacity, the King never dies. 
 There is in law no interregnum. Upon the death 
 of the reigning prince, his kingship is vested at 
 once in his heir, who is eo ins^nti King. (1 Bl. 
 Com. 249.) 
 2'. The direct prerogatives which regard the King's 
 authority. 
 
 In the execution of these consists the executive part 
 of the government, which is vested ia a single hand, 
 in order to secure unity and strength, the King being 
 not only the chief, but properly the sole, executive 
 magistrate, all others acting by commission from, 
 and in subordination to him. The restraint consists 
 in the responsibility of his advisers and ministers. 
 (1 Bl. Com. 250 & seq.) 
 W. C. 
 
 1^. The King's authority in foreign concerns; W. C. 
 1'. The power to send and receive Ambassadors. 
 Ambassadors and other pubHc ministers are em- 
 ployed to conduct the intercourse between indepen- 
 dent States, and in order that they may attend 
 fearlessly to the interests of the State they repre- 
 sent, they enjoy, amongst other privileges, the 
 important one of exemption from the local jurisdio- 
 tion, civil and criminal, of the foreign State to 
 which they are accredited. (1 Bl. Com. 253 & seq.) 
 2\ The power to make Treaties. 
 
 The ministry being responsible. (1 Bl. Com. 257.) 
 3^. The power of making War and Peace. 
 
 Subject to the responsibility of the ministry. 
 (1 Bl. Com. 257-'8.) 
 4\ To issue letters of Marque and Reprisal, 
 
 Empowering private persons to go beyond the 
 marches, or boundaries of the realm, and to com- 
 mit reprisals upon the commerce of another State, 
 in order to obtain redress for an injury. It is a 
 state of incipient war, and generally results in 
 war. (1 Bl. Com. 258.) 
 5^ To grant Safe-Conducts. 
 
 Usually applicable to a time of war, being a 
 permission to foreigners to enter or to remain in 
 the country. In peace the permission is generally 
 called a, passport. (1 Bl. Com. 259.) 
 2^. The King's authority in domestic affairs. 
 
 1 ^^■6fmMy^f8^som 
 
82 THE king's PBBEOGA.TITE, [bOO:? I, 
 
 w. c. 
 
 1'. The King is a constituent part of the supreme 
 legislative powerr-^that is, of parliament. 
 
 Hp has. the veto-power, and is not bound by any 
 act of parliament, unless he is named therein by 
 special words. (1 Bl. Com. 261 -'2.) 
 2^. The King is generalissimo of the kingdom. 
 
 He may raise and regulate fleets, armies, forts, 
 &;c.; may appoint ports and havens where — and 
 where only — ^persons and merchandise may pass 
 into and out of «the realm; may regulate the erec- 
 tion of beacons, light-houses, and sea-marks; may 
 prohibit the importation of arms or ammunition ; 
 and by writ of ne exeat regno may confine his sub- 
 jects from going abroad. (1 Bl. Com. 262, & seq.) 
 3^ The King is the fountain of justice, and general 
 conservator of the peace of the kingdom. 
 
 That is, he is the source whence justice is dis- 
 tributed, the courts (which he may erect at plear 
 sure), being the necessary conduits through which 
 it is transmitted to the people. Hence, the pro- 
 ceedings in the courts were in his name, and the 
 courts are designated the King^s Courts. (1 Bl. 
 Com. 266, & seq.) 
 W.C. 
 1,™. The early practice in administering justice. 
 By the King inpers<m. (1 Bl. Com. 267.) 
 2™- The modern practice in administering justice. 
 By jndges appointed by the King, but who 
 hold, not as formerly, durante bene placiio, but (by 
 Statute 13 "Wm. Ill, and further, by Statute 1 
 Geo. in,), notwithstanding the demise of the 
 crown, quamdit bene se gesserint. They are re- 
 movable, however, on the address of both houses 
 of parliament. 
 3™. In criminal proceedings the Crown is the prose- 
 cutor, through its appointed ofiScers. 
 1 Bl. Com. 268. 
 4™. Eeasons for separating the Judicial power from 
 the Executive and Legislative, respectively. 
 
 1 Bl. Com. 269; Montesq. Sp. of Laws, B. XI, 
 ch. VI. 
 S"" The King's pardoning power. 
 
 1 Bl. Com. 269. 
 6™. The King's legal ubiquity. 
 
 In the eye of the law he is always present 
 (that is, the legal office is) in all his courts, and 
 
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CHAP. Vm.J THE king's EEVDNCE. 83' 
 
 he is never said to appear hy attorney. (1 Bl. 
 Com. 270.) 
 7"- The King's prerogative of using proclamations. 
 Not to ordain new laws, but to enjoin the ob- 
 servance of those already in being ; and also to 
 give general instructions to the subjects touching 
 matters within the King's cognizance. (1 Bl. 
 Com. 270-'71.) 
 4\ The King is ih.e fountain of office, of honor, and of 
 privilege. 
 
 That is, he is not merely the distributor (as in 
 case of JMSftce); but the parent of them. It is sup- 
 posed that the King (being charged with the fanc- 
 tion of executing the laws) is a better judge than 
 any one else of the merits of those whom he will 
 employ, and ought to have it in his power to en- 
 courage fidelity and zeal by promotions and dis- 
 tinctions. (1 Bl. Com. 271-2.) 
 5'. The King is the arbiter of commerce. 
 
 That is, of domestic commerce only. (1 Bl. 
 Com. 273, & seq.); 
 W. C. 
 1™. Establishment of public Marts, such as markets 
 and fairs. 
 
 1 SI. Com. 274. 
 2™. The regulation of weights and measures. 
 
 1 Bl. Com. 274, & seq. 
 3™- To coin money, and regulate the value thereof. 
 1 Bl. Com. 276, & seq. 
 6^ The King is the Head and Supreme Governor of 
 the National Church. 
 1 Bl. Com. 278, & seq. 
 3'. The direct prerogatives which regard the King's 
 revenue. 
 
 Treated of under the next head of the King's 
 Kevenue, infra, 6^. 
 
 CHAPTER VIII. 
 
 Of the King's Ebveitob. 
 
 6^. The King's Eevenue; "W. C. 
 1^. The King's Ordinary Revenue. 
 1 Bl. Com. 282, & seq. ; 
 W.C. 
 1'. The King's Ordinary Revenue derived from Eccle- 
 siastical Sources: W. C. 
 
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84: THE Kmo's EEVENTJE. [bOOK I. 
 
 1^. The Custody of tlie temporalities of Bishops, 
 during vacancies. 
 1 Bl. Com. 282-'3. 
 2'^. A Corody for the maintenance of a royal Chap- 
 lain from each Bishop. 
 1 Bl. Com. 283. 
 3*^. Tithes arising in extra-parochial places. 
 
 1 Bl. Com. 284. 
 ■i^. First fruits, and the tenths of all spiritual prefer- 
 ments. 
 
 1 Bl. Com. 284, & seq. 
 2\ The King's Ordinary Revenue derived from Tem- 
 poral Sovirces. 
 
 1 Bl. Com. 286, & seq. 
 W. C. 
 l'^. Rents and profits of the demesne-lands {dominicales 
 terras) of the Crown. 
 1 Bl. Com. 286. 
 2*^. Profits derived from the military tenures in capiie. 
 Abolished by Stat. 12 Car. II, c 24. (1 Bl. Com. 
 287-'8.) 
 3'^. Profits derived from "Wine-licenses. 
 
 1 Bl. Com. 288. 
 4*^- Profits derived from the ordinary Courts of Justice. 
 In the way of fines, forfeitures of recognizances, 
 fees for afiixing seal, &c. (1 Bl. Com. 289.) 
 5^- Profits derived from the King's forests. 
 
 1 Bl. Com. 289. 
 6^. Profits derived from royal fish, whale and sturgeon. 
 Grounded on the King's guarding the seas from 
 pirates. (1 Bl. Com. 290.) 
 7*^. Profits derived from shipwrecks. 
 
 "Wreck, by the ancient common law, is where a 
 ship is lost at sea, and the cargo or goods are thrown 
 upon the land. The crown succeeded to the goods as 
 bona vacantia, if no person (by the laws of Henry I), 
 or no person or animal (by the laws of Henry HI), 
 escaped alive ; or, at present, if the ownership is not 
 proved within a year and a day. (1 Bl. Com. 
 291-'2.) The Crown, by the common law, and 
 doubtless the Commonwealth of Virginia, succeeds 
 to all bona vacantia. (1 Bl. Com. 298-'9; Bract. 
 L. I. c 12.); 
 "W. C. 
 IK A proper "Wreck at Common Law. 
 
 Goods thrown on the land, from a ship lost at sea. 
 (IBl. Com. 292.) 
 
 2'- i^^%^^mMJm'' ^- c. 
 
CHAP, vm.] THE king's eetenxte. 85 
 
 1™. Jetsam. 
 
 "Where goods are cast in the sea and sink. (1 
 Bl. Com. 292.) 
 2". Flotsam. 
 
 "Where the goods continue to swim on the sur- 
 face. (1 Bl. Com. 292.) 
 3™. Ligan. 
 
 "Where the goods are sunk in the sea but are 
 tied to a buoy, so as to be found. (1 Bl. Com. 292.) 
 3\ Modern provisions touching wrecks ; 
 W. C. 
 1". Salvage. 
 
 A reasonable reward provided for those who 
 rescue ships and goods wi-ecked or in danger. (1 
 Bl. Com. 293.) 
 2". Provision to assist vessels in distress, (by the 
 peace-officers on shore), and to punish such as 
 endanger or destroy them. 
 
 1 Bl. Com. 293-'4; Y. C. 1873, c. 90, § 1, & seq. 
 8^. Profits derived fi-om mines of gold and silver. 
 
 1 Bl. Com. 294. 
 9^. Profits derived from treasure-trove. 
 
 That is from treasure found, the owner being un- 
 known. (Fr. trover, to find). (1 Bl. Com. 295.) 
 lO'^. Profits derived from Waifs, (bona ivaviata). 
 
 That is from goods waived, or thrown away by a 
 thief in his iiight, the owner being unknown. (1 
 Bl. Com. 296-'7.) 
 11'- Profits derived from Estrays. 
 
 That is from valuable animals found astray, and 
 wandering, the owner being u.nknown. (1 Bl. Com. 
 297 ; Y. C. 1873, c. 98, § 1, & seq.) 
 12^^. Profits derived from goods and lands confiscated 
 or forfeited-for crime, including Beodands. 
 1 Bl. Com. 299, & seq. 
 13*^. Profits arising from Escheats of lands, for defect 
 of heti-s. 
 
 1 Bl. Com. 302. 
 14'. Profits arising Irom the custody of Idiots and 
 Lunatics ; "W. C. ^ 
 
 1^ The case of an Idiot. 
 
 An idiot is one that hath no understanding from 
 his nativity, and who is therefore by law presumed 
 never likely to attain any. The fact is to be as- 
 certained upon a wi'it de idiota inquirendo, by a juiy 
 of twelve men ; and upon its being so proved, 
 (which is rarely done,) the cro-mi is entitled to the 
 
 profits of liis lands, and the custody (and conse- 
 ^ Digitized by Microsoft® 
 
86 THE EING'-S EETENTJB. '[bODJ:,!. 
 
 quent maintenance) of his person. (1 Bl. Com. 
 302-'3.) 
 2^ The case of a Lunatic. 
 
 A lunatic is one who has had understanding, 
 but by disease,' grief, or other accident, has lost 
 the use of his reason, which yet the law presumes 
 that he may recover. The fact of lunacy is as- 
 certained by a commission issued by the Chancel- 
 lor ;(to whom, by special authority from the King, 
 the custody of idiots andlunatics is ven trusted), and 
 thereupon provision is made for the sustentation 
 and care of the lunatic's person, and the manage- 
 ment of his estate, subject to accountabihty for the 
 net profits, to the lunatic, or his heirs, &c. (1 Bl. 
 Com. 304 & seq; V. C. 1873, c. 82, § 14 & seq; 
 43 & seq.) 
 2^. The King's Extraordinary Hevenue. 
 
 Derived from aids, subsidies, or supplies, granted 
 by the representatives of the people, assembled in 
 Parliament. (1 Bl. Com. 306 & seq.) 
 W. C. 
 1'. The ancient modes of Taxation. 
 IBl. Com. 308 &seq; 
 W. C. 
 1^. Tenths and fifteenths. 
 
 That is tenths and fifteenths of all the movables 
 belonging to ihe subject, at first according to new 
 assessments made at every fresh grant, but in 8 
 Edw. Ill, (A. D. 1315), reduced to a certainty, 
 namely, about £29,000 for the whole kingdom. (1 
 Bl. iCom. 308-'9.) 
 2'^- Scutages. 
 
 That is a pecuniary compensation foi* the miUtary 
 services, at first being arbitrary compositions as the 
 King and subject could agree, which, leading to 
 great abuses, King John was obliged to promise in 
 his Magna Charta (Art. XIY, 1 Eap. 287, B. VIII), 
 that no scutage should be imposed without the con- 
 sent of the Common Council of the realm; which, 
 though omitted in 9 Hen. Ill, was restored by 25 
 Edw. I, c. 5 and 6; 34 Edw. I, St. 4, c. 1; and 14 
 Edw. Ill, St. 2, c. 1, and extended to the prohibi- 
 tion of any aid, task, tallage or tax, but by the 
 ■common consent of the great men and commons in 
 parliament. (1 Bl. Com. 309-10.) 
 S^. Sydage, upon all other Lands than those held in 
 chivalry, and Tallage upon cities and boroughs. 
 1 ^i§tais{Mf) Microsoft® 
 
CHAP. vin.[ THE eim-g's eevknue. 87 
 
 Hydage or hidage is an extraordinary tax, paya- 
 ble for every hyde or hide (about 100 acres) of land. 
 Otherwise called hidegUd. (Bui'r. L. Diet, in verb.) 
 Talliage, or more properly tallage, (from French 
 tailler, to cut), is a share of a man's substance, paid 
 by way of tribute, toll, or tax, so that it includes all 
 taxes and burdens set upon the subject, and was 
 anciently called in English a cutting. (Burr. L. Diet. 
 in verba.) 
 ^. Subsidies. 
 
 Introduced temp. Richard II, and Henry lY (A. 
 D. 1377 to 1413). A tax not immediately imposed 
 on property, but upon persons, in respect of their 
 reputed estates, accoraing to an ancient and very 
 moderate valuation, however, insomuch that one 
 subsidy according to Sir Edw. Coke, amounted to 
 no more than £70,000. (1 Bl. Com. 310, & seq.) 
 5^. Ecclesiastical Subsidies. 
 
 Granted by the clergy in Convocation, and con- 
 firmed by parliament, or else illegal. Amounted 
 to about £2,000. 
 
 The last subsidy granted by clergy or laity was in 
 15 Car. II, A. D. 1663). After that the levies on 
 land were merged in one tax, known as the Land- 
 tax. (1 Bl. Com. 311, & seq.) 
 2'. The modern modes of Taxation. 
 
 1 Bl. Com. 312-'13, & n (29) & n (30); 2 Steph. 
 Com. 574 & seq ; 
 W. C. 
 IK The Land-tax. 
 
 The modern substitute for the old charges upon 
 lands. Having prevailed substantially, after 15 
 Car. II, it was formally recognized by the name of 
 land-tax, by Stat. 4 Wm. & M., c. 1, (A. D. 1692). 
 (1 Bl. Com. 312-'13, & n's (29) & (30^; 2 Steph. 
 Com. 574.) 
 2*. The Customs, 
 
 Or duties, tolls or tributes levied upon mer- 
 chandise exported and imported. (2 Steph. Com. 
 575; IBI. Com. 313;) 
 W. C. 
 v. The Authority whereby alone all Customs, whe- 
 ther immemorial or recent, are levied. 
 
 The authority of parliament, as insisted by Lord 
 Ooke, and expressly acknowledged by Stat. 25 
 Sdw, I, c. 7. (2 Steph. Com. 575 ; 1 Bl. Com. 
 ■313^'14 & n (33).) 
 '2\ The etymology of the word 'Custom. 
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THE king's KEVENUE. [bOOK I. 
 
 The old Latin is custuma (not consuetudo, which 
 means usage only). It is derived from the French, 
 coustum, or couium (toll or tribute), which comes 
 from const (price, charge or cost). (1 Bl. Com. 
 (31i, n (-).) 
 3'. The several Customs levied upon goods in Eng- 
 land; W. C. 
 1™- The customs on wool, skins, and leather. 
 
 These were very ancient. Conferred indeed 
 by parliament, and subject to its authoiity, but 
 levied so uninterruptedly, through such a series 
 of reigns, as to have acquired the designation of 
 hereditary customs of the croion. 
 
 The thre^commodities named were styled staple 
 commodities, because they could only be exported 
 from those ports where the King's staple was es- 
 tablished. (2 Steph. Com. 575 ; 1 Bl. Com. 314.) 
 2™. The prisage or butlerage of wines. 
 
 Frisage was the right of taking two tuns of wine 
 from every ship importing twenty tuns or more. 
 It was called butlerage, because having been com- 
 muted, by charter Edw. I, for a duty of two shil- 
 lings a tun imported by "merchant-strangers," it 
 was paid to the King's butler. (1 Bl. Com. 
 
 314:-'15.) 
 
 3™. Subsidies, Tonnage and Poundage. 
 
 Subsidies were duties imposed by parliament, 
 upon the staple commodities alone, (1™,) over and 
 above the custuma antiqua et rnagna. (1 Bl. Com. 
 215; 2 Steph. Com. 576.) 
 
 Tonnage was a duty upon all wines imported 
 over and al>ove prisaqe and butlerage {supra, 2™). 
 (1 Bl. Com. 315; 2 Steph. Com. 576.) 
 
 Pomidage was an ad valorem duty of 12d. in 
 the pound on all merchandise whatsoever. (1 
 BL Com. 315; 2 Steph. Com. 576.) 
 4™. The modern duties levied from time to time 
 by Act of Parliament. 
 
 Paid immediately by the merchant, but ultimate- 
 ly by the consmner . The least jDerceived, and so the 
 the least burdensome of taxes, if laid in moderation, 
 but if excessive, smuggling is encom-aged, (which 
 demoralizes the people, whilst it lessens the rev- 
 enue,) and the cost to the consimier is multiplied 
 by the profit levied 1 ly each middle-man upon the 
 duty, as well as the original price. This latter evil 
 is somewhat mitigated by the vjarehousing system, 
 ^^^^'$mW^li(^§§ft¥^ ^^P* in public war,> 
 
CHAP. Vm.J THE KmrG's EEVENUH. 89 
 
 houses until sold, and then the duty is paid. (1 
 
 Bl. Com. 317-'18; 2 Steph. Com. 578-'9.) 
 3^- The Excise-duty. 
 
 An inland imposition, charged for the most 
 part, on the manufacturer, but sometimes on the 
 consumer. Unpopular because it leads to domicili- 
 ary visits and searches. First introduced (on the 
 model of a Dutch prototype,) by the parliament, 
 in 1643, after the rupture "with Charles I, under 
 the auspices of Mr. Pym, the popular leader. The 
 principal articles subject to the excise, are salt, 
 spirits, soap, glass, paper, bricks, hops, sugar, and 
 vinegar. (I Bl. Com. 313, 318 & seq.; 2 Steph. 
 Com. 579 & seq.) 
 4:^. The post oifice duty for the carriage of letters, &c. 
 
 Commenced by James I, with a foreign mail 
 only, extended by Chai-los I, (A. D., 1635,) to a 
 few of the principal roads in England and Scot- 
 land, and finally (in A. D., 1643,) estabhshed upon 
 a regular and extended plan, devised by Edmond 
 Prideaux, Attorney-General to the Commonwealth 
 after the execution of King Charles. But since 3 
 & 4 Yict. c. 96, the consideration of the public 
 convenience has so far prevailed over that of re- 
 venue, that the charges have been reduced to an 
 amount so small, as barely to pay the expense of 
 the service. (1 Bl. Com. 321 & seq.; 2 Steph. 
 Com. 582-'3.) 
 5*^. The Stamp-duties. 
 
 A tax imposed upon all parchment, and paper, 
 whereon any private deeds or other instruments of 
 writing, of almost any nature whatsoever, are writ- 
 ten; and upon all newspapers, cards, and dice; to 
 which may be added, as belonging to the same 
 branch of revenue, the duties payable for licenses 
 to keep hackney-carriages, and stage-carriages, or 
 to trade as hawkers and pedlars. Stamp-duties 
 were iirst instituted by Stat. 5 & 6 "W". & M., c. 
 21. (1 Bl. Com. 323-'4; 2 Steph. Com. 584.) 
 6^. Duties upon articles in the use or keeping of sub- 
 jects. 
 
 Namely, duties on windows, servants, carriages, 
 horses, dogs, hair-powder, armorial bearings, and 
 game-certificates. (2 Steph. Com. 585.) 
 7"^. Duties upon offices and pensions. 
 
 Consisting in an annual payment (over and above 
 all other duties), out of <&11 salaries, fees and per- 
 qui8itesoj^;fi!|^e|S&>aflHfcjK^lji®s, derived from the 
 
90 THE KUr&'s EETENUE. [BOOK'I. 
 
 crown, exceeding £100 per annum. First imposed 
 by Stat. 31 Geo. II, c. 22. (2 Steph. Com. 586; 
 1 Bl. Com. 326. ) 
 8". Th.e property and income tax. 
 
 Imposed by 5 & 6 Vict.^ c. 35, purporting to be 
 
 a temporary expedient. (2 Steph. Com. 586 n (m).) 
 
 S^. The purposes to which the King's revenue, ordinary 
 
 and extraordinary, is expected to be applied; W. C. 
 
 1'. To discharge the annual expenses of the public 
 
 service. 
 2K The civU list? 
 
 For the expenses of the royal household and estab- 
 lishment,' as distinguished from the general exigen- 
 cies of the State ; and in lieu of the proper patrimony 
 of the crown, which has been assigned to the public 
 use. It is usually granted at the commencement of 
 each reign, for the sovereign's life. The amount 
 settled on Queen Victoria is £385,000, of whicli 
 £60,000 is assigned for her privy purse. (2 Stepb. 
 Com. 591; 1 Bl. Com. 331 & seq.) 
 3\ To meet the payments required on account of the 
 national debt; "W. C. 
 l^ The unfunded debt. 
 
 Comparatively of small amount (about £24,000,- 
 000 in 1845), and generally secured by exchequer- _ 
 bills, which are instruments issued at the exchequer, 
 under the authority, for the most part, of acts of 
 parliament passed for the purpose, engaging on the 
 part of the government, to repay the principal sums 
 advanced, with interest. (2 Steph. Com. 586.) 
 2\ The funded debt. 
 
 Consisting of annuities granted by parliament to 
 the public creditors, for the most part in perpe- 
 tuity, affording a certain interest for ever upon the 
 principal sum, to the payment whereof the pubhc 
 faith is pledged. The certificates of these annui- 
 ties are transferable by the holder, and afford con- 
 venient investments, contributing also to interest 
 multitudes of the subjects of the realm in the sta- 
 bility of the government. The funded debt which, 
 when Blackstone wrote, was £136,000,000, was 
 increased in 1842 to £774,000,000, involving an 
 annual expense of £29,000,000. (2 Steph Com. 
 587 & seq.) 
 
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CHAiP. IX. J SUBOEDmATE MAGISTKATES SHEEIFFS. 91 
 
 CHAPTEE IX. 
 
 Of Subokdinate Magisteates. 
 2^. Subordinate Magistrates. 
 
 Subordinate magistrates do not include the King's prin- 
 cipal officers of State, such as the Secretaries of State, &c., 
 because as such they have no important share of magis- 
 stracy conferred upon them (except that the Secretaries of 
 State may commit offenders for trial) ; nor the Chancellor, 
 and other judges of the superior courts, because they will 
 find a more proper place elsewhere; nor mayors or alder- 
 men of corporations, because they depend on the charter 
 and franchises of the corporation ; but include such as are 
 generally in use, dispersedly, through the kingdom. (1 
 Bl. Com. 338 & seq.; 3 Steph. Com. 17 & seq.) 
 
 The subordinate magistrates now to be treated of are, 
 (1), The sheriff ; (2), The coroner; (3), Justices of the peace; 
 (4), Constables ; (5), Surveyors of high ways ; (6), Over- 
 seers of the poor; (7), Escheators; and, (8), Supervisors. 
 The doctrine touching each of these classes of magis- 
 trates will be presented under the heads following, 
 namely: 1, The antiquity and original of the office; 2, 
 The mode of appointment and removal of the incumbent, 
 and modes of securing his fidelity in office ; 3, The duties 
 of the office ; and 4, The assistants who may be employed. 
 Let us now consider, in order, the several subordinate 
 magistrates above named: 
 W. C. 
 1*. The Sheriff. 
 
 1 Bl. Com. 339 & seq.; 3 Steph. Com. 21 & seq.'; 
 Bac. Abr. Sheriff; 1 Tuck. Com. 45 & seq. ; 
 W. C. 
 1^. The Antiquity, and original of the office of Sheriff. 
 The office is of great antiquity. The name is de- 
 rived from the Saxon words Scire-gerefa, the reeve, or 
 steward of the shire. In Latin he is called vice-comes, 
 as being the deputy of the earl ( Comes), to whom the 
 custody of the shire was committed, it is said, at the 
 first division of the kingdom into counties. In process 
 of time, the other engagements of the earl obliged 
 him to devolve the whole of the actual business on the 
 sheriff, who, though still called vice-comes, is entirely in- 
 dependent of the earl, the King by his letters-patent 
 committing the care of the county, (cusiodiam comiiatus), 
 to the sheriff, and to him alone. (1 Bl. Com. 339.) 
 2*^. The mode of appointment and of removal of sheriffs, 
 and modes of securing fidelity in office ; W. C. 
 l*". Mode of appointment and of removal of Sheriffs, and 
 modes oDj^teea[g)j^iA?jl%)io/Hiice, in England; W.C. 
 
92 STTBOKDIIfATH MAGI8TBA.TB9 SHERIFFS. [bOOK I. 
 
 1*. Mode of appointment of Sheriff in England. 
 
 Formerly the sheriff was chosen by the inhabi- 
 tants of the several counties, (where the oflElce was 
 not hereditary), the election probably requiring the 
 royal [approval, as in the Gothic constitution was 
 the case with the judges of the county courts, (an 
 office discharged by the sheriff). These popular 
 elections having become, as was alleged, tumultuous, 
 the Stat. 9 Edw. II, directed the sheriff to be as- 
 signed by the chancellor, treasurer and judges; and 
 subsequent statutes ordain that the chancellor, trear 
 surer and other high officers, together with all the 
 judges, (now eighteen in number, shall annually pro- 
 pose three persons to the King for each county, and 
 he appoints one to be sheriff, to serve durante bene 
 placito, though sure to be superseded in practice with- 
 in three years, as indeed is required by sundry 
 statutes. (1 Bl. Com. 339 & seq.; 3 Steph. Com 21 
 &seq.; Bac. Abr. Sheriff, (E); 2Broom&B:.Com.99). 
 
 2'. Mode of removal of Sheriffs in England. 
 
 It seems that the sheriff's office is determined by 
 the nomination of a successor, by his own death, or 
 by the lapse of six months after the demise of the 
 crown, without his being re-appointed; or by non- 
 user, mis-user, &c. (1 Bl. Com. 342; 3 Steph. Com. 
 24; Bac. Abr. Offices, (M).) 
 
 3'. Mode of securing fidelity in office in Sheriffs, in Eng- 
 land. 
 
 No otherwise, it seems in general, than by his oath 
 of office,; which is long and comprehensive. But no 
 one (by Stat 13 & 14, Car. II, c. 21, § 7), can be as- 
 signed for sheriff, unless he have sufficient lands within 
 the county, to answer the King and his people ; and it 
 seems the King may require him to find surety for 
 performing his office. (1 Bl. Com. 339, n (1) ; Id. 342, 
 n (10); 3 Steph. Com. 24-'5 ; Bac. Abr. Sheriff (C).) 
 2^. Mode of Appointment of Sheriff, and of Removal, 
 and modes of securing fidelity in office in Virginia. 
 
 1\ Mode of Appointment of Sheriff in Virginia. 
 
 Elected by the qualified voters of each county on 
 the first Tuesday after the first Monday in Novem- 
 ber, to enter upon office on the 1st day of January 
 succeeding, and to hold office for three years, and 
 until his successor has qualified. He can hold no 
 other office; and may be required by law to renew 
 his security. (Const. 1869, Art. VII, § 1, 6; Id. 
 Art. VI, § 25.) 
 
 2'. Mode^/^^(jj«%jf|^gyj|^ in Virginia; W. C. 
 
CHAP. IX.] BUBOEDIIfATB MAGISTEATEg SHBEIKFS. 93 
 
 !"• Causes of Kemoval from office of Sheriff; W. 0. 
 1\ Being concerned in a Duel, or sending or accept- 
 ing, or carrying a Challenge. 
 
 Y. C. 18T3, c. 11, § 1; Const. 1869, Art. Ill, 
 
 § 1 (cl. 3); Y. C. 1873, c. Y, § 1 (cl. 3). 
 
 2\ Holding any post of trust or profit under the 
 
 Government of the United States, or receiving 
 
 any emolument therefrom, — with a few exceptions. 
 
 These exceptions are as follows: 
 
 1. Military pensioners for wounds received in war. 
 
 2. Militia officers and soldiers called out into ac- 
 tual duty, and paid by the United States accordingly. 
 
 3. Members of Congress acting as justices, as 
 visitors of the University and of the Military In- 
 titute, and as officers of militia. 
 
 Y. C. 1873, c. 11, § 2, 3 ; Com'th v. Sherrard, 
 4 Leigh, 643. 
 3^. Accepting an Incompatible Office. 
 
 Bac. Abr. Offices (K), 2; Com'th v. Tate, 3 
 Leigh, 802. 
 4}. Removal of residence from the sphere of duty; 
 e. g., from the County. 
 
 Chew V. Justices of Spottsylvania, 2 Ya. Cas. 
 208; Poulson v. Justices of Accomac, 2 Leigh, 
 743. 
 5^ Conviction of Felony. 
 
 Y. C. 1873, c. 11, § 4; Fugate's Case, 2 Leigh, 
 724. 
 6^. Malfeasance or Non-feasance in office. 
 
 e. g., By refusal to act, or neglect of duty, by 
 drunkenness in discharge of duty, &c. (Bac. Abr. 
 Offices (M); Mann's Case, 1 Ya. Cas. 138; Alex- 
 ander's Case, Id. 156; Synops. Crim. Law, 145.) 
 7^ Contracting to sell the office, not merely thg depu- 
 tation of it. 
 
 Y. C. 1873, c. 11, § 5, 6. 
 2*. Mode of proceeding in order to remove a Sheriff 
 in Yirginia. 
 
 By information or indictment in the Circuit court, 
 or by writ of quo warranto ; and if in either proceed- 
 ing the party be convicted, judgment of amotion 
 from office is pronounced. . (1 Tuck. Com. 11, B. II; 
 Alexander's Case, 1 Ya. Cas. 156; Mann's Case, Id. 
 308; Wallace's Case, 2 Ya. Cas. 130.) 
 3'. Modes of securing the fidelity in office of the 
 Sheriff, in Yirginia. 
 
 A party acting as Sheriff, or other officer, before 
 
 "or before giving the 
 
94 SUBOBDINATE MAGISTRATES 8HEBIFF8. [bOORE.. 
 
 bonds required by law, is liable to forfeit from $100 
 to $1,000: (V. C. 1873, c. 12, § 9); 
 "W. 
 1\ The Oaths of office. 
 
 Ya. Const. 1869, Art. Ill, § 6; U. S. Const., Art. 
 VI,, § 3; y. C. 1873, c. 12, § 1, 3. 
 W. C. 
 1^ The Oath to support and maintain the Constitu- 
 tion and laws of the United States, and of Yir- 
 ginia. 
 2^ To recogniae and accept the equality of all men 
 
 before the law. 
 3\ To perform faithfully the duties of the office. 
 The anti-duelling oath is no longer exacted, but 
 since the adoption of the Constitution (i. e., since 
 26th day of January, 1870), to fight a duel with 
 a deadly weapon, or to send or accept a challenge 
 within or beyond the limits of "Virginia, or know- 
 ingly to convey a challenge, or in any manner to 
 aid or assist in fighting a duel, is a disqualification 
 for office, and for the exercise of suffi-age. (Const. 
 1869, Art. Ill, § 1 (cl. 3); V. C. 1873, c. 11, § 1.) 
 2^. Official Bond. 
 
 The county or circuit court is to take from the 
 sheriff bond, with sufficient surety, payable to the 
 Commonwealth of Virginia, in such penalty as the 
 court may deem sufficient, not less than $20,000, 
 nor more than $50,000, conditioned for the faithful 
 discharge of the duties of his office. (V. C. 1873, 
 c 49, §2, 3; Id. c. 12, §6.) 
 38. The Duties of Sheriff; W. C. 
 I''- The duties of Sheriff in England. 
 
 1 Bl. Com. 343 & seq. ; Bac. Abr. Sheriff (L), to 
 (0); 
 W. C. 
 1\ Judicial Duties of Sheriff in England ; "W. C. 
 l'^. To hear and determine causes of 40 shilhngs 
 value and under, in his county court.. 
 
 1 Bl. Com. 343; 3 Steph. Com. 25; Bac. Abr. 
 Sheriff (L). 
 2^- To try issues out of the Superior Courts, in cases 
 of debt or demand, not exceeding £20. 
 
 Stat. 3 and 4 "Wm. IV, c 42 ; 3 Steph Com. 26, 
 n (a). 
 3''. To try in his County Court divers other civil 
 causes ; and in his torn (or court of view of frank- 
 pledge) all common law misdemeanors, to a certain 
 
 extents - 
 
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CHAP. IX.] StTBOEDINATB MAGISTKATES-^SHEEIFFS. 95 
 
 1 Bl. Com. 343; 3 Steph. Com. 25; Bac. Abr. 
 Courts (Sheriflf's Torn), (C.) & (D.). 
 4^. In execution of "Writs of Partition, and of Ad- 
 measurement of Dower. 
 
 Bac. Abr. Sheriff (H.), 3; Wroe v. Harris, 2 
 Wash. 129. 
 5^^. As Conservator of the peace. 
 
 As the principal conservator of the peace within 
 his county, he may apprehend and commit for 
 breach of the peace, and may take recognizance 
 for keeping it. (1 Bl. Com. 343 ; Bac. Abr. She- 
 riff, (L.).) 
 6*. To decide the elections of Knights of the Shire, 
 &c.; to judge of the qualifications of voters, and 
 to return such as he shall determine to be duly 
 elected. 
 
 1 Bl. Com. 343; 3 Steph. Com. 25. 
 In Yirginia, five commissioners from among the 
 judges of Election are appointed annv/xlly by the 
 county and corporation courts, who determine the 
 quaUficationSi of voters. And in case of a tie, elec- 
 tions are decided by lot. (Y. C. 1873, ch. 8, § 24.) 
 2'. Ministerial Duties of Sheriff in England ; W. C. 
 I''. To act as the Ministerial Officer of the King's 
 Courts. 
 
 Thus it is the sheriff's duty to serve the writ sum- 
 moning the defendant to answer the plaintiff's com- 
 plaint, and if need be to arrest him, and imprison 
 or take bail; to summon and return the jury; and 
 finally to execute the judgment of the court, &c. 
 (1 Bl. Com. 344; Bac. Abr. Sheriff, (M.).) 
 2''. To act as the King's Bailiff. 
 
 In order to preserve the King's rights within his bai- 
 liwick or county, by seizing for the crown the lands 
 devolved to it by attainder or escheat ; by levying 
 fines and forfeitures ; by seizing and keeping waifs, 
 wrecks, estrays and treasure-trove; and by collect- 
 ing the King's rent. (1 Bl. Com. 344.) 
 3"^. To execute Writs of Ad quod damnum and Elegit. 
 Bac. Abr. Sheriff", (H.); Wroe v. Harris, 2 Wash. 
 129; Fulwood's Case, 4 Co. 65, b. 
 2"^. The duties of Sheriff in Yirginia. 
 
 1 Tuck. Com. 46, & seq., B. I.; 1 Bl. Com. 343, & 
 seq.; Bac. Abr. Sheriff, (L.) to (O.); 
 W. C. 
 1'. Judicial Duties of Sheriff in Yirginia; W. C. 
 1". In executing Writs of Partition, and of Admeas- 
 
96 StTBOEDmATE MAGISTRATES SHEEOTS. [bOOK I. 
 
 1 Tuck. Com. 46, B. I.; Bac. Abr. Sheriff (^.), 
 3; Wroe v. Harris, 2 Wash. 129. 
 2*^. As Conservator of the peace. 
 
 Supra 5^; 1 Bl. Com. 343; Bac. Abr. SheriBf, 
 (L.) 
 2\ Ministerial Duties of Sheriff in Virginia ; W. C. 
 1". To act as the Ministerial Officer of. the Courts of 
 Kecord. 
 
 Supra 1'; 1 Bl. Com. 344; Bac. Abr. Sheriff,. 
 (M.); 1 Tuck. Com, 46, B. I.; V. C. 1873, ch. 166. 
 § 2, & seq.; Id. ch. 49, § 27, & seq. 
 2". To execute Writs of Ad quod damnum, and of 
 Elegit. 
 
 Bac. Abr. Sheriff (H.), 3; Wroe v. Harris, 2 
 Wash. 129; Fulwood's Case, 4 Co. 65, b; Tillot- 
 son V. Cheatham, 2 Johns. (N". Y.) 69. 
 4^. The Assistants employed by the Sheriff; W. C. 
 1^. Under-sheriffs or Deputies; W. C. 
 1'. The mode of Appointment of Deputy-sheriffs in 
 Virginia. 
 
 The deputy farms (thart is, buys,) the deputation 
 from the sheriff, a proceeding forbidden under heavy 
 penalties in all other cases (Y. C. 1873, ch. 11, § 
 6; Id. ch. 190, § 4, 5); the check being that no de- 
 puty can be appointed by the sheriff without being 
 subject to the approval and control of the county or 
 ' corporation com-t. (V. C. ch. 11, § 6 ; Id. ch. 49, § 
 
 21; Jacobs v. Commonwealth, 2 Leigh, 709.) 
 2'. Guaranties of fidelity in Deputy-sheriffs in Virginia; 
 W. C. 
 1^. Oaths of Office of Deputy-sheriff. 
 
 Ante p. 94, (l^^.) 
 2K Official Bond of Deputy-sheriff. 
 
 The Commonwealth requires no bond of the 
 deputy-sheriff, because the sheriff is answerable 
 civilly, for whatsover default or misconduct the 
 deputy is guilty of colore officii. But the sheriff, 
 for his own security, visually requires bond, with 
 sufficient surety, conditioned to indemnify and save 
 him harmless against all loss and damage arising 
 out of the official default or misconduct of the de- 
 puty. (Grayd. Forms, 138 ; Koyster v. Leake, 2 
 Munf. 280; Munford v. Rice, 6 Munf. 81; Jacobs 
 v. Hill, 2 Leigh, 393 ; Tyree & als v. Wilson, 9 
 Grat. 59 ; Tyree & als v. Donnally, Id. 64 ; Cox 
 & als v. Thomas, Id. 312 ; Mosby, &c. v. Mosby, 
 Id. 584; Monteith v. Commonwealth, 15 Grat. 172; 
 
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•CHAP. IX.] STTBOEDINATE MAGISTKATBS SHEKIFFS. 97 
 
 Sangster v. Commonwealth, 17 Grat. 124; Ballard 
 V. Thomas, 19 G-rat. 14.) 
 3\ Deputy-sheriff's term of Office. • 
 
 It terminates with that of the principal, and may 
 also be determined before, at the pleasxire of the 
 principal, (subject to his responsibility on his contract 
 of deputation, should he do it without cause,) or of 
 the county or corporation court. (V. C. 1873, c. 49, 
 § 22 ; Hoge v. Trigg, 4 Munf 154; Montgomery v. 
 Henry, 1 Dall. 49.) 
 
 The death of the principal does not (as at common 
 law) determine the deputy's office; but if not re- 
 moved by the court, nor by the sheriff's personal re- 
 presentatives, he may continue to act in the dead 
 principal's name, until the qualification of a new 
 sheriff. (V. C. 1873, c. 49, § 23.) 
 4\ Duties which a Deputy-sheriff may perform ; W. C. 
 1^. Doctrine at Common Law. 
 
 The deputy might perform all the duties of 
 sheriff, save only such as are judicial, (e. ff., a writ 
 of admeasurement of dower or of re-disseisin j) or such 
 as the sheriff is, by the terms of the writ, required 
 to execute in person, {e. g., a writ of partition, or of 
 inquiry of waste.) (Bac. Abr. Sheriff, (H ) 3 ; 1 
 Tuck. Com. 48, B. I.) 
 2K Doctrine by Statute in Virginia. 
 
 The deputy-sheriff, during his continuance in 
 office, may discharge any of the official duties of his 
 principal. (V. C. 1873, c. 49, § 21.) 
 6'. Liability of Sheriff for the official acts and defaults 
 of his deputy; W. C. 
 IK Doctrine at Common Law. 
 
 The sheriff is liable civiliter, (and in England lia- 
 ble exclusively,) for all acts and defaults of his de- 
 puty, colore officii. Indeed, the sheriff and his de- 
 puties are considered as one officer. (Saunderson v. 
 Baker, 3 Wils. 309 (S. C. 2 Wm. Bl. 832) ; Bac. 
 Abr. Sheriff, (H.) 4, (P) ; James v. McCubbin, 2 
 Call. 273 ; Moore's Adm'r v. Dawney & al., 3 H. 
 & M. 132; White v. Johnson, 1 Wash. 160 ; Hazard 
 v. Israel, J Binn. 240 ; .Cameron & als. v. Reynolds, 
 Cowp. 403.) 
 2\ Doctrine in 'Virginia, by Statute. 
 
 In case of a return on process, by an officer, or his 
 deputy, such as entitles any person to recover money 
 from such officer by action, the person aggrieved 
 may recover it by motion against the officer and his 
 sureties, or against the deputy (if the return were 
 7 Digitized by Microsoft® 
 
98 SUBOEDINATB MAGISTEATE8 SHEEIFFS. [bOOK L 
 
 by a deputy) and his. In all other cases, the pro- 
 ceeding can be against the sheriif and his sureties 
 only, -and not against the deputy, leaving the sherifi 
 or his sureties to recover of tlae deputy. (V. C. ' 
 1873, c. 49, § 45, 46, 47; 1 Tuck. Com. 48, B. I; 
 Fisher v. Yanineter, 9 Leigh, 27. But see Rich- 
 ardson V. Perkins, 4 Munf. 512; 3 Eob. Pr. 79; 
 Eamsey v. McCue, 21 Grat. 349.) 
 
 But criminally, the deputy alone is liable to pun- 
 ishment, (unless it be only a fine or pecuniary 
 penalty,) and net the sheriff, unless he personally 
 concurred in the act. (Lewis' case, 4 Leigh, 664; 
 Bac. Abr. Sheriff, (H.) 4.) 
 
 As between the sheriff and his deputy and the lat- 
 ter's sureties, the rule is that a judgment rendered 
 against the sheriff for the deputy's default, in a suit 
 which was defended by the deputy, or which he 
 was duly notified to defend, and had an opportunity 
 of defending, is, in the absence of fraud or collusion, 
 conclusive evidence, not only against the deputy, 
 but against his sureties also. (Crawford v. Tuck, 
 24 Grat. 179 & seq., 186 & seq. ; McDaniell v. 
 Brown, 8 Leigh, 118 ; Scott v. Tankersley, 10 Leigh, 
 581.) 
 2^. Jailors. 
 
 The sheriff is in law the jailor, and he is respon- 
 sible civilly, but not criminally, for the oflicial conduct 
 of his deputy, who has the actual custody of the prison. 
 (V. C. 1873, c. 50, § 6; Dabney v. Taliaferro, 4 Rand. 
 256 ; Bailey v. Griflith, 8 Leigh, 442.) 
 W. C. 
 1'. Jailor's duties in Virginia in respect to the comfort 
 and health of prisoners. 
 
 The jailor is required to have the jail whitewashed 
 twice a year, and kept properly aired, and clean ; to fur- 
 nish the p'i-isoners wholesome and sufficient food, bed 
 and bedding, and also with fire when needed ; to pro- 
 vide nursing and attendance, in case of sickness, and 
 if practicable, a separate apartment; and to exclude 
 the intemperate use of ardent spirits. The observ- 
 ance of these regulations is* secured by a quarterly 
 inspection, made by a committee of three persons 
 (one of them a physician), appointed by the county 
 or corporation court, and acting under a peculiarly 
 stringent oath. (Y. C. 1873, c. 50, § 3, 4, 5.) 
 
 The expense attending the due keeping of the 
 jail-building is defrayed by the county (Y. C. 1873, 
 c. 50, ^i^j^t,zM)^hmW^ ^«^ *^« prisoners is 
 
CHAP. IX. SUBORDINATE MAGISTRATES SHERIFFS. 99 
 
 defrayed by the party in whose behalf the prisoner 
 is confined; that is, if confined at the suit of the 
 Commonwealth, by the State, if at the suit of *an in- 
 dividual in a civil cause, by such person, &c. (V. 0. 
 1873, c. 50, § 16 to 19.) 
 2\ Liability of Jailor for escape of prisoners ; W. C. 
 1'. Jailor's Civil liability for escapes. 
 
 The jailor (i. e., the sheriff) is liable civilly, at 
 common law, for the escape of any prisoner con- 
 fined on civil process, unless it occur by act of God 
 or of a public enemy ; and although at one time that 
 liability was by statute in Virginia restricted to 
 those cases where it was expressly found that the 
 debtor escaped with the consent, or through the negli- 
 gence of the officer (1 E. C. 1819, .550, c. 136, § 3), 
 yet that statute having been repealed (V. C 1873, 
 c. 209, § 1), the common law is thereby restored. 
 (Bac. Abr. Sheriff (H), 5; Id. (P); Johnson v. Ma- 
 con, 1 Wash. 5; S. C. 4 Call. 367; Insur. Co. of 
 the Yalley v. Bailey's Adm'r, 16 Grat. 384; Booth's 
 Case, Id." 529; Stone v. Wilson, 10 Grat. 530.) 
 2' Jailor's Criminal liability for escapes. 
 
 This is confined, for the most part, to the jailor 
 himself, not extending to the sheriff, unless he per- 
 sonally participated in it. (Bac. Abr, Sheriff (H), 4); 
 W. C. 
 1^. Jailor's Criminal liability for escapes, where the 
 prisoner is in confinement on a charge or convic- 
 tion of felony, and the escape is voluntary. 
 
 Jailor is guilty of felony, punished by peniten- 
 tiary from one to five years. (V. 0. 1873, c. 190, 
 § 12; Synops. Crim. Law, 152.) 
 2^. Jailor's Criminal liability for all negligent escapes, 
 and for voluntary escapes, where the prisoner is 
 not confined on a charge or conviction of felony. 
 Jailor is guilty of a misdemeanor, punished by 
 jail not more than six months, and fine not exceed- 
 ing $500. (Y. C. 1873, c. 190, § 12; Synops. 
 Crim. Law, 152 ) 
 3'. Mode whereby Jailor transfers his prisoners to his. 
 successor. 
 
 By an indenture between himself and his successor^ 
 or by an entry upon the record of the county or cor- 
 poration court, containing the names of the prison- 
 ers, mth the causes of their commitment. (V. C. 
 1873, c. 50, § 20; Bac. Abr. Sheriff, (I).) 
 3\ Bailiffs; W. C. 
 v. Bailiffs in England; W. C. 
 Digitizecrby Microsoft® 
 
100 STJBOEDINATE MAGISTEATBS COEONBES. [bOOK I. 
 
 1\ Bailiffs of Hundreds. 
 
 Appointed by the sheriffs over the several hun- 
 dreds in his coiinty, to collect fines therein, summon 
 juries, serve process, &c. (1 Bl. Com. 345 ; Bac. 
 Abr. Sheriff (H) 4.) 
 2*. Special Bailiffs. 
 
 Appointed by the Sheriff to assist the bailiff of 
 the hundred, or to execute process upon any cer- 
 tain occasion. (1 Bl. Com. 345-'6; Bac Abr. 
 Sheriff (H.) 4.) Generally required by the sheriff 
 to give a bond to* indemnify him, and for that rear 
 son styled bound bailiffs (vulgice, bum-bailiffs). (1 
 Bl. Com. 346.) 
 2'. Bailiffs in Virginia. 
 
 It is supposed that the shei'iff may, by special 
 precept, appoint special bailiffs in Virginia, to exe- 
 cute process upon any certain occasion. (Bac. Abr. 
 Sheriff (H.) 4.) 
 4^- Posse Comitatus. 
 
 By the common law, the sheriff and his officers, 
 and also every other person charged with the execu- 
 tion of writs of process, may summon the posse comi- 
 tatus, or power of the county — that is, such a number 
 of men as are necessary to aid him in executing writs, 
 quelling riots, apprehending offenders, &c.; and all 
 persons over fifteen, not aged or decrepit, are bound 
 to obey his summons, under penalty of fine and im- 
 prisonment. (Bac. Abr. Sheriff (N.) 2.) And this 
 doctrine is not only affirmed in Virginia, by statute, 
 but provision is make for the sheriff's requiring the 
 commandant of any regiment in the county to call 
 out such portion thereof to aid him as may be suffi- 
 cient. (V. C. 1873, ch. 49, § 24.) 
 2*. The Coroner 
 
 1 Bl. Com. 346, & seq.; 3 Steph. Com. 30; 1 Tuck. 
 Com. 49, & seq.; ]3ac. Abr. Coroner; 
 W. C. 
 1^. The antiquity and original of the office of Coroner. 
 The annotator of 1 Chit. Bl. 347, n (23), in order 
 to illustrate the ancient dignity of the coroner's office, 
 cites Chaucer's description of the Frankelein: 
 
 "At sessions ther was he lord and sire ; 
 Pul often time lie was Knight of the Shire ; 
 A Shereve had he been, and a Ccronour, 
 Was no wher swiche a worthy vavasour." 
 
 And then refers to a remark of Selden (Tit. Hon. 2 
 and. .3, § 4,), that some copies have it Coronour, and 
 others 0(Elkpti7^(i,i^-A/^pi^W3ft®h.e office of an account- 
 
CHAP. IX.J- SUBOEDINATE MAGISTRATES COEONEES. 101 
 
 ant is perfectly inconsistent with the character de- 
 scribed." The word Contour, however, signifies not 
 an accountant, but a pleader — that is, a member of the 
 legal profession, or sergeant at law, which is surely 
 not beneath the dignity of the Franklein. (Jac. Law 
 Diet. Counter; 3 Th. Co. Lit. 360 ; 10 Co. Proem. ±xxv.) 
 The coroner's office is of equal antiquity with that of 
 the sheriff, having been ordained, along with the latter, 
 to keep the peace when the earls gave up the wardship 
 of the counties. The coroner (lat. Coronator) is so 
 called because he has chiefly to do with pleas of 
 the Crovm. Hence the chief justice of the King's 
 bench, is the chief coroner of England, and may exe- 
 cute the office in any part of the realm. But there are 
 also particular coroners in every county in England, 
 usually four, but sometimes six, and in some instances 
 a less number. (1 Bl. Com. 346-'? ; Bac. Abr. Coroner.) 
 2*. The modes of appointing and removing Coroners, and 
 
 of securing their fidelity; W. C. 
 1\ The Modes in England; W. C. 
 1'. The mode of appointing Coroners in England. 
 
 They have always been, and still are, chosen by 
 all the freeholders in the county court, by virtue of 
 the writ de coronatore eligendo, issued out of chancery, 
 and they hold durante bene placiio. (1 Bl. Com. 347; 
 Bac. Abr. Coroner (A.).) 
 2'. Modes of removing Coroners in England. 
 
 The office is determined, like that of sheriff, by 
 the death of the incumbent, or by the election of a 
 successor, by virtue of the vsrrit de coronatore, &c„ 
 which is issued by royal order whenever he neglects 
 his duties, or when, in consequence of being chosen 
 sheriff, or otherwise, he is disabled to perform them. 
 (1 Bl. Com. 348 ; Bac. Abr. Coroner, (H.); 2 Hawk. 
 P. C. c. 9, § 12, 13.) 
 3*. Mode of securing the fidelity of the Coroner, in 
 England. 
 
 By his official oath, administered by the sheriff; 
 and by the competent estate which the coroner was 
 anciently required to possess, and for which the 
 comity is answerable. (1 Bl. Com. 347; Bac. Abr. 
 Coroner, (A.); 2 Hawk. P. C. c. 9, §,6 to 8.) 
 2*'. The modes of appointing and removing coroners in 
 Virginia, and of securing their fidelity ; W. C. 
 1'. The mode of appointing Coroners in Virginia. 
 
 The county or corporation court nominates to the 
 Governor two persons residing in the county or cor- 
 poration, one of whom the Governor may appoint to 
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102 SUBORDINATE MAGISTEATES COEONEES. [bOOK I. 
 
 be coroner, to hold office during good behavior; and if 
 an additional coroner be needed, he may be ap- 
 pointed in like manner. (Y. C. 18Y3, ch. 49, § 13.) 
 2'. Mode of removing Coroners in Yirginia ; W. C. 
 IK The Causes for removing Coroners. 
 
 The same as in case of the sheriif, {Ante p. 93, 1'^. ) 
 2\ The mode of proceeding to remove Coroners. 
 The same as in case of sheriff, {Ante p.93,2K) 
 3'. Mode of securing the fidelity of Coroners in Vir- 
 ginia; W. C. 
 1"^. The oaths of Mice, 
 
 The same as in case of the sheriff, {Ante p. 94, IK) 
 2K The Official Bond. 
 
 No bond seems required of the coroner, unless he 
 is called on to act as the sheriff's substitute, in which 
 case alone he has any concern with the money or 
 property of others. The statute enacts that before 
 he "shall receive any money, or serve any execu- 
 tion, the court of his county or corporation shall 
 take from him a bond in such penalty as it may 
 deem sufficient," payable to the Commonwealth, 
 and conditioned for the faithful discharge of the 
 duties of his office. (Y. C. 1860, c. 49, § 21; Y. 
 C. 1873, c. 12, § 6.) 
 
 The compiler of the Code of 1 873 seems not to 
 have exhibited his wonted accuracy in regarding 
 sections 20, 21, 22, and 23, of chapter 49, of the 
 edition of 1860, as substituted by section 23 of the 
 same chapter in the edition of 1873. So , much 
 of the latter section as applies to the requirement 
 of a bond appears clearly to relate to those persons 
 who may be by the court appointed to act in place 
 of the coroner, and not to the coroner himself, and 
 therefore in no wise supersedes the occasion for re- 
 taining section 21 of chapter 49 of the Code of 1860. 
 3s. The Duties of Coroner ; W. C. 
 1'^. The Duties of Coroner in England. 
 
 1 Bl. Com. 348-'9; Bac. Abr. Coroner, (C); 2 
 Hawk. P. C. c. 9, § 13 to 56 ; 
 W. C. 
 1*. Judicial Duties of Coroner in England ; 
 
 W. C. 
 IK Within what places the Coroner has jurisdiction. 
 He has jurisdiction everywhere within the realm, 
 except within the verge of the court (there being a 
 special coroner for the King's household), and ex- 
 cept between high and low water mark, when the 
 ,tide i&DHQi^^d^ Afe'§ft3»afi*® o^" the open sea, and is 
 
«HAP. IX.J SUBORDINATE MAGISTRATES OOEONEKS. 103 
 
 under the jurisdiction of the Admiralty. But he has 
 no jurisdiction over the open sea, whieh designation 
 includes such bays and inlets as are too wide to en- 
 able one standing on one side to see distinctly what 
 is done on the other. (Bac Abr. Coroner, (B) ; 2 
 Hawk. P. C. c. 9, § 14, 15, &c.) 
 2^. Cases to which the Coroner's cognizance extends 
 in England ; W. C. 
 
 1^ When any are slain, drowned, or suddenly dead 
 or wounded, or die in prison. 
 
 1 Bl. Com. 348; Bac. Abr. Coroner, (C); 2 
 Hawk. P. C. c. 9, § 19.) 
 2'. In cases of treasure-trove. 
 
 1 Bl. Com. 349 ; Bac. Abr. Coroner, (C). 
 3\ In cases of wrecks of the sea. 
 
 1 Bl. Com. 349 ; Bac. Abr. Coroner, (C). 
 4\ In cases of outlawry. 
 
 To pronounce sentence of outlawry, when the 
 party has been five times exacted from county 
 court to county court, without being arrested. 
 (Bac. Abr. Outlawry, (E), 4 ; 1 Hawk. P. C. c. 
 48, § 26 & seq.) Qucere, if he does not act here- 
 in ministerially ? [3 Bl. Com. 283 ; Synops. Crim. 
 L. 230.) 
 3"^- Proceedings of Coroner in England, when acting 
 judicially. 
 
 He conducts his inquiry by means of a jury of 
 four, five, or six men, who, on an inquiry of death, 
 must be sworn by him super visum corporis, and not 
 otherwise ; but they may then be adjourned to a 
 convenient place. In default of the coroner's act- 
 ing, a justice of the peace may take the inquisition, 
 which must always be in public, subject, however, to 
 the judicial discretion of the coroner. (Bac- Abr. 
 Coroner, (C); 2 Hawk. P. C. c. 9, § 19 & seq.) 
 2\ The ministerial duties of Coroner in England. 
 
 He acts ministerially, merely as the sheriff's sub- 
 stitute, to execute process where the sheriff is a party 
 or otherwise so interested pecuniarily, or by partiality 
 in respect to either party, as to disqualify him to act. 
 (L Bl. Com. 349 ; Bac. Abr. Coroner, (C) and (F).) 
 2^. Duties of Coroner in Virginia; "W. C. 
 1'. Judicial Duties of Coroner in Virginia; W. C. 
 1", Places within which the Coroner has jurisdiction. 
 Everywhere within the Commonwealth, except 
 in forts, dock-yards, &c., subject to the exclusive 
 jurisdiction of the United States, (U. S. Const. 
 A-rt. I, § yiii, 17)^ and except between high and 
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104: SUBOEDINATE MAGISTRATES COEONEES. [bOOK I. 
 
 low water mark, when the tide is in. When the 
 tide is out, he has jurisdiction over that space, as he 
 has also over such navigable waters as are infra 
 corpus comitaius, within the body of some county. 
 But he has no jurisdiction over the open sea, over, 
 which the admiralty courts (United States) alone 
 have cognizance. (Bac. Abr. Coroner, (C); 2 
 Hawk. P. C, c. 9, § 14, 15 &c.) 
 2^. Cases to which the Coroner's cognizance extends, 
 in Virginia. 
 
 It exists Inhere a death is "supposed to have 
 been caused by violence, and not by casualty," to 
 enquire when and by what means deceased came 
 to his death. (V. C. 1873 c. 197, § 1 ; Crim. 
 Synops. 207.) 
 3*^. Proceeding by Coroner, when acting judicially, in 
 Virginia. 
 
 " Upon notice of a death supposed to have been 
 caused by violence, and 7iot by casualty," he is re- 
 quired to issue a warrant to the sheriff or ser- 
 geant, or to any constable of his county or corpora- 
 tion, to summon six jurors to attend at a place and 
 time named, "to enquire upon the view of the 
 
 body of there lying dead, when, how, 
 
 and by what means, he came by his death." If 
 the six jurors do not attend, the officer, or any 
 other person may be required to summon others. 
 An oath is administered by the coroner, who may 
 also summon witnesses, including physicians, and 
 the evidence is reduced to writing. If the jury, 
 by their inquisition,- accuse any one, the coroner 
 is forthwith to commit him to jail, if present, and 
 if not present, is to cause him to be arrested, and 
 broxight before a justice of the peace for commit- 
 ment. If there be no coroner at hand, or he fails 
 to perform his duty, a justice of the peace may 
 act. 
 
 The jurors are to be sworn by the coroner, super 
 visum corporis, and not otherwise, but they may 
 then be adjourned to a convenient place. Hence,, 
 if the body cannot be found, or the remains are 
 too much decomposed to afford any aid to the en- 
 quiry, the coroner has no jui-isdiction. 
 
 The proceeding must always be in public, sub- 
 ject to the usual judicial discretion in the coroner; 
 and although at common law, it could not take 
 place on Sunday, (which is dies non juridicus), yet 
 in Ym0imcl^b)m»^oiM<^; 1873, c. 197, § 1' & 
 
CHAP. IX.J SUBORDINATE MAGISTRATES JUSTICES. 105 
 
 seq.; Acts 1874-75, p. 435, c. 349; Bac. Abr. 
 Coroner (C); 2 Hawk. P. C, c. 9, § 19 & seq. ; 3 
 Th. Co. Lit. 345, and n (B) & (D); Id. 356; 
 Hill's case, 2 Grat. 612; Michie v. Michie, 17 
 Grat. 112.) 
 2'. Ministerial Duties of Coroner in Virginia. 
 
 These duties belong to him only as the sheriff's or 
 sergeant's substitute, when there is no sheriff or ser- 
 geant, or deputy of either; or when for any cause it 
 is not fit that a sheriff or sergeant should serve pro- 
 cess, or summon a jury. And if there is no coroner, 
 or he too is interested, it may be done by a constable, 
 or the court may appoint a crier to act, instead of 
 either coroner or constable. (V. C. 1860, c. 49, § 
 22, 23; V. C. 1873, c. 49, § 23.) 
 4s. Assistants whom Coroner may employ. 
 
 From the silence of the English books, and from the 
 fact that most of the coroner's duties are judicial, there 
 would seem to have been no deputy coroner at. common 
 law. In Virginia, one might for a time have been ap- 
 pointed by the coroner, with the sanction of the county 
 or corporation court; (V. C. 1860, c. 49, §15); but 
 that provision is repealed. (Y. C. 1873, c. 49, § 21, 
 note*.) 
 3^. Justices of the Peace ; "VV. C. 
 1^. The Antiquity and Original of Justices of the Peace ; 
 W. C. 
 l'^- The Antiquity and Original of Justices of the- Peace 
 in England. 
 
 The office originated at common law, but the per- 
 sons holding it were merely conservators of the peace, 
 and were styled cusiodes pacts. They were elected by 
 the freeholders, in full county court. 
 
 By 1 Ed. Ill, c. 16, in order to prevent disturbances 
 consequent on the murder of Ed. II, the appointment 
 was transferred to the king ; by subsequent statutes of 
 the same reign, they were clothed with the power, at 
 sessions, to take indictments, and to hear and determine 
 misdemeanors and felonies; and by 34 Ed. Ill, e. 1, 
 received the appellation of Justices. 
 
 Their commission, which is under the great seal,, 
 (1), appoints them all, jointly and severally, to keep 
 the p,eace, by arresting, binding over, &c. ; and (2), 
 any two or more to enquire of and determine felonies 
 and misdemeanors, with a proviso that some particular 
 justices by name should always be present {quorum 
 aliquem vestrum A, B, C, D, ^c, unum esse volumus); 
 whence the justices so named (who at first were only 
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106 SUBOEDINATE MAGISTEATES — JUSTICES. [bOOK K- 
 
 tliose most eminent for skill and discretion), are said 
 to be of the quorum. (1 Bl. 349 & seq.; Bac. Abr.. 
 Justices (A), (B) and (C).) 
 2^. Antiquity and Original of the office of Justice of the 
 Peace in Yirginia. 
 
 At one of the first regular General Assemblies ever 
 held in Yirginia (A. D. 1623), courts were directed 
 to be kept once a month in the corporations of Charles 
 City and Elizabeth City counties, to decide contro- 
 versies not exceeding in value 100 pounds of tobacco, 
 and to punish fettj offences, the judges being the 
 commavders of plantations {i. e., settlements), and such' 
 others as the governor and council should unite in 
 commission with them, with an appeal to the governor 
 and council. (1 Hen. Stats. 125, 133.) 
 
 In 1631, " Commissioners" were named to hold 
 monthly courts, not only for the former counties of 
 Charles City and Elizabeth City, but also for those 
 of " Henrico, Warwicke River, Warrosquyoake, and 
 Accawmacke," with jmisdiction of suits not exceeding 
 the value of £5 sterling, and of petty offences, and the 
 same power as justices of the peace in England. (1 
 Hen. Stats. 168-'9.) 
 
 In 1642, Commissioners were directed to hdld 
 " County courts" in the counties above named, and 
 "James City, Isle of Wight (Warrosquyoake was 
 changed to Isle of Wight in 1637, 1 Hen. Stats. 577), 
 Upper Norfolk, Lower Norfolk, York and North- 
 ampton," with a jurisdiction limited to 1,600 pounds 
 of tobacco, and an individual cognizance to the com- 
 missioners, under the value of 20 shillings sterling, or 
 200 pounds of tobacco. (1 Hen. Stats. 272-'3.) 
 
 They were not called Justices of the Peace until 
 1661-'2. (3 Hen. Stats. 89.) 
 
 Upon the occtirrence of the revolution in 1776, it 
 was provided that justices of the peace should be ap- 
 pointed by the governor and council, upon the recom- 
 mendation of the county court ; and so it remained 
 imtil the Constitution of 1851, which made them elec- 
 tive by the people, as they still are. (Ya. Const. 1869, 
 Art. YII, § 2.) 
 2«. The Mode of Appointment and of Removal of Jus- 
 tices of the Peace, and also of securing their fidelity; 
 W. C. 
 1^. Mode of Appointment and of Removal of Justices 
 of the Peace in England, and of securing their fidel- 
 ity; W. C. 
 
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CHAP. IX.J SUBOBDINATE MAGISTEATES JUSTICES. 107 
 
 1'. Mode of Appointment of Justices of the Peace in 
 England. 
 
 By the Koyal Commission, under the great seal. 
 (1 Bl. Com. 351 ; -3 Steph. Com. 39 & seq.) 
 2'. Mode of Removal of Justices of the Peace in Eng- 
 land; W. C. 
 
 l'^ By the demise of the Crown, or by any manifes- 
 tation of the King's pleasure. 
 
 1 Bl. Com. 353 ; 3 Steph. Com. 42. 
 2*. Acceptance of an incompatible office. 
 
 e. g. that of sheriff, &c. (1 Bl. Com. 353.) 
 3". Non-user, Mis-user, &c. 
 Bac. Abr. Offices, (M.) 
 3'. Security tor fidelity in office, of justices in England. 
 The oath of office, and the possession of an estate 
 in lands of at least £100 annual value. (1 Bl. Com. 
 352-'3 ; Bac, Abr. Justice, (D).) 
 2"^- Mode of appointment and of removal, of justices of the 
 peace in Virginia, and also of securing their fidelity ; 
 W. C. 
 1'. Mode of appointment of justices of the peace in Vir- 
 ginia. 
 
 Every county is divided into as many compactly 
 located magisterial districts as may be necessary, not 
 less than three, and after three have been formed, 
 containing not less than thirty square miles, each 
 district to have a certain name by which it may sue 
 and be sued. Three justices are elected in each dis- 
 trict by the voters thereof, to serve two years. (Va. 
 Const. 1869, Art. VII, § 2; Amendment 1874.) 
 
 The mayor, recorder and aldermen of every incor- 
 porated town, and the mayor, members of the council, 
 and trustees in towns with a popidation under 5,000, 
 have also the power of justices of the peace. (V. 
 C. 1873, c. 48, § 13.) 
 2*. Mode of removal of justices in Virginia ; W. C. 
 1'. Causes of removal from office, of justices. 
 
 The same causes as for the removal of shferiff. 
 [Ante p. 93, 1"; Sherrard's case, 4 Leigh, 643 ; Tate's 
 case, 3 Leigh, 802; Chew v. Spottsylvania Jus- 
 tices, 2 Va. Cas. 208 ; Poulson v. Accomac Jus- 
 tices, 2 Leigh, 748 ; Fugate's case, 2 Leigh, 724 ; 
 Mann's case, 1 Y&. Cas. 138; Alexander's case, 
 Id. 156; Synopsis Crim. Law, 145 to 148.) 
 2". Mode of proceeding in order to remove justices 
 from office. 
 
 The same as in case of sheriff. {Ante p. 93, 2^ ) 
 
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108 SUBOEDINATE MAGISTRATES JUSTICES. [bOOK I. 
 
 3\ Modes in Virginia of securing fdelity in office, of 
 justices of the peace. 
 
 The oaths of office. These are the same as in the 
 case of sheriff, {ante p. 94, 1"), and to act before taking?' 
 them, subjects the offender to a forfeiture of from 
 $100 to 1000. (V. 0. 18Y3, c. 12, § 9, 5.) 
 3s. The Duties of the justice of the peace ; W. C. 
 1^. The Duties of a justice of the peace in England. 
 The duties of a justice of the peace in England are 
 believed to be properly judicial in all cases, although 
 it is said he aets only ministerially in preserving the 
 peace, and in causing malefactors to be apprehended, 
 and their appearance secured. And certain it is that 
 a justice is not liable to a private action for any wrong 
 that he may commit, even maliciously, save in such 
 cases as these, although by leave of court he may be 
 prosecuted criminally, as he may also be held answer- 
 able civilly if he act corruptly in those cases where he 
 hears and determines as a judge. (1 Bl. Com. 354, & 
 notes; 3 Steph. Com. 43-'4; Bac. Abr. Justices, &c., 
 (E); 6 Burn's Just. 4, 31, 129 &c.; 1 Chit. Gen. Pr. 
 128; 2 Hawk. P. C. c. 8 § 74; Id. c. 13, § 20.) . -,^ 
 2^- The Duties of a justice of the peace in Virginia. 
 The duties of a justice of the peace in Virginia are also 
 principally, if not exclusively judicial, but subject to 
 the qualification noted (supra 1^), as existing in Eng- i 
 land, and also to certain other qualifications named" 
 infra, under 7*, 8', and 9*. They act always singly, 
 (save only in certifying acknowledgments, &c., of 
 married women), although the acting justice may call 
 others to his aid as his advisers, but the action is his. 
 W. C. 
 1'. To keep the peace. 
 
 And therefore to bind over by recognizance such 
 as threaten to break it, to suppress riots, &c., as at 
 common law, at least substantially. (V. C. 1873, 
 ch. 196, § 1, & seq.; Id. eh. 205, § 4 to 13 ; Synops. 
 Crim. L. 204, & seq.) 
 2'. To issue warrants, to arrest and commit felons, and 
 other lesser offenders, or bind them in recognizaneej 
 to answer. ' 
 
 V. C. 1873, ch. 199, § 1, & seq. ; Synops. Crim. 
 L. 214, & seq. ' 
 3\ To issue warrants to search for things stolen, coun- 
 terfeit coin, &c. ; obscene books, &c. ; lottery tickets, 
 &c.,or gaming apparatus; and to arrest the offenders. 
 V. C. 1873, ch. 198, § 1, &c.; Synops. Crim. L. 
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OHAP. IX.J SUBOEDINATE MAGISTEATES CONSTABLES. 109 
 
 4\ To act in place of the Coroner in holding inquests. 
 
 y. G. 1873, ch. 197, § 11. 
 5\ To try, in a summary way, such minor offences as 
 are punished only by fine which cannot exceed $20; 
 or cases of assault and battery not felonious; or 
 cases of petit larceny. 
 
 V. C. 1873, ch. 40, § 1, 2, 3; Id. ch. 147, § 1; Id. 
 ch. 48, § 8, 9; Synops. Orim. L. 210, & seq. 
 6'. To try civil causes of small value. 
 
 Where the claim is to property (i. e., personal 
 property), or to a debt or other money, not of greater 
 value or amount than $50 (exclusive of interest), or 
 if defendant object, not greater than $20 ; or in case 
 of trespass on lands by cattle ; or in cases of unlawful 
 detainer by tenants for terms not originally exceed- 
 ing one month. (Y. C. 1873, ch. 147, § 1; Id. ch. 
 97, § 18; Id. ch. 130, § 1; Miller v. Marshall, 1 Va. 
 Cas. 158; Warwick & al. v. Mayo, Mayor, &c., 15 
 Grat. 541 to 543.) 
 7\ To issue warrants, upon application of an overseer 
 of the poor, to remove a pauper, &c. 
 V. 0. ch. 51, § 16. 
 
 The duties specified under heads 7', 8' and 9' are 
 considered ministerial. The others are deemed judi- 
 cial. 
 8'. To take and certify acknowledgments of convey- 
 ances, &c., for registry, and also affidavits and depo- 
 sitions. \ 
 
 Y. C. 1873, ch. 117, § 3; Id. ch. 48, § 5; Id. 172, 
 §29. 
 9'. To take and certify {iiuo together) the privy exami- 
 nation and acknowledgment of a married woman. 
 Y. C. 1873, ch. 117, § 4. 
 4'. Constables; W. C. 
 is. The antiquity and original of the office of Constable; 
 W. C. 
 1''. the antiquity and original of the office of Constable 
 in England. 
 
 There are various officers so called — namely, the 
 Lord High Constable of England (now extinct), the 
 Constable of the Hundred, sometimes styled High 
 Constable, and the constable of the ville, township or 
 manor, generally called petty constable. The name, 
 , which was first bestowed upon the most eminent, is 
 said to be derived from the Latin, comes stabuli, be- 
 cause the Lord High Constable of England was leader 
 of the King's armies', and had cognizance of whatever 
 pertained to arms, war, or knighthood. 
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110 SUBOKDINATE MAfilBTEATES CONSTABLES. [boOK I. 
 
 The other two classes of constables are very an- 
 cient, more ancient perhaps than the Conquest, accord- 
 ing to Lord Coke, going back (under the designation"? 
 of head-borough, boroughs-ealder, or borsholder), to the 
 institution of the frank-pledge by Alfred. N'o mention, 
 however, of such an oificer as constable, at least by 
 that name, occurs earlier than 36 Hen. Ill (A. I). 
 1252), when a writ is preserved providing for the ap- 
 pointment of a chief constable in every hundred, and 
 in every township, ville, or village, a petty constable or 
 two, according*to the nxmiber of the inhabitants, for 
 the conservation of the King^s peace. (1 Bl. Com. 365, 
 &c. ; Bac. Abr. Constable (A.) ; Jac. Law Diet. Con- 
 stable; 2 Hawk. P. C. c. 10, § 33-'4; 1 Burns' Just. 
 644.) 
 
 2''. The antiquity and original of the office of Constable 
 in Yirginia. 
 
 Constables were recognized by the statutes of Vir- 
 ginia so early as 1643 (when they seem to have been 
 already well known officers), being required to pre- 
 sent to the " commissioners of the monthly courts," 
 such as failed to plant two acres of corn for each 
 laboring person. (1 Hen. Stats. 246.) Various 
 other acts previous to the revolution imposed sundry , 
 duties upon them, besides their principal common law 
 duty as conservators of the peace; e. g., by act of 
 1730, to see to the destruction of tobacco suckers, in 
 order to improve the staple of tobacco (4 Hen. Stats. 
 242); by act of 1748, to suppress unlawful meetings 
 of slaves (5 Hen. Stats. 109); and by act of 1755, to 
 convey deserters to the commands where they belong - 
 (6 Hen. Stats. 563). 
 
 By the Constitution of 1776, (Art. 15,) constables 
 were directed to be " appointed by the justices," wh^ch 
 seems to have been the usage from the beginning^ 
 without the aid of any statute, by analogy to the 
 sheriff's laum or leet in England. (Hen. Jiist. 245.) 
 And they continued to be appointed by the justices, i 
 {i. e., the county and corporation courts,) imtil by the 
 Constitution of 1851, (Art. VI, § 30,) in an evU hour, 
 they were ordered to be elected bi/ the voters in the sev- 
 eral magisterial districts, as they also are by the Con- 
 stitution of 1869, (Art. YII, § 2.) 
 2s. Mode of appointment and removal of Constables, and 
 of securing their fidelity ; W. C. 
 
 l'^. Mode of appointment, and of removal of Constableflj 
 and of secm'ing their fidelity in England ; W. C. 
 
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CHAP. IX.J SUBOBDINATE MAGISTEATES CONSTABLES. Ill 
 
 IK Mode of appoiniment of Constables in England. 
 
 High, or chief constables of hundreds, are appointed, 
 it would seem, by the sheriff's tourn, or in default of 
 that, by the justices at their special sessions for the 
 several divisions of the county. (2 Hawk. P. C. c. 
 10, § 37 ; 1 Bl. Com. 355 ; 3 Steph. Com. 47.) 
 
 Petti/ constables of villes, &c., were formerly chosen 
 by the jury at the court-leet for the decennary or tith- 
 ing, or if no court-leet be held, by two justices : but 
 by 5 and 6 Vict. c. 109, the appointment is made in 
 all cases by the justices, at special sessions. (1 Bl. 
 Com. 356 :' 3 Steph. Com. 48-'9.) 
 2'. Mode of removal of Constables in England. 
 
 At common law a chief constable was removable 
 by the sheriff, as the judge of tourn, and a petty con- 
 stable by the steward, as judge of the court-leet. By 
 statute 5 and 6 Vict. c. 109, the petty constable con- 
 tinues in ofl&ce a year, and imtil his successor is ap- 
 pointed, and it would seem is removable by the special 
 sessions. Both classes may doubtless be removed for 
 the same causes as sheriffs in Virginia, {ante p. 93, 
 2"^.) (2 Hawk. P. C. c. 10, § 38; 3 Steph. Com. 49.) 
 3\ Mode of securing fidelity of Constables in England. 
 By oath of office, which now defines pretty clearly 
 the constable's duty. (3 Steph. Com. 49; 1 Burn's 
 Just. 653.) 
 2'^- Mode of appointment, and of removal of Constables, 
 and of securing their fidelity in Virginia ; W. C. 
 1'. Mode of appointment of Constables in Virginia. 
 
 A constable is elected by the voters in each magiste- 
 rial district, on the fourth Thursday in May, to serve 
 tioo years from first of July ensuing. (Va. Const. 
 1869, Art. VII, § 2 ; Amendments 1874.) 
 2\ Mode of removal of Constables in Virginia. 
 
 The causes and modes of removal are the same as 
 in case of sheriffs, {ante p. 93, 1", 2") (V. C. 1873, 
 c. 49, § 15.) 
 3\ Modes of securing fidelity of Constables in Virginia. 
 W. C. 
 1"^. The Oaths of Office. 
 
 The same as in case of the sheriff, {ante p. 94 ; V. 
 C. 1873, c. 12, § 1.) 
 2\ Official bond. 
 
 To be executed when constable qualifies by tak- 
 ing the oaths before the judge of the circuit or 
 county court of his county (or in a corporation, be- 
 fore the city judge), in term time or vacation, in a 
 
 penalty of not less than $2,000, with surety deemed 
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112 SUBOEDINATE MAGISTEATB CONSTABLES. [boOKI. 
 
 sufficient by the coiirt or judge, payable to the Com- 
 monwealth of Yirginia, arid recorded in the county 
 (or city?) court. (Y. C. 1873, c. 49, § 16; Id. c. 
 13, § 6.) 
 36. The Duties of a Constable; W. C. 
 I''. The Duties of a Constable in England. 
 
 To keep the peace within his district, for which pur- 
 pose he is armed with large powers of arresting and 
 imprisoning, &c.; to present at the tourn or leei, all 
 persons guilty of offences inquirable therein ; and to 
 be the minisieriai officer of the justices of the peace. 
 He is said to have power to appoint a deputy in case 
 of necessity (his duty being wholly ministerial), al- 
 though it can seldom be needful, as a justice may, if 
 occasion require, appoint a special constable. (1 Bl. 
 Com. 356; Bac. Abr. Constable (C) & (D); 2 Hawk. 
 P. C, c. 10, § 34 to 86, 49 & n (4).) 
 2^. The duties of a Constable in Virginia ; "W. C. 
 1'. As conservator of the peace. 
 
 He is empowered, by virtue of his common law 
 authority, to keep the peace, and may exercise for 
 that purpose the same powers as at common law, 
 unless forbidden by statute. It is furthermore his 
 duty, as well as that of the sheriff and other officers, 
 to give information of the violation of any penal law, 
 to the attorney for the Commonwealth, in order that 
 proceedings may be instituted. (1 Bl. Cora. 356; 
 Bac. Abr. Constable (C) ; 2 Hawk. P. C, c. 10, § 34; 
 V. C. 1873, c. 161, § 8.) 
 
 Sergeants of corporate towns, whose population is 
 under 5,000, and which have a mayor and council, 
 or board of trustees, have the powers of constables. 
 (V. C. 1873, c. 49, § 8.) 
 2\ As ministerial officer of justices of the peace, or of 
 the coroner. 
 
 e.g., In serving summons (V. C. 1873, c. 147, § 2), 
 subpoenas (Id. § 3), executions (Id. § 9), writs of inter- 
 pleader (Id. § 14), attachments (Id. c. 148, § 6), dis- 
 tress-warrants (Id. c. 134, § 10), arrests on criminal 
 charges (Id. 199, § 2, &c.), arrests upon demand of 
 surety of peace, &c. (V. C. c. 196, § 2, 3, & seq.), 
 search-warrants (Id. c. 198, § 1, 3), coroner's juries 
 of inquest (Id. 197, § 1) Bac. Abr. Constable (D); 
 2 Hawk. P. C, e. 10, § 35 ; 1 Burn's Just. 659, & seq.) 
 5*. Surveyors of Highways ; W. C. 
 
 The doctrine relating to surveyors of highways may 
 be arranged under the heads following, namely: (1)) 
 The antiqx^j^^^^j^^^ol^ office; (2), The mode 
 
CHAP. IX.] SUBOBDINATE MAGISTEATES SURVEYOES OF EOAbS. 113 
 
 of appointment and removal, and of securinggthe fidelity 
 of surveyors; (3), The duties of surveyors; (4,) The 
 establishing or altering of roads||or landings ; (5), The 
 building of bridges or causeways ; (6), The discontinu- 
 ing of roads and landings ; 
 1^. Antiquity and original of the office of Surveyor of 
 Highways; W. C. 
 I'*. Antiquity and original of the office of Surveyor of 
 Highways in England. 
 • By the common law, the parish was bound to keep 
 
 the highways within its limits in repair, whilst bridges 
 were built and repaired at the expense of the county. 
 But although the parish was and is liable to indict- 
 ment for neglect of its duty in this respect, it was not 
 incumbent on the church-wardens, nor on any partic- 
 ular officer, to call the parish together, and set them 
 to work, until 2 & 3 Ph. & Mary required smweyors 
 of highways to be chosen for every parish by the 
 constable and chiffch-wardens, their duties being 
 regulated by several siibsequent statutes, especially by 
 5 & 6 Wm. IV, c. 50, and 4 & 5 Yict. c. 51, 59. 
 (1 Bl. Com. 357-'8; 3 Steph. Com. 260-'61; Bac. 
 Abr. Highways (A).) 
 2^^. Antiquity and original of the office of Surveyor of 
 Highways in Yirginia. 
 
 The earliest act touching the opening or care of 
 highways is in 1632. It provides that "highwaies 
 shall be layd out in such convenient places as are 
 requisite, as the governour and counsell, or the com- 
 missioners for the mounthlie corts shall appoint, accord- 
 ing as the parishioners of every parish shall agree." 
 (1 Hen. Stats. 199.) And in 1657 it was enacted 
 that "surveyors of highwaies, and maintenance for 
 bridges, be yearly kept and appointed in each countie 
 court respectively, and that all general waies from 
 county to county, and all church waies be laied out and 
 cleered yearly, as each county court shall think Jitt, 
 needful, and convenient, respect being had to the course 
 used in England, to that end." (1 Hen. Stats. 436.) 
 By act of 1661, the county courts were required an- 
 nually to appoint surveyors, who, through the vestries 
 of the several parishes, should call out the laboring 
 men to do the work as required by the surveyors. 
 (2 Hen. Stats. 103.) And in 1705, the law took sub- 
 stantially the shape it has since, until recently, re- 
 tained, the public roads- being divided into precincts, 
 to each of which a surveyor was annually assigned by 
 the coimty court, the labor being supplied from the 
 i)igitized by Microsoft® 
 
114 SUBOEDINATE MAGISTRATES SURVEYORS OF ROADS. [bOOK I. 
 
 %nale laboring persons that were tithable, i. e., such as 
 were over 16. (3 Hen. Stats. 258, 392.) 
 2^. Mode of appointment, and of removal of Surveyors of 
 Highways, and of securing their fidelity ; W. C. 
 1^. Mode of appointment and of removal, and of secur- 
 ing the fidelity of Surveyors of Highways in Eng- 
 land; W. C. 
 1'. Mode of appointment of Surveyors in England. 
 
 Surveyors of highways were originally appointed 
 by the constable and church-wardens of the parish, ' 
 and more recently (by 6 & 6 "Wni. IV, c. 50, and 4 
 & 5 Yict. c. 51, 59), are elected annually, by the 
 inhabitants of the parish, in vestry assembled. (1 
 Bl. Com. 658 ; 3 Steph. Com. 261.) 
 2'. Mode of removal of Surveyors of Highways in England. 
 In like manner as sheriffs in Virginia. {Ante p. 
 93, 2'.) 
 3^ Mode of securing fidelity of Surveyors in England. 
 It would seem only by the general penalties for 
 official malfeasance and non-feasance. (3 Steph. 
 Com. 262.) 
 2^. Mode of appointment, and of removal of Surveyors ^ 
 of Highways in Virginia, and of securing their ' 
 fidelity; W. C. 
 1'. Mode of appointment of Surveyors of Highways, in 
 Virginia. 
 
 The court of each county is required to divide into 
 precincts all the county-roads not kept in order 
 under any contract, and as often as it pleases, may 
 appoint a surveyor for each precinct, who holds his 
 office untU another is appointed in his stead; but 
 after two years he may give up his office, if his road 
 be in good order, and cannot be again appointed 
 without his consent, within two years thereafter. 
 (Acts 18Y4-"r5, p. 180, c. 181, § 17, 18.) 
 
 The county court, whenever it shall deeem it neces- 
 sary, may appoint one or more freeholders, not ex- 
 ceeding three, as commissioners to examine existiag 
 roads, and routes for new roads, who shall report to 
 the court as to the expediency of altering old or 
 opening new roads, or of building or repairing any 
 bridge. (Acts 1874:-'5, p. 17T, c. 181.) 
 2\ Mode of removal of Surveyors of Highways in Virginia, 
 The causes and modes seem to be essentially the 
 same as in case of sheriffs. {Ante, p. 93, 1''. & 
 2") ; but as the county court may remove them at 
 . pleasure, the more formal methods will be seldom 
 
 ^^®^- Digitized by Microsoft® 
 
CHAP. IX.j SUBORDINATE MAGISTRATES SUEVEYOES OF EOADS. 115 
 
 3'. Mode of securing the fidelity of Surveyors of High- 
 ways in Virginia. 
 
 By the oaths of office, as in ease of sheriff, {ante 
 p. 94, 1"); by the penalties for malfeasance and 
 non-feasance, at common laio, viz.: forfeiture of 
 office and fine; and by the penalty denounced by 
 the statute, namely : a fine of from $5 to $30. (Bac. 
 Abr. Offices (N); 1 Th. Co. Lit. 238-'9, & n (I)j 
 Acts 1874:-'5, p. 183, c. 181, § 28.) 
 3^. Duties of Surveyors of Highways; W. C. 
 I''- Duties of Surveyors of Highways in England. 
 
 To keep the highways in repair, to remove obstruc- 
 tions and nuisances, and to set up guide posts, &c. 
 (1 Bl. Com. 358 ; 3 Steph. Com. 262, &c.) 
 
 But in later years, most of the great roads of Eng- 
 land have been made, and are kept in repair, under 
 turnpike acts, whereby certain commissioners are em- 
 powered to construct the road, and to institute tolls 
 in order to re-imburse themselves, and to defray the 
 cost of keeping the roads in good condition. (1 BL 
 Com. 359; 3 Steph. Com. 266 & seq.) 
 2^. Duties of Surveyors of Highways in Virginia. 
 
 To superintend the roads in his precinct, and to 
 cause them to be kept cleared, smoothed of rocks and 
 obstructions, of the necessary width (usually thirty 
 feet), well drained, and otherwise in good order, and 
 secure from the falling of dead timber ; to erect sign 
 boards at the forks and crossings ; across every stream, 
 where it is necessary and practicable, to place abridge, 
 or at least a bench or log, for foot passengers ; to con- 
 struct causeways when needful and practicable; and 
 to keep both bridges and causeways in as good order 
 as the means in his power will permit; to open new 
 roads and landings, and alter old ones; to collect the 
 road-taxes and fines; and to render to the county court 
 annually an account of his receipts and disbursements. 
 (Acts 1874-'5, p. 180, chi 181, § 19, &c.); 
 W. C. 
 1*. Means provided for keeping the public roads in re- 
 pair, &c. 
 
 The means principally relied upon to 'open new 
 roads and to keep existing ones in repair are the labor 
 of the country — that is, of all male persons (with 
 some exceptions) between the ages of sixteen and 
 sixty years. This, to be sure, is, to a trifling extent, 
 eked out' by the fines assessed upon delinquents, 
 which are at the rate of seventy-five cents for each 
 day of failujKe. to„work '^len required by the over- 
 
116 SUBOKDINATE MAGISTEATES SUEVETOES OF EOADS. [bOOK I. 
 
 seer. But where the surveyor of any precinct is un- 
 able with the means and labor at his disposal to keep 
 the road in good order, he may be authorized by the 
 county court to hire labor for the purpose,. and the 
 expense is to be paid out of the county fund. (Acts 
 1874:-'5, p. 181, &c._, ch. 181, § 21, & seq.) And 
 the making, improving, or keeping in order any 
 road, or part of a road, may, in the discretion of the 
 of the court, be let out to contract, the expense be- 
 ing defrayed out of the county levy. (Acts 1874:-'5, 
 p. 184, ch. 181, § 33, & seq.) 
 W. C. 
 I''. Eoad labor. 
 
 All males between sixteen and sixty years, in each 
 road district, are appointed to work on some pubhc 
 road therein, except the residents in towns which 
 provide for their own poor and keep theii* streets 
 in order, ministers of the gospel and persons dis- 
 abled. The penalty for failure is seventy-five cents 
 per day, which is to be applied to the roads. (Acts 
 1874-'5, p. 181, ch. 18, § 21, 22.) 
 2^=^. Materials needed for roads, &c. 
 
 Wood, stone, gravel or earth necessary in con- 
 structing or repairing any road, bridge or cause- 
 way, may be taken by the overseer from any come- 
 nient lands, or a ditch for draining the road may 
 be cut through adjoining lands (provided it be not 
 a lot in a town, yard or garden); the damage done, 
 if desired, to be estimated by three sworn free- 
 holders, under a warrant from a justice, and in- 
 cluded by the board of supervisors in the next county 
 levy. (Acts 1874-'75, p. 182, ch. 181, § 23, & seq.) 
 S^. Accounting by Overseer for fines, and expenses 
 incurred 
 
 He must account ' annually to the coimty court 
 for the fines collected and expended, showing the 
 amount paid' in money, and in labor, teams, &c., 
 respectively ; and the amount, in his opinion, re- 
 quired to keep his road in order for the ensuing 
 year. And he is entitled to compensation at the 
 discretion of the county court, to be paid out of the 
 county levy, not exceeding one dollar per day for 
 the time actually employed in summoning hands to 
 work on the road. (Acts 1874-'75, p. 183, ch. 181, 
 § 23, 27, 28.) 
 2'. Mode of redress, if roads are not kept in repair, &c. 
 The overseer is supposed to be punishable, as at 
 commoQi^Yg^<ffy^^^Qlg}^ of his duty, by fine 
 
CHAP. IX.] 8UB0EDINATB MAGISTRATES SIEBVEYOES OP E0AD8. 117 
 
 and imprisonment (Bac. Abr. Offices (N.); 1 Th. Co. 
 Lit. 238-'9, and n (I, 1); and the statute imposes, 
 for any failure to perform what the law requires from 
 him, a fine of not less than five nor more than thirty 
 dollars. (Acts 1874:'75, p. 183, ch. 181, § 28.) 
 is.The establishing or altering of roads or landings; W.C. 
 l'^. What power may establish or alter roads or landings. 
 The power belongs to the county courts, to be exer- 
 cised at their discretion, or to be called forth by the 
 application of indi\ddual8. (Acts 1874-'75, p. 177, ch. 
 181, § 3, & seq.) 
 2''- The method of proceeding to establish or alter a 
 road or landing. 
 
 The method, in case of a landing, is in general the 
 same as in case of a road. For brevity's sake, the 
 statement is applied to roads only. (Acts 1874-'75, 
 p. 177, ch. 181, § 3, & seq.) 
 W. C. 
 1\ Where the whole road is in one county; W. .0. 
 1^. PreHminary examination by a Commissioner of 
 Koads, or by Viewers, and their report. 
 
 The county court, upon its own motion, or upon 
 the application of any person, may direct one or 
 more commissioners of roads, or three or more 
 viewers (who it is said need not be sworn), to view 
 the ground and report to the court, the conven- 
 iences and inconveniences that will result, as well 
 to individuals as to the public, if such road shall be 
 as proposed, and especially whether it will invade 
 any yard, garden or orchard. The commissioner 
 (or the viewers) shall, besides these particulars, re- 
 port also the facts, in his opinion, useful in de- 
 termining the jiidgment of the coui-t ; compare the 
 route proposed with other routes, with the reasons 
 for preferring either; state the names of the land- 
 holders, which of them require compensation, and 
 the probable amount; and return, with his report, 
 a map or diagram of the route, employing a sur- 
 * veyor if necessary. (Acts 1874-75, p. 177, ch. 
 181, § 3,4; Clarke V. Mayo, 4 Call. 374; Fishes 
 V. Smith, 5 Leigh, 611; Crenshaw v. Patterson, 6 
 Leigh, 457; Lewis v. Washington, 5 Grat. 265; 
 White V. Coleman, 6 Grat. 138; Mitchell v. Thorn- 
 ton, 21 Grat. 164. ) 
 2\ Summoning the land-owners to show cause against 
 establishing or altering the road. 
 
 Upon this report unless the opinion of the court 
 be adyerfift4aytb§ «»fe44i^iWft?iit or alteration of the 
 
118 BPBOEDINATE MAGISTEATES SUEVEYOES OF EOADS. [bOOK I. 
 
 road, it shall summon the land-owners concerned, 
 to show cause against it ; and then, if the court has 
 enough before it to fix upon a just compensation to 
 them, and they are willing to accept it, it may de- 
 termine the matter without further proceedrags. 
 Otherwise it is to appoint five disinterested free- 
 holders of the county, (any three of whom may act,) 
 for the purpose of ascertaining a just compensation 
 for the lands to be used for the road. (Acts 1874-5, 
 p. 178, c. 181, 1 6, 7.) 
 
 3"^. Tenor of the proceedings by the Commissioners. 
 The commissioners are to meet on the lands in 
 question, at a certain place and day, to be named in 
 the order of court appointing them, of which the 
 sheriff shall give notice to the land-owners, and after 
 being sworn, shall ascertain, agreeably to V. 0. 1873, 
 c. 56, § 9 and 10, what will be a just compensation to 
 each proprietor for his land proposed to be taken, and 
 for the damage to the residue of his tract beyond the 
 -peculiar benefit which will be derived in respect to 
 such residue from the road ; and this inquest, signed 
 by the commissioners, the latter must return to the 
 court, along with the certificate of their oath. But 
 if the sum allowed by the commissioners is not more 
 than that previously proposed by the court, the land- 
 owner is to pay the cost occasioned by the order ap- 
 pointing the commissioners. (Acts 1874-'5, p. 178, 
 c. 181, § 78 ; Y. C. 1873, c. 56, § 9, 10 ; Atto. 
 Gen. V. Turpin, 3 Hen. & M. 148 ; Jas. E.iv. & Ka. 
 Co. V. Turner, 9 Leigh, 313; Muir v. Falconer & 
 als. 10 Grat. 12.) 
 
 4^^. Sentence, or Order of Court. 
 
 Upon the report, the report of the commission- 
 ers, and other evidence, if any, the court shall de- 
 termine whether the road shall be established or al- 
 tered as proposed, or not ; and if it determines to es- 
 tablish or alter it, the county is chargeable with the 
 compensation to the proprietors or tenants, with such 
 costs as the court may allow the applicants, and the 
 costs of the commission, except where the sum allow- 
 ed by the commissioners to any land-owner is not more 
 than the court before appointing the commissioners 
 had consented to allow him, in which case he is ad- 
 judged to pay the costs of the commission. (Acts 
 i874-'5, p. 179, c. 181, § 10, 8.) On the other hand, 
 when the court decides against the application, the 
 applicant is to pay the costs, except the compensation 
 of tBigiimido^iMiSSgs<e^®ers, and surveyor; and 
 except also the costs of the commissioners in the case 
 
■CHAP. IX.] SUBOBDINATE MAGISTRATES 8UETEY0ES OF EOADS. 119 
 
 above mentioned, where, in consequence of the sum 
 awarded by the commissioners, not exceeding that 
 which the court had previously consented to allow, 
 the land-owner has to pay the costs of the commis- 
 sion. (Acts 1874-'5, p. 179, c. 181, § 12, 8.) 
 1". "Where the road to be established is not wholly in one 
 county. 
 
 The court of the one county may notify that of the 
 other that a road is needed from the line of the 
 former county to some place in the latter, and if the 
 court of the latter county concm-s, the same proceed- 
 ings are had as when a person applies to have a road 
 established. If it does not concur, or if either court 
 fail to do its part towards the work, the Circuit 
 court of the county whose court is complained -of, at 
 the instance of the court of the other county, shall by 
 mandamus compel the delinquent court to do what 
 it ought. (Acts 1874^'5, p. 183, c. 181, § 30 & seq.) 
 58. The building of Bridges or Causeways. 
 
 Small bridges and causeways, which it is practicable 
 for the overseer of a road-precinct to construct or re- 
 pair with the means at his disposal, are to be con- 
 structed and repaired accordingly. But if that be not 
 practicable, the work must be contracted for by com- 
 missioners appointed by the coimty court, and acting 
 under its direction ; no contract being valid until it is 
 ratified and approved by the court. The needful 
 charges of such works are included in the county levy. 
 And where the work is necessary " over a place " be- 
 tween two counties, it is performed at their common 
 ratable expense, in pm-suance of an arrangement concur- 
 red in by the courts thereof respectively ; or if they do 
 not agree, the matter is adjusted by means of a man- 
 damus from the Circuit court of the county whose court 
 is recusant. (Acts 1874-'5, p. 183, c. 181, § 29 & 
 seq.) 
 
 The mode of making contracts for bridges, roads, 
 -&c., is prescribed with minuteness, and is essentially 
 the same in all the cases. One or more commissioners 
 of roads arc directed to receive proposals for the work, 
 for which they are to advertise in a newspaper for four 
 weeks, or at the front-door of the court house on a 
 court-day, the proposals to be put in, in wi'iting, on the 
 first day of the next court, or some named day subse- 
 quent thereto. They make the contract, and return it, 
 with all the proposals, to the county court ; and from the 
 time it is ratified by the court, and a bond with sufii- 
 -cient sv^j^^etPB^imi^mwM>y the court, is given by 
 
120 SUBOEDINATE MAGISTRATES STJEVETOKS OF EOADS. [bOOK r. 
 
 the contractor, it is obligatoiy on the contractor and 
 on the county. (Acts 1874:-'5,p.l84:,c. 181, § 33 cfeseq.) 
 6^. The Discontinuing of Roads or Landings. 
 
 The county court has power in its discretion to dis- 
 continue a county road and landing, after due notice, 
 and after a report in writing, from three or more viewers 
 or commissioners, whether any, and if any, what con- 
 venienee would result from the discontinuance. If 
 upon this report and other evidence the court shall 
 think fit to di^ontinue such road or landing, it must 
 take care, in case it be an established post-road, to sus- 
 suspend final action until another has been substituted. 
 (Acts 1874-'5, p. 179, c. 181, § 13 ; Senter & als v. 
 Pugh, 9 Grat. 260.) 
 7^. Erection of Gates across roads, &c. 
 
 Application may be made to a county court, after 
 due notice, to permit gates to be erected across any 
 road therein ; but always to be discontinued when the 
 court shall so direct. (Acts 1874-5, p. 179, c. 181, § 
 14, 15 ; Carpenter & als. v. Sims, 3 Leigh, 675.) 
 8^. Extent of right acquired by the public, upon opening 
 a highway. 
 
 The public acquires merely a right of passage. The 
 freehold, and all the profits of the soil (e. g., trees, mines, 
 &c.), belong still to the proprietor from whom the right 
 of passage was acquired. He may therefore recover 
 the freehold in ejectment, subject to the right of way, 
 and may maintain an action of trespass for digging the 
 ground. If it be unknown from which of two adjacent 
 proprietors a highway was at first taken, or if the high- 
 way be the boundary between them, they are under- 
 stood to own each ad medium filum vice. (Bac. Abr. 
 Highways (B) ; Boiling v. Mayor of Petersburg, &c., 
 8 Eand. 563 ; Home v. Richards, 4 Call, 441 ; Harris 
 V. Elliott, 10 Pet. 25.) 
 9^. Dedication of Highways to the public. 
 
 The long enjoyment of a road by the public as a 
 highway is only one element to justify a presumption 
 of dedication. There must also be an acceptance by its 
 accredited officers, as by appointing overseers, or the 
 like. On the other hand, if the public authorities treat 
 a road as a public highway, a comparatively short time 
 will warrant a presumption of dedication on the part of 
 the owner. (Clarke v. Mayo, 4 Call, 374; Holleman 
 V. Com'th, 2 Va. Cas. 135; Sampson v. Goochland 
 Justices, 5 Grat. 251 ; Kelly's Case, 8 Grat. 632.) 
 10^. Police regulationB touching Highways. 
 
 To kilrlPKr^Eira leave it standing within fifty feet 
 
CHAP. IX.J SUBOEDINATE MA&ISTEATES OVEESEBES OF POOE. 121 
 
 of a road ; to injure a bridge, sign-board, or mile-stone ; 
 to obstruct a road ; to allow one's mill-dam, over which 
 a road passes, to be in unsafe condition; to fail to drive 
 seasonably to the right, when meeting or overtaking a 
 vehicle; to drive or ride over a bridge faster than a 
 walk ; to be concerned in a horse-race on a public road ; 
 to fail in one's duty as a surveyor; all these are mis- 
 demeanors punished by fines of various amounts, which, 
 if they may not exceed $20, are recoverable before a 
 justice, otherwise ia a court of record. (Acts 1874-'75, 
 p. 180, c. 181, § 16; Y. C. 18Y3, c. 96, § 1 to 4; Id. c. 
 41, § 1 ; Synops. Crim. Law, 180-'81.) 
 6*. Overseers of the Poor ; "W. C 
 is. Antiquity and original of the oflBce of Overseer of 
 the Poor; W. 0. 
 l'^. Antiquity and original of the office of Overseer of 
 the Poor in England ; 
 
 Until the time of Henry VIII, the poor of England 
 subsisted entirely upon private benevolence, and 
 especially upon the alms of the monasteries, and other 
 religious houses. It is said, indeed, that by the com- 
 mon law the poor were to be sustained by the parson 
 and the parishioners, so that none should die for de- 
 fault of sustenance; but no compulsory method was 
 chalked out for the purpose, until the Stat. 27 Hen. 
 VIII, c. 25, when the total dissolution of the monas- 
 teries made some legal and coercive provision indis- 
 pensable. During the reign of Henry VIII, and his 
 children, the legal system of maintaining the poor 
 was not a little improved by the erection of hospitals 
 for the impotent, and work-houses for the vigorous and 
 idle, and at length, by 43 Eliz. c. 2, overseers of the poor 
 were provided for every parish. (1 Bl. Com. 359-'60.) 
 2^. Antiquity and original of the Overseer of the Poor 
 in Virginia. 
 
 No statute containing a compulsory provision for 
 the poor seems to have been enacted in Virginia until 
 1720, save only that poor children were ordered to be 
 bound out, in some instances. The church-wardens, 
 and not overseers of the poor, were at first charged 
 with the system. The provisions closely resembled 
 those of our existing statutes, especially as respects a 
 settlement, and the treatment of vagabonds. (4 Hen. 
 Stats. 208 & seq. ; 1 Do. 336.) 
 
 The subject remained in the hands of the church- 
 wardens and vestries until the dissolution of the church 
 establishment in 1779, when overseers of the poor were 
 ^veoted^v.M^toiM^.17Ram Hen. Stats. 288), to 
 
122 SUBORDINATE MA&ISTEATE8 0VBE8EBKS OF POOE. [bOOK I. 
 
 be chosen in certain counties, a provision which, in 
 1782, was extended to certain other counties (11 Hen. 
 Stats. 62, &c.), and in 1785 to the whole Common- 
 wealth, the coimties being laid off into districts, and 
 three overseers chosen by the legal voters in eacli. , 
 (12 Hen. Stats. 27 & seq.) 
 2s. Appointment, removal, and mode of securing fidelity 
 of Overseers of poor; W. C. 
 
 l"^. Modes of appointment, and of removal of Overseers 
 of poor, and of securing their fidelity in England; 
 
 W. c. • 
 
 1\ Mode of appointment of Overseers of poor, in Eng- 
 land. 
 
 By Stat. 43, Eliz. c. 2, they were appointed for a 
 year, by two neighboring justices, in addition to the 
 church-wardens. By Stat. 22 Geo. Ill, c. 83, par- 
 ishes were authorized to substitute guardians for 
 overseers, and by 59 Geo. Ill, c. 12, to substitute a 
 committee of parishioners, called a select vestry. By 
 Stat. 4 & 5 Wm. IV, c. 76, and several subsequent 
 acts, the whole supervision of the execution of the 
 poor-laws of the realm, was committed to a central 
 board, called "the poor law commissioners" with 
 "power to make regulations for the guidance of the 
 parochial authorities, subject to some restraints. (1 
 Bl. Com. 360; 3 Steph. Com. 200 & seq.) 
 2'. Mode of removal of Overseers of poor in England. 
 They are liable to be removed by the appoint- 
 ment of successors, by removal from the locality, or 
 by reason of insolvency. ^ They may also be excused 
 for sufficient cause, by the general quarter-sessions, 
 (4 Burn's Just. 24-'5.) 
 3'. Mode of securing the fidelity of Overseers of poor in 
 England. 
 
 By the penalties for ofiicial malfeasance, or non- 
 feasance. (4 Burn's Just. 30.) 
 2^. Mode of appointment and of removal of Overseers of 
 the poor in Yu-ginia, and of secm-iag then- fidehty; 
 W. C. 
 1'. Mode of appointment of Overseers of the poor in Vir- 
 ginia. 
 
 Elected one in each magisterial district, by the 
 voters thereof, to serve for two years, from 1st July 
 ensuing election. (Va. Const. 1869, Art. VII, § 2 ; 
 Amendm't 1874; V. C. 1873, c. 6, § 9.) 
 2^ Mode of removal of Overseers of poor in Virginia. 
 For causes, and by modes the same as in case of 
 the sh<^mtize(^elf(msQft^ 
 
CHAP. IX.] SUBORDINATE MAGISTRATES OVEE8EEE8 OF POOE. 123 
 
 3*. Modes of securing the fidelity of Overseers of poor ; 
 "W. C. 
 P- Oaths of office. 
 
 The same as in case of the sheriff. [Ante p. 93, 1^.) 
 2^- Penalties for malfeasance, and non-feasance. 
 
 The penalties are such as the common law de- 
 nounces against official malfeasance and non-feas- 
 ance, namely: fine, and amotion from office. (Bac. 
 Abr. Offices, (N) ; 1 Th. Co. Lit. 238-'9,^ & n 
 
 (I, 1)-) 
 3^^. Official Bond. 
 
 In a penalty of from $500 to 1000, to be deter- 
 mined by the court or judge when the overseer 
 qualifies, it being required that the penalty shall 
 not be less than double the amount which will pro- 
 bably pass through his hands. (V. C. 1873, c. 47, 
 § _62.) 
 38. Duties of Overseer of the poor ; W. C. 
 1^. Duties of Overseer of the poor in England. 
 4 Bui<n's Just. 27 & seq. ; Id. 248. 
 W. C. 
 1'. To raise money for the support of the poor. 
 
 They are to raise competent sums by levying rates 
 on the parishioners, for the necessary relief of the 
 impotent poor settled in the parish, who are not able 
 to work. (1 Bl. Com. 360.) 
 2'. To provide work for the poor able to work. 
 
 1 Bl. Com. 360. 
 3'. To adjust in*the first instance, questions of settle- 
 ment, and to cause paupers to be removed to their 
 own parish. 
 
 1 Bl. Com. 363; 3 Steph. Com. 207 & seq.; 4 
 Burn's Just. 411 & seq. 
 2^. Duties of Overseers of the poor in Yirginia; W. C. 
 1'. Organization of Board of Overseers. 
 
 To meet at the time and place fixed by the county 
 or town authorities, and appoint a president and 
 clerk, whereupon they constitute a corporation, by the 
 name of the overseers of the poor of such county or town. 
 Afterwards they appoint their own meetings. (Y. 
 C. 1860, c. 51, § 2 to 4, 9 ; Y. C. 1873, c. 47, § 51.) 
 But such organization seems now to be superfluous, 
 the former general supervision of the whole system 
 in each county, which was vested in the board of 
 overseers, being now devolved on the superintendent 
 of the poor, and on the board of supervisors. The 
 overseer's function appears to be practically such 
 
124: SUBOEDmATE MAGISTEATBS OVEESEEBS OE POOE. [bOOK I. 
 
 2'. Apparatus provided by law for the care of the poor. 
 
 A superintendent of the poor is elected, with other 
 
 county officers, by the voters of each county, to serve 
 
 for three years, and until his successor qualifies. 
 
 (Art. yil, § I, Va. Const. 1869.) 
 
 He» qualifies before the judge of the circuit or 
 county court of his county, by taking the oaths of 
 office, and executing bond, with approved security, in 
 a penalty prescribed by the judge or court, but in no 
 case less than $5,000. (V. C. 1873, c. 51, §1.) 
 
 He has charge of the county poor-house, or when 
 there is none, provides suitable accommodations, 
 under the direction of the board of supervisors, mak- 
 ing reports annually, or oftener, if required, of 
 expenditures, and of whatever relates to the business* 
 of maintaining the poor. (V. C. 1873, c. 51, § 2 & 
 seq:) 
 
 The board of supervisors may appoint a physician!, 
 and nurse to attend the poor at the place of generali 
 reception for the county, and allow reasonable com- 
 pensation therefor. (V. C. 1873, c. 51, § 2.) 
 
 "While it is the business of the superintendent of 
 the poor to take charge of and provide for aU pau- 
 pers committed to him at the place of general recep- 
 tion by the individual overseers, or otherwise, accord- 
 ing to law, the expense is provided for according to 
 an estimate submitted by the superintendent, by the 
 board of supervisors of the county, which is also to 
 provide necessary buildings, and a suitable farm, as 
 a place of general reception for the poor of the 
 county. (V. C. 1878, c. 51, § 2, 8, 9.) 
 3\ Powers and duties of individual overseers. 
 
 To provide for sending to the poor-house those 
 paupers who are settled in the coimty or corporation;^ 
 to repel intruders, and to arrest vagrants. (V. C. 
 1873, c. 51, § 6, 7, 12, 14.) 
 W. C. 
 l'^. Who are the Poor to be provided for; W. C. 
 1^ Who are Poor, within the law. 
 
 The poor within the law will include any one 
 unable to maintain himself, and the family ot one 
 unable to maintain it, when the family is unable to 
 maintain itself. (Y. C. 1873, c. 51, § 14.) 
 2\ What poor are to be provided for. 
 
 Those poor are to be provided for who have a legal 
 settlement in the county. A person has a legal set- 
 tlement in a magisterial district who has resided 
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CHAP.IX.J SUBOEDINATE MAGISTRATES 0VEEBEEE8 Off POOE. 125 
 
 therein for one year, and in a county or town, who 
 has resided in the same for one year ; provided in 
 either case, if he has migrated into the State within 
 three years, he shall have been, at the time of 
 migrating, able to maintain himself. (V. C. 1873, 
 c. 51, § 14.) But doubtless, notwithstanding the 
 silence of the statute, birth, parentage, and the mar- 
 riage of a feme, will also confer a settlement. (4 
 Bm-n's Just. 416, 436, 473; 1 Bl. Com. 363, & n 
 (53) to (55).) 
 
 The question of legal settlements has not yet 
 occasioned much trouble with us. It is, however, 
 not without its intricacies, and in England no 
 branch of legal inquiry is more vexed with doubts 
 and conflicting decisions. This is particularly 
 liable to be the case where the marriage of a 
 female intervenes to obscure or suspend her origi- 
 nal settlement by birth, the husband having no 
 settlement. Thus the widow of a foreigner, who 
 had no parochial settlement in England, being left 
 destitute on the death of her husband, was re- 
 moved from a parish in London to her native par- 
 ish in the country, which latter resisting the attempt 
 to charge it with an additional pauper, the case 
 came up' for decision to the court of King's bench, 
 which held that the woman's settlement was sus- 
 pended by the marriage during the husband's life- 
 time, but that upon his death it revived agaiii. 
 But some years afterwards, another case of like 
 kind occurred, except that the unsettled husband 
 did not die, but ran away. The King's bench 
 thereupon reviewed its former judgment, and re- 
 versing its previous doctrine, with the same' wno- 
 nimity with which it had pronounced it, determined 
 that a suspension of the settlement could not be 
 maintained, but that the maiden settlement con- 
 tinues after marriage, until a new settlement is 
 gained; and that, although the wife cannot be 
 separated from her husband by an order of re- 
 mova,l, yet if he, having no settlement, has deserted 
 her, she may be sent to her parish for relief, even 
 in his life-time. (1 Bl. Com. 363; St. Michael v. 
 NuUy, 1 Stra. 544 ; Eex v. Hincksworth, 1 Dougl. 
 46, n (13); Eex. v. Leigh, 1 Dougl. 46; 2 Campb. 
 Lives of Ch. Justices, 182-'83.) 
 2^. To whom application for relief is to be made. 
 
 To the overseer of the magisterial district 
 wherein the pauper has a legal settlement ; or if he 
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126 SUBOEDINATE MAGISTRATES OTEESBBES OF POOR. [bOOK 
 
 has a legal settlement in the county, but not in 
 any particular district therein, it would seem that 
 application may be made to any overseer of the 
 county, or rather to the overseer of the district 
 wherein such pauper may be. (Y. C. 1873, c. 51, 
 
 § 14.) 
 S^. Kedress, if relief is wrongfully refused. 
 
 Afforded by the court of the county or corpora^, 
 tion, which will compel the overseer to give the 
 proper rehef. (Y. C. 1873, c. 51, § 15.) 
 4:^. Modes of ij&aintaining or assisting the poor; W. C. 
 1^. General rule. 
 
 The pauper must be sent to, and kept at, the 
 place of general reception of the poor for the county, 
 and if able to work, shall be made to do so. (V. 
 C. 1873, c. 51, § 12.) 
 2'. Proviso. , 
 
 That a district overseer, by consent of the su- 
 pervisor of the district, and of the county superin- 
 tendent of the poor, may provide assistance at the 
 pauper's residence (supposing him to have a legal 
 settlement in the district), but it must be exclit- 
 sively at the expense of the district, and not of the 
 county, and particular reports of such cases are 
 required to be made to the county superintendent 
 annually. (Y. C. 1873, c. 51, § 12.) 
 5*^. Removal of intruders not legally settled ; W. C. 
 1'. Removal of intruder having a legal settlement in 
 the Commonwealth ; W. C. 
 1™. Mode of removal. 
 
 Upon complaint of an overseer to a justice of 
 the district, the justice by warrant shall cause the 
 pauper to be removed to "the toum or district" 
 (i. e., as is supposed, to the county wherein is the 
 district) of his legal settlement, but not to the 
 prejudice of his health. (Y. C. 1873, ch. 51, § 
 16,17.) 
 2™. Proceeding if the overseer of the pauper's legal 
 settlement refuse to receive him. 
 
 Their legal obligation is not only to receive 
 him, but to pay all the expenses attending his 
 removal; and if they refuse, they may be com- 
 pelled by their county or corporation court. (Y. 
 C. 1873, ch. 51, § 17.) 
 2^. Removal of intruder not having a legal settle- 
 ment in the Commonwealth. 
 
 The overseer of the district may himself issue a 
 
CHAP. IX.J SUEOEDrN^ATE MAGISTRATES 0VEE8EEBS OP POOR. 127 
 
 State where his legal settlement is. (Y. 0. 1873, 
 ch. 51 § 18.) 
 6^. Proceeding against beggars and against vagrants; 
 W.C 
 V. Proceeding against beggars. 
 
 The overseer is to issue a warrant to a consta- 
 ble to arrest all beggars going about, or staying 
 in one place to beg, and to carry them to the poor- 
 house ; or if they have no legal settlement in Vir- 
 ginia, then to remove them to the State where 
 theii- legal settlement is. (Y. C. 1873, ch. 51, § 
 18.) 
 2^. Proceeding against vagrants; "W. C. 
 1™ Method of proceeding. 
 
 The overseer is to apply to a justice of the peace, 
 whose duty it is, if, upon examination, the party 
 prove to be a vagrant, to issue a warrant requiring 
 the constable to hire him out for three months for 
 the best wages that can be obtaiaed, to be applied 
 to the use of the vagrant or his family. Aiid if 
 he run away without sufficient cause, he is to be 
 apprehended and i-e turned to the hirer, who is- 
 then to have him free of wages for a month addi- 
 tional, and further steps are authorized to compel 
 him to work, or else to inflict on him severe pun- 
 ishment in the way of imprisonment. (Y. C. 
 1873, ch. 51, § 20.) 
 2™. Who are vagrants; W. C. 
 1". Those who shall unlawfully return to a county 
 or corporation after being lawfully removed. 
 Y. C. 1873, ch. 51, § 19. 
 2°. Those who, being without means to maintain 
 themselves and their families, live idly and 
 without employment, and refuse to work for 
 the usual wages given to other laborers in the 
 like work, in the place where they are. Id. 
 3"^. Those who shall refuse to perform the work 
 allotted them by the overseer of the poor. Id". 
 4°- Those who go about from door to door, or 
 place themselves in streets, highways, or other 
 roads, to beg alms, and all persons wandering 
 abroad and begging, unless disabled, or incapa- 
 ble of labor. Id. 
 5°. Those who come from without the Commonwealth, 
 and loiter or reside therein, following no labor, 
 trade, occupation, or business, having no visible 
 means of subsistence, and who can give no rea- 
 
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128 STJBOBDINATE MAGIBTEATES E8CHEAT0ES. [bOOK I. 
 
 sonable account of themselves, or their business 
 in the place where they are. Id. 
 7K Proceeding in respect to pauper children; W. C. 
 IK Pjoceeding touching bastards. 
 
 An overseer of the poor was never by law al- 
 lowed to inaugurate a proceeding to charge a piUa- 
 tive father with the support of a bastard. The 
 mother must first have voluntarily made oath before 
 a justice of the peace to the paternity of the child ; 
 but when the accusation had once been made, pro- 
 ceedings thereupon might have been had as well at 
 the instance of the overseer as of the woman, the 
 Attorney for the Commonwealth appearing in beT 
 half of either. The putative father, having been 
 arrested, was required to enter into recognizance to 
 appear to answer the charge, and if eonvicted of 
 it, was constrained to give bond to pay annually 
 to the overseers of the poor, for the maintenance of 
 the child, such sums as the court might order. (Y. 
 C. 1873, c. 121, § 1 to 3 & seq.) But this pro- 
 vision being applicable only to white women, an ap- 
 prehension arose that it was in conflict with the 
 provision of the Civil Eights Act of 1866 (Eev. 
 Stats. U. S. p. 348, § 1977 & seq.), or to Amend- _ 
 ment XIV of U. S. Constitution, and under the ' 
 influence of that groundless apprehension, the 
 whole doctrine touching the charging of putative 
 fathers with the maintenance of bastards was re- 
 pealed. (Acts 1874-5, p. 94, c. 112.) 
 2\ Proceedings to provide for pauper children. 
 
 An overseer of the poor, by previous order of 
 the county or corporation court may place in an 
 incorporated asylum for destitute children, or may 
 bind apprentice, any minor found begging in his 
 county or corporation, or likely to become charge- -• 
 able thereto ; and the master of such apprentice is 
 bound by law, whether it be so stipulated or not, 
 to teach him reading, writing, and common arith- 
 metic, including the rule of three. (Y. C. 1873, c. 
 122, § 3, 6.) 
 T. Escheators ; W. C. 
 1«. Antiquity and original of the office of Escheator 
 
 W. C. 
 I''. Antiquity and original of the office of Escheator in 
 England. 
 
 The escheator is an ancient office of great import- 
 ance, while the feudal tenures, with their oppressive 
 incidents, flourished in vigor. There were but two in 
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CHAP. IX.J SUBORDINATE MAGISTRATES ESCHEATOES. 129 
 
 the realm originally, one to act south of the Trent, 
 and the other beyond it. Great abuses having been 
 committed by escheators in previous reigns, it was 
 ordained by 14 Edw. Ill, c. 8 ; 36 Edw. Ill, c. 13 ; 
 and 38 Edw. Ill, c. 2, that one should be appointed 
 annually, for every county, like sheriffs, by the chan- 
 cellor, treasurer, chief baron, and two chief justices; 
 that they should do no waste in the lands they seized ; 
 that they severally should take their inquests openly, 
 and not privately, by persons of substance and char- 
 acter in the county where the lands were, by inden- 
 ture between them and the escheator himself ; and 
 that he should return the inquest promptly into chan- 
 cery, where it was liable to be traversed, or contro- 
 verted, within a limited time. And those safe-guards 
 were fm-ther strengthened by 18 Hen. YI, c. 6, and 1 
 Hen. VIII, c. 8. (1 Jac. L. Diet. Escheator; 2 Keeves' 
 Hist. Eng. Law, 273, 276 ; 4 Do. 231 ; 2 Th. Co. Lit. 
 196, 197, & n (L).) 
 2''. Antiquity and original of the office of Escheator in 
 Virginia. 
 
 The first mention of escheats is in an act of Assem- 
 bly of March, 1659, whereby certain lands liable to 
 escheat were appropriated to indemnify the county of 
 New Kent, for money paid by it for the deceased 
 owner. (1 Hen. Stats. 548.) The royal commission- 
 ers in March, 1661, proposed sundry provisions to 
 quiet the titles of persons who had bought lands liable, 
 fc escheat of the administrators of decedents, and it 
 would seem that at that time no escheators existed. 
 (2 Hen. Stats. 56, 136.) But in 1703 Beverly men- 
 tions the form of proceedings observed in order to es- 
 cheat lands (Bev. Hist. Va. 243), and from an act of 
 Oct. 1705, (4 Anne,) it seems inquests of escheat had 
 been repeatedly taken since 1676, (28 Car. II,) doubt- 
 less in pursuance of the law and practice in England ; 
 but still no provision appears for the appointment of 
 escheators, (3 Hen. Stats. 316) ; nor does any seem to 
 have heen formally made until 1785,' when the county 
 com'ts were required to nominate some proper person 
 to be commissioned by the governor and council. (12 
 Hen. Stats. 117.) Traces of proceedings of escheat, 
 however, and of the existence of escheators, are met 
 with, e. g., in May, 1779. (10 Hen. Stats. 67 & seq.) 
 By act of November 1792, escheators are directed 
 to be appointed, as they have ever since been, for 
 every county and corporation, by the governor, upon 
 the red9]®^z©dste>oM/(affostM®county or corporation 
 9 
 
130 8TJB0EDINATB MAGISTRATES E8CHBAT0BS. [bOOK I. 
 
 court. (1 Stats, at large (New series), 51 ; Y. C. 
 18Y3, c. 109, § 1 & seq.) 
 2^. Mode of appointment and of removal of Escheators, 
 and of securing their fidelity; W. C. 
 l*". Mode of appointment, and of removal, &c., in Eng- 
 land ; W. C. 
 1*. Mode of appointment of Escheators in England. 
 
 Appointed, it seems, annually, by the chancellor, 
 treasurer, chief baron, and two chief justices. (1 TL 
 Co. Lit. 196 ; Bac. Abr. Prerog. (B) ; 2 Reeves' 
 Hist. E. L. 273.) 
 2'. Mode of removal of Escheators in England. 
 
 By judgment of a competent court upon convic- 
 tion (on indictment or information), for malfeasance 
 or non-feasance ; or for removal from the sphere of 
 duty, i. e., from the county. (1 Th. Co. Lit. 237, & 
 seq. ; Id. 239, and n (K. 1) ; Bac. Abr. Offices, (M) 
 and (N); Jac. Law Diet. Office, IV.) 
 3\ Mode of securing fidelity of Escheator in England. 
 By the penalties for official malfeasance and non- 
 feasance. (Bac, Abr. Offices, (M) and (N).) 
 a*". Mode of appointment, and of removal of the Eschea- 
 tor, and of securing his fidelity in Yirginia; "W. C. 
 1'. Mode of appointment of the Escheator in Yirginia. 
 One escheator shall be appointed by the governor, 
 for every county, and for every town having a cor- 
 poration court, to hold office during good behavior, 
 (Y. C. 1873, c. 109, § 1.) 
 2'. Mode of removal of the Escheator in Yirginia. 
 
 He may be removed by the governor, for misbe- 
 havior, incapacity, or neglect of official duty ; or by 
 the appointment and qualification of a successor; or 
 by judgment of a competent court, upon conviction 
 of malfeasance, non-feasance, removal from sphere 
 of duty, &c. (Y. C. 1873, c. 109, § 2; Bac. Abr. 
 Offices, (M) and (N); supra 2'; ante p. 93.) 
 3'. Mode of securing fidelity of the Escheator ia Vir- 
 ginia; "VV. C. 
 I''. Oaths of office. 
 
 Same as in case of sheriff. [Ante p. 93, I''.) 
 2"^. Official Bond. 
 
 In the penalty of $3000, payable to the Com- 
 monwealth. (Y. C. 1873, c. ip9, § 2; Id., c. 12, 
 §6.) 
 3s. Duties of Escheator; W. C. 
 l'^. Duties of the Escheator in England. 
 
 To look properly to escheats, wardships, (abolished 
 for thC)ng#^^*)?,fttepes8JSSl 12 Car. II), and other 
 
CHAP. IX.] SUBOEDINATE MAGISTEATES ESCHEATOES. 131 
 
 casualties, belonging to the crown. He conducts his 
 inquiries by means of a jury of inquest, composed of 
 freeholders, sitting publicly, and certifies the inquisi- 
 tion, in the form of an indenture between himself and 
 the jurors, into the Court of Chancery, where it may be 
 traversed, within a limited time. (Bac. Abr. Prerog. 
 
 (B).) 
 2^. Duties of the Escheator in Vu-ginia. 
 
 Upon information from the commissioner of the 
 revenue of the county or corporation (which informa- 
 tion it is the commissioner's duty to furnish annually), 
 or from any other person, in writing imder oath, of 
 any lands in his county or corporation, as to which 
 any one who was seized thereof, has died intestate and 
 without any kno-wn heir, or to which no person is 
 known hy him to be entitled, to proceed to cause the 
 same to be escheated to the commonwealth. (V. C. 
 1873, ch. 109, § 3, & seq.) 
 W. C. 
 1'. What lands are exempt from escheat. 
 
 Such as for twenty years have been in the 
 actual possession of the person claiming the same, 
 or those under whom he holds, and upon which 
 taxes have been paid within that time; and those 
 also where the legal title alone is liable to escheat, 
 the beneficial ownership not being so liable. (V. C. 
 1873, ch. 109, § 3, 25.) So lands are not hable to 
 escheat which are by will devised to be sold, and the 
 proceeds given to aliens. Such a devise is not ad- 
 verse to the policy of the law, since aliens thereby 
 acquire no interest in .the lands, but in the ■proceeds 
 only. (Com'th v. Martin's Ex'ors, 5 Mimf. 1 17 ; 
 Com'th V. Selden & als, Id. 160.) . 
 2'. Proceedings by the Escheator in Yirginia, to escheat 
 lands; W. C. 
 l'^. Public notice of the inquest. 
 
 By advertisement at the door of the court-house 
 for thirty days, including a court day. (Y. C. 1873, 
 ch. 109, § 4.) 
 2^. Inquest of Escheat. 
 
 The sheriff or sergeant is to summon sixteenyVee- 
 holders, of whom at least twelve, must be impan- 
 nelled as jurors. They meet at the court-house and 
 sit in public, and may be adjourned by the eschea- 
 tor from day to day, and may be punished by the 
 circuit court for non-attendance, every person being 
 suffered to give evidence openly in the presence of 
 
132 SUBOEDINATE MAGI8TEATES E8CHEAT0ES. [bOOK I. 
 
 If the title liable to esclieat be an equitable one, 
 the escheator must proceed to enforce the rights of 
 the commonwealth by a bill in equity. (Bac. Abr. 
 Alien (C); Com'th v. Martin, 5 Munf 117; Hub- 
 bard V. Goodwin, 3 Leigh, 510, & seq.) 
 BK The verdict or inquisition of the jurors. 
 
 Twelve at least of the jm-ors must concur in the 
 verdict of escheat, and must sign the sam.e as well as 
 the escheator, whose duty it is, within sixty days, to 
 transmit the substance of it to the register of the 
 land-office, and' within thirty days to return the in- 
 quisition to the clerk of the circuit court, who, -udthin 
 thirty days from the receipt of it, is requu-ed to trans- 
 mit a copy to the clerk of the county or corporation 
 coiu-t to be recorded. (V. C. 1873, ch. 109, § 14, 7.) 
 4K Redress afforded to persons aggrieved by the ver- 
 dict of escheat. 
 
 Persons aggrieved, whether their interest be legal 
 or equitable, may apply for redress by petition (which 
 is understood to be equivalent to a bill in equity) to 
 the circuit court of the coimty or corporation where 
 the proceedings of escheat took place, making the 
 escheator defendant, who shall file an answer, and 
 upon the petition, answer and evidence, the cause 
 shall be heard -without unnecessary delay. Dis- 
 puted facts are ascertained by a jury, whose verdict, 
 however, the com't, if it sees fit, may set aside. The 
 lands, pending the petition, may be committed to 
 the claimant, on his giving bond, with good security, 
 to pay the rents and profits to ihe commonwealth, 
 if the right be found in its favor ; or if not so com- 
 mitted, they remain in the escheator's hands, to be 
 leased out by him, he being answerable (according 
 as the right is determined) to the commonwealth or 
 to the claimant for the rents and profits, and for 
 waste. Persons aggrieved may also, instead of pro- 
 ceeding by petition or bill in equity (which is a 
 statutory remedy), resort to — 
 
 1. Petition of Right, which is a common law pro- 
 ceeding in chancery in the nature of a real action, 
 prosecuted by leave of the Crown or the commou- 
 wealth, to recover lands, &c., illegally seized by pub- 
 lic authority. (3 Bl. Com. 256 ; Bac. Abr. Prerog. 
 (E).) 
 
 2. Monstrans de Droit, which is likewise a common 
 law proceeding ia chancery, whereby the rights of 
 a subject, when invaded by the Crown or common- 
 wealth£)^j^-^g(Jj^a/t^o^gl. Com. 256-'7; Bac. 
 
CHAP. IX.J SUBOEDINATE MAGISTRATES StTPEKVISOES. 133 
 
 Abr. Prerog. (E); Edwards v. Yan Bibber, 1 Leigh, 
 194; Fiott & als v. Com'th, 12 Grat. 565.) 
 
 3. Traverse of Office, which is a proceeding (allowed 
 by Stat. 2 and 3 Ed. VI, c. 8, (Y. C. 1873, eh. 15, § 
 2), whereby the subject may contest or deny the 
 truth and validity of inquisitions of office. (3 BL 
 Com. 257; Bac. Abr. Prerog. (E); Fiott & als v. 
 Com'th, 12 Grat. 565.) 
 
 The Petition of Right and the Monstrans de Droit 
 are said by Blackstone to bei of common law origin ; 
 but the latter was much improved by Stat. 36 Ed. 
 Ill, c. 13; and 2 and 3 Ed. YI, c. 8. (3 Bl. Com. 
 257; Y. C. 1873, ch. 15, § 2; Bac. Abr. Prerog. 
 (E).) (Y. C. 1873, ch. 109, § 8 to 12, 28 ; Edwards 
 V. Yan Bibber, 1 Leigh, 194 ; Hite's Case, 6 Leigh, 
 588; Fiott & als v. Com'th, 12 Grat. 564.) 
 6\ Proceedings to sell escheated lands. 
 
 They are sold under the direction of the governor, 
 after giving public notice of the escheat and of the 
 sale for six weeks in the newspapers of Pichraond 
 and of Washington. The escheator makes the 
 sale as directed by the statute, and pays the pro- 
 ceeds into the treasury, deducting a commission of 
 ten per cent, on the proceeds. (Y. C. 1873, ch. 109, 
 § 13 to 24.) 
 6'^. Provision made in favor of tenants of escheated 
 lands, and creditors of the last owner. 
 
 The interests of such persons are protected, 
 whether found in the inquisition or not. The 
 creditor proceeds in equity. (Y. C. c. 109, § 26-'7 ; 
 Watson V. Lyle's Adm'r, 4 Leigh, 236.) 
 8*. Supervisors. 
 
 One supervisor is elected for each ihagisterial district 
 by the voters thereof, to serve for tivo years. (Ya. 
 Const. 1869, Art. YII, § 2, Amendm't 1874.) The 
 supervisors of all the districts constitute the Board of 
 Supervisors for the county, whose duty it is to audit the 
 accounts of the several county officers ; to examine the 
 books of the commissioners of the revenue, and equalize 
 the valuation of property ; to fix the county levies for 
 the ensuing year, (for the purpose of public buildings, 
 roads, poor, schools, &c. ; and to perform any other 
 duties required by law. (Ya. Const. 1869, Art. YII, §■ 
 2.) See Y. C. 1873, c. 47, 4 to 26. 
 
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134 EIGHTS DEPENDENT ON THE RELATION OF PEOPLE. [bOOK I. 
 
 CHAPTER X. 
 
 Of the People, whether Aliens, Denizens or Citizens. 
 
 2'^. The Relation of People, and the Eights and correspondent 
 Duties belonging thereto; "W". C. 
 1". The doctrine of Allegiance. 
 
 Allegiance is the tie (ligamen) which binds the subject 
 to the government, in return for protection. The thing is 
 founded in reason, and the nature of government. The . 
 name and form are derived from the fedual system, trans- 
 mitted from our Gothic ancestors. (1 Bl. Com. 366 ; 2 
 Steph. Com. 420); W. C. 
 1*. The nature ol Allegiance; "W". C. 
 1^. The different sorts of Allegiance ; W. C. 
 l*"- Natural Allegiance. 
 
 Which is due from all born within a country, im- 
 mediately upon birth, in return for the protection af- 
 forded, and also as indispensable to the maintenance 
 of society, which the Creator has ordained. It is per- 
 manent, and although not perpetual and inalienable, as 
 the common law held it, yet subsists as long as one 
 continues a member of the community in which he 
 was born, and cannot, without moral offence, be ab- 
 jured, save with due regard to that commimity's in- 
 terests and will. (1 Bl. Com. 370 ; 1 Tuck. Bl. (Ft. 
 II), App'x 91, n (K); 2 Kent's Com. 45, 49; 1 Tuck. 
 Com. B. I, p. 57 to 60.) 
 2^. Local, or temporary Allegiance. 
 
 Such as is due even from an alien, as long as he 
 continues within the State's dominion and protection; 
 and ceases when he transfers himself to another 
 country. Allegiance is the correlative of protection, 
 and continues as long as the protection does. Hence 
 it is due to a de facto government, — to practice against 
 which will not only be regarded by itself as treason- 
 able, and be punished accordingly, but will be pun- 
 ished also by the rightful government when restored, 
 except in so far as the attempt was in defence or aid 
 of the rightful authority; — e. (/., in case of Edward 
 IV, who, upon his accession, punished treasons against 
 his predecessor, Henry VI, whom notwithstanding, 
 he and his parliament pronounced a usurper. (1 Bl. 
 Com. 370-'71 ; 1 Tuck. Com. 59 ; Bac. Abr. Aliens, 
 
 2^. The obligations and rights growing out of Allegiance; 
 
 W C 
 
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 1". ihe obligations growing out of Allegiance. 
 
CHAP. X.J EIGHTS DEPENDENT ON THE RELATION OP PEOPLE. 135 
 
 They are independent of, and prior to, any recog- 
 nition thereof by oath or otherwise, and are concisely 
 expressed in the ancient oath of allegiance, as ad- 
 ministered in England for 600 years, prior to the 
 Revolution of 1688, when it was made more general. 
 The old form expressed a promise: "to be true and 
 faithful to the King and his heirs, and truth and faith to 
 bear of life and limb, <ind terrene honor and not to know 
 or hear of any ill or damage intended him without defend- 
 ing him therefrom." (1 Bl. Com. 368, 369.) 
 2^- The Eights growing out of Allegiance. 
 
 These, like the obligations, exist antecedently to, 
 and independently of the sovereign's express promise, 
 although the coronation oath in England exhibits a 
 very just smnmary thereof, — engaging that the mon- 
 arch shall govern according to the established laws ; 
 that he will cause law and justice, in mercy, to be ex- 
 eciited, and that he will preserve the rights and pri- 
 vileges of every class of his people. (1 Bl. Com. 369 ; 
 2 Steph. Com. 417-'18.) 
 2*. The right to renounce Allegiance ; W. C. 
 1^. Doctrine at Common law. 
 
 The natural allegiance above-mentioned is esteemed 
 by the common law to be perpetual and inalienable, 
 without consent of the government, the prevailing 
 maxim being, nemo potest exuere patriam. (1 Bl. Com. 
 369-'70, & n (5); Fost. Cr. L., 184-'5; 1 Kent's Com. 
 42, 49; Doe v. Acklam, 2 B. & Cr. 779.) 
 2*. Doctrine in Virginia. 
 
 The doctrine in Virginia is that the natural liberty 
 of going whither one pleases cannot be circumscribed, 
 consistently with civil liberty, save only so far as the 
 general safety of the community may require. Hence 
 it is inferred that, whilst the expatriation of a citizen 
 may properly be forbidden in times of danger and 
 crisis (e. g., in time of war), it is a violation of his natu- 
 ral rights to deny it under other circumstances; and 
 that being a part of the natural liberty of mankind, if 
 there be no positive law qualifying the right, it exists 
 without restriction. (1 Tuck. Bl. (Pt. II), App'x. 90; 
 ■Puifend. B. VIII, c. 11, § 1 to 4; Vat. Law of N., B. 
 I, § 223, & seq.; 2 Kent's Com. 49; Grot, de Jur. 
 Bell, et P. B. 2, e. 5, § 24 ; 2 Burlamaq, p. 119, Pt. II, 
 c. 5, § 13.) See Talbot v. Jansen, 3 Dall. 152; Murray 
 V. The Charming Betsy, 2 Cr. 115 ; Santiss* Trinidad, 
 7 Wheat. 347 (where the point is left undecided). But 
 Bee Williams' case, Whart. Am. St. Tri. 652, 655 ; In- 
 
 glis V. Trustees of Sailor's Snug Harbor, 3 Pet. 99 ; 
 •^ Digitized by Microsoft®^ ' ' 
 
136 EIGHTS DEPENDENT ON THE RELATION OF PEOPLE. [bOOK I. 
 
 and Shanks r. Dnpont, 3 I^et. 242, which are adverse 
 to the Virginia doctrine. 
 
 In Yirginia, provision is made for the exercise of 
 the right, except in time of war, by declaration entered 
 of record in the county or corporation court of the 
 county or corporation vi^here the party resides, or by 
 deed proved by two subscribing witnesses in the same 
 court, and by departing out of the country ; and this may 
 be done permanently, or for a time only. (Y. C. 1873, 
 0.4, § 2, 3, 4; Murray v. McGarty, 2 Munf. 396; Branch 
 V. Bowman, 2 Leigh, 170.) 
 3^. Effect of expatriation from Virginia, on citizenship in 
 the United States. 
 
 As a separate allegiance is due to the United States 
 (it being possible for one to be a citizen of the United 
 States, and not of any State, e. g., in case of a resident 
 of the District of Columbia, or of the Territories), it 
 would seem that expatriation from Virginia wouldnot 
 affect citizenship in the United States. (Talbot v. Jansen, 
 3 Dal. 163-'4, 164; Murray v. McCarty, 2 Munf. 404; 
 Const. U. S. Amendm'ts XIV.) 
 4^. Doctrine in respect to the United States. 
 
 The Congress of the Um'ted States has made no pro- 
 vision touching the subject of expatriation; and the 
 right is supposed, therefore, to exist in respect to the 
 United States without restriction. But see 2 Kent's Com. 
 49. See Shanks v. Dupont & al, 3 Pet. 246 ; Inglis v. 
 Sailor's Snug Harbor, 2 Pet. 99. 
 
 The assumption upon which these authorities rest, 
 namely, that the common law is a part of the law of 
 the United States in their aggregate capacity, seems to 
 be a remarkable inadvertence. If any proposition of a 
 politico-legal character can be deemed settled by argu- 
 ment, the famous Virginia (or Madison's) Report of 
 1799 has determined that the common law is not thus 
 a part of the law of the United States. (Va. Report, 
 Resolution V, p. 211 & seq.) 
 3*. The Oath of Allegiance. 
 
 It adds nothing, as has been seen, to the obligation of 
 the citizen, seeking merely to strengthen the social tie by 
 impressing the mind with the sanctions of religion, {^i 
 Steph. Com. 423; 1 Bl. Com. 369-'71.) 
 W. C. 
 1^. The Oath of Allegiance in England. 
 
 It contains a brief summary of the citizen's duties, 
 and besides being required of all persons in office, it 
 may be tendered by two justices to any one suspected 
 
 Digitized by Microsoft® 
 
CHAP. X.J EIGHTS DEPENDENT ON THE BELATION OF PEOPLE. 137 
 
 of disloyalty. (1 Bl. Com. 368, 369; 2 Steph. Com. 
 423-'4.) 
 2^. The Oath of Allegiance in Virginia. 
 
 All State and Federal officers and legislators are 
 required to take an oath to support the constitution 
 and laws of the United States ; and the State officers 
 and legislators also swear in addition, to support the 
 constitution and laws of Yirginia. (U. S. Const., Art. 
 YI, § 3; Ya. Const. 1869, Art. Ill, § 6; Y. C. 1873, 
 c. 12, § 1.) 
 2®. The different classes of people in a country ; "W. C. 
 1^. The different classes of people in England; W. C. 
 1«. Aliens. 
 
 All persons, by the common law, are aliens who are 
 not born within the dominions, or ligeance of the Crown 
 of England, either actually or by construction of law 
 (e. g., the children of a British ambassador born abroad, 
 or children whose father, or grandfather on the father's 
 side, is a natural-born subject), and who have not been 
 naturalized, or made denizens. (1 Bl. Com. 366, & n (1) ; 
 Bac. Abr. Aliens, (A) ; Calvin's case, 7 Co. 16^) 
 2s. Denizens. 
 
 A denizen is an alien-bom, who, ex donatione regis, or 
 by act of parliament, has obtained letters patent to inake 
 him an English subject. He may acquire and hold 
 lands, by purchase, {i. e. by his own act,) but not by de- 
 scent, because his parent, through whom he must de- 
 duce his claim, had no inheritable blood; and for a 
 like reason his issue, born before denizenation, cannot 
 inherit to him. He is incapable of any grant of lands 
 from the Croion, of being a member of Parliament, or of 
 holding any office. (1 Bl. Com. 374, & n (20) ; Bac. 
 Abr. Aliens, (B).) 
 36. Citizens; W. C. 
 1^. Natural-born Citizens ; W. C. 
 1'. Persons born in England. 
 
 All persons born in England are natural-born sub- 
 jects, although their parents are aliens — unless the 
 parents were in the realm as enemies. (1 Bl. Com. 
 366, & n (1) ; Id. 374, & n (16) ; Calvin's case, 7 
 Co. 18^) 
 2\ Persons born in any of the dominions, or within the 
 ligeance of the English crown. 
 
 e. g.. Persons born in Ireland, Scotland, Wales, or 
 
 in the English colonies in America, or elsewhere; or 
 
 ■ in-any conquest of England ; or of English parents, 
 
 in a country overrun by English troops. (1 Bl. Com. 366, 
 
 Digitized by Microsoft® 
 
138 EIG-HTS DEPENDENT ON THE BELATIOIT OF PEOPLE. [bOOK I. 
 
 & n (1) ; Bac. Abr. Aliens, (A) ; Calvin's case, 7 Co. 
 18^) 
 3'. Persons born abroad, but constructively in England. 
 e. g., Children of English ambassadors, or other 
 persons in the public service abroad. (1 Bl. Com. 
 366, & n (1), 373; Bac. Abr. Aliens, (A).) 
 4:^ Persons born abrrf)ad v^hose father, or grandfather, 
 on the father's side, V7as a natural-born subject. 
 1 Bl. Com. 366, n (1). 
 2^. Naturalized Citizens. 
 
 There are no §tneral naturalization laws in England, 
 whose crowded population makes it undesirable to re- 
 lax the disabilities of alienage. With a few excep- 
 tions, a special act of Parliament is needed in eaoh 
 case, and is always accompanied by certain qualifica- 
 tions, as that the party shall not be a member of par- 
 liament, nor hold any office, nor receive any grant 
 from the Crown. It does not release him from what 
 is called his natural allegiance to the State where he 
 was born ; and if any conflict of duties ensues, he must 
 submit to the consequences, resulting as they do from 
 his ovm act. (1 Bl. Com. 374, & n (21); Tuck. Com. 
 63, &c., B. I.) 
 2'. The different classes of people in Virginia ; "W. C. 
 1«. Aliens. 
 
 All persons are aliens in Virginia who are not born 
 within the limits of the dominion of the United States, 
 or whose fathers, at the time of their birth, were not 
 citizens of the United States, and who have not been 
 naturalized. (Const. U. S. Amendments XIV, § 1 ; 1 
 Bright. Dig. 132.) 
 2s. Citizens ; W. C. 
 I''. Persons who are, or may be, citizens by right of birth. 
 W. C. 
 1'. Persons born in Virginia. 
 
 Even of alien •parents, unless the parents were pre- 
 sent in the State as enemies. (V. C. 1773, c. 4, § 1 ; 
 Supra p. ,1*; Supra 4, 1.) 
 2'. Persons born in any other State of the Union, (in- 
 cluding any territory of the United States, or the 
 District of Columbia,) and resident in Virginia. 
 
 V. C. 1873, c. 4, § 1 ; Id. c. 15, § 9, (cl. 1); Const. 
 U. S. Amendments XIV, § 1 ; Towles' case, 5 Leigh, 
 748 ; 2 Stor. Const. § 1693.) 
 3'. Persons, wheresoever born, whose father, or if he be 
 dead, whose mother, was a citizen of Virginia at the 
 time of his bu-th. 
 ^- %l^ii%dPbfj\hldrcs^t<& not if the grandmother 
 
CHAP. X.] EIGHTS DEPENDENT ON THE EELATION OF PBOPtB. 139 
 
 were a Yirginian, (Barzizas v. Hopkins, 2 Kand. 
 276; Orr v. Hodgson, 4 Wheat. 460.) 
 4\ Persons born out of the limits and jurisdiction of 
 the United States, whose fathers, at the time of theij* 
 birth, were citizens of the United States, such per- 
 sons being residents in Yirginia. 
 
 1 Bright. Dig. 132 ; Eev. Stats. U. S. p. 351, § 1993. 
 5'. Persons entitled to citizenship under former laws. 
 V. C. 1873_, ch. 4, § 1. 
 2^ Naturalized citizens. 
 
 Persons naturahzed under the laws of the United 
 States, and resident in Virginia, are citizens thereof by 
 the effect of the original Constitution of the United 
 States, empowering Congress to establish an urdform 
 rule of naturalization ; besides which they are declared 
 in terms to be such by statute with us, and also by 
 Const. U. S. Amendments XY. (Const. U. S. Art. I, 
 § viii, 4; Id. Amendm'ts, XY, § 1; Id. Art. lY, § ii, 1; 
 Towle's Case, 5 Leigh, 748; Y. C. 1873, ch. 4, § 1; 2 
 Stor. Const. § 1694 ) 
 W. C. 
 1'. Proceedings for the purpose of Natm'alization. 
 
 The power of naturalization is vested exclusively 
 in Congress, and cannot be exercised by any of the 
 States. (Chirac v. Chirac, 2 Wheat. 269; Barzizas 
 V. Hopkins, &c., 2 Eand. 285.) 
 
 The States, however, are not excluded from allow- 
 ing aliens any privileges, touching the ownership of 
 lands, or participation in the State governments, 
 which they may severally think fit to confer, within 
 their respective limits (constituting them a kind of 
 denizens), they only cannot make them citizens in 
 such a sense that they shall be citizens of the United 
 States. (Rev. Stats. U. S. p. 380, § 2165 ; 1 Bright. 
 Dig. 33; 2 Do. 5; 1 Tuck. Com. 63; Barzizas v. 
 Hopkins, 2 Eand. 285; 2 Kent's Com. 64; Dred 
 Scott. V. Sandford, 19 How. 393.) 
 W. C. 
 l'^. Character of the party to be naturalized. 
 
 Any alien friend, including aliens of African na- " 
 tivity, and persons of African descent, may be ad- 
 mitted to become a citizen of the United States, in 
 the manner presently to be described, and not other- 
 wise. (Eev. Stats. U. S. p. 380, & seq., § 2165, & 
 seq., 2169, 2171.) But the party may be a married 
 woman, and she may be naturalized -without the 
 concurrence of her husband. (Priest v. Cummings, 
 16 WeB^imSci jaclhMteosoSapont, 3 Pet. 248.) 
 
140 EIGHTS DEPENDENT ON THE EELATION OF PEOPLE. [bOOK I. 
 
 2*^. Preliminary declaration of the party to be natiiral- 
 ized. 
 
 To be made on oath before some court of record, 
 State or Federal, two years at least before his admis- 
 sion as a citizen, that it is bona fide his intention to 
 became a citizen of the United States, and to re- 
 nounce forever all allegiance to any foreign priace 
 or State, and particularly by name to the prince 
 or State whereof he is at the time a subject. (1 
 Bright. Dig. 33, § 1 ; Id. 36, § 12 ; Eev. Stats. IT. S. 
 p. 380, § 216S.} 
 
 This preliminary declaration may be dispensed 
 with where the alien has resided within the United 
 States three years before attaining his age. (1 
 Bright. Dig. 36, § 10 Eev. Stats. U. S. p. 381, § 
 2I6Y.) 
 3^. Proceedings when alien applies to be admitted a cit- 
 izen; W. C. 
 1'. Before what courts proceedings may be had. 
 
 Before any com-t of record. State or Federal, 
 which acts judicially in admitting the person to 
 citizenship. (1 Bright. Dig. 33, § 1; Id. 34, § 2; 
 2 Bright. Dig. 5, note; Rev. Stats. U. S. p. 380, 
 § 2165, &c.) 
 2'. Declaration to be made by the party at the time 
 of admission as a citizen. 
 
 To declare on oath that he will support the 
 Constitution of the United States, and that he re- 
 nounces all allegiance and fidelity to every foreign 
 prince or State, and particularly by name to the 
 prince or State of which he is then a subject, 
 which proceedings are to be recorded. (1 Bright. 
 Dig. 33-'4, § 1 ; Rev. Stats. U. S. p. 380, § 
 2165.) 
 3\ Proof to be furnished by the party applying to 
 be admitted a citizen. 
 
 That he has made the preliminary declaration 
 required, which must be proved by the record; and 
 (which is to be proved by parol), that he has resided 
 within the United States five years, at least, and 
 within the Stale or Territory where the court sits 
 one year, at least, and that during that time he 
 has behaved as a man of good moral character, 
 attached to the principles of the Constitution of 
 the United States, and well-disposed to the good 
 order and happiness of the same. (1 Bright. Dig. 
 34, § 1 ; Rev. Stats. U. S., p. 380, § 2165, 21T0, 
 217£))gitized by Microsoft® 
 
CHAP. X.J BIGHTS DEPENDENT ON THE RELATION OF PEOPLE. 141 
 
 4^ Renunciation by the party of his title or order of 
 nobility, if he has any. 
 
 1 Bright. Dig. 34, §1; Eev. Stats. U. S., p. 
 380, § 2165. 
 4*^. Effect of sentence admitting an alien to citizen- 
 ship. 
 
 The sentence is conclusive evidence of the facts it 
 recites, and on which it is founded, nor can any 
 enquiry be gone into behind it. The alien becomes, 
 by the sentence, entitled to all the privileges of a 
 natural-born subject, except that he can never be 
 President of the United States, nor can be a mem- 
 ber of the House of Representatives until he has 
 been a citizen seven years, nor of the Senate until 
 after nine years. (Campbell v. Gordon, 6 Cr. 182 ; 
 Starke v. Ches. Insur. Co., 7 Cr. 420; Towles' 
 Case, 5 Leigh, 743 ; Const. U. S., Art. I, § ii, 2, and 
 § iii, 3.) 
 2'. Instances of irregular naturalization ; W. C. 
 l'^. The minor children of duly naturalized aliens. 
 If- dwelling in the United States, they shall be 
 considered citizens. (1 Bright. Dig. 35, § 3; Rev. 
 Stats. U. S., p. 382, § 2172 ; Campbell v. Gordon, 
 6 Cr. 177; State v. Penney, 5 Eng. 621.) 
 2\ The wife of a citizen, native or naturalized. 
 
 If capable of naturalization, she is deemed a citi- 
 zen, provided she does not continue, throughout 
 her husband's life-time, a non-resident. (1 Bright. 
 Bright. Dig. 132, § 2 ; 2 Do. 5, note.) 
 3^ The widow and children of one who has made 
 the preliminary declaration, but who dies before 
 admission as a citizen. 
 
 They are deemed citizens. (1 Bright. Dig. 35, 
 § 6; Rev. Stats. U. S., p. 382, § 2168.) 
 4^^. Aliens above twenty-one years of age, who have 
 enlisted, or may enlist in the military service of the 
 United States, and been honorably discharged. 
 
 They are to be admitted to citizenship without 
 the preliminary declaration, upon proof of one 
 year's residence, and good moral character, and 
 without qualification as to race. (2 Bright. Dig. 5 ; 
 Rev. Stats. U. S., p. 381, § 2166.) 
 3*. The Rights of the people, as aliens or citizens; W. C. 
 1'. PoHtical Rights. 
 
 These belong properly to citizens only, by the very 
 nature of society, it being a matter of vital concern that 
 they should not be exercised by persons who may not 
 
 ilfare of the State, but 
 
 only liave^^^mtgrgst^^^the^^: 
 
142 EIGHTS DEPENDENT ON THE EELATION OF PEOPLE. [bOOK I. 
 
 may be actually interested in its ruin. The U. S. Con- 
 stitution, in declaring (Art. IV, §ii, 1), that "the citizens 
 of each State shall be entitled to all privileges and im- 
 munities of citizens in the several States, must be under- 
 stood to contemplate no other rights than those of 
 property and person. (Murray v. McCarty, 2 Munf. 
 398 , Corfield v. Coryell, 4 Wash. C. Ct. 380 ; Conner 
 V. Elliott, 18 How. 591.) 
 2*. Eights of property ; W. C. 
 V. Eights touching personal property ; W. 0. 
 1^. Eights to personal property, as respects aliens, &c. 
 An alien-friend may acquire and hold property in 
 goods, money, and other movable effects, including 
 also choses in action, or debts, &c., and may secure the 
 debts due him by mortgage, deed of trust, or other 
 lien upon lands, such lien being only an incident to 
 the debt, and so partaking, in the view of a court of 
 equity, of its nature. And in like manner, as equity 
 considers that as done which is agreed or ordered to 
 be done, if land be -directed (e. g., by will), to be sold, 
 and the proceeds to go to an alien, it will be deemed 
 a bequest of the money, and so will be valid., (1 Bl. 
 Com. 372 ; ' Hughes v. Edward, 9 Wheat, 489 ; Com'th 
 V. Dev'ees of Martin, 5 Munf. 117; Com'th v. Sel- 
 den. Id, 160; Craig v. Leslie, 3 Wheat, 576.) 
 
 This liberality as to personalty is extended to ahens, 
 because it is at once safe, and promotive of the in- 
 terests of trade; and for a like reason, an alien friend 
 may hire a house for his habitation, although the 
 common law rigorously forbade him to acquire any 
 further interest in lands. (1 Bl. Com. 372.) 
 
 From obvious considerations of policy, an alien- 
 enemy is allowed to enter into no contract with a citi- 
 zen, save only a contract for the ransom of ships cap- 
 tured at sea ; nor can any contract with an alien-enemy, 
 although entered into before the war, be enforced 
 whilst the war is in progress. The hostile-alienage, 
 in the one case, is a plea in bar, and in the other, a 
 plea in suspension of the action. And similar dis- 
 abilities apply to a neutral, and even to a citizen domi- 
 ciled in the enemy's country. (1 Tuck. Com. 69, B. 
 I; 1 Bl. Com. 373, and n's (13) and (14); Bagwell t. 
 Babe, 1 Eand. 272; Bac. Abr. Aliens (D); 1 Th. 
 Co. Lit. 93, and n (H); 1 Eob. Pr. (2nd Ed.) 298-'9; 
 5 do. 31; Billgerry v. Branch, 19 Grat. 393; Man- 
 hattan Ins. Co. V. Warwick, 20 Grat. 393 ; Hale v. 
 Wall, 22 Grat. 424.) 
 
 Digitized by Microsoft® 
 
CHAP. X.J EIGHTS DEPENDENT ON THE EELATION OF PEOPLE. 143 
 
 2^- Mode whereby an Alien is to dispose of his personal 
 property. 
 
 The disposition must be regulated by the law of 
 his domieil (lex domicilii), or permanent residence at 
 the time of the disposition, i. e. if the disposition be 
 by will, at the time of his death. (1 Tuck. Com. p. 
 69, B. I; Y. C. c. 122, § 6; Stor. Conil. L. § 380; 
 Bac. Abr. Aliens, (C. 2).) 
 2^. Eights of Aliens touching real property ; W. C. 
 I*'. History of the doctrine touching rights of Aliens to 
 real property. 
 
 There is a diversity of opinion as to the origin of, 
 the disabilities of aliens touching lands. By some it 
 is referred to the time of Henry II, when a law was 
 madte, at the parliament of Wallingford, for the ex- 
 pulsion of strangers, in order to draw away the Flem- 
 ings and Picards, who were brought into England by 
 the wars of King Stephen. Others have thought, 
 apparently with better reason, that it is an original 
 branch of the feudal law, by which no one could hold 
 lands without being obliged to fealty to him of whom 
 they were holden, so that an alien who owed a previ- 
 ous faith to another prince could not take another 
 oath of fidelity. Some restraints, however, have been 
 laid upon aliens by the laws of almost all countries, 
 as was done for example among the Romans. (Bac. 
 Abr. Aliens, (C).) 
 2^*. Eights to Beal Property, as respects Aliens ; W. C. 
 1'. Doctrine at common law; W. C. 
 l''- Disabilities of Aliens, at common law, as it re- 
 spects lands. 
 
 Aliens, even alien-enemies, may purchase lands at 
 common law (that is, acquire them by their own 
 act, e. g. by conveyance, &c.), but cannot hold them, 
 that is, they are liable to escheat to the Crown. But 
 an alien cannot acquii-e lands by descent, or other 
 operation of law (e. g. by dower or curtesy), be- 
 cause the law will not do so vain a thing as to cast 
 the title upon one, in order to subject it imme- 
 diately to escheat. The incapacity of ahens to hold 
 is applicable, not only to estates of freehold {i. e. of 
 indeterminate duration), but also to estates for 
 years, save only that an alien engaged in trade 
 might hire a house for habitation; but it is only a 
 personal privilege in promotion of trade, so that, if 
 he leave the kingdom, or die, the premises pass to 
 the King, and not to his assignees, or personal re- 
 ^""^^^"B^tJiia bJWmm^^ extends to equi^ble 
 
144 EIGHTS DEPENDENT ON THE EBLATION OF PEOPLE. [bOOK I. 
 
 as well as legal titles ; and hence cannot be avoided 
 by causing the conveyance to be made to a trustee, 
 in trust for the alien. The mischiefs being the 
 same, the trust-estate escheats to the crown, just 
 as a legal estate would do. 
 
 It seems that at common law, if land were vested 
 in an alien trustee, not only was the legal estate lia- 
 ble to escheat, but it escheated discharged of the trust, 
 upon the frivolous technical reason that the Crown 
 could not be compelled to execute the trust, and that, 
 in case of eschfeat, the lord held above the trust, by a 
 condition in law, tacitly annexed to the estate in its 
 inception. 
 
 Since an alien cannot himself inherit, so neither 
 can he transmit inheritance, whatever interest he 
 may have being subject to the paramount right of 
 escheat in the Crown. Hence, if the son be an alien, 
 the native-born grandfather cannot transmit the in- 
 heritance to the native-born grandson, because it 
 must come through the son, whose alienage arrests 
 it. But if a father be an alien, and two brothers be 
 native-born, the brothers may inherit one to the 
 other, because (contrary to what was once thought) 
 the descent is hnmediate, and' not through the father. 
 (1 Bl. Com. 372, & n (6) to (9) ; Bac. Abr. Aliens, 
 (C) ; Id. Uses, (E) and (E), 1 ; Hubbard v. Good- 
 win, 3 Leigh, 608 ; Com. Dig. Alien, (C. 2) and 
 (C. 3); 1 Tuck. Com. 65 & seq., B. I; Gilb. Uses, 
 43; Id. 204; Id. 10, & n (10); Id. 171-'2; 2 
 Fonbl. Eq. 139, n (a); Id. 167, n (a).) 
 2*^. Keasons for the common law disabilities of Aliens. 
 1 Bl. Com. 372 ; Calvin's case, 7 Co. 18, b ; Hub- 
 bard V. Goodwin, 3 Leigh, 510, 615; 
 W. O. 
 1^. The alien would owe a divided allegiance or duty, 
 partly to his own country, and partly to the country 
 where the land is. 
 
 Such " half-faced fellowship " is undesirable to 
 either country. 
 2\ The State might thereby be subjected to foreign 
 influence, power being ever the concomitant of 
 property. 
 
 e. g.. In the case of Poland. (1 Bl. Com. 372, 
 n(8).) 
 3\ The State might be weakened by the diversion 
 abroad of a large portion of the products of its soil. 
 3^. Escheat of lands acquired by aliens. 
 
 ^'^^^%}^lfkdm^Sl4 01- equitable, it is Uable, 
 
OHAP. X.] EIGHTS DEPBWDBNT Olsr THE RELATION OF PEOPLE. 145 
 
 as above stated, {supra p. 143, 1^. ) to be escheated 
 to the crown, but this can only be done by office 
 found, {i. e., by inquisition by a jury, as already ex- 
 plained, ante p. 131, &c. 2',) or in case the title is 
 equitable, by some equivalent proceeding in a court 
 of equity, e. g. , by bill in equity, instituted in either 
 case by the escheator, in the name of the Common- 
 wealth. Until office found, &c., the alien is entitled 
 to enjoy the profits, and to hold against the world, 
 even against the Commonwealth itself. Nay, even 
 after office found, if the possession he vacant, the 
 Commonwealth must, by its officer, enter upon the 
 lands, before the possession in deed can be ad- 
 judged in it. If the possession be vacant, there 
 must still be an office, not indeed to vest the right, 
 but the possession. (Hubbard v. Goodwin, 3 Leigh, 
 482 ; Com'th v. Martin's devisees, 5 Munf. 117 ; 
 Craig V. Leslie, 3 "Wheat. 589 ; Governor's heirs v. 
 Robertson, 11 Wheat. 356; Fairfax v. Hunder, 7 
 Cr. 620 ; Page's case, 5 Co. 52 ; 1 Th. Co. Lit. 91, 
 & n (9).) 
 2'. Doctrine iy statute, in Virginia, touching Alien's 
 rights to real property; W. 0. 
 1"^. Disabilities of Aliens, as respects lands, in Virginia. 
 
 The rigor of the common law has been gradually 
 relaxed, as the importance of promoting immigra- 
 tion has been more appreciated, until at length it is 
 provided that, " an alien, not an enemy, may acquire 
 by purchase or descent, and may hold, real estate 
 in thig State; and the same shall be transmitted in 
 the same manner as real estate held by citizens." 
 (V. C. 1873, c. 4, § 18.) And by Article 9 of the 
 treaty of 1794 with Great Britain, {Jay''s treaty^ it 
 is stipulated that British subjects holding lands in 
 the tJnited States, and their heirs, so far as respects 
 those lands, and the remedies incident thereto, shall 
 not be considered as aliens, and conversely as to 
 American subjects. (Stephen's heirs v. Swann, 9 
 Leigh, 444; Fiott & als v. Commonwealth, 12 
 Grat. 564 ; Orr v. Hodgson, 4 Wheat. 453 ; Shanks 
 V. Dupont, 3 Pet. 242.) 
 
 By statute, the commonwealth is entitled to equi- 
 table interests acquired by aliens, in like manner as 
 to legal interests; and on the other hand, the mere 
 legal estate vested in an alien, by way of mortgage 
 or in trust, isi declared not to be Liable to escheat. 
 (V. C. 1873, ch. 109, § 25.) 
 
 WiQig^esd l^y^flM9«JlS@iS!®the common law, as to 
 10 
 
146 EIGHTS DEPENDENT ON THE RELATION OF PEOPLE. [boOK L 
 
 the disabilities of aliens, as it respects lands, pre- 
 vails in Virginia. 
 2^^. Escheat of lands acquired by aliens in Virginia. 
 
 The doctrine is the same as at common law, witli 
 the qualifications as to the disabilities of aUens. 
 Stated Supra, IK See Supra, p. 145, 3K 
 3^ Doctrine in England and in the United States, re- 
 spectively, touching the rights to real property, of 
 the subjects of the two countries, severally, in the 
 other, after the revolution of 1776; W. C. 
 1"^. The period of separation of these States from the 
 mother country. 
 
 The United States reckon it to be 4th July, 1776, 
 Great Britain 3d September, 1783, the date of the 
 treaty of peace. (Inglis v. Trustees of Sailor's Snug 
 Harb. 3 Pet. 99, 121; 2 Kent's Com. 59, 60.) 
 
 But it seems agreed that the treaty of peace of 
 3d of September, 1783, finally determined the alle- 
 giance of all persons as due to that party to which 
 they were at that time adhering. (Shanks v. Du- 
 pont, 3 Pet. 243; KiUiam v. Ward, 2 Mass. 236; 
 Gardner v. Ward, Id. 244, note ; Doe v. Acklam, 2 
 B. & Cr. 779 ; Doe v. Mulcaster, 6 Do. 771 ; 2 Kent's 
 Com. 60.) 
 2'^. The persons whose rights are concerned. 
 
 The persons whose rights are concerned are 
 
 those born before the separation {ante nati), and 
 
 not such as were born afterwards (post nati). (1 
 
 Tuck. Com. 60 to 62, B. I ; 2 Kent's Com. 56, & seq.) 
 
 3^. The rights which are involved, in the controversy. 
 
 Not rights vested and existing at the period of 
 separation (which were in no wise affected by the 
 mere change of political relations, however they 
 may, in some instances, have been confiscated during 
 the war of 1776 by special legislative acts), hut 
 rights to lands which accrued by descent subsequent: 
 to the separation, and which are not protected by 
 the 9th Article of the treaty (Jay's) of 1794. (Cal- 
 vin's Case, 7 Co. 27^; Doe v. Acklam, 2 B. & Cr. 
 779; Terrett v. Taylor, 9 Cr. 50; United States v. 
 Percheman, 7 Pet. 56.) 
 
 The legislation of Virginia in regard to Britisli 
 aliens, pending the revolution, is stated in Eead v. 
 Bead, 5 Call, 189; Marshall v. Conrad, Id. 364; 
 Com'th V. Bristow, 6 Call, 6 ; Hunter v. Fairfax' 
 Devisees, 1 Munf 218. 
 
 The 9th Article of the treaty with Great Britain, 
 of l'!^iffm(fiep'^tdl^tfft&- the subjects of Great 
 
OHAP. X.] BIGHTS DEPENDENT ON THE RELATION OF PEOPLE. 147 
 
 Britain and the United States, at that time holding 
 {i. e., having title to) lands in either country, whether 
 derived hj purchase or descent, and confirmed such 
 titles as if they had been respectively citizens ; but 
 it embraced only the subjects of the two countries, 
 and applied only to titles then existing, and not to 
 those subsequently acquired. (Harden v. Fisher, 1 
 Wheat. 300; Orr v. Hodgson, 4 Wheat. 453; Blight's 
 Lessee v. Kochester, 7 Wheat. 353 ; Hughes v. Ed- 
 wards & ux., 9 Wheat. 480 ; Fiott & als. v. Com'th, 
 12 Grat. 564.) 
 4''. The doctrine in respect to the rights involved in 
 the controversy ; W. 0. 
 
 1^ The view of the Courts in the United States ; W.^C. 
 1™. As regards English ante-nati, claiming land in 
 Virginia. 
 
 The view of the American courts was: such 
 persons were not born within the ligeance of these 
 States, which did not then exist as States, and 
 therefore that such persons are aliens. (Bead 
 V. Bead, 5 Call, 189 ; Hunter v. Fairfax' De- 
 visees, 1 Munf. 218 ; Dawson's Lessee v. Godfrey, 
 4 Cr. 321.) 
 2™. As regards American ante-nati, claiming lands 
 in Great Britain. 
 
 The view was that, being born within the 
 ligeance of the British Crown, they are entitled 
 to inherit lands in Great Britain, in consequence 
 of the common-law doctrine to which England 
 is committed, that a man can neyer put off his 
 allegiance, or be deprived of the benefit of it, 
 save for a crime. ( Cases supra 1".) 
 
 As the American courts cannot be called to 
 pronounce directly upon the titles to English 
 lands, this latter view has always been merely 
 speculative, and rather in the nature of an argu^ 
 mentum ad hominem, addressed to Great Britain. 
 It seems to have yielded to the more reasonable 
 doctrine stated supra W 
 2^. The view taken by the Courts of England. 
 
 The English view is that, although the subjects 
 of the two countries owed a common allegiance to 
 the British Crown prior to the separation, and might 
 mutually inherit; and although allegiance is indis- 
 soluble, by the act of the subject alone, yet there was 
 never any doubt that subjects might be discharged 
 by consent of the government ; that the treaty of 
 pefiji@/Meaab^^iB!fQbe*5<a783, by recognizing the 
 
148 THE CLEEQT. [boOK I. 
 
 independence of the United States, had deter- 
 mined the English citizenship of all who then ad- 
 hered to those States ; and that American ant&- 
 nati were thenceforward, like the post-nati, aliens 
 to Great Britain, unless they manifested an elec- 
 tion to be British subjects by forthwith leaving 
 the United States, and coming to reside within, 
 the dominions of the mother-country. (Doe v. 
 Acklara, 2 B. & Or. 779; Doe v. Mulcaster, 5 B. 
 & Cr. 771; Bac. Abr. Aliens (A).) 
 
 CHAPTEE XL 
 
 Of the Cleegt. 
 
 4®. The several Classes of the People in England, as Clergy 
 or Laity; W. C. 
 1*. The Clergy. 
 
 Comprehending all persons in holy orders, and in 
 ecclesiastical offices. (1 Bl. Com. 376, & seq) ; 
 W. C. 
 1^. Archbishops, 
 
 Of Canterbury, and of York; the former styled 
 " Metropolitan, and Primate of all England," and the 
 latter " Primate and Metropolitan of England." They 
 are called archbishops, in respect of the bishops under 
 them, and metropolitans because they were consecrated 
 at first in the metropolis of the province. The Arch- 
 bishop of Canterbury has under him, in his province, 
 twenty-one bishops of dioceses, and the Archbishop of 
 York seven. The Archbishop of Canterbury has the 
 precedency of all the clergy, and is the first peer oi the 
 realm. The Archbishop of York is next of the clergy, 
 and has precedence also of all dukes not of the blood 
 royal, and of all the great officers of the State, except 
 the lord chancellor. (1 Bl. Com. 380, n's (9) and (10) ;) 
 W. C. 
 l*". Method of appointment of an Archbishop. " 
 
 Elected. lay the chapter of his cathedral-churck,bj 
 virtue of a licence from the Crown, which is accom- 
 panied by a royal letter-missive, naming the person to 
 be chosen. The appointment is signified by the Xing's 
 letters patent to the other archbishop and two bishops, 
 or to fom- bishops, commanding them, without delay, 
 to confirm, invest, and consecrate the person. (1 Bl. 
 Com. 379-'80.) 
 21^. The M^^Msb^^fi^^ii^ssmAxi.tie%. 
 
CHAP. XI.j THE CLEEGT. 149 
 
 To inspect the bishops and inferior clergy of his 
 province, and to ^^ deprive" any of them for notorious 
 cause; to assemble the clergy of his province in con- 
 vocation, upon receipt of the King's writ; to have 
 cognizance of appeals from inferior jurisdictions with- 
 in his province; and the Archbishop of Canterbury 
 has power to grant dispensations in any case not con- 
 trary to Scripture, (including special licences to marry 
 at any place or time), where the Pope used to grant 
 them ; and iy custom, to crown the Kings and Queens 
 of the realm. (1 Bl. Com. 380-'81, and n (11) to (15).) 
 S*". The manner wherein the Archbishop's office may 
 cease. 
 
 By death, deprivation for any very gross and no- 
 torious crime, and also by resignation, which must be 
 to the sovereign in person, as his only superior. (1 
 - Bl. Com. 382.) 
 2«. Bishops; W. C. 
 1'^- Method of appointment of a Bishop. 
 
 Elected by the chapter of his cathedral-church, as 
 in case of an archbishop. The appointment is signi- 
 fied by the King's letters-patent, to the archbishop, who 
 must immediately confirm, invest, and consecrate the 
 person elected. (1 Bl. Com. 3T9-'80.) 
 2". The Bishop's rights and duties. 
 
 His functions, besides the administration of certain 
 ordinances peculiar to his order, {e. g. confirmation), 
 consist in inspecting the manners of the people and 
 clergy of his diocese, and correcting what is amiss, by 
 ecclesiastical censures. To this end, he may visit 
 every part of his diocese, has several courts under him, 
 presided over by his chancellor, and is assisted in his 
 administration also, by his arch-deacons, dean and 
 chapter, and vicar-general. He also institutes to all 
 benefices in his diocese ; consecrates churches ; sus- 
 pends and excommunicates evil-livers; and until re- 
 cently, granted administration and probate of wills. 
 This last function is now transferred to secular courts, 
 called courts of prohate, created for the purpose, by 
 20 and 21, and 21 and 22 Yict. (1 Bl. Com. 882, n 
 (16) and (17) ; Williams on Pers'l Prop. 305, 328.) 
 S*". The manner wherein the Bishop's office may cease. 
 By death, by deprivation for any very gross and 
 notorious crime, and also by resignation, which is to 
 the arcKHshop, as his next superior. (1 Bl. Com. 382.) 
 3^. Dean and Chapter. 
 
 They are the bishop's council, to assist with their 
 advice, in the ecclesiastical and secular concerns of the 
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150 THE CLEEGY. [boOK I. 
 
 see. They originated in the reservation of certain of 
 the clergy, when the rest were settled in their several 
 parishes, in order to celebrate Divine service in the 
 bishop's cathedral. The chief of these had the name 
 of decamis, or dean, being probably at first appomted 
 to superintend ten canons ov prebendaries. (1 Bl. Com. 
 382.) 
 W. C. 
 l*"- Method of appointment of Dean and Chapter. 
 
 The chapter, consisting of canons or prebendaries, 
 are sometimes appointed by the Crown, sometimes by 
 the bishop, and sometimes elected by each other. The 
 deans of the ancient chapters are elected by the chap- 
 ter, upon a conge d^elire (or licence to elect), from the 
 King, accompanied by letters-missive of recommenda- 
 tion, as in case of bishops ; but in the modern chap- 
 ters founded by Henry YIII, out of the spoils of the 
 dissolved monasteries, (of which there are said to be 
 thirteen), the deanery is donative {i. e. is merely in the 
 gift of the Crown, without the intervention of any other 
 authority), and the installation is simply in pursuance 
 of the King's letters-patent. (1 Bl. Com. 382-'3, 
 and n (19) ; 1 Th. Co. Lit. 98-'9, and n (7) ; 2 Bl. 
 Com. 23.) 
 2^^ The rights and duties of the Dean and Chapter. 
 They are the nominal electors of the bishop, and at 
 common law their confirmation was necessary to his 
 grants, although it is othervrise by 32 Hen. VHI, c. 28. 
 (1 Bl. Com. 383.) 
 Z^. The manner wherein the office of the Dean, and of 
 any member of the Chapter, may cease. 
 
 By death, deprivation, resignation to the King or 
 bishop, or becoming a bishop. (1 Bl. Com. 383.) 
 4*f. Archdeacon. 
 
 He is a subordinate of the bishop, having a kind of 
 episcopal authority over the whole, or some peculiar 
 part of the diocese. (1 Bl. Com. 383); 
 W. C. 
 l*". Method of appointment of an Archdeacon. 
 
 Usually appointed by the bishop himself, or if by 
 a layman, the bishop, upon presentation by the patron, 
 institutes him, and the dean and chapter induct him. 
 (1 Bl. Com. 383, and n (22).) 
 S?". The Archdeacon's rights and duties. 
 
 His authority, in modern times, is independent of 
 and distinct from that of the bishop (although in 
 theory the bishop's subordinate); and he therefore 
 visits l\^^fi^t)^irf^i^i^sdA® separate court for the 
 
CHAP. XI.] THE CLBEGT. 151 
 
 punishment of offenders by spiritual censures, and for 
 hearing other ecclesiastical causes, but with an appeal 
 to the bishop's coui-t. (1 Bl. Com. 383; 3 Do. 64; 
 3 Steph. Com. 69.) 
 5^. EiUral Deans. 
 
 Ancient officers of the church, but now disused, al- 
 though deaneries still subsist as an ecclesiastical division 
 of territory. They were deputies of the hishop, who 
 appointed them, in order to inspect the conduct of the 
 parochial clergy, and examine candidates for confirma- 
 tion, &c.; and were armed with an infeiior degree of 
 judicial and coercive authority. (1 Bl. Com. 383-'4:.) 
 6^. Parsons and Yicars of Churches ; W. C. 
 I''. Parsons. 
 
 The parson {parsona ecclesice) is \h.& personification 
 of the visible church. He is a sole hody-corporate, has 
 perpetual succession, and enjojs full possession of all 
 the rights of a parochial church; e. g., glebe, parson- 
 age; tithes, &e. (1 Bl. Com. 384, &c.) 
 W. C. 
 1'. Method of appointment of Parsons. 
 
 Four requisites are generally necessary — ^viz : holy 
 orders (as deacon or priest), presentation, institution, 
 and induction. The presentation to the bishop may 
 be by the lay-patron (when the advowson or right to 
 present is said to be presentative); or the right may 
 be in the bishop himself (when it is said to be col- 
 lative); or, lastly, no presentation to the bishop may 
 be required (in which case it is called donative). The 
 institution is the acceptance of the candidate by the 
 bishop himself; and induction is performed by a 
 mandate from the bishop to the archdeacon, who 
 usually commits it to another clergyman. (1 Bl. 
 Com. 388 to 391.) 
 2'. The rights and duties of Parsons. 
 
 They are entitled to the glebe, to the parsonage, 
 to tithes, and other ecclesiastical dues; and it is their 
 duty to reside in their parishes, and in the parsonage 
 thereof; to perform divine service at the appointed 
 times, and to instruct the people in religion; and to 
 exercise the duties of hospitality. (1 Bl. Com. 391-'2.) 
 3*. The manner wherein the Parson's office may cease. 
 By death, by deprivation, by cession in taking an- 
 other benefice, and by consecration as a bishop; 
 but it may be allowed by dispensation, to hold two 
 or more benefices at once, in commendam — i. e., as a 
 living commended to a parson's care. (1 Bl. Com. 
 592.) 
 
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152 THE CLERGT. [bOOE I. 
 
 2^, Vicars. 
 
 When the benefice is perpetually annexed to some 
 spiritual corporation, aggregate or sole, which has ap- 
 propriated the glebe, tithes, and other dues, and em- 
 ploys some priest to perform the requisite parochial 
 duties of a pastor, the person thus employed, or sub- 
 stituted (who receives for his compensation an agreed' ' 
 portion of the titl^es), is called a Vicar. (1 Bl. Com. 
 388.) 
 
 The method of appointment of vicars, their Suties 
 and rights, and* manner wherein the office may cease, 
 are substantially the same as vsdth parsons. (1 Bl. Com. 
 388 & seq.) 
 7^. Curates. 
 
 Temporary officiating ministers, in place of the pro- 
 per iucimabent, serving Jvr a stipend paid by the par- 
 son or vicar who appoints him, the amount being set- 
 tled by the ordinary. This is the lowest degree of the 
 clergy, properly so called, the rest to be named being 
 ecclesiastical oncers only. (1 Bl. Com. 393-'4.) 
 8^. Churchwardens. 
 
 The guardians or keepers of the church edifice, and 
 the representatives of the body of the parish. They| 
 are appointed, as the custom may direct, by the parson, 
 or by the parish, or sometimes by both; and are a kind 
 of corporation, being capable, by the name of tfie church 
 wardens of suck a parish, to take and hold chattelpro- 
 jp&rty, and to bring actions. They have no interest ia 
 the church, church-yard, or glebe, all of which are 
 vested in the parson, but their ' office is to repair the 
 church and church-yard, (for which purpose they levy 
 a rate or tax,) to compel the parishioners to attend 
 church ; and, in conjunction with the overseers, to take 
 care of the poor, &c. (1 Bl. Com. 394— '5 ; Bac. Abr. 
 Churchwardens. ) 
 9^. Parish Clerks and Sextons. 
 
 Appointed generally by the parson, but by custom 
 may be chosen by the inhabitants. • Parish clerks were 
 formerly clerks in orders, but in modern times are lay- 
 men. Their principal business is to make the responses 
 in the service ; to read the lessons ; to sing, or lead in 
 the singing of the psalms and hymns, &c. 
 
 Sextons, or sacristans, (from the old words, segstm, 
 segerstane, the keeper of holy things,) are employed to 
 attend the church building, and keep it in fit condition; 
 to ring the church bell, &c. (1 Bl. Com. 395; Jac. 
 L. Dict'y, Parish Clerks and Sacristan.) 
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OHAP. Xn.j THE CIVIL STATE. 153 
 
 OHAPTEE XII. 
 
 Of the Citil State. 
 2'. The Laity. 
 
 Such of the people as are not comprehended under the 
 designation of Clergy, may be divided iato three distinct 
 states, .the Civil, the Military, and the Maritime. (1 
 Bl. Com. 396.) 
 W. C. 
 is. The Civil State. 
 
 It consists of the nobility and the commonalty. (1 Bl. 
 Com. 396.) 
 W. C. 
 I''. The Nobility. 
 
 The King is the foimtain of honor, and may insti- 
 tute and confer titles at his pleasure. Those at pre- 
 sent in use are of unequal antiquity. They are dukes, 
 marquises, earls, viscounts, and barons ; all of whom, 
 though differing iu degree amongst themselves, yet as 
 compared with the commonalty, are equals, and so are 
 styled ^eers. (1 Bl. Com. 396.) 
 W. C. 
 1'. The several ranks of Nobility; "W. C. 
 l^ Dukes. 
 
 This title, though inferior to some in antiquity, 
 is superior to all in rank, being the first in dignity 
 after the royal family. Among the Saxons, it was 
 frequent, under the appellation of herezoga, corres- 
 ponding to the Latin duces, leaders of armies. 
 After the Norman conquest, the Kings of England, 
 being themselves Dukes of Normandy, would not 
 honor any subject with the title of Duke, until Ed- 
 ward ni created his son, Edward the Black Prince, 
 Duke of Cornwall; and many of the royal family 
 had afterwards similar honors bestowed on them. 
 Li the reign of Elizabeth, the title became extinct, 
 but was revived by her successor, James I, in the 
 person of his favorite, George Villiers, whom he 
 created Duke of Buckingham. (1 Bl. Com. 397.) 
 2''. Marquis. 
 
 His office (for dignity and duty formerly went 
 together), was to guard the frontiers (marches), of 
 the kingdom, and therefore he was styled a lord 
 marcher, or marquis. (1 Bl. Com. 397.) 
 S^. Earl. 
 
 A title so ancient that its original is not trace- 
 able. By the Saxons, a person of this dignity was 
 called^«J^|^^^?i,^guival^g to senior, or senator. 
 
154 THE CIVIL STATE. [bOOK I. 
 
 amongst the Eomans) ; and also schire-man, because 
 he had charge of a shire or county. The Danes 
 ■ changed the designation to eorle, which seems in 
 their language to have had a like meaning. In 
 Latin he is called comes, as being the King's attend- 
 ant, and in French, count, whence his shire was 
 called county, the present chief-officer thereof be- 
 ing called, as has been seen, vice-comes, as having 
 been originally the deputy of the comes. The name, 
 earle, is now a mere title, wholly disconnected from 
 any office or jAisdiction whatsoever. (1 Bl. Com. 
 398.) 
 4:^. Yiscount. 
 
 In Latin, vice-comes, was made an arbitrary title 
 of honor, without any pretence of office attached, 
 18 Hen. VI, (A. D. 1440). (1 Bl. Com. 398.) 
 6''. Baron. 
 
 The most universal title of nobility, originally 
 annexed to all the superior ranks of the peerage, 
 but in process of time separated from them, by be- 
 ing limited to different lines of heirs. Barons are 
 supposed to have corresponded originally with the 
 lords of manors, whence the manorial court is styled 
 the court-baron. (1 Bl. Com. 399.) 
 2'. Modes of creating Peers. 
 
 By vrrit, or by letters-patent, actual, or presumed 
 from prescription; — ^by writ, which is a King's let- 
 ter, summoning one to attend the House of Peers, by 
 the style and title which the King is pleased to con- 
 fer ; — by letters-patent, whereby the dignity enures to 
 a man and his heirs, or for life, according to the limi- 
 tation contained therein. (1 Bl. Com. 400.) 
 3'. Principal incidents attending Nobility. 
 
 Besides being a member of parliament, and an 
 hereditary counsellor of the Crown, a nobleman is 
 entitled to be tried upon criminal charges — at least 
 for treason or felony — ^by his peers; cannot be ar- 
 rested in civil cases; answers bills in equity upon 
 his honor, not upon oath; when sitting in judgment, : 
 gives his verdict, not on oath, but on his honor.; 
 and is entitled to have those who malign him pun- 
 ished with peculiar severity, as guilty of scdndahm 
 magnatum. (1 Bl. Com. 402.) 
 4'. Modes whereby a peer may lose his nobility. 
 
 Only by his death, by attainder, or by act of parlia- 
 ment. (1 Bl. Com. 402.) 
 2^" The Commonalty. 
 
 Like /ftig;fe©¥is^yvrt^^§#8>ionalty is divided in- 
 
CHAP. XII.] THE CIVIL BTATB. 155 
 
 to several degrees, yet all commoners are in law peers 
 (or equals), in respect to their want of nobility. (1 Bl. 
 Com. 403.) 
 W. C. 
 1*. Vi-dame (vice-dominus), or Valvasor. 
 
 An order quite out of use, and their original, or 
 ancient office, not understood. (1 Bl. Com. 403 ; 
 Id. 347, n (23).) 
 2^ Knights of various names and ranks. 
 
 Knights are called in Latin equites aurati, because 
 
 they served on horse-back, and wore gilded spurs. 
 
 In English law, they are styled milities, because of 
 
 the military service to which their feudal tenures 
 
 obliged them. Every one who held a knight's fee 
 
 (according to some 680, or to others 800 acres, but 
 
 more probably of the annual vnlue, in the time of 
 
 Ed. I, of £20, 1 Th. Co. Lit. 210-'ll), was obliged, 
 
 by the feudal law, to be knighted, or pay a fine to 
 
 the King, an old usage which Charles I, gave great 
 
 offence by attempting to revive. (1 Bl. Com. 404.) 
 
 W. C. 
 
 1*^. KJnights of the order of St. George, or of the Garter. 
 
 Instituted by Edward III (A. D. 1349). (1 Bl. 
 
 Com. 403; 1 Eap. Eng. B. X.) 
 
 2^. Knight-banneret. 
 
 Apparently so called because originally created 
 by the King in person on the field, under the royal 
 hanners, in time of war. (1 Bl. Com. 403.) 
 3*:. Baronet. 
 
 Instituted by James I (A. D. 1611), to raise a 
 competent sum (the honor ieing sold/), to defray 
 the charges of reducing the province of Ulster, in 
 Ireland. (1 Bl. Com. 403.) 
 4". Knights of the Bath. 
 
 So called from the ceremony of bathing the night 
 before creation. Instituted by Henry IV, and re- 
 vived by George I. (1 Bl. Com. 404.) 
 5\ Knight-Bachelor. 
 
 The most ancient, and yet the lowest order of 
 knighthood. It is at least as early as the time of 
 Alfred, who conferred it on his son Athelstan. (1 
 Bl. Com. 404.) 
 3'. Names and titles of worship, not of dignity. 
 
 e. g.. Gentleman, Esquire, Yeoman, &c. (1 Bl. 
 Com. 405-'6.) 
 4 '. Tradesmen, Artificers, and Laborers. 
 
 These designations seem to be resorted to to iden- 
 tify more certainly the person intended in legal, and 
 especially in criminal proceedings. (1 Bl. Com. 407.) 
 
156 THE MILITAET AUD MAEITIME STATES. [bOOK I. 
 
 CHAPTER XIII. 
 
 Of the Militaet and Maeitime States. 
 
 28. The Military State. 
 
 This includes the whole of the soldiery, or persona 
 peculiarly selected and set apart for the defence of the 
 realm. (1 Bl. Com. 408 & seq. ; 2 Steph. Com. 594 
 & seq.) ; 
 W. C. 
 l*". Dangers of standing armies to a free State. 
 
 In absolute monarchies, which govern principally 
 by fear, standing armies are a necessary element; but 
 in free States, the profession of a soldier is justly an 
 object of jealousy. ISTo man ought to take up arms, 
 except to defend his country, or to vindicate its laws; 
 and when he becomes, for a time, a soldier, he ceases 
 not thereby to be a citizen. Accordingly, the com- 
 mon law knows no such state as that of a permanent 
 soldier, and makes no provision for it. It was not 
 until the reign of Henry YII, that the Kings of Eng- 
 land had so much as a guard about their persons. (1 
 Bl. Com. 408.) 
 2^. Arrangements for national defence amongst the 
 Anglo-Saxons; W. C. 
 1\ Arrangements amongst the ancient Germans. 
 
 Caesar and Tacitus relate that the Germans had 
 Dukes, elected by the people for their warhke prow- 
 ess, who commanded their armies in war, and Kings, : 
 who were hereditary, to conduct their dv^ affairs. 
 The forces seem to have consisted of the body of the 
 population. (1 Bl. Com. 409.) 
 2\ Arrangements perfected by Alfred. 
 
 The military force of the kingdom was in the 
 hands of the dukes or heretochs, who were constituted 
 for every county of the principal nobility, and such 
 as were most remarkable for being " sapientes, fdetss} 
 et animosi." They were chosen, like the sheriffs, by i 
 the people of the county in full assembly {folk-mob), 
 according to that fundamental maxim of the Saxon 
 constitution, that any officer entrusted with power 
 susceptible of abuse, and of being perverted to op- 
 press the people, should be chosen by the people 
 themselves. The dukes, however, seem to have 
 possessed a power too independent of the throne, 
 whereby they were occasionally tempted, and en- 
 abled, to accomplish the subversion of the royal au- 
 thorityp^^^gv^gy;]^.^^^^^gon of the Crown, as in 
 
OHAP. XIII.J THE MILITAKT AND MAKITIMB STATES. 167 
 
 case of Duke Harold, upon the death of Edward the 
 Confessor. (1 Bl. Com. 408 to 410.) 
 3^. Arrangements for national defence after, the Norman 
 conquest; W. C. 
 1'. The feudal provision for national defence. 
 
 "With the Conquest, or at least in consequence of 
 it, the feudal law was introduced into England in 
 its rigor, the whole system being on a military plan. 
 The kingdom was divided into knigMs fees, in 
 number above 60,000, for each of which a soldier 
 was bound to attend the King in war, for not ex- 
 ceeding forty days in the year, a term which it was 
 supposed would decide the campaign, and probably 
 the war. In process of time this personal service 
 was exchanged for pecuniary commutations, and 
 finally the military part of the system was abolished 
 by Stat. 12 Car.. II, e. 24. (1 Bl. Com. 410.) 
 2*. Supplemental provisions for national defence by 
 early statutes. 
 
 Besides this feudal array, the statutes of 27 Hen. 
 n, (A. D. 1131), and 13 Edw. I, c. 6, (A. D. 1278), 
 aided by subsequent statutes, obliged every man to 
 provide himself with siiitable arms, in order to keep 
 the peace, but with the proviso, that he should not be 
 compelled to go out of the realm at any rate, nor out 
 of the shire, save in case of urgent necessity. Under 
 these statutes it was usual for the Crown, from time 
 to time, to issue commissions of array, and to send 
 into every county of&cers who could be confided in, 
 to muster, and set in military order, the inhabitants 
 of every district; and about the time of Henry VIII, 
 lieutenants were introduced as standing representatives 
 of the Crown, to keep the counties in military order, 
 whereby the old commissions of array fell into dis- 
 use. 
 
 These old statutes were all repealed by Stat. 1 
 Jac I, c. 25, and 21 Jac. I, c. 28 (A. D. 1603 and 
 1624), and the national defence was left as at com- 
 mon law. (1 Bl. Com. 411.) 
 3'. Disputes between Charles I and parliament, as to 
 the control of the militia. 
 
 Parliament (that is, the Lords and Commons,) not 
 only denied the control of the militia to the King, as 
 his common-law prerogative, (in which they seem to 
 have been right), but asserted it to be in the tiuo 
 houses, — a proposition which, as the two houses, 
 without the King, do not constitute the parliament 
 proper,-^'S?M9 ^aMmsf^lature,— appears to 
 
158 THE MILITARY AND MAEITIME STATES. [bOOZ I. 
 
 be untenable. This dispute, it will be remembered, 
 was the immediate cause of the final rupture. (1 
 Bl. Com. 411-'12; 2 Eap. Eng. 422, c. xx, (A. D. 
 
 164:l-'2.) 
 
 4^. Modern provisions for the national defence; "W. C. 
 1'. Provisions to make the public force available ; W. C. 
 11^. The Militia-force. 
 
 After the restoration, by Stats. 13 Car. II, c. 6; 
 14 Car. II, c. 3; and 15 Car. II, c. 5, (A. D. 1662 
 to 1664), the sole right of the Crown was recog- 
 nized to govern and command the nulitia, as well as to 
 organize it; and these statutes are the foundation, 
 and contain the substance, of many subsequent acts 
 for the same purpose. (1 Bl. Com. 412, and n 
 (14); 2 Steph. Com. 598-'9. 
 W. C. 
 1\ The compulsory levy of Militia. 
 
 A certain number of the inhabitants of every 
 county are chosen by lot, for five years, and of- 
 ficered by the lord-lieutenant of the county, and 
 other priacipal landholders, under a commission 
 from the Crown, and are disciplined at stated 
 periods, for the internal defence of the country. 
 They are not compellable in any case to go mi of 
 the realm, nor out of the county, unless in case of 
 invasion, or actual rebellion. (1 Bl. Com. 412 ; 
 2 Steph. Com. 599.) 
 2^. The Volunteer Militia. 
 
 Originated in the menace of French invasion, in 
 1803, and is now, for the most part, laid aside, al- 
 though the' laws for its regulation are still unre- 
 pealed. (2 Steph. Com. 599.) 
 2^^. The standing forces. 
 
 The occasions of war, especially of aggressive -wav, 
 require soldiers more completely and permanently 
 disciplined than militia, . and not restricted as to 
 the field service. The military establishment of 
 Great Britain, therefore, comprises, even in peace, 
 a large body of regular forces, who are under the 
 command of the Crown. (1 Bl. Com. 413.) 
 2\ The provisions to prevent the military force of the 
 country from being dangerous. 
 
 It can be embodied and governed only in pursu- 
 ance of an act of Parliament, which is known as the 
 mutiny act, and is annually enacted, so that the whole 
 army is ipso facto disbanded at the end of every year, 
 unless continued by parliament. This annual statute 
 clothe^^gyzg^y7j^oBe>W®^ to make laws, (caUed 
 
CHAP. XIII.J THE MILITARY AND MARITIME STATES. 159 
 
 the Articles of War,) for the govermnent of the soldiers, 
 and of the militia, and to convene courtsrmartial, with 
 jurisdiction to try and punish offences according to 
 the Articles of War, and the provisions of the act. 
 Without the mutiny act, the soldiers could only be 
 proceeded against according to the common law, that 
 is by action for not fulfilling their contract of fenlist- 
 ment, and by prosecution for assault and battery, for 
 beating their officers, which, of course, would put 
 an end to all discipline. This obstacle it was which 
 prevented James II from establishing a standing 
 army, and governing by means of it, as he had de- 
 signed to do. (1 Bl. Com. 413 & seq ; 2 Steph. Com. 
 600.) 
 
 Tins martial law which is thus applied by the po- 
 tency of an act of parliament, is viewed with great 
 jealousj, and is rigorously confined to persons in 
 military service, either as regular soldiers or as militia. 
 (2 Steph. Com. 602.) 
 3'. Provision for disabled soldiers. 
 
 Pensions are provided for the sick, hurt, and 
 maimed ; and for such as are worn out in their duty, 
 the royal hospital at Chelsea, &c. (1 Bl. Com. 41Y ; 
 2 Steph. Com. 602-'3.) 
 2«. The Maritime State. 
 
 This includes the persons employed in the royal 
 navy, which has ever been the chief defence and orna- 
 ment of Great Britain, and as such has been assidu- 
 ously cultivated from a very early period. So eminent 
 was the naval reputation of England in the twelfth 
 century, that the marine code, known as " laws of Ole- 
 ron," which was compiled by Richard I of England, 
 (about A. D. 1194r,) at the Isle of Oleron, on the coast 
 of France, then part of the possessions of the English 
 crown, was speedily received by all Europe, and now 
 constitutes the ground of all their maritime constitu- 
 tions. (1 Bl. Com. 418, & n (13) ; 1 Th. Co. Lit. 9, 
 48 ; Bac. Abr. Court of Adm. (E).) 
 W. C. 
 I''. The naval power of England, cherished and enlarged 
 by the navigation acts. 
 
 By these acts the constant increase of mercantile 
 shipping and seamen was immensely and unavoidably 
 promoted, the trade of. the country, and especially of 
 the colonies, being thereby more or less restricted to 
 English ships, manned chiefly by English crews. (1 
 Bl. Com. 418-'19, & n (14), &c.) 
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160 MASTER AND SERVANT. [BOOK I. 
 
 2'^. Modes adopted to supply the Royal Navy with sea- 
 men. 
 
 The supply is kept up, not by voluntary enlistments 
 alone, with many advantages of wages, but also by 
 impressments, in pursuance of royal commissions, 
 (which, though much complained of, have been ad- 
 judged, upon the plea of necessity, to be in accord- 
 ance with the common law,) and by authorizing parishes 
 to bind poor boys apprentices to masters of merchant- 
 vessels. (l.Bl. Com. 420-'21 _; 2 Steph. Com. 604-'5.) 
 
 S'- Laws to enforce I^'aval Discipline. 
 
 The rales and articles of the naval service, whereby 
 persons connected with it are governed, are set down 
 in certain permanent acts of parliament, and are not left, 
 as in case of the army, to executive discretion, under 
 an annual mutiny act. (1 Bl. Com. 421; 2 Steph. 
 Com. 605-'6.) 
 
 4*". Privileges conferred on sailors. 
 
 Nearly the same as on soldiers ; e. g., pensions to the 
 maimed, wounded or superannuated, and a refuge in 
 the royal hospital at Greenwich, &c. (1 Bl. Com. 421; 
 2 Steph. Com. 607.) 
 
 CHAPTEE XIV. 
 
 Of Master and Servant. 
 
 2"- The Private Relations, and the rights and consequent du- 
 ties belonging thereto. 
 
 The private relations are those of (1), Master and ser- 
 vant; (2), Husband and wife; (3), Parent and child; and 
 (4), Guardian and ward; 
 W. C. 
 1*. Master and Servant; W. C. 
 
 The relation of master and servant, in its proper 
 and more comprehensive sense, pervades the whole of 
 society, and demandp careful consideration. The sub- 
 ject may be presented under the heads following, namely: 
 (1), The definition of a master and of a servant; (2), 
 The several classes of servants; (3), The manner in 
 which the relation of service affects master and servant 
 respectively; (4), The manner in which strangers may 
 be affected by the relation; and (6), The doctrine touch- 
 ing the termination of the relation; (6), The doctriae 
 touching ^^^}^ffj^bf^ftr&^^^ ^liere governmerd is 
 
CHAP. XIT.J MASTER AND SERVANT. 161 
 
 concerned; (T), The doctrine touching the liability ot 
 an employer for the acts and defaults of a contractor ; and 
 (8), The doctrine touching the liability of the owner of real 
 property for its use for hurtful purposes ; 
 W. C. 
 1^. Definition of a Master, and of a Servant. 
 
 A master is one who exercises personal authority or 
 control over another, and that other is his servant. (1 
 Pars. Con. 86-'7.) 
 2^ The several classes of servants; W. C. 
 
 The several classes of servants include (1), Slaves; (2), 
 Menial servants; (3), Apprentices; (4), Laborers; and 
 (5), Stewards, bailiffs, factors, agents, &c. ; 
 W. C. 
 1*. Slaves. 
 
 Slavery is properly a state of involuntary servitude for 
 life. The extent of the master's authority is greater or 
 less, according to the municipal law of each country 
 where such a system prevails. It was never understood 
 in Virginia to confer on the master, as it did by the 
 Koman law, absolute and unlimited power over the life 
 and limbs of the slave, and for a century past has been 
 with us little more than an apprenticeship for life, with 
 power in the master to assign it at pleasure. 
 
 Slavery existed in England, at common law, under 
 the name of villenage ; and that country for a century and 
 a half was the great patron of the African slave-trade 
 (the most monstrous wickedness of modern times), and 
 continued it for nearly thirty years after it had been 
 abolished by Virginia. (1 Th. Co. Lit. 405 & seq. ; 1 
 Hargr. Jur. Exere's 18 & seq.; Bract. Lib. lY, fol. 208; 
 Somerset's Case, Lofft's Eep. 1, 17; S. C. 20 How. St. 
 Tri. 1; 1 Kob. Pr. (2d Ed.), 18, &c.) 
 
 The growing density of her population having made 
 it more profitable to hire laborers than to own them, 
 villenage sunk gradually into disuse, and the English 
 people (like some of our own countrymen), mistaking 
 the promptings of interest for those of moral principle, as 
 men are prone to do, have loudly applauded their own 
 philanthropy, and have been fain to atone to the world 
 for their very active participation in the worst incidents 
 of slavery, by remorseless abuse of Virginia for con- 
 tinuing to tolerate what they loould not alloio her to prevent. 
 "We may note, (1), The origin of slavery in general; 
 (2),' The origin of slavery in Virginia, its justification, 
 and its history here; (3), Slavery in its relation to the 
 world; ani,^.4Lmg 8^ tejl^^ a negro or colored 
 person m Virgima, ' 
 11 
 
162 MASTEE AND SERVANT. [bOOK I. 
 
 w. c. 
 
 is. The Origin of Slavery in general, and objections 
 thereto; W. C. 
 1". Origin of Slavery. 
 
 Slavery, which seems to be well nigh as ancient as 
 human society, is referred by Justinian to three 
 sources, viz., captivity in war, purchase for a price, 
 and birth of a slave mother. Servi aut nascuntur aut 
 Jiunt. Nascuntur ex ancillis nostris; JiUnt aut jure gen- 
 tium., id est, ex captivitate ; aut jure civili. (1 Th. Co. 
 Lit. 403-4; Gen. ix. 10, 11; Just. Inst. Lib. I, Tit. 
 iii, § 4.) 
 2". Objections to the validity of these sources of slavery. 
 
 Blackstone very justly observes that the three ori- 
 gins of the right of slavery, assigned , by Justinian, 
 are all of them built upon false foundations. As first, 
 jure gentium, from captivity in war; as if the con- 
 queror, having spared the life of his captive, has a right 
 to deal with him as he pleases. But war is itself jus- 
 tifiable only on principles of self-preservation, and 
 therefore gives no other right over prisoners, but 
 merely to disable them from harming us, by confining 
 their persons; much less can it give a right to kill, 
 torture, abuse, plunder, or even to enslave an enemy, 
 whe?i the loar is over. 
 
 But secondly, as to slavery beginning jure civili, 
 when one man sells himself to another; if this is meant 
 only of contracts to serve or work for another, it is 
 very just; but when applied to strict slavery, where 
 the bondsman becomes the property of the master, it 
 is repugnant to sense and reason. Every sale implies 
 a price, an equivalent, or what may possibly be au 
 equivalent to the seller in lieu of what he parts with ; 
 but what can possibly be an equivalent for one man's 
 thus surrendering himself up to the absolute disposal 
 of another during his whole life, as his property? 
 
 Lastly, if slaves cannot be made, either jure gentium, 
 , from captivity in war, nor jure civili, by purchase for 
 a price, it is manifest that no one can be a slave by 
 birth. (1 Bl. Com. 423 ; Montesq. Sp. L., B. XV, c. 2 ; 
 Yat. B. Ill, § 152; 1 Hargr. Jur. Ex. 12 & seq.) In 
 its origin, therefore, slavery cannot be justified; but 
 when once instituted, and when slaves constitute a 
 considerable part of the population of a State, the con- 
 tinuance of the institution may, and ' generally will 
 become a necessity, because more injury would result 
 to the body politic from its precipitate abolition than 
 from it&m^TS^Microsoft® 
 
CHAP. XIV.] MASTER AND SERVANT. 163 
 
 2^. The Origin of Slavery in Virginia, its justification, 
 and its history there. 
 
 We are to take notice in this connexion of, (1), The 
 origin of slavery in Virginia; (2), The justification of 
 slavery in Virginia; (3), The history of slavery in Vir- 
 ginia; and (4), Slavery in its relations to the Federal 
 government ; 
 W. C. 
 l*"- The Origin of Slavery in Virginia. 
 
 In August, 1620, says Beverly, a Dutch man-of-war 
 landed twenty negroes for sale, which were the first of 
 that kind that were carried into the country. (Bev. 
 Va. 35 ; 1 Rob, Pr. (2d Ed.) 15 & seq.) 
 2'^. The Justification of Slavery in Virginia. 
 
 The continuance of slavery in Virginia was justified 
 by an inexorable political necessity. It was imposed on 
 the colony, in the first instance, against the earnest 
 and oft-repeated protests of the General Assembly, 
 by the negatives of the King of England, or of his 
 governors, on the laws enacted to prohibit the impor- 
 tation of and traffic in slaves; the further importation 
 was forbidden under heavy penalties, within two years 
 after our declaration of independence {i. e., in 1778), 
 almost thirty years before it was prohibited by Great 
 Britain, and before Kew England would consent en- 
 tirely to forego its profits, by allowing the United 
 States to prohibit it; Virginia being thus the first 
 country in the world to set the seal of reprobation 
 upon that opprobrium of modern civilization, the Afri- 
 can slave-trade; and when, at length, the common- 
 wealth acquired the power to direct her own policy, 
 the number of slaves was so great (exceeding 230,000) 
 as compared with the whites (about 360,000) us to 
 make it alike disastrous to both races to liberate the 
 blacks. (1 Tuck. Com. 75; Dew's Essay on Slavery, 
 76, & seq.; 3 Ell. Deb. 590, Speech of P. Henry.) 
 3*". History of Slavery in Virginia. 
 
 The history of slavery in Virginia may be briefly 
 presented under the heads following, namely : 
 (1). The first progress of slavery in Virginia; 
 (2). Efforts of Virginia to arrest the importation of 
 slaves. 
 
 (3). Prohibition of the slave-trade in Virginia; 
 (4). What persons were capable of being enslaved ; 
 (5). Legislation in Virginia touching the rights of 
 master to slaves; 
 
 (6). Penal legislation in Virginia touching slaves; 
 (7). Manumission of slaves by the owner ; 
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164 MASTEE AND SERVANT. [bOOK I. 
 
 (8). Doctrine as to the liability of the hirer of a 
 slave ; 
 
 (9). What persons were slaves in Virginia at the 
 date of the abolition of slavery ; 
 
 (10). Propositions from time to time for general 
 emancipation ; 
 
 (11) Alarms of servile insurrection in Virginia; 
 
 (12). The abohtion of slavery in Virginia; 
 
 (13). The measure of recovery in controversies 
 touching slaves detajjied or converted prior to aboli- 
 tion; 
 
 (14). Doctrine as to the validity and effect of bonds 
 and notes for slave purchases, &c. ; 
 
 w. c, 
 
 1*. The First progress of Slavery in Virginia. 
 
 Having originated, as already stated, in 1620, its 
 progress was at first so slow that, in 1671, Sir "Wil- 
 liam Berkeley, then governor, states the slaves to 
 be only 2,000, out of an entire population of 40,000, 
 and says the importation did not exceed two or three 
 cargoes in seven years. (2 Hen. Stats. 315.) 
 2'. Efforts of Virginia to put a stop to the importation 
 of slaves. 
 
 In 1699 the General Assembly commenced the 
 series of prohibitory acts (as many as twenty-three in 
 all), by which it sought to arrest or discourage the 
 further introduction of slaves, the last being in 1772, 
 which was accompanied by an earnest petition to 
 the tlirone to " remove all restraints which inhibited his 
 majesty's governors assenting to such laws as might 
 check so very pernicious a commerce as that of slavery." 
 (1 Tuck. Bl. App'x 51, note.) This reasonable peti- 
 tion, like its predecessors, was disregarded; and it 
 serves to shew the depth of the general sentiment 
 upon the subject, that the preamble of the Constitu- 
 tion of 1776 (which has also been the preamble of 
 every succeeding Constitution, as it is of the present 
 one) complains of it as one of the acts of " detesta- 
 ble and insupportable tyranny" of the King of Groat 
 Britain, that he had prompted our negroes to rise in 
 arms among us, — "those very negroes whom, by an 
 inhuman use of his negative, he had refused us per- 
 mission to exclude by law." (V. C. 1873, p. 66 ; 3 Ell. 
 Deb. 452, 454; Va. Const. 1869, Preamble.) 
 3*. Prohibition of the slave-trade, by Vii-ginia. 
 
 In October, 1778, an act was passed prohibiting 
 the importation of slaves by land or water, under the 
 penaltyQ/e'^0#^a(fefe?«}fa>fi<|fedom to the slave; thus 
 
CHAP. XIT.J MASTER AND SEEVANT. 165 
 
 giving to the world the first example of abrogating 
 this most wicked and pernicious traffic. (9 Hen. 
 Stats. 471.) 
 4'. What persons were capable of being enslaved. 
 
 No other persons than negroes and their descendants 
 'were ever slaves-in Virginia, except that, in pursu- 
 ance of several acts of Assembly, from 1676 to 1682, 
 Indian captives were for a few years reduced to a 
 like condition ; which state of things, however, ceased 
 in 1691 (or, as some say, in 1705), in consequence of 
 an act authorizing a "/ree and open trade" with all 
 Indians whatsoever. (1 Tuck. Bl. Pt. II, App'x 47; 
 2 Hen. Stats. 346, 404, 440, 491 ; 3 Hen. Stats. 69, 
 447 ; Kobin v. Hardaway, Jeff. Rep. 109 ; Pallas, &c., 
 V. Hill, &c., 2 Hen. & 'M. 149; Gregory v. Baugh, 
 4 Eand. 623, 625, &c.; S. C. 7 Leigh, 681, 684.) 
 5'. Legislation in Virginia, touching the rights of mas- 
 ters to slaves; W. C. 
 
 l'^. Legislation touching the effect of baptism of slaves. 
 It having been adjudged in England, in 5 "W. & 
 M., (A. D. 1693), that an action of trover lay to 
 recover the value of negro-slaves, " because they are 
 heathen, and, a man may have property in them" 
 (Gelly V. Cleve, 1 Lord Eaym. 147), a popular in- 
 ference arose that if negroes became Christians, the 
 right of property would cease. The Colonial As- 
 sembly of Virginia, therefore, enacted in 1705, that 
 if not Christians in their native country, nor Turks, 
 nor Moors, in amity with England, it should not 
 prevent their continuing to be slaves, that they 
 were converted to Christianity, after they were ship- 
 ped for importation. (3 Hen. Stats. 447-'8; 5 Do. 
 548.) And in a like spirit of caution, it was en- 
 acted, in 1753, that "baptism of slaves doth not 
 exempt them from bondage." (6 Hen. Stats. 357.) 
 2^. Legislation touching the effect of a slave's being 
 carried to England. 
 
 Lord Holt having held (at some time between 1688 
 and 1705), that as soon as a negro sets his foot in Eng- 
 land, he is immediately, and ipso facto, free (Smith 
 V. Brown & Cooper, 2 Salk. 666), the Virginia As- 
 sembly enacted, in 1705, that a slave having been in 
 England shall not be sufficient to discharge him 
 from slavery in Virginia, without proof of his hav- 
 ing been actually manumitted there. (3 Hen. 
 Stats. 447; 5 Do.' 548; 6 Do. 357.) 
 6'. Penal legislation in Virginia, touching slaves. 
 
 It was generally conceived in a humane spirit, bu 
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166 MASTEE AND SEEVANT. [bOOK I. 
 
 in some particulars evinced in early times a severity 
 and harshness, in remarkable contrast with the later 
 periods of the institution. 
 W. C. 
 l*'. Act of 1669, toiiching the killing of a slave by his 
 master, or overseer, whilst under correction. 
 
 It was enacted that the master or overseer should 
 be " acquit of molestation," " since it cannot be pre- 
 sumed," says the statute, "that prepensed malice 
 should induce any man io destroy his oion estate." (2 
 Hen. Stats. 270 ;' Exod. xxi. 20, '21.) 
 
 This law, after having been several times re-en- 
 acted, was, in 1788, in consequence of an instance 
 of revolting cruelty in a master, repealed, and 
 thenceforth the killing or maiming of a slave was 
 upon the same footing as if committed upon a wTiite 
 freeman. (12 Hen. Stats. 681 ; 1 Tuck. Bl. 56, 
 and note*.) 
 2*^. Act of 1705, to punish slaves notoriously and in- 
 corrigibly addicted to goiiig abroad at night, and run- 
 ning away. 
 
 They were to be " dis-membered," or otherwise 
 punished at the discretion of the county court, saving 
 life. (3 Hen. Stats. 461.) 
 
 But by act of 1769, this was said to be dispro- 
 portioned to the offence and barbarous, so that the 
 despotic discretion of the county coTirt was some- 
 what restricted. (8 Hen. Stats. 358.) 
 3K Act of 1748, empowering two justices of the peace 
 to outlaw runaway slaves, lurking in swamps, and 
 stealing hogs, &c. 
 
 Slaves thus outlaioed were liable to be destroyed 
 by any ways or means, and their value, in such case, 
 was paid out of the public treasury. (6 Hen. Stats. 
 llO-'ll; Bland papers, p. 17.) 
 
 This extravagantly inhuman statute was repealed 
 in 1792.) (1 Stats, at large, (N. S.), 125.) 
 4"^. The Statute punishing crueltij to a beast, (Y. C. 
 1873, c. 192, § 15), did not punish the cruel, wan- 
 ton, and ynalicious beating of a slave, by his master. 
 
 If neither death nor mayhem, ensued, the law in- 
 flicted no punishment, but left the offender to the 
 "deep and solemn reprobation of the tribunal of 
 public opinion." (Turner's Case, 5 Hand. 686.) 
 However, in Souther's Case, (7 Grat. 681), it was 
 held that homicide committed by excessive whip- 
 ping of a slave, such as was calculated to produce 
 
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CHAP. XIV.] MASTEE AND 8EEVANT. 167 
 
 death, was murder in the first degree, without re- 
 gard to the offender's intention. 
 7'. Manumission of Slaves by the owner ; W. C. 
 I''. State of the law previous to 1723. 
 
 Manumission was uncontrolled and unregulated, 
 save that the master was required to provide the 
 means of transportation for his manumitted slave 
 out of the country. (3 Hen. Stats. 87.) 
 2^^. State of the law from 1723 to 1782. 
 
 Manumission during this period was wholly pro- 
 hibited, except for meritorious services, to be ad- 
 judged by the governor and council. (4 Hen. 
 Stats. 132 ) 
 Z^ State of the law from 1782 to the abolition of 
 slavery in 1865. 
 
 Manumission, from 1782 to 1865, was freely per- 
 mitted, with no other qualification than that' it 
 should not be to the prejudice of the master's cred- 
 itors, nor to the detriment of the parish, by throw- 
 ing upon it one likely to become chargeable as a 
 pauper. (11 Hen. Stat. 39; Y. C. 1860, ch. 103, § 
 17 to 19.) 
 
 In order to develope the principles applicable to 
 the subject, we must observe, (1), The mode of 
 manumission ; (2), The effect of a condition an- 
 nexed to manumission; (3), The doctrine as to the 
 status of the issue of a female emancipated, to take 
 eifect at a future time; (4), The doctrine as to al- 
 lowing slaves an election to be free; (5), The doc- 
 trine as to the power of slaves to make contracts; 
 (6), The doctrine as to the mode of a slave recover- 
 ing freedom ; and (7), The doctrine as to the right of 
 a slave recovering his freedom to recover damages ; 
 W. C. 
 1\ The mode of manumission. 
 
 By last will (in writing, since 1850) or by deed 
 recorded in the clerk's office of the county or cor- 
 poration court of the county or corporation wherein 
 the master resided, as deeds of lands are required 
 to be recorded. (V. 0. 1860, ch. 103, § 16 ; Id. 
 ch. 121, § 2, 3 ; Givins & als v. Manns, 6 Munf. 
 191 ; Manns v. Givins & als, 2 Leigh, 762 ; S C. 
 7 Leigh, 689; Thrift v. Hannah, 2 Leigh, 300; 
 Lewis V. Fullerton, 1 Rand. 15.) 
 ■2^ Effect of condition annexed to manumission, &c. 
 A condition precedent was valid, and must have 
 been complied with; a condition subsequent was 
 void. (Hepburn v. Dundas, 13 Grat. 222; For- 
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168 ilASTEE AND SEEYANT. [bOOK I. 
 
 ward's Adm'r v. Thamer, 9 Grat. 539; Osborne 
 & als V. Taylor's Adm'r & als, 12 Grat. 128.) 
 
 3^ Doctrine where female slave was emancipated, to 
 take effect at a future time, as. to the status of the 
 issue born prior to that period. 
 
 The courts held the issue to be slaves for life, 
 but by statute it was enacted that they should be 
 free at the same period with the mother. (Maria v. 
 Surbaugh, 2 Eand. 229; Taylor v. Cullins, 12 
 Grat. 394; Y. C. 1860, eh. 103, § 17.) 
 
 4^. Doctrine as to the effect of allowing to slaves an 
 election to be free or not. 
 
 No doubt seems to have been entertained until 
 1858 of the validity of such a provision (e. g., con- 
 taiued in a will) ; and that it was competent for 
 slaves to make such election to be free, or other- 
 wise. (Pleasants x. Pleasants, 2 Call. 319 ; Elder 
 V. Elder's Ex'or, 4 Leigh, 252; Dawson v. Daw- 
 son's Ex'or, 10 Leigh, 602.) 
 
 But in 1858 it was held, in two cases (contrary, it 
 is believed, to the general sentiment of the profes- 
 sion), that slaves had no legal capacity to choose, even 
 to be free, and therefore that allowing them such 
 choice was merely vain and inoperative, neither 
 emancipating them nor putting it in their power 
 to be emancipated. (Bailey & als v. Poindexter's 
 Ex'ors, 14 Grat. 132 ; Williamson & als v. Coalter's 
 Ex'ors, & als. Id. 394.) 
 
 5\ Doctrine as to the power of slaves to make contracts. 
 It is agreed that they have no such power. 
 Hence, the marriages of slaves are void. So also 
 are their contracts with the master to buy them- 
 selves, although part, or even the whole, of the 
 purchase money has been paid. But a contract 
 by the master with a third person to liberate the 
 slave upon a contingency would probably be valid, 
 and would be enforced in equity at suit of such 
 third person. (Sawney v. Carter, 6 Hand. 173; 
 Stevenson v. Singleton, 1 Leigh, 172 ; Bailey & als 
 V. Poindexter's Ex'ors, 14 Grat. 193 ; Shue v. Turk, 
 ■15 Grat. 266, 267-'8.) 
 
 6K Doctrine as to the mode whereby one held as a 
 slave might recover his freedom. 
 
 He might sue in forma pauperis, in the manner 
 prescribed by the Statute, (V. C. 1860, ch. 106, § 1 
 to 7), and not otherwise, but where there were im- 
 pediments to a fair trial at law, resort might be 
 had,^ .in other cases, ta -Equity. And so slaves 
 
CHAP. XIV.] MA8TEE AND BEET ANT. 169 
 
 emancipated by will, might propound it for probat. 
 (Isaac V. Johnson, 5 Munf. 95; Lemon v. Rey- 
 nolds Adm'r, &c. Id. 532; Dempsey v. Lawrence, 
 Gilm. 333 ; Talbert &c. v. Jenny &c., 6 Eand. 162 ; 
 Dunn V. Amey & als, 1 Leigh 466; Anderson's 
 Ex'ors V. Anderson, 11 Leigh 616 ; Jincey & als 
 V. Wingfield's Adm'r & als, 9 Grat. 708 ; Eeid's 
 Adm'r v. Blackstone & als, 14 Grat. 365-'6 ; Eed- 
 ford's Adm'r v. Peggy, 6 Eand. 316; Manns v. 
 Givens, 7 Leigh 689 ; Phcebe v. Boggess, 1 Grat. 
 129; Ben Mercer ife als v. Kelso's Adm'r & als, 
 4 Grat. 106 ; 2 Lom. Ex'ors, 337.) 
 
 The statutory mode of proceeding was exclusively 
 applicable, as above stated, where the person held 
 as a slave prosecuted his suit for freedom, against 
 him who claimed to be his master; but if a colored 
 person were deprived of his liberty by one not claim- 
 ing him as master, he might resort to the same 
 remedies as a white man, e. g. to the writ of habeas 
 corpus. (De Lacy v. Antoine & als, 7 Leigh, 443 ; 
 Euddle's Ex'or v. Ben, 10 Leigh, 467; Shue v. 
 Turk, 15 Grat. 256, 260.) 
 
 7^. Doctrine as to the right of a negro recovering his 
 freedom, to recover damages. 
 
 He can recover no damages, independently of 
 statute, not by contract, for none can be implied in 
 such case, nor as of natural right, because taking 
 one case with another, the expense of rearing, and 
 of supporting in sickness and age, is not more than 
 compensated by the service, nor would it be pos- 
 sible to take the account on any basis of principle. 
 But by Statute, the jury were permitted to allow 
 damages pending the suit. (Alfred v. Fitzjames, 
 3 Esp. 3; Skyring v. Greenwood, 4 B. & Cr (10 
 E. C. L.) 281 ; Pleasants v. Pleasants, 2 Call, 319 ; 
 Paup's Adm'r v. Mingo, 4 Leigh, 176 ; Peter v. 
 Hargrave, 5 Grat. 12; Y. C. 1860, ch. 106, § 7; 
 Osborne v. Taylor's Adm'r & als, 12 Grat. 117.) 
 8'. Doctrine as to the liability of the hirer of a slave; 
 
 W. C. 
 1"^. For safe return of slave ; W. C. 
 
 1^. Where there was a contract for a certain, measure 
 of Kability. 
 
 The liability was of com-se regulated by the con- 
 tract, but in general, a contract to return at the end 
 of the year was construed to mean only to use due 
 diligence to that end, so that, if the failure to return 
 was occasioned by no default of the hirer, as by 
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170 MASTER AND SERVANT. [bOOE I. 
 
 reason of the slave's death, or his absconding, the 
 hirer was excused. (Harris v. Nicholas, 5 Munf . 
 483.) 
 2^ "Where there was no contract. 
 
 The liability of the hirer of a slave, in the ab- 
 sence of any special contract, was the same as that 
 of the bailee of any other chattel. The bailment 
 being for the mutual benefit of both bailor and bailee, 
 the latter was bound to take ordinary care, and if 
 he perverted the slave from the purpose for which 
 he was prof essedl^ hired, he was liable for all the 
 consequences arising from the perversion. (Spencer 
 V. Pilcher, 8 Leigh, 566 ; Harvey v. Epes, 12 Grat. 
 153; Harvey V. Skipwith, 16 Grat. 393.) 
 
 It may be added, also, that the hirer of a slave 
 
 was not at liberty to employ him as the owner 
 
 might, in any way whatever ; and if he put him 
 
 upon a dangerous service, he was answerable for the 
 
 consequences, although he might appear to have 
 
 been guilty of no immediate negligence. (Spencer 
 
 V. Pilcher, 8 Leigh, 566 ; Harvey v. Epes, 12 
 
 Grat. 172 &c.; Eandolph v. Hill, 7 Leigh, 383.) 
 
 2^. Doctrine touching the Apportionment of Sls.ye hires. 
 
 When the slave was sick during the year, or ran 
 
 away, there was no apportionment, but the whole 
 
 hire was payable ; but if he died during the year, 
 
 the hire was apportioned according to the time of 
 
 the death. (George v. Elliott. 2 Hen. & M. 6 ; 1 
 
 Fonbl. Eq. 376-'7, and notes.) 
 
 If the owner had only a life-estate, which ended 
 during the year, by his death, no hire was payable 
 at common law to his representatives for the time 
 previous to his death, unless the death occurred on 
 the day when the hire was due For that time the 
 hire was lost wholly, on the maxim that, in respect 
 of time, annua nee debitum, judex non separnt. This 
 principle, however, is in Yirginia abolished by 
 statute, in pursuance of which the hire was in such 
 case apportioned. (V. C. 1873, c. 136, § 1.) 
 3*. Doctrine as to Liability for Medical Bills, in case 
 of slaves hired. 
 
 The oioner, and not the temporary hirer, was 
 ultimately liable, although the doctor might assert 
 his demand against the person who employed him. 
 (Easley v. Craddock, 4 Kand. 425 ; IsbeU's Adm'r 
 V. ISTorvell's Ex'or, 4 Grat. 176.) 
 9'. What persons were slaves in Yirginia at the date of 
 the ahc^f^^ij^yif^fosoft® 
 
CHAP. XIV.] MASTER AND SEETANT. 171 
 
 Those who were such on the Ist of July, 1850 ; 
 such free negroes as became slaves pursuant to law; 
 such slaves as might be lawfully brought into the 
 State ; and the descendants oi female slaves. ( Y. C. 
 1873, c. 103, § 1, 2, 3 to 8.) 
 10'. Propositions, from time to time, for General Eman- 
 cipation. 
 
 Mr. Jefferson's plan (1779), Judge St. George 
 Tucker's (1803), and that proposed in the General 
 Assembly in 1831-2, were all founded on the'prin- 
 ciple of emancipating only those born after a specified 
 time, especially females so born, and of removing the 
 free colored population beyond the limits of the 
 United States. (Jeff. Notes on Ya. 143; 1 Tuck. 
 Bl. Ft. II, App'x 76 & seq. ; Id. 81, n *; 4 Jeff. 
 Mem. 388 & seq.) 
 
 The difficulties attending any scheme of general 
 emancipation, were in the highest degree formidable. 
 They may be summed up thus, viz: difficulties con- 
 nected with the value of the properti/ concerned, which 
 was at least one-third of the entire property of the 
 Commonwealth ; difficulties arising out of the aggres- 
 sive fanaticism of other sections, which would have 
 been encouraged, by any step in that direction, to 
 increased exertions to disturb the peace, and jeopard 
 the safety of our people ; and especially difficulties 
 connected with the apprehended disastrous results of 
 emancipation upon the colored population themselves, 
 and through them upon society at large, the succes- 
 sive censuses, particularly from 1840 to 1860, show- 
 ing a great physical and moral deterioration on the 
 part of the free-hlacks, whether as compared with the 
 slaves, or with whites. (Dew on Slavery, 40 & seq.) 
 
 The colony of Liberia was founded by the wise 
 forecast of Yirginia statesmen chiefly, as the best 
 medium of ameliorating the condition of things 
 growing out of slavery, and with the hope that it 
 would at the same time diffuse the light of Chris- 
 tian civilization through the dark places of Africa. 
 11'. Alarms of servile insurrection in Yirginia. 
 
 Alarms of servile insurrection were rare, confined 
 always within very narrow local limits, and never 
 endured longer than the time required to assem- 
 ble the neighboring male population. Only two in- 
 cidents of the kind are of sufficient importance to 
 have found a place even in local history ; namely 
 Gabriel's attempt near Richmond, in 1800, which 
 was wliollv.futile: and Nat Turner's, in the county 
 
172 MA8TEE AND SEBVANT. [bOOK I. 
 
 of Southampton, in 1831, which was accompanied by 
 the murder of fifty-five persons, chiefiy women and 
 children. These occurrences excited, temporarily, 
 great terror, but in general the intercourse between 
 the races was kindly, and free from suspicion, the 
 rural population dwelling in undisturbed confidence, 
 frequently in the midst of a colored population 
 numerically greatly superior. And during the late 
 war, the conduct of the colored people was in the 
 highest degree praise-worthy, as indeed in the main 
 it has been since. (2 Howis. Ya. 391, 439; Dew 
 on Slavery, 99.) 
 12'. The Abolition of Slavery in Virginia. 
 
 The Constitution of 1864, framed during the war 
 by delegates from a very small portion of the in- 
 habitants of a very few counties, which by its terms 
 took cfiect from the date of its adoption, (7th April, 
 1864,) provided that slavery and involuntary servi- 
 tude (except for crime,) should be abolished and pro- 
 hibited in the State for ever. (Art. IV, § 19.) 
 Some months after the conclusion of the war, viz.: 
 on the 19th June, 1865, a General Assembly, repre- 
 senting all the counties of Virginia, convened by the 
 proclamation of the governor chosen in pursuance 
 of that Constitution, assembled at Richmond, and 
 tacitly recognizing the governor as chief magistrate, 
 and that Constitution as the fundamental law, pro- 
 ceeded to legislate under it. On the 18th Decem- 
 ber, 1865, the Secretary of State of the United 
 States officially announced that Art. XIII of the 
 Amendments to the Constitution, had been ratified 
 by three-fourths of the States, thereby making it a 
 part of the Constitution ; whereby it was ordained 
 that neither slavery nor involuntary servitude, ex- 
 cept as a punishment for crime, whereof the party 
 shall have been duly convicted, shall exist within 
 the United States, or any place subject to their juris- 
 diction. "Whether slavery, therefore, was abolished 
 in Virginia, 7th April, 1864, or when Governor 
 Peirpoint assumed, de facto, the administration of 
 affairs; or on the 19th June, 1865, when the Legis- 
 lature assembled, and tacitly recognized the Con- 
 stitution of 1864; or on the 18th December, 1865, 
 when the XIII Amendment was ratified, may be a 
 matter of some question. It is assumed as incon- 
 trovertible, that President Lincoln's proclamation 
 abolishing slavery in the States then in rebellion, 
 on the ^%^z%^ifW&S3M§§> ^^^ operative only 
 
CHAP. XIV.] MASTER AND SEEYANT. 173 
 
 in that portion of the country which the armies of 
 the United States had securely occupied, after the 
 proclamation by its terms took effect; and that the 
 abolition of slavery is to be referred either to the ac- 
 tion of the State itself, or to the adoption of the 
 XIII Amendment. (McMath v. Johnson, 41 Miss. 
 (Eeynolds) Eep. 459-'60; Vicksburg & M. E. E. 
 Co. V. Green, 42 Id. 436; Henderlite v. Thnrman, 
 22 Grat. 466; Eives v. Farish, 24 Grat. 130, ;.84.)' 
 
 13*. Measure of recovery in controversies touching the 
 detention or conversion of slaves, detained or con- 
 verted, prior to the Abolition of Slavery. 
 
 When the possession was in defendant, under a 
 bona fide claim of right, at the time of the emancipa- 
 tion of the slaves in this Commonwealth, by the 
 Federal or State authorities, the values or damages 
 assessed, should the plaintiff recover, shall be only 
 the value of the services of such slaves from the time 
 of the tortious conversion or detention, to the period of 
 their emancipation. (Acts 1866-'7, p. 810, c. 42.) 
 Qucere of the validity of this statute ; the right of the 
 plaintiff to recover being a vested right ! 
 
 14*. Doctrine as to the validity and effect of bond given 
 for the purchase-money or hires of slavess, bought or 
 hired previous to the period of emancipation. 
 
 It would seem that there could be no reasonable 
 doubt of the validity of such bonds, notwithstanding 
 the subsequent emancipation, and it has been so de- 
 cided in North Carolina, and in other States. (Har- 
 rell, Adm'r, v. Watson, &c., 63 N. C. Eep. (Phillips), 
 454; Phillips v. Evans, &c., 38 Mo. Eep. (7 Whit- 
 tlesey), 305 ; Wainwright's Adm'r v. Bridges & als, 
 19 La. An. Eep. 224; Austin v. Sandel, Id. 309; 
 Bradford v. Jenkins, 41 Miss. Eep. (Eeynolds), 328; 
 Blewett V. Evans, 42 Id. 804. See Medrazo v. 
 Willes, 3 B. & Aid. 353 ; Mittelholzer v. FuUarton, 
 6 Hd. & Bl. N. S. (51 E. C. L.) 989.) 
 
 Thus it is held in Alabama, that an action lies on a 
 promissory note given for slaves, after the date of the 
 President's emancipation proclamation, and the end of 
 the rebellion.' (McElwain v.Mudd,44 Ala. 48.) And 
 it is also held in the same State, that a warranty of 
 title to slaves is not broken by the abolition of 
 slavery. (Fitzpatrick v. Hearne, 44 Ala. 171.) So 
 a bond given for the price of a slave sold in Ken- 
 tucky in 1833, is recoverable in Illinois, notwith- 
 standing the abolition of slavery there, the contract 
 being vi)f^ygyn#]j^t)H?^A5b§#(it; was made. (Eound- 
 
174 MASTER AND SBEVANT. [bOOK I. 
 
 tree v. Baker, 52 111. 241 ; Officer v. Sims, 2 Hick. 
 501.) 
 
 The question is now set at rest by the judgment 
 of the Supreme Court of the United States in White 
 V. Hart, 13 Wal. 646 ; and Osborne v. Nicholson & 
 al, Id. 654. In the first-named case, it was held, in 
 respect to a promissory note for $1,230, the purchase- 
 money for a slave, made February 9, 1859, and pay- 
 able March 1, 1860, that a provision in the Consti- 
 tution of Georgia of J-868, declaring that "no court 
 or officer shall have, nor shall the General Assembly 
 give jurisdiction to try or give judgment, or enforce 
 any debt, the consideration of which was a slave, or 
 the hire thereof," was. void, as impairing the obligation 
 of contracts, and that this note was recoverable. (See 
 13 Wal. 653-'4.) Boyce v. Tabb, 18 Wal. 548, re- 
 cognizes and re-affirms the doctrine laid down in 
 White V. Hart, and Osborne v. Nicholson, supra. 
 And in Yirginia it is well settled that such bonds 
 and notes are valid. (Henderlite v. Thurman, 22 
 Grat. 466; Hives v. Farish, 24 Grat. 128.) 
 4'^. Slavery, in its relation to the Federal government. 
 The words "slave" and "slavery" nowhere occur 
 in the Constitution of the United States (until on the 
 18th December, 1865, by amendment XIII, the insti- 
 tution was abolished) ; but the things represented by 
 these words are distinctly alluded to in three passages 
 of the original Constitution ; 
 W. C. 
 1*. The clause of the Constitution directing the appor- 
 tionment amongst the States of representatives and 
 direct taxes. 
 
 They were to be apportioned amongst the States 
 according to population; to be determined by adding 
 to the whole number of free persons (including those 
 bound to service for a term of years, and excluding 
 Indians not taxed), three-fifths of all other persons. 
 (Art. I, § ii, 3.) 
 
 This arrangement, by blending the benefit and 
 the burden, happily adjusted one of the most embar- 
 rassing of the many hard problems occurring in the 
 erection of our federal structure. (2 Mad. Pap. 731, 
 1052 to 1056, 1066 to 1087, 1090 to 1094, 1227, 
 1233; 3 do. 1261, 1544.) 
 2^ The clause of the Constitution denying to Congress 
 the power to prohibit prior to 1808 the importation 
 of such persons as any of the States "now existing" 
 shall th.iuBigiit^0 by Motiisoft^Tt. I, § ix, 1.) 
 
CHAP. XIV .J MASTER AND SERVANT. 176 
 
 The first draft of the Constitution denied such 
 power to Congress altogether, even forbidding a tax 
 on persons thus imported ; but on the 22d August, 
 1787 (less than a month before the final adjoua-n- 
 ment of the bodj'), Luther Martin, of Maryland, 
 moved that Congress have power to tax or prohibit 
 the importation of slaves — a proposition very warmly 
 sustained by Messrs. Madison, Mason, and Randolph, 
 of Virginia, and vehemently opposed by the dele- 
 gates from South Carolina and Georgia, who adroitly 
 suggested that it was the interest of ISTew England 
 also to oppose it, as they would be the carriers of the 
 commodities produced by slave labor, besides being 
 profitably concerned in importing the slaves. This 
 brought over the New England States in a body, 
 and they, together with Maryland, North Carolina, 
 South Carolina, and Georgia, succeeded in postpon- 
 ing the power of Congress to inhibit the slave trade, 
 in respect to the existing States, until 1808, against 
 the protest of Virginia, Delaware, Pennsylvania, 
 and New Jersey. (3 Mad. Pap. 1388 to 1392, 1427; 
 2 Rives' Madison, 445 & seq. ; 6 Ell. Deb. 457, &c., 
 471, 477-'8.) 
 
 The power committed to Congress was promptly 
 exercised, by statutes making it piracy, and at length 
 a capital felony, for any American citizen, or any one 
 whomsoever, being of the crew of an American ves- 
 sel, to be concerned in the African slave trade. (1 
 Bright. Dig. 840, 842; Rev. Stats. U. S. p. 1047, § 
 6375 ; 1 Rob. Pr. (2d Ed.), 15 & seq. ; Synops. Crim. 
 Law, 21-'2.) 
 3\ The clause of the Constitution providing for the 
 delivery up of fugitives from service or labor. 
 
 No person held to service or labor in one State 
 under the laws thereof, escaping into another, shall, 
 in consequence of any law or regulation therein, be 
 discharged from such service or labor, but shall be 
 delivered up on claim of the party to whom such ser- 
 vice or labor may be due. (Art. IV, § iii, 3.) 
 
 This provision was not proposed in Convention 
 until 28th August, 1787, and was then adopted Tiem. 
 can. (3 Mad. Pap. 1447, 1656.) 
 
 The first act of Congress to give eflFect to it was 
 that of Eebruary, 1793. (1 Bright. Dig. 294.) It 
 failed of efliciency because it committed its adminis- 
 tration to State officials, who, in some of the States, 
 were finally prohibited by the State laws from acting. 
 Indeed^-^jjg^^^^^^ngst the first to declare 
 
176 MA8TEE AJVD SERVANT. [bOOK I. 
 
 that it was not competent to Congress to devolve the 
 execution of Federal laws upon State officers. (Fee- 
 ly's Case, 1 Va. Cas. 321 ; Jackson v. Rose, 2 Va. 
 Cas. 34; Poole's Case, Id. 276.) Several of the 
 States, however, proceeded to oppose positive obstruc- 
 tions to reclamations by masters of their fugitive 
 slaves, which were emphatically condemned as un- 
 • constitutional by the Supreme Court of the United 
 States, in Prigg v. Penn'a, 16 Pet. 539. See also 
 Wright V. Deacon, 5 Serg. & R. 63 ; Com'th v. Grif- 
 fith, 2 Pick. 19 ; JackV. Martin, 12 Wend. 316 ; S. C. 
 14 Wend. 507; 1 Rob. Pr. (2d edit.) 32, & seq. 
 
 The last and more effective statute was that of 
 September, 1850, whereby the duty of aiding in the 
 recovery of fugitive slaves was devolved exclusively 
 on Federal functionaries. (1 Bright. Dig. 295 ;. Prigg 
 V. Penn'a, 16 Pet. 539 ; Jones v. Yan Zandt, 5 How. 
 229; Moore v. Illinois, 14 How. 18.) 
 3^. Slavery in its relations to the world. 
 
 The discussion of slavery in its relations to the world 
 will oblige us to advert to — (1), The African slave- 
 trade; (2), The eifect of a slave's going to another 
 country where slavery does not exist, supposing him to 
 return ; (3), Liability for seizing or harboring a slave, 
 or for his price, where slavery is lawful, the action be- 
 ing brought where slavery is unlawful; (4), Liability 
 of a master to pay wages to a slave who continues to 
 serve him without a contract, in a country where slavery 
 is not lawful; and (5), The effect of a contract to ren- 
 der perpetual service ; 
 W. C. 
 l^". The African slave-trade ; W. C. 
 1\ The origin of the African slave-trade. 
 
 The Spaniards and Portuguese, in the course of 
 their African discoveries, were the first to institute 
 it, and they made great profit thereby. The Eng- 
 lish followed the example. Sir John Hawkins made 
 several voyages, commencing in 1562, for the pur- 
 pose of seizing negi'oes in Africa, and selling them 
 in the West Indies; and in 1585 a company for car- 
 rying on the traffic was incorporated by letters pa- 
 tent of Queen Elizabeth. Thenceforward great en- 
 couragement was given to it by royal charters, trea- 
 ties, and acts of parliament. It was not until 1806 
 (Stat. 46 Geo. Ill,) that Great Britain declared it 
 unlawful (almost thirty years after Virginia had set 
 the example), and even to this day the English and 
 America]£)i@/fee«c/%vM/beasoi8®iged to allow, atro- 
 
■CHAP. XIV.] MASTER AND SERVANT. 177 
 
 ciously wicked as the traffic is, that although con- 
 trary to the law of nature, the slave-trade is not con- 
 trary to the laiu of nations. (Madrazo v. Willes, 3 
 B. & Aid. 353; The St. Louis, 2 Dods. E. 210; The 
 Antelope, 10 Wheat. 115; 1 Rob. Pr. (2d edit.) 15, 
 16, 19. 20.) 
 2\ The present status of the African slave-trade. 
 
 By the United States it is made, as has been seen, 
 a capital felony in persons subject to theii' jurisdiction ; 
 by Great Britain it is made a felony ; and it has been 
 declared unlawful by most, if not all, of the civilized 
 governments of the world. (1 Rob. Pr. (2d edit.) 
 20.) 
 
 By means of the English colony of Sierra Leone, 
 and the American colony (now an independent gov- 
 ernment) of Liberia, aided by the presence and ^^gi- 
 lance of British and American squadrons on the 
 coast, in pursuance of the treaty of "Washington of 
 1842, the traffic has been for some years effectually 
 suppressed on the western coast, fi'om the mouth of 
 the Senegal, near the southern border of the great 
 desert, quite to the equator, a distance of twenty- 
 five hundred miles, and greatly circumscribed in ex- 
 tent and virulence on the whole of that coast. Li- 
 deed, it is now confined practically to the eastern 
 coast, where, in the Portuguese settlements at Zanzi- 
 bar, and near the mouth of the Zambezi, it stUl pre- 
 vails, with the accustomed concomitants of diabolical 
 wickedness and cruelty. (Wilson's W. Africa, 242, 
 306, 332, 349, 435; Foote's Afr. & Am. Flag, 357, 
 384; Livingst. Zambezi, 6 to 8, 475, 481, &c., 620, 
 &c.) 
 2^^- Effect of a slave's going to another country where 
 slavery does not exist, supposing him to return ; W. C. 
 1'. Where the slave is carried thither by his master, or 
 goes with his master's consent; W. C. 
 I''. Effect where the slave goes, or is carried (by his 
 master's consent), to reside. 
 
 The slave's stotiis as a freeman is thereby estab- 
 lished permanently, and is not changed by a subse- 
 quent return to a slave domicil, (Griffith v. Fanny, 
 Glim. 143 ; Hunter v. Fulcher, 1 Leigh, 181 ; 
 Betty, &c., V. BLorton, 5 Leigh, 615 ; Davis v. 
 Tingle, 8 B. Monr. 545 ; Mercer v. Gilman, 11 B. 
 Monr. 211.) 
 2*^. Effect where the slave is carried by his master 
 into the non-slaveholding country, with the purpose 
 and inteni of therebv emancipating him. 
 ^itized by Microsoft® 
 
178 MASTER AND SERVANT. [bOOK I. 
 
 The slave's status as a freeman is thereby estab- 
 lished, and his subsequent return to a slave domicil 
 does not change it. (Foster's adm'r v. Fosters, 10 
 Grat. 492.) 
 3"^. Effect where the slave is carried thither, or goes, 
 by his master's consent, for the purpose of temporary 
 sojourn. 
 
 As the law of the non-slaveholding country re- 
 cognizes no authority in the master, it will of 
 course. allow none to be enforced, and the slave, by 
 writ of habeas corpus, may be released from any re- 
 straint on ihe part of the master. (Somersett's 
 case, 20 How. St. Tri. 1; S. C. Lofft's K. 1, 17; 
 Smith V. Brown & Cooper, 2 Salk. 666.) 
 
 But the common laio does not cancel or annul the 
 relation of slavery. It simply does not_ acknow- 
 ledge it. Hence, if the slave be afterwards found 
 within the slave domicil, the master's rights having 
 never been impaired, may be there enforced. This 
 doctrine is acknowledged by Lord Stowell, (Slave 
 Grace, 2 Hagg. Adm. R. 94) ; by the Supreme Court 
 oi Massachusetts, (Commonwealth v. Aves, 18 Pick. 
 218) ; by the Supreme Court of Kentucky, (Graham 
 V. Strader, 5 B. Monr. 176 ; Collins v. America, 9 
 B. Monr. 585 ; Mercer v. Gilman, 11 B. Monr. 210; 
 Maria v. Kirby, 12 B. Monr. 542); by the Su- 
 preme Court of Maryland, (Joice's case, 4 Har. & 
 McH. 295, &c.); by the Supreme Court of Vir- 
 ginia, (Lewis V. FuUerton, 1 Rand. 21); and by 
 most of the judges of the Supreme Court of the 
 United States, (Dred Scott v. Sandford, 19 How. 452, 
 459, 466-'7 483, 485-'6, 494, 499, 550, 558, 591) ; 
 Stor. Conil. Laws, § 96.) 
 
 If the law of the non-slaveholding country ex- 
 pressly dissolves the relation of master and slave, 
 and declares the slave to be free, or where, by compe- 
 tent proceedings whilst in the country, the slave is 
 adjvidged to be free, a different conclusion might 
 perhaps be admitted. Thus where Louisiana 
 slaves were carried to France, (whose law expressly 
 declares all slaves on French soil to-be free), and 
 afterwards retm-ned to Louisiana, they were ad- 
 judged to be free there. (Maria Louise v. Maret, 9 
 Louisiana R. 473 ; Smith v. Smith, 13 Louis. 441 ; 
 Thomas v. Genevieve, 16 Louis. 483. See also 
 Betty, &c., V. Horton, 5 Leigh, 623.) 
 2'. Effect where the slave escapes into the non-slave- 
 homn^j^-^^fjyjijl^^gi^ff^sier's consent. 
 
CHAP. XIV.] MASTER AND SERVANT. 179 
 
 Slavery being the result of positive local law, it 
 can exist ouly where it is by law established ; and 
 if a slave escapes or is carried beyond the slave ter- 
 ritory, if his master can reclaim him, it is only by 
 virtue of some express stipulation, or as a matter of 
 international comity. (Grot, de Jure, &c., L. II, c. 
 Xy. 5, 1 ; Id. LX. c. X, 2, 1 ; The Antelope, 10 
 Wheat. 120 ; Commonwealth v. Aves, 18 Pick. 218 ; 
 Forbes v. Cochrane, 2 B, & Cr. (9 E. C. L.) 440; 
 Prigg V. Pennsylvania, 16 Pet. 594.) 
 d^. Liability for seizing or harboring a slave, or for his 
 price where slavery is lawful, the action being brought 
 where slavery is unlawful. 
 
 The action is maintainable for the injury, or the 
 price, if the injm-y, or the sale took place in a country 
 where slavery is allowed by law. (Smith v. Brown, 
 &c., 2 Salk. 666 ; Madrazo v. Willes, 3 B. & Aid. 
 353.) But see Forbes v. Cochrane, 2 B. & Cr. (9 E. 
 C. L.) 448 ; Mittelholzer v. Fullerton, 6 Ad. & El., 
 (N". S.) (51 E. C. L.) 989; ante p. 174.) 
 4''. Liability of a master to pay wages to a slave, who 
 continues to serve him, without a contract, in a country 
 where slavery is not lawful. 
 
 No wages are recoverable, there being no actual 
 contract, and no ground on which to imply one. 
 (Alfred v. Fitz James, 3 Esp. 3 ; ante p. 169, 7^) 
 6^- Effect of contract to render perpetual service. 
 
 The law does not prohibit such a contract, which 
 creates a status very distinguishable from slavery. It 
 is, indeed, in principle, -no more than making for life 
 such a contract as every apprentice makes ybr a term 
 of years. But such a contract, for its improvidence, 
 cannot but suggest a suspicion of fraud, or oppression, 
 which it would be requisite to remove by showing it 
 to be fair. It is said it must be by deed, although it 
 is not perceived why; and at all events no adequate 
 remedy exists practically to enforce such an engage- 
 ment. There is no means to compel its observance 
 specifically, (as there is in case of an apprentice, and 
 formerly was in case of an indented servant,) and the 
 damages given by a jury for its breach would pro- 
 bably be merely nominal. (1 Bl. Com. 424-'5 ; 
 Waliis V. Day, 2 Mees. & W. 281; 15 Yin. Abr. 
 Master, &c., (N), 5.) 
 4s. Who shall be deemed a negro or colored person in Vir- 
 ginia. 
 
 Every person having one-fourth or mare of negro- 
 
 Digitized by Microsoft® 
 
180 MASTER AND SERVANT. [bOOK I. 
 
 blood, shall be deemed a colored person. (Y. C. 1873, 
 c. 103, § 2.) 
 2*. Menial Servants; W. 0. 
 1^. Why they are so called. 
 
 Because they are domestics, employed intra mcenia. 
 (1 Bl. Com. 425.) 
 2s. What servants are Menials. 
 
 A head-gardener is a menial servant, notwithstand- 
 ing he is lodged in an out-house, so a fortiori ,\^ a 
 groom; but not a governess, nor a clerk. (ISTowlan v. 
 Ablett, 2 Cr. Mees. & Ros. 54 ; Todd v. Kerrich, 8 -Exch. 
 151; Berston v. Collyer, 4 Bingh. (13 E. C. L.) 309.) 
 3*. Apprentices. 
 
 The doctrine touching apprentices may be presented 
 under the following heads : (1), Who are apprentices ; 
 (2), The mode of binding apprentices; (3), The obliga- 
 tion of master, apprentice, and parent or guardian, re- 
 spectively ; (4). The authority of a master over an ap- 
 prentice; (5), The assignment by a master of the inden- 
 tures of apprenticeship ; (6), The adjustment of contro- 
 versies between master and apprentice ; (7), The punish- 
 ment for harboring an apprentice, and for his desertion ; 
 and, (8), The dissolution of the contract of apprenticeship. 
 W. C. 
 1^. Who are Apprentices. 
 
 Servants (so called from apprendre, to learn,) who 
 are bound for a term of years to serve their masters, 
 by whom they are to be maintained and instructed. 
 Every contract for teaching or learning a trade is 
 prima facie, an apprenticeship, and so it is an appren- 
 ticeship where the su.bstantial object is to learn, and not 
 merely to serve. (1 Bl. Com. 426 ; E,ex v. Closeworth, 
 6 Ad. & El. (33 E. C. L.) 236 ; Eex v. Combe, 8 B. & 
 Cr. (15 E. C. L.), 82 ; Rex v. Edingale, 10 B. & Cr. 
 (21 E. C. L.) 739.) 
 2s. The mode of binding Apprentices. 
 
 Let us note (1),- The instrument of the contract; (2), 
 The proper parties to the contract ; and, (3), The 
 terms of the contract of apprenticeship. 
 W. C 
 l'^. The instrument of the contract. 
 
 It must always be in writing, and according to the 
 better opinion, must at common law be by deed, 
 although, if the deed be lost, its contents, as in all 
 other cases, may be proved. It is the only executory 
 contract which the common law did not permit to be 
 % parol, bills of exchange being no exception to this 
 propositi0jgi;if2eahfej' Mie^scfft® not originally known 
 
CHAP, XIT.] MASTER AND SEKVANt" 181 
 
 to the common law, but were adopted into it, from 
 the custom and usage of mercliants. (Castor & 
 Aides' case, 1 Salk. 68 ; Bac. Abr. Master, &c., (A), 
 1 ; 1 Pars. Con's, 533.) 
 
 In Virginia, however, it seems that it may be in 
 writing only, without seal. (Y. C. 1873, c. 122, § 5, 7.) 
 2*". The proper parties to the contract of Apprentice- 
 ship; W. C. 
 1'. Doctrine at common law as to the proper parties. 
 It seems not inadmissible that an adult should 
 bind himself apprentice, but generally the person 
 bound is an infant, and in Yirginia, the Statute (Y. 
 C. c. 122, § 1, & seq.,) contemplates none others as 
 such. Whether the person bound be infant or adult, 
 he himself is, at common law, an indispensable party 
 to the engagement, and his consent is usually signi- 
 fied by his signing the contract {indenture as it is 
 called.*) The father has no right to bind the child 
 without his consent, and indentures executed by the 
 father, without the child's concurrence, are not only 
 voidable, but void. So the party contracting to 
 teach, must be capable to contract, and, therefore, 
 a married woman cannot be such party. (Bac. Abr. 
 Master, &c., (A), 1 ; Id. (B), 1 ; Eex v. Closeworth, 
 6 Ad. & El. (33 E. C. L.) 236; Pierce v. Massenburg, 
 4 Leigh, 493 ; King v. Armesby, ? B. & Aid. (5 E. 
 C. L.) 584 ; Kex v. Guilford, 2 Chit. 284.) 
 
 On the other hand, it seems regarded as necessary, 
 (as it is certainly usual,) that some friend, father, 
 giiardian, &c., should be bound along with the infant 
 for the faithful observance of the indentures by him. 
 (Bac. Abr. Master, &c. (A), 1; Id. (B), 1.) 
 2\ Doctrine by Statute in Yirginia, as to proper parties ; 
 W. C. 
 1*^- Doctrine by Statute in Yirginia as to proper 
 parties, generally. 
 
 The statute contemplates that the person bound 
 shall be a minor ; that the binding may be by the 
 father or guardian, or if there be neither, by the 
 mother; that it shall be by consent in writing, of 
 the minor himself, if of the age of fourteen, and if 
 under that age, by consent entered of record, of the 
 court of the county or corporation in which he resides ; 
 and that it shall be in loriting, and filed within six 
 
 * Note. — A indenture is a writing under seal, inter partes, wherein the parties 
 mutually stipulate, in contradistinction to a deed poll, in which only one party 
 stipulates, or promises. (^^^m^fWicrOSOft® 
 
182 MA8TEE AND SERVANT. [b.OOK I. 
 
 months from tlie date, in the clerk's office of the 
 court of the county or corporation where it was exe- 
 cuted. (Y. C. 1873, ch. 122, § 1, 5, 7.) 
 
 The statute further provides that, by the same 
 authoritjs, and under like limitations, a minor may 
 be placed in any incorporated asylum for destitute 
 children, which will then be entitled to the minor's 
 custody, or to bind him apprentice. (V. C. 1873, 
 . ch 122, § 2.) 
 
 2^. Doctrine by Statute in Yirginia, as to proper 
 parties in the binding of poor children. 
 
 Any minor "found begging in a county or corpo- 
 ration, or likely to become chargeable thereto," may 
 by any overseer of the poor, by an order of court first 
 had, be placed in such incorporated institution as 
 above-named, or be bound apprentice, if a boy, un- 
 til twenty-one, and if a girl, until eighteen, (filing 
 the indentures as above-stated, supra 1^). In no 
 case need the minor himself be a party to the bind- 
 ing (it being matter of police), but the covenants 
 ought to be with him as well as with the overseer, 
 and such is the usual and proper form of the in- 
 dentures (Hen. Just. 68). But even if the cove- 
 nants were with the overseer only, if the binding were 
 in pursuance of the statute, the suit on the inden- 
 tufes should be by the apprentice, and not by the 
 overseer, (Wilton v. Poindexter, 3 Munf. 183; 
 Brewer v. Harris, 5 Grat. 285, 292, 203;) but if 
 the binding were not in accordance with the statute, 
 the suit at common laio, must be in the name of the 
 overseer, for the benefit of the minor,' (Bullock v. 
 Sebrell, 6 Leigh, 560), although by statute with us, 
 (Y. C. 1873, ph. 112, § 2), it may be in the minor's 
 own name. (Y. C. 1873, ch. 122, § 3, 4, 5, 7; Bac. 
 Abr. Master, &c. (B.) 1; Kex v. St. Nicholas, 2 
 T. K. 729; Carr v. Jones, 3 Serg. & E. 158.) 
 3'^. The terms of the contract of Apprenticeship ; "W. C. 
 1'. Terms of the contract at common law ; "W. C. 
 
 1"^. Terms on the part of the Apprentice. 
 
 Faithfully to serve the master in all such lawful 
 business as he shall be put to by him, and to behave 
 himself honestly and obediently towards the mas- 
 ter, and honestly and orderly towards his family. 
 (Hen. Just. 69 ; Grayd. Forms, 304,) 
 
 2''. Terms on the Jifasier's part. 
 
 That he covenants with the apprentice, to instruct 
 him in tlie art, trade or mystery agreed on ; to al- 
 
CHAP. XIV.] MASTEE AND SERVANT. 183 
 
 the term of apprenticeship ; and to do whatever 
 else is agreed on. (Hen. Just. 69 ; Grayd. Forms, 
 304.) 
 2'. Terms of the contract of apprenticeship in Yirginia, 
 by statute ; "W. C. 
 1". Terms where the Apprentice is Bound by the 
 Parent or Guardian, without an order of court. 
 
 The age of the minor shall be specified, and 
 what art, trade, or business he is to be taught ; and 
 the master shall be bound to teach the same, whether 
 expressly provided in the writing or not, and also to 
 teach him reading, writing and common arithmetic, 
 including the rule of three. (Y. C. 1873, c. 122, 
 §5.) 
 2\ Terms where the child is* bound by order of court. 
 The same as in the preceding case (l'^ ), and also 
 a stipulation by the master to pay what the court 
 shall direct (if anything), for the appre7itice's services, 
 to the father or mother, or part to each, annually, 
 or to the apprentice at the end of the term, with 
 interest ; but the last year's payment shall go to the 
 apprentice always. The payment of these sums is 
 to be secured by bond, if the court shall so order, 
 recoverable in a summary way. (Y. C. 18T3, c. 
 122, § 6, 7, 9 to 11. ) 
 
 In both these cases (2'^ & I'' ), the terms of the 
 contract, at common law, must be observed. 
 3*. Obligation of Master, of Apprentice, and of Parent, 
 &c., respectively, together with the Eights of the 
 Master; "W" C. 
 l^". Obligation of Master ; W. C. 
 V. Maintenance. 
 
 The master being entitled to all the apprentice's 
 earnings, is bound, independently of express stipula- 
 tions, to supply him with necessaries, including medi- 
 •cines, medical attendance, and nursing; and whilst 
 the master's death, during the term, terminates the 
 obligation to teach (which is merely personal), the ob- 
 ligation of maintenance, &c., continues unimpaired. 
 (Easley v. Craddock, 4 Rand. 425 ; Reg. v. Smith, 8 
 Car. & P.(34 E. C. L.) 153 ; Bac. Abr. Master, &c.(G-).) 
 2'. Instruction in the Trade, &c. 
 
 The trade, or business, may he any whatsoever, 
 e. g., that of a chimney-sweep, a housewife, a sailor, a 
 farmer, a mechanic, an attorney, and even, it is said, 
 a clergyman ; and whatever the trade or business is, 
 the master is bound to give instruction in it, and is 
 not discharged ^jV .the apprentice's feeble health, or 
 
184 MASTER AND SERVANT. [bOOK I. 
 
 his inaptitude to learn, or his inability to render ser- 
 vice, without his default. (Bac. Abr. Master, &c.,, 
 (A), 2 ; Id. (C) ; 1 Pars. Con. 533.) 
 3\ Education. 
 
 It does not appear that the common law obliged 
 a master to educate an apprentice, any more than a 
 parent a child ; but by statute in Virginia, it is made 
 his duty, as stated above, to teach him reading, writ- 
 ing, and arithmetic, whether it is so provided in the 
 writing of apprenticeship or not. . (Y. 0. 1873, c. 
 122, § 5.) 
 2^^. Obligation of Apprentice. 
 
 To serve faithfully during the term, and to be- 
 have respectfully and orderly to the master's family, 
 and generally* to fulfil his engagements, as set forth in 
 the indentures, {ante p. 183, 1''.) 
 
 It seems that, at common law, no action lies 
 against an infant, on the covenants contained in the 
 indentures, or at least that his infancy is pleadable 
 as a defence thereto. (Gylbert v. Fletcher, 4 Cro. 
 (Car.) 179 ; Lilly's case, 7 Mod. 15 ; Bac. Abr. Master, 
 &c. (B) ; 1 Pars. Con. 533 : 1 Th. Co. Lit. 177, n (40); 
 1 Chit. PI. 132.) 
 
 But the contrary doctrine seems well-nigh irre- 
 sistibly conveyed by 1 Th. Co. Lit. 175; Keane v. 
 Boycott, 2 H! Bl. 512; Eex v. Mountsorrel, 3 M> & 
 S. 497; Hex. v. Bow, 4 M. & S. 383; Eex v. Wig- 
 ston, 3 B. & Cr. (10 E. C. L.)484; King v. Arundel, 
 5 M. & S. 259; Bac. Abr. Infancy, &c. (I); 1 Tuck. 
 Com. 78, B. I. 
 
 Perhaps it is meant that the action is maintainable 
 upon the contract of apprenticeship, such as the law 
 might raise from the facts, but not upon the indentures; 
 or possibly, that although no action can be made good 
 against the infant,, he may, notwithstanding, be chas- 
 tised by the master, and be constrained under the statute 
 touching the subject (Y. C. 1873, c. 122, § 12), to 
 serve in pursuance of the agreement. (1 Burn's Just. 
 144.) 
 
 To the writer it would appear most consonant to the 
 an alogies of the law relating to infants' contracts, to hold 
 that the infancy is no valid plea at common law to an 
 action upon the indentures. And in Yirginia it is ex- 
 pressly declared by statute, that an apprentice, notwith- 
 standing his infancy, shall be liable to the master for 
 deserting his service. (Y. C. 1873, c. 122, §15.) But 
 independently of this statutory provision, the doctrine 
 best mB^fgjtjiSi^t^atimii^(M®^T?^osed to be that no 
 
CHAP. XIT.j MASTER AND SERVANT. 185 
 
 action lies against the infant apprentice upon the cov- 
 enants contained in the indenture of apprenticeship. 
 The parent or next friend who undertakes for the 
 infant apprentice is liable to the master, in pursuance 
 of his contract, for the infant's violation of any of the 
 stipulations ; but no farther than his covenants extend. 
 (Branch v. Errington, 2 Dougl. 518; Cuming v. Hill, 
 3 B. & Aid. (5. E. C. L.) 59 ; 1 Pars. Con. 534-'5.) 
 4:^- The rights of a Master, in respect to the Apprentice. 
 The master has a right to the custody of the appren- 
 tice's person, and to all his earnings of every descrip- 
 tion, and to the value of his services, whether rendered 
 with the master's consent or against it, and whether 
 there was or was not an express contract with the ap- 
 prentice or the master. (Barber v. Dennis, 1 Salk. 
 68; Eades v. Yandeput, 4 Dougl. (26 E. C. L.) 1; 
 Foster v. Stewart, 3 M. & S. 191, 200; 1 Bl. Com. 
 429, n (20).) 
 4s. The authority of the Master over an Apprentice; 
 W. C. 
 I''- The general authority of Master. 
 
 He may lawfully correct his apprentice for negli- 
 gence, disobedience, or other improper conduct, so it 
 be done in moderation, but he cannot delegate his 
 authority herein to another. (Bac. Abr. Master, &e. 
 (B), 2; Id. (N); Combe's Case, 9 Co. 76 a, & n (D); 
 ITuck. Com. 77, B. I.) 
 
 He may also, at common law, order him, within the 
 commonwealth, whithersoever he will, and may even 
 send him out of the commonwealth, if it be so agreed 
 by the contract of apprenticeship, or if the nature of 
 the service for which he is bound imports it, as in 
 case of a sailor's apprentice. (Coventry v. Woodhall, 
 Hob. 134 a; 1 Burn's Just. 219 ; 1 Tuck. Com. 78, B.I.) 
 2''. The authority of Master to remove Apprentice out 
 of the Commonwealth ; W. C. 
 1'. The doctrine at common law. 
 
 He cannot do it except as just stated, supra 1^; 
 and if, notwithstanding he do remove him, it deter- 
 mines the relation, and liberates the apprentice. (Cov- 
 entry V. "Woodhall, Hob. 134 a; Commonwealth v. 
 Edwards, 6 Binn. 202 ; Eandall v. Kotch, 12 Pick. 
 107; Bac. Abr. Master, &c. (E); 1 Tuck. Com. 78, 
 B. I.) 
 2'. The doctrine by statute in Yirginia. 
 
 No apprentice shall reside out of the county or cor- 
 poration wherein the writing of apprenticeship is re- 
 (P^r^^dfghMyWlfMoW^ of the court thereof; 
 
186 MASTEE AND 8EETANT. [bOOK I. 
 
 and if leave be given, a copy of the writing is to be 
 filed in the new county or corporation whose coui't 
 has thenceforward cognizance of the apprenticeship. 
 And if, without such leave, an infant apprentice be 
 removed to another county or corporation, and re- 
 main more than one month, his apprenticeship is at an 
 end. (Y. C. 1873, c. 122, § 13.) 
 6^. Assignment by Master of indentures of apprentice- 
 ship; W. C. 
 I''. Doctrine at common law. 
 
 Apprenticeship implies a high personal trust and 
 confidence, and it is not a matter of indifference to 
 whom it is committed. Hence, at common law, the 
 master cannot legally assigr\ the indentures, nor do they 
 pass even to his executors, &c. His' assignment, if 
 he makes one, passes no interest in the apprentice, 
 but is viewed only as a contract between the assignor 
 and assignee, that the latter shall receive the profits 
 arising from the- apprentice's services, just as the as- 
 signment of a bond is regarded as a promise that the 
 assignee shall receive the amount. (Baxtpr v. Ben- 
 field, 2 Str. 1266 ; Eex v. East Bridgford, 2 Sir. 115; 
 Caistor & Eccles, 1 Ld. Raym. 683; King v. Stork- 
 land, 1 Dougl. 71 ; 1 Burn's Just. 147; 2 Kent's Com. 
 265 ; Bac. Abr. Master, &c. (G).) 
 2'^- Doctrine, hy Statute, in Yirgjnia. 
 
 The writing of apprenticeship, with the approval of 
 the court of the county or the corporation where the 
 same is required to be filed, and on such terms as it 
 may prescribe, may be transferred by the master, or 
 within three months after his death, by his -personal 
 representative, the assignee succeeding to the master's 
 rights and obligations for the future. (Y. C. 1873, 
 c. 122, § 8.) 
 6^. Adjustment of controversies between Master and Ap- 
 prentice ; W. C. 
 1"^. Summary adjustment; W. C. 
 1'. Tribunal charged with the power of adjustment. 
 The court of the county or corporation where the 
 writing of apprenticeship is required to be filed. (Y. 
 C. 1873, c. 122, § 12.) 
 2^. Mode of proceeding in the County or Corporation 
 Court. 
 
 The complaint may be on the part of the master, 
 for the apprentice's desertion or other misconduct ; 
 and on the part of the apprentice, for undeserved or 
 excessive correction, want of instruction, insufficient 
 allowaigf^y^g^^yj;^y^^^^ lodging, or non-pay- 
 
OHAP. XIV.] MA8TEK AND 8EKVANT. " 187 
 
 ment of what was directed to be paid. And after 
 notice to the party complained of, the'court may de- 
 termine the same in a summary way, making such 
 order as the case may require. (Y. C. 1873, c. 122, 
 § 12 ; Bae. Abr. Master, &e. _(C); 1 Tuck. Com. B. I.) 
 2''. Adjustment by action, or suit. 
 
 Either party may sue on the contract of apprentice- 
 ship. In general, the suit in behalf of the apprentice 
 ought to be in his own name, and therefore the cove- 
 nants ought to be with him. But in Virginia he may 
 maintain the action if the covenants are for his benefit, 
 although they are not with him. {Ante, p. 182, 2^; 1 
 Tuck. Com. 78, B. I.) 
 7^. Punishment for harboring Apprentice, and also for 
 his desertion; W. C. 
 I''- Punishment of Apprentice for desertion. 
 
 He is liable to his master, notwithstanding his infancy, 
 for all damages sustained by such desertion. (V. C. 
 1873, c. 122, § 15.) 
 2^. Punishment for enticing away, concealing, or har- 
 boring an Apprentice. 
 
 To e)itice, or, -nathout the consent of the master, to 
 take or carry away an apprentice knowingly (of which 
 the possession of him, or permitting him to remain 
 on one's premises, knowing him to be an apprentice, is' 
 conclusive evidence), subjects the offender to a iine of 
 twenty dollars; and knowingly to employ, conceal, or 
 harbor any such apprentice, is punishable by a fine of 
 three dollars per day to the master, in addition to 
 the damage sustained by him, whilst the court or jus- 
 tice rendering judgment for such offence may require 
 of the offender a recognizance to keep the peace, and 
 be of good behavior. (V. C. 1873, c. 122, § 16.) 
 8^. Dissolution of the contract of Appprenticeship ; W. C. 
 1^. Dissolution by consent of all the parties concerned. 
 This, in case of parish-apprentices, includes the 
 overseers of the poor, and in other cases the parent 
 (or guardian), master, and infant himself; and if the 
 binding were by deed, the dissolution must be by deed 
 also. (1 Burn's Just. 148 ; Bac. Abr. Master, &c. (Gr. 
 2); Castor, &c., Case, 1 Salk. 68 ; Eex v. Bow, 4 M. 
 &S. 386.) 
 2^^. Dissolution by Master, in consequence of Appren- 
 tice's gross misconduct. 
 
 As if he deserts the master's service, and stays long 
 away, or contracts new and incompatible engagements, 
 but not if he withdraws only for a short time, declaring 
 
 that he never intends to return, but does return, and 
 Digitized by Microsoft® 
 
188 MASTEK AND SBKVAHT. [bOOK I. 
 
 ask to be received. The contract is more than a con- 
 tract of service, and the master owes it to the young 
 person entrusted to him to bear long with him, as a 
 parent would; and the master's relations and duties 
 cannot be discontinued in consequence of any ordi- 
 nary misbehavior, whilst the apprentice continues with 
 him. (Winstone v. Linn, 1 B. & Or. (8 E. C. L.) 460 ; 
 Wise V. Wilson, 1 Car. & Kir. (47 E. C. L.) 662.) 
 3^ Dissolution by Apprentice, in consequence of the 
 Master's default. 
 
 e. g., For cruel and inhuman treatment. (Bae. Abr. 
 Master, &c. (C) ; McGrath v. Herndon, 2 Monr. (Ky.) 
 82 ; Same v. Same, 4 Monr. 481.) 
 4*"- Discharge by Court of County or Corporation. 
 
 For such cause or complaint on either side as satis- 
 fies the court that the relation can no longer redound 
 to the good of either; e.g., for habitual drunkenness, 
 habitual neglect, lewd association, &c., working on 
 Sundays, natural idiocy, insanity, &c., but not becausa 
 the apprentice is lame, or incurably sick, or because 
 he marries without the master's privity. (Bac. Abr. 
 Master, &c. (C); Hawkesworth v. Hillary, 1 Saund. 
 313, 314, & notes; V. C. 1873, c. 122, § 12.) 
 
 When the court orders a discharge, it may order 
 also a restitution of a due proportion of the premium, 
 even though the discharge be granted for the miscon- 
 duct of the apprentice. (Hawkesworth v. Hillary, 1 
 Saund. 313, n (3); Bae. Abr. Master, &c. (C).) 
 4'. Laborers. 
 
 These are persons who are only hired by the day, 
 week, or month, &c., and do not live intra moenia, like 
 domestics. (1 Bl. Com. 427.) 
 
 No public authority in Yirginia adjusts the wages to 
 be paid to laborers; but by statute all persons who, not 
 having wherewith to maintain themselves and their 
 famihes, live idly, and refuse to work for the usual and 
 common wages paid to other laborers in the like work, 
 are deemed vagrants, and are treated accordingly. (Ante 
 p. 127 2-°; Y. C. 1873, c. 51, § 19.) 
 6*. Stewards, Factors, Bailiffs, Agents, &c. 
 
 These are species of servants, altliough in a superior, 
 ministerial capacity. (1 Bl. Com. 427; 2 Kent's Com. 
 622; 1 Pars. Cons. 78 & seq.) 
 3*. The manner in which the relation of service affects Mas- 
 ter and Servant respectively. 
 
 Li order to set forth the manner in which the relation 
 of service affects master and servant respectively, it will 
 be necessary ^y^Jg^j$^ /i?l'^c^bfi'#°* t^** *^® relation 
 
CHAP. XIV. j MASTEB AND SEEVANT. 189 
 
 of master and servant depends on contract, express or im- 
 plied; (2), The peculiar privileges of an apprentice in 
 England; (3), The doctrine touching the homicide of 
 masters hj servants; (4), The obligation of the master 
 touching testimonials to the servant's character; (5), The 
 doctrine touching the liability of the servant to his mas- 
 ter; (6), The doctrine touching the servant's dealing for 
 his own benefit with the subject of the agency; 
 W. C. 
 1'. The relation of Master and Servant depends on con- 
 tract. 
 
 The contract may be eospress or implied, and in gen- 
 eral, is governed by the same rules as other contracts. 
 Hence, if it is not to be performed within a year, it must 
 by the statute oi parol agreements (V. C. 1873, c. 140, 
 § 1), be in writing, and signed by the party to be charged. 
 So the engagement must be mutual, on the one part to 
 serve, and on the other to employ or pay, although 
 these engagements are not necessarily measured in du- 
 ration, the one by the other. The servant may be bound 
 to serve for a longer time than the master is bound to 
 employ, and v^ce versa. So service voluntarily accepted 
 implies in general a promise to pay for it, unless such 
 promise can be repelled by showing some sufficient rea- 
 son for the service, other than the expectation of wages, 
 e. g., when the service is rendered to a near relation, to 
 whom it is due as a debt of affection, or in anticipation of 
 a legacy, or in case of one claimed colorably as a slave. 
 (1 Pars. Cont. 529 to 531 ; Williams v. Stonestreet, 3 
 Eand. 559 ; Alfred v. Fitz James, 3 Esp. 3 ; ante p.l69, T.) 
 The relation of master and servant, depending, as it 
 does, on contract, will oblige us to observe, (1), The 
 mode of entering into a contract of service; (2), The 
 effect of a contract of hiring for an indefinite time; (3), 
 The effect of an entire contract of service ; (4), The effect 
 upon wages of the sickness of the servant ; (5), The disso- 
 lution of a contract of service; (6), The effect on a con- 
 tract of service of the marriage of a female servant; (7), 
 The authority of a master over his servant; and (8), 
 The obligation of the master in respect to the servant; 
 W. C. 
 1^. Mode of entering into the Contract of Service. 
 
 At common law, the contract might, in all cases, 
 have been by parol, except in case of an apprentice, but 
 by statute of parol agreements in Virginia (Y. C. 1873, 
 ' e. 140, § 1), it is required to be in writing, when not 
 to be performed within a year. 
 2^. Effect of contract of hiring for an indefinite time ; 
 Digitized by Microson® 
 
190 MASTER AND SERVANT. [BOGK I. 
 
 w. c. 
 
 l'^. General Doctrine. 
 
 A general hiring, that is, a hiring without fixing the 
 duration of the service, is presumed to be a hiring /or 
 a year, one revolution of the seasons, the presumption 
 being, of course, liable to be changed by proof. (1 
 Bl. Com. 425 ; 1 Pars. Cont. 518, n (h) ; Huttman v. 
 Boulnois, 2 Carr. & P. (12 E. G. L. E.) 510 ; Turner 
 V. Kobinson, 5 B. & Ad. (27 E. C. L. E.) 789 ; Faw- 
 cett, V. Cash, Id. 904.) 
 2''. Qualified Doctrine in case of menial servants. 
 
 A general hiring of a menial servant is also pre- 
 sumed, prima facie, to be for a year, but subject to an 
 implied condition that the engagement may be deter- 
 mined on either side by a month's notice, or by paying 
 or forfeiting a montKs wages. But the presumption and 
 the implication may both be repelled by contrary 
 proof. (,1 Bl. Com. 425, n (5) ; 1 Pars. Cont. 518, & 
 n (h).) 
 3s. Effect of an entire contract for service. 
 
 That is, a contract to serve for a specific time, or until 
 some specified result is accomplished. (1 Bl. Com. 425 ; 
 n's (5) and f; 1 Pars. Cont. 519 & seq., and n's (i) 
 
 & (J)) 
 W. C. 
 
 l*"- The Original Doctrine of the common law. 
 
 The original doctrine is that a contract entire,va. point 
 of time or otherwise, must be completely performed (un- 
 less the performance be prevented by the act or default 
 of the employer, or by act of providence), before any 
 right to compensation accrues, and that notwithstand- 
 ing the wages be estimated by the month, week, &c., sup- 
 posing them not to be expressly payable monthly, &c. 
 And on the other hand, the doctrine is that the employer 
 is bound to pay for the entire time, &c., although he may 
 have dismissed the servant before the expiration of 
 the period, unless he dismissed him for sufficient cause ; 
 and that the employer cannot reduce the recovery 
 upon a contract, by showing a partial failure of con- 
 sideration, or partial failure to fulfil the contract, al- 
 though a total failure, in either particular, was always 
 available, if the contract were not under seal. (1 Pars. 
 Cont. 520 & seq.; n's (j), (1), and (n); Temple v. Mo- 
 Lachlan, 2 Bos. & Pul. (IST. E.) 136 ; Farnsworth v. 
 Garrard, 1 Campb. 38 ; Withers v. Green, 9 How. 
 227-'8.) 
 
 2"- The Modern Doctrine. 
 
 The sangya^yl^gtj^il^^og^yailmg, except only 
 
CHAP. XIV.J MASTER AND SERVANT. 191 
 
 in the last particular. The employer, when the 
 contract is not under seal, may reduce the recovery, 
 by showing a partial failure of consideration, or of 
 performance, as well as repel the entire demand by 
 proof of a total failure. (Barten v. Butler, T East. 
 479 ; Poulton v. Lattimore, 9 B. & Cr. (17 E. C. L.) 
 259; Withers v. Greene, 9 How. 227 & seq.; Van 
 Buren v. Digges, 11 How. 475 ; 1 Pars. Cont. 520 to 
 526, and notes.) 
 
 And in Yirginia, even where the contract is under 
 seal, a failure of consideration is available in defence, 
 by means of a plea setting it forth, alleging the dam- 
 ages thereby sustained, and offering to set them off 
 against the plaintiff's demand. (Y. C. 1873, c. 168, 
 § 5 ; 5 Bob. Pr. 611, 1002.) 
 ^ The Doctrine propounded in Britton v. Turner, 6 N. 
 Hamp. 481.) 
 
 This case proposed further very judicious innova- 
 tions upon the original doctrine, which unfortunately 
 have failed to command a general judicial support. 
 Thus, according to that case, a contract entire in point 
 of time, or otherwise, must be completely performed 
 before there can be any recovery upon it ; nor will 
 the law raise any implied agreement differing from 
 the express. Hence the employer may decline to 
 avail himself of a partial or incomplete performance, 
 and then the other party can recover nothing, how 
 much soever he may have done. But if the employer 
 actually receives btnefit from the work or service, he 
 must pay pro rata upon an implied promise, deduct- 
 ing, however, from the pro rata recovery whatever 
 loss he has suffered from the failure to perform, in 
 which case he can deduct no more than the value of 
 the work ; or he may forbear to insist on the reduc- 
 tion, and in a separate action may recover unlimited 
 damages. (1 Pars. . Cont. 524, n (p) ; Chit. Cont. 
 n (1).) 
 4*^. Effect of Sickness of the Servant upon Wages. 
 
 Without an agreement to that effect, there is no 
 abatement of the wages for sickness, where the servant 
 is hired for a term, e. g., for a year, quarter, month, 
 &c. (George v. Elliott, 2 Hen. & M. 6 ; Eutherf. 
 Inst't, B. I, c. xviii, § 25; Stor. on Cont. § 962; 1 
 Pars. Cont. 519, n (i) ; Id. 527, n (x); E. v. Lud- 
 brooke, 1 Smith's E. 69 ; Chandler v. iGrieves, 2 H. 
 Bl. 606, n; Add. Cont. 742.) 
 6^. Dissolution of Contract of Service. 
 
 The dissolution of a contract of service may arise, (1), 
 Digitized by Microsoft® ■" 
 
192 * MA8TEB AJTO SERVANT. [bOOk'i. 
 
 By mutual consent; (2), By act of the master; (3), 
 By the act of the servant; and, (4), By the act of God. 
 W. C. 
 l'^. Dissolution of Contract by mutual Consent. 
 
 In which case no new contract arises as of course, 
 hy implication of law, in favor of the servant, enabl- 
 ing him to recover wages pro rata, without a new 
 agreement to that effect, but such agreement may be 
 inferred from all the circumstances, if they seem to 
 warrant it. (Thomas v. "Williams, 1 Ad. & El. (28 
 E. C. L ) 685; Lambwrn v. Cruden, 2 Mann. & Gr. 
 (40 E. C. L.) 258.) 
 2*. Dissolution of Contract by act of the Master; "W. C. 
 1'. Where there is just cause of Dismissal ; W. C. 
 1'^- Consequence of Dismissal ywr^'ws^ cause. 
 
 Upon the principle of entirety of contract, a ser- 
 vant properly discharged for misconduct is not en- 
 titled to wages from the beginning of the current 
 quarter, or period since the last pay-day, to the 
 time of discharge. (Atkin v. Acton, 4 Carr. & P. 
 (19 E. C. L.) 208; Turner v. Robinson, &c., 6 
 Carr. & P. (25 E. C. L.) 15; Eidgway v. Hunger- 
 ford, 3 Ad. & El. (30 E. C. L.) 171 ; Lilly v. Elwin, 
 11 Q. B. (E. C. L.) 742.) 
 2^^. What is a good cause of Dismissal. 
 
 Moral misconduct (pecuniary or otherwise,) wil- 
 ful disobedience, habitual neglect, or any conduct 
 injurious to the master's interests, e. g. persuading 
 or assisting an apprentice to desert, &c. ; and if 
 such cause exists, it justifies the dismissal, although 
 it was not the inducing motive thereto, nor was 
 even known to the master at the time. But tem- 
 porary absence- without leave, occasional sulkiness, 
 &c., do not amount to sufficient cause. (Spain v. 
 Arnott, 2 Stark, (3 E. C. L.) 256 ; Atkin v. Acton, 
 4 Carr. & P. (19 E. C. L.) 208 ; Callo v. Brouneker, 
 4 Id. 518 ; Fillieul V. Armstrong, 7 Ad. & El. (34 
 E. C. L.,) 557; Lacy v. Osbaldiston, 8 Carr. & P. 
 (34 E. C. L.) 80 ; Amor v. Fearon, 9 Ad. & El. 
 (36 E. C. L.) 548 ; Eead v. Dunsmore, 9 Carr. & 
 P. (38 E. C. L.) 588; Ridgway v. Hungerfdrd, 3 
 Ad. & El. (30 E. C. L.) 171; Mercer v. Whall, 5 
 Q. B. (85 E. C. L.) 466; 1 Pars. Cont. 526; Id. 
 521, & n (K.); Chit. Cont. 579 & seq.; Add. Cont. 
 746-'7.) 
 2'. Where there is not just cause of Dismissal. 
 
 The servant is entitled to recover full wages for the 
 whole term, (year quarter, month, &c.), from the 
 Digitized by Microson® 
 
OHAP. XrV.J MASTER AND SBEVANT. 193 
 
 last pay-day, namely for the time he served, upon a 
 common count, for work and labor done, and for the 
 time thereafter to elapse, upon a special count for not 
 permitting him to complete his term of service, 
 ■which counts may be joined in the same declaration. 
 (Smith V. Hayward, 7 Ad. & El. (34 E. C. L.) 544; 
 Hartley v. Harman, 11 Ad. & El. (39 E. C. L.) 
 798 ; Goodman v. Pocoek, 15 Q. B. (69 E. 0. L.) 
 576 ; Lilley v. Elwin, 11 Q. B. (63 E. C. L.) 755 ; 
 1 Pars. Cont. 520, & n (j); Id. 527, & n (i).) 
 S*". Dissolution of the contract by the act of the Servant ; 
 W. C. 
 1'. Where there is just cause of withdrawal ; W. 0. 
 1^. Consequences of Servant's withdrawal /or j'usi cause. 
 The servant may recover his wages pro rata upon 
 a quantum meruit. (1 Pars. Cont. 524, & n (o).) 
 2"- What is just cause for Servant's withdrawal. 
 
 Personal chastisement by the master, when he 
 has no power to inflict chastisement, is a just cause 
 for the servant's withdrawal. So, also, cruel or 
 immoderate correction where he has power to 
 administer correction; or sickness of the servant 
 such as to prevent his performance of the stipulated 
 service, &c., are just causes for a servant's with- 
 drawal ; and a minor may withdraw at pleasure, and 
 yet recover his wages pro rata. (1 Pars. Cont. 524, 
 n (o); Id. 522, n (1); Bac. Abr. Master & S't (N).) 
 2\ Where there is not just cause for Servant's with- 
 drawal. 
 
 The servant can recover no wa.ges. (1 Pars. Cont. 
 522-'3, & notes; Chit. Con. 677, n (1); Id. 579, n 
 
 (I)-) 
 • 4*^. Dissolution of contract hy act of God. 
 
 If the contract be determined hy the death of the 
 servant, although it be entire, yet the wages are re- 
 coverable j^ro rata, which would seem to be a conces- 
 sion to the hardship of the case. (Gfeorge v. Elliott, 
 2 Hen. & M. 5; Rutherforth Inst. B. I, c. XIII, 
 § 25 ; Davis v. Maxwell, 12 Mete. 286.) The case 
 of Plymouth v. Throgmorton, 1 Salk. 65, is con- 
 trary, upon the ground of the entirety of the con- 
 tract, and of the maxim "anmui nee debitum, judex 
 non separat." In Yirginia it seems settled by the 
 law in like case in respect to slaves, and by the anal^ 
 ogy, if not by the terms, of the statute touching ap- 
 portionment.) y. C.1873, c. 136, § 1 ; Ante, p. 170, 2^^.) 
 See Addis. Cont. 743 ; 2 Pars. Cont. 33; Exp. Smyth, 
 
 1 Swanst, 337.'!, ^ „^. „^ 
 
 Dptizea by Microsoft® 
 
194 MASTER AND SERVANT. [bOOK I. 
 
 6^. Eflfeet of Marriage of Female Servant on contract of 
 Service. 
 
 She must still serve her time out, and her husband 
 cannot lawfully take her away ; nor, on the other hand,. 
 is the mere fact of the marriage a sufficient ground on 
 which to discharge her. (5 Burn's Just. 605-'6; Com. 
 Dig. Justices of Peace (B. 6, 3).) 
 7s. Authority of Master over Servant; W. C. 
 I*'- Doctrine at common law. 
 
 The servant must obey his master's orders, even 
 though they involve ••a painful sacrifice of feeling 
 (e. g., omitting to visit a very ill parent) ; and for 
 Avilful disobedience he may be discharged. The mas- 
 ter, however, is bound to take as much care of his ser- 
 vant as he would of himself, and may not expose him 
 to danger. (1 Pars. Cont. 520-'21 ' 628 ; Priestly v. 
 Powler, 3 Mees. & W. 1; Turner v. Mason, 14 Do. 
 112.) 
 
 The master may also chastise his servant (if under 
 age), with moderation, for neglect of duty, abusive 
 language, &c. ; and it is even said that the common 
 law permitted him to correct any servant, of whatever 
 age, so it were done in reason. (1 Bl. Com. 428 ; 5 
 Burn's Just. 761 ; Bac. Abr. Master, &c. (IST).) 
 2*'. Doctrine, iy Statute, in Yirginia. 
 
 The master may exercise over any minor hired for 
 a period not less than one month, the same authority, 
 control and discipline as over an apprentice, unless it 
 be otherwise stipulated in the contract of hire. (V. 
 C. 1873, c. 122, § 4.) 
 8^. Obligation of Master in respect of the Servant. 
 
 The obligation of the master in respect to the ser- 
 vant leads us to advert to, (1), The master's obligation 
 as to wages; (2), As to maintenance; (3), As to medi- 
 ciaes and medical attendance; (4), As to the servant's 
 personal safety; and (5), As to indemnifying the ser- 
 vant; 
 W. C. 
 l*". The Master's obligation in respect of wages. 
 
 The master is under a legal obligation to pay wages 
 according to contract, express or implied, and the re- 
 tainer is presumed to be in consideration of wages, un- 
 less the contrary appear. (1 Bl. Com. 428, & n (18); 
 1 Tuck. Com. 77, B. I; Bac. Abr. Master, &c. (N); 1 
 Pars. Cont. 530-'31, & n's (d) and (e); Ante, p. 169, 
 179, 189.) 
 
 All compensation, however, may be forfeited by the 
 servant's ^f^^t^m^^mhsoW^' ^ ^^ ^S^^* °^ 
 
CHAP. XIV.] MASTER AND 8BEVANT. 195 
 
 trustee deliberately retain trust funds in his own 
 hands, appropriate them to his own use, and refuse or 
 fail for years to render any account to the principal, 
 he is held to forfeit all claim to compensation. (Segar 
 V. Parrish, 20 Grat. 681-'ii); 
 W. C. 
 1'. When payment of wages is presumed. 
 
 Where it has been usual to pay weekly, &c., and a 
 considerable time has elapsed, and particularly if the 
 servant has left the master's employment. (Sellen 
 V. Norman, 4 Carr. & P. (19 E. C. L.) 80; 1 Pars. 
 Cont. 532; Chit. Cont. 581.) 
 2'. When payment of infants wages will be allowed; 
 W. C. 
 1* Allowance of payments, as against the parent of 
 the infant-servant. 
 
 The /a/Aer certainly, and possibly, if he be dead, 
 
 the mother, is entitled to the earnings of an infant 
 
 child, unless the parent relinquishes the claim, which, 
 
 however, is easily implied, as where the child has 
 
 for some time been permitted, without objection, to 
 
 receive his wages himself. Payments to the parent, 
 
 therefore, will in general be valid. (1 Pars. Cont. 
 
 257-'8.) 
 
 2^^- Allowance of payments, as against the infant himself. 
 
 'Payments in money to the infant (supposing him 
 
 entitled to receive his wages), are always valid, but 
 
 payments in supplies which are not necessaries, or in 
 
 money paid by the master for such supplies, (e. g., a 
 
 silk di-ess for a female servant), may be disaffirmed 
 
 by the infant. (Hedgeley & wife v. Holt, 4 Carr. 
 
 & P. (19 E. C. L.) 104; 1 Pars. Cont. 528, n (x).) 
 
 3*. Set-off against wages, of the value of things lost or 
 
 broken by gross negligence. 
 
 Not allowed except by agreement. Master must 
 bring his action for damages. (Le Loir v. Bristow, 
 4 Campb. 134; Addis, on Cont. 743.) 
 2^- Master's obligation in respect to Maintenance. 
 
 It depends on the terms of the contract ; but prima 
 facie, the master, it is believed, is bound to supply 
 board, at least in the case of laborers, menials, and 
 apprentices, unless it be otherwise agreed. 
 S^- Master's obligation in respect to Medicines and Med- 
 ical Attendance. 
 
 The master is not boimd to supply these to a hired 
 servant, whether menial or laborer (as he is to an ap- 
 prentice, ante p. 183, 1'), unless by special agreement, 
 not even^^^i^j^^^^g^^ caused by an accident 
 
196 MASTBE AND SEEVAiTT. ' [bOOE I. 
 
 occurring in the master's service. But if the master 
 himself send for the medical man, he is responsible to 
 him, and it is said cannot deduct the amount paid 
 from the servant's wages, unless it be so agreed, which, 
 if it be so, probably arises from its being deemed an 
 act of charity and good-will, arising naturally out of 
 the relation, and therefore not warranting the implica- 
 tion of a promise to repay. (Sellen & wife v. Norman, 
 4 Carr. & P. (19 E. C. L.), 80; Cooper v. Phillips, 
 Id. 581; Kex v. Smith, .8 Carr. & P. (34 E. C. L.) 
 153; Newby v. Wittshire, 4 Dougl. (26 E. C. L.) 284; 
 Wennall v. Adney, 3 Bos. & Pul. 247; Chit. Con. 581 ; 
 1 Bl. Com. 425, n f.) 
 
 In case of slave servants, the doctrine in Virginia 
 was precisely analogous ; that is, medical bills were to 
 be paid ultimately by the owner, and not by the tem- 
 porary hirer, although the doctor might exact the 
 amount from the hirer, if he employed him. (Easley 
 V. Craddock, 4 Rand. 425 ; Isbell's adm'r v. Norvell's 
 ex'or, 4 Grat. 176.) 
 4'^. Master's obligation in respect to the personal safety 
 of the Servant; W. C. 
 1'. In regard to Employment. 
 
 The master has no right to expose his servant to 
 danger without the latter's consent, and is bound to 
 provide for the servant's safety in t"he course of his 
 employment, to the best of his judgment, informa- 
 tion, and belief; but he is not responsible for an 
 accident happening in the course of his service, un- 
 less he knew that it exposed the servant to peculiar 
 danger, and the servant did not. (Priestley v. Fowler, 
 3 Mees. & W. 6 ; 1 Pars. Cont. 528 ; Union Pac. E. 
 E. Co. V. Fort, 17 Wal. 557.) 
 
 The hirer of a slave was restricted by a similar 
 limitation. He was not at liberty to engage him in 
 a peculiarly dangerous employment without the mas- 
 ter's assent ; and if he perverted him from the agreed 
 or represented purposes for which he hired him, he 
 was answerable for the consequences which ensued 
 from such perversion, although he was guilty of no 
 negligence, nor of any default other than the per- 
 version. (Spencer v. Pilcher, 8 Leigh, 566; Har- 
 vey V. Epes, 12 Grat. 153; Harvey v. Skipwith & 
 als, 16 Grat. 393; Bell v. Bowen, 1 Jones, E". C. 
 (Law), 316 ; Eandolph v. Hill, 7 Leigh, 383.) 
 2'. In regard to injuries arising from the default of Fel- 
 low-Servants. 
 
 If ilms0^^hfW^f@^^t® liis servants persons of 
 
CHAP. XIV.J MASTER AND SEEVANT. 197 
 
 competent care and sMll, having reference to the em- 
 ployment, he is not answerable to one of them for 
 injuries occasioned by the negligence of a fellow-ser- 
 vant in the course of their common business. Hence, 
 the servant of a railroad company injured whilst 
 travelling on the road of his employers, about their 
 business, by the carelessness of other employees of 
 the company, cannot recover of the latter; but he 
 might have recovered had he been travelling on his 
 own business. (Priestly v. Fowler, 3 M. & W. 1; 
 Huchinson v. New York, &c., Railway Co., 5 Excheq. 
 351; Wigmore v. Jay, Id. 357; 1 Am. Lead. Gas. 
 620; 1 Pars. Cont. 528; Union Pac. E. E. Co. v. 
 Fort, 17 Wal. 557; Packet Co. v. McCue, Id. 508.) 
 5^- Master's obligation in respect to indemnifying Servant. 
 The master is under an implied obligation to in- 
 demnify his servant against all pecuniary damages in- 
 curred by him, without his fault, in the course of the 
 employment, and in consequence of it. (D'Arcy v. 
 Lyle, 5 Binn. 441 ; 1 Am. Lead. Cas. 691 ; Smith's 
 Merc. L. 109-'10.) 
 2'. Peculiar privileges of Apprentices in carrying on trade. 
 These privileges result from many English statutes 
 (which have not been enacted in Yirginia), the general 
 object and policy of which are to secure to the country 
 a class of skilled artizans. (1 Bl. Com. 427-'8 ; Bac. 
 Abr. Master, &c. (D).) 
 3*. Doctrine touching homicide of Masters by Servants. 
 By Stat. 25 Edw. Ill, c. 2, homicide of masters by 
 servants was declared petit treason, and punished with 
 cruel severity. But in Yirginia it is treated as any other 
 homicide, the distinction as to petit treason being abol- 
 ished. (4 Bl. Com.. 203 ; Synops. of Crim. L. 60 ; V. 
 C. 1873, c. 195, § 4.) 
 4'. Obligation of Master touching testimonials to servants' 
 character ; W. C. 
 1*. Obligation of Master to give testimonials to character. 
 
 No obligation exists. (1 Pars. Cont. 529.) 
 2". Liability of Master on account of testimonials ; "W. C. 
 1''. Liability to Servant. 
 
 Whether the character be given voluntarily or by 
 request, it is a privileged communication ; and in order 
 to make the master responsible, it must be, not only 
 false, but malicious ; and the malice is not implied, as 
 in other cases, from the falsity, nor from the occasion 
 of speaking, but it must be proved. That the commu- 
 nication is voluntary, is a circumstance to be consid- 
 ered in determining the bona Jides of it. (Child v. 
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198 MASTER AND SERVANT. [bOOK I. 
 
 Affleck, 9 B. & Cr. (17 E. C. L.) 403 ; Eogers v. Clif- 
 ton, 3 Bos. & Pul. 587; 1 Pars. Cont. 529.) 
 2^^. Liability to third Person. 
 
 A third person injured by the master's false repre- 
 sentation' (knowingly), of good character in the ser- 
 vant, may recover of the master ; for fraud and damage 
 together always constitute a cause of action. (Pasley 
 & als V. Freeman, 3 T. R. 51 ; Yernon v. Keys, 12 
 East, 632 ; Tapp & als v. Lee, 3 Bos. & Pul. 367; 1 
 Chit. PI. 157.) 
 6'. Doctrine touching lAability of Servant to Master; W. C. 
 1^. Liability of Servant, in respect to Duration of Service. 
 If the service is entire, in point of time, or otherwise, 
 the servant must perform it completely, before he can 
 demand his compensation, although if part be paid 
 (not exceeding the proportion of service rendered,) the 
 master cannot recover it back. (1 Bl. Com. 425, n 
 t; Id. 428, n (18); ante p. 190 & seq., 3^; 1 Pars. 
 Cont. 522 & seq., & n (1), &c.) 
 2^. Liability 6f Servant, in respect of his conduct; W. C. 
 l'^. When the Servant receives a Reward. 
 
 He must observe with diligence and care, the in- 
 terests of his master, as the master himself would do ; 
 must adhere to his reasonable orders, and is liable for 
 not doing so, but is not liable for a loss hy robbery, 
 without his default. (1 Bl. Com. 428, n (16) ; Coun- 
 tess of Shrewsbury's case, 5 Co. 14 a; Lord North's 
 case, 2 Dyer, 161 a; Catlia v. Bell, 4 Campb. 183; 
 Shiells V. Blackburne, 1 H. Bl. 161 ; Bac. Abr. Mas- 
 ter, &c., (M), 1 ; Bernard v. Maury & Co., 20 Grat. 
 434). 
 
 Hence a factor who sells produce on credit when 
 instructed to sell for cash, is liable for any loss which 
 may ensue ; and if he use the proceeds of sale as his 
 own, as by keeping them amongst his general deposits 
 in bank, he is liable for any resulting loss. (Hairs- 
 ton V. Medley, 1 Grat. 96 ; Johnson & al v. O'Hara, 
 5 Leigh, 456.) On the other hand, if he treats the 
 money as belonging to the principal, as by depositing 
 it to the principal's credit in bank, or to his own 
 credit as agent, or even to his own individual credit, 
 he having no money of his own on deposit there, and 
 designing it for the principal's benefit, he is not liable 
 for a loss arising from the insolvency of the bank, 
 supposing him to have exercised due care in the selec- 
 tion, and due vigilance ; nor from the failure of the 
 currency (e. g. Confederate currency) in which the 
 collectiog,-^^^i^./j^,-^g^J^s he guilty of any de- 
 
<!HAP. XIV."| MASTER AKD SEEVAITT. 199 
 
 fault in the absence of instructions to the contrary in re- 
 ceiving for his principal that which the law declares to 
 be a legal tender, or which is by common consent con- 
 sidered and treated as money, and passes as such at par. 
 In order that he may be justified in receiving a depre- 
 ciated currency, however, there must be some special 
 circumstances showing that expressly or by implication 
 his authority warranted it. (Ward v. Smith, 7 Wal. 
 452 ; Alley & als v. Sogers, 14 G-rat. 383-'4 ; Ewart 
 v. Saunders, 25 Grat. 207; Pidgeon v. Williams, 21 
 G-rat. 251 ; Davis v. Harman, Id. 194, 203 ; Hale v. 
 Wall, 22 Grat. 424, 432, 434.) And as long as 
 money or property belonging to a master, or even its 
 product or substitute, can be traced or distinguished in 
 the hands of the agent, or his assignees, (unless for 
 value and without notice,) the master rnay recover it. 
 (Norfolk Overseers v. Bank of Va., 2 Grat. 544; 
 Veil & als v. Mitchell's Adm'r, 1 Am. L. C. 650.) 
 
 Pre-eminent knowledge and uncommon foresight 
 are not to be required in an agent. Common skill, 
 common prudence and common caution are all that 
 can be demanded. It is unreasonable to judge of his 
 conduct from subsequent events. If he has acted 
 within his power, in good faith, and with fair discre- 
 tion, he is not to be held responsible for losses which 
 may have accrued from his management. (Myers' 
 Ex'or v. Zetelle, 21 Grat. 733.) 
 '2''- When the servant receives no Reward. 
 
 He is liable only for gross negligence, or fraud, and 
 •for non-feasance not at all, for want of consideration. 
 (Shiells V. Blackburne, 1 H. Bl. 162 ; Coggs v. Ber- 
 nard, 2 Lord Kaym. 913, &c. ; Elsee v. Gatward, 5 
 T. E. 86; Pate v. McClure, 4 Kand. 162, 173.) ' 
 Z^. Liability of Servant in respect of unlawful appropriation 
 of Master's goods ; W. C. 
 l'^. Where they are entrusted to the servant for a special 
 purpose. 
 
 The appropriation is larceny, for his possession is 
 that of the master, e. g. in case of plate appropriated 
 by a butler, &c. (Synops. Crim. L. 96 ; 2 Euss. Or. 
 197; Walker's case, 8 Leigh, 743; Bac. Abr. Master, 
 &c., (M), 2.) 
 2^. Where the Servant has not merely the possession for 
 a special purpose, but the qualified ownership. 
 
 At common law, it was only a breach of trust, or 
 
 embezzlement, (e. g., cloth committed to a tailor, &c.); 
 
 but by statute in Virginia, embezzlement by public and 
 
 iank-oMcers, and by common carriers, and now by any 
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200 MASTEE AND SERVANT. [bOOK I, 
 
 person, of property which he has received for another, 
 is punished like larceny. (1 Bl. Com. 230 & n (3);, 
 Bac. Abr. Master, &c. (M), 2 ; Synops, Orim. L. 96 
 & seq. ; Y. 0. 1873, c. 188, § 20, 21; Acts 1873-'4, p. 
 50, c. 59.) 
 4«. Liability of Servant in respect of Rendering Accounts. 
 It is the duty of a servant to keep a correct account 
 of all money transactions, and to render the same to 
 the principal, with proper frequency, or whenever 
 called on ; and such an account has been exacted by a 
 court of equity after thfe lapse of twenty years, although 
 generally, after a considerable period, a settlement will 
 be presumed. (Pars. Cont. 76-'7 ; Kobertson v. Eead's 
 Adm'r, 17 Grat. 544.) 
 6*. Doctrine touching Servant's Dealing for his own benefit 
 with the subject of the Agency. 
 
 See post p.230, 3^; 1 Pars. Cont. 75-'6; 1 Wh.& Tud. 
 L. C. 125, &c. ; Segar v. Edwards, 1 1 Leigh, 213 ; Buck- 
 les V. Lafferty, 2 Bob. 292, 302, Eeporter's Note ; Bailey's 
 Adm'x V. Kobinsons, 1 Grat. 4, 9, 10; Howery v. Helms 
 & als, 20 Grat. 1, 7, &c. 
 4®. The manner in which strangers may be affected by the 
 relation of Master and Servant. 
 
 The master is, or ought to be, concerned by a natural 
 sentiment of sympathy, as well as interest, in wrongs done 
 to his servant, and thereby is engaged to assist him in 
 obtaining redress. 
 
 He is also personally interested in such acts of third 
 persons as interfere with the service which the servant 
 has stipulated for. 
 
 And lastly, upon the principle qui faeit per alium, facit 
 per se, he may be answerable for, and interested in, the 
 conduct of his servant. (1 Bl. Com. 429 & seq. and notes ; 
 Chit. Cont. 209 & seq.; 1 Pars. Cont. 38 & seq.; Id. 86 
 & seq.; Bac. Abr. Master, &c. (I), (K), (L), (O), & (P).) 
 
 In considering the manner in which strangers may be 
 affected by the relation of master and servant, we are to 
 regard, (1), The doctrine of mutual personal defence, and 
 of maintenance of suits as between master and servant ; 
 (2), The doctrine of seducing away or retaining of an- 
 other's servant ; (3), The doctrine touching personal torts 
 done to servants ; and (4), The doctrine touching con- 
 tracts made, and acts done, by a servant in connexion 
 with his employment ; 
 W. G. 
 1^. Doctrine touching the right of mutual personal Defence, 
 and of Maintenance of suits, as between Master and 
 Servant ; ^j^fj^ed by Microsoft® 
 
CHAP. XIV.] MASTER AITO SERVANT. 201 
 
 1^. Doctrine touching the right of mutual 'personal de- 
 defence. 
 
 Each may justify or extenuate an assault or even 
 homicide, in defence of the person of the other, in like 
 manner as in defence of his own person. (1 Bl. Com. 
 429 ; Bac. Abr. Master, &c. (P) ; Synops. Crim. L. 40, 
 43, 141.) 
 2^. Doctrine touching mutual maintenance of one an- 
 other's suits. 
 
 The master may assist the servant in a suit against 
 a stranger ; whereas, in general, such an act {e. g., help- 
 ing to bear the expense, or even giving public counte- 
 nance to the litigants), is an offence against public 
 justice. (1 Bl. Com. 429 ; Synops. Crim. L. 141 ; Bac. 
 Abr. Master, (P). And the servant, on his part, may 
 afford his master every other assistance in his suits, ex- 
 cept advancing money. (Bac. Abr. Master, &c. (P).) 
 2^. Doctrine touching the seducing away or retaining of the 
 servants of others ; W. C. 
 
 The servant who yields to such seduction, or retainer, 
 
 is always liable to an action, and the new master 
 
 also, if he knew of the servant's previous engagement. 
 
 (1 Bl. Com. 429, & n (20); Bac. Abr. Master, &c. (O); 
 
 1 Pars. Cont. 532.) 
 
 3*. Doctrine touching personal torts done to Servants ; "W. C. 
 
 1^. Where the inquiry does not affect the servants capacity 
 
 to render the stipulated service. 
 
 In general, no action lies at the suit of the master 
 who cannot make the indispensable averment (at com- 
 mon law), of loss of service; but the servant may al- 
 ways sue, whether the master can or not. (1 Bl. Com. 
 429; Bac. Abr. Master, &c. (O),) 
 2^. Where the injury does affect the capacity of the Ser- 
 vant to render Service, 
 
 The master may, in general, recover damages suffi- 
 cient to compensate the loss of service. 
 
 In case of the seduction of a female servant, the 
 master recovers damages per quod servitium amisit, but 
 the injury really suffered in that way may not be the 
 measure of recovery. Thus a parent can only maintain 
 an action for the seduction of his daughter, by virtue of 
 her occupying to him the relation of servant, and at com- 
 mon law not only must that relation be proved to exist, 
 but actual loss of service must also be shown, although 
 the sligWest suffices. In Yirginia it is still requisite 
 to prove the relation of master and servant, but proof 
 of loss of service is dispensed with. Always, however, 
 
 the gist of the action has been, and is, the grievous wrong 
 ^ Digitized by Microsoft® ^ ^ 
 
202 MASTER AND SERVANT. [bOOK I- 
 
 done to the feelings of the parent, and the good name 
 of the family. (3 Bl. Com. 140, n (27) ; Bac. Abr. 
 Master, &c. (O) ; Campbell v. White, 13 Grat. 573 ; 
 V. C. 1873, c. 145, § 1; Lee v. Hodges, 13 Grat. 726.) 
 In other cases than that of seduction of a female 
 servant, where the injury to the servant results from 
 force or negligence, the measure of the master's damage, 
 and consequently of his recovery, is the loss of service. 
 (1 Bl. Com. 429, n (20); 3 Do. 142 ; Bac. Abr. Master 
 & S. (10).) 
 
 Where the injury dofte amounts to a felony, the civil 
 wrong to the master is said to be, at common law, 
 merged in the felony ; or rather the master is stayed in 
 seeking civil redi-ess, it is said, until the wrong-doer 
 has been either acquitted or convicted of felony. If 
 this is indeed the common law doctrine, which has been 
 gravely doubted (Cook v. Darby, 4 Munf. 447 ; Allison v. 
 Bank, 6 Hand. 223), it arose from two considerations — 
 1st, lest public justice should suffer, by permitting the in- 
 jured party to obtain private redress before he has prose- 
 cuted, as is his duty, the public crime ; and 2d, because, 
 if guilty of felony, the offender, upon conviction, for- 
 feited all his goods to the Crown, and also his lands for 
 his life and a year and a day, and so had nothing where- 
 with to satisfy a private action. (4 Bl. Com. 6 ; Bac. 
 Abr. Master & S. (O).) But in Virginia it is pro- 
 vided by statute that the commission of a felony shall 
 not stay or merge the civil remedy of one injured by 
 the felonious act. (Y. C. 1873, c. 195, § 6.) 
 4*. Doctrine touching contracts made and acts done by a 
 Servant in connection with his employment. 
 
 Let us take notice of, (1), The doctrine touching con- 
 tracts made by a servant in behalf of his master ; (2), 
 The doctrine touching torts committed by a servant in 
 connexion with his employment; and (3), The doctrine 
 touching the servant or agent dealing for his own bene- 
 fit with the subject matter of the agency ; 
 W. C. 
 1*. Doctrine touching contracts made by Servant in be- 
 half of his master ; W. C. 
 1^. Liability and Eights of Master and Servant, respec- 
 tively. 
 
 We will observe, (1), The liability of the master on 
 the contracts made by the servant; and (2), The lia- 
 bility of the servant on contracts made by him on be- 
 half of the m,aster ; 
 W. C. 
 
 Digitized by Microsoft® 
 
CHAP. XIV.J MASTER AND SBBVANT. 203 
 
 1'. Liability of Master on the contracts made by the 
 Servant. 
 
 The doctrines relating to the liability of the mas- 
 ter on contracts made by the servant vary themselves 
 under these heads : {Y), The mode of creating autho- 
 rity to servant to contract; (2), The extent of the 
 servant's authority; (3), Power of the servant to 
 delegate his authority; (4), The mode of a servant 
 or agent contracting as such; (5), The effect of de- 
 clarations by agents or servants as evidence against 
 masters ; 
 W. C. 
 1^. Mode of creating authority to Servant to contract 
 for the Master. 
 
 The law prescribes, in general, no particular 
 mode of conferring authority upon a servant or 
 agent. For the most part, it may be either express 
 or implied, by word of mouth, or in writing, under 
 seal or not under seal ; and subsequent ratification 
 is generally equivalent to previous authority, agree- 
 ably to the maxim, " omnis ratihibitio retrotrahitur 
 et mandato priori equiparatur." (Broom's Max. 
 676; 1 Pars. Cont. 42, &c.; Chit. Cont. 217, &c.); 
 W. C. 
 1^ Express authority. 
 
 Authority may be conferred expressly upon a 
 servant or agent, as we have seen, in writing or by 
 parol. Prudence would suggest that it should be 
 in writing always, for the sake alike of the princi- 
 pal, of the agent, and of strangers dealing with the 
 latter as agent ; but legally it is not usually neces- 
 sary, not even in order to make those contracts 
 which are required by statute to be in writing; 
 e. g., contracts for the sale of land, &c. Even in 
 those cases, although the contract must be in 
 writing, and signed by the party to be. charged or 
 his agent (V. C. 1873, c. 140, § 1), yet the autho- 
 rity of the agent may be by parol. There are but 
 two cases where an authority in writing is indis- 
 pensable, and then it must also be under seal — 
 namely, an authority to execute a sealed instr^it- 
 ment, and to make livery of seisiti of a freehold 
 estate in land, it being proper that the authority 
 should be commensurate in solemnity with the act 
 to be done. (2 Th. Co. Lit. 339, & n (JH) ; Bac. Abr. 
 Merchant, &c. (B); Harrison v. Jackson, 7. T. R. 
 207; Elliott & als v. Davis, 2 Bos. & Pul. 338; 
 
 Hibblewhite V. McMorine, 6 M. & W. 200; Wil- 
 Digitizea by Microson® 
 
204 MASTER AND 8EEVANT. [bOOK I.. 
 
 liams V. Welsby, 4 Esp. 220 ; Batty v. Carswell, 
 1 Am. L. C. 544, &c.; U. S. v. Nelson, 2 Brock, 
 64 ; Harrison' v. Tiernan, 4 Kand. 180 ; Downer 
 & Co. V. Morrison, 2 Grat. 237; Ehea v. Gibson's 
 Ex'or, 10 Grat. 220; Preston v. Hull, 23 Grat. 
 604, & seq.) 
 2^ Implied Authority. 
 
 The authority under which the servant acts may 
 be as well implied as express ; and the implication 
 may arise from several sources ; as (1), From re- 
 cognition by the master of similar antecedent acts of 
 the servant; (2), From the act of the master in 
 connection with the regular business of the servant or 
 agent; (3), From the act done being an essen- 
 tial incident to the power conferred; and (4), From 
 the subsequent acquiescence and ratification of the 
 master. 
 W. G. 
 1™. Authority implied from the recognition by the 
 Master of similar antecedent acts of the Servant. 
 
 Thus, authority to purchase goods, or other- 
 wise to contract debts, is implied to a servant, 
 child, or wife, by the acknowledgment and dis- 
 charge of similar demands previously arising out 
 of theii- dealings; and authority to draw or ac- 
 cept bills of exchange by the admission of pre- 
 vious bills or acceptances made by the same party 
 in the name of the principal. And so an autho- 
 rity is implied to an agent of a corporation to 
 execute the duties of secretary or other officer of 
 the company, from his acting publicly as such, 
 and being so recognized by the association. (Bac. 
 Abr. Master & S. (K); 1 Pars. Cont. 83 & notes; 
 Chit. Cont. 217 & seq.; Hooe & als v. Oxley, 1 
 Wash. 19; Burr's ex'or v. McDonald, 3 Grat. 
 235 ; Sangston v. Gordon, 22 Grat. 756 ; Batty 
 V. Carswell, 1 Am. L. C. 550, &c.) 
 2™. Authority implied from the act of the Master or 
 Principal in connection with the regular business of 
 the Servant or Agent. 
 
 Thus, where one sends goods to an auctioneer's 
 sale depository, an authority to sell them may be 
 implied so far as concerns a bona fide purchaser 
 for value ; and so a broker in possession has an 
 implied power to sell. (1 Pars. Cont. 42; Chit. 
 Cont. 211.) 
 3™. Authority implied as an essential incident to 
 
CHAP. XIT.J MA8TEE AND SEEVANT. 205 
 
 It is an vmiversal priaciple in law and in poli- 
 ties, that the grant of any specific power carries 
 with it, by implication, as incident thereto, the 
 right to exercise whatever other power may be 
 necessary and proper in order to carry the granted 
 power into effect. The maxim alike of law and 
 of common sense is, " Cuiqunqiie aliquis quid con- 
 cedit concedere videtur et id sine quo res ipsa esse 
 nonpotuit," whoever grants a thing is supposed 
 also tacitly to grant that without which the grant 
 itself would be of no effect. (Broom's Max. 262.) 
 Hence the commandant of a military force, 
 acting for the time independently, whether gene- 
 ral-in-chief or subaltern, has power, as incident 
 to his command, to enter into terms of capitu- 
 lation; tiie master of a ship, as incident to his 
 function of conducting it out and home, has 
 power to cause needful repairs to be made in a 
 foreign port, and if occasion requires, to procure 
 another vessel to forward the cargo to its destina- 
 tion; the driver entrusted with a vehicle to con- 
 vey freight to a market-town, as incident thereto, 
 may cause a wheel to be repaired, or a horse to 
 be shod or doctored, at the charges of the mas- 
 ter ; the servant of a salesman, e. g., of a horse- 
 dealer, employed daily in selling horses or other 
 chattels, has, as incident to such genera? power of 
 sale, a power to warrant the title or quality of 
 the things sold ; one empowered to sell for cash, 
 has, as incident, the power to receive the pur- 
 chase-money; the president of a railroad com- 
 pany has, as incident to his office, authority to 
 make contracts for necessary labor for the com- 
 pany, &c. But this implication arises only where 
 there is a close and directly necessary connexion 
 between the power actually given and that as- 
 sumed, so that, vsdthout the exercise of the power 
 assumed, the power granted would be nugatory. 
 Thus my wagoner has, in my absence, an implied 
 power to have a wheel repaired and a horse shod, 
 and may so far charge me, as incident to his 
 power to conduct the wagon to its destination; 
 but his authority does not extend by implication 
 so far as to sell the whole team, because that is in 
 no wise necessary to the object in view. (1 Th. 
 Co. Lit. 641 ; Id. 234, n (DJ; Broom's Max. 362, 
 366; Lifford's Case, 9 Co. 52 a; Pomfret v. Kic- 
 
206 MASTER AND SEETANT. [BOOK I. 
 
 & al, 15 East, 38 ; Fenii & als v. Harrison & als, 
 3 T. R. 761 ; Yerby v. Grigsby, 9 Leigh, 387; 
 Eichmond, F. & P. El. Ed. Co. v. Snead & al, 
 19 Grat. 364; Scherchardt v. Aliens, 1 Wal. 
 369 1 Hodge's Ex'or v. First Nat. Bk., 22 Grat. 
 61.) 
 i"*- Authority imphed from the subsequent acquies- 
 cence and ratification of the Master. 
 
 Such acquiescence and ratification may be 
 proved by express and direct testimony, but also 
 tacitly, by the raaster's voluntary acceptance of the 
 benefit resulting from the servant's action, or 
 by omitting to repudiate it as soon as it is made 
 known to him. (1 Pars. Cont. M & seq. ; Chit. 
 Cont. 212 ; Downer & Co. v. Morrison, 2 Grat. 
 237; Bronson's Ex'or ^^Ghappell, 12 Wal. 681.) 
 2'. Extent of Servant's Authority. 
 
 The extent of the servant's authority depends on 
 the terms of it. It may embrace all of the master's 
 business of emry kind, (a power seldom conferred,) 
 or all, or more or less of a particular class of affairs, 
 or it may be limited to a single transaction. But 
 whether the authority be general or limited, the 
 servant cannot charge the master if he exceeds it. 
 He is of course more likely to transcend the bounds 
 of a narrow than of an extended power; but the 
 principle in either case is the same. Within his 
 commission, he binds his master, beyond it, he does 
 not. Whilst, then, we must distinguish clearly be- 
 tween a general agent and a special agent, it is not 
 because there is a diversity in the leading principle 
 which determines the master's liability, but merely 
 in order to adjust the actual measure of it. (1 Bl. 
 Com. 429 & seq.; Bac. Abr. Mast. & S't. (K); Chit. 
 Cont. 215 ; Hopkins v. Blane, 1 Call. 361 ; Blane 
 V. Proudfit, 3 Call. 207; Hodge v. Combs, 1 Black, 
 194.) 
 
 Where the servant's act exceeds his authority in 
 degree only, and not in kind, the master may be 
 bound if the servant will personally take upon him- 
 self the excess, or if the other will relinquish it ; 
 as for example in case of an authority to buy land 
 at $50, and a purehase by the servant or agent at 
 851 ; an authority to insure at 3 per cent, and an 
 insurance effected by the servant at 3 J; authority 
 to lease for twenty-one years, and the servant 
 leases for twenty-six. So where the servant stops 
 short <lSi^ifik@9^p^libr^&ff^^^^^ "^U be bound or 
 
CHAP. XIY.] MASTER AND SERVANT. 207 
 
 not according as the servant's conduct tends to at- 
 tain or to frustrate the purpose or inducement of the 
 transaction. Thus where there is an authority to 
 insure to the amount of $10,000, and the insurance 
 is effected by the agent for $6,000; or to buy a 
 farm of 150 acres, and one. of 140 is bought, the 
 piurpose and inducement of the principal are not 
 thwarted by the more circumscribed action of the 
 agent, and the former is bound thereby. But if 
 the agent were empowered to buy a mill and a 
 farm, and he should buy the mill only, or the farm 
 only ; or if he were authorized to buy an estate in 
 fee-simple, and were to procure one for life, ov for 
 years, the apparent object of the principal would be 
 frustrated, and he would not be bound. And so, 
 a fortiori, if the agent does a different thing from 
 that he was authorized to do, notwithstanding it 
 may be more advantageous, the principal is not 
 bound. Thus where the agent is authorized to buy 
 A's house, and he buys B's at a better bargain ; or 
 if, upon being empowered to insure his correspon- 
 dent's ship, he insures not the ship but the cargo, 
 because he has departed from the subject matter of 
 the instruction, no obligation attaches to the prin- 
 cipal. (2 Kent's Com. 619-'20 ; Alexander v. 
 Alexander, 2 Yes. Sen. 644; Campbell v. Leach, 2 
 Amb. 740; Hervey v. Hervey, 1 Atk. 569.) - 
 
 A joint authority must be executed jointly, and a 
 several authority must be executed severally. Thus 
 where an authority is given to S and B to endorse 
 mercantile paper Avith the principal's name, an en- 
 dorsement of his name by S only is not binding on 
 the principal. And so a joint power from B, C, 
 A, M., &c. to endorse their names, imports a power 
 to make a joint endorsement, and does not warrant 
 the endorsing of those names severally one after 
 another, because by the law-merchant they would 
 thereby be made hable severally and successively, 
 instead of jointly, as was designed. (Union Bank 
 V. Beirne, 1 Grat. 226; Bank of U. States v. 
 Beirne, Id. 254, 538 ; Staiuback v. Eead, 11 Grat. 
 281.) 
 
 And lastly, it may be observed that, if the au- 
 thority is wrongfully perverted to subserve the 
 purposes of the agent, the principal will nol be 
 liable to any one who colludes with the servant in 
 such perversion. And if a pretended sale be made 
 
 by the agent without the knowledge and against 
 •' Dig^zed by Microsoft® ^ ^ 
 
208 MASTER AND SERVANT. [bOOK 1. 
 
 the known ■wishes of the principal, to a purchaser 
 aware of the facts, no tittle passes, and the principal 
 may recover the property. (Stainback v. Bank of 
 Virginia, 11 Grat. 269, 281 ; Peshine v. Shepper- 
 son, 17 Grat. 472 ; Morris & al v. Terrel, 2 Band. 6.) 
 W. 0. 
 V. General Authority of Servant. 
 
 A general authority confers upon the servant 
 power to transact all the master's business, or all of 
 a particular kind, or in a certain locality, and con- 
 stitutes him what* is often called a general agent. 
 The power of the general agent being thus de- 
 fined, it need hardly be stated that no private in- 
 struction to the agent, circumscribing his power, 
 will avail to shield the master from liability to 
 those who are ignorant of the limitation. Thus, 
 a horse-dealer who employs a servant habitually to 
 sell horses for him, is understood thereby to clothe 
 him with the incidental power to warrant both the 
 title and quality. And the power to warrant 
 being thus, by implication, a part of the servant's 
 general authority, if in any particular instance, he 
 is instructed privately not to warrant, the master 
 will notwithstanding, be liable upon any warranty 
 the servant may make to a purchaser, who is not 
 advised of the secret instruction. (Chit. Cont. 
 216; 1 Pars. Cont. 39 & seq.; Mann v. King, 6 
 Munf. 428 ; Batty v. Carswell, 1 Am. L. C. 544.) 
 2^. Special or Limited Authority of Servant. 
 
 A special or limited authority is one which con- 
 fers upon the servant aiithority to do only one or 
 a few special things about his master's business, and 
 constitutes the servant a special agent. Here, as 
 in the case of the general agent, private instructions 
 are of no avail to obviate the master's liability for 
 those acts of the servant which are within the scope 
 of his authority. The practical difficulty is that, 
 with special agents, the instructions often accompany 
 the authority, being conveyed, it may be, in the 
 sanie sentence; so that considerable embarrass- 
 ment sometimes ensues in discriminating between 
 instructions and' limitations of the power. Thus, 
 if a person who is not a horse-dealer, sends his 
 servant, for a single occasion only, to sell a horse, 
 with private instructions (intended of course to he 
 kept secret, and not communicated) not to take less 
 than a minimum price, the instructions are no part 
 of the^ej^ant^^co^^isrio^ and though he dis- 
 
CHAP. XIV.J MASTER AND SEEVANT. 209 
 
 regard them, the sale is notwithstanding obligatory 
 on the master, (1 Pars. Cont. 40 n (d); Hatch v. 
 Taylor, 10 N. H. 538). But where the instruc- 
 tions, though privately given, are given at the 
 same time with the commission, and are of a 
 character which it would not be incongruous to 
 make known {e. g. not to warrant a commodity tp 
 to be sold), they are, or at least will in general be, 
 a part of the authority, and the servant's contract 
 in violation of them, does not bind the master. 
 (Chit. Cont. 216, 219 ; East Ind. Co. v. Hensley, 
 1 Esp. 112 ; Jordan v. Norton, 4 M. & W. 155 ; 
 Horton & als v. Townes, 6 Leigh, 47 ; Batty v. 
 Carswell, 1 Am. L. C. 544.) 
 3^. Power of a Servant to delegate his Authority. 
 
 The employment or trust of a servant or agent 
 is for the most part personal, and does or may rest 
 on some ground of individual selection, arising from 
 confidence in the servant's ability or integrity, or 
 both. The general doctrine, therefore, especially 
 in agencies involving the exercise of any discretion, 
 is that the authority cannot be delegated; — delegatus 
 non potest delegare. But this supposes that no power, 
 express or implied, has been given to make the dele- 
 gation, and that there is no subsequent ratification 
 of the act of the substitute. If, therefore, the busi- 
 ness be of a character which requires such dele- 
 gation (in which case the power to make the delega- 
 tion is implied), and a fortiori, if there be an express 
 permission to delegate, or if the master ratify the 
 substitute's acts, or his appointment, he would be 
 as much bound by the acts of the substitute, as by 
 those of the original agent. (1 Pars. Cont. 71-'2 
 Broom's Max. 665-'6 ; 2 Kent's Com. 633, 260 
 Stor. Agency, § 13, 14, 108, 146, 249; Combes 
 Case, 9 Co. 76, a & n (D); Ingram v. Ingram, 2 
 Atk. 88 ; Alexander v. Alexander, 2 Ves. Sen. 643 ; 
 Solly V. Eathbone, 2 M. & S. 300 ; Cochran v. Ir- 
 1am & als, Id. 303.) 
 4*. The Mode of making Contracts by a Servant or 
 Agent acting as such / W. C. 
 1^ Doctrine at Common law. 
 
 The doctrine at common law is that the contract 
 ought to be so expressed as to show incontestably, 
 that it is meant to be the contract of the master 
 through the servant, and not the contract of tlie 
 servant himself, the intention legally exhibited, 
 
210 MABTEE AND SERVANT. [bOOK I. 
 
 that the agent designed to contract in the name 
 and on the behalf of the master, the latter alone 
 is for the most part answerable, and not the agent; 
 whilst on the other hand, if upon the legal con- 
 struction of the terms, the contract is determined 
 to be the contract of the agent himself, and not 
 of the principal, the latter is not to be charged, 
 but the agent only. Men's intentions are com- 
 monly signified by language, and therefore, if the 
 words of promise be the words of the servant, they 
 bind him ; and they do not bind him the less be- 
 cause he annexes to them the designation of servant 
 or agent, which are regarded as merely designatio 
 personce. Thus, such expressions as, "I promise," 
 "I, as agent for P, promise," " I, in behaK of P, 
 promise," "I promise that P shall," &c., all im- 
 port a, personal j>romise, and the personal obliga- 
 tion of the servant or agent, which is not in the 
 slightest degree obviated by his describing himself 
 as agent or servant (3 Rob. Pr. {2d Ed.), 63 & seq; 
 Combe's Case, 9 Co. 76 b; Frontin v. Small, 2 
 Ld. Eaym. 1418; Appleton v. Binks, 5 East. 148; 
 Burrell v. Jones & al, 3 B. & Aid. (5 E. C. L.) 
 47; Kennedy v. Gouveia, 3 Dowl. & Ey. (16 E. 
 C. L.) 503; Taft v. Biewstet, 9 Johns. 334-'5; 
 Duval V. Craig, 2 "Wheat. 45 ; McWilliams v. 
 Willis, 1 Wash. 202 ; Early v. Wilkinson & al, 9 
 Grat. 68). But see 1 Am. L. C. 604 ; 
 W. C. 
 1™. Where the Contract, in the hody of it, is in 
 terms, in the name of the Master or Principal. 
 
 When the body of the contract is in term,s, in 
 the name of the principal (as it always should be), 
 the mode of signing is quite a matter of indiffer- 
 ence. It may be either " Principal, by Agent," 
 or, "Agent for Principal. (Jones' Devisees v. 
 Carter, 4 H. & M. 184; Wilks & als v. Back, 
 2 East. 142 ; Stinchcomb v. Marsh, 15 Grat. 209 ; 
 Smith V. Morse, 9 Wal. 82.) 
 2™. Where the Contract, in the body of it, employs 
 the pronouns " P' or "We." 
 
 Where the contract, in the body of it, instead 
 of saying "The Principal promises," &c., ex- 
 presses that " I promise," or " We promise," the 
 m/)de of signing is most material. 
 
 If the signature in such case be " Principal by 
 Agent," the personal pronoun is interpreted to 
 refei]r$^^^^g^^y^|gf@g^^er, and consequently. 
 
CHAP. XIV.l MASTER AND SERVANT. ' 211 
 
 he alone is answerable ; but if it be "Agent for 
 Principal," it interprets the pronoun to refer to 
 the agent, and it is then he who promises, and 
 who is accordinglj Hable. And this liability is 
 exclusive, if the promise is under seal ; and if it 
 be not under seal, is shared with the principal, 
 who may be subjected upon the ground that the 
 contract redounds to his benefit, unless it exceeds 
 the agent's authority, or unless the credit was 
 given solely and expressly to the latter. (2 Kent's 
 Com. 621 ; 3 Eob. Pr. (2d Ed.) 60 & seq ; Bac. 
 Abr. Leases (I), 10 ; Id. Authority (C) ; Combe's 
 Case, 9 Co. 76 b ; Prontin v. Small, 2 Ld. Eaym. 
 1418 ; Appleton v. Binks, 5 East. 148 ; Lessee of 
 Clark & al, v. Courtney &c., 5 Pet. 349 ; Harts- 
 horne V. Whittles, 3 Munf. 357 ; Martin v. Flowers, 
 8 Leigh, 161-'2.) And even where the credit is 
 given solely to the servant, if it be in ignorance 
 of who the principal is, although with knowledge 
 that the servant is acting in behalf of another, and 
 much more if without such knowledge, the princi- 
 pal, when discovered, is liable. (Nelson v. Powell, 
 3 Dougl. (26 E. L. C.) 410; Addison v. Gandaa- 
 sequi, 4 Taunt. 579; Paterson &c. v. Gandas- 
 sequi, 15 East, 62 ; Thomson v. Davenport, 9 B. 
 & Cr. (17 E. C. L.) 78.) And it is to be observed 
 that parol evidence is admissible, to show who is 
 the principal, when he is undisclosed by the con- 
 tract (supposing it to be not under seal), either 
 in order to have the benefit thereof, or to be 
 charged therewith, but not to discharge the agent; 
 for that would be to alter a writing iy parol, con- 
 trary to one of the fundamental rules of evidence. 
 (3 Eob. Pr. (2d Ed.) 54-'5 ; 1 Pars. Cont. 48 ; 
 2 Smith's L. C. 222, notes ; Mechanic's Bank v. 
 Bank of Columbia, 5 "Wheat. 326 ; Addison v. 
 Gandassequi, 4 Taunt. 579 ; Thomson v. Daven- 
 port, 9 B. & Cr. (17 E. C. L.) 78 ; Higgins v. 
 Senior, 8 M. & W. 844 ; Turner v. Lucas' Ex'or, 
 13 Grat. 712.) 
 2'. Doctrine iy statute in Yirginia, as to the Mode of 
 making Contracts. 
 
 The statute applies to conveyances alone, and 
 provides that, "if in a deed made by one as at- 
 torney in fact for another, the words of convey- 
 ance, or the signature be in the name of the at- 
 torney, it shall be as much the principal's deed as 
 ^ ^¥iM^8f^mymm ^^^ *^ ^gnature were 
 
312 MASTER A.ND 8EEYANT. FbOOK I. 
 
 • '- 
 
 in the name of the principal by the attorney, if it 
 be manifest on the face of the deed that it should 
 be construed to be that of the principal to give 
 effect to its intent." (Y. C. 1873, e. 112, § 3.) 
 6^. Effect of Declarations made by Agents or Ser- 
 vants as evidence against Masters. 
 
 Declarations made by agents or servants during 
 the progress of the business, dum fervet opus, are 
 admissible against the master, but not declarations 
 made at other times. (Smith's Ex'or v. Betty, 11 
 Grat. 763 ; Packet *Co. v. Clough, 20 Wal. 541 ; 
 Ins. Co. V. Mahone, 21 Wal. 157 : Continental Ins. 
 Co. V. Kasey, 25 Grat. 274 ; Ins. Co. v. "Wilkinson, 
 13 Wal. 235.) 
 2'. Liability of Servant on Contracts made by him on 
 behalf of his Master; W. C. 
 l''. The General Doctrine. 
 
 In general, all contracts made on behalf of the 
 master, by a servant or agent, within the scope of 
 his authority, whether express or implied, bind the 
 master or principal ; but the servant or agent is in 
 no wise liable therefor. It seems, indeed, that if he 
 has styled himself agent in the contract, and has 
 named his principal, he is estopped, notwithstand- 
 ing he. is himself the real principal, afterwards to 
 claim as such; at least unless the other party has 
 treated him as principal. (Bac. Abr. Mast. & S. 
 (K); 3 Bob. Pr. (2nd Ed.) 56 ; 2 Kent's Com. 630 ; 
 Bickerton v. Burrell, 5 M. & S. 383 ; Eayner v. 
 Grote, 15 M. & W. SSQ.') 
 2^. Exceptions to the General Doctrine. 
 
 The exceptions to the general doctrine include the 
 case, (1), Where the contract is in the servants own 
 name; (2), Where there is no principal, or none is 
 disclosed ; (8), Where the servant or agent exceeds 
 his authority ; and (4), Where the agent or servant 
 is dealing for a foreign principal or master. (3 
 Rob. Pr. (2nd Ed.) 50, &c.; Id. 7l-'2 ; 1 Pars. 
 Cont. 54 & seq.) 
 W. C. 
 1\ Where the Contract is in the Servants own Name. 
 W. C. 
 1™. In the case of Agents of Oovemment. 
 
 Servants of government are not in general per- 
 sonally liable upon contracts made in that capac- 
 ity, whether under seal or not under seal, although 
 the engagement be couched in terms which in the 
 caB©;gt;|i@^j>)H|;(y^ji^persons would charge 
 
CHAP. XIT.J MASTER AND SERVANT. 213 
 
 them individually. They are responsihle person- 
 ally only when they absolutely and unqualifiedly 
 undertake to be bo, and the presumption is always 
 against such undertaking. 
 
 This is perhaps in part because the resources 
 of goverment are in general so superior to those 
 of an individual, that, in the absence of an ex- 
 plicit and unequivocal undertaking to be person- 
 ally answerable, the credit is reasonably presumed 
 to be given to the government ; but the doctrine 
 depends principally on considerations of policy, 
 for else no man would accept an ofiice of trust 
 under government. In such posts large contracts 
 must often be made, and if in the inadvertence oc- 
 casionally occurring with the most guarded per- 
 sons, from the pressure of business, a government 
 officer were liable in his private fortune, where- 
 ever the words of the engagement seemed to be 
 his rather than those of the government, the 
 risks incident to the service would be greater 
 than the most desperate place-hunter, who had 
 anything to lose, could afford to take. (Bac. Abr. 
 Master & S. (L); 3 Kob. Pr. (2nd Ed.) 55 ; Mac- 
 beth V. Saldiman, 1 T. E. 172, 182 ; Union v, 
 Wolseley, 1 T. E. 678 ; Eice v. Chute, 1 East, 
 519 ; Syme v. Butler, 1 Call. 105 ; Tutt v. Lewis' 
 Ex'ors, 3 Call. 233 ; Hodgson v. Dexter, 1 Cr. 
 345 ; Parks v. Eoss, 11 How. 374.) 
 2™. In the case of agents of private persons ; "W. C. 
 1°. "Where the Servant's imdertaking is under seal. 
 Where the servant or agent contracts under 
 seal, not in the name of his master, but in his 
 own name, although he states it to be on the 
 part or behalf of, or as agent for another, he is, 
 as we have seen, personally bound. So, also, it is 
 when he contracts in the same way, although it 
 be as president, director, or member of a com- 
 mittee of an association, incorporated or other- 
 wise. And even in the ease of a government 
 servant, where he clearly intends it, he is per- 
 sonally responsible. (Appleton v. Binks, 5 
 East. 148; Combe's Case, 9 Co. 76 b; 3 Eob. 
 Pr. (2d edit.) 60 ; Ante, p. 210, & seq.) 
 2". Where the Servant's undertaking is not under 
 seal. 
 
 If in a written contract, not under seal, the ser- 
 vant uses language whose legal effect is to charge 
 ^^Bi^m'&^^tofoM^^ accordingly, and he 
 
 i=' 
 
214 MASTER AND 8EEVANT. [BOOK I. 
 
 cannot exonerate himself by extrinsic proof that 
 his purpose was to contract on behalf of his 
 principal exclusively, and not to bind himself, 
 and that the other party knew it. That would 
 contravene the established rule of evidence 
 which forbids that any writing shall be contra- 
 dicted by parol evidence. But whether the 
 legal effect of the language of the instrument is 
 to charge him or not is a question of construc- 
 tion, which must be resolved in each case on its 
 particular phraseology. The intention of the 
 parties is the guiding star, and that must be 
 collected from the instrument itself, by a rea- 
 sonable exposition of its contents. (3 Kob. Pr. 
 (2d edit.) 62; 1 Pars. Cont. 54, & n (a); Bur- 
 rell V. Jones, 3 B. & Aid. (5 E. C. L.) 47; Iveson 
 V. Connington, 1 B. & Cr. (8 E. C. L.) 160; 
 Spittle V. Lavender, 2 Brod. & B. (6 E. C. L.) 
 453 ; Norton v. Herron, ] Carr. & P. (11 E. C. 
 L.) 648 ; Tanner v. Christian, 4 El. & Bl. (82 
 E. C. L.) 591 ; Drake v. Beckham, ll M. & "W". 
 315; Early v. Wilkinson, 9 Grat. 68.) 
 
 But whilst parol testimony is inadmissible in 
 order to discharge the servant or agent who has 
 thus contracted in his own name, it is allowed (on 
 the same principle as against a, dormant partner), in 
 order to charge a principal who was unknown 
 to the other contracting party at the time of the 
 contract; for if he were then known, and the 
 contract were still in terms with the agent, it is 
 proof that the credit was given to the latter 
 alone. Such evidence, it will be observed, does 
 not alter the contract as to the agent. It shows 
 only that another is bound as well as he. (3 
 Rob. Pr. (2d edit.) 54; Higgins v. Senior, 8 
 M. & W. 844 ; Townes v. Lucas' Ex'or, 13 Grat. 
 710; Ante, -p. 211.) 
 2'. Where there is no Principal, or none is dis- 
 closed. 
 
 In this case, the servant or agent is liable per- 
 sonally, although the master or principal, if there 
 be one, may also be subjected, when he is discov- 
 ered, supposing the contract to be not under seal. 
 To this class of cases belong contracts by an agent 
 for an unincorporated association, such as a jockey- 
 club. Such an association has, as a body, no ex- 
 istence in law, and it is not supposed that credit 
 was g®^'f;1©dtfe5' AfttPB^/¥®mberB individually. 
 
CHAP. XIV.J MASTER AND SERVANT. 215 
 
 numerous, dispersed, and often unknown. (1 Pars. 
 Cont. 55-'6; Thompson v. Davenport, 2 Smith's 
 L. C. 223, note; Cullen v. Duke of Queensberry, 
 1 Bro. C. C. 101, and n t; MoWilliams v. Willis, 
 1 Wash. 201 ; Presb. Church v. Manson & als, 4 
 Band. 198; Lyons v. Miller, 6 Grat. 427.) 
 
 This class of cases, in respect to the liability of 
 the agent, may be resolved into three, namely : 
 
 1st. Where the agent makes a fraudulent mis- 
 representation of his authority, designing to de- 
 ceive ; 
 
 2d. Where he knows he has no authority, but 
 nevertheless enters into the contract as if he had ; 
 and 
 
 3d. Where not, in fact, having authority, he 
 bona fide believes that he has, and makes the con- 
 tract under that belief. 
 
 In all these cases the agent is, it seems, person- 
 , ally liable ; in the last, because, as the loss must 
 fall somewhere, it should rather rest on him who 
 has assumed, however innocently, yet falsely, that 
 he possessed authority, and thereby occasioned the 
 mischief. (1 Pars. Cont. 66, & n (e); Smout v. 
 Hberry, 10 M. & W. 9.) 
 
 On the other hand, the undisclosed priacipal, 
 when the contract is not under seal, may come 
 forward and claim the benefit of his agent's trans- 
 actions in his behalf, yet not so as to interfere 
 with any equities which may have arisen between 
 the agent and a third person, before the former 
 was known to be merely an agent. (8 Rob. Pr. 
 (2d Ed.) 34, & seq. ; Sargent v. Morris, 3 B. & Aid. 
 (5 E. C. L.) 277; Skinner v. Storks, 4 B. & Aid. 
 (6 E. C. L. 437; Cothay v. Fennell, 10 B. k Or. 
 (21 E. C. L.) 671; Phelps v. Prothen, 7 J. Scott 
 (81 E: C. L. 394; Eobern v. Drummond, 2 B. & 
 Aid. (22 E. C. L.) 303; Sims v. Bond, 5 B. & Aid. 
 (27 E. C. L.) 393.) 
 3\ Where the Servant or Agent exceeds his au- 
 thority. 
 
 Where the servant or agent exceeds his au- 
 thority, the master or principal, as we have seen, 
 is in general not liable, and the servant or agent is. 
 Indeed, the master, where the authority is not 
 substantially pursued, is never liable for the pro- 
 mise as made by the servant; although of course he 
 may become answerable in consequence of Ms 
 fiubsequent actual or implied ratification; but it 
 
216 MASTER AND SEEVAJSfT. [BOOK 1, 
 
 should be observed that such subsequent ratifica- 
 tion in no wise exonerates the servant. (1 Pars. 
 Cont. 54 & seq. ; 1 Tuck. Com. 90, B. I; Kossiter 
 V. Kossiter, 8 Wend. (N. Y.) 494; Pahner v. Ste- 
 phens, 1 Den. _(]Sr. T.) 471.) 
 
 It is a question in these cases, as well as in those 
 arising under the preceding head (2^), how the 
 agent or servant is to be charged; whether on the 
 contract, which he has professed to make as agent, 
 or for the deceit practised by him in falsely pre- 
 tending an authority which he did not in truth 
 have; or upon an im/plied undertaking that he was 
 really possessed of the power which he exercised. 
 The better opinion seems to be that the contract 
 is void; — not binding on the principal, because 
 he gave no authority, nor on the agent, because 
 he made no promise /or himself; — and that the 
 agent must either be charged in a special action 
 on the case for the deceit, alleging and proving the 
 scienter (that is, his knowledge that he had no 
 authority;) or else, and better, in ah action of 
 trespass on the case in assumpsit upon an implied 
 contract that he was clothed with power to do the 
 act in question. (3 Eob. Pr. 71-'2 ; 1 Pars. Cont. 
 58 ; PolMU V. Walter, 3 B. & Aid. (23 E. C. L.) 
 114 ; Jenkins v. Hutchinson, 13 Ad. & El. N. S. 
 (66 E. C. L.) 751 ; Lewis v. Nicholson, 18 Ad. & 
 El. N. S. (83 E. C. L ) 511 ; Eondall v. Trimen, 
 18 Com. B. (86 E. C. L.) 793-'4 ; Thompson v. 
 Bond, 1 Campb. 6, 7.) 
 4'. Where the Agent or Servant is dealing for a 
 foreign Principal or Master. 
 
 It seems that it is, in every case, a question of 
 intention, to be gathered from the contract itself, 
 and the surrounding circumstances, whether the 
 agent of a foreign principal is personally liable or 
 not. There is no rule of law that he shall be so 
 liable. The fact that the principal is a foreigner 
 is of some weight in a doubtful case, to determine 
 to whom credit loas given, but the ultimate ques- 
 tion is, did the agent design to bind himself, or to 
 bind his principal alone, and if the contract be in 
 writing, that question must be resolved mainly by 
 its terms. (3 Kob. Pr. 59 ; Mahone v. Kekuld, 
 14 Com. B. (78 E. C. L.) 396; Green v. Kopke,. 
 18 Com. B, (86 E. C. L.) 558; Lennard v. Robin- 
 son, 5 El. & Bl. (85 E. C. L.) 130.) 
 
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CHAP. XIV.J MASTER AND SERVANT. 217 
 
 2^^. Rights of Master and Servant, respectively, in respect 
 to Contracts made by the Servant, as such ; W. 0. 
 1'. Eights of Master in relation to Contracts made by 
 Servant, as such; W. C. 
 1^- Eights of Master, where the Contract is hy Deed. 
 No advantage at common law can be taken by 
 the master, in a court of law, of a contract under 
 seal, made by his servant in his behalf, unless he is 
 expressly a party thereto. So that, if the servant 
 thus contracts, although professedly for the mas- 
 ter's benefit, but without naming him as a party, 
 the action at law can be maintained only in the 
 servant's name, and not in that of the master. The 
 latter's only remedy, if he has any at all, is in the 
 court of equity. (1 Pars. Cont. 53 ; Eoss v. Milne 
 & ux, 12 Leigh, 204.) But in Virginia it is now 
 provided by statute that if " a covenant or promise 
 be made for the sole benefit of a person with whom 
 it is not made; or with whom it is made jointly 
 with others, such person may maintain in Ms own 
 name any action thereon which he might maintain 
 in case it had been made with him only, and the 
 consideration had moved from him to the party 
 making such covenant or promise." (V. C. 1873, 
 c. 112, § 2.) 
 2^. Eights of the Master where the Contract is not by 
 Deed. 
 
 Where the contract is not by deed, an undisclosed 
 principal may claim and enforce the benefit of the 
 contract; save only that he shall not impair nor 
 injuriously affect any equities or rights acquired by 
 the other contracting party in respect to the agent, 
 without notice, and in ignorance that he was merely 
 an agent. (1 Pars. Cont. 53 ; Warner, &c., v. 
 McKay, 1 M. & W. 591, 600; Seins v. Bond, 5 B. 
 & Aid. (27 E. C. L.) 389 ; Eabone v. Williams, 7 
 T. E. 360, n (a) ; Stracy, &c., v. Decy, 7 T. E. 
 361, n (c); George v. Clagett, 7 T. E. 359.) 
 2^ Eights of Servant in relation to contracts made with 
 him as such. 
 
 When the servant has contracted in his own name 
 he may sue thereon, as the un-named master may 
 likewise (1 Pars. Cont. 53; 3 Eob.Pr. (2d edit.) 34, 
 & seq.); but if in a contract he styles himself agent, 
 and names his principal, he is estopped afterwards, 
 as we have seen, to claim as principal in the trans- 
 action, notwithstanding he may be really such; at 
 
 least unless the other party has treated him as prin- 
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218 MASTER AND SEEVANT. [bOOK I. 
 
 cipal. (Bickerton v. Burrell, 5 M. & S. 383; Kaynor 
 V. Grote, 15 M. & W. 359.) 
 2^. Doctrine touching torts committed by Servants in con- 
 nection with their employment. 
 
 "We must observe, (1), The liability of a master for 
 torts committed by a servant in connection with his 
 employment; and (2), The liability of servants for 
 torts committed by them in the course of their employ- 
 ment; 
 W. C. 
 l'^. Liability of a Master for torts committed by a Ser- 
 vant in .connection with his employment. 
 
 The general principle is that a master is responsible 
 for the tortious acts of his servants which were done 
 in his service. (1 Bl. Com. 431; 1 Pars. Cont. 87; 
 Laugher v. Pointer, 5 B. & Cr. (12 E. C. L.) 547); 
 W. C. 
 1'. Grounds and limits of the Master's liability. 
 
 The grounds of the master's liability are that he 
 may and ought to control his servants or agents, whom 
 he selects and m,ay discharge; and that the policy of 
 society requires that he should be answerable for 
 their tortious acts whilst in his employment, and thus 
 subject to his authority. And his liability is limited 
 by similar considerations. Hence, whilst the master 
 is answerable for the fraud, negligence, and want of 
 skill of the servants who are engaged about his busi- 
 ness, he is not liable for their wilful and malicious 
 trespasses which he did not authorize, or afterwards 
 sanction; save in the case of carriers and inn- 
 keepers, who, from peculiar considerations of public 
 policy, are responsible as insurers of the chattels 
 committed to them, for even the wilful torts of their 
 servants. Hence, also, he is not liable for the acts 
 or omissions of a contractor or svh-contractor, unless 
 the act to be done be itself unlawful, or necessarily 
 involve in its performance what is unlawful, or what 
 imminently endangers the commission of what is un- 
 lawful, as, for exaTuple, the commission of a nuisance. 
 (1 Bl. Com. 431, & n (26); 1 Pars. Cont. 87, & seq., 
 & n (aa); Id. 89, & seq.; Quarman v. Burnett, 6 M. 
 & "W. 499 ; Eapson v. Cubitt, 9 Id. 710 ; MiUigan v. 
 Wedge, 12 Ad. & El. (40 E. C. L.) 737; Overton v. 
 Freeman, 11 Com. B. (73 E. C. L.) 867; Ellis v. 
 Sheffield Gas Co. 2 El. & Bl. (75 E. C. L.) 767; Chi- 
 cago V. Robbins, 4 Black. 418, 428; Bobbins v. Chi- 
 cago, 4 Wal. 657, 679; Water Co. v. Ware, 16 Wal. 
 676-'7.) Digitized by Microsoft® 
 
CHAP. XIV.J MASTER AND SERVANT. 219 
 
 2'. Various instances of torts by Servants; W. G. 
 1''. Torts by deceit or fraud of the Servant. 
 
 The master is, in general, liable in an action ex 
 contractu, but not in an action of tort, for any fraud 
 or deceit practised by his servant or agent touching 
 his business, although he knew not of it, nor was in 
 any wise actually privy thereto; for as somebody 
 nmst be a loser by it, it is fitting that it should be 
 he who had the selection of the agent, and who re- 
 posed the confidence. Thus, a purchaser who has 
 suffered by the deceit or fraud of the agent of the 
 vendor, may upon that ground cancel the contract 
 of purchase, supposing that he can put the vendor 
 in statu quo, or if the purchase has not been con- 
 summated, he may resist an action to enforce it, the 
 principal being allowed to retain" no benefit which 
 he has obtained through the fraud of his agent. 
 But if, instead of seeking to set aside the contract, 
 the purchaser prefers to bring an action for dam- 
 ages, it must be instituted against the agent only, 
 and cannot be maintained against the innocent prin- 
 cipal. Where, however, the principal knowingly 
 accepts the benefit of the agent's act, he is always 
 liable therefor, as if he had previously authorized 
 it. (1 Pars. Cont. 62-'3; Hern v. Nicholas, 1 Salk. 
 289 ; Grammar v. Nixon, 1 Str. 653 ; Crump v. IT. 
 S. Mining Co 7 Grat. 353 ; Harvey's Adm'r v. 
 Steptoe's Adm'r, 17 Grat. 303 ; Udell v. Atherton, 
 7 Hurlst. & N. 172; Benj. Sales, 347, & seq.) 
 2^^.. Torts effected by the Servant or Agent otherwise 
 than by' fraud or deceit; W. C. 
 1^ Injuries arising from the Servant's Ignorance, 
 Unskilfulness, or Neglect. 
 
 The master is always answerable for the dam- 
 ages sustained by third persons, in consequence of 
 the ignorance, unskilfulness or neglect of his ser- 
 vant, in the course of his emplojTnent, and al- 
 though the act or default were without the mas- 
 ter's knowledge, or even in despite of his express 
 orders. (1 Bl. Com. 431, and n (26); Bac. Abr. 
 Mast'r & S. (k); 1 Pars. Cont. 87, n (aa); Phil. & 
 E. E'l E'd Co. V. Derby, 14 How. 486.) 
 
 But it is sometimes an embarrassing question, who 
 is the master — that is, who has the control of the 
 servant at the time when the tort occiirs ? The ser- 
 vant cannot be at once in the employment and un- 
 der the control of different and unconnected parties, 
 
 in the same varticular, but he may be in some re- 
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220 MA8TEE AND SEEVANT. [bOOK I. 
 
 spects the servant of one person, and at the same 
 time, in other respects, the servant of another. 
 Thus, where the owner of a carriage hired horses 
 for a day of a stable-keeper, who also provided a 
 driver, and by the negligence of the driver, an 
 injury was done to a third person, it was held that 
 the stable-keeper was the driver's master, and 
 therefore answerable, and not the owner of the 
 carriage. (Laugher v. Pointer, 5 B. & Cr. (12 E. 
 C. L.) 547; Quarman v. Burnett & al, 6 M. & W. 
 508.) 
 2\ Injuries arising from the wilful and Tnalicious 
 conduct of Servants. 
 
 The master is not in general answerable for the 
 wilful and malicious torts of his servants, even 
 though perpetrated whilst they are engaged about 
 his business, because such torts cannot fairly be 
 said to be committed in his service, nor has he that 
 power of control with respect to such conduct, 
 which, as we have seen, is the ground of his lia- 
 bility in all cases. (1 Pars. Cont. 87, and n (aa) ; 
 McManus v. Crickett, 1 East. 106; Croft & al v. 
 Alison, 4 B. & Aid. (6 E. C. L.) 590; Lyons v. 
 Martin, 8 Ad. & El. (35 E. 0. L.) 512; Harris v. 
 Nicholas, 5 Munf. 483.) 
 
 To the general proposition that a principal is 
 not liable for the wilful and malicious torts of his 
 servant or agent, but two exceptions are now re- 
 called, namely, in the case of carriers, and of inn- 
 keepers ; who, as we have seen, are from consider- 
 ations of public policy, liable for all losses of and 
 injuries to chattels committed to their charge in 
 those capacities respectively, howsoever the loss or 
 injury may have happened, unless it arose directly 
 from an act of God, of a public enemy, or of the 
 owner of the goods; and in the instance of the 
 innkeeper, vrith two or three exceptions besides ; 
 and therefore are answerable even for wilful tres- 
 passes done to the chattels by their servants. (1 
 Pars. Cont. 87, n (aa); Stor. Bailments, § 470, 
 507, 510.) 
 3^ Torts arising to a Servant, from neglect, unsMl- 
 fulness, or ignorance of a fellow-servant. 
 
 A servant cannot subject the master for injuries 
 occasioned by the neglect, unskilfulness, or igno- 
 rance of a fellow-servant employed about the same 
 work, provided the suiferer be actually engaged 
 in th&jnaster]sservice. andtransacting his business, 
 
-CHAP. XrV.] MASTEE AND SERVANT. 221 
 
 at the precise time when the injury is inflicted; 
 and provided also, the master has used due pre- 
 caution in employing competent persons to serve 
 him. (Priestly v. Fowler, 3 M. & W. 1 ; Hutch- 
 inson V. R'lway Co., 5 Excheq. 351; Wigmore v. 
 Jay, Id. 351 ; 1 Am. L. C. 620 ; Union Pac. E. R. 
 Co. V. Fort, 17 Wal. 557; Packet Co. v. McCue, 
 Id. 513.) 
 
 If the master is supposed to be liable in such a 
 case, in consequence of his having retained incom- 
 petent servants in his employment, the declara- 
 tion should be a special one founded on that negli- 
 gence. (Wigmore v. Jay, 5 Excheq. 358, n.) 
 
 This doctrine, which seems not to have the un- 
 reserved approval of the Supreme Court of the 
 United States, proceeds on the theory that the ser- 
 vant, in entering the employment of the principal, 
 is presumed to take upon himself the risks inci- 
 dent to the undertaking, among which are to .be 
 counted the negligence of fellow-servants in the 
 same employment, and that considerations of pub- 
 lic policy require the enforcement of the rule. 
 (Hutchinson v. E'lway Co. 5 Excheq. 351-2; 
 Union Pac. E. E. Co. v. Fort, 17 Wal. 557.) 
 2^^. Liability of Servants for Torts committed by them 
 in the course of their employment ; W. C. 
 1'. Liability of Servants to Strangers. 
 
 Where the servant, whilst in his master's employ- 
 ment, commits a tort against a stranger, he is him- 
 self personally answerable therefor, as the master also 
 is, unless the tort be wilful or malicious, in which 
 case the master is excused, as we have seen, because, 
 constructively, the servant (as to the act complained 
 of) was not in his service, nor subject to his control. 
 (Bac. Abr. Master & S (L); Hutchinson v. E'lway 
 Co., 5 Excheq. 350.) 
 
 It is said that the servant is not answerable to 
 strangers for injuries resulting from his fraud or 
 deceit in his master's behalf, or from ignorance, un- 
 skilfulness, or neglect in the course of his employ- 
 ment, for all which, according to this doctrine, the 
 master alone is responsible. (Bac. Abr. Master & 
 S., (C L.); 1 Bl. Com. 431, n (24).) This may be 
 true enough where the servant, if charged at all, 
 must be charged upon the ground of contract; for 
 there is in such cases no contract with the servant, 
 either express or implied. But where the servant 
 may be sued as for a tort, it would seem that he must 
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222 MASTER AND SEBTANT. [bOOK I. 
 
 be personally liable in all the cases named, because, 
 although the stranger may treat the act of the ser- 
 vant as the act of the master, the servant himself, 
 whose default is the cause of the wrong, cannot pre- 
 tend to do so, and he must, therefore, stand charge- 
 able with whatever injury has resulted therefrom. 
 (Hutchinson v. E'lway Co., 5 Excheq. 360.) 
 2^ Liability of Servants to the Master. 
 
 The servant is not only liable to the master for 
 all injuries proceeding directly from his mal-feasanee 
 and non-feasance, feut also for all losses which the 
 mas'ter may sustain by recoveries had from him on ac- 
 count of the default of the servant towards others ; 
 e. g. by his false and fraudulent conduct, or by his 
 ignorance, neglect, or unskilfulness. (Bac. Abr. 
 Master & S. (M), 1.) 
 3«. Doctrine touching the Servant or Agent dealing for his 
 own benefit with the subject of the Agency. 
 
 It is in no case admissible for an agent or servant to 
 deal for his own benefit with the subject of the agency. 
 Such dealing would afford so many opportunities to 
 deceive and defraud the master or principal, and would 
 offer such temptations to the servant or agent, that, 
 upon considerations of policy, it is inhibited altogether, 
 and such transactions, however fair they may in fact 
 be, are pronounced constructivehi fraudulent, and there- 
 fore voidable at the instance of the principal. Hence, 
 an agent to sell •property cannot buy it for himself, nor 
 can an agent to buy, purchase what belongs to himself. 
 If this rule be violated, the transaction, at the instance 
 of the principal, will be annulled, unless, with a full 
 knowledge of all the circumstances, he has subse- 
 quently ratified it; whilst it is blading upon the agent, 
 if the principal chooses to enforce it. Nor do third 
 persons who acquire an interest in the transaction, from 
 the agent, with notice, or with the means of knowledge, 
 of the agent's violation of diity, stand in a better 
 situation than the agent himself. The principal has 
 the option, as to them also, of invalidating the transac- 
 tion. It should be observed, however, that when the 
 principal elects to annul what the agent has done, he 
 must re-pay him whatever sums of money he has dis- 
 bursed on account of the business. (1 Pars. Cont. 
 75-'6; Fox v. Mackreth, 1 Wh. & Tud. L. C. 125 to 
 169 ; Morris & al v. Terrell, 2 Band. 6 ; Moseley's 
 Adm'rs v. Buck & al, 3 Munf. 232; Buckles v. Laf- 
 ferty's Legatees, 2 Rob. 292 ; Segar v. Edwards & ux, 
 
CHAP. XIV.J MASTER AND SERVANT. 223 
 
 4, 9; Wellford v. Chancellor, 5 Grat. 39; Stainback 
 V. Bank of Ya., 11 Grat. 269; Same v. Eead & Co., 
 11 Do. 281 ; Hunter v. Lawrence's Adm'r, 11 Grat. 
 Ill; Howery v. Helms, 20 Grat. 7.) 
 
 This rule does not apply to mere formal trustees, who 
 have no active functions to perform, but are simply pas- 
 sive, such as trustees to preserve contingent remainders. 
 (1 Wh. & Tud. L. C. 151 ; Parks v. White, 11 Yes. 209, 
 226) ; nor does it preclude an agent or trustee from pur- 
 chasing the subject of the trust or agency at public 
 auction, with the consent of the beneficiary, if he is 
 competent to consent, or by permission of a court of 
 equity. This permission the court is seldom reluctant 
 to concede, taking due precautions against abuse, and 
 grants it of course where the fiduciary's bidding (in con- 
 sequence of his individual private interest being con- 
 cerned in obtaining the highest price), would promote the 
 great object of securing the most advantageous sale. 
 (1 Wh. & Tud. L. C. 167; Davoux v. Fanning, 2 
 Johns. Ch. 252, 261, 262 ; Dehon v. Rarey, 2 Saund. 61.) 
 5®. Doctrine touching the termination of the Relation of 
 Master and Servant. 
 
 The authority of the servant is terminated, (1), By ex- 
 press revocation ; (2), By the servant's death, or that of 
 the master ; (3), By a change in the condition of the 
 master ; (4), By the completion of the business, or by the 
 lapse of the time prescribed for its duration ; and (5), By 
 the occurrence of war between the countries to which the 
 principal and the agent respectively belong ; 
 W. C. 
 1'. Termination of Servant's authority by express Hevoca- 
 tion. 
 
 All mere authorities are in their nature revocable, and 
 cannot be made otherwise by the most express declara- 
 tions to the contrary. In order to be irrevocable, the 
 authority must be coupled with an interest in the subject 
 to which the agency relates, or must be given by way of 
 contract for a valuable consideration ; as, for example, 
 where the authority constitutes a part of a security for 
 money, &c. Hence, after advances made hy a factor, 
 the authority given him to sell the goods of the princi- 
 pal consigned to him, with a view to secure those ad- 
 vances, is not revocable. (2 Kent's Com. 644 ; 1 Pars. 
 Cont. 58 & seq. & n (h) ; Metcalfe v. Clough, 2 Man. & 
 Ry. (17 E. C. L.) 178 ; Smart v. Sandars, 5 Man. Gr. 
 & Scott. (57 E. C. L.) 918 ; Hunt v. Rousmanier, 8 
 Wheat. 201 ; Brown v. McGrau, 14 Pet. 494; Field v. 
 Farrington & al, 10 Wal. 149.) 
 
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224: MASTER AND SEKVANT. [bOOK I. 
 
 But notice of the revocation of authority must be given 
 to the servant or agent, and also to the public, and es- 
 pecially to the persons accustomed to deal with the ser- , 
 vant or agent as such ; and his bona fide acts until he re- 
 ceives such notice, and the hona fi,de transactions of 
 third persons with him as agent, in the absence of notice 
 to such persons, or to the public, through the newspapers 
 or otherwise, will be obligatory upon the master or prin- 
 cipal. (2 Kent's Com. 644; 1 Pars. Cont. 59-'60; 1 
 Tuck. Com. 93, B. I ; Spencer & al v. Wilson, 4 Munf. 
 135 ; Morris v. Terrell, 2 Eand. 6.) 
 2'. Termination of Servant's authority by his death, or that 
 of the master. 
 
 The death of the servant terminates the agency, of 
 coiirse, because the confidence is a personal one, and 
 cannot be transmitted to the personal representative; 
 and so also it is when the authority is joint to two or 
 more persons and one of them dies, the agency is ended, 
 unless it be expressly stipulated otherwise in the power, 
 or unless the power be coupled with an interest in the 
 subject matter, or be founded on a valuable considera- 
 tion. (1 Th. Co. Lit. 738-'9 ; Id. 344 ; 2 Kent's Com. 
 643.) 
 
 The death of the master terminates the agency, as it 
 terminates, in general, all powers, instantaneously and 
 absolutely, without reference to any notice to the agent, 
 or other persons, or the possibility of notice. The only 
 exception is where the power is coupled with an interest 
 in the subject matter. The fact that it is given for a 
 valuable consideration constitutes no exception to the 
 general rule ; for the act of the agent must ever be 
 done in the name of the principal (Combe's case, 9 Co. 76 
 b), and it would be absurd that an act should be done 
 in the name of a dead man. (2 Kent's Com. 646 ; 1 Pars. 
 Cont. 61-'2 ; 2 Th. Co. Lit. 340, 344 ; Hunt v. Eous- 
 manier, 8 Wheat. 201 ; Clayton v. Fawcett's Adm'rs, 2 
 Leigh, 23 ; Houston's Adm'r v. Cantril & al, 11 Leigh, 
 173 ; Shipman v. Thompson, Willes Rep. 105 ; Wynne 
 V. Thomas, Id. 565 ; Watson, &c. v. Eang, 1 Stark (2 
 E. C. L.) 421; S. C. 4 Camp. 274; Houston v. Rob- 
 ertson, 6 Taunt. 450; Blades v. Free, Ex'or, 9 B. & Cr. 
 (17 E. C. L.) 167; Smout v. Hberry, 10 M. & W. 1.) 
 
 It is obvious that this doctrine, although it seems to 
 be the logical result of well established principles, may 
 endanger consequences anything but convenient. Thus, 
 if one constitutes an agent with authority to provide 
 supplies for his family whUst he goes upon a distant voy- 
 age, and during his absence he dies in a remote region, 
 '^ Dignized by Microsoft® ^ ' 
 
CHAP. ZIY.J MASTEB AND 8EEVANT. 225 
 
 BO that intelligence of his death is not received for six 
 months, during all which period necessaries are furnished 
 the family by order of the agent, according to the doc- 
 trine in question the decedent's estate cannot be charged, 
 because the agency was revoked by his death (Blades v. 
 Free, 9 B. & Cr. (17 E. C. L.) 167); and it is certain 
 that the agent cannot be charged personally upon the^ 
 ■ contract, because he made it as agent only. (Smoot v. 
 nberry, 10 M. & W. 10). The loss, then, must fall, so 
 far as the contract is concerned, on the innocent trades- 
 man. The best solution seems to be that, although the 
 agent cannot be subjected upon the contract for the price 
 of the goods furnished, he may be, by a special action on 
 the case, for deceit, or by an action of trespass on the case 
 in assumpsit, on the ground that, having represented him- 
 self, however bona fide, as the agent, and in that charac- 
 ter obtained the goods, he is responsible for the truth of 
 the representation, either as for a fraud, constructive, if 
 not actual, or upon an implied contract that he was 
 clothed with the requisite authority. {Ante, p. 216; 
 Thompson v. Bond, 1 Campb. 6, 7.) This view is very 
 well sustained by the reasoning of the court in Smout 
 V. Bberry, 10 M. & W. 10, in respect to the agent's be- 
 ing liable to an action on the case for deceit. It is also' 
 in conformity with several of the older cases. Thus, in 
 Hern v. Nichols, 1 Salk. 289, Lord Holt held a merchant 
 liable in an action on the case for a deceit, where it ap- 
 peared that he had sold certain silk as of a particular 
 quality, SoMa_;?(?e believing it to be so, upon the statement 
 of his foreign correspondent, when it was, in fact, of an 
 inferior description; for, says Lord Holt, "seeing some- 
 body must be a loser by this deceit, it is more reason 
 that he that employs and puts a trust and confidence in 
 the deceiver should be a loser than a stranger." So, in 
 Schneider & al v. Heath, 3 Campb. 508, a ship was sold 
 '■'■with all faults''' by a particular description, which 
 turned out almost wholly untrue. The description was 
 prepared by an agent, who did not know the falsity of 
 it, and Mansfield, C. J., held that the sale must be va- 
 cated, for that it signified nothing " whether a man repre- 
 sents a thing to be difierent from what he knows it to be, 
 or whether he makes a representation which he does not 
 know at the time to be true or false, if in point 'of fact 
 it turns out to be false." And to a like eifect was the 
 opinion of Lord Mansfield in Pawson v. "Watson, Cowp. 
 788. So Lord Denman, in Evans v. Collins, 5 Ad. & 
 El. IS.. S, (48 E. C. L.) 819, says, "the sufferer is wholly 
 free from blame ; bat tiie Partv who caused the loss, 
 
226 MASTER AJSrp'sEEVANT. [BOOK I. 
 
 though charged neither with fraud nor negligence, must 
 have been guilty of some fault when he made a false re- 
 presentation. He was not bound to make any state- 
 ment, nor justified in making any which he did not know 
 to be true ; and it is just that he, not the party whom 
 he has misled, should abide the consequences of his mis- 
 conduct." This judgment, however, was reversed by the 
 Com-t of Exchequer-Chamber (5 Ad. & El. N. S. (48 'E. C. 
 L.) 827) ; and it must be admitted that the weight of later 
 English authority is decidedly in favor of the proposition 
 that in order to sustain an action for a deceit, the false 
 representation must have been communicated for a de- 
 ceitful purpose, or have been known to be false. (Corn- 
 foot V. Fowke, 6 Excheq. 358 ; Meens v. Hayworth & al, 
 10 M. & W. 147; Taylor v. Ashton, 11 M. & W. 401 
 Wilson V. Fuller, 3 Ad. & El. JST. S. (43 E. C. L.) 639 
 Collins V. Evans, 5 Ad. & El. N. S. (48 E. C. L.).826 
 Pasley v. Freeman, 3 T. E.. 51 ; Haycraft v. Creasy, 2 
 East. 92.) The American cases, on the other hand, 
 favor the conclusion that an assertion, as of one's ovm 
 knoviledge, of some matter of fact which is not true, 
 whether the person knew anything of the fact or not, 
 renders him equally liable. " Such an averment has aU 
 the elements and all the consequences of a fraudulent 
 representation. (Hazard v. Irvin, 18 Pick. 96, 109; 
 Page & al v. Bent & als, 2 Mete. 371, 374; Lobdell v. 
 Baker, 1 Id. 193, 201; Ballow v. Talbot, 16 Mass. 461; 
 Stene v. Denny, 4 Mete. 151; Gough v. St. John, 16 
 "Wend. 646.) In England, therefore, the action would be 
 trespass on the case in assumpsit, upon the implied un- 
 dertaking that the supposed agent had a valid authority, 
 whilst with us it might be either an action of assumpsit 
 or an action on the case for the deceit. 
 3'. Termination of the Servant's authority by a change in 
 the condition of the Master or Priacipal. 
 
 Such a change as determines the power of the princi- 
 pal to control the subject matter of the agency puts an 
 end to the agent's authority. Prominent amongst these 
 changes are bankruptcy, lunacy, and marriage in case of 
 a female, all of which extinguish the agency. But in 
 these cases also, as in others, the revocation or determi- 
 nation of thS agent's power may be arrested by its being 
 • coupled with an interest in the subject matter, or founded 
 on valuable consideration, whereby a lien on the subject 
 may be created, even in case of a bankrupt. (2 Kent's 
 Com. 644-'5 ; Alloy, &c. v. Hotson, 4 Camp. 326.) 
 
 In case of lunacy, the existence of the lunacy must be 
 
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CHAP. XIV.J MA8TEK AJSTD SERVANT. 227 
 
 established by a judicial sentence before it will operate 
 to revoke the power. (2 Kent's Cora. 645.) 
 
 4*^. Termination of the Servant's authority by the comple- 
 tion of the business, or iy the lapse of time pres(?ribed for 
 its duration. 
 
 A servant or agent with power to sell goods is functus 
 officio as soon as the sale is made, and cannot then change 
 the terms so as to bind the principal ; and so, whilst his 
 declarations at the time of sale are good evidence against 
 the principal, as we have seen, yet those made after- 
 wards, although during the continuance of the agency, 
 are inadmissible. The agent himself, however, is of 
 course a competent witness to prove the facts at any 
 time. (Blackburn v. Schbles, 2 Camp. 343 ; Helyear 
 V. Hawke, 5 Esp. 74. Pete v. Hague, 5 Esp. 134; Cli- 
 quot's Champagne, 3 Wal. 140 ; Auditor v. Johnson, 1 
 H. & M. 540 ; Hunt v. Eousmanier, 8 Wheat. 174 ; 1 
 Am. L. C. 567.) 
 
 5*. Termination of the Servant's authority by the occur- 
 rence of loar between the countries of which he and the 
 Master are respectively subjects. 
 
 No transactions of trade or commercial intercourse 
 are permitted between the subjects of belligerent States, 
 without special license, in consequence of the mischief and 
 abuses to which such intercourse would be liable. Hence 
 war, for the most part, tei'minates all agencies (unless, 
 perhaps, where they are coupled with an interest), and all 
 partnerships; but not so as to preclude the continuance 
 of an agency in the enemy's country in order to collect 
 debts and to preserve property. (Hale v. Wall, 22 Grat. 
 430; Manhattan Life Ins. Co. v. Warwick, 20 Grat. 637 & 
 seq.; Ward v. Smith, 7 Wal. 447,452; 1 Pars. Cont. 
 178; Potts V. Belt, 8 T. K. 548; The Hoop, 1 Rob. 
 Adm. R. 167 ; Griswold v. Waddington, 16 Johns. 438 ; 
 Scholefield v. Eichelberger, 7 Pet. 59 '-L) And this prin- 
 ciple applies as well to civil as to international wars. 
 (Billgerry v. Branch & Sons, 19 Grat. 393.) 
 6®. Doctrine touching the liability of the Master, where 
 government is concerned ; W. C. 
 
 1*. Liability of Government for the tortious acts and de- 
 faults of its Servants. 
 
 The government is bound, like any other principal, 
 by the contracts of its agents, but upon considerations of 
 public policy, is never answerable for their tortious acts 
 or defaults. The maxim respondeat superior is not appli- 
 cable in such cases. (Lane v. Cotton, 1 Ld. Eaym. 646 ; 
 Whitefield v. Ld. De Spencer, Cowp. 754, 763; City of 
 Eichmond^jjgl/ggg'gy^fg/^gJ^^rat. 378; Weightman 
 
228 MASTER AND SERVANT. [BOOK I. 
 
 V. City of Washington, 1 Black. 40; Chicago City v. 
 Eobins, 2 Black. 418.) 
 2'. Liability of superior Government-ofiicer for act or de- 
 fault of Subordinate. 
 
 "When the subordinate is himself a government-officer 
 (in contradistinction to a private servant of the superior), 
 whether nominated by the superior or not, the latter is 
 not responsible for the subordinate's act or default, such 
 subordinate being not an agent of his, but of the govern- 
 ment. Hence the postmaster-general is not liable for 
 losses arising from the a8t or default of his deputies, nor 
 is a deputy postmaster answerable for the default of an 
 official assistant, although appointed by himself. (Lane 
 V. Cotton, 1 Ld. Raym. 646; Whitworth v. Ld. De 
 Spencer, Cowp. 754 ; Dunlop. v. Monroe, 7 Cr. 242 ; 
 Wilson V. Beverly, 1 Am. L. C. 621.) 
 
 On the other hand, if the subordinate be not a govern- 
 ment-officer, but the superior's private servant, the 
 maxim of respondeat superior applies, and the master is 
 responsible for his acts and defaults. (Wilson v. Bev- 
 erly, 1 Am. L. C. 621.) Thus, a mail-carrier, being the 
 private agent of the contractor, and not a government- 
 officer, the contractor is liable for any injury sustained 
 by third persons, through the carrier's negligence or 
 default. (Sawyer v. Corse, 17 Grat. 230.) 
 
 This distinction is not only logical, seeing that the 
 subordinate, when a public officer, is the agent, not of 
 his chief, but of the government, but it is also rendered 
 needful by sound policy, as well as by justice. For 
 who otherwise would consent to take the responsibility 
 of a public office, wherein he must have assistants, and 
 ia administering which the largest fortune might be 
 hopelessly wrecked by the acts of persons whose conduct 
 the superior cannot possibly, practically and effectively 
 supervise and control. Thus is explained the res- 
 ponsibility of the high-sheriff for the default of his de- 
 ■putj(ante p. 97-8,5'',) for originallythe deputy was merely 
 the principal's servant, and not a public officer; and the 
 doctrine has been silently retained, notwithstanding the 
 deputy-sheriff is now to some purposes a public officer. 
 (Shepherd v. .Lincoln, 17 Wend. 250; Wilson v. Beverly, 
 1 Am. L. C. 621-'2.) 
 
 But whilst the superior is not liable for the official 
 delinquency of his official subordinate public officer, he is 
 answerable for not properly superintending, and perhaps 
 for fraudulent neglect in appointing him. (Dunlop v. 
 Monroe, 7 Cr. 242; Wilson v. Beverly, 1 Am. L. C. 621.) 
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CHAP. XIV.] MASTER AKD SERVANT. 229 
 
 3'. Liability of a Municipal Corporation for the acts and 
 defaults of its servants. 
 
 In the exercise of private franchises, which are often 
 bestowed upon municipal corporations, those bodies are 
 liable, like any other individual, for the acts and de- 
 faults of their servants, even though not appointed 6y 
 themselves. But whilst it is administering the discre- 
 tionary governmental power belonging to it, such a corpora- 
 tion enjoys the exemption of government for responsi- 
 bility for its own acts, and the acts of its corporate of- 
 ficers. Hence a city-corporation is not liable for any 
 defaults of its officers in the management of a small-pox 
 hospital established by the city, (City of Richmond v. 
 Long's Adm'rs, 17 Grat. 379) ; nor for the non-feasance 
 of a corporate officer, in omitting to take a bond of a 
 party, as required by the ordinance of the corporation, 
 (Fowle V. Alexandria, 3 Pet. 398, 409); nor at common law, 
 for not removing obstructions from streets, &c., (City of 
 Providence v. Clapp, 17 How. 167). But it is hable 
 for the neglect of its agents in connection with gas-vSorks, 
 (Scott V. City of Manchester, 2 Hurlst. & Norm. 204) ; 
 and by statute, it may be chargeable with defaults in 
 connexion with the repairs of sea-hanks and mounds, 
 (Mayor of Lyme Eegis v. Henley, 3 B. & Aid. (23 E. 
 C. L.) 77); or of -Snd^es, ("Weightman v. City of Wash- 
 ington, 1 Black 39); or of streets, (City of Chicago v. 
 Kobbins, 2 Black 418), which its charter obliges it, as 
 an acknowledgment for the privileges conferred, to keep 
 in repair, (1 Am. L. C. 621; Mayor of Lyme Pegis v. 
 Henley, 3 B. & Aid. (23 E. C. L.) 77; S. C, 2 Clark & 
 Fin. 331; Water Co. v. Ware, 16 Wal. 57.) 
 7®- Doctrine touching the Liability of Employer for the de- 
 fault, &c., of a Contractor. 
 
 The master is responsible for the acts of his servant, or 
 of a subordinate agent, however remote, done in the, 
 course of his employment, because the servant or sub- 
 agent is under his control. As an independent contractor 
 is not subject to his control, it follows that the employer 
 is not in general responsible for him, not even though the 
 , acts of the contractor, or his servants, amount to a public 
 nuisance, provided the work contracted for is not itself a 
 nuisance, nor must necessarily, in the ordinary mode of 
 doing it, occasion an injury, or an obstruction to a right. 
 (1 Pars. Cont. 89 and seq. ; Quarman v. Burnett, 6 M & 
 Wels. 499 ; Eapson v. Cubitt, 9 Id. 710 ; Milligan v. 
 Wedge, 12 Ad. & El. (40 E. C. L.) 737; Reedie v. Rail- 
 way Co. 4 Excheq. 244, 257 ; Knight v. Fox, 5 Excheq. 
 721; Overt^^^^^F^gen^n^^n^^m. B. (73 E. C. L.) 
 
230 HUSBAilD AND WIFE. [bOOK I. 
 
 867; Chicago city v. Eobbins, 2 Black 418, 428; Eob- 
 ■bins V. Cliicago, 4 "Wal. 657, 679 ; Water Co. v. Ware, 
 16 Wal. 676-'7; EUis v. Sheffield Gas Co., 2 El. & 
 Blackb. (75 E. C. L.) 767; Newton v. ElHs, 6 El. & Bl. 
 (85 E. C. L.) 124; Hole v. R'lway Co., 6 H. & Norm. 
 497). See Virginia Cent. El. Ed. Co. v. Sanger, 15 
 Grat. 241-'2. 
 8®. Doctrine touching the Liability of the owner of Eeal 
 Property for its use for hurtful purposes. 
 
 The responsibility of the owner of real property, when 
 used for hurtful purposes, seems to depend on, and be 
 measured by, his power of control. If one let his land 
 with a nuisance upon it, or for a purpose which must result 
 in nuisance, he is liable for the consequences. Indeed, it 
 may be stated generally, that the proprietor , of land is 
 bound to see to it that his property is so used and man- 
 aged, whether by himself and his own immediate servants, 
 or by contractors and then* servants, as to produce no in- 
 jury to others. (Sly v. Edgely, 6 Esp. 7 ; Laugher v. 
 Pointer, 5 B. & Cr. (12 E. C. L.) 547; Eandleson v. 
 Murray, 8 Ad. & El. (35 E. C. L.) 109 ; Eapson v. Cu- 
 bitt, 9 M. & Wels. 713.) 
 
 CHAPTER XV. 
 
 Of Husband and Wife. 
 
 2^. The Eelation of Husband and Wife. 
 
 In discussing the doctrine connected with the relation 
 of husband and wife, it will be expedient to observe, (1), 
 The definition and character of marriage ; (2), The method 
 of contracting marriage ; (3), The modes whereby marriage 
 is dissolved ; and (4), The legal consequences of marriage ; 
 W. C. 
 1*. The Definition and Character of Marriage. 
 
 Marriage is defined to be a contract in due form of 
 law, whereby a free man and a free woman mutually en- 
 gage to live with each other during their joint lives, in 
 the union which ought to subsist between husband and 
 wife. (Bac. Abr. Marr. & Div. ; Id. (B).) 
 
 Husband and wife, in the old law books, are styled, in 
 the law-French dialect, baron and feme, and the wife, in 
 in the same dialect, is called a feme covert [foemina eo- 
 operta), as being under the protection and cover of her 
 husband, o&^p^haM Jw^naln^to the Latin nupta (a nu- 
 
CHAP. XV.j HUSBAND AND WIFE. 231 
 
 bendo, i. e., tegendo), because she was led to her husband's 
 home covered with a veil. Hence her condition during mar- 
 riage is called coverture. (1 Bl. Com. 432, 442, & n (38).) 
 
 The legal existence of the wife is suspended during 
 marriage, or at least is merged in that of her husband ; 
 and upon this principle of an union of persons in husband 
 and wife (" they twain shall be one flesh"), depend most 
 of the legal rights, duties, and disabilities that belong to 
 either of them by the marriage. (1 Bl. Com. 442.) 
 
 The contract of marriage is regarded by the common 
 law as a purely civil contract, but as one peculiarly and 
 most intimately affecting the interest of society. Sir 
 James Mackintosh, with great elegance and force, insists 
 that the chief supports of social order are the two institu- 
 tions of property and marriage ; — property, whereby man 
 securely enjoys the fruits of his pains-taking labor ; and 
 marriage, whereby the society of the sexes is so wisely 
 ordered as to make it " a school of the kind affections, 
 and a fit nm-sery for the Commonwealth." " Almost all 
 the relative duties of human life," says he, " will be found 
 more immediately or remotely to arise out of these two 
 great institutions. They constitute, preserve, and improve 
 society. Upon their gradual improvement depends the 
 progressive civilization of mankind; on them rests the 
 Tvhole order of social life." (Mackintosh's Essays, 36 ; 
 see also 2 Kent's Com. 75 ; Montesq. Sp. Laws, B. xxvi. 
 c. 13.) 
 S®. Method of Contracting Marriage. 
 
 The law, whilst it regards the contract of marriage with 
 reverence, yet treats it as' it does all other contracts ; 
 holding it to be valid in all cases where the parties are 
 willing and able, and actually do contract with the forms 
 and solemnities required by law, and in those cases only. 
 (1 Bl. Com. 433.) 
 
 W. c. 
 
 1^ Willingness of the Parties to contract : W. C. 
 1^. The General Doctrine. 
 
 The controlling maxim is, " Consensus nan concubitus 
 nuptias facit." (1 Bl. Com. 434.) 
 28. Marriage-brocage Contracts. 
 
 Marriage-brocage contracts are contracts entered into 
 with a view to bring about or forward a marriage, for 
 a reward, to be therefor paid to the broker who under- 
 takes to negotiate it ; and of such consequence is it 
 deemed that marriages should proceed always from 
 free choice, that all such contracts, whether the security 
 were executed before or after the marriage, are utterly 
 ■mid, as Ii3^^)g-^fi5^yp^&/^licy, (and so incapable 
 
232 HUSBAITD AKD WIFE. [bOOK I. 
 
 of confirmation) ; and a court of equity will decree any 
 bond or other security founded on such a transaction, 
 to be given up and cancelled ; and in some cases has 
 decreed money actually paid to be refunded. (Bac. 
 Abr. Marr. & Div. (E), 3 ; 1 Stor. Eq. § 263, &c.) 
 2'. Capacity of the parties to Contract. 
 
 In general, all persons are able to contract themselves 
 in marriage, unless they labor under certain disabilities, 
 partial or entire. (1 Bl. Com. 434.) Let us consider: 
 (1), The doctrine in England as to disabilities to contract 
 marriage; and (2), The>doctrine in Yirginia; 
 W. C. 
 1^. Doctrine in England as to disabilities to contract 
 Marriage. 
 
 Disabilities to contract marriage are in England 
 either (1), Canonical impediments, rendering the mar- 
 riage voidable J or (2), Legal disabilities, rendering it 
 ipso facto void; 
 W. C. 
 1'^. Canonical impediments. 
 
 Let us consider, (1), Why they are called canonical 
 impediments; (2), The classes of canonical impedi- 
 ments; and (3), The effect of canonical impediments; 
 W. C. 
 1'. Why they are called Canonical impediments. 
 
 Because they are derived from, and determined 
 by the canon law. They are styled also ecclesiastical 
 impediments, because they were long cognizable in 
 England in the ecclesiastical courts. They make the 
 marriage voidable only, and not void, so that they are 
 properly denominated impediments, rather than disa- 
 bilities. The cognizance of the ecclesiastical or 
 church courts in such cases, at common law, is 
 founded partly upon the Komish idea that marriage 
 is a sacrament, but chiefly upon the imputed sinful- 
 ness of the connection, which it is the duty of the 
 church, through its tribunals, pro salute animarum 
 (for the safety of the souls of the parties), to dissolve 
 and put an end to. (1 Bl. Com. 434.) 
 
 Since January 11, 1858, the jurisdiction anciently 
 possessed by the ecclesiastical courts exclusively, 
 over matrimonial causes, has (by the Stat. 20 & 21 
 Yict., c. 85, and some amendatory acts), been trans- 
 ferred to a new court, called the " Court for divorce 
 and matrimonial causes." ' (Wms. Pers. Prop. 492.) 
 2'. Classes of Canonical impediments; W. C. 
 
 The several classes of canonical impediments are 
 (^)' ^'n^^MS^fii)nc9§mW^'^^^'^' or relationship 
 
CHAP. XV.] HUSBAND AND WIFE. 233 
 
 by blaod ; (3), Affinity, or connexion by marriage ; 
 
 and (4), Incurable impotency of body; 
 
 W. C. 
 l'^. Pre-contract. 
 
 By pre-contract is signified a previous contract of 
 marriage, per verba de presenti, without consumma- 
 tion ; (e. g., " I do now marry you," -or " You and I 
 are now man and wife," &c.) ; or per verba de futuro, 
 {e. g., " I will marry you "), accompanied or fol- 
 lowed by consummation. In both these cases at 
 common law the ecclesiastical courts were accus- 
 tomed to compel a celebration of the marriage in 
 the face of the church, even though meanwhile one 
 of the parties had contracted a marriage with some 
 one else. If, however, the contract were per verba 
 de futuro, without consummation, it seems that the 
 ecclesiastical courts never went further towards co- 
 ercing the parties to celebrate the marriage in the 
 face of the church than to admonish them so to do, but 
 without invalidating any intervening marriage. (1 
 Bl. Com. 439 ; Bac. Abr. Marr. & Div. (B) ; Jac. 
 L. Diet. Marriage ; Bunting v. Lepingwell, 4 Co. 
 29 a, n (A) ; Holt v. Ward, 2 Str. 937.) 
 
 But a private contract of marriage, though per 
 verba de presenti, and accompanied by consumma- 
 tion, whilst indissoluble by the parties themselves, 
 and at common law affording to either the power 
 of compelling an actual marriage, never in itself 
 constituted a full and complete marriage for all pur- 
 poses, unless solemnized by a pei'son in holy orders; 
 at least not since about the year 1200, when Pope 
 Innocent III issued a bull requiring it. Thus, with- 
 out the priest's blessing, the wife, by the common 
 law, is not entitled to dower, the husband to cur- 
 tesy, nor the issue to inherit. (Bac. Abr. Marr. & 
 Div. (C) ; 2 Bright H. & Wife, 370 & seq. 397-'8, 
 App'x ; Dalrymple v. Dalrymple, 2 Hagg. 64 & 
 seq. ; Queen v. Millis, 10 CI. & Fin. 584; Cather- 
 wood V. Caslon, 13 Mees. & W. 263.) 
 
 The common law, however, upon this subject of 
 pre-contract, has been materially changed in Eng- 
 land by statute. Thus, by 32 Hen. YIII, c. 38, it 
 is provided that all marriages solemnized in the face 
 of the church, and consummated, shall be indissolu- 
 ble, notwithstanding any pre-contract not consum- 
 mated; and although this branch of that statute 
 was repealed by 2 and 3 Edw. YI, c. 23, it was in 
 
 effect restored again by 26 Geo. II, c. 33, and 4 
 Digitized bfMicroSoft® ' 
 
234 HUSBAND AND WIFE [bOOK I- 
 
 Geo. lY, c. 76, whereby it is enacted that the ec- 
 clesiastical courts shall not compel the celebration 
 of marriage in facie ecclesice, by reason of any con- 
 tract of matrimony, whether per verba de presenti or 
 de fuiuro ; and thus pre-contract is understood to be 
 in England no longer a cause of avoiding a mar- 
 riage, but merely a ground for an action for dam- 
 ages against the party in default. (1 Bl. Com. 435 ; 
 2 Steph. Com. 281.) 
 2^. Consanguinity. 
 
 Consanguinity is relationship hy blood, and b^ 
 
 Statute 5 and 6 Wm. lY, c. 54, is constituted a legal or 
 
 civildisability. (1 Bl. Com. 434 ; 2 Steph. Com. 285); 
 
 W. C. 
 
 1^. The degrees of kindred within which Marriage is 
 
 prohibited. 
 
 The law of England follows substantially the 
 Levitical law (Levit. xviii. 6, &c.), of which the 
 general scope and design are to forbid marriages 
 between persons related in the ascending and de- 
 scending liaes infinitum, and also between collateral 
 relatives to the third degree reckoned by the civil 
 law; collaterals of the fourth degree — that is, iirst 
 cousins, being the nearest blood relations who are 
 permitted to intermarry, relatives of the haK-blood 
 standing in this respect on the same footing as 
 those of the whole blood, and bastards as those 
 who are legitimate. (Bac. Abr. Mar. & Div. (A); 
 1 Bl. Com. 435, n's (4) and (5); 2 Burn's Eccles. 
 Law, 441.) 
 2^. The Beasons (apart from the Divine sanction) for 
 the prohibition of Marriage between near kindred. 
 Bac. Abr. Mar. & Div. (A); Montesq. Sp. Laws, 
 B. XXVI, c. 14; Grot, de Jur. Bel. &c. B. II, c. 
 5, § 12 to 14 ; Synops. Crim. Law, 171 ; 
 W. C. 
 1™. The corruption of Manners to which such Mar- 
 riages would lead. 
 
 The necessary intimacy which exists amongst 
 very near relations, members of the same family, 
 might be expected to fill numberless households 
 with lewdness, if a commerce of love, to be sanc- 
 tioned by marriage, were authorized between per- 
 sons so connected. (Bac. Abr. Mar. & Div. (A).) 
 2™. The Subversion of the natural duties between 
 Parents and Children, &c. 
 
 Marriages between parents and children shock 
 ^^^iyi^m^})^br^mm^'^^' ^^ ^^ll ravage as 
 
CHAP. XV.J HUSBAND AND WIFE. 235 
 
 civilized. Whilst destroying the reverence with 
 which the child should regard the parent, they 
 would introduce jealousies and discords not less 
 fatal to domestic peace than the connection itself 
 would be to domestic purity. And marriages 
 between children and the brothers and sisters of 
 parents are almost as universally condemned by 
 the human race, and would be scarcely less mis- 
 chievous. 
 3". The Deterioration of the race, physically and 
 otherwise. 
 
 It is'observed that, in brute creatures, in order 
 to improve or even to continue the species, it is 
 needful to cross the strain; and where, in the 
 case of human beings, near relations, even of the 
 unprohibited degrees, intermarry for several gene- 
 rations, the deterioration, physically, mentally 
 and morally, is almost always marked, and some- 
 times frightful. (Bac Abr. Marr. & Div. (A).) 
 31^. Affinity. , 
 
 Affinity means relationship by marriage; and, like 
 consangimity, is by Statute 5 & 6, Wm. TV. c. 54, 
 converted into a legal or civil disability. (1 Bl. Com. 
 434; Steph. Com. 285.) 
 
 The degrees of affinity within which marriage is 
 prohibited, are in England (as they are in Leviticus) 
 the same as tlie degrees of consangunity. In order 
 to pei'fect the union of marriage, it is deemed neces- 
 sary that the husband should take his wife's rela- 
 tions as his own, and so vice versa. Thus, the 
 husband can no more marry the wife's sister than 
 his own, and the wife is as much forbidden to marry 
 her husband's nephew as her ovra. But the hus- 
 band's blood relations do not stand thus in regard 
 to the wife's blood relations. Hence two brothers 
 are not prohibited to marry two sisters, nor father 
 and son to marry mother and daughter. (1 Bl. 
 Com. 435, n (5); Bac. Abr. Marr. & Div. (A).) 
 
 In Virginia the restrictions upon the marriage of 
 persons connected by affinity have been much re- 
 laxed ; — it would seem beyond what a wise policy 
 can commend. Thus, marriage is allowed with 
 the consort's brother or sister, nephew or niece, 
 with the wife of one's nephew, with the aunt's hus- 
 band and imcle's wife. (Y. C. 1873, c. 104, § 9, 10.) 
 4:^. Incurable Impotency of Body. 
 
 One principal object of marriage is the procreation 
 
 of children, and if.the incurable impotency of -either 
 DigitizeaDy Microsoft® ^ ■' 
 
236 HUSBAND AND WIFE. [bOOK I- 
 
 party, existing at the time of marriage, frustrates 
 this expectation, the marriage is voidable, because 
 the end of tl^e contract cannot be answered. And 
 if, after the marriage has been pronounced void, 
 the party marries another, and has issue, that fact 
 does not invalidate the sentence of divorce, nor the 
 second marriage, for one may be habilis et inhabilis 
 diversis iemporibu3. It is immaterial whence the 
 impotence proceeds, whether it be congenital, or has 
 arisen from disease or casualty. If, however, it be 
 a natural defect, »it is in general more likely to be 
 permanent and incurable. 'But it must at all events 
 have existed at the time of the marriage, aud must 
 not be supervenient. Nor is it available if the party 
 soliciting a separation by reason of it knew of its 
 existence at that time, whether in himself or in the 
 consort. (Bac. Abr. Marr. & Div. (F); Bury's 
 Case, 6 Co. 98, b & n (A).) 
 3'. The Effect of the Canonical Impediments; W. C. 
 1"^. The Effect in respect of Divorce. 
 
 The canonical impediments make the marriage 
 not void, but voidable only, and the avoidance must 
 be by divorce in the life-time of both parties, for the 
 Ecclesiastical Courts (which, until recently, for many 
 ages have had possession of matrimonial causes in 
 England), proceed upon the idea of the sinfulness 
 of the connection, and separate the parties pro salute 
 animarum, a reason which of course ceases to be 
 applicable when the connection has been dissolved 
 by death. Hence, where a man had married his 
 first wife's sister (a marriage within the prohibited 
 degrees by the English statute), and the Bishop's 
 Court was proceeding, after her death, to annul the 
 marriage, and bastardize the issue, the Court of 
 King's Bench interposed by writ of Prohibition, and 
 obliged the Ecclesiastical Court to desist. 
 
 But if, during the life-time of both parties, a divorce 
 is decreed for any of the existing canonical impedi- 
 ments (pre-contract being admitted not to be one), 
 it invalidates the marriage ab initio, and by logical 
 consequence bastardizes the issue. (1 Bl. Com. 
 4:34:-'5 ; Elliott v. Gurr, 2 PhiUim. (1 Eng. Ec. E.) 16.) 
 2^. Effect of the Canonical Impediments, in respect of 
 Issue. 
 
 If a divorce be decreed for a canonical impedi- 
 ment, during the life-time of both parties, as has been 
 just stated, the issue is thereby bastardized; but the 
 spiritij5^^g^^^5j^^^§^^xplained, wffl not be 
 
■OHAP. XV.] HUSBAND AND WIFE. 23T 
 
 permitted to bring about that result by divorce 
 after tbe death of either. (1 Bl. Com. 435; Har- 
 ris V. Hicks, 2 Salk. 548.) 
 2^. Legal or Civil Disabilities. 
 
 These disabilities are created, or at least enforced, 
 by the municipal laws, and are recognized in the tem- 
 poral courts. Some of them are doubtless grounded 
 on natural law, but they are regarded by the laws of 
 the land, not so much as involving any moral offence, 
 as on account of the civil inconveniences they draw 
 after them. (1 Bl. Com. 435.) 
 
 The classes of legal or civil disabilities in England 
 are (1), Prior marriage; (2), Want of age; (3), Want 
 of reason; and (4), Want of consent of parents and 
 guardians ; 
 W. C. 
 1*. The Classes of Legal or Civil Disabilities; W. C. 
 1'. Prior Marriage. 
 
 That is, having another husband or wife Living ; 
 in which case, besides the penalties consequent 
 upon it as a felonious offence, (under the name of 
 bigamy, although polygamy would be the fitter de- 
 signation,) the second marriage is to all intents and 
 purposes absolutely void, polygamy being condemned 
 both by the law of the Jfew Testament, (Matt. xix. 
 4 to 9 ; 1 Cor. vii. 4,) and by the policy of all pru- 
 dent States. (Grrot. de Jur. Bell. &c., B. II, c. V, 
 19; 1 Bl. Com. 436.) 
 2*^- Want of Age. 
 
 As this avoids (or at least renders voidable), all 
 other contracts, on account of the imbecility of 
 judgment in the party contracting, a fortiori ought 
 it to avoid, or render voidable, this the most impor- 
 tant contract of any. 
 
 The age of consent to actual marriage at com- 
 mon law, is fourteen in males, and twelve in females ; 
 and if the parties are under those ages respectively, 
 the marriage is only inchoate, and may be avoided 
 by either of them upon arriving at the age of con- 
 sent, without any divorce or sentence of the spiri- 
 tual court. If, however, upon attaining the age of 
 consent, they continue together, they need not be 
 married again. 
 
 If one party be of the age of consent, and the 
 other under it, when the latter comes to the proper 
 age, either at common law may disagree to the mar- 
 riage, upon the principle that there must be mutu- 
 ality of Qbligationj^. The^ctrine is incontroverti- 
 
238 HUSBAND AND WIFE. [bOOK I. 
 
 ble at common law in respect to actual marriage, 
 but it is in direct conflict with the principle which 
 governs other contracts of infants, including a con- 
 tract to marry in futuro. The general principle is 
 that, whilst an adult is bound by a contract, an in- 
 fant party thereto may avoid it at his election. (1 
 Bl. Com. 436 ; 2 Kent's Com. 78 ; Holt v. "Ward, 
 2 Str. 93T-; postjp. 241-'2, 2'.). And this last-named 
 general principle is now established in Virginia by 
 Statute. (Y. C. 1873, c. 105, § 4. 
 3*^. Want of Eeason.- 
 
 Without a competent share of understanding at 
 the time, neither the matrimonial nor any other 
 contract is valid, but of course it is not liable to be 
 avoided by a subsequent privation of reason. There- 
 is the same, and no more,, difficulty in determining 
 whether there is sufficient intelligence to deal with 
 marriage as in the common affairs of life. Hence, 
 although a marriage with an idiot or lunatic, (ex- 
 cept in a lucid interval), is at common law per se 
 void, without any decree of divorce, yet for the 
 good of society, as well as for the peace of mind of 
 all concerned, it is expedient and allowed that the 
 nullity of the marriage shall be ascertained by the 
 sentence of a court of competent jurisdiction, which 
 in England is the court ecclesiastical. (1 Bl. Com. 
 438; 2 'Kent's Com. 76; Bayard v. Morphew, 2 
 Phill. 321 ; Portsmouth v. Portsmouth, 1 Hagg, 
 (3 E. C. E.) 155.) 
 4^^. Want of Consent of Parents and Guardians. 
 
 This disability is purely statutory. By the com- 
 mon law, if the parties themselves were of the age 
 to consent, there wanted no other concurrence to 
 make the marriage valid ; and this was in accord- 
 ance with the canon law. 
 
 The marriage-acts in England require the con- 
 sent of the parents or guardians, wherever the par- 
 ties are under twenty-one and not-widowed, and the 
 statute 26 Geo. H, e. 33, avoided the marriage if such 
 consent were not had. The subsequent statute of 4 
 Geo. lY, c. 76, is more lenient ; and whilst it inflicts 
 penalties for the non-observance of its provisions, it 
 does not invalidate the marriage, being construed to 
 be merely directory. Such is understood to be also 
 the effect of the later statutes of 6 & 7 Wm. lY, c. 
 85 ; 7 Wm. lY, and 1 Yict., c. 22 ; and 3 & 4 Yict., 
 c. 72. (1 Bl. Com. 437-'8, & n (17) ; 2 Steph. Com. 
 2«« ' ^bhAkcl¥y'l^c%PoM^) 5 Rex v. Bramley, 
 
CHAP. XV.j HUSBAND AND WIFE. 239 
 
 6 T. E. 331 ; Eex v. Birmingham, 8 B. & Or. (15 E. 
 C. L.)29.) 
 2\ Effect of Legal or Civil Disabilities ; W. C. 
 1*. Effect as to the Marriage. 
 
 The legal disabilities make the marriage void ab 
 initio, and per se, without any sentence of divorce ; 
 the connection being esteemed a meretricious, and not 
 a matrimonial union. However, for the reason al- 
 ready stated (ante p. 238, 3''), it is allowed, and is 
 expedient to obtain a decree of divorce, judicially 
 ascertainiag the facts, and pronouncing the legal 
 consequence. (1 Bl. Com. 436 ; Bayard v. Morphew, 
 2 Phillim. (1 Eng. Ec. K.) 321.) 
 2*- Effect of the legal disability as to the Issue. 
 
 The issue at common law is bastardized, of 
 
 course, that being the logical result of the absolute 
 
 invalidity of the marriage ab initio. (1 Bl. Com. 436.) 
 
 2*. Doctrine in Virginia touching the Capacity to contract 
 
 Marriage. 
 
 As in Virginia we have no ecclesiastical courts, it 
 will be expedient to make a classification of incapacities 
 for marriage, somewhat different from that found in 
 the English writers, and yet based on the same essen- 
 tial diversity, discriminating namely between impedi- 
 ments which render a marriage voidable, by the sentence 
 of a court of common jurisdiction, and disabilities which 
 make it void without any judicial sentence whatever. 
 And it should be observed, that whether the marriage 
 be absolutely void, or voidable only, the issue is with us 
 expressly declared to be legitimate. (V. C. 1873, c. 119, 
 §T.) 
 l'^. Impediments which render a Marriage voidable in 
 Virginia. 
 
 We shall find some differences in the enumeration 
 of these impediments, from the corresponding canoni- 
 cal class in England. Thus pre-contract is understood 
 not to exist with. us, as, indeed, it has ceased to exist 
 in the mother-country {ante p. 233-'4, 1''), since the 
 statute 26 Geo. II, c. 33 (A. D. 1Y54). Want of rea- 
 son also is here classed with the impediments, instead 
 of the disabilities; and several impediments, which 
 did not exist at common law, have been added in Vir- 
 ginia by statute. (1 Tuek. Com. B. I, p. 94; 2 Steph. 
 Com. 281.) 
 
 The impediments which, existing at the time of the 
 marriage, render it voidable in Virginia, are six in 
 number, namely : (1), Natural or incurable impotency 
 
 of body at the time of the marriage : (2), Consan- 
 "^Digitized by Microsoft® ^ ' ^ ■" 
 
240 HUSBAND AND WIFE. [bGOK I. 
 
 guinity and affinity ; (3), "Want of reason ; (4)^ Con- 
 viction before marriage of an infamous offence, with- 
 out the knowledge of the other party ; (5), Pregnancy 
 of the wife at the time of the marriage, without the 
 husband's knowledge, by some person other than him- 
 self; and (6), Notorious prostitution of the wife, prior 
 to the marriage, without the husband's knowledge. 
 (V. C. 1873, e. 105, § 6, 1; Id. c. 104, § 9, 10.) 
 W. C. 
 1". Natm-al or incurable Impotency of Body, existing 
 at the time of Marriage. 
 
 The reasons for this doctrine, and the doctrine 
 ■ itself, are the same as at common law. (Ante p. 
 
 236, 4'^; V. C. 1873, c. 105, § 6.) 
 2'. Consanguinity and Affinity. 
 
 The general principles are the same as in England, 
 with some diversity in the details, especially in cases 
 of affinity. (See ante p. 234-'5.) Thus, marriage is 
 allowed in Virginia vsdth the deceased consort's bro- 
 ther or sister, nephew or niece, with the wife of one's 
 nephew, and with the aunt's husband, and uncle's 
 wife. (V. C. 1873, c. 104, § 9 to 11 ; Id. c. 105, § 1.) 
 It should be observed that, in cases of affinity, the 
 prohibition continues in force, notwithstanding the 
 dissolution of the marriage out of which the affinity 
 arose, by death or -divorce, unless the divorce be for 
 a cause which made the marriage originally imlaw- 
 ful and void. (Y. C. 1873, c. 104, § 11.) 
 W. C. 
 1^ Degrees prohibited to the Man. 
 
 A man may not marry his mother, grand-mother, 
 step-mother, sister, daughter, grand-daughter, half- 
 sister, aunt, son's widow, wife's daughter, or her 
 grand-daughter, or step-daughter, and niece. 
 (V. C. 1873, c. 104, § 9.) 
 2^. Degrees prohibited to the Woman. 
 
 A woman may not marry her father, grand-father, 
 step-father, brother, son, grand-son, half-brothei-, 
 uncle, daughter's husband, husband's son, or his 
 grand-son, or step-son, nephew, and niece's husband. 
 (V. C. 1873, c. 104, § 10.) 
 3'. Want of Reason. 
 
 The principles are the same as those already ex- 
 plained as applicable in England. (See ante p. 238, 
 3*^; Y. C. 1873, c. 105, § 1.) 
 4'. Conviction before Marriage of an infamous offence 
 without the knowledge of the other party. 
 
OHAP. XV.] HUSBAND AND WIFE. • 241 
 
 Every felony is an "infamous offence," and so 
 likewise is every instance of the erimen falsi, which 
 embraces every offence that at once involves the 
 charge of falsehood, and may also affect the adminis- 
 tration of justice, e. g., perjury, subornation of per- 
 jury, suppression of testimony by bribery, conspiracy 
 to accuse one of a crime, or to procure the absence 
 of a witness, and barratry, or stirring up of suits, — 
 and perhaps others besides. (1 Greenl. Evid. § 373 ; 
 1 Phil. Evid. 17 ; 2 Buss, on Cr. 592-'3 ; Synops. 
 Crun. Law, 257; Y. C. 1873, c. 190, § 3 ; Id. c. 195, 
 §19.) 
 
 Surely, to allow a marriage to be invalidated for 
 such very trival causes as are some, not to say all of 
 these, is hardly to " deem with reverence " meet of 
 that contract on whose sacred observance and stead- 
 fast maintenance depend so inseparably the purity 
 and social order of the Commonwealth. 
 5\ Pregnancy of the wife, at the time of the marriage, 
 without the husband's knowledge,' by some person 
 other than the husband. 
 
 Y. C. 1873, c. 105, § 6. 
 6'. Notorious prostitution of the wife prior to the mar- 
 riage, vsdthout the knowledge of the husband. 
 
 Y. C. 1873, c. 105, § 6. 
 2^. Disabilities which in Yirginia render the marriage 
 void per se, without any sentence of divorce ; W. C. 
 1'. Prior Marriag'e, still subsisting. 
 
 All marriages which are prohibited by law, on ac- 
 count of either of the parties having a former wife 
 or husband then living, shall be absolutely void, with- 
 out any decree of divorce, or other legal process. 
 This supposes, of course, that the former marriage 
 has not been declared void, nor been dissolved by the 
 sentence of a court of competent jurisdiction. (Y. 
 C. 1873, c. 105, § 1 ; Id. c. 192, § 2 ; ante p. 237, l"^.) 
 2'. Want of Age. 
 
 In case of a marriage solemnized when either of 
 the parties are under the age of consent (fourteen in 
 males, and twelve in females), if they shall separate 
 during such non-age, and do not cohabit afterwards, the 
 marriage shall be deemed void, without any decree 
 of divorce, or other legal process. But a party who, 
 at the time of the marriage, was capable of consent- 
 ing, with a party not so capable, has not the privi- 
 lege of invalidating the marriage, although the party 
 imder the age of consent may do so, thus conform- 
 ing to the. analogT of other contracts by persons 
 
 re y 
 
242 HUSBAND AiTD WIFE. [bOOK U 
 
 under age, an analogy to which, as we have seen, 
 the common law did not adhere. (V. C. 1873, c. 
 105, § 3, 4 ; ante p. 237, 2*.) 
 3'. Difference of Eace — one party White and the other 
 Negro. 
 
 All marriages between a white person and a negro 
 are absolutely void, without any decree of divorce- 
 or legal process. (V. C. 1873, c. 105, § 1.) And a 
 negro, it will be remembered, is one who has one- 
 fourth or more of negro blood. (Y. C. 1873, c. 103,^ 
 § 2.) 
 
 This peremptory prohibition of the mixture of the 
 two races in marriage has been found in the statutes 
 of many, if not all, of these States, and amongst 
 others of Massachusetts. (2 Kent's Com. 96, n b ; 
 Id. 258, n.) 
 3'. Actual Contract of Marriage in due form of Law. 
 
 Under this head it is proposed to consider, (1), The 
 contract of actual maxriage in presenti; and (2) The con- 
 tract to marry in futuro ; 
 W. C. 
 1^. Contract of actual Marriage in presenti. 
 
 Let us consider here, (1), The circumstances neces- 
 sary to actual marriage at common law; (2), The cir- 
 cmnstances made necessary to marriage in England by 
 statute ; (3), The circumstances prescribed by statute in 
 Virginia; (4), The effect of foreign marriages; and (5), 
 The proof to be judicially made of marriage; 
 W. C. 
 1^. The Circumstances necessary to actual Marriage at 
 common law. 
 
 There is a remarkable diversity of opinion as to 
 what is needful at common law to constitute an actual 
 marriage, valid for all purposes. Upon the whole, 
 however, it seems the better opinion in England that 
 the contract must be between parties yree/rom all imr- 
 pediments and disabilities, per verba de presenti, and 
 solemnized by a person in holy orders. (Bright's H. 
 & Wife, 370, & seq., 397, & seq.; Bac. Abr. Mar. & 
 Div. (C); Broom's Max. 381, & seq.; Haydon v. 
 Gould, 1 Salk. 119; Queen v. MilUs, 10 Clark & Fin. 
 534; Dalrymple v. Dalrymple, 2 Hagg. C. E. 64, & 
 seq. ; Catherwood v. Caslon, 13 M. & "W. 261, 264.) 
 But, although overruled by these cases, there is 
 much authority for the proposition that the common 
 law did not demand the intervention of a person in 
 holy orders, but that a contract to marry per verba de 
 presentii^j^^^ ^^f^Q^^^or per verba defutwo. 
 
CHAP. XV.] HUSBA2JD AKD WIFE. 243 
 
 followed by consummation, is by that law as valid a 
 marriage (supposing the parties competent) as if made 
 in facie ecolesice. (Bunting's Case, 4 Co. 29 a; Jesson 
 T. Collins, 2 Salk. 437 ; Wigmore's Case, Id. 438 ; 
 Opinion of Sir Wm. Scott, Dalrymple v. Dalrymple, 
 2 Hagg. C. E. 67, & seq. ; 2 Kent's Com. 87.) 
 
 Upon this question the Judges of the United States 
 Supreme Court were equally divided in Jewell's Les- 
 see V. Jewell & al, 1 How. 234 ; but the doctrine gen- 
 erally held in the American com'ts is that a merely 
 civil contract entered into per verba de presenti, with- 
 out any ecclesiastical sanction, or the observance of 
 any particular form, is a good marriage in the absence 
 of any legislative enactments. (2 Kent's Com. 87, 91 ; 
 Catherwood v. Caslon, 13 M. & W. 266, note.) 
 2^. The Circumstances made necessary to Marriage in 
 England by Statute. 
 
 See 2 Steph. Com. 286, & seq., citing the Statutes 
 4 Geo. IV, c. 76 ; 6 & 7 Wm. IV, c. 85; 7 Wm. IV, 
 and 1 Vict. c. 22 ; 3 & 4 Vict. c. 72. 
 3""- The Circumstances prescribed by Statute in Virginia. 
 See V. C. 1873, c. 104, § 1 to 8. 
 W. C. 
 
 1'. Effect of the Statutes in abrogating the Common 
 Law. 
 
 The terms of the statute are peremptory in pre- 
 scribing that " every marriage shall be under license, 
 and solemnized in the manner herein provided." 
 But when it is considered that there are no express 
 words avoiding the marriage, and that the omission 
 of the statutory observances is not named amongst 
 the grounds on which a marriage is either void or 
 voidable (V. C. 1873, c. 105, § 1, 3, 6) ; and when 
 it is further considered what unhappy results would 
 follow if the marriage were liable to be avoided by 
 the pretermission of what after all is only ceremo- 
 nial, and not of the essence of the transaction, it 
 would seem best to adopt the sentiment of Grotius (de 
 Jur. Bel. &c. B. II, c. V. § 16), upon another branch 
 of the subject, and regard the provision of the star- 
 tute as directory merely. " Though a merely human 
 law," says he, "prohibits the contracting of mar- 
 riages between particular persons, it will not there- 
 fore follow that such a marriage, if it be actually 
 contracted, is void. For to forbid and to invalidate are 
 quite different things . " Such a construction , it may be 
 added, prevailed in respect to the English statute 4 
 
244 ^' HUSBAND AND WIFE. ' [bOOK I. 
 
 those of ours) were determined to be merely dirctory. 
 (Rex V. Birmingham, 8 B. & Cr. (15 E. C. L.) 29; 
 2 Steph. Com. 288; 1 Tuck. Com. B. I, p. 99.) 
 2\ The Directions of the Statutes of Virginia; W. C. 
 1^. The Persons to whom the Statute is applicable. 
 Previous to February 27, 1866, the marriage- 
 laws of Yirginia did not contemplate nor include 
 negroes, not even free negroes, at least in respect to 
 any penalties for disregard of the laws touching 
 license, or prohibition of bigamy, of incestuous 
 marriages, or of * lewd co-habitation ; and hence, 
 marriages of free negroes (those of slaves being 
 void,) were governed altogether by the common 
 law. (Y. C. 1873, c. 192, § 1, 3, 5, 7 ; Id. c. 103, 
 §4; an«ep. 164, S^.) 
 
 By the Act of 27 February, 1866, all distinction 
 between white persons and negroes, as to the mode 
 of contracting marriage, is obliterated, although, as 
 we have seen, it is still penal for a white person 
 and a negro to intermarry. And it is provided, in 
 order to meet the case of the colored population, 
 especially of that part which had been slaves, that 
 where colored persons have cohabited as husband and 
 wife, and were then so cohabiting, (27th February, 
 1866,) whether the rites of marriage had been cele- 
 brated between them or not, they should be deemed 
 husband and wife, and their children, whether born 
 before the act or after, should be legitimate. And 
 that if they had then ceased to cohabit, the cliil- 
 dren of the marriage, recognized by the man, should 
 be deemed legitimate. (V. C. 1873, c. 103, § 4.) 
 2^. The License to Marry. 
 
 See y. C. 1873, c. 104, § 1 to 3, 7, 14 to 18. 
 W. C. 
 1^ Who shall issue the License. 
 
 The license is to be issued by the clerk of the 
 court of the county or corporation where the 
 female usually resides, or if the office of clerk be 
 vacant, the senior justice (or as is presumed accord- 
 ing to the existing arrangement, the judge of the 
 county court,) or the mayor of the corporation; and 
 the license is to be registered. (Y. C. 1873, c. 
 104, § 1, 2.) 
 2'. The Consent of the Parent or Guardian. 
 
 If either party be under twenty-one years of 
 age, and not before married, the consent of the 
 father or guardian, or if there be none, of the 
 motl©fgiyfii|^^ ]|WRfiiQ»(}#®equired, either perspn- 
 
CHAP. XV. J mJSBAND AND WIFE. 245 
 
 ally or in writing, subscribed by a witness, who 
 shall make oath before the clerk, or officer isstiing 
 the license, that the writing was acknowledged in 
 his presence by the parent or guardian. (Y. C. 
 1873, c. 104, § 3.) 
 
 Ko provision is made for the parent's being non 
 compos, but it is supposed that the method of pro- 
 ceeding in such case would be for the proper 
 court to appoint a guardian to give the required 
 consent. (V. C. 1873, c. 123, § 3, 4.) 
 
 3^ The Statistical Statement to be obtained by the 
 Clerk, and Recorded. 
 
 At the time the clerk issues the license, he is to 
 require from the party obtaining it, a certificate, 
 setting forth, as near as may be, the date and place 
 of the proposed marriage; the full names of both 
 parties ; their ages and condition before marriage 
 (whether single or widowed); the places of their 
 birth and residence; the names of their parents, and 
 the occupation of the husband. (V. C. 1873, c. 
 104, § 16.) _ 
 
 This requirement seems designed principally, to 
 afford the means of identifying the parties, if oc- 
 casion shoiild arise therefor; although some of the 
 facts incorporated thus into the marriage-register, 
 may contribute to form a body of useful statistics. 
 
 4K The Return of the License by the Celebrant. 
 
 The minister or other person celebrating a mar- 
 riage, or the clerk of any religious society which 
 celebrates marriage in open congregation, is re- 
 quired to make and sign a return, within two 
 months, showing the solemnization of the mar- 
 riage, and whether the parties are white or colored, 
 which, being recorded by the clerk of the county 
 or corporation court, together with the certificate 
 of statistics mentioned above, (supra 3^), consti- 
 tutes the Marriage Register,V7hich.is prima facie evi- 
 dence of the facts therein set forth. (Y. C. 1873, 
 c. 104, § 14 to 18, 26 ; Moore's case, 9 Leigb, 639.) 
 
 5^ Penalty on the Clerk for illegally issuing a Li- 
 cense. 
 
 Knowingly to issue a license contrary to law, is 
 punished by the clerk's confinement in jail for not 
 more than a year, and a fine not exceeding $500. 
 (Y. C. 1873, c. 192, § 4 ; Hill's case, 6 Leigh, 
 636.) 
 3K The Celebrant; W. C. 
 
 !'• ^^^e^]^?^^(?rfe)/§i^e8 of Marriage ; W. C. 
 
246 HUSBAND AND WIFE. , [bOOK 1. 
 
 1™. The Minister of any Religious Denomination. 
 He is not required to be a minister of the gos- 
 pel. A Jewish or any other minister of religion 
 is competent. But he must first produce, before 
 some county or corporation cpurt in the State, 
 proof of his ordination, and of his being in regu- 
 lar communion with his religious society; and he 
 must also give bond, with good security, in the 
 penalty of $1,500, when the court will make an 
 order authorizing him to celebrate marriage. 
 (Y. C. 1873, c.*104, § 4.) 
 2™. One or more Kesidents in any County, by ap- 
 pointment of the County Court. 
 
 The court of any County, which deems it ex- 
 pedient, may appoint one or more persons resi- 
 dent therein, to celebrate marriage within the 
 same or any district thereof; and such persons, 
 upon giving bond, as in case of a minister, may 
 exercise the function until the order is rescinded. 
 (V. C. 1873, c. 104, § 5.) 
 3™. The persons prescribed by any religious society 
 which has no ordained minister. 
 
 The marriage may in such case be solemnized 
 by the person, and in the manner prescribed by, 
 and practised in, such society. (V. C. 1873, c. 
 104, § 6.) 
 2^ The Fee to be paid to the Celebrant by the Hus- 
 band. 
 
 The fee is one dollar, and for exacting more a 
 forfeiture to the party aggrieved, of $50, is de- 
 nounced. (Y. C. 1873, c. 104, § 8.) 
 3\ Effect of Want of Authority in the Celebrant. 
 No marriage solemnized by any person profess- 
 ing to be authorized shall be deemed to be void, 
 nor shall the validity thereof be in any way affected 
 on account of any want of authority in such per- 
 son, if the marriage be in all other respects lawful, 
 and be consummated ^dth a full belief on the part 
 of the persons married, or either of them, that they 
 have been lawfully joined in marriage. (Y. C. 
 1873, c. 104, § 7.) 
 4'. Penalty on Celebrant for celebrating marriage Il- 
 legally. 
 
 Knowingly to perform the ceremony of marriage 
 without lawful Ucense, or to officiate without law- 
 ful authority, subjects the offender to confinement 
 in jail for not more than one year, and to a fine 
 not eSJ§i#(Seg ^Mi()r£)Sdft®periorm. the ceremony 
 
■CHAP. XV. J HUSBAND AND WIFE. 24:1 
 
 of marriage between a white person and a negro 
 incurs a forfeitnre of $200, one-half to the informer. 
 (V. C. 1873, c. 192, § 5, 9.) 
 5\ Penalty on the Celebrant for making a false Re- 
 port, or no Report, of the Celebration of the Mar- 
 riage. 
 
 He forfeits the penalty of his bond {supra 1™), 
 and $100 to S500 besides. (V. C. 1873, c. 104 
 § 19, 38.) 
 4^^. The Marriage Register. 
 
 The marriage register, in Yirginia, consists of the 
 license ; of an abstract of the certificate furnished 
 to the clerk when the license is obtained (supra p. 
 245, 3'); and of the celebrants return [supra p. 245, 
 4^) — all of which it is the clerk's duty to record; 
 and such record is prima facie evidence of the facts 
 therein set forth. (V. C. 1873, c. 104, § 28 ; Moore's 
 case, 9 Leigh, 639.) 
 5'. Summary of the circumstances usually necessary to 
 the Yalidity of a Marriage in "Virginia. 
 
 It seems that no marriage in this Commonwealth 
 is ipso facto void, or indeed, in general, voidable, which 
 is celebrated by a person professing, and believed by 
 either party to be authorized to celebrate it — per- 
 haps even without a license — between single per- 
 sons; of sound mind; of like color, that is, both 
 ' whites, or both negroes ; of age to consent thereto 
 (fourteen in males, and twelve in females) ; and actu- 
 ally consenting. (Y. C. 1873, c. 104, § 1, 3, 4 to 7.) 
 There are, however, certain circumstances," not in- 
 cluded in the foregoing enumeration, which may 
 render such a marriage as is above supposed voidable. 
 They have been already stated (Ante p. 239 & seq. 1''), 
 and will be referred to again. (Post p. & seq.) 
 4^^. Effect of Foreign Marriages; W. C. 
 1*. The General Doctrine. 
 
 The law of marriage is a part of the jus gentium, 
 the law of civilized mankind, and it is a general rule 
 that a marriage, valid by the law of the place where 
 it is celebrated, is valid everywhere; and if invalid 
 by that law, it is invahd everywhere. This is the 
 acknowledged doctrine in England and the United 
 States, so that the lex loci contractus prevails over the 
 ,lex domicilii, even though the parties leave their 
 domicil in order to evade the law thereof. Hence, 
 Scotch marriages are valid in England, and Mary- 
 land and North Carolina marriages in Yirginia, 
 :althougjig^^ontj|ct^.^bg^c^^ens of England or of 
 
248 HUSBAND AMX) WIFE. [BOOK I, 
 
 Yirginia respectively, and not in accordance with 
 the laws of the parties' domicil, from the obligation 
 of which they designed to escape. (Stor. Confl. 
 of L., § 87 & seq.; Id. 113, 121; 2 Kent's Com. 91 
 & seq. ; 2 Pars. Cont. 104 & seq. ; Bac. Abr. Marr. 
 & Div. (D) ; Dalrymple v. Dalrymple, 2 Hagg. C. K. 
 54; Herbert v. Herbert, 2 Id 263.) 
 2'. Qualifications of the General Doctrine; W. C. 
 1*. When the Marriage is Incestuous or Polygamous. 
 Marriages condemned by the general sense and 
 policy of civilized mankind, as at war with sound 
 morals and social order, are not within the princi- 
 ple above stated ; but if opposed only to the parti- 
 cular regulations of the country where the parties 
 are domiciled, and where the validity of the mar- 
 riage is called in question, the marriage, if lawful 
 where it was entered into, is, notwithstanding, un- 
 impeachable. Hence, the marriage of a brother 
 and sister, or of an uncle and niece, although per- 
 mitted by the law of the country where it took 
 place (if there be such a country), would neverthe- 
 less be voidable in Yirginia; whilst the marriage 
 of a man to his deceased wife's sister, contracted in 
 Virginia, would be valid in England, although pro- 
 hibited by the English laws. And so the marriage 
 of one divorced a vinculo matrimonii for adultery, 
 although forbidden by the laws of Kentucky, wiU 
 be valid there if contracted in Tennessee, where no 
 such prohibition exists. (Stor. Confl. L. § 113 & 
 seq.; 2 Kent's Com. 93; 2 Pars. Cont. 106 & seq.) 
 2^. When the Marriage is prohibited to be contracted 
 even abroad, by the law of the country to which 
 the parties belong. 
 
 In general, the laws of a country extend not in 
 effect beyond its limits ; but it is, notwithstanding, 
 competent to a State to follow its subjects abroad, 
 and to attach to their acts done there the same con- 
 sequences as if done in their own country. Thus, 
 the civil code of France annuls the marriages of 
 Frenchmen contracted in foreign countries contrary 
 to the injunctions of the French law; England 
 denies the validity of subsequent marriages entered 
 into after a foreign divorce, dissolving a previous 
 Enghsh marriage; and the law of Yirginia attaches 
 the same consequences, in respect of punishment 
 and invalidity, to marriages within its own pre- 
 scribed degrees of consanguinity and affinity, con- 
 tractefyj^j^^^^f^S^^tewho go out of it for 
 
CHAP. XV.j HUSBAND AND WIPE. 249 
 
 the purpose of the marriage, and with the intention 
 of returning, and who do return, as if the marriage 
 had been contracted in this St^te, and their cohabi- 
 tation here as man and wife is evidence of the mar- 
 riage. (Stor. Confl. L. § 117; Synops. Crim. L. 171 
 -'2; V. 0. 1873, c. 192, § 3; Id. c. 105, § 2.) 
 3"- When the Marriage abroad is, from peculiar cir- 
 cumstances, celebrated according to the JOaw of the 
 of the J)omioil, and not of the place of Contract. 
 
 Subjects resident abroad in factories, in conquered 
 places, in barbarous or desert countries, or in coun- 
 tries of a different religion, as Mohammedan or Pa- 
 gan, are permitted, by a sort of moral necessity, to 
 contract marriage according to the laws of their 
 own country ; and such a marriage is valid, although 
 not in accordance with the lex loci contractus. (Stor. 
 Confl. L. § 118, & seq. ; Catherwood v. Caslon, 13 
 M. & W. 264.) 
 5^. The Proof to be made of Marriage ; "W. C. 
 1\ Proof of Marriage in Criminal Prosecutions (e.g., 
 for Bigamy), and in civil actions for Adultery. 
 
 The uniform practice of a century has settled that, 
 in prosecutions for bigamy, and in actions for adul- 
 tery, it is necessary to prove an actual marriage, valid, 
 or avoidable and not yet avoided. The proof must 
 be either by some witness present at the marriage, 
 by the marriage-register, and proof of the identity 
 of the parties ; or by the acknowledgment of the ac- 
 cused, or adverse party. (2 Stark. Ev. 698-'9; 2 
 G-reenl. Ev. § 461, & seq. ; Bac. Abr. Mar. & Div. 
 (F); Morris v. Miller, 4 Burr. 2057 ; Birt. v. Barlow, 
 1 Dougl. 171 ; Catherwood v. Caslon, 13 M. & W. 
 265; Warner's Case, 2 Ya. Cas. 95; Moore's Case, 
 9 Leigh, 639; O'Neal's Case, 17 Grat. 582; ante, p. 
 245, 4^) 
 2'. Proof of Marriage in all Civil proceedings, except 
 the action for Adultery. 
 
 In all civil proceedings, except the action for adul- 
 tery, co-habitation and general reputation are suffi- 
 . cient evidence of the marriage; and a man who in- 
 troduces a woman into society as his wife is estopped 
 by that conduct to deny that she is so, so far as re- 
 gards his liability for necessaries furnished her. (2 
 Greenl. Ev. § 461; Bac. Abr. Bar. & F. (H); Jack- 
 son V. Claw, 18 Johns. 346; Kice v. Efford, 3 H. & 
 M. 230; Purcell v. Purcell, 4 H. & M. 507.) 
 2^. Contract to Marry in futuro. 
 
 The contract to Biaiiy in fuUm> requires us to advert 
 
250 HUSBAND AND WIFE. [bOOK I. 
 
 to, (1), The doctrine as to mutuality in the contract j 
 (2), The eflfect of infancy on the contract ; (3), The proof 
 of the contract to marry ; (4), Time for the perform- 
 ance of the contract ; (5), The enforcement of the con- 
 tract to marry; (6), Defences to actions for breach of 
 promise to marry ; and (7), Damages for breach of pro- 
 mise to marry ; 
 W. C. 
 I''- The Mutuality of the Contract. 
 
 As in all other contracts, so in contracts to marry, 
 the obligation must' be mutual. Although it appear 
 that one party actually did promise, yet if the other 
 do not accept the promise, there is no contract. It is 
 not needful, however, to prove a promise or an accept- 
 ance in iotidem verbis. It may be as well evidenced 
 by the unequivocal conduct of the parties ; and where 
 the promise of the man is proved, the woman demean- 
 ing herself as if she concurred in his promise, is suffi- 
 cient evidence of her promise to marry him. (1 Chit. 
 Cont. 536-'7; 1 Pars. Cont. 544.) 
 2^- Effect of Infancy on the Contract. 
 
 The effect of infancy on the contract to marry in 
 futuro is the same as in other contracts. The infant 
 may avoid the contract at his pleasure, whilst it is 
 binding on the adult. (1 Pars. Cont. 544-'5 ; Holt v. 
 Ward, 2 Str. 937.) 
 B^. Proof of the Contract to Marry. 
 
 The proof need not be in writing. The provision of 
 the Statute of Parol Agreements (Y. C. 1873, c. 140, 
 § 1), that no action shall be brought "upon any agree- 
 ment made upon consideration of marriage," uidess the 
 agreement, or some memorandum or note thereof, be 
 in vsTitiug, and signed by the party to be charged 
 thereby, or his agent, is understood to refer only to 
 marriage settlements. Where the promise, however, is 
 to marry after the lapse of more than a year, it would 
 doubtless be within another clause of that statute, 
 which requires agreements not to be performed within 
 a year to be in writing. The evidence of a contract 
 to marry, in the nature of things, must in general be 
 verbal only; and more than in other contracts de- 
 pendent on inference from such circumstances as 
 usually attend, a matrimonial engagement, such as 
 frequent visits, the understanding of friends and rela- 
 tives, preparations for marriage, the reception of the 
 man by the family as a suitor, &c. (Chit. Cont. 537; 
 1 Pars. Cont. 545 to 547.) 
 4:\ Time ^jg^^gpfffj^jfi^^ff^he contract to marry. 
 
CHAP. XV.J HUSBAND AND WIFE. 251 
 
 No precise time for the consummation of the en- 
 gagement needs to have been agreed upon. Upon a 
 general promise to marry, the law presumes that it is 
 intended to be performed in a reasonable and convenient 
 time. And if both parties concur in postponing it 
 unreasonably, it may perhaps be thence concluded, in 
 the absence of any negative evidence, that it is mutually 
 abandoned. (Chit. Cont. 537; 1 Pars. Cont. 547.) 
 5^. Enforcement of Contract to Marry ; W. C. 
 1'. Specific Enforcement of Contract. 
 
 Formerly, as we have seen, the ecclesiastical 
 courts, in England, exercised the jurisdiction to 
 compel a party to celebrate in facie ecclesice a mar- 
 riage which had been already contracted ^er verba de 
 presenti, or per verba de futuro, if followed by con- 
 sumation {ante p. 233, 1"); but this jurisdiction has 
 not existed in England since 1754 (26 Geo. II, c. 33), 
 and seems never to have gained foothold in Yirginia. 
 Neither the Court of Equity, nor any other tribunal, 
 has power here to enforce specific compliance with a 
 promise to marry, the only redress being an action 
 at law for damages for a breach of the engagement. 
 (1 Tuck. Com. 99, B. I.) 
 2'. Action at Law for damages for Breach of Contract. 
 The action at law for the breach of the promise to 
 marry is the only remedy for such an injury. It 
 proposes to seek compensation in damages, which, 
 however inadequate they may be, yet constitute the 
 sole redress to the complainant, and, what is more to 
 be considered, the sole legal punishment to the wrong- 
 doer, unless the female has been seduced under pro- 
 mise of marriage, in which case he is guilty oi a, felony, 
 punishable by confinement in the penitentiary from 
 one to ten years. (Y. C. 1873, c. 187, § 16.) The 
 amount of damages is committed entirely to the dis- 
 cretion of the jury, subject only to such equitable con- 
 trol as, in extreme cases, the court may exercise through 
 the medium of new trials. (1 Tuck. Com. 99, B. I; 
 1 Pars. Cont. 543; Sedgwick on Dam. 210, 368-'9.) 
 %'^- Defences to Actions for Breach of Promise to Marry; 
 W. C. 
 1'. Existence of Legal Obstructions to the Marriage. 
 Thus, the prior marriage of either party, the con- 
 sort being still alive and the marriage undissolved, 
 consangunity, affinity, or any other circumstance 
 which would be ground for avoiding the marriage, 
 is a defence to the action for not consummating it. 
 
 (1 ^^r^i^^md^kcrosoft® 
 
252 HUSBAND AND WIFE. [bOOK I.- 
 
 2'. The bad Character, or lascivious Conduct of 
 Plaintiff. 
 
 The bad character, or lascivious conduct of the 
 plaintiff towards other persons, constitutes a sufficient 
 reason for declining to fulfil the engagement to marry, 
 provided those circumstances were not known to the de- 
 fendant when it was contracted. Otherwise they 
 form no defence, however they may and ought to go 
 to lessen the damages. Evidence of repidaiion is re- 
 ceivable to prove an allegation of general bad char- 
 acter, but specific misconduct must be specifically 
 proved. (Chit. Cent. 538-'9; Sedgw. Dam. 369.) 
 
 3'. The manifestation on the part of the plaintiff of a 
 coarse and brutal disposition. 
 
 If the plaintiff, by his language concerning the 
 defendant (the female), manifest such coarseness and 
 brutality as to make it imprudent for her to com- 
 mit her happiness to his keeping, it is a defence to 
 the action, supposing her not to have been previously 
 aware of it. (Chit. Cout. 539; 1 Pars. Cont. 549.) 
 
 4'. Bad Health of the Plaintiff. 
 
 K the plaintiff's health be such as to incapacitate 
 for the duties of marriage, or to render it unsafe or 
 improper, and if the fact be unknovm to the defend- 
 ant at the time of the engagement formed, it is a 
 sufficient answer to the action. Thus entire deafness, 
 blindness, or other physical incapacity in the plaintiff, 
 supervening after the promise, or afterwards becom- 
 ing known to the defendant, will excuse the refusal 
 to consummate the engagement. (Chit. Cont. 540; 
 1 Pars. Cont. 549-'50.) 
 
 5'. Consent obtained by Mis-representation. 
 
 If the promise to marry were induced by false and 
 fraudulent misrepresentations of any material fact 
 of fortune, station in life, or previous conduct, or it 
 would seem of antecedent condition, as widowed or 
 otherwise, the promise is thereby invalidated. (Whar- 
 ton V. Lewis, 1 Carr. & P. (11 E. C. L.) 529; Foote 
 V. Hayne, Id. 545 ; 1 Pars. Cont. 550.) 
 
 6'. Release of Promise. 
 
 The subsequent release of the promise to marry is 
 a good defence, provided it be founded on valuable 
 consideration, as it would be if it were a mutual re- 
 lease. (1 Pars. Cont. 550.) 
 
 7'. Pre-engagement of Plaintiff to Another Party. 
 
 This is said to be a good defence, because the 
 plaintiff ought not in justice to recover for a wrong 
 
CHAP. XV.J HUSBAND AND WIFE. 253 
 
 or her in consequence of a similar injury which he 
 or she had previously done to a third person. This, 
 however, seems to be a remarkable extension of the 
 doctrine of set-off, and certainly requires confirmation. 
 (1 Pars. Cont. 550-'51.) ■ 
 8^. The Death of either Party. 
 
 Tlie breach of promise to marry so far resembles 
 a tort (the action therefor being usually considered 
 in pcenam), that the action is said not to survive 
 against the promisor's personal representative, nor 
 in favor of the promisee's, unless special damage to 
 the promisee's estate is alleged and proved. (1 
 Pars. Cont. 552-'3; Chamberlain v. Williamson, 2 
 M. & S. 408, 416.) 
 1^. Damages for Breach of Promise to Marry. 
 
 In the action for breach of marriage-promise dam- 
 ages are reckoned to be peculiarly within the discre- 
 tion of the jury, whose verdict the court is always re- 
 luctant to set aside on the ground of excessiveness, 
 and especially if the defendant has aggravated the 
 wrong done by impeaching the plaintiff's character 
 unsuccessfully. But it is said that the woman cannot 
 in this action properly recover for seduction, although, 
 if the fact of seduction incidentally comes to the 
 knowledge of the jury (as it will seldom in practice 
 fail to do), and they are thereby led to augment the 
 damages, it is not a ground for vacating the verdict. 
 (1 Pars. Cont. 553; Sedgw. Dam. 369.) 
 3^. Modes whereby Marriage is Dissolved; W. C. 
 1'. Death. 
 
 Marriage is dissolved either by death or by divorce. 
 (1 Bl. Com. 440; 2 Kent's Com. 95.) 
 2'. Divorce. 
 
 The doctrines concerning divorce are to be traced in 
 connexion with (1), The several kinds of divorce; (2), 
 The causes for the several kinds of divorce; (3), The 
 courts charged with the cognizance of divorce causes ; 
 (4), The effects of divorce ; (5), The doctrine touching 
 foreign sentences of divorce ; and, (6), Sundry matri- 
 monial causes besides divorce. 
 W. C. 
 18. The Several Kinds of Divorce; W. C. 
 1". Divorce a mensa et toro. 
 
 This kind of divorce "from board and bed," merely 
 separates the parties for an indefinite time, but always 
 in hope of reconciliation, and without disturbing the 
 marital relations as touching either person or pro- 
 party ^^j^^^f^l^^J^^^^ou necessarily implies. 
 
254 HUSBAND AJiTD WIFE. [bOOK L 
 
 / 
 
 They are still husband and wife, with all the privi- 
 leges and obKgations of that relation, save that of 
 living together (unless by special order of the court 
 which decrees the divorce, a further effect be given 
 it); and to the wife, with all the disabilities of cover- 
 ture. (1 Bl. Com. Ml.) 
 2''. Divorce a vinculo matrimonii. 
 
 This divorce, "from the bonds of marriage," ter- 
 minates and finally dissolves the relation, in some in- 
 stances ab initio, so that the marriage, being annulled 
 from the beginning, is looked upon for most purposes 
 as having never existed ; and in other instances, only 
 from the period of dissolution; so that, in the latter 
 case, whilst the matrimonial relation, with all its 
 obligations and disabilities, is thenceforward at an 
 end; yet whatever effects and consequences may have 
 previously attached, especially in the nature of vested 
 rights to property, remain for the most part unim- 
 paired, notwithstanding the dissolution, unless it be 
 specially otherwise ordered by the sentence of divorce. 
 (1 Bl. Com. 440; Bac. Abr.'ltarr. & Div. (F), 3.) 
 2*. The Causes for the Several Kinds of Divorce. 
 
 Religion, reason and experience combine to enforce 
 the sanctity of the marriage tie. If not held to be in- 
 dissoluble altogether, it is at all events fitting, in the 
 interests of society and of the true happiness of man- 
 kind, that it should be dissolved only in rare and ex- 
 treme cases. And whilst a separation, by means of a 
 divorce a mensa et toro, which it may be hoped wUl be 
 temporary only, is less to be deprecated, yet even that 
 ought to be limited to cases where it is improper or 
 impossible for the parties to live together. Numerous 
 causes of divorce, especially from the bonds of marriage, 
 are at once a sign and a cause of moral degeneracy, 
 and surely bode ill for the fiiture of any society ; 
 
 1*"- The Causes for the Several Kinds of Divorce in 
 England; W. C. 
 1'. The causes for Divorce, a mensa et toro, in England. 
 "The repugnance of the law," says Sir "Wm. Scott, 
 the great legal oracle on this subject, " to dissolve 
 the obligations of matrimonial cohabitation may 
 operate with great severity upon individuals, yet it 
 must be carefuUy remembered that the general hap- 
 piness of the married life is secured by its indissolu- 
 bility. "When people understand that they must live 
 together, except for a very few reasons known to the 
 law, the^^^^ife^j^^g^J^oM*'^^! accommodation, 
 
CHAP. XV.] . HUSBAND AND WIFE. 265 
 
 that yoke which they know they cannot shake off; 
 they become good husbands and wives ; for neces- 
 sity is a powerful master in teaching the duty which 
 it imposes. If it were once understood that upon 
 mutual disgust married persons might be legally 
 separated, many couples who now pass through the 
 world with mutual comfort, with attention to their 
 common offspring, and to the moral order of society, 
 might have been at this moment living in a state of 
 mutual unkindness, — in a state of estrangement to 
 their common offspring, — and in a state of the most 
 licentious and unreserved immorality. In this case, 
 as in many others, the happiness of some individu- 
 als must be sacrificed to the greater and more gen- 
 eral public good." (Evans v. Evans, 1 Hagg. C. E. 
 (4 Eng. Ec. K.) 35, 36.) 
 
 The common law, therefore, acknowledges only 
 two causes of divorce, a mensa, &c., namely, (1), 
 Adultery; and (2), Cruelty, including just appre- 
 hension of bodily hurt ; 
 W. C. 
 I''- Adultery. 
 
 Adultery, although it is the sole supervenient 
 cause allowed by the Scriptures for a dissolution of 
 the marriage relation, (Mat. v.- 32 ; Mark x. 4 to 
 12,) is by the common law of England, at least at 
 present, a ground merely for a divorce a mensa et 
 tore. (St. John v. St. John, 11 Ves. 532 ; 2 Burn's 
 Eccles. L. 503.) 
 
 A divorce for adultery is not obtainable if the 
 adultery be brought about by the other party's pro- 
 curement or connivance, or if condonation is proved 
 by the complainant's cohabiting with the guilty 
 consort after knowledge of the adultery, or if the de- 
 fendant successfully recriminates by showing infi- 
 delity on the complainant's part. (1 Bl. Com. 441, 
 n (33) ; 2 Kent's Com. 100, &c. ; 2 Burn's Ecc. L. 
 505, Beeby v. Beeby, 1 Hagg. f3E. E. K.) 789 ; 
 Eeeves v. Eeeves, 2 Phil. (1 E. E. E.) 125 ; Proc- 
 tor V. Proctor, 1 Hagg. C. E. (4 E. E. E.) 292; 
 Kirkwall v. Kirkwall, Id. 2T7 ; Timmings v. Tim- 
 mings, 3 Hagg. (5 E. E. E.) 76; Eogers v. Eog- 
 ers. Id. 13 ; Crewe v. Crewe, Id. 123.) 
 
 And it should be observed that the effect of co- 
 habitation, as proving condonation, is less stringent 
 on the wife than on the husband, for it is not im 
 proper that she should for a time manifest a patient 
 forbearance. (D'A^uilar v. D'Aguilar, 1 Hagg. (3 
 Digitized by Microsoft® 
 
256 HUSBAND AND WIFE. . [bOOK I. 
 
 E. E. E.) 773 ; Durant v. Durant, Id. 733 ; Beeby 
 V. Beeby, Id. 789.) 
 
 It is an established maxim that a divorce is never 
 to be decreed for adultery (or indeed for any other 
 cause), upon the confession of the parties merely, 
 without auxiliary proofs, experience having shown 
 that such a practice is productive of collusion, and 
 other flagitious frauds. (2 Burn's Eccles. L. 504:-'5; 
 Mortimer v. Mortimer, 2 Hagg. C. E. (4 E. E. E.) 
 310 ; Baxter v. Baxter, 1 Mass. 346 ; Holland v. 
 Holland, 2 Mas8^154; Bailey v. Bailey, 21 Grrat. 
 50.) 
 
 But whilst, in England, adultery by the canon 
 law, as enforced in the spiritual court, is cause 
 only of divorce a mensa et toro, it has long been 
 customary, when, by a decree of divorce a mensa 
 et toro, or by a successful action for damages against 
 the adulterer, the fact of adultery has been judici- 
 ally ascertained, and to have been without default 
 in the other party, for Parliament to intervene, 
 and by" a special legislative act to grant to the in- 
 jured party a divorce a vinculo matrimonii. (1 Bl. 
 Com. 441, & n (34) ; 2 Bm-n's Eccles. L. 501, n 
 
 (n).) 
 2\ Cruelty. 
 
 Cruelty {scevitia}, which authorizes a divorce a 
 mensa et toro, is everything which tends to bodily 
 harm, and thus renders cohabitation unsafe, or as it 
 is expressed in the older cases, which involves dan- 
 ger of life, limb, or health. It is not needful to en- 
 quire from what motive such treatment proceeds, 
 whether from turbulent passion, or from other 
 causes possibly not inconsistent with affection, e. g., 
 jealousy. If bitter waters are flowing, it is not 
 necessary to explore the fountains whence they 
 spring. K bad passions are so uncontrolled as to 
 jeopard the consort's safety, it is immaterial from 
 what provocation the actual violence originated. 
 It is, moreover, not necessary that there should be 
 many acts, if there is reason to apprehend that they 
 will be repeated. It suffices that the past, upon 
 the whole, affords a reasonable apprehension of bodily 
 hurt. Although the complaint of cruelty usually 
 comes from the wife, yet the husband is in like 
 manner entitled to protection if he shall really need 
 it. (Evans v. Evans, 1 Hagg. C. E. (4 E. E. E.) 
 36, 37; Holden v. Holden, Id. 452; Harris v. Har- 
 
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CHAP. XV.] HUSBAND AND WIFE. 257 
 
 ris, 2 Phill. (1 E. E. R.), Ill; Waring v. Waring, 
 Id. 132; D'Aguilar v. D'Aguilar, 1 Hagg. (3 E. E. 
 E.), 773; Bish. Marr. & Div. § 490, &c.) 
 
 Negatively, what merely wounds the mental feel- 
 ings, without being accompanied by bodily injury, 
 actual or menaced; mere austerity of temper, petu- 
 lance of manners, rudeness of language, want of 
 civil attention and accommodation, or even occa- 
 sional sallies of passion, which do not threaten harm., 
 although they be high offences against morality in 
 the married state, do not amount to legal cruelty. 
 (Evans v. Evans, 1 Hagg. C. R. (4 E. E. R ) 36; 
 Carr v. Carr, 22 Grat. 173, 175.) 
 
 If the complainant (who, although usually the 
 wife, may also be, and has sometimes been, the 
 husband), is the aggressor, provoking ill-treatment, 
 by violent and outrageous conduct, a separation 
 must be denied, and the party left to reform his or 
 her own disposition and manners, and by a change 
 of behavior to seek to remedy the evil. If, then, 
 there is cause to complain, the party will be entitled 
 to the protection of the court. (Waring v. Waring, 
 2 Phill. (1 E. E. R.) 132 ; Kirkman v. Kirkman, 1 
 Hagg. C. R. (4 E. E. R.) 409; Bishop Mar. & Div, 
 § 490 & seq.) 
 
 Condonation applies to cruelty, as well as to 
 adultery ; but it is in no case held so strictly against 
 a wife as against a husband. Forbearance in her 
 may be a virtue, and does not in general weaken 
 her title to relief. Condonation is, moreover, al- 
 ways conditional, so that, if the offence be repeated, 
 the effect of the condonation is done away with, 
 and of course it can never be applicable to the sub- 
 sequent offence. (Durant v. Durant, 1 Hagg. (3 E. 
 E. R.) 733; D'Aguilar v. D'Aguilar, Id. 733; Pop- 
 kin V. Popkin, Id. 733 n (a) ; Beeby v. Beeby, Id. 
 789 ; Westmeath v. Westmeath, 2 Hagg. Supp. (2 
 E. E. R.) 1.) 
 2'. The Causes for Divorce a vinculo wMrimonii, in 
 England. 
 
 The common law (adopting the canon) holds that 
 marriage duly contracted is absolutely indissoluble 
 for any supervenient cause whatsoever, not even ex- 
 cepting adultery. But, as we have seen, there are 
 sundry, impediments and disabilities {ante p. 234 & 
 seq. I''), and 237 & seq. 2^), which render the mar- 
 riage either voidable or actually void, either because 
 the connection is deemed to be sinful, or because, 
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258 HUSBAIirD AND WIFE. [bOOK I, 
 
 whether sinful or not, it is contrary to jmhlic policy. 
 In any of these cases the proper courts may pro- 
 nounce a sentence of divorce a vinculo matrimonii, 
 not so much invalidating the marriage as declaring 
 the legal conclusion that it was an unlawful connec- 
 tion, and necer toas a marriage at all. If for any 
 supervenient cause (e. g., adultery), a divorce a vin- 
 culo is desired, it can be had only through means of 
 a special act of parliament, passed for the purpose, 
 which will ascertain and declare the law of that par- 
 ticular case. (1 Bl. Com. 441, «fe n (34); ante p. 256,. 
 l^^; Bac. Abr. Marr. & Div. (F) 3.) 
 W. C. 
 I''- Canonical Impediments. 
 
 Consanguinity, affinity, and natural or incurable 
 impotency of body at the time of the marriage are 
 the causes of divorce of this class, now existing in 
 England, pre-contract having been finally abolished 
 as an impediment to a siibsequent marriage, by sta- 
 tute 26 Geo. n, c. 33 (A. D. 1754), as already ex- 
 plained. (1 Bl. Com. 434-'5, 440 ; Ante,-p. 233, 1''.) 
 The courts charged in England with this juris- 
 diction have been, until 1858, the ecclesiastical 
 courts, which proceed in it upon the ground that, 
 the connection being adjudged sinful, the offenders 
 should be separated, and the marriage dissolved 
 pro salute animarum. But when dissolved, as it is 
 thereby judicially ascertained to have been always 
 unlawful, it is annulled, not from the time of the 
 sentence only, but ab initio. The issue, therefore, 
 is bastardized, and all rights of property growing 
 out of the marriage are for the most part defeated. 
 (1 Bl. Com. 434, 435, 440.) 
 
 And since this jurisdiction was exercised by the 
 spiritual com-ts purely pro salute animarum, they 
 were not permitted to proceed after the death of 
 either party; and if it were attempted, the Court 
 of King's Bench was accustomed to award a writ 
 of Prohibition to restrain it. Hence, it has come to 
 be a settled maxim of the common law that a mar- 
 riage merely voidable is not capable of being annulled 
 after the death of either consort, a maxim so conso- 
 nant to sound policy that it ought to prevail apart 
 from the technical reason on which it is based. (1 
 Bl. Com. 434-'5; Elliott v. Gurr, 2 Phill. (1 E.E. 
 E.) 16.) 
 
 By statnte of 1858 (20 & 21 Vict. e. 85), the 
 juriscgg^Ug^gr ^^^^j^(^l causes, so long exer- 
 
CHAP.XT.J HUSBAND AND WIFE. 259 
 
 cised by the Ecclesiastical courts, was tran^erred to 
 a new court, by that statute created, styleid the 
 "Court for Divorce and Matrimonial Causes," 
 which governs itself by the same general rules and 
 principles as formerly prevailed in the courts eccle- 
 siastical. (Wms. Fers. Prop. 492; 1 Broom & 
 Hadley's Com. (B. I) 358.) 
 2^. Civil or Legal Disabilities. 
 
 The legal or civil disabilities which, it will be 
 remembered, are prior marriage, want of age, want 
 of reason, and want of consent of parents or guar- 
 dians {ante, p. 237, & seq., 1'), make the marriage 
 (except in the last case) actually void in England, 
 without any sentence whatsoever. But as, in gene- 
 ral, no prudent person would choose to determine 
 for himself either the existence of the facts upon 
 which the nullity of the marriage is based or their 
 legal effect, it is not unfrequent to seek a formal 
 decree of divorce on account of prior marriage still 
 subsisting, want of age, and want of reason. The 
 divorce, of course, is always a vinculo matrimonii, 
 and ascertaining, as it does, that the connection was 
 only a meretricious and not a matrimonial union, 
 declares it to have been void ab initio, of course 
 bastardizing the issue, and more entirely invalidating 
 all rights of property connected with the marriage 
 than even a divorce for the canonical impediments. 
 (Bac. Abr. Mar. & Div. (F), 3; Wightman v. Wight- 
 man, 4 Johns. Ch. E. 343.) 
 2^. The Causes for the several kinds of Divorce in Vir- 
 ginia; W. C. 
 1'. The Causes for Divorce a mensa et toro in Virginia. 
 These are determined by the provisions of the 
 statute upon the subject, which declares that "a di- 
 vorce from bed and board may be decreed for cruelty, 
 reasonable apprehension of bodily hurt, abandonment or 
 desertion" (V. C. 1873, c. 105, § 7), which is little, if 
 anything, more than an enactment of the common 
 law as always administered in England in the spirit- 
 ual courts; 
 W. C. 
 1*. Cruelty. 
 
 What is cruelty has been already explained {ante 
 p. 256, 2^), and to that passage reference is now 
 made. 
 2\ Reasonable Apprehension of Bodily Hurt. 
 
 This reasonable apprehension of bodily hurt is 
 
 included by Sir Wm. Scott under the idea of 
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260 HUSBAND AND WIPE. [bOOK I. 
 
 cruelty. It must be a reasonable apprehension, not 
 an apprehension arising from an exquisite and 
 diseased sensibility. Petty vexations applied to 
 such a constitution of mind may certainly in time 
 wear out the animal machine, but they are not 
 cases of legal relief. People must relieve them- 
 selves as well as they can by prudent resistance, — 
 by calhng in the succors of religion, and the con- 
 solation of friends, — but not the aid of the courts. 
 (Evans v. Evans, 1 Hagg. C. K. (4 E. E. E.) 35, 
 37; Popkins v. P©pkins, 1 Hagg. (3 E. E. R.) 
 733; Anie-p. 256-'7, 2^; Huhne v. Huhne, 2 Add. 
 (2 E. E. E.) 27; Otway v. Otway, 2 Phill. (1 E. 
 E. E.) 95 ; Oliver v. Oliver, 1 Hagg. C. E. (4 E. 
 E. E.) 361.) 
 Z^ Abandonment, or Desertion. 
 
 No period for the continuance of the abandon- 
 ment or desertion (it is not perceived that there is 
 any difference in their meaning), is prescribed, but 
 it is certainly less than five years, for if it continues 
 so long as that, it is cause for a divorce a vinculo 
 matrimonii (V. C. 1873, c. 105, § 6) ; and if, pre- 
 vious to the lapse of the five years, there be a sen- 
 tence of divorce a mensa et tore, after the expiration 
 of that time, it may be converted into a divorce a 
 vinculo. (V. C. 1873, c. 105, § 15.) 
 
 Wherever there is an actual breaking off of 
 matrimonial cohabition, combined with the intent to 
 desert in the mind of the offender, without legal 
 cause or excuse, a desertion is established. Of that 
 intent the court must in some way be aiiirmatively 
 satisfied. It may be proved, with more or less pro- 
 bability, by a great variety of circumstances ; as, 
 for instance, by leaving the consort with a declared 
 intention never to return; by absence for a long 
 time, without reasonable necessity; by making no 
 provision for a wife, when of ability to do so ; by pro- 
 hibiting the consort from following, and the like. 
 (Bish. Marr. & Div. § 506, 511, 520 ; Gregory v. 
 Pierce, 4 Mete. (Mass.) 478; Bailey v. Bailey; 21 
 Grat. 47-'8; Carr v. Carr, 22 Grat. 168.) 
 
 In Bailey v. BaUey, (21 Grat. 47), the letters of 
 the parties were admitted to show the husband's 
 intention to abandon his wife, the tenor of the let- 
 ters, with the circumstances, excluding, in the 
 opinion of the court, all possibility of collusion. 
 The conduct of the husband otherwise, was also 
 
CHAP. XV. HUSBAND AND WIFE. 261 
 
 his intent. He was a professional gambler, and 
 having married his wife in July, 1865, left her in 
 November of that year, to ply his nefarious trade 
 in the cities, and during the next two years visited 
 her but once, then remained only a fortnight, left her 
 without taking leave, and upon returning, after her 
 bill for a divorce was iiled, spurned her offer to be 
 reconciled, and refused to visit his ill child, lest he 
 might meet her. (21 Grat. 52.) 
 2'. The Causes for Divorce a vinculo matrimonii in Yir- 
 ginia; W. C. 
 l'^- Causes for Divorce a vinculo matrimonii existing at 
 the time of the Marriage. 
 
 The causes of divorce a vinculo matrimonii, ex- 
 isting at the time of the marriage, may be thus enu- 
 merated, namely, (1) Prior marriage, when the 
 consort still survives; (2), Want of age; (3), Dif- 
 ference of race, one party being white, and one 
 negro; (4), Want of reason; (5), Natural or incur- 
 able impotency of body at the time of marriage; 
 (6), Consanguinity or affinity ; (Y), Conviction of 
 either party of an infamous offence prior to the 
 marriage, without the knowledge of the other; (8), 
 Pregnancy of the wife at the time of the marriage, 
 without the knowledge of the husband, by some 
 person other than he; (9), Notorious prostitution 
 of the wife prior to the marriage, without the 
 knowledge of the husband; and, (10), Fraud or 
 force. 
 W. C. 
 1^. Prior Marriage, where the Consort still survives. &c. 
 We have seen that a marriage, where either of 
 the parties has a consort then living, is declared 
 to be absolutely void, without any decree of divorce 
 or other legal process (Y. C. 1873, c. 105, § 1; 
 ante -p. 241, 1'). Notwithstanding, it may be, and 
 generally is, desirable to have a judicial sentence, 
 ascertaining the fact of such prior marriage, 
 especially if the party complaining contemplates 
 marrying again. Accordingly, our statute makes 
 provision for instituting a suit to annul the second 
 marriage, or rather to declare it null and void 
 from the beginning. (Y. C. 1873, c 105, § 4 ; 
 Bac. Abr. Marr. & Div. (F.) 3 ; Wrightman v. 
 Wrightman, 4 Johns. Ch. E. 343.) 
 2\ Want of Age. 
 
 The age of consent to marriage, it will be re- 
 mem^^iyij^ /yfiic/^Sff^ngland, is fourteen in 
 
262 HUSBAND AND WIFE. [bOOK I. 
 
 males, and twelve in females. And in this instance 
 also, although the marriage is by the statute ex- 
 pressly declared to be absolutely void, without 
 any decree of divorce or other legal process, if the 
 parties separate during non-age, and do not co- 
 habit afterwards, yet a decree of divorce may, not- 
 withstanding, be obtained, and in general it would 
 be expedient to obtain it. And it must be ob- 
 served that a party who at the time of the mar- 
 riage was capable of consenting, with a party not 
 so capable, is not allowed to institute a suit for 
 the purpose of annulling the marriage. (V. C. 
 1873, c. 105, §3, 4.) 
 3'. Difference of Race — one party being white, and 
 the other a negro. 
 
 This, also, is one of the three causes which per se 
 invalidate a marriage, without any decree of di- 
 vorce, or other legal process ; but it may also be 
 ground of divorce a vinculo matrimonii, if desired. 
 (V. C. 1873, c. 105, § 1, 4.) And as in the two 
 preceding cases (1' and 2'), so iu this, it is the part 
 of pmdence to obtain such a divorce, especially if 
 the complainant desires to marry again. 
 4'. "Want of Reason. 
 
 The want of reason, in Virginia, renders a mar- 
 riage voidable, but not void, so that a decree of di- 
 vorce a vinculo matrimonii is indispensable in order 
 to invalidate it ; and it is believed that such de- 
 cree must be obtained in the life time of the parties, or 
 else that the marriage is thenceforward unimpeach- 
 able. [Ante p. 258, l"^ ; V. C. 1873, c. 105, § 1, 4.) 
 5'. Natural or Incurable Impotency of Body at the 
 time of Marriage. 
 
 This renders the marriage voidable only, and so 
 
 makes a decree of divorce a vinculo, during the 
 
 life time of both parties indispensable, in order to 
 
 dissolveit. (^ntep.258, I''; V.C.1873,c.l05,§6.) 
 
 6'. Consanguinity or Affinity. 
 
 The marriage being for these causes only void- 
 able, a decree of divorce a vinculo, in the life time 
 of both parties, is required in order to invalidate 
 it. (Ante p. 258, 1"^ ; V. C. 1873, c. 105, § 1, 4.) 
 7^. Conviction of either party of an infamous offence, 
 prior to the marriage, vrithout the knowledge of 
 the other. 
 
 The marriage being voidable only, requires a de- 
 cree of divorce a vinculo, in the life time of both 
 j,a.TtiBigltiz®ddky Miommt^ But no divorce is to 
 
OHAP. XV.] HUSBAND AJST3 WIFE. 263 
 
 be decreed if the party complaining has dohabited 
 with the other party after knowledge of such con- 
 viction. (V. C. 1873, c. 105, § 6 ; Ante p. 258, V.) 
 The propriety of allowing such a cause of di- 
 vorce as this admits of not a little question. (See 
 ante p.. 241, 4'.) 
 
 8'. The Pregnancy of the "Wife at the time of the mar- 
 riage without the knowledge of the Husband, by 
 some person other than he. 
 
 Here also, and for the same reason, there must 
 be a sentence of divorce a vinculo, in the life time 
 of both parties, in order to annul the marriage. 
 But no divorce is to be decreed if the husband has 
 cohabited with his wife after knowledge of the fact 
 that she was enceinte. {Ante p. 258, 1^; Y. C. 
 1873, c. 105, § 6.) 
 
 9\ The notorious Prostitution of the "Wife prior to the 
 marriage, without the knowledge of the Husband. 
 The marriage being, in such case, voidable only, 
 must be annulled by decree of divorce o vinculo in 
 the life-time of both parties. But no divorce is to 
 be decreed if the husband has cohabited with the 
 wife after knowledge of the fact that she had been, 
 prior to the marriage, notoriously a prostitute. 
 {Ante p. 258, 1"; V. C. 1873, c. 105, § 6.) 
 
 10^ Fraud or Force. 
 
 Every other contract being vitiated hj fraud and 
 force, there can hardly be a doubt that the contract 
 of marriage is too, although our statutes make no 
 mention of either. It seems to have been so as- 
 sumed by Sir "Wm. Scott, and the law is so stated 
 by Chan. Kent, and impliedly by Lord Coke, who 
 enumerates amongst the causes of divorce a vinculo, 
 " causa prmcontr actus, causa metus," &c. (2 Kent's 
 Com. 76; 1 Th. Co. Lit. 125; Bish. Marr. & Div. 
 § 100 to 120 ; Fulwood's Case, 4 Cro. ( Jac.) 493 ; 
 Dalrymple v. Dalrymple, 2 Hagg. C. E.. (4 E. E. 
 E.) 44, 104; Franklin v. Franklin, with other 
 cases in note to King v. Billinghurst, 3 M. & 
 S. 259; Harford v. Morris, 2 Hagg. C. R. (4 E. 
 E. R.) 423 ; Portsmouth v. Portsmouth, 1 Hagg. 
 (3 E. E. R.) 355.) 
 
 The frauds, however, which justify a dissolution 
 of the marriage are not deceits touching fortune, 
 station in society, previous condition, health, &c., 
 which form an answer to an action for not fulfil- 
 ling a promise to marry. To allow any of these 
 
 to vacate the relation actually assumed of husband 
 Digifizea by Microsoff® '' 
 
264 HUSBAND AND WIPE. [bOOE IJ 
 
 and wife, would be grievously injurious to society. 
 But they are frauds relating to the identity of the 
 person, and, it is believed, those only. (1 Bl. Com. 
 439, n (24); Wilson v. Brockley, 1 Phill. 137;: 
 Stayte v. Farquharson, 3 Add. (2 E. E. R.) 282 ; 
 Bish. Marr. & Div. § 115, 116, 117, 120.) 
 2''- Causes in Virginia for divorce a vinculo mairimonii 
 superveniag after Marriage. 
 
 The causes in Virginia for divorce a vinculo matri- 
 monii which supervene after marriage are these 
 four — ^namely, (1) 'Adultery ; (2) Sentence of either 
 party to the penitentiary; (3) Indictment of either 
 party for felony, when such party is a fugitive from 
 justice, and has been absent for two years; and (4) 
 Wilful abandonment or desertion for Jive years. 
 (V. C. 1873, c. 105, § 6.) 
 W. C. 
 1^ Adultery. 
 
 The same general principles, as to adultery, pre- 
 vail in Virginia as in England (see ante p. 255 & 
 seq. 1"), except that in Virginia it is a cause of 
 divorce a vinculo, and not, as in England, merely 
 of divorce a mensa, &c. It is specially provided 
 that the divorce shall not be granted if the parties 
 have voluntarily cohabited after knowledge of the 
 adultery, or if it occurred more than five years be- 
 fore the institution of the suit, or if it was commit- 
 ted by the procurement or connivance of the plain- 
 tiff; and also, that in granting a divorce for 
 adultery, the court may decree that the guilty party 
 shall not marry again, in which case the bond of 
 matrimony is not dissolved as to that party. But 
 this restriction the court may afterwards, for good 
 cause, remove. Nor, indeed, will it be imposed 
 without reluctance, experience having proved how 
 pernicious to society is the presence in it of a hus- 
 band without a wife, or a wife without a hxisband. 
 (V. C. 1873, c. 105, § 6, 11, 14; 2 Kent's Com. 
 100, &c.; 1 Bl. Com. 441, n (38).) 
 2\ Sentence of either Party to the Penitentiary. 
 Where either party is sentenced to confinement 
 in the penitentiary (which supposes conviction of a 
 felony), a divorce a vinculo matrimonii may be de- 
 creed, and no pardon granted to the party sentenced 
 shall restore his or her conjugal rights. (V. 0. 
 1873, c. 105, i 6.) 
 
 How far this cause of divorce is warranted, by 
 sound^g^j^i^/j^^5§^^he morals and order- 
 
CHAP. XV.J HUSBAND AND WIFE. 265 
 
 of society, well deserves the grave consideration 
 of the Legislature. To the writer it seems as lit- 
 tle to be reconciled with wise policy as with the 
 precepts of the Scriptures. See Mat. v. 31, 32; 
 Id xix. 5 to 10; Mark x. 7 to 12-. 
 3\ Indictment of either party for Felony, when such 
 party is a fugitive from justice, and has been ab- 
 sent for two years. 
 
 Where either party charged with an offence, pun- 
 ishable by death or confinement in the penitentiary 
 (that is, charged with a. felony, V. C. 1873, c. 195, 
 § 1), has been indicted, is a fugitive from justice, 
 and has been absent for two years, a divorce from 
 the bond of matrimony may be decreed. (V. C. 
 1873, c. 105, § 6.) 
 
 This belongs to the same category as the pre- 
 ceding, and is liable to the same observation. As 
 a more recent instance of legislation, looking in 
 the same direction, it is yet more to be deplored. 
 It is vain to expect that individuals will conform 
 their conduct to even the coarser rules of morality 
 and virtue, when the laws of the land admit and 
 encourage a license at variance with the spirit of 
 Christian teaching, and hardly to be reconciled 
 with its letter. 
 4^. Wilful Abandonment or Desertion fcyr jive years. 
 
 Where either party wilfully abandons or deserts 
 the other iov jive years, a divorce from the bond of 
 matrimony may be decreed to the party aban- 
 doned; and if before the lapse of five years a 
 divorce a mensa ei toro be granted (as described, 
 ante p. 260, &c. 3K),itmay be converted after the 
 expiration of that time into a divorce a vinculo. 
 (Y. C. 1873, c. 106, § 6, 15.) 
 
 Abandonment is so grave an offence against the 
 obligations of marriage, and so mischievous, as 
 tending, amongst other evils, to tempt the party 
 abandoned, if not the other also, from the paths of 
 virtue, as to merit severe reprobation, and to 
 afford a somewhat more sufficient reason for dis- 
 solving the marital relation than some of those 
 previously passed in review. The Saviour appears 
 to refer to those pernicious consequences of deser- 
 tion when he says (Mat. v. 32), " Whosoever shall 
 put away his wife, saving for the cause of fornica- 
 tion, caicseih her to commit adultery." At all events, 
 such consequences do in fact frequently result. 
 
 (S^^*?/5fdSyfe/Wld,/fe^l^ill- (E- E- ^■) 125; 
 
266 HUSBAND AND WIFE. * [bOOK I. 
 
 Sullivan v. Sullivan, 2 Add. (2 E. E. E.) 299; 
 Morgan v. Morgan, 2 Curt. (7 E. E. E.) 679.) It 
 ought to be observed, bowever, that so profound 
 and judicious a moralist as Sir Wm. Scott was of 
 opinion that desertion, unless in conjunction with 
 acts of cruelty, was never a ground even of sepa- 
 ration. (Evans v. Evans, 1 Hagg. C. E. (4 E. E. 
 E.) 119.) 
 
 We have seen (ante p. 260, 3"^), that to con- 
 stitute desertion or abandonment there must be, 
 first, the actual 'breaking off of matrimonial co- 
 habitation, and secondly, an intent to desert in the 
 mind of the offender, without legal cause or excuse. 
 Both must concur to complete the desertion. A 
 mere separation by mutual consent is not deser- 
 tion in either, nor, as a matter of proof, can deser- 
 tion be inferred against either from the mere 
 unaided fact that the parties do not live together; 
 though protracted absence, with other circum- 
 stances, may establish the original intent. It is 
 obvious, however, and follows from the established 
 principles of evidence, that when the two neces- 
 sary elements of an actual separation, and an in- 
 tent to desert, are once shown, the same intent 
 will be presimied to continue until the contrary 
 appear. (Bish. Marr. & Div. § 506, 511 ; 1 Greenl. 
 Ev. § 41, 42; Gray v. Gray, 15 Ala. 779; Bailey 
 V. Bailey, 21 Grat. 47; Carr v. Carr, 22 Grat. 172.) 
 The abandonment or desertion, therefore, which is 
 cause for a divorce a vinculo matrimonii, differs 
 from that which is cause for a divorce a mensa, &c., 
 in nothing save only duration. The fact of aban- 
 donment, with the intent to desert, must be estab- 
 lished in either case; and when it has continued 
 for ^ve years it warrants a decree of divorce from 
 the bonds of marriage. 
 3^. The Courts charged with the Cognizance of Divorce 
 Causes; W. C. 
 I''. The Courts which in England have Cognizance of 
 Divorce Causes. 
 
 They were formerly the Courts Ecclesiastical, which 
 for many ages had jurisdiction of all matrimonial 
 causes in that country. Originally the cognizance of 
 such caTises belonged to the temporal courts, but be- 
 cause matrimony by the Eomish Church (which, un- 
 til the Eeformation, was the Church of England) was 
 deemed a sacranient; because also it was celebrated 
 (at least iis^^^yif^f^^ffg^lmioceQ.i III, A. D. 
 
OKAP. XV.] HUSBAND AND WIFE. 267 
 
 1200) by a person in orders, whose conduct was under 
 the Diocesan's inspection ; and because, lastly, in case 
 of the Levitical degrees in particular the ecclesiastics 
 were presumed to be the best judges of the true mean- 
 ing of God's law, the jurisdiction has for several cen- 
 turies been vested in the church courts. (1 Bl. Com. 
 434, 440, 441; 2 Burn's Eccles. Law, 486.) 
 
 But ill 1858, by Stat. 20 & 21 Yict. c. 85, the juris- 
 diction over causes matrimonial was transferred to a 
 new court, created by that statute, styled the " Court 
 for Divorce and Matrimonial Causes," which governs 
 itself by the same general rules and principles as 
 formerly prevailed in the Ecclesiastical Courts. 
 ("Wms. Pers. Prop. 492; 1 Broom & Hadley's Com. 
 (B. I) 358.) 
 S''. The Courts which in Yirginia have Cognizance of 
 Divorce Causes. 
 
 There never having been any ecclesiastical courts 
 in Yirginia, matrimonial causes have always been of 
 necessity committed to temporal courts. Except only 
 in the instance of incestuous marriages, which are 
 crimes, and like other crimes are cognizable (that is, 
 when prosecuted as crimes) in the county and cor- 
 poration courts, the depositary of this delicate and, 
 important jurisdiction is the circuit and corporation 
 courts, on the chancery side thereof. (Y. C. 1873, c. 
 105, § 18; Id. c. 192, § 3: Id. c. 154, § 5, 38; Id. c. 
 155, § 2; Acts 1874-'5, p. 364, c. 271 ) 
 
 But no such suit is maintainable in the Yirginia 
 courts at all, unless the parties, or one of them, is a 
 resident of the State — that is, dom,iciled in it (Stor. 
 Confl. L. § 225, 227) at the time of bringing the suit. 
 (Y. C. 1873, c. 105, § 8.) 
 
 Let us observe, (1), The circuit or corporation court 
 of what county or corporation has cognizance of a di- 
 vorce cause ; (2), The modes of proceeding in divorce 
 causes; and (3), The powers belonging to the court; 
 W. C. 
 1'. The Circuit or Corporation Court of what County 
 or Corporation has cognizance of Divorce causes. 
 
 The statute prescribes that the suit shall be brought 
 in the county or corporation in which the parties last 
 cohabited, or (at the option of the plaintiif ) in which 
 the defendant resides; or if the defendant is not a resi- 
 dent, then in which the plaintiff resides. (Y. C. 1873, 
 c. 105, § 8.) 
 2\ The Modes of Proceeding in Divorce Causes ; W. C. 
 
 Digitized by Microsoft® 
 
368 HUSBAND AST) WIFE. [bOOK I. 
 
 1*. Mode of Proceeding in case of Incestuous Mar- 
 riages. 
 
 An incestuous marriage is a crime, and for an of- 
 fence so repugnant to decency and virtue, the parties 
 are liable to be indicted in the law courts (with us the 
 county and corporation courts), which have general 
 cognizance of crimes. Each may be lined not exceed- 
 ing $500, and imprisoned in the jail not more than 
 six months, and the marriage is void from the time 
 of the conciction. (Y. C. 1873, c. 192, § 3 ; Id. c. 105, 
 §1; Acts ISTdt-'S, p. 364, c. 271.) 
 
 But whilst this method is provided in order to 
 punish and separate the parties, for the sake of so- 
 ciety, to wliich the connection is offensive, either of 
 them may apply to the proper circuit or coi-poration 
 court 171 chancery, and procure from it a sentence of 
 nullity. (V. a 1873, c. 105, § 6, 4.) 
 2*. Mode of proceeding in all other cases than those 
 of Incestuous Marriages, treated as Crimes. 
 
 The application must be made in all other cases 
 than incestuous marriages treated as crimes, to the cir- 
 cuit or corporation courts in chancery. It may be 
 made by either party, and the suit is instituted and 
 conducted like other suits in equity, except that 
 the bill shall not be taken for confessed, and whether 
 the defendant answer or not, the cause shall be 
 heard independently of admissions of either party, in 
 the pleadings or otherwise. And costs may be 
 awarded to either party, as justice may require. 
 (Y. C. 1873, c. 105, § 9.) 
 
 The object of these provisions is to prevent a di- 
 vorce from being obtained by the collusion of the 
 parties ; and they are no more than an enactment of 
 principles which have always prevailed in matri- 
 monial causes, as we have seen. {Ante, p. 256, 1''; 
 Bailey v. Bailey, 21 Grat. 50 ; 2 Burn's Eccles. L. 
 504— '5.) Xeither the common law rule nor the 
 statutory enactment excludes proof of the admissions 
 and statements of the parties. Their only effect is to 
 prohibit a sentence from being founded wholly upon 
 such admissions. When collusion is proved not to 
 exist, admissions, whether verbal or contained in 
 letters, are peculiarly satisfactory evidence; and 
 especially is it so when the letters were wi'itten, or 
 the verbal statements made, without reference to the 
 controversy touching the divorce. (Bailey v. Bai- 
 ley, 21 Grat. 50, 51.) 
 3\ The YoWWF^ixSd^r^itiOFdBomG. 
 
•CHAP. XV.J ■ HUSBAND AND WIFE. ' 269 
 
 1\ The Powers of the Coui-t pending the Suit for a 
 Divorce. 
 
 The court in term, or the judge in vacation, may 
 at any time pending the suit, make any proper 
 order, (1st), to compel the man to pay any sums 
 necessary for the maintenance of the woman, and 
 to enable her to carry on the suit; or (2d), to pro- 
 vide for the custody and maintenance of the minor 
 children of the parties during the pendency of the 
 suit; or (3d), to preserve the estate of the man so 
 that it may be forthcoming to meet the decree ; or 
 (ith), to compel him to give secm'ity to abide such 
 decree. (Y. C. 1873, c. 105, § 10.)' 
 2^^. The Powers of the Court in making its Decree ; 
 W. C. 
 1^. In respect to the Estate and Children of the 
 Parties. 
 
 Upon decreeing the nullity of a marriage, or a 
 divorce, either a mensa, &c., or a vinculo matri- 
 monii, the court may make such further decree as 
 it shall deem expedient, concerning the estate and 
 Tnaintenance of either party, and the care, custody, 
 and maintenance of their minor children; and from 
 time to time afterwards, on the petition of either 
 parent, alter such decree as to the care, custody, 
 and maintenance of the children, as the circum- 
 stances of the parents and the benefit of the chil- 
 dren may require. But it is to be understood that 
 the court may not, by any such decree in the in- 
 terest of the wife, interfere with or defeat the 
 vested rights of creditors, or of bona fide alienees or 
 incumbrances, which attached on the property 
 previous to the institution of proceedings in the 
 divorce-suit, if the husband had any right so to 
 aliene or charge the property. (Y. C. 18T3, c. 
 105, § 12; Jennings, &c. v. Montague, 2 Grat. 
 350; Carr v. Carr, 22 Grat. 174.) 
 2^. In respect to the Separation of the Parties. 
 
 In granting a divorce a mensa et toro, the court 
 may decree that the parties be perpetually separated, 
 and protected in their persons and property; which 
 shall operate upon property thereafter acquired, 
 and upon the personal rights and legal capacities of 
 the parties, as a decree for a divorce from the 
 bond of matrimony — except that neither party shall 
 marry again during the life of the other. But a 
 decree of perpetual, or of limited separation, may 
 be revoked at any time by the court which pro- 
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270 HUSBAND AND WIFE. [bOOK I. 
 
 nounced it, under sucli regulations and restrictions 
 as the court may impose, upon the joint applica- 
 tion of the parties, and satisfactory evidence of 
 their reconciliation, (Y. C. 1873, c. 105, § 1). 
 And a divorce a mensa, &c., for desertion, may 
 after five years, if the desertion still continues, be 
 converted into a divorce from the bond of matri- 
 mony. (V. C. 1873, c. 105, § 15.) 
 3^. Prohibition upon the Legislature, in Yirginia, to 
 grant Divorces. 
 
 From the foundation of the colony, the legislature 
 in Virginia had exercised the power of granting 
 divorces a mensa and a vinculo, by special act; nor 
 for more than a century was there any other power 
 known, to the law by which a divorce of either kind 
 could be brought about. In 1730, jurisdiction to 
 pronounce a sentence of divorce, in cases of consan- 
 guinity and affinity, was conferred on the general 
 court, composed of the governor and council, (4 Hen. 
 Stats. 245), which jurisdiction was, after the Revolu- 
 tion, by act of 1788 (12 Hen. Stats. 688), transferred 
 to the superior court of chancery, and afterwards to 
 the superior courts of law. This exercise of power 
 by the legislature seems to have been in imitation of 
 the British parliament, although, as being a judicial 
 act, it was substantially prohibited by the Constitution 
 of 1776, which, in the allotment of functions to the 
 several departments of government, specially and ex- 
 pressly provided that neither should exercise the powers 
 belonging to another. (Va. Const. 1776, Art. 3; 1 
 Tuck. Bl. (Pt. II) 441, n 19.) 
 
 The legislature was a very unsuitable body to 
 which to commit the function of granting divorces, 
 but it seems to have exercised its authority with com- 
 mendable caution. In 1827, provision was first made 
 by law to confer jurisdiction upon the superior courts 
 of chancery, to hear and determine suits for the disso- 
 lution of marriage, for the causes of natural or incur- 
 able impotency of body at the time of the marriage,, 
 for idiocy and bigamy ; and to grant divorces a mensa 
 et toro for adultery, cruelty, and just cause of bodily 
 fear; the legislature, however, still interposing in all 
 other cases, and even in these, when it thought fit so 
 to do. (Acts 1826-'7, p. 21, c. 23.) And in 1848, an 
 act was passed which, after reciting that applications 
 to the legislature for divorces a vinculo matrimonii are 
 becoming frequent, and occupy much time in their 
 consider^PJ2^^yqflijyg^^gj^@iivolve investigations 
 
CHAP. XV.j HUSBAND AND WIFE. 271 
 
 more properly judicial in their nature, bestowed upon 
 the superior courts of chancery jurisdiction to decree 
 divorces a vinculo for adultery also ; which was rather 
 an impotent and narrow conclusion after so compre- 
 hensive a preamble. To this the revisal of 1849 
 added, as cause of divorce by the chancery court, sen- 
 tence to the penitentiary for life, or for seven years or 
 more. (Acts 1847-'8, p. 165, c. 122.) These acts, 
 however, and especially the last but one, prepared the 
 way for a judicious provision in the Constitution of 
 1851, which is found also in the Constitution of 1869 
 (Art.V, §20), declaring that "the General Assembly 
 shall confer on the courts the power to grant divorces, 
 but shall not by special legislation grant relief." 
 This constitutional provision made it needful to enu- 
 merate in detail all causes whatsoever, which should 
 be sufficient, under any circumstances, to warrant a 
 divorce a mensa, or from the bond of marriage re- 
 spectively, the legislature having now no power to 
 grant special relief; and the result was the very copi- 
 ous catalogue already set forth. (V. C. 1873, c. 105, 
 § 1, 3, 6, 7, 15.) 
 4fi. The Effects of Divorce. 
 
 Let us consider the effect of divorce (1), in Eng- 
 land, and (2), in Virginia ; and in both countries in the 
 following several aspects, namely: (1), In respect to 
 the legal capacities and incapacities of the parties ; (2), 
 In respect to the legitimacy of the issue; and (3), In 
 respect to the estate of the parties; 
 W. C. 
 V". The Effect of Divorce in England; W. C. 
 1'. In respect to the legal Capacities and Incapacities 
 of the Parties; W. C. 
 I''. Effect on the legal Capacities and Incapacities of 
 the Parties, wrought by a Divorce a mensa et toro. 
 A divorce a m-ensa, &c., does not, as we have 
 seen, annul the relation of husband and wife ; she is 
 still a fem,e covert, and is under all the disabilities 
 of coverture. She can make no contract binding 
 on herself personally, cannot sue nor be sued alone, 
 and her property remains subject, as before, to her 
 husband's control. On the other hand, the hus- 
 band continues under his marital obligation to pro- 
 vide the wife with necessaries, although her power 
 to charge him as his agent is much circumscribed, 
 and for the most part ceases altogether. ISTeither 
 party can marry again, and the husband's control 
 
 of the wife's person is necessarily suspended as Ions 
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212 HUSBAND AND -V^IFE. [BOOK I. 
 
 as the separation continueB. During that time, in- 
 deed, the cohabitation of the parties, without leave 
 of the court, is regarded and punished as a con- 
 tempt; and any issue which the wife may have is 
 prima facie illegitimate, although that presumption 
 may be repelled by proving the husband's access. 
 (2 Bright H. & Wife, 262; Bac. Abr. Marr. & 
 Div. (F).) 
 
 2^- Effect on the legal Capacities and Incapacities of 
 the Parties, wrought by a Divorce a Vinculo Mat- 
 rimonii. « 
 
 A divorce a vinculo matrimonii annuls the mar- 
 riage, leaves both parties free to marry again, lib- 
 erates the wife from the restrictions of coverture, 
 and enables her to bind herself personally by con- 
 tracts, and to sue and be sued without her husband. 
 It discharges her freehold estates, her terms for 
 years (her chattels real), and her chases in action, still 
 unreduced into possession, from the husband's do- 
 minion and control, and relieves him of all obliga- 
 tion to supply her with necessaries. (2 Bright H. 
 & Wife, 364, &c.; 1 Bl. Com. MO, n (29).) 
 2\ In respect to the Legitimacy of the Issue; W. C. 
 
 1". Legitimacy of the Issue, in case of a Divorce a 
 Mensa et Toro. 
 
 As the marriage is undissolved, it follows, of 
 course, that the legitimacy of the issue previously 
 begotten is in no wise affected, but it is presumed 
 that the parties obey the sentence of the court 
 which separates them, and do not afterwards co- 
 habit; and hence, as we have seen, if the wife have 
 cliildren which in the course of nature must have 
 been begotten after the sentence, they are prima 
 facie bastards, although the presumption may be 
 repelled by proving that the husband had access. 
 (Bac. Abr. Marr. & Div. (F.) ; 2 Kent's Com. 127.) 
 
 a 
 
 2^- Legitimacy of the Issue, in case of a Divorce 
 Vinculo Matrimonii. 
 
 It must be remembered that, in England, a di- 
 vorce a vinculo is obtainable from the courts only 
 for causes existing at the time of marriage, which 
 make the connection an unlawful one from its in- 
 ception. Such a divorce, therefore, annuls the 
 marriage ab initio, and consequently bastardizes the 
 issue. (1 Bl. Com. 440 ; Bac. Abr. Marr. & Div. 
 (F.) ; 2 Bright's H. & Wife, 367.) 
 
 When a divorce a vinculo, for a supervenient 
 
 cause, <SlSttf^^'Mom%'^^^ ^' '' ^^^* ^^ ^y 
 
■CHAP. XV.J HUSBAND ANB WIFE. 273 
 
 special act of Parliament, the act ascertains the 
 whole law of the case, as to the legal capacities of the 
 parties, the effect on their property, respectively, 
 and the legitimacy of the issue. 
 3'. In respect to the Estate of the Parties ; W. C. 
 1". Effect as to the Estate of the Parties of a Divorce 
 a Mensa et Toro ; W. C. 
 V: Effect independently of any Special Order of Court. 
 A divorce a mensa, &c., of itself operates noth- 
 ing as to the property-interests of the parties. 
 The marital rights of both remain unimpaired, in 
 statu quo. (2 Bright H. & Wife, 362, &c.) 
 2'. Effect by- Special Order of Court. 
 
 The courts of matrimonial causes in England 
 are accustomed, in general, to accompany decrees 
 of divorce a mensa with a decree for alimony. Ali- 
 mony is the allowance made to a wife for her sup- 
 port out of her husband's estates. The amount is 
 settled by the court, in its discretion, upon consid- 
 eration of all the circumstances ; allowing less 
 where the husband has children to maintain, or 
 when his income is derived from his personal ex- 
 ertions, and more where much of the property has 
 come by the wife, where the income is derived 
 from investments, or where she supports the chil- 
 dren. In several instances one-third of the hus- 
 band's income has been assigned, in some one-half, 
 and in one only one-fifth. Where the husband is 
 in fault, the court will not seek to find how light 
 the burden may possibly be made, but what, under 
 all the circumstances, will be a fair and just allot- 
 ment. And when the wife has a separate and 
 adequate income, or the divorce is on account of 
 her adultery, or of her causeless or unjustifiable 
 abandonment of her husband, alimony may be 
 whoUy denied. (1 Bl. Com. Ml ; 2 Bright's H. & 
 Wife, 357 & seq. ; 1 Tuck. Com. 107, ,B. I.; 
 Bish. Marr. & Div. § 611 & seq. ; Cooke v. Cooke, 
 2 Phil. (1 E. E. R.) 40 ; Carr v. Carr, 22 Grat. 168, 
 173.) 
 2*^. Effect as to the Estate of the Parties, of a Divorce 
 a Vinculo Matrimonii; W. C. 
 1^. Effect in case of a Divorce a Vinculo, for a cause 
 existing at the time of the Marriage, in England. 
 
 It will be remembered that the common law 
 (adopting the canon) allows a divorce from the 
 bonds of marriage for no supervenient cause what- 
 soever, not even for adultery ; but only for causes 
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274 HUSBAin) AJSID WIFE. [BOQK U 
 
 existing at the time of the marriage (see ante p. 
 257, 2'). Hence, such a divorce in England, when 
 granted by the courts, always annuls the marriage 
 from the beginning, and consequently extinguishes 
 all the marital rights of the parties in respect to 
 the property of one another, whether in presenii, 
 as the husband's claims to the wife's chattels, or 
 infuiuro, as the claim to dower, curtesy, or dis- 
 tribution. The only qualification to this general 
 principle is that if, before the divorce for a cause 
 which renders the marriage voidable, the husband 
 has bona fide, and without collusion with the pur- 
 chaser, disposed of the wife's chattels for value, 
 regard to the iuterests of the innocent third per- 
 son requires that she should have no remedy to 
 recover them, at least against him. It would 
 seem that she might recover their value of the 
 husband. (1 Dyer, 13 a; Gremeley's Case, 8 Co. 
 73 a ; Cage v. Acton, 1 Lord Kaym. 521 ; Aughtie 
 V. Aughtie, 1 PhHl. (1 E. E. R) 201 ; KeUy v. 
 Scott, 5 Grat. 479; 1 Bl. Com. 440, n (29); 2 
 Bright, H. & Wife, 364). 
 2'. Effect in case of a Divorce a Vinculo for a Cause 
 Supervening after the Marriage. 
 
 The common law, as has been said, admits of 
 divorce a vinculo for no supervening cause, not 
 even adultery. The only mode of obtaining such 
 a divorce for adultery, or other supervening cause, 
 in England is, as we have seen, by special act of 
 parliament, which itself determines, in each in- 
 stance, the law of that case. (2 Bright, H. & 
 Wife, 367.) 
 2''. The Effect of Divorce in Virginia; W. C. 
 
 The effect of a divorce in Virginia is to be viewed 
 in respect, (1), To the legal capacities and incapacities 
 of the parties; (2), To the legitimacy of the issue; 
 and, (3), To the estate of the parties. 
 W. C. 
 1'. Effect of Divorce in Virginia, in respect to the 
 legal Capacities and Incapacities of the parties ; 
 W. C. 
 1'. Effect as to the legal Capacities and Incapacities 
 of the Parties, of a Divorce a Mensa el Tore; W. C. 
 1^ Where there is tio Decree of perpetual Separa- 
 tion. 
 
 The effect is the same as in England. {A.nte 
 p. 271, 1'.) 
 
 2'- '^0W^ty%Pcf^iS£P''^'^ Separatim. 
 
CHAP. XV.J HUSBAND AND WIFE. 275 
 
 Snch decree of perpetual separation is expressly 
 declared by statute to operate upon the personal 
 rights and legal capacities of the parties, as a de- 
 cree of divorce a vinculo, except that neither party 
 can marry again during the life of the other. (V. 
 C. 1873, c. 105, § 13; infra, 2K) 
 2'. Effect as to the legal Capacities and Incapacities 
 of the Parties, of a Divorce a Vinculo Matrimonii. 
 The effect in general is the same as in England. 
 (,A7de p. 272, 2^^; 1 Tuck. Com. 100, B. I.) 
 
 However, in granting a divorce a vinculo, for 
 adultery, the court may decree that the guilty 
 party shall not marry again, in which case the 
 bond of matrimony shall be deemed not to be dis- 
 solved as to any future marriage oi such party; — a 
 restriction which the court may at any time after- 
 wards for good cause remove. In all other par- 
 ticulars even the guilty party is wholly relieved of 
 the incapacities and obligations of coverture. (V. 
 C. 1873, c. 105, § 14; ante p. 264, l^.) 
 
 It has been made a question whether divorces 
 granted under general or by special laws are not 
 inhibited to the States, in respect to marriages pre- 
 viously entered into, as impairing the obligation of 
 contracts (U. S. Const. Art. I, § x, 1); but the doubt 
 seems sufficiently resolved by the considerations 
 that the clause in question refers to no other con- 
 tracts than sueh as relate to property, or pecuniary 
 value, and that divorce laws do not impair the con- 
 tract of marriage, but liberate one party because 
 the contract haa been broken by the ot/ier. (Dart- 
 mouth Coll. V. Woodward, 4 Wheat. 629.) 
 2'. Effect of Divorce in Virginia, in respect to the Le- 
 gitimacy of the Issue ; W. C. 
 1". Legitimacy of the Issue in case of a Divorce a 
 mensa et toro. 
 
 The same principles are applied as in England. 
 Ante p. 272, 1\) 
 2". Legitimacy of the Issue, in case of a Divorce a 
 vinculo matrimonii.. 
 
 There is no need to discriminate in "Virginia as 
 to the legitimacy of the issue between divorces for 
 causes existing at the time of the marriage, and 
 divorces for supervenient causes; or between mar- 
 riages which are absolutely void, without a sentence 
 of divorce, and those which are voidable only. The 
 statute declares that " the issue of marriages deemed 
 null %^^i2eci'^y^j^cfosi)M°^^^' ^^^^^ nevertheless 
 
276 HUSBAND AUD WIFE. [bOOK I. 
 
 be legitimate"; thus wisely sacrificing logical con- 
 sistency to a prudent and humane policy. (Y. C. 
 1873, c. 119, § 7.) 
 3\ Effect of Divorce in Virginia in respect to the 
 Estate of the Parties; W. C. 
 1*^. Effect of a Divorce as to the Estates of the parties, 
 independently of any special order of court; "W. C. 
 1^. In case of a Divorce a mensa et toro; W. C. 
 1™. Where there is no Decree of Perpetual Separa- 
 tion. 
 
 The effect oti the estate of the parties is the 
 same as in England — that is, the parties remain, 
 as to their property, in statu quo. (2 Bright, H. 
 and wife, 362; Ante p. 273-'4, 1"^.) 
 2™. Where there is a Decree of Perpetual Sepor- 
 ration. 
 
 Such decree shall operate upon the property 
 thereafter acquired, and upon the personal rights 
 and legal capacities of the parties, as a decree for 
 a divorce from the bond of matrimony, except 
 that neither party shall marry again during the 
 life of the other. (V. C. 1873, c. 105, § 13.) 
 2'. In case of a Divorce" a vhiculo matrimonii ,■ 
 W. C. 
 1°^. Where the Divorce is for a cause existing at the 
 time of the Marriage; W. C. 
 1°. Where the Marriage is void per se, without 
 Decree. 
 
 The union having never been matrimonial, 
 but only meretricious, and always void, confers 
 no rights of any kind, as to property or other- 
 wise. The woman may reclaim whatever be- 
 longed to her, from the man or his assigns, in 
 whose possession soever it may be, unless so far 
 as she may have authorized the alienation of it ; 
 and no claim to curtesy, dower or distribution 
 can ever arise on either side. (SheK. on Marr^ 
 & Div. 478; 1 Bl. Com. 436; 2 Bright, H. & 
 Wife, 364.) 
 2". Where the Marriage is only voidable; W. C. 
 1°. Where the Marriage, having been Solemnized 
 in Virginia, is avoided for Consanguinity, Af- 
 finity, Insanity, or Incurable Impotency. 
 
 The statute enacts that in these cases the 
 marriage, il solemnized in Virginia, shall be void 
 from the time it is so declared by a decree of 
 divorce or sentence of nullity, whereas, at com- 
 ^^itlMb yyW^i^df^ cases void ab inUio as 
 
OHAP. XV.] HTT8BAND AND WIFE. 277 
 
 soon as it was judicially ascertained to be illegal. 
 Hence, as to after-acquired property, there can 
 be no doubt that the marriage confers no rights 
 in Virginia any more than in England. 
 Neither can any marital right, touching pro- 
 perty, exist which depends upon the continu- 
 ance of the marriage ; e. g. the right to a dis- 
 tributive share on the pait of either in the 
 chattels of the other when deceased. But the 
 divorce is thought not per se, to affect those 
 rights of the consort, or of others claiming 
 under the consort, which v, ere fixed and vested 
 before the divorce took ffect, although to be 
 enjoyed in futiiro. Thu', curtesy and dower, 
 having attached by virtue of the marriage, are 
 supposed not to be diverted by the premature 
 determination of the c verture, which is an- 
 nulled not from the be inning, but only from 
 the date of the seniena . The English cases, 
 which seem to be of a contrary tenor, are not 
 applicable here, becau o they suppose, what is 
 always true in Englan !, — that every divorce, a 
 vinculo invalidates the marriage ab initio. (V. 
 C. 1873, c. 105, § 1; Ante p. 274, l^- 
 
 As to those things belonging to the wife 
 which the husband has bona fide aliened for 
 value, or charged during the coverture, they 
 are irrecoverably gone from the wife. It is so, 
 as we have seen, in England {ante p. 274, 1^), 
 where upon a divorce a vinculo, the marriage 
 is annulledyrom the beginning, audit is a fortiori 
 so in Yirginia, in the state of the law above 
 set forth. (2 Bright, H. & Wife, 364, &c.) 
 2°. Where the marriage is avoided for any other 
 of the causes existing at its date, which render 
 it Voidable. 
 
 The statute being silent as to the time whence 
 a divorce a vincido for those causes shall take 
 effect, it is presumed that the common law 
 analogy is to be observed, and as the caiises 
 existed at the time of the marriage, that the 
 divorce invalidates it from the beginning. K 
 it be so, then the same consequences follow, as 
 to the estate of the parties, as in England. 
 {Ante p. 274, \\) 
 2™- Where the Divorce a Vinculo is for a cause 
 supervening after Marriage; W. C. 
 
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2Y8 HUSBAiro AND WIFB. [bOOK I. 
 
 1°. Rights of property actually vested in possession, 
 in consequence of the Marriage. 
 
 These are unaffected by the divorce per se, 
 although of course they may be by an accom- 
 panying order of the coui-t. Thus the wife's 
 chattels in possession having become vested abso- 
 lutely in the husband by the marriage, the subse- 
 quent divorce for a supervenient cause, as 
 adultery, in no wise affects the husband's title. 
 2" Kights of property which are inchoate and at- 
 tached, but not actually in possession. 
 
 These rights, it is believed, are also unaffected 
 by the divorce, supposing no special order to 
 accompany it. Thus, notwithstanding the dis- 
 solution of the marriage, the husband is still 
 entitled to curtesy, and the wife to dower, save 
 in after-acquired lands. {Ante 278, 1°.) 
 3°- Choses in action of the Wife. 
 
 These, if not reduced into actual or construc- 
 tive possession before the coverture is dissolved 
 by the divorce, survive to the wife. (1 Bl. Com. 
 440, n (29); Browning v. Headley, 2 Rob. 340.) 
 4". Rights which relate to Property, but which de- 
 pend on the Continuance of the Coverture. 
 
 Of this kind is the right of one party, who 
 
 survives, to be the distributee of the chattels of 
 
 the other, being deceased, or to be administrator 
 
 of the deceased; and such rights as these are 
 
 supposed to be defeated by the divorce. 
 
 2*". The effect, as to the Estates of the Parties, of a 
 
 Divorce a Vinculo, accompanied by Special Orders. 
 
 Upon decreeing the dissolution of a marriage, and 
 
 also upon decreeing a divorce, whether a vinculo or 
 
 a mensa, the court may make such farther decree 
 
 as it shall deem expedient concerning the estate and 
 
 maintenance of the parties, or either of them. (V. 
 
 C. 1873, c. 105, § 12.) 
 
 Our courts, in pursuance of this statute, are ac- 
 customed to accompany not only divorces a mensa, 
 as in England, but also those a vinculo with decrees 
 for alimony, the amount of which is determined by 
 like considerations as we have seen prevail in Eng- 
 land. (1 Bl. Com 441; 1 Tuck. Com. 107; Bish. 
 Mar. & Div. § 603 ; Cooke v. Cooke, 2 Phill. (1 E. 
 E. R.) 40; Bailey v. Bailey, 21 Grat. 56, &c.; Carr 
 V. Carr, 22 Grat. 173; Rees v. Rees, 3 PhiU (1 E. 
 E. R.) 387; Burr v. Bm-r, 7 HOI (K Y), 207; Ante, 
 p. ^7%)j§itked by Microsoft® 
 
«HAP. XV.] HUSBAND AND WIFE. 27§ 
 
 6^. Doctrine touching Foreign Sentences of Divorce; W.C. 
 1\ Doctrine in England. 
 
 The narrow and illiberal doctrine of the English 
 courts is that marriages solemnized in England can 
 only be dissolved (so as to make the dissolution valid 
 in England, or by English law) in accordance with the 
 law of England. Hence, if parties are married in 
 England, and then remove their domicil to Scotland, a 
 divorce, according to the law of Scotland, is not valid 
 in England. In order to be valid there, the divorce 
 must conform to the requirements of English law, 
 which is wholly opposed to the general rule prevailing 
 in most other civilized countries — namely, that the 
 validity of a divorce is determined by the lex domicilii, 
 the law of the parties' domicil. It is, besides, viola- 
 tive of international comity. (Bac. Abr. Mar. & Div. 
 (F) 3; Stor. Confl. L. § 125, &c. ; 2 Kent's Com. 116, 
 117.) 
 2^. Doctrine in Yirginia as to Foreign Sentences of Di- 
 vorce; W. C. 
 1'. Doctrine in Yirginia as to Foreign Divorces, pro- 
 nounced outside of the United States. 
 
 The general doctrine of all civilized States, except 
 England, and the doctrine strongly sanctioned by 
 international comity, is that the validity of a divorce 
 is regulated by the lex domicilii, the law of the 
 place of the actual bona fide domicil of the parties. 
 The proper courts of that place have jurisdiction to 
 decree a divorce for any cause allowed by the local 
 law, without reference to the law of the place of the 
 original marriage, or of the place where the offence 
 for which the divorce is allowed was committed. 
 This doctrine is firmly established in the United 
 States, and is substantially recognized in Scotland, 
 and for the most part on the continent of Europe. 
 (Stor. Confl. L, § 230, a; Id. 221, &c. ; 2 Kent's Com. 
 107, &c.; y. C. 1873, c. 105, § 8; Cheever v. Wil- 
 son, 9 Wal. 124.) 
 
 The domicil of the husband must, in general, be 
 treated as the domicil of the wife, but not so as to 
 oust of their jurisdiction the courts of the State 
 where the parties were domiciled when the right to a 
 divorce accrued; nor so as to deprive the injured wife 
 of the protection of its laws, and of her right thereby 
 to a divorce. The rule upon the subject, indeed, is 
 that she may acquire a separate domicil whenever it 
 is necessary or proper that she should do so. The 
 
 right, on her part, springs from the necessity for its 
 ^ ' Digitized by Mfcroioft® ^ 
 
280 HUSBAND AND WIFE. [bOOK I. 
 
 exercise, and endures as long as the necessity con- 
 tinues. The proceedings for a divorce ia such cases 
 may be instituted where the wife hxis her domicU. 
 The place of the marriage and of the offence, and 
 the domicil of the husband, are then of no conse- 
 quence. (Cheever v. Wilson, 9 Wal. 124; 2 Bish. 
 Mar. & Div. § 475 ; Barbee v. Barbee, 21 How. 582, 
 593.) 
 
 2'. Doctrine in Yirginia as to Foreign Divorces ob- 
 tained in other States of the Union. 
 
 By the Constitulion of the United States fuU faith 
 and credit are to be given in each State to the public 
 acts, records, and judicial proceedings of any other 
 State; and this, by the Supreme Court of the United 
 States, is heldto attach to the judgment of the State 
 Court the same validity and effect in every other 
 State in the Union, which it has in the State where 
 it is rendered, provided the parties thereto appear, or 
 be personally summoned, and there is no fraud or 
 collusion. (Const. U. S. Art. IV, § i; Hampton v. 
 McConnel, 3 Wheat. 234 ; ilavhew v. Thatcher, & 
 Wheat. 129; Mills v. Duryee, 7 Cr. 484; D'Arcy v. 
 Ketchum, 11 How. 175 ; Christmas v. Kussell, 5 
 Wal 302.) 
 
 Hence, if a divorce a vinculo be obtained in another 
 State, according to the laws thereof, the defendant be- 
 ing personally summoned, and submitting to the juris- 
 diction, although we4«A«r^ar<y he domiciled there, and 
 after a fair investigation of the merits (that is, an in- 
 vestigation without fraud or coUusion), the sentence, 
 it seems, must be received as having the same va- 
 lidity and effect everywhere in the. United States, 
 and amongst the rest in the State of the parties' 
 actual domicil as it had in the State where it is ren- 
 dered. (2 Kent's Com. 108-'9 ; 1 Tuck. Com. (B. 
 I.) 107-'8 ; Cheever v. Wilson, 9 Wal. 123.) 
 6^. Simdry Matrimonial Causes besides Divorce. 
 
 Let us see, (1), What are such matrimonial causes ; 
 
 and (2), The courts in which they are cognizable; 
 
 W. C. 
 1'. What are such Matrimonial Causes. 
 
 The matrimonial causes, other than divorce, are (1)^ 
 Suit for jactitation of marriage ; (2), Suit for restitu- 
 tion of conjugal rights; and (3), Suit for alimony ; 
 W. C. 
 
 1'. Suit for Jactitaiion of Marriage. 
 
 When one party gives out or boasts (Jactitat) that 
 
 he or she is maijried,.to another, whereby a common 
 Digifizea By Microsoft® ' •' 
 
CHAP. XT.J HUSBAND AND WIFE. 281 
 
 reputation of their marriage may ensue, it may be 
 expedient to institute a suit, in order to inquire into 
 the fact of the imputed marriage, upon the applica- 
 tion of tlie party complaining ; and if it appear that 
 there has been no such marriage, to impose silence 
 upon the boaster. Such a proceeding is called a suit 
 ior Jactitation of marriage. Suits for jactitation of 
 marriage, with other matrimonial causes, are submit- 
 ted in England to the ecclesiastical courts, or since 
 1858, the Court for Divorce and Matrimonial Causes. 
 In Virginia no tribunal was provided for the determi- 
 nation of jactitation suits until the revisal of 1849, 
 when more comprehensive provisions for matrimonial 
 causes than ever before existed were introduced into 
 our Code. The courts charged with this class of 
 cases are the circuit and corporation courts on the 
 chancery side. (3 Bl. Com. 93 ; Watson v. Eider 
 1 Lee, (5 E. E. E.) 16 ; Wescombe v. Dods, Id. 59 
 Duchess of Kingston's case, 20 How. St. Tri. 355 
 Meadows & ux v. Duchess of Kingston, 2 Amb. 760 
 Y. C. 1873, c. 105, § 5, 8 ; Id. c. 154, § 38.) 
 
 2'. Suits for Eestitution of Conjugal Eights. 
 
 Whenever either party lives separate from the 
 other without sufficient reason, a suit may be insti- 
 tuted to compel cohabitation, if the party complain- 
 ing is weak enough to desire it contrary to the incli- 
 nation of the consort; and such a suit is called a 
 suit for restitution of conjugal rights. But the only 
 duty which in the nature of things is capable of be- 
 ing thus enforced is that of '■'■living together.^'' (3 
 Bl. Com. 94 ; Bish. Marr. & Div. § 507 ; Orme v. 
 Orme, 2 Add. (2 E. E. E.) 382; Molony v. Molony. 
 Id. 249; 1 Hagg. C. E. (4 E. E. E.) 358, 363.) 
 
 It seems the better opinion that this jurisdiction 
 does not exist ia this country, unless conferred by 
 statute ; and as we have no statute ia Yii-ginia be- 
 stowing it, it is supposed to be wanting in our sys- 
 tem. The only relief, if any, which could be here 
 obtained, is a decree of divorce for desertion. (Bish. 
 Marr. & Div. § 279, 502, 506, & seq.) 
 
 3'. Suit for Alimony. 
 
 In England alimony, which means an allowance 
 
 for the maintenance of the wife, is a mere incident 
 
 to a decree of divorce a mensa, and it is generally 
 
 granted, of course, by the same court, that is, the 
 
 court christian, or since 1858 by the court for divorce 
 
 and matrimonial causes. There are instances, indeed, 
 
 of the court of chancery enf orcine; a previous aqree- 
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282 HTJSBAIO) AND WIFE. [bOOK I. 
 
 ment to provide maintenance for a wife, and also of 
 its decreeing maintenance as incidental to some other 
 principal object within the scope of its powers; but 
 the doctrine seems to be settled there that alimony 
 is always an incident only, and that no court has any 
 jurisdiction to give a wife a separate maintenance 
 where it is the sole relief sought. (2 Bum's Eccles. L. 
 506 & seq. ; Bac. Abr. Bar. & F. (H); 2 Stor. Eq. § 
 1422 & seq. ; Ball v. Montgomery, 2 Ves. Jun. 191.) 
 
 In Virginia not only is alimony granted as inci- 
 dental to divorce tff either ki7id, with the largest dis- 
 cretion, as we have seen (ante, p 269, 1^), as to the 
 estates of the parties, but it may be granted by the 
 court of chancery, independently of any divorce, or 
 any application for one, as where the misconduct of 
 the husband drives the wife from her home, or he 
 turns her out of doors, or perhaps wherever a di- 
 vorce from bed and board, or a restoration of con- 
 jugal rights would be decreed. (PurceU v. Purcell, 
 4 H. & M. 507; Almond v. Almond, 4 Band. 662; 
 Spencer v. Ford, 1 Rob. 648; Bish. Mar & Div. § 
 555.) But no alimony will be decreed to a wife who 
 without adequate reason deserts her husband and re- 
 fuses to live with him. Whilst she thus disregards 
 her husband's comfort and happiness, her own duty, 
 and the decencies of society, she has no right to de- 
 mand of him a support in a separate establishment, 
 and to concede it would be a reward to misconduct, 
 and would give a rude shock to the sanctity of the 
 marriage contract. IsTor is it an adequate cause for 
 such desertion that the husband has behaved with 
 too little tenderness and consideration; that he has 
 been at times coarse, rude and petulant, when he 
 should have been gentle, soothing and affectionate; 
 that he has left her to bear alone burdens and trials 
 which it should have been his highest pleasure to 
 share and relieve ; or that he has been close, exacting, 
 and penurious, when he should have been, to the ex- 
 tent of his means, open-handed, liberal and generous. 
 (Carr v. Carr, 22 Grat. 173, 175.) 
 
 The various questions connected with alimony can- 
 not be here discussed. It must suffice to say that, as 
 upon the marriage the husband has vested in him all 
 the present available means of the wife, together 
 with the right to claim her future earnings and ac- 
 quisitions, BO the law casts upon him the duty suit- 
 ably to maintain her according to his ability and con- 
 dition, /5/^(^^c/^ifl)^c^sgjj^ot renounce; so that 
 
CHAP. XV.] HUSBA2JD AND WIFE. 283 
 
 when the law in any case judges that the parties 
 may be separated for her protection, or that other- 
 wise the intervention of the court is requisite in con- 
 sequence of his wrong-doing, it must also judge that 
 he shall maintain her while such a state of things 
 continues. It may be added, also, that in cases of 
 divorce it is common to distinguish between the 
 temporary alimony, granted duriog the continuance 
 of the suit, and the perm,anent alimony, allowed at 
 its close, the latter being in amount always greater 
 than the former. (Bish. Mar. & Div. § 560, & seq., 
 613, 616.) 
 
 The amount of alimony to be allowed is matter of 
 discretion with the court, not, however, an arbitrary, 
 but a judicial discretion, to be exercised according 
 to established principles, and upon a view of all the 
 the circumstances of the case. The general rule, 
 especially in respect to permanent alimony, is that 
 the wife is entitled to a support corresponding to her 
 husband's condition in life, and his fortune and re- 
 sources, including his and her earnings, or ability 
 to earn money. Ordinarily, it is said, the wife ought 
 to be allowed, for temporary alimony, about one-fifth 
 of the joint income, as just defined, and for perma- 
 nent alimony, from one-half to one-third, two-fifths 
 being no uncommon proportion. (Bish. Mar. & Div. 
 603, & seq.; Id. 614, & seq., 616, & seq.; Bailey v. 
 Bailey, 21 Grat. 52, & seq.; see Carr v. Carr, 22 
 Grat. 168.) 
 2^. The Courts in which these several Matrimonial 
 Causes are cognizable; W. C. 
 1'. The Courts of England. 
 
 They are in general, at common law, the ecclesi- 
 astical courts, except, perhaps, that in a few cases of 
 previous agreement, or as incident to other equitable 
 relief, alimony is decreed by the court of chancery. 
 But since 1858, by Statute 20 & 21 Yict., c. 85, 
 amended by certain subsequent statutes, matrimonial 
 causes have been transferred to a new court, called 
 " The Court for Divorce and Matrimonial Causes," 
 which may exercise, in respect to alimony, even a 
 larger jurisdiction than belonged, at common law, to 
 the ecclesiastical courts. (Wms. Pers. Prop. 360.) 
 2'. The Courts in Yirginia. 
 
 They are the Circuit and Corporation courts, on 
 the chancery side. These courts have jurisdiction 
 " of suits for annulling or affirming marriages, whose 
 ^""^^^^f^i^m^miM^k «^ ^«^ divorces," with 
 
284 HtrSBAJTD AND WIFE. [bOOK I. 
 
 ample incidental powers to provide for the mainten- 
 ance and security of the wife, the custody of minor 
 children, and the disposition of the estates of the 
 parties. Hence, it seems that these courts may not 
 only decree alimony (as to which there can be no 
 doubt), but may alio intervene to determine any 
 question as to the validity of mari'iage, raised either 
 by denying or affirmiag it, but it is believed not to 
 compel the parties to cohabit. (V. C. 1873, c. 105, 
 § 8, 4, 5, 10, 12, 13; Purcell v. Purcell, 4 H. & M. 
 607; Almond v. Almond, 4 Hand. 662; Supra p. 
 282-'3.) 
 4®- The legal Consequences of Marriage. 
 
 In order to determine the legal consequences of mar- 
 riage, we may advert to (1), The effect of marriage as be- 
 tween husband and wife themselves; (2), The effect of 
 marriage as to third persons; and (3), Contrast of the 
 sexes in respect to their several rights and privileges; 
 W. C. 
 1*. Effect of Marriage as hetween Husband and Wife 
 theviselves. 
 
 The effect of the marriage as between husband and 
 vidfe themselves relates to the effect (1), In respect to 
 the persons of husband and wife; and (2), In respect to 
 the property of the parties; 
 W. C. 
 1^. Effect of Marriage in reject to the persons of Hus- 
 band and Wife. 
 
 By marriage, husband and wife become one person in 
 law ; that is, the very being or legal existence of the 
 woman is suspended during the marriage, or at least 
 is incoi-porated into that of the husband. Upon this 
 union of person, as has been before observed, depends 
 almost all the legal rights, duties and disabilities which 
 belong to either by reason of the marriage. (1 Bl. 
 Com. 442.) 
 
 Let us consider (1), The duties of husband to wife; 
 (2), The duties of wife to husband ; and (3), The doc- 
 trine as to deeds of separation ; 
 W. C. 
 1^. Duties of Husband to Wife. 
 
 Independently of his obligation to pay her ante- 
 nuptial debts, to maintain her, and to answer for her 
 torts (which refer themselves rather to the next head, 
 of property), the husband's duties are summarily ex- 
 pressed in the vow he makes in marriage — ^namelj^ to 
 "love her, comfort her, honor, and keep her, in sick- 
 ness and£;^y^^^]^y^^^g£^ng aU others, to keep 
 
CHAP. XV.J HtJSBAND AND WIFE. 285 
 
 only unto her as long as they both shall live." The 
 law cannot, indeed, in the nature of things, enforce the 
 observance of these duties, save in a very imperfect 
 manner; but it recognizes them as duties, and gives 
 no countenance to the doctrine that they may be 
 evaded at the pleasure of either or both of the parties. 
 They cannot, as Sir Wm. Scott observes, by private 
 contract dissolve the solemn tie which binds them, 
 and throw themselves upon society in the undefined 
 and dangerous character of a wife without a husband, 
 and a husband without a wife. (Evans v. Evans, 1 
 Hagg. C. K. (4 E. E. K.) 35, 120.) 
 
 It is the husband's duty, as the stronger party, to 
 practise the greater forbearance, and to persevere in 
 emplojdng it, despite turbulence of temper, petulance 
 of manners, and infirmity of body or mind. "Where 
 they occur," says that great judge, "their effects are 
 to be subdued by management, if possible, or submit- 
 ted to with patience, for the engagement was to take 
 for hetter, for worse; and painful as the performance 
 of this duty may be, painful as it certainly is in many 
 instances, which exhibit a great deal of the misery 
 which clouds human life, it must be attempted to be 
 sweetened by the consciousness of its being a duty, and 
 a duty of the very first class and importance." (Evans 
 V. Evans, 1 Hagg. C. R. (4 E. E. R.) 35, 120.) And 
 so a greater than Sir Wm. Scott enjoins: "Husbands, 
 love your wives, a7id he not hitter against them." 
 (Coloss. iii. 19.) 
 2^. Duties of Wife to Husband; W. C. 
 1\ What are the Duties owing by Wife to Husband. 
 The wife's duties to the husband are also fairly 
 expoimded in her marriage vow, namely to " obey 
 him and serve him, love, honor, and keep him, in 
 sickness and in health ; and forsaking all others, to 
 keep only unto him, so long as they both shall live." 
 And directly to the same effect is the divine precept, 
 " Wives, submit yom'selves unto your own husbands, 
 as it is fit in the Lord." (Coloss. iii. 18.) 
 2'. The Husband's Power of Correction. 
 
 Modern refinement affects to be shocked at the 
 power given by the common law to the husband over 
 the wife, and certainly the ungentle exercise of his 
 authority may well excite, as it does, the strongest 
 indignation of society. But when it is considered 
 that the husband is liable in damages for all his 
 wife's torts, whether of tongue or hand, and can in 
 no wai^ej^a^e^^oi^-such^r^^onsibiHty; however lit- 
 
286 HUBBAITD AND WIFE. [bOOK I. 
 
 tie he may sympatiiize witli, or even though he be 
 ever so much opposed to the wrong, it is not unrea- 
 sonable to commit to him a large latitude of control 
 and restraint, especially as public opinion, and even 
 the guardians of the law are ever watchful to pre- 
 vent his transgressing the limits assigned him. The 
 best common law authorities affirm that "the hus- 
 band hath by law power and dominion over his wife, 
 and may keep her hy force within the bounds of 
 duty, and may beat her, but not in a violent or cruel 
 manner; for in such case, or if he but threaten to 
 beat her outrageously, or use her barbarously, she 
 may bind him to the peace, or may obtain a divorce, 
 propter soevitiamy It must be owned, however, that 
 it is the part of practical wisdom for English and 
 Yirginian husbands to forbear the exercise of this 
 portion of their marital authority. (1 Bl. Com. 
 44:5-'6; Bac. Abr. Bar. & F. (C); Bish. Marr. & 
 Div. § 485, &c.) 
 3^. Doctrine touchmg Deeds of Separation of Husband 
 and "Wife. 
 
 The discussion of the doctrine touching deeds of 
 separation will iaclude the explanation of (1), The 
 nature of deeds of separation; (2), The validity of 
 deeds of separation ; (3), The eifeet on deeds of separ- 
 ation of renewed cohabitation ; (4:), The effect of deeds 
 of separation as to the custody of the children; (5), 
 The effect of deeds of separation as to the adultery of 
 either consort ; 
 W. C. 
 1*. The Nature of such Deeds of Separation. 
 
 Deeds of separation are deeds whereby it is cove- 
 nanted between the husband and wife, or more pro- 
 perly between the husband, on the one side, and a 
 trustee for the wife, on the other, that the husband 
 shall on his part provide a stipulated competency 
 for the wife, and that the trustee shall on his part 
 indemnify the husband against all debts which she 
 may contract during the contemplated separation; 
 that the husband and wife shall live separately, and 
 that neither will exact or sue for a restitution of 
 conjugal rights. 
 
 For the most part, they contemplate a present 
 separation, upon the ground of existing dissensions ; 
 but sometimes parties are so extremely provident as 
 to make arrangements, by means of such deeds, for 
 future differences ! (2 Bright H. & Wife, 306 ; 1 
 
 Tuck. Com, (B. I), 1.08-'9.)^ 
 Digitized byMicrosoft® 
 
OHAP. XV.] HUSBAND AND WIFE. 287 
 
 2'. The Validity of Deeds of Separation, and the En- 
 forcement thereof. 
 
 Many cases occur in the English books founded 
 upon the idea that, by the mutual consent of the 
 parties, expressed in deeds of separation, the cover- 
 ture may, for many purposes, be dissolved, especially 
 in respect to the obligation to cohabit, the personal 
 incapacities of the wife, and the authority vested by 
 the marriage in the husband ; and that whether the 
 covenants contained in the deed were between the 
 husband and wife alone, or between the husband and 
 a trustee for the wife. Thus these cases, as far as 
 their authority extends, would, singularly enough, 
 permit this most important relation — of which the 
 common law is so tender that when legally contracted 
 it esteems it indissoluble, even in the discretion of 
 the most reverend judges, for any supervenient cause 
 whatsoever, — to be virtually terminated as to its most 
 essential incidents by' the mere private consent of 
 the parties tlfemselves ; and not only by a consent 
 given in presenii, in view of existing dissatisfactions, 
 but also by a consent given in advance ; a consent to 
 put asunder, upon some stipulated contingency, those 
 whom God hath joined! (Moore v. Moore, 1 Atk. 
 277 ; Listor's case, 1 Stra. 478 ; Mead's case, 1 Burr. 
 542 ; Vane's case, 13 East. 171, note.) 
 
 This doctrine, which the ecclesiastical courts have 
 persistently combated, has more recently been so 
 limited as to be shorn of its most pernicious conse- 
 sequences. Thus the covenant is admitted to be 
 wholly without legal effect if it be between the hus- 
 band and wife alone, she having no capacity to con- 
 tract with anybody, and above all not vdth him. 
 Then, although the agreement be between the hus- 
 band and a trustee, it does not restore to the wife any 
 of the capacities of which coverture deprived her ; 
 nor does it bar a suit for the restitution of conjugal 
 rights, nor deprive the husband of his marital con- 
 trol of the wife's person, if, notwithstanding the cov- 
 enant to the contrary, he chooses to exert it, although 
 doubtless an action on the covenant would lie for the 
 trustee against the husband for any breach of its 
 stipulations. Covenants for future separation, at 
 the pleasure of either party, are by these later cases 
 held to be void, as of evil tendency, although, unhap- 
 pily, it seems that such covenants may be supported 
 if the future separation is to receive the sanction of 
 the trustees. And in short, deeds of separation, even 
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288 HUSBAiTO AND WITE. BOOK I. 
 
 in presenti, are now regarded as valid only in respect 
 to the property arrangements which they contem- 
 plate, and annul or impair no other of the marital 
 rights and obligations than such as relate to property; 
 and it is as to property arrangements alone that such 
 deeds are specifically enforced in equity ; and that 
 as to the husband only, who, being sui juris, may 
 enter into such engagements as he shall see fit ; but 
 not as to the wife, who, as we have seen, loses none 
 of her conjugal incapacities in consequence of any 
 actual or projected separation, unless, indeed, in re- 
 spect to her separate estate, as to which she may 
 sometimes contract as if she were a feme sole. (2 
 Stor. Eq. § 1428; 1 Bish. Marr. & Div. § 656; Mar- 
 shall V. Rutton, 8 T. E. 545 ; Legard v. Johnson, 3 
 Ves. Jun'r, 352; St. John v. St. John, 11 Ves. 526; 
 Worrall v. Jacob, Meriv. 255, 268 ; Durant v. Ti1> 
 ley, 7 Price, (3 Eng. Exch.) 577 ; Hindley v. West- 
 meath, 6 B. & Cr. (13 E. C. L.) 200 ; Cocksedge v. 
 Cocksedge, 14 Sim. (37 ifing. Chan.) 244; Eodney 
 V. Chambers, 2 East. 283 ; Jee v. Thurlow, 2 B. & 
 Cr. (9 E. C. L.) 551 ; Walker v. Wai:^er, 9 Wal. 750, 
 &c. ; Switzer v. Switzer, 26 Grat. 578 & seq.) 
 
 An agreement for a separation can in no case be 
 sustained unless it clearly appear that in the negotia- 
 tion which preceded it, as well as at the time of ex- 
 ecuting it, the wife was in a position to act, and did 
 act, not only with perfect freedom, but with a fuU 
 knowledge and appreciation of all the circumstances 
 of her situation, and of her individual and marital 
 rights ; and the contract itself must be fair and just, 
 wholly free from exception, and such as a court of 
 equity might have imposed upon the parties, had the 
 case fallen under its jurisdiction. (Switzer v. Swit- 
 zer, 26 Grat. 582.) 
 3'. Effect on Deeds of Separation of Renewed Cohabi- 
 tation. 
 
 The effect of renewed cohabitation, whether it 
 arise from voluntary reconciliation, or from the co- 
 ercion of the court, is for the most part to put an 
 end to the stipulations of the deed of separation, the 
 status contemplated by it no longer existing, although 
 whatever permanent provisions touching property 
 may be contained therein, which do not depend ex- 
 clusively upon a separation, vsdll of course continue 
 valid, and may be enforced, especially where third 
 persons are interested in^them. (2 Bright's H. & 
 
CHAP. XV.J HUSBAND AND WIFE. 289 
 
 Worrall v. Jacob, 3 Meriv. 268; Walker v. "Walker, 
 9 Wal. 752.) 
 4'. Effect of Deeds of Separation as to the Custody of 
 the Children. 
 
 It seems that the father, to whose charge the law 
 primarily assigns the custody and care of the minor 
 children, cannot transfer his responsibility and duty 
 to another, not even to the mother ; and that a stip- 
 ulation to do so will in general be void as against 
 public policy. (St. John v. St. John, 11 Ves. 538; 
 Yilla Eeal v. Mellish, 2 Swanst. 537-'8.) 
 5'. Effect of Deeds of Separation in respect to the 
 Adultery of either Consort. 
 
 The ordinary provisions of deeds of separation stip- 
 ulate that the parties, and especiallj^ the wife, may 
 live where and with whom they may severally think 
 fit ; but this is not to be construed as signifying the 
 consent of either consort that the other may live in 
 adultery, and if either be guilty of it, the aggrieved 
 party may demand a divorce, just as if the deed of 
 separation had never existed. (2 Bright's H. & W. 
 317-'18.) 
 2^. Effect of the Marriage in respect to the Property of 
 the Parties. 
 
 The effect of marriage in respect to the property of 
 the parties, respectively, is to be considered, (1), With 
 regard to contracts and other transactions occurring be- 
 tween husband and wife before marriage; (2), With 
 regard to contracts and other transactions between 
 husband and wife occurring during coverture ; and (3), 
 With regard to the property of each consort, in respect 
 to the other; 
 W. C. 
 l**. Effect of Marriage with regard to Contracts and 
 other transactions between Husband and Wife occur- 
 ring before Marriage; W. C. 
 1'. The General Doctrine. 
 
 If a man and a woman enter into any contract to- 
 gether, whether to pay money or to do a collateral 
 thing, and afterwards intermarry, the contract is in 
 general thereby discharged; becaiise the existence 
 of the wife is then merged in that of her husband, 
 and they are in law, for most purposes, one and the 
 same person. Hence, if two men enter jointly into 
 a contract with a woman, and one of them after- 
 wards marries her, the contract is discharged as to 
 the husband, and consequently as to the other also, 
 since it can only be enforced as it was made, — that 
 Digitized-j^ Microsoft® 
 
290 HUSBAND AND WIFE. [bOOK I. 
 
 is, Jointly ; and as by the marriage the husband i& 
 released, it is no longer enforceable against the other 
 contractor. (1 Bl. Com. 442, n (40) ; 1 Bright's H. 
 & Wife, 18; Bac. Abr. Bar. & F. (E).) And this 
 doctrine is understood to be in no wise impaired by 
 the statute (V. C. 1873, c. 141, § 14, 15) allowing a 
 creditor to compound or compromise with a joint 
 contractor or co-obligor, and to release him from 
 liability without impairing the contract or obligation 
 as to the other joint parties, that provision appearing 
 clearly to refer io^express releases, and not to those 
 arising by construction of law. (See V. C. 1873, c. 
 143, § 5.) 
 2'. Exceptions to the General Doctrine; 
 W. C. 
 I''. Contracts to be performed after the Coverture i» 
 deterTnined. 
 
 If a bond binds not the obligor himself, but his 
 executors, to pay money to a woman whom he after- 
 wards marries, the marriage does not impair the 
 force of the bond. And so, in short, aU contracts, 
 which by their stipulations are not to be performed 
 until the coverture is terminated, are valid and ob- 
 ligatory, notwithstanding the subsequent intermar- 
 riage of the parties. (1 Bl. Com. 442, n (40); 1 
 Bright's H. & Wife, 19, 20; Bac. Abr. Bar. & F. 
 (E); Cage V. Acton, 1 Ld. Raym. 515; Milbourn 
 V. Ewart & als, 5 T. E 384.) 
 2\ Contracts made in contem,plation of Coverture. 
 Contracts to settle money or property upon the 
 consort, or any other arrangements of like nature, 
 made in contemplation of and with a view to mar- 
 riage, although they are discharged at law by the 
 subsequent marriage, yet are sustained and enforced 
 in equity, according to the intent of the parties and 
 the justice of the case, which equity will not permit 
 to be defeated by the technical assumption of the 
 unity of husband and wife. (1 Bl. Com. 442, n (4) ; 
 1 Bright's H. & Wife, 19; 2 Stor. Eq. § 1370-'71; 
 Bac. Abr. Bar. & F. (E); Cannel v. Buckle, 2 P. 
 Wms. 243; Watkyns v. Watkyns, 2 Atk. 97; Acton 
 V. Pierce, 2 Yern. 480, & Cases, n (1).) 
 3''. Contracts made by one or both of the Parties in- 
 a representative character; e. g., as Executor, <&c. 
 
 Contracts between a man and a woman, made in 
 auter droit by either, as, for example, as executory 
 &c., are not discharged, even at law, by the subse- 
 quent intermarriaaa. of tha^arties. Such a con- 
 
CHAP. XV.J HUSBAND AND WIFE. 291 
 
 struction would work a devastavit, or wasting of the 
 estate committed to the executor, &c., contrary to 
 the maxim that the law, by its implications, never 
 works a wrong, actus legis nemini facit injunam. 
 (1 Bright's H. k Wife, 21, & seq.; Broom's Max. 89 ; 
 Needham's Case, 8 Co. 136, a; Waukford v. Wauk- 
 ford, 1 Salk. 306.) 
 4:*^. Contracts made before Marriage by one Consort 
 with a trustee for the other. 
 
 The promise in this case being made, not to the 
 consort, but to the trustee, in whom consequently 
 the legal title to the benefit of the contract vests, 
 the technical reason for the discharge operated in 
 other instances by the subsequent marriage ceases, 
 and the contract, notwithstanding such marriage, 
 is good even at law; but it has been suggested, 
 with reason, that it will be invalidated in equity 
 when not executed in contemplation of marriage. 
 And if, at common law, a contract with the con- 
 sort's trustee, not in contemplation of marriage, 
 would thus be invalidated in equity, a similar con- 
 clusion must, a fortiori, prevail in Virginia, where 
 a promise or covenant for the benefit of another ia 
 suable even in a court of law in the beneficiary's 
 own name. (1 Bright's H. k Wife, 21 ; V. C. 18T3, 
 c. 112, § 2.) 
 2*"- Eifect of Marriage with regard to Contracts and 
 other transactions between Husband and Wife occur- 
 ring during coverture. 
 
 The transactions which may thus occur between 
 husband and wife during coverture may be classed 
 under the heads of (1), Conveyances by husband to 
 wife, and vice versa; (2), Executory contracts as be- 
 tween husband and wife during coverture ; (3), Testa- 
 mentary dispositions by either consort in favor of the 
 other; and (4), Marriage settlements; 
 W. C. 
 1'. Conveyances by Husband to Wife, and vice versa. 
 Conveyances by the husband to the wife are 
 usually and most appropriately made to trutsees 
 in trust for the consort, and in that form such 
 transactions have been familiar ever since the in- 
 troduction of uses and trusts in the latter part of 
 the reign of Edward III (about A. D. 1370). But 
 for consideration more than a century past, the courts 
 of equity have maintained conveyances directly from 
 the husband to the wife, without the intervention of 
 any trustee. What is to be said on this topic, there- 
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292 HUSBAND AND WIFE. [bOOK I. 
 
 fore, may be referred to the two heads just indi- 
 cated — ^namely, (1), Conveyances by husband to trus- 
 tee for wife, and vice versa; and (2), Conveyances 
 by husband directly to the wife, and vice versa; 
 1^. Conveyances hy Husband to Trustee for Wife, 
 and vice versa. 
 
 Conveyances by the husband to a trustee for 
 the wife have been freely admitted, as above 
 observed, from the first introduction of trusts, 
 with no other proviso than that creditors of the 
 grantor, and subsequent purchases for value and 
 without notice, shall not be thereby prejudiced. 
 The legal title being by such conveyance vested in 
 the trustee, any suit touching the property must, in 
 a court of law, be in the trustee's name ; but as the 
 equitable title is in the consort as cestui que trust, 
 or beneficiary, his or her rights, if invaded, may be 
 asserted in a court of equity, even as against the 
 other consort. If it be the wife who in such case 
 has occasion to ask the aid of the court, she sues 
 under the protection of her prochein ami, or next 
 friend, who is usually her husband, unless his in- 
 terest is adverse to hers, and in that case it may be 
 any one whom the court shall approve, who may be 
 willing to act in that capacity. (1 Th. Co. Lit. 
 130; 2 Stor. Eq. § 1380; 3 Rob. Pr. (2d. ed.) 229- 
 '30.) 
 
 When the vidfe proposes to convey her maiden 
 lands to her husband, the object cannot well be ac- 
 complished, nor probably accomplished at all, except 
 by the husband and wife uniting, in pursuance of 
 the statute (Y. C. 1873, c. 17, § 4, 7), in a convey- 
 ance of it to a third person (who is virtually a trus- 
 tee, whether declared to be so or not), wlio conveys 
 it to the husband, in whom is thus vested a com- 
 plete title, indefeasible in equity as well as at law. 
 (Shepperson v. Shepperson, 2 Grat. 501 ; MeCartee 
 V. Orphan Asylum, 9 Cow. (N. Y. 437). But if, 
 in the arrangement between the husband and wife, 
 which is consummated by the conveyance, there be 
 any material inequality, any gross inadequacy of 
 consideration, where a consideration was contem- 
 plated, or any fraud, oppression, or unfair advan- 
 tage as respects the wife, the deed with the privy 
 examination does not impart in a court of equity 
 any additional validity to the transaction. Indeed, 
 as the union of husband and wife as grantor is 
 r^e<iessQ^§iM(fb^idr(9§MW^^^ operative under 
 
CHAP. XV.] HUSBAND AND WIPE. 293 
 
 the statute, it is manifest that the husband cannot 
 himself be the grantee therein, either directly, or 
 through the medium of an express trust. (Switzer 
 V. Switzer, 26 Grat. 582-'3.) 
 
 These conveyances ought always to be registered 
 according to the statute of registry (V. C. 1873, 
 c. 114, § 6). The claims of subsequent purchasers 
 are thereby in all cases precluded, the registry 
 being constructive notice to tliem ; and so also 
 are those of creditors, provided the conveyance is 
 founded on a valuable consideration, and is not 
 tainted with any collusion between husband and 
 wife to defraud creditors. When made in pur- 
 suance of an ante-nuptial contract the marriage is a 
 valuable consideration; and so also, though there 
 be no ante-nuptial agreement, is the relinquishment 
 of the wife's contingent clain of dower, or of her 
 equitable choses in action; and so, of course, is 
 any directly valuable consideration which the wife 
 herself or her friends can furnish. (2 Lom. Dig. 
 434: & seq. ; 2 Insts. Com. & Stat. Law, 691 & seq. ; 
 Cronie v. Hart & als, 18 Grat. 744; V. C. 1873, c. 
 114, § 1, 2, 6.) 
 2^ Conveyance by Husband directly to Wife, and 
 vice versa. 
 
 It is the established doctrine of the common law, 
 as administered in the courts of law, that a man 
 can grant nothing to his wife, nor she to him, nor 
 can they enter into any contract, the one with the 
 other; for the grant would be to suppose her sepa- 
 rate existence, and the contract with her would be 
 only a contract with himself. (1 Bl. Com. 442 ; 2 
 Bright's H. & Wife, 29 ; 1 Th. Co. Lit. 130-'31.) 
 A remarkable qualification of this general doctrine 
 is mentioned by Coke, (2 Th. Co. Lit. 531.) If a 
 feme disseisor, says he, make a feoffment to A for 
 life, remainder to herself in tail, remainder to B in 
 fee, and then taketh husband the disseisee, and he 
 releaseth to A all Ms right, this shall enure to B, 
 and to his own wife also ; for by the rule of Little- 
 ton, it must enure to all in the remainder. In 
 truth, according to Hawkins, it enures by way of 
 extinguishment of the husband's right, without pass- 
 ing it to the wife, so that she takes hy construction 
 of hw. (Hawk. Abr. 394.) 
 
 Whilst the rule of the common law, as expounded 
 in the la\o courts, is thus rigorous, it is possible, by 
 meanC)^;Wz®tfi®y5Wte^5iS'iS^ting under the Statute 
 
294 HUSBAND AND "WIFE. [bOOK I. 
 
 of Uses (27 Hen. YIII, c. 10 ; V. C. 1873, c. 112, 
 § 14) for a husband to transfer land directly to his 
 wife,- although here also it is by construction of law. 
 Thus if a husband covenant with a third person, in 
 consideration of love and affection for his wife, to 
 stand seised of certain land to her use, the statute of 
 uses will transfer the possession from him to her. 
 And so upon principle, it would seem, it oughtto 
 be if the husband should bargain with a third per- 
 son, for valuable consideration, to stand seised to his 
 wife's use. (1 Th. Co. Lit. 130, 132, n (9); 2 Lorn. 
 Dig. 24-'5.) 
 
 The courts of equity, for more than a century, 
 as before remarked, have discarded the necessity for 
 trustees, (however they may allow the convenience) 
 in conveyances from husband to wife, and have 
 supported them when made directly by him to her, 
 wherever they do no wrong to his creditors, or to 
 subsequent purchasers from him for value and with- 
 out notice ; but with this qualification, that he shall 
 not, in an excess of uxoriousness, deprive himself 
 of the whole, nor even of an unreasonable propor- 
 tion of his estate (she being entitled only to a pro- 
 vision out of the same), unless, indeed, in case of 
 some strongly meritorious consideration apart from 
 the mere conjugal relation. The settlement of the 
 husband's whole estate may under such peculiar 
 circumstances be sustained in equity. (1 Bright's 
 H. & Wife, 33; 2 Stor. Eq., § 1374 & seq.; Beard 
 V. Beard, 3 Atk. 72 ; Shepard v. Shepard, 2 Johns. 
 C. K. 57 ; Jones v. Obenchain, 10 Grat. 259.) 
 
 Equity, in conveyances of this kind, made directly 
 from husband to wife, regards the husband as in 
 fact the wife's trustee, and whilst the transaction is 
 void at law, maintains the wife's rights as effectu- 
 ally as if a third "person trustee had been interposed. 
 The evidence, however, must be clear and satisfac- 
 tory, not only that the husband designed to bestow 
 the property upon her, but that he divested himself 
 of it, and distinctly agreed to hold it as trustee for 
 the wife. (McLean v. Longlands, 5 Yes. 79 ; Wal- 
 ter V. Hodge, 2 Swanst. 106-'7 ; post p. ; 2 
 Stor. Eq. § 1380 ; Lucas v. Lucas, 1 Atk. 271 ; Blet- 
 son V. Sawyer, 1 Vern. 244; Slanning v. Style, 3 P. 
 Wms. 338; Jones v. Obenchain, 10 Grat. 259). 
 
 The most prominent instances where equity has 
 
 applied the doctrine under consideration, by giving 
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<!HAP. XV.] HUSBAND AND WIFE. 295 
 
 effect to gifts from husband to wife, -without the in- 
 tervention of a trustee, are — 
 
 (1). Conveyances direct from him to her, of 
 lands, stocks, money, &c., as illustrated by the cases 
 of Lucas V. Lucas, 1 Atk. 271 ; Walter v. Hodge, 
 2 Swanst. 104 & seq; case of Countess Cowper, 3 
 Atk. 393; McLean v. Longlands, 5 Ves. 71; Rich 
 V. Corkell, 9 Yes. 375 ; Jones v. Obenchain, 10 Grat. 
 259; 2 Stor. Eq. § 1374-'5; and 
 
 (2). Gifts of savings of pin-money, or of house- 
 keeping allowance, of trinkets, &c., as illustrated 
 by Slanning v. Style, 3 P. Wms. 338; Countess 
 Cowper's case, cited Graham v. Londonderry, 3 
 Atk. 393 ; 2 Stor. Eq. § 1375. 
 2'. Executory Contracts, as between Husband and Wife, 
 during Coverture; W. C. 
 I''. Doctrine in Courts of Law. 
 
 Contracts executory between husband and wife, 
 made during coverture, are at law always nullities, 
 there being a positive incapacity in each to contract 
 with the other. (1 Th. Co. Lit. 130; 2 Stor. Eq. § 
 1372.) 
 2''. Doctrine in Equity. 
 
 In courts of equity, executory contracts between 
 husband and wife, ntade during coverture, are in a 
 few instances enforced, but only, it is believed, when 
 they relate to her separate estaie; as for example, 
 where she, in good faith, and for a reasonable con- 
 sideration, agrees to make him, out of her separate 
 property a certain allowance ; or he agrees to repay 
 money lent by her out of her separate estate; or 
 that she shall separately enjoy property bequeathed 
 to her; or where he agrees to settle property on her 
 in consideration of her relinquishment of her dower- 
 interest in his lands, &c. (2 Stor. Eq. § 1372-'3.) 
 •3'. Testamentary Disposition by either consort infaoor 
 of the other. 
 
 Testamentary dispositions, as they do not take 
 «ffect until after the coverture is terminated by 
 death, are allowed without qualification on the part 
 of the husband (saving the rights of creditors), and 
 on the part of the wife also, as to her separate estate, 
 or by virtue of a power of appointment. Upon this 
 principle a donatio mortis causa is valid as between 
 husband and wife. (1 Bl. Com. 442, & n (41); 2 
 Xent's Com 129; West v. West's Ex'ors, 3 Eand. 
 
 363; y. C. 1873, c. 118, § 3.) 
 
296 HUSBAND AND WIFE. [bOOK I.^ 
 
 Actual marriage settlements, made before cover- 
 tare, commonly «mploy the intervention of trustees, 
 but whether there be trustees or not, or whether it 
 be an actual settlement or merely an antenuptial con- 
 tract for one, the rights of the wife under it are en- 
 forced and protected in a Court of Equity; but not 
 so as to divest the husband's marital rights to a 
 greater extent than the terms of the instrument clearly 
 require. Nay, although there be no antenuptial 
 agreement, yet if there be a valuable consideration, 
 and if the claims* of creditors, and of subsequent 
 purchasers for value and Avithout notice, do not stand 
 in the way, such a settlement is still valid. (2 Kent's 
 Com. 172 & seq; ante p. 292, 1".; Woodson v. Per- 
 kins, 5 Grat. 345; Mitchell v. Moore & als, 16 Grat. 
 275 ; Gosden & ux v. Tucker's Heirs, 6 Mxmf . 1 ; 1 
 Tuck. Com. Ill, B. I; Buck cfe als v. "Wroten & ux, 
 24 Grat. 250.) Hence if a married woman relin- 
 quishes her claim for dower on the faith of a settle- 
 ment of other property made, or agreed to be made 
 by her husband, such settlement M-ill be held good, 
 to the extent of a just compensation for the interest 
 so relinquished. (Bm-well's ex' or v. Lumsden, 24 
 Grat. 443.) 
 
 Marriage settlements, like all other conveyances 
 of property, ought to be as accurate and definite as 
 possible in describing the property, so that it may 
 be clearly identified and distinguished. Such speci- 
 fication is particularly needful in respect to personal 
 chattels, although it is not yet determined how minute 
 the specification must be. Perhaps all that at pre- 
 sent can be said in respect to the want of a specifi- 
 cation is that it is a circuinstance of suspicion. (1 
 Tuck. Com.lll-'12, B.I; Eckhols v. Graham, 4 Call, 
 494; Gait & al v. Carter, 6 Mimf. 249-'50; Jarman 
 V. Woollaton & al, 3 T. E. 621-'2; Haselinton v. 
 Gill, Id. 620, n (a) ; Cadogan v. Kennett, Cowp. 432 ; 
 Lady Arundell v. Phipps <fe al, 10 Yes. 139, 150.) 
 But the registry of such a deed, thus wanting in the 
 designation and description of the property, conveys 
 no notice, in point of law, to a subsequent purchaser 
 of the existence of the instrument ; nor would he be 
 afiiected by actual notice of its existence, unless he 
 had also notice of the property embraced in it. 
 (Mundy v. Yawter & als, 3 Grat. 545.) 
 
 If the settlement, or agreement for a settlement, 
 be made after marriage, without the intervention of 
 a trust0^)jf^ga5^ M>'§r^^fe®id and wife alone, it is 
 
OHAP. Xy.] HUSBAND AND WIFE. 297 
 
 valid, so it be not to the prejudice of creditors, and sup- 
 posing it to be under seal, so as not to be nudum pac- 
 tum at law, it will be decreed in equity to be carried 
 into eflPect, although there be no valuable considera- 
 tion therefor (for marriage already contracted with- 
 out reference to a settlement cannot be a considera- 
 tion), for the existing relation of husband and wife 
 constitutes a meritorious cause sufficient to call forth 
 the powers and justify the intervention of a court of 
 chancery, being one of the very few cases where a 
 consideration merely, good, and not valuable, is of any 
 avail whatever. Even had the transaction, instead 
 of an executory contract, been an executed conveyance, 
 witli no trustee interposed, it is only as an executory 
 trust that a court of chancery could give effect to it, 
 and charge the husband as trustee. (2 Stor. Eq. § 
 973, 987; Coleman v. Sarrel, 1 Yes. Jun. 54-5; 
 Ellison V. Ellison, 6 Yes. 656; 1 Wh. & Tud. L. C. 
 193, 216, & seq.; Pulvertoft v. Pulvertoft, 18 Yes. 
 84, 98-'9; Ellis v. Nimmo, Lloyd v. Goold (10 E. 
 Ch.) 333 ; Shepard v. Shepard, 7 Johns. Ch. K. 57 ; 
 Jones V. Obenchain, 10 Grrat. 262, & seq.) The cases 
 of HoUoway v. Headington, 8 Sim. (11 Eng. Ch.) 
 324; Dillon v. Coppin, 4 My. & Cr. (18 E. Ch.) 647; 
 Jeff'erys v. Jefferys, 1 Cr. & Phil. Id. 138, which are 
 often cited (1 W'. & Tud. L. C. 203, & seq.) as hold- 
 ing that equity will not enforce nor give effect to 
 any imperfect gift founded merely on a meritorious 
 consideration, though in favor of a wife, are satis- 
 factorily explained as not warranting that doctrine. 
 (1 Wh.' & Tud. L. C. 217-'18 ; Jones v. Obenchain, 
 10 Grat. 264.) 
 
 Where the settlement is made, however, in con- 
 templation of a separation, a court of equity declines 
 to enforce it as being adverse to public policy, and 
 moreover being without mutuality, the wife having 
 no capacity to contract. But if there be a third 
 person interposed, with whom mutually binding 
 stipulations can be made, the fact that the same 
 deed provides for a separation will not vitiate the 
 property-part of the transaction, although so much 
 as relates to the separation will be of bo effect. (2 
 Kent's Com. 176; ante, 287-'8 2'.) 
 2>^. Effect of Marriage on the Property of each Consort 
 in regard to the other. 
 
 Let us advert to (1), The wife's ante-nuptial con- 
 veyances, &c.,, in fraud of the husband's marital 
 
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298 HUSBAND AOT) WIFE. [bOOK I. 
 
 rights; and (2), The interest conferred by marriage 
 upon either consort in the property of the other ; 
 W. C. 
 1'. The "Wife's ante-nuptial conveyances, &c., in fraud 
 of the Husband's marital rights. 
 
 As the law imposes upon the husband the obligar 
 tion of supporting the wife during coverture, and of 
 being answerable during that period for her ante- 
 nuptial contracts and torts, and for her post-nuptial 
 torts, it would seem in some cases, even after the 
 determination of the coverture; and as she is, more- 
 over, entitled to dower in his lands if she survives 
 him, besides a liberal proportion of the surplus of his 
 personalty after the payment of his debts, so he is, 
 in fairness, entitled to expect that she will not seek 
 to deprive him of that marital interest in her pro- 
 perty which the law accords to him. Hence, if just 
 previous to the marriage, and in anticipation of it, 
 she makes a voluntary conveyance (that is, a gift), of 
 what belongs to her to some one else, without his 
 knowledge or consent, it is deemed a fraud upon his 
 rights, and therefore voidable by him. But a con- 
 veyance executed by the woman 'prior to the treaty of 
 marriage (which was very suddenly consummated), 
 although but a little while before the marriage took 
 place, was held to be good, and much more one 
 which, whilst it was executed only a few days ante- 
 rior to the marrirge, yet was designed to secure a 
 debt due to a daughter by a former marriage. (Strath- 
 more V. Bowes, 1 Ves. Jr. 23 ; Waller v. Armistead's 
 Adm'r, 2 Leia;h, 14; Fletcher & ux v. Ashby & als, 
 6 Grat. 332; "Gregory & al v. Winston's Adm'r, 23 
 Grat. 102.) Indeed, the equity which arises ia cases 
 of this nature depends upon the peculiar circum- 
 stances of each case, as bearing upon the question 
 whether the facts proved do or do not amount to 
 sufficient evidence of fraud practised on the husband. 
 And, in general, the existence of a valuable conside- 
 ration accruing to the woman repels the idea of 
 fraud, as respects the husband, even though she par- 
 ticularly desired that the transaction might be con- 
 cealed from him. (Blanchet v. Foster, 2 Ves. Sen'r, 
 264; Crump & als v. Dudley, 3 Call. 439; Gregory 
 & al. V. Winston's Adm'r, 23 Grat. 122; England 
 V. Downs, 2 Beav. (17 Eng. Ch.) 528 ; 1 Wh. & Tud. 
 L. C. 311 & seq.) 
 
 As to what, is sufficient evidence of fraud in such 
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CHAP. XV.] HXrSBAND AND WIFE. 299 
 
 cases, the authorities are far from uniform. (See 1 
 Wh. & Tud. L. C. 312 & seq.) 
 2'. Interest conferred by Marriage upon the Husband 
 and Wife, respectively, in the property oj each other; 
 W. C. 
 1^. Husband's interest in the Wif^s property. 
 
 Let us consider under this head — (1), Husband's 
 interest in the w/e's chattels; and (2), His interest 
 in her freehold lands; 
 1^ Husband's interest in the Wife's chattels. 
 
 The wife's chattels, with respect to which the 
 husband's marital rights are to be discussed, con- 
 sist of — (1), Chattels personal in possession ; (2), 
 Chattels real; (3), Choses in action; and (4), Re- 
 versionary property in chattels — that is, personal 
 property to be enjoyed at a future time ; 
 W. C. 
 1". Husband's interest in the "Wife's Chattels per- 
 sonal in possession ; 
 W C. 
 I''- The General Doctrine. 
 
 All the personal estate in the possession of 
 the wife, in her ovm right at the time of the 
 marriage, such as money, goods, cattle, house- 
 hold furniture, &c., and even such tangible 
 property (not choses in action) as she has not in 
 her actual possession, yei if she has a good title 
 thereto, by the marriage becomes, to all intents 
 and purposes, the absolute property of the hus- 
 band, which he may dispose of at pleasure ; and 
 if he does not dispose of it, it passes at his 
 death, not to her, but to his personal represen- 
 tative. (2 Bl. Com. 433 ; Bac. Abr. Bar & F. 
 (C) 3; 3 Th. Co. Lit. 309, & n (O); 2 Kent's 
 Com. 143; Faulkner v. Faulkner's Ex'ors, 3 
 Leigh, 255 ; Pratt v. Taliaferro, 3 Leigh, 419 ; 
 Guerrant v. Hocker, 7 Leigh, 366; Taylor v. 
 Yarbrough & ux, 13 Grat. 183, 190; "White v. 
 White & als, 16 Grat. 264.) A negotiable secu- 
 rity (that is, a bill of exchange or negotiable 
 note in such a condition as to pass by mere 
 delivery) which belongs to the wife at the date 
 of the marriage, is looked upon, according to 
 what seems to be the better opinion, as a chattel 
 in possession, and therefore vests alasolutely in 
 the husband; and this appears to be true, al- 
 though the security be payable to the wife's 
 
300 HrsBAND Airo wife. [book i. 
 
 Bar. & F. (K); McNeUage v. Holloway, 1 B. & 
 Aid (4* E. C. L.) 221.) This absolute tranter 
 of the wife's chattels to the husband by the 
 marriage is not always viewed with a favorable 
 eye, when, after his death, a conflict arises be- 
 tween the surviving -n-ife on one side, and the 
 husband's personal representative on the other. 
 Thus, where a legacy was left to a wife of a 
 chattel already in possession of herself and her 
 husband, by loan from the testator in his Ufe- 
 time, it was held that, in the absence of any 
 proof of the assent of the executor to the legacy 
 (whereby it would have vested in the wife, and 
 become the property of the husband), there 
 ought to be no presumption of such assent 
 merely from the fact that the executor allowed 
 the chattel to remain iu the possession of the 
 loanee during a short interval between the death 
 of the testator and that of the husband. (Live- 
 say V. Helms & als, 14 Grat. 443; "Wallace v. 
 Taliaferro, 4 Call. 447; Gregory's Adm'r v. 
 Mark's Adm'r, 1 Eand. 355; Taylor & als v. 
 Tarbrough & ux, 13 Grat. 193.) 
 
 It follows, from^ the foregoing view of the hus- 
 band's rights in respect to the wife's chattels 
 personal in possession, that if one detain the 
 goods of a fenie covert which came to his hands 
 before the marriage (and a fortiori if they come 
 into his possession after the marriage was con- 
 tracted), the husband must sue alone to recover 
 them, because the law has vested the wTiole pro- 
 perty therein in him. (Bac. Abr. Detinue (A); 
 1 Chit. PI. 84 ; Draper v. Fulkes, Telv. 166. 
 But contra 1 Tuck. Com. 329, B. H; Taylor & 
 als. V. Tarbrough &ux, 13 Grat. 191.) Where, 
 however, the suit is brought not to recover the 
 property, but for the injury done by the trespass 
 on it, or the conversion thereof, the action 
 ought to be in the name of both husband and 
 wife, if the conversion as well as the taking was 
 prior to the mariiage ; whilst if the taking was 
 before the marriage, and the conversion or 
 other consummation of the wrong afterwards, 
 the husband may, at his election, either sue 
 alone or may join his wife. (1 Chit. PI. 84; 
 "WUbraham v. Snow, 2 Saimd. 47, i.) 
 
 And it should be observed, that wherever the 
 IS to recover the chat- 
 
OHAP. XT.J HUSBAND AND WIFE. 301 
 
 tel), his marital right .is not terminated by the 
 determination of the coverture. (1 Chit PL 83 ; 
 Bac. Abr. Detinue (A) ; Nelthorp & ux v. 
 Anderson, 1 Salk. 114 ; Arundel v. Short & ux. 
 1 Cro. (Eliz.) 133.) 
 
 Wher% land is directed to be sold, and the 
 proceeds given to a married woman, she takes 
 it as personalty, which passes to her husband 
 Jure mariti ; and, being absolutely his, he may 
 take it, and dispose of it, if he is so minded, 
 without actually changing its character as land ; 
 nor would it be otherwise if there were reserved 
 to the wife the option to take the property as 
 land, if she never exercised her election. (Prat v. 
 Taliaferro, 3 Leigh, 419; Siter & als v. Mc- 
 Clenachan & als, 2 Grat. 280 '; Haxall's Ex'ors 
 V. Shippen & ux, 10 Leigh, 536 ; Lewis v. Cap- 
 erton's Ex'or, 8 Grat. 148.) But see Dandridge 
 V. Minge, 4 Kand. 397; Harcum's Adm'r v. 
 HudnaU, 14 Grat. 369. 
 2^. Exceptions to the General Doctrine. 
 
 There are some chattels in the possession of 
 the wife which the law does not cast absolutely 
 upon the husband; 
 W. C. 
 1°. Things Personal which are in possession of 
 the Wife, in auter droit, as Executrix, &c. 
 
 In these the husband, notwithstanding the 
 marriage, has no personal interest. In right of 
 his wife, he does indeed come into possession 
 of them, but only for the purpose of adminis- 
 tering the trust upon which she herself had 
 them. (Bac. Abr. Bar. & F. (C) 3; 3 Th. Co. 
 Lit. 309, & n (O) ; Id. 311, n (P).) And in 
 Virginia, by statute, even this iiduciary posses- 
 sion is done away with, it being provided that 
 where an unmarried woman, who is a personal 
 representative, either alone or jointly with an- 
 other, shall marry, her husband shall not be a 
 personal representative in her right, but the 
 marriage shall operate as an extinguishment of 
 her authority. (V. C. 1873, c. 126, § 9.) 
 2°. Wife's Paraphernalia. 
 
 The wife's paraphernalia is a term borrowed 
 from the Koman law, and derived from the 
 Greek language, signifying something over and 
 above her dower. Our law uses it to signify 
 §lfl/ftWd,PXftiWients of the wife suit- 
 
302 HUSBAND AND WIFE. [BOOK I. 
 
 able to her position in society, as are given her 
 hy her husband (for if given by third persons 
 they are commonly supposed to be designed for 
 her separate use, and are absolutely her's, free 
 from his control). Paraphernalia are the pro- 
 perty of the husband; and if he chooses to 
 dispose of them in his lif e.time, he is at liberty 
 to do so; but he cannot deprive his wife of 
 them by his will, nor do they go, at his de- 
 cease, to his personal representative, except 
 that, so far as may be necessary, to pay his 
 debts after exhausting the rest of his estate, 
 the jewels may be appropriated for that pur- 
 pose; but in no case her necessary apparel. 
 (2 Bl. Com. 4:36-'6 ; 1 Lom. Ex. 455, & seq. ; 
 1 Bright's H. & Wife, 286.) 
 3°. Non-liability, by Statute, of "Wife's Property 
 to pay Husband's Debts. 
 
 It is enacted ia Yirginia, by statute of March 
 31, 1875, that the real and personal property of 
 any female, and the rents and profits thence 
 arising, which she' owns at the time of the mar- 
 riage, or acquires afterwards from any other 
 source than her husband, whether the mar- 
 riage were solemnized before the act or after- 
 wards, if the property were acquired after the 
 act, shall not be liable for the ante-nuptial 
 debts of the husband, nor for any contract in 
 renewal of or based upon a consideration aris- 
 ing or existing before the marriage; and 
 although ail action or suit may be maintained 
 against the husband and wife jointly for any 
 ante-nuptial debt of the wife, yet the execution 
 on the judgment or decree in such action shall 
 bind only the estate or property of the wife 
 which she shall own at the time of the mar- 
 riage, or acquire subsequently thereto, and not 
 that of the husband. (Acts 1874:-'5, p. 442, c. 
 359.) 
 
 This statute, it will be perceived, does not 
 deprive the husband of his interest in the 
 wife's property, but only shields it from his 
 ante-nuptial debts. It also exempts the hus- 
 band from liability for the wife's ante-nuptial 
 debts, save only to the extent of the property 
 which comes by her. Whether, if he converts 
 that property, so that it no longer exists in 
 
 kind,, he .will, be Kahle for its value, to the 
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CHAP. XV.j HUSBAND AND WIFE. 303 
 
 wife's ante-nuptial creditors, the act does not 
 
 determine. 
 2™- Husband's Interest in the Wifeh Chattels Real. 
 
 Chattels real are interests which concern or 
 savor of the realty, but do not attain to the dig- 
 nity of estates of freehold, and are appointed by 
 the law, upon the decease of the owner, to pass, 
 along with the great bulk of his moveable pro- 
 perty, to his personal representative. They con- 
 sist of estates (or terms) for years; of estates by 
 elegit, which are neither more nor less than es- 
 tates for years; and while the military tenures 
 subsisted, of y>ardships in chivalry, and the like. 
 They are chattels, because they pass, like chattels, 
 to the personal representative of the owner at his 
 death; and chattels real, because they concern or 
 savor of the realty. (2 Bl. Com. 386; 3 Th. Co. 
 Lit. 293.) 
 
 Chattels real belonging to the wife in her own 
 right, and not to her separate u^, are absolutely 
 at the husband's disposal during the coverture. 
 He may sell or charge them as he thinks fit, in 
 whole or in .part, but cannot dispose of them by 
 loill, and to the wife's prejudice; and so much as 
 he does not absolutely dispose of during the cover- 
 ture, at the termination thereof, goes to the sur- 
 vivor — that is, to the vnfe, if she survives, or else 
 to him. If he merely charges them, that dqes 
 not defeat the wife's right of survivorship, if she 
 survives, unless the charge be enforced, and the 
 debt made out of the property, during the cover- 
 ture. Hence the term may, at common law, be 
 taken in execution for the husband's debt during 
 the coverture .and sold, whereby the wife's sur- 
 vivorship will be defeated ; but if a judgment is 
 merely obtained, without seizing the term in 
 execution, and the wife survives, she will have 
 it, for her title by survivorship has relation to 
 the marriage, and is therefore paramount. (2 
 Bl. Com. 434 ; 3 Th. Co. Lit. 306, & n (M), 307-'8 ; 
 1 Lom. Ex'ors, 406, & seq. Bac Abr. Bar. & F. 
 (C), 2.) 
 
 It curiously illustrates the manner of the hus- 
 band's holding, that if he sell the term on condi- 
 tion, and enter for the condition broken, during 
 the coverture, he is re-possessed as before, in his 
 wife's right; but if the condition be not broken 
 
 until after the coverture ended, the personal repre- 
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304 HUSBAJSTD AND WIFE. [bOOK I. 
 
 sentative of the husband ought to enter, and the 
 wife's right is barred. (3 Th. Co. Lit. 307.) 
 
 If at the time of the marriage the wife has 
 been dispossessed of her term, the husband may 
 either sue alone to recover it, or he may join his 
 wife with him. If he sues alone, his recovery 
 will vest the term absolutely in himself; but if 
 she is joined with him the recovery will be joint, 
 and he will hold it thenceforward, like any other 
 term belonging to her. (1 Bl. Com. 448, n (44) ; 
 3 Th. Co. Lit. 307; 1 Lom. Ex'ors, 407; Bac. 
 Abr. Bar. & F. (C) 2.) On the other hand, if 
 the term is not recovered at all during the cover- 
 ture, either by the husband suing alone or by 
 the husband and wife suing jointly, the hus- 
 band's marital rights are at an end ; and if he 
 survives he can recover only as his wife's admin- 
 istrator, whilst if she sm-vives she is entitled to 
 the term by survivorship. (3 Th. Co. Lit. 307-'8 ; 
 • 1 Lom. Ex'or, 408-'9.) 
 
 Chattels real, in modern times, are well nigh 
 universally in possession, and not in action. At 
 common law, whilst the feudal tenures remained 
 unimpaired, a right of wardship, in case of tenure 
 by knight-service, or a right valore maritagii, (to 
 the value of the marriage of the ward), under 
 the same tenure, afforded illustrations of chattels 
 real which might be in action only. And in those 
 cases the doctrine was that the husband should 
 not have them at all unless he recovered them in 
 the life time of the wife, even though he survived 
 her. (3 Th. Co. Lit! 308.) But at present the 
 only remnant of chattels real in action, it is be- 
 lieved, exists in the case of what Lord Coke denom- 
 inates chattels real of a mixed nature, partly in 
 possession and partly in action, as when the hus- 
 band is seised in right of his wife, of a rent, upon 
 which some arrears having accrued, the wife dies ; 
 in which case the husband shall have the arrear- 
 ages, although, if the wife had survived, she 
 should have had them. (3 Th. Co. Lit. 308.) 
 3" Husband's Interest in the Wife's Choses in 
 Action. 
 
 A chose in action is a right arising out of con- 
 tract, such as a debt, or damages for breach of 
 contract, or for a tort connected with contract, 
 including a legacy or distributive share. (Bouv. 
 
 Law J). Chose.) And in so far as relates to the 
 Digitized by Microsoft® 
 
CHAP. XT.J HUSBAND AND WIFE. 305 
 
 law of husband and wife, a chose in action in- 
 cludes also, not without some inaccuracy, the 
 right to damages for torts to the wife's person or 
 property. It is called a chose as being a thing or 
 property; and it is said to be in action, because it 
 can be enforced only by actioui Whilst marriage, 
 as we have seen, is an absolute gift to the hus- 
 band of all the wife's chattels personal in posses- 
 sion in her own right {choses in possession, as they 
 are sometimes styled), it is only a qualified gift 
 of choses in action; which become the property of 
 the husband jure mariti onl}-- in case he reduces 
 them into actual or constructive possession during 
 the coverture. Upon such reduction into posses- 
 sion, they are absolutely and entirely his own, 
 and shall go to his executors or administrators, 
 and shall not re-vest in the wife. But if the 
 marriage is determined by the death of either 
 party, or by a divorce a vinculo matrimonii, be- 
 fore he has reduced them into possession, his 
 marital right ceases; and if his wife survive, either 
 by out-living him or by reason of a divorce a vin- 
 culo, she takes the property wholly free from any 
 claims on the part of himself, his personal re- 
 presentatives, or his creditors. If he survive her, 
 then, though his claim as husband is at an end, 
 yet he has a right to be her administrator (Y. 
 C. 18T3, c. 126, § 4), and in that capacity may 
 recover such choses in action ; and having done so, 
 although he must pay therewith all her debts 
 {ante-nuptial debts of course) as far as the value 
 extends, yet by the Statute of Distributions (Y. 
 C. 1873, c. 119, § 10), he is in general her sole 
 distributee. (2 Bl. Com. 484; 3 Th. Co. Lit. 
 309-'10 & n (O); May v. Boisseau, 12 Leigh, 
 512; Browning v. Headley, 2 Bob. 340 ; Dold's 
 Trustee v. Geiger's Adm'r, 2 Grat. 105; Yance 
 V. McLaughlin's Adm'r, 8 Grat. 289.) 
 
 The reduction into possession, as already inti- 
 mated, may be either actual or constructive ; 
 actual when the money due by virtue of the chose 
 in action is paid to and received by the husband 
 or his agent ; or constructive when, without such 
 actual receipt, acts are done which change the pro- 
 perty in the subject. Thus it is reduced construc- 
 tively into possession by judgment recovered in an 
 action instituted by him alone (and followed by 
 
 execution), when it is admissible for him thus to 
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306 HUSBAND AND WIFE. [bOOK I. 
 
 sue ; by decree in equity, directing payment to him ; 
 by an assignment for value, when it is capable 
 of being reduced into possession immediately ; or 
 by a release by him. (3 Th. Co. Lit. 310,'n (0) ; 
 1 Bright's H. & Wife, 53, 61, 69, 72, 86 ; Bates 
 V. Dandy, 2 Atk. 208 ; S. C. 3 Kuss. (3 Eng. Ch.) 
 72, n (b) ; Honner v. Morton, 3 Kuss. (3 Eng. 
 Ch ) 68-'9 ; Heygate v. Anuesley, 3 Bro. C. C. 
 362, & notes ; Ld. Carteret v. Paschal, 3 P. "Wms. 
 199 ; Taliaferro v. Taliaferro, 4 Call. 93 ; Greg- 
 ory's Adm'r.v. Marks' Adm'r, 1 Eand. 330; 
 Archer v. Colby & ux, 4 H. & M. 410; Vaughan 
 & ux V. "Wilson, Id. 452 ; Dandridge v. Minge, 
 4 Rand. 397 ; Browning v. Headley, 2 Rob. 370 
 -'72 ; Yerby & ux v. Lynch & als, 3 Grat. 275, 
 295, 507 ; Harcum's Adm'r v. Hudnall, 14 Grat. 
 379.) 
 
 It should be observed, however, that whilst the 
 doctrine above stated is believed to be the pre- 
 vailing one with us, the later English cases hold 
 that the mere assignment for value, by the hus- 
 band, of the wife's ckoses in action does not of itself 
 amount to a constructive reduction of them into 
 possession, so as to divest the wife's interest in 
 case she should survive, but that such assignee, 
 like the husband himself, must reduce the choses 
 in action into actual possession during the cover- 
 ture, or else the assignment is a nullity against 
 the wife's surviving. (1 Bright's H. & Wife, 86 ; 
 Edwin V. Williams, 13 Sim. (36 Eng. Ch.) 309 ; 
 Le Yasseur v. Scratton, 14 Sim. (37 Eng. Ch.) 
 116.) And this doctrine derives not a little 
 countenance in Virginia from the case of Hayefr 
 V. Ewell's Adm'r, 4 Grat. 11, 15. 
 
 The husband's possession, in order to avail to 
 bar the surviving wife's claim, must be in the 
 character of husband, and not in some other ca- 
 pacity, namely, as executor, trustee, or otherwise. 
 (Baker v. Hall, 12 Yes. 501 ; Wall v. Tomhn- 
 son, 16 Yes. 416; Schuyler v. Hoyle, 5 Johns. 
 C. R. 211 ; Wallace & ux v. Taliaferro & ux, 2 
 Call. 471, 474, 476, 490; Blakey v. ISTewby's 
 Adm'rs, 6 Munf. 70 ; Livesay v. Helms, 14 Grat. 
 441.) 
 
 If the chose in action be of an equitable charac- 
 ter (that is, such as can be recovered only in a 
 court of equity), the wife is entitled to a reason- 
 
CHAP. XV.] HUSBAHD AND WIFE. 307 
 
 husband, but against all creditors of and pur- 
 chasers from him; unless the husband has ac- 
 quired a title thereto by ante-nuptial contract 
 with the wife, or has already made a proper set- 
 tlement on her. This doctrine, which in conse- 
 quence of its being administered in the court of 
 chanceiy, is familiarly known as the Wife's 
 Equity, originated in a favorite principle of that 
 court that "he who asks equity must do it;" but 
 it is now enforced as readily at the instance of 
 the wife herself as plaintiff, as when the husband 
 invokes the aid of the court. (2 Stor. Eq. § 
 14-14; BosviU v. Brander, 1 P. Wms. 4:59-'60 ; 
 Elibank v. Montolieu, 5 Yes. 737; Murray v. Eli- 
 bank, 10 Ves. 84; S. C. 18 Ves. 1; I'Wh. & 
 Tud. L. C. 333, 348 ; Browning v. Headley, 2 
 Kob. 341, 371 ; Dold's Trustee v. Geiger's 
 Adm'r, 2 Grat. 98, 104; Poindexter & ux v. 
 Jeffries & al, 15 Grat. 368.) 
 
 The doctrine, however, is still applicable to 
 equitable choses in action alone ; so that, if the hus- 
 band can recover them at law, without the aid of 
 a court of chancery, or has actually obtained pos- 
 session, without an agreement for a settlement, 
 the equiti/ in question does not exist. And when, 
 by being reduced into the husband's possession, 
 the subject has once been released from the wife's 
 claim, it is not afterwards made liable thereto, by 
 reason of any supervenient occasion to seek the 
 aid of a court of chancery. (1 Wh. & Tud. L. 
 C. 350-'51; Poindexter & ux v. Jeffries & als, 
 15 Grat. 369 ; Cronie v. Hart & als, 18 Grat. 
 744.) 
 
 The subject of the loife's equity is any properly, 
 of whatever description, which is recoverable only 
 in a court of chancery; and embraces, therefore, 
 as well real estate as personalty. The criterion 
 is not at all the nature of the property, but whether 
 or not it is needful to apply to chancery to make 
 the interest of the husband or his assignee avail- 
 able. Hence, where the wife's estates were 
 mortgaged by the husband and wife, and the 
 husband becoming bankrupt, his assignee sought 
 to subject the equity of redemption, it was deter- 
 mined that the wife's equity should prevail ; and 
 when, on the other hand, a father, dying intestate, 
 left real and personal property to descend and 
 
308 HUSBAND AND WIFE. [bOOK I. 
 
 have a rightful claim to her equity as to her dis- 
 tributive share of the personalty, which was re- 
 coverable in equity, but not as to her portion of 
 the lands, which her husband had a right to 
 enter upon immediately upon her father's death, 
 or if the possession were withheld, to sue for and 
 recover at law. (Sturges v. Champneys, 5 My. 
 & Cr. 97; Murray v. Lord Elibank,' (10 Ves. 
 84), 1 Wh. & Tud. L. C. 334-'5 ; Poindexter & 
 XXX V. Jeffries & als, 15 Grat. 370-71; Dold 
 Trustee v. Gei|er's Adm'r, 2 Grat. 98.) 
 
 The amount to be settled is in the discretion of 
 the court, which takes into consideration the 
 fortune already received by the husband through 
 the wife, and any previous settlement which may 
 have been made. The true principle is that the 
 provision thus made shall be reasonable and ade- 
 quate upon all the circumstances of the case. 
 Hence, whilst in some cases one-half and three- 
 fourths of the fund in question have been allowed, 
 in others, the ivhole has been settled. The usual 
 practice is to refer it to a commissioner, to en- 
 quire and report what would be an adequate and 
 reasonable provision. But the court may decide 
 this question for itself, if there be sufficient mate- 
 rial in the record for the purpose ; and if it 
 plainly appear that the whole property is not 
 more than adequate, a reference to a commis- 
 sioner is of course not necessary. (Browning v. 
 Headley, 2 Kob. 340; Poindexter & ux v. Jef- 
 fries, 15 Grat. 372 ; 1 Wh. & Tud. L. C. 353- 
 344; Penn's Adm'r v. Spencer & al, 17 Grat. 85.) 
 
 The time when the provision in the wife's favor 
 shall take effect is also referred to the discretion 
 of the court, to be. determined upon the circum- 
 stances of the case. If the husband lives with 
 and supports her, it may be made to take actual 
 effect when he ceases to do so, or at his death, 
 the husband meanwhile enjoying the income, and 
 the principal of the fund being secured for the 
 wife's benefit. But if he has deserted or ill-treated 
 her, or is unable or fails to support her, it v(dll be 
 directed to commence immediately. (Poindexter 
 & ux V. Jeffries and als, 15 Grat. 373 ; Murray v. 
 Ld. Elibank, Wh. & Tud. L. Gas. 353.) 
 
 This equity of the wife is so substantial an in- 
 terest that it will constitute a valuable considera- 
 ti©Jgfftt^ygq|8tWfep$g«J/iSittlement by the husband 
 
CHAP. XV.] HUSBAND AND WIFE. 309 
 
 upon her (made while the equity subsists), which 
 will be sustained against his creditors, to the ex- 
 tent of the value of the equity. (Murray v. Eli- 
 bank, 1 Wh. & Tud. L. C. 354; Poindexter & ux 
 V. Jeffries & als, 15 Grat. 373.) 
 
 The wife's equity extends to a provision for 
 her child, as well as for herself; and yet it is so 
 strictly personal to her that she may waive it 
 at any time before the settlement for the joint 
 benefit of her children and herself is actually com- 
 pleted, and may thus defeat the interest of the 
 the children. And so, aku, if she dies before 
 a decree or an agreement for a settlement is 
 made, the children take nothing. But while 
 they have no right to a settlement independently 
 of contract or decree, yet if there be either of these, 
 and the wife die, the children do not thereby 
 lose their interest; nor Ciin the wife, after a con- 
 tract or decree contemplating and providing for 
 the children, waive the settlement so as to com- 
 promise their rights. (C Stor. Eq. § 1417 & seq.; 
 Murray v. Ld. Elibank (13 Yes. 1), 1 Wh. & Tud. 
 L. Cas. 329, 340 & seq. 352-'3; Scriven v. Tap- 
 ley, 2 Eden. 327; Hodgens v. Hodgens, 11 Bligh. 
 N. S. 104; Lloyd v. Williams, 1 Madd. 467; 
 Lloyd V. Mason, 5 Hare (26 Eng Oh.) 149; 
 Fenner v. Taylor, 2 Bus. & My. (13 Eng. Ch.) 
 190.) 
 
 The wife's waiver of her rights must be accom- 
 panied with all the solemnities by which the law 
 seeks to protect married women from undue in- 
 fluence and constraint — namely, by a privy ex- 
 amination, separate and apart from her husband, 
 in court, or in pursuance of a commission issued 
 from the court, or perhaps in the manner pre- 
 scribed by statute for the execution of conveyances 
 by married women. (1 Dan. Chan. Pr. 115-'16; 
 2 Stor. Eq., § 1418; Bac. Abr. Bar. & F. (M); 
 Spurling v. Eochfort, 8 Ves. 175, n (a); 1 Wh. 
 & Tud. L. Cas. 345; Y. C. 1873, c. 117, § 4, 7.) 
 
 But the wife's equity may be defeated or 
 barred, not only by the waiver thereof in due 
 form, but also by the husband or his assignee 
 getting actual possession of the subject before 
 any bill in behalf of the wife is filed, by an ade- 
 quate post-nuptial settlement, or by any settlement 
 before marriage, containing a stipulation against 
 " ' pd extent by the wife's 
 
310 HUSBAND AND WIFE. [bOOK I. 
 
 misconduct, as by her adultery or desertion. But 
 whilst in this last case she cannot insist on a set- 
 tlement, having thus lost sight of her conjugal 
 duty, yet it seems that the husband even then 
 will not be allowed in equity to receive the whole 
 of her equitable property wHile he does not maintain 
 her; nor, on the other hand, will any portion be 
 assigned to her, at least while she continues in 
 adultery; for, as has been observed by a great 
 judge, "it would be enormous to give it to enable 
 her to keep her gallant"; but if she ceases to 
 live with the adulterer, it may be supposed that 
 equity would not decline to decree her, out of 
 her own estate, something for maintenance, ia 
 order to prevent her from relapsing into evil 
 courses. At all events, the fund will be ordered 
 to be paid into court, to await such future disposi- 
 tion as circumstances shall indicate. (Murray v. 
 Ld. Elibaiik (10 Ves. 84), 1 Wh. & Tud. L. C. 
 347; Salwey v. Salwey, 2 Ambl. 692; Garforth 
 V. Bradley, 2 Ves. Sen'r, 675; Carr v. Ester- 
 brooke, 4 Ves. 186 ; Ball v. Montgomery, 2 Ves. 
 Jun'r, 197, 199.) 
 4". Husband's Interest in Wife's Reversionary Pro- 
 perly in Chattels. 
 
 The term reversionary is employed, not very 
 happily, to denote interests which are to be en- 
 joyed at a future time, and not in presenti ; with 
 or without an intervening estate in some one else. 
 Thus, a gift of State bonds to B, to take effect at 
 the age of twenty-one, or to A until B attains 
 the age of twenty-one, and then to B, is in either 
 case a reversionary interest. To such reversion- 
 ary interests in chattels belonging to the wife, 
 supposing them to continue reversionary, if she 
 survive the covei ture (whether the same be termi- 
 nated by the husband's death,- or by a divorce 
 a vinculo), she is entitled, by survivorship, not only 
 as against the representatives and general assig- 
 nees of the husband, but also as against his par- 
 ticular assignee for valuable consideration. But 
 if the coverture outlasts the period during which 
 the interest is reversionary, or if (the coverture 
 being determined by the death of the wife) the 
 husband survive such period, so that he is in a 
 condition to reduce the chose into possession, the 
 interest belongs to him, or to his assignee ; and 
 as h^m^'AwiM&im&^f^ignee, it will belong 
 
CHAF. XV.] HUSBAND AND WIFE. "^ 311 
 
 to the assignee not only where the assignment is 
 for value, but also where it is purely voluntary. 
 (1 Bright's H. & Wife, 83, &c. ; Hornsby v. 
 Lee, 2 Mad. K. 16 ; Purdew v. Jackson, 1 Russ. 
 (1* E. Ch.) 1; Honner v. Morton, 3 Russ. (3 E. 
 Ch.) 65 ; Dade v. Alexander, 1 Wash. 30 ; Drum- 
 mond V. Sneed, 2 Call. 491 ; Wade v. Boxley, 5 
 Leigh. 442 ; Browning v. Headly, 2 Eob. 870 ; 
 Hayes v. Ewell's Adm'r & als, 4 Grrat. 11 ; Moore 
 V. Thornton & als, 7 Grat. 99 ; Taylor & als v. 
 Yarbrough & ux, 13 Grat. 192 ; Henry v. Graves, 
 16 Grat. 248, 254-'5.) 
 
 It would seem, however, that if the wife dies 
 before the event happens upon which the rever- 
 sionary interest comes into possession, the sur- 
 viving husband or his assignee can take it only 
 as the wife's "personal representative, and subject 
 to the obligation to pay out of it her ante-nuptial 
 debts (1 Bright's H. &'Wife, 41) ; although there 
 is not wanting very imposing authority tending 
 to show that in such case the husband takes jure 
 mnriti, and not merely as his wife's administrator. 
 (Wade V. Boxley, 5 Leigh, 442 ; Henry v. Graves, 
 16 Grat. 255; Harvey v. Skipwith & als, 16 
 Grat. 409.) 
 2^ Husband's Interest in Wife's Freehold Lands. 
 
 We have seen what interest the husband takes 
 in the wife's chattels real, or terms for years {ante 
 p. 303, &c.), and it now remains to enquire into 
 his interest in those lands wherein she has an es- 
 tate of freehold, that is, of indeterminate duration, as 
 in fee-simple, for life, or for any other indeterminate 
 period. 
 
 He does not by the marriage become absolute 
 proprietor of this species of the wife's property, 
 nor is he entitled to dispose of it at his pleasure ; 
 hut as the head and governor of the family, the 
 management of it, and the rents and profits there- 
 of, devolve upon him during the coverture, the 
 freehold remaining entire after the husband's death 
 to the wife, or her heirs ; unless by the birth of 
 a living child he becomes entitled to an estate for 
 his life, by the curtesy. The . husband and wife 
 are said, therefore, to be seised of the wife's free- 
 hold lands in right of the wife, in fee or otherwise 
 as the case may be ; and whilst his alienation or 
 his charges by mortgage, &c., are good as against 
 ^°^£8^^^&^y^M(M8f #e coverture, or if he 
 
312 HrrsBAifD aj^td wife. [book i. 
 
 be tenant 6j/ the curtesy, during his life, — ^yet they 
 will avail nothing after his interest is terminated, 
 unless she unites with him in the conveyance in 
 the manner prescribed bj law. (V. C. 1873, c. 
 117, § 4, 7.) At common law, indeed, he had 
 power to transfer the whole estate of his wife, that 
 is, to discontinue it, subject only to be avoided by 
 the subsequent entry of the wife, or her heirs. 
 This doctrine, however, is obviated by statute 
 (after the model of 32 Hen. VIII, c. 21), which de- 
 clares (V. C. 1873, c. 129, § 2,) that " no convey- 
 ance or other act suffered or done by the husband 
 only, of any land which is the inheritance of his 
 wife, shall be or make any discontinuance thereof, 
 or be prejudicial to the vnfe or her heirs, or to any 
 having right or title to the same by her death, but 
 they may respectively enter into such land, accord- 
 ing to their right and title therein, as if no such 
 act had been done." (3 Th. Co. Lit. 305, n (L); 
 Id. 112, n (E); Id. 116, & n (U) ; Bac. Abr. Bar. & 
 F. (C) 1; 1 Brighfs H. & Wife, 112 & seq.; 
 Polyblank v. Hawkins, 1 Dougl. 329 ; Dejarnette 
 V. AUen & ux, 5 Grat. 512-13.) 
 
 It is further to be observed, that if the husband, 
 or the husband and vdf e, agree to sell and convey 
 the wife's lands, the agreement cannot be specifi- 
 cally enforced against either of them; not against 
 the wife, because she is incapable of binding her- 
 seK by any executory contract; nor against the hus- 
 band, because coercion employed against him would 
 amount to the moral coercion of the wife. The 
 only remedy upon such an agreement is an action 
 thereon against the husband to recover damages 
 for its breach. (1 Bright's H. & Wife, 187, k seq.; 
 2 Stor. Eq. § 731, & seq.; Emery v. Wase, 8 Ves. 
 614.) 
 
 And since the agreement cannot be specifically 
 enforced against husband and wife, it follows that, 
 for want of mutuality, it cannot be enforced by 
 them. (Watts & al v. Kinney &: ux, 3 Leigh, 272, 
 290.) 
 
 The husband's estate by the curtesy is defined to 
 be "where a man takes a wife seised during the cov- 
 erture of an estate of inheritance, legal or equitable, 
 such as that the issue of the marriage may by pos- 
 sibility inherit it as heir to the wife, has issue by her 
 bom alive, and the wife dies, the husband surviving 
 has q!P;fftf§^ifiythfifckjgfc^ his life, which is called 
 
CHAP. XV.] HUSBAND AND WIFE. 313 
 
 an estate by the curtesy." Its nature and incidents 
 will be more particularly set forth in another 
 place. (2 Bl. Com. 126 ;' 2 Instit's Com. & Stat. 
 Law, c. VIII.) 
 
 In describing, in pleading, an estate in fee simple 
 in lands which belongs to the wife, it must be 
 averred that the husband and wife, in right of the 
 xoife, are seised in fee simple, and not in freehold 
 merely ; and yet the husband is regarded as tenant 
 of the freehold only, and therefore has no right to 
 commit waste in the lands; though the coverture 
 suspends any remedy at common law in her favor 
 against him. Hence, a judgment-creditor of the 
 husband, who extends the wife's lands upon an 
 execution of elegit, whilst he succeeds to the hus- 
 band's legal right to the rents and profits, does 
 not enjoy his immunity from liability for waste. 
 In like manner a lessee or alienee of the husband 
 is liable for waste, and iu both cases the action is 
 to be brought in the name of husband, and wife, she 
 being disabled to sue in her own name. (Bac. Abr. 
 Bar. & F. (C) 1 ; Dejarnette v. Allen & ux, 5 Grat. 
 514-'15.) 
 2'^. Wife's interest in Husband's Property; W. C. 
 1^ "Wife's interest in Husband's Chattels. 
 
 Independently of special agreement by marriage 
 settlement, the wife acquires, in general, by the 
 marriage no other or further interest in the hus- 
 band's chattels than as his most favored distributee, 
 after his death ; although, if she appropriate them 
 to her own use, he can have no remedy against 
 her. (McCormick's Adm'r v. McCormick, 7 Leigh, 
 66.) As his distributee, she is entitled, if the hus- 
 band leave issue by her, to one-third of the surplus 
 remaining after the payment of his debts ; and if 
 . he leave no issue by her, to such of the siirplus as 
 was acquired in virtue of the mai-riage with her, 
 and shall remain in kind at the husband's death 
 (subject to charges of administration and debts so 
 far only as the other personal estate of the hus- 
 band may be sufficient to satisfy the same); and 
 also, if the husband leave issue by a former mar- 
 riage, to one-third, and if no such issue, to one-half 
 of the residue of such surplus. But of this dis- 
 tributive share she cannot be deprived by the hus- 
 band's will, nor by any revocable disposition which 
 he can make of his chattels, for that would be 
 ^^^m^Mn^WiCroM^ may defeat her claim 
 
314- HUSBAND AIJD WrFE. [bOOK I. 
 
 by an irrevocable alienation of his chattels in his 
 Irfe-time, notwithstanding he may reserve a life- 
 estate therein to himself, or may have had it in 
 view thereby to deprive her of her distributive 
 share. (V. C. 1873, c. 119, § 10 ; Lightfoot's Ex'or 
 V. Colgin & als, 5 Munf . 42, 555 ; Gentry & als v. 
 Bailey, 6 G-rat. 604.) 
 
 In order to prevent any testamentary privation by 
 the husband of the wife's rights as his distributee, 
 she is armed with the power of renouncing the 
 provision made' for her by his will within one 
 year from its admission to probate, so that such 
 renunciation be made in person before the court of 
 probate, or by a writing recorded in such court, or 
 in 'the clerk's office thereof, upon such acknow- 
 ledgment as would aiithorize a conveyance of lands 
 to be recorded. In the event of such renuncia- 
 tion, or if no provision at all be made for her by the 
 will, she shall have such share of her husband's 
 personal estate as she would have had if he had 
 died intestate; otherwise she shall have no more 
 thereof than is given her by the will. (Y. C. 1873, 
 c. 119, § 12, 14.) But these provisions in favor 
 of the wife, as distributee of her husband, are aU 
 made expressly subject to this qualification, — that 
 if she of her own free will leave her husband, and 
 live in adultery, she shall have no part of the per- 
 sonal estate as to which he dies intestate, unless 
 her husband, after she so left him, be reconciled 
 to her and suffer her to live with him. (V. C 
 1873, c. 119, §13; Thornton v. Winston, 4 Leigh 
 152; Dupree, Adm'r, v. Gary & al, 6 Leigh, 37 
 Kinnaird v. William's Adm'r, &c., 8 Leigh, 400 
 Findlay's Ex'or v. Findlay, 11 Grat. 434.) 
 
 To this general doctrine, that the wife has no 
 interest in the husband's chattels, save as his dis- 
 tributee, a qualification must be noted in respect 
 to her paraphernalia, the nature of which has been 
 already explained {Ante p. 301-'2). (See also 
 Bright's H. & Wife, 286 ; Tipping v. Tipping, 1 
 P. Wms. 730; Northey v. Northey, 2 Atk. 78-'9; 
 Graham v. Londonderry, 3 Atk. 393.) 
 
 The husband may, of course, bestow articles of 
 apparel and of ornament on the wife, not as her 
 paraphernalia, but as her separate estate. This, 
 however, is not presumed, since she might then 
 dispose of them absolutely, which would frustrate 
 his ]Pisit<issBCbt)ysMieoSisgff^r person for his own 
 
CHAP. XT.] HUSBAND AND wrPE. 315 
 
 honor and that of the family. But such gifts 
 from other persons, as from her relatives or his, 
 or from strangers, are always taken to be for her 
 separate use, unless the contrary be declared. 
 Wherever they have become her separate pro- 
 perty, they are STibject to her absolute control, 
 and cannot be interfered with by the husband or 
 his representatives, nor by the husband's creditors, 
 except where' they were derived by his gift, made 
 in fraud of his creditors. (1 Lom. Ex'ors, 456; 
 1 Bright, H. & Wife, 289 ; Graham v. London- 
 derry, 3 Atk. 393; McChesney v. Brown, 25 G-rat. 
 393; Burnett & ux v. Hawpe, Id. 481.) 
 
 It is scarcely necessary to say that the wife, by 
 agreement before marriage, may bar her right to 
 paraphernalia, or to a distributive share of her 
 husband's estate; as, indeed, either party may, in 
 like manner, by ante-nuptial contract, relinquish 
 any right depending on the marriage. (1 Lom. 
 Ex. 457; 1 Bright's H. & Wife, 294; Cholmley v. 
 Cholmley, 2 Yern. 83 ; Read v. Snell, 2 Atk. 642; 
 Bray v. Dudgeon, 6 Munf. 132 ; Charles v. Charles, 
 8 Grat. 486; Findlay v. Findlay, 11 Grat. 434.) 
 2\ Wife's interest in Husbandh Lands. 
 
 The wife, upon marriage, acquires an important 
 interest in her husband's lands of inheritance, of 
 which nothing that he can do will thenceforth di- 
 vest her without her consent. This interest, which 
 is called her dower, is closely analogous to the lius- 
 band's curtesy, and will be fully expounded in an- 
 . other place — (2 Inst. Com & Stat. Law, c. VIII). 
 At present it must suffice to state its definition, 
 which recites its prominent incidents : "Dower is 
 where a woman marries a man seised at any time 
 ; during the coverture of, or entitled to a right of entry 
 or action in, an estate of inheritance such as that the 
 issue of the marriage may, by possibility, inherit it 
 as heir to the husband, and the husband dies, the 
 wife surviving is entitled to one-third for her life, 
 as tenant in dower." (2 Inst. Com. & Stat. Law, 
 c. VIII; 1 Th. Co. Lit. 569, 578; V. C. 1873, c. 
 106, §1,2.) 
 
 The claim to dower is paramount to the hus- 
 band's post-nuptial debts in all cases where the wife 
 has not relinquished her right in due form of law; 
 and is paramount also to his ante-nuptial debts, 
 unless before marriage they were charged specifi- 
 »cally^l§^^fSfllmf^m(^^ like, upon the land. 
 
316 HUSBAND AND WIFE, [bOOK I. 
 
 Nor can the husband defeat the wife's dower by 
 any alienation, or otherwise, after marriage with- 
 out her consent, manifested by her executing the 
 conveyance with all the ceremonies (V. C. 1873, c. 
 117, § 4, 7) which the caution of the law has de- 
 vised in the case of married women. (2 Inst. Com. 
 & Stat. Law, 168; 1 Th. Co. Lit. 568, n (B); 1 
 Lorn. Dig. 128-'9, 107.) 
 
 Dower may be prevented from accruing, or hav- 
 ing accrued may be barred by several devices, 
 which are pretty fully set forth 2 Inst. Com. & 
 Stat. Law, c. YIII. That which is incomparably 
 the most usual and familiar is the wife's uniting 
 with the husband in the conveyance in the manner 
 prescribed by law (V. C. 1873, c. 117, § 4, 7), and 
 
 fully detailed post, p. , and also 2 Inst. Com. 
 
 & Stat. Law, c. YIII and c. XIX. Another 
 method of preventing dower is by jointure, which 
 means with us any estate, real or personal, intended 
 to be in lieu of dower, conveyed or devised for the 
 jointure of the wife, and assented to by her, either 
 before marriage or after the coverture is deter- 
 mined. . (Y. C. 1873, c. 106, § 4, 5, 6; 2 Inst. Com. 
 & Stat. Law, c. YIII.) 
 3'^. Wife's Separate Property. 
 
 It is possible, and in point of law not unfrequent, 
 for a wife to be possessed of property, real and 
 personal, which shall not be subject to her hus- 
 band's control, nor to his debts ; but which in use 
 and enjoyment, and in power of disposal, shall be- 
 long to her exclusively, to all intents and purposes, 
 or at least to most, as if she were a feme sole. Pro- 
 perty so situated is denominated the wife^s separate 
 estate. It may arise out of ante-nuptial dispositions 
 made by the wife herself, or by the husband or 
 some third person either before or after marriage. 
 Foreign as such an arrangement is to the settled 
 convictions and policy of the common law, it could 
 not have found a place in our jurisprudence but 
 for the interposition of the court of equity, whose 
 extraordinary jurisdiction in this particular origi- 
 nated through the doctrine of trusts, in the latter 
 part of the reign of Edward III (say about A. D. 
 1370, 2 Inst. Com. & Stat. Law, c. X), and has 
 ever since been maturing, in the main wisely, so as 
 to meet the needs of society, but occasionaUy with 
 a contemptuous indifference to the common law 
 ideas of)^^^^^^^^^,^^ anc^ wife, which is 
 
CHAP. XV.j HUSBAND AND WIFE. 317 
 
 suggested by the analogies of the Roman law, and 
 tends neither to domestic peace nor to the true 
 happiness of married life. 
 
 Every kind of property, including estates in fee- 
 simple, and chattels personal and real, may be sub- 
 ject to a trust for the wife's separate use, which will 
 be supported in equity; a trust which is effectual 
 against the husband, although the wife be unmar- 
 • ried at the time of its creation, or being then mar- 
 ried, have become discovert, and afterwards married 
 again. It may, to be sure, be confined in its 
 operation to a particular coverture, but it may also 
 be limited free from the interference or control of 
 any future husband; and whether it be one or the 
 other will depend on the terms of the instrument 
 creating the trust. (2 Bright's H. & Wife, 204-'5 ; 
 2 Stor. Eq. § 1378 & seq.) 
 
 In respect to the phraseology which suffices to 
 create a separate estate in the wife, it is to be ob- 
 served that the husband's legal rights to the wife's 
 property by virtue of the marriage, and its obliga- 
 tions, are neither to be cancelled nor abridged, 
 save in pursuance of an intention to that effect 
 plainly manifested. The mere fact of vesting pro- 
 perty in trustees, in trust for the benefit of the wife, 
 does not create in her favor a separate estate there- 
 in. (2 Bright's H. & W. 206 ; 2 Stor. Eq. § 1381 
 & seq.; 1 Bish. Mar. Wom. § 839, n (2); Brown v. 
 Clark, 3 Ves. 166 ; Lambe v. Milnes, 5 Yes. 521 ; 
 Eich v. Cockell, 9 Yes. 377 ; Pickett v. Chilton, 
 5 Munf. 481; Lewis v. Adams, 6 Leigh, 320, 331, 
 335; Mitchell v. Moore & als, 16 Grat. 280; White 
 V. White, 16 Grat. 264 ; Buck & als v. Wroten & 
 ux, 24 Grat. 253.) 
 
 Hence a legacy to a married woman for her "own 
 use and benefit ;" to her "own proper use and bene- 
 fit;" "to be under her sole control;" "to be paid into 
 her own proper hands, to and for her own use and 
 benefit;" to a woman and her assigns, "for her 
 and their absolute use and benefit;" — is not by any 
 of these expressions constituted the wife's separate 
 property. (2 Bright's H. & W. 206 & seq.; 2 Stor. 
 Eq. § 1383 ; Hulme v. Tenant (1 Bro. C. C. 16), 
 1 Wh. & Tud. L. C. 376-'7 ; Taylor & als v. Yar- 
 brough & ux, 13 Grat. 183 ; White v. White & als, 
 16 Grat. 268.) 
 
 On the other hand, where the gift is "to her sole 
 and '^SJIl^^J^fMl^ohe^Sole use, benefit and dis- 
 
318 HUSBAND AND WIFE. [bOOK I. 
 
 position;" "for lier own use and at her own dispo- 
 sal;" "for her own sole use;" " for her sole use and 
 benefit;" "free from the power oi her husband;" "for 
 her own use and benefit, independent of any other per- 
 son ;" " to enjoy and receive the issues, and receive the 
 issues and profits;" "for her livelihood;" "the wife's re- 
 ceipt to be a sufficient discharge to trustee;" "theannual 
 produce to be paid into her proper hands;" "the se- 
 curities to be delivered up to her whenever she shall 
 require;" " for her support and maintenance;" "the 
 profits to be paid to her separate use ;" — these ex- 
 pressions have been interpreted to create a separate 
 estate in the wife; for which, it will be observed, no 
 precise terms of art are needful, but only a clear mani- 
 festation, from the language taken in conjunction, 
 with the surrounding circumstances, of an intent to 
 exclude the power and marital rights of the hus- 
 band. (2 Bright's H. &. Wife, 210 & seq.; 2 Stor. 
 Eq. § 1382; Hulme v. Tenant, (1 Bro. C. C. 16), 
 1 Wh. and Tud. L. C. 376-'7 ; Tyrrell v. Hope, 2 
 Atk. 558 ; Darley v. Darley, 3 Atk. 399 ; Stanton 
 V. Hall, 2 Bus. «fe My. 180 ; Scott & ux v. Gibbon, 
 5 Munf . 90 ; Smith v. Smith's Adm'rs, 6 Munf. 
 581; West v. West's Ex. 3 Rand. 373, 377; Lewis 
 V. Adams, 6 Leigh, 320, 335 ; Cleland v. Watson, 
 10 Grat. 159 ; Nixon v. Hose, 12 Grat. 428 ; Tay 
 lor & als V. Yarbrough & ux, 13 Grat. 183.) 
 
 The husband's marital rights, however, let it be 
 repeated, will never be divested to a greater ex- 
 tent than the terms of the settlement clearly require; 
 so that when by the settlement she is allowed to 
 dispose of certain property by deed or will, but dies 
 without making any disposition of it, there is no 
 separate estate created, and the husband surviving 
 is, entitled, as her distributee, to the personalty. 
 (Moloney v. Kennedy, 10 Sim. (16 Eng. Ch.) 254 ; 
 Mitchell V. Moore, 16 Grat. 275.) 
 
 There is also a distinction between the case of a 
 gift or bequest to a married woman, on the one side, 
 and on the other to an unmarried looman, not in 
 • contemplation of an immediate marriage, nor as a 
 provision for that event. Thus the words " to be 
 at her own disposal," " for her sole and separate 
 use," occurring in a gift or bequest to an unmarried 
 woman, may not always create a separate estate, to 
 be enjoyed by her independently of any future hus- 
 band ; whilst, as we have seen, such expressions in 
 
 respect to. a married woman, or in contemplation 
 ^ DigitizecTby Microson® ^ 
 
CHAP. IV.J HUSBAND AND WIFE. 319 
 
 of marriage, would certainly have that effect. The 
 doctrine upon this point, however, is not precisely 
 settled. (2 Stor. Eq. § 1384, & n 1 ; Buck & als 
 v. Wroten & ux, 24 Grat. 253.) 
 
 The interposition of trustees, which at first was 
 supposed to be necessary in order to protect the 
 wife's separate estate, has not been deemed indis- 
 pensable since about 1726. It being a fundamen- 
 tal maxim of equity never to suffer a trust to fail 
 for want of a trustee, where it is plain that a sepa- 
 rate estate in favor of the wife is intended to be 
 created, either by an actual conveyance, or by a 
 distinct and irrevocable agreement to convey, a 
 court of chancery will effectuate the design by desig- 
 nating a trustee, either the husband himself or 
 some other person, as circumstances may indicate. 
 Hence, when property is given to a married woman 
 as her separate estate, without naming the trustees, 
 and a fortiori when it is given to the husband for her 
 separate use, the husband will be, in equity, regarded 
 as her trustee, and at the discretion of the court he 
 may be superseded, and another person appointed 
 trustee. Nay, further, if the husband before mar- 
 riage agrees in writing that his wife shall be entitled 
 to specific parts of his or her estate, to her separate 
 use, but in conseqiience of no settlement having 
 been actually made, the legal title remains, or be- 
 comes vested in him by the subsequent marriage, 
 a similar doctrine is applicable, and the husband 
 will be held, in equity, to be a trustee to her sepa- 
 rate use. (2 Bright's H. & Wife, 214 & seq.; 
 Lucas V. Lucas, 1 Atk. 270 ; Bennett v. Davis, 2 
 P. Wms. 316 ; Lee v. Prieaux, 3 Bro. C. C. 381 ; 
 McLean v^ Longlands, 5 Ves. 79 ; Parker v. Brooke, 
 9 Ves. 583 ; Rich v. Cockell, 9 Ves. 369 ; David- 
 son V. Atkinson, 5 T. E. 434 ; Sayers v. Wall, 26 
 Grat. 354.) 
 
 And although, in consequence of husband and 
 wife being deemed in law one person, neither can at 
 law make a conveyance directly to the other (1 Th, 
 Co. Lit. 130 & seq.); yet in equity conveyances 
 directly from husband to wife, without the interven- 
 tion of trustees, have long been sustained where 
 clearly proved, so only that his creditors are not 
 prejudiced, and in general, also, that the husband 
 shall not divest himself of the whole, or of an un- 
 reasonable proportion of his estate, which would 
 
 P^^'^^^z»y^/t$l^^^lofr °^*""^1 ^^^ unbecom- 
 
320 HUSBAND AND WIFE. [bOOK I. 
 
 ing subordination to his wife, adverse to domestic 
 felicity, and to public policy. But under circum- 
 stances showing the existence of a strongly merito- 
 rious consideration, a conveyance even of the whole 
 of the husband's property to his wife has been 
 sanctioned. (2 Stor. Eq. § 1374; Lucas v. Lucas, 
 1 Atk. 270; Beard v. Beard, 3 Atk. 72; Slanning 
 V. Style, 3 P. Wms. 334, 338 ; Walter v. Hodge, 2 
 Swanst. 92, 107 ; Shepard v. Shepard, 7 Johns. 
 Ch. 63 ; Jones & ux v. Obenchain & als, 10 Grat. 
 259; Sayers v. Wall, 26 G-rat. 873 ; Ante p. 293-'94, 
 2'^.) And by means of the Statute of Uses, land 
 may be conveyed by the husband to the wife 
 directly, so as to vest in her a legal title, namely, 
 by covenanting with a third person, a stranger, in 
 consideration of natural love and affection for the 
 wife, to stand seised to her use. The statute then 
 takes the possession out of the husband and vests 
 it in the wife. (1 Th. Co. Lit. 130; 2 Insts. 
 Com. & Stat. Law, 856 ; Ante p. 293, 2^.) 
 
 The wife cannot in like manner convey directly 
 to the husband (except her separate property or by 
 power of appointment), because, save in those cases, 
 no conveyance of a married woman is valid even 
 in equity, unless made in pursuance of the pro- 
 visions of the statute upon the subject (V. C. 1873, 
 c. 117, § 4, 7), one of which is that the husband 
 and wife shall unite in the conveyance, and it would 
 be an incongruity, Avhich might give even a court 
 of equity pause, that husb-ind and wife should con- 
 vey to the husband; besides that the wife in such a 
 case would no longer have that protection to her 
 interests which the junction of the husband with 
 her was designed to confer. However, the object 
 is easily attained by the husband and wife uniting, 
 in pursuance of the statute, in a conveyance to a 
 third person, who shall immediately convey to the 
 husband. (Shepperson v. Shepperson, 2 Grat. 501; 
 Switzer v. Switzer, 26 Grat. 583.) 
 
 It wiU easily be apprehended that, since the rea- 
 son of the inability of husband and wife, respect- 
 ively, to convey (firectly, the one to the other, is 
 their oneness during the coverture, so when the 
 covertm-e ceases, the inability is at an end. Hence, 
 the wife may take from the husband by devise or 
 will, or by donation mortis causa, because none of 
 these take effect until, by the husband's death, the 
 cover^^^s^t^igai^ted.^^^d so the husband may 
 
-CHAP. XV.J . HUSBAND AND WIFE. 321 
 
 take from the wife by similai* means, when she by- 
 power of appointment, or by reason of a separate 
 • estate, is capable of making such dispositions. (1 
 Th. Co. Lit. 131-'2, n (9) and (N); Y. C. 1873, c. 
 118, § 3.) And lastly, upon this point, it is to be 
 observed that husband and wife may respectively 
 convey the one to the other, when he or she acts in 
 auier droit, by virtue of a power of appointment, or 
 as attorney in fact for a third person; for in such 
 case the interest passes not from the consort, but 
 from the third person. (1 Th. Co. Lit. 130, & n 
 (6), 131.) 
 
 There is one peculiar sort of separate interest, in 
 the nature of a separate estate, which the wife may 
 derive from her husband, which demands some 
 notice, namely, pin-money. Pin-money is a pro- 
 vision made by the husband, sometimes by or in 
 pursuance of marriage-contract, but more frequently 
 by gift from him to the wife, for the specific pur- 
 pose of supplying her with articles of dress, and 
 with pocket-money, in order to prevent the annoy- 
 ance of a constant recourse to him with petty de- 
 mands for personal expenditure. It may consist of 
 gifts of money made from time to time, or of a spe- 
 cific periodical allowance, or of the savings and 
 profits accruing from her domestic management ; 
 but in either case, it it is not to the prejudice of the 
 husband's creditors, or if it be by virtue of an ante- 
 nuptial contract, the wife acquires in equity an un- 
 impeachable right of property therein, subject only 
 to two qualijications; namely, first, that as it is be- 
 stowed for the specific purpose of decking her 
 person, for the credit of the common household, 
 the husband has a certain interest in it, as well as 
 the wife, and may demand, perhaps may constrain, 
 the expenditure to be made accordingly; and se- 
 condly, that even though stipulated for by a mar- 
 riage settlement, she cannot call upon her husband 
 to pay any arrears, if he has meanwhile provided 
 for her current wants, nor in any event to pay 
 beyond the arrears of a single year; nor, it seems, 
 can her personal representative demand any ai-rears 
 at all; for the money is designed to dress and 
 adorn the wife during the year, with a view to 
 maintain the dignity of the husband and his family, 
 and not for the accumulation of the fund. (2 
 Bright's H. & Wife, 288 & seq.; 2 Stor. Eq., § 
 ^^'^^'l^^f^id S^J^Sftm^' 3 P. Wms. 337; 
 
322 HUSBAND AUD WIFE.. [bOOK I. 
 
 Acton T. Acton, 1 Ves. Sen. 267; Peacock v. Monk, 
 2 Ves. Sen. 190; Fowler v. Fowler, 3 P. Wms. 355 ; 
 Ball V. Coutts, 1 Ves. & B. 305; Howard v. Digby, 
 8 Bligh N. K. 269 & seq.) In this particular, a 
 distinction must be noted between pin-money, and 
 the proper separate estate of the wife, of which latter 
 the an-ears received by the husband, or not paid by 
 him, are generally demandable by the wife at least 
 for a year, and in full, if the wife has so insisted 
 upon her right as to repel the presumption that she 
 has relinquished* the arrears to the husband. But 
 even in case of a separate estate proper, the omis- 
 sion of the wife to make any demand is, in general, 
 proof of such relinquishment of the arrears. (2 
 Bright's H. & Wife, 261, 259, &c.; Moore's Ex'x 
 V. Ferguson, 2 Munf. 421 ; Koper v. "Wren, 6 Leigh, 
 38.) 
 
 We are next to consider the wife's power of dis- 
 position over her separate estate, of which a brief and 
 excellent sunmiary is to be found in 2 Bl. Com. 293, 
 n (12). See also 1 Bish. Man-'d Wom. § 860, 869, 
 & notes. 
 
 In respect to personal property, it has been settled 
 for almost, nay indeed for more than, a century, 
 that a married woman being entitled to a separate 
 estate in chattels, or in the produce of lands, may dis- 
 pose of it freely, by will or otherwise, precisely as 
 if she were a feme sole, save only when it is other- 
 wise provided by the instrument whence she de- 
 rives the estate. She takes such property, with aU 
 its privileges and incidents, of which not the least 
 important is the jus disponendi. And this priuci- 
 ple of free disposition by the wife prevails without 
 regard to the circumstance whether the property 
 be in possession or reversion ; and applies as well 
 to the produce and accretions, or savings, as to the 
 principal subject itself. (1 Th. Co. Lit. 132, n 
 (X); 2 Bright's H. & Wife, 220 & seq.; 2 Stor. 
 Eq. § 1393; G-rigby v. Cox, 1 Ves. Sen. 518; Pea- 
 cock V. Monk, 2 Ves. Sen. 191 ; Fettiplace v. Gor- 
 ges, 1 Ves. Jun. 46, & n (a) ; Pybus v. Smith, 1 
 Ves. Jun. 193 & notes; Kich v. Cockell, 9 Ves. 
 369 ; Wagstaff v. Smith, 9 Ves. 520 ; Sturges v. 
 Corp, 13 Ves. 190; Essex v. Atkins, 14 Ves. 542, 
 547 ; Major v. Lansley, 2 Euss. «fe My. (13 Eng. 
 Ch.) 353 ; Gore v. Knight, 2 Vern. 535 ; West v. 
 West's Ex'ors, 3 Eand. 373, 376, 389, 392; Viiion- 
 neau Jii^i^smy^ifih^^^^g^, 183; Charles v. 
 
CHAP. XV.] HTJBBAND AND WIFE. 323 
 
 Charles, 8 Grat. 486; Nixon v. Eose, 12 Grat. 425; 
 Penn & iix v. Whitehead 17 Grat. 503; Burnett & 
 ux V. Hawpe's Ex'or, 25 Grat. 486 ; MuUer v. 
 Bailey, 21 Grat. 321 ; McChesney & als v. Brown's 
 Heirs, 26 Grat. 400.) 
 
 But as to real property, a more rigorous doctrine 
 prevails. If she is not expressly allowed to dispose 
 of that in some designated way, she can do so only 
 by will executed as a will of lands is required to be 
 executed (V. C. 1873, c. 118, § 4, 5), or by deed 
 of conveyance, executed with the formalities pre- 
 scribed by law for married women. (Y. C. 1873, 
 c. 117, § 4, 7.) And it seems that permitting her 
 to dispose of lands in some other way than as the 
 statute directs, does not, without negative words, 
 
 Sreclude her from the use of these methods. (Lee 
 al. V. Bank of U. S., 9 Leigh, 209.) Should the 
 wife omit so to dispose of it, the property devolves 
 upon her heirs, of whom her husband is one only 
 by reason of his being her next of kin, or by reason 
 of there being no hlood relations surviving her. 
 The rents and profits of her separate real estate, 
 however, are regarded as personalty, and of them 
 she has the same absolute disposal as of other sepa- 
 rate chattels, namely, as if she were a feme sole; 
 unless, indeed, they are invested in lands, in which 
 case the jus disponendi becomes circumscribed, as 
 already mentioned in respect to that sort of pro- 
 perty. (2 Bright's H. & W. 224 & seq.; Peacock 
 V. Monk, 2 Ves. Sen. 191 ; Southby v. Stonehouse, 
 Id. 610; Hearle v. Greenbank, 1 Ves. Sen. 301; 
 Hodsden v. Lloyd, 2 Bro. C. C. 534; Churchill v. 
 Dibben, 9 Sim. (16 Eng. Ch.) 447, note to Curteis 
 V. Kenrick; West v. West's Ex'or, 3 Eand. 373, 
 377, 381, 392 ; Yizonneau v. Pegram, 2 Leigh, 183 ; 
 Williamson v. Beckham, 8 Leigh, 20 ; Lee & als. v. 
 Bank of U. S., 9 Leigh, 200; Whiting v. Eust, 1 
 Grat. 483; Hume v. Hord, 5 Grat. 374; McChes- 
 ney & al. V. Brown's Heirs, 25 Grat. 400.) 
 
 Wherever the 'wife is at liberty to dispose of her 
 separate estate, whether inherently, as in the case 
 of personalty, where no restriction is imposed, or 
 by appointment in pursuance of the terms of the 
 instrument creating her separate estate, or in the 
 manner prescribed by law, it is a well-established 
 doctrine in equity that she may bestow it as well 
 upon her husband as upon a stranger, although 
 such teaa8a£ti(Mis»fee.t.wfieaf^iusband and wife are 
 
324 HUSBAUU AND WIFE. [boOK I. 
 
 scrutinized with a fitting apprehension of undue 
 influence, and an anxious caution; nor do the courts 
 of equity give sanction or effect thereto without 
 first subjecting the wife to a privy examination 
 apart from her husband, and adopting such further 
 precautions as suffice to ascertain her true and un- 
 biassed wiU. (2 Stor. Eq., 1395-'6; Bright's H. & 
 Wife, 257; Grigby v. Cox, 2, 1 Ves. Sen'r, 518; 
 Pybus V. Smith, 1 Ves. Jun'r, 189; Essex v. At- 
 kins, 14 Ves. 542; Muller v. Bayly & als, 21 Grat. 
 529.) 
 
 It is admitted that a married woman is, in gen- 
 ■eral, incapable during coverture of charging her per- 
 son by any contract or act whatsoever. But her 
 power of disposition, in respect to her separate pro- 
 perty, enables her, to a greater or less extent, to 
 charge her separate estate in equity, even by implica- 
 tion, with her debts, contracts, and engagements. 
 The English doctrine is that, by entering into such 
 engagements, she must have meant to effect some- 
 Vdng, and as she cannot have expected thereby to 
 charge her person, she could have had no other de- 
 sign than to subject to the fulfilment of her under- 
 taking so much of her separate estate as is subject 
 to her absolute disposal, as if she were a fenxe sole; 
 and so (ut res valeat) her contract or promise must 
 be construed. And this principle is held to apply 
 whether the undertaking be to pay money or to do 
 a collateral thing, and whether it be verbal or 
 written. The principle is also held to extend to 
 the separate personal estate, and the rents and pro- 
 fits of real property payable to the wife for her 
 separate use, save only where such implied charge 
 is contrary to the restrictions imposed by the in- 
 strument which created the estate. Thus, where 
 the estates of the wife, consisting of freehold and 
 leasehold lands had, by ante-nuptial settlement, been 
 conveyed to tnistees in trust to receive and pay the 
 profits to the wife, to her separate use, and to con- 
 vey the estates themselves to such use as she by last 
 will in writing, or by deed or writing, under her 
 hand and seal, executed in the presence of two wit- 
 nesses, should appoint; and in default of appoint- 
 ment, to the use of her heirs and assigns; the wife 
 having joined her husband as his security in a bond 
 for £180, it was held by Lord Thm-low, in Hulme 
 V. Tenant (1 Bro. C. C. 16), that the leasehold es- 
 tatesQigtf/lfeeffqnMsiBfepfiffits of the freehold were 
 
CHAP. XV.] HUSBAND AND WIFE. 325 
 
 liable, in equity, to pay the bond. And he ex- 
 pressed the opinion that equity, under like circum- 
 stances, would subject the wife's separate estate to 
 discharge any of her general engagements. The 
 same doctrine was applied in subsequent cases to 
 the wife's acceptance of a bill of exchange, to her 
 promissory note, to her promise to pay her solicitors 
 for professional services, and in short (as was es- 
 tablished by Lord Brougham in Murray v. Barlee, 
 and by Lord Cottenham in Owens v. Dickinson), is 
 applicable to all her contracts and engagements, 
 whether written or merely verbal; so that it is in- 
 correct in principle to regard such engagements as 
 operating merely as appointments. (2 Bright's H. 
 & Wife, 252, & seq. ; Kinge v. Delevall, 1 Yern. 
 326; Lillia v. Airey, 1 Yes. Jun'r, 277; Hulme v. 
 Tenant (1 Bro. C. C. 16), 1 Wh. & Tud. L. C. 361 
 to 363 ; Murray v. Barlee, 3 My. & K. (14 Eng. Ch.) 
 223 ; Owens v. Dickinson, 1 Cr. & Phill. (18 Eng. 
 Ch.) 53-'4, & n (3).) 
 
 The doctrine in the United States touching the 
 power of a married woman to alienate and to encum- 
 ber her separate property is not uniform. In Penn- 
 sylvania, Tennessee, Mississippi and South Carolina 
 the courts have adopted the rule, sanctioned also by 
 Chancellor Kent, that a fime covert has no power 
 over her separate estate but such as has been spe- 
 cially given her, and can neither charge, encumber 
 nor aliene it further or of erwise than as the instru- 
 ment creating the estate ; Hows. (Ewing v. Smith, 
 3 Desauss, 417; Meth. Episc. Ch. v. Jaques, 3 
 Johns. Ch. 78; 1 Wh. -z Tud. L. C. 371, 375.) 
 In New York (independc.:tly of statute) the Eng- 
 lish rule has been, in the main, followed (overruling 
 in a great degree Chancellor Kent's views), as to 
 the alienation of a wife's separate property ; but in 
 regard to the power of charging the estate for debts, it 
 is held that where creditors do not claim under any 
 charge or appointment, made in pursuance of the 
 instrument of settlement, they must show that the 
 debt was contracted either for the benefit of her 
 separate estate, or for her own benefit, upon the cre- 
 dit of the separate property. (1 Bish. Marr'd Wo- 
 men, § 862, &c., 869, & n 1; 1 Wh. & Tud. L. C. 
 374; N. Am. Coal Co. v. Dyott, 7 Pai. 9, 14; S. 
 C. 20 Wend. 570; Curtis v. Engell, 2 Sandf. 287, 
 289.) 
 
 ^^ N0F^^hYl\^d?hiBM' *° *^" alienation of 
 
326 HUSBAND AND WIFE. [bOOK I. 
 
 the separate estate of a married ■woman, is essen- 
 tially tlie same as in England. Personal property, 
 settled to her separate use, is at her ahsolute and 
 unqualified disposal, except in so far as she is ac- 
 tually restrained, expressly or impliedly, by the 
 terms of the settlement; and real estate she can 
 only convey in the manner appointed for the con- 
 veyance of property by married women (Y. C. 1873, 
 c. 117, § 4, 7), by will (V. C. 1873, d. 118, § 3), or 
 by appointment, according to the provisions of the 
 instrument whidh creates the estate. (West v. 
 "West's Ex' or, 3 Hand. 373; Vizonneau v. Pegram 
 & al, 2 Leigh, 183; Williamson v. Beckham, 8 
 Leigh, 20; Lee & al v. Bank of U. S. 9 Leigh, 200; 
 Hume V. Hord & al, 5 Grat 374; Nixon v. Eose, 
 12 Grat. 425; Penn & Wife v. Whitehead, 17 Grat. 
 503, 512; Thorndike & als v. Eeynolds & als, 22 
 Grat. 21; Muller v. Bayly & al, 21 Grat. 521; 
 Burnett & ux v. Hawpe's Ex'or, 25 Grat. 486; 
 McChesney & als v. Brown's Heirs, 25 Grat. 400.) 
 The doctrine with us as to the power to charge 
 such separate estate with the wife's debts and engage- 
 ments, is not so distinctly indicated. If it appear 
 from the terms of the settlement that it was con- 
 templated and designed that the separate property 
 might be charged, it seems that it may be charged 
 accordingly (Muller v. Bayly,' &c., 21 Grat. 
 528-'9) ; and as to personalty, at least, it seems to 
 have been considered that it may be made liable 
 for her debts by implication, as well as expressly. 
 And seeing that the English doctrine, as expoimded 
 by Lord Tl .urlow, in Hulme v. Tenant, has been so 
 far adopted, there is reason to apprehend that it 
 may receive fully the sanction of our courts (as it 
 has now received it), notwithstanding the grievous 
 imposition to which it exposes married women 
 having separate property, taking from them even 
 that protection which legislation, through the me- 
 . dium of the several statutes against fraud and per- 
 juries, has so industriously flung around the other 
 sex, and persons of either sex who are sui juris 
 (whose property can only be charged by clear and 
 imambiguous instruments designed for the pur- 
 pose) ; and making trusts for the benefit of married 
 women a very precarious protection to their in- 
 terests. (Woodson V. Perkins, 5 Grat. 351-'2; 
 Penn & al v. Whitehead & als, 17 Grat. 503, 512, 
 Digitized by Microsoft® 
 
CHAP. XV.] HUSBAND AND WIFE. 327 
 
 516; Burnett & ux v. Hawpe's Ex'ors, 25 Grat. 
 488 ; Darnall & ux v. Smith, 26 Grat. 878.) 
 
 It has been all along assumed that restraints Tnay 
 be imposed upon the -wife, both in respect to alien- 
 ing and encumhering her separate estate. The 
 character and extent of those restraints are now to 
 be considered. It is a well known principle, that it 
 is not in general in accordance with the policy of 
 the law to admit of restrictions upon the alienation 
 of property and the right to charge it to the extent 
 of the incumbrancer's ownership at law or in equity 
 (Brandon v. Robinson, 18 Ves. 429 ; Woodmeston 
 V. Walker, 2 Eus. & My. 197 ; Brown v. Powell, 
 5 Sim. (7 Eng. Ch.) 663.) But in the case of mar- 
 ried women, equity, in introducing the anornaly of 
 a separate estate in the wife, found it needful, or 
 at least though fit, to enforce, in respect to such 
 separate estate, severe restrictions upon that free- 
 dom of disposition which usually attaches inherently 
 to all property; that is, as in equity she acquires 
 by the settlement certain faculties, unknown to the 
 common law, to act as a feme sole,eo the nature 
 and extent of those peculiar faculties are to be col- 
 lected from the terms of the instrument out of 
 which they arise. Such restrictions may be im- 
 posed in respect to the mode of disposition, as that 
 it shall be by deed only, or by will only, or iy writ- 
 ing attested by one or by any number of witnesses, 
 and not otherwise ; or they may have reference to 
 the anticipation of the income ; or they may in- 
 volve an absolute prohibition to aliene, or to en- 
 cumber at all, whilst the woman continues a feme 
 covert. (2 Bright's H. & Wife, 274 & seq. ; Jack- 
 son V. Hobhouse, 2 Meriv. 483 ; Parker v. White, 
 11 Yes. 209, 221;Pybus v. Smith, 3 Bro. C. C. 
 347; Barton v. Briscoe, 1 Jac. (4 Eng. Ch.) 603; 
 HcChesney v. Brown, 25 Grat. 393 ; Burnett v. 
 Hawpe, Id. 481; Darnall v. Smith, 26 Grat. 878.) 
 
 The intention to restrict, and especially to pre- 
 vent "anticipation" of the income, must plainly 
 appear, for prima fade the jus disponendi is in- 
 -cident to the separate property of the wife, as to 
 all other property. Hence it is not enough, in 
 order to produce this effect, to direct that the "pro- 
 fits shall be paid from time to time into the proper 
 hands of the wife," which means no more than to 
 ■confer a separate estate; nor that the. "profits shall 
 be paid to. such persons, md- in such manner as the 
 
328 HtrSBAUD AND WIFE. [bOOK I. 
 
 wife shall from time to time, during her life, not- 
 withstanding her coverture, by any note or writing 
 appoint, and in default of appointment, into her 
 proper hands, for her separate use;" nor that the 
 profits should be paid " as the same ieeome due and 
 payable, into the hands of the wife, and not other- 
 wise; and the receipts of the wife alone for iwhat 
 should be actually paid into her own proper hands, 
 should be a sufficient discharge." (Pybus v. Smith, 
 1 Yes. Jun 189; S. C. 3 Bro. C. C. 340, n (1); 
 Clarke v. Pistor,-3 Bro. C. C. 346, n f; Parker v. 
 White, 11 Yes. 222; Acton v. White, 1 Sim. & 
 Stu. (1 Eng. Ch.) 429; Medley v. Horton, 14 Sim. 
 (37 Eng. Ch.) 222; McChesney v. Brown, 25 Grat. 
 393; Burnett & ux v. Hawpe, Id. 481.) 
 
 On the other hand, such restriction upon aliena- 
 tion, and upon the anticipation of the income, is 
 held to be created by a direction that the trustee 
 " shall receive the income of the property when and 
 as often as the same shaU iecoms due, and pay it 
 to such person as the wife shall from time to time 
 appoint, or permit her to receive it for her separate 
 use, and that her receipts, or the receipt of any 
 person to whom she may appoint the same after it 
 shall liecome due, shall be a valid discharge ;" and a 
 fortiori by an express prohiljition to the affect that 
 the subject "shall not he sold or mortgaged;" 
 or by a direction to the trustees to pay the "profits 
 to such person, and for such purposes as she by any 
 writing, notwithstanding her coverture, from time 
 to time, when and as the same shall iecome due, but 
 not hy way of assignmeni, charge, or other anticipa- 
 tion thereof, direct or appoint, and in default of ap- 
 pointment, into her own proper hands, for her 
 separate benefit, free from the debts and control of 
 her husband; for which purpose the receipts in 
 writing of the wife, or of her appointee as aforesaid, 
 shall, notwithstanding her coverture, be an effectual 
 discharge ; or by a direction to pay the " profits to 
 such persons as the wife shall by writing (except m 
 any mode of anticipation) appoint, and in default 
 of appointment, into her own hands, for her sepa- 
 rate use." (2 Bright's H. & Wife, 278 & seq.; 
 Field V. Evans, 15 Sim. (38 Eng. Ch.) 375 ; Stead- 
 man V. Poole, 6 Hare, (3 Eng. Ch.) 193 ; Harnett 
 V. Macdougall, 8 Beav. 187; Moore v. Moore, 1 
 CoU. (28 Eng. Ch.) 57; Baggett v. Meux, 1 Phil. 
 
 (19 ^Wg^Wl^icrosoft® 
 
CHAP. XV.] HUSBAND AUD WEFE. 329 
 
 Clauses restraining anticipation operate only dur- 
 ing coverture ; for whilst "equity upon occasion will 
 modify, in case of its creature, the separate estate 
 of a married woman, the doctrines, in general ap- 
 plicable to property, yet as soon as the wife becomes 
 dis-covert, the right of alienation, which is incident 
 to ownership, immediately resumes its full force. 
 The imposition upon alienation of a fetter, unknown 
 to the common law, is permitted so far as the power 
 is created by equity, but no farther. It has, there- 
 fore, been made a question whether such restrictions 
 might be lawfully imposed by a settlement made 
 before marriage, or in reference to any subsequent 
 marriage whicla might be thereafter contracted by 
 the woman. And this question was at first resolved 
 in the negative, in more than one case (as in New- 
 ton V. Eeid, 4 Sim. (6 Eng. Ch.) 141 ; Brown v. 
 Pocock, 5 Sim. (7 Eng. Ch.) 663 ; Massey v. Par-ker, 
 2 My. & K. (7 Eng. Ch.) 174); but the obvious in- 
 convenience of such a solution, as, for example, in 
 making it impracticable for a father to secure a sup- 
 port for his unmarried daughter, against the im- 
 providence of a future husband, has led to the 
 final establishment of the doctrine that, whilst 
 clauses in restraint of alienation, by anticipation or 
 otherwise, will not extend beyond an existing cov- 
 erture, unless it be clearly so intended, yet such re- 
 strictions, when plainly applicable to a future cov- 
 erture, are valid ; but with this qualification, that 
 during any intervening dis-coverture, the power of 
 alienation is necessarily complete. If, however, 
 the wife, whilst thus dis-covert, makes no disposi- 
 tion of the property, the restraining clause, which 
 was suspended during that period, upon her subse- 
 sequent marriage will come into operation. (2 
 Bright's H. & Wife, 285 & seq.; TuUett v. Arm- 
 strong, 1 Beav. (17 Eng. Ch.) 1 ; S. C. on Appeal, 
 4 My.& Cr, (18 Eng. Ch.) 377 ; Knight v. Knight, 
 6 Sim. (9 Eng. Ch.) 121.) 
 
 It is worthy of note that it is competent for one 
 to settle property on trustees in trust to manage 
 the same, and to receive the profits, and to apply 
 them to the support of a husband and wife and 
 their children during the joint lives of the husband 
 and wife and the life of the survivor, remainder to 
 their children; and that in such case neither the 
 trustee nor the cestuis que trust can pledge \h.epro- 
 sjoectiv£.vvp^i& of the trust jestate, necessary for the 
 
330 HUSBAND AND WIFE. [bOOK I. 
 
 current support of the cestuis que trust, to the pay- 
 ment of any debt contracted for their past support, 
 although the debt were contracted by the trustee 
 himself, or by one or all of the cestuis que trust. 
 (Markham v. Guerrant & al, 4 Leigh, 279, 285-'6.) 
 Otherwise, the object in view would be effectually 
 frustrated, that object being not to intercept the 
 marital rights and shield the property from the hus- 
 band's creditors, but to shield it from the improri- 
 dence and waste of the husband and his family, and 
 to make that -vdiich, under their management, 
 would have been dissipated in a sliort time, a per- 
 manent fund, which should, from its profits, fur- 
 nish some support to the family during the life of 
 the father and mother, and then be divided among 
 their children. The parties thereby gained a vested 
 interest, to be en]oje& jointly, and neither the hus- 
 band nor any other of the cestuis que trust has, 
 ' during the continuance of the trust, any such sepa- 
 rate interest therein as can be subjected by the 
 creditors of any of them. If the parties are all sui 
 juris, they can, no doubt, by unanimous consent, 
 dissolve the trust and sell the property, whether it 
 be real or personal; and if some of them are in- 
 fants, a court of chancery, at least in Virginia, 
 might, it is believed, consent for the infants, if it 
 were deemed for their benefit, and might direct the 
 appropriation of the proceeds, even of land, to their 
 support. (V. C. 1873, c. 124, § 2 & seq. ; Id. c. 
 123, § 13.) But without such unanimous consent, 
 it seems that the property nmst be enjoyed as it is 
 given, and not otherwise. (Markham v. Guerrant, 
 4 Leigh, 285; Scott & ux v. Gibbon & als, 5 Munf. 
 90; Eoanes v. Archer, 4 Leigh, 550; 568; Perkins 
 V. Dickinson & Co., 3 Grat. 337; Johnston v. Zane's 
 Trustees, 11 Grat. 552, 570; Crawford's Ex'ors v. 
 Patterson, 11 Grat. 370; Nickell & als v. Handley, 
 10 Grat. 336, 340 ; Armstrong's Adm'r & als. v. 
 Pitts, &c., 13 Grat. 241.) 
 
 The doctrine of the wife's separate estate is neatly 
 summed up by Lord Chancellor Cottenham in Tul- 
 lett V. Armstrong, 4 My. & Cr. (18 Eng. Ch.) 405, 
 in pronouncing his judgment extending the protec- 
 tion of equity to the separate estate, with the quali- 
 fications and restrictions attached to it, throughout 
 a subsequent coverture. ""When this court," says 
 he, " first established the separate estate, it violated 
 the (w0i^}l}SfMi^m&m^J as between husband 
 
CHAP. XV.J HUSBAND AND WIFE. . 331' 
 
 and wife ; but it was thought beneficial, and it pre- 
 vailed. It being once settled that a wife might 
 enjoy separate estate as a feTrm sole, the laws of 
 property attached to this new estate, and it was 
 found, as part of such law, that the power of alien- 
 ation belonged to the wife, and was destructive of 
 the security intended for it. Equity again inter- 
 fered, and by another violation of the laws of pro- 
 perty, supported the validity of the prohibition 
 against alienation. In the case now under conside- 
 ration, if the after-taken husband be permitted to 
 interfere with the property given or settled before 
 the marriage to the separate use of the wife, much 
 of the benefit and security of the rules which have 
 been so established will be lost. Why, then, should 
 not equity in this case also interfere ; and if it can- 
 not protect the wife consistently with the ordinary 
 rules of property, extend its own (peculiar) rules 
 with respect to the separate estate, so as to secure 
 to her the enjoyment of that estate which has been 
 so invented for her ienefit ? It is, no doubt, doing 
 violence to the rules of property to say that pro- 
 perty which, being given with qualifications and 
 restrictions which are held to be void, belonged ab- 
 solutely to the woman up to the moment of her 
 marriage, shall not be subject to the ordinary rules 
 of law as to the interest which the husband is to 
 take in it ; but it is not a stronger act to prevent 
 the husband from interfering with such property, 
 than it was originally to establish the separate 
 estate, or to maintain the prohibition against alien- 
 ation. In doing this, I feel that I have much to 
 overcome, of which the observations thrown out by 
 myself in Massey v. Parker (2 My & K. (7 Eng. 
 Ch.) 174), is the only part of which I do not feel 
 the important weight. I have to contend with 
 Lord Brougham's observations, in Woodmeston v. 
 Walker (2 Bus & My. 197), and the Vice-Chancel- 
 lor's decisions in ISTewton v. Eeid, 4 Sim. (6 Eng. 
 Ch.) 141 ; Brown v. Pocock (2 Kus. & My. 210) ; 
 S. C. 5 Sim. (17 Eng. Ch.) 663; Malcolm v. O'Cal- 
 laghan (4 My. & Cr. (18 Eng. Ch.) 399) ; Johnson 
 V. Freeth, 6 Sim. (9 Eng. Ch.) 423, n ; and Davies 
 V. Thornycroft, 6 Sim. (9 Eng. Ch.) 420. 
 
 "In establishing the validity of the separate es- 
 tate, with its qualifications (which constitute its 
 value), — that is, the prohibition against anticipation 
 
 Digitized by Microsoft® 
 
332 HTSBA^ro Asno wife. [book i. 
 
 — 1 am not doing more than my predecessor have 
 done for similar purposes." 
 
 It-i; profjosed to advert to but one more topic 
 connected with this equitable doctrine of the wife's 
 separate estate — ^namely, her sejjarate trading with 
 such estate, together with her own and her hus- 
 band's liability, respectively, ia consequence thereof. 
 
 It is established that a married woman may en- 
 gage ia trade on her separate account, and may 
 enter into a partnership for that purpose, by the 
 con-ant of her hyshand. "When the husband agrees 
 hefore marriage that the wife may thus carry on 
 business on her separate account, the marriage is a 
 valuable consideration, and the agreement will be 
 maintained as well against the husband's creiiitors 
 as in respect to himself; it" made after marriage, 
 it is always good as against the husband, and if 
 founded on valuable consideration, pre» ails again.-t 
 Lis creditors also. If truMn-i be interposed, the 
 wife's transactions, in her trading operations, will 
 be considered as conducted by the wife, as their 
 ojjint. her possession will be regarded as their pos- 
 session, and the increase and profits of the trade 
 will accrue to them for her sole and separate use 
 and benefit. The tmstees will then be entitled to 
 recover at laic, upon all demands accruing due in 
 pursuance of the wife's operations, and will be an- 
 swerable a,t law for all liabilities arising ont of the 
 same, with this qualification: that if the wife takes 
 a security payable to heneJf without descriljins 
 herself as agent, the htisband alone can sue upon it 
 at law, although in equity the trustees or the wife 
 may recover upon it; and if she executes a security 
 in her own name, and not as agent, no action at 
 law can be maintained thereon : but the remedy is 
 either at law. upon the imphed contract of the trus- 
 tees, or in equity against the wife's separate estate. 
 But if. on the other haiid. there are rio tru-ita-y, but 
 the trade is conducted merely by the consent of the 
 husband, with the wife's separate estate, the hus- 
 band will stand as trustee, having the same rights 
 and being subject t'li the same liabilities as a trustee, 
 as in equity the rights of the wife, and the liabihty 
 of her separate estate, would also be the same as 
 before. But in no case will any personal liahiliiy 
 attach to her. And so. if the husTjand desert his 
 wife, and she bv the aid of her friends is enabled 
 
■OHAP. XT. J HUSBAND AND WIFE. 333 
 
 her earnings in such trade will be protected in 
 equity against the claims of her husband, apparently 
 because what she gets from her friends is her sepa- 
 rate property, and his assent to her embarking in 
 business on her own account is implied from his 
 desertion. It seems, however, that the mere cir- 
 cumstance of the husband's absenting himself, or 
 permitting her to trade separately, will not alone, 
 and without other circumstances, divest him of his 
 interest in what she may thus acquire. (2 Bright's 
 H. & Wife, 293, & seq. ; Id. 299, 300; 2 Stor. Eq. 
 § 1385 to 1387; Jarman v. WoUoton, 3 T. K. 618, 
 620, in notes; Dean v. Brown, 5 B. & Cr. (11 E. 
 C. L.) 336 ; Barlow v. Bishop, 1 East. 432 ; Saville 
 v. Sweeney, 4 B. & Ad. (24 E. C. L.) 514; Gore v. 
 Knight, 2 Yern. 535 ; Cecil v. Juxon, 1 Atk. 278-'9 ; 
 Lampher v. Creed, 8 Yes. 599; Penn & als v. 
 Whitehead & als, 17 Grat. 503; Penn v. White- 
 head, 12 Grat. 74.) 
 
 As to tlie ultimate liability of the trustee, or of 
 the husband, for debts contracted by the wife in 
 her separate trading operations, they will be re- 
 spectively relieved in equity to the extent of the 
 wife's separate estate; and according to some au- 
 thorities the creditors will be in all cases confined 
 to the assets employed in the separate trade. This, 
 however, is not in conformity with the analogy of 
 fiduciaries generally, who if they, or others for 
 them, incur debts in the execution of their trusts, 
 are not as to the creditors relieved from their per- 
 sonal responsibility, except so far as the trust fund 
 sufSces to exonerate them. But, of course, if there 
 be trustees named, the personal responsibility, if 
 any, is their's, and not the husband's, who is ab- 
 solved from all liability for the debts contracted. 
 (2 Bright's BL. & Wife, 301.) 
 
 If the husband furnish to the business conducted 
 by the vnfe, on her separate account, labor, skill, 
 capital, or credit, he is to that extent .entitled to 
 share in the profits, and his creditors may subject 
 the same to their debts. But of course there are 
 no profits until the creditors of the concern are all 
 paid, nor until the expenses of conducting the 
 business, including the support of the husband, wife 
 and family, are liquidated. (Penn & als v. White- 
 head & als, 17 Grat. 503, 517.) 
 4^^. Husband and Wife, Tenants hy Entireties. 
 
334 HUSBAJST) AND WIFE. [bOOK 1. 
 
 and their heirs, they thereby become joint-tenants ' 
 in fee-simple, and if they afterwards intermarry, 
 they continue notwithstanding to be joint-tenants 
 as before. But when the conveyance is made dur- 
 ing the coverture, to husband and wife jointly, they 
 have neither a joint-estate, nor a sole several estate, 
 nor an estate in common ; but their interest is de^ 
 nominated a tenancy hy entireties. From the unity 
 of their persons by marriage, they have each the 
 whole estate in the premises entirely as one person, 
 and at common laXv, on the death of either of them, 
 the entire tenement, for all the estate, belongs to 
 the other ; and neither of them alone has power to 
 aliene to the prejudice of the other's right. Hence, 
 where lands were by will devised to husband and 
 wife, and their heirs, forever, and the wife died, 
 leaving issue, the husband surviving, at common 
 law, takes the whole. (1 Th. Co. Lit. 740, & n (L) ; 
 
 2 Bl. Com. 182; Back v. Andrews, 2 Vern. 120; 
 Green v. King, 2 W. Bl. 1213; Doe v. Parratt & 
 ux, 5 T. K. 654; Thornton v. Thornton, 3 Rand. 
 182 ; Norman's Ex' or v. Cunningham, &c., 5 Grat. 
 63 ; 2 Insts. Com. & Stat. Law, c. XII.) 
 
 So essentially different is a tenancy by entireties 
 from a joint tenancy, that the statute in Virginia 
 which abolished the doctrine of survivorship as to 
 Joint tenants was held not to be applicable to tenants 
 iy entireties; but notwithstanding that statute, the 
 sur\'ivor in the case of tenants by entireties was held 
 to be entitled, to the vjhole (Thornton v. Thornton, 
 
 3 Rand. 182; Norman's Ex'x v. Cunningham, 5 
 Grat. 63); but the present statute in Virginia 
 abolishes survivorship in case of tenancy by entireties 
 also, where the estate is orve of inheritance, and is 
 created by deed or will, since \st July, 1850. " If 
 hereafter,"' says the statute, "an estate of inheri- 
 tance be conveyed or devised to a husband and his 
 wife, one moiety of such estate shall, on the death 
 of either, descend to his or her heirs, subject to 
 debts, curtesy, or dower, as the case may be." 
 (V. C. 1873, c. 112, § 18 ; Id. c. 209, § 1.) Sc 
 that if the estate conveyed or devised to husband 
 and wife be an estate for life, ot for years, or if it 
 were conveyed or devised prior to 1st July, 1850, 
 the survivor would still take the whole. 
 
 2'. The Effect of Marriage as to Third Persons. 
 
 The effect of marriage, in respect to third persons, is 
 chiefly dete:^p^^35,^\jy^y(§^^ation8— namely, that 
 
CHAP. XV.J HUSBAND AND WIFE. 335 
 
 the existence of the wife is, for most civil puprposes, 
 merged in that of the husband, so that for such pur- 
 poses they constitute together but one person; and 
 secondly, that the husband's influence over the wife is so 
 great as to deprive her, for the most part, of freedom of 
 will. 
 W. C. 
 1^. Effect, as to Third Persons, of the "Wife's Ante-nuptial 
 Contracts. 
 
 The debts and other contracts of the wife iefore mar- 
 riage are at common law chargeable on the husband, 
 provided a judgment for them, against husband and 
 wife, is recovered during the coverture, for the judg- 
 ment alters the debt, and makes it the husband's. In 
 Yirginia, however, at present, by statute, the ante- 
 nuptial debts of the husband are not chargeable on the 
 property derived from the wife, (although it seems that 
 the husband's rights therein are not impaired !) nor is 
 the husband's property, even during coverture, charged 
 with the ante-nuptial debts of the wife. (Acts 1874-'5, 
 p. 442, c. 359.) But supposing no judgment obtained 
 during the coverture, the husband is not, as such, by 
 the common law chargeable, at law or in equity, with 
 the ante-nuptial debts of the wife after her decease, 
 nor is his estate, should she survive, not even though 
 he had a large portion with her; as, on the other hand, 
 he is during the coverture liable to all her ante-nuptial 
 debts, although he did not get a shilling vsdth her — nay, 
 although, by ante-nuptial agreement, no part of her 
 property came to him, but was secured to herself. 
 (Heard v. Stamford, Cas. T. Talbot, 1T3 ; Powell v. 
 Manson, 22 Grat. 194.) So if a man marries an ex- 
 ecutrix or an administratrix who has wasted the assets 
 of the estate (which is called a devastavit) he is, during 
 the coverture, answerable therefor ; and if any of the 
 assets of the estate represented by his wife come to his 
 hands, he is to that extent chargeable in equity, even 
 after the coverture ended. And this doctrine of ma- 
 rital liability applies as well to judgments against the 
 wife while sole, as to other debts. Unless there be 
 judgment upon a scire facias against the husband and 
 wife during coverture, the husband surviving is not 
 charged therewith, nor his estate if she survives. It 
 exemplifies the tenacity with which this principle is 
 adhered to, that a husband is held, even in equity, to 
 be not answerable after the determination of the cover- 
 ture for the price of the very goods of which, as hus- 
 band, he^^^en^g^^sess^o^^ (Bac. Abr. Bar. & F. 
 
336 HUSBAND AND WIFE. [bOOK I. 
 
 (F); "Woodyer v. Grreshara, 1 Salk. 116, pi. 7; Obryan 
 V. Ram, 3 Mod. 186; Thomund v; Suffolk, 1 P. Wms. 
 461, 469 ; Heard v. Stamford, 3 P. Wms. 411.) 
 
 Evidence of the wife's confession, made after mar- 
 riage, of her ante-nuptial debt, is not admissible to 
 charge the husband; and yet if the husband die, the 
 wife surviving, or a divorce a vinculo matrimonii be 
 obtained before the debt is recovered, the wife is liable. 
 (Bac. Abr. Bar. <fc F. (F) ; Woodman v. Chapman, 1 
 Campb. 189; Sheppard v. Starke, 3 Munf. 29.) 
 
 It may be expedient to add here, that where the 
 cause of action on which the suit is hrought arose be- 
 fore the marriage, the husband and vn.fe rnust always 
 he joined as defendants ; and that is still true, even in 
 Virginia, hj the express provision of the statute. 
 (Acts 1874-'5, p. 443, c. 359.) Notwithstanding it 
 proceeds to declare that the execution shall issue 
 against, and the judgment or decree shall only bind 
 the property of the wife. (Bac. Abr. Bar. & F. (F.); 
 Mitchinson v. Hewson, 7 T. R. 351 ; Richardson v. 
 Hall, 1 Bro. & B. (5 E. C. L.) 50.) 
 
 But whilst the husband's liability, as such, in respect 
 to the wife's ante-nuptial contracts, is limited to the 
 duration of the coverture, save' where a judgment has 
 been obtained during that period, yet in general, if the 
 husband has any assets in his hands as her administra- 
 tor (as in case of her choses in action not reduced into 
 possession during the coverture), they may still be sub- 
 ject to such contracts. This, however, would not be so 
 if the husband, by marriage-settlement, had become 
 (as he might be), the purchaser of the choses in action 
 in question. The extent of such a purchase depends 
 upon the terms of the settlement, according to which 
 it may embrace all of tlie wife's estate, as well what 
 may accrue to her afterwards as what she is entitled 
 to at the date of the settlement, although the inclina- 
 tion of the authorities is to restrict his rights, as pur- 
 chaser, to existing interests, unless the contrary intent 
 be clearly manifested. (Garforth v. Bradley, 2 Ves. 
 Sen'r, 677 ; Mitford v. Mitford, 9 Ves. 87, 95 ; Carr v. 
 Taylor, 10 Ves. 579.) 
 2s. Effect of Contracts made by the Wife during Cover- 
 ture; W. C. 
 l*". Effect of Wife's Contracts during Coverture, as re- 
 jects Herself. 
 
 Let us consider, (1), The effect of contracts execu- 
 tory, made by wife during coverture ; and (2), The 
 Digitized by Microsoft® 
 
CHAP. XV.J HUSBAND AND WIFE. 337 
 
 effect of contracts executed (or conveyances), made by 
 or to wife during coverture. 
 W. C. 
 1*. Effect of Contracts Executory, made, by Wife during 
 Coverture. 
 
 The law considers husband and wife as but one 
 person, the very existence of the wife during the 
 coverture being, in legal contemplation, merged in 
 that of the husband. For this reason, and also be- 
 cause she is supposed to act under his constraining 
 influence, not to say coercion, she is, at common law, 
 for the most part incapable of binding herself by any 
 contract or conveyance whatsoever. And this doc- 
 trine, so far as relates to contracts executory, is un- 
 qualified by any statute. The principle applies in 
 general, in full force, notwithstanding the parties 
 are living separate in pm-suance of a deed of separa- 
 tion, or even though they are divorced a mensa et 
 toro, unless the divorce is accompanied, agreeably to 
 the statute, by a decree of perpetual separation, 
 when, it vsdll he remembered, it has, upon the per- 
 sonal rights and legal capacities of the parties, the 
 same effect as a divorce a vinculo, save that neither 
 party may marry again during the life time of the 
 other. (V C. 1873, c. 105, § 13.) There are, how- 
 ever, certain exceptional cases recognized by the law, 
 where a married woman is regarded as having ac- 
 quired a separate character, and is enabled to con- 
 tract as if she were a feme sole, in which cases she 
 may also sue and be sued without joining her hus- 
 band. These cases are the following, namely : 
 
 (1), Where the wife is a sole-trader, by the custom 
 of London. 
 
 This exception, of course, does not exist in this 
 country. 
 
 (2), Where the husband is civiliter mortuus, or 
 civilly dead. ' 
 
 Civil death is the state of a person who, though 
 possessed of natural life, has lost all his civil rights, 
 and as to them is considered as dead, so that his will, 
 if he be capable of making one, is admitted to pro- 
 bate, &c. The modes of civil death existing at com- 
 mon law are these : (1), Attainder of treason or fel- 
 ony ; (2), Banishment from, or abjuration of the 
 realm ; and (3), Entering into religion, i. e., becom- 
 ing a monk professed. None of which appear to be 
 known to the law of Virginia, so that it is believed 
 
 that ther.e .i£ with us. no such thing as civil death. 
 Djgifizeaby Microsoft® " 
 
338 HUSBAND AND WIFE. [bOOK I, 
 
 (See ante p. 53.) It must be observed, however, that 
 authorities are not wanting that banishment of the 
 husband, or his being sentenced to the penitentiary, 
 or even his voluntary abandonment of the wife, has 
 the same effect in restoring her competency to con- 
 tract as a civil death. (1 Pars. Cont. 306 ; Khea v. 
 Khenner, 1 Pet. 108.) 
 
 (3). Where the husband is an alien enemy ; or 
 
 (4). Where the husband is an alien, and has nev&f 
 'been in this country. 
 
 This last, though sustained by the weight of au- 
 thority, is not a little discredited by Borden v. 
 Keverberg, 2 M. & W. 64, and Jones v. Smith, 3 
 M. & W. 527. 
 
 See 1 Bl. Com. 443, & n (44); Bac. Abr. Bar. & 
 F. (I) & (M); Compton V. CoUinson, 1 Hen. Bl. 350; 
 Beard v. Webb, 2 Ber. & Pul. 105, MarshaU v. 
 Button, 8 T. R. 545, 547; Kay v. Duchesse de 
 Pienne, f< Campb. 124; Deerly v. Duchess of Maz- 
 arine, 1 Salk. 116; S. C. 1 Ld. Eaym. 147; Greg- 
 ory V. Paul, 15 Mass. 31 ; Abbott v. Bailey, 6 Pick. 
 89. 
 
 The liability in equity of the wife's separate estate 
 to make good her contracts made during coverture, 
 discussed under a previous head, is no exception, it 
 will be remembered, to the doctrine of a married 
 woman's incapacity to iind fherself, but on the con- 
 trary is a direct corollary therefrom. {Ante p. 324 
 & seq.) 
 
 A married woman's contract being not voidable, 
 but actually void, is incapable of confirmation after 
 she becomes discovert, and therefore does not even af- 
 ford a valuable consideration to support a substantive 
 promise made by her after the coverture has ceased. 
 In order that such subsequent promise may be bind- 
 ing on her, there must be some new valuable con- 
 sideration, actual or implied (as where the new 
 promise is under seal, or in the form of a mercantile 
 security) ; unless, indeed, where the goods were ftu-- 
 nished, during the coverture, on the faith of her 
 separate estate. (1 Pars. Cont. 361, and cases cited.) 
 2\ Effect of Contracts executed (or Conveyances made) 
 by or to the Wife during Coverture . W. C. 
 1*^- Effect of Conveyances made during Coverture by 
 the Wife. 
 
 A conveyance made by a feme covert, otherwise 
 than by virtue of a power of appointment, is at 
 comT^^ifl^ Q^^^^^^, and not merely void- 
 
CHAP. XV.] HUSBAND AND WIFE. SSQ' 
 
 and that for the two reasons already men- 
 tioned, namely, j^rs^, because the separate existence 
 of the wife is extinguished hy the covey^ture for civil 
 purposes; and secondly, because she is justly con- 
 sidered to be so much under the influence of the 
 husband as to have, in matters of business, no will 
 of her own. The necessities of society, however, 
 so imperatively required that married women should 
 be enabled, on occasion, to alienate property be- 
 longing to them, that, in the absence of legislation, 
 a remarkable device was resorted to in order to ac- 
 complish the purpose. This was what is called a 
 fine, because it puts an end {finis), not only in this, 
 but in other cases where it was used, to all disputes 
 and controversies touching the subject matter. It 
 was founded, as to married women, upon the idea, 
 that, although a woman so situated was, for the rea- 
 sons mentioned, incapacitated to convey, yet still, 
 in the interest of adverse claimants, she was liahle 
 to he sued (together with her husband), and thus to 
 have asserted against her any demand which might 
 exist, in like manner as if she were a feme sole, save 
 only that the husband must be joined with her. 
 
 The plan of the fine, therefore, was that a suit 
 (real, but collusive), should be instituted by the 
 ihtended purchaser against her, as if in invitam (her 
 husband being a party with her, of course), the 
 purchaser affecting to claim the land by a title par- 
 amount to her's. Thereupon, leave to agree the 
 suit is obtained, and a compromise is submitted, 
 whereby the defendants (the husband and wife) 
 acknowledge the subject in question to be indeed 
 the property of the complainant (the intended pur- 
 chaser). But before the court will allow this ad- 
 justment, or concord, as it is called, to be entered 
 of record, the feme covert must be examined privily 
 and apart from her husband, by the court, or one 
 of the judges, or else by certain functionaries ap- 
 pointed as commissioners for the purpose, in order 
 to determine whether she enters into the transac- 
 tion willingly and freely, or by compulsion of her 
 husband. The judgment of the court is then en- 
 tered accordingly, ascertaining the land to be the 
 property of the intended purchaser ; and thus, by 
 this roundabout contrivance, both obstacles to the 
 conveyance are obviated; the oneness of the wife with 
 the husband hy the suit, apparently in invitam, and 
 
340 HUSBAND AND WIFE. [bOOK I. 
 
 jxrivy examination. A similar result might also 
 have been effected by the more recently invented, 
 but very similar device of common recoveries. (1 
 Bl. Com. 444; 2 do. 293, 348 <fe seq., 357 & seq.; 
 Id. App'x. 449; 2 Th. Co. Lit. 219 & n (F); Id. 
 610, n (1); 1 do. 133; 2 Inst. Com. & Stat. Law, 
 c. XIX.) 
 
 A mode of conveyance so cumbrous and expen- 
 sive as that hy fine or common recovery was not at 
 all adapted to the infant settlements in Virginia, so 
 that at an early period (A. D. 1674, 2 Hen. Stats. 
 317) the Colonial Assembly gave the sanction of 
 law to an already prevailing usage, whereby a mar- 
 ried woman's conveyance was made by ordinary 
 deed, accompanied by the privy examination of the 
 wife, apart from her husband, by certain designated 
 functionaries, a method generally prevalent in the 
 United States, and so obviously convenient that it 
 has at length been recently introduced by several 
 statutes into England (3 >k 4 T^m. IV, c. 74; 8 ifc 9 
 Vict. c. 106; 19 & 20 Vict. c. 108). See Wms. 
 Keal Prop. 47, 212-'13. 
 
 This statutory method of conveyance by married 
 women, being in the nature of an exception to the 
 common law, must be rigorously observed ; and 
 every transaction which does not conform substan- 
 tially to the requirements of the statute is totally 
 void. Those requirements, in brief, are that the 
 instrument shall be an instrument of conveyaivx of 
 irroperty, real or personal, and not a power of at- 
 torney, or an executory contract of any soi-t; that 
 Tjoth husband a7id v:lfe shall he parties thereto, and 
 shall sign it ; that the acknowledgment of the wife 
 shall be made before the .functionaries named in the 
 statute ; that the certificate of the authorities thus 
 invoked shall state that the wife icas examined 
 pnvily and apart from her husband, and that the 
 writing in question was e-xplained to her ; that she 
 acknowledged the same to be her act and deed., and 
 declared that she had loillingly executed the same, 
 and wished not to retract it; and finally, that the 
 wi-iting shall be duly registered or recorded as to 
 the husband as well as the wife ; and then, says the 
 Statute, " Such writing shall operate to convey from 
 the v-ife her right of dower in the real estate em- 
 braced therein, and pass from her and her repre- 
 sentatives all right, title and interest of every na- 
 ture I5)^fffeetfJbJJW;i/^8oflfesuch writing she may 
 
CHAP. XV. HUSBAND AND WIFE. 341 
 
 have in any estate conveyed thereby as effectually 
 as if she were at the said date an umnarried wo- 
 man ; and such writing shall not ojjerate any 
 furtlier upon the wife or her representatives by 
 means of any covenant or warranty contained there- 
 inr (Y. C. 1873, c. 117, § 4, 7; 2 Lorn. Dig. 469, & 
 seq.; Bac. Abr. Bar. & F. (I) ; 2 Inst. Com. & Stat. 
 Law, c. XIX.) 
 
 It should be observed that the foregoing princi- 
 ples are applicable specially to a conveyance by a 
 married woman of a legal or equitable title to her own 
 lands, or other property other than such as she holds 
 to her separate use, or to an interest in the lands of 
 her husband; and they require to be modified in 
 their application, as we have seen, to conveyances 
 executed by her as attorney in fact for her husband 
 or any other person, or by virtue of a power of ap- 
 pointment, or of her separate estate. (1 Th. Co. 
 Lit. 132, u (N); Ante, p. 304.) 
 2^. Effect of Conveyance made during the Coverture 
 to the Wife. 
 
 A convej'ance made to a married woman stands 
 upon a different footing from one made Tjy her. 
 The latter, as we have just seen, is,, with certain 
 qualifications, void in toto; but as to the former, a 
 wife is admitted to be of capacity to purchase of 
 other persons than her husband without his con- 
 sent, and, as we have seen, may, in equity, or 
 through the intervention of trustees, take from the 
 husband himself. The hnsband, however, may dis- 
 agree to a conveyance made by a third person to 
 his wife, and thus devest the whole estate; but if 
 he neither agree nor disagree, the purchase is good. 
 But after his death, albeit he agreed thereunto, yet 
 she may, says Lord Coke, "without any caiise to 
 be alleged, waive the same ; and so may her heirs 
 also, if after the decease of her husband she herself 
 agreed not thereunto." (1 Th. Co. Lit. 132-'3 ; 
 Bac. Abr. Bar. & F. (I); Barnfather & al v. Jor- 
 dan & al, 2 Dougl. 452.) 
 ^'^. Effect of Wife's Contracts during Coverture, as re- 
 spects the Husband. 
 
 "We have seen that, by the rules of the common law, 
 a married woman has, in general, no power to Und 
 herself by contract, or to acquire to herself, and for 
 her exclusive benefit, any right to a contract made 
 with her. All her contracts made during the cover- 
 ture, ea-^gitiiml %is!il?R»d'so]i?@iefit, and all her earn- 
 
342 HUSBAND AND WIFE. [bOOK I. 
 
 ings enure to him, as do also all gifts or grants of 
 chattels to her which are not limited to her separate 
 use. And so, if by his authority, or without it, if he 
 ratifies the transaction, she sells property, her husband 
 is to recover the price. But wherever she is the meri- 
 torious cause of the debt due (as when it is for her 
 services), the husband may at his option sue alone, or 
 join her in the action (in which last case, if he. should 
 die before recovery of the demand, it would survive 
 to her). Whether yhen the wife contracts in her own 
 name, and not in that of her husband, and the other 
 party is not even aware that she is a married woman, 
 the husband may avail himself, according to the doc- 
 trines of agency, of the contract, without a new assent 
 on the other side, admits of question. There seems, 
 in such case, to be a want of mutuality, which would 
 make the agreement wholly inoperative. (1 Bl. Com. 
 M2-'3, and n (42) (43).) 
 
 The husband's liability upon the wife's contracts 
 during coverture, wherever it exists, must be referred 
 to one or the other of the two heads of agency or of 
 duty. 
 W. C. 
 1'. Husband's Liability upon his "Wife's Contracts made 
 during Coverture, upon the Score of Agency. 
 
 The wife may be the agent of the husband just as 
 a stranger may be, and the authority, as in other 
 cases, may be either express ot implied, and, accoi'd- 
 ing to the general rule which governs all authorities, 
 may be revoked at the husband's pleasure. (1 Bl. 
 Com. 442, & n (42); Manby v. Scott, (1 Sid. 109), 
 2 Smith's L. C. 365.) 
 
 If the Mrife's agency is expiress, its scope and extent 
 will be ascertained by its terms, and the husband's 
 responsibility for any contracts she may make in her 
 representative character, is by no means limited to 
 necessaries, but extends to whatever subjects the 
 power embraces, and, in short, is governed by the 
 same rules as in other agencies. {Ante 203 & seq.) 
 The wife's agency, however, is more frequently 
 implied than express, the implication being for the 
 most part derived from one or the other of the fol- 
 lowing considerations — namely : 
 
 (1). From the Usage of the Parties: When the 
 husband has been accustomed to recognize the con- 
 tracts and dealings of the wife in the particular in 
 question, as binding upon him. {Ante, p. 204, 1™.) 
 (2). Qmmd^iMm>^M7ieighhorhood: Where- 
 
CHAP. XT.J HUSBAND AND WIFE. 343 
 
 by particular transactions are usually managed by 
 the mistress of the family. 
 
 (3). From the husbanWs voluntarily and knowingly 
 taking the benefit of the contract: As where he con- 
 sciously suflFers his wife to wear or use articles of 
 dress or jewelry purchased by her. [Ante, 206, 4™.) 
 
 (4). From the peculiar circumstances of the hus- 
 iancVs family : As where, by long absence on a dis- 
 tant joui'uey, or by protracted illness, his personal 
 attention to his domestic affairs is rendered impos- 
 sible. {Ante, p. 206, 3'°; 1 Bl. Com. 442, & n (42) ; 
 Eeeve's Dom. Eel. 79, 80; 1 Pars. Cont. 287; Bac. 
 Abr. Bar. & F. (H); Smith's Cont. 411, & seq.) 
 
 Hence, where in one case the wife had bought a 
 large quantity of jewelry, and in another costly ar- 
 ticles of dress, in both instances beyond her hus- 
 band's station in society and means, without the hus- 
 band's actual knowledge or authority, and it did not 
 appear that she had ever in his presence worn any of 
 the articles, or that he had ever recognized or allowed 
 any similar transactions by her, he was held not to 
 be liable. (Montague v.' Benedict, 3 B. & Cr. (10 
 E. C. L.) 631 ; Seaton v. Benedict, 5 Bingh. (15 E. 
 C. L.) 28; 2 Smith's L. C. 352, 356, 359.) 
 
 On the other hand, it does not affect the husband's 
 liability on the score of agency that the wife has 
 been guilty of adultery, although he may have aban- 
 doned her in consequence, if he has neither expressly 
 nor impliedly revoked her authority as his agent. 
 Thus, where a party, having detected his wife in an 
 adulterous intercourse, separated himself from her, 
 leaving her, however, with two children bearing his 
 name, still in the occupancy of the house in which 
 they had cohabited, without provision for support, 
 and giving no notice to the neighboring tradesmen 
 not to furnish her with supplies on his credit, he was 
 held liable for such articles. (Norton v. Fazan, 1 
 Bos. & Pul. 226; Manby v. Scott (1 Sid. 109), 2 
 Smith's L. C. 366.) 
 :2'. Husband's Liability upon his Wife's Contracts made 
 during Coverture, upon the score of duty. 
 
 The husband is under a moral obligation to supply 
 his wife with necessaries suited to her station, or that 
 station which he knowingly permits her to assume. 
 Nor is that obligation a gratuitous one. Upon the 
 marriage he becomes absolutely the owner of her 
 chattel-property in possession, and entitled to appro- 
 priate fef^/^|g^f,^^fe^fedispose at his pleasure 
 
344 HUSBAND AND WIFE. [bOOK I. 
 
 of her chattels-real, to take the profits of her free- 
 hold lands during the coverture, and to receive her 
 earnings. And hence, from this definite duty, thus 
 sustained by such very valuable considerations, the • 
 law reasonably irrvplies a promise on his part to pay 
 whoever shall supply such necessaries for his wife a 
 reasonable compensation therefor. (Manby v. Scott, 
 &c., 2 Smith's L. C. 364-'5 ; Hawkes & ux v. Saun- 
 ders, Cowp. 290; Bac. Abr. Bar. & F. (H).) And 
 this implication, deiived, as it is, from his duty, is 
 not terminated by the parties living separately, nor 
 even by a divorce a mensa ; nor is it capable of being 
 repelled by any, the most peremptory general prohi- 
 "bition not to trust her, however it may be as to pro- 
 hibitions addi-essed to particular persons. This obli- 
 gation of the husband ceases only when his duty to 
 supply the necessaries ceases — that is, it is believed, 
 in the following cases alone, namely : 
 
 (1). Where the wife refuses, without sufficient rea- 
 son (e. g., of cruelty, or of outrage upon her feelings, 
 as by his introducing his mistress into his house), to 
 live with him, and abandons his house and society. 
 
 (2). Where the wife is guilty of adultery. 
 
 (3). Where she is supplied by him, or indeed from 
 any source, with necessaries, or the means of pro- 
 curing them, whether the existence of such supply 
 be or be not known to the person who furnishes her 
 the articles in question. 
 
 In the first two of these cases, the vdfe having lost 
 sight of her conjugal duty, the husband is exoner- 
 ated from any further marital obligation to support 
 her; and in the last-named case he has discharged 
 his duty, and can be constrained to do no more. (1 
 Bl. Com. 442, & n (42) ; 2 Smith's L. C. 860 & seq., 
 364, 366 ; 2 Kent's Com. 146 & seq. ; Bac. Abr. Bar. 
 & F. (H).) 
 
 With us (however it may be in England), the wife 
 who is obliged by her husband's cruelty or miscon- 
 duct to leave his house, may compel him, as we have 
 seen, by direct proceeding in equity, for the pur- 
 pose, to allow her alimony {Ante p. 281, 3'), which, 
 however, is not to the prejudice of the husband's 
 obligation to pay a stranger for necessaries furnished 
 her meanwhile, before she obtains alimony. (Bac. 
 Abr. Bar. & F. (H); Hunt v. DeBlaquiere, 5 Bingh. 
 (15 E. C. L.) 550.) 
 
 The husband's obligation on the score of duty 
 extends£j^^i^^^sgi;^'^/gj^oj^portioned to his estate 
 
CHAP. XV.J HUSBAND AND WIPE. 345 
 
 and degree, or to that station winch he knowingly 
 allows her to assume; and what are such necessaries 
 is a question for the jury in each case. (Bac. Abr. 
 Bar. & F. (H); Smith's Cont. 451.) Servants suit- 
 able to the husband's fortune and rank have been 
 held to be such — as a lady's maid to the wife of the 
 Governor of Barbadoes (White v. Cuyler, 1 Esp. 
 200; S. C. 6 T. E. 176) ; and so has house furniture, 
 corresponding in like manner to station and fortune 
 (Hunt V. DeBlaquiere, 5 Bingh. (15 E. C. L.) 650). 
 See Montague v. Benedict, 3 B. & Cr. (10 E. C. L.) 
 631; Seaton v. Benedict, 5 Bingh. (15 E. C. L.) 28; 
 Lane v. Ironmonger, 5 Bingh. (13 M. & W. 368.) 
 
 The leading case upon this subject is Manby v. 
 Scott, parts of which are to be found in various 
 books. The argument of Sir Orlando Bridgman, 
 C. J., which is long and amusing, if not satisfactory, 
 is given in Bridgman's Judgments, 229; that of 
 Hale, C. B., in Bac. Abr. Bar. & F. (H) ; and that 
 of Hyde, J., in 1 Mod. 124. Siderfin's version of 
 the case is to be found in 2 Smith's L. C. 332; and 
 a shorter report in 1 Lev. 4. The report of Levinz, 
 coupled -^-ith that of Sideriin, is said to contain the 
 substance of all the arguments on either side. (2 
 Smith's L. C. 358.) 
 
 The earlier cases on the subject are judiciously 
 classed, and the result stated, in Bolton v. Prentice, 
 2 Str. 1214, note (1). 
 3^. Doctrine touching the Husband's Liability for the 
 Wife's Torts. 
 
 The husband is liable, in damages, for all assaults, 
 slanders, libels, and other torts committed by the wife 
 towards strangers, and therefore for her frauds, as 
 long as the relation continues, notwithstanding the 
 parties have permanently separated. The action, ho"Cv- 
 ever, is not to be brought against the husband alone 
 for a tort committed by his wife, but against the hus- 
 band and wife jointly. And where the tort complained 
 of is 2, fraud, it must not be a fraud so connected with 
 a contract as to be part of the same transaction. No 
 action lies in such a case, — not against husband and 
 wife in conjunction, because if that were allowed, the 
 wife would lose the protection which the law gives her 
 against contracts made by her during coverture; for 
 there is no contract which a married woman would be 
 likely to make, whilst she knew her husband to be 
 alive, which could not be treated as a fraud; nor 
 against tfe^^iW!^iOT^?|)ffgy^^fe|/f®rhen her conduct is the 
 
346 ' HUSBAND AND WIFE. [bOOK I. 
 
 cause of the action, lie is not liable to be sued by him- 
 self, but only in conjunction with her. (1 Bl. Com. 
 443 n (44); 3 Rob. Pr. (2d Ed.) 216-'17; Id.219-'20f 
 Cooper v. Witham, 1 Lev. 247; Head v. Briscoe & ux, 
 
 5 Carr. & P. (24 E. C. L.) 48; Adelphi Loan Assoc. 
 V. Fairhurst, 9 W. H. & Grord. 429 ; Cannam & ux v. 
 Farmer, 3 W. H. & H. 698.) 
 
 It has been said that husband and wife may not be 
 sued jointly for any tort committed by her in her hus- 
 band's presence, or with his concurrence, but that in such 
 a case the husband ftiust be sued alone. This, however, 
 seems to be unwarranted by the current of authority. 
 The true doctrine is believed to be that, if the tort be 
 one in which, from its own nature, it is impossible that 
 two should concur in committing it, as slander, the 
 husband must be sued alone for his own defamatory 
 words or other wrong, in one action, and must be 
 joined with her in another action for hers. And if the 
 tort be one which, from its nature, a married ivoman 
 cannot commit, the husband alone must be sued. Thus, 
 if husband and wife concur in the act of detaining 
 another's chattels, an action of detinue cannot be main- 
 tained against the wife at all, but against the husband 
 only; for, in law, the wife cannot detain. And so, it 
 has been said, it is in respect to the action of trover and 
 conversion, where it is alleged that the conversion is to 
 the use of husband and wife, for it is impossible that the 
 conversion should be to her use. (Berry & ux v. Nevys, 
 4 Cro. (Jac.) 661; Wilbraham v. Snow, 2 Saund. 471, 
 
 6 47 m.) But this has been by some regarded as an 
 excessive refinement. (3 Eob. Pr. (2d ed.) 217-'19; 
 Kayworth v. Hill & ux, 3 B. & Aid. (5 E. 0. L.) 685 ; 
 Catterall v. Kenyon, 3 Ad. & Ell. N". S. (43 E. C. L.) 
 315.) And at all events, it is agreed that a joint action 
 of trespass is maintainable against husband and wife 
 for converting the chattels of another ; and, indeed, of 
 trover also, if it be laid in the declaration that they 
 were converted to the Mse of the husband. (Wilbraham 
 V. Snow, 2 Saund. 47 1, and 47 m.) On the other hand, 
 where the injury is of a character such that two may 
 join in perpetrating it, as if it be assault and battery, 
 enticing away or harboring another's servant, &c., they 
 may be sued jointly for the tortious act of both; and 
 the acquittal of one will not preclude the plaintiff from 
 recovering on account of the wrong done by the other. 
 (1 Bl. Com. 443, n (44); Bac. Abr. Bar. &F. (L); Id. 
 Detinue; Swithin & ux v. Yincent & ux, 2 "Wils. 227; 
 Draper v.lj^&s^ 8^MicM§9fi(§^ a, n (1); Fawcet v. 
 
CHAP. XV. J ^ HUSBAND AND WIFE. 347 
 
 Beavres, 2 Lev. 63 ; Vine v. Saunders & ux, 4 Bingh. 
 (33 E. C. L.) 96; Koadcap & ux v. Sipe, 6 Grat. 216 
 & seq.) 
 
 Where the husband and wife must he joined, the de- 
 termination of the coverture before a judgment is re- 
 covered puts an end to the husband's liability ; but if 
 he may be sued alone, the wife's death does not pre- 
 vent hira from being still subjected. (Reeve's Dom. Eel. 
 Yl-'2 ; Anon. 4 Cro. (Car.) 509.) 
 4^. Doctrine touching suits iy and against Husband and 
 Wife. 
 
 This subject has been, to a considerable extent, un- 
 folded in connection with previous topics. It will be 
 expedient, however, to pursue it somewhat more into 
 detail, and in doing so use will be made freely of the 
 admirable analysis to be found in 1 Bl. Com 443, n 
 (44); 
 W. C. 
 1^- Actions iy Husband and Wife. 
 
 Under this head may be considered, (1), Where the 
 husband and wife must join ; (3), Where the husband 
 must sue alone ; (3), Where husband and wife may 
 join or not, at their election; (4), Where the wife m,ay 
 sue alone in courts of law ; (5), Who should sue when 
 the husband or wife is dead; (6), Consequences of a 
 mistake m,ade as to the proper parties ; 
 W. C. 
 1\ Where Husband and Wife m,ust Join ; W. C. 
 I'' Doctrine as to the Ante-nuptial Contracts, and 
 Causes of action of the Wife in her own Right. 
 
 The general rule is that, as to ante-nuptial con- 
 tracts and causes of action, husband and wife m,ust 
 join. Hence they must join in all actions upon 
 bonds, notes, and other personal contracts made to 
 and with the wife before marriage, whether the 
 breach of the contract were before or during cover- 
 ture ; and also for rent or any other cause of action 
 accruing before m,arriage, in respect of the real es- 
 tate of the wife. So they must likewise join for 
 torts to the person, or to the property (real or per- 
 sonal) of the wife, committed before marriage; and 
 also in real . actions for the recovery of the wife's 
 lands ; for waste committed therein before or after 
 marriage; and in detinue for the charters of the 
 wife's inheritance ; in all which cases the cause of 
 action would survive to her, should she survive her 
 husband or the coverture. (1 Bl. Com. 443, n (44); 
 Bac. ^-ti^-b^ ^tck^M- Detinue, (B); 1 Chit. 
 
848 HUSBAND AND WIFE. [bOOK I.. 
 
 PI. 32-'3 ; Dejarnette v. Allen & ux, 5 Grat. 511 
 & seq.) And it may be observed further, that 
 whenever they sue jointly (even in eases where the 
 husband had it in his option to SMe alone), if the 
 husband die, or the coverture is dissolved by di- 
 vprce, pending the suit, the right survives to . her ; 
 and on her death afterwards the siiit must be re- 
 vived in Jier name, and not in that of his personal 
 representative. (Archer v. Colby & ux, 4 H. & 
 M. 410; Yaughan & ux, v. Wilson, Id. 452.) 
 2^^. Doctrine when me Wife is Executrix or Admin- 
 istrat'nx, and the Cause of Action accrues to her 
 as such. 
 
 ' In these cases the husband must, for the most 
 part, join with her (when he has any right to sue 
 at all) ; for as her interest is merely in auter droity 
 he can have no pretensions to a right of action, 
 save in conjunction with her. (1 Bl. Com. 443, n 
 (44); 1 Chit. PL 53.) 
 3*. Doctrine as to Causes of Action which affect the 
 Wife, accruing during Coverture. 
 
 There is but one instance where a cause of action 
 which affects the wife, and accrues during the cover- 
 ture, must be asserted by a, joint suit, — ^namely, the 
 case of a tort to the person of the wife. In cases 
 arising out of contracts, or out of torts to the wife!s 
 property, the husband either must sue alone or may 
 join his wife or not, at his pleasure. See infra, 2' 
 and 3*. 
 
 When an injury is committed to the person of 
 the wife during coverture, by battery, slander, &c., 
 if the object be to recover for the personal suffering 
 or injury which she has experienced, the husband 
 and wife must sue jointly ; whilst if it be to recover 
 for the injury done to the husband, by the loss of 
 the company and services of the wife, or otherwise,, 
 the action should be in his name alone. (1 Bl. Com. 
 443, n (44) ; ISTewton & ux v Hatter, 2 Ld. Eaym. 
 1208; 3 Kob. Pr. (2d ed.) 192.) 
 2\ Where the Husband must Sue Alone. 
 
 The cases under this head to which it is desired to 
 direct the student's attention are, (1), Cases of con- 
 tracts, wherein the wife is concerned, made dunng 
 the coverture; (2), Cases of torts to wife's personal 
 property, committed during the coverture; (3), Cases 
 of torts to the wife^s person, committed during the 
 coverture; and, (4), Cases of injm-ies by breach of 
 Digitized by Microsoft® 
 
OHAP. XV.J HUSBAND AND WIFE. 349 
 
 contract, or by tort to the husband's property or 
 person, occurring before or during the coverture. 
 W.C. 
 1^. Doctrine in Cases of Contracts wherein the Wife 
 is concerned, made during the Coverture. 
 
 For the wife's work and labor, or for goods sold 
 or money lent by her during the coverture, the 
 law assigns to her no interest, and raises no promise 
 in her favor. The interest results to the husband 
 cdone, and in his favor alone a promise is implied ; 
 and hence iy him alone can an action be brought. 
 "When, however, the wife is, by her labor or otlier- 
 wise, the meritorious cause of the action, and an 
 express protnise is made to her, the husband, at his 
 option, may either sue alone, or assenting to give 
 her an interest in the contract, may join her in the 
 action, in which last case, if she survive (either him 
 or the coverture), the cause of action will survive to 
 her. (1 Bl. Com. MS, n (ii); Howell v, Maine, 
 3 Lev. 403 ; Brashford v. Buckingham, 3 Cro. 
 (Jac.) 77; Buckley v. Collier, 1 Salk. 114; Weller, 
 &c., V. Baker, 2 Wils. 424 ; Bidgood v. Way, 2 W. 
 Bl. 1239 ; Boggett v. Frier & al, 11 East. 301 ; 
 May V. Boisseau, 12 Leigh, 520; Post p. .) 
 
 And where a debt, due to the wife before mar- 
 riage, is merged by a specialty (i. e. a sealed instru- 
 ment), executed to the husband alone after cover- 
 ture, he alone must sue ; and so, if a promise after 
 coverture, be made to the husband, upon any fresh 
 consideration proceeding from him (e. g. his for- 
 bearance to sue), an action on such promise must 
 be by the husband alone. (1 Bl. Com. 443, n (44); 
 Yard v. Eland, 1 Ld. Eaym. 368; S. C. 1 Salk. 
 117; Eumsey v. George, 1 M. & S. 180.) 
 2*^. Doctrine in Cases of Torts to the Wife^s Personal 
 Property, Committed during Coverture. 
 
 When the cause of action has its inception, as 
 well as its completion, after the marriage, the hus- 
 band must sue alone, because the legal interest in 
 such property is by the marriage vested in him., 
 But when the inception of the wrong occurs before 
 the marriage, and the completion of it afterwards, 
 the husband may sue alone, having regard to the 
 consummation of the injury, or he may join the 
 wife with him, looking to the inception only. 
 Hence, in a case where goods, which before the 
 marriage had belonged to the wife, were both taken 
 and cq^mffl^(ffjaTf^gi(Qr^-ff@e, it was held that the 
 
350 HUSBAND AJNTD WIFE. BOOK I. 
 
 husband must sue alone, whatever form of action he 
 might adopt ; whereas if the taking occurred before 
 the marriage, and the conversion afterwards, the 
 wife may in trover be joined or not with the hus- 
 band, at his pleasure, according as he chooses to re- 
 gard the conversion as occurring when it actually 
 did, after the marriage, or as taking place by rela^ 
 Hon, at the period of the taking. The action of 
 detinue, however, being for the present detainjer, 
 must in all cases be prosecuted by the husband 
 alone; whilst trespass, or trespass on the case, for 
 the ante-nuptial wrong of the taking, must always 
 be in the Joint names of husband and wife. (1 Bl. 
 Com. 443, n (44); 1 Chit. PI. 84-'5; Bac. Abr. 
 Detinue, (A.); 3 Bob. Pr. (2d Ed.) 188 ; Nelthorp 
 & ux V. Anderson, 1 Salk. 114, & n (a) ; Black- 
 borne & ux V. Greaves & als, 2 Lev. 107.) 
 3*. Doctrine in Cases of Torts to the Wife's Person, , 
 committed during the Coverture. 
 
 We have seen that where the object of the action 
 is to recover for the personal suffering or injury 
 done to the wife, the action mv^t be joint by hus- 
 band and wife both ; but where the design is to re- 
 cover for some special damage resulting to himself 
 from the tort to the wife — as, for example, by the 
 loss of her company or services, or by reason of ex- 
 penses incurred by him, &c. — the action must be 
 by himself alone. (1 Bl. Com. 843, n (44); 1 Chit. 
 PI. 83-'4; 3 Eob. Pr. (2d Ed.) 192; KusseU cfe ux 
 V. Come, 1 Salk. 119, & n (b); S. C. 2d Ld. Eaym. 
 1031; Lewis & ux v. Babcock, 18 Johns. 443; 
 Dengate & ux, v. Gardiner, 4 M. & W. 6.) 
 
 But if the husband sues, together with his wife, 
 for a cause of action which involves such speckd 
 damage to him, the joint action may still be main- 
 tained, if it be otherwise proper, the additional cir- 
 cumstances mentioned being regarded as only mat- 
 ter of aggravation. Thus, where husband and wife 
 brought an action of trespass for the false imprison- 
 ment of the wife, whereby the husband's business re- 
 mained undone ; or until he paid £10 ; or for assault- 
 ing the wife, whereby the husband was, put to charges 
 for her cure, &c. — those cii-cumstances were con- 
 sidered as aggravations merely, the gist of the ac- 
 tion being the false imprisonment, for which a joint 
 action was proper. (Russell & ux v. Corne, 1 Salk. 
 119, & n (b); S. C. 2d Ld. Eaym. 1031.) 
 Digitized by Microsoft® 
 
CHAP. XT.] HUSBAND AND WIFE. 351 
 
 4''- Doctrine in Case of Injiu-ies to the Sushand^s 
 Person or Property, before or during Coverture. 
 
 The wife, having no legal interest in the person 
 or property of her husband, cannot join with him 
 in any action for an injury thereto, except only in 
 case of a malicious prosecution of both, in which it is 
 held that they may join, or the husband may sue 
 alone. (1 Bl. Com. 443, n (44); 3 Do. 143; 1 
 Chit. PI. 83 ; Newton & ux v. Hatter, 2 Ld. Kaym. 
 1208.) 
 3'. Where the Husband and Wife may join or not, at 
 
 tJieir election. 
 
 We are here to consider, (1), The doctrine as to 
 
 the mode of suing in case of contracts made during 
 
 coverture; and (2), In case of torts committed during 
 
 coverture ; 
 
 W. C. 
 1^. Doctrine as to Husband and Wife joining or not, 
 at the Husband's election, in case of Contracts made 
 during Coverture. 
 
 When the contract is made during the coverture, 
 expressly with the wife, either alone or in conjunc- 
 tion with the husband, she being the meritorious 
 cause thereof (as if it were for her labor or services), 
 the husband, at his election, majjoin his wife in 
 the action, or may sue alone. And so, as to an 
 ante-nuptial contract of the wife, if after marriage 
 the other party gives a bond to husband and wife, 
 or for a new consideration, such as forbearance, &c., 
 make a parol (i. e., an unsealed) promise to them 
 both, they may Join, or, at his election, the husband 
 may sue by himself. If, however, such subsequent 
 bond or promise were made to the husband only, 
 he alone can sue. (1 Bl. Com. 443, n (44); 1 Chit. 
 PL 33-'4; Howell v. Maine, 3 Lev. 403; Weller, 
 &c., V. Dippers at Tunbridge Wells, 414, 424; Ale- 
 berry V. Walby, 1 Str. 230; Ankerstein v. Clarke 
 & als, 4 T-. R. 616; Philliskirk v. Pluckwell, 2 M. 
 & S. 395 . Rumsey v. George, 1 M. & S. 180; Yard 
 V. EUard, 117; S. C. 1 Ld. Raym. 368; Lee v. 
 Mynne & ux, 3 Cro. (Jac.) 110; Cathell v. Good- 
 win, 1 Harr. & Gill (Md.), 468; Schoonmaker's 
 Ex'ors V. Elmendorf & al, 10 Johns. 49.) 
 
 For rent, or other cause of action accruing during 
 the coverture, on a lease or other contract relating 
 to the wife's real propg-ty, whether made before or 
 during-the coverture, the husband and wife may join, 
 or henoMiiMzsne/sJKm^r/afioflteD, in case of their evic- 
 
352 HUSBAND AND WIFE. [bOOK I. 
 
 tion from a lease for years, granted to them jointly. 
 But the interest and participation of the wife must 
 in all these cases appear from the pleadings. (1 Bl. 
 Com. 4:4:3, n (44) ; 1 Chit. PI, 34 ; Aleberry v. Walby, 
 I Str. 230; Dunston & ux v. Barwell & al, 1 Wils. 
 224; Bidgood v. Way, &c., 2 Wm. Bl. 1239; Kose 
 V. Bowler, 1 H. Bl. 106.) 
 
 And where husband and wife have recovered 
 judgment for money due to the wife dum sola, they 
 may join in an action on the judgment, or the hus- 
 band may sue alone. (3 BL Com. 443, n (44).) 
 2". Doctrine as to Husband and Wife joining or not, 
 at the Husband's election, in case of Toris committed 
 during the Coverture. 
 
 In respect to torts to the wife^s person, we have 
 seen that where the complaint relates to the wife's 
 personal suffering or injury, the action must be in 
 the joint names of husband and wife; but if the 
 gist of the action is the injury done to the husband, 
 he must sue alone. But it is established that no 
 joint action can be maintained for an alleged joint 
 tort to both, save in case of a, joint malicious prosecution 
 of husband and wife, in which case they may both 
 join in respect to the injury to both, or the husband ' 
 may sue alone. (1 Bl. Com. 443, n (44); 1 Chit.. 
 PL 83-'4.) 
 
 As to torts to the wife's personal property, we have 
 also seen that where the cause of action had as well 
 its inception as its consumrnation during the cover- 
 ture, the husband must sue alone, but that if the 
 inception were before marriage, and the wrong was 
 completed afterwards (as in case of goods taken 
 whilst the wife was sole, and converted after she 
 became covert), the suit may be either joint, or in 
 the husband's name alone. (1 Bl. Com. 443, n (44); 
 1 Chit. PL 85; Russell & ux v. Corne, 1 Salk,119, 
 n (b); Weller, &c., v. Baker, 2 Wils. 423-'4; Bid- 
 good V. Way, 2 Wm. Bl. 1236.) 
 
 It should he observed that the effect of joining 
 the wife in an action when the husband may sue 
 alone, is that, if the husband die whilst the suit is 
 pending, or before the judgment is satisfied, the in- 
 terest in the subject-matter vdll survive to the wife, 
 and not to the personal representative of the hus- 
 band, although if he had sued alone it would have 
 demonstrated his disaffirmance of the wife's interest, 
 and then, upon his death, the cause of action would 
 not h^^f/^r^/tflic^go/j^i) Chit. PL 35 ; Coppia 
 
CHAP. XV.J HUSBAND AJSTD WIFE. 353 
 
 P. "Wms 497 ; Day v. Pargrave, cited 
 
 Philliskirk v. Pluckwell, 2 M. & S. 396, n (b) 
 
 Bidgood V. Way, 2 W. Bl. 1239.) 
 4'. "When the "Wife may Sue alone in a Court of Law. 
 A married woman having in law no separate legal 
 existence, cannot, in -general, while the relation of 
 marriage subsists, sue without joining her husband, 
 whether for causes of action arising before the cover- 
 ture, or during its continuance, notwithstanding he 
 may have deserted her ; or, although she lives apart 
 from him, and has a separate maintenance, nor even 
 though she be divorced a mensa, &c., with an allow- 
 ance of alimony, unless in the last case there has 
 been super-added to the sentence of divorce a decree 
 of perpetual separation, which, it will be remembered, 
 operates upon the personal rights and legal capaci- 
 ties of the parties as a decree, of divorce from the 
 bond of matrimony, except as to marrying again. 
 {Ante p. 274, 2>-; Y. C. 1873, c. 105, § 13.) Nor is 
 she estopped from pleading her coverture, although 
 she has declared herself to be a, feme sole, and as such 
 executed deeds, maintained actions, and gained credit. 
 (1 Bl. Com. 443, n (44); 1 Chit. PI. 31; 1 Th. Co. 
 Lit. 133-'4 ; Bac. Abr. Bar. & F. (M) ; Hatchett v. 
 Baddeley, 2 "W. Bl. 1081; Lean v. Schutz, Id. 1199; 
 Marshall v. Button, 8 T. E. 545 ; ISTurse v. Craig, 2 
 Bos. & Pul. (N. K.) 148; Hyde v. Price, 3 Ves. 
 Jun'r, 443 ; McNamara v. Pisher, 3 Esp. 19 ; Lewis 
 V. Lee, 3 B. & Cr. (10 E. C. L.) 291; Bogget v. 
 Frier & al, 11 East. 301; Davenport v. Nelson, 4 
 Campb. 26; Hookham v. Chambers, 8 Br. & B. (7 
 E. C. L.) 92.) 
 
 The exceptions to this principle are few and well 
 defined, being limited to those cases where the wife, 
 notwithstanding her coverture, is allowed to bind 
 herself by her contracts, which occurs, as we have 
 seen {Ante p. 337), in the cases following — viz.: 
 
 (1). Where the wife is a sole-trader, by the custom 
 of London, which is not law with us. 
 
 (2). Where the husband is civiliter mortuus, by 
 reason of abjuration of the realm, or of banisinnent 
 or transportation, as long as the husband is abroad, 
 in respect to which it may well be doubted whether 
 in "V^irginia a civil death is legally possible. (2 Bl. 
 Com. 443, n (44); 1 Th. Co. Lit. 134 & seq. & n's 
 (P), (Q) and (E.) ; Branch v. Bowman, 2 Leigh, 170 ; 
 Platner v. Sherwood, 6 Johns. C. K. 118; V. C. 
 1873, <Di§Q&^%ymkfi<^oft® 
 23 
 
354: HirSBAKD AMD WIFE. [bOOK I. 
 
 (3). Where the husband is abroad and an alien 
 enemy. (Deerly v. Duchess of Mazarine. 1 Salk. 
 116 & n (a); S. C. 1 Ld. Kaym. UT.) 
 
 (4). Where the husband is an alien, and has nevefr 
 he&n in Virginia. According to some authorities, 
 the wife may bind herself by contract, and may sue 
 alone wherever the husband is abroad and is an 
 alien, although not an alien enemy, and although he 
 has been here and professes an intention to return in 
 a short time. (Walford v. Duchess de Pieime, 2 
 Esp. 554; Franks v. Same, Id. 588.) But these 
 cases seem to have been overruled by later decisions, 
 and the doctrine established as above stated — viz., 
 that the husband, being abroad, must be either an 
 alien enemy, or must never have been in this country. 
 (Kay V. Duchesse de Pienne, 3 Campb. 123; Mar- 
 shaU V. Eutton, 8 T. E. 345 ; Gregory v. Paul, 15 
 Mass. 31.) 
 
 (5). Where in Virginia there has been a decree of 
 perjpetual separation, superadded to a sentence of 
 divorce a mensa, &c. (V. C. 1873, c. 105, §13; 
 Supra p. 353.) 
 
 In reference to the first four of these exceptions, 
 see 1 Bl. Com. 443, n (44); 1 Chit. PL 31-'2; 
 Bac. Abr. Bar. & F. (M); 1 Th. Co. Lit. 133-'4 & 
 seq. & n's (P) and (Q); Hatchett v. Baddeley, 2 W. 
 Bl. 1081; Lean v. Schutz, Id. 1199; Kay v. Duch- 
 esse de Pienne, 3 Camp. 123; Bogget v. Frier & al, 
 11 East. 301 ; Carrol v. Blencore, 4 Esp. 27. 
 5'. Who should Sue when the Husband or Wife is 
 Bead; W. C. 
 1*. Who should Sue when the Husband survives. 
 
 When the husband survives, he may sue, by vir- 
 tue of his marital right, for anything to which he 
 became absolutely entitled, as husband, during the 
 coverture, and for chattels given, or otherwise ac- 
 cruing to the wife, in her own right, during cover- 
 tm-e ; but not for such as accrued to her in auter 
 droit, as executrix, &c. So he may sue in trespass, 
 for injury to the wife's land during coverture. But 
 he caimot sue for arrears of rent accruing, due after 
 the wife^s death on a lease of her freehold lands, 
 made by her before marriage, or by her and her 
 husband, according to the statute (V. C. 1873, c. 
 117, § 4, 7), afterwards. (1 Bl. Com. 443, n (44); 
 2 do. 434-'5; Bac. Abr. Bar. & F. (D); 1 Chit. PI. 
 35; 3 Th. Co. Lit. 305 & seq., n's (L) and (M); Id. 
 308D/^ke?^t^JMcA€l^*© 4: T. E. 616; Aleberry 
 
CHAP. XV.] HUSBAND AND WIFE. 355 
 
 V. Walby, 1 Stra. 230; Beaver v. Lane, 2 Mod. 
 217; Hill V. Saunders, 2 Bingh. (9 E. C. L.) 112.) 
 
 Thus, the" husband may sue for all chattels real 
 • of the wife (which belong to him by survivorship), 
 for arrears of rent accrued during the coverture, or 
 since its termination, in case of leases of the wife's 
 terms for years, made by the husband alone during 
 the coverture; or if made by the wife jointly with 
 him, where the rent is reserved to the husband^ for 
 such sub-demise, and reservation of rent, is regarded 
 as a disposition pro tanto, of the wife's original 
 term, and the rent is the absolute property of the 
 husband; and for arrears of rent, accrued during 
 coverture, upon a lease of the wife's freehold lands, 
 made by her before marriage, or by him afterwards. 
 (1 Lom. Ex. 518-'19; 3 Th. Co. Lit. 259; Parry v. 
 Hindle, 2 Taunt. 181.) 
 
 And if the wife recover a judgment whilst sole, 
 and after marriage the husband and wife sue out a 
 scire facias, and have judgment and award of exe- 
 cution thereon, but before execution executed the 
 wife die, the surviving husband is entitled to an ac- 
 tion of debt, or a new scire facias thereupon, be- 
 cause the award of judgment and execution on the 
 scire facias alters the property, and vests it in the 
 husband. So, if pending an action by husband and 
 wife, the wife die, the suit abates; but if they obtain 
 judgment, he may, notwithstanding her subsequent 
 death, issue an execution, or support an action of 
 debt on sucfei judgment. (1 Bl. Com. 443, n (44); 
 Woodyer v. Gresham, 1 Salk. 116.) 
 
 But for the chases in action of the wife, including 
 all contracts made with her before marriage, and 
 all bonds and notes payable to her, or to her and 
 him, made during coverture, on which he has not 
 elected to sue in his own name, the husband sur- 
 viving can only maintain an action as her adminis- 
 trator, which, in the absence of any agreement to 
 the contrary, he is always entitled to be, and also, 
 after payment of her ante-nuptial debts, to be her 
 sole distributee. (1 Bl. Com. 443, n (44); Toll. 
 Ex'ors, 85, 116; Philliskirk v. Pluckwell, 2 M. & 
 S. 396, n (b); V. C. 1873, c. 126, § 4; Id. c. 119, 
 § 10 (cl. 3) ; Templeman v. Fauntleroy, 3 Rand. 
 434 ; Wade v. Boxley, 5 Leigh, 442 ; Thornton v. 
 Winston, 4 Leigh, 158, 162.) 
 
 It should be observed that, in England, by Stat- 
 ute 3£);p^je#dP^;ercfe'&fl^, it is provided that 
 
.356 HUSBAND AND WIFE. [bOOK I. 
 
 " husbands seised in right of their wives, in fee-tail 
 or for life, of any rents or fee-farms, may distrain 
 after the death of their wives, for arrears due in 
 their life time," — which was interpreted* (in con- 
 junction with another provision of the same statute), 
 to allow the husband surviving to recover either hy 
 action or distress all arrears of rents on the wife's 
 ante-nuptial leases of her freerhold lands, wliether 
 accruing before or during the coverture. That 
 statute, however, g,lthough long a part of our Code, 
 was pretermitted at the revisal of 1849, so that the 
 common law is supposed to be restored, whereby 
 the husband can recover only the arrears accming 
 during coverture. (3 Th. Co. Lit. 255, & n (D); 
 Id. 259; 1 Lom. Ex. 519.) 
 .2'^- Who should sue when the TlT/e Survives. 
 
 The surviving Avife may sue in respect of all chat- 
 tels real which her husband had in her right, and 
 did not dispose of during coverture. So also she 
 may sue for arrears of rent which became due Jje- 
 j'ore the coverture, upon any ante-nuptial lease by her 
 of her lands, whether freehold or leasehold; for 
 arrears of rent which Vjecame due during covertvre, 
 for her leasehold (and perhaps her freehold) lands, 
 where the rent is reserved to the husband and v:ife 
 (the rent being due in respect to her joiyit interest, 
 which by the reservation is acknowledged as con- 
 tinuing); for arrears of rent falling due after the 
 coverture ended, upon ante-nuptial leases of her lands, 
 whether freehold or leasehold ; or upon leases of 
 her leaseholds made during marriage, when she, 
 after the husband's death, elects to confirm them; 
 for all chases in action to which she was entitled at 
 the time of the marriage, and which the husband did 
 not reduce into possession ; for all chases in action 
 to which she became entitled during the coverture, 
 and which her husband did not reduce into posses- 
 sion ; for all torts committed on her person or pro- 
 perty before marriage, or on her person during 
 marriage, for which no redress was obtained by her 
 husband ; and, lastly, for all rights of action accru- 
 ing to her in avier droit, as executrix, ifec, even 
 against the husband's personal representative, her 
 right of action being at common law only suspended 
 during coverture. (1 Bl. Com. 443, n (44); 1 Chit. 
 PI. 36 ; 1 Bright's H. & Wife, 43 & seq. ; 1 Lom. 
 Ex'ors, 518-'19 ; Parry v. ffindle, 2 Taunt. 181 ; 
 Digitized by Microsoft® 
 
CHAP. XT.] HUSBAND AND WIFE. 357 
 
 Philliskirk v. Plnckwell, 2 M. & S. 396, & n (b) ; 
 Howell V. Maine, 8 Lev. 403.) 
 
 The correct rule as to the siii'vivorship of choses 
 in action to the surviving wife, in case of contracts 
 made with her during the coverture, is said to be 
 this : Wherever the action is on an express contract 
 with the wife, or with the husband and wife, the wife 
 may be joined unless the consideration averred in 
 the pleadings, or shown in the proof at the trial, be 
 one in which the wife cannot be intended to have 
 an interest ; and in every such case, if the interest 
 of the wife be not disaffirmed by the husband, by the 
 appropriation of the cause of action to his sole use, 
 by suing in his own. name, the wife surviving will 
 be entitled to it. (May v. Boisseau, 12 Leigh, 520; 
 Philliskirk & ux v. Pluckwell, 2 M. & S. 393 ; 
 Eichards v. Kichards, 2 B. & Ad. (22 E. C. L.) 
 447 ; Wells v. Nurse, 1 Ad. & El. (28 E. C. L.) 40.) 
 6'. Consequences of making a Mistake in the proper Par- 
 ties Plaintiff. 
 
 Where a married woman ought to have joined her 
 husband with her, but sues alone ; or where she mar- 
 rie after the suit is commenced, and before plea, the 
 defendant can take the objection that she is a feme 
 covert only by plea in abatement, and not by plea in 
 bar, although the husband may sustain a writ of 
 error. But when a feme covert improperly sues alone, 
 having no legal right of action whatever, she will fail 
 at the trial. And if she bo improperly joined with 
 her husband in an action, wiien he ought to sue alone, 
 the defendant, if the objection appears on the face 
 of the declaration, may demur, move in arrest of 
 judgment, or reverse the judgment upon a writ of 
 error ; or if the objection does not appear on the 
 face uf the pleadings, the plaintiff will still be de- 
 feated at the trial, upon proving the facts. If, on 
 the other hand, the husband sue alone, when the 
 wife ought to be joined, either in her own right, or 
 in auter droit, as executrix, &c., he will fail at the 
 trial; or if the objection appear on the record, it 
 will be fatal on demurrer, in arrest of judgment, or 
 on writ of error. (1 Chit. PI. 36-'7, 86 ; Yard v. 
 Ellard, 1 Salk. 119 ; S. C. 1 Ld. Raym. 368 ; Bid- 
 good V. Way, 2 W. Bl. 1239.) 
 2''. Actions against Husband and Wife. 
 
 The analysis of this branch of the enquiry will be 
 the same as under the first head. Thus, it is proposed 
 to consi^^.^^l^y^as5^.v^h|^^|jM55ffi?M? and wife must 
 
358 HUSBAND AND WIFE. [bOOK I. 
 
 he joined; (2), Cases where husband must sue alone; 
 (3), Cases where the husband and wife may he jointly 
 sued or not, at the election of the plaintiff; (4), Cases 
 where the wife may he sued alone in courts of law; 
 and (5), "Who is to be sued in case of death of the 
 hushand or wife ; 
 W. C. 
 1'. Cases where Husband and Wife must be joined'. 
 In general, a married woman cannot be sued in a 
 court of law without her husband. They must, for 
 the most part, be 'hj.ed jointly for all causes of ac- 
 tion, whether of contract or of tort, subsisting against 
 the wife at the time of the marnage; also for all 
 tOrts committed by her during the coverture; and 
 for all causes of action against the wife as executrix 
 or administratrix, arising out of a personal contract 
 of her decedent. Hence, when a feme sole enters 
 into any contract (e. g., a bond, promissory note, or 
 other agreement), or commits any tort (such as assault, 
 slander, &c.), and then marries, suit during the cov- 
 erture must be brought against the husband and her- 
 self jointly; although where the husband, in respect 
 of some new consideration, as forbearance, &c., ex- 
 pressly promises to perform the wife's ante-nuptial 
 contracts, he may be sued alone on such an under- 
 taking, or he and his wife may be sued jointly on 
 the original demand. Hence, also, if the wife com- 
 mits torts during the coverture, as by slander, libel, 
 assault, &c., she and her husband must be joined in 
 the action, as also for any forfeiture under a penal 
 statute. It should be observed, however, that al- 
 though both must be sxied for her tort, it is not allow- 
 able to sue both as for a tort committed by both, un- 
 less it is really capable of being so committed. Thus, 
 slander by husb'md and wife is impossible. He must 
 be sued separately for the slander of which he is 
 guilty, and both for hefs. But they may unite in 
 an assault and battery, or even in enticing away and 
 harboring the servant of another, and therefore for 
 those injuries a joint action lies against both. To 
 this general doctrine, however, are these qualifica- 
 tions — namely : That the action of detinue cannot be 
 supported but against the husband alone as long as 
 the coverture lasts; and 'that for a conversion of chat- 
 tels, alleged to be made by the husband and wife, 
 the action of trover should in strictness be brought 
 against him only, or at least that the conversion 
 should ngifg^^lg^e^/^^jf® been to their use, but 
 
■CHAP. XV.J HUSBAND AND WIFE. 359 
 
 to the husband's use only, although the objection is 
 cured by the verdict. (1 Bl Com 443, n. (44); 1 Chit. ■ 
 PL 66; Bac. Abr. Bar. & F. (L) ; Draper v. Fulkes, 
 Yelv. 165, & n. (1); Wilbraham v. Snow, 2 Saund. 
 47, 1 & m; Fawcet v. Beavres & ux, 2 Lev 63; Mar- 
 shall V. Kutton, 8 T. R, 545 ; Koadcap & ux v. Sipe, 
 6 Grat. 213.) 
 2'. Cases where Husband must be Sued Alone. 
 
 The husband must in all cases be sued alone, 
 where the wife cannot be considered as, in person or 
 property, giving rise to the cause of action. Hence the 
 wife is never to be joined with the husband in an ac- 
 tion upon a personal contract made by her during 
 coverture, as upon a promise to pay money, or to do 
 any othei- thing alleged to be made jointly with him, 
 because her promise, as to herself, is void. If, in fact, 
 the promise was joint, yet he alone is bound by it, 
 and he only is to be sued ; and if made by her alone, 
 it is never binding on her; so that if it be of any 
 avail at all, it is in consequence of her being the 
 agent of her husband, or of some one else. But 
 although it is improper to join her with her husband 
 for the reason just stated, and although at common 
 law to do so exposes the plaintiff to fail, by reason of 
 the variance between the contract alleged and that 
 proved, yet by statute in Virginia the mistake is 
 effectually cured, wherever there might have been a 
 recovery against the husband, had he been sued 
 separately ; that is, whilst the wife is discharged, the 
 verdict and judgment go against the husband, as if 
 he alone had been sued. (V. C. 1873, c. 173, § 19; 
 Steptoe V. Read, 19 Grat. 10 ; Moffett v. Bickle, 21 
 Grat. 285, &c.) Neither can husband and wife 
 be sued jointly for any tort, unless it be one which 
 they may unite in committing. Thus, they cannot 
 be sued jointly for slander by both, for slander cannot 
 be jointly committed; but for the slander by him he 
 must be sued alone, as we have seen; whilst for her's 
 they have to be joined. (Bac. Abr. Bar. & F. (L) ; 
 Swithin & ux v. Vincent & ux, 2 Wils. 227.) There 
 are, however, two cases where, at the first glance, 
 the wife appears to give rise to the cause of action, 
 and where yet she must not be joined ; because the 
 injury sought to be redressed is, in law, done by the 
 husband alone. These cases are the action of detinue 
 for a chattel which, after the marriage, is withheld 
 by husband and wife; and the action of trover for the 
 alleged^oi^vej^gn ^.^a^ch^^l by them both, the de- 
 
360 HUSBAND AND WIFE. [bOOK I. 
 
 tainer and conversion being, in law, the detainer and 
 conversion by him alone. Bat if they were joined^ 
 the objection, at least in the ease of trover, would be 
 cured, it seems, by verdict. (1 Bl. Com. 443, n 
 (44); Bac. Abr. Detinue; Id. Bar. & F. (L); Berry 
 & ux V. ISTevis, 3 Cro. (Jac.) 661 ; Marshall v. But- 
 ton, 8 T. R. 546; Wilbraham v. Snow, 2 Saund. 
 471, &c.: Draper v. Fulkes, Yelv. 166 a, & n (1); 
 Keyworth v. Hill & ux, 3 B. & Aid. (5 E. C. L.) 
 685 & note; Roadcap & ux v. Sipe, 6 Grat. M3; 
 Williamson v. Paaton, 18 Grat. 489.) 
 3*. Cases where the Husband and Wife may be Jointly 
 Sued, or the Husband Sued alone, at the election of 
 Plaintiff. 
 
 Although husband and wife must be joined, as we 
 have seen, in an action on the wife's contract made 
 before marriage, yet if the husband, upon a new con- 
 sideration, such as forbearance, &c., expressly under- 
 take to pay the debt, or perform the contract of the 
 wife, he may be sued alone on such undertaking, or 
 (except where the original promise is merged in that 
 of the husband), husband and wife may be joined. 
 (Mitehinson v. Hewson, 7 T. E. 348 ; Drue v. Thorn, 
 AUeyn, 36.) And when rent becomes due, or any 
 liability arises during coverture, out of a lease made 
 to the wife whilst sole, the action may be against both, 
 by reason of the original contract ; or it may be 
 against the husband alone by reason of his being the 
 occupant of the premises and a quasi assignee. 
 (Lake v. Smith, 1 Bos. & Pul. (IST. E.) 177.) So, 
 also, where the lease is made dm-ing coverture to 
 the husband and loife jointly, an action for rent or 
 other liability arising out of the lease may be against 
 the husband alone, because directly the promise and 
 obligation are his; or against the husband and wife 
 jointly, because prima facie the lease is beneficial to 
 her, and is obligatory upon her unless her husband, 
 immediately upon becoming aware of it, shall dis- 
 claim it in her behalf, or she, upon becoming dis- 
 covert, shall disclaim it for herself. (Bac. Abr. Bar. 
 & F. (L).) We have seen that in those cases where, 
 in point of fact, husband and ■wife can concur in com- 
 mitting a tort (e. g. an assault and battery, or enticing 
 away another's servant, &c.,) they may be sued 
 jointly for such wrong, but the husband may also ia 
 such case be sued alone; and if they are sued to- 
 gether the acquittal of the husband for his alleged 
 particinatioji ^yi^ not. Dreclude the plaintiff from re- 
 
OSAF. XV.J HUSBAND AND WIFE. 361 
 
 covering for the act of the wife. (1 Bl. Com. 443, 
 n (44) ; Fawcet v. Beavres & ux, 2 Lev. 63 ; Key- 
 worth V. Hill & ux, 3 B. & AM. (5 E. C- L.) 685.) 
 4\ Cases where the Wife may be Sued alone in the Courts 
 of Law. 
 
 The wife may be sued alone, without her husband, 
 under circumstances corresponding to those which 
 warrant her in suing loithout him ; for which see 
 ante, p. 337, 1'. 
 5'. Against whom Suit is to be instituted in case of the 
 diath of the Husband or the Wife, respectively ; W. C. 
 I''. Who is to be Sued lohere the Husband survives. 
 The husband, surviving the wife, may be sued for 
 arrears of rent, accruing during the coverture, upon 
 a lease made to the wife whilst sole, because he 
 either did enjoy, or might have enjoyed, the prem- 
 ises. And so, also, he may be sued for money 
 due upon a judgment recovered against husband 
 and wife during coverture. But he is not liable to 
 be sued in the character of husband merely, for any 
 contract or for any tort of the wife made or done 
 before coverture, where no judgment has been ob- 
 tained against them jointly during coverture; and if 
 such joint suit be instituted, but she die before 
 judgment, the suit must abate. However, although 
 in such cases he is not liable as husband, he may 
 yet be so as his wife^s administrator. If there be 
 any choses in action of the wife, not reduced into 
 possession during coverture, he can recover them, 
 as we have seen, not by virtue of any direct marital 
 right, but only in the capacity of her administrator ; 
 and, having recovered them in that character, he 
 must pay, as far as such assets extend, all lawful 
 claims against his wife, including whatever may 
 be due upon her ante-nuptial promises and con- 
 tracts, and also by reason of her ante-nuptial torts 
 as by law (Y. C. 1873, c. 226, § 20, 21 ; Id. c. 
 145, § 7, & seq.) survive against a personal repre- 
 sentative. As to torts committed by the wife while 
 the coverture lasts, Ji, seems the- surviving husband 
 continues to be liable therefor. (1 Bl. Com. 443, 
 n (44); 1 Chit. PI. 66, 106; Head v. Stamford, Cas. 
 Temp. Talbot, 174 ; S. C. 3 P. Wms. 411 ; Eeeve's 
 Dom. Rel. 72; Rigley v. Lee & ux, 3 Cro. (Jac.) 
 356; Anon. 4 Cro. (Car.) 509; Middleton v. Croft, 
 Temp. Hardwicke, 399.) 
 2^^. Who is to be Sued when the Wife survives. 
 
 Where. the wife survives Jhe husband, or outlives 
 
 re. the wife survives Jhe 
 DiQifizeaDy Wcrosoft® 
 
362 HUSBAND. AND WIFE. [bOOK I. 
 
 the coverture (in consequence of a divorce a vinculo), 
 she may be sued upon all her unsatisfied ante-nup- 
 tial contracts, and also for her ante-nuptial torts, and 
 torts committed by her during coverture, for which 
 satisfaction has not been previously obtained. But 
 the certificate in bankruptcy of the husband will 
 discharge her from all debts and other claims 
 against her which could have been proved against 
 him in bankruptcy. (1 Bl. Com. 443, n (44); 1 
 Chit. PI. 67-'8, 106; Mitchinson v. Hewson, 7 T. 
 K. 350; Woodrilan v. Chapman, 1 Campb. 189; 
 James' Bankrupt Law, 87.) 
 6'. Consequences of a Mistake in the Proper Parties 
 Defendant. 
 
 Where the husband is sued alone upon the contract 
 or tort of his wife before coverture, and the objection 
 appear on the face of the declaration, the defendant 
 may demur, move in arrest of judgment, or have a 
 writ of error to reverse the judgment in an appellate 
 court. If the cause of action be misdescribed as be- 
 ing that of the husband, the plaintiff will fail at the 
 trial upon the general issue, upon the ground of a 
 variance between the cause of action stated in the 
 declaration, and that proved. 
 
 If husband and wife be improperly joined on con- 
 tracts after marriage, or for torts of which they 
 could not, in law, be jointly guilty, as for slander by 
 both, and the objection appears on the face of the de- 
 claration, the defendant may demur, move in arrest 
 of judgment, or have a writ of error. If the objec- 
 tion does not appear in the pleadings, the plaintiff 
 will fail at the trial, at common law, it is said, upon 
 the genera] issue, on the ground of a variance. But 
 in Virginia it is provided by statute, that in an action 
 founded on contract against two or more defendants, 
 although the plaintiff may be barred as to one or 
 niore of them, yet he may have judgment against 
 any other or others of the defendants, against whom 
 he would have been entitled to recover if he had 
 sued them only ("S4k C. 1873, c. 179, § 19); and con- 
 sequently it seems that the plaintiff would be entitled 
 to recover against the husband, though he should fail 
 against the wife. (Steptoe v. Read, 19 Grat. 10; 
 Moffett V. Bickle, 21 Grat. 285, &c.) 
 
 And where the wife is sued alone upon her ante- 
 niiptial contract, or for her tort, committed either 
 before marriage or after it, she must plead her cov- 
 erture B^^Si-fJ^,m4o%m®^ otherwise avail her- 
 
CHAP. XV.J HUSBAND AND WIFE. 363 
 
 self of it (although the husband, it seems, may avoid 
 the judgment by writ of error, coram vobis. (Bac. 
 Abr. Bar. & F. (L); Id. Errors & Abatem't; Milner 
 V. Milner, 3 T. E.. 631.) And if she marry pending 
 an action against her, it does not abate, but the 
 plaintiflf may proceed to execution without noticing 
 the husband. But if a feme covert be sued upon her 
 supposed contract, made during coverture, such con- 
 tract being wholly void, she may plead the coverture 
 in bar, or may give it in evidence, under the general 
 issue of nil debet, non assumpsit, or if it be by deed, of 
 non est factum.. (1 Chit. PI. 168, 106; Dyer, 19 a, 
 & note; Yates v Boen, 2 Stra 1104, & n (1); King 
 & ux V. Jones, 2 Stra. 811; Swithin v. Yincent & 
 ux, 2 Wils. 227; Milner v. Milner, 3 T. E. 627; 
 Mitchinson v. Hewson, 7 T. R. 348.) 
 3^". Suits as between Husband and Wife, or by or against 
 the Wife alone, in the Courts of Equity. 
 
 In the civil or Roman law, the husband and wife 
 are considered not as one, but as two distinct persons, 
 and may have separate estates, contracts, debts, in- 
 terests, and injuries. Hence, in those courts in Eng- 
 land which have adopted, to a great extent, the modes 
 of proceeding of the civil law, and therewith many of 
 its rules and analogies, a married woman may not 
 only, in some cases, sue and be sued without her hus- 
 band, but, when justice so requires, may sue him and be 
 sued by him. So it is in the mother-country, in the 
 ecclesiastical courts and courts of chancery, and so 
 with us it is in the courts of chancery. (1 Bl. Com. 
 444, & n (47); Id. 20, 83; Ante, 37.) 
 
 Courts of chancery recognize in general the rule of 
 law which considers husband and wife as one person, 
 and their interests as. the same; and in equity, there- 
 fore, as at law, where a suit respects her rights, it is 
 to be for the most part instituted by or against them 
 jointly; but in equity, this doctrine is kept in subordi- 
 nation to the requirements of justice and of social 
 convenience. Thus, if a married woman claims some 
 right in opposition to her husband, such as alimony, 
 in consequence of his cruelty, or the specific enforce- 
 ment of marriage articles, as he is the party to be 
 complained of, the complaint, of course, cannot be 
 made in his name. For the husband and wife to join 
 in preferring a demand against the husband would 
 savor of absurdity. In such case, therefore, as the 
 wife, being under the disability of coverture, cannot, 
 
 without anomaly .and,, some jjractical inconvenience, , 
 uigifized by Microsoff© ' 
 
364 HUSBAND AND WrFE. [bOOK I> 
 
 sue alone, and yet cannot sue under the protection of 
 Iter husband, she must seek temporarily some other 
 aid, and the bill in equity is allowed to be exhibited 
 in her name (of course with her consent) by her next 
 friend (or prochein ami), who is to be named in the 
 bill. (1 Bl. Com. 444, n (47); Mitf Eq. PL 27-'8; 
 Fonbl. Eq. 95, n (k); 2 Stor. Eq., § 1367-'8; Griffith 
 v.- Hood, 2 Ves. Sen'r, 452 ; Watkvns v. Watkyns, 2 
 Atk. 96 ; Sidney v. Sidney, 3 P. Wms. 269 ; Blount 
 V. "Winter, 3 P. Wms. 276, note (2) ; Lampert v. Lam- 
 pert, 1 Yes. Jun'r, 21 ; Arundell v. Phipps & al, 10 
 Ves. 144, 149; Seagrave v. Seagrave, 13 Yes. 442.) 
 
 In like manner, a married woman may, upon occa- 
 sion, defend a suit in equity separately from her hus- 
 band, and by leave of court she may do so without 
 the protection of another. Thus, if she claims in 
 opposition to him, or if she live separate from him, or 
 disapproves the defence he -n-ishes her to make, she 
 may obtain an order giving her leave to defend sepa- 
 rately; although, in general, her separate answer, 
 without a pre^'ious order, is to be suppressed as 
 irregularly filed. And yet when the husband, being 
 plaintifi" in a suit, makes his wife a defendant, and 
 treats her as a feme sole, she may answer separately 
 without an order. So, where a niarried woman obsti- 
 nately refuses to join in defence with her husband, 
 she may be compelled to make a separate defence, 
 and for that purpose process may be ordered to issue 
 against her separately. (Mitf Eq. PL 9 5 -'6; 1 Bl. 
 Com. 444, n (47); Moore v. Moore, 1 Atk. 272.) 
 
 But still it seems that a wife cannot sue or be sued 
 in equity bt/ a stranger, without her husband being 
 plaintiff or defendant, even in respect to her separate 
 property, except in those cases where she may be sued 
 separately at hw ; or except where the husband is not 
 within the jurisdiction of the court, and she is called 
 on to make good engagements which she has entered 
 into touching such separate property. And in the 
 latter case, the most the coui-t can do is to call forth 
 her separate property in. the hands of her trustees, 
 and to direct the application of it; for no personal 
 decree is admissible in such case, against a, feme covert, 
 for the payment of a debt. (1 Bl. Com. 444, n (47); 
 Fonbl. Eq. 105, n (p); 2 Stor. Eq. § 1368; Th. Co. 
 Lit. 134 & seq, 136-'7, n's (P), (Q) and (K) ; Mar- 
 shall V. Button, 8 T. E. 545 ; Norton v. Turvil, 2 P. 
 Wms. 144 ; Dubois v. Hole & ux, 2 Yern. 613 & n 
 
 Digitized by Microsoft® 
 
-OHAP. XV .J HUSBAND AND WIFE. 365 
 
 (1) ; Hulme v. Tenant (1 Bro. C. C. 16), 1 Wh. & 
 Tnd. L. C. 355). 
 5^. Doctrine touching Liability of Married Women to ■pun- 
 ishment for crime; W. C. 
 1^. Wife's Kesponsibility for Crimes committed in the 
 Husband's Presence. 
 
 In general the wife is not punishable for crimes 
 committed in the husband's presence, because she is 
 supposed to act under his coercion. But to this doc- 
 trine there are two classes of exceptions, namely : 
 
 (1). The crimes of treason, felonious homicide, and 
 robbery ; because of the heinousness of the offence, 
 and the necessity of protecting society to the utmost 
 against their commission ; and 
 
 (2). The offence of keeping a brothel; because, says 
 Blackstone, it touches the domestic economy or govern- 
 ment of the hoiise in which the wife has a principal 
 share ; and is also sucli an offence as the law presmnes 
 to be generally conducted by the intrigues of the 
 female sex. 
 
 A disposition, however, has been manifested by our 
 courts to recede from this doctrine in its common law 
 latitude, it being held in Yirginia, that although, with 
 the foregoing exceptions, there is a presumption of 
 the husband's coercion in respect to any crime which 
 is committed by the wife in his presence, yet it is only 
 a prima facie presumption, and may in any case be 
 repelled by showing that she acted fi-om her own free 
 and uncontrolled will. (1 Bl. Com. 444, & n (48) ; 
 4 do. 28-'9 ; Bac. Abr. Bar. & F. (G-) ; 1 Euss. Cr. 
 15, 16 ; Synops. Crim. Law, 11, 12 ; tlhl's case, 6 
 Grat. 706.) 
 2^. Wife's Eesponsibility for Crimes committed by her 
 not in her Husband's Presence. 
 
 For offences committed by the wife not in the hus- 
 band's presence, whether they be felonies or misdemea- 
 nors, she is no less amenable to punishment than if 
 she were unmarried ; save only that if the offence be 
 punishable by fine, the husband must be joined with 
 her in the prosecution, because upon conviction he 
 must pay the fine. But whatever corporal punishment 
 is inflicted, she must suffer alone. (4 Bl. Com. 29 ; 1 
 Euss. Cr. 17 ; Bac. Bar. & F. (G).) 
 Z^. Wife as Accessory to Husband's Crime. 
 
 The wife may be accessory before the fact to the 
 crime of her husband, by pursuading or advising him 
 to commit it. But she cannot be accessory after the 
 fact by ©jpSM b^i^s}mW^ that instance recog- 
 
366 HUSBAND AND WIFE. [bOOK I, 
 
 nizing her domestic allegiance and the impulses of 
 conjugal affection to be paramount to her social duty, 
 (1 Russ. Cr. 16, 19; 1 Hale, P. C. 516, 47; Bac. 
 Abr. Bar. & F. (Gr).) And this principle is now with 
 us confirmed by statute. (Y. C. 1873, c. 195, § 8.) 
 4^- "Wife's Committing Offences againd Husband's Pro- 
 perty. 
 
 A wife canno.t be guilty of any offence against the 
 property of her husband ; for husband and wife are 
 one person in law, and at marriage he endowed her 
 with such an interest in his property as that she can 
 commit no offence against it. Even a stranger who 
 takes the husband's goods with the wife's privity, is 
 not guilty of larceny, unless he were her paramour. ( 1 
 Euss. Cr. 19 ; Bac. Abr. Bar. & F. (G).) 
 6^. Doctrine touching Husband and Wife beinff witnesses^ 
 the one for or against the other. 
 
 In no cause, civil or criminal, are husband and wife 
 allowed to be evidence for or against each other ; and 
 that not so much because it is impossible their t ,sti- 
 mony should be fair and impartial, nor because of the 
 union of person and interests subsisting between them, 
 as because of considerations of public policy lying at 
 the basis of society. For it is essential to domestic 
 happiness that the confidence which ought to be main- 
 tained between husband and wife should be sedulously 
 cherished, and as far as possible be preserved unim- 
 paired. Hence neither consort is competent to tes- 
 tify to what was derived through the medium of 
 the confidence which the conjugal relation inspires, 
 even after such relation is terminated by death; and 
 hence, also, — whilst of late the restraints which wisely 
 forbade, in tenderness to human frailty, that one should 
 be a witness for or against himself, have been in civil 
 cases almost wholly withdrawn, — the incapacity of hus- 
 band and wife to testify for or against each other re- 
 mains unchanged; nor can any consent, founded as the 
 rule is on public policy, authorize the breach of it. (1 
 Bl. Com. 443, 444, n (46) ; 1 Greenleaf 's Evid. § 334, 
 337; 2 Kent's Com. 178-'9; V. C 1873, c. 172, § 22.) 
 But where the offence is directly against the person 
 of the wife (or doubtless of either consort), this rule 
 has been usually dispensed with. If the husband com- 
 mits, or is accessory to the commission, of any crime 
 of violence against the wife, or, as is supposed, the 
 wife against the husband, the injured consort is not 
 prohibited to testify against the aggressor, in order to 
 obtain theD^itfz&Hday (SiSidiS0^fi@)j surety of the peace, 
 
CHAP. XV.J HUSBAND AND WIFE. 367 
 
 or to procure punishment to be inflicted. Thus a wo- 
 man is a competent witness against a man indicted for 
 forcibly abducting and marrying her, if the force were 
 continuing until the marriage — of which fact she is 
 also a competent witness ; and this, according to the 
 better opinion, notwithstanding her subsequent assent 
 and voluntary cohabitation ; for otherwise the offender 
 would profit by his own wrong. So, also, the wife is 
 a competent witness against her husband on an indict- 
 ment for a rape committed by his procurement upon 
 her person, as in Lord Audley's (or Castlehaven's) case; 
 or for an assault and battery, or other violence, com- 
 mitted upon her. And her dying declarations, in case 
 of her homicide, are admitted against him like those of 
 a stranger. (1 Bl. Com. 443-'4, n (46) ; 1 G-reenl. Evid. 
 § 343, 346 ; 1 East. P. C. 357.) 
 
 It can scarcely be needful to observe that this rule 
 does not operate to exclude declarations and admis- 
 sions made by the wife as agent of the husband. These 
 when made in the progress of the transaction, are ad- 
 missible as the declarations and admissions of any other 
 agent, partly by virtue of the authority conferred by 
 the agency, and partly because such statements are 
 part of the res gestce, that is, of the transaction itself. 
 (1 Bl. Com. 444, n (46) ; 2 Kent's Com. l79-'80 ; 1 
 Greenl. Evid. § 185.) 
 3'. Contrast of the Sexes, in respect to their spveral Rights 
 and Privileges. 
 
 Blackstone concludes his dissertation upon the law of 
 husband and wife by remarking that even the disabilities 
 imposed on the wife are for the most part intended 
 for her protection and benefit. " So great a favorite," 
 he complacently observes, "is the female sex of the laws 
 of England !" (1 Bl. Com. 445.) 
 
 This sentiment of the learned and too eulogistic com- 
 mentator gives occasion to an indignant protest by Mr. 
 Christian, who, in a note to the passage in question, has 
 given a brief, but admirable summary of the principal 
 differences in the English law respecting the two sexes. 
 (1 Bl. Com. 445.) 
 W. C. 
 1^. Differences in respect of Crimes; W. C. 
 1^. Difference in respect of Homicide of Husband by 
 Wife, and of Wife by Husband. 
 
 Husband and wife, in the language of the law, are 
 styled baron and feme, which word baron (or lord), 
 says Mr. Christian, "ascribes to the husband not a 
 very coi0]i^^§,fi5^l9)7^^o/?^s, however, might be 
 
368 HUSBAND AND WIFE. [bOOK I. 
 
 deemed merely an unmeaning technical pkrase " (albeit 
 the phrase and its application are taken from the Scrip- 
 tures, — 1 Pet. iii. 6, 6), "if we did not recollect that, 
 at common law, if the baron kills his feme, it is 
 the same as if he had killed any other person; but 
 if the feme kills her baron, it is denominated a spe- 
 cies of treason {petit treason), and the law condemns 
 her to the same punishment as if she had killed the 
 King. And for every species of treason (though in 
 petit treason the punishment of men was only to be 
 drawn on a hu^rdle to the place of execution and 
 hanged), till 30 Geo. Ill, c. 48 (A. D. 1790), the sen- 
 tence of women was to be drawn and burnt alive. (I 
 Bl. Com. 445, n (49); 4 do. 204, & n (44).) 
 
 This distinction in Virginia is done away with, it 
 being declared by statute that there shall be no "dis- 
 tinction between murder and petit treason; but the 
 last mentioned offence shall be punished as murder." 
 (Y. C. 1873, c. 195, § 4.) And not only are all cruel 
 and unusual punishments prohibited by our Constitu- 
 tion (Ya. Const. Art. I, § 1^), but the death penalty 
 is by statute required to be inflicted always by hang- 
 ing. (Y. C. 1873, c. 203, § 9.) 
 2^- Diiference in respect to the allowance of the Benefit 
 of Clergy to the two sexes, respectively. 
 
 The benefit of clergy had its origin in the pious 
 regard paid by Christian princes to the primitive 
 Church. It was an exemption from punishment even 
 for heinons crimes, allowed by civil governments to 
 persons in holy orders, out of an exaggerated rever- 
 ence for the professed ministers of God, which the 
 clergy, when increased in numbers, wealth, and power, 
 claimed as an inherent v'l^t jure divijio, and in some 
 countries had their claim allowed, although never in 
 England to the extent of total exemption. Originally, 
 no one was admitted to the privilege of clergy unless 
 he was actually a priest in orders; but in that period 
 of universal ignorance, the ability to read was a mark 
 of such learning as it was supposed could belong only 
 to a clergyman, and was received as suflieient evidence 
 of the clerical character, entitling the individual who. 
 possessed the power to exemption from punishment, 
 in the civil courts, for the less heinous capital crimes. 
 Many changes were made in the doctrine from time 
 to time by statute, all tending, under cover of the 
 benefit of clergy, to mitigate the severity of the penal 
 code by substituting for the death penalty, in the 
 lower capSrQii/fefcbibje^BadsoeSiSnanslaughter, bigamy, 
 
CHAP. XV.J HUSBAND AND WIFE. '369 
 
 larceny, &c., in the case of persons not previously 
 convicted of like offences, the milder punishment of 
 burning in the hand, imprisonment, transportation, 
 &c. This leniency was not at first extended to per- 
 sons who, by no presumptipn, could be supposed to 
 possess a clerical character, and therefore it was not 
 enjoyed hy women. But in process of time, the benefit 
 of clergy was allowed without regard to the clerical 
 profession of the culprit, and by Statute 3 & 4 W. & 
 •M. c. 9, and 4 & 5 W & M. (A. D. 1692, 1694), with- 
 out regard to sex; and finally, by 7 & 8 G-eo. IV, c. 28 
 (A. D. 1828), it was abolished. But by the common 
 law, and for many ages, the distinction of sex was so 
 much regarded, that all women were denied the benefit 
 of clergy ; and until the Statutes of 3 & 4 W. & M. 
 and 4 & 5 W. & M., above named, they received sen- 
 tence of death, and might have been executed, for the 
 first ofi^ence, in the clergyable crimes of simple lar- 
 ceny, bigamy, manslaughter, &c., however learned 
 they were, because their sex precluded the possibility 
 of their taking holy orders ; though a man who could 
 read was for the same crime subjected only to burning 
 in the hand, &c. ; and if a -peer, to no other penalty 
 but the disgrace of conviction. (1 Bl. Com. 445, n 
 (49); 4 do. 365 & seq.; 4 Steph. Com. 121.) 
 
 In Virginia the earliest colonial statute upon the 
 subject was in 1732 (4 Hen. Stats. 325-'6), whereby 
 the distinction of sex was abolished, the faculty of 
 reading dispensed with, and the legislation of England 
 upon tlie subject, prior to 4 Jac I, was adopted. On 
 the establishment of the penitentiary system in 1796, 
 and the consequent restriction of capital punishment 
 in regard to free persons to a few of the more atrocious 
 felonies, — the less henious crimes of that grade being 
 punished by confinement in the penitentiary for va- 
 rious terms, graduated to the guilt and mischievous- 
 ness of the offence, — there was no longer occasion, as 
 • to fi-ee persons, for the device of benefit of clergy, which 
 as to them was accordingly abolished. In the case 
 of slaves, however, to whose situation penitentiary 
 pxmishment was supposed to be not adapted, the ben- 
 efit of clergy was retained for half a century longer, 
 having been finally abolished by act of 1847-'8. Onr 
 present statutes provide (V. C. 1873, c. 195, § 4) that 
 "there shall be no benefit of clergi/." See 1 R. C. 
 (1819) c. 171, § 10; Acts 1847-'8, p, 124, c. 120. 
 2s. Difiierences between the Sexes m respect to Civil Rights; 
 
 W. C. 
 
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370 HUSBAND AND WIFE. [bOOK I. 
 
 l*". The disposition of Intestate Property as between the 
 Sexes. 
 
 Intestate personal property in England, is equally 
 divided between males and females ; but a son, though, 
 younger than any of his sisters, is sole heir to the 
 whole of the realty. (1 Bl. Com. 445, n (49).) 
 
 In Virginia both classes of property as to which 
 decedent is intestate, pass without discrimination to, 
 and are equally divided amongst, males and females, 
 save only that, in the ascending line, the father is pre- 
 ferred to the mother, &c., the grandfather to the grand- 
 mother, &c. (V. C, 1873, c. 119, § 1, 10.) 
 2''. The Eights of Husband and Wife, respectively, in 
 each other's Chattels. 
 
 A woman's personal property becomes by marriage, 
 or may become in consequence of the reduction of it 
 into possession during coverture, absolutely the hus- 
 band's, and at his death he may leave it entirely away 
 from her ; but in England, if he die without will, she 
 is entitled to one-third of his personal property if lie 
 has children, otherwise to one-half. (1 Bl. Com. 445, 
 
 In Yirginia the doctrine is the same as to the hus- 
 band's title to the wife's chattels, as above described. 
 As to the wife's interest in the husband's personalty, 
 however, our law is considerably more favorable to 
 her than that of England. If the husband die intes- 
 tate, leaving a widow, and issue by her, the widow 
 shall be entitled to one-third of the surplus of his 
 personalty, remaining after payment of debts and ex- 
 penses of admiinistration. If there be no issue by 
 her, she is entitled absolutely to such of the personalty 
 acquired by the husband, in virtue of his marriage 
 with her, as shall remain in kind (that is, unchanged 
 in form) at liis death, after payment of his debts and 
 the expenses of his administration (so far only as the 
 other personal estate of the husband may be insufficient 
 for the satisfaction thereof); she shall also be entitled, 
 if the husband leave issue by a former marriage, to 
 one-third; if no such issue, to one-half of such sur- 
 plus. And of this distributive share of his personalty, 
 the widow cannot be deprived without her consent, by 
 her husband's will, although she may be by an irre- 
 vocable disposition made in his life-time, even if not 
 to take effect until after his death, and although de- 
 signed to defeat her claim as distributee. (Y. C. 1873, 
 c. 119, § 10, 12; Lightfoot's Ex'or v. Colgin, 5 Munf. 
 
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CHAP. XV.J HUSBAND AND WIFE. 371 
 
 42; Gentry v. Bailey, 8 Grat. 594; Ante, 299, & seq., 
 313, & seq.) 
 
 S*". The Eights of Husband and Wife, respectively, in 
 each other's Lands. 
 
 By the marriage the husband, at common law, be- 
 comes absolutely master of the profits of the wife's 
 freehold lands during the coverture ; and if he has by 
 her a living child born during the coverture, and he 
 survives the wife, he retains during his Hfe the whole 
 of the lands belonging to her, of which she was seised 
 at any time during the coverture, of an estate of in- 
 heritance, such that the issue of the marriage may in- 
 herit it as heir to the wife; an interest which is denomi- 
 nated his estate by the curtesy. But in a correspond- 
 ing estate of inheritance of the husband, the wife, if 
 she survives, is entitled for her life only to one third 
 (her dower); but this whether there was any child of 
 the marriage or not. (1 Bl. Com. 445, n (49) ; 2 
 Insts. Com. & Stat. Law, ch. VIII. 
 
 The doctrine in Yirginia is the same, except that 
 the widow is by statute with us entitled to dower (as 
 even at common law the husband might have had 
 curtesy) in equitable as well as in legal estates of in- 
 heritance, and even in rights of entry or of action. (Y. 
 C. 1873, c. 106, § 1, 2; Id. c. 112, § 17; 2 Insts. Com. 
 & Stat. Law, ch. YIII; Ante, 311 & seq.; 315 & 
 seq.) 
 
 4''. The Liability of the Sexes respectively, to Taxation, 
 without Representation. 
 
 The property of women is taxed without representa- 
 tion — that is, without the privilege of voting for re- 
 presentatives who impose the taxes. (1 Bl. Com. 445, 
 n (49).) 
 
 The same proposition holds good in Yirginia, and 
 it would probably be very detrimental to the public 
 weal were it otherwise. The power to influence the 
 suffrage of others is even more valuable tlian the pos- 
 session of the right of suffrage oneself; and that silent 
 and pervasive influence which, in Anglo Saxon com- 
 munities, is wielded now by women with prodigious 
 eflPect, going far to mould, whilst it moderates, the 
 opinions and action of society upon all questions of 
 enduring significance, is a mighter agency than the 
 sex would possess in the ballot. Women cannot be 
 injured by any legislation, but especially not by taxa- 
 tion, without inflicting a corresponding wrong on their 
 fathers, husbands, brothers and sons, whose votes will 
 afford tl^k^tej^ste^U^^^e^^^otection they need; so 
 
372 HUSBAND AND WIFE. [bOOK I. 
 
 that there seems no adequate reason for unsexing 
 them, filling their breasts with the fires of contending 
 factions, in which they are prone to indulge, when 
 they enter into them at all, with more rancorous and 
 unreflecting violence than men, and thus vexing 
 society . with unceasing bitterness and strife, from 
 which not even the sacred precincts of home would 
 be free. Woman's sphere of duty and happiness is 
 far removed from such contentions, in which she could 
 not engage without disastrous results to her proper in- 
 fluence and character. It must be remembered also 
 that, as mingling in the contests of the hustings would 
 he peculiarly repugnant to women of education and 
 refinement, the function of voting would devolve 
 chiefiy upon the classes least fitted to exercise it with 
 discretion, and most likely to abuse its opportunities. 
 If men of culture retire from the strife of a canvass 
 with disgust, unpatrioticallj- leaving the highest in- 
 terests of the body politic to be controlled too largely 
 by the designing, the corrupt, and the ignorant, the 
 wives, sisters and daughters of these delicate citizens 
 could hardly be expected to lay aside the instincts of 
 their sex, as well as the sentiments and tastes en- 
 gendered by their social relations, and soil their wo- 
 man's robes of purity with the mire of election con- 
 tests. 
 5^. The Protection afforded by Law to the Chastity of 
 Women. 
 
 The chastity of women is by the law sedulously 
 guarded against ^dolence, but it may be thought that 
 a less adequate protection is afforded against the arts 
 of the seducer. Thus, a parent can have no repara- 
 tion in damages from the betrayer of his daughter's 
 virtue, but by alleging that she is his servant, and that 
 by the consequences of the seduction he is put to 
 charge and expense, or is deprived of the benefit of 
 her services, or where the seducer is at the same time 
 a trespasser upon the premises of the parent. It is 
 true, however, that when by such forced circumstances 
 the law is enabled to take cognizance of the wrong, 
 juries disregard the pretended injury, and give damages 
 commensm'ate, as far as damages can be commensu- 
 rate, to the wound inflicted on the parent's feelings and 
 the dishonor attendant upon the injury. (1 Bl. Com. 
 445, n (49) ; Edmundson v. Mitchell, 2 T. R. 4, 5 ; 
 Irwin V. Dearman, 11 East. 23 ; Andrews v. Askey, 
 8 Carr. & P. (34 E. C. L.) 7; Sedgw. Dam. 512, &c.) 
 
 The EUgMml byWS£gbm^@L respect to the civil re^ 
 
CHAP. XV.J HUSBAND AND WIFE. 373 
 
 dress, is the same, except that it is provided by statute 
 that " an action for seduction may be maintained 
 without any allegation or proof of the loss of ike ser- 
 vices of the female by reason of the defendant's wi-ong- 
 ful act " (V. C. 1873, c. 145, § 1), which, it will be 
 observed, dispenses with the averment and proof of 
 acts of service, but not of the relation of master and 
 servant. (Lee v. Hodges, 13 Grat. 726 ; White v. 
 Campbell, Id. 573.) But a much more material change 
 in the criminal aspects of the subject is wrought by a 
 yet more recent statute, whereby it is declared that to 
 seduce and have illicit connexion with a^ unmarried 
 female of previous chaste character, ummt' 2)romise of 
 marriage, shall be a, felony, punished by confinement 
 in the penitentiary from one to ten years. (Y. C. 
 1873, c. 187, § 16.) 
 6''. The protection afforded iyZatu to Female Reputation. 
 
 Mr. Christian complains vehemently that in Eng- 
 land female ra-tue, by the temporal law, is perfectly 
 exposed to the slanders of malignity and falsehood; 
 for any one may proclaim in conversation that the 
 purest maid or the chastest matron is the most mere- 
 tricious and incontinent of women, with impunity, or 
 free from the animadversions of the temporal courts. 
 Thus, female honor, which is dearer to the sex than 
 their lives, is left by the common law to be the sport 
 of an abandomed calumniator. (1 Bl. Com. 445, n 
 (49) ; 8 Do. 125.) 
 
 This is certainly a very highly colored representa- 
 tion of the defect of the common law in the particular 
 in question. It is true that words imputing to a woman 
 a want of chastity are not, by that law, actionable^er 
 se, — that is, without alleging and proving special in- 
 jury therefrom, — but unless special injury were proved, 
 even though the words were actionable per se, the 
 damages would be, in general, merely nominal. The 
 disadvantage, therefore, of the words not being action- 
 able _^er se, is less than at first sight would be supposed, 
 and far less than is suggested by Mr. Christian's rhet- 
 orical statement. However, in Virginia the embar- 
 rassment, such as it is, is removed by a statute which 
 declares that all words which, fi'om their usual con- 
 struction and common acceptation, are construed as 
 insults, and tend to violence and breach of the peace, 
 shall be actionable ; and no demurrer shall preclude a 
 jm-y from passing thei-eon. (V. C. 1873, c. 145, § 2 ; 
 Brooks V. Callaway, 12 Leigh. 466 ; Moseley v. Moss, 
 6 Grat.^^;3^aJl5^^^^^on, 8 Grat. 27.) 
 
374 PAEENT AND CHILD. [bOOK I. 
 
 CHAPTER XVI. 
 
 Of Paeestt and Child. 
 
 3*. Kelation of Parent and Child. 
 
 The next and most universal relation in society is that 
 between parent and child. 
 
 Children are of two sorts, legitimate and spm-ious, or 
 iastards, each of which will be considered in its order, and 
 first of legitimate children. (1 Bl. Com. 446; 2 Steph. 
 Com. 314; Keeve's Dom. Eel. 270 & seq.; Bac. Abr. 
 Bastardy) ; 
 W. C. 
 1^. Legitimate Children. 
 
 It is proposed to state, (1), The definition of a legiti- 
 mate child ; (2J, The duties of parents to legitimate chil- 
 dren ; and (3), The powers of parents in respect to legiti- 
 mate children. 
 1'. Definition of a Legitimate Child. 
 
 A legitimate child is defined at common, law to be 
 one that is born in lawful wedlock, or within a com- 
 petent time after its termination, where there is no imr 
 possibility of procreation by the husband. (1 Bl. Com. 
 446; 2 Steph. Com. 314; Eeeve's Dom. Eel. 270; Bac. 
 Abr. Bastardy, (A).) 
 
 Pater est quern niiptim demonstrant is the rule of the 
 civil or Eoman law; and this holds with the civilians, 
 whether the nuptials happen before or after the birth of 
 the child. In England the riile is narrowed, for the 
 nuptials must be precedent to the birth ; of which more 
 will be said in treating of bastards. (1 Bl. Com. 446.) 
 In Virginia such changes have been wrought by stat- 
 ute as materially to modify the definition. Having re- 
 gard to those changes, we may define a legitimate child 
 as one }>orn in wedlock, whether lawful or not (where 
 procreation by the husband is not impossible), or within 
 a competent time after the coverture is determined ; or 
 if born out of wedlock, where the parents afterwards in- 
 termarry, and the father recognizes the child, either be- 
 fore or after the marriage. (V. C. 1873, c. 119, § 6, 7; 
 Ash V. Way's Adm'r, 2 Grat. 203 ; Stones v. Keeling, 5 
 Call. 143; Watkins & ux v. Carlton, 10 Leigh, 560.) 
 2'. The Duties of Parents to Legitimate Children. 
 
 The duties of parents to their legitimate children 
 range themselves under the heads following, namely: 
 (1), Their maintenance ; (2), Theii' protection ; and (3) 
 Their education ; 
 W. C. Digitized by Microsoft® 
 
OHAP . XVI.] PAEENT AND CHILD. 376 
 
 1^. The Duty of Maintenance of Legitimate Children. 
 
 The wants and the weakness of childhood render 
 maintenance by some one other than the child himself 
 indispensable, and the voice of nature indicates the 
 parent as the fittest person to afford it. The duty of 
 maintenance on the part of parents in respect to their 
 infant children is, therefore, a principle of natural law, 
 the right to which, on the part of such children, is in- 
 sisted upon as a ■perfect right by the most eminent autho- 
 rities, as, amongst others, by Puffendorf and Montes- 
 quieu. Thelattervery justly observes that the ordinance 
 of marriage in civilized States is built, in part, on this 
 natural obligation of the father to provide for his chil- 
 dren; for marriage ascertains and makes known the 
 person who is bound to fulfil the duty ; whereas, in 
 promiscuous and illicit conjunctions, the father is un- 
 known, and the mother, besides being generally want- 
 ing in ability, finds a thousand obstacles in her way — 
 shame, remorse, the constraint of her sex, and the 
 rigor of social laws — that stifle her inclinations. (1 
 Bl. Com. 447 ; Puffend. Nat. Law, B. IV, c. xi, § 4 ; 
 Montesq. Sp. Laws, B. XXIII, c. 2; 2 Kent's Com. 
 189 ; Eeeve's Dom. Eel. 283.) 
 
 The municipal laws of all well regulated societies 
 take care to enforce this duty ; though Providence has 
 done it more effectually by implanting in the heart of 
 every parent that unquenchable affection which not 
 ■even the deformity of person and mind, nor the wicked- 
 ness, ingratitude, and rebellion of children can totally 
 extinguish. (1 Bl. Com. 447.) 
 
 The civil or Roman law obliges the parent to provide 
 maintenance for his offspring. Nay, it does not suffer 
 him at his death to disinherit his child without ex- 
 pressly giving his reasons for so doing; and fourteen 
 reasons are reckoned up which may justify such dis- 
 inherison. If the parent alleges no reason, or a bad or 
 false one, the child may set the will aside, tanquam 
 testamentum, inofficiosum, a testament contrary to the 
 natural duty of the parent. And it is remarkable un- 
 der what color the children are to move for relief in 
 Buch cases — namely, by suggesting that the parent had 
 lost the use of his reason when he made the inofficious 
 testament. And this, as Puffendorf observes, is not to 
 bring into dispute the testator's power of disinheriting 
 his own offspring for sufiicient reasons, but to examine 
 the motives upon which he did it ; and if they are 
 found defective in reason, then to set the testament 
 aside. ]S!l!i|i;/feeW'&^SWyt?-Bsfeff®onsidered as going too 
 
376 PARENT AND CHILD. [bOOK I. 
 
 far. Every man ought to have, hy the laws of society, 
 power to dispose of his own property ; and, as Grotiua 
 very well distinguishes, natural right obliges a parent 
 to give a necessary maintenance to children, at least 
 during the period of infancy ; but what is more than 
 that, they can claim only by the favor of their parents,, 
 or the positive constitutions of the municipal law. (1 
 Bl. Com. 44:7-'8 ; Puifend. Nat. Law, B. lY, c. xi, §7; 
 G-rot. de Jur. Bel. &c. B. II, c. 7, § 3.) 
 
 Let us next see what provision o\ir own law has made 
 for enf orciag this natural duty. In England the limits 
 of the obligation, and the manner of coerciag its per- 
 formance, are prescribed by sundry statutes, as 43 Eliz. 
 c. 2, and others ; and as these have not been enacted in 
 Yirgiaia, it has been gravely questioned by high autho- 
 rity (1 Tuck. Com. (B. I.) 126,) whether with us, 
 governed as we are in this particular by the common 
 law alone, there is any perfect legal obligation upon a 
 parent to afford necessary maintenance to his infant 
 children. In England the common law courts, after 
 some fluctuations, seem to have settled down upon the 
 doctrine that a parent is not obliged, independently of 
 statute, to pay for necessaries furnished an infant chUd, 
 and that it is only by virtue of an actual or implied au- 
 thority from him that he can be charged with anything, 
 even necessaries, supplied to such child. (1 Pars. Cont.. 
 247 & seq. and notes ; Mortimore v. Wright, 6 M. & 
 W. 482 ; Shelton v. Springett, 11 Com. B (73 E. C. 
 L.) 452.) 
 
 Looking at the question, however, in the light of 
 common sense, it would seem that, as common law is 
 common reason, and enforces in general all definite pre- 
 cepts of natural duty, as this is ; as the parent (or at 
 least the ya^Aer), is entitled to all the earnings oi\As 
 infant child; as provision is made by statute (Y. C. 
 1873, c. 121, § 5,) to compel a putative father to sup- 
 port his bastard children, and also to pay the expenses 
 of his infant child in the State lunatic asylum (Y. C. 
 1872, c. 82, § 53) ; and as it has always been held in 
 equity that a father, if of ability, is bound to maintain 
 his minor children, even though they may have property 
 of their own, the conclusion should be clearly in favor 
 of the common law obligation of the father at least, 
 to support his infant offspring ; and so, according to Mr. 
 Parsons (1 Pars. Cont. 251 & seq.), is the tenor of 
 American authority; but certainly with an imposing 
 array of dissent. 
 
 WhetHSigtf;zfid;]fs$i-/Vf(toPS0ill®t fully within these rea- 
 
CHAP. XVI.J PARENT AND CHILD. 377 
 
 sons, is bound (if there be no father), to maintain her 
 children whilst they are under age is more than doubt- 
 ful ; the weight of authority, both in England and the 
 United States, being against her liability. (1 Pars. Cont. 
 256 & n (c) ; 2 Kent's Com. 191.) 
 
 In Virginia the doctrine is believed to be established 
 that the common law holds the father at least, legally 
 boimd to suply necessanes to his infant child ; and that 
 he may therefore be charged with the contracts of such 
 child for necessaries (as a husband may be on the con- 
 tracts of his wife), on the score of duty, as well as on 
 the score of agency. On the score of duty he is liable 
 only for strict necessaries (not without reference, how- 
 ever, to the father's fortune and condition in society, 
 or the condition which he has allowed his child to as- 
 sume) ; and, moreover, for such necessaries as have not 
 been supplied by the parent or from any other source. 
 And the father cannot impair this liability, arising out 
 of his duty, by any general notice or prohibition, al- 
 though perhaps he may thereby preclude transactions 
 with particular persons. But the liability ceases where 
 the duty ceases, or is performed. On the score of agency, 
 the liability may extend, of course, as far as the autho- 
 rity, whether express or implied, extends ; and is capa- 
 ble of being terminated, as we have seen {Ante p. 223, 
 5*), other agencies are, by revocation, &c. (1 Bl. Com. 
 447; 2 Kent's Com. 191 ; 1 Pars. Cont. 253 & seq. and 
 notes; Van Valkinburg v. Watson, 13 Johns. 480; 
 Easley v. Craddock, 4 Band. 423; Myers v. Wade, 6 
 Band. 448 ; Evans v. Pearce, 15 Grat. 515 ; Penn v, 
 Whitehead, 17 Grat. 503 ; Griffith v. Bird & als, 22 
 Grat. 80; Hughes v. Hughes, 1 Bro. C. C. 387, & note; 
 Andrews v Partington, 3 Bro. C. C. 60; Munday v. 
 Howe, 4 Bro. C. C. 223; Hoste v. Pratt, 3 Ves. Jun'r, 
 733; Maberly v. Turton, 14 Ves. 499; Greenwell v. 
 Greenwell, 5 Ves. 197, & notes.) 
 
 In England, they have two statutes designed to 
 relieve the parish of the support of impotent persons 
 who have near relatives able to take care of them,^ 
 namely, the statutes of 43 Eliz. c. 2, and 5 Geo. 1, c. 
 8, &c. They require not only the father and mother, 
 but also the grand-father and grand-mother of the im- 
 potent poor, to maintain them; but only in respect to 
 such as are unable to work, through infancy, age, dis- 
 ease, or accident, and then to provide necessaries only. 
 The common law imposes no obligation save on the 
 father (possibly on the mother also), to afford support 
 to his clgjIf^g^cSUfcgl' A$fp^jfi¥Oj5!8g)no children but those 
 
378 PAEBNT AND CHILD. [BOOK I. 
 
 under twenty-one years of age. Hence, a man is not 
 bound to support his infant son's wife or children, nor 
 the infant children of his own wife by a previous mar- 
 riage, at least not under the principle in question; but 
 if the daughter-in-law, or step-children, live in his 
 family, and are treated as a part thereof, he will be 
 liable on the ground of agency, for supplies procured 
 for them, as for the rest of his family, by his wife, 
 unless he gives notice to the contrary. An idea at one 
 time prevailed (which receives Blackstone's sanction), 
 that as the wife, before her second marriage, if of suf- 
 ficient ability, was charged with the support of her 
 children, the obligation, after the marriage, like her 
 other debts, devolves on her husband ; but later resolu- 
 tions have ascertained this to be a fallacious analogy, 
 the wife herself being discharged by her second mar- 
 riage from any future liability, even supposing (what 
 is believed to be not true), that any liability attaches 
 to her at any time. (1 Bl. Com. 449 ; Rex v. Dempson, 
 
 2 Stra. 95.5; Eex v. Munday, 1 Stra. 190; Cooper v. 
 Martin, 4 East. 82; Tabb v. Harrison, 4 T. E. 118; 
 Billingsley v. Crickett, 1 Bro. C. C. 68.) 
 
 .As germane to the present topic, it is expedient to 
 enquire into the doctrines which prevail touching the 
 maintenance of an infant out of his own fortune, if he 
 has one The principle, as already indicated, is, that 
 if the father be of sufiicient ability, he must himself 
 maintain the infant child, without having any allow- 
 ance therefor out of the child's estate. But if the 
 father be himself unable to support and educate the 
 child in a manner corresponding to the fortune he is to 
 enjoy, a court of equity will decree such a sum to be 
 contributed periodically, from the infant's estate, as 
 will suflice to accomplish the object in view. But 
 otherwise, the infant's property will be allowed to 
 accumulate for his own benefit, unless, indeed, a legacy 
 were left him expressly for maintenance. And where 
 the father is not of ability, maintenance will be decreed 
 for the time past, as well as to come, but without in- 
 terest on the arrears. (Jackson v. Jackson, 1 Atk. 515 ; 
 Fawkner v. Watts, Id. 408; Butler v. Butler, 3 Atk. 
 60; Jeffreys v. Jeffreys, 3 Atk. 123; Darley v. Darley, 
 
 3 Atk. 399; Hughes v. Hughes, 1 Bro. C. C. 387, & n 
 (1); Andrews v. Partington, 3 Bro. C. C. 60, &n's (1) 
 and (a); Munday v. Howe, 4 Bro, C. C. 223; Hostev. 
 Pratt, 3 Ves. 733; Simon v. Shaw, 9 Yes. 285, 288; 
 Collis V. Blackburn, Id. 470 ; Maberly v. Turton, 14 
 Ves. 499P^O?6(flly(Mgr(MeHa v. Mellish, 14 Ves. 
 
CHAP. lYl.] PARENT AND CHILD. 379 
 
 516 ; Evans v. Pearce & als, 15 Grat. 515 ; Griffith & 
 al V. Bird & als, 22 Grat. 80.) 
 
 Otir law has made no provision , like the Koman law, 
 to hinder a parent from disinheriting his children by 
 will. It leaves every man's property at his own dis- 
 posal (save what is reserved for a surviving wife), 
 wisely conceiving that the interests of society are 
 thereby, upon the whole, best subserved, honest indus- 
 try, enterprise and thrift promoted, and the obedience 
 and subordination of children retained. Heirs and 
 children, hewever, are favorites of the courts of justice, 
 and cannot be disinherited by any dubious or ambigu- 
 ous words, there being required the utmost certainty 
 of the testator's intention to take away the right of an 
 heir; or, as it has been otherwise expressed, plain 
 words of gift, or necessary implication, are required in 
 order to disinherit an heir at law. Hence, a man's 
 heirs, or next of kin, are not deprived of what the law 
 gives them merely by his testamentary declaration, 
 however formal, that they shall not have it, if he does 
 not give his estate to some one else. For, besides the 
 favor extended to the heir, if it were not so, as the law 
 appoints no one else but the next of kin to take the 
 property, and as tlie decedent has given it to no one 
 else, there would be that absence of ownership, which is 
 always deprecated and sought to be avoided. (1 Bl. 
 Com. 450; Hobart v. Suffolk, 2 Vern. 6M; Crabtree 
 V. Bramble, 2 Atk. 689; Parsons v. Freeman, 3 Atk. 
 747 ; Habergham v. Vincent, 2 Yes. Jun. 225 ; Berry 
 V. Usher, 11 Ves. 92, & n (2); Dyer v. Dyer, 19 Ves. 
 614; Boisseau v. Aldridge, 5 Leigh, 222.) 
 
 It exempliiies this favorable concern for children 
 that the English courts have always held that a will of 
 lands, executed with all the formalities of law, was re- 
 voked iy implication (although the statute which pre- 
 scribed the formalities for wills, 29 Car. II, c. 3, was 
 silent on the subject), if the testator afterwards mar- 
 ried and has issue; and in Virginia we have hj statute 
 carried this doctrine farther still, by declaring in terms 
 that the will shall be revoked wholly or partially, ac- 
 cording to circumstances, by the marriage alone, or by 
 the subsequent birth of issue alone, supposing such is- 
 sue to be merely pretermitted, and not disinherited. 
 If the testator had no child at the date of the will, and 
 issue is afterwards born, the will, except so far as it 
 provides for the payment of the testator's debts, is to 
 be construed as if the devise or legacy had been ex- 
 pressly liBi^'ie^ bfiWiS^l^ft®^lj in case the testator 
 
380 PAKBNT AND CHILD. [bOOK I, 
 
 should die under age, unmarried, and without issue. 
 And if at the date of the will, the testator had a child 
 living, and a child be born afterwards, -who is neither 
 provided for nor expressly excluded, but only preter- 
 mitted, such after-born child, or any descendant of his, 
 is to succeed to such portion of the decedent's estate as 
 he would have been entitled to if the testator had died 
 intestate, towards raising which portion the legatees 
 and devisees are to contribute ratably. But if such 
 after-born child, or descendant, die under the age of 
 twenty-one years, unmarried and without issue, his 
 portion of the estate, or so much as remains unex- 
 pended in his support and education, shall revert to the 
 person to whom it was given by the will. (V. C. 1873, 
 c. 118, § 17, 18.) 
 2s. The Duty of Protection of Legitimate Children. 
 
 From the duty of maintenance, we may easily pass 
 to that of protection, which is also a duty imposed on 
 parents by the law of nature, but by the mi;nicipal law 
 of all well-ordered societies is rather permitted than enr 
 joined; nature, in this respect, working so strongly as 
 to need rather a check than a spur. A parent may 
 uphold his child in a law-suit without incurring the 
 guilt of maintenance. He may also justify an assault 
 and battery in defence of his child; and the law ex- 
 tends as much indulgence to the rage of a parent for 
 an injury iniiicted on his child, as if it had been done 
 to himself. Thus, where a man's son was beaten by 
 another boy, and the father went near a mile to find 
 him, and then revenged his son's wrong by beating the 
 other boy, of which beating he afterwards unfortunately 
 died, it was held to be not murder, but manslaughter 
 merely. Such indulgence does the lav extend to the 
 workings of parental affection and the frailty of hu- 
 man nature. Where, however, the act of the parent 
 does not follow close upon the provocation, and whilst 
 he is in the delirium, of passion occasioned thereby ; 
 when a reasonable cooling-time has elapsed, or the pas- 
 sion has actually cooled, the homicide is held to be 
 Tnurder. The precise time to be allowed for parental 
 anger, provoked by injury to a child, to subside, is not, 
 and cannot be exactly determined. It is certain, howr 
 ever, that twentyfour hours is more than sufficient; 
 and whatever be the space, violence committed after- 
 wards is to be referred, not to passion, but to malice, 
 and the fell spirit of revenge, for which the law has no 
 toleration, how great soever the injury which may pro- 
 Digitized by Microsoft® 
 
•CHAP. XVI.J PARENT AND CHILD. 381 
 
 voke it. (1 Bl. Com. 450 ; Crim. Synops. 46, 48-'9 ; 
 McWhkt's Case, 3 Grat. 595.) 
 3s. The Duty of Education of Legitimute Children. 
 
 The last duty of parents to their children is that of 
 giving them an education suitable to their station in 
 life, a duty pointed out by reason, and scarcely inferior 
 in importance to that of maintenance itself. For, as 
 Puffendorf well observes (Law of Nat.B. VI, c 2, § 12), 
 it is not easy to imagine or allow that a parent confers 
 any considerable benefit upon his child by bringing 
 him into the world if he afterwards entirely neglects 
 his culture and education, and suffers him to grow up 
 like a mere beast, to lead a life useless to others and 
 shameful to himself. It is, however, a duty too unde- 
 fined to be easily enforced against parents by the mu- 
 nicipal law (as that of maintenance may be), and the 
 common law does not attempt it. Hence, if a stranger, 
 unsolicited, pays for the education of an infant child, 
 he cannot constrain the father to indemnify him unless 
 he specially promised so to do. Thai the common law 
 is wise in forbearing to enforce upon parents the ac- 
 knowledged moral duty of educating their children 
 appears not only from the vagueness of the obligation, 
 but also from tlie ascertained fact that the parents of 
 nearly one-half of those of an age to be educated, even 
 in prosperous communities, are for the most part dis- 
 abled hy poverty from effecting it at their own ex- 
 pense. "See 1 Bi. Com. 450-'51 ; 2 Kent's Com. 195; 
 Kay's Report; Bigg's National Education. 
 
 If, then, the general education of the people is, or 
 ought to be, an object to be desired, it must be at- 
 tained otherwise than through the private agency of 
 parents themselves. It can be accomplished only by 
 the interposition and aid of government in some form 
 or other. Education is undoubtedly a very great boon 
 to the person who obtains it, and, indirectly, it is an 
 important advantage to those connected with him. 
 But it is not in the aspect of an individual benefit that 
 it may be legitimately bestowed at the public expense. 
 Charity constitutes no part of the functions of govern- 
 ment. The common treasure is not to be employed 
 save for objects which concern the whole community. 
 That individuals are peculiarly and directly benefited 
 by a policy which confers benefits upon the whole, is 
 not an argument in favor of the policy; but, on the 
 other hand, it is no argument against it. In order, 
 therefore, to justify the application of public money to 
 -educatio]^^^-gg|g/og^y\^fcj^§g^^ proved that the edu- 
 
382 PAEENT AND CHILD. [bOOK I. 
 
 cation conferred is for the public advantage, and that it 
 is beyond the reach of private eifort. 
 
 That the whole (jf every community is deeply inter- 
 ested in the education — moral, mental and physical — 
 of every person within its limits, will seem to many, 
 probably to most, little less than an axiom. But as ia 
 the ardor of debate it is sometimes questioned, it may 
 not be amiss to bring together in brief the prominent 
 considerations which are supposed to establish the pro- 
 position. And although the views to be presented con- 
 stitute an essential ♦part of the argument in favor of a 
 system of public instruction, it is not to be understood 
 that they contemplate the undervaluing, or lessening 
 in any manner, of the moral obligation of parents to see 
 to the education of their children. The influence and 
 teachings of home are inestimable, especially in those 
 most vital particulars of religion and morality; and 
 the most successful and pervasive system of free schools 
 will leave still ample scope for them all, with the added 
 advantage of greater eflfectiveness from the government 
 supplying that positive instruction which one-half of 
 the parents in every society are incompetent to afford. 
 To proceed to the considerations: 
 
 (1). General education tends to preserve the peace and 
 order of society. 
 
 It is admitted that ignorance and vice are not inva- 
 riable concomitants any more than knowledge and vir- 
 tue, and that to train the head only, without a propor- 
 tionate culture of the moral faculties, is to pretermit 
 one principal purpose of education in its justest sense; 
 but the understanding and the heart may best be de- 
 veloped and disciplined in conjunction, and whatever 
 exceptions we may fancy, or find to exist, yet taking a 
 comprehensive survey of mankind, it cannot be denied 
 that, other things being equal, the best instructed peo- 
 ple are in general the most orderly, and in the main 
 the most virtuous people. 
 
 (2). General education tends to ifnprove the political 
 condition of society. 
 
 It is tmiversally true that " those that think must 
 govern those that toil," unless the toilers shall be taught 
 to think also ; and in popular governments, especially 
 in those where the right of sufEi-age is limited by no 
 other condition than those of sex and adult age, the 
 general education of the people can be deemed nothing 
 less than an indispensable political requirement. How 
 else can there exist that intelligent appreciation of pub- 
 lic affaii-^^^^foj^l^/cjpgggj^upon the existence of 
 
CHAP. XTI.J PAEENT AND CHILD. 383 
 
 which popular government is based, and without which 
 the general interests can hardly fail to become speedily 
 the prey of venal and corrupt men ? 
 
 (3). General education promotes the physical comfort 
 and the material prosperity of society. 
 
 As intelligence discovers and employs new appliances 
 of domestic convenience, developes new sources of 
 wealth, and makes labor more remunerative, by econo- 
 mizing expenditm-e and amplifying results, so education, 
 which is a principal source of intelligence, is so great a 
 creator of material strength that the proverbial philoso- 
 phy of mankind announces emphatically that " know- 
 ledge is power." 
 
 Invention is more likely to be busy amongst persons 
 of equal apprehension and extent of information, whose 
 hands are habitually engaged with the actual process of 
 work, than amongst those who, not being operatives, 
 have no special need to make their "wit save their 
 bones." If, therefore, every operative be furnished with 
 the rudiments of knowledge, we may expect a far richer 
 development of new discoveries, and a more abundant 
 utilization of the powers of nature than if the know- 
 ledge of these powers be confined to such as have no 
 special daily occasion to employ them. To supply 
 knowledge to the working classes is to bring brains 
 and hands into conjunction, and to subject both to the 
 stimulus of social needs instead of leaving them to work 
 separately, — hands in dull despair, and brains in aim- 
 less and unpractical speculation ? 
 
 (4). General education tends to augment the productive- 
 ness and the market value of the lands of a community. 
 
 That the productiveness of lands will be enhanced 
 by the increased intelligence of those employed in their 
 cultivation, is self-evident as a general truth; and espe- 
 cially is it so if the intelligence pervades, not the class 
 of proprietors and managers only, but also of common 
 laborers and operatives. The man whose hands have 
 the work to do, and whose eyes are every minute upon 
 the subject of his labors, if he has the rudiments of 
 knowledge, or even so much of the habit of enquiry 
 awakened as to notice phenomena, and to be accustomed 
 to investigate the " why and because," is pretty sure to 
 make a progress and to develope improvements, which 
 it would be unreasonable to look for where labor is not 
 intelligent, and intelligence is not laborious. 
 
 The market value of lands of coiirse increases with 
 their productiveness, but where general education pre- 
 
 vails it is^^te^)i^^/^cte^^ g^^^*^^ ^r'ie^ ^""^ 
 
384r PARENT AND CHILD. BOOK 1. 
 
 virtue of society, the diminution of crimes of violence 
 and brutality, the superior standard of comfort, the 
 elevation of tastes, and the progressive refinement of 
 the community. 
 
 These considerations then, (to vrhich if there were 
 occasion others scarcely less potent might be added), 
 seem satisfactorily to demonstrate that the lohole of every 
 eommunity is vitally concerned in the education — moral, 
 mental and physical — of every person belonging to it. 
 The object, therefore, is one proper for governmental 
 intei"position (like the construction of roads and the 
 maintenance of the poor), if it cannot be otherwise 
 attained ; and the question is simply, as in other cases 
 of the interference of government to achieve general 
 benefits which indi%'iduals are incompetent by their un- 
 aided eiforts to reach, as to the extent and the best 
 method of intervention. 
 
 There are but f om- modes of general education pos- 
 sible — ^namely : 
 
 1. Every parent may be left to pro\dde for his chil- 
 di'en such instruction as he can, without the govern- 
 ment concerning itself therewith. 
 
 2. The government may undertake to assist the in- 
 digent alone, leaving the rest of the community to shift 
 for themselves. 
 
 3. The government may give partial aid to a^Z, leav- 
 ing each some additional expense, much or little, to 
 bear, in the shape of tuition fee, or otherwise. 
 
 4. Tlie government may provide, at the common 
 expense, for the complete elementary instruction of all 
 classes, just as it provides for the protection of all. 
 
 It so happens that all these systems have been seve- 
 rally tried for long periods of time in enlightened 
 countries, so that we know accurately what each can do 
 towards the desideratum of instructing the people; the 
 results in each instance being in accordance \vitli the 
 principles indicated. 
 
 Thus, under the first system, which may be repre- 
 sented by England (which, however, has recently ex- 
 changed it for the third), the density and pervasiveness 
 of the popular ignorance are well calculated to alarm, 
 as it has alarmed, the government, threatening to be 
 the more dangerous in proportion to the freedom of 
 the institutions amongst which it is allowed to subsist. 
 
 In Virginia, the second system has disclosed results 
 in a high degree unsatisfactory, and since 1870 has 
 been abandoned forthe/owr<A; as it also has been, for 
 
 the most ^}^ft}^^\^-^^Q^m4 ^^^ S°i^*^ ^"^^ ^^'*- 
 
CHAP. XVI. J PARENT AND CHILD. 385 
 
 The third system illustrated its imperfections in New 
 York, Pennsylvania, and several States of the North- 
 west, for a number of years, until about 1854, the two 
 States first named exchanged it for the fourth ; as before 
 or since, most, if not all of the Northwestern States, 
 have also done. 
 
 The fourth system has been carried out with persis- 
 tency and marked success, in Prussia, Switzerland, 
 Holland, and New England, and for a score of years 
 in New York, Pennsylvania, and the States of the 
 Northwest, reducing the percentage of "illiterates" in 
 those several communities to a veiy low figure. 
 
 In the light of these examples, and of the sugges- 
 tions which preceded them, the conclusion seems to be 
 amply warranted that it is the interest and the duty of 
 the whole of any State to see to it that primary educa- 
 tion is secm-ed for every child within its limits; and that 
 the only icay to accomplish this result is by maintaining 
 primary schools at the public charge, freely accessible to all, 
 'Without individual expense to any. 
 
 How far it may be also the duty of the State to 
 establish and maintain higher institutions of learning, 
 calculated to impart the most liberal education, is 
 determined by very similar considerations, modified, 
 however, in the application, according to the diff'er- 
 ence in the subject, and in the surrounding circum- 
 • stances. 
 
 It is certain that the possession of a higher order of 
 education by a due proportion of a community, if not 
 as indispensable to the well-being of the whole, as a less 
 degree of instruction for all, is yet of such value as not 
 to allow of its being overlooked, nor of a provision for 
 it, in some way, being pretermitted. If there be no 
 higher seminaries, and no more advanced education 
 than the common schools can afford, the common 
 schools themselves, for want of duly qualified teachers, 
 for want of an elevated standard of attainment, and for 
 want of an enlightened public sentiment, must lan- 
 guish and decline; whilst very much of the industrial, 
 political, and moral prosperity and advancement of the 
 State, for want of wise and deeply-instructed directors 
 and guides, must come to a pause, and go backward to 
 decay. 
 
 The question as to such higher institutions (their ne- 
 cessity being admitted), is, first, whether they can be 
 erected and maintained without contribution from the 
 State ; and second, whether, supposing them to exist, 
 it is requisite to make them, as in the case of common 
 Di^^zed by Microsoft® 
 
386 PAEENT AND CHILD. [bOOK I. 
 
 schools, free to all. The solution of the first proposi- 
 tion 'depends on the wealth or poverty of the people. 
 In Virginia there never has been, and far less is there 
 now, such a superfluity of disengaged capital as to justify 
 the expectation that an institution of the highest grade 
 can be created or maintained by private benefactions. 
 If such a seminary is to exist at all, it must, under or- 
 dinary circumstances, derive its origin and a liberal 
 annual maintenance from the public treasury. The 
 great annual expense attending the administration of a 
 collegiate institution of the highest class renders a con- 
 siderable endowment, either from a fixed capital or 
 from an annual appropriation, an indispensable condi" 
 tion. Such a seminary cannot be self-sustaining at 
 any time. If the pupils are required to pay more than 
 one-thii'd to two-thirds of the total necessary cost of 
 operating an institution of that character, it becomes 
 too oppressive, and a very large proportion of the youth 
 of the land must be deprived of its advantages, whilst 
 the institution itself must soon expire from inanition, 
 or be degraded to one of lower pretensions. 
 
 As to the second question, whether collegiate educa- 
 tion, like that of common schools, should he gratuitous, 
 and at the public charge, it is obvious that, whilst the 
 children of all classes successively require and may 
 profit by the instruction of common schools, a very 
 small proportion of the youth of any country need, or 
 are in a condition to avail themselves of collegiate 
 teaching. There is not, therefore, the same universal 
 demand for free college instruction as for free primary 
 instruction. Nor is there the same necessity. When a 
 youth is possessed of knowledge enough to fit him for 
 college, he may generally, with a proper manliness of 
 resolution, and with perseverance, defray the expense 
 of instruction there, by his own efibrts. It would seem, 
 therefore, that however it may be expedient to extend 
 extraordinary aid to a few of superior promise, there is 
 no duty resting upon the government to make collegiate 
 teaching free, but only to provide, if individual bene- 
 factions do not sufiice for the purpose, that there shall be 
 an endowment sufficient to reduce the cost to be paid 
 by individual pupils to a standard not beyond the means 
 of that class of persons who are likely to avail them- 
 selves of its advantages. 
 
 The general subject of the education of the people 
 ought not to be dismissed without adverting to the 
 policy of compulsory education. It can hardly be denied 
 that the rfiaspnin^s which iustife a system of free schools 
 
CHAP. XTI.J PARENT AND CHILD. 387 
 
 may be extended to prove that it is competent to the 
 government also to coerce parents to give their chil- 
 dren the benefit of them ; but it by no means follows 
 that it would be expedient to do so. There are many 
 things which every government, especially every State 
 government, has the power to do, which, were they 
 done, would be pernicious in the extreme. Circum- 
 stances may be conceived where coercive attendance at 
 school might be adopted as a police measure, to keep 
 vagrant children of a crowded city from mischief or 
 crime ; but it is hard to realize any condition of things 
 under which it would be prudent to enact a general 
 law of that character, applicable to all localities indis- 
 criminately. And although the existing Constitution 
 of Yirginia (Art. YIII, § 4,) expressly empowers the 
 General Assembly to enact such laws, it may be ex- 
 pected that that body will be very slow to exercise the 
 authority. 
 
 Let us now take a brief survey of the system of 
 primary instruction which is instituted in Yirginia, with 
 a short sketch of the history of the subject amongst us. 
 So early as 1779, Mr. Jefferson, whose mind was 
 deeply penetrated with a conviction of the indispensa^ 
 ble need of an effective scheme of popular education, 
 having undertaken, at the request of the General As- 
 sembly, in conjunction with Messrs. Pendleton and 
 . "Wythe (the most distinguished jurists of that day in 
 the Commonwealth), to make a revisal of the laws 
 adapted to the new Republican structure of govern- 
 ment, proposed an act whereby every county should be 
 divided into wards and districts, and a sufiicient tax be 
 levied to maintain, not elementary schools only, but 
 academies, colleges, and an university. In 1796 this 
 law was in substance actually enacted, but with a 
 single feature which annulled its eiiiciency. It was 
 left to the county courts to determine whether or not 
 the act should go into effect in their respective counties. 
 And Mr. Jefferson, adverting to the failure of the plan, 
 remarks that "the justices [who then composed the 
 county courts], being generally of the more wealthy 
 class, were unwilling to incur the burden ; so that it 
 was not suffered to commence in a single county." (2 
 Stats, at Large (new series), 3; 1 Jeff. Mem. 38-'9.) 
 
 This law was one of four prepared by this truly great 
 man, and which he characterized as "the four columns 
 of the Republican edifice." The other three, which 
 took prompt effect, related to the abolition of estates 
 tail, the Si]E>)^il^(S>hj^iidi§^^primogeniiure, and the 
 
388 PAEENT AND CHILD. [bOOK I- 
 
 establishment of the freedom of religious belief. Long 
 after the fervor of authorship had subsided, — indeed, 
 only live years before his death, — he holds the follow- 
 ing language touching these measures : 
 
 "I proposed," says he, "three bills for the revisal, 
 proposing three distinct grades of education, reaching 
 all classes. 1st. Elementary schools for all children 
 generally, rich and poor. 2d. Colleges for a middle 
 degree of instruction, calculated for the common pur- 
 poses of life, and such as vFOuld be desirable for all who 
 were in easy circumstances. And, 3d, an ultimate 
 grade for teaching the sciences generally, and in their 
 highest degree." 
 
 "One provision of the elementary-school bill was 
 that the expenses of those schools should be borne by 
 the inhabitants of the county, every one in proportion to 
 his general tax rate.''' 
 
 "I considered four of these bills passed or reported" 
 (viz., the school-bill for religious freedom, for abolish- 
 ing entails, and abolishing the right of primogeniture), 
 "as forming a system by which every fibre woiild be 
 eradicated of ancient or future aristocracy, and a 
 foundation laid for a government truly republican." 
 The people, "by the bill for a general education, would 
 be qualified to understand their rights, to maintain them, 
 and to exercise with intelligence their parts in self- 
 government; and all this would be effected without 
 the violation of a single natural right of any one i' divi- 
 dual citizen." (1 Jeff. Mem. 39, 40.) 
 
 After the failure of the act of 1796, no provision for 
 popular education seems to have been even seriously 
 contemplated in Virginia, until about the year 1810. 
 "What is called the "Literary Fund" was then formed, to 
 consist of confiscations, escheats, proceeds of glebe-lands 
 belonging to the former colonial church by law estab- 
 lished, forfeitures, fines, &c. It was subsequently 
 swelled by two large accessions of monies received by 
 Virginia from the Federal government, and its capital, 
 at the commencement of the late war in 1861, amounted 
 to about $2,260,000. 
 
 When the fund was first instituted the revenue de- 
 rived from it was dedicated exclusively to the educat- 
 ing of " poor children." But in 1816 some transient 
 interest having been awakened in behalf of education, 
 Mr. Jefferson, ever watchful to advance his projects of 
 patriotic beneficence, seized the occasion again to bring 
 forward his great system of public instruction ; and the 
 next yea©/g&zftcBib.J(JiM9Aid,SMi%h it was inadequate to 
 
CHAP. XVI.] PAEENT AND CHILD. 389 
 
 effect the establishment of a system of free schools, 
 which he had much at heart, yet procared an act to 
 erect the University of Yirginia, with a permanent en- 
 dowment of $15,000 a year out of the literary fund, 
 the residue of the annual income from which was set 
 apart, as before the whole had been, for the education 
 of " poor children." 
 
 The system of primary education thus inaugurated, 
 contemplating as it did the 'poor alone, and providing 
 totally insufficient funds for even a small part of that 
 class, was not wholly futile ; but its results were 
 meagre indeed compared with the exigency of the 
 case. The proportion of ignorance existing under it, 
 reckoning the white population alone, was deplorable, 
 and was little diminished in the successive decades 
 which elapsed prior to 1870. 
 
 The general impoverishment which succeeded the 
 termination of the late war, together with the eman- 
 cipation of the slaves, so diminished the means of sup- 
 porting a system of public education, whilst it doubled 
 the expense of doing so (duty -and enlightened ex- 
 pediency irresistibly demanding that like provision 
 should be made for both races, yet in separate schools), 
 as to postpone almost indefinitely the hopes of the 
 friends of education to see a general system fully in- 
 augurated. Their expectations, indeed, were limited to 
 the institution in the State-government, of a departs 
 ment of public instruction, trusting that, through the 
 agency of such a bureau, the sentiment of the people 
 might by degrees be sufficiently informed to cause 
 them to adopt with alacrity, find sustain with vigor, 
 some scheme of education adapted to the needs of all 
 classes. 
 
 The result, however, which the native friends of the 
 cause in the State were willing to postpone for a more 
 auspicious season, was precipitated by the action of 
 that remarkable assemblage which, purporting to re- 
 present the sovereignty of Yirginia, in 1868, devised 
 the Constitution which, the next year, the people of the 
 Commonwealth found themselves under the necessity 
 of ratifying, with some important modifications. 
 
 The Constitution of 1869 (Art. YIII, § 3), requires 
 the General Assembly to "provide by law, at its first 
 session under this Constitution, a uniform system of 
 public free schools, and for its gradual, equal and full 
 introduction into all the counties of the State by the 
 year 1876, and as much sooner as practicable." And 
 this consMM«gid^P6r(9§<8gPthe Legislatm-e, at its 
 
390 PAEBNT AND CHILD. [bOOK 1. 
 
 . first session under the Constitution, in 1869-70, loy- 
 ally performed. It remains, therefore, to state the 
 outline of the system which, partly constitutional and 
 partly statutory, at present prevails in this Common- 
 wealth upon this important subject. (Va. Const. 1869, 
 Art. VIII, § 1 to 12; Art. VII, § 1, 2, 3; Art. VI, § 25; 
 Amendm'ts 1874; V. C. 1873, c. 78.) 
 
 The subject distributes itself under the following 
 heads: I. The Organization of the System; II. 
 The Funds Design^fl to Support the System ; and III. 
 The Regulations for the Government of the System. 
 
 I. The Okganization of the System. 
 
 The organization of the system contemplates that 
 each county shall be divided into so many compactly 
 located magisterial districts (substituted for townships 
 by amendments of 1874) as may be deemed necessaiy, 
 not less than three ; and each magisterial district into 
 so many compactly located school districts as may be 
 necessary, but not to contain less than one hundred in- 
 habitants, each school district being a corporation, csipahle 
 of suing and being sued, of contracting, and of buying 
 and holding property. It contemplates, further, that 
 the officers charged with the administration of the sys- 
 tem shall be, (1), School-trustees, three for each school 
 district; (2), A superintendent of public schools for 
 each county; (3), County school-boards, composed of the 
 county superintendent and and district school-trustees; 
 (4), A superintendent of public instruction for the 
 State; and (5), A board of education, with very exten- 
 sive powers of supervision and regulation of the whole 
 machinery. 
 
 It will be needful to survey more particularly these 
 several classes of officials, for which purpose they will 
 be taken in the inverted order : 
 
 (1). The Board of Education. 
 
 The Board of Education is a corporation composed 
 of the governor, superintendent of public instruction, 
 and attorney-general. It is the duty of the board to 
 appoint, and to remove for cause, and upon notice to 
 the incumbent, subject to confirmation by the senate, 
 all county superintendents of public free schools; to 
 appoint and remove district school-trustees ; to provide 
 gradually for uniformity of text-books, and the furnish- 
 ing of school-houses, with necessary apparatus and li- 
 brary, under regulations to be provided by law; to 
 make regulations generally for the administration of 
 the system ; to submit tp the Legislature an annual re- 
 port; to ^§\!m^ lMMm§OWlaw the management 
 
CHAP. XVI.J PARENT AND CHILD. 391 
 
 and investment of all school funds; and to exercise 
 such supervision of schools of higher grades as the law 
 shall provide. (Va. Const. 1867, Art. YIII, § 2, 6; 
 V. 0. 1873, c. 78, § 3, 7, 15, 37, 38, 47, 64, 65.) 
 
 (2). The Superintendent of Public Instruction. 
 
 The superintendent of public instruction is elected 
 by the General Assembly, upon joint ballot of the two 
 houses, to hold office for four years, and until his suc- 
 cessor is qualified. He is charged with the general 
 supervision of the public free school interests of the 
 State; and to enable him to accomplish that object 
 efficiently, he is clothed with large powers, and has a 
 correspondingly wide circle of duties. Amongst other 
 things it is his duty to interpret and expound the school 
 laws; to prescribe the forms of registers and reports; 
 to apportion the school funds to the several counties 
 and cities; to make tours of inspection amongst the 
 public schools of the State ; to cause the school laws to 
 be faithfully executed ; to promote by all proper means 
 an appreciation and desire of education amongst the 
 people; and to submit to the General Assembly, through 
 the Board of Education, an annual report, exhibiting 
 all desirable statistics of numbers, expenditures and 
 results connected with the working of the school sys- 
 tem. (Va. Const. 1869, Art. YIII, § 1 ; Art. VI, § 25 ; 
 V. C. 1873, c. 78, § 11.) 
 
 (3). County Superintendent of Public Free Schools. 
 
 County superintendents of schools, one for each 
 county, are appointed and removed for cause, and upon 
 notice to the incumbent by the Board of Education, 
 subject to confirmation by the senate. The term of office 
 of a county superintendent is three years, and until his 
 successor is qualified. His duty is more immediately 
 to supervise and control within his county the working 
 of the system of free schools ; to promote an apprecia- 
 tion and desire of education among the people ; to pre- 
 pare annually, or oftener if need be, under the direc- 
 tion of the superintendent of public instruction, a 
 scheme for the apportionment of the State and county 
 school funds among the school districts of the county; 
 to examine persons applying for license to teach; to 
 promote the improvement of teachers by all proper 
 methods, under direction of the State superintendent; 
 to visit all the public schools in his county as often as 
 practicable, and inquire into every particular of their 
 conduct and administration; to decide all questions 
 and complaints within his county touching the school 
 system, M!^S(^mhliipP^(W>M State superintendent, 
 
392 PARENT AMD CHILD. [bOOK I. 
 
 and from him to the Board of Education; to require 
 annually, or oftener if necessary, from the clerks of 
 the boards of district school-trustees full statistics 
 touching the public free schools of their respective 
 districts; to observe the directions of the State super- 
 intendent, and to make to that officer an annual report 
 touching such particulars as he may prescribe. (Va. 
 Const. 1869, Art. YII, § 1; Art. YIII, § 2; Art. YI, 
 §25; Y. C. 1873, c. 78, § 14.) 
 
 (4). The County School Board 
 
 The county schoccl board- is a corporation, composed 
 of the county superintendent of schools and of the dis- 
 trict school-trustees, under the style of "T/ie County 
 School Board of County," with power to con- 
 tract, take and hold property, and to sue and be sued. 
 All property of every description dedicated to school 
 purposes, for the use of the county, is vested ia the 
 county school board, xinless inconsistent with the grant 
 or devise, upon such terms and conditions for the se- 
 curity of the property as the court of the county shall 
 prescribe. The board is to manage all such property, 
 and apply the profits for the purposes of education, in 
 the same manner and under the same restrictions as 
 the general school fund is applied, except that the 
 board may apply a portion, in their discretion, to the 
 erection of school-houses, or the purchase of school 
 apparatus ; always provided that no disposition is made 
 inconsistent with the grant or devise. The board is 
 charged also wdth the duty of supervising the adminis- 
 tration of all trusts for the purposes of common school 
 education within the county, and to that end may re- 
 quire reports from the trustees, and, if need be, may 
 "take immediate measures for carrying the matter be- 
 fore the civil courts." (Y. C. 1873, c. 78, § 15 to 20.) 
 
 (5). The District School-Trustees. 
 
 In each school district the Board of Education ap- 
 points annually one school-trustee, whose term of office 
 is three years, and until his successor is qualified ; three 
 having been appointed the first time for one, two, and 
 three years, respectively. The three school-trustees 
 constitute a board, of which one member is chairman, 
 and another clerk, the plerk's duty being to make an- 
 nually a census of the school children in his district, to 
 gather the statistics of education therein, to keep the 
 records of the board and preserve its papers, and to 
 perform such other duties as may be assigned him; for 
 which he is allowed, out of the district school fundsj 
 two ^oW^jff^^ i^gfg^^^oi service. 
 
CHAP. XVI.J PARENT AND CHILD. 39S 
 
 The board itself is charged with the duty of carrying 
 the school system in detail into practical effect within 
 its district. It is to explain, enforce, and itself observe 
 the school laws and regulations ; to employ and dismiss 
 teachers; to suspend and dismiss pupils; to supply 
 text-books gratuitously to those too poor to procure 
 them; to see that the school census is correctly taken; 
 to convene meetings of the people of the district for 
 consultation in regard to the school interests thereof; 
 to prepare annually, and before the 15th day of No- 
 vember, to report to the president of the county school- 
 board, to be laid before the board at its earliest meet- 
 ing, an estimate of the amount needed during the next 
 scholastic year for providing school-houses, school- 
 books for indigent children, and other school appli- 
 ances, and necessary, proper and lawful expenses; to 
 take care of and manage the school property of the dis- 
 trict ; to visit the public schools within the district from 
 time to time, and to take care that they are lawfully 
 and efficiently conducted; and to report to the county 
 superintendent annually, and whenever required, ac- 
 cording to the forms prescribed. (Va. Const. 1869, 
 Art. VII, § 3; Art. YI, § 25; Art. VIII, §. 12; V. C. 
 1873, c. 78, § 22 to 31.) 
 
 II. The Funds designed to suppoet the School 
 System. 
 
 The funds provided for the support of this educa- 
 tional system consist of — (1), A fixed literary fund, 
 whose annual income alone is to be expended ; and (2), 
 Annual funds, derived from State, county and district 
 taxes, &c. 
 
 (1). The Literary Fund. 
 
 The literary fund is composed of the remnant of the 
 old literary fund (amounting, including arrears of in- 
 terest due from the Commonwealth, to somewhat over 
 $2,000,000), the proceeds of all public lands donated 
 by Congress for public school purposes, of all escheated 
 property, of all waste and unappropriated lands, of all 
 property accruing to the State by forfeiture, and all 
 fines collected for offences committed against the State, 
 donations made for the purpose, and such other smns 
 as the General Assembly may appropriate. These 
 are to be set apart as a permanent and perpetual "Lite- 
 rary Fund," to remain u?ihnpaired and entire, and the 
 annual income arising therefrom is dedicated .exclusively 
 to the maintenance of public free schools. (Va. Const. 
 1869, Art. VIII, § 7, 8 ; V. C. 1873, c. 78, § 66.) 
 Digitized by Microsoft® 
 
394 PARENT AND CHILD. [boOK I. 
 
 (2). Annual funds derived from State, County, and 
 District taxes, &c. 
 
 The annual funds (besides the income derived from 
 the literary fund), consist of taxes levied by the State, 
 taxes levied on the counties severally, and donations 
 made thereto, and taxes levied on the school districts, 
 and donations made to them respectively. (Va. Const. 
 1869, Art. YIII, § 8 ; V. C. 1873, c. 78, § 67.) 
 
 First. State Taxes, ^c. 
 
 The State fun^ls for public schools consist (besides 
 the income from the literary fund), of a capitation tax, 
 not exceeding one dollar per annum on every male 
 citizen of twenty-one and upwards ; and of such tax on 
 property, from one to five mills on the dollar, as the 
 General Assembly shall, from time to time, order to be 
 levied. 
 
 Second. County Taxes, ^c. 
 
 The county funds for schools embrace such tax as 
 shall be levied by the board of supervisors of the county 
 pursuant to law, fines and penalties arising from the 
 violation of certain of the school laws, and donations 
 made to the county for school purposes. 
 
 Third. District Taxes, ^e. 
 
 The district funds for schools embrace such tax as 
 shall be levied on the school district by the board of 
 supervisors of the county pursuant to law, fines and 
 penalties arising from violations of certain district 
 regulations, and donations made to the district for 
 school piu-poses. But prior to 1876, the county and 
 district school tax together is not to exceed two mills on 
 the dollar in any year. 
 
 III. Eegulations of the System or Public Schools. 
 
 Of the regulations which govern the school system, 
 some are contained in the Constitution, and some are 
 statutory; whilst others again are prescribed by the 
 board of education. Most of the provisions relate to 
 primary schools, but some of those contained in the 
 Constitution contemplate seminaries of a higher order. 
 
 1. The General Assembly has poioer, after a full in- 
 troduction of the public free school system, to make 
 such laws as shall not permit parents and guardians to 
 allow their children to grow up in ignorance and va- 
 grancy. (Ya. Const. 1869, Art. VIII, § i; Ante p. 
 386-'7.) 
 
 2. The General Assembly is required to establish, as 
 soon as possible, normal schools (that is, schools to in- 
 struct teachers in the art of teachina;), and may estab- 
 lish agrimmmcmmmoh grades of schools as 
 
CHAP. XVI.J PARENT AND CHILD. 395 
 
 shall be for the public good. (Ya. Const. 1869, Art. 
 Vin, § 5.) 
 
 3. The General Assembly shall have power to foster 
 all higher grades of schools under its supervision, and 
 to provide for such purposes a permanent educational 
 fund; and all grants and donations shall be applied 
 according to the terms prescribed by the donors. (Ya. 
 Const. 1869, Art. YIII, § 9, 10.) 
 
 Thus, it will be seen that normal, agricultural and 
 other higher seminaries are to be supported by funds 
 separate and apart from those raised for primary free 
 schools. And whilst primary schools are submitted 
 without reserve by the Constitution, to the supervision 
 of the superintendent of public instruction, these higher 
 seminaries are to be supervised by the Board of Educa- 
 tion, and by that board only as the law shall -provide. 
 (Ya. Const. 1869, Art. YIII, § 1, 2.) 
 
 4. Each city and county shall be held accountable 
 for the destruction of school property that may take 
 place within its limits by incendiaries or open violence. 
 (Ya. Const. 1869, Art. YIII, § 11.) 
 
 5. No member of the Board of Education, nor any 
 school oificer or teacher, is allowed to be in any wise 
 concerned pecuniarily, in supplying books, stationery, 
 school furniture, apparatus, &c., to the public schools, 
 with some cautious relaxations in favor of authors and 
 inventors. (Y. C. 1873, c. 78, § 38.) 
 
 6. No teacher can be employed in the public schools 
 until he has obtained a certificate of qualification from 
 the superintendent of the county within which he is 
 employed. Contracts with teachers are to be in writ- 
 ing, in a form prescribed ; and they enjoy the same im- 
 munities as a school trustee, namely, from serving on 
 juries, working on roads (but not from the road tax), 
 and from militia service in time of peace. 
 
 7. The Board of Education has power to invite and 
 encourage meetings of teachers for mutual improve- 
 ment, and to procure addresses to be made before such 
 meetings touching the processes of school organization, 
 discipline and instruction. 
 
 8 School houses and appliances, fm^niture and ap- 
 paratus are to be provided by the several school dis- 
 tricts, which have power to procure land to be con- 
 demned for school-houses, a just compensation being 
 provided ; and school-houses, and a,ll school property 
 are vested in the school district, and held by it as a 
 corporation. (Y. C. 1873, c. 78, § 53, 54, 48.) 
 
 9. The!^^W4(^M(^^^'§>io all persons between 
 
396 PARENT AUD CHILD. [bOOK I. 
 
 the ages oifive and iwenty-one years, residing within the 
 school district; and, in special cases, to be regulated 
 by the Board of Education, persons residing out of the 
 district may be admitted. But white and colored per- 
 sons are not to be taught in the same school, although 
 there is to be no difference in the pi-ovision made for 
 them. And no one is to be admitted whose father, if 
 alive, and resident within the district, and not a pauper, 
 shall not have paid the capitation school-tax last assessed 
 upon him. (V. C. 1873, c. 78, § 58.) 
 
 10. The Board of Education is empowered and re- 
 quired to regulate all matters arising in the practical 
 administration of the school system, which are not 
 otherwise provided for. (V. C. 1873, c. 78, § 7 (cl. 11).)' 
 The provisions for public free schools in the cities 
 and towns of the Commonwealth, which are essentially 
 the same as those already described, may be seen Y. 
 C. 1873, c. 79. 
 
 Before we pass away from the subject of public in- 
 struction, it is proper to observe that our laws have 
 always acknowledged, in the abstract, the value of educa- 
 tion for the laboring classes, however remiss they may 
 have been in making the needful provision for its uni- 
 versality. Thus, from a very early period of the 
 colony, there has been an enactment, taken from the 
 laws of the mother country, that when a child is 
 "found begging," or is "likely to become chargeable" 
 to the pai'ish, an overseer of the poor shall obtain an . 
 order of the county or corporation court to bind him. 
 apprentice, stipulating with the master to teach him, ' 
 not only his trade or business, but also " reading, writ- 
 ing, and common arithmetic, including the rule of 
 three." (Y. C. 1873, c. 122, § 3, 2, 5 ; 1 Bl. Com. 451.) 
 3*. Powers of Parents as to Legitimate Children. 
 
 The power of parents over their children is derived 
 from the consideration of the duty which they owe them; 
 the authority being conferred chiefly to enable the parent 
 to perform his duty more effectually, but partly also as 
 a recompense for his care and trouble in the faithful dis- 
 charge of it. And since the legal duty of parents is 
 limited at common law to those under twenty-one years 
 of age, so, also, is their authority confined to the same 
 age. The municipal laws of some countries have, to 
 be sure, upon the very same considerations, bestowed 
 upon parents a very different degree of authority, and 
 extended it to a different age. Thus, the ancient E.omani| 
 laws gave the father a power of life and death over his 
 children, ^&'z^J!^lflferiS^g^ciple that he who gave 
 
•OHAP. Xn.J PARENT AND CHILD. 397 
 
 had also the same power of taking away. But the rigor 
 of these laws was softened by subsequent constitutions; 
 so that we find a father banished hj the Emperor 
 Hadrian for killing his son, though he had committed a 
 very heinous crime (having debauched his step-mother), 
 upon the maxim that " patria potestas in pietate debet, non 
 atrocitate consistere." But still they maintained to the 
 last a very large and absolute authority ; for a son could 
 acquire no property of his own during the life of his 
 father, but all his acquisitions belonged to the father, or 
 at least the profits of them, for his life. (1 Bl. Com. 
 452; 2 Kent's Com. 203-'4:.) 
 
 The power of the parent, as conferred by the common 
 law, is much more moderate, but still sufficient to keep 
 the child in order and obedience ; 
 W. C. 
 is. The Custody of the Child's Person, and Power of 
 Correction. 
 
 Let us observe, (1), The parent's right to the "cus- 
 tody of the child's person, and his consequent power ; 
 and (2), The remedies whereby the parent may assert 
 his right to the custody of the child when it is invaded ; 
 W. C. • 
 
 I''. The Parent's Eight to the Custody of the Child's 
 Person, and his consequent Power. 
 
 The father has, against all other persons, the right 
 to the possession and custody of his infant child under 
 twenty-one years of age ; and on his death or disa- 
 bility, the mother, as the next natural protector and 
 guardian, succeeds to the like authority, even as 
 against the guardian appointed by the father's will, — 
 at least until she marries again, as to such testamen- 
 tary guardian, and as to any other person, notwith- 
 standing any subsequent marriage. And the parent, 
 whether father or mother, who is thus for the time 
 being charged with the care and custody of the child, 
 may lawfully administer such moderate and reason- 
 able correction as is for the benefit of his training and 
 education. (1 Bl. Com. 452, it n (9) ; 2 Kent's Com. 
 205 ; Y. C. 1873, c. 123, § 7 ; Ex. parte Hopkins, 3 
 P. Wms. 154 ; Armstrong v. Stone & ux, 9 Grat. 105 ; 
 Carr v. Carr, 22 Grat. 168, 174.) The parent is also 
 by statute charged with the power of consent to the 
 marriage of his child under age, although, as ^we have 
 seen, the want of such consent does not appear with us 
 to invalidate the marriage. V. C. 1873, c. 104, § 3 ; 
 Ante p. 243-4.) The power is conferred with a view 
 to protect Ri0zfiyl^^<e&S§Sff'^^om the arts of the 
 
398 PARENT AMU CHILD. [bOOK I. 
 
 designing, and against the consequences of their own 
 nnwariness, inexperience, and heady passions, which 
 miglit otherwise prevent their favorable settlement in 
 life, and betray them into precipitate and imprudent 
 marriages. 
 
 To invade this parental right of custody of the 
 child by his abduction is a civil injury, for which the 
 parent may have redress either at law or in equity ;; 
 and it seems it is at common law an offence deemed 
 worthy of exemplary punishment by fine and impris- 
 onment. In Virgkiia, if the child be taken from the 
 parent, or any one else having lavrful charge of it, with 
 intent to extort money, or any pecuniary benefit, it is. 
 felony (V. C. 1873,' c. 187, § 15). And it is also a 
 felony to take from any person having lawful charge 
 of her, a female child under sixteen years of age, for 
 the purpose of concubinage or prostitution (Id. § 17); 
 whilst illegally to seize, take, or secrete any child from 
 the person having lawful charge of it, may, at the 
 discretion of a jury, be treated as a felony or a mis- 
 demeanor. (Y. C. 1873, c. 188, § 18 ; 3 Bl. Com. 
 140-'4:1, & n (27) ; 4 do. 219 ; Synops. Crim. Law, 81.) 
 ■ The mother, if the father be dead, or if the child be 
 illegitimate, is at common law the natural guardian, 
 and entitled to all the legal authority usually exercised 
 by the father ; and this proposition, notwithstanding 
 a loosely worded intimation to the contrary from 
 Blackstone (1 Bl. Com. 453), is undeniably established 
 by adjudged cases, as well as by approved text writers.. 
 (1 Bac. Abr. Guardian, (A.) 3 ; 1 Th. Co. Lit. 155, ri 
 (2); 1 Bl. Com. 461, n (4); Mellish v. De Costa, 2 
 Atk. 14; People v. Landt, 2 Johns. (E". Y.) 375; 
 Carpenter v. Whitman, 15 Johns. 209 ; Freto v. 
 Brown, 4 Mass. 675 ; Wright v. Wright, 2 Mass. 
 109 ; Somerset v. Dighton, 12 Mass, 383 ; Armstrong 
 V. Stone & ux, 9 Grat. 102, 105.) As a general pro- 
 position, it is confirmed in Yirginia by statute, al- 
 though the statute limits it, where there is another 
 guardian appointed by the court, or by the father's 
 will, to the case of her remaining unmarried; it being 
 enacted (Y. C. 1873, c. 123, § 7), that although an- 
 other person than the parent be " appointed as afore- 
 said " guardian, in order to take charge of the infant's 
 •property, yet the father, and if he be dead, the mother, 
 while she remains unmarried, shall, if fit for the trust, 
 be entitled to the custody of the person of the minor, 
 and to the care of his education. 
 
 But wMkt the mmf<M'M^ undoubtedly entitled, 
 
CHAP. XTI.] PARENT AND CHILD. 399 
 
 prima facie, to the . custody of his minor child's per- 
 son, it is because it is supposed that he will best exe- 
 cute the trust (of all trusts the most sacred) which 
 God and society have committed to his hands. Hence, 
 it is competent to a court of chancery, in pursuance 
 of its general power to interpose for the benefit of 
 such as are unable to protect themselves, to deprive him 
 of such custody and control for sufficient reasons. 
 The cause which has usually called forth this power 
 is some gross moral delinquency on his part, such as 
 cruelty to the child, habitual drunkenness, blasphemy, 
 profligacy, or other immorality, showing him to be 
 clearly unfit for so important a function. The jurisdic- 
 tion, however, is exercised only in strong cases, and with 
 extreme caution, as indeed is plainly required by the 
 delicacy of the considerations involved ; and although 
 it has been warmly contested in England, and es- 
 pecially in a comparatively recent case of great in- 
 terest ("Wellesley v. Duke of Beaufort, 2 Euss. 1), yet 
 it is conclusively settled, as well upon reason and ne- 
 cessity (having regard to the protective power of the 
 court of chancery), as upon the uninterrupted usage 
 of more than 150 years. (2 Rob. Pr. (1st Ed.) 154 ; 
 2 Stor. Eq. § 1341 & seq. ; Duke of Beaufort v. Berty, 
 1 P. Wms. 705 ; Whitefield v. Hales, 12 Ves. 449 ; 
 Creuze v. Hunter, 2 Cox, 242 ; De Manneville v. De 
 Manneville, 10 Yes. 59 ; Ex parte Mountfort, 15 Ves. 
 445 ; Wellesley v. Duke of Beaufort, 2 Euss. (3 Eng. 
 Ch.) 1; S. C. 2 Bligh, (K S.) 128; Shelby v. 
 Westbrooke, Jac. (4 Eng. Ch.) 266 ; Lyons v. Blen- 
 kin, Id. 257 ; Ball v. Ball, 2 Sim. (2 Eng. Ch.) 35 ; 
 Anon. 2 Sim. (N. S.) (42 Eng. Ch.) 68; People 
 
 V. Mercelin, 8 Pai. (N. Y.) 47; People v. , 19 
 
 Wend. (]Sr. Y.) 16 ; Prather v. Prather, 4 Desauss. 
 (S. C.) 33 ; Williams v. Wilhams, Id. 183.) And in 
 Virginia this equitable jurisdiction is recognized and 
 confirmed by statute, which provides (V. 0. 1873, c. 
 123, § 13), that the " circuit, county, and corporation 
 courts in chancery may hear and determine all mat 
 ters between guardians and their wards, requii-e set- 
 tlements of the guardianship accounts, remove any 
 guardian for neglect or breach of trust, and appoint an- 
 other in his stead, and make any order for the custody 
 and tuition of an infant," &c. 
 
 As incident to the parent's right to the custody of 
 the infant child's person, and as the correlative of the 
 obligation of maintenance, there results a right to the 
 child's Qpg!/#iieas!,Jbjfl#;dstDid#@vages if he earns any. 
 
400 PABENT AND CHILD. [bOOK I. 
 
 That this is true of the father there appears no just 
 reason to doubt, but whether it holds in respect to the 
 mother, where tliere is no father, is very questionable ; 
 because, although the mother is entitled, in the case 
 supposed, to the custody of the child's person, she is 
 under no obligation, it seems, to aiford maintenance. 
 (1 Bl. Com. 453 ; 1 Pars. Cont. 257-'8, 256, n (c) ; 
 2 Kent's Com. 194, 191 ; Freto v. Brown, 4 Mass. 
 675 ; Jeuney v. Alden, 12 Mass. 375 ; Whiting v. 
 Earl, 3 Pick, (Mass.) 183.) In respect to the father, 
 not only does he lose his right to the child's wages 
 when he ceases to be liable for his support, but he may 
 relinquish his right whilst his liabilitij continues ; 
 and, according to American cases, such relinquish- 
 ment will be readily inferred from any conduct on 
 his part which manifests such an intent. Hence, if 
 the child be living apart from his father with his con- 
 sent, or if the father leave him to manage his own 
 affairs, and to make and execute his own contracts 
 for a considerable time, or even if the father knew of 
 such a contract and interposed no objection, he is un- 
 derstood thereby to relinquish his right to the child's 
 wages. And he may do so notwithstanding he is in- 
 solvent. (1 Pars. Cont. 258-'9, and cases cited; Bac. 
 Abr. Infancy, (I.) 3 ; Id. (M.) ; Penn & als v. White- 
 head & als, 17 G-rat. 532.) In England emancipation 
 from parental control is less easily inferred. It is 
 laid down, indeed, that during the child's minority 
 there can be no emancipation, unless he marries, and 
 so becomes himself the head of a family, or contracts 
 some other relation, as Ijy enlisting for a soldier, so 
 as loholly and permanently to exclude parental control. 
 (Rex V. Hardwicke, 5 B. ife Aid. (7 E. C. L.) 176 ; R. 
 V. Wilmington, Id. 525 ; R. v. Rotheriield Greys, 1 
 B. & Cr. (8 E. C. L.) 345.) 
 2^. The Remedies whereby the Parent may assert his 
 Right to the Castody of the Child's Person, when the 
 Right is invaded. 
 
 These remedies may be enumerated thus — ^namely, 
 (1), The action of trespass vi et armis (or with us, 
 trespass on the case), to recover damages, but not the 
 child's person; (2), The writ of ravishmint of ward, 
 whereby are recovered as well the body of the child 
 as damages; (3), The writ of habeas corpus, to recover 
 the child's person in certain cases; and (4), A bill in 
 equity to recover the child; 
 W. C. 
 
 Digitized by Microsoft® 
 
CHAP. XVI.J PAEENT AND CHILD. 401 
 
 1'. The Action of Trespass vi et armis, or, in Virginia, 
 of Trespass on the Case. 
 
 In this action the parent recovers such damages as 
 a jury shall estimate to be proper for the wrong 
 done, but not the body of the child. (1 Bl. Com. 463, 
 n (9); Bac. Abr. Guarcl'n (F); Hussey's Case, 9 Go. 
 72 a; Eex v. Smith, 2 Stra. 982; 1 Chit. PI. 192; 
 Yaughan v. Eodes, 2 MoCord (S. C.) 227.) It is 
 apprehended that the action may also be, at common 
 law, trespass on the case, to recover similar damages. 
 (1 Chit. PI. 192-'3.) But however it may be at 
 common law, in Virginia, by statute, in any case in 
 which an action of trespass will lie, there may be 
 maintained an action of trespass on the case. (V. C. 
 1873, c. 145, § 6.) 
 
 2\ The Writ of Ravishment of Ward. 
 
 By this writ, given by Stat. Westm. II, 13 Edw. 
 I, c. 35, is recovered the body of the child, together 
 with damages for the taking and detention, and not 
 damages only, as by the remedy last mentioned. 
 The statute is in terms applicable to guardians, but 
 a parent may employ it as a guardian by nature. (1 
 Th. Co. Lit. 338; Bac. Abr. Guard'n (F); 1 Bl. 
 Com. 463, n (9); 3 Do. 141; Hussey's Case, 9 Co. 
 72, 74 b; Eyre v. Countess ol Shaftsbury, 2 P. Wms. 
 122.) 
 
 The writ of ravishment of ward being a remedial 
 writ, given by a general statute of England prior to 
 4 Jac. I, is reserved in Virginia by statute (V. C. 
 1873, c. 15, § 2) to the use of our people. 
 
 3'. The Writ of jiabeas Corpus. 
 
 The writ of habeas corpus is proper only to relieve 
 one from an illegal restraint on his liberty. It is, 
 therefore, only collaterally that the question of right 
 to the custody of the child by the parent can arise 
 upon the proceeding, and never where the infant 
 has sufficient discretion to choose for himself with 
 whom he will be, which may be supposed to be the 
 case whenever he has attained the age of fourteen. 
 Where, having attained the age of discretion, he is 
 brought up upon a writ of habeas corpus, if he is re- 
 strained of his freedom of locomotion, he will be re- 
 leased and suffered to go where he pleases, and if 
 not restrained, but by his own choice he is with his 
 present custodian, the effect of the writ is exhausted, 
 and the court cannot transfer him to the parent, not- 
 withstanding it might be ever so well satisfied that 
 the T^aEffQttim^ Spt^e^ki/fe custody. But where 
 26 
 
402 PARENT AND CHILD. [bOOK I. 
 
 the infant is too young to elect with discretion with 
 whom he will stay (as if he be of the age of six or 
 seven, or, it seems, of any age under fourteen), any 
 custody but that of the person entitled to it is wrong- 
 ful, and may be deemed illegal restraint of the child; 
 • and so the court must determine, in order to give 
 effect to the writ, whose is the proper custody, and 
 must remand him thereto. (Rex v. Clarkson, 1 
 Stra. 444; E. v. Johnson, Id. 579; E. v. Smith, 2 
 Stra. 982; E. v. Delaval, 3 Burr. 1434; In re Pear- 
 son, 4 J. B. Mo(5re (16 E. C. L.) 366; Ex parte Skin- 
 ner, 9 J. B. Moore (17 E. C. L.) 278 ; King v. Green- 
 hill, 4 Ad. & El. (31 E. C. L.) 624; King v. Isley & 
 ux, 5 Ad. & El. (31 E. C. L.) 441; In re HakeweU, 
 12 C. B. (74 E. C. L.) 223; Ex parte Witte, 13 C. B. 
 (76 E. C. L.) 680; Armstrong v. Stone & ux, 9 Grat. 
 102.) 
 4'. Bill in Equity. 
 
 This is the most direct, usual, and eligible remedy, 
 in general, to try the right of the parent to the cus- 
 tody of the child. The court of chancery, as repre- 
 senting the parental and protecting power of the 
 Commonwealth, has jurisdiction to determine con- 
 troversies concerning the guardianship of a minor ; 
 to make orders for his support, if any property capa- 
 ble of being so applied be within the reach of the 
 court ; and in extreme cases, as we have seen, even, 
 to control the right of a father to the custody of his 
 child. (2 Stor Eq. § 1340 ; De MannevUle v. De 
 Manneville, 10 Yes. 52 ; Ex parte Skinner, 9 J. B. 
 Moore, (17 E. C. L.) 278 ; The People v. Chegary, 
 18 Wend. (JST. T.) 637 ; Armstrong v. Stone & ux, 9 
 Grat. 105-'6.) 
 28. Parent's Power to Consent to the Marriage of a minor 
 Child. 
 
 The common law did not demand the consent of 
 parents, in order 'to legalize, or even to make regular, 
 the marriage of an infant. In England, by Stat. 4 & 
 5 Ph. & M. c. 8, heavy penalties were imposed on any 
 person who should marry a woman-child under the age of 
 sixteen years, without consent of parents or guardians, 
 and her estate was moreover transferred during the 
 husband's life to the next heir ; and by 6 & 7 "Wm. Ill, 
 c. 6,- and other statutes, a considerable fine was laid 
 on any clergyman who should celebrate a marriage 
 without the publication of hanns, which would give 
 notice to parents and guardians, or without a license, to 
 obtain wh&j^yjfeea/ ibjwVMfetostDjJ® have been sworn to. 
 
CHAP. XVI.J PAEBNT AND CHILD. 403 
 
 But by Stat. 26 Geo. II, c. 33, marriages celebrated 
 by license (for banns suppose notice), where either party 
 is under twenty-one (and not previously widowed, in 
 which case they are emancipated), without the consent 
 of the father, or if he be dead, of the mother or guar- 
 dian, were declared to be absolutely void. This innova- 
 tion upon the ancient law, whilst it had the expedient 
 effect of preventing the clandestine marriage of minors, 
 was supposed upon the whole to be pernicious, by 
 tending to obstruct the increase of population, and by 
 betraying the single of both sexes, especially among 
 the lower classes, into licentiousness and debauchery, 
 particularly affecting the presumed wife, whose very 
 innocence and simplicity exposed her peculiarly to be 
 deceived. Dissatisfaction with this state of the law 
 led at length to the Act of 4 Geo. TV, c. 76, and of 6 
 & 7 Wm. IV, c. 85, whereby the consent of parents 
 and guardians was directed to be obtained, and marriage 
 without it was made penal in the parties, and their 
 abettors, but neither void nor voidable. And the 
 subsequent statutes appear to adopt the same policy. 
 (1 Bl. Com. 437; 2 Steph. Com. 286, 288, & seq.; 
 Eex V. Birminghan, 8 B. <& Cr. (15 E. C. L.) 29.) 
 
 In "Virginia, as we have seen, the law is in a state of 
 some uncertainty upon this point; but upon the whole, 
 it appears to be the better opinion that the terms of 
 the statute requu'ing license, and consent of parents or 
 guardians, where either party is under the age of twenty- 
 one years, and not before married (V. C. 1873, c. 104, 
 § 1, 3), are directory only ; and that the marriage is not 
 invalidated by the want of a license, or of the consent 
 of parent or guardian {Ante p. 243-'4 ; Grot. de. Jur. 
 Bel. &c. B. II, c. V, § 16 ; Eex v. Birmingham, 8 B. & 
 Cr. (15 E. C. L.) 29.) 
 38. The Power and Control of Parents over the minor 
 Child's Estate. 
 
 The parent, as such, has no power or control what- 
 ever over the infant child's property, real or personal. 
 Hence, the father is not, by virtue merely of the pa- 
 rental relation, entitled to receive a legacy payable to 
 his child, even though the testator may have verbally 
 so directed on his death-bed ; and if the executor make 
 payment to him, it is in his own wrong, and he is liable 
 to pay it over again should the father fail duly to ap- 
 propriate it. In order to qualify himself to deal with 
 the property-interests of his minor child, a parent must 
 be duly appointed guardian, by a competent court, and 
 must giv©;^gic/f®l^/Wfi»'S^fe<S^ required by law. (1 
 
404 PAEENT AJSD -CHILD. [bOOK I. 
 
 Bl. Com. 453; 2 Lorn. Ex'ors, 251-'2 ; 2 Kob. Pr. 
 (1st Ed.) 155; Dagley v. Tolferry, 1 P. Wms. 285; 
 Cooper V. Thornton, 3 Br. C. C. 96.) 
 
 If, however, another person than the parent be ap- 
 pointed guardian, in order to take care of the infant's 
 property, the father, or if he be dead, the mother, 
 while she remains unmarried, shall, if fit for the trust, 
 be entitled to the custody of the minor^s person, and to 
 the care of his education. (V. C. 1873, c. 123, § 7.) 
 4s. Parent's Power to delegate his Authority ; W. C. 
 1^. Parent's Power to delegate his Authoi'ity during his 
 Life Time. 
 
 The power of the parent to delegate his authority, 
 during his life time, to the tutor or schoolmaster of 
 his minor child, is acknowledged at common law. 
 The tutor is then in loco parentis, and has such a por- 
 tion of the parental authority as may be necessary to 
 answer the purposes for which he is employed. But 
 this power must be temperately exercised, and no 
 schoolmaster should feel himself at liberty to admin- 
 ister chastisement to the same extent as the parent 
 might, howsoever the infant delinquent may seem to 
 have deserved it.. (1 Bl. Com. 443, & n (12).) 
 
 But this parental power does not extend to ap- 
 prenticing a minor child, without his assent, expressed 
 for the most part by his being a party to the inden- 
 tures of apprenticeship, which, without the child's 
 concurrence, are at common law, not merely voidable, 
 but as to him, totaly void. [Ante p 181, 1'; Bac. Abr. 
 Master, &c. (A), 1 ; Rex v. Armesby, 3 B. & Ald.- 
 (5 E. C. L.) 584; Pierce v. Massenberg, 4 Leigh, 
 493.) And in Virginia, by statute, if the minor be 
 under fourteen years of age, the county or corporation 
 court must add its sanction. (V. C. 1873, c. 122, § 1.) 
 2^. Parent's Power to delegate his Authority after his 
 Death. 
 
 The parent possessed at common law no power to 
 delegate his authority after his death. Such power, 
 wherever it exists, is exclusively statutory, and is there- 
 fore regulated by the terms of the statute. It was iu-st 
 conferred in England by 12 Car. II, c. 24 (A. D. 
 1660), in consequence of the abolition of the Chivalry 
 Tenure of land, to which, down to that time, the 
 wardship most frequently recurring had been incident. 
 Wardship in chivalry having ceased to exist, along 
 with the tenure to which it belonged, the statute in 
 question proposed to clothe the father with power to 
 substitiiS^jito^iiqrdfiHcirmoali&alry by one of his own 
 
CHAP. XVI.J PARENT AND CHILD. 405 
 
 selection. Accordingly, hj 12 Car. II, c. 24, it was 
 enacted that the father (but not the mother) might, 
 by deed or will, confer the custody of his child, either 
 born or unborn, on whom he will (except a Popish re- 
 cusant), until the age of twenty-one. (1 Bl. Com. 453, 
 462 ; Bac. Abr. Guard'n (A), 3.) In Virginia, a sim- 
 ilar power may be exercised by the Jather, but by will 
 only, and not by deed. And the guardian thus ap- 
 pointed is entitled, not only to the custody of the 
 ward's person, saving the right of the mother, as 
 already explained {Ante p. 403, 3^) but also (as it will 
 be remembered, the parent, as such, is not), to the 
 possession, care, and management of his estate ; for 
 the . due administration of which, therefore, he must 
 give bond and security. 
 6e. Period when the Parenfs Power terminates. 
 
 The power of the parent over his child terminates at 
 marriage, as is supposed, or at the age of twenty-one; 
 for the child is then enfranchised, being supposed to 
 have arrived at the age of full discretion, at least at 
 that point which the law has estabhshed, as some must 
 necessarily be established, when the empire of the 
 father or other guardian gives place to the empire of 
 reason. (1 Bl. Com. 453.) At what period precisely 
 it is that the age of twenty-one is reached, whether on 
 the last or the first moment of the twenty-first anniver- 
 sary of birth, or, as Blackstone and other text-writers 
 strangely afiirm (1 Bl. Com. 463, & n (12),) on the 
 day preceding that anniversary, will be explained in con- 
 nexion with the next chapter — of Guardian and Ward 
 {Post p. .) 
 
 4'. The Duties of Legitimate Children to Parents. 
 
 The duties of children to their parents arise from a 
 principle of natural justice and retribution. For to 
 those who gave us existence we naturally owe subjec- 
 tion and obedience during minority, and honor and re- 
 verence ever after. They who protected the weakness 
 of our infancy are entitled to our protection in the in- 
 firmity of their age. They who, by sustenance and 
 education have enabled their offspring to prosper, ought 
 (at least in moral and religious duty, if not in legal 
 obligation) to be supported by that offspring, in case 
 they stand in need of assistance. And upon this princi- 
 ple proceed all the duties of children to their parents 
 which are enjoined by positive laws. Let us then con- 
 sider — (1), The duty of obedience to parents; (2), The 
 duty of protecting parents; and, (3), The duty of main- 
 tenance of /^Iratey by Microsoft® 
 
4:06 PAKBlfT AND CHILD. [bOOK I. 
 
 w. c. 
 
 1^. The Dnty of Obedience to Parents. 
 
 The duty of obedience to parents on the part of 
 minor children is a perfect duty, enjoined by the com- 
 mon law, and which it is lawful for the parent to en- 
 force, as we have seen, in his own domestic forum, by 
 reasonable restraint and correction, and that for the 
 child's benefit. How far the parent's authority may 
 be aided and supplemented by the intervention of a 
 court of equity, seems never to have been precisely de- 
 termined in the case of a parent, although the .power 
 was asserted by Lord Hardwicke, in Hill v. Turner, 1 
 Atk. 516; but as that court assists any other guardian 
 in coercing a just and reasonable obedience on the part 
 of a ward, there seems to be no reason why it might 
 not in like manner interpose, if the occasion for it 
 arose, in behalf of a parent ; although hapless indeed 
 is the parent whose authority and control require thus 
 to be sustained. Thus, in Tremain's Case (1 Stra. 
 167), an infant ward having persisted in going to Ox- 
 ford, contrary to the order of his guardian, who wished 
 him to go to Cambridge, Lord Macclesfield sent his 
 own tip-staif to convey him from Oxford to Cambridge, 
 and upon the youth's returning to Oxford, the chan- 
 cellor dispatched his tip-staff again to carry him to 
 Cambridge, and keep him there. So some years after- 
 wards, in Hull V. Hull, (3 Atk. 721), Lord Hardwicke 
 obliged a lad of sixteen to return to Eton school, 
 where his guardian had placed him, and whence, con- 
 trary to the guardian's wishes, he had withdrawn. (2 
 Stor. Eq. § 1340.) 
 
 The child, owing to the parent this duty of obedi- 
 ence, cannot be expected, immediately after attaining 
 his age, to shake off at once the influence of long habit 
 and duty; and for that reason transactions of business 
 between a parent and a child just come of age are 
 viewed with a jealous eye, and if any undue influfence 
 appears to have been exerted, and especially if any ad- 
 vantage has been taken of the child, a court of equity 
 will interpose and cancel the contract or conveyance, 
 provided the application be not unreasonably postponed, 
 until other persons have acquired rights from the trans- 
 action, or by the death of the parent or otherwise, the 
 explanation of the suspicious circumstances has become 
 impossible or diflScult. But whilst the mere relation 
 of parent and child weighs much in deciding a question 
 of alleged fraudulent advantage, where other circum- 
 stances cgte§^<?gcft^y^«^€'Sj!jp)charge, yet the trans- 
 
<CHAP. XVI.J PARENT AND CHILD. 407 
 
 action is never to be set aside exclusively because of 
 the relation ; nor even though some influence shall 
 seem to have been employed, if the arrangement en- 
 tered into between the parties be reasonable, and for a 
 laudable purpose. (Corking v. Pratt, 1 Ves. Sen'r, 
 401 ; Corry v. Corry, Id. 19 ; Heron v. Heron, 2 Atk. 
 159; Yoimg v. Peachy, Id. 258; Blackborn v. Edgeley, 
 1 P. Wms. 607; Kinchant v. Kinchant, 1 Bro. C. C. 
 369 ; BrowTi v. Carter, 5 Ves. 879 ; Haguenin v. Beaz- 
 ley, 14 Ves. 289; Waller v. Armistead's Adm'rs, 2 
 Leigh, 11; Jenkins & al v. Dye & al, 12 Pet. 253-'4.) 
 2s. The duty of Protecting Parents. 
 
 The duty of protecting parents, like that of protect- 
 ing children, is hardly capable of enforcement by law, 
 and is, indeed, rather permitted than enjoined. A 
 child may uphold his parent in law suits without being 
 guilty of the legal offence of maintenance ; and he may 
 justify an assault and battery in defence of his parent's 
 person as raucli as of his own. Nor does the permis- 
 sion thus extended to the child vary, as iu the Athenian 
 laws, as mentioned by Blackstone, with the character 
 of the parent, the ties of nature not being dissolved by 
 the parent's misconduct. A child, therefore, is equally 
 justified in defending the person or in maintaining the 
 suit of a bad parent as a good one. (1 Bl. Com. 454; 
 Ante, p. 380, 2s.) 
 3s. The duty of the Maintenance of Parents. 
 
 The common law lays not upon children any legal obli- 
 gation to maintain their parents, whatever may be their 
 ability or the parent's need, leaving the child who dis- 
 regards so plain and high a moral and religious duty 
 to the reprobation of society and the reproaches of his 
 own conscience. 
 
 In England the Stat. 43 Eliz. c. 2, has come to the 
 aid of the common law, and in order to relieve the 
 parish, compels children, and perhaps grandchildren, 
 if of sufficient ability, to maintain and provide for their 
 progenitors. But this statute is not in force in Vir- 
 ginia; so that the doctrine here remains as at common 
 law. (1 Bl. Com. 454, n (13); 2 Kent's Com. 208; 
 1 Tuck. Com. (B. I) 128; Kex v. Munden, 1 Str. 190; 
 R. V. Benoier, 2 Ld. Raym. 1554.) 
 2«. Illegitimate Children, or Bastards ; "W. C. 
 1*. Definition of an Illegitimate Child, or Bastard. 
 
 A bastard, by the common law, is one who is not only 
 begotten, but born out of lawful wedlock., or not within a 
 competent time (from nine to ten months) after its deter- 
 mination, 0i|i^fe4(jsj!^/Wc^teff#l wedlock when procre- 
 
408 PARENT AND CHILD. [BOOK I. 
 
 ation by the husband is for any cause impossible. (1 Bl. 
 Com. 454, 456, & n (14) 457.) Hence, one born a bas- 
 tard is not, at common law, legitimated by the subse- 
 quent intermarriage of his parents, notwithstanding 
 they acknowledge him as their offspring, a doctrine 
 which is in direct conflict with the civil and canon laws, 
 and for which Blackstone, with his wonted unhesitating 
 commendation of the doctrines of the common law, as- 
 signs several very flimsy reasons, which he supposes 
 may have influenced the brave and sagacious, but semi- 
 barbarous, barons at*the parliament at Merton (20 Hen. 
 Ill, c. 9, A. D. 1325) to return their famous answer 
 to the prelates who wished them to adopt, in this par- 
 ticular, the rule of the civil and canon laws — quod nolunt 
 leges Anglice mutare. And hence, also, if the marriage 
 be ascertained to be unlawful db initio, whether for a 
 legal disability, which, it will be remembered, makes it 
 void per se, and from the begimning {Ante, p. 239, 1^), or 
 for a canonical impediment, by means of a sentence of 
 divorce a vinculo in the life time of both parties, whereby 
 the marriage is annulled ab initio (Ante, p. 236-'7, 1''), the 
 issue is in either case illegitimate, because not born in 
 lawful wedlock. (1 Bl. Com. 456-'7.) 
 
 Upon these common law principles the statutes of 
 Yirginia have made very material and very wise inno- 
 vations. Thus, it is enacted (Y. C. 1873, c. 119, § 6) 
 that if a man having had a child or children by a woman 
 shall afterwards intermarry with her, such child or chil- 
 dren, or their descendants, if recognized by him before 
 or after the marriage (and even after the death of the 
 child), shall be deemed leaitimate. (Ash v. Way's Adm'r, 
 2 Grat. 203.) And also (V. C. 1873, c. 119, § 7), that 
 " the issue of marriages deemed null in law, or dissolved 
 by a court, shall nevertheless be legitimate." (Stone v. 
 Keeling, 5 Gall, 143.) 
 
 The definition of a bastard, therefore, is not the same 
 with us as at common law, but may be expressed thus : 
 "A bastard, in Yirginia, is one born out of wedlock 
 (lawful or unlawful), or not within a competent time 
 after the coverture is determined (which time is ascer- 
 tained by statute not to exceed ten months (Y. C. 1873, 
 c. 119, § 8); or if born out of wedlock, whose parents 
 do not afterwards intermarry, and the father acknow- 
 ledge the child; or who is born in wedlock, when pro- 
 creation by the husband is for any cause impossible." 
 
 From what has been said, it appears that all children 
 born before matrimony are with us bastards, unless the 
 parents a,{WigrUi^el b^&iioia3tspft@xd the father acknow- 
 
CHAP. XVi.] PARENT AND CHILD. 409 
 
 ledge the child; and so it is of all children born so long 
 after the determination of the coverture, by death or 
 divorce, that, by the usual course of gestation, they could 
 not have been begotten by the husband. But this being 
 a matter of some uncertainty, the lavsr is not exact as to 
 a few days. The usual period is nine calendar months ; 
 but there is very commonly a difference of one, two, or 
 three weeks ; and therefore, in order to prevent contro- 
 versy, our statute has prescribed, as we have seen, a 
 Tnaximum period, in cases of inhentance, of ten months. 
 " Any person in ventre sa mere, who may be born in ten 
 months after the death of the intestate, shall be capable 
 of taking the inheritance in the same manner as if he 
 were in being at the time of such death. (V. C. 1873, 
 c. 119, §8.) 
 
 The uncertainty in point of fact of the precise period 
 of gestation gives occasion to a proceeding at common 
 law, when a widow is suspected to feign herself with 
 child, in order to produce a supposititious heir to the 
 estate; an attempt which the rigor of the Gothic Con- 
 stitutions esteemed equivalent to the most atrocious 
 theft, and therefore punished with death. In this case, 
 at common law, and with us, the heir, or other person 
 interested, immediately or contingently, may have a writ 
 de venire inspiciendo, to examine whether she be with 
 child or not; and if she be, to keep her under proper 
 restraint till delivered; which is also entirely conform- 
 able to the practice of the civil law; but if the widow, 
 upon examination, be proved not pregnant, the presump- 
 tive heir or successor to the estate shall be admitted to 
 the inheritance, though liable to lose it again, on the 
 bu'th of a child within the legal period. 
 
 The writ de ventre inspiciendo — which is said to be of 
 common right, and not in the discretion of the court, — 
 directs the sheriff or sergeant to summon a jury of 
 twelve men, and as many women, by whom the female 
 is to be examined (Jtractari per ubera et ventrem), in the 
 presence of the men, the exigency of the case dispensing 
 at once with common decency and respectful deference 
 to the sex. If this mandate were strictly observed, ac- 
 cording to its terms, it would be, as Mr. Hargrave justly 
 observes, an intolerable grievance. It seems, however, 
 that the courts have, sometimes, at least, winked at the 
 men's withdrawing themselves during the search. It 
 appears from some of the reports, that it was so man- 
 aged in Willoughby's case, mentioned below, although, 
 according to Croke, the writ was literally complied vnth. 
 At all events, ^^jm%Wb'^m&(Wfmi P^^t, the coui-ts 
 
410 PARENT AND CHILD. [bOOK I. 
 
 have been accustomed to make a previous order that the 
 writ should issue unless by a designated time, and from 
 time to time afterwards, the female shall submit to a • 
 satisfactory examination by women of skill, who may 
 report her condition to the court; and thus the actual 
 employment of the writ seems to have been avoided. 
 (Keg. Brev. Orig. 227 a; 1 Th. Co. Lit. 143-'4, & n (7); 
 Yin. Abr. Ventre Inspic'o (A); Willoughby's case, 2 
 Cro. (Eliz.) 566; Theaker's case, 3 Cro. (Jac.) 685; Ais- 
 cough's case, 2 P. Wms. 591 ; Ex parte Wallop, 4 Bro. 
 C. C. 90.) The exercise of such a dispensing fovjer by 
 the courts, in order to soften the rigor of the proceed- 
 ing, suggests, in Mr. Hai'grave's opinion, the expediency 
 of a statute to regulate it, and bring it more in harmony 
 with the demands of modern propriety; and, it might 
 be added, to make the examination more trustworthy, 
 by confiding it to two or three skilled persons. 
 
 If a man dies, and his widow soon after marries again, 
 and a child is born within such a time as that, by the 
 course of nature, it might have been begotten by either 
 husband, in this ease, according to Blackstone (1 Bl. 
 Com. 457), the child, when he arrives at years of dis- 
 cretion, may choose which of the fathers he pleases. 
 The better opinion, however, seems to be that the pa- 
 ternity is a fact which is to be determined by the proofs. 
 Thus, in Theaker's case, 3 Cro. (Jac.) 685, the husband, 
 Theaker, died 15th February, 1623, and his wife Mary 
 married Duncombe, who had been previously suspected 
 of being her paramour, within a week afterwards. The 
 cousin and heir of Theaker, the deceased husband,sued out 
 the writ de ventre, &c., which was expressed in the form 
 above described, and, according to Croke, was executed in 
 conformity to its terms. She was found with chUd, and 
 being delivered, the child, although born two hundred 
 and eighty-one days and sixteen hours after Theaker's 
 death, was yet, notwithstanding her incontineney and 
 her precipitate marriage, subsequently found, by the 
 verdict of a jury, to be the issue of Theaker. (Lilly's 
 Pract. Reg. 776-'7; 1 Th. Co. Lit. 140, n (2).) 
 
 To prevent this ambiguous paternity, and also other 
 civil inconveniences, the Koman law ordained that no 
 vndow should marry for a year, infra annum luclus; and 
 the same constitution was probably handed down to our 
 early British ancestors, from the Romans, during their 
 stay in Britain; for we find it established under the 
 Saxon and Danish governments, although lost sight of 
 by the common law after the Conquest. (1 Bl. Com. 
 Digitized by Microsoft® 
 
CHAP. XVI.] PARENT AND CHILD. 411 
 
 456-'T; 1 Th. Co. Lit. 140, n (2); Theaker's Case, 3 
 Ci*o. (Jac.) 685.) 
 
 As bastards may be born before the coverture is be- 
 gun, and also after it is ended, so also, as may be gath- 
 ered from the definition, children born during wedlock 
 may be bastards where procreation by the husband ap- 
 pears to have heen impossible. 3nt proiaiilities in such 
 a case are not to be weighed. The law presumes ahso- 
 lutely for the legitimacy, unless procreation by the hus- 
 band is proved to have been impossible. It admits of 
 no inquiries, at once uncertain and indecent, amongst 
 nnere probabilities. Such impossibility may arise, not 
 only from the husband's continued absence abroad, dur- 
 ing the period when the child must have been begotten 
 (according to a once prevalent idea), but from any cause 
 whatever; as from the husband's impotency, growing 
 out of his extreme youth (being under fourteen) ; from 
 the proved non-access of the husband within such period 
 as by the law of nature would render it possible for 
 him to have begotten the issue; from presumed non- 
 access (which, however, may be rebutted), in case of a 
 divorce a mensa et tore; or from the child being of 
 mixed race (mulatto), whilst the husband and wife are 
 of unmixed, and of the same race, as both white, or 
 both negro. The fact of access, where it is possible, is 
 always presumed conclusively; but non-access (that is, 
 the non-existence of sexual intercourse), or rather the 
 impossibility of access, under the circumstances, as well 
 as the fact of impotency, may in all cases be proved by 
 such legal evidence as is admissible in other instances 
 where a physical fact is to be established. (1 Th. Co. 
 Lit. 138-'9, and n's (1), (B), (2); Bac. Abr. Bastardy (A) 
 Banbury Peerage Case, 1 Sim. & Stu. (1 Eng. Ch.) 153 
 Head v. Head, Id. 152; 2 Greenl. Evid, § 150 to 153 
 Stegall V. Stegall's Adm'r, 2 Brock. 258; Lyle v. O. P. 
 Ohio County, 8 Grat. 20; Watkins v. Carlton, &c., 10 
 Leigh, 574.) 
 
 A similar presumption of legitimacy arises when the 
 child is bom in wedlock, although at too short an inter- 
 val after marriage to have been begotten in wedlock; 
 and it prevails not only where the woman is grossment 
 enceinte, in which case the marriage may fairly be re- 
 garded as a public acknowledgment by the husband that 
 the child is his ; but it is so also where the pregnancy was 
 not obvious to view. The presumption of legitimacy 
 can only be repelled, as in other cases, by proving the 
 iTnpossibility of procreation by the husband. (Bac. Abr. 
 
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412 PAEENT AND CHILD. [BOOK I> 
 
 Bastardy (A); Bowles v. Bingham, 2 Munf. 442; S. C. 
 3 Munf. 599 ; Rex v. Luffe, 8 East. 193.) 
 2'. The duty of Parents to Bastards. 
 
 The parent (that is, the father) of a bastard owes him 
 in law, for the most part, no other duty than that of 
 maintenance; and he owes that not by the common law, 
 but only by virtue of the statute. For though bastards 
 are looked upon, so far as regards the father, as not his 
 children to any definite civil purposes, yet the obligations- 
 of nature, of which main^nance is one, are not so easily 
 dispensed with; and these obligations hold indeed, as 
 to many other particulars — as, especially, that no mar- 
 riage shall take place within the prohibited degrees of 
 kindred; as, for example, between (or with) bastard 
 sons and daughters. The Roman law, therefore, when 
 it denied maintenance to bastards begotten under cer- 
 tain atrocious circumstances, was neither consonant to 
 nature nor reason, however profligate the parents may 
 have been. (1 Bl. Com. 458.) 
 W C. 
 1*. The Mode of Compelling a Father to support his 
 Bastard Child. 
 
 The mode of compelling a father to support his bas- 
 tard offspring is purely statutory, the obligation not 
 being recognized by the common law, because it was 
 conceived that there was no certain mode of ascertain- 
 ing who the father was. The provisions of our statute, 
 as hitherto it has been, may be seen, V. C. 18T3, c. 121, 
 § 1 & seq.; and although, by Acts 1874-'5, c. 112, p. 
 94, the statute has been repealed, apparently from 
 apprehensions of collision with the Federal authorities, 
 yet as a sound public policy will almost surely soon 
 demand its substantial reinstatement, it is deemed best 
 not to pretermit it. 
 
 The original complaint can be made by the mother 
 alone, and not by the overseer of the poor, although 
 the sole purpose of the proceeding is to procure indem- 
 nity for the parish against the expense of the bastard's 
 maintenance. But after the accusation has been once 
 made, the proceeding thereupon may be had at the 
 instance either of the woman, or of the overseer of the 
 poor. (Y. C. 1873, c. 121, § 1,3; Bac. Abr. Bastardy 
 (E), B. 2, §2, (p. 105); Mann v. Com'th, 6 Munf. 452.) 
 According to the terms of the statute (V. C. 18T3, 
 c. 121, § 1), the complaint may be preferred by "any 
 unmarried white woman" who "has been delivered" of 
 a bastard child. But both the English cases and our 
 own conQ«gilfzafiJ!yraM£«pfiOf5S@thstanding its terms, as 
 
CHAP. XTI.J PAEENT AND CHILD. 413 
 
 applicable to the case of a married woman delivered of 
 a child, who could not possibly, under the circum- 
 stances, have been begotten by the husband, from what 
 cause soever the impossibility proceeds, whether from 
 the husband's absence, and therefore non-access (as in 
 Rex V. Albertson, 1 Ld. Raym. 395; R. v. Luffe, 8 
 East. 193; Lyle v. O. P. Ohio Co., 8 Grat. 20), or from 
 his impotency (as in Foxcroft's Case, 2 Rolle Abr. 
 353; Bac. Abr. Bastardy (A.); Rex. v. Lnffe, 8 East. 
 193), or from the child being of mixed race, whilst 
 the husband and wife are of unmixed, and of the same 
 race (as in Watkins, &c., v. Carlton, &c., 10 Leigh, 
 674.) 
 
 The statute still requires the woman to be white, so 
 that no provision exists to compel a putative father to 
 maintain a bastard born of a colored woman (that is, a 
 woman having one-fourth or more of negro blood), or of 
 an Indian woman (that is, a woman having one-fourth 
 or more of Indian blood). (V. C. 1873, c. 103, § 2.) 
 It has been thought by some, however, that this diver- 
 sity, at least when the proceeding is by the wom.an 
 herself, may be obviated, if not by the Civil Rights act 
 of 1866 (14 U. States Stats. 27); yet by Amendments 
 to the U. S. Constitution, Art. XIY, § 1, whereby it is 
 declared that " all persons born or naturalized iii the 
 United States, and subject to the jurisdiction thereof, 
 are citizens of the United States, and of the State 
 wherein they reside"; that "no State shall make or 
 enforce any law which shall abridge the privileges or 
 irrvmunities of citizens of the United States," nor " deny 
 to any person within its jurisdiction the egual benefit of 
 the laws." To this suggestion it would seem to be a 
 fiufificient answer that the proceeding, as we shall pres- 
 ently see, is solely for the indemnity of the parish, and 
 can in no case redound to the benefit of the mother, 
 the parish being alike liable to support the child, and 
 the mother not liable, whether the putative father can 
 be subjected or not. It is not, therefore, a proceeding 
 for the security of her person or property ; and the 
 State, by refusing to compel a putative father to main- 
 tain a bastard born of any other than a white woman, 
 does not abridge the privileges or immunities of such a 
 mother, nor deny to her the equal benefit of the laws. 
 It is probable, however, that the retention of the word 
 " white " will not be deemed indispensable, the discre- 
 tion and discernment of the county and corporation 
 courts affording adequate protection against the false 
 
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414: PABENT AND CHILD. [bOOK I. 
 
 accusations of colored women; and that the word will 
 be ultimately stricken out. 
 
 The reader will observe that no accusation is per- 
 mitted to be made until the woman has been actually 
 delivered. 
 
 The complaint is to be preferred (V. C. 1873, c. 121, 
 § 1,) before a justice of the peace of the county or cor- 
 poration in which the woman has ^'■resided" (that is, 
 has been '■'■ domiciled^'') "for the next preceding year." 
 The justice is required to examine the woman " under 
 oath, and reduce her stateiftent to writing, and sign it;" 
 and on such examination, "unless the child appear to be 
 seven years old" (in which case it is supposed that it is 
 not likely to become chargeable to the parish), " a war- 
 rant may be issued requiring the person so accused to 
 be apprehended and brought before a justice of the 
 county or corporation in which he may he found, who 
 shall require him to enter into a recognizance, with 
 one or more s.ufficient sureties, in not less than $50, 
 nor more than $200, to appear at the next term for 
 the county or corporation in which the warrant is is- 
 sued, to abide the order of the court" which recognizance 
 is to continue in force until final judgment, unless the 
 accused, being required, shall give a new recognizance, 
 or shall be committed to jail. (V. C. 1873, c. 121, § 1, 
 2 ; Mann v. Commonwealth, 6 Munf . 452 ; Howard v. 
 O. P. Powhatan Co. 1 Eand. 464.) 
 
 At the hearing before the court, the woman is a 
 competent witness, unless she has been convicted of some 
 crime (felony, or other infamous offence), which would 
 render her incompetent in another cause. And the 
 accused also, if he desire it, may be examined on oath, 
 and his statement be weighed along with hers. If upon 
 the whole the court shall adjudge the accused to be the 
 father, it shall order him to pay to the overseers of the 
 poor, for the maintenance of the child, such sums for 
 each year as it may deem proper, until such time as the 
 court may appoint, unless tlie child die sooner ; the 
 payment to be secured by bond, with sufficient sureties, 
 and he to stand committed to jail until the bond be 
 given in court or filed in the clerk's office, or the wo- 
 man and the overseers consent to his discharge, or he 
 be otherwise legally discharged. And as often as the 
 condition of the bond is broken by non-payment, the 
 money due, with lawful interest thereon, may be re- 
 covered in the court of the county or corporation, on 
 motion of the overseers, on ten days' notice. The at- 
 torney fo£jthg^|ojigt7^r,c^org^^tion is required to ap- 
 
CHAP. XVI.J • PARENT AND CHILD. 4:15 
 
 pear on behalf of the woman, or of the overseers of the 
 poor, in such motions, and in all the proceedings for 
 [bastardy. (V.. C. 1873, c. 121, § 5 to 8 ; Id. c. 163, | 
 4 ; Bac. Abr. Bastardy, (E).) 
 
 It should be observed, that although in Virginia the 
 woman is, by the terms of the statute, a competent 
 witness, in some of the States there is the remarkable 
 qualification that she must, during her travail, have 
 charged the accused, whilst in others it is required that 
 she should have continued constant in her accusation of 
 him. And whilst with us there is express power con- 
 ferred on the court to oblige the accused to continue 
 the annual payments " until such time as the court may 
 appoint, unless the child die sooner," sach a vague and 
 unlimited order, which might extend beyond the bas- 
 tard's minority, would, independently of the statute, 
 be quashed for uncertainty ; and so also, even under 
 the statute, would be an order to pay to the overseers 
 unconditionally to a certain age of the child, because 
 it might die meanwhile ; and it is a fundamental 
 principle underlying the subject that the parish can 
 never demand anything hut an indemnity for the outlay 
 actually incurred. (Bac. Abr. Bastardy (E) ; Id. Bas- 
 tardy (E), B. 2, § 6, (p. 106); Kex v. Barebaker, 2 
 Salk. 478, pi. 24 ; E. v. Street, 2 Stra. 788) 
 
 As the statute seeks to charge the putative father 
 merely in order that he may indemnify the parish for 
 the bastard's maintenance, he is liable only from the 
 time the bastard becomes thiis chargeable to the parish, 
 although it is not necessary that the parish should have 
 actually paid the money, if it is liable to pay it. (Bac. 
 ; Abr. Bastardy, (E); Falls v. O. P. Augusta Co. 3 
 ' Munf. 495 ; Lyle v. 0. P. Ohio Cc. 8 Grat. 20 ; Wil- 
 lard V. O. P. Wood Co. 9 Grat. 139.) It follows, also, 
 that even if a bond were executed to the overseers for 
 the payment of a given sum, at all events, it is still no 
 more than an indemnity, — and that is all the overseers 
 can ask, or can recover upon it ; so that no action can 
 be maintained by them on such bond, if they have 
 neither paid nor incurred any expense. Nay, if the 
 putative father has paid the overseers a sum of money 
 in gross, in satisfaction of the parish's demands upon 
 him, and the child dies, the father may recover the 
 residue unexpended, as money had and received to his 
 use. It is, indeed, a transaction objectionable in point 
 of policy, and not warranted by law, thus to receive a 
 sum in gross, and if received otherwise than a mere in- 
 demnity,^M]^Jpgd ^y^^^JgB^gie parish officers to ne- 
 
416 PARENT AND CHILD. • [bOOK I. 
 
 gleet the child, or even to abridge its life. Hence, al- 
 though the overseers who received the money have 
 gone out of office, and have .turned the money unex- 
 pended over to their successors, they are notwithstand- 
 ing liable to an action therefor. (Bac. Abr. Bastardy 
 (E>; Cole v. Gower, 6 East. 110; Wilde v. Griffin, 5 
 Esp. 141 ; Watkins v. Hewlett, 1 Bro. & B. (5 E. C. 
 L.) 1 ; Townson v. Wilson & als, 1 Camp. 397 ; Stain- 
 forth V. Staggs, Id. 398, note, & 564.) 
 
 To an action by the overseers upon such a bond of 
 indemnity as is above supposed, it is no defence on 
 the part of the putative father to aver an offer to take 
 and keep the child himself, because he has no right to 
 its custody, as we shall presently see, and besides that 
 is no fulfilment of the condition of the bond. (Bac. 
 Abr. Bastardy (E) ; Strangways v. Bobinson, 4 Taunt. 
 498; Pope v. Sale, 7 Bingh. (20 E. C. L.) 477.) 
 2«. The Custody of Bastard Children. 
 
 The putative father of a bastard, although con- 
 strained to support it, has still no claim to its custody, 
 at least as against the mother. As against a stranger, it 
 might be otherwise. (The People v. Landt, 2 Johns. 
 (N. T.) 375 ; Carpenter v. Whitman, 15 Johns. 209 ; 
 Holland v. Malken, 2 Wils. 126 ; Eex v. Soper, 6 T. ■ 
 E. 278; R. v. Moseley, 5 East. 224, in notes; Ex parte 
 Ann Knee, 1 Bos. &' P. (IST. E.) 149.) The mother, 
 however, is the natural guardian of the child, primarily 
 entitled to the care and custody of it; but subject, as 
 we have seen legitimate parents also are, to be deprived 
 of such custody by the court of chancery for grave 
 reasons. {Cases supra; Ante p. 399, 1''.) 
 3'. The Eights and Incapacities of Bastards ; W. C. 
 Is. The Eights and Incapacities of Bastards at common 
 law ; W. C. 
 1^. The Rights of Bastards at common law. 
 
 The rights of a bastard at common law, in respect 
 of property, are very few, being such only as he can 
 himself acquire; for he can inherit nothing, being 
 looked upon as the son of nobody ; and accordingly he 
 is called sometimes filius nullius, and sometimes flius 
 populi. But although considered Jilius nullius, with 
 respect to inheritance and successions, the illegality 
 of any incestuous matrimonial connexion which he 
 may form is as much noticed, and punished, as if he 
 were legitimate. And although he can inherit noth- 
 ing, not even a surname, yet he may gain a surname 
 by reputation, and by that name, or by any other 
 certain 0)i^'ffl?S^ijS3jigWft»®sfelJgnation or description, 
 
CHAP. XTI. PARENT AND CHILD. 417 
 
 may acquire property, real or personal, by grant or 
 by will. It was, indeed, at one time supposed that a 
 limitation to a bastard unborn, and yet en ventre sa 
 mere, was void, because it was thought that he could 
 only take by a named gained by reputation, which of 
 course could only be after his birth. It is, however, 
 well settled at present that all that is required is sim- 
 ply a description so definite as to ascertain clearly 
 the individual who is intended to be the grantee or 
 devisee. Hence a bastard may take property by his 
 name of reputation ; by his acquired character as the 
 acknowledged or commonly reputed child of a certain 
 father; by his description as the child of his mother, 
 which is hardly less certain than if he were legiti- 
 mate; and although he be yet en ventre sa mere, by 
 the description of the child of which a designated 
 woman is enceinte, provided, in this latter case, 
 there is no reference to the pitemity. If that ele- 
 ment (of the paternity) is introduced into the 
 description, it renders the person intended uncertain, 
 and so invalidates the grant or devise. Thus a legacy 
 to "the child of which A (an unmarried woman) is 
 enceinte," is certainly good, and one to "the child of 
 which A is enceinte by me," is as certainly void. 
 There are cases, however, where the application of 
 this distinction is nice and uncertain. Thus, if a 
 testator says, "Whereas, A is enceinte by m.e, I be- 
 queath to the child of which she is pregnant," such a 
 legacy, the motive of the bequest, and the condition pre- 
 cedent to its takiug effect, being the fact of his being 
 the father of the child, which in law is not susceptible 
 of proof, the legacy fails. But if the language of the 
 will be, " Whereas, I have reason to believe that A is 
 enceinte by me, I give the child of which she is now 
 pregnant," such a legacy, — the motive of the gift is 
 his belief, whether well or ill founded, and the actual 
 fact of his paternity is not drawn in question; and, 
 therefore, the legacy is good. (1 Bl. Com. 459, & 
 n's (19) and (20); 1 Hop. Leg. 177-'8; 1 Th. Co. Lit. 
 148-'9, and n (H); Metham v. Duke of Devon, 1 P. 
 Wms. 529; Earle v. Wilson, 17 Yes. 528; Wilkinson 
 V. Adam, 1 Ves. & B. 422; Gordon v. Gordon, 1 
 Meriv. 141, 150, 153 ; Evans v. Massey, 8 Price, 22.) 
 On the other hand, a legacy or other gift to the 
 unbegotten illegitimate child of a designated woman, 
 even irrespective of the father, is liable to objection 
 on the score of the immoral tendency of such dispo- 
 
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418 PARENT AND CHILD. • [bOOK I. 
 
 sitions, if they -were allowed, and for that reason 
 would probably be held to be void. (2 Lom. Ex'ors, 
 36 ; Metham v. Duke of Devon, 1 P. Wms. 529.) 
 
 The terms, child, son, issue, &c., are in general to 
 be considered prima facie, to mean at common law, 
 a legitimate child, son, issue, &c., so that a gift even 
 by will to one's own children, or to the children of 
 another, will exclude illegitimate children, unless 
 something appears from the vnll itself (and not by 
 extrinsic proof merely), suflBcient to show that the tes- 
 tator intended them ; as, for example, where bastards 
 are plainly designated as beneficiaries, or where there 
 are no children hut dastards, and no reasonable j?ossi- 
 • bility of any. This principle grows logically out of 
 the maxim " qui ex damnato coitu nascuntur, inter 
 Itberos non computentur ;" for as a bastard is not 
 reckoned a child, it follows, of course, that he cannot 
 take merely by that description, but that there must be 
 something else indicating him as the person intended. 
 This something must usually appear on the face of the 
 will, and for the most part cannot be extrinsically 
 proved ; but that doctrine does not exclude proof of 
 the surrounding circumstances in the light of which 
 wills and other writings are always to be interpreted. 
 (1 Bl. Com. 459, n (20) ; 1 Th. Co. Lit. 148, & seq.; 
 2 Lom. Ex'ors, 34-'5 ; 1 Eop. Leg. 81, & seq, 85 & 
 seq ; Cartwright v. Yaudry, 5 Ves. 530 ; Wilkinson 
 V. Adams, 1 Yes. & B. 464 ; Swaine v. Kennerly, , 
 465, 469 ; Beachcroft v. Beachcroft, 1 Mad. 430, 433; 
 Woodhouselee v. Dalrymple, 2 Mer. 419; Gill v. 
 Shelley, 2 Euss. & My. (13 Eng. Ch.) 336 ; Meredith 
 V. Farr. 2 Yo. & Col. (21 Eng. Ch.) 525 ; Evans v. 
 Davies, 7 Hare, (27 Eng. Ch.), 501 ; Dover v. Alex- 
 ander, 2 Hare, (24 Eng. Ch.), 281-'2.) 
 
 Though a bastard may be a reputed child, yet he 
 is not such a child for whom, in consideration of Mood, 
 an iise can be raised under the Statute of Uses. Thus, 
 if one covenant, in consideration of natural love and 
 affection for his illegitimate child, to stand seised of 
 land to his use, no use arises, and the covenant oper- 
 ates nothing, for want of a sufficient consideration; 
 the law taking no notice of any other kinship than such 
 as arises through the pure channel of marriage, from 
 laxoful llood. (1 Bl. Com. 459,n (20) ; 1 Th. Co. Lit. 
 147, & n (8); Gilb. Uses, 113, 207; Worseley's 
 Case, 3 Dyer, 374 a.) And upon reasoning some- 
 what similar, it has been doubted whether equity 
 will sup^W^tfeKMOfeS^^nce from a father to 
 
CHAP. XTI.] PARENT AND CHILD. 419. 
 
 an illegitimate child. This donbt, however, is con- 
 sidered as straining the objection too far, and the 
 generally admitted doctrine is that equity will uphold 
 and enforce, as founded on a meritorious consideration, 
 an imperfect deed by a father, providing for his natural 
 children and their mother. (2 Kent's Com. 216-17; 
 Annandale v. Harris, 2 P. Wms. 432 ; .Kruge v. 
 Moore, 1 Sim. & Stu. (1 Eng. Ch.) 61.) 
 
 If a bastard die, seised of real estsite of inheritance 
 without having devised it, and without issue, the es- 
 tate, at common law, escheats to the King, or other 
 immediate lord of the fee ; but in Yiew. of the ap- 
 parent hardship of this doctrine, it is usual in such 
 cases to transfer the rights of the crown, for a trivial 
 consideration, to some one of the relations.; And so, 
 likewise, in the case of personal estate, when a bas- 
 tard dies intestate, and without issue, the King is en- 
 titled thereto, and it is customary for the. Crown to 
 grant the right of administration, and with it the right 
 to the subject, to the next of kin, on whom letters of 
 administration are conferred accordingly. (1 Bl. Com. 
 459, n (20) ; 1 Th. Co. Lit. 150, n (K.) ; Manning v. 
 Napp, 1 Salk. 37; Jones v. Goodchild, 3 P. Wms. 33.) 
 
 A conveyance to a bastard and his heirs is a, fee 
 simple, although he can have no lieirs but those of 
 his own body. (1 Prest. Est. 468 ; Idle v. Cook, 2 
 Ld. Kaym. 1152); and hen'ce, a remainder limited 
 after sucli an estate is void. 
 
 Bastards have \h.&vc pn-]iiary settlement in general, 
 in their mother's proper parish, having no father; so 
 that if she be illegally removed by the parish autho- 
 rities to another county, or betake herself thither as a 
 vagrant, or lie in there in a licensed hospital for preg- 
 nant women, and thus the child comes to he born out 
 of her parish, yet notwithstanding, it has its legal 
 settlement where her's is. (1 Bl. Com. 459.) 
 2''. The Incapacities of Bastards at Common Law. 
 
 The incapacities of a bastard at common law resolve 
 themselves principally into this, namely : that he 
 cannot be heir to any one, neither, can he have heirs 
 but of his own body; for heiag flius.'nullius, he is 
 therefore in law of kin to nobody, not even to his own 
 mother, and has no ancestor from whom any inheri- 
 table blood can be derived; and in all other respects 
 there is no diiference between a bastard and another 
 man. (1 Bl. Com. 459.) 
 
 Lastly, a bastard's incapacities may be removed by 
 making E^tl^^ibytfi^mosli^^ case he becomes cap a- 
 
420 PARENT AND CHILD. [bOOK I. 
 
 ble of inlieriting and transmitting inheritance like 
 other persons. But tliis can be effected no otherwise 
 than by the transcendent power of an act of Parlia- 
 ment, as was done in the case of John of Gaunt's 
 bastard children, by a statute of Richard the Second. 
 (1 Bl. Com. 459.) 
 2^. The Higkts and Incapacities of dastards in Yirginia. 
 The common law in few things offends so much 
 against common reason and justice as in its doctrine 
 touching bastards. Thjit a bastard should inherit 
 neither name nor estate from an unascertained father, 
 is not unreasonable ; but why should he not derive both 
 estate and name from his mother, and transmit his own 
 property to his maternal relatives? The pretension 
 that the feudal barons would not be served by any 
 vassal unless of stainless birth is in ridiculous contrast 
 with their own habits of life; nor is the consideration 
 that the doctrine in question encourages matrimony 
 and discourages vice, and that it iipholds purity of 
 manners by enlisting on its side the sensibilities of 
 nature for the reputation of one's offspring, sufficient 
 to reconcile the understanding or the heart to the 
 painful subversion which the doctrine occasions, of the 
 obligations of kindred. The principle, indeed, seems 
 to have no better real foundation than a desire to com- 
 pound for personal immoralities by heaping marks of 
 ignominy tipon' the innocent offspring of licentious love. 
 The legislature of Yirginia long since removed this 
 stigma upon the good sense of the law, by declaring 
 (Y. C. 1873, c. 119, § 5) that " bastards shall be capa- 
 ble of inheriting and transmitting inheritance on the 
 part of their mother, as if lawfully begotten." Hence, 
 where a bastard died seised and possessed of a con- 
 siderable estate, real and personal, intestate, unmarried, 
 and vdthout issue, leaving as his nearest of kin his 
 mother and two bastard brothers, his estate was dis- 
 tributed as it would have been had he and the brothers 
 been all lawfully begotten, but by different fathers ; 
 that is, it was divided agreeably to the statute of Des- 
 cents (Y. C. 1873, c. 119, § 1, 2, 3, 10,) into four parts, 
 of which each brother (as being of the half-blood) had 
 one, and the mother, taking with reference to the half- 
 blood, a double portion, had two. (Garland v. Har- 
 rison, 8 Leigh, 358 ; Hepburn v. Dundas, 13 Grat 219, 
 223-4 ; Lessee of Brewer v. Blougher, 14 Pet. 178.) 
 It may be proper to remark that in Stevenson's 
 heirs v. Sullivant, 6 "Wheat. 255, the Supreme Court 
 of the TffeK'&aegd^eSf'When as yet there had been no 
 
CHAP. XVI.J PARENT AND CHILD. 421 
 
 adjudication of Yirginia courts upon the statute, inter- 
 preted its language as entitling bastards to inherit 
 from the mother only, and not from the collateral line 
 on the mother's side, as from a brother of the bastard. 
 But this construction is -wholly overruled in the above 
 stated cases of Garland v. Harrison, 8 Leigh, 368 ; and 
 Hepburn v. Dundas, 13 Grat. 226-'7; and in Lessee of 
 Brewer v. Blougher, 14 Pet. 178, is abandoned by the 
 Supreme Court itself. 
 
 For a learned abstract of the rights and disabilities 
 of bastards in different ages and nations, see note by 
 Mr. "Wheaton to Stevenson's heirs v. Sullivant, 5 
 Wheat. 262. And for the Koman law on the subject, 
 the reader is referred to Gibb. Decl, & Fall, c. xliv. 
 
 Notwithstanding the objections which seem fairly to 
 lie to the doctrines of the common law, touching the 
 disabilities of bastards, yet several of the States of the 
 Union adhere to them in their rigor, and most have 
 stopped considerably short of the provisions of our 
 Virginia law. See 4 Kent's Com. 414-'15 ; 1 Bop. Leg. 
 80, n (10). 
 
 On the paternal side, the condition of bastards is 
 unchanged in Virginia. As to the father, the bastard 
 is still quasi filius nullius ; the law indulges no pre- 
 sumption as to his paternity. A devise or bequest to 
 him by his reputed or acquired name, or by a definite 
 designation, is good, whether made by his father or by 
 a stranger; but the well-established common law doc- 
 trine is still applicable on the father's side, namely, 
 that the word children does not include 'bastards, even 
 in a will, save where the intention to do so is plain, as 
 where bastards are clearly designated, or when there 
 are no children but bastards, nor any possibility of any. 
 Ante p. 418, 1'^.) On the motlier's side, however, our 
 statutes have placed him in a very different position. 
 As to her, he does not remain nullius filius. It was 
 the object of our law to give him what at common law 
 he had not, a mother. He is her child in law, as in 
 fact, and as to her the maxim, '■'■qvi ex da-mnato coitu 
 nascuntur, inter liberos non com/putentur^'' has ceased 
 to exist. He is to he counted amongst the children of 
 his mother, and as a consequence will take by virtue 
 of a devise or gift to his mother's children, just as if he 
 were legitimate. (Bennett & ux v. Toler & als, 15 
 Grat. 631.) 
 
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422 GUARDIAN AND WAED. [bOOK I. 
 
 CHAPTER XVII. 
 
 Of Guardian and "Ward. 
 
 4*. The Relation of Guardian and Ward. 
 
 This last of the private relations is nearly allied to that 
 of parent and child. The popular idea of a guardian im- 
 plies orphanage, or at least that ^q father is dead. This, 
 however, is not the legal notion of a guardian. On the 
 contrary, the first and most frequent instance of guardian- 
 ship is that of the rninor's p&rents. A guardian is defined 
 to be one appointed, by tlie policy of the law, to take care 
 of a minor's person or estate, or of both person and estate. 
 (1 Bl. Com. 460; Bac. Abr. Guardian; 2 Kent's Com. 217.) 
 The Roman law styles one charged with the custody of 
 a minor's person, and the care of his education, a tutor, 
 and one to whom his estate is committed, a curator. Our 
 law unfortunately denominates both sets of fiduciaries 
 guardians, thereby giving occasion to not a little con- 
 fusion of thought. The student, therefore, must take care 
 to fix in his memory, in respect to each class of guardian 
 presently to be described, whether he has charge of the 
 person only, or of the estate only, or of both person and 
 estate. (1 Bl. Com. 360; Dig. xxvi, Tit. iv, § 1.) 
 It is proposed to consider the subject thus: 
 1st. The different kind of guardians, how they are ap- 
 pointed, and their power and duty, &c. 
 
 2d. The different ages of young persons for sundry pur- 
 poses, as defined by the law; and 
 
 3d. The privileges and disabilities of a minor under age, 
 and subject to guardianship ; 
 W. C. 
 1*. The different kinds of Guardians, the Mode of their 
 Appointment severally; the Circumstances under which 
 the several kinds of Wardship occur; the Powers and 
 Duties of Guardians; and Guardian's Accounts and Al- 
 lowances; W. C. 
 1'. The different kinds of Guardians, and Modes of their 
 Appointment severally. 
 
 Under this head vnW. be stated the different kinds of 
 guardians, common law and statutory, existing in Eng- 
 , land, proceeding to show whether or not they are re- 
 spectively found in Virginia, together with the modes 
 of appointing them severally. 
 
 The several kinds of guardians are (1), Guardians by 
 nature; (2), Guardians for nurture; (3), Guardians in 
 chivalry; (4), Guardians in socage; (5), Guardians by 
 election; (Q)/c^tegc^i^M^P§9]|^ by chancery courts; 
 
CHAP. XVII.J GUAEDIAN AND WAED. 423 
 
 (7), Guardians appointed by the Ecclesiastical court ; 
 (8), Guardians under the Statute 4 & 5 Ph. & Mary.; (9), 
 Testamentary guardians; (10), Guardians by tlie cus- 
 tom of particular places; and, (11), Guardians ad litem. 
 W. C. 
 1^. Guardians by Nature. 
 
 These exist by the common law. They are the 
 father; or if he be dead, the mother; and if she too be 
 dead, any lineal ancestor of the minor, to whom he is 
 heir; the father having the first claim, the mother the 
 second; and amongst more remote ancestors, he who 
 first obtains possession of the infant, pursuant to the 
 maxim in cequalijure melior est conditio possidentis. (1 
 Bl. Com. 461.) 
 
 Guardianship by nature embraces only the custody 
 of the minor's person and the care of his education, 
 and does not include the care of his estate. It is ap- 
 plicable only to heirs apparent; and when exercised 
 by the father or mother seems, as to the heir apparent, 
 to be little more than the parental control treated of 
 in the last chapter. As to infant children other than 
 heirs apparent, this wardship is not applicable to them, 
 I but guardianship yor nurture, presently to be described, 
 until the age of fourteen. After the age of fourteen, 
 during the rest of their minority, the yoimger children 
 (not heirs apparent), although in general under no 
 wardship to their parents, are yet subject to their 
 parental control and authority, which, in its practical 
 eifeets, seems to differ little, if at all, from a guardian- 
 ship of the person. 
 
 The infant's estate, if he has any, is never committed 
 to the guardian iy nature, merely as such, but to some 
 person duly appointed and qualified as guardian by 
 giving bond, &c., as required by law. (1 Th. Go. Lit. 
 155, n (2) ; Bac. Abr. Guardian (A), 1 ; Eatcliff's Case, 
 3 Co. 37 b, 38 a b ; Armstrong v. Stone & ux, 9 Grat. 
 105, &c.) 
 
 In Yirginia all children, male and female, without 
 regard to primogeniture, are heirs apparent of father 
 and mother by our statute of descents (V. C. 1873, c. 
 119, § 1), and hence all are with us subject to the 
 guardianship hy nature, and such guardianship is other- 
 wise attended with the same incidents as at common 
 law. Thus, it extends to the person only, and not the 
 estate, and continues until the ward attains the age of 
 twenty-one. 
 
 In consequence of its embracing all the children, we 
 are spare^-^ggc^^jg^p^gg^idering practically the 
 
424 GITAEDIAJS AND WARD. [bOOK I. 
 
 question which may arise at common law, as to the 
 effect on the parental authority, in regard to the 
 younger children, of the guardianship Tyy nature, ap- 
 plying only to the heirs apparent, and \h&t fornurture 
 continuing not beyond the age of fourteen. (1 Tuck. 
 Com. (B. I.) 137.) 
 
 The student will not forget that the minor may be 
 taken by the court of chancery out of the hands of a 
 guardian by nature (even though it be a father) when- 
 ever he is plainly .and grossly unfit for it by habits of 
 drunkenness, of blasphemy, of licentiousness, &c. ; and 
 that in "Virginia this jurisdiction (indubitable, apart 
 from the statute) seems confirmed by it. (y. C. 1873,. 
 c. 123, § 13.) The provision is that the circuit, county 
 or corporation courts in chancery "may remove any 
 guardian for neglect and breach of trust, and appoint 
 another in his stead, and make any order for the cus- 
 tody and tuition of an infant." See authorities for- 
 merly cited, and especially 2 Stor. Eq., § 1341, &c.; 2 
 Kob. Pr. (1st Ed.) 154; Ante, p. 399, I''. 
 2s. Guardians for Nurture. 
 
 This guardianship is also of common law origin. It 
 occurs only where the infant is without any other guar- 
 dian, applies to those children who are not heirs ap- 
 parent, and continues only until the ward attains the 
 : age of j'ourteen. It embraces only the care of the per- 
 
 son, and rwt of the estate, and belongs only to the 
 father and mother. And when at the age of fourteen 
 it terminates, \h& .parental authority appears to remain 
 in full force, as to the subjects of guardianship for nur- 
 ture, until the age of twenty-one. (1 Th. Co. Lit. 
 155-'6, n (3); Bac. Abr. Guardian, (A), 1.) 
 
 In Virginia guardianship hy nature seems to have 
 superseded guai-dianship/br nurture by superseding the 
 occasion for it. (2 Kent's Com. 221; 1 Tuck. Com. 
 (B. I) 137.) * 
 3®. Guardians in Chivalry. 
 
 This is a common law guardianship. It was inci- 
 dent exclusively to the tenure of lands by knight-service, 
 or chivalry; and occurred only where the infant was. 
 seised hy descent of lands holden by that tenure. 
 
 The wardship belonged to the lord of the fee, of 
 whom the lands were holden, and included not only 
 the infanfs person, but also such of his lands as were 
 within the guardian's seignory; and where the king 
 was the lord, it included the whole of the infants estate, 
 of whomsoever holden, whatever the tenure, and whether 
 lying in WJgHiBeaitbi/oWlicrosoft® 
 
CHAP. XVII.J GUAKDIAN AND WAED. 425 
 
 The wardship applies to such male heirs as, at the 
 ancestor's death, were under twenty-one, and to such 
 female heirs as were then under fourteen ; continuing, 
 as to m^ales, until twenty-one, and as to females until 
 sixteen or marriage, having the preference, with re- 
 spect to the custody of the infant's person, over every 
 other species of wardship, except only that of the father, 
 in case of his heir apparent, — even the mother being 
 postponed. 
 
 The incidents of this wardship were very remarkable 
 and very oppressive. Thus it was foj' the henejit of the 
 lord, who enjoyed the infant's estates in his hands, 
 without accountability for profits, being only obliged 
 to maintain the ward. And the lord was also entitled 
 to the viarriage of the ward — that is, to as much as he 
 could get for the alliance; and if the ward refused, he 
 forfeited the value of the marriage to his guardian. 
 The nature and explanation of these incidents are set 
 forth by Blackstone (2 Bl. Com. 67-8), to which the 
 student is referred. See 2 Inst. Com. & Stat. Law, 
 c. V. 
 
 Wardship in chivalry ceased with the tenure out of 
 which it arose — namely, by Stat. 12 Car. II, c. 24. A 
 short history of it, showing why the English people 
 endured it so long, the devices resorted to in order to 
 mitigate its oppressiveness, and the slow decline of it 
 before it was finally abolished by 12 Car. II, c. 24, is 
 given very interestingly by Mr. Hargrave, 1 Th. Co. 
 Lit. 152, n (1); see also Katcliff'e's Case, 3 Co. 37 b, n 
 (A); Bac. Abr. Guard'n (A), 1.) 
 
 There never was any tenure by chivalry in Virginia. 
 All our lands were granted by the Crown, to be held 
 "in free and common socage, as of the king's manor 
 of East Greenwich." And consequently there was 
 never in Yirginia such a guardianship as that in chiv- 
 alry. 
 4*. Giiardians in Socage. 
 
 This guardianship exisis at common law, as an inci- 
 dent to lands held by socage tenure. It occiirs where 
 the infant is seised Ijy descent of lands or other heredi- 
 taments holden by that tenure, and is conferred on the 
 next of Mn to the infant, who cannot possibly inherit 
 the lands from him, a precaution adopted in order to 
 remove from the guardian all temptations to employ 
 foul means to clear the way to his own succession. (1 
 Bl. Com. 461 ; 1 Th. Co. Lit. 168, n (14).) 
 
 Unlike guardianship in chivalry, it is in no respect 
 for the/jp^^j^^jgpgg^^ but exclusively for the 
 
426 GUARDIAN AND WARD.' [bOOK I. 
 
 heriefit of the ward. It is therefore neither a subject 
 of alienation,, nor succession to the pefrsonal rejoreaenta- 
 \ ti-ve, as guardianship in chivalry was ; and the guardian 
 must account for all the promts of the ward's estate. 
 
 Although it exists as incident to tenure, it draws to 
 it the custody of the ward'' s person, and of \i\s personal 
 property, as well as of his socage lands; but it con- 
 tinues with either sex only till the ward has attained 
 the age of fourteen. 
 
 The socage tenure being the tenure by which, since 
 12 Car. II, c. 24, the great body of the lands in Eng- 
 land are holden, this species of guardianship is far the 
 most frequent of all at common law, in respect to in- 
 fants who have no father living. 
 
 In Virginia, where, prior to the Eevolution, all the 
 lands were granted by the Crown, to be held in free 
 and common socage, this guardianship was so universal 
 that it was not until 1850 that oUr statutes ceased to 
 recognize it as still subsisting. It was, however, im- 
 possible for it to occur after 1Y79, when all feudal 
 tenures were abolished (10 Hen. Stat. 64; 2 Inst. Com. 
 & Stat. Law, 74-'5); and upon the adoption of the 
 Statute of Descents (V. C. 1863, c. 119, § 1), to take 
 effect Ist January, 1T87, there was a further reason 
 why it could not exist with us — ^namely, that by our 
 law of descents there is no next of kin who cannot iy 
 possibility inherit. 
 5«. Guardians by Election. 
 
 The power of an infant to choose a guardian, arises 
 at common law only when the infant is without any 
 other legal guardian of his person and estate. 
 
 This may happen either hefore or after the age of 
 fourteen, but it is apprehended that if under fourteen 
 the infant is not permitted to choose a guardian, but 
 that the court of chancerj' must appoint him one, — at 
 all events to take charge ot his estate. . His person, at 
 common law, might be, if he were an heir apparent, 
 under his guardian iy nature, or if not an heir apparent, 
 under a guardian /b?" nurture. (1 Bl. Com. 463; Bac. 
 Abr. Infancy, (A); 1 Th. Co. Lit. 157, n (6), 168.) 
 
 The election of a guardian is, in England, often made 
 before a. judge on the circuit, and Mr. Hargrave men- 
 tions an instance of Lord Baltimore, at the age of eigh- 
 teen, making the election of a guardian for some pur- 
 pose connected with his proprietary government of 
 Maryland, iy deed, upon the advice of two eminent 
 barristers. (1 Th. Co. Lit. 157-'8, n (6); 1 Bl. Com. 
 462, n {8'D)gjtized by Microsoft® 
 
CHAP. XVII.] GUAEDIAN AND WARD. 427 
 
 This guardianship must be considered as of common 
 law origin, because it arises out of no statute ; and yet 
 its existence appears to date from a comparatively re- 
 cent period. It is noticed by no writer except Swin- 
 burne, in his Treatise on Testaments, before Lord 
 Coke, and by the latter it is apparently not recognized 
 as strictly legal. (1 Bl. Com. 462, n (8) ; 1 Th. Co. 
 Lit. 157, V (6), 168.) 
 
 This guardianship embraces tlie property as well as 
 the person of the ward, and continues until twenty-one. 
 
 Guardianship by election exists in Virginia — that is, 
 a minor over the age of fourteen may nominate his 
 guardian to the circuit, county, or corporation court, 
 either personally, or in writing, acknowledged before 
 a justice. But if the court does not approve the nomi- 
 nation, it may appoint some one else. (Y. C. 1873, c. 
 123, § 4; Ham v. Ham, 15 Grat. 75 & seq.) The 
 wardship results, therefore, not so much from the elec- 
 tion of the infant as from the appointment iy the court, 
 so that this sort of guardian may be considered with 
 us as identical with that appointed iy the chancery 
 court, which is to be next described. 
 6^. Guardians appointed by the Chancery Court. 
 
 How the court of chancery in England acquired this 
 branch of its jurisdiction is not agreed "amongst English 
 lawyers, although that it exercises it without dispute • 
 is a matter of daily experience. Mr. Hargrave insists 
 that although unquestionable even in his day, it was 
 yet at first an usurpation, originating about the j'ear 
 1696, and having no better excuse than that the case 
 was not sufiiciently provided for otherwise. The King 
 is admitted, as parens patrioe and the universal pro- 
 tector of his subjects, to be entitled to the supreme 
 guardianship of all infants, even though they may 
 have other guardians, or although tlie parents be living ; 
 and it is said that the chancellor exercises this portion 
 of the royal functions by delegation from the crown. 
 Indeed, it is a general maxim, as we have seen, that 
 the court of chancery possesses a general power to in- 
 tervene in behalf of such persons as are unable to pro- 
 tect themselves. (1 Bl. Com. 462, n (8) ; 1 Th. Co. 
 Lit. 158, n (6) ; 2 Stor. Eq. § 1351, 1333; Fonbl. Eq. 
 B. II, Ft. II, c. 2, § 1, n (a); Eyre v. Countess of 
 Shrewsbury, 2 P. Wms. 123-'4 ) 
 
 The wardship in this case embraces l>oth person and 
 property, and continues until the age of twenty -one.. 
 
 In Virginia, the power to appoint guardians is ex- 
 plicitly ^^^^if^^^yi^^%%m^ the circuit; county 
 
428 GUARDIAN AND WARD. [bOOK I, 
 
 and corporation courts, and, as it is understood, in their 
 capacity as courts of chancery. (Ficklin v. Ficklin, % 
 Ya. Gas. 204.) " The circuit, county, and corporation 
 courts," says the statute, (Y. 0. 1873, c. 123, § 3, 4,) 
 " of any county or corporation in which any minor re- 
 sides, or if he be resident out of the State, in which he 
 has any estate, may appoint a guardian for him, unless 
 he have a guardian appointed by his father." " If the 
 minor is under the age of fourteen years, the court may 
 nominate and appoint his guardian ; if he is above that 
 age, he may, in the presence of the court, or in writing, 
 acknowledged before a justice, nominate liis own guar- 
 dian, who, if approved hy the court, shall be appointed 
 accordingly ; and if the guardian nominated by such 
 minor shall not be appointed by the court, or if the 
 minor shall reside witliout the State, or if, after being 
 summoned by the court, he shall neglect to nominate a 
 suitable person, the court may nominate and appoint 
 the guardian in the same manner as if the minor was 
 under the age of fourteen years." But let it be ob- 
 served that the appointment thus of a guardian by the 
 chancery court does not prejudice the right of the 
 father, as guardian hy nature, to the custody of the 
 ward, and the care of his education ; nor if the father 
 be dead, does it prejudice the like claim on the part 
 of the mother, as long as she continues unmarried 
 and is tit for the trust. (Y. C. 1873, c. 123, § 7.) 
 
 The statiite does not in so many words declare just 
 here that the courts above named exercise the function 
 of appointing a guardian, in their capacity as courts of 
 chancery, but it has been so decided judicially (Ficklin 
 V. Ficklin, 2 Ya. Gas. 204 ; Durrett v. Davis, 24 Grat. 
 302) ; and in that capacity expressly they are em- 
 powered (Y. G. 1873, c. 123, § 13,) to " hear and de- 
 termine all matters between guardians and their wards, 
 require settlements of the guardianship accounts, re- 
 move any giiardian for neglect or breach of trust, and 
 appoint another in his stead, and make any orders for 
 the custody and tuition of an infant, and the manage- 
 ment of his estate." (See Y. C. 1873, c. 123, § 13.) 
 
 Mention is often made in the English books of what 
 are called " "Wards of the Gourts of Ghancery." They 
 are minors who, either by petition direct, or in the 
 course of litigation touching their estates, are taken 
 iinder the immediate and special protection of the court, 
 which either appoints a guardian for the minor, or im- 
 poses upon an existing guardian such terms as in its 
 discretioipjpg^qg5)r fi^/croE@ff®"7) oi" *» ^^ concerned 
 
CHAP. XVII.] GUARDIAN AND WARD. 429 
 
 in bringing about the marriage, of an infant ward of 
 court without its consent, is a contempt which is visited 
 with highly penal consequences, including sequestra- 
 tion of the party's property, imprisonment, &e. (Bac. 
 Abr. Guardian," (C); 1 Tuck. Com. (B.I), 141.) A 
 settlement on the wife of her own fortune, at least, or 
 part of it, and if the husband is possessed of an estate, 
 of part of his, is invariably required, regard being had 
 to the circumstances of aggravation or extenuation 
 which mark the particular case. (Stevens v. Savage, 
 1 Yes. Jun'r, 154, & ii (1) ; Stackpole v. Beaumont, 3 
 Ves. Jun'r, 48, & n (2) ; Bathurst v. Murray, 8 Yes. 
 64, & notes ; Nicholas v. Squire, 16 Yes. 260, & n (2).) 
 The doctrines of the English chancery touching this 
 subject have not as yet been practically applied in Yir- 
 ginia; and it is not easy to determine in advance 
 whether, when occasion arises, they will be adopted 
 entire or with modification. It may be conjectured, 
 that as marriage settlements are not frequent with us, 
 nor much favored by the general sense of society, there 
 will probably be less ligor evinced than has been mani- 
 fested in England, to secure a large separate provision 
 for the wife. 
 7^. Guardians by Appointment of the Ecclesiastical 
 Court. 
 
 The cases in wliich the ecclesiastical courts in Eng- 
 land may appoint guardians, or whether they can 
 legally appoint them at all, and the extent of the guar- 
 dian's authority, are so ill-defined that it is needless to 
 do more than to mention the guardianship as one sup- 
 posed sometimes to exist in England. To this class of 
 guardians belong those mentioned by Blackstone, as 
 assigned by the Ordinary (the judge of the JBishqp^s 
 Court), in default of father and mother. (1 Bl. Com. 
 461 ; 1 Th. Co. Lit. 159, n (6).) 
 
 As we have no ecclesiastical coui-ts in Yirginia, of 
 course there can be no such guardianship here. 
 8s. Guardians under the Statute 4 & 5 Ph. & Mary, c. 8. 
 
 The direct ohject of the statute 4 & 5 Ph. & M., c. 8, 
 was to punish and prevent the taking away and marry- 
 ing of maidens under sixteen years of age, without 
 consent of their parents, or of the persons to whom the 
 father had temporarily committed them. But the 
 statute prohibited the act in terms which implied that 
 the custody and education of such females belonged to 
 the father and mother, or to the person appointed iy 
 the father. And accordingly, it is construed to con- 
 stitute tl©;-gj^^gi^g^?l/^j|^^i§^mplated, the guardians 
 
430 GUAEDIAN AND WARD. [bOOK- I.- 
 
 of the persons (but not of the estates) of females under 
 sixteen, even, it is said, though, they be natural children. 
 (1 Bl. Com. 461 ; 1 Th. Go. Lit. 156, n (4).) 
 
 We have in Virginia a statute of nearly correspond- 
 ing import to that of 4 &• 5 Ph. & Mary. c. 8 (V. C. 
 1873, c. 187, § 17; Id. c. 188, § 18), but with us there 
 is no occasion for the inference drawn by the English 
 courts, because parents are here guardians iy nature of 
 all their children until the age of twenty-one years. 
 See 1 Tuck. Com. (B. I), 138. 
 9«. Guardians appointed by Fathers, or Testamentary 
 Guardians. 
 
 "When, upon the restoration of Charles II to the 
 throne, in 1660, it was determined to abolish the chiv- 
 alry or knight service tenure of lands, with its oppres- 
 sive incidents, and amongst the rest, guardianship in 
 chivalry, it was deemed necessary to substitute some 
 other wardship in room of that to be abolished, con- 
 tinuing it until the minor should attain his full age of 
 twenty-one years, and causing it to apply as well to 
 property as to person. Accordingly, the Statute 12 
 Car. II, c. 24, which took away the chivalry tenure 
 and its incident of wardship, enabled a father, by deed 
 or will, to appoint who should be guardians of his infant 
 children. The father was allowed by the statute to 
 exercise this power, though he himself were under 
 twenty-one ; to apply it to all bis children under twen- 
 ty-one, or unmarried at his decease, or horn after ; to 
 appoint whom he pleased, except a Popish recusant; to 
 make the appointment to take effect in possession or 
 remainder, and to last until the ward was twenty-one, 
 or for any less time ; and the appointment was declared 
 to be e;ffectual against all claiming as guardians in 
 socage or otherwise, and to clothe the guardian so 
 appointed with the custody and control of loth the 
 person and property of the ward. (1 Bl. Com. 462, & 
 n (7); 1 Th. Co. Lit. 156-'7, n (5); Bac. Abr. Guard'n 
 (A.), 3.) 
 
 The statute of Virginia corresponding to 12 Car. II, 
 c. 24, is very like it in its import and effect. It enacts 
 (V. C. 1873, c. 123, § 1) that "exerj father may, by his 
 last will and testament (but not ly deed), appoint a 
 guardian for his child, born or to be born, and for such 
 time during its infancy as he shall direct." See Kevan 
 V. Waller, 11 Leigh, 428, &c. 
 
 The guardian cannot as ign his interest, because it 
 is coupled^mt^i^a^grsjj^^^t^^^^and confidence in the 
 
CHAP. XVII.J GUAEDIAN AND WARD. 431 
 
 guardian himself; and for a like reason it is not trans- 
 [ mitted to his personal representative. However, if 
 two or more are made guardians, and one of them dies 
 or declines to qualify, the trust survives, not merely for 
 the technical reason that it is coupled with an interest, 
 but also because it is expedient for infant wards that 
 I that construction should be adopted. In order to con- 
 stitute a testamentary guardian, no particular form of 
 ■ words is prescribed, but the language must clearly 
 indicate such to be the testator's intent. Thus, a devise 
 to one in trust for a child's maintenance and education 
 does not constitute the trustee a testamentary guardian, 
 neither does a request that a designated person shall 
 direct the chiWs education ; nor a provision that the 
 executor shall invest certain funds, and that the childf 
 out of the proceeds, shall be educated in the hest man- 
 ner under the direction of the executor. (Bac. Abr. 
 Guard'n (A.), 3; Eyre v. Countess of Shaftsbury, 2 P. 
 "Wms. 104, 107-'8; Beaufort v. Berty, 1 P. Wms. 702; 
 Kevan v. Waller, 11 Leigh, 428, &c. ; Gaines v. Spann's 
 Ex'ors, 2 Brock. 88.) 
 
 With us, the appointment by the father of a testa- 
 mentary guardian does not supersede the mother's 
 right as guardian hy nature to the custody of the 
 child's person and the care of his education while she 
 remains unmarried and is fit for the trust. (Y. C. 1873, 
 c.'123, § 7; Mellish v. DeCosta, 3 Atk. 14.) 
 
 Natural children are not within this statute. The 
 putative father of a bastard cannot by his will appoint 
 a guardian for him ; but except as against the mother, 
 the court of chancery will adopt the father's nomina- 
 tion, unless it appear that some objection exists to the 
 person named. (Bac. Abr. Guard'n (A), 3.) 
 
 A mother is not empowered by this statute to ap- 
 point a guardian, and consequently her appointment is 
 void. So also, for the same reason, is an appointment 
 ly a grandfather as to a grandchild ; although in either 
 case, if the infant be left an estate on condition that 
 the person named as guardian be allowed to act as such, 
 if the father refuse to assent to it, it works a for- 
 feiture. (Bac. Abr. Guard'n (A) 3.) 
 10*. Guardians by the Custom of Particular Places. 
 
 This species of guardianship is exemplified in Eng- 
 land by the custom of the city of London and of the 
 county of Kent. Thus, by the special custom of Lon- 
 don, the wardship of orphans under age and unmar- 
 ried belongs to the city ; and by the special custom of 
 the count^^;fg#art&^i^A^,9/^(gie manor may commit 
 
432 GUAEDIAN AND WAED. [bOOK I. 
 
 the guardianship of his tenant's infant heir to the next 
 relation in the court of justice within whose jurisdic- 
 tion the land is, the lord being answerable for the guar- 
 dian's fidelity. 
 
 The nature and extent of this guardianship, as to 
 what age it continues, and whether it embraces the 
 care of the estate as well as the custody of the person, 
 are to be determined by the custom itself. (1 Th. Co. 
 Lit. 157, n (6); Bac. Abr. Guard'n (A) 2; Id. Cus- 
 toms of London (B).) 
 
 In Virginia there can be no special custom of par- 
 ticular places (that is, in the sense of a local law), for a 
 reason which has been stated {Ante Vol. I. p. 3i), and, 
 therefore, there cannot be with us such a guardianship 
 as this. (Harris v. Carson, 7 Leigh, 632 ; Mason v. 
 Moyers, 2 Eob. 606.) 
 lis. Guardians ad litem. 
 
 A guardian ad litem is one appointed for an infant 
 to defend him in any action or suit brought against 
 him. In all civil actions or suits every court, where 
 an infant is sued, has power to appoint a guardian ad 
 liteTYi to conduct his defence in that case, the appoint- 
 ment having to be renewed in every separate case, the 
 infant having no discretion to select an attorney to re- 
 present him. And so necessary is the appointment of 
 a guardian ad litem esteemed, that although the pro- 
 cess against an infant is issued and executed against 
 him just as against an adult, and the declaration or bill 
 setting forth the complaint is framed and filed in like 
 manner, yet after the declaration or bill is filed, no 
 rule nor any proceeding whatever can be had lawfully 
 until a guardian is designated; and any step that is 
 taken will be void as to the infant. However, if an 
 infant be fully defended by his testamentary or re- 
 gularly appointed guardian, the acquiescence of the 
 court is equivalent to the appointment of such person 
 as guardian ad litem. 
 
 In criminal proceedings infants defend like adults, 
 and it is error for a minor to plead to a criminal pro- 
 secution by a guardian ad litem. He ought to appear 
 and make defence like an adult, either in person or by 
 attorney. (Word's Case, 2 Leigh, 653.) 
 
 But whilst it is error in a civil case for a minor to 
 appear by attorney, yet in the interest of the minor 
 himself, it is in Virginia provided by statute (V. C. 
 1873, c. 177, § 3) that "no judgment or decree shall 
 be stayed or reversed for the appearance of either 
 party, beiji)fg;fjl®rf6fan*;crai^«f@he age of twenty-one 
 
<3HAP. XVII.] GUARDIAN AND WARD. 433 
 
 years, by attorney, if the verdict (where there is one), 
 or the judgment or decree, be for him, and not to his 
 prejudiced See 1 Th. Co. Lit. 159, n (6) ; 171, n (29); 1 
 Rob. Pr. (1st Ed.) 172-'3; Bac. Abr. Guard'n (A) 4; 
 Fox & al V. Cosby, 2 Call 1; Eoberts v. Stanton, 2 Munf. 
 129 ; Brown v. McRae's Ex'ors, 4 Munf. 429; Beverlys 
 V. Miller, 6 Munf. 99 ; Word's Case, 3 Leigh, 743. 
 
 Where there is no such guardian, any judgment or 
 decree against the minor may be reversed and annulled 
 by the same court which pronounced it, at common 
 law, upon a writ of error corain voMs, and in Virginia 
 on motion simply, after reasonable notice. (V. C. 1873, 
 c. 177, § 1; Watts v. Cole, 2 Leigh, 653.) 
 
 It has been questioned whether at common law a 
 guardian ad litem can be compelled to serve ; but in Vir- 
 ginia this doubt is resolved by a statute (V. C. 1873, 
 c. 167, § 16), which expressly declares that " the court 
 in which any suit is pending, or the clerk at Rules, may 
 appoint a guardian ad litem to any infant or insane de- 
 fendant, whether such defendant has been served with 
 process or not. The court may compel the person so ap- 
 pointed to act, but he shall not be liable for costs, and 
 shall be allowed his reasonable charges, which the party 
 on whose motion he was appointed (who is usually the 
 plaintiff) shall pay." (Wells' Heirs v. Winfree, 2 
 Munf. 342;) 
 
 As to the powers and duties of guardians ad litem, 
 they are contined to the defence of the suit in which 
 the guardian is appointed. And even in that suit, it 
 is a settled rule that no answer or admission of his 
 shall prejudice the inlant, or be proved against him for 
 any -purpose. (Bac. Abr. Guardian (A), 4; Bank of 
 Alexandj-ia v. Patton, 1 Rob. 500, 535.) 
 2^ The Circumstances under which the Several Kinds of 
 Wardship Occur. 
 
 It appears from the foregoing account of the several 
 species of guardians that of the eleven existing in Eng- 
 land, we have in Virginia only five ; viz : 
 
 1. Guardians by Nature; 
 
 2. " by Election ; 
 
 3. " by Appointment of the Chancery Court ; 
 
 4. " by the Father's will ; and 
 
 5. " ad litem ; 
 
 and that of these five three are charged with the care of the 
 ward''s estate, and give iond and security accordingly, ^dz : 
 
 1. Guardian by Election ; 
 
 2. Guardian by Appointment of Chancery court; and 
 
434 GUAEDIAN AND WARD. BOOK I. 
 
 it being provided that if in either of these cases the court 
 shall omit to require a bond before the guardian is allowed 
 to qualify (unless, in case of a testamentary guardian^ 
 the will shall so direct), or if it accept as sureties such 
 persons as do not satisfy it of their sufiSciency, the judge 
 is himself liable to the infant for any loss ensuing ; and 
 until such bond is given, a temporary guardian, under the 
 name of curator, may be designated by the court, who 
 may be permitted to qualify, in the discretion of the 
 court, without security. (V. 0. 1873, c. 123, § 2, 5, 6; 
 Id. c. 12, § 6.) 
 
 Let us now see when one or the other of these several 
 kinds of guardianship occurs. 
 
 If there be &, father, he is guardian by nature, and as 
 such is charged with the custody of the chiW s person, 
 and with his education, but not with his estate, which 
 can only be committed to such parent, or to some other 
 person, by virtue of an appointment iy the court, and 
 giving bond, &c. He may, on the other hand, be de- 
 prived by a court of chancery, in its discretion, even 
 of the custody of the child's person, if he shall seem 
 grossly unfit for it. (Bac. Abr. Guard'n (C) ; 2 Stor. 
 Eq. § 1841 & seq ; Y. C. 18Y3, c. 123, § 13.) 
 
 If the father be dead, the mother succeeds, as guar- 
 dian hy nature, to the care of the infanCs person, and 
 the conduct of his education; and she thus succeeds not- 
 withstanding there be a guardian by the father's will, or 
 by appointment of the chancery court, while she re- 
 mains unmarried, and is fit for the trust. (V. C. 1873, 
 c. 123, § 7; Armstrong v. Stone & ux, 9 Grat. 105-'107.) 
 And in the absence of a testamentary or chancery guar- 
 dian, the mother's guardianship iy nature prevails, 
 although she be married again. (Villa Heal v. Mellish, 
 2 Swarist. 533 . Potinger v. "Wrightman, 3 Meriv. 67, 
 79 ; Armstrong v. Stone & ux, 9 Grat. 105.) 
 
 A testamentary guardian, and a guardian elected by 
 the ward, or appointed by the court, are entitled gene- 
 rally to the care of the ward'' s person and estate ; but 
 the father and mother are for the most part not thereby 
 divested of their parental control. (V. C. 1873, c. 
 123, § 7.) 
 
 The wardship may be terminated before the minor 
 attains his age of twenty-one years, by the guardian's 
 death, by his resignation (with consent of the court 
 which appointed him), by his removal by the court of 
 chancery, for neglect or breach of tmst, or in case of a 
 testamentary guardian, by the lapse of the period assigned 
 
 Digitized by Microsoft® 
 
CHAP. XVII.] GTJAEDIAN AND WAED. 435 
 
 in the will for its duration. But the ward is not at liberty 
 (as has been sometimes thought), after the age of fourteen, 
 to change at pleasure even a guardian previously nomi- 
 nated by himself, and a fortiori not one designated by 
 his father's will, &c. Good cause must exist for the 
 change, in order to justify it, and courts ought by no 
 means to be indulgent in hearkening to such applica- 
 tions. (Bac. Abr. Guardian (E); Bradshaw v. Brad- 
 sliaw, 1 Russ. (1* Eng. Ch.) 528; Newell's case, 1 Johns. 
 C. R. 25; Hamv. Plam, 15 Grat. 74; Y. C. 1853, c. 
 123, § 7, 13.) 
 
 If the guardian does not die nor resign, and is not 
 previously removed, or in case of the testamentary guar- 
 dian, if the period named in the will does not expire 
 first, his office terminates (V. C. 1873, c. 123, § 7) as to 
 male wards at twenty-one, and as to female wards at 
 twenty-one, or marriage. This statutory provision in 
 respect to female wards is merely declaratory of the 
 common law, which holds marriage to put an end to 
 the guardianship, and to transfer to the husband, if 
 adult, and if not, to the husband's guardian, the care of 
 her estate, and to the husband in all cases the custody 
 of her person. As to 'rnale wards, the common law 
 holds marriage to emancipate the person, but still to 
 leave the estate, including that of the wife, in the care 
 of the husband's guardian. And this probably will be 
 the construction of the statute, since it is hardly com- 
 patible with the relation of husband and wife that the 
 husband'' s person should be subject to the control of an- 
 other. (Guerrant v. Hooker, 7 Leigh, 366; Mendez v. 
 Mendez, 1 Ves. Sen'r, 91 ; Eoach v. Garvan, Id. 159-'60 ; 
 Eeeve's Dom. Rel. 328; Bac. Abr. Guardian (E); 2 
 Kent's Com. 225 ; Eyre v. Countess of Shaftsbury, 2 P. 
 Wms. 123.) 
 
 It should be observed that the authority of a guardian 
 (except of a guardian hy nature, if, indeed, that be an 
 exception) extends not, by the common law, beyond the 
 jurisdiction under which he received his authority, al- 
 though many of the continental jurists hold otherwise. 
 It is settled, however, that a Virginia guardian has, in 
 general, no authority outside of Virginia, nor has a guar- 
 dian, appointed in England, Canada, or Mississippi, any 
 power in Virginia. ' (Stor. Conii. L. § 495, &c., 504, 504 
 a, &c.) However, this principle has proved so incon- 
 venient in practice as, to lead to the enactment of a sta- 
 tute which provides that where any minor (and the same 
 principle is applied in the case of insane persons) enti- 
 tied to '^miit^ShW^ro'ibM^ S*^*^' ^e^^*^^^ °^t of 
 
436 GUAEDIAN AND WAED. [bOOK I. 
 
 it, on the petition of a guardian of such minor, lawfully 
 appointed and qualified in the State or country of his 
 residence, the circuit or corporation court of the county 
 or corporation in wliich the estate may be, may order 
 the delivery of such personal property, &c., to the for- 
 eign guardian, including the accruing rents of his real 
 estate, to be removed to the State or country where he 
 qualified, with certain precautions against abuse and 
 against prejudice to the interest of the minor. (V. C. 
 1873, c. 125; § 3 to 5, 8, 9; Id. c. 154, § 7, 38.) 
 3^' The Powers and Duties'" of Guardians. 
 
 The fundamental principle touching this subject is 
 that the guardian's office is one of obligation and duty 
 for the benefit of the ward, and not of speculation and 
 profit for his own aggrandizement. He cannot lawfully 
 reap any advantage from the use of the ward's money. 
 He cannot lawfully act for his own emolument in any 
 contract, or purchase, or sale, as to the ward's property; 
 but in all that he does the law obliges him to consult 
 the ward's interest alone, and whatever profits arise from 
 transactions with or concerning the minor's estate, re- 
 dound in law to the minor, and not to the guardian. (2 
 Kent's Com. 229; Bac. Abr. Guardian (G).) 
 
 The powers and duties of guardian are summed up in 
 two particulars — namely, (1), The custody of the wardJ's 
 person and care of his education; and (2), The care and 
 management of Ms estate ; 
 W. C. 
 1«. The Custody of the Ward's Person, and Care of his 
 Education; W. C. 
 1''- Right to the Custody of the Ward's Person and the 
 Care of his Education. 
 
 In these particulars the power and reciprocal duty 
 of guardian and ward are very similar to those pre- 
 vailing between parent and child; but they are not 
 exactly the same; for a guardian, as he can do no- 
 thing but for the benefit of the infant, so he has no 
 private interest as a parent, or at least as a father 
 has, in his ward's sersdces and earnings. He cannot 
 recover for such services, nor can he maintain an ac- 
 tion in his oion name for the seduction of a female 
 ward, nor for any injury to the ward's person. But 
 see Bac. Abr. Guardian (F); Fernsler v. Moyer, 3 
 Watts & Serg. (Pa.) 416. 
 
 The guardian's right to the custody of the ward's 
 person is undeniable, as it is also to the care of his 
 education, in respect to which a court of chancery 
 will assis$c|fefe(?%^ffi#c&€is^^ ^^^ its powers. (2 Stor: 
 
CHAP. XVII.J GTJAEDIAN AND WARD. 437 
 
 Eq. § 1340; Hill v. Turner, 1 Atk. 516; Hall v. Hall, 
 3 Atk. 721; Tremain's Case, 1 Stra. 167.) And 
 this authority, at least in guardians appointed by the 
 court and by the father's will, and in the father and 
 mother as guardians Sy natu7'e, is pretty distinctly 
 recosnized with us by statute. (V. C. 1873, c. 123,, 
 
 § 7.r 
 
 It is the duty of a guardian to protect and defend 
 his ward, and he is justified in assisting him to obtain 
 redress for any wi-ong done him. He is also required 
 to provide, out of the profits of the ward's estate (and 
 sometimes out of the principal), for his maintenance 
 and education; and when his estate is not sufficient 
 for this purpose, it is the guardian's dnty, if the ward's 
 age and health admit, and a suitable person will take 
 him, to hind the ward apprentice, with the consent of 
 the court of the county or corporation, if the child be 
 under fourteen, and if over fourteen, with his own 
 consent; or, with like consent, to place him in some 
 incorporated asylum for destitute children. But the 
 guardian is in no case personally responsible for his 
 ward's support and education, unless by agreement. 
 (V. C. 1873, c. 123, § 7, 8; Id. c. 122, § 1, 2; Barnum 
 V. Frost's adm'r, 17 Grat. 398.) It is the guardian's 
 duty also to control that most important interest of 
 the ward, Ms marriage, no license therefor being ob- 
 tainable without his consent. (Y. C. 1873, c. 104, § 3.) 
 And therefore a guardian is justified in stopping his 
 ward's elopement, and detaining his clothes if he has 
 eloped. (1 Bl. Com. 463, n (9); Barker v. Taylor, 1 
 Carr. & P. (11 E. C. L.) 101.) 
 
 As to the removal of the ward from the country hj 
 his guardian, it is not necessarily inadmissible, if it 
 seem to have been dictated by no bad motive, nor 
 likely to be attended with ill consequences; but the 
 act is regarded with jealousy and distrust by a court 
 of equity, and not a little quickens the disposition of 
 the court to intervene and to exert its extraordinary 
 power of taking the infant from the custody of the 
 guardian altogether. And on tlie other hand, in no 
 case whatever will the court make an order for taking 
 an infant out of its jurisdiction. (2 Stor. Eq. § 1339; 
 2 Kent's Com. 220, n (d); Crenze v. Hunter, 2 Bro. 
 C. C. 500, note; DeManneville v. DeManneville, 10 
 Ves. 52; Mountstuart v. Mountstuart, 6 Yes. 363; 
 People V. Mercien, 8 Pai. (JST. Y.) 47.) 
 2''. Remedies for the Abduction of the Ward. 
 
 The da/^f/^di^MfeeilSfii^drdian can personally 
 
438 PARENT AND GUABDIAN. [bQOK I. 
 
 suffer in his tutorial capacity or relation, is by the 
 abduction of his ward. For this wrong, the law 
 afi'ords Jive remedies, four of which are the same as in 
 case of a parent similarly aggrieved, which having 
 been already explained, will be merely stated, along 
 with their general effect respectively; 
 W. C. 
 1'. Action of Trespass vi et armis. 
 
 This action is adapted to recover damages for the 
 wrong, but not to regain possession of the person of 
 the ward. (1 Bl. Com. 463, n (9) ; Bac. Abr. Guard'n 
 (¥); Hussey's Case, 9 Co. 72 a; Rex v. Smith, 2 
 Stra. 982.) 
 2\ Writ de Custodia Terrce et Eceredis. 
 
 This is denominated the writ of Right of Ward, 
 and lay, at common law, for a guardian in chivalry 
 and 171 socage. Thereby the guardian recovered the 
 custody of the ward's body, and of his lands; but if, 
 meanwhile, the ward had been married, the body 
 was not recoverable, and this writ lay not; the 
 guardian being then driven to the action of trespass, 
 wherein he recovered, besides other damages, the 
 value of the marriage. This, however, was remedied 
 by Stat, of Merton, 20 Hen. Ill, c. 6, which restored 
 the benefit of the writ of right of ward. (1 Th. 
 Co. Lit. 338, & n (C); 3 Bl. Com. 141; Bac. Abr. 
 Guard'n (F).) 
 
 As we have no tenures in Yirginia, either chivalry 
 or socage, this remedy is supposed not to exist here. 
 3'. Writ of Ravishment of Ward. 
 
 By this writ, given by Stat. Westm. II, 13 Edw. 
 I, c. 35, it recovered the hody of the ward, together 
 with damages for the taking and detention, and not 
 damages only, as by the action of trespass at com- 
 mon law. The benefit of the statute is not restricted 
 to any particular class of guardians, and it may be 
 employed certainly, not only by guardians in socage, 
 but also by testamentary guardians, and guardians 
 ly nature. (1 Th. Co. Lit. 338 ; Bac. Abr. Guar- 
 dian, (F) ; 1 Bl. Com. 463, n (9) ; 3 Bl. Com. 141 ; 
 Hussey's case, 9 Co. 72, 74 b ; Eyre v. Countess of 
 Shaftsbury, 2 P. Wms. 122.) 
 
 The writ of ravishment of ward being a remedial 
 writ, granted by a general statute of England, prior to 
 4 Jac. I, and not repealed in Yirginia, is reserved 
 for the use of our people. (Y. C. 1873, c. 15, § 2.) 
 4'. Writ a£. Habeas Corpus. 
 
 This^feit is &da,^te^%Vemver a ward only when 
 
CHAP. XVn.] GUAKDIAN ANXI WARD. 439 
 
 it is too young to exei-cise any will as to the 'person 
 in whose custody it would be. In that case, as the 
 custody of one who has no right to it is illegal, and 
 the child has no discretion to express any consent, 
 the writ of habeas corpus is adapted to liberate him 
 from that wrongful custody, and the court then is 
 obliged to determine whose is the rightful possession, 
 because that of anybody else would be illegal confine- 
 ment iviihout the consent of the party. But it will be 
 observed, that if the ward have attained the age of 
 consent (which is probably fourteen), and is detained 
 under an allegation of wardship against his will, the 
 writ of habeas corpus is still adapted to liberate him, 
 but not to restore liim to his rightful guardian. The 
 writ will simply discharge him, and leave him at 
 liberty to go whither and with whom he pleases. 
 (E.ex v. Clarkson, 1 Stra. 449 ; Rex v. Smith, 2 Stra. 
 982; R. V. Delaval, 3 Burr. 1434; ExparteVeax- 
 son, 4 J. B. Moore, (16 E. C. L.) 366 ; Skinner's 
 case, 9 Do. (17 E. C. L.) 278 ; King v. Greenhill, 4 
 Ad. & El. (31 E. C. L.) 624 ; King v. Isley & ux, 5 
 Ad. & El. (31 E. C. L.) 441 ; In re Hakewell, 12 
 Com. B. (74 E. C. L.) 223 ; Ex parte Witte, 13 
 Com. B. (76 E. C. L.) 680 ; Armstrong v. Stone & 
 ux, 9 Grat. 102.) 
 5'. Bill in Chancery. 
 
 The bill in chancery is the most usual, direct and 
 eligible remedy to try the right of wardship. (2 
 Stor Eq. § 1340 ; De Manneville v. De Manneville, 
 10 Ves. 52 ; Ex parte Skinner, 9 J. B. Moore, 278 ; 
 People v. Chegray, 18 Wend. 637; Armstrong v. 
 Stone & ux, 9 Grat. 105-'6.) 
 2''. The Care and Management of the Ward's Estate. 
 
 The possession, care, and management of the ward's 
 estate, real and personal, are confided to three classes 
 of guardians, as we have seen, namely : the guardian 
 by election, the guardian by appointment of the chancery 
 court, and the guardian bij the fathers will ; and at the 
 expiration of liis trust, such guardian is to deliver it all 
 to those entitled, and to account for the profits. 
 
 In consequence of his right to the possession, he may 
 and ought to sue in his own name for any trespass or 
 injury done to the ward's property, although whatever 
 damages he may recover he must account for to the 
 ward. He may, indeed, in an action for ejectment 
 (which theoretically is an action of trespass), recover 
 the possession of the ward's lands from the loard him- 
 self, again^J/^Rfegg jgi^m/fefeSS^S® as guardian, justify 
 
440 GUARDIAN AND WABD. [bOOK I> 
 
 his possession. On the other hand, the ward (not be- 
 ing entitled to the possession) can maintain no action of 
 trespass for any trespass committed on his lands or 
 other property ; but all such wrongs must be compen- 
 sated to him by the guardian, who might and ought to 
 have recovered therefor. (Y. C. 1873, c. 123, § 7 ; 2 
 Kent's Com. 228 ; 2 Stor. Eq. § 1356, &c. ; Truss v. 
 Old, 6 Band. 559-60 ; Lemon v. Harnsbarger, 6 Grat. 
 301 ; Sillings v. Bumgardner, 9 Grat. 273 ; Eyre v. 
 Shaftsbury, 2 P. Wms. 122.) But whilst the guardian 
 is thus, by virtue of his possession, to sue in his own 
 name for trespasses committed on the ward's lands or 
 other property, a second guardian is not to undertake 
 to sue in his own name to call a former guardian to ac- 
 count for his transactions as such guardian; but the 
 bill ought to be filed in the name of the ward by his 
 next friend, who may be the guardian for the time be- 
 ing, but may also be any other person a'pproved by the 
 court. And so, in order to get possession at first of 
 ward's estate, if a suit be needful, it should be not in 
 the name of the guardian, but of the infant by his next 
 friend. (Lemon v. Harnsbarger, 6 Grat. 301 ; Sillings 
 V. Bumgardner, 9 Grat. 273.) 
 
 In managing the ward's property the guardian's dis- 
 cretion is pretty large, always subject to his account- 
 ability, of course. 
 
 He may not, indeed, sell the lands, save in pursuance 
 of statute, by proceedings in the circuit or corporation 
 court in chancery, when the court shall be satisfied \>j 
 impartial testimony that the interest of the ward will 
 be promoted by such sale ; in which case the proceeds 
 are to be invested under the direction of the court, and 
 so much thereof as may remain at his death intestate, 
 shall, if he continue till his death incapable of making 
 a will, pass to those who would have been entitled to 
 the land if it had not been sold. (V. C. 1873, c. 124, 
 § 2 to 7, 9, 10, 12; 1 Tuck. Com. (B. I) 142-'3; 
 2 Kent's Com. 228; Field v. Schieffelin, 7 Johns. C. 
 R. 150 ; Garland v. Loving, 1 Band. 396 ; Talley v. 
 Starke, 6 Grat. 339 ; Cooper v. Hepburn, 16 Grat. 
 651 ; Faulkner v. Davis, 18 Grat. 675 ; Vanghan v. 
 Jones, 23 Grat. 444.) 
 
 But although the guardian may not sell the lands, 
 save in the manner prescribed, he may n^iake a lease of 
 them to continue during the wardship, and may dispose 
 of the annual proceeds at his discretion, whether he 
 leases or cultivates them himself, accounting for what- 
 ever heia<§BW^c'd^M/CeP«^©e. (1 Bl. Com. 463, n 
 
CHAP. XVII.J GUABDIAN AND WARD. 441 
 
 (9); 2 Lom. Dig. 124; Koss v. Gill & ux, 1 Wash. 90; 
 Genet v. Talmadge, 1 Johns. C. R. 5 ; Ross v. Gill, 4 
 Call. 258 ; Eoe v. Hodgson, 2 Wils. 135 ; Bac. Abr. 
 Leases (T), 9 ; Id. Guardian (G).) 
 
 He is liable for any waste done (but not for waste suf- 
 fered) by him on the ward's lands ; and if the waste be 
 wanton, he must pay treble damages therefor (Y. C. 
 1873, c. 133, § 3, 4); for which, if suit be brought by 
 the infant during minority, it ought to be brought, like 
 all other suits during that period, through his next 
 friend. (Eyre v. Shaftsbury, 2 P. Wms. 119 ; Lemon 
 V. Harnsbarger, 6 Grat 301; 1 Bl. Com. 163, n (9) ; 
 1 Rob. Pr. (1st Ed.) 501; V. C. 1873, c. 133, § 3,4.) 
 
 As to the ward's personal estate, the guardian has 
 authority to sell any part or the whole of that (subject 
 to his accountability), whether it be perishable or not, 
 and will confer a good title on the purchaser, unless 
 the sale be fraudulent, and the purchaser collude with 
 the guardian by co-operating in the fraud, — a principle 
 whi(;h holds in dealings with all fiduciaj-ies. (Dodson 
 V. Simpson, 2 Rand. 294 ; Truss v. Old, 6 Rand. 588 ; 
 Broaddus v. Rosson, 3 Leigh, 12 ; Bank of Va. v. 
 Craig, 6 Leigh, 399; Field v. Schieffelin, 7 Johns. C. 
 R. 152; Fisher v. Bassett, 9 Leigh, 119; Pinckard v. 
 Woods, 8 Grat. 140; Hunter v. Lawrence, 11 Grat. 
 111.) And it may be observed further, that the guar- 
 dian's sureties are liable only for so much as he has re- 
 ceived in his capacitj' as guardian, which must be 
 judged of by his acts and contemporaneous declara- 
 tions. Thus, if the guardian be also executor, in which 
 latter capacity he originally got possession of the pro- 
 perty in question, that possession as executor is pre- 
 sumed to continue until the contrary appears ; and so 
 one or the other set of sureties is made liable accord- 
 ingly. (2 Rob. Pr. (1st Ed.) 377.) And a bond 
 given by the guardian to the ward, although prima 
 facie evidence against the sureties is no satisfaction of 
 the claim, nor discharge of the sureties. (Hamlin's 
 Adm'r v. Atkinson, 6 Rand. 574.) 
 
 In general the acts of a guardian, even though with- 
 out authority, yet if beneficial to the ward, will be pro- 
 tected, whilst so far as they are otherwise they will be 
 avoided ; so that, as a general rule, whatever trust 
 arises will follow the actual interest of the infant. (Bac. 
 Abr. Guard'n n (G) ; Milner v. Harewood, 18 Ves. 
 273-'4.) 
 
 Provision is made for the execution of any trust in 
 which an ffiia«fe@fifi^3bMte'Sftffi@e, under the direction 
 
442 GUAEDIAN AND WARD. [bOOK I. 
 
 of a Court of Chancery. (Y. C. 1873, c. 124, § 1 ; Id. 
 c. 174, § 1, 4 ; 2 Inst. Com. & Stat. L, ch. X.) 
 
 It has been already observed that it is the duty of 
 the guardian, out of the income of the ward's estate, real 
 and personal, to provide for his maintenance and edv^ 
 cation, and in Virginia that principle is expressly sanc- 
 tioned by statute (Y. C. 1873, c. 123, § 7). And on 
 the other hand, his expenditures for the purpose must, 
 in general, be limited to the annual profits of the 
 estate, including all belonging to the ward, whether in 
 the hands of the guardian or of the* personal represen- 
 tative of the father, unless the deed or will under which 
 the ward's claim is derived allows more ; which prin- 
 ciple also is confirmed by the statute (Y. C. 1873, c. 
 123, § 8). And let it be observed, that the surplus of 
 one year not required for disbursements becomes a part 
 of the principal, and cannot be employed by the guar- 
 dian to meet disbursements of subsequent years, except 
 where it is allowable for that purpose to encroach on 
 the principal. (2 Stor. Eq. § 1355; Fonbl. Eq. B. I., 
 c. 2, § 1, & n (d) & (e); Barlow v. Grant, 1 Yern. 255; 
 Bostwick's Case, 4 Johns. C. R. 103 ; Hooper v. Eoys- 
 ter, 1 Munf. 129, 132 ; Foreman v. Murray, 7 Leigh, 
 416, 418; Bennett v. Claiborne & als, 23 Grat. 374.) 
 
 In respect to real estate, the doctrine of restricting 
 the guardian to annual profits for the ward's maintenance 
 and education is believed to admit of but one, and that a 
 very qualified, exception. The ward's lands may indeed 
 be sold, as we have seen, where his interest requires it, 
 under the direction of the circuit or corporation court 
 in Chancery, but the proceeds are required to be not 
 expended, but invested (Y. C. 1873, c. 123, § 7); and 
 upon the infant's death under age, are to pass (so much 
 as remains unexpended) to his heirs as real estate. How- 
 ever, the circuit court in chancery (and as is presumed 
 the corporation court also — Ya Const. 1869, Art YI. 
 § 14; Y. C. 1873, c. 154, § 38), when it appears to its 
 satisfaction that the proper mahitenance and education, 
 or other interests of an infant require that such pro- 
 ceeds beyond the annual income should be applied to 
 tlie use of the infant, may so order; and then as to so 
 much of proceeds as shall be thus applied they shall 
 be deemed personal estate, but no further. (Y. C. 1873, 
 c. 123, § 18). And it is expressly enacted (Y. C. 1873, 
 c. 123, § 9) that whilst the ward's personal estate may, 
 in proper cases, be sold by the guardian to pay the 
 balance of expenditures over and above the income of 
 Digitized by Microsoft® 
 
€HAP. XVU.J GUARDIAN AND WAED. 443 
 
 his estate, yet " neither the ward personally nor his real 
 estate shall be liable therefor." 
 
 As to personalty, however, more indulgence is shown, 
 and disbursements beyond the annual income of the 
 ward's property are allowed in a few cases, but not 
 without an anxious vigilance on the part of the court 
 of equity. Independently of statute, the rule seems 
 to be that the guardian can never, of his own authority, 
 exceed the ward's income, and break in upon the prin- 
 cipal, but must obtain the previous sanction of the court 
 therefor; that the court will allow it only in extraor- 
 dinary cases, and is especially averse to permitting it 
 when the ward is of age to go to sevvice or to be bound 
 apprentice, and for the purpose of maintenance merely, 
 and not of education. He shall not be permitted, as 
 has been well said by an eminent judge, to keep his 
 ward idle and unemployed, and eating up his little pat- 
 rimony, so that when he comes of age he is turned 
 adrift penniless — and what is worse, without a trade or 
 calling to support him, and without habits of industry; 
 Nor will any degree of meritoriousness in the guar- 
 dian's administration induce the court at common law 
 to sanction an expenditure in excess of income incurred 
 without its own previous approval. (2 Stor. Eq. § 1335; 
 Barlow v. Grant, 1 Yern. 256 ; Walker v. "Wetherell, 
 6 Ves. 473; Myers v. Wade, 6 Rand. 444; Broaddus 
 V. Bosson, 8 Leigh, 12 ; Anderson v. Thompson, 11 
 Leigh, 439; Jackson v. Jackson, 1 Grat. 144.) 
 
 The statutes of Virginia have somewhat relaxed this 
 spirit of suspicious jealousy towards guardians. Thus, 
 whilst they declare the general rule that no disburse- 
 ments shall be allowed, where the deed or will imder 
 which the estate is derived does not authorize it, be- 
 yond the annual income of the ward's estate, yet pro- 
 vision is made in express terms for the two following 
 exceptions (V. C. 1873, c. 123, § 8), viz.: 
 
 First, Where the ward is of such tender years, or so 
 infirm, that he caimot be bound out as an apprentice, 
 or no suitable person will take liim ; or. 
 
 Secondly, AVhere, although old enough to be bound 
 out as an apprentice, it shall be deemed best for the ward 
 that the principal of his personal estate, or a portion 
 thereof, should be applied towards his education and 
 maintenance ; and the court shall be satisfied that such 
 expenditure was actually made, and was judicious and 
 proper, and shall allow the same. 
 
 This statutory provision, therefore, is little more than 
 the enactm0j^MeldAfe>pAJftJrtpJe^(previously recognized 
 
444 GUARDIAN AND WARD. [bOOK I. 
 
 in equity, — but with this difference, that the previous 
 approval by the court is not required by the statute, as 
 it was at common law, but that it suffices if the court 
 subsequently ratify the expenditure, being satisfied that it 
 was actwdly made, and was judicious and proper. And 
 accordingly it is declared that when any disbursements 
 exceeding the annual profits are allowed, the court 
 may order the ward's personal property to be sold in 
 order to meet the excess, or may sanction a sale already 
 made by the guardian. But, as we have seen, neither 
 the ward 'personally nor his real property is liable for 
 such disbursements. (Y. C. 1873, c. 123, § 9.) 
 
 On the other hand, as we have seen, no personal re- 
 sponsibility attaches hy law to the guardian for the ex- 
 pense of educating and supporting the ward. If he is 
 liable at all, it is in consequence of his own promise, 
 which, like otlier promises, may be either express or 
 implied. But his personal liability on such promise is 
 not obviated by his styling hirasel{ guardian ; nor does 
 his personal responsibility do away with the creditor's 
 right to charge the ward's estate in his hands, unless 
 his personal promise was taken avowedly in satisfaction 
 of the demand. (Hamlin v. Anderson, 6 Rand. 579; 
 Barnum v. Frost, 17 Grat. 398.) 
 6'. Guardian's Accounts and Allowances. 
 
 In discussing the doctrines applicable to the settle- 
 ment of the accounts of a guardianship we are to have 
 regard to, (1), The general doctrine of the accountability 
 of guardians; (2), The particulars for which a guardian 
 is accountable ; (8), The means provided in Virginia to 
 compel the prompt and accurate settlement of guardian's 
 accounts; and (4), The mode of stating guardian's ac- 
 counts ; 
 W. C. 
 18. General Doctrine of Accountability of Guardians. 
 
 Guardians who have charge of infants' estates (namely, 
 with us, guardians by election, by appointment of the 
 chancery court, and by the father's loill). are accountable 
 for all profits which are or ought to have been received, 
 and for all losses incurred through the guardian's de- 
 fault. 
 
 Before the infant ward attains his age this accounta- 
 bility may be enforced by a suit by the infant, under 
 the protection of his prochein ami, or next friend (but 
 still in the name of the infant); and after he attains 
 his age, hj a suit in his own name alone. (Lemon v. 
 Harnsbarger, 6 Grat. 305; Villa Real v. Mellish, 2 
 Swanst. 5Vl^i^S^.lm!^.i<¥mfff{K).) 
 
CHAP. XVII.] GUAEDIAN AND WAKD. 445 
 
 The infant, indeed, when he has no regularly ap- 
 pointed guardian, has the extraordinary privilege of 
 being allowed to elect whether to regard a stranger 
 who entei-s upon his lands, either as a wrong-doer and 
 disseisor, or as a guardian, and as such to constrain 
 liim to account for the profits. So, also, where execu- 
 tors or trustees have charge of an infant's estate during 
 minority, whether irregularly and improperly, or in 
 pursuance of the will or deed of one who had power 
 to confer the authority, they are to be regarded as 
 quasi guardians, and must account accordingly. (Gar- 
 rett v". Carr & ux, 1 Rob. 196.) 
 
 This responsibility of guardian to ward cannot, at 
 common law, be exacted from the personal representa- 
 tive of a guardian, nor by the personal representative 
 of a ward, because that matters of account lie so much 
 in privity between the parties that strangers cannot 
 well adjust them. But by statute, with us (V. C. 1873, 
 c. 142, § 14), taken from 4 & 5 Anne, c. 16, "an action 
 of account (and therefore a bill in equity) may be main- 
 tained against thepersonal representative of any guardian." 
 And in England several statutes have been passed to 
 remove the disability of the personal representative of 
 the loard to sue the guardian for an account (namely, 
 the Stat. 13 Edw. I, c. 23, applicable to executors, and 
 31 Edw. Ill, c. il, applicable to administrators) ; but 
 by a singular oversight these provisions have not been 
 adopted in Virginia, imless they are to be considered 
 as embraced in Y. C. 1873, c."l26, § 19, 20, allowing 
 actions on contract, and actions for torts to property to be 
 maintained by or against personal representatives, or as 
 within the saving (V. C. 1873, c. 15, § 2), of all writs, 
 remedial and judicial, given by any act of Parliament 
 not local to England, prior to 4 Jac. I. (Bac. Abr. 
 Guardian (I) ; Garrett v. Carr, &c., 1 Eob. 196; Lemon 
 V. Harnsbarger, 6 Grat. 302; 1 Th. Co. Lit. 339-'40, 
 & n (11), (12); 2 Lom. Ex. 588-'9; Gary v. Bertie, 2 
 Vern. 342 ; Newburgh v. Bickerstaffe, 1 do. 295 ; Pom- 
 ■ fret V. Windsor, 2 Yes. Sen'r, 484.) 
 2=. The Particulars for which a Guardian is Accountable. 
 These particulars comprise, (1), The ward's estate 
 which did or might have come to the guardian's hands ; 
 (2), The losses arising from the guardian's neglect; and 
 (3), Th,e losses arising from the misconduct of a co- 
 guardian ; 
 W. C. 
 l'^. The "Ward's Estate which did or might have come 
 
 to the Guardian's hands. „^ 
 uigitizeaby Microsoft® 
 
44:6 GUAEDIAN AND WAED. [bOOK I. 
 
 The fundamental principle of a guardian's account- 
 ability is that he is liable "at the expiration of his 
 trust, to deliver and pay all the estate or money in his 
 hands,- or with which he is chargeable, to those entitled 
 thereto." (V. C. 1873, c. 123, § 7.) He must there- 
 fore account for all of the ward's estate that did come, 
 or, with due diligence, might have come into his pos- 
 session. (Burnley v. Duke, 1 Rand. 113.) And in 
 rendering that account, if the guardian was also exec- 
 utor or administrator of the decedent from whom the 
 ward derived the estate, it must be observed, that as 
 he received the property in the latter capacity, he must 
 be presumed to retain it in the same character, until 
 he shall indicate by act or declaration that his inten- 
 tion is to hold it as guardian ; and it is only then that 
 the responsibility is shifted from the sureties in the 
 administration to the sureties in the guardian's bond. 
 (Myers v. Wade, 6 Hand. 444; Broaddus v. Eosson, 
 3 Leigh, 12; Morrow v. Paxton; 8 Leigh, 75-'6; Han- 
 nah's Adm'r v. Boyd & ux & als, 25 Grat. 692.) 
 2*^. Losses arising from Guardian's Neglect, &c. 
 
 For property or debts lost by the guardian's neglect 
 he is liable, and in the case of debts he is, by statute, 
 liable for interest as well as principal. (V. C. 1873, 
 c. 128, § 7.) But when the collection is actually 
 made, he ought to be charged with interest from the 
 time the money was received (of which his own oath 
 \& prima facie evidence), and not from the time it was 
 payable. (Dilliard v. Tomlinson, 1 Munf . 183 ; Caven- 
 dish V. Fleming, 3 Munf. 201.) 
 
 He is also liable for payments which he knows he 
 might by laiv successfully resist, it being expressly 
 provided (V. C. 1873, c. 128, § 7), that no credit shall 
 be allowed therefor; a doctrine which is universally 
 admitted at common law, when the illegality appears 
 on the face of the security, and although controvei-ted, 
 is sustained, independently of the statute, by the great 
 weight of authority, even when the illegality, though 
 known to the guardian, is-not apparent on the instru- 
 ment, but has to be proved extrinsically. (2 Lom. 
 Ex. 488-9 ; Carter's Ex'ors v. Cutting, 5 Munf. 239 ; 
 Tunstall v. Pollard, 11 Leigh, 38-'9; Kee v. Kee, 2 
 Grat. 116, 128; McCulloch v. Dawes, 9 Dowl. & Ry. 
 (22 E. C. L.)40; Rogers v. Rogers, 3 Wend. (N. Y.) 
 603.) 
 
 A guardian may also become liable by improperly 
 compromising or releasing a demand due his ward, or 
 by cancelEr^tizedebyiMpn^MlM^r. And if he takes 
 
CHAP.^XVII.J GUARDIAN AND WAED. 447 
 
 an obligation in his own name for a simple contract 
 debt due his ward, he is, at law, as much chargeable 
 as if he had received the money. It is a quasi pay- 
 ment, the new security under seal extinguishing the 
 old debt. But whilst this is the general rule, which 
 it is commonly safer to observe, yet compromises of 
 doubtful claims, the payment of debts perhaps illegal 
 and unrecoverable — in short, any such course of man- 
 agement of the ward's estate, as a judicious man in 
 the conduct of his own affairs, having respect solely 
 to the probabilities of profit or loss to result there- 
 from, would have adopted under the circumstances, 
 will be regarded by a court of equity as justifiable. 
 (2 Lorn. Ex'ors, 485 & seq.; Clay v. Williams, 2 Munf. 
 125; MeCall v. Peachy's Adm'r, 3 Munf, 288; Bow- 
 den V. Taggart, 3 Munf. 513 ; Pulliam v. Johnson, 4 
 Munf. 71; Kee v. Kee, 2 Grat. 131; Whentley v. 
 Martin, 6 Leigh, 71 ; Braxton v. Harrison, 11 G-rat. 
 64; Boyd's Sureties v. Oglesby, 23 Grat. 683-'4.) 
 And this power of compromise and adjiistment, on 
 the part of not guardians only, but of any fiduciary, 
 is, in "Virginia, confirmed by statute, where it is rati- 
 fied and approved by a court of equity. (Y. C. 1873, 
 c. 128, § 39.) 
 
 A guardian is liable for any act of negligence 
 which injures the ward's estate, — as delaying without 
 cause the payment of a debt carrying interest, suffer- 
 ing a suit to be brought and costs incurred when he 
 has means to pay the demand, and has no reasonable 
 ground for contesting it, delaying to sue until the 
 ■ ward's claim is barred by the statute of limitation or 
 lost by the debtor's insolvency. But, on the other 
 hand, a guardian is not bound to sue when suit would 
 plainly be vain; nor, it seems, is he bound to appeal 
 from the decree of a court of competent jurisdiction, 
 in any case, however seemingly erroneous it may be, 
 and althougli advised by counsel so to do. (2 Lorn. 
 Ex. 477 ; Liddesdale v. Kobinson, 2 Brock. 160 ; 
 Green v. Hanbury, Id. 404; Davis v. Newman, 2 
 Kob. 678; Miller v. Holcomb's Ex'or, 9 Grat. 665; 
 Nelson v.' Page, 7 Grat. 166 ; Mitchell v. Trotter, 7 
 Grat. 136; Bowers v. Glendening, 4 Mimf. 219.) 
 
 The guardian is not liable, at least in equity, for 
 the goods of the ward which are stolen or destroyed 
 without his default — that is, notwithstanding the em- 
 ployment on his part of such care as a man of ordinary 
 prudence takes of his own goods. So no liability 
 arises ^^i^b}>mcf8Wm ^^ ^^^^ ^^i^i-^^e of a 
 
448 GUARDIAN AND WAED. [bOOK I. 
 
 security in which common usage and belief warrant 
 confidence. It is indiscreet, however, to sele'ct in- 
 vestments depending on mere personal security. They 
 should be either protected by a lien on lands, or 
 should consist of such stocks and public bonds as the 
 courts of chancery are accustomed to direct invest- 
 ments to be made in. But the safer way is to apply 
 for and adopt the- advice of the court under whose 
 direction the guardian's account is settled, which is 
 expressly empowered by statute (Y. C. 1873, c. 128, 
 § 30) to order the ftmd in hand " to be invested or 
 loaned out, or to make such other order respecting 
 the same as may seem to it proper." But such order 
 can be legally made only after notice to the parties 
 concerned, either given specially, or by the general 
 notice, which the commissioner is required to post at 
 the courthouse door. (Whitehead v. Whitehead, 23 
 Grrat. 379.) During the late war tlie Richmond Legis- 
 lature, whicli wielded de facto the government in Vir- 
 ginia, by statute (Acts 1862-'3, p. 81, c. 46, § 1), 
 authorized a circuit judge in term, or in vacation, to 
 direct fiduciaries (including guardians) to invest in the 
 bonds and certificates of debt of the Confederate 
 States, or of Virginia, or any other sufiicient bonds 
 or securities of or within the State; and such invest- 
 ments, therefore, being made according to the law of 
 the de facto government, would, it seems, exonerate 
 the guardian (See 1 Lom. Ex. 480, 483, &c., 1 Stor. 
 Eq. § 89, 90; Clough v. Bond, 3 My. & Cr. (14 Eng. 
 Ch.) 496); that is, supposing the transaction to be 
 fair, and that the three circumstances ccrntemplated 
 by the statute concur, namely: (1), That the money 
 is in his hands; (2), That it was received in the due 
 execution of his trust ; (3), That for some cause he is 
 unable to pay it over to the parties entitled. (Campbell 
 V. Campbell, 22 Grat. 649 ; Berry v. Irick, Id. 614.) 
 It is a general principle applicable to fiduciaries of 
 all kinds, and, amongst others, to guardians, that no 
 more should be required of them than that they act 
 in good faith, and with the same prudence and discre- 
 tion that a prudent man is accustomed to exercise in 
 the management of his own affairs. (Knight v. Ld. 
 Plymouth, 3 Atk. 480; Thompson v. Brown, 4 Johns. 
 C. E. 619, 628; Hart v. Ten Eyck, 2 do. 62; Taylor 
 V. Benham, 5 How. 233 ; Elliott v. Carter, 9 Grat. 
 541, 559-'60; Davis v. Harman, 21 Grat. 200; 
 Myers v. Zetelle, Id. 758 to 760.) 
 
 I^ Sm!ifl\^MW^m'M:^W^^ for the acts and de- 
 
CHAP. XVII. J GUARDIAN AND WARD. 449 
 
 faults of an agent as though they were his own ; but 
 where the employment of an agent is necessary, or 
 under like circumstances is usual, tliis stringent rule 
 of liability is relaxed, and nothing more is required 
 of him than the exercise of good faith and of ordinary 
 care in selecting his agent, and in watching his con- 
 duct and solvency. Hence, if money be deposited by 
 a guardian in bank, not to his individual credit (which 
 would be treating the money as his own), but to his 
 credit as guardian, the failure of the bank involves no 
 liability on liis part, if he selected it as a place of de- 
 posit in good faith, and exercised ordinary discretion, 
 «are, and vigilance. (2 Lom. Ex. 482; Clough v. 
 Beard, 3 My. & Cr. (14 Eng. Ch.) 496.) 
 
 The guardian is not to be charged with the ward's 
 services, even as a set-oif to his board, unless they 
 were such as, under the existing circumstances, the 
 guardian ought fairlj- to liave expected to afford com- 
 pensation for them. (Armstrong v. "Walkup & als, 
 12 Grat. 613; Evans v. Pearce, 15 Grat. 516.) 
 
 The sale of the ward's property at an under value, 
 when by a prudent discharge of his duty, and the ex- 
 ercise of a reasonable discretion on the part of the 
 guardian in respect of time and place of sale, or the 
 credit allowed, more might have been obtained, sub- 
 jects the guardian to make good the loss. And much 
 more is he liable if, by himself or another, he'converts 
 the ward's goods to his own use, whether corruptly or 
 through negligence, as where he applies them to dis- 
 charge a debt due from himself. And whoever comes 
 into possession knowingly of such effects, by collusion 
 with the guardian, and by co-operating in his fraud, is 
 liable to the ward, as the guardian is, for what is so 
 received. (2 Lom. Dig. 476; Dodson v. Simpson, 2 
 Hand. 294; Graff v. Castleman, 5 Rand. 195; Broad- 
 dus V. Rosson, 3 Leigh, 12; Fisher v. Bassett, 9 Leigh, 
 119; Pinckard v. Woods, 8 Grat. 140; Hunter v. 
 Lawrence, 11 Grat. 132; Jackson v. Updegraffe & als, 
 1 Eob. 107.) 
 3'^. Losses arising from the Miscondnct of a Co-Guar- 
 dian. 
 
 Where there are several guardians, the default of 
 one is not chargeable upon a co-guardian, who did not 
 concur in the act. But any manner of concurrence will 
 subject him to answer, such as voluntarily committing 
 the ward's funds, without sufficient reason, to the de- 
 faulter; or arranging that he shall receive them. (2 
 
4:50 GUARDIAN -AND WARD. [BOOK I. 
 
 Gnard'n (H.); Morrow v. Peyton, 8 Leigh, 64, 68; 
 Graham v. Austin & als, 2 Grat. 273 ; Frazer's adm'r 
 V. Bevill & als, 11 Grat. 15.) 
 
 But if the funds are committed to the co-guardian 
 in another capacity {e. g. as a banker,) the liability i& 
 no more than when they are entrusted to any other 
 banker. Business cannot be transacted without trust- 
 ing some one, and it is no more unlawful to trust a co- 
 guardian, in another capacity than as guardian, than 
 it is to trust a stranger. (2 Lom. Ex. 493-'4, 497 ; 
 Bacon v. Bacon, 5 Yes. 331 ; Langford v. Gascoyne, 
 11 Ves. 335-'6; Davis v. Spurling, 1 Euss. & My. (5 
 Eng. Ch.) 66 ; Boyd's ex'ors v. Boyd's heirs, 3 Grat. 
 113.) It seems, therefore, to be deducible from the 
 authorities, that iu equity, generally speaking, the duty 
 of a guardian is not to part with the assets to a co-guar- 
 dian, but that in some instances it is allowable ; and 
 that whenever the transfer is made, the guardian who 
 makes it is liable therefor, unless it is done for some 
 sufficient reason, and usually for a specific purpose, as 
 above explained. 
 
 As to the effect of joint receipts, as between co- trus- 
 tees on the one side, and co-executors or co-guardians 
 on the other, as making them all liable for what is 
 acknowledged to be received, see 2 Lom. Ex. 498, &c.; 
 Price V. Stokes, 11 Ves. 324-'5 ; Ld. Shipbrooke v. 
 Ld. Hinchinbrooke, 16 Yes. 479; Post. Yol. II, ch. X. 
 3s. The Means provided in Virginia to Compel the prompt 
 and accurate Settlement of Guardian's Accounts. 
 
 Thus much for the general principles which regulate 
 the guardiarCs accountability. We are next to con- 
 sider the ajpjparatus provided by law to compel the 
 prompt and accurate settlement of guardian's accounts, 
 and the principles which regulate the preparation for 
 such settlements. 
 
 The provisions of our statute upon this subject are 
 eminently wise. They are directed .to provide one or 
 more officers in each county, who shall be charged 
 specially with the supervision of the accounts of guar- 
 dians and other iiduciaries ; to secure an early retm-n of 
 an inventory of whatever property may come to -the 
 fiduciary's hands, and also of an account of any sales 
 which he may make ; and to compel an annual settlement 
 of his accounts. Accordingly, in the further exposition 
 of the subject we will consider, (1), The commissioner 
 of accounts for each court charged with the appoint- 
 ment of guardians : (2). The return by the guardian of 
 an irivenib^'f'mkWmmmW sales made by him; 
 
CHAP. XVII.] 
 
 GUAEDIAN AND WARD; 
 
 451 
 
 and (3), The annual settlement of guardian's accounts ; 
 W. C. 
 1^. The Commissioner of Accounts. 
 
 We have seen that the circuit, county, and corpora- 
 tion courts with us are charged with the superintend- 
 ence of the settlement of guardian's accounts, and the 
 control of their conduct. In order to facilitate their 
 supervision, the judge of every court of probate is re- 
 quired to " designate one of its commissioners in 
 chancery (of whom each court has three, V. C. 1873, 
 c. 171, § 2, 3), who shall be known as the commis- 
 sioner of accounts, and who, in addition to his other 
 duties, shall have a general supervision of all fiduci- 
 aries admitted to qualify in that court, and make all 
 ex parte settlements of accounts of such fiduciaries ;'' 
 and, if need be, another of the commissioners is to be 
 appointed from time to time to aid him. (V. 0. 1873, 
 c. 123, § 13 ; Id. c. 128, § 1 & seq.; 16 & seq.) 
 
 It is the duty of the commissioner of accounts to get 
 from the clerk of his court, after each term, a list of 
 all the fiduciaries who have qualified thereat ; and 
 thenceforward it is his duty to require them punctu- 
 ally to conform to the directions of the law, in respect 
 to an inventory of the property subject to their con- 
 trol ; to an account of sales; and to the periodical set- 
 tlement of their accounts. And in order that the 
 commissioner may perform his duty systematically, it 
 is required of him to keep a record, showing in several 
 columns the particulars following (V. C. 1873, c. 128, 
 § 1 & seq. ; Matt. Com'rs, 28), namely : 
 
 1. 
 
 2. 
 
 3. 1 4. 
 
 5. 
 
 6. 
 
 T. 
 
 8, 
 
 The name 
 
 The name 
 
 The penal-, The names 
 
 The date 
 
 The date of 
 
 Date of re- 
 
 Date of 
 
 of the Fi- 
 
 of the per- 
 
 ty of the 
 
 of his 
 
 of the or- 
 
 the order 
 
 turn of the 
 
 each settle- 
 
 duciary. 
 
 son whom 
 
 Fiducia- 
 
 sureties. 
 
 der con- 
 
 revoking 
 
 inventory 
 
 ment of Fi- 
 
 
 he repre- 
 
 ry'soflicial 
 
 
 ferring his 
 
 his autho- 
 
 of tha es- 
 
 duciary's 
 
 
 sents, as 
 
 hond. 
 
 
 authority. 
 
 rity, if it 
 
 tate. 
 
 accounts. 
 
 
 in case of 
 
 
 
 
 be revok- 
 
 
 
 
 the guar- 
 
 
 
 
 ed ; and 
 
 
 
 
 dian, the 
 
 
 
 
 which 
 
 
 
 
 name of 
 
 
 
 
 fact is to 
 
 
 
 
 the ward. 
 
 
 
 
 be certifi- 
 ed by the 
 clerk of 
 the court 
 to the 
 comm'j. 
 
 
 
 
 
 
 
 
 
 
 
 Digitized by Microsoft® 
 
452 GUARDIAN AND WAED. [bOOK I. 
 
 2^. The Return of the Inventory and Account of Sales 
 by the Guardian. 
 
 Every guardian is required, within four months 
 from his qualification, and within four months after 
 any subsequent accession of property belonging to 
 the ward, to return to the commissioner of accounts 
 an inventory of all the estate, real and personal, which 
 is subject to his authority as guardian ; and if he fail 
 so to do, the commissioner shall take proper steps to 
 compel him to do it, by causing the court to impose 
 on him a fine of from |50 to $100 for any delinquency; 
 and if he persists in his contumacy, to proceed against 
 him for contempt. The guardian is also required, 
 within four m^onths after any sale of the ward's pro- 
 perty, to return to the commissioner of accounts an 
 account of sales. Both these returns the commissioner 
 is to inspect, and if they are in proper form, he is, 
 within ten days, to deliver them to the clerk of the 
 court to be recorded. (V. C. 1873, c. 128, § 4 to 6.) 
 
 These provisions very happily secure the means of 
 holding guardians to a just accountability. Most of 
 the defaults of this class of fiduciaries arise, not out 
 of a preconceived purpose of dishonesty, but from 
 negligence in preserving a memorial of what comes 
 to their hands, and a delay in settling their accounts; 
 and to this latter object — namely, to compel an annual 
 settlement, — the statutory provision next to be men- 
 tioned is addressed. 
 2i^- The Annual Settlement of Guardian's Accounts. 
 
 Every guardian is required to settle his accounts 
 annuall'i, vsdthin six months after the end of every 
 year, before the commissioner of accounts of the court 
 which appointed him. And if he fails to do so, the 
 commissioner is directed to take steps to compel him, 
 by means of a fine of from $50 to $500, to be im- 
 posed by the com-t, and if need be, by proceeding for 
 contempt; and he also forfeits all compensation for 
 his services dnring the period to which the commission 
 relates; but this denial of compensation is not to ap- 
 ply where the guardian has -within the six months 
 after the end of any year, furnished the ward (being 
 now adult) with a statement of the account, and set- 
 tled the same with him; nor where he has laid a 
 statement of his account before a commissioner in 
 chancery, upon an order of account in a pending suit. 
 (V. C. 1873, 0. 128, § 8 to 11; Synops. Grim. Law, 
 212— '13.) Until a recent period this forfeiture was 
 very wlSJj^'toesi^l^ygltfantoiei/iJfewever meritorious the 
 
CHAP. XVII.J GUARDIAN AND WARD. 4:53- 
 
 guardian's administration. ("Wood's Ex'or v. Garnett,- 
 6 Leigh, 274 ; Boyd's Ex'ors v. Boyd's Heirs, 3 Grat. 
 124-'5.) Bnt by statute, since 1870, it has been in 
 the discretion of the court. (Y. C. 1873, c. 128, § 9.) 
 
 For the steps to bo taken to secure the funds in the 
 guardian's hands, if they shall seem to be in danger, 
 and if need be, to remove the guardian and appoint a 
 new one, reference may be made to the statute. (V. 
 C. 1873, c. 128, § 17, 18, & seq.) 
 
 The commissioner is required to give notice of the 
 fact that a guardian's account is pending before him, by 
 notice at the front door of the court-house on the first 
 day of a county or corporation court, and he is not to 
 complete the same until ten days after such notice. 
 Any one interested, or his next friend, may appear 
 before the commissioner, and insist upon or object to 
 anything, in like manner as if the commissioner were 
 taking an account by order in a pending suit. The 
 commissioner is to file his report as soon as it is com- 
 pleted, and after the lapse of a month it is open to 
 examination, when the court shall consider it, with 
 any objections which may be made thereto, and con- 
 firm it, in whole or in part, or re-commit it to the same 
 or another commissioner, as upon the whole may be 
 deemed right. When the report is confirmed, it is 
 recorded, and is thenceforward taken prim,a facie to 
 be correct, subject, however, to be surcharged and 
 falsified by a suit instituted in due time for the pur- 
 pose. And where the report shows money to be in 
 the guardian's hands, the court may order payment 
 of it to whom it may be due, or that it be invested, 
 loaned, or otherwise disposed of, as to it may seem 
 proper. (V. C. 1873, c. 128, § 30.) But in order 
 that any such order of court may be obligatory upon 
 the parties or an acquittance to the guardian, the com- 
 missioner must have posted the required notice at the 
 front door of the court-house, as we have seen the law 
 requires, or special notice must have been given of 
 the design to apply to the court. (Whitehead v. White- 
 head & als, 23 Grat. 379-'80.) 
 
 If there are several wards, it is the guardian's duty 
 to keep separate accounts with each ; and whether he 
 does it or not, the commissioner must state the ac- 
 counts with them severally, and, as far as practicable, 
 bring the items applicable to each under the proper 
 account to which it belongs. (Bac. Abr. Guardian 
 (I); Armstrong v. Walkup, 9 Grat. 376.) 
 
 VerjC^Ji^pSyVfefe^^^fi^applicable to other fidu- 
 
454 ' GUARDIAN AND WAED. [bOOK I. 
 
 claries besides guardians, — as to personal representa- 
 tives, curators, and committees of lunatics; and also 
 to "trustees in deeds of trust. (Y. C. 1873, c. 128, § 
 4, 5, & seq.) 
 4s. The mode of stating Guardian's Accounts. 
 
 In respect to the mode of stating guardian's accounts, 
 it will be proper to advert to (1), The general princi- 
 ples regulating the statement of such accounts; (2), 
 The mode of charging interest in respect of guardians ; 
 . (3), Allowances to gnaj^dians ; (4), Doctrine touching 
 the validity of a guardian's private settlement with his 
 ward, &c.; (.5), Doctrine as to the guardian's own ex- 
 amination before the commissioner; (6), Doctrine as 
 to the production of books and vouchers; (7), Mode of 
 proceeding by ward against guardian, and limitation 
 thereto ; and (8), Form of stating guardian's accounts ; 
 W. C. 
 I'' The General Principles regulating the Statement of 
 Guardian's Accounts. 
 
 In making these yearly statements, an annual rest 
 is made, of course, and a balance struck. 
 
 The accounts of each year embrace the transactions 
 thereof, both receipts and disbursements, the receipts 
 being stated on one side, and the disbursements on the 
 other. No interest is calculated on the individual 
 items on either side, and that notwithstanding tlie re- 
 ceipts may have been early, and the disbursements 
 late in the year, or vice versa. The balance being 
 struck on the transactions of the year, it bears interest 
 throughout the next year, and usually constitutes the 
 first item in the next year's statement. 
 
 This method of omitting interest on the separate 
 items of the year's transactions on both sides, upon 
 the whole, is not unequal, and at all events, as a 
 general rule, is expedient, in order to save time, of 
 which much would be consumed at a great expense 
 (the commissioner being paid by the hour), if compu- 
 tations of interest were to be made on each of the 
 multiplied particulars of receipt and disbursement of 
 which a guardian's account commonly consists. And 
 if in any instance the rule works a hardship, it is in 
 the discretion of the commissioner and of the court to 
 recede from it, being merely a rule of convenience. 
 Thus, if a large sum is received or disbursed early in 
 the year, and it would be unreasonable, under all the 
 circumstances, to deny interest thereon until the end 
 of the year, it may be allowed on the money disbursed 
 from thfim^ge^bxiWf^M, and on the money 
 
CHAP. XVII.] GUABDIAN AND WARD. 455 
 
 received, after a reasonable time for its investment. 
 The common law iixes this reasonable time at the un- 
 reasonably long period of six months, whilst in Virginia 
 it is, by statute (in the case of guardians), fixed at 
 tlie more unreasonably short period of thirty days. 
 (Hooper v. Royster, 1 Munf. 132; McCall v. Peachy's 
 Adm'r, 3 Munf. 303; Garrett v. Carr, 1 Eob. 209; 
 Armstrong v. Walkup, 12 Grat. 613; V. C. 1873, c. 
 123, § 12.) 
 2''- The Mode of Charging Interest in respect of Guar- 
 dians. 
 
 The balance appearing to be due on either side by 
 these annual settlements is to bear interest during the 
 ensuing year, without qualification, if the balance be 
 in favor of the loard, and is retained in the guardian's 
 hands; but if it be loaned out or invested, the guar- 
 dian is charged with such interest only as he does or 
 ought to receive ; and that as well where the balance 
 is composed of interest or of estimated profits, as in 
 other cases. (Garrett v. Carr, 1 Rob. 211.) But 
 where the balance is in favor of the guardian, interest 
 is not allowed upon so much thereof as consists of 
 interest, or of mere estimated and conjectural amounts. 
 The statute itself, indeed, expressly requires (V. C. 
 1873, c. 123, § 10), that if any balance, whether of 
 profits received or estimated, or of interest on principal, 
 be due by any guardian, or other person acting as 
 guardian, at the end of any year, which ought to be 
 invested or loaned out, within a reasonable time, for 
 the benefit of the ward, and the same remains in the 
 hands of such guardian, &c., he shall be charged with 
 interest on such balance from the end of the year in 
 which it arose, and so on toties quoties, during the con- 
 tinuance of the trust. But from the termination of 
 the wardship, by the ward's coming of age or other- 
 wise, the account is to be settled upon the ordinary 
 principles of debtor and creditor as to interest, com- 
 pound interest being generally excluded on both 
 sides. (Garrett Ex'or, &c., v. -Carr, 1 Rob. 196 ; 
 Childers v. Deane, 4 Rand. 406 ; Jackson v. Jackson, 
 1 Grat. 144; Cunningham v. Cunningham, 4 Grat. 
 43 ; Handley v. Snodgrass, 9 Leigh, 484 ; Armstrong 
 V. Walkup, 12 Grat. 608, 812; Evans v. Pearce, 15 
 Grat. 515.) 
 
 And this rigor towards guardians has induced the 
 legislature to allow them to recover compound in- 
 terest on all bonds payable to them as guardians, and 
 Jield for the benefit of the ward. fy.C.1873,c.l23,§ll.) 
 Digitized by Microsoft® 
 
466 &UAEDIAN AND WAED. [BOOK I. 
 
 3''. Allowances to Guardians. 
 
 Allowances to guardians will include (1), Disburse- 
 ments by guardians; and, (2), Compensation to guar- 
 dians. 
 W. C. 
 1'. Allowance of Disbursements by Guardians. 
 
 A guardian is to be a,llowed in his account any 
 debts which he may properly have paid for his ward, 
 whether contracted by himself, or obligatory upon 
 him as descending Jf'rom his father, &c. ; any ex- 
 penses reasonably incurred by the guardian in the 
 fulfilment of his trust, — such as the cost of clothes, 
 _ education, and other needful personal expenses of the 
 ward, and such also as reasonable fees to counsel 
 (although they may be greater than the law at the 
 time prescribed), taxes, reasonable charges for the 
 recovery of the ward's property when lost, hires of 
 laborers, and other expenses incident to the cultiva- 
 tion of the ward's lands, repairs and suitable and 
 beneficial improvements to the ward's houses, &c.; 
 and under circumstances making it necessary, — 
 clerk's hire, rent of counting-room, postage, &c.,, 
 although these latter charges, when not necessarily 
 considerable, are usually regarded as satisfied by the 
 commissions of the guardian. (Lindsay v. Hower- 
 ton, 2 H. & M. 9 ; ISTimmo's Ex'or v. Com'th, 4 H. 
 & M. 57; Hooper v. Royster, 1 Munf. 129, 132; 
 Hipkins v. Bernard, 4 Munf. 93 ; Foreman v. Mur- 
 ray, 7 Leigh, 416, 418 ; Ferneyhough's Ex'ors v. 
 Dickinson,"2 Eob. 582, 589; Newton v. Poole, 12 
 Leigh, 140.) 
 
 In respect to the expense of maintaining the ward, 
 it is well settled that if the father be living and of 
 sttfiicient ability, he is under a legal obligation to de- 
 fray the charges, which in that case are not to be 
 allowed to the guardian. (Evans v. Fearce, 15 
 Grat. 515.) On the other hand, where the guardian 
 is not the parent, or is at liberty to chai-ge the ward 
 with his support, he is to be credited with the ex- 
 pense, notwithstanding he may have, at a previous 
 period, declared (without valuable consideration), 
 that he did not intend to charge him. (Hooper v. 
 Eoyster, 1 Munf. 119 ; Armstrong v. Walkup, 9 
 Grat. 376; Evans v. Fearce, 15 Grat. 516; Sayers 
 V. Cassell, 23 Grat. 532.) 
 
 As to the vouchers upon which these or other 
 charges against the ward are to be allowed, they 
 must l^'£^§fi'afcryteiM% to prove that the de- 
 
CHAP. XTII.] GUAKDIAN AND WAED. 457 
 
 mand is just, (which, in the abBence of any circum- 
 stances of suspicion, may be afforded by the credi- 
 tor's own affidavit), and that it loas paid, which is 
 generally proved by the creditor's receipt. But it 
 seems that where an ex parte settlement has pre- 
 viously taken place, and a suit in equity is brought 
 to surcharge and falsify, the vouchers referred to in 
 the previous settlement are to be presumed' satis- 
 factory, and the burden of proof is upon the im- 
 'peaching party. (2 Lorn. Ex. 549; Corbin v. Mills, 
 19 Grat. 438 ; -Newton v. Poole, 12 Leigh, 143.) 
 And h\ some cases the guardian may properly be 
 allowed small amounts on his oivn affidavit alone, es- 
 pecially where the account is of old standing, as 
 over fourteen years, or the expense must probably 
 have been incurred, and from its nature could not be 
 expected to be sustained by other vouchers, — e. g. 
 travelling expenses, postage, &c. (2 Lom. Ex. 549, 
 553, &c.; McCall v. Peachy, 8 Munf. 305; Newton 
 V. Poole, 12 Leigh, 140, 142 ; Fitzgerald v. Jones, 1 
 Munf. 150 ; Liddesdale v. Kobinson, 2 Brock 160 ; 
 1 Greenl. Ev. § 147, n. t.) 
 2'. Allowance of Compensation to Guardians.' 
 
 The compensation to be allowed the guardian is in 
 the discretion of the commissioner, subject to the 
 control of the court; or, as the statute expresses it 
 (V. C. 1873, c. 128, § 25), it is to be a "reasonable 
 compensation in the form of a commission on receipts, 
 or oiherioise." The common law denies the guardian 
 any compensation whatever, (except in so far as it is 
 bestowed by the father's will, or Voluntarily con- 
 ceded by the ward upon attaining his age, and after 
 a final and complete settlement), regarding the office 
 as one of friendship merely, which ought not to be 
 undertaken for gain, and cannot be properly re- 
 warded with money; and fearing that to allow com- 
 pensation would open a door to abuses. fEobinson 
 V. Pett, 3 P. Wms. 249 ; Hylton v. Hylton, 2 Yes. 
 Sen'r, 548 ; 2 Wh. & Tud. L. C. (Pt. I), 337, 339 ; 
 Moore v. Frowd, 3 My. & Cr. (14 Eng. Ch.) 50.) 
 Our law in Virginia (and generally in the United 
 States) takes a less sublimated view, and considers 
 that it is best for the helplessness of infancy, that 
 guardians should receive a fair compensation for 
 their services, so as to indiice competent persons to 
 undertake the trust and to discharge it with assiduity. 
 (2 Stor^Eq. § 1268^^^^ 2^^h. & Tud. L. C. (Pt. 
 I), 353, &c., 376./ A similar state of society, and a 
 
458 GUARDIAN AND WAED. [bOOK I. 
 
 corresponding assimilation of thought, has led to the 
 practice of compensating guardians, (and usually by 
 commissions), in most of the colonial dependencies of 
 Great Britain, as, for example, in the West and East 
 Indies. (Chatham v. Audley, 4 Ves. Y2 ; Chambers 
 V. Goldwin, 5 Yes. 837; S. C. 9 Yes. 268; Cockrell 
 V. Barber, 2 Euss. (3 Eng.Ch.) 585.) 
 
 The avuount of compensation allowed depends on 
 the time, trouble and pecuniary responsibility in- 
 volved in the guardian's duties in the particular ease, 
 with some reference'also to the value of'his services 
 to the ward. It is therefore with us allowed in the 
 form of commissions, and of commissions on receipts, 
 not on disbursements. It is allowed on each year's 
 transactions separately, and therefore is to be credited 
 to the guardian before the annual balance is struck. 
 (Cavendish v. Fleming, 3 Munf. 201-2, & note; Fer- 
 neyhough v. Dickinson, 2 Eob. 589; 2 Lorn. Ex. 544.) 
 The amount of the commissions is commonly j^jwej^er 
 cent., but it may be less or more, as peculiar circum- 
 stances may make just; and so iixed is that ratio of 
 compensation, that where the deceased father of the 
 ward directed that the guardian should be handsomely 
 paid, the court still fixed on five per cent, as the pro- 
 per allowance. (Waddy v. Hawkins, 4 Leigh, 58; 
 Triplett v. Jameson, 2 Munf. 243-'4; Sheppard v. 
 Starke, 3 Munf. 42-; Hipkins v. Bernard, 4 Munf. 
 93; Boyd's Sureties v. Oglesby, 23 Grat. 674.) 
 
 A commission of seven and- a half, and even of 
 ten per cent., has been allowed under peculiar cir- 
 cumstances, as where the estate was troublesome to 
 manage, and the amount of m,oney received small. 
 (Fitzgerald v. Jones, 1 Munf. 156, 159-'60; McCall 
 V. Peachy, 3 Munf. 306-'7 ; Cavendish v. Fleming, 
 3 Munf. 202; 2 Wh. & Tud. L. C. (Pt. I) 361-'2; 
 Pusey V. Clemson, 9 Serg. &,E. 209.) 
 
 On the other hand, if the guardian be left a legacy 
 by way of compensation for his services, nothing is 
 to be allowed in the form of commissions. (Jones v. 
 Williams, 2 Call, 105; Granberry v. Granberry, 1 
 Wash. 250; Freeman v. Fairlie, 3 Meriv. 24; Cock- 
 erell v. Barber, 2 Euss. (3 Eng. Ch.) 585 ; 2 Wh. & 
 Tud. L. C. (Pt. I) 367-'8.) 
 
 Compensation to a guardian being with us matter 
 of right and not of grace, is not usually forfeited, 
 save by statute, by his misconduct; but in Yirginia 
 lie is, as we have seen, expressly deprived of his 
 commi^iilpSzbj!' fe^</Wlief6¥0ifel87'3, c. 132, § 8) when 
 
CHAP. XVII. 1 GUAKDIAN AND WARD. 459 
 
 he omit8 to settle his accounts annually, as required 
 by law; and this forfeiture it was formerly not in the 
 power of the court to remit to him (6 Leigh, 274:-'5 ; 
 1 Grat. 13 ; 3 Grat. 125 ; Morris v. Morris, 4 Grat. 
 345 ; Ante, p. 452) ; although at present it is. (V. C. 
 1873, c. 128, § 9.) And if he improperly convert 
 property into money, he is denied commissions on 
 the proceeds. (2 Wh. & Tnd. L. C. (Ft. I) 357; 
 Bank of Yirginia v. Craig, 6 Leigh, 437.) 
 
 As to the subject-matter on which the percentage of 
 commissions is to be computed, we have seen that it 
 is receipts, and not disbursements; and under the de- 
 scription of receipt'', are reckoned bonds which the 
 guardian might rightfully have collected, but did not, 
 and ultimately, with the ward's consent paid over to 
 him in kind as so much money (Ferneyhougli v. Dick- 
 inson, 2 Rob. 582, 589; Claycomb v. Claycomb, 10 
 Grat. 592); and so, where the guardian converts bonds 
 or other debts into mortgages (without receiving the 
 money), and delivers the mortgage to the "ward (Hip- 
 kins V. Bernard, 4 Mimf . 92). And of course money 
 of the ward on hand at the commencement of the 
 wardship is to be reckoned amongst the receipts, as 
 are also the proceeds of crops, or indeed of any chat- 
 tels rightfully sold (Hipkins v. Bernard, 4 Munf. 92.) 
 But strange to say, although commissions are the 
 guardian's compensation for the trouble he has about 
 the whole trust, — in taking care of the ward, in 
 managing his property, in selling it and receiving the 
 price, including the risk of taking counterfeit money 
 which, in general, would be his loss; (Taliaferro v. 
 Minor, 2 Call, 192), and also in paying out money, 
 and accounting, as well as in collecting debts, — yet 
 it is held that the guardian can have no commissions 
 on debts due from himself to the ward, with which he 
 charges himself; as if the mere receipt of the money 
 constituted the whole consideration for the commis- 
 sion, and the custody, disbursement, and accounting 
 were nothing. (Carter's Ex'ors v. Cutting, 5 Munf. 
 227; Ferneyhough v. Dickhison, 2 Eob. 582. See 
 contra, Cockerell, v. Barber, 2 Euss. (3 Eng. Ch.) 
 588-'9, & n (b).) 
 
 Commissions are not in general to be allowed twice 
 upon the same capital, notwithstanding the invest- 
 ments be changed ; but (after being once allowed on 
 the principal), only on the i income arising from it. 
 (McCall V. Peachy', 3 Munf. 297 ; 2 Wh. & Tud. L. 
 C. {Yt.CLi0m^,mMW.(^soft® 
 
460 GUARDIAN AND WARD. [BOOK I. 
 
 The rule when the fund comes into the hands of 
 a successor, as to the allowance of a second commis- 
 sion, is not well defined. In New York it is usual 
 not to permit a guardian to resign, except upon his re- 
 linquishing any commissions upon the fund trans- 
 ferred to his successor, whence it would seem to 
 follow tliat, but for such an arrangement, a double 
 commission would be allowed. Scd qumre. (2 Wh. 
 & Tud. (Ft. I), 357; Jones' case, 4 Sand. Ch'y, 616.) 
 
 Commissions are. not to be computed upon the 
 value of properly belonging to the ward, and finally- 
 turned over to him in kind, unless, from being per- 
 ishahle or otherwise, it be such property as the guar- 
 dian might with propriety have sold or converted 
 into monej', as in case of the bonds above men- 
 tioned ; and if the guardian shall appear to have 
 converted the ward's property into money with a 
 view to commissions, where there was no sufiicient 
 reason therefor, commissions will be denied him. 
 (Bank of Virginia v. Craig, 6 Leigh, 437; Ferney- 
 hough V. Dickinson, 2 Rob. 582, 589; Claycomb v. 
 Claycomb, 10 Grat. 592; 2 Wh. & Tud. L. C. (Ft. 
 I), 357.) 
 
 Whether a guardian who employs an attorney or 
 agent to collect money shall be allowed a commis- 
 sion thereupon, in addition to the compensation paid 
 the attorney, depends on whether a prudent man 
 would have employed an attorney to collect his own 
 money. If he would, the guardian is to be allowed 
 a commission in addition to that paid the attorney; 
 otherwise not. (Carter's Ex'ors v. Cutting, 5 Miinf. 
 241.) 
 
 Where there are several guardians the compensa- 
 tion is to be equally divided amongst them, unless 
 some reason appear to the contrary — e. g., an unequal 
 share of the labor and responsibility. (Claycomb v. 
 Claycomb, 10 Grat. 589.) 
 
 In England a guardian, who is an attorney, cannot 
 charge for his own professional services, but is per- 
 mitted to employ another person, and to pay him 
 for advice and aid. (2 Dan. Chan. Pr. 1432 ; 2 Wh. 
 & Tud. (Ft. I), 339-'40.) In Virginia it is said to 
 be the practice to allow attorneys wlio are fiduci- 
 aries a proper compensation for their professional 
 services in the conduct of the business. (Matt. 
 Guide for Com'rs, 99, 100.) 
 
 4''. Doctrine touching the Validity of a Guardian's pri- 
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CHAP. XVII.J GUARDIAN AND WAED. 461 
 
 vate settlement with liis Ward, and of a conveyance 
 by the Ward to him. 
 
 A guardian's private settlement with his ward is 
 always scrutinized with rigor; and a release without a 
 settlement, especially soon after the ward attains his 
 age, however fair "it may really be, is so liable to 
 abuse and fraud as to be regarded in equity as con- 
 structively fraudulent and voidable at the instance of 
 the ward. And upon like principles, a conveyance 
 from a ward to a guardian, made soon after attaining 
 age, and without a settlement of accounts, is viewed 
 in the same light, as a transaction too likely to be a 
 cloak for fraud to be tolerated, and therefore regarded 
 in equity as constructively fraudulent, and voidable 
 by the heir. So also, for kindred reasons, no fidu- 
 ciary of any description is permitted to deal for his 
 own benefit with the subject matter of his trust, not 
 only because the parties are not on an equal footing 
 in respect to acquaintance with the subject, but also 
 because to allow the validity of such transactions 
 would tend to corrupt the integrity of persons so 
 situated, by setting their interest in opposition to 
 their duty. For these reasons, the law holds transac- 
 tions of that kind to be always voidable by the bene- 
 ficiary. (Bac. Abr. Guardian (II) ; 1 Stor. Eq. § 317 
 & seq., 321 & seq.; 2 Eob. Pr. (1 Ed.) 158-'9; Armi- 
 stead V. Waller, 2 Leigh, 14; Buckles v. Lafferty's 
 Legatees, 2 Rob. 292, 299, &c. ; Segar v. Edwards, 
 11 Leigh, 213 ; Bailey v. Robinson, 1 Grat. 4, 9, 10 ; 
 Howery v. Helms, &c., 20 Grat. 7, &c.; 1 Wh. & Tud. 
 L. C. 126, 134, 140 ; Fox v. Mackreth, 2 Bro. C. C. 
 400; S. C. 2 Cox, 320; Killick v. Flexney, 4 Bro. C. 
 C. 161; Hall v. HoUet, 1 Cox, 134; Campbell v. 
 Walker, 5 Yes. 678; S. C. 13 Yes. 601; Whichcote 
 V. Lawrence, 3 Yes. 940; Ex parte Bennett, 10 Yes. 
 381; Downes v. Glazebrook, 3 Mer. 200; Ante, -p. 
 222-'3.) 
 5^. Doctrine as to the Guardian's own Examination be- 
 fore the Commissioner. 
 
 It is the ordinary practice in equity, in- every 
 decree or order of account, to direct that the master 
 commissioner may examine the parties upon interro- 
 gatories, in which case their answers are regarded as 
 if made to a bill filed. Hence, so far as the answer 
 is responsive to a question, it is evidence for the 
 respondent; and the answer of one party is not, as a 
 general rule, to be used against another (although a 
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462 GUARDIAN AND WABD. [bOOK I. 
 
 co-partj'), but only against the respondent hinaself. 
 But where of two co-parties one is in default aiid con- 
 tempt, omitting to obey the commissioner's summons 
 to appear before him, but, by his answer to the bill, 
 acknowledging indebtedness, and another appears and 
 is examined, stating the particulars of indebtedness, 
 and that the assets to meet it were all turned over to 
 the other party, it was considered adnaissible, under 
 the peculiar circumstances, to presume against the 
 party in default th|t he was solely responsible, and it 
 was decreed accordingly. (2 Lom. Ex. 551-'2; 2 
 Eob. Pr. (1st Ed.) 329-'30, 404 ; 2 Smith's Chan'y, 
 Pr. 122 ; Templeman v. Fauntleroy, 2 Hand. 434, 
 445.) 
 
 It is a general rule, in taking accounts before a 
 commissioner, that a party, in his examination, may 
 charge and discharge himself in the same sentence, but 
 not in different sentences. And so, if by his answer 
 he admits a fact, and insists on a distinct fact by way 
 of avoidance, he must prove the latter by other testi- 
 mony, whilst the fact admitted is thereby established 
 against him. Thus, if a guardian admits the receipt 
 of money for his ward, but claims to have disbursed 
 it legally, his admission is sufficient evidence of the 
 receipt, but the proper disbursement is to be proved 
 by other satisfactory means. On the other hand, 
 where the guardian states that the ward's father gave 
 him a sum. of money in his life time, if advantage is 
 sought to be taken of the statement to prove the re- 
 ceipt of the money, the whole must be taken together, 
 occurring as it does in one sentence ; and the guar- 
 dian can only be. charged by disproving his averment 
 as to the gift. (2 Lom. Ex. 550, 552 ; Beckwith v. 
 Butler, 1 Wash. 224 ; Payne v. Coles, 1 Munf. 373 ; 
 Kirkpatrick v. Love, 2 Arabl. 589 ; Blount v. Bar- 
 row, 1 Yes. Jun'r, 547 ; Ridgway, v. Darwin, 7 Yes. 
 405 ; Thompson, v. Lambe, Id. 588 ; Eobinson v. Scot- 
 ney, 19 Yes. 584.) 
 &". Doctrine as to the Production of Books and Youchers. 
 One of the usual directions in every decree for an 
 account is that the parties shall produce before the 
 master-commissioner, on oath, all books, papers, and 
 writings in then- possession touching the enquiries to 
 be made ; and these are in general retained by the 
 master for the benefit of the parties concerned, as 
 long as they are needed. Nor can a guardian excuse 
 himself from producing books, &c., because he has 
 mixed th/§^ife«(Mii' MffiiB®S@fl@is not relating to his 
 
CHAP. XVII.J GUARDIAN AND WAED. 463 
 
 trust. (2 Lom. Ex. 503 ; Freeman v. Fairlie, 3 Meriv. 
 43-4; Salisbury v. Wilkinson, 1 Cox, 278.) 
 7'^. Mode of Proceeding by "Ward against Guardian, and 
 Limitation thereto. 
 
 The ward may proceed by an action at law, on 
 the guardian's official bond, against himself and his 
 sureties; but as, in most cases, the settlement 
 of the guardian's account is necessarily preliminary 
 10 any judgment, and, as a court of law has no 
 means of adjusting such an account, it is allowable 
 and usual to sue the guardian and his sureties in 
 equity, which, by means of one of its master-commis- 
 sioners, is enabled, with facility, to take the needful 
 accounts. Such a suit, whether at law or in equity, 
 may be brought during the ward's non-age, in his 
 name, by his prochein ami, or next fi-iend, or, after he 
 attains his age, by himself alone. (2 Kob. Pr. (1st 
 Ed.) 158.) 
 
 But the suit upon the bond, whether at law or in 
 equity, is in Yirginia limited by statute (Y. C. 1873, 
 c. 146, § 8, 9,) to ten years from the time when the 
 right of action first accrued, which is declared to be 
 from the " time when the ward attains the age of 
 twenty-one years, or from the termination of the guar- 
 dian's ofliee, whichever shall happen first," saving to 
 infants, married women, and insane persons, the like 
 number of years after the removal of their disabilities, 
 but so as in no case to exceed twenty years from the 
 accrual of the right of action. (V. C. 1873, c. 146, § 
 9, 18.) "Where, however, the proceeding is not on the 
 iond, but against the guardian alone, or his represen- 
 tative, on the ground of the trust arising out of his 
 iBduciary relation, the statute of limitations is not 
 applicable (V. C. 1873, c. 146, § 9), and there is no 
 other bar than that interposed by the discretion of the 
 court in respect to stale and antiquated claims, where 
 the transactions, by the lapse of time, have become 
 obscure; or where, from the loss of vouchers or death 
 of witnesses, injury would be likely to result; or 
 where, from the mutual relations of the parties, a pre- 
 sumption of satisfaction fairly arises. (Boiling v. 
 Boiling, 5 Munf. 334; Coleman v. Lyne's Ex' or, 4 
 Kand. 454 ; Burwell's Ex'or v. Anderson, 3 Leigh, 
 348 ; Carr v. Chapman, 5 Leigh, 171 ; Hayes v. 
 Goode, 9 Leigh,-481 ; Handley v. Snodgrass, Id. 489 ; 
 Aylett V. King, 11 Leigh, 491 ; Smith v. Clay, 3 Bro. 
 C. C. 639, note ; Lacon v. Briggs. 3 Atk. 105 ; Pick- 
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464 GtTAKDIAN AND WARD. [bOOK I. 
 
 ering v. Stainford, 2 Yes. Jun'r, 272, 581 ; Harwood 
 V. Oglander, 6 Yes. 199, 217.) ' 
 
 8^. Form of Stating Guardian's Accounts. 
 
 The form of stating a guardian's account will com- 
 plete the illustration of the subject. It will be ob- 
 served that, in the form annexed, the account is sup- 
 posed to extend through six years ; that for the first 
 
 ' two years (what seldom happens), the balance is in 
 favor of the guardian, thus affording an opportunity 
 of showing how interest is charged in that case (namely, 
 on the principal aloTie, and not on the interest) ; whilst 
 afterwards it is on the side of the ward, and thus 
 shows how interest is charged in that case also ; and 
 that for the last year the wardship is supposed to he 
 ended, so as to entitle the guardian to be treated as 
 an ordinary debtor. 
 
 The notes appended will remind the student of the 
 explanations which have already been given in con- 
 nection with the several particulars in the account 
 which illustrate or exemplify them. 
 
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466 
 
 Dr. 
 
 GUARDIAN AJSTD WAED. [bOOK I. 
 
 STATEMENT OF 
 W. W. in account 
 
 1865. 
 May 
 June 
 Oct. 
 
 1866. 
 May 
 
 12 
 1 
 
 1 
 
 1 
 
 To DiBbursements for Ward, per vouchers (1) 
 
 Do. Do. Do (2) 
 
 " Do. Do. Do .(3) 
 
 " Interest on Disburs'ts of June 1, 1865, 11 mo (a), 
 
 ' ' Interest on Disburs'ts of October 1, " 7 " {a), 
 
 " Commission on Rec'ts thi^year ($50), at 5 per ct 
 
 60 
 2,500 
 3,000 
 
 137 
 
 105 
 
 2 
 
 00 
 00 
 00 
 
 50 
 GO 
 50 
 
 15,805 
 
 00 
 
 1866. 
 May 
 July 
 Aug. 
 Sept. 
 
 1867. 
 May 
 
 1 
 12 
 
 1 
 10 
 
 1 
 
 To Balance ^er eont/ra (Vria. $5,562.50) (5) 
 
 .5,755 
 
 345 
 
 36 
 
 42 
 
 16 
 
 333 
 
 40 
 
 00 
 00 
 00 
 00 
 
 56 
 72 
 00 
 
 " Disbursements for Ward, per vouchers (4), 
 
 Do. Do. Do (5), 
 
 " Do. Do. Do (6), 
 
 " Interest on disburs'ts of July 12, 1866, 9 mo. 18 d. (a) 
 " Interest on Balance of last year (Prin. $5,562.50) (S)... 
 " Commission on Eec'ts this year ($800) 5 per ct. 
 
 
 $6,568 
 
 28 
 
 1867. 
 May 
 June 
 July 
 
 1868. 
 Jan. 
 Feb. 
 Mar. 
 May 
 
 1868. 
 June 
 Nov. 
 
 1869. 
 May 
 
 ) 
 
 18 
 
 1 
 
 5 
 8 
 9 
 1 
 
 To Balance ^er contra 
 
 5,768 
 134 
 
 228 
 
 37 
 
 28 
 
 64 
 
 6 
 
 11 
 
 346 
 
 2,083 
 
 32,961 
 
 28 
 00 
 
 77 
 
 00 
 00 
 00 
 96 
 44 
 08 
 50 
 97 
 
 ' ' Disbursements for Ward, per vouchers, (7) 
 
 " Do. Do. Do (8) 
 
 Do. Do. Do ; (9) 
 
 " Do. Do. Do (10) 
 
 Do. Do. Do (11) 
 
 " Interest on Disburs'ts of June 1867, 10 mo. 12 d, {a)... 
 
 " Interest on Disburs'ts of July 1, 1867, 10 mo. {a) 
 
 " Interest on Balance of last year ($5,765.37) 
 
 " Commission on Eec'ts this year ($41,730), 5 per ct 
 
 " Balance due Ward, (c) 
 
 
 $41,670 
 
 00 
 
 24 
 
 1 
 
 20 
 
 1 
 
 To Disbiirsements for Ward, per vouchers (12) 
 
 Do. Do. Do (13) 
 
 Do. Do. Do (U) 
 
 " Interest on Disburs'ts June 24, 1868, 10 mo. 6 d. (a)... 
 " Commission on Eec'ts this year ($8,304.72) 5 per ct. ... 
 " Balance due Ward, 
 
 540 
 56 
 
 38 
 
 25 
 
 415 
 
 40,191 
 
 $41,266 
 
 00 
 00 
 00 
 
 94 
 23 
 52 
 
 69 
 
 
 1869. 
 Aug. 
 Oct. 
 
 6 
 1 
 
 To Disburs'ts for Ward, for coal mine, per vouchers, (15) 
 Do. Do. Do. Do. (16) 
 
 _.CM:ried, forward, __, 
 
 4,300 
 720 
 
 00 
 00 
 
 $5,020 
 
 00 
 
 
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CHAP. XVII. 1 GUAKDIAN AND WARD. 
 
 GUAKDIAN'S ACCOUNTS. 
 with C. C. his Guardian. 
 
 467 
 
 Or. 
 
 1865. 
 May 
 
 1866. 
 May 
 
 18G6. 
 Dec. 
 
 1867. 
 May 
 
 1867. 
 May 
 
 1868. 
 Jan. 
 May 
 
 1868. 
 May 
 
 1869. 
 Jan. 
 May 
 
 1869. 
 May 
 Nov. 
 
 30 
 
 By Cash received for Ward, this day 
 
 '• Balance due Guardian, (Princ. $5,562.50) (J). 
 
 30 
 
 By Cash received for Ward, this day.. 
 " Balance due Guardian, 
 
 50 
 
 .5,755 
 
 00 
 
 00 
 
 $5,805 
 
 By Cash received for Ward, this day. 
 
 Profits, one year, $30,000 U. S. 6 per ct. bonds,. 
 Interest on money received 30th May, 1867, 
 
 thirty days, 10 months, (dl), (a) 
 
 Estimated profits of Coal mine, two years, 
 
 after 
 
 By Balance, per contra.. 
 
 Profits, one year, U. S. bonds of $30,000, 6 per ct.,. 
 Interest on money received Jan. 1, 1869, after thirty 
 
 days, 3 months, (a) 
 
 Estimated profits of coal mine, one year, 
 
 Interest on balance of last year, ($32, 961.97) (e) 
 
 2 By Balance per contra, invested by order of court. 
 
 Half year's interest on investment, received this day, 
 
 Di^m¥bYWkcro^om- 
 
 800 
 5,768 
 
 $6,568 
 
 28,540 
 
 1,800 
 
 1,330 
 10,000 
 
 $41,670 
 
 32,961 
 
 1,800 
 27 
 
 00 
 
 00 
 
 28 
 
 28 
 
 00 
 00 
 
 00 
 00 
 
 4,500 00 
 
 1,977 
 $41,266 
 
 40,191 52 
 1,205 
 
 $41,397 48 
 
 00 
 
 97 
 00 
 00 
 
 72 
 69 
 
468 
 Br. 
 
 GUAKDIAN AND WARD 
 
 [book I. 
 W. W.in accmunt with 
 
 1869. 
 
 18T0. 
 
 Jan. 
 
 May- 
 
 is 
 
 1870. 
 Oct. 
 
 1871. 
 May 
 
 Brouglit over, 
 
 To disbursements for Ward, per vouchers (17) 
 
 " Do. Do. Do. 
 
 " Interest on Disbursements, Oct 1, 1869, 7 mo. {a).... 
 " Interest on disburs'ts Aug. 6, 1869, 8 mo 24 days (a). 
 " Commission on Kec'ts this year ($4,805.91), 5 per ct, 
 " Balance due Ward, 
 
 * 
 
 To disbursements for Ward, per vouchers (19) 
 
 " Interest on disburs'ts of Oct. 1, 1870, 7 mo. (a) 
 
 " Commissions on Rec'ts this year ($11,434.51) 5 per ct. 
 " Balance due Ward, 
 
 5,020 
 
 00 
 
 56 
 
 40 
 
 22 
 
 00 
 
 25 
 
 00 
 
 189 
 
 20 
 
 241 
 
 80 
 
 39,473 
 
 23 
 
 $45,027 
 
 63 
 
 1,570 
 
 00 
 
 44 
 
 95 
 
 571 
 
 75 
 
 48,721 
 
 04 
 
 $50,907 
 
 74 
 
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GTJAKDIAN AND WAED. 
 
 CHAP. XVH.J 
 
 C. C, his guardian, continued. 
 
 469 
 
 1869. 
 May 
 
 1870. 
 May 
 Aug. 
 
 Nov. 
 1871. 
 Jan. 
 
 May 
 
 1871. 
 May 
 Sept. 
 
 1871. 
 Sept. 
 
 1872. 
 Jan. 
 
 Mar. 
 
 Brought over 
 
 To Estimated profits on Coal mine, one year, 
 
 Interest on money received November 1, 1869, after 
 thirty days, 5 months, (as) 
 
 By Balance per contra, invested by order of Court, 
 
 Half year's interest on investment, due 1st 
 
 May, 1870, $1,205.86 
 
 Interest thereon, collected of debtor, (/),... 18.09 
 
 Halt year's interest on investment, due this day,. 
 
 Profits on U. S. bonds, $30,000, 6 per ct. two years, 
 
 Interest on $1,800, part of profits, one year, 
 
 Estimated profits of coalmine, one year 
 
 Interest on money received August 7, 1870, after thirty 
 
 days, 8 months, (a) 
 
 Interest on money received Nov. 1, 1870, after thirty 
 
 days, 5 months, (a) 
 
 Interest on money received Jan. 1, 1871, after thirty 
 
 days, 3 months, (a) 
 
 Half year's interest on present investment, received 
 
 this day, 
 
 41,397 
 3,600 
 
 30 
 
 $45,027 
 
 39,473 
 
 1,223 
 1,184 
 
 3,600 
 
 108 
 
 4,000 
 
 48 
 
 29 
 
 55 
 
 1,184 
 
 48 
 00 
 
 16 
 
 By Balance ^er contra, 
 
 Interest on Balance to date when Ward attains his age, 
 4 months, 
 
 By Balance due Ward this day. Principal, $48,721 04 
 
 (g) Interest 974 42 
 
 Interest on principal ($48,721.04) to date, 4 mo's. , 
 
 Deduct cash then paid by Guardian, 
 
 ' Interest on $18,689.36 to date, 2 months 
 
 Deduct cash then paid by Guardian, 
 
 Balance due Ward, March 1, 1872, with int. from 
 that date, 
 
 Digitized by Microsoft® 
 
 $50,907 
 
 48,721 
 974 
 
 $49,695 
 
 49,695 
 993 
 
 $50,689 
 32,000 
 
 18,689 
 186 
 
 18,876 
 10,000 
 
 23 
 
 95 
 19 
 
 00 
 00 
 00 
 
 60 
 62 
 19 
 
 74 
 
 04 
 42 
 46 
 
 46 
 90 
 
 36 
 
 00 
 
 36 
 
 89 
 
 $8,876 25 
 
 25 
 00 
 
4:70 GUARDIAN AND WARD. [bOOK I. 
 
 NOTES ON GUAEDIAN'S ACCOUNT. 
 
 (a.) Interest is allowed on these several items of disbursement and re- 
 ceipt, notwithstanding the general rule to the contrary, because the sums 
 are so considerable that it would be a hardship upon the parties severally, 
 to postpone an allowance of interest until the end of the year, when the 
 balance is struck. See Ante p. 454^'55. 
 
 In actual settlements there would hardly be so free a departure from the 
 general rule, partly because the separate items would seldom be so large, 
 and partly because the aggregate of gains on either side by sach compu- 
 tations of interest, would generally be insignificant. 
 
 A careful survey perhaps would show ground of exception to the account 
 for allowance of interest in some instances, (as in the second year); and for 
 not allowing it in others (as in respect tb the $800 received in the second year.) 
 
 (6.) The principal is here discriminated from the interest, because, 
 although, in pursuance of the Statute (V. C. 1873, c. 123, § 10, Ante p. 
 455), the guardian, supposing him to retain the money himself, pays interest 
 on interest to the ward, yet the guardian is not himself allowed compound 
 interest as against the ward. 
 
 (c.) In this third year of the guardianship, the balance shifts from the side 
 of the guardian to that of the ward and remains in his favor until the end. 
 
 {d.) Only thirty days are allowed by Statute (V. C. 1873, c. 123, § 12), 
 to I/he guardian to invest money, and he " shall not be charged with inte- 
 rest thereon until the expiration of said time, unless he shall have made 
 the investment previous thereto." {Ante p. 454^'55.) 
 
 (e) Here, although the balance with which the year begins consists 
 largely of interest, and of estimated profits, yet interest is by Statute (V. C. 
 1873, c. 1 23, § 10), allowed thereon throughout the year. Where (as happens 
 in the fifih year, 1869-'70), the guardian does not keep the balance himself, 
 but invests or loans it, under the direction of the court, he is not to be 
 charged with interest, unless and until he receives if. (Ante p. 455.) 
 
 (/.) The guardian is allowed by Statute (V. C. c. 127, § 11), to recover 
 compound interest on " bonds " payable to him as guardian. {Ante p. 455.) 
 
 (g.) When the wardship terminates, as in this case it is supposed to do, 
 just here (Sept. 1, 1871), the account is thenceforward adjusted on the 
 principles applicable to ordinary debtor and creditor {Ante p. 455) —that is, 
 the interest is computed upon the principal sum due to the ward to the 
 time of the first payment, and that, together with the previously accrued 
 interest being added to the principal, the payment is deducted from the 
 aggregate, and if the payment exceeds the interest accrued, interest is 
 computed on the remainder, until the next payment ; and being added to 
 the principal, the payment is deducted from the aggregate ; and on the re- 
 mainder as a new capital, interest is again computed, and so on until the 
 demand is extinguished, or the account closed ; the principle being to con- 
 sider every payment as applicable, first to extinguish all the accrued interest, 
 and the balance only as going to diminish the principal sum. And hence, 
 when the payment is less than the interest which has accrued, the interest 
 is to be computed for the next period, down to the ensuing payment, on 
 the preceding principal sum. (Lightfoot v. Price, 4 H. & M. 431, 432; 
 Story V. Livingston, 13 Pet. 371 ; tl. States v. McLemore, 4 How. 286 ; 2 
 Pars. Cont. 147.) But this rule is not to the prejudice of any agreement 
 of the parties to applythe payment to the principal, andnottothe interest; 
 so that if the guardian make a voluntary payment to the ward after he attains 
 his age, and stipulate at the time that it shall be applied to principal, if the 
 ward receives it, he must so apply it. (Story v. Livingstone, 13 Pet. 371 ; 
 Conrecticut v. Jackson, 1 Johns. Ch. B.. (N. T.) 17 ; Dean v. Williams, 
 17 Mass. 417 ; Lightfoot v. Price, 4 H. & M. 431 ; PJndall's ex'x v. Bank 
 of Marietta, 10 Leigh, 484; Miller v. Trevillian & als, 2 Kob. 1.) 
 
 See "Matthew's Guide to Commifsioners," 30 et seq., 38 &c.; a book 
 which a Virginia praOjg/fesc/a&j(«lMfc/®SCWi6®ly dispense with. 
 
CHAP. XVII.J 
 
 GUAEDIAJ>r AND WABD. 
 
 4T1 
 
 5'. The Termination of the Guardianship. 
 
 The wardship, as we have seen, may be terminated 
 by the ward's or by the guardian's death; by the guar- 
 dian's resignation of his trust; by his removal from it 
 by the coiu-t which apppointed him, or by any court of 
 chancery ; by the minor, if a male, attaining the age of 
 twenty-one, or if a fernale, attaining that age, or marry- 
 ing ; or in the case of a testamentary ward, by the ex- 
 piration of the period prescribed in the will. (V. C. 
 1873, c. 123, § 7.) 
 2". The Doctrine touching the Capacities and Incapacities 
 of Infants. 
 
 In expounding the doctriue touching the capacities and 
 incapacities of infants, wo must have regard to, (1), The 
 ages at which, respectively, infants are capable for divers 
 purposes; (2), The precise time when an infant attains 
 the age of twenty-one years ; and (3), The Doctrine 
 touching the privileges and disabilities of infants ; 
 W. C. 
 1'. The Ages at which, respectively. Infants are capable 
 for divers purposes. 
 
 Purposes for wMch an Infant's ca- 
 
 Doctrine at Com- 
 mon Law as Lo 
 
 Doctrine in Virginia. 
 
 
 Males. 
 
 Females. 
 
 For Betrothal 
 
 
 7 
 7 
 9 
 
 Same. 
 
 Same. 
 
 Same. 
 
 Same. 
 
 Same. 
 
 Same. 
 
 18(V. C. 1873,c. 118,§3). 
 
 Same. 
 
 21(V.0. 1873, c. 126, §]). 
 
 Same. 
 
 
 ' Crime (if discretion proved), 
 
 7 
 
 
 12 
 14 
 14 
 14 
 14 
 17 
 21 
 
 * Assent to Marriage 
 
 12 
 14 
 12 
 14 
 17 
 21 
 
 ' Crime, {fviVij cwpax doli) 
 
 ' Will of Chattels 
 
 * Choosing Griiardian 
 
 ' Acting as Executor 
 
 ' Full Age 
 
 
 
 See 1 BI. Com. 463. 
 
 The two diversities between the doctrine in Virginia 
 and at common law. are seen from the table — namely, 
 as to the age of making a will of chattels, — which, in 
 "Virginia, is eighteen in both sexes; and of acting as ex- 
 ecutor, which, with us, is twenty-one, because the statute 
 (Y. C. 1873, c. 136, § 1) forbids that one shall act as 
 executor without giving iond, which no one can do 
 legally, under the age of twenty-one. 
 
 Full age, in inan or woman, is twenty-one, and until 
 
 that i^^^ S^§jffiSmyM%^ih&' ^'^f"'"'^- ^^^' P^™<1 
 
4^2 GTJAEDIAN AND WABD. [BOOK I. 
 
 is merely arbitrary, and is dependent on the positive 
 law of each country. England, Scotland, and the Eng- 
 lish colonies and dependencies everywhere, fix it at 
 twenty-one; but in Naples full age is eighteen; in 
 France, with regard to marriage, thirty; and in Hol- 
 land, twenty-five. (1 Bl. Com. 464; 2 Steph. Com. 
 331-'2.) 
 
 These diversities give rise to questions as to the va- 
 lidity of acts done and contracts made, as between dif- ■ 
 ferent countries, where the period of full age is not the 
 same. And the rule up&n that point is that the lex loci 
 contractus determines the validity or invalidity of the 
 transaction — that is, the law of the place where (or, per- 
 haps, rather with reference to which) the contract is 
 made, or the act done. Hence, a person who, by the 
 law of his domicil, is a minor until twenty-five, and so 
 is incapable of making a valid contract there, may, never- 
 theless, in another country (or, perhaps, by making a 
 contract to be performed in another country), where 
 the full age is twenty-one, generally make a valid 
 contract at that age, even a contract of marriage. (Stor. 
 Confl. L. § 103, 291, &c.; 2 Kent's Com. 458; Male v. 
 Eoberts, 3 Esp. 164 ; £x parte Lewis, 1 Yes. Sen'r, 
 297.) 
 2'. The precise time when an Infant attains the age of 
 twenty-one years. 
 
 By the common law, the precise period when one at- 
 tains the age of twenty-one years is on the first moment 
 of the twepty-first anniversary of his birth ; for the law, 
 in general, admits no fraction of a day (Sir Robert 
 Howard's case, 2 Salk. 625; S. C. 1 Ld. Raym. 480); 
 and the doctrine of Blackstone and his annotator (1 Bl. 
 Com. 463, & n (12),) that full age is attained on the 
 first moment of the day preceding such anniversary, de- 
 pends on dicta only, is contrary to reason and good 
 sense, is capable (by going back one day at a time) of 
 being refuted by the reductio ad absurdum, and is at 
 war with the only direct adjudication on the subject (Sir 
 Robert Howard's case just mentioned). 
 
 The confusion of thought in reference to the subject 
 seems to arise from not distinguishing between the last 
 moment of the day preceding the twenty-first anniver- 
 sary of birth, and the first moinent of the anniversary 
 itself. Hence, it becomes customary to say, loosely, 
 that the infant attains his age on the last moment of 
 the day preceding, when, in fact, it is not so until 
 that last moment is past, and the first moment of the 
 next day ^gfe^gij^jy j^]^Q§Qi^u&ion is then drawn 
 
CHAP. XVII.] GUARDIAN AOSTD WARD. 473 
 
 from this unwarranted assumption that, as the law 
 knows no fraction of a day, the infant is of age on 
 the first moment of the day preceding the twenty-first 
 anniversary of birth. But it is apparent that, if it is 
 allowable to confound thus the first moment of the an- 
 niversary with the last moment of the day preceding, it 
 is, by parity of reason, in like manner allowable to con- 
 found the first moment of such preceding day with the 
 last moment of the day before that; and thus, as no 
 fraction of a day is acknowledged, the party is of age 
 on the first moment of this last named day, and by 
 parity of reason on the first moment of the day before 
 that, &c., thus it is apprehended, reducing the proposi- 
 tion to an absurdity. 
 
 The citations in n (12) all refer to the same case, — 
 Herbert v. Tarbol, — which is reported most at large in 
 1 Keb. 589. The proposition is a mere dictum, not 
 necessary to the decision of the case, nor, so far as appears, 
 involved in it at all; and, although not denied (for there 
 was no occasion to contest it), was stated by only two 
 of the four judges. In the case as reported'in Raym. 84, 
 the dictum is wholly omitted. 
 
 It is repeatedly mentioned afterwards, as by Lord 
 Holt in Fitzhugh v. Dennington, 2 Ld. Eaym. 1095, 
 and by the court of C. B. in Eoe v. Hervey, 3 Wils. 274, 
 but always by way of illustration only, without any di- 
 rect adjudication of the point. 
 3''. Doctrine touching the Privileges and Disabilities of 
 Infants. 
 
 The very disabilities of infants are privileges, intended 
 for their benefit and protection. We shall see what they are 
 by observing, (1), The doctrine touching an infant's suing 
 or being sued ; and (2), The doctrine touching the privi- 
 leges and disabilities of infants in relation to property 
 and contracts; 
 W. C. 
 1^. Doctrine touching an Infant's Suing or being Sued. 
 The doctrine touching an infant's suing or being 
 sued, &c., may be contemplated with reference to (1), 
 Infants suing; (2), Infants being sued; (3), Staying 
 proceedings in suits by reason of defendant's infancy; 
 (4), Effect of judicial proceedings in respect to infants; 
 and (5), Infant's responsibility for crime; 
 W. C. 
 l'^. Doctrine as to Infants Suing. 
 
 An infant sues in his own name like an adult, but 
 as he cannot appear by attorney (for want of discre- 
 tion to Bif^iSS!ec^&^)A^rc?9«!?®nder the protection of 
 
4:74 GUABDIAN AND WAKD. [bOOK I. 
 
 his next friend or prochein ami. (1 Bl. Com. 464; 1 
 Kob. Pr. (1st Ed.) 122-'3; Bac. Abr. Infancy (K), 1, 
 2; 1 Am. L. C. 264; V. C. 1873, c. 123, § 14; Lemon 
 V. Harnsberger, 6 Grat. 305.) 
 
 At common " law, an infant can in no case appear 
 either as plaintiff or defendant, except by guardian. 
 The employment of the prochein ami, or next friend, 
 arose out of the statutes of Westm. I. c. 48, and 
 Westm. II. c. 15 {temp. Edw. I), being found more 
 convenient than suing^by guardian, because the infant 
 was not obliged to bo in court, when the prochein ami 
 was admitted. In 'Virginia, in practice, infants never 
 sue by guardian, it being provided by our statutes 
 (V. C. 1873, c. 123, § 14) that " any minor entitled to 
 sue may do so by his next friend." 
 
 The prochein ami ought to te a person of some sub- 
 stance, because he is answerable for the costs of the 
 suit, and possibly may be entitled to receive what may 
 be recovered therein. In Brooking v. Dudley, decided 
 by the general court (composed of the governor and 
 council) in 1737, and reported in Barradall's M. S. 
 Rep. 239 (cited 1 Bob. Pr. (1st Ed.) 123) it was held 
 that payment to the next friend was valid. If this 
 proposition be law, it is certainly proper, as Mr. Rob- 
 inson remarks, that more caution should be exercised 
 in admitting persons to act as prochein ami. It is be- 
 lieved, however, to be without any adequate founda- 
 tion of authority, and is certainly opposed to sound 
 policy, and to the general analogies of the law, which 
 does not usually commit the pecuniary interests of 
 infants to persons who have given no security therefor, 
 not even to the father. See Bac. Abr. Infancy (K), 
 2; Turner v. Turner, 2 Stra. 708; Squirrel v. Squir- 
 rel, 2 P. Wnis. 297, n (1), notes to Turner v. Turner. 
 The money recovered by the infant, it would seem, 
 should be paid to the infant's guardian, and if he has 
 none, one must be appointed for the purpose; but the 
 execution would, it is supposed, be in the name of the 
 infant. (Bac. Abr. Execution (A) & (F); 2 Tuck. 
 Com. 339 & seq.) 
 
 If the infant appears hy attorney, the statute of 
 Jeofails (Y. C. 1873, c. 177, § 3) cures the error where 
 the verdict (if there be one), or the judgment, or de- 
 cree is for him., and ) ot to his prejudice. 
 
 An infant is not liable personally for costs, unless he 
 prosecutes the suit after he comes of age, but the pro- 
 chein ami alone is responsible; butf the latter may in- 
 demnifjD^/ji^yj'jgnjl^/l^c^/j^f ant's estate, unless it 
 
OHAP. XVII.J GUARDIAN AND WARD. 475 
 
 appear that he acted without due regard'to the infant's 
 interests. (Bac. Abr. Infy (K), 2; Mitf. Eq. PL 26; 
 Burwell, &c. v. Corbin & als, 1 Kand. 151; 1 Am. 
 L. C. 264; Turner v. Turner, 2 P. Wms. 29'7-'8; 
 Pearce v. Pearce, 9 Ves. 548.) 
 2''. Doctrine as to Infants being sued. 
 
 An infant is sued in his own name, like an, adult, but 
 he cannot defend the suit by attorney (for want of dis- 
 cretion to select one), but must do so, in a civil case, 
 by guardian ad litem. (Bac. Abr. Inf 'y (K), 2 ; Id. 
 Guard'n (A), 4; 1 Eob. Pr. (1st Ed.) 172-'3; Rob- 
 erts V. Stanton, 2 Munf. 129; Brown v. McEea, 4 
 Muuf. 439 ; Beverleys v. Miller, 6 Munf. 99 ; Word's 
 ease, 3 Leigh, 743. ) In a criminal prosecution he must 
 appear like an adult, by attorney, or in •person. (Word's 
 case, 3 Leigh, 759.) 
 
 A guardian ad litem is compellable to serve', but is 
 not liable for costs, and is to be allowed his reasonable 
 charges against the party on whose motion he was ap- 
 pointed, who is usually the plaintiff. (V. C. c. 171, § 
 16; 2 Munf. 342.) 
 
 An infant is never to be prejudiced by any act, default 
 or admission of his guardian ad litem. (Bac. Abr. Guar'n 
 (A), 4; Bank of Alexandria v. Patton, 1 Rob. 500.) 
 
 If an infant defendant appear by attorney, the error 
 is cm'ed by the statute of Jeofails, (Y. 0. 1873, c. 
 177, § 3) if the verdict, judgment or decree is for him, 
 and not to his prejudice. 
 '3^ Doctrine as to Staying Proceedings in Suits because 
 of the Infancy of Defendant. 
 
 The stay of proceedings because of defendant's in- 
 fancy is called parol demurrer, which means the stay 
 of pleadings. In Virginia, it is done away with by 
 statute, which requires a guardian ad litem to be ap- 
 pointed, and directs tliat the suit shall go on. (V. C. 
 1873, c. 167, § 16; Bac. Abr. Inf'cy (L); 1 Eob. Pr. 
 (1st Ed.) 161.) 
 4'"- Effect of Judicial Proceedings in respect to Infants. 
 
 All courts are particularly charged with the pro- 
 tection of the interests of infants, and on a bill in 
 equity, where an infant is plaintiff, will do what is best 
 for him witliout regard to the prayer of the bill. (De 
 Manneville v. De Manneville, 10 Yes. 59.) An in- 
 fant as plaintiff is not personally liable for costs, but 
 his prochein ami, or some other pej-son who may have 
 assumed to pay them, is (Anon. J.- Wils. 130; Noke 
 V. Wyndham, 2 Stra. 694; Miller v. Smith, 2 Stra. 
 932); ncQ-f^fi^^^ /gfiKftsi^ ^^^^^® ^^^ ^^^^^ «« ^^- 
 
476 GUARDIAN AND WARD. [bOOK I. 
 
 fendant, although this^ latter proposition is contro- 
 verted. (Bae. Abr. Inf y (K), 2.) 
 
 But in respect to the substance of judgments and 
 decrees, they are as obligatory upon infants as upon 
 adults, with the exception that it has always been the 
 practice in chancery, in decreeing against an infant, to 
 . reserve to him six months after coming of age to show 
 cause against the decree; and as without such express 
 reservation the decree is, at common law, absolutely 
 binding, it is error to omit the reservation. (Brax- 
 ton V. Lee's heirs, 4 H. & M. 376; S. C. 5 Call, 463; 
 Pickett V. Chilton, 6 Munf. 467; Brown v. Armistead, 
 6 Band. 602 ; Jackson v. Turner, 5 Leigh, 119 ; Ten- 
 nent v. Patton, 6 Leigh, 196.) 
 
 The only exception to this doctrine is where lands 
 
 are sold in order to make partition of the proceeds, 
 
 where, by the tenor of the statute (Y. C. 1873, c. 
 
 120, § 3), the infant is allovjed no day to show cause. 
 
 ' (Parker v. McCoy, 10 Grat. 594.) 
 
 The reservation being often omitted, and thereby 
 decrees vitiated, a statute was passed (V. C. 1873, c. 
 174, § 10) declaring that infant defendants shall be 
 allowed to show cause against decrees within six 
 months after coming of age, whether leave be reserved 
 in the decree itself or not, and indeed dispensing with 
 such express reservation. 
 
 The cause to be shown must be such as exists at tiie 
 time of the decree, and not such as may arise afterwards. 
 (Walker v. Page, 21 Grat. 636.) 
 5^. Doctrine as to Infant's Responsibility for Crime. 
 Under seven, an infant is wholly incapable of crime, 
 and is not amenable to legal punishment. Between 
 seven and fourteen he is capax doli only upon positive 
 proof of intelligence sufficient rightly to apprehend 
 the guilt of the act in question. Over fourteen, he is 
 amenable to punishment as an adult. (1 Bl. Com. 
 464-'5; Bac. Abr. luf'y (H); 1 Am. L. C. 264; 
 Word's Case, 3 Leigh, 759; Crim. Synops. 8, 232.) 
 28. Doctrine touching Privileges and Disabilities of Li- 
 fants in relation to Property and Contracts. 
 
 As a general rule, no neglect to claim or to sue will 
 bar an infant of his rights, by mere lapse of time. (1 
 Bl. Com. 465; 2 Steph. Com. 333-'4; 1 Th. Co. Lit. 
 179-'80, & n (M); V. C. 1873, c. 146, § 4, 5, 18.) 
 But the practical application and eifect of that proposi- 
 tion mus1%>e studied in the light of the statute of limi- 
 tations, just referred to. 
 
 Let us ccQ^^atii!^eMtM@sB#^— (1), The doctrine 
 
CHAP. XVir.J GUARDIAN AND WAED. 4T7 
 
 touching the privileges and disabilities of infants in re- 
 lation to the disposition of property ; and, (2), The doc- 
 trine in relation to the privileges and disabilities of in- 
 fants touching contracts. 
 W. C. 
 1''- Doctrine touching Privileges and Disabilities of In- 
 fants, in relation to the Disposition of Property. 
 
 An infant cannot in general aliene, or contract to 
 aliene, or to do any other act which is binding, rela- 
 tive to his property ; all transactions of that sort be- 
 ing voidable by him on his coming of age. But this 
 principle is not without several exceptions. Thus an 
 infant may make a valid will of chattels at eighteen 
 (V. C. 1873, c. 119, § 3) ; may assign dower to his 
 ancestor's widow, or make partition with some other 
 joint owner, or may agree to do it, because he is com- 
 pellable hy suit to do both ; may, under the direction 
 of the court of chancery, execute trusts., or rather may 
 have them executed (V. C. 1873, c. 174, § 7 ; Id. c. 124, 
 § 1) ; may execute a power of appointment simply col- 
 lateral ; and may act as agent or attorney in fact for 
 another person. (1 Bl. Com. 465 ; 2 Insts. Com. & 
 Stat. L. ch. viii, xii; 1 Th. Co. Lit. 74, n (35); Sugd. 
 Pow. 155.) 
 a'^. Doctrine touching Privileges and Disabilities of In- 
 fants in relation to Contracts Executory. 
 
 There is a great want of precision in the doctrines 
 scattered through the books, on the subject of the 
 validity and effect of the contracts of infants. The 
 result of them is very satisfactorily summed up by C. 
 J. Eyre, in Keane v. Boycott, 2 Hen. Bl. 511, as fol- 
 lows, namely: that all the contracts of which the 
 court can pronounce that it is /or the henejit of infants 
 to allow them to bind themselves by them, are valid; 
 that all of which the court can in like manner pro- 
 nounce that to allow infants to be bound thereby 
 would be to their jyrejudice, are void; and that those 
 of which nothing certain can be predicated as to 
 whether it would be hurtful or profitable to infants 
 to allow them to be bound thereby, are voidable at the 
 infants election. (2 Steph. Com. 335 ; 2 Kent's Com. 
 236, 243 ; Zouch v. Parsons, 3 Burr. 1801 ; Keane v. 
 Boycott, 2 Hen. Bl. 511.) 
 
 Lord Mansfield's masterly exposition in the noted 
 case of Zouch v. Parsons, 3 Burr. 1801, of the general 
 considerations applicable to infant's contracts, though 
 neither so comprehensive nor so practical as that of 
 Mr- ^■l^igMd'bfWdlrh^o^^ transcribed: 
 
478 guabdiAn and ward. [book i. 
 
 " Miserable must be the condition of minors," says 
 he, " excluded from the society and commerce of the 
 world ; deprived of necessaries, education, employ- 
 ment, and many advantages, if they could do no bind- 
 ing acts. Great inconvenience must arise to others, 
 if they were bound by no act. The law, therefore, at 
 the same time that it protects their imbecility and in- 
 discretion from injury through their own imprudence, 
 enables them to do binding &Q,\&for their own benefit, 
 and, without prejudj^ce to themselves, for the benefit 
 of others?'' 
 
 He then proceeds to mention " a rule or two," the 
 reasons of which were applicable to the case before 
 him, viz : 
 
 1st, If an infant does a right act which he ought to, 
 which he was compellable to do, it shall bind him, as 
 if he make equal partition ; if he pays rent, &c. ; for 
 which and other similar instances the decisive reason 
 is that " whatsoever an infant is bound to do bv law, 
 the same shall bind him, albeit he doth it without 
 suit of law ;" and it is immaterial by what method he 
 is compellable, whether by the ecclesiastical or tem- 
 poral courts. 
 
 2dly, The acts of an infant which do not touch his 
 interest, but take eflfect from an authority with which 
 he is entrusted, are binding ; as when an infant head 
 of a corporation joins in corporate acts, an infant 
 officer does the duty of his office, an infant agent ful- 
 fils his agency, &c. 
 
 3dly, From the nature of the infant's privilege, it 
 is given as a shield to protect himself, and not as a 
 sword to make aggressions upon others ; and therefore 
 it is never to be turned into an offensive weapon of 
 fraud or injustice. 
 
 In the further prosecution of tlie subject let us con- 
 sider, (1), What contracts of infants are valid, void, 
 and voidable, respectively ; (2), What confirmation is 
 requisite and sufficient of such as are voidable ; and 
 (3), The acts for which infants are liable, notwith- 
 standing their infancy ; 
 W. C. 
 1*. What Contracts of Infants are valid, void, and void- 
 able, respectively; W. C. 
 1*. Contracts of Infants which are Valid. 
 
 Such contracts are valid as it is in general benefi- 
 cial to an infant to allow him to bind himself by. 
 They consist of four classes, viz : (1), Contracts for 
 necessaEi^itiz^f3fiMiir&^ft& marriage settlement; 
 
CHAP. XVn. 1 GUARDIAN AND WARD. 479 
 
 (3), Contracts of apprenticeship; and (4), Contracts 
 to do what the law mould- oblige the infant to do at all 
 events ; 
 W. C. 
 1^ Contracts for Necessaries. 
 
 Necessaries are such supplies as are needful to 
 enable the infant to live according to his real (not 
 his apparent) position in. society; and he who under- 
 takes to supply him must determine that at his 
 peril. They include, according to Lord Coke (1 
 Th. Co. Lit. 175), " necessary meat, drink, apparel, 
 necessary physic, and other such like necessaries ; 
 and likewise good teaching or instruction, whereby 
 he may profit himself afterwards." But mere 
 ornaments, having no utility, can never be neces- 
 saries. (1 Bl. Com. 466, & n's (16) & (17); 2 
 Kent's Com. 230; 1 Pars. Cont. 245, & n (h), 246, 
 & n (1) ; 3 Bob. Pr. (2d Ed.) 236 ; 1 Am. L. C. 249 ; 
 Peters v. Fleming, 6 M. & W. 47.) 
 
 It seems to be the better opinion, both in Eng- 
 land and America, that ' although the articles sup- 
 plied be in themselves of the class of necessaries, 
 yet if the infant be supplied with them from other 
 sources, he is not liable to pay for them. The 
 tradesman must, at his perU, discover whether the 
 infant is actually in need of them or not. If he 
 is already, in fact, supplied with such articles, 
 whether by his friends, or by another tradesman, 
 there can be no recovery from the infant for the 
 additional supply. (Ford v. Fothergill, 1 Esp. 
 211; Cook V. Deaton, 3 Carr. & Payne (14 E. C. 
 L.) 114; Story v. Perry, 4 Carr. & P. (19 E. C. 
 L.) 526; Burghart v. Angerstein, 6 Carr. & P. 
 (25 E. C. L.) 690; Steedman v. Eose, 1 Carr. & 
 M. (41 E. C. L.) 422; 3 Bob. Pr. (2d Ed.) 233-'4; 
 Bac. Abr. Inf. (I) 1 ; 1 Am. L. C. 248.) 
 
 As to the particular subjects which have been 
 regarded as necessaries, see 1 Pars. Cont. 246, n (1). 
 An infant has been held liable for the hire of ser- 
 vants adapted to his station, and for the reasonable 
 rent of a suitable dwelling or lodgings (Evelyn v. 
 Chichester, 3 Burr. 1719; Lowe v. Griffith, 1 
 Scott, 458); an infant captain in the army for a 
 livery- for his servant, but not for cockades for his 
 men (Hands v. Slaney, 8 T. R. 578); nor a naval 
 lieutenant for a chronometer, unless it can be 
 proved specially to have been a necessary for him. 
 i^^^^tfieMymbr^^m- (3 E. C. L.) 77.) A 
 
4:80 GUAEDIAN AND WAKD. [bOOK I. 
 
 suit of regimentals is a necessary to a militia 
 officer expecting to be called into service (Coates 
 V. Wilson, 5 Esp. 152); but not a racing jacket to 
 anybody but a jockey, nor a waistcoat at eleven 
 guineas to a minor of any station in life whatso- 
 ever (Burghart v. Angerstein, 6 Carr. & P. (25 
 E. C. L.) 690); nor horses, saddles, harness and 
 gigs to an Oxford student, the son of a gentleman 
 of fortune (unless upon special circumstances of 
 health, &c.), although the youth kept a horse, and 
 sometimes hunted with his father's hounds (Har- 
 rison V. Fane, 1 Mann. & Gr. (39 E. 0. L.) 550); 
 nor a stanhope for the son of a clergyman of small 
 fortune (Charters v. Bayntern, Y Carr. & P. (32 
 E. C. L.) 52); nor a silk dress for a female servant 
 (Hedgeley v. Holt, 4 Carr. & P. (19 E. C. L.) 
 104); nor soda-water, oranges, jelly, biscuit and 
 pastry for a university student, unless under spe- 
 cial circumstances of health or other peculiar 
 necessity (Brooker v. Scott, 11 Mess. & W. 67); 
 nor articles supplied to an under-graduate at Ox- 
 ford, the son of a man of position, for dinners in 
 his own rooms (where he received parties of 
 friends); nor fruit, confectionary, &c., furnished 
 the same party (Wharton v. McKenzie, 5 Ad. & 
 El. N. S. (48 E. C. L.) 606). We have seen that 
 such articles as are merely ornamental are never 
 necessaries for any one, whatever his wealth or 
 station. To this class finger-rings have been held 
 to belong, whilst a watch, watch-chain, and breast- 
 pin, even though very expiensive, have been re- 
 garded as having so much utility as to constitute 
 them necessaries, when they are adapted to the 
 station and fo^rtune of the infant purchaser. So 
 that the practical question is, whether the articles 
 were bought for mere ornament, or for real use. If 
 the former, the infant can in no case be subjected 
 to pay for them; if the latter, he may be, provided 
 they are, in character and cost, adapted to his 
 means and station. (Peters v. Fleming, 6 M. & 
 W. 47; 3 Eob. Pr. (2d Ed.) 236.) 
 
 Money lent to an infant to buy necessaries, 
 although it be so expended, is yet not recoverable 
 at law (because the law distrusts his discretion to 
 lay out the money judiciously); but equity will 
 subrogate {i. e. substitute) the lender to the right 
 of him who furnished the necessaries, who was 
 paidDJ^fefel^Jbi^H^Wcfs^^ey. (1 Bl. Com. 466, 
 
OHAP. XVJI.] GUAEDIAN- AND WAKD. 481 
 
 n (17^; Chit. Cont. 151; Marlow v. Pitfield, 1"P. 
 Wms. 559; 1 Am. L. C. 249.) And as an infant 
 is not liable at law for money lent him to buy 
 necessaries, because he has not sufficient discre- 
 tion to apply it judiciously, so a fortiori is he 
 deemed incompetent to conduct any business, and, 
 therefore, is not liable for goods furnished for that 
 purpose, even though it be a trade by which he 
 gets his living. (1 Bl. Com. 466, n (17); Bac. 
 Abr. Infancy (I), 1; 1 Am. L. C. 249.) 
 
 And upon like considerations, an infant, in 
 order that he may be effectually protected from 
 wrong, cannot contract to pay even for necessaries 
 in such a form as will preclude enquiry into the 
 price and value of the consideration. He cannot, 
 therefore, make any bargains for a price which 
 shall bind him absolutely. Whatever form the 
 contract may assume, whether that of a bond, of 
 a promissory note, or of an accoimt stated, it is to 
 be regarded in law as no more than an engage- 
 ment to pay the true value of the articles, &c. It 
 has, therefore, been sometimes said that no action 
 will lie against an infant on any security, although 
 the consideration was necessaries^ This, however, 
 appears to be a misapprehension. The true doc- 
 trine is believed to be that the action may be 
 maintained on the security ; and if infancy is 
 pleaded and proved, nothing can be recovered but 
 the just value of the necessaries. (1 Pars. Cont. 
 260-'61; Bac. Abr. Infancy (I), 1; 1 Am. L. C. 
 248.) 
 
 Aa infant is as much liable for necessaries 
 furnished persons for whom he is legally bound 
 to provide as for those furnished to himself, — as 
 his wife and children, &c. But he is not liable for 
 necessaries for a wife, bought by him before mar- 
 riage, although his wife afterwards used them. (1 
 Bl. Com. 466, n (16) ; Turner v. Trisby, 1 Stra. 
 168 ; 2 Kent's Com. 240 ; Chappie v. Cooper, 13 
 M. & Wels. 252, 259-'60.) In the case last men- 
 tioned of Chappie v. Cooper, (13 M. & "W. 252, 
 259-60), a remarkable illustration of this princi- 
 ple was afforded. An infant widow ordered a 
 funeral for her husband, who died without pro- 
 perty; but the undertaker having delayed for a 
 time to present his bill, her grief and respect were 
 so mitigated that she refused to pay it ; where- 
 iipoEi;^ffyzfelc?B^;&ft)§8^' ^^^ i* ^^s held that 
 
4:82 GUABDIAN AND WAED. . [BOOK I. 
 
 she was liable, because being by the law made, 
 through the marriage, one with the husband, and 
 decent burial being a necessary for him, it was a 
 personal benefit to her! It is another noteworthy 
 corollary from this proposition, that if an infant 
 marries a wife who is indebted, he becomes by the 
 marriage liable in law for all her ante-nuptial 
 debts, against which his infancy constitutes no 
 defence. (1 Pars. Cont. 245, & n (j).) 
 
 Where an infant lives with, or under the con- 
 trol of his parent or guardian, no credit is ever 
 implied as given to him. It is presnmed to have 
 been given to the parent or guardian, and in order 
 to charge the infant, it must be proved not to have 
 been given to them, but to him. (Bac. Abr. Inf'y 
 (I) 1; Bainbridge v. Pickering, 2 Wm. Bl. 1326.) 
 2^. Contracts of Marriage Settlement. 
 
 Contracts of marriage settlement, so far as they 
 relate to personal property, are valid as against 
 infant parties thereto — (1), Because they tend to 
 promote marriage, which is not only advantageous 
 to the State, but eminently favorable to the re- 
 spectability and happiness of the parties; and (2), 
 Because in the case oi females especially, they pro- 
 tect the property of the party from the marital 
 rights of the consort. (1 Pars. Cont. 277-'8, & n 
 (t); Tabb v. Archer, 3 H. & M. 399, 408, 422; 
 Healy v. Kowan, 5 Grat. 430 ; Milner v. Hare- 
 wood, 18 Yes. 259, and notes. ) 
 
 Such contracts are to be made always by the 
 infants themselves, and not by their guardians in 
 their behalf, and in the latter case are inoperative 
 and void. (Healy v. Rowan, 5 Grat. 430.) 
 
 The validity of marriage settlements by infants 
 touching lands is not fully determined in England, 
 although no doubt seems to be allowed in Virginia 
 that sucli settlements are valid. (Atherley, Marr. 
 Settlemts. 28, &c.; Milner v. Harewood, 18 Yes. 
 259, and notes; 1 Pars. Cont. 277, n (t); Tabb v. 
 Archer, 3 H. & M. 399; Healy v. Rowan, 5 Grat. 
 430.) 
 3'. Contracts of Apprenticeship. 
 
 As an infant may bind himself to pay "for 
 good teaching or insti'uction, whereby he may 
 profit himself afterwards," it would seem that he 
 must be bound by a contract of apprenticeship, 
 being peculiarly beneficial to him in its general 
 natu£tegi«4flidcfe6>itM8eiBiBr$©ft®be admitted ; but it is 
 
CHAP. XVII. J (tU'-AEDIAN AND WABl). 4:83 
 
 held, notM'ithstanding, that independently of stat- 
 ute, no action of covenant lies, nor any other 
 action, nor any remedy in equity against him, 
 upon the indenture of apprenticeship; and the 
 only judicial remedy open to the master for a 
 breach by the infant of the contract appears to be 
 by action of covenant against the infants friend, 
 who commonly joins in the indenture, or by an 
 appeal to the statutory police jurisdiction of the 
 county court, which has power (Y. C. 1873. c. 122, 
 § 12) to comijel the infant specifically to fulfil his 
 contract of service. (Bac. Abr. Master, &c. (B) 
 1; 1 Th. Co. Lit. 175, 177, & n (40); Gylbert v. 
 Fletcher, 4 Cro. (Car.) 179; King v. Cromford, 
 8 East. 26; 1 Am. L C. 232-'3; I Pars. Cont. 
 262, n (e).) 
 
 In Virginia it is expressly declared by statute 
 (V. C. 1873, c. 122, § 15), that "if an apprentice 
 bound in this State desert the service of his mas- 
 ter, he shall be liable, notwithstanding his infancy, 
 for all damages sustained by such desertion." 
 But as under the corresponding statute of 5 Eliz., 
 c. 4, § 43, it was held that no remedy lies against 
 an infant upon, the covenants contained in the con- 
 tract of apprenticeship (Gylbert v. Fletcher, 4 Cro . 
 (Car.) 179 ; Bac. Abr. Master, &c., (B) 1), it is not 
 improbable that a similar construction will be 
 given to our statute in Virginia. See ante, 184. 
 
 Contracts of service not amounting to appren- 
 ticeship are like the great body of infant's engage- 
 ments, voidable at the infant's election. (Moses v. 
 Stevens, 2 Pick. (Mass.) 332; Nickersou v. Easton, 
 12 Pick. 110.) 
 4'. Contracts to do what the law obliges the infant to 
 do at all events. 
 
 Such a contract is beneficial to the infant inas- 
 much as it may exempt him from the annoyance 
 of a suit, and sometimes from pecuniary costs. 
 "Whatsoever," says Lord Coke, "an infant is bound 
 to do by law, the same shall bind him, albeit he 
 doth it without" suit of law." (1 Th. Co. Lit. 
 176-'7; 1 Pars. Cont. 263; 1 Am. L. C. 249-'50.) 
 
 To this class belong assignments of dower by 
 infant heirs, and partitions between co-parcenei« 
 (co-heirs), or other co-tenants who are compellable 
 to make partition, all of which are binding upon 
 infants, provided they are fair and reasonable. (2 
 In!%;^W-t^/^M3sy®^iib xii; Zouch v Par- 
 
484 GUAEDLAjsr AJSD wAajD. [boqk I. 
 
 sons, 3 Burr. 1801, 1803, 1808; Baker v. Lovett, 6 
 Mass. 80; Vent r. Osgood, 19 Pick. 575; 1 Am. 
 L. C. 250.) 
 
 Upon this principle also contracts to perform 
 military service for one's country are binding on in- 
 fants. Every one physically capable is bound in 
 law, as in duty, to serve his country as a soldier, 
 when required or invited so to do, and therefore, 
 if the act of the Legislature, under which the en- 
 listment is made, does not except minors, any one, 
 though a minor, who accepts the offers of the State 
 is himself bound thereby ; however, a third person, 
 such as the master, if the minor be an apprentice, 
 may intervene, and insist upon his prior claim to 
 the infant's services. (United States v. Cotting- 
 ham, 1 Rob. 615; United States v. Blakenay, 3 
 Grrat. 405 ; United States v. Lipscomb, 4 Grat. 41 ; 
 1 Am. L. C. 250.) 
 
 Upon like principles an infant is liable upon a 
 iastardy bond; and so where a father purchased 
 land in the name of his infant son, in order to de- 
 fraud his creditors, and afterwards sold it to a pur- 
 chaser for valuable consideration without notice, to 
 whom the infant, at his father's instance, conveyed 
 the legal title, it was held that after age he could 
 not avoid his conveyance, because having nothing 
 but the legal title, and no equity, as against a 
 creditor or an innocent purchaser for value, he had, 
 by his conveyance, done merely what a court of 
 equity would have compelled him to do, and which, 
 if it were disaffirmed by him, he would be com- 
 pelled to do again. (1 Pars. Cont. 263 ; 1 Am. L. 
 C. 260; People v. Moores, 4 Denio (IST. Y.), 519; 
 Elliott V. Home, 10 Ala. 348, 353.) 
 
 Hence also, as we have seen, an infant husband 
 is liable for his wife's anle-nuplial contracts, it be- 
 ing the legal result of the marriage. (Bac. Abr. 
 Inf'y (I), 3 ; Slocombe v. Grubb, 2 Bro. C. C. 551; 
 Roach V. Quick, 9 Wend. {N. Y.) 238; Butler v. 
 Breek, 7 Met. 164.) 
 2''. Contracts of Infants which are void. 
 
 Contracts which it is prejudicial to infants, in gen- 
 eral, to aUow them to bind themselves by are void 
 absolutely. And this is determined by the nature of 
 the contract in general, and not upon any accidental 
 circumstances of loss or profit connected with the 
 transaction, much less upon the wishes of the 
 minoi£^pS&# by Microsoft® 
 
Chap. xvu.J guardian and waed. 4^'5 
 
 Formerly this class was considered to include all 
 powers of nttornei/, nil contracts involving penalties 
 and forfeitures, all releases and conveyances executed 
 to guardians, all negotiable securities, and all accounts 
 stated. (2 Kent's Com. 235; 1 Pars. Cont. 621; 
 Th. Co. Lit. 175 ; Zouch v. Parsons, 3 Barr. 1804: ; 
 Trueman v. Hurst, 1 T. E. 40 ; Williamson v. 
 Watts, 1 Campb. 552 ; Swansey v. Vanderheyden, 
 10 Johns. 33 ; McMinn v. Richmond, 6 Yerg. 
 (Tenn.) 1); but a very decided tendency exists to 
 circumscribe the number of instances of void con- 
 /racte,"and to hold them rather to be voidable at the 
 infant's election, especially as, if they are void, they 
 are, upon the principle of a ivaiit of mutuality (mu- 
 tuality being a necessary element in every contract), 
 as much \'oid in respect to the opposite party as 
 to the infant; whereas, if treated as vodahle, the 
 minor, at his option, may avoid them after coming 
 of age, whilst the adult party is bound ; and hence 
 it is better for the iifrnt that the contract should be 
 voidable than void. In view of these considerations, 
 it is believed that at present none of an infant's 
 transactions are absolutely void except powers of at- 
 torney, including agencies of all sorts, sought to be 
 created by minors. ("Zouch v. Pai'sons, 3 Burr. 
 1806; Williams v. Moor, 11 Mees. & W. 266; 
 Thomas v. Eoberts, 16 Mees. & W. 780-'81, and 
 cases cited in note; 1 Am. L. C. 250-'51.) 
 
 The reason for holding powers of attorney and 
 agencies to be absolutely void, instead of merely 
 voidable, may bo seen, 1 Am. L. C. 250. It is re- 
 fined, and not wholly satisfactory, but whatever 
 may be thought of the considerations suggested as 
 the foundation of the rule, the rule itself is believed 
 to be established by a conclusive weight of authority. 
 The reason is stated thus : the constituting of an 
 attorney by one whose acts are in their nature void- 
 able, is repugnant and impossible, for it is impart- 
 ing a right which the principle does not possess, — 
 that of doing valid acts. If the acts, when done by 
 the attorney, remain voidable in the option of the 
 infant, the power of attorney is not operative ac- 
 cording to its terms ; if they are binding, then he 
 has done, through the agency of another, what he 
 could not have done directly, — binding acts. The 
 fundamental principle of law, in regard to infants^ 
 requires that the infant should have the power of 
 afErnifi)i^'f;zacto^(M»Ci(ixac^®y the attorney as he 
 
4:86 GUARDIAN AND WAKD. [bOOK I. 
 
 chooses, and avoiding others at his option ; but this 
 involves an immediate contradiction, for to possess 
 the right of availing himself of any of the acts, he 
 must ratify the power of attorney; and if he ratifies 
 the power, all that was done under it is confirmed. 
 If he afiirms part of a transaction he at once con- 
 firms the power, and thereby against his intention 
 afiirms the whole transaction. Such personal and 
 discretionary legal capacity as an infant is vested 
 with is therefore,^n its nature, concluded to be in- 
 capable of delegation. Accordingly, a power of 
 attorney by an infant to sell land is absolutely void 
 (Lawrence v. McAster, 10 Ohio, 37, 42 ; Pyle v.- 
 Cravens, 4 Littell (Ky.), 17, 21) ; and so also is a 
 warrant of attorney to confess judgment. So that 
 a judgment entered upon it will be set aside upon 
 motion. (Bennett v. Davis, 6 Cow. 393 ) 
 
 It is important to observe that, although any 
 given assurance be void, and much more if it be 
 voidable, if the original consideration were neces- 
 saries, there may be a recovery at all events on 
 such consideration ; and that it is, therefore, expe- 
 dient in all cases of that kind to have two counts 
 (as they are called) in the declaration, or complaint ; 
 one on the instrximent containing the promise, 
 whether bond or note, and the other on the pro- 
 mise which the laio implies from the consideration 
 of necessaries furnished. (2 Kent's Com. 239 ; 
 Russell V. Lee, 1 Lev. 86 ; Stone v. Denison, 13 
 Pick (Mass) 7; McMinn v. Eichmond, 6 Terg. 1.) 
 
 It is not amiss, in conclusion of tliis point, to re- 
 mind the student that by the Statute of Wills an 
 infant is not empowered to make a will of lands, and 
 that such a will is therefore ahsoluteli/ void, and incapa- 
 ble of confimation, otherwise than by a re-execution 
 after coming of age, with all the ceremonies of an 
 original vnll, as, indeed, it is. (V. C. 1873, c. 113, 
 § 3; Herbert v. Tarbol, 1 Keb. .589; S. C. Sid. 162.) 
 3". Contracts of Infants which are Voidable. 
 
 Where nothing can, with certainty, be predicated 
 of a class of contracts whether it will be advan- 
 tageous or hurtful to infants to be allowed to bind 
 themselves thereby, they Avetoidable at the election 
 of the infant who makes them, in order that he may 
 have the means of protecting himself against the 
 natural consequences of his inexperience and indis- 
 cretion. But until the infant exercises this extra- 
 or(effi(?^^i^H^/^M/?<§»hich the law endues him 
 
CHAP. XVII.J GUAKDIAN AND WAKD. 4:87 
 
 for his protection, the contract is binding upon 
 him, — if tliat can be called an obligation which, 
 when he ari'ives at age, he may repudiate at pfea- 
 sure. "Were it not so, the contract would be 
 wanting in mutuality (which, we have seen, is an es- 
 sential element of a contract in all cases), and 
 would, therefore, be no more binding on the adult 
 party than on the infant. But that would be con- 
 trary to the well established doctrine which holds 
 such contracts, although they may be voidable by 
 the infant party, yet to be always obligatory upon 
 the adult. (Bac. Abr. Inf'y (I), 4; Holt v. Claren- 
 cieux, 2 Stra. 937.) 
 
 This class of infant's contracts is by far the most 
 numerous of all. It embraces the great bulk of 
 transactions in which either infants or other per- 
 sons can be engaged, — such as bonds not involving 
 a penalty or forfeiture, and, according to the latter 
 doctrine, such also as do (1 Th. Co. Lit. 176; 2 
 Kent's Com. 235-'6 ; Enssell v. Lee, 1 Lev. 86 ; 
 Zouch v. Parsons, 3 Burr. 1805 ; Baylis v. Dinely, 
 3 M. & S. 481); promissory notes not negotiable, and 
 by the latter doctrine such also as are negotiable 
 (2 Kent's Com, 235-'6; Wamsley v. Lindenberger 
 & Co., 2 E,and. 478); agreements to submit dis- 
 putes to arbitration; which, however, as partaking 
 of the nature of powers, may possibly be held to be 
 void (Bac. Abr. Inf'y (I), 3; Warwick v. Bruce, 2 
 M. & S. 209); conveyances of lands or chattels 
 Zouch v. Parsons, 3 Burr. 1805 ; Baker v. Lovett, 
 6 Mass. 80; Worcester v. Eaton, 13 Id. 371; Whea- 
 ton V. East, 5 Yerg. 41 ; Mustard v. Wohlford, 15 
 Grat. 329); contracts for personal service, other thaii 
 apprenticeship (Moses v. Stevens, 2 Pick. 332; Vent 
 V. Osgood, 19 Pick. 572; Micherson v. Easton, 12 
 Pick. 110); contracts to marry (Bac. Abr. Inf'y (I), 
 3 ; Holt V. Clf.rencieux, 2 Stra. 938 ; Hilnt v. Peake, 
 5 Cow. (K Y.) 475; Willard v. Stone, 7 do. 22); 
 and, in short, the great liody of contracts and assu?'- 
 ances of all kinds (2 Kent's Com. 235-'6; Oliver v. 
 Hondlet, 13 Mass. 237; Whitney v. Dutch, 14 Id. 
 257; Jackson v. Carpenter, 11 Johns. 539.) 
 
 The privilege of an infant to repudiate a void- 
 able contract is a personal privilege, confined 
 to himself and his representatives, and of which 
 no one else can take advantage. Thus, if an 
 infant payee of a note endorse it, in an action by 
 
 the e^^SdW'f^^rMfm''^^''' *^i® ^^"°^ '''''^^^ 
 
488 G1JAED1AN AND WAKD. [bOOK I. 
 
 set up, as a defence, the endorsee's infancy, as show- 
 ing that the endorsement conferred no title; nor 
 can the creditors of an infant grantor avoid the con- 
 veyance on the ground of the grantor's infancy. (1 
 Pars. Oont. 207, 276; Bac. Abr. Inf'y (I), 6; Zoueh 
 V. Parsons, 3 Buit. 1807; Keane v. Boycott, 2 H. 
 Bl. 511; 1 Am. L. C. 253; Oliver v. Hondlet, 13 
 Mass. 237 ; Nightingale v. Withington, 15 do. 272, 
 371 ; Kendall v. Lancaster, 22 Pick. 640.) 
 
 And much less can the other contracting party 
 elect to avoid the 'agreement (Holt v. Clarencienx, 
 2 Stra. 937.) And, therefore, if one contract with 
 two persons, of whom one is an infant and the other 
 adult, it is not proper to sue the adult only (as is the 
 English practice), for that would be for the plaintiff 
 to exercise the privilege of avoiding the infant's 
 contract, which the infant alone can do; but both 
 should be sued ; and if the infancy of one of the 
 promisors be pleaded and proved, it will not pre- 
 vent a recovery against the adult. (Wamsley v. 
 Lindenberger, 2 Band. 478; Woodward v. New- 
 hall, 1 Pick. 500; 1 Am. L. C 253.) 
 
 And this constitutes a prominent diversity be- 
 tween co7itracts voidable and contracts void. Yoid- 
 able contracts can be avoided by the infant party 
 alone, or his representatives, whilst void contracts 
 are no more binding upon the opposite party, 
 though adult, than they are on the infant; a con- 
 sideration which, as already suggested, makes it 
 proper, for the benefit of infants, to incline, in 
 doubtful cases, to the construction that contracts 
 are voidable rather than void. (2 Kent's Com. 
 235-'6; Zouch v. Parsons, 3 Burr. 1805.) 
 
 Since infancy does not generally avoid a contract 
 absolutely (as coverture does), it is not in those eases 
 provable under the plea of non est factum; but as 
 it enables the infant, at his pleasui-e, to avoid the 
 demand, it is available under the plea of non as- 
 sumpsit or nil debet. (1 Am. L. 0. 253; 1 Chit. 
 PI. 519; Id. 511, 516; Steph. PI. 162, n (20).) 
 2'. Doctrine as to Confirmation of ('ontracts of Infants. 
 Confirmation applies not to contracts which are 
 valid, for they do not require it; nor to contracts 
 which are void, for they are incapable of being con- 
 firmed; but it is applicable exclusively to contracts 
 voidable. (Chit. Cont. 152 ; Bac. Abr. Inf'y (I), 8.) 
 The doctrine of confirmation is that, in the case of 
 a voida&$giiii!M(tiy^ia!^fO&oft<^ither during his min- 
 
CHAP. XVn.j QUAEDIAN AND WABD. 489 
 
 ority or within a competent time after he becomee 
 of age, may avoid the contract if he will ; or when 
 he reaches the age of twenty-one, if he shall so elect, 
 he may confirm it. (1 Pars. Cont. 243, 269, & seq. ; 
 Bac. Abr. Inf'y (I), 8.) He who deals with an in- 
 fant deals at his peril, and subject to the right of the 
 .infant thus to avoid the transaction. 
 
 And this right of confirmation or avoidance on 
 the infant's part is paramount and absolute, prevail- 
 ing not only against the original party on the other 
 side, but also against any one claiming under him, 
 although it be as an innocent purchaser for value. 
 (2 Am. L. C. 259 ; Mustard v. Wohlford, 15 Grat. 340.) 
 
 Nor is the infant's right to avoid the contract af- 
 fected by the fact that the other party supposed him 
 to be of age; nor that he was engaged in business, 
 and was accustomed to make contracts; nor even 
 that he fraudulently represented himself to be of age. 
 (1 Am. L. C. 252.) But in the latter case, although 
 the other party cannot recover upon the contract, he 
 may maintain an action for the fraud, to which in- 
 fancy is no defence. (1 Pars. Cont. 265-'6; Bac. 
 Abr'. Inf'y (I), 3; Com. Dig. Actions (A, 10); 2 
 Kent's Com. 241.) 
 
 It is not to be imderstood that because an infant's 
 contract may be avoided by him, it is, therefore, void 
 as to him, until he confirms it. On the contrary, it is 
 valid and binding until he repudiates it. Otherwise 
 there would be a want of mutuality, which would 
 discharge the opposing adult promisor, as well as the 
 infant. The contract is a complete one as soon as 
 made, but with the privilege to tlie infant, in order 
 that he may protect himself against impositions and 
 his own imprudence, to annul it at his discretion, if 
 he shall elect so to do. 
 
 As to the precise terms of ratification, the authori- 
 ties at common law are so little in accord one with 
 another in respect to the language which shall fix 
 the infant's liability, after coming of age, and de- 
 termine his election, as to suggest a statutoiy provi- 
 sion as the best means to harmonize the doctrine. 
 Such an enactment has been resorted to both in Eng- 
 land and in "Virginia; but instead of prescribing the 
 terms, or the character of the confirmation, the statute* 
 in either country only directs the medium through 
 which alone it shall be proved — namely, that it shall 
 be in writing, signed by the party to be charged, instead 
 of beiqaf^gzgi(?^9#;S3(§s^®ierely. Independently 
 
490 GUABDIAN AND WAKD. [bOOK I. 
 
 of statute, the infant's ratification may be by parol, 
 and that (according to the better opinion) even where 
 the original promise is under seal, although the cov.- 
 trary opinion is sustained by an authority so eminent 
 as Lord EUenborough. (Baylis v. Dineley, 3 M. it 
 S. 482.) The doctrine stated, however, is supported 
 by the whole weight of the American decisions. An 
 infant's bond is considered a valid obligation, unless 
 after age he elect to avoid it; and as the confirmation 
 after age is the exercise of this right of election, it ef- 
 fectually precliides nim from exercising it again in 
 the opposite direction, by his plea of infancy. The 
 confirmation does not impart to the contract what 
 did not exist in it before, but divests it of the quality 
 of voidableness, which originally belonged to it, simply 
 because the choice, which can be exercised but once, 
 has been made; and it is apparent that this result 
 must ensue under like circumstances, whether the 
 contract be by parol or under seal. (1 Am. L. C. 
 255-'6.) 
 
 But whilst independently of the statute alluded to 
 (V. C. 1873, c. 140, § 1) the confirmation may be by 
 parol, and may be signified either by xoords or by con- 
 duct, it mufet be yet clear and unequivocal. It must 
 also be before the commencement of the suit, and 
 must be voluntary, deliberate and intelligent; and 
 if conditional, it must appear that the condition 
 has been fulfilled. It has been said, also, that it 
 must be made to the other party himself, or his 
 agent, and not to' a stranger. It would seem, how- 
 ever, that a confirmation to a stranger would be sat- 
 isfactory proof of a new promise to the party»him- 
 self, just as is a clause in a will directing all just 
 debts to be paid; or, as is a conveyance after age, 
 subject to a mortgage made during infancy, a con- 
 firmation of the latter. (1 Pars. Cont. 269-'70, & n 
 (a); 1 Am. L. C. 253-'4; Merch'ts & F. Ins. Co. v. 
 Grant, 2 Edw. (N. Y.) 554; Boston B'k v. Chamb- 
 lin, 15 Mass. 220.) 
 
 No particular form of words is required to make 
 a confirmation. It suffices that they import an un- 
 equivocal recognition and confirmation of the pre- 
 vious engagement; and they need not amount to a 
 direct promise to pay. "I have not the money now, 
 but when I return I will settle with you" (Martin v. 
 Mayo, 10 Mass. 137); "I will pay it (the note) as 
 soon as I can make it, but not tliis year" (Bobo v. 
 Hansel:j;^'fBea^(^/c&^ol?ia); "I will endeavor to 
 
CHAP. XVn.J GITAEDIAK AND WARD. 4:91 
 
 procure the money, and send it to you" (Whitney 
 V. Dutch, 14 Mass. 457) ; " I am sorry to give you 
 so much trouble in calling, but I am not prepared 
 for you, but will without neglect remit you in a 
 short time" (Hartley v. Wharton, 11 Ad. k El. (39 
 E. C. L.) 934) ; — aU these have been decided to be 
 sufficient ratijlcatiotis . See, also, 1 Pars. Cont. 270, 
 n (a) ;-Harris v. Wall, 1 Excheq. 122 ; Best v. Giv- 
 ens, 3 B. Monroe (Ky.), 72. 
 
 On the other hand, these expressions, — " I owe the 
 debt, and you will get your pay, but I will not give a 
 note" (Hale v. Gerrish, 8 N. H. 374); "I owe you, 
 but am unable to pay, but will endeavor to get my 
 brother bound with me" (Ford v. Philips, 1 Pick. 
 202) ; " I consider your claim worthy of my attention, 
 but not of my first attention, but I will soon give it 
 the attention due it " (Wilcox v. Kowth, 12 Conn. 
 550) ; have been held to be not sufficient ratifications. 
 (1 Pars. Cont. 270, fe n (a).) 
 
 Independently of statute, an infant may manifest 
 a confirmation of his contracts after coming of age, 
 as well by his conduct as his icords (Bac. Abr. Inf'y 
 (1) 8) ; as by enjoying or claiming the benefit or ad- 
 vantage under a contract or transaction, which he 
 might have wholly rescinded (Barnaby v. Barnaby, 
 1 Pick. 221, 223). Thus, in case of a contract of 
 service made during infancy, if the infant after corn- 
 ing of age, enjoy. the benefit of the contract on his 
 side, he must perform its stipulations on the«other. 
 And hence, where the contract is entire, if the infant 
 in any manner confirm in part, the whole is com- 
 firmed. Thus, an infant having sold a house with 
 warranty, and taken the purchaser's note for the 
 price, after coming of age sued on the note, and was 
 held tliereby to have confirmed the warranty, which 
 was part of the entire contract of sale. So it is said, 
 if an infant partner, after age, transacts the business 
 of the firm, and receives the profits, he thereby con- 
 firms the contract of partnership, and becomes bound 
 for all the previous liabilities of the firm, although 
 not known to him. But a partial payment is not a 
 ratification of the residue, nor is a mere omission for 
 a considerable time after coming of age, to disaffirm 
 the contract. (1 Am. L. C. 256; 1 Pars. Cont. 
 270-'71.) 
 
 In respect to continuing contracts, however, such as 
 contracts of partnership, of lease, &c., an omission, 
 for a c0jgi^^je,fjflj^(^^coming of age, to dis- 
 
492 GUAEDIAN AND WARD. [bOOK I. 
 
 affirm the contract will subject the infant to answer 
 for all the liabilities accruing by reason of such con- 
 tinuing contract, after the termination of his minority. 
 Thus, if an infant enter into a contract of partner- 
 ship, and upon coming of age he does not promptly 
 repudiate it, he will be liable, by reason of the part- 
 nership, for all the transactions then or afterwards 
 occurring, although personally not cognizant of them. 
 (Bac. Abr. Inf'cy (K), 8 ; R'way Co. v. McMichael, 
 5 Excheq. 127; Evejyn v. Chichester, 3 Burr. 1719.) 
 
 In regard to the confirmation of infant's executed 
 contracts, implied from conduct after coming of age, 
 there is a difference between the case of a sale and a 
 purchase made by him, and perhaps, also, between 
 the purchase of lands and the purchase of chattels. 
 The governing principle in all cases is that to appro- 
 priate, after full age, any benefit arising from a con- 
 tract entered into during infancy, confirms H. 
 
 Such appropriation is more likely to occur in the 
 case of ^.purchase than of a sale, and in the ease of a 
 purchase of land than of chattels, which are very liable 
 to be lost, sold or consumed during non-age; but the 
 same general doctrine applies to all. (1 Am. L. C. 
 256-'7-'8.) 
 
 With respect to the time and manner of avoiding 
 contracts by infants, a distinction is to be observed 
 between sales of lands, on the one side, and contracts 
 of a personal kind, or relating to personal property, on 
 » the other. In cases of sales of lands, the infant may 
 
 enter under age, and hold or take the profits, but he 
 cannot conclusively and finally avoid the conveyance 
 until he is of age. The avoidance may then be by 
 entry on the premises, by an action of ejectment to 
 recover them, or by any act unequivocally manifest- 
 ing an intent to avoid. Even a re-sale after age to 
 another person will avoid a previous conveyance 
 where (as in. Virginia, Y. C. 1873, c.,112, § 5; Car- 
 rington v. Goddin, 13 Grat. £87,) one out of posses- 
 sion is allowed by law to convey land. The first 
 vendee's title being then disaflirmed and annulled, 
 both in law and equity, the second purchaser, who 
 bought after the infant attained his age, may recover. 
 TJiis supposes, of course, that the two conveyances 
 are incompatible the one with the other ; for if they 
 can stand together, the last affords no evidence, at 
 least intrinsically, that the infant meant to repudiate 
 the first. (1 Am. L. C. 259: Mustard v. Wohlford, 15 
 Grat. ^m,imk}3,y^m>Sif)mf olvevtoM, 1 Stra. 94; 
 
GHAP. XVn.J GUAJBDIAN AND WAED. 493 
 
 Tucker v. Moreland, 10 Pet. 58.) It will be re- 
 membered, also, that it is a part of the infant's priv- 
 ilege to avoid his contracts, not only against the 
 party originally contracting with him, but also against 
 persons claiming under such party, even against a 
 bona fide purchaser for value from the grantee. (1 
 Am. L. C, 259 ; Mustard v. Wohlford, 15 Grat. 329.) 
 
 Contracts of a personal kind, or relating to personal 
 property, on the other hand, may be immediately 
 avoided, without waiting for the minor to attain his 
 age, and that finally and conclusively ; because other- 
 wise irreparable injury might ensue. And the avoid- 
 ance may be by any act clearly demonstrating a re- 
 nunciation of the contract, as in case of a contract to 
 serve, leaving the service and going elsewhere. (1 
 Am. L. C. 259.) 
 
 As to the consequences of an infant's avoidance of 
 his contracts, we must distinguish between such as are 
 executory on his part, and those which are executed. 
 
 Where the contract is executory, on the infant's 
 part, he may always avoid it, supposing it to be of a 
 voidable nature ; but whatever consideration he may 
 have received, if it be still in his possession or control, 
 he must return it. He may protect himself by his in- 
 fancy against advantages which otherwise might be 
 taken of his incapacity and want of experience, but 
 it is not to be employed to procure a benefit for him- 
 self at the expense of other persons. He cannot re- 
 pudiate the contract (which is really to annul and 
 revoke it), and at the same time retain what the con- 
 tract alone gives him any right to. If, indeed, the 
 consideration, whether it be money or property, has 
 been spent, consumed, or has otherwise ceased to be 
 in his possession, or under his control before he ar- 
 rives at age, he is not to be prevented from avoiding 
 his contract because he cannot or does not restore the 
 consideration. To exact such a condition would in 
 very many, if not in most cases, defeat the design of 
 the law in making such promises voidable. It would 
 suppose the existence, on the part of the infant, of 
 those very qualities of providence and care, the 
 absence of which obliges the law to protect him by 
 making the contract voidable. His refusal after age 
 to restore the consideration, if he still has it, is an 
 affirmance of the contract ; and his plea of infancy 
 is a rescission of it, and therefore revests in the other 
 • party a title to the consideration, supposing the in- 
 fant t(t)}^tm^<^fJi^}eM&Ab ^1^* i^" ^* be °ot then 
 
494 GUAKDIAN AND WARD. [bOOK I. 
 
 in possession, by reason of the same having been 
 spent, consumed, or aliened by the infant during his 
 minority, the omission to restore it affords no cause, 
 of action against him, because he is prevented from 
 doing so by what took place during infancy, when 
 the contract was in full force, and when it was law- 
 ful for him to do with the subject what he would. 
 (1 Am. L. C. 259-'60; Mustard v. Wohlford, 15 
 Grat. 329, 340, & seq.) 
 
 Where the contract is executed in whole or in 
 part, on the side of the infant, he may, it seems, re- 
 scind the agreement and recover the money or pro- 
 property advanced, or a proper compensation for the 
 work done by way of consideration, but in no case 
 without restoring to the other party the equivalent 
 received. Thus, if an infant has paid money for a 
 horse, or given in exchange another horse, and upon 
 coming of age, chooses to avoid the transaction, 
 he may do so, and receive back the price, &c., but 
 only on condition of re-delivering the horse ; and if 
 that condition be impossible because the horse is no 
 longer in his power, he cannot oblige the other party 
 to pay him back the money. This doctrine is well 
 illustrated in the two noted cases of Holmes v. 
 Blogg, 8 Taunt. (E. C. L.) 509, 37, and Corpe v. 
 Overton, 10 Bingh. (25 E. C. L.) 252; and is further 
 illustrated by the case where the infant has engaged 
 to labor for a certain period, and after doing some 
 work abandons the job ; when, according to the 
 weight of authority, he is ajlowed to recover in gen- 
 eral, upon a quantum mei'uit for the work he has 
 done, instead of upon the contract, and that without 
 abatement for any injury he may have occasioned 
 by the failure to complete his contract. (3 Eob. 
 Pr. (2d Ed.) 223-'4; iPars. Cont. 268, 263; 1 Am. 
 L. C. 260-'61.) 
 
 Whilst this is the rule in respect to contracts exe- 
 cuted, in general, and especially contTsnits of purchase 
 by the infant, a different measm-e of justice prevails 
 where the minor seeks to rescind a contract of sale. 
 It is obvious that to exact in this case the return of 
 the purchase money by the infant, would be, in fact, 
 to deny him, in most cases, the benefit of his in- 
 fancy. (3 Rob. Pr. 227-'8; Mustard v. Wohlford, 
 15 Grat. 342.) 
 
 The avoidance of the contract on the infant's part, 
 whether it be executed or executory, must W entire, 
 or it do^mtiiQ^bik^mo^ft®Bie cannot pretend to 
 
OHAP. XVn.J GUARDIAN AND WARD. 495 
 
 rescind so much as he may deem adverse to him, 
 whilst he claims the benefit of what is in his favor. 
 Thus, if he buy land, and execute bonds for the pur- 
 chase money, upon coming of age he cannot plead 
 infancy to the bonds, whereby he disafiirms the whole 
 contract, and at the same time claim the land, fl 
 Am. L. C. 261-'2.) 
 
 Allusion has repeatedl}' been made to a statute 
 with us taken from 9 Geo. IV, c. 14, § 5, which 
 directs that the confirmation of infant's contracts 
 shall be in icriting. The enactment (Y. C. 1872, c. 
 140, § 1), is that "no action shall be brought to 
 charge any person upon a promise after full age to 
 pai/ a debt contracted during infancy, or upon ratifi- 
 cation after full age of a promise or simple contract 
 made during infancy, unless the promise or ratifica- 
 tion, or some memorandum or note thereof, be in 
 writing, and signed by the party to be charged 
 thereby, or his agent." The non-adaptation of this 
 statute to the mischief in view has been already 
 stated. Its effect, — perhaps inadvertently, — seems to 
 be limited to contracts to pay money, whether under 
 seal or not, and to contracts to do collateral things 
 (i. e., something else than to pay money), only when 
 the engagement is a simple contract not under seal (the 
 word promise properly importing an undertaking by 
 parol or not under seal.) (2 Steph. Com. 108 ; Burr. 
 L. Dist. Promise, 7.) When the undertaking is to 
 do a collateral thing under seal, the statute appears 
 inapplicable, and if so, the confirmation of such 
 transactions may be as at common law. 
 
 It is too remarkable to be passed by without no- 
 tice, that the common law holds all an infant's con- 
 tracts by matter of record (such as recognizances, 
 judgments, &c.), to be for the most part voidable 
 only during the party's minority, because non-age, in 
 order to avoid the solemnities of such a transaction, 
 can be tried only by inspection by the court, and not by 
 a jury. (1 Th. Co. Lit. 178-'9; Bac. Abr. Inf'y (8-^ ; 
 2 Kent's Com. 237; Eandall v. Wade, Telv. 88; 
 Harrison v. Worley, 2 Dyer. 232.) 
 3'. The Acts for which Infants are liable, notwith- 
 standing their Infancy. 
 
 Infants are liable, notwithstanding their non-age, 
 for mere torts — that is, injuries other than such as 
 arise out of the breach of contracts — just as an adult is. 
 " If an infant commit an assault or utter a slander," 
 said lm§itJ£ej;iSfS^0Grd^Mngs v. Eundall, 8 T. E. 
 
496 GUARDIAN AND WAKD. [bOOK I. 
 
 337, " Grod forbid that he should not be answerable 
 for it in a court of justice." Nor does it acquit him 
 of liability that he acted by command of another 
 person, or through an agent. For all manner of 
 torts — trespass, assault, slander, fraud, wrongful con- 
 version where there is no contract, &c. — he is incon- 
 testibly responsible in an action. Thus, an infant 
 who obtains goods fraudulently, without intending 
 to pay for them, is liable for the frauoL — that is, for 
 the value of the goods ; and in general, where money 
 or goods have, witRout contract, gone into an infant's 
 hands wrongfully, as by embezzlement, or are re- 
 tained by him wrongfully, they may be recovered. 
 (1 Pars. Cont. 264; 1 Am. L. C. 262; Bac. Abr. 
 Inf 'cy (H) ; Bristow v. Eastman, 1 Esp. 1Y3 ; Mills 
 V. Graham, 1 Bos. & Pull. 1^". R. 144 ; Vasse v. Smith, 
 6 Or. 226.) 
 
 There are, however, transactions so ambiguous 
 that they may very well be regarded either as torts 
 or as breaches of contract; but it may well be con- 
 ceived that it is not at the option of the other party 
 to make an infant responsible or not for a transac- 
 tion, by treating it as a tort or as a contract. The 
 liability of an infant, wrong-doer is in such case 
 determined not by the caprice of the plaintiff, but by 
 the prevailing character of the injury, or, as it has 
 been sometimes expressed, on whether a liability can ' 
 be made out without taking any notice of the contract. If 
 that prevailing or predominant character be tort, the 
 infant is answerable; whilst if the predominant 
 character be contract, the infancy is a defence And 
 it would seem (Bristow v. Eastman, 1 Esp. 173) that 
 whether the plea of infancy is to be admitted or not 
 depends not, in either case, upon the nature of the ac- 
 tion; so that whilst, on the one side, infancy is al- 
 lowed as a bar to an action of trover or of detinue 
 (although they are actions of tort), when the charac- 
 ter of contract predominates in the business out of 
 which the action arises; so, on the other side, in- 
 fancy will be no answer to an action of assumpsit or 
 of debt (although they are actions of contract), where 
 the predominant element is tort. 
 
 Thus, if the bailee of a chattel {i. e. a person to 
 , whom the chattel is delivered for some specil&c pur- 
 pose, as to use, to carry, to repair, &c.,) treat it so 
 negligently that injury results, the bailor may in 
 general, at his option, regard the wrong either as a 
 breach 0i^^s&iby(]^iiS'dmti^nt, or as a tort. And 
 
CHAP. XVIII.J COKPOEATIONS. 497 
 
 SO, Tipon a breacli of warranty of the quality or title 
 of a chattel, when the defect is known to the war- 
 rantor, the sufferer may, at his election, treat it as a 
 violation of contract or as a deceit, and, therefore, a 
 tort. But it is manifest that in both these cases the 
 predominant character of the transaction is contract, 
 and not tort; and, therefore, if the wrong-doer be an 
 infant, he is not to be ousted of his defence of in- 
 fancy by the plaintiff electing to treat the matter as 
 a tort. On the other hand, if the bailee wilfully in- 
 jure the thing bailed, or if he pervert it from its des- 
 tined use (as if he puts a horse in the plough which 
 he hired to ride, or having hired a horse to go to a 
 place agreed, he goes to another place in a different 
 direction), the bailment may be considered as there- 
 by terminated, which makes the bailee thenceforth a 
 trespasser; or in his election, waiving the tort, the 
 bailor may regard the bailee as still in possession, 
 and liable under the contract of bailment. In this 
 instance the predominant character of the transaction 
 is tort, and not contract; and the wrong-doer's in- 
 fancy is no defence. (1 Am. L. C. 262— '3 ; 1 Pars. 
 Cont. 264; 1 Chit. PL 87; Chit. Cont. 151, n (3); 
 Jennings v. Kundall, 8 T. P. 337; Johnson v. Pie, 
 1 Lev. 169; Homer v. Thwmg, 3 Pick. 492; Yasse 
 V. Smith, 6 Cr. 226 ; Green v. Grreenbank, 2 Mar- 
 shall, (4 E. C. L.) 486.) 
 
 CHAPTEE XVin. 
 
 Of Cobpoeations. 
 
 *. The Eights which relate to Corporations, or Artificial Per- 
 sons. 
 
 It will be remembered that at the very beginning of the 
 discussion of the rights which relate to the person, a distinction 
 was adverted to (Ante p. 51) between the rights which con- 
 cern the person in respect to natural persons, and those which 
 concern artificial persons, — ^bodies politic, or corporations. To 
 this latter topic we are now come. 
 
 From the exposition thus far made of the rights and duties 
 which relate to the person in respect to natural persons, it is 
 apparent that the contrast between them and artificial persons 
 cannot, in general, relate to any rights which concern the 
 person, whether absolute or relative, but to those rights only, 
 or at least chiS^iim^itt>)kMiQSm^Mkd with property. The 
 32 
 
498 CORPOKATIONS. [bOOK I. 
 
 forms which would be requisite in order to invest a series of 
 individuals, one after another, in indefinite succession, with the 
 same identical rights with regard to property, would be very 
 inconvenient, if not impracticable. And therefore, as well as 
 for other reasons, which will be mentioned in the sequel, it has 
 been usual, and is found expedient, when it is desired to have 
 any particular class of property or of rights kept on foot, and 
 continued for a length of time, to constitute such artificial 
 persons or bodies politic, who may maintain a perpetual suc- 
 cession, and enjoy a kind of legal immortality. (1 Bl. Com. 
 4:67; 2 Kent's Com. 267, <S^c.; Bac. Abr. Corporations; Angell 
 & Ames on Corporations.*) 
 
 In unfolding the subject, it will be expedient to treat it 
 under the following principal heads, viz: 
 
 1. The Origin and Nature of Corporations; 
 
 2. The Several Kinds of Corporations; 
 
 3. The Creation and Organization of Corporations; 
 
 4. The Modes of Action, and the Powers of Corporations; 
 
 5. The Relation of Members to the Corporation; 
 
 6. The Visitation of Corporations ; 
 
 7. The Judicial Proceedings Employed to Restrain and 
 Direct Corporations in the Exercise of their Franchises; and 
 
 8. The Dissolution of Corporations ; 
 W. C. 
 
 I''. The Origin and Natm-e of Corporations. 
 
 A dorporation is a mere creature of the law, invisible, in- 
 tangible, and incorporeal. It is defined by Chancellor Kent 
 to be " A franchise possessed by one or more individuals, who 
 subsist as a body politic, under a special denomination, and 
 are vested by the policy of the law with the capacity of per- 
 petual succession, and of acting in several respects (however 
 numerous the association) as a single individual.^'' (2 Kent's 
 Com. 267; 1 Browne's Civ. & Adm. Law, 141; Bank of U. 
 S. V. Devaux, 5 Cr. 61.) 
 
 Chancellor Kent also describes the object of the institution 
 to be " to enable the members to act by one united will, and 
 to continue their joint powers and property ia the same 
 body, undisturbed by the change of members, and without 
 the necessity of perpetual conveyances, as the rights of mem- 
 bers pass from one individual to another. All the indi- 
 viduals, however many, composing a corporation, and their 
 successors, are considered in law but as one moral person, 
 capable, under an artificial form, of taking and conveying 
 property, contracting debts and duties, and of enjoying a 
 
 * Note. — The excellent and exhaustive treatise on Corporations of Messrs. 
 Angell and Ames, to which frequent reference will be made in the ensuing pages, 
 cannot be too strongly recommended to .the student. There are few questions 
 connected with the subP^/^eifi&Jl^ MilSI^!>i.'iK does not afford a solution ; and 
 perhaps not one to which it does not supply at least a key. 
 
CHAP. XTIII.J CORPOEATIONS. 490 
 
 variety of civil and political rights. One of the peculiar 
 properties of a corporation is the power of perpetual succes- 
 sion; for, in judgment of law, it is capable of indefinite 
 duration. The rights and privileges of a corporation do not 
 determine or vary, upon the death or change of any of the 
 individual members. They continue as long as the corpora- 
 tion endures." (2 Kent's Com. 267-'8.) 
 
 It is sometimes said that a corporation is immortal; but 
 its immortality means only a capacity for perpetual succes- 
 sion as long as it exists. So far from being, in fact, im- 
 mortal, most private corporations, created by or in pursuance 
 of statutes, are limited in duration to a few years, although 
 there are still many without limitation, and therefore capa- 
 ble of continuing indefinitely, as long as a succession of 
 individual members can be kept up. (2 Kent's Com. 267-'8.) 
 
 It was chiefly for the pm-pose of clothing bodies of men in 
 succession with the qualities and capacities of one single, 
 artificial being, that corporations were originally invented, 
 and for the same convenient purpose they have been brought 
 largely into use — more largely, and for more varied and im- 
 portant purposes of manufactures, trade, and commerce, 
 within the present century than ever before. By means of 
 corporations, many individuals may act in perpetual succes- 
 sion as one; may transmit their estates with facility to their 
 successors, without the multiplicity of conveyances, which 
 would otherwise be requisite; and may transact business 
 without incurring, at common law, any personal responsi- 
 bility, or exposing to loss any other property than so much 
 as they may severally think fit to put into the common stock 
 of the corporation. In Virginia, there is also a further con- 
 venience — namely, that the shares, although the pi'operty of 
 the corporation, may consist of real estate, are declared 
 (V. C. 1873, c. 57, § 21, 63), to he personalty, and therefore 
 capable of being conveyed and transmitted with more facility 
 than if they were real. (1 Bl. Com. 467-'8 ; 2 Kent's Com. 
 268.) But so far as relates to the title of the corporation to 
 lands, it must be conveyed, as in the case of natural persons. 
 
 The common law derives its doctrine, and its distribution, 
 of coi^porations from the Koman law, vsdth which, however, 
 they did not originate, as Blackstone inadvertently states (1 
 Bl. Com. 4r68). They are recognized by the law of the XII 
 Tables (Table YII), but that law was confessedly borrowed 
 from the laws of Solon at Athens. Solon seems to have per- 
 mitted such associations, whether for purposes of mere affec- 
 tion, of business, or of devotion, Vrith the utmost freedom, 
 subject only to the condition that nothing should be done 
 contrary to the laws oftJie land. (Cooper's Justin. Insts. 694 ; 
 Dig. Lib. 47, Ti^#zJrfj^fe;^to- 525, n.) 
 
500 ^COEPOEATIONS. [BOOK I. 
 
 The Roman law styled corporations universities, as form- 
 ing one whole out of many individuals, and collegia, from 
 many being gathered together into one; names which, in 
 modern times, have been more usually confined to those cor- 
 porations instituted for the education of youth, and the ad- 
 vancement of learning. In the Roman law, corporations are 
 zbfi2kjs aggregate — that is, composed of several persons, — ^never 
 sole, consisting oi one only. Its maxim is '■^ Tres faciunt col- 
 legium^'' although if the number be, by subsequent contin- 
 gency, reduced to one on]^, it may stiU subsist as a corpora- 
 tion, Si universitas ad unum redit, et stat nomen universitatis. 
 (1 Bl. Com. 468-'9 ; 1 Browne's Civ. & Adm. Law, 141, & 
 seq.; Dig. Lib. L. 16, 85; Id. Lib. Ill, 4, T.) 
 
 The powers and the incapacities of corporations in the 
 Roman law were very similar to those recognized by our 
 own common law, which will be presently exhibited. (1 Bro. 
 Civ. & Adm. L. 145 to 147.) 
 
 The vidll of a corporation, by the Roman law, was deter- 
 mined, as with us, by the voice of the major part of the mem- 
 bers, notwithstanding Blackstone's statement, that two-thirds 
 were required. (1 Bro. Civ. & Adm. L. 147, & n (16); Dig. 
 Lib. L. 17, 160; Id. Lib. L. 9, 2 & 3.) 
 
 The objects for which corporations were created at Rome 
 were very various, and in many instances, at least in the 
 earlier periods, political. Numa is said to have resorted to 
 them as a safeguard against the rival factions of the Sabines 
 and Romans, hoping, by subdividing the hostile races into 
 smaller societies of every particular trade and profession, at 
 least to abate the evil. (1 Bl. Com. 468-'9.) 
 
 Corporations framed for the advancement of learning in 
 their precise present state and form, seem to be the fruit of 
 modern invention, although the Roman law, at least in its 
 later periods, recognized institutions approximating to our 
 modern colleges. Thus, in the time of the Emperors, the 
 professors in different sciences began to receive regular sti- 
 pends from the public treasury, and to be subject to regula- 
 tions ordained by the State. And it is especially interesting 
 to lawyers to know that the most flourishing and celebrated 
 of these seminaries were for the purpose of teaching the laws. 
 They were promoted chiefly by the Emperors Constantine, 
 Theodosius, and Justinian, the latter "of whom restricted the 
 study of the law to the three schools of Rome, Constantinople, 
 and Berytus (now Beyroot), in Phoenicia. The students in 
 these institutions were subjected to a five years' course, and 
 derived from academic testimonials of proficiency no small 
 privileges and advantages, as the graduates of the English 
 universities now do. (1 Bro. Civ. & Adm. L. 162-'3.) 
 The GreciaiP^iK8P^K(M'6^qM>re used to attend the 
 
CHAP. XVm.] C0EP0EATI0N8. 501 
 
 schools of philosophy and rhetoric at Athens and elsewhere, 
 listened to teachers who were not authorized by the State, 
 nor formed into corporate bodies upon a public foundation 
 endowed with legal capacities, subject to regulations of their 
 own, and possessed of funds of maintenance independent of 
 the honorary fees paid by students. The State sometimes so 
 far lent its sanction to the philosopher's teaching as to give 
 him an assigned and fixed seat of instruction, as the Academy 
 to Plato and the Lyceum to Aristotle ; but their disciples ac- 
 quired by their attendance no privileges similar to those of 
 graduation in the English universities, nor was that course of 
 study made by law a necessary preparation to any profession 
 or pursuit. (1 Bro. Civ. & Adm. L. 151, & n (io).) 
 
 It was not until after the revival of letters in Europe, — 
 indeed, not until the thirteenth century, — that colleges and 
 universities assumed that form which they have at present, 
 having public authority to teach and to confer academical 
 degrees, which, in Europe, carry with them certain estab- 
 lished privileges accorded by law. (1 Bro. Civ. & Adm. L. 
 151, &c., &n (10).) 
 2''- The several iiinds of Corporations. 
 
 To understand the qualities of corporations with discrimi- 
 nation, they must be marshalled into classes according to 
 several grounds of distinction — that is, according to the numi- 
 her of persons which compose them; according as the govern- 
 ment is or is not concerned directly in them; and according 
 to the object and design of their organization ; 
 W. C. 
 
 1". The several kinds of Corporations, according to the num- 
 ber of Persons which compose them , 
 
 Corporations, according to the number of persons which 
 compose them, are either, (1), Corporations aggregate; or 
 (2), Corporations sole; 
 W. C. 
 1*. Corporations Aggregate. 
 
 A corporation aggregate consists of many persons united 
 into one society, who are kept together by a perpetual 
 succession of members, so as to have the capacity to con- 
 tinue for ever. Of this kind are the mayor and common- 
 alty of a city, the president and masters of a college, the 
 shareholders of a bank, of a railroad, of a turnpike, &c. 
 (1 Bl. Com. 469.) A coi-poration aggregate is usually 
 composed of a number of natural persons, in their natural 
 capacity, but it may consist also of bodies politic and cor- 
 porate, either -wholly or in conjunction with natural per- 
 sons. Thus, the government 'of a country, or county, or 
 city, is often a member of a private corporation, as of a 
 banking, raiBcgi/di^ed it)3«iiM;asGa8pS%. Such combinations, 
 
502 COEPOEATIONS. [bOOK I. 
 
 however, are not favored, and in Virginia it is provided 
 by statute (Y. C. 1873, c. 56, § 2, 3,) that " one company 
 shall not subscribe to the stock of another unless it be 
 specially allowed by law; " which provision, however, is not 
 to prevent a company from receiving stocks or other pro- 
 perty in satisfaction of any judgment, &c., or as collateral 
 security for, or in payment of, a debt, or from purchasing 
 them at a sale made for its benefit ; and if it thus acquires 
 shares of its own stock,' it may either extinguish them, or 
 transfer them to a purchaser ; but whilst it holds them no 
 vote is to be given thereon. (V. 0. 1873, c. 56, § 3.) The 
 State, however, may acquire the works of an internal im- 
 provement company by forfeiture (V. C. 1873, c. 61, § 55); 
 and counties, cities, and towns may subscribe for the stock 
 of such companies. (Id. § 62 & seq.) 
 2*- Corporations Sole. 
 
 A corporation sole consists of one person only, e. g. king, 
 bishop, parson. In Yirginia no instance of a corporation 
 sole seems now practically to exist, but it might at any 
 time be created by statute. 
 
 Before the Ke volution of 1776, ministers of the Episco- 
 pal Church (then, by law, the established church of the 
 colony), when they were inducted into their parishes, had 
 &, freehold estate in the glebe attached to the church, and 
 seem to have been corporations sole. And some suppose 
 that after the adoption of the Federal Constitution in 1789, 
 the rights of the church to these glebes, &c., through the 
 parsons, as sole corporations endued with the capacity of 
 perpetual succession, could no more be impaired than any 
 other vested right. (Brunswick v. Dunning, 7 Mass. 447 ; 
 Weston V. Hunt, 2 Mass. 500 ; Terrett v. Taylor, 9 Cr. 
 43.) But the well settled doctrine in Virginia is, that the 
 Revolution swept away the church establishment, and all 
 its appendages; that the acts of 1776, 1784, 1786, and 
 1788, confirming to the Episcopal Cliurch,as the successor 
 of the legal establishment, the possession of its glebes and 
 other property, wave properly and constitutionally repealed 
 by the act of 1798, as iaconsistent with the Constitution and 
 the principles of religious freedom; and that the act of 
 1801, appropriating all the property of the Episcopal 
 Church, and the glebes, as fast as they became wacaw^, to 
 the use of the poor, &c., was not unconstitutional. (Tur- 
 pin, &c., V. Lockett, &c.,6 Call. 113; Selden v. Overseers, 
 ,&c., 11 Leigh, 127; 1 Tuck. Bl. App'x,n (M),p. 104, &c.) 
 2°. The several kinds of Corporations, according as the Govern- 
 ment is or is not concerned therein. 
 
 Corporationsj-^ccOTdin^a^.fhfi OTQgernment is or is not 
 concerned therein; are, (if, rubnc; and (2), Private; 
 
CHAP. XVIII.J COEPOEATIONS. 503 
 
 w. c. 
 
 1^. Public Corporations. 
 
 A public corporation is one which has for its object the 
 municipal government of a portion of the people (e. g., a 
 city or a county); or which is founded for other public, 
 although they be not political pui-poses, and which belongs 
 wholly to the government, — sucli as the University of Vir- 
 ginia, the Board of Education, &c. (Ang. & A. Corp'ns, 
 9, 27-'8; Bank of U. S. v. Planters Bank, 9 Wheat. 907; 
 Bank of U. S. v. McKenzie, 2 Brock. 393.) 
 
 The Legislature, as a trustee for the public, may modify 
 or abolish public corporations at pleasure; but private 
 corporation charters are regarded as contracts, the obliga- 
 tion of which the States are prohibited by the United 
 States Constitution (Art. I, § X, 1) to impair (2 Kent's 
 305; Terrett v. Taylor, 9 Cr. 52; Dartmouth Col. v. Wood- 
 ward, 4 Wheat. 636 ; Richm. Fred. & Pot. R. R. Co. v. 
 Louisa E. R. Co., 13 How. 71; Jas. Riv. & K. Co. v. 
 Thompson & al, 3 Grat. 270; City of Richmond v. Rich'd 
 & Danv. R. R. Co., 21 Grat. 604, 617) ; a principle which, 
 however, does not forbid a State, in the exercise of the 
 ri^ht of eminent domain, from altering or abolishing a 
 charter in any case, when the public advantage requires it ; 
 but always upon condition of making a just compensation, 
 corporate franchises being no more exempt from the ex- 
 ercise of the right of eminent domain tlian other pro- 
 perty. (James Riv. & K. Co. v. Thompson & al, 3 Grat. 
 270.) 
 
 Municipal corporate bodies, such as cities and counties 
 (which are sometimes denominated quasi corporations), are 
 further distinguished from private corporations in having 
 for the most part no corporate funds from which a judg- 
 ment against them can be satisfied, and in the consequent 
 personal liability of the individual corporators for the cor- 
 porate debts; for cities, towns, counties, &c., being insti- 
 tuted only for political and civil purposes, each member 
 thereof (if, by statute, a private action lies against the cor- 
 poration at all) is liable in his person and private estate to. 
 the execution. (Ang. & A. Corp'n, 32; 2 Kent's Com. 
 274; Russell v. Men of Devon, 2 T. R. 667; Atto. Gen. 
 V. Exeter, 2 Euss. (3 Eng. Ch.) 53.) 
 2''. Private Corporations. 
 
 A private corporation is any one not public ; and in order 
 that it may be public, it must not only exist for governmen- 
 tal or for public purposes alone, but the whole property 
 therein (if there be any property) must belong to the govern- 
 ment in its political capacity. (2 Kent's Com. 305-'6; 
 Terrett v. lE^y^^MJoy mqids,oWm:tmoui\i Col. v. Wood- 
 
604 COKPOBATIONS. [bOOK I. 
 
 ward, 4 Wheat. 636 ; Bracken v. "W. & Mary Col. 1 Call, 
 164.) 
 
 Thus, banking, insurance, railroad, canal, bridge compa- 
 nies, &c., ure private corporations, and that notwithstand- 
 ing the State may be a principal — ^nay, the sole shareholder 
 therein (Ang. & A. Corp'n; Bank of United States v. Plan- 
 ters Bank, 9 Wheat. 907). And in some instances what 
 is acknowledged to be a public municipal corporation, may 
 stand relatively to the State as & private corporation — e. g., 
 where a city exercises a franchise of gas or water works, 
 &c. (Moodalay v. E. In^. Co., 1 Bro. C. C. 469; Nabob 
 of Carnatic v. E. Ind. Co., 2 Ves. Jun'r, 59; S. C. 4 Bro. 
 C. C. 198; Scott v. City of Manchester, 2 Hurlst. & 'E., 
 204; 1 Am. L. C. 622.) 
 3". The several Kinds of Corporations, according to the Object 
 and Design thereof. 
 
 Corporations, according to the object and design thereof, 
 are (1), Ecclesiastical; and (2), Lay; 
 W. C. 
 1*. Ecclesiastical Corporations. 
 
 Ecclesiastical corporations are such as are created for 
 the advancement of religion. They generally consist of 
 spiritual (^. e., clerical) persons, and according to Black- 
 stone, of none others — e. g., Bishop and Parson, which are 
 instances of sole corporations, and Dean and Chapter, 
 which are aggregate. (1 Bl. Com. 470; Ang. & A. Corp. 32.) 
 Ecclesiastical corporations are not wholly unknown in the 
 United States (e. ^., in New York, Ohio, &c.), but they do 
 not in this country consist wholly of clerical persons, and 
 cannot be of very familiar occurrence where there is no 
 church by law established. In Virginia they do not exist 
 at all since 1787 (12 Hen. Stats. 266; Va. Const. 1869, 
 Art. V, § 17), unless theological seminaries may be so 
 styled. But churches, cemeteries and parsonages, and 
 needful church furniture, may be vested in trustees for the 
 several objects contemplated by them, not to exceed two 
 acres in an incorporated town, and thirty acres out of it. 
 (V. C. 1873, c. 76, § 8, &c.) 
 2*- Lay Corporations. 
 
 Lay corporations are corporations intended for secular 
 purposes, or as is sometimes said, not very accurately, com- 
 posed of secular and not clerical persons. They are either 
 civil or eleemosynary. (1 Bl. Com. 470.) 
 W. C. 
 1". Civil Corporations; W. C. 
 1*. The Nature of a Civil Corporation. 
 
 A civil corporation (which may be either public or 
 private) ^s,Dig^iZ&^^f^(^i^m)S09®ecular purpose — e. g.. 
 
CHAP. XVni.J OOEPOEATIONS. 505 
 
 the King, cities, counties, &c., for governmental pur- 
 poses; for the advancement of trade, manufactures, &c., 
 such as the East India Company, manufactuiing compa- 
 nies, banking companies, &c.; for advancement of learn- 
 ing, such as universities, colleges, library companies, the 
 Royal Society, &c. ; or for purposes of general improve- 
 ment, &c., such as canal, bridge, raiboad companies, &c. 
 (1 Bl. Com. 470-'71.) 
 2*. Advantages of Corporations in connection with Busi- 
 ness Purposes. 
 
 The advantages of a corporation for the transaction 
 of business in comparison with an ordinary partnership, 
 may be summed up under the heads following : 
 W. C. 
 Is. Any number of persons may unite in an enterprise 
 without inconvenience, contracting, suing, and being 
 sued, in the corporate name. 
 2s. The Shareholders may dedicate to the undertaking 
 such amount as each thinks lit, and that, at common 
 law, is the limit of his responsibility. 
 
 It must be observed, however, that in several of the 
 States, as in New York and Massachusetts, and in 
 others also, the policy has prevailed for many years of 
 holding to more or less of personal liability, over and 
 above their shares, usually to an amount equal to their 
 shares, those persons who were members of the com- 
 pany at some certain period, in some instances at the 
 period of its dissolution, in others, more rationally, at 
 the date of the engagement sought to be charged. (Aug. 
 & Ames Corp. 546,- & seq.) The act of Congress 
 creating the system of National Banks provides that 
 " the shareholders of each association," organized under 
 the act, " shall be held individually responsible, equally 
 and ratably, and not one for another, for all contracts, 
 debts and engagements of such association, to the ex- 
 tent of the amount of their stock therein, at the par 
 value tliereof, in addition to the amount invested in such 
 shares." (13 U. S. Statxites, 102, § 12; 2 Bright Dig. 
 54; Eev. Stats. U. S. 1001, § 5151.) 
 
 In Virginia we have adopted this policy in respect to 
 corporations, created by the circuit courts, as presently 
 to be mentioned, as to which it is enacted that "for all 
 debts whicli shall be due and owing by the company, 
 the persons composing the company, at the time of its 
 dissolution, shall be individually responsible to the ex- 
 tent of their respective shares of stock in said company, 
 and no further." (V. C. 1873, c. 57, § 63.) The ef- 
 fect of tB%;greEfitij?iM>er(t)®o#^e the shareholders, at 
 
506 C0RP0EATI0N8. [bOOK I. 
 
 the time of the dissolution of the company, answerable 
 for its debts and engagements to an extent equal to the 
 amount of their respective shares, over and above the 
 same. (Briggs v. Penniman, 8 Cow. (E". Y.) 387, 396 ; 
 Spear v. Crawford, 14 Wend. (JST. Y.) 30 ; Bank of 
 Poughkeepsie v. Abbotson, 24 Wend. 473, 479 ; S. C. 
 5 Hill, 451; Slee v. Bloom, 19 Johns. (K Y.) 456; 
 Castleman v. Holmes, 4 J. J. Marsh (Ky.) 1 ; John- 
 son V. Somerville & Co., 15 Gray (Mass.) 216 ; Ander- 
 son V. Com'th, 18 Grat. 295 ; Mills v. Stewart, 41 (N. 
 Y.) 384.) 
 38. Shares in Virginia are personal property always, and 
 are susceptible of easy sale and transfer by the holder 
 or his representative. (Y. C. 1873, c. 57, § 21, 63 ; 
 Bac. Abr. Corp. (E) 5.) 
 3'. Limited Partnerships. 
 
 Limited partnerships are a statutory substitute for 
 some of the advantages of corporationB, — ^namely, the 
 advantage of limited responsibility, and of suits in the 
 name of one or a few. They are imknown to the com- 
 mon law, which holds every associate in business, who 
 shares its gains, in whatever proportion, liable to the 
 full extent of his entire estate for the obligations con- 
 tracted. Limited partnerships were introduced into 
 France in 1673, and have found considerable favor in 
 many of these States, and, amongst others, in Virginia. 
 "Limited partnerships," says the Statute (V. C. 1873, 
 c. 142, § 1, &c.,) "for the transaction of mercantile, 
 mechanical or manufacturing business within this State, 
 and not for the piu-pose of banking, brokerage, or mak- 
 ing insurance, may be formed upon the terms and sub- 
 ject to the conditions and liabilities prescribed" in the 
 statute. There must be one or more persons liable as 
 general partners, and then tliere may be one or more 
 special 2)art7iers, who, contributing a specific sum in 
 cash, as capital, shall not be personally liable for the 
 debts, except in a few specified cases. Provision is 
 made for making publicly knoion the name of the firm, 
 the sum contributed by each special partner, the nature of 
 the business, the place where it is to be transacted, and 
 the duration of the partnership. The general partners 
 alone can conduct the business of the concern, and suits 
 are to be brought by or against them. The capital originally 
 contributed by the special jjartners is not to be diminished 
 by the withdrawal of any part thereof, nor by any divi- 
 sion of interest or profits, nor is any sale or transfer of, 
 nor lien o^^^^setsjegd f^the purpose of giving 
 preference amoligsrcreaitorB , Tlor, nnally, can there be 
 
CHAP. XVni.J C0EP0BATI0N8. 507 
 
 any dissolution of a limited partnership before the time 
 specified in the articles, unless notice thereof be re- 
 corded and published, as the formation of the partner- 
 ship is required to be. See Ang. & A. Corp. 37 & seq. 
 
 A later statute (March, 1875), authorizes a limited 
 partnership of a different character, "for the purpose of 
 conducting any lawful business or occupation within 
 this State or elsewhere, whose principal ofBce or place 
 of business shall be established and maintained within 
 this State." 
 
 The capital only subscribed by the members of the 
 association, is liable for the debts of the association, 
 which is constituted by the persons belonging to it sign- 
 ing and acknowledging before some officer competent to 
 take acknowledgment of deeds, a statement in writing, 
 setting forth the proper names of such persons ; the 
 amount of capital subscribed by each; the total amount 
 of capital, and when and how to be paid; the character 
 of the business to be conducted, and the location of the 
 same ; the name of the association, with the word 
 "limited" added thereto as a part of the same; the con- 
 templated duration of the association in no case to ex- 
 ceed twenty years ; and the names of the officers of the 
 association, selected in conformity with the provisions 
 of the act ; and any amendment of such statement is to 
 be made only in like manner ; the statement and amend- 
 ments to be recorded in the deed-book of the county or 
 corporation where the principal office is established. 
 Each partner must in the statement agree to waive the 
 benefit of the homestead exemption as to any debt 
 which he may at any time owe the association. And 
 the statement is required to be published once a week 
 for two weeks in a newspaper, published in the coimty 
 or city in which is the principal office. 
 
 The word "limited," it is declared, shall be the last 
 word of the name of every such association ; and the 
 omission of it in the use of the name of the partership, 
 shall render every person who participates in such omis- 
 sion, or acquiesces therein knowingly, liable for any in- 
 debtedness or damage thence arising. 
 
 Interests in such associations are personal estate, and 
 may be transferred as the by-laws direct. The business 
 is to be conducted by managers elected by the stock- 
 holders, but the capital is not to be impaired. 
 
 These provisions are taken substantially from the 
 English Statutes of 1862, 25 & 26 Vict. c. 89. (Acts 
 1874-'5, p. 118, c. 140; Wms. Pars. Prop. 201 & seq.) 
 2«. Eleemosyn^'(^<^1jlfefPSO/?® 
 
508 0OEPOEATION8. [bOOK I. 
 
 Eleemosynary corporations are constituted for the dis- 
 tribution of tlie free alms of the founder to such persons 
 as he has directed. Of this kind are hospitals for the 
 poor, sick, and impotent, asylums for orphans, and such 
 incorporated schools as dispense education and mainten- 
 ance, or either, gratuitously. Hence, the colleges in the 
 two English universities (which originally were merely 
 endowed boarding houses, where board was afforded gra- 
 tuitously), and many similar institutions scattered through 
 Great Britain, are properly eleemosynary foundations, 
 having been established for two purposes, — namely, (1), 
 For the promotion of piety and learning, by proper re- 
 gulations and ordinances; and, (2), For imparting pecu- 
 niary aid to the members of those bodies, to enable them 
 to prosecute a life of devotion and of study {ad orandum 
 et studendum), with greater ease and assiduity. (1 Bl. 
 Com. 471.) 
 
 These collegiate eleemosynary corporations in Eng- 
 land may be composed of ecclesiastical persons, prin- 
 cipally or wholly, and they may in some things partake 
 of the nature, &c., of ecclesiastical bodies, but they are, 
 notwithstanding, recognized as lay, and not ecclesiastical 
 corporations, because they are not erected primarily for 
 the advancement of religion. (1 Bl. Com. 471 ; Phillips 
 V. Bury, 1 Ld. Eaym. 6.) 
 
 Colleges in the United States are in general, like the 
 English universities, not eleemosynary, but civil cor- 
 porations; not eleemosynary in respect to the instructors 
 and officers, because, although they have stipends assigned 
 them from the funds of the institution, yet these are re- 
 wards ^ro opere et labore, not charitable gratuities, every 
 stipend being conditioned on service and duty ; nor 
 eleemosynary in respect to the pupils, because, whilst the 
 endowment sometimes enables and induces the college to 
 afford board and instruction at reduced rates, they are 
 seldom purely gratuitous. When, however, they, or 
 either of them, are gratuitous, the corporation is to that 
 extent eleemosynary. (1 Bl. Com. 471 ; Dartmouth Coll. 
 V. Woodward, 4 Wheat. 681.) 
 3*. The Creation and Organization of Corporations; W. C. 
 1"=. The Creation of Corporations; W. C. 
 1*. Mode of Creating Corporations; W. C. 
 1®. Mode of Creating Corporations in England. 
 
 In England, corporations are created by the King 
 alone, or by the King in conjunction with the Par- 
 liament, that is, hy statute, to which the King's assent is 
 necessary. But the King's consent to the creation of a 
 corporationQy!^'?^afeWl#e^^^ as express. Thus, the 
 
CHAP. XVIII.J COBPOEATIONS. 509 
 
 King's consent is implied in the case of those corpora- 
 tions which exist at common law, such as bishops, par- 
 sons, church-wardens, and the King himself, all of whom, 
 from time out of memory, have been held to be corpora- 
 tions virtute officii. Another method of implication of 
 the King's consent to corporations is iy presor'ipiion, or 
 immemorial usage, as in the case of the City of London, 
 and many others, which have existed as corporations 
 time whereof the memoi-y of man runneth not to the con- 
 tfary. (1 Bl. Com. 472-'3; Town of Pawlet v. Clark, 9 
 Cr. 292.) 
 
 The proper words of creation (although by no means 
 indispensable), are creamus, ertgimus, fundamus, incor- 
 poram/us, and the like; but so far are these words from 
 being indispensable, that a corporation may be created 
 by mere inference, from the general effect of a royal 
 grant, if such seems to be the intent. Thus, a grant to 
 certain persons to have "gildam mercatoriam," a mercan- 
 tile fraternity or company, or guild, is sufficient to incor- 
 porate them for ever ; and so with every other act of the 
 sovereign authority, which treats several persons in a 
 collective capacity as one body. (1 Bl. Com. 474; Bac. 
 Abr. Corp'ns (B) ; Sutton's Hospital, 10 Co. 29 b, 30 a, 
 30 b, 28 a; Tone Conservators v. Ash, 10 B. & Cr. (21 
 E. C. L.) 349; 2 Wend. (N. Y.) 109; 2 Johns. C. K. 325; 
 Stebbins v. Jennings, 10 Pick. (Mass.) 188.) 
 
 The power of erecting corporations may be exercised 
 by the King (and a fortiori by Parliament), through indi- 
 viduals, upon the maxim quifadtper aliumfadt per se. 
 Thus, the Chancellor of the University of Oxford has 
 power by the charter to erect corporations subservient to 
 the needs of the students, and has often exerted it. (1 Bl. 
 Com. 474.) And so with us, as we shall presently see, 
 the Legislature has thought fit to confer on the circuit 
 courts and judges the power to create most classes of cor- 
 porations. (Y. C. 1873, c. 57, § 59, &c.) 
 2®. Mode of Creating Corporations in Yirginia. 
 
 Corporations with us are created always, either directly 
 by an act of the Legislature, or in pursuance of -the 
 authority of one. Formerly, a fecial act was required in 
 each case; but by a series of statutes, commencing March, 
 1854, provision is made for incorporating joint-stock 
 companies by order of the circuit courts, or of the judges 
 thereof in vacation, " for the conduct of any enterprise or 
 business which may be lawfully conducted by an indi- 
 vidual, or by a body politic or corporate, except to con- 
 struct a turnpike, heyond the limits of the county, or a 
 railroad o-Oj^fpj^^qjfy^jQfif^ff^ a iank of circulation 
 
610 COEPOEATIONS. [BOOK I. 
 
 (V. C. 1873, c. 57, § 59), in which eases the corporation 
 can still be created only by special act of Assembly. 
 
 The proceedings to 'obtain an order of incorporation 
 from the circuit court, or the judge in vacation, are de- 
 scribed by the statute as follows, viz: 
 
 Any iive or more persons may make, sign, and ac- 
 knowledge before any justice of the peace, ' or notary 
 public, a certificate in writing, setting forth the name, 
 the purposes, the capital stock audits division into shares, 
 the amount of real estate proposed to be held', the place 
 of the principal office, the chief business to be transacted, 
 and the names and residences of the officers for the first 
 year of the company. This certificate may be presented 
 to the circuit court of the county, city or town in which 
 the principal office is to be located, or to the Jiidge thereof 
 in vacation; and thereupon the charter may be gi-anted 
 or refused upon the terms set forth in the certificate, or 
 upon such other terms as may be adjudged reasonable. 
 If the charter be granted, it is to be recorded by the clerk 
 of the court in a book to be kept for the purpose, and 
 certified to the secretary of the Commonwealth, to be in 
 like manner recorded in his office. And from the time 
 the charter is lodged in the office of the secretary of the 
 Commonwealth, the persons who signed the certificate, 
 and their successors, and such other persons as may 
 be associated with them, according to the provisions of 
 the charter, are a body politic and corporate, by the name 
 set forth in the certificate, with all the general powers, 
 and subject to all the general restrictions provided by law 
 previous or subsequent. The same circuit court, on the 
 motion of the company, or on reasonable notice to the 
 company, may alter or amend the charter ; and the alter- 
 ation or amendment is to be recorded by the clerk of the 
 court and the secretary of the Commonwealth, and from 
 that time shall be as efiectual as if originally a part of the 
 charter. (V. C. 1873, c. 57, § 59, & seq.) 
 
 The reasons which would influence parties to form a 
 corporation, instead of a, partnership, to conduct any busi- 
 ness or enterprise which may be lawfully conducted by 
 an individual, that is, where to be such body politic con 
 stitutes the only franchise contemplated, are stated, Ante 
 p. 505-'6.) 
 
 As to the power of Congress to create corporations, see 
 McCulloch V. State Bank of Maryland, 4 Wheat. 424 ; 
 Osborn v. Bank of United States, 9 "Wheat. 738 ; Aug. 
 & A. Corp. 60 & seq. 
 
 In respect to the power of tjie States to create banking 
 corporationsJ3ii(^i}^dl&b^ieMtGlBsok<S>f Kentucky, 11 Pet. 
 
OHAP. XVni.] COEPOBATIONS. • 511 
 
 527 ; Woodruff v. Trapnall, 10 How, 205 ; Darrington 
 V. Bank of Alabama, 13 How. 12 ; Curran v. Bank of 
 Arkansas, 15 How. 317. The power seems indubitable, 
 notwithstanding the State may be a shareholder in the 
 bank, or even its exclusive proprietor. 
 2''. The Circumstances which Accompany the Creation of a 
 Corporation. 
 
 Sir Edward Coke enumerates the things which are of 
 the essence of a corporation thus : 1st, Lawful authority 
 of incorporation ; 2d, Persons to he incorporated, and that 
 in two manners, scil. persons natural, or bodies incorporate 
 and political ; 3d, A name by which they are incorporated ; 
 4th, A place whereby to distinguish its locality ; and 5th, 
 Words suffident in law, but not restrained to any legal or 
 prescriptive form of words. (Sutton's Hospital, 10 Co. 
 29 b, 30 a, 30 b, 28 a.) 
 
 Of these the first and the fifth have been adequately set 
 forth. Somewhat remains to be said of the other three ; 
 W. C. 
 1*. Persons to be Incorporated. 
 
 These may be either natural persons or bodies politic. 
 (1 Bl. Com."475, n (2) ; Sutton's Hospital, 10 Co. 31 b ; 
 Ang. & A. Corp. 74.) 
 
 There seems to be no sufficient legal reason why several 
 corporations may not, like several natural persons, form 
 partnerships ietween themselves, or with natural persons, 
 in order to effectuate the purpose of their creation, and 
 thus become mutually liable for the engagements of one 
 another, and that without constituting, in their conjunct 
 relation, one body politic. Thus, where several incorpo- 
 rated transportation companies (e. g., railroad corporations) 
 unite amongst themselves, or with natural persons, to 
 constitute a continuous line, the stipulations connected 
 with "through-tickets" or " through-transportation," &c., 
 are, or may be, binding upon all, when made by any one, 
 each being the agent of all. (Railroad Co. v. Harris, 12 
 Wal. 85 ; Wilson v. Ches. & O. E'lr'd Co. 21 Grat. 665 
 -'66 ; Gr. Wes. R'lr'd Co. v. Blake, 7 Hurlst. & Norm. 
 987.) But see Ang. & A. Corp. 75, 248 ; Sharon Can. 
 Co. v. Fulton Bank, 7 Wend. (N. T.) 412. 
 2". The name of a Corporation. 
 
 A corporation must have a name, which is said to be 
 " the knot of its combination,^'' without which it could not 
 perform its functions. (1 Bl. Com. 475; Sutton's Hos- 
 pital, 10 Co. 28 b.) The name, however, may be implied 
 as well as express. (Brest. & Coll. of Phys. &c. v. Sal- 
 mon, 1 Ld. Eaym. 681 ; S. C. 1 Salk. 191.) 
 
 And theg^^gyij§^^/2^^g^- rigorously injudicial 
 
512 OOBPOEATIONS. [bOOK I. 
 
 proceedings, and substantially io. grants, ohligations, &c. 
 Greater rigor is insisted on in writs and pleadings, be- 
 cause a mistake committed in tltem may be corrected with 
 little inconvenience, and generally without loss, and ac- 
 curacy is desirable if it is to be attained without too great a 
 sacrifice ; whilst in grants and obligations, if the descrip- 
 tion is held to be insufficient, the benefit is irremediably 
 lost ; and, therefore, more latitude is allowed in the latter 
 case. Thus, where John, Abbot of "Worcester, by the name 
 of William, Abbot of ^W., granted common of pasture 
 to J. S., the grant was held to be good ; for, although the 
 Christian name was mistaken, there was sufficient certainty 
 in the designation Abbot of W. to ascertain who was the 
 grantor intended ; but if the name had been thus mis- 
 taken in a writ of pleading, it had been fatal. (Bac. 
 Abr. Corp. (0) 3 ; Finch's case, 6 Co. 65 a, 65 b ; Mayor, 
 &c. of Lyme Eegis, 10 Co. 126 a ; Dean, &c. of Nor- 
 wich Case, 3 Co. 75 a, n (E).) 
 
 In Judicial proceedings, where the corporation is a 
 party, a mistake in the name can, at common law, be 
 taken advantage of only by a plea in abatement, unless 
 the mistake be so entire that no such corporation exists, 
 in which case the variance is fatal at the trial. (Mayor 
 of Stafford v. Bolton, 1 Bos. & P. 43; Doe v. Miller, 1 
 B. & Aid. (4 E. C. L.) T03.) In Virginia, however, (as 
 in England since 1834), the misnomer, at least in the 
 former case, is no ground for even a plea in abatement, 
 but upon affidavit that it is the right name, it is inserted, 
 and the case proceeds. (Y. C. 1873, c. 167, § 18.) 
 
 Where the corporation is not a party, and there being 
 occasion to refer to it, the name is misstated, the mistake, 
 unless it be a mere error in the gelling (the sound being 
 the same), is a fatal variance at the trial. Thus, 8e- 
 grave for Seagrave (being idem sonans) is no variance 
 (Williams v. Ogle, 2 Stra. 889); nor Whyneard for Wyn- 
 yard (Eex v. Foster, Russ. & Ey. 412) ; but Austrialia 
 maria for Australia maria, in describing the South Sea 
 Company, was held to be fatal. (Turvil v. Aynsworth, 
 1 Stra. 787; S. C. 2 Ld. Eaym. 1516.) 
 
 In grants and contracts, if there be enough to show 
 clearly what corporation was intended, the description is 
 sufficient, though the words and syllables be varied from ; 
 or, as it is sometimes expressed, if the description be er- 
 roneous in sensu et re ipsa, it is fatal; but if only in 
 syllabis et verbis, leaving no reasonable doubt of the iden- 
 tity, the variance will not impair the validity of the trans- 
 action any more than in the case of a natural person. 
 Thus, if toQ/gi^i^stytoM/E^flfia^by the name of major 
 
CHAP. XVIII.] COEPOEATIONS. 513 
 
 et huygenses hurgi domini. regis de Lynne Regis (mayor 
 and burgesses of the Kingh horough of Lynne Kegis), an 
 obligation be made by the name of major et hurgenses de 
 Lynne Regis (mayor and burgesses of Lynne Regis), omit- 
 ting the words "q/" the King^ 'borough^'' it is sufficiently 
 expressed, for the word iurgesses is significant of a borough, 
 and all boroughs are King^s boroughs. (Mayor, &c., of 
 Lynne Regis, 10 Co. 136 a.) So a bond payable to the 
 ^^President and Managers of the Culpeper Agricultural 
 and Manufacturing Society" is recoverable by the cor- 
 poration in its true name of "The Culpeper Agricultural 
 and Manufacturing Society," although it is said it would 
 have been otherwise had the bond been made payable to 
 " The President and Managers of the Culpeper Agricul- 
 tural and Manufactm-ing Bank." (Culpeper Manufac- 
 turing Society v. Digges, 6 Rand. 167. See Mayor, &c. 
 of Lynne Regis, 10 Co. 124 b, 124 a, n (B) ; Pitts v. 
 James, Hob. 124.) Lf the name be so given as to distin- 
 guish it from other corporations, and ascertain its identity, 
 it suffices. (Hagerstown T. P. Co. v. Green, 5 Harr. ife 
 Johns. (Md.) 122; Inhabitants, &o. v. Strong, 5 Halst. 
 \^. G.) 323 ; Berks & Dauphin Co. v. Myers, 6 Serg. & 
 R. (Pa.) 16; i 5 Mass. 97, 99; 16 Mass. 141.) Thus, a 
 devise to "George, Bishop of Norwich," is good, although 
 the Bishop's name be John, and to "the mayor, jurats, 
 and town council" of the ancient town of Rye, will pass 
 land to the corporation of " the mayor, jurats, and C09n- 
 monalty" of Rye. And so to omit the words "and com- 
 pany," in designating the obligee in the official bond of 
 the cashier of a banlsi, has been held not to vititiate the 
 bond. (Bac. Abr, Corp. (C) 2; Ayray's Case, 11 Co. 21 
 a.) And devises to "The city of London," to "The 
 University of Oxford," to " Trinity College, Cambridge," 
 although these be not precisely the corporate names of 
 those several bodies politic, yet sufficiently signify the 
 meaning of the devisor, whose wishes are to be more re- 
 spected than in the case of grants and contracts. (Uni- 
 versity of Oxford's Case, 10 Co. 576 ; Counden v. Clarke, 
 Hob. 32 a.) 
 
 For a corporation to seek to avoid its own grant or 
 contract, by reason of a misnomer of itself, savors of 
 fraud, and is justly reprehended by Lord Coke as a per- 
 nicious novelty, which, " till this generation of late times, 
 was never read in any of our books." (Sir Moyle Finch's 
 Case, 6 Co. 65 a; Mayor, &c., of Lynne Regis, 10 Co. 
 125 b.) 
 
 A corporation may have one name by which to take, 
 grant, and contv^ig&m<iMt'M^ISi/s^i^h to plead and be 
 33 
 
514 COEPOBATIONS. [bOOK I. 
 
 impleaded. Thus, it may purchase and contract by the 
 name of "master, wardens and brothers," and be em- 
 powered to sue and be sued by the name of " "Wardens" 
 alone. (Bac. Abr. Corp. (C) 1 ; Coll. of Physicians, 2 
 Salk. 451; S. C. 1 Ld. Raym. 630; Minot v. Curtis, 7 
 Mass. 441.) ISTor does there seem to be any reason why a 
 corporation, like a natm-al person, may not have several 
 names for all purposes, either becaiise the charter shall 
 so provide, or because it is indiscriminately called and 
 known by several designations. (Bac. Abr. Corp. (C) 1, 
 & cases supra.) 
 
 A corporation, subsequently to its original creation, 
 may receive a new name, or if it exist by prescription, it 
 may be knovm by, divers names at different periods ; but 
 it does not, by a change of name, lose its franchises, debts, 
 or estates, all of which remain, and are recoverable by 
 the body, under its new designation. (Bac. Abr. Corp. 
 (C) 1; Luttrel's Case, 4 Co. 876; Mayor of Scarborough 
 V. Butler, 3 Lev. 237; Mayor of Carlisle v. Blamire & 
 al,8 East. 487; Wilson v. Ches. & 0. R. E. Co., 660-'61.) 
 3^- The Place of a Corporation. 
 
 "Without a place," says Lord Coke, (Sutton's Hosp. 
 10 Co. 29 b), "no incorporation can be made." The 
 principal purpose of the requirement seems to be to dis- 
 tinguish the corporation from others, so that, whilst the 
 place ought to be so far designated as to show that the 
 corporation was designed to have its being within the 
 limits of the State or country which creates it, it is not 
 needful to assign to it a more particular locality; nor is it 
 requisite that the place stated should be the true place. 
 Thus the "Prior of the Hospital of St. John of Jeru- 
 salem, in England," — the "Hospital of St. Lazarus of 
 Jerusalem, in England" — the " Prior of St. Mary of Mt. 
 Carmel, in England," — the "Chaunters of Mt. Calvary 
 without Aldgate, London," — are all good corporations. 
 (Sutton's Hospital, 10 Co 32 a, 32 b.) 
 
 How far a corporate body can actually have " a local 
 habitation," is a question which arises in connection with 
 the imposition of municipal taxes; with the capacity to 
 transact business in other localities, especially in other 
 States; and with the right to sue and be sued, when it de- 
 pends on residence or citizenship. 
 W. C. 
 1*. Place of a Corporation as to Imposition of Taxes. 
 
 Taxes may unquestionably be imposed by a county, 
 town, or other local municipal authority, upon the pro- 
 perty, real or personal, belonging to a corporation, so far 
 as the sam£)/^ife®dthJ4)/VffercfeffiS^ and is not by law ex- 
 
CHAP. XVIII. J COEPOEATIONS. 515 
 
 empt ; and also upon the individual resident stockholders 
 in respect of their shares in the capital stock of the com- 
 pany; but it appears the better opinion that such local 
 taxes cannot be imposed upon the corporation in respect 
 to its capital stock, as if it were a resident of that locality, 
 nor upon the non-resident stockholders in respect of 
 their shares, unless it be plainly so provided by statute. 
 The corporation is not properly a resident anywhere, and 
 a share in it, which is for the most part personal pro- 
 perty, in the absence of any law to the contrary, follows 
 the person of its owner, and has its situs at his domicil. 
 But for purposes of taxation it may be separated from 
 him hy law, which may direct its taxation to be at the 
 place where the property is. actually located; and this 
 principle may apply as well to intangible property, like 
 shares in incorporated companies, as to tangible chattels. 
 (Tappan v. Merchants' Bank, 19 Wal. 499.) 
 
 The national bank law has thus provided far the 
 separation of the stock in any of those banks from the 
 person of the owner, by enacting that taxes under State 
 avihority may be imposed on the shares belonging to the 
 holders, and on the real property belonging to the as- 
 sociation at the place where the hank is located (that is, 
 within the State wherein it is situated), and the legislature 
 of each State may determine the manner and place of 
 taxing all the shares of such banks within its limits; 
 save that the taxation shall not be at a greater rate than 
 upon other monied capital, and that the shares of non- 
 residents of the State shall be taxed in the city or town 
 where the . bank is located, and not elsewhere. (2 
 Bright. Dig. 61, § 41 ; 15 U. S. Stats. 34; Rev. Stats. 
 U. S. p. 1015, § 5219 ; Tappan v. Merchants' Bank, 19 
 Wal. 499 & seq.; Nat. Bk. v. Comm'th, 9 Wal. 353.) 
 
 And it is not competent even to a State Legislature 
 to impose a tax upon the corporate franchise itself, be- , 
 longing to a corporation, unless the power to do so be 
 reserved in the charter, because the charter of a private 
 corporation is a contract, and to levy a tax on the fran- 
 chise (in contradistinction to the property) of the corpora- 
 tion, woxild impair the obligation of the contract, which 
 the United States Constitution (Art. I, § X, 1) forbids 
 any State to do. (Ang. & A. Corp. 427; Rex v. St. 
 Luke's Hospital, 2 Burr. 1053; Rex v. St. Bartholo- 
 mews, 4 do. 2435; Rex v. Gardner, Cowp. 79; Stafford- 
 shire, &c.. Canal, 1 T. R. 348-'9; Kmg v. Teignmouth, 
 12 East. 46; Rex v. Mirfield, 10 East. .21&; King v. 
 Hull Dock Co. 5 M. & S. 394; Bank of Watertown v. 
 Assessors, 25 Wigitd^^yWjcMBqfMown v. Prest. Pen. 
 
616 COEPOEATIONS. [bOOK I. 
 
 Bank, 8 Mass. 445 ; Portland Bk. v. Aythorp, 12 Mass. 
 252; Prov. Bk. v. Billings, 4 Pet. 514; Dartm. Coll. v. 
 Woodward, 4 Wheat. 618 ; Worcester v. West. E.. R. 
 Co. 4 Mete. (Mass.) 564; Johns v. Comm'th, 7 Dana 
 (Ky.) 342.) 
 
 And corporations created by the United States as 
 agencies to accomplish the constitutional purposes of the 
 Federal government are not to be taxed by the States, 
 for if that were allowed the action of the Federal au- 
 thority might be pargplyzed. (McCuUoch v. State of 
 Md. 4 Wheat. 316 ; Osborn v. Bk. of JJ. States, 9 
 Wheat. 738; JSTat. Bk. v. Kentucky, 9 Wal. 362; Thomp- 
 son V. Pacific E.. E,. Co. Id. 579.) But the restriction 
 does not extend to a tax on the real property of the bank 
 created by the United States, as a financial agent, nor 
 on any interest in such institution which the citizens of a 
 State may individuaUy possess (Same Cases ; Van Allen 
 • V. The Assessors, 3 Wal. 573 ; People v. The Commis- 
 sioners, 4 Wal. 244; Bradley v. The People, 4 Wal. 
 459; Nat. Bank v. The Comm'th, 9 Wal. 353; Lion- 
 berger v. Bouse, 9 Wal. 468); and the tax on the share- 
 holders may be collected of the bank itsetf, out of the 
 dividends. (JSTat. Bank v. Kentucky, 9 Wal. 362-'3.) 
 There is also a mai-ked distinction between a corpora- 
 tion created by the Federal government for national 
 purposes, and corporations deriving their existence, and 
 exercising their franchises, under authority of State laws, 
 but employed by the national government for certain 
 duties and services. As to the latter, while Congress may 
 exempt them from any State taxation which will really pre- 
 vent or impede such services, yet in the absence of legisla- 
 tion by Congress, to indicate that such exemption is deemed 
 essential to the performance of the governmental services 
 expected from them, it cannot be claimed on the mere 
 ground that the corporation is employed as an agency 
 of the government. And the tax may be either upon the 
 property or business of the corporation ; but of course not 
 on any instrumentalities or means of the government in 
 the possession of such corporation. (Nat. Bk. v. Oom'th, 
 9 Wal. 353 ; Thomson v. Pac. E. E. Co., 9 Wal. 579 ; 
 West. U. Tel. Co. v. Eichmond, 26 Grat. 30 & seq.) 
 
 And so, on the other hand, it is not competent to Con- 
 gress to impose a tax on any necessary and direct agency 
 of the States, in the administration of their reserved 
 powers, e, g. upon the salaries of judges (Collector v. 
 Day, 1 Wal. 113, 124) ; although a tax upon banks in- 
 corporated by a State, notwithstanding they may be 
 needful a^!^^e^^^S«^^ernments in respect to 
 
CHAP. XVIII.J OOKPOEATIONS. 517 
 
 their financial system, is held to be constitutional. 
 (Yeazie Bank v. Fenno, 8 Wal. 533.) The principle re- 
 mains, however, and is acknowledged by the Supreme 
 Court of the United States, that it is as important to 
 
 . leave the rightful powers of taxation unimpaired in the 
 States as to maintain the powers of the Federal govern- 
 ment in theii' integrity. (Osborne v. Mobile, 16 Wal. 
 479,481.) 
 
 Where a State government, in creating a corporation, 
 exempts its property from taxation, no tax can be con- 
 stitutionally imposed, either upon its personal or real 
 property required for the successful prosecution of its 
 business, nor upon ii6 franchise, which also is Hb property. 
 But such a restriction upon the State's power of taxation, 
 in general so impolitic, must be clearly and unambigu- 
 ously set forth, in order to prevail. (U. S. Const. Art. 
 I, § X, 1 ; Home, &c. v. Eouse, 8 Wal. 438 ; Wash. 
 Univ. V. Bouse, Id. 440 ; Wilmington K. R. v. Reid, 13 
 Wal. 266-'7; Ealeigh & Gaston E. B. Co. v. Beid, Id. 
 270; Antoni v. Wright, 22 Grat. 833; Binghamptoh 
 Bridge, 3 Wal. 75.) 
 
 2*. Flace of a Corporation, as respects its Capacity to con- 
 duct hisiness elsewhere. 
 
 A corporation can have no legal actual existence be- 
 yond the limits of the sovereignty which created it. 
 Existing only in contemplation, and by force of the law, 
 it can have no absolute and independent being where 
 that law ceases to operate. It must dwell in the place 
 of its creation, and cannot migrate to another sovereignty. 
 But it does not follow that its existence in its ovra. proper 
 habitat may not be recognized in other places. It can do 
 no acts either within or without the State which creates 
 it, except such as are authorized by its charter ; and those 
 acts must also be done as tU charter directs. And if the 
 charter, by a just construction of its terms, does not 
 permit the corporation to exercise its powers beyond the 
 limits of the State, all contracts made and acts done in 
 other States are ultra vires and void. But if there be in 
 the charter no restriction of locality in the exercise of 
 its faculties, its residence in one State no more hinders its 
 contracting in another than it would in the case of a 
 natural person. The only questions are, whether the act 
 or contract be within the legitimate scope of the corporate 
 functions of the body politic; and that being resolved 
 affirmatively, whether, secondly, the act, &c., is permitted 
 by the policy of the laiv of that country where it takes place. 
 It is doubtless competent to the State to prohibit any 
 foreign corT^igItiSSd<t)}^MmrQSe^i)2tB or to transact busi- 
 
618 COEPOEATIONS. [bOOK I. 
 
 ness within its limits, but such rigor would be seldom 
 warranted by prudence, and would be wholly Opposed to 
 the usual comity which is observed between the coun- 
 tries of the world. By virtue of that comity, every 
 country is presumed to sanction all transactions of foreign 
 persons, natural or artificial, which occur within it, and 
 which it does not expressly and plainly prohibit ; which 
 is, indeed, no more than recognizing the laws of another 
 sovereignty, as in general civilized countries always do. 
 And if this princij^le ^prevail, as it does, between coun- 
 tries wholly independent of one another, it cannot be 
 less ti'ue as between these States, which are united by so 
 many and such intimate ties of business and political 
 association. (Bank of Augusta v. Earl, 13 Pet. 519, 588, 
 &c. ; Tombigbee E. K. Co. v. Kneeland, 4 How. 16 ; La- 
 fayette Ins. Co. V. French, 18 How. 405 ; St. Louis v. 
 Ferry Co. 11 Wall. 429 ; Bank of Marietta v. Pindall, 
 2 Hand. 466; Taylor v. Bank of Alexandi'ia, 5 Leigh, 
 475; Silver Lake Bank v. North, 4 Johns. C. R. 3T2.) 
 
 The acqviisition of lands by foreign corporations, like 
 other transactions, is regulated by this principle. And 
 in Vil-ginia it is believed that there is no other restric- 
 tion than that which applies to domestic corporations as 
 well, namely : that " 'So incorporated company shall hold 
 any more real estate than is proper for the purposes for 
 which it is incorporated, nor employ its capital, money, or 
 effects, or otherwise engage in transactions or business 
 not proper for thoge pm-poses. One company shall not 
 subscribe to the stock of another, unless it be specially 
 allowed by law." (Y. C. 1873, c. 56, § 2, 3; Banks v. 
 Poiteaux, 3 Band. 136. ) 
 
 Since the local sphere within which a corporation may 
 exercise its functions, and the functions themselves, de- 
 pend on the terms of the charter, that must always be 
 consulted in order to determine the question of where it 
 may act and what it may do. Thus, if a college be es- 
 tablished in a designated town, it has not the power to 
 institute another seminary elsewhere as a branch of itself. 
 (People V. Trustees of Geneva College, 5 Wend. (N. Y.) 
 211 .) And as it is in the discretion of every State to allow 
 or prohibit foreign coi-porations to operate within its juris- 
 diction, so it may prescribe such conditions as it shall 
 think fit, one of which may be, and sometimes is, that the 
 corporation shall consent to be s\ied there, which consent, 
 indeed, is to be p^esmned from its doing business there. 
 (Lafayette Ins. Co. .v. French, 18 How. 406 ; Bait. & O. 
 E. E.. Co. V. Harris, 12 Wall. 81 : Liverpool Ins. Co. v. 
 Mass. 10 yM0m(f>y Microsoft® 
 
OHAP. XVIII.J 00EP0EATI0N8. 519 
 
 It should be observed that a corporation, although it 
 may have a quasi habitat or residence, yet cannot he a 
 citizen, and therefore cannot claim the benefit of that 
 clause of the United States Constitiition (Art. lY, § ii), 
 which declares that " The citizens of each State shall be 
 entitled to all privileges and immunities of citizens in 
 the several States." (Bank of Augusta v. Earle, 13 
 Pet. 586 ; Paul v. Virginia, 8 Wal. 177, 179 ; Ducat v. 
 Chicago, 10 Wal. 415.) 
 
 Two or more States may concur in creating corpora- 
 tions having the same name, composed of the same mem- 
 bers, clothed with the same identical capacities and 
 powers, and intended to accomplish one and the same 
 object — e. g., the Chesapeake and Ohio Railroad Com- 
 pany, which is chartered by the States of Virginia and 
 West Virginia; but they are, notwithstanding, distinct 
 corporations, neither having any existence outside of the 
 State which created it, although each may exercise its 
 faculties and corporate powers within all the States con- 
 cerned, by consent of the government of those States re- 
 spectively. (Ohio & Miss. K. K. Co. v. Wheeler, 1 
 Black, 286; Insur Co. v. Francis, 11 Wall. 216; Eail- 
 road Co. v. Harris, 12 Wall. 65 ; Railway Co. v. Whit- 
 ton, 13 Wal. 283-4 ; Bait. & O. R. R. Co. v. Gallaher, 
 12 Grat. 658. But see Phila. Wil. & Bait. Railroad Co. 
 V. Maryland, 10 How. 392.) 
 3*. Place of Corporations, as respects their Capacity to 
 Sue and be Sued when it depends on Residence or Citi- 
 zenship. 
 
 For purposes connected with the jurisdiction of the 
 Federal courts (which have cognizance of controversies 
 '■'■between citizens of different States^'' &c. U. S. Const. 
 Art. Ill, § ii, 1), a coi'poration, although proper I3' not a 
 citizen at all, yet is deemed a citizen of the State which 
 created it, and no averment or proof of the citizenship 
 of its menihers elsewhere to repel the jurisdiction, will 
 avail (Louisville, C. ifc C. R. R. Co. v. Letson, 2 How. 
 497 ; Marshall v. Bait. & O. R. R. Co. 16 How. 329 ; 
 Ohio & Miss. R. R. Co. v. Wheeler, 1 Black. 297; 
 Railway Co. v. Whitton, 13 Wal. 583) ; although prior 
 to 1844 it had been persistently held that, in order to 
 entitle a corporation to sue or be sued in the Federal 
 courts, under the provision in question, every corporator 
 must be a citizen of some State other than that of which 
 the other party was a citizen. (Strawbridge v. Curtis, 
 3 Cr. 267; Bank of U. S. v. Deveaux, 5 Cr. 84; Bank 
 of Vicksbm-g v. Slocomb, 14 Pet. 60.) 
 
 In a StaKgijiJz»t( J^ jVtoiydsOft® depends on residence. 
 
520 COEPOEATIONS. ' [bOOK I. 
 
 it is presumed that, in the absence of a statutory rule, 
 the corporation would be considered to reside in that 
 county or city wherein is its principal office, or wherein 
 its operations are conducted ; or if its operations are not 
 limited, and there is no principal office, then in any 
 coimty or city in the State. (Ang. & A. Corp. 82, n 1 ; 
 1 Hawks. (N". C.) -±22); But in Yirginia we have a statu- 
 tory rule (V. C. 1873, c. 165, § 1, (cl. 2), § 2,) which 
 directs that a corporation may be sued in any county or 
 city wherein is its principal office, or wherein its princi- 
 pal officer, or his substitute, &c., resides, or wherein the 
 cause of action, or part of it, arose. 
 2". The Organization of Corporations. 
 
 In order to unfold the doctrine touching the organiza- 
 tion of corporations, we are to advert to, (1), The accept- 
 ance of the charter by the corporators; (2), Proof of ac- 
 ceptance of the charter; (3), Attributes or incidents of a 
 corporation at common law; (4-), Admission and election 
 of members and officers; (5), Disfranchisement of mem- 
 bers, and amotion of officers; and (6), Subscription for 
 and assessment upon shares in joint-stock companies ; 
 W. C. 
 1*. The Acceptance of the Charter by the Corporators. 
 
 A majority in interest of a duly constituted meeting of 
 the corporators must accept formally, or by implication, 
 the provisions of the charter, which is in the nature of a 
 contract. At least there must be such consent signified in 
 the case oiprimte corporations, und j>erh(^s, also, it may be 
 required in the case of toiais. (Ang. & A. Corp. 67-'8 ; 
 Eex V. V. Chan. Cambridge, 3 Burr. 361 ; King v. Pass- 
 more, 3 T. E. 40 ; Eex v. Askew, 4 Burr. 2199 ; Dartm. 
 Coll. V. ^Voodward, 4 Wheat. 518 ; Grays v. T. Pike Co. 
 4 Eand. 578 ; Eiddle v. Locks, &c. of Mass. 169, 184 ; 
 Ellis V. Marshall, 2 Mass. 269, 276, 277.) 
 2'*- Proof of Acceptance of Charter.- 
 
 K the particular charter were a^jpUed for, its acceptance 
 is presumed. And so if the charter itself declares the 
 corporation to be a corporate lody. (Ang. & A. Corp. 69.) 
 Hence, in charters granted by the Circuit Court, upon ap- 
 plication, the applicants constitute a corporation as soon as 
 the certified copy is delivered to the Secretary of State, 
 and is lodged in the office of the Secretary of the Com- 
 monwealth. (V. C. 1873, c. 57, § 60.) 
 
 Where certain acts preliminary to organization are re- 
 quired, — e. g., notice of the meeting of corporators for the 
 purpose, &c. — these acts must be proved (Grays v. T. Pike 
 Co. 4 Eand. 579 ; Owing v. Speed, 4 Wheat. 420 n) ; but 
 they may beD^Wzedf /pye*twwptiy*^^ as well as by direct 
 
OHAP. XVIII.j OOEPOEATIONS. 521 
 
 evidence, as by showing that at the first meeting officers 
 were duly elected, and that thenceforward for twenty years 
 the proceedings of the corporation had been regularly 
 conducted. (Middlesex Husbandmen v. Davis, 3 Mete. 
 (Mass.) 133.) 
 
 In general, the proof of acceptance of an original charter 
 should be by the corporate records, and if they exist, by 
 them aloiie; but it seems not absolutely indispensable to 
 produce the records. The acceptance may be shown by 
 the corporation having acted under the charter. (Grays v. 
 T. Pike Co. 4 Eand. 580 ; Crump v. U. S. Mining Co. 7 
 Grat. 352 ; Kussell v. McLellan, 14 Peck. 63 ; Middlesex 
 Husbandmen v. Davis, 3 Mete. 133 ; U. S. Bank v. Dand- 
 ridge & als, 12 Wheat. 64, Yl ; Eex v. Hughes, t B. & 
 Cr. (14 E; C. L.) 708.) 
 
 In case of an amended charter, the acceptance may be 
 shown by any acts of recognition by the corporators law- 
 fully assembled, or by their lawful agent for that purpose ; 
 e g., the directors, &c (Dartm. Coll. v. Woodward, 4 
 Wheat. 688.) And so necessary is the acceptance of an 
 amended or modified charter, that even under the power 
 reserved to repeal, alter or modify the charter of a pri- 
 vate corporation, whilst the Legislature may repeal the 
 charter at its pleasure, it cannot modify it without the 
 consent of the corporation; although, if it refuses to con- 
 sent, it must cease its operations as a corporate body. 
 (Teaton v. Bank of Old Dominion, 21 Grat. 598-'9.) 
 
 Acceptance of an original charter cannot be partial, nor 
 for a limited time, nor conditional; but as to an amended 
 charter, it is said to be otherwise. (Hex v. Passmore, 3 
 T. K. 240; Eex. v. Amery, 1 T. E. 589; Eex v. Cam- 
 bridge 3 Burr. 1656; Eex v. Basey, 4 M. & S. 255.) 
 
 Individual corporators are bound, in the acceptance of 
 
 a charter, original or amended, by the act of the majority, 
 
 where there is no fraud. (Currie v. Mut. Ins. Co. 1 H. & 
 
 M. 315.) 
 
 3*. Attributes or Incidents of a Corporation at common law. 
 
 These attributes are tacitly, and by implication, annexed 
 to every corporation as soon as created, without any ex- 
 press grant, although they may be more or less circum- 
 scribed by the charter itself, or by the general law. At 
 present if will suffice merely to name them, ; they will be 
 discussed more at large in speaking of the powers of cor- 
 porations. (1 Bl. Com. 475-'6; Ang. & A. Corp. 83; Y. 
 C. 1873, c. 56, § 1; Post, p. 534-'68.) 
 W. C. 
 1". To have Perpetual Succession. 
 
 ISTot that all SH&^mM^sMmMl^^ave perpetual sue- 
 
622 COEPOKATIONS. [bOOK I. 
 
 cession, but all possess the capacity to have it, if the au- 
 thority which creates them shall think fit to bestow it. 
 (1 Bl. Com. 475.) 
 2". To have a Common Seal, and change the same at plea- 
 sure. 
 
 The common seal authenticates the expression of the 
 aggregate corporate will, and was for many ages deemed 
 the only mode of doing so. This doctrine, however, is much 
 broken in upon in England, and in the United States is 
 wholly discarded, corpprations being allowed to express 
 the corporate ■nn.ll, not only by the common seal, but also 
 by a vote of a majority of the corporators at a lawful meet- 
 ing, and entered upon their corporate records ; by a vote 
 of a majoj'ity of directors, entered on the directors' min- 
 utes; by agerits duly appointed; and 'by accepting the 
 henefit of the contract, or otherwise ratifying it. (1 Bl. 
 Com. 475, &n (5); V. C. 1873, c. 56, § 1; Dunn v. Eec- 
 tor, 14 Johns. 118; Bank of Columbia v. Patterson, 7 
 Cr. 305; Legrand v. Sidney, 5 Munf. 324; Fleckner v. 
 U. S. Bank, 8 Wheat. 338 ; Burr v. McDonald, 3 Grat. 
 215; Eureka Co. v. Bailev Co., 11 Wal. 491; Andover, 
 &c., T. Pike Corp'n v. Gould, 6 Mass. 40.) 
 3*. Power to Contract and be Contracted with. 
 
 The only restriction is that the subject of the contract 
 shall not be ' beyond the scope of the purpose for which 
 the corporation was created, and shall not be prohibited 
 either by the charter or by general law. (1 Bl. Com. 475, 
 484; Bac. Abr. Corp. (C) 23; Ang. & A. Corp. 209, &c., 
 205, &c., 233, &c., 257, &c.) 
 4*^. Power to Take, Hold, Transmit in Succession, and to 
 Alienate Property, and to do all similar acts just as a 
 natural person may. 
 
 But by the statutes of mortmain in England, it is pro- 
 vided, that if any corporation purchase lands without a 
 license from the Crov:n, they shall be forfeited. And in 
 Virginia it is enacted that no corporation shall hold any 
 more lands than are allowed by charter, or if the charter 
 be silent, than are required by the objects of the corpora- 
 tion; but it is not said what shall be the consequence of 
 violating the prohibition. It is presumed, however, that 
 the lands Sive forfeited to the Commonwealth. (1 Bl. Com. 
 475, & n (4); Y. C. 1873,. c. 56, § 2, 3; 2 Insts. Com. & 
 Stat. Law, p. 585, c. xviii.) Bat see Banks v. Poiteaux, 
 tiaux, 3 Rand. 141; 1 Lom. Dig. 13, 4. 
 6". Power to make By-laws for the government of the Cor- 
 poration. 
 
 They must be consistent ^^-ith the laws of the land, and 
 Digitized by Microsoft® 
 
OHAP. XVIII.] COEPOBATIONS. 523 
 
 of course conformable to the charter. (1 Bl. Com. 475 ; 
 V. C. 1873, c. 56, § 1.) 
 6". Power to Sue, aud to be Sued. 
 
 A corporation may sue for every possible cause of ac- 
 tion or suit which it can have, and in like manner may 
 be sued for every one which can exist against it. (1 Bl. 
 Com. 476 ; Stor. Confl. L. § 565.) 
 7"^- Power to Remove Members and Officers. 
 
 This power is limited in respect to removal of members, 
 to those corporations whose membership supposes no pro- 
 perty interests to be concerned. (2 Kent's Com. 224; 
 Ang. & A. Corp. 83.) 
 4''^. Admission and Election of Members and Officers; 
 W. C. 
 1". Admission of Members. 
 
 The mode of admitting members is generally determined 
 by the charter. If that be silent, a distinction is to be 
 noted between corporations for business purposes on one 
 side, and other corporations, religious, scientific, political, 
 or social, on the other. In the former, no vote of admis- 
 sion is generally needful. Every one who owns stock, 
 whether by original subscription, or by conveyance or 
 transfer, is entitled to the rights of membership ; but the 
 transfer miist be attested by the book of the company in 
 which the transfers are recorded. In the latter class of 
 corporations, in the absence of any directions in the char- 
 ter, members are admitted by vote of the company, taken 
 like any other vote. (Ang & A. Corp. 88-'9.) 
 %". Election of Officers. 
 
 The mode of electing officers is as the charter pre- 
 scribes, (e. ^., by a vote of the corporation in lawful meet- 
 , ing assembled, by the board of directors, or by a select 
 committee); or if the charter is silent, then by a vote of 
 the company taken like any other vote ; or the corporation 
 , may, by a by-law, devolve the election of officers, or any of 
 them, upon a select body, if not inconsistent with the 
 charter. (Ang. & A. Corp. 90, &c.) 
 
 No one, in general, can be elected to a corporate office 
 in reversion, and it is therefore essential that there shall 
 be a vacancy. Plence, where an officer is illegally re- 
 moved, and another elected in his place, upon the restora- 
 tion of the former by writ of mandainus, the latter's 
 election is ipso facto vacated. (King v. Mayor of Col- 
 chester, 2 T. R.'280; Colt v. Bishop of Coventry, Hob. 
 ■150; The King v. Smith, 2 M. & S. 407; Bm-r's Ex'ors 
 V. McDonald, 3 Grat. 215.) 
 
 If a day be appointed by the charter for the election 
 of officers, or a miUm<imvlW^m^S^, the election may 
 
524 0OEP0KATI0N8. [bOOK I. 
 
 notwithstanding be validly made after that day, or after 
 that hour, at a reasonable time, the designation of the 
 time being merely directory. Nor need the person elected 
 be then present, if near enough to enter upon the duties 
 of the office. (Foot v. Mayor of Truro, 1 Stra. 625 ; S. C. 
 2 Stra. 697 ; Kex v. Poole, 7 Mod. 195 ; Kex v. Courtenay, 
 9 East. 261; Atto. Gen. v. Scott, 1 Yes. Sen. 415; People 
 V. Kunkle, 9 Johns. 147; King v. Mayor, &c., of Norwich, 
 IB. & Ad. (20E. C.L.) 310.) 
 
 If the charter pre^ribes no form or mode of election, 
 every candidate must be proposed and elected singly, and 
 not all by one vote; for in the latter method, each elector, 
 in order to get in some particular person, may compromise 
 his opinion as to the others, and thus persons may be in- 
 troduced who are not the choice of a majority. (Rex v. 
 Monday, Cowp. 639.) But see Queen v. Brightwell, 10 
 Ad. & L. (37 E. C. L.) 171.) 
 
 When the meeting to elect officers is properly consti- 
 tuted, whoever has a majority of all the votes cast, whether 
 it be a majority of those present or not, is elected, supposing 
 there be nothing in the charter to the contrary. If the 
 members neglect to vote, it is their own default, and does 
 not invalidate the act of the others. And so it is, although 
 those who do not vote protest against an election at that 
 time altogether. So also, if a majority of the electors 
 bestow their votes upon one whom they know to be un- 
 qualified, the votes given after they are made acquainted 
 with the disqualification are thrown away, and the minority 
 who vote for a qualified person will elect their man. (Rex 
 V. Eoxcroft, 2 Burr. 1020-'21 ; S. C. 1 W. Bl. 229 ; Cla- 
 ridge v. Evelyn & als, 6 B. & Aid. (7 E. C. L.) 81, 86 ; 
 King V. Parry, 14 East. 561 ; Eing v. Hawkins, 10 East. 
 211 ; King v. Bridge, 1 M. & S. 76.) 
 
 To vote iy proxy is not a right generally existing at 
 common law, as incident to all corporations. It may per- 
 haps belong of right to shareholders in joint stock compa- 
 nies; but in corporations where no property attaches to 
 members, and in all cases where a personal trust is to be 
 exercised, it exists only where given by the charter, or 
 possibly by a by-law of the company. (2 Kent's Com. 294 
 n; Atto. Gen'l V. Scott, 1 Ves. Sen'r, 417; Phillips v. 
 Wickham, 1 Pai. (N. Y.) 590.) 
 
 The person to vote upon shares is generally the party 
 named on the company^ s books as the shareholder. Hence, 
 it is said the mere tenant for years of the shares cannot 
 have the privilege; and hence, too, trustees who are 
 charged with the management of the subject, possess it; as 
 does the plM'0f'md^(Mim^§S^^i the hypothecation, 
 
CHAP. XVIII.J OOEPOEATIOJSrS. 525 
 
 until it is actually transferred to the pledgee. (Ang. & 
 A. Corp. 97, & seq.) 
 
 To choose too many persons as officers vitiates the 
 whole election ; whilst an election of too few is good as far 
 as it goes, and requires only to be supplemented as to the 
 additional persons. (Ang. & A. Corp. 100, 101.) 
 
 The reception of illegal votes does not necessarily avoid 
 an election, but it must appear that to exclude the illegal ' 
 votes would have produced a different result (Exp. Mur- 
 phy, 7 Cow. (IST. Y.) 153; In re Chenango Mut. Ins. Co. 
 19 Wend. (IST. Y.) 635.) On the other hand, where votes 
 are erroneously rejected, the only remedy is to set the elec- 
 tion aside, not to regard them as received, and given to the 
 contestant. (Ang. & A. Corp. 103.) 
 
 Where the charter pronoimces an irregular election 
 void, no formality or proceeding is required to annul it ; 
 but in the absence of such a provision in the charter, an 
 irregular election is not void, but voidable only, remain- 
 ing in force until it is annulled by judicial sentence. 
 Hence, where a majority of the votes are given to an in- 
 eligible candidate, of whose disqualification, however, no 
 express notice is given to the voters, a party having the 
 minority of the votes is not duly elected, but if declared 
 so, and he accepts the office, he can only be removed by 
 judicial proceedings. (Ang. & A. Corp. 102-'3.) 
 
 Any de facto officer of a corporation, claiming to have 
 authority, and allowed for a long time to act as such, 
 must be presumed rightfully in office, without further 
 proof, and his acts are, in general, binding upon the body 
 accordingly. (Bk. of U. States v. Dandridge, 12 Wheat. 
 79; Burr v. McDonald, 3 Grat. 215.) 
 
 There seems to be no legal reason forbidding the in- 
 spector of a corporate election to be voted for at it, his 
 office, it is said, being purely ministerial, and not judicial; 
 yet it is surely undesirable, on moral grounds, that one 
 appointed to secure a fair expression of opinion, and to 
 certify it, should himself be one of the parties interested. 
 (Ang. & A. Corp. 105-'6.) 
 
 Officers elected for a certain term hold over, it seems 
 
 by the common law, until their successors are chosen and 
 
 qualified, independently of any provision to that effect in 
 
 the charter, although such provisions are generally in- 
 
 . serted. (2 Kent's Com. 238.) 
 
 5*. Disfranchisement of Members, and Amotion of Officers ; 
 W. C. 
 1*. Disfranchisement of Members. 
 
 In case of corporations owning property divided into 
 shares, no sEdg&zAd^)^MMsdft<Se expelled for any cause 
 
526 coRPOBATioifs. [book I. 
 
 whatsoever, unless it be specially so provided in the 
 charter; but as by purchase of stock he becomes a mem- 
 ber, so by transferring it he ceases to be such, without 
 the concurrence of the corporation in either case, save to 
 record the transfer of the shares. (Davis v. Bk. of Eng- 
 land, 2 Bingh. (9 E. C. L.) 393; Aug. & A. Corp. 406, 
 & seq.) 
 
 But in case of corporations of a different character — 
 e. g., municipal, religious, benevolent, scientific, &c., 
 where there is no specific share of property vested in each 
 corporator, disfranchisement may take place as incident 
 to the very nature of the corporation, and as being the 
 consequence of a breach of the conditions tacitly annexed 
 to every such franchise, for every infamous offence of 
 which the corporator shall be convicted in due course of 
 law, and for every act contrary to his duty as a corporator. 
 (Bex V. Richardson, 1 Burr. 538-'9; Ld. Bruce's case, 2 
 Stra. 819; Com'th v. St. Pat. Soc, 2 Binn. (Pa. 448, 441; 
 Rex V. Andover, 3 Salk. 229 ; Rex v. London, 2 Lev. 201 ; 
 Rex V. (xuildford, 1 Lev. 162; Rev. v. Rogers, 2 Ld. 
 Raym. 177; Comm'th v. G-uardians of Poor, 6 Serg. & R. 
 (Pa.) 469.) 
 
 It is a dictate of natural justice that no one shall be con- 
 demmed unheard, "not founded in book-learning," as a 
 great jurist has observed, "but engraved upon the heart." 
 (Ld. Camden in Shipley's case, 5 Campb. Lives of Chan'rs, 
 289; Acts xxv. 16; John vii. 51); and hence, no pro- 
 ceeding to expel a member can be had until he has been 
 duly notified to appear. He is not disfranchised ipso facto, 
 upon the occurrence of a delinquency, but must be regu- 
 larly convicted thereof, after having a reasonable oppor- 
 tunity to defend himself. (Baggs' case, 11 Co. 99 a; 
 Rex V. Richardson, 1 Burr. 540; Rex v. Liverpool, 2 
 Burr. 731 ; Innes v. Wylie, 1 Carr. & Kirw. (47 E. C. L.) 
 257 ; Rex v. Lynne Regis, 1 Dougl. 174 ; Rex v. Faver- 
 sham, 8 T. R. 256; Harman v. Tappenden, 1 East. 562; 
 Com'th V. Penn. Ben. Instit., 2 Serg. & R. 141.) This 
 principle is much insisted upon, and never relaxed where 
 rights are in question. Simamary as are the proceedings 
 against an attorney at law charged with impropriety of 
 conduct, yet before a judgment disbarring him can be 
 rendered, he should have, says the Supreme court of the 
 United States, "notice of the grounds of the complaint 
 against him, and ample opportunity of explanation and de- 
 fence. This is a rule of natural justice, and should be 
 equally followed when proceedings are taken to deprive 
 him of his right to practise his profession, as when they 
 are taken tfDf^fi^^Wy^mkf&sm^onal property. And 
 
CHAP. XVm.J COBPOEATIONS. 527 
 
 such has been the general, if not the uniform practice of 
 the courts of this country and of England. There may 
 be cases, iindoubtedly, of such gross and outrageous con- 
 duct in open court, on the part of the attorney, as to jus- 
 tify very summary proceedings for his suspension or 
 removal from office ; but even then he should ie heard 
 hefore he is condemned. The principle that there must 
 be a citation before hearing, and hearing, or opportunity 
 of being heard hefore judgment, is essential to the security 
 of all private rights. Without its observance, no one 
 would ie safe from oppression, wherever power may be 
 lodged." {Ex-p. Eobinson, 20 Wal. 512; Bradley v. 
 Fisher, 13 Wal. 354; Exf. Bradley, 7 Wal. 375; Ex:p. 
 Garland, 4 Wal. 378.) 
 2". Amotion of Officers of Corporations. 
 
 The power to amove officers, unless restrained by the 
 charter, is, from the necessity of the case, as much inci- 
 dent to a corporation as the power of making by-laws. 
 (Ld. Bruce's case, 2 Stra. 819 ; Rex v. Kichardson, 1 Burr. 
 539 ; Rex v. Lynne Regis, 1 Dougl. 149.) If the officer 
 be a ministerial one, holding during pleasure, he may, in 
 general, be removed without notice or trial, and is, in fact, 
 removed by the appointment of a successor. But if he 
 holds during good behavior, or for a,Jixed term, he can only 
 be removed after summons, and after having had license 
 and opportunity to answer for himself. (Warren's case 
 3 Cro. (Jac.) 540; Middleton's case, 3 Dy. 332 b n (28) 
 Rex V. Thame, 1 Stra. 115; Ld. Bruce's case, 2 Stra. 819 
 Rex. V. Richardson, 1 Burr. 539 ; King v. Lynne Regis, 
 1 Dougl. 149. See Burr v. McDonald, 3 Grat. 106.) 
 
 The causes for which an officer may be removed are 
 stated in the cases just cited, and Aug. & A. Corp, 415. 
 See also Regina v. Truebody, 2 Ld. Raym. 1275 ; King v. 
 Lynne Regis, 1 Dougl. 158 ; King v. Mayor, &c. of Ports- 
 mouth, 3 B. & Cr. (10 E. C. L.) 152; Regina v. Bailiffs 
 of Ipswich, 2 Ld. Raym. 1233, 1237 ; Rex v. Mayor, &c. 
 York, Id. 1566 ; Rex v. Chalke, 1 Ld. Raym. 226 ; Rex 
 V. Corp'n Wells, 4 Bm-r. 2000 ; R. v. Mayor of Andover, 
 3 Salk. 229; Rex v. Taylor, 3 Salk. 231.) 
 
 The causes for which he may not de removed are illus- 
 trated in Symmer's case, Cowp. 502 ; King v. Williams, 2 
 M. & S. 144; Rex v. Mayor, &c., Leicester, 4 Burr. 2087, 
 2003 ; Rex v. Chalke, 1 Ld. Raym. 226 ; Reg. v. Mayor 
 &c. Ipswich, 2 Do. 1238 ; Rex v. Taylor, 3 Salk. 231.) 
 
 As to the resignation of a corporate officer, wtiich may 
 be either express or implied, see Ang. & A. Corp. 424, &c. 
 6*. Subscription for, and Assessment upon, Shares in Joint 
 Stock Comp®/^f /zed by Microsoft® 
 
528 COKPOKATI0N8. [bOOK I. 
 
 A subscription for shares in a joint-stock corporation is a 
 contract, for wHch in a company already existing the con- 
 sideration to the subscriber is the interest he acquires in 
 the franchises, and to the company, the money paid, or 
 liabilities assumed by the shareholder. In a corporation 
 not yet organized, the consideration to each subscriber is the 
 mutual obligation of the other subscribers, whereby a con- 
 tract results amongst the individuals until the corporation 
 is organized, and then, it is said, with the corporation ; but 
 as to the latter proposition qucere ! , The capital subscribed 
 for is, with us, usually payable in instalments, and as each 
 instalment may be separately recovered when it falls due, 
 the statute of limitation attaches to each one from that 
 time. (Ang. & A. Corp. 474 & seq.) 
 
 In Virginia some provision by statute exists designed to 
 regulate such subscriptions, at least where the charter is 
 obtained from the Legislature, and before the stock is sub- 
 scribed ; for in the case of charters granted by the Circuit 
 courts, the subscriptions needful to organize the associa- 
 tion are contemplated as made before the charter is applied 
 for, the registry thereof with the Secretary of the Com- 
 monwealth consummatiug the organization. (V. C. 1873, 
 c. 57, § 59, 60.) Sometimes legislative charters declare 
 certain persons a corporation for certain pm-poses, but 
 where there is no provision to the contrary iu the charter, 
 the general law dii'ects that the commissioners named in 
 act of incorporation to receive subscriptions shall give 
 thirty days' notice of the times and places for opening the 
 books of subscription, and shall keep them open for ten 
 days, and longer if need be. The shares are to be $100 
 each, payable, in case of a hank of circulation, $10 per 
 share at the time of subscribiug, 825 immediately after the 
 election of the first board of directors, $25 thii-ty days 
 thereafter, and of the remaining $40, $20 in three, and 
 $20 in six months after such election. In the case of any 
 other corporation, $2 per share is to be paid at the time 
 of subscribing, and the residue as may be requii-ed by the 
 president and dii-eetors. The sums payable at the time of 
 subscribing ai-e paid to the commissioners. The commis- 
 sioners at th6 place first named in the charter, as soon as 
 sufficient stock is subscribed, are to give notice thereof in 
 a newspaper for not less'than two weeks, and to call a gen- 
 eral meeting of the subscribers at a certaiu time and place, 
 not less than fom-teen nor more than tlm-ty days from the 
 fii'it day of such publication. The subscribers, and their 
 personal representatives and assigns, shall stand incorpor- 
 ated fi-om the time of such meeting, unless the meeting it- 
 self determin©/^|fe^3K8,|fiM;c^sd*®L873, c. 67, § 1 to 6.) 
 
CHAP. XVIII.J COEPOEATIONS. 529 
 
 And in case of charters granted by the circuit courts, the 
 company stands incorporated as soon as the copy certified 
 by the circuit coui-t clerk is lodged with the Secretary of the 
 Commonwealth to be recorded. (V. C. 1873, c. 57, § 60.) 
 
 The subscription being a contract, it cannot be cancelled 
 without the consent of the other party or parties thereto, 
 unless it be provided in the charter. (Ang. & A. Corp. 
 477-'8.) And where at the time of the subscription there 
 is not only no company organized, but no charter, it seems 
 that the corporation subsequently created can have no 
 privity with the subscribers, and can maintain no action 
 on such subscription, for loant of mutuality. (But see 
 Griffin v. Macaulay, 7 Grat. 476.) The suit should be on 
 the part of the individual subscribers, to whom expressly or 
 impliedly the promise was m law made. And as the sub- 
 scription alone, without mutuality, does not create a bind- 
 ing obligation, so also, if the charter prescribe, or if a gen-- 
 eral statute prescribe, (as in Virginia we have seen that it 
 does,) certain payments to be made at the time of subscrib- 
 ing, such payment is a condition precedent, and indis- 
 pensable in order to make the subscription valid, and so 
 in case of any other condition precedent. (Thames Tun- 
 nel Co. V. Sheldon, 6 B. & Cr. (13 E. C. L.) 341 ; Ang. 
 & A. Corp. 478 & seq.) 
 
 It follows, also, from the subscription being a contract, 
 that a fraud practised by the other party thereto, or at his 
 iustance, in order to obtain it, renders it voidable by the 
 subscribers. (Centre & K. T. Pike Co. v. McConeby, 16 
 Serg. & R. 142.) 
 
 There seems to be no reason that the personal repre- 
 sentative of a subscriber should not be bound on his con- 
 tract of subscription as well as on any other contract ; and 
 the case of Weald of Kent Can. Co. v. Robinson, 5 Taunt. 
 801, sometimes vouched to prove the contrary, is miscon- 
 ceived; Nor can there be any reasonable doubt that the 
 original subscriber is, at common law, liable for all the in- 
 stalments agreeably to his contract, notwithstanding he 
 may have assigned his stock before the call is made, or the 
 instalment otherwise becomes due, unless the company ac- 
 cept the assignee in lieu of the subscriber; and the case 
 sometimes cited to the contrary (Huddersfield Can. Co. v. 
 Buckley, 7 T. E.. 36) was decided upon the special provi- 
 sions of the charter. At all events, in Virginia, by statute, 
 the assignee and assignor are each liable for any instal- 
 ment already accrued, or thereafter to accrue; and that 
 even though the company consent to the transfer, although 
 the company might doubtless, by an unambiguous manifes- 
 tation of anQB^fetzfed(qb3e3Mffl!eDeBl®/?<i»ie original subscriber, 
 34 
 
530 COEPOEATION^S. TbOOK I. 
 
 discharge him, so far as the company itself is concerned, 
 but not to the prejudice of its creditors. (V. C. 1873, c. 
 57, § 26. 29.) 
 
 A stockholder who has given a stock-note to the corpora- 
 tion for the pui'chase-money of the stock, cannot, upon the 
 insolvency of the company, transfer his stock, even with 
 the consent of the directors, to an in-esponsible person, 
 and so, by substituting that person's note for his own, 
 evade his liability. That would be virtually to withdraw 
 so much of the capital of the corporation, and so to preju- 
 dice either the creditors, who to that extent must go un- 
 paid, or his fellow-members in like predicament with him- 
 self, who, having given stock-notes, will then have to pay 
 a larger proportion thereof. (Nathan v. "Whitlock, 9 Pai. 
 (N. T.) 152.) 
 
 Any radical or even any material change in the charter, 
 seriously prejudicial to the shareholder's interest, and with- 
 out his consent, absolves him from all liability to pay sub- 
 sequent assessments. (Ang. & A. Corp. 483, &c.; Hart- 
 ford & X. H. R. K. Co. V. Croswell, 6 Hffl (X. Y.), 383; 
 Middlesex T. Pike Co. v. Swan. 10 Mass. 384; Same v. 
 Walker, Id. 390. But see London & B. E. Co. v. Wilson, 
 6 Bingh. X. C. (37 E. C. L.) 135.) 
 
 Where a corporation is empowered to increase its capital 
 stock, each shareholder, in the absence of any provision in 
 the act allowing the increase, is entitled to his proper pro- 
 portion of the benefit thence arising, either by increasing 
 proportionably the number of his shares, or by enjoying the 
 profit arising fi-om their sale at a premium, and if denied 
 this right by the coi-poration or its officers, he may main- 
 tain a special action of assumpsit against the corporation 
 for the loss he may thereby sustain. (Gray v. Portland 
 Bank, 3 Mass. 364.) 
 
 It seems to be the prevailing doctrine that where the 
 subscription is for a given number of shares, and it is by 
 statute allowed to the company to seU the shares if the 
 subscriber is delinquent (the statute giving no personal 
 remedy against him, nor he himself expressly promising to 
 pay the same), no action lies to recover assessments or in- 
 stalments from time to time duly demanded, nor is there 
 any other remedy than the statutory one of selling the 
 shares. In order to warrant a personal demand, and ac- 
 tion, in such cases, it is said there must be an engagement 
 to pay all legal assessments upon the shares. (Andover T. 
 P. Co. V. Gould, 6 Mass. 40; Same v. Hay, 7 Mass. 102; 
 N. Bedford T. P. Co. v. Adams, 8 Mass. 138; Franklin 
 Glass Co. V. White, 54 Mass. 286: Eipley v. Samson, 10 
 Pick. 371-'2^/g/(Hfl§',te^fe'9§9,Sf^#ot in accordance with 
 
CHAP. XVIII.J COEPOEATIONS. 531 
 
 the ordinary analogies of the law. The allowance of a 
 special remedy in the absence of negative words not usually 
 dispensing with the common law remedial processes. Ac- 
 cordingly, in many of the States the remedy by a sale of 
 the shares is merely cumulative, and does not impair the 
 common remedy by action against the subscriber's person. 
 (Berne v. Cahawba, &c., E. E. Co., 3 Ala. (N. S.) 660; 
 Highland T. P. Co. v. McKean, 11 Johns. 89 ; Herkimer 
 M. & H. Co. V. Small, 21 Wend. 273; Troy T. P. & E. E. 
 Co. V. McChesney, Id. 296 ; Grat v. Eedd, 4 Monroe (Ky.), 
 103; Instone v. Bridge Co., 2 Bibb. 577; Tar Eiv. Nav. 
 Co. V. Neal, 3 Hawks. (N. C.) 520.) In Virginia all doubt 
 is removed by statute, which declares that if the money 
 due on the shares subscribed be not paid by the stock- 
 holder, as requ.ii'ed by the president and directors, it may 
 be recovered with interest, by warrant, action, or motion, 
 or the shares may be sold, after notice in a newspaper for 
 one month, at public auction, for ready money; and if 
 there be no sale for want of bidders, or the sale shall not 
 produce enough to jjay the charges and the money which 
 ought to be paid, with interest, the company may recover 
 the residue, with interest, by warrant, action or motion. 
 (V. C. 1873, c. 57, § 23, 25; Grays v. T. Pike Co., 4 Eand. 
 683-'4:.) 
 4*- The Powers and Modes of Action of Corporations. 
 
 We are to contemplate, under this head, (1), The modes 
 of action of corporations; (2), The powers of corporations; 
 and (3), The disabilities of corporations; 
 W. C. 
 1". The Modes of Action of Corporations. 
 
 The action of corporations universally takes place in, or in 
 pursuance of orders of corporate meetings; in respect to which 
 it is a rule that they must be (1), held at the proper "place, (2), 
 at the proper time, (3), after proper notice, and (4), must con- 
 sist of proper persons, governing their action by proper rules; 
 W. C. 
 1^. The Time of Meeting. 
 
 In order to guard against surprise, the meetings are re- 
 quired to be held either at times appointed by the charter 
 or by-laws, or at times of which the several corporations 
 shall be duly notified. (Eex v. May, 5 Burr. 2682; Eex 
 V. Hill, 4 B & Cr. (10 E. C. L.) 426 ; Eex v. Liverpool, 2 
 Burr. 731 & seq ; Eex v. Doncaster, Id. 744.) 
 
 In Yirginia we have some statutory directions which 
 must be noticed. We have already seen how. the sub- 
 scribers are to be notified of the first meeting for organiza- 
 tion. The annual meeting is to be held on the day pre- 
 scribed by law, &igftizie>ai^^MipresoM^d, on the day ap- 
 
632 coEPOEATioifs. [book I. 
 
 pointed from time to time, by the stockholders, in general 
 meeting; and a general meeting may be held at any time 
 upon the call of the board of directors, or of stockholders 
 holding together one-tenth of the capital stock, upon their 
 giving notice of the time and, 'place of such meeting for 
 ihirly days in a newspaper published in or near the place 
 where the last annual meeting was held. (Y. 0. 18T3, c. 
 57, § 8 to 11.) 
 2'i- The Place of Meeting. 
 
 The place of meeting is either such as is appointed by 
 law or by the charter, or such (being reasonable and pro- 
 per) as shall be made known to the corporators a reason- 
 able time beforehand. (Ang. & A Corp.; E,ex v. May, 5 
 Burr. 2682.) 
 
 In Vii'ginia we have statutes regulating the place as well 
 as|the time, for the meetings of joint-stock companies. 
 
 The place of the meeting for organization has been pre- 
 viously noticed. The place for the annual meeting is j&xed 
 from time to time by the directors, and notice published 
 for two weeks in a newspaper. The provisions for a place 
 for any general meeting have been described under the fore- 
 going head. (V. C. 1873, c. 57, § 8, 9, 10.) 
 3'i. The Notice of the Meeting. 
 
 Where times and places are appointed for the meetings 
 by law or by charter, or by by-law or usage, every member 
 is presmned to know them, and no special notice is requisite. 
 But if the business to be done is such as is not ordinarily 
 transacted at such meetings, notice that it is to be brought 
 up is necessary, — e. g. the election or amotion of an officer, 
 or the enactment of a by-law, &c. ; and in the absence of 
 such notice, the transaction of business of that kind is 
 illegal, unless all the corporators are present, and all assent. 
 (Kex V. Liverpool, 2 Burr. 731, &c.; K.ex v. Doncaster, Id. 
 744: ; King v. Theodorick, 8 East. 545 ; Eang v. Gaborian, 
 11 East. 77; Kex v. May, 6 Burr. 2682; King v. Faver- 
 sham, 8 T. K. 356 ; King v. Langhorn, 4 Ad. & El. (31 
 E. C. L.) 538; Burr v. McDonald, 3 Grat. 315.) 
 
 The summons must proceed from some one who has au- 
 thority to assemble the corporators, and must be served 
 personally upon every resident member, or if non-resident, 
 tfpon an agent, or must be left at his dwelling, save in those 
 cases where a service through the newspapers is expressly 
 allowed. (King v. Gaborian, 11 East. 86, n ; King v. HiU, 4 
 B. & Or. (10 E. C. L.) 441 ; V. C. 1873, c. 57, § 8, 9,10.) 
 4*. The Persons who should compose the Meeting, and the 
 Rules which should govern their Action. 
 
 The persons to compose the meeting aa-e, of course, the 
 corporators ^t^itk&ol ^yoMfeyqisaadB^he proportion of mem- 
 
CHAP. XVm.J COEPOEATIONS. 533 
 
 bers which shall coiiBtitute a lawful meeting (which is styled 
 a quorum), and also the proportion of those present on any 
 occasion, which shall determine the loill of the body, may 
 be, and generally are, ascertained by the charter, or by a 
 general law. Thus, in Virginia, by Statute (V. C. 1873, 
 c. 57, § 11), the quorum of any joint-stock company, other 
 than a bank of circulation, is a majority of all the votes that 
 can be given by all the stockholders, and of a bank of cir- 
 culation, any number of a lawful meeting that may be present. 
 The statute does not dii-ect by what proportion of the votes 
 present the will of the meeting shall be determined. The 
 rule of the common law, which is applicable wherever the 
 charter and the statutes are silent, is that, where the corpora- 
 tion consists of a definite number of persons (such as rail- 
 road and turnpike companies, banks, &c.), there mifet be 
 present persons who can give a majority of all the votes 
 which could be given by all the members ; and a majority 
 of the votes given in such a meeting determines the action 
 of the corporation. And where the corporation is com- 
 posed of an indefinite number of persons (such as cities, 
 towns, &c,), any portion of the body, however small, if it 
 be didy assembled, forms a quorum, or legal corporate meet- 
 ing, and a majority of the votes given in such meeting pre- 
 vails. (Bac. Abr. Corporat. (E) 7.) 
 
 Where a corporation consists of several distinct parts 
 (often called integral parts), there must be present at a cor- 
 porate assembly a proper quorum, according to the forego- 
 ing principles, of each integral part (Kins; v. Bellringer, 
 ■4 T. E. 822, & seq.; King v. Devonshire, IB. & Cr. (8 E. 
 C. L.) 609 ; King v. Morris, 4 East. 26 ; King v. Thornton, 
 4 East. 294); and upon like principles, if an act is required 
 to be done by the mayor and aldermen, or by the president 
 and directors, the mayor, in the one case, and the president, 
 in the other, is an indispensable part of the meeting, and 
 all that is done in his absence is void. (King v. Buller & 
 al, 8 East. 389 ; King v. Williams, 2 M. & S. 141 ; 7 Cow. 
 526.) 
 
 In reckoning the votes, it is most natural and just to al- 
 low one vote to each share, thus giving to each stockholder 
 a weight of influence proportioned to his interest, a prin- 
 ciple not admissible in. political societies, for several reasons, 
 and amongst others, because those societies have other in- 
 terests it) protect and cherish besides those of property, and 
 because, moreover, the single vote of the property holder 
 generally controls other votes besides, thus indirectly en- 
 duing him with a weight in some degree corresponding 
 with his property-interests. But it has not been usual in 
 Yirginia to wfe^^X<Mc/E@s@g;® share, although in an 
 
534: COBPOEATIONS. [bOOK! I. 
 
 increasing number of charters, including all granted by 
 the circuit courts, it is so provided. (V. C. 1873, c. 57, § 
 62.) In all cases, however, where it is not otherwise pro- 
 vided, the vote is scaled (as it is called) as follows: Each 
 stockholder gives one vote for each share not exceeding ten, 
 and one vote for every four shares exceeding ten. And it 
 should be added, that when a vote is offered at any meet- 
 ing upon stock transferred within sixty days before the 
 same, if any one present object to the vote it shall not be 
 counted, unless the stockjiolder makes oath that the stock 
 on which he offers to vote is held bona fide, and not by a 
 transfer made with intent to multiply votes illegally. (Y. 
 C. 1873, c. 57, § 12, 13.) 
 
 The books and minutes of a corporation are usually 
 satisfactory, but not conclusive evidence of what they con- 
 taia ; and so documents to which the corporate seal is at- 
 tached are, upon proof of the seal, for the most part stif- 
 ficiently authenticated, but the seal is not conclusive. (Grays 
 V. T. Pike Co. 1 Rand. 578, 581-'2.) 
 
 The recording ofiScer of a corporation may certify copies 
 of its records, and his certificate is evidence of the verity 
 of such copies, but not of facts connected with the corpora- 
 tion. (Oakes v. HUl, M Pick. 442.) 
 2". The Powers of Corporations. 
 
 The powers of corporations, as well at common law as 
 
 in Virginia, may be satisfactorily exhibited under the heads 
 
 following, viz: 
 
 1. The Power of ha^-ing Perpetual Succession; 
 
 2. The Power of having a Common Seal, and Ch&nging 
 
 it at pleasure ; 
 
 3. The Power of Contracting and being Contracted with ; 
 
 4. The Power of Taking, Holding, Transmitting and 
 
 Alienating Property, and otherwise acting in such 
 matters like a Natural Person ; 
 
 5. The Power of Suing and being Sued; and 
 
 6. The Power of Making By-Laws, not contrary to the 
 
 laws of the land: to which Chan'r Kent proposes 
 to add, 
 
 7. The Power to Pemove Members and Officers. 
 
 These powers, even at common law, are tacitly incident 
 to every corporation, so far as they are not restrained by the 
 charter, althijugh no mention of them be made. (1 Bl. Com. 
 475 ;^ (Y. C. 1873, c. 56, § 1 ; Sutton's Hospital, 10 Co. 30 
 b; ]S^orris v. Staps, Hob. 211 a); 
 W. C. 
 l"*. Power to have Perpetual Succession. 
 
 Although everv corporation possesses the capacity to have 
 pei-petual svic£^Mie0(^Mim>^^Wit, it is, in fact, gene- 
 
CHAP. XVIII.] CORPOEATIONS. 535 
 
 rally limited in its duration, either by the charter or by 
 general law. Thus, in Virginia, mining and manufaGtur- 
 ing companies are limited to a period of thirty years, and 
 cease to exist at any time upon four-fifths of the stock 
 falling into the hands of less than live persons, or upon 
 more than one-half remaining for more than six months the 
 property of one person. (V. 0. 1873, c. 57, § 38, 30.) 
 And there is, moreover, reserved- to the Legislature the 
 power to alter, amend or repeal the charter of a mining or 
 manufacturing company after fifteen years, or the charter 
 of any other than an internal improvement company after the 
 same period, and of an internal improvement company, or 
 of any company chartered by the circuit court, &c., at 
 pleasure. (V. C. 1873, c. 57,' § 38, 64 ; Id. c. 56, § 1.) 
 
 See further as to the power of the State over internal 
 improvement companies, (V. C. 1873, c. 61, § 55 to 61.) 
 
 And let it be remembered, that whilst the charter of 
 every private corporation is a contract, and so, in pursuance 
 of Art. I, § X, 1, of the United States Constitution, cannot 
 be altered or otherwise impaired vnthout the consent of 
 the corporators (in the absence of any authority reserved 
 in the charter so to do), yet that does not prevent a State, 
 in the exercise of its right of eminent domain, from abolish- 
 ing the corporation, or appropriating its franchise, like any 
 other property of individuals, when necessary for the 
 public advantage, upon providing a just compensation to the 
 corporation. (Terrett v. Taylor, 9 Cr. 62 ; Dartmouth 
 Coll. V. Woodward, 4 Wheat.' 518, 526 ; James Eiv. & K. 
 Co. V. Thompson, 3 Grat. 270.) 
 
 A question has been made by an eminent jurist (1 Tuck. 
 Com. 162, B. I), as to the character oi a, fee-simple estate in 
 lands granted to a corporate body whose duration is 
 limited to a few years; but there seems to be no diificulty 
 in apprehending that the fee-simple passes, according to 
 law, to the assigns of the corporation at its dissolution. 
 The estate remains, although the artificial person who first 
 enjoyed it has ceased to exist. (2 Bl. Com. 108; V. C. 
 1873, c. 112, § 8.) 
 2"^. Power to have a Common Seal, and to change the same 
 at pleasure. 
 
 Blackstone states that a corporation can bind itself no 
 otherwise than under its corporate seal, and that doctrine is 
 fully sustained by the case of Taylor v. Dulwich Hospital, 
 1 P. Wms. 655; but it has been much qualified of late 
 years in England (London Dock Co. v. Sinnot, 8 El. & Bl. 
 (92 E. C. L.) 351; Nicholson v. Bradfield Union, 1 Q. B. 
 (Law Peps.) 620, 622, and cases there cited and mar- 
 shalled), an^j^ti^ ^JiMc^t^' l^^s been quite super- 
 
536 COEPOBATIONS. [bOOK I. 
 
 seded. The American doctrine is, that a corporation may 
 bind itself — 
 
 1. Under its corporate seal; 
 
 2. By vote of a majority of the corporators, entered in 
 the corporation records, at a lawful meeting ; 
 
 3. By vote of the directors duly taken, and entered in 
 their minutes — or perhaps not written; 
 
 4. By agents duly appointed, whose authority may be 
 proved by any satisfactory or competent evidence ; or, 
 
 5. By accepting, knowingly, the benefit of the contract, 
 or otherwise ratifying it. 
 
 See Legrand v. H.^S. College, 6 Munf. 324; The Banks 
 V. Poiteaux, 3 Eand. 143; 2 Kent's Com. 290-'91, & n (b); 
 B'k of Columbia v. Patterson, 7 Cr. 305 ; Dunn v. Rector, 
 &c., 14 Johns. 118 ; Fleckner v. B'k of U. S. 8 Wheat. 338 ; 
 Eureka Co. v. Bailey Co. 11 "Wal. 491 ; Burr v. McDonald, 
 &c., 3 Grat. 215; Bac. Abr. Corp. (D). 
 
 At common law, the seal of a corporation, like that of 
 an individual, can be nothing else than an impression on 
 wax, loafer, or some other tenacious material, and not directly 
 on the paper or parchment. (Ang. & A. Corp. 186; 2 
 Hill (IST. Y.) 228-'9; 3 Hill, 494-'5.) It need not, how- 
 ever, be its own seal, for sealing is eera sigillo impressa; 
 and, as is remarked in Sheppard's Touchstone, if the party 
 seal with a stick, or any such like thing, which doth make 
 a print, it is good. And although it be a corporation that 
 doth make the deed, yet they may seal with any other seal 
 besides their common seal, and the deed never the worse. 
 (Shep. Touchst. 57; Perk. Sect. 134; MiU Dam Foundry 
 V. Hovey, 21 Pick. (Mass.) 428.) See also Eureka Co. v. 
 Bailey Co., 11 Wal. 491.) 
 
 In Virginia, it is enacted (Y. C. 1873, c. 15, § 9, cl. 12), 
 that in cases where the seal of any court or public office 
 shall be required to be affixed to any paper, the word 
 "seal" shall include the impression of the ofiicial seal made 
 upon the poper alone, as well as one made by means of a 
 wafer, or of wax affixed thereto ; and it is quite usual for 
 even private corporations to assume that this relaxation 
 applies to them. Such a construction seems hardly war- 
 ranted, and it is beheved that instruments thus executed 
 cannot be deemed sealed instruments. There is yet another 
 statute (V. C. 1873, c. 140, § 2), which declares that "any 
 writing to which the person making it shall affix a scroll by 
 way of seal, shall be of the same force as if it were actually 
 sealed." And this, if it stood alone, might tend to justify 
 the assumption that a corporation (which is a person, V. C. 
 1873, c. 15, § 9, cl. 18), may employ such a scroll as a seal; 
 but in the sQ^tke&rity (MMasoSp^oyision that "in any 
 
CHAP. XVIII.J OOEPOEATIOlfS. 537 
 
 case in which the seal of any natural person shall be re- 
 quired to a paper, it shall be sufficient for such person to 
 affix to such paper a scroll by way of seal" (V. C. 1873, c. 
 15, § 9, cl. 10), whence it is inferred that the word person, 
 in the enactment under consideration (V. C. 1873, c. 140, 
 § 2), does not include artificial persons, and consequently 
 that a corporation can use no other than the common law 
 seal, or impression upon wax, &c. 
 
 The seal is to be affixed as the charter prescribes, or if 
 the charter be silent, by the person whom the by-laws or 
 the resolution of the proper authorities shall designate. 
 (Ang. & A. Corp. 190 ; Hill v. Manchester, &c. Water- 
 Works, 5 B. & Ad. (27 E. C. L.) 866; Burr v. McDonald, 
 3 Grat. 255.) Hence, whilst the corporation seal affixed 
 to a document by the officer having the legal custody of it 
 is prima facie to be presumed to have been rightly affixed 
 (Clarke v. Imp'l Gaslight Co., 4 B. & Ad. (24 E. C. L.) 31 5), 
 yet if it be proved not to have been done by proper autho- 
 rity, or that it was to be delivered only on conditions, &e., 
 which did not exist, it will have no validity as a sealed 
 instrument. (Ang. & A. Corp. 193-4.) 
 
 An agent can only execute a sealed instrument for a 
 natural person in that person's presence, or by virtue of a 
 sealed authority; but in the case of a coiyoration aggregate, 
 it is of necessity sufficient to authorize the agent to affix 
 the corporate seal hy vote ; for as the seal could only be 
 put to the power of attorney by vote, it may as well be put 
 hy vote to the contract itself. (Burr v. McDonald & als, 
 3 Grat. 235 ; Ang. & A. Corp.) 193.) 
 
 For the formal mode of executing the deed of a corpora- 
 tion, see Ang. & A. Corp. 194 & seq ; Grayd. Forms, 103 ; 
 Woodmass v. Mason, 1 Esp. 53 ; Moises v. Thornton, 8 
 T. K. 303. 
 
 Lastly, upon this topic, the agent who executes the deed 
 of a corporation, in its name, is " the party executing the 
 deed,^'' who is to acknowledge the same within the statutes 
 of registry. (Ang. &, A. Corp. 195 ; Y. C. 1873, c. 117, 
 § 2, 3.) 
 3''. Power to Contract, and be Contracted with. 
 
 A corporation possesses inherently the power, whether 
 named in the charter or not, to make any lawful contract 
 not forbidden by the charter, which is necessary, either di- 
 rectly or incidentally, to enable it to accomplish the pur- 
 poses for which it was created. (Ang. & A. Corp. 233.) 
 Upon such contracts no personal liability attaches at com- 
 mon law to the individual corporators, — a particular where- 
 in there is a marked diversity between corporations and 
 general partS^i^f g';^JK'M««Se6>^glaw accords with that of 
 
638 COBPOEATIONS. [bOOK I. 
 
 Rome. (1 Bl. Com. 484 ; Edmunds v. Brown & al, 1 
 Lev. 337 ; Dig. Lib. Ill, Tit. 4, § 7.) 
 
 Let us note then, (1), The modes in which a corporation 
 may contract ; (2), With whom and in what manner a cor- 
 poration may contract ; (3), What contracts a corporation 
 may make ; and (4), The appointment of an agent by a 
 corporation. 
 W. C. 
 1^. The Modes in which a Corporation may Contract. 
 
 It may contract, so as to bind itself, not only under the 
 corporate seal, but in the United States in four other 
 modes, as described, Ante p. 636. 
 
 The. members of a corporation aggregate, being many, 
 are constrained to make their contracts either by agents 
 or by vote ; and they cannot give their consent separately 
 and individually, so as to oblige the body, but must do 
 it in general meeting, lawfully assembled. (1 Bl. Com. 
 476 ; Soc. of Pract. Knowl. v. Abbott, 2 Beav. Ch. E. 
 (17 Eng. Ch.) 659 ; Ang. & A. Corp. 204-'5.) 
 2®. With whom, and in what Manner, a Corporation may 
 Contract. 
 
 A corporation may well contract with one of its own 
 members ; and if several corporations consist of tke sams 
 persons, they may yet validly contract as between them- 
 selves. (Ang. & A. Corp. 205-'6.) 
 
 The name by which a corporation contracts ought to be 
 its true name, of which, however, enough has already 
 been said. (Bac. Abr. Corp. (C) 2, 3 ; Culpeper Man'g 
 Soc. V. Digges, 6 Band. 167 ; Mayor, &c. of Lynne Regis, 
 10 Co. 126 a ; Moyle Finch's case, 6 Co. 65 a & b.) 
 
 2Iutuality, valuable consideration, and all the other 
 elements necessary to the legality of the contracts of na- 
 tural persons, are in . like manner necessary in the con- 
 tracts of corporations. (Ang. & A. Corp. 231-'2.) 
 3*^. What Contracts a Corporation may make. 
 
 In general it may make any contract not prohibited by 
 its charter, and necessary, directly or incidentally, to en- 
 able it to accomplish its corporate pui'poses. And may 
 bind itself to perform such contracts at any place. (Ang. 
 & A. Corp. 233-'4, 255.) 
 
 A corporation limited in its transactions to a certain 
 locality cannot make a valid contract beyond the limits 
 assigned. (Korn v. Mut. Ass. Soc. 6 Cr. 199 ; Ang. & 
 A. Corp. 236-'7.) 
 
 A municipal corporation cannot divest itself, by con- 
 tract, of the power of legislation conferred for the public 
 weal, by the charter, although the city may be liable in 
 damages foc/^feS'aK^^lM^cJkifitgreement. (Gozzler v. 
 
CHAP. XTin.J COEPOEATIONS. 539 
 
 Corp. Georgetown, 6 Wheat. 593 ; Presb. Ch. v. N. York 
 City, 5 Cow. (N. Y.) 538 ; Coates v. Mayor of N. Y. 7 
 Cow. 604; City of Richmond v. Richmond & D. R. R. 
 21 Grat. 607 & seq.) 
 
 Restrictions upon a corporation, in respect to the mak- 
 ing of contracts within the scope of its general purposes, 
 are not favored. (The Banks v. Poiteaux, 3 Rand. 141 
 & seq.) 
 
 Although legislative acts divesting a corporation of any 
 rights with which it is clothed by charter, such as a right to 
 make certain designated contracts, a right to be exempt 
 from taxation, &c., are void under the United States Con- 
 stitution, as impairing the obligation of contracts (Home of 
 Friendless v. Rouse, &c. 8 Wall. 430, 438, 439, and cases 
 cited 438, n*), yet except to that extent they are like na- 
 tural persons, liable to be restrained by statutes from mak- 
 ing certain contracts which before were not illegal. And 
 in general, whatever is forbidden, in the way of contract, 
 to natural persons, it is safe to assume is forbidden to 
 corporations as well. (Rex v. Gardner, Cowp. 84, &c. ; 
 Ang. & A. Corp. 239-'40.) 
 
 Thus, usury is as much forbidden to be practised by a 
 corporation as by a natural person ; but in Yirginia, by 
 special statutory provision (Y. C. 1873, c. 57, § 39 ; Id. 
 c. 56, § 36), usury is declared to be not available as a de- 
 fence, to any '■^incor'poration" which includes towns as well 
 as incorporated companies. And this provision repels 
 the defence of usury by a corporation, even as to con- 
 tracts made hefore the date of tlie statute. (DanviUe v. 
 Pace, 25 Grat. 1.) The language of the statute is, " Wo 
 incorporation shall hereafter interpose the defence of 
 usury in any action; nor shall any bond, note, debt, or 
 contract of such corporation be set aside, impaired or ad- 
 judged invalid by reason of any thing contained in the 
 law prohibiting usury." It was no violent interpretation 
 to regard this language as applicable to existing contracts, 
 but it may be permitted to doubt whether the Supreme 
 court of the United States would not deem such a statute 
 within the policy and intent of the constitutional prohibi- 
 tion of laws impairing the obligation of contracts. 
 
 And so, also, a corporation may be as much entitled to sal- 
 vage for sa-sdng vessels, &c., in distress, as natural persons. 
 (The Island City, 1 Black. 129; The Caraanche, 8 Wal. 
 474, &c.) And so, when the law prohibits the issue of bills 
 as currency by any but authorized banks, a municipal 
 and every other corporation is included in the prohibition, 
 and the holder of such bills cannot recover upon them. 
 (Thomas v. CityC!|^;j^bft6j«fl*ycASs5S^- 349.) On the 
 
540 COEPOEATIONS. [BOOK I. 
 
 other hand, an effect is allowed, in some instances, to 
 contracts of corporations, apparent from considerations of 
 a general convenience, and from usage, which does not 
 belong to the contracts of natural persons. Thus, coupon 
 honds of corporations, payable to hearer, are now, by un- 
 questioned usage throughout the United States, recognized 
 as negotiable — that is, as transferable merely by delivery, 
 and so transferable as to vest in the transferee a legal 
 title; and so likewise are the coupons attached to such 
 bonds, as well after th^y are separated from the bonds, 
 and in the hands of a different holder, as wliilst they con- 
 tinue united therewith. (White v. Vermont & Mass. E. 
 E. Co. 21 How. 577 ; Comm'rs v. Aspinwall, Id. 546 ; 
 Gelpcke v. Dubuque, 1 Wal. 206 ; Mercer Co. v. Hackett, 
 Id. 95 ; Thompson v. Lee Co. 3 Wal. 331-'2 ; Aurora 
 City v. West, 7 Wal. 105.) 
 
 It is the policy of Yirginia (and of many other of these 
 States) to prohibit any company other than a banking 
 company of its own incorporation, from circulating within 
 its limits, as currency, any note, bill, or other paper or 
 thing, or otherwise carrying on business as a hank of cir- 
 culation. All contracts connected with such dealings 
 are declared to be void, and the capital of such companies 
 is forfeited to the Commonwealth. (V. C. 1873, c. 60; 
 Wilson V. Spencer, 1 Kand. 76.) Hence, as we have 
 seen, if a inunicipal corporation, having no such hanking 
 power, issue bills as currency, there can be no recovery 
 upon them (Thomas v. City of Eichmond, 12 Wal. 349); 
 and so, also, if a foreign hank of circulation lends its bills 
 in Yirginia, and take a note or other security therefor, 
 the contract of loan and the security are voidable under 
 this statute ; but if the bills be lent to a citizen of Vir- 
 ginia beyond the limits of the Commonwealth, and 
 where the transaction is not illegal, the contract is not 
 within the prohibition of the statute, and is unimpeach- 
 ble. (Bk. of Marietta v. Pindall, 2 Eand. 474; Eees v. 
 Couococheague Bk., 5 Eand. 329 ; Hamtramck v. Selden 
 & als, 12 Grat. 30, 31.) And where the original con- 
 tract (such as a loan) is legal, any transaction incidental 
 thereto (such as a mortgage or deed of trust), although 
 made in a State whose laws would have f oi-bidden the 
 primary contract to be made within its limits, is also legal. , 
 Thus, a Pennsylvania bank ha\dng, at its own hanking 
 house, lent its own bills to a citizen of New York, which 
 it afterwards secured by a mortgage on the debtor's lands 
 in New York, the courts of the latter State enforced the 
 mortgage. (Silver Lake Bk. v. North, 4 Johns. C. E. 
 370.) " Digitized by Microsoft® 
 
CHAP. XTIII.J COBPOEATIOHS. 541 
 
 Whilst in general a corporation, where the charter is 
 silent, may make any contract which may be proper for 
 the purpose for which it wste created, and none other (Y. 
 C. 1873, c. 56, § 2 ; Bronghton & als v. Manchester, &c.. 
 Water Works Co., 3 B. & Aid. (5 E. C. L.) 1; Meyer v. 
 City, of Muskatine, 1 Wal. 391), yet there are some trans- 
 actions which, by charter or by general statute, are spe- 
 ciallj' prohibited to corporations, as in Virginia, to sub- 
 scribe to the stock of another company, or otherwise ac- 
 quire it, except as specially allowed by law, or as security 
 for, or inpayment of, a debt (Y. C. 1873, c. 56, § 2, 3); 
 And in case of corporations created by the circuit court, 
 to make a lien, to. prefer one or more creditors to others 
 (except to secure a debt contracted or money borrowed 
 at the date of the lien), it being declared that all such 
 liens of preference, except as above, shall enure to the 
 benefit ratably of all the existing creditors. (Y. C. 1873, 
 c. 56, § 63.) This statute seems to have been suggested by 
 the ease of Burr's Ex'ors v. McDonald & als, 3 G-rat. 215, 
 which allowed such a preference; and of course it is to 
 be construed with reference to the bankrupt law, whose 
 pohcy it tends to support. 
 
 A corporation, as we have seen, must dwell in the 
 place of its creation, and cannot migrate to another sov- 
 ereignty ; but it may, by its agents, enter into any contract, 
 abroad, which its own charter and the local law may permit. 
 And it is assumed that the local law permits every transac- 
 tion which it does not expressly or impliedly forbid. Thus, 
 the Bank of Augusta, located at Augusta, Georgia, by its 
 agent, having purchased a bill of exchange in Mobile, 
 Alabama, for $6,€00, drawn ia favor of and endorsed by 
 one Earle, and the bill being protested for non-payment, 
 instituted suit thereon against Earle ; and it was held by 
 the Supreme Court of the United States, that as the 
 charter of the bank permitted the transaction, and as 
 nothing appeared in the laws of Alabama adverse to it, 
 it was legal and valid, and that the bank should recover. 
 (Bank of Augusta v. Earle, fa Pet. 586. See, also, 
 Tombigbee K.. E.. Co. v. Kneeland, 4- How. 16; Lafayette 
 Ins. Co. V. French, 18 How. 405; St. Louis v. Ferry Co., 
 11 Wal. 439.) 
 4*. Appointment of an Agent by a Corporation. 
 
 It is plain that a corporation aggregate can contract 
 and act no otherwise (at least as to the preliminary nego- 
 tiations) than by the intervention of agents, either specially 
 designated by the charter, or appointed by the corpora- 
 tion, in pursuance thereof. 
 
 The power ^i^i^m%^fmPbsWfm^''^''J ot^^^r power, 
 
\ 
 
 542 coEPOEATioirs. [book I. 
 
 abides with the body of corporators, unless the charter or 
 some general statute otherwise directs. And upon the 
 maxim delegatus non*potest delegare, the directors or other 
 agents cannot appoint sub-agents, unless the power be ex- 
 pressly conferred by the charter, by general statute, or by 
 the corporators in general meeting. (Aug. & A. Corp. 
 25T-'8; Lyon v. Jerome, 26 Wend. (N. T.) 485; Tippets 
 V. Walker, 4 Mass. 595; Emerson v. Prov. Hat Man'g 
 Co., 12 Mass. 237; Dana v. Bank of TJ. S., 5 W. & Serg. 
 (Pa.) 247; 6 Gill & J. JMd.) 363; Bm-rill v. Nahant Bank, 
 2 Met. (Mass.) 166-T; King v. Mayor of Gravesend, 2 
 B. & Cr. (9 E. C. L.) 602.) 
 
 Generally speaking, any persons may be appointed 
 agents, including infants, married women, and members 
 of the corporation. The charter may designate certain 
 persons to be exclusively the agents of the corporation for 
 certain purposes; and thus, although those persons may 
 be appelated by the corporators, they derive their autho- 
 rity not by delegation, but from the charter, and in such 
 matters are the sole represmtatiws of the corporation, 
 whose acts are paramount in authority even to the body 
 at large. Thus, when the directors of a banking com- 
 pany are by the charter charged ia this manner with the 
 exclusive management of the institution, the courts will 
 not, at the instance of a majority of the shareholders, 
 interfere with their honest discretion, even though it be 
 injudiciously exercised — as, for example, in the division 
 of the profits. (B'k of U. S. v. Dandridge, 12 Wheat. 
 113; Com'th v. St. Mary's Church, 6 Serg. & K. 508; 
 Dana v. B'k of U. States,' 5 Watts & S. 247; Ang. & A. 
 Corp. 259-'60.) 
 
 On the other hand, no agent can bind the corporation 
 when he exceeds his commission. Thus, the president and 
 cashier cannot generally make contracts discharging the 
 debtors of the bank, nor altering their liability, such 
 functions usually belongiag to the directors alonk (B'k of 
 TJ. S. V. Dunn, 6 Pet. 59; B'k of Metropolis v. Jones, 8 
 Pet. 16) ; nor can the directors, as a general thing, obtain 
 or accept a modification of the charter, or assign the 
 . effects, and wind up the concerns of the corporation, or 
 increase the capital stock, or make any other organic 
 change, without the assent of the shareholders. (Stevens 
 & al V. Davison, 18 Grat. 819; Eailway Co. v. AUerton, 
 18 Wal. 233.) 
 
 It should be observed, that in the case of the pubKc 
 bonds of counties, cities, &c., the T)ona fide holders thereof 
 for value are bound to look no further than to the statute- 
 law under vs^fe/^ feyiflj^j^tciteed. If there are any 
 
OHAP. XVm.J COEPOEATIONS. 543 
 
 restrictions, limitations and conditions prescribed in the 
 act, such bona fide holder has a i-ight to assume that they 
 have been complied with; and if it appears that the 
 public agents have disregarded those conditions, it will 
 not do away with the obligation of the bonds unless the 
 holder was aware of it, in which case he is not a hona fide 
 holder. (Commissioners of Knox County v. Aspinwall, 
 21 How. 545 ; Mercer Co. v. Hacket, 1 Wal. 93 ; Meyer 
 V. City of Muscatine, 1 Wal. 393 ; Turquand v. Eoyal 
 Brit. B'k, 5 El. & Bl. (85 E. C. L.) 259; S. 0. 6 El. & Bl. 
 (88 E. C. L.)331.) 
 
 In respect to the mode of constituting agents of corpo- 
 rations, the common law, as understood in England, re- 
 quires that it should for the most part be hy deed, under 
 the common seal; but even in England the rigor of that 
 doctrine is much abated, and in the United States the 
 doctrine is discarded. The corporation may in this coun- 
 try express its assent to the appointment of agents, not 
 only under the corporate seal, but by a vote of the corpo- 
 ration in lawful meeting assembled, and entered upon the 
 corporate records; by a vote of the directors, entered on 
 their minutes; by the corporate authorities having recog- 
 nized similar previous acts of the supposed agent; or by 
 a subsequent recognition of the agent's authority, either by 
 an express ratification, or impliedly, by taking the benefit of 
 the agent's doings. (B'k of Columbia v. Patterson, 7 Cr. 
 305; Fleckner v. B'k U. S., 8 Wheat. 357; Osborne, &c. 
 V. B'k of U. S., 9 Wheat. 738 ; Dunn v. Eector, &c., 14 
 Johns. 118; Legrand v. H. Sidney Col., 5 Munf. 324; 
 Burr V. McDonald, 3 Grat. 235-'6.) 
 
 The authority to make a deed even, may be conferred 
 by a corporation on its agent by vote of the corporators, 
 notwithstanding the general rule applicable to natural 
 persons requires that authority to execute a sealed instru- 
 ment shall be under seal ; for corporations are incapable 
 of any personal act, and must, in the first instance, direct 
 and assent by vote, which may as well authorize the seal 
 to be affixed to the instrument itself, as to the power 
 directing and allowing it to be executed. (Burr v. Mc- 
 Donald, 3 Grat. 23o-'6.) But let it be observed that the 
 seal to be employed is always to pufport to be the seal of 
 the corporate body — that is, the seal adopted by it, — and 
 not the seal of the agent. (Ang. & A. Corp. 286-'7 ; 
 Jackson v. Walsh, 3 Johns. 225 ; Clark v. Benton Man'g 
 Co., 15 Wend. 256; Kandall v. Yan Vechten, 19 Johns. 
 65; B'k of Columbia v. Patterson, 7 Cr. 304; Dubois v. 
 Del. & Hud. Can. Co., 4 Wend. 285.) 
 
 The proQ©yg|faec*j!B>ototeWSi/?i(i)an agent is usually the 
 
544 COEPOEATIONS. [bOOK I. 
 
 records of the corporation, produced from their proper 
 custodian, who is commonly the secretary ; and where the 
 corporation is the adverse party, if notice be given to pro- 
 duce its records, and they are not produced accordingly, 
 extrinsic testimony may be brought forward to show their 
 contents, or to show that the agent acted puhlicly, as such, 
 or that the corporation knowingly enjoyed the benefit of 
 the transaction, or otherwise ratified it, &c. (B'k of U. 
 States V. Dandridge, 12 Wheat. 83 ; Dunn v. Kector, &c. 
 14 Johns. 118; Ang. & A. Corp. 267 <fe seq.) 
 
 When agents or officers of corporations are required to 
 give bond with sm-eties, it is generally directory only, so 
 that, unless the charter or some general statute otherwise 
 provide, the agent or ofiicer is competent to act, although 
 he has given no bond, and the corporation is responsible for 
 his conduct. (Bank of U. S. v. Dandridge, 12 Wheat. 
 64; U. States v. Van Zandt, 21 Wheat. 184; Peppin v. 
 Cooper, 2 B. & Aid. (4 E. C. L.) 436-'7.) 
 
 Ofiicers of corporations pught of course to be elected 
 as the charter, or the general law, prescribes, or else the 
 election is voidable ; but still, if one comes in under color 
 of right, he is a de facto officer, and his acts and contracts 
 as such will bind the corporation though he be in fact in- 
 eligible, or although there were at the time no vacancy, 
 there being in fact no officer de jure in place. Nay, 
 although never elected at all, yet if the corporation suffer 
 him to act pubKcly as such, so that he acquires the repu- 
 tation of being the officer he assumes to be, his acts as 
 such are obligatory upon the body. (O 'Brian v. Knivan, 
 3 Cro. (Jac.) 552 ; Harris v. Jays, 2 Cro. (Eliz.) 699 ; 
 Baird v. Bank of Washington, 11 Serg. & K..411; King 
 V. Bedford Level, 6 East. 368 ; Parker v. Kett, 1 Ld. 
 Kaym. 600; Burr v. McDonald, 3 Grat. 235, &c.; U. S. 
 B'k. V. Dandridge, 12 Wheat. 70; Minor v. Mechanics 
 Bank, 1 Pet. 46, 70.) 
 
 The duration of an agency or of an office depends on the 
 terms of the appointment, or of the charter, for the most 
 part ; and an agency is as much liable to be revoked as in 
 the case of a natural person, save as in case o"f a natural 
 person, where the power is coupled with an interest, or was 
 given for a .valuable consideration. (2 Kent's Com. 644 ; 1 
 Pars. Cont. 61-'2; Hunt v. Eousmanier, 8 Wheat. 201; 
 Clayton v. Fawcett's adm'r, 2 Leigh, 23 ; Huston v. Can- 
 tril, 11 Leigh, 173; Bac. Abr. Authority (E); Ante p. 
 223-'4, &c.) ^ 
 
 The mode of contracting by officers and agents must con- 
 form to the charter, or to the commission, and if they are 
 sHent, must^^^^^g^ljj^^ijj^^^^d by agents generally, 
 
CHAP. XTin.J C0KP0EATI0N8. 545 
 
 which has already been explained in the chapter, of Master 
 and Servant. {Ante p. 210 & seq. See Head v. Prov. 
 Ins. Co. 2 Cr. 166, &c.; Ducarry v. Gills, 4 Car. & P. 
 (19 E. C. L.) 121 ; N. E. Mar. Ins. Co. v. D'Wolf, 8 
 Pick. 56 ; Mech. Bk. v. Bk. of Columbia, 5 Wheat. 326 ; 
 Bk. of N. Lib. V. Cresson, 12 Serg. & K. 260; Fleckner 
 V. Bank of U. S. 8 Wheat. 338.) 
 
 The time within which certain acts shall be done by 
 officers and agents is sometimes prescribed, but it is merely 
 director}/ in general, and the act may, for the most part, 
 be validly done after the time named. (Atto-G-en. v. Scott, 
 1 Ves. Sen'r, 415.) 
 
 The ordinary proof of the agent's doings varies accord- 
 ing as the agent is a constituted board, or is composed of 
 one or more individuals. In the former case a minute is 
 commonly made and recorded of what they do ; and that 
 is the best evidence of their action, if STich a minute was 
 made; but if not, their action, and in all cases the action 
 of individual agents, must be proved by the most satis- 
 factory evidence that presents itself, as in the other affairs 
 of life (U. S. Bk. V. Dandridge, 12 Wheat. 75 ; U. S. v. 
 Kirkpatrick, 9 Wheat. 720 ; Russell v. McLellan, 14 Pick. 
 63; U. S. V. Van Zandt, 11 Wheat. 184). But although 
 there be in the regulations of the corporate body direc- 
 tions for authenticating the acts of its agents, those di- 
 rections are between the body and the agent, and are not, 
 in general, available between the corporate body and a 
 stranger. (U. S. Bk. v. Dandridge, 12 Wheat 75 ; Bk. 
 of ISf. Liberties v. Cresson, 12 S. & E. (Pa.) 306 ; Rus- 
 sell V. McLellan, 14 Pick. 63 ; Middlesex Husbandmen v. 
 Davis, 3 Met. 133; Chester Glass Co. v. Dewey, 16 
 Mass. 102.) 
 
 As to the mode in which the agent of a corporation 
 ought to frame the contract which he makes as such, the 
 ■ same principles are applicable as in other cases of agency, 
 for which reference is made to the chapter of Master and 
 Servant, {Ante p. 210, & seq. See Hartshorn v. Whit- 
 tles, 3 Munf. 357; Jones v. Carter, 4 H. & M. 184; Mc- 
 Williams v. Willis, 1 Wash. 202; Mar.tin v. Flowers, 8 
 Leigh, 158 ; Earl v. Wilkinson, 9 Grat. 68 ; Stinchcomb 
 V. Marsh, 15 Grat. 209, &c.; 8 Rob. Pr. (2 Ed.) 63, &c.; 
 1 Am. L. C. 604. 
 
 As corporations are only bound by what their agents 
 do within the scope of their authority (Mech. Bk. v. Bk. 
 of Columbia, 5 Wheat. 337 ; Clark v. City of Washing- 
 ton, 12 Wheat. 40; Bk. of U. S. v! Dandridge, Id. 83), 
 it becomes an interesting question what the precise extent 
 of the authorjJj^j^2#94)^M8l?fe)?S)*° ^^® regular officers 
 35 
 
546 COEPOEATIONS. [bOOK I. 
 
 of the association. It is important, therefore, to note that 
 the president is not ex officio the agent of a corporate body- 
 to sell property which the body directs to be sold, and 
 therefore, unless he is appointed to sell, his representa- 
 tions touching the property are not binding on the cor- 
 poration, (Crump V. U, S. Min. Co., 7 Grat. 352); neither 
 has he ex officio power to affix the seal of the corporation 
 to a writing, (Burr v. McDonald, 3 Grat. 235-'6 ; Clarke 
 V. Imp. Gaslight Co. 4 B. & Ad. (24 E. C. L.) 315), nor 
 to draw checks for the corporation monies deposited in 
 bank, (Fulton Bk. v. H. T. & Sharon Can. Co., 4 Pai. Ch. 
 E. (IST. Y.) 127;. Ang. & A. Corp. 292); nor has the 
 president or cashier of a bank power ex officio to transfer 
 or mortgage the property or general assets of the cor- 
 poration, or to charge such assets with any special re- 
 sponsibility, nor to discharge its debtors from their en- 
 gagements, (Hodge V. First ISTat. Bk., 22 Grat. 58, 61; 
 Bk. of U. S. V. Dunn, 6 Pet. 51; U. S. v. City Bk., 21 
 How. 356). When the charter allows the capital stock 
 of a corporation to be increased at the pleasure of the 
 corporation, the directors are not empowered to do it, not- 
 withstanding the charter vests in them " all the corporate 
 powers of the corporation;" for that phrase relates only 
 to the ordinary business of the body, not to organic 
 changes. (R'lway Co. v. AUerton, 18 Wal. 233, 234-'5.) 
 
 On the other hand, the president of a railroad company 
 has ex officio power to contract for labor for the company, 
 in the absence of any contrary provision in the charter or 
 by-laws. (Richm. Fred. & Pot. R. R. Co. v. Snead & 
 al, 19 Grat. 354.) 
 
 The authority ex officio of the cashier of a bank is not 
 fully deiined. See Fleckner v. Bank of TJ. S., 8 Wheat. 
 338, 360-'61; Ang. & A. Corp. 294-'5, 297; Morse on 
 Banks, &c., 137. 
 
 In respect to the extent of the power of boards of bank- 
 directors, which is very comprehensive, see Bank of U. 
 S. V. Dana, 6 Pet. 51 ; Bank of Metrop's v. Jones, 8 Pet. 
 16; Fleckner v. U. S. Bank, 8 Wheat. 338, 355; Ang. & 
 A. Corp. 293-'4.) 
 
 Notice to an agent, or to one of several co-agents, 
 whilst engaged in the transactions of the agency, is notice 
 to the corporation, but not if the notice were received 
 whilst not so engaged. And when notice is thus brought 
 home to the principal, it affects the corporation continu- 
 ously, although its affairs afterwards fall into the hands 
 of different persons wholly unacquainted with the fact in 
 question. (Mech. Bank v. Seton, 1 Pet. 299; Ang. & A. 
 Corp. 300, ^^V;gJ,3lB]p9{^rS§tW®'er Co. v. Robinson & 
 
CHAP. XVni.J COEPOEATIONS. 647 
 
 als, 24 Grat. 553-'4.) So a corporation must abide the 
 consequences of its agent's negligence, and therefore, i£ 
 by reason of tlie default and neglect of such agent, it fails 
 to avail itself of a defence at law, which it might have 
 su.ccessfully asserted, it is not competent to a court of 
 equity to relieve against the judgment thus obtained. 
 (Earl of Oxford's Case, 2 Wh. & Tud. L. C. (Ft. II) 75, 
 & seq., 97, & seq.; Mar. Ins. Co. v. Hodgson, 7 Cr. 332 ; 
 Slack V. Wood, 9 Grat. 40 ; Richmond Enq. Co. v. Rob- 
 inson & als, 24 Grat. 552, &c.) 
 
 In respect to the effect of an official iond, given by the 
 officer of a corporation, and the extent of the obligation, 
 see Minor v. Mech. Bank, 1 Pet. 46 ; Allison v. Farmers 
 Bank, 6 Rand. 204; McGill & al v. U. S. Bank, 12 
 Wheat. 511; U. S. v. Kirkpatrick, 9 Wheat. 720; S. Sa- 
 viors V. Bostock, 2 Bos. & Pd. S". R. 174; Hassell v. 
 Long, 2 M. & S. 363; Peppin v. Cooper, 2 B. & Aid. (4* 
 E. C. L.) 431; Aug. & A. Corp. 312 to 320.) 
 4'^. Power to Take, Hold, Transmit in Succession, and Alien- 
 ate Property, as natural Persons may. 
 
 It is incident to every corporation-aggregate, at common 
 law, to take, hold, transmit in succession, and to alienate 
 property, real and personal; and this power constitutes 
 one great element of the convenience and usefulness of 
 these bodies politic (1 Bl. Com. 468); but experience 
 having manifested the mischief which might ensue if the 
 liberty of acquiring lands, by corporations, were unre- 
 stricted, the common law itself, imitating therein the Ro- 
 man law, did not permit them to become purchasers of 
 lands indefinitely, but only by the royal license. This 
 jealousy was especially directed towards religious corpora- 
 tions, whose powerful influence over the consciences of 
 men, particularly on their death beds, easily prevailed 
 upon them to pm'chase a supposed immunity for sin, by 
 benefactions to the church. Accordingly, the common law 
 being frequently evaded, a series of statutes in England, 
 known as the Statutes of Mortmain, commencing with 
 Magna Oharta (9 Hen. Ill, c. 36,— A. D. 1225j, and 
 reaching down even to 27 Vict. c. 13, (A. D. 1864), forbade, 
 first, religious houses, and then any religious person {i. e., 
 monk-professed or other ecclesiastic), and any corporation 
 to purchase or hold lands by any device whatsoever, 
 without license from the Crown, under penalty of for- 
 feiting them to the king. Singularly ingenious and artful 
 were the means employed by the ecclesiastics to evade 
 these statutes; but as often as they succeeded, parliament 
 promptly supplied the defect; and although the contest 
 was a long oue,-B]0m^^ WBOf^^imP^' ^1 t^^e churchmen 
 
548. COEPOEATIONS. [bOOK I. 
 
 until A.D. 1392, — ^it terminated at length in the triumphant 
 maintenance of the Mortmain policy thi'ough the statutes 
 (after 9 Hen. Ill) of 7 Edw. I, e. 2 (A. D. 1279) ; 13 Edw. 
 I, c. 32 (A. D. 1285); and 15 Kic. II, c. 5 (A. D. 1370). 
 See 1 Bl. Com. 479 ; Bac. Abr. Charitable Uses (A) ; Wms. 
 Keal Prop. 66, & seq. ; 2 Inst. Com. & Stat. Law, c. xviii. 
 
 In Yirginia we have a corresponding and hardly less 
 rigorous restriction upon corporations in respect to lands, 
 it being enacted (V. C. 1873, c. 56 § 2,) that " no incor- 
 porated company shall hold any more real estate than is 
 proper for the purposes for which it is incorporated." It 
 is fm-ther declared that " no company shall employ its 
 capital, money, or effects, or otherwise engage in transac- 
 tions or business not proper for those porposes ; and that 
 " one company shall not subscribe to the stock of another, 
 unless it be specially allowed by law ;" yet not so as to 
 " prevent a company from receiving stocks or otliei* pro- 
 perty in satisfaction of any judgment, order, or decree, or 
 as collateral security for, or in payment of, any debt, or 
 from purchasing stocks or other property at anv sale made 
 for its benefit." (V. C. 1873, c. 56, § 3.) And as the 
 Statute of Wills with us (V. C. 1873, c. 118, § 2,) imposes 
 no restrictions applicable to corporations, they may take 
 by devise or bequest, subject to the foregoing qualifications, 
 like natural persons. 
 
 Unfortunately oiu" statute does not expressly declare, as 
 the English Statutes of ^fortrnain do, what shall be the 
 consequences of a corporation's acquiring more lands than 
 it is permitted to hold. The better opinion, upon j^rinci- 
 ple, seems to be that as the corporation grantee cannot 
 hold the surplus contrary to law, and as the grantor can- 
 not have it hack against his deed, it rnust he forfeited to the 
 Commonwealth, as where an alien iILe2;ally purchases lands. 
 (V. C. 1873, c. 109, § 3 ; 2 lusts Com.'& Stat. Law, c. xviii.) 
 But see 1 Lom. Dig. 13, 14 ; Banks v. Poiteaux, S' Band. 
 142 ; Riv. Nav. Co. v. Dawsons, 3 Grat. 23, and cases cited. 
 
 If the English statutes of 2Lortm,ain were ever in force 
 in Yii-ginia (which may be doubted, seeing that they are 
 said to he.politicnl in their character, and therefore local to 
 England — Atto. Gen. v. Stewart, 2 Meriv. 143), they were 
 at all events repealed by the act of 1789 (13 Hen. Stats. 
 23-'4), which repealed all British statutes not re-enacted. 
 
 With the quaHfications created by the statutes above 
 cited (V. C. 1873, c. 56, § 2, 3), or by its charter, a cor- 
 poration aggregate may acquire and hold property of any 
 Mnd, Avithout any other limitation. Thus, a bequest to a 
 corporation of its own stock is valid (Kiv. Xav. Co. v. 
 Dawson, 3 G^/^^ ^¥fif<M?Pto guard against abuse 
 it is provided (V. C. 1873, c. 56, § 3,) that while a com- 
 
CHAP. XVIII. j COEPOEATIONS. 549 
 
 pany holds shares of its own stock, no vote shall be given 
 thereon, which, indeed, is believed to be the common law. 
 {Exp. Holmes, 5 Cow. 426 ; Exp. Desdoity, 1 Wend. 98; 
 Aug. & A. Corp. 121.) But a corporation sole cannot 
 take a chattel in succession, that is, to the corporation and 
 his successo'/'s, not any more than if a chattel be conveyed 
 to a man and his heirs. In both instances it goes to the 
 executors or admijiistrators of the grantee. (1 Th. Co. 
 Lit. 192-'3, and n (K).) 
 
 It seems, however, to be a true proposition, that a cor- 
 poration, except where it is otherwise provided in its char- 
 ter, expressly or by clear implication, stands upon the same 
 footing as individuals, in the use of its property, the ex- 
 ercise of its powers, and the transaction of its business, 
 and is subject to the same control under the police powers 
 of the State, or of a municipal corporation. (Eichmond, 
 F. ife P. R. E. Co. V. Eichmpnd, 26 Grat. 83, 95_, & seq.) 
 
 It is agreed that corporations cannot exercise their 
 powers for purposes foreign to their creation. A bank of 
 discount and deposit cannot engage in manufactures or 
 agriculture ; nor can a road or canal company speculate in 
 stocks or merchandize. A corporation, however, is always 
 competent to use, for the accomplishment of its proper 
 end, any means appropriate thereto, and thus may inci- 
 dentally have transactions on its hands, in secuiing its 
 debts, &c., wliich are in themselves very foreign to its 
 institution. (Biv. Eav. Co. v. Dawson, 3 Grat. 21.) It 
 is, moreover, often a question of nicety, whether a given 
 transaction is within the direct scope of the proper pur- 
 poses of the corporation or not ; and upon this point the 
 construction outjlit to be liberal. Unless the transaction is 
 clearly ultra vires, the legality must be sustained. (Banks 
 V. Poiteaux, 3 Eand. 136 ; Ang. & A. Corp. 117, &c.) 
 
 A corporation is not confined in its transactions, as it is 
 in its quasi habitaiion, to the soverignty which created it. 
 It may make contracts, and acquire and hold property, 
 real and personal, abroad as well as at home, wherever its 
 charter permits, and the local law (the lex loci contractus, 
 or the lex loci rei sltce,) does not forbid (Slaughter's case, 
 13 Grat. 767). Thus, a corporation chartered by the State 
 of New York, whose charter contemplated the acquisition 
 and ownership of coal lands in Pennsylvania, having ac- 
 quired such lands Avith the assent, express or implied, of 
 the latter State, the purchase was held to be valid. It is 
 for the local so\-ereign to prescribe the terms upon which 
 the presence of the corporate body, by its agents, and the 
 conducting of its operations in a foreign country, shall be 
 permitted ; feyi|;fted?%<W)?i§^ofl^i'ess or implied, of the 
 
650 C0EP0EATI0N8. [bOOK I. 
 
 local government it may transact there any business not 
 ultra vires, that is, not beyond its chartered power or ca- 
 pacity. (Bk. of Augusta v. Earle, 13 Pet. 590 ; Eunyan 
 V. Coster, 14 Pet. 129 & seq. ; Tombigbee K. E. Co. v. 
 Kneeland, 4 How. 16 ; Lafayette Ins. Co. v. French, 18 
 How. 405; St, Louis v. Ferry Co. 11 Wal. 429; Bk. of 
 Mariette v. Pindall, 2 Eand. 465 ; Taylor's Adm'r v. Bk. 
 of Alexandria, 5 Leigh, 475 ; Silver Lake Bk. v. IS'orth, 4 
 Johns. C. E. 372.) 
 
 Blackstone states (2 Bl. Com. 477), upon the authority 
 of several of the older writers, that a corporation cannot 
 be seised of lands to the use of another — that is, cannot be 
 a trustee ; for, says he " such kind of confidence is foreign 
 to the end of its institution." And, indeed, if the limita- 
 tion be attended to, the principle may be still admitted as 
 true. A corporation cannot be a trustee for purposes for- 
 eign to the end of its institution ; but within those ends it 
 may be ; and if the trust be such as it is not fitting to 
 charge the corporation with, equity, upon its maxim of 
 never suffering a trust to fail for want of a trustee, will 
 devolve the duty upon some competent person. As a cor- 
 poration, accordmg to tiie modern construction, may be 
 , seised to a use not foreign to its purposes, there seems to 
 be no doubt that it is capable of conveying . lands by har- 
 gain and sale. (2 Kent's Com. 279; Jackson v. Hartwell, 
 8 Johns. 422; Phillip's Acad. v. King, 12 Mass. 546; 
 Greene v. Eutherford, 1 Yes. Sen'r, 462, 468, 470, 475 ; 
 Sonley v. Clockmakers' Co., 1 Bro. C. C. 81 ; Vidal v. 
 Girarcl's Ex'ors, 2 How. 128.) But see 2 Lom. Dig. 187. 
 
 In conseqiience of this more reasonable modern con- 
 struction, corporations may be, from their permanence, 
 very useful as trustees, to conduct trusts of long continu- 
 ance, and are sometimes created for that express purpose. 
 (Trustees of Phillip's Acad. v. King, 12 Mass. 546; 2 
 Kent's Com. 280.) 
 
 The modes of conveyance to corporations are essentially ' 
 the same as in the case of natural persons (2 Lom. Dig. 
 114, ife n (8), 187; but there is at common law a diversity 
 in tlie terms proper to be employed. In conveyances in 
 . fee simple, to corporations sole, the word successors is as 
 indispensable as the word heirs in conveyances to natural 
 persons. The same word successors is, at common law, 
 usual and expedient in conveyances in fee-simple to cor- 
 porations aggregate; but it is not so indispensable as in case 
 of a corporation sole; for albeit a grant without that word 
 passes in strictness only an estate for life, yet as corpora- 
 . tions aggregate have a capacity for uninterrupted perpet- 
 ual successioi^'Stf'?f^fe)^#qffi#qM^of the corporation is, 
 
CHAP. XVm.] CQKPOEATIONS. 551 
 
 or may be, equivalent to a fee-simple, and therefore the 
 law allows it to be one (2 Bl. Com. 109 ; 1 Th. Co. Lit. 
 191, 501; Overseers of Poor v Sears, 22 Pick. 122.) In 
 Virginia this distinction is superfluous ; every estate granted 
 or devised being a fee-simple, or at least as much as the 
 grantor or de^dsor has, unless a less estate he limited. (V. 
 C. 1873, c 112, § 8.) 
 
 Corporations liave always had power to acquire chattels 
 by vsdll; but when, in England, the law first permitted 
 lands to be devised, or willed, the statutes allowing it (32 , 
 Hen. VIII, c. 1, explained by 34 Hen. VIII, c. 5, A. D. 
 1541), specially excepted hodies corporate, which were de- 
 clared incapable of being devisees. (2 Bl Com. 375.) 
 But this exception, though still retained in some of these 
 States (2 Kent's Cora. 282-'3, &c.; Ang. & A. Corp. 188, 
 <fec.), has been excluded from the Virginia statute of wills 
 (V C. 1873, e. 28, § 2) In England, however, by the 
 statute 43 Eliz. c. 4, known as the Statute of Charitable 
 Uses, and in force in several of these States, although not 
 in Virginia, a corporation is enabled to be a trustee for 
 charitahle uses, even such as are so vague and uncertain as 
 M'ould certainly avoid them if they were not charitable. 
 (2 Kent's Com. 285, >k n (b) ) 
 
 "Whether shares in a joint stock corporation are real or 
 personal property, admits, it seems, of doubt at common 
 law, where the property of the corporation consists of 
 lands (Harrison v. Harrison, 2 Atk. 337; Drybutter v. 
 Bartholomew, 2 P. Wms. 127; Buckridge v. Ingi-am, 2 
 Ves. Jun'r, 663-'4 ; House v. Chapman, 4 Ves. 542 ; Finch 
 V. Squire, 10 Ves. 44 ; Portmore v, Bunn, 1 B. & Cr. (8 
 E. C. L.) 694.) But in Virginia all doubt is removed by 
 statute, which declares them always personal estate. (V. C. 
 1873, c. 57, § 21.) The transfer of shares, and the transmis- 
 • sion after the owner's death, is thus rendered more conve- 
 nient, and the property is assimilated to such as is used 
 in trade by partnerships, which, whatever its nature, is re- 
 garded for the purposes of the partnership-trade, as having 
 the quality of personalty (Stor. Confl. L. § 383, &c. ; Ang. 
 & A. Corp. 499.) It will be observed, however, that this 
 is a question only as to the shares wi the corporation. In 
 respect to the corporation itself, real property is treated 
 according to its natare, being conveyed to and by such 
 corporate bodies with the same solemnities as if they were 
 natural persons. (Barksdale, &c., v. Finney & als, 14 
 Grat. 357.) 
 
 Gifts and grants to corporations must always be by their 
 true name, of which enough has been said. {Ante p. 511 
 to 513.) Digitized by Microsoft® 
 
652 COKPOBATIONS. , [bOOK 1. 
 
 In general, corporations have the same power as natural 
 persons to dispose of their property, and do it by the same 
 modes; but their power may be modified by charter. 
 (Barksdale v. Finney, 14 Grat. 338.) There is, however, 
 a notable diversity between natural persons and corpora- 
 tions, in connexion with restraints upon free alienation. 
 In the case of natural persons, a condition not to aliene a 
 fee-simple estate is for the most part void, as repugnant to 
 the nature of the estate granted, and adverse to public 
 policy; whilst a similar condition, annexed to a grant in 
 fee-simple to a corporation, is readily admitted, because, 
 it is said, a corporation is a political body, and can properly 
 acquire land for its own use only, and not for speculative 
 purposes, or to sell again ; and so a condition not to aliene 
 tends merely to compel the observance of its legal obliga- 
 tions, and to maintain it within the sphere of its duty. (2 
 Insts. Com. & Stat. Law, c. vii, and cases there cited.) 
 
 At common law, upon the dissolution of a corporation, its 
 real estate then remaining undisposed of reverts to the 
 grantor, whilst the personal property goes to the Crown, or 
 with us, to the Commonwealth; the debt due to and from 
 the corporation meanwhile being extinguished. Not only 
 does its dissolution put an end to all legal or equitable 
 proceedings, by or against it, which are yet in progress, 
 but even upon judgments and decrees already obtained no 
 execution can issue; and if any be issued, the court will 
 quash it upon proof of the extinction of the corporation. 
 (1 Bl. Com. 484; Eider v Union Factory, 7 Leigh, 54; 
 May V. State Bank of IST. C, 2 Eob. 56.) 
 
 In this state of the law, when a corporation is aware of 
 its approaching end, it is usual to convey and assign all its 
 property and debts to trustees, in trust to collect the debts, 
 sell the property, pay the debts due from it, and to dis- 
 tribute the residue amongst the coi-porators, according to 
 their respective interests. (Bank of Alex'a v. Patton, 1 
 Rob. 524; May v. State Bank of IS". C, 2 Eob. 56.) This 
 device is now rendered needless in Yirginia by a whole- 
 some statute (V. C. 1873, c. 56, § 31), which declares that, 
 when any corporation shall expire or be dissolved, or its 
 corporate rights and privileges shall have ceased, all its 
 works and property, and debts due to it, shall be ■ subject 
 to the payment of debts due by it, and then to distribution 
 among the members, according to their respective interests ; 
 and such corporation may sue and be sued as before, for the 
 purpose of collecting debts due to it, prosecuting rights 
 under previous contracts with it, and enforcing its liabili- 
 ties, and distributing the proceeds of its works, property 
 and debts am0^f^efiS(t^iM«t©asflffiSfeto. 
 
CHAP. XVm.J COEPOKATIONS. 563 
 
 5*. Power to make By-Laws. 
 
 The power to make by-laws not inconsistent with the 
 laws of the land, nor with the charter, nor unreasonable 
 in themselves, belongs inseparably to every corporation as 
 soon as it is created. (1 Th. Co. Lit. 184, n (C) ; Bac. Abr. 
 Corp. (D); Id. By-Laws; 1 Bl. Com. 476.) And although 
 the power is almost always conferred expressly by the 
 charter, and in Virginia by general law (Y. C. 1873, c. 66, 
 § 1), the express grant imports no more than is implied, 
 although it may circumscribe the latter. (Morris v. Staps, 
 Hob. 211 a; Child v. Hudson's Bay Co., 2 P. Wms. 207; 
 Rex V. Spencer, 3 Burr. 1837.) Eleemosynary corpora- 
 tions are said to be an exception to this general doctrine, 
 and to have no further power to make by-laws than as 
 authorized by the charter; and that because such corpora- 
 tions are creatures of the founder's bounty, and in the na- 
 ture of grants, which are irrevocable, and whose terms are 
 unalterable, either by third persons or by the grantor him- 
 self, unless power to revoke or alter be reserved — a reason 
 which is by no means satisfactory, and tends to throw 
 doubt upon the doctrine. (St. John's Col. v. Todington, 
 1 Burr. 201; Ang. cfe A. Corp. 328.) 
 
 As to the precise mode of enacting by-laws, and the mode 
 of proving them, see 1 Th. Co. Lit. 184, n (C); Case of 
 Corporations, 4 Co. 77 b; Bac. Abr. By-Laws; Ang. & A. 
 Corp. 370-'71 ; Id. 347 <fe seq. 
 
 To whomsoever the power to make by-laws for a corpo- 
 ration is confi-ded, whether to the body at large or to a 
 select portion, it is a trust to be exercised with discretion, 
 and therefore, by-laws which are vexatious, oppressive, and 
 imequal, or manifestly detrimental to the corporation or to 
 the public, are void. (Mitchel v. Reynolds, 1 P. Wms. 184; 
 Gunmaker's Co. v. Fell, Willes, 388, and cases cited in 
 note; Clark's Case, 5 Co. 64 a, note; 1 Th. Co. Lit. 184, 
 n (C)-) Thus, a by-law of a bank, that all errors in 
 payment made or received must be Corrected at the time, 
 and not afterwards, is of no avail to prevent the enforce- 
 ment of the correction of a mistake afterwards, when it is 
 found. (Farm. & Mech. Bank v. Smith, 19 Johns. 115; 
 Gallatin v. Bradford, 1 Bibb. 209.) So a by-law empower- 
 ing shareholders, on payment of a specified percentage of 
 their stock, to forfeit it and relieve themselves of the obli- 
 gation, is void as to creditors. (Bac. Abr. By-laws (F); 
 Slee V. Bloom, 19 Johns. 456.) Nay, if the trustees, or 
 other proper agents for tliat purpose, of a corporation, 
 neglect to collect of the shareholders what is unpaid of 
 their subscrij^tions, so as to enable the company to pay its 
 debts, any creditd?/g»^^^i45KiMKif§Sg#^, may compel such 
 
654 COEPOEATIONS. [bOOK I. 
 
 agents to enforce contribution from the stockholders, ac- 
 cording to the shares taken by them respectively. (Briggs 
 V. Penniman, 8 Cow. (N. Y.) 387; Slee v. Bloom, 19 Johns. 
 ■ (N. Y.) 474.) And a by-law authorizing the directors to 
 alter the by-laws cannot be construed to empower them to 
 disregard or alter a by-law which imposes ajimitation 
 upon their own powers. (Stevens v. Davison, 18 Grat. 819.) 
 See Ang. ife A. Corp. 257-'8 ; Vintner's Co. v. Passey, 1 
 Burr. 239 ; Mayor, &c., AYorkingham v. Johnson, Cas. T. 
 Hardw. 284; Poulterers' Co. v. Phillips, 6 Bingh. X. C. 
 (37 E. C. L.) 314. 
 
 The by-laws of a corporation generally provide for the 
 transfer of shares from one person to another, but such 
 provisions are designed only for the protection of the 
 corporation and its officers, to show who may vote, and 
 to whom dividends are to be paid, &c.; and, therefore, 
 although the company's rules be not complied with in 
 making the transfer, yet the transfer passes to the pur- 
 chaser the equitably title; not, indeed, so as to entitle him 
 to vote, or to receive di\-idends, or so as to prejudice the 
 company's lien upon the shares transferred ; but so as that 
 a court of equity will compel the company, if it has no 
 sufficient reason to the contrary (and giving due protection 
 to its rights), to allow a formal transfer on its books. 
 (Union Bank v. Laird, 2 Wheat. 390 ; Black v. Zacharie 
 & Co. 3 How. 513, and cases there cited.) 
 
 A corporation has not, by the common law, a lien upon 
 its shareholder's stock for what he may owe the company, 
 and as such a provision is very expedient in trading, and 
 especially in hanking comjxmies, it is commonly conferred 
 by the charter ; and if it can be created at all merely by a 
 by-law, without authority from the charter, — it is at all 
 events to be rigorously construed, both as to the debts in- 
 cluded in the hen, and as to the mode of insisting thereon. 
 (Child V. Hudson's Bay Co. 2 P. Wms. 207 ; Ang. & A. 
 Corp. 355-'6.) By the effect of the act of Congress of June, 
 1864, touching the system of national banks, such lien is 
 prohibited, even though declared by a by-law of a bank. 
 (13 U. S. Stats. 102, § 35 ; 2 Bright Dig. 59 ; Rev. Stats. 
 U. S. p. 1012, § 5201 ; Bank v. Lanier, 11 Wal. 374, kc; 
 BuUard v. Bank, 18 Wal. 594, &c.) 
 
 The power to make by-laws supposes, of course, a power 
 to enforce them by penalties in the nature oi fines affixed 
 amount, and not left to be determined, even witliin a maxi- 
 mum, by the governing part of the body, for that woiild 
 be, in fact, to allow a party aggrieved to assess his own 
 damages. But, except under special provisions in the 
 charter, a cOfprnASY MM§§m^ct, as a penalty for 
 
CHAP. XVIII.] OOEPOEATIONS. 555 
 
 breach of its by-laws, disfi'anchisement, a denial of the 
 share of the profits, imprisonment, or forfeiture of the 
 member's goods, or even of his shares ; and when, iy 
 charter, non-payment of instalments is visited by forfeiture 
 or sale of the shares, it is, according to the better opinion, 
 a cumulative ^remedy, which does not preclude an action 
 for the arrears remaining due after crediting the proceeds 
 of the sales of stock, (Herkimer Man. & Hyd. Co. v. 
 Small, 21 Wend. (JST. Y.) 273 ; Gratz v. Eedd, 4 B. Mon- 
 roe, 193-'4: ; 2 Lev. 201 ; 2 M. & S. 60 ; Grays v. T. Pike 
 Co. 4 Eand. 5Y8 ; Ang. & A. Corp. 362 & seq ; Y. C. 
 1873, c. 57, § 23 to 25.) 
 
 Any penalty ordained by a by-law may be generally re- 
 covered by an action of debt or assumpsit, (Bac. Abr. By- 
 Laws (E) ; Chamberlain of London Case, 5 Co. 63 b ; 
 Clark's case, Id. 64 a ; Surgeons v. Pelson, 2 Lev. 252 ; 
 "Wooly V. Idle, 4 Burr. 1952) ; and it seems, also, iy dis- 
 tress — but by distress to be Jcej>t as a pledge merely, and 
 not by distress and sale, unless authorized by statute or 
 charter. (Clark's case, 5 Co. 64 a ; Clerk v. Tucket & al, 
 3 Lev. 282 ; Adley v. Beeves, 2 M. & S. 60.) 
 
 A penalty given in general terms is for the use of the cor- 
 poration, but the by-law may direct that when recovered 
 in the company's name it may be assigned to whom it will ; 
 and in general the suit is to be in the name of the corpor- 
 ation. (Ang. & A. Corp. 366-'7.) 
 6"*. Power to Sue and to be Sued. 
 
 The power of a corporation to sue and be sued requires 
 us to have regard to, (1), The doctrine as to the capacity 
 of corporations to sue and to be sued ; and (2), The-mode 
 of proceeding in suits by or against corporations. (1 Bl. 
 Com. 475; Bac. Abr. Corp. (E) 2; Ang. & A. Corp. 372 
 & seq; Id. 558 & seq.) 
 W. C. 
 1". The Doctrine as to the Capacity of Corporations to Sue 
 and to be Sued. 
 
 The capacity is inherent in all corporations, and re- 
 lates to almost every conceivable judicial proceeding, 
 regular or summary ,' 
 W. C. 
 1'. The Doctrine as to the Capacity of Corporations to 
 Sue. 
 
 An corporation may institute an attachment, or any 
 appropriate action, on any contract into which it is capa- 
 l3le of entering ; for any tort (that is, any injury done to 
 it other than by breach of contract) which it can suf- 
 fer ; and for land. (Ang. & A. Corp. 372-'3.) 
 
 Hence,' ^M^fl€(^e^p/li^3^@ny doubt even in Eng- 
 
556 C0KP0EATI0N8. [bOOK I. 
 
 land, that a corporation may sue in Assumpsit, which is 
 the appropriate action to recover damages for a breach 
 ' of contract not under seal; for although in that country 
 needless question has been as to the power of a corpo- 
 ration to bind itself otherwise than by its corporate seal, 
 yet it has always been admitted (rather illogieally) that 
 it may receive a promise made to it, whether under the 
 opposing party seal or its own, or not. (Barber Surgeons 
 V. Pelson, 2 Lev. 252; Mayor, &c. v. Gorry, Id. 174; 
 Dean, &c. v. Pierce, 1 Campb. 467.) 
 
 As a corporation with a head {e. g., the mayor, iu 
 case of the mayor and commonalty of a town) is incom- 
 plete without it, it cannot sue or be sued without joining 
 the head (Bac. Abr. Corp. (E) 2). And where a bond 
 or other sealed promise is made to an oiBcer of the cor- 
 poration for its use, the action must, at common law, be _ 
 brought in the officer's name, and not in that of the cor- 
 poration (Offly V. Warde, 1 Lev. 234; GUby v. Copley, 
 3 Id. 138, &c.'; Scholey v. Mearns, 7 East. 148 ; Schack 
 v. Anthony, 1 M. & S. 575 ; Pigott v. Thompson, 3 Bos. 
 & P. 148 ; Eoss v. Milne & ux, 12 Leigh, 203 ; Clark- 
 son V. Doddridge, 14 Grat. 44; 1 Chit. PL 3). In Vir- 
 ginia, however, l^y statute, the suit may be in the corpo- 
 rate name, wherever the promise is for its ienefit, although 
 made to another person, and under seal. (V. C. 1873, c. 
 112, § 2.) 
 
 A sole corporation, having a natural as well as a cor- 
 porate capacity, must always set forth in which capacity 
 the suit is brought ; but an aggregate corporation has no 
 other but a corjxirate character, and it is, therefore, need- 
 less expressly to aver that the cause of action accrued to 
 it as a corporation. (Bac. Abr. Corp. (E) 2.) 
 
 A corporation is not required to show in the declara- 
 tion how it was incorporated, but on the general issue 
 pleaded by the defendant, it must, at common Isiw, prove 
 its corporate existence ; and that not only by proving its 
 charter, but also its organization in pursuance of the 
 charter (Norris v. Staps, Hob. 211 ; Hem-iques v. Dutch 
 "W. Indian Co., 2 Ld. Eaym. 1535; Bk. of Auburn v. 
 Weed, 19 Johns. 302; Grays v. T. Pike Co., 4 Rand. 
 579 ; Jackson v. Bk. of Marietta, 9 Leigh, 240 ; Eees v. 
 Conococheague Bk. 5 Sand. 326; Taylor v. Bank of 
 Alex'a, 5 Leigli, 471); but in Virginia it is provided by 
 statute, that when plaintiffs or defendants sue or are. 
 siied as a corporation, it shall not be necessary to prove 
 the fact of incorporation, unless with the pleading which 
 puts the matter in issue there be an affidavit denying such 
 incorporaiio£iigi{iWei(Xby\Mt(3',o§.oW!, § 40.) 
 
CHAP. XVIII.J COBPOHATIONS. 657 
 
 As a foreign corporation may make any contract, and 
 engage in any transaction which is warranted by its 
 charter, as well without as within the sovereignty which 
 created it, provided only that it be not repugnant to the 
 policy of the country where the transaction occurs, so 
 in its corporate capacity it may maintain abroad, as well 
 as at home, any action which may grow out of such busi- 
 ness. By an universal international comity, the mere 
 fact that the corporation is a foreign one does not affect 
 its capacity to sue. This doctrine was first clearly stated 
 in Henriques v. Dutch W. India Co., 2 Ld. Kaym. 1535, 
 and has been very often reiterated in the United States, 
 where the intimate relations of society and baisiness be- 
 tween the several States render it peculiarly important 
 (Bk. of Marietta v. Pindall, 2 Band. 465; Bees v. Con- 
 ococheague Bk., 5 Rand. 326 ; Taylor v. Bank of Alex- 
 andria, 5 Leigh, 471 ; Silver Lake Bk. v. North, 4 Johns. 
 C. B. 370; Bk. of Augusta v. Earle, 13 Pet. 519, 588; 
 Bunyan v. Lessee, &c., 14 Pet. 129 ; Tombigbee E. B. 
 Co. V. Kneeland, 4 How. 16 ; Lafayette Lis. Co. v. French, 
 18 How. 405 ; St Louis v. Ferry Co., 11 Wal. 429.) 
 
 In respect to the jurisdiction of the United States 
 courts under that clause of the Federal Constitution 
 which gives cognizance to those courts of "controver- 
 sies between citizens of different States," it is now well 
 settled (contrary to the earlier adjudications — Hope Ins. 
 Co. V. Boardman, 5 Cr. 57; Bk. of U. S. v. Deveaux, Id. 
 84; Strawbridge v. Curtis, 3 Cr. 267; Bk. of Vicks- 
 burg y. Slocomb, 14 Pet, 60), that although a corpora- 
 tion is not properly a citizen at all, yet under the clause 
 in question it is to be deemed a citizen of the State which 
 created it, and may, therefore, maintain a suit in the 
 court of the United States against a citizen of any other 
 State. (Loiiisville E. E. Co. v. Letson, 2 How. 497, 
 555 ; Marshall v. Bait. & O. B. B. Co., 16 How. 314 ; 
 Covington D. B. Co. v. Shepherd, 20 How. 232; 0. & 
 Miss. E. E. Co. V. Wheeler, 1 Black. 286 ; Ins. Co. v. 
 Francis, 11 Wal. 216 ; E. B. Co. v. Harris, 12 Wal. 65 ; 
 E'lway Co. v. Whitton, 13 Wal. 283 ) 
 2*. Doctrine touching a Corporation's Capacity to be Sued. 
 
 For whatever contract a corporation is competent to 
 make or to violate, and for whatever tort it is compe- 
 tent to commit, it has the capacity to be sued. When 
 the common law doctrine prevailed, that it could only 
 express its assent to a contract by its comynon seal, it 
 was considered that it was not subject to an action of 
 assumpsit, which is adapted only to recover damages 
 for a breach ofSjpfeiiWfJSq^iMOitfeo^; but as it is now, 
 
558 COEPOBATIONS. [bOOK I. 
 
 and lias long been admitted even in England, that it 
 may make some contracts otherwise than under the cor- 
 porate seal, it follows that the action of assuTnpsit will 
 sometimes lie against it — namely, whenever the contract 
 is not under seal (1 Bl. Com. 475, & n (5); London 
 Dock Co. V. Sinnott, 8 El. &'B1. (92 E. C. L.) 350; Nich- 
 olson V. Bradiield Union, 1 Q. B, (Law Eep.) 620, 622), 
 where the English cases are well marshalled. 
 
 In the United States it is ■ well settled, as we have 
 seen, that a' corporation may express its assent in nearly 
 the same ways as a natural person, to any contract, 
 and may be sued accordingly, — namely: 
 
 1. Under its common corporate seal ; 
 
 2 By vote of the corporators, in lawful meeting as- 
 sembled, and entered on their records ; or perhaps 
 even though unwritten; 
 
 3. By vote of directors in lawful meeting, duly en- 
 
 tered; or ^erAo^s though unwritten; ■ 
 
 4. By agents duly appointed, whose authority may be 
 
 proved by any satisfactory evidence; and, 
 
 5. By accepting, knowingly, the benefit of the con- 
 
 tract, or otherwise ratifying it. 
 
 See Legrand v. H. S. College, 5 Munf. 324 ; The 
 Banks v. Poiteaux, 3 Eand. 141 : Burr v. McDonald, 3 
 Grat. 206 ; Barksdale v. Finney, 14 Grat. 338 ; Bk. of 
 Columbia v. Patterson, 7 Cr. 305; Flecknpr v. Bk. of 
 U. S. 8 Wheat. 338; Bk. of U. S. v. Dandridge, 12 
 Wheat. 68; Eureka Co. v. Bailey Co. 11 Wal. 488; 
 London Dock Co. v. Sinnott, 8 El. & Bl. (92 E. C. L.) 
 352, note. 
 
 ISTot only may a corporation be proceeded against di- 
 rectly by its own creditor, but it may be summoned and 
 proceeded against as a garnishee under the law of at- 
 tachments, as prescribed by V. C. 1873, c. 148, § 2, &c. 
 (Bait. & O. K. E. Co. v. Gallahue's Adm'r, 12 Grat. 
 655.) 
 
 As to torts, it is affirmed by Blackstone that a cor- 
 poration can neither maintain nor be defendant to an 
 action for hattery, and such like personal injuries; for, 
 says he, a corporation can neither beat nor be beaten in 
 its body politic (1 Bl. Com 477); and doubtless it is 
 true enoxigh that a corporation cannot be beaten, but it 
 is difficult to understand why by its servants it may not 
 commit a battery, and still harder to perceive why, if it 
 shall procure such, or any other tort to be perpetrated, 
 it should not be constrained to make satisfaction out of 
 its corporate funds. It has accordingly been held that 
 it may sue(£)^#;^fe#]j^^^;83r{sjieigf(irom a neglect of duty, 
 
CHAP. XVni.J C0EP0EATI0N8. 559 
 
 as from a turnpike-bridge or canal-locks being out of 
 repair (Mayor of Lynn v. Turner, Cowp. 86 ; Townsend 
 V. S. T. Pike Co., 6 Johns. 90; 7 Mass. 169), or from 
 illegally obstructing a. water course (C. H. T. Pike Co. 
 V. Eutter, 4 Serg. & R. 6; where the old and modern 
 authorities are collected). So a corporation is liable in 
 an action of trespass in the case in trover for the value 
 of chattels illegally converted to its use by its agents or 
 officers (Yarborough v. Bank of England, 16 East. 6; 
 Duncan v. Surry Canal, 3 Stark. 50) ; in trespass, or 
 trespass on 'the case for malicious injuries committed 
 thro^igh its directors whilst representing it (Maynard v. 
 Firemen's Ins. Co. 34 Cal. 48; J. E. E. Co. v. Eogers, 
 28 Ind'a, 1); and in trespass for injuries committed 'Jj/ 
 violence to the person or property (Britton v. So. Wales 
 E'way Co. 3 Hurlst. & ISTorm. 963-'4; Bloodgood v. M. 
 & H. E. E. Co., 18 Wend. 9; Eowle v. Alexander, 3 
 Pet. 409). And in Virginia the doctrine is confirmed, 
 if confirmation were needed, by statute, allowing dam- 
 ages to be recovered wherever "the death of a person 
 shall be caused by the wrongful act, neglect, or default 
 of any person or corporation, and that the act, neg- 
 lect or default is such as would (if death had not ensued) 
 have entitled the party injured, &c., to maintain an ac- 
 tion." (V. C. 1873, c. 145, § 7, &c.) 
 
 It is an invariable maxim of the common law courts 
 (although not respected in the courts of equity), that no 
 man shall sue himself, or any partnership of which he 
 is a member (1 Bl Coni. 18, 19; 1 Lorn. Ex. 646, & 
 seq.); and it therefore illustrates how wholly the indi- 
 vidual shareholder is lost in the corporate body, that 
 this maxim does not forbid a corporation to be sued by 
 one of its own members, nor vice versa. And so, also, 
 a member of a corporation may, at common law, secure 
 payment of his demands against the corporation by 
 taking a deed of trust or mortgage on its property, or 
 by means of legal process, — as attachment, execution, 
 or judgment, — and that in preference to other creditors 
 (Burr V. McDonald, 3 Grat. 234; Ang. & A. Corp. 
 391-2); although in Virginia, by statute (V. C. 1873, 
 c. 51, § 63), it is declared that, in the case of corpora- 
 tions created by the circuit court, every such lien or in- 
 cumbrance shall enu.re to the benefit ratably of all the 
 creditors existing at the time when the lien was obtained, 
 save only when it is made to secure a debt contracted 
 or money borrowed at the time it was made. 
 
 It is acknowledged that a corporation-aggregate can- 
 not be g^i^ii)i^iMi§^MjMiom ^^1°^^' °°^ °^ ^^y 
 
660 OOEPOEATIONS. [bOOK I. 
 
 crime which can only be adequately punished corporeally/, 
 and 'there are not wanting dicta, that it cannot be guilty 
 of any crime of commission whatever. There, seems, 
 however, to be no reason, in nature or policy, why a 
 corporation-aggregate may not be indicted for and con- 
 victed of any misdemeanor whose appropriate punishment 
 . is a pecuniary mulct, whether of commission or omission. 
 Of the latter (offences of omission), instances not unfre- 
 quently present themselves (e. g. in nuisances of omis- 
 sion); but cases of commission are not wanting — e.g. 
 obstructing highioaysf&c. When a crime of more heinous 
 character is perpetrated in connection with the affairs 
 of a corporation, the persons guilty of it, although 
 officers and agents of the corporate body, are to be pro- 
 secuted personally; and, indeed, they are liable also to 
 be proceeded against personally for all the torts and 
 misdemeanors for which an indictment or. action lies 
 against the corporation. (Hawk. P. C. B. I, c. 66, § 13; 
 Id. c. 76, § 8; Eeg v. B. & Cr. E'way Co., 9 Carr. & P. 
 (38 E. C. L.) 469.) Thus, in King v. Mayor, &c., of 
 Liverpool, 3 East. 86, and in Reg. v. Mayor, &c., of 
 Lincoln, 8 Ad. & El. (35 E. C. L.) 65, no question was 
 made that a corporation was indictable for not repairing 
 a highway; nor in King v. Mayor, &c., of Stratford, 14 
 East. 348, for the non-repair of a bridge; and in Reg. v. 
 Scott, 3 Ad. & El. N. S. (43 E. C. L.) 649, it was agreed 
 that it was liable to indictment for obstructing a. highvjay. 
 In Virginia, at all events, there is no doubt that a cor- 
 poration is, in some' cases, liable to indictment, present- 
 ment, or information (however it may be a question 
 lohat the cases are) ; for we have a statute providing that 
 on any such prosecution the summons may be served on 
 the corporation, as ux civil suits (see Posip. 565 & seq.); 
 and if it fail to appear, the court may procee(J to trial 
 and judgment without further process, as if defendant 
 had appeared and pleaded not guilty. (V. C. 1873, c. 
 201, § 29.) 
 
 Whether a foreign corporation is capable of being 
 sued in any State depends on the statute-law thereof 
 touching the mode of serving process, and generally of 
 proceeding against non-resident parties. A non-resident 
 natural person may come within the limits of the State, 
 and is then universally as liable to the process of the 
 courts as if he were a citizen; but a foreign corporation 
 cannot leave its proper habitat, the country where it was 
 created; and although its officers may do so, yet as 
 there is no natural principle of law which enjoins that 
 process &gW0iS:^&>W^K^^f&S^^ ^ all cases be served 
 
CHAP. XVIII.J OOBPOKATIONS. 561 
 
 on any particular officer, the statutes of the State where 
 the suit is brought can alone determine how the process 
 shall be executed, or whether it can be executed at all. 
 The provision in Vii'ginia for proceeding against non- 
 residents is comprehensive enough to include, and does 
 include, non-resident corporations. "On affidavit," says 
 the statute, " that a defendant is a non-resident of this 
 State, * * * an order of publication may be entered 
 against each defendant." (V. G. 1873, c. 166, § 10; U. 
 S. B'k V. Merch. B'k, 1 Eob. 586 to 590; Bait. & O. R. 
 K. Co. V. Gallahue, 12 Grat. 655 ; Beaston v. Farmers 
 B'k, 12 Pet. 134. 
 
 If the proceeding meditated against the foreign cor- 
 poration involve consequences incompatible with its 
 foreign habitat, and the necessarily alien character of 
 the defendant, that proceeding cannot be maintained. 
 Hence, where in New York, upon a statutory summary 
 process, it was provided that the defendant might super- 
 sede the process, upon giving security to appear and 
 plead to any action at laio, or in equity, brought against him 
 in the State, within six months; and as there was no law 
 allovping an ordinary suit thus contemplated to be insti- 
 tuted against a foreign corporation, it was held that 
 neither did such summary process lie against it. (Mc- 
 Queen V. M. Man. Co., 16 tfohns. 4.) But if nothing is 
 required, in respect to the proceeding in question, but 
 that the defendant should appear and plead to that pro- 
 cess, or should give security to perform the decree or 
 order in that cause, these may l)e done by a foreign cor- 
 poration by attorney or agent, and therefore do not pre- 
 clude the proceeding against it (U. S. B'k v. Merch 
 B'k, 1 Hob. 588-'9.) Upon this ground, in the case 
 last named, an attachment in chancery against a foreign 
 corporation was sustained, and doubtless any other kind 
 of attachment would be, imder the statute (Y. C. 1873, 
 c. 148, § 1 to 5, 11.) And so, process of interpleader 
 (Y. C. 1873, c. 149, § 2, 3), and process of distress (Y. 
 C. 1873, c. 134, § 7 & seq), seem to be in like manner 
 available against such a corporation. (Allen & als v. 
 Hart, 18 Grat. 723.) 
 
 And in this connection, let it be observed that, for 
 civil purposes, corporations are in law deemed persons, 
 and will, therefore, be comprehended in that phrase wher- 
 ever it occurs in giving a remedy or otherwise, unless 
 the context demands a contrai'y construction. (U. S. v. 
 Amedy, 11 Wheat. 393; Beaston v. Farmers Bk, 12 
 Pet. 134-'5; Stribbling v. Bk. of Yalley, 5 Eand. 132, 
 140 & se^^9&?e^.b3mi^rm.QSM. Bk, 1 Rob. 589-'90; 
 36 
 
562 COEPOEATIONS. [BOOK I. 
 
 Bait. & O. E. E. Co. v. Gallahue, 12 Grat. 655 ; West. 
 U. Tel. Co. V. Eichmond, 26 Grat. 20 ) 
 
 It may be stated here, although it belongs more pro- 
 perly to the next head, that after the property of a 
 foreign corporation has been transferred to and vested in 
 a receiver, for the benefit of its creditors, under an order 
 of a court of equity in the State where the corporation 
 has its abode, it cannot be reached as the "property of the 
 corporation, by an attachment in another State. (Thomas 
 V. Mech. Bk. 9 Pai, (N. T.) 215; Ang. & A. Corp. 399.) 
 
 An interesting question arose in Clarke v. jN". J. St. 
 Nav. Co., 1 Stor. Circ. Ct. 531, namely, whether the 
 United States courts sitting in one State, can take cog- 
 nizance of a suit in personam, in Admiralty, against a 
 corporation created by another. It was held by Mr. J. 
 Story, that although by the comynon law foreign corpo- 
 rations and non-resident aliens cannot be served with 
 process by any of the courts of common law, nor . their 
 property be attached to compel their appearance, yet the 
 district courts of the United States (as courts of admiralty) 
 may award attachments against the property of either 
 found within their local jurisdiction, for they then pro- 
 ceed, as courts of admiralty delight to do, in rem, by 
 virtue of their jm'isdiction over the property itself, and 
 thus indirectly acquire a jurisdiction in personam, in 
 which aspect it is immaterial whether the property be- 
 longs to a natural person or to a corporation. 
 2^. Mode of Proceeding in Suits by or against Corporations ; 
 W. C. 
 1*. Mode of Proceeding in Sidts where the Corporation is 
 Plaintiff. 
 
 A corporation must sue in its true name, accurately 
 stated, and in its declaration or complaint (except it be an 
 ancient body existing by prescription), it ought to state 
 the fact of its incorporation, although it is not needful to 
 set out the charter itself; nor, indeed is the averment, 
 that it is a corporation, indispensable, though it be proper 
 (1 Chit. PI. 286, 416; Taylor v. Bank of Alexandi-ia, 5 
 Leigh, 475 ; Lithgow's case, 1 Va. Cas. 305 : Eees v. 
 Conocoeheague Bk, 5 Eand. 329-'30 ; Case of Mayor, 
 &c., Lynne Eegis, 10 Co. 120). But at common law the 
 fact of incorporation must' be proved at the trial, unless it 
 be admitted in the pleadings, or unless the charter be a 
 public statute (of which the courts must ex officio take 
 notice), as the charters of pur own banks are held to be 
 in Yirginia, (Stribbling v. Bk. of Yalley, 6 Eand. 132; 
 Hays V. N. W.. Bk. 9 Grat. 130). Thus, upon the gene- 
 ral issue o£i^tM€tfitit MberamA^sit (pleas which do not 
 
CHAP. XVIII.J CORPORATIONS. 563 
 
 admit the fact of incorporation), and also in case of all 
 motions for judgment (e. g., against delinquent share- 
 holders), proof of incorporation is requisite at the trial, 
 -svherever the charter is not a public statute, (Henri ques v. 
 Dutch W. Ind. Co., 2 Ld. Eaym. 1532 ; Grays v. T. Pike 
 Co., 4 Rand. 578; Kees v. Conococheagae Bk, 5 Rand. 
 329-'30; Taylor v. Bk. of Alex'a, 5 Leigh, 475; Jack- 
 ,son V. Bk. of Marietta, 9 Leigh, 240; Bowyer v. T. Pike 
 Co., 9 Grat. 109). But this common law obligation on 
 the plaintiff to prove the fact of incorporation at the 
 trial, is materially qualified in Virginia by statute (V. 
 C. 1873, c. 167, § 40), which enacts that where plain- 
 tiffs or defendants sue or are sued as a corporation, it 
 shall not be necessajy to prove the fact of incorporation, 
 unless ^vith the pleading which puts the matter in issue, 
 there be an affidavit denying such incorporation. 
 
 The fact of the existence of a corporation is to be 
 established, in general, by proof of the charter, of which, 
 if it be by public statute, the courts will ex officio take no- 
 tice — that is, supposing it to be a domestic corporation. 
 If the charter be by private statute, or by order of a 
 circuit court, or if it be a, foreign corporation, the courts 
 do not ex officio notice it, but it m%{,st he proved, in case 
 of a foreign corporation, by a copy of the charter, exem- 
 plified under the great seal of State, or by an examined 
 copy ; and if it be a domestic corporation, by a copy 
 certified by the Secretary of State, or an examined copy 
 if granted by a circuit court or judge;, or if granted by 
 the Legislature, by a copy certified by the keeper of the 
 rolls, or an examined copy, or a copy purporting to be 
 printed by the public printer. A legislative charter 
 from another State of the Union may also be proved by 
 a copy printed by authority, and so may a charter granted 
 by Congress. (1 Bright Dig. 265 ; V. C. 1873, c. 15, § 
 8 ; Id. c. 14, § 14 ; Taylor v. Bank of Alexandria, 5 
 Leigh, 471 ; Thompson v. Musset, 1 Dal. 462 ; 6 Binn. 
 321 ; 2 Stew. & Port. (Ala.) 91 ; 3 Pick. 293 ; Dwarris' 
 Stats. (Potter's Ed.) 57, 60; Ante p. 40, 41.) 
 
 Where the mere charter does not create the corpora- 
 tion, but something additional is required to be done in 
 the way of organization, &c., it is requisite to prove, not 
 the existence of the charter only, but also that the steps 
 subsequently contemplated were taken, and the company 
 duly organized, fee. (King v. Mothersell, 1 Stra. 93 ; 
 Eex V. Martin, 2 Campb. 101, & note ; Grays v. T. Pike 
 Co. 4 Eand. 578 ; Owings v. Speed, 5 Wheat. 420.) 
 But the holding of meetings under the charter, the elec- 
 tion of offilig#i?eurid)>tMotokj#®f other corporate acts, 
 
564 COEPOEATIONS. [BOOK I. 
 
 are in general sufficient evidence of the existence of a 
 company. (Ang. & A. Corp. YO; Ante 520-21.) 
 
 It may be added that it is no defence to an action by a 
 corporation, that its charter was obtained by fraud, nor 
 that by non-user, or inis-user, it is liable to be forfeited. 
 These circumstances may be good ground for cancelling 
 the charter ; but that can be done only upon a writ of 
 quo wwrranto instituted in the name of the Common- 
 wealth for the purpose, and until the forfeiture is judici- 
 ally declared, no advantage can be had of it in collateral 
 suits. (Crump v. U. S. Min. Co. 7 Grat. 352 ; People 
 V. Manhattan Co. 9 Wend. 351 ; Trent v. Cartersville 
 Bridge Co. 11 Leigh, 529.) 
 
 A. plea hy a corporation wmsl purport to he T)y attorney, 
 the body being incapable of appearing in person, as a 
 natural person may ; and it is also safer, if not necessary, 
 that the declaration likemse should picrport to be by at- 
 torney. (1 Chit. PL 584.) 
 2'. Mode of Proceeding where a Corporation is Defendant. 
 It will be expedient here to follow the proceedings 
 more into detail, and to show, (1), The place where, in 
 Virginia, suit is to be instituted against a corporation ; 
 (2), The process to be employed to commence a suit or 
 action against a corporation ; (3), Mode of serving pro- 
 cess on a (;orporation ; and (4), Proceedings in suits 
 against corporations after process served ; 
 W. C. 
 Is. The Place where, in Virginia, suit is to be instituted 
 against a corporation. 
 
 The rule is prescribed by statute, and is the same 
 for actions at law and suits in equity. (Y. C. 1873. c. 
 166, § 1 to 3.) The statute enacts that actions at law 
 or suits in equitj', except where otherwise specially 
 provided, may be brought in the circuit or corporation 
 com"t of any county or corporation, if a corporation be 
 defendant, wherein is — 
 1. Its principal office ; or, 
 
 2 Its mayor, rector, president, or other chief officer 
 resides ; or, 
 
 3. Wherein the cause of action, or any part thereof, 
 
 arose; or, 
 
 4. Wherein, in an action on a policy of insurance, the 
 
 property insured is situated, or the person 
 whose life is insured resides, at the date of the 
 policy. (Y. C. 1873, c. 165, § 1, (cl. 2).) 
 28. The Process to be Employed to Commence a Suit or 
 Action against, a Corporation. „^ 
 omM'M¥%fi?^^r 
 
 At commOT'raw,TTO''wrirt>f 'btfpzcts ad respondendum. 
 
CHAP. XVin.] COEPOKATIONS. 566 
 
 or other writ of arrest, lies against a corporation, for 
 its existence being ideal only, it is incapable of being 
 apprehended or committed to prison ; and therefore it 
 cannot be outlaived, for outlawry supposes a precedent 
 right of arresting, which has been defeated by the party's 
 absconding ; and that also a corporation cannot do. 
 For these reasons the proceedings to compel a corpora- 
 tion to appear to any suit by attorney are, at common 
 law, always hy distress on its goods, and the profits 
 of its lands, after a summons has been executed and 
 not obeyed. And as it has vo soul, as Lord Coke gravely 
 observes, it is not liable to be summoned into the eccle- 
 siastical courts on any account ; i'or those courts act 
 only pro salute animce, and their sentences can only be 
 enforced by spiritual censures, which with corporate 
 bodies would be misplaced and futile. (1 Bl. Com. 
 477 ; 1 Tidd's Pr. 121.) 
 
 In Virginia the statute indicates the process to be a 
 ivrit of summons, commanding the officer to summon 
 the defendant to answer the bill or action (V. C. 1873, 
 c. 166, § 5). No distinct provision is made by the 
 statute to compel corporritiovs specifically to answer to 
 the suit or action, but the general methods prescribed 
 for that purpose are not inapplicable to corporations, 
 whethei- at law (V. C. 1873, c. 172, § M, 45) or in 
 equity (V. C. 1873, c. 167, § 47, 48), and in equity are 
 well supplemented by the process oj distress used at 
 common law, and, if necessary, the proceedings for 
 contempt (Stor. Eq. PI. § 44; Barton's St. in Eq. 47, 91.) 
 3s. Mode of Serving Process on a Corporation. 
 
 At common law the original summons against a cor- 
 poration is served on the head* officer, and if the de- 
 fendants do not appear in due time by attorney, the 
 next process is a writ of distringas, in pursuance of 
 which the officer is to distrein the corporation by its 
 goods and by the profits of its lands, but not by the 
 property of the individual corporators; so that, if the 
 body has neither lands nor goods, there is no way to 
 compel it to appear at law or in equity. (1 Tidd's Pr. 
 121.) 
 
 In Virginia the statute provides that process against 
 or notice to a corporation may be served on its mayor, 
 rector, president, or other chief officer, or in his ab- 
 sence from the county or corporation in which he re- 
 sides, or in which is the principal office of the corpora- 
 tion, if it be a city or to^^^l, on the president of the 
 council, or board of trustees, or in his absence, on the 
 recoi'dei;[3fgjff^cP^J\Mfb§Sf^^^^^''' ^^^^ i^ i* ^^ not 
 
666 COBPOEATIOKTS. [BOOK I. 
 
 a city or towa, on the cashier or treasurer ; and if there 
 be none such, or he be absent, on a member of the 
 board of directors, trustees, or visitors. If the case be 
 against a bank of circulation, and be in a county or cor- 
 poration wherein the bank has a branch, service on the 
 president or cashier of such branch bank shall be suf- 
 ficient ; and if the case be against some other corpora- 
 tion than a bank, and there be not in the county or 
 corporation wherein it is commenced any other person 
 on whom there can be service as aforesaid, service on 
 an affent of the corporation; and if no such agent, pub- 
 lication of a copy of the process or notice, as an order 
 of publication is published (Y. C. 1873, c. 166, § 7, 14), 
 shall be sufficient. Service on any person under these 
 pro\'isions shall be in the county or corporation in which 
 he resides; and the return shall show this, and state on 
 whom and where the service was ; otherwise the service 
 shall not be valid. And similar proceedings are also 
 provided when an action is brought against a corpora- 
 tion before a justice of the peace, upon small demands. 
 (V C. 1873, c. 166, § 7; Id. c. 56, § 32 to 35; Barks- 
 dale V. Neal, 16 Grat. 319.) 
 
 Let it be observed, that in construing this statute in 
 respect to suits where the branches of banks are con- 
 cerned, the suit is to be brought and the declaration 
 filed, not against the branch, but against the mother 
 bank, by its proper corporate name, the statute only 
 allowing the process against the mother bank to be 
 served on the officers of the branch. (Tompkins v. 
 Bi-anch Bank, 11 Leigh, 372 ; Mason v. Farmers 
 Bank, 12 Leigh, 84.) 
 
 In order Clearly to apprehend the effect of these en- 
 actments, it will be requisite to consider them in con- 
 junction with the statute which prescribes where suits 
 shall be instituted (V. C. 1873, c. 165, § 1 (cl. 2), § 2 ; 
 ^n/e p. 564), and with the provision (Y. C. 1873, c. 
 166, § 2), which directs lohat officer may execute pro- 
 cess. It is furthermore necessary to take the three 
 several cases contemplated by the statute (Y. C. 1873, 
 c. 165, § 1, 2), for the locality of the suit, separately : 
 
 1. Where the suit is commenced (pursuant to Y. 
 C. 1873, c. 165, § 1) in the county or corporation 
 wherein the chief officer resides. 
 
 The process must be served on him, unless ^he be 
 absent from the county or corporation. In that event the 
 plaintiff has several options : 
 
 (i). To sei've process on the next subordinate named 
 in the staiEMgijti^M ^o^kgM&tl^ein ; 
 
CHAP. XVin.J COEPOEATIONS. 567 
 
 i (ii). To serve process on the next' subordinate named 
 in order of rank in the county or corporation wherein 
 he resides, not resorting to an inferior unless the supe- 
 rior be absent from his county or corporation: 
 
 (iii). To serve process, in the absence from the 
 county or corporation where suit is brought, of all the 
 named subordinates who reside therein, on any agent of 
 the corporation (not being a bank) resident therein, with 
 publication, &c. 
 
 2. Where the suit is commenced (pursuant to V. C. 
 1873, c. 165, § 1,) in the connty or corporation wherein 
 the chief office is.) 
 
 The process must be served on the chief oiScer, if he 
 reside therein, unless he be absent from the county or corpo- 
 ration. In that event, or if he do not reside there, the 
 plaintiff has several options: 
 
 (i). To send process to the county or corporation 
 where the chief officer resides, to be executed on him; 
 
 (ii). To serve process on the next subordinate named, 
 who may reside in the county, &c., where Suit is brought ; 
 
 (iii). To serve process on the next subordinate named, 
 in order of rank, in the county or corporation wherein 
 he resides; not resorting to an inferior, unless the su- 
 perior be absent from his county or corporation ; 
 
 (iv). To serve process, in the absence from the county 
 or corporation lohere the suit is brought, of all the named 
 subordinates who reside therein, on any agent of the cor- 
 poi'ation (not being a bank) resident therein, with publi- 
 cation, &c. • 
 
 3. "Where the suit is commenced (pursuant to V. C. 
 1873, c. 165, § 2) in the county or corporation where 
 the cause of action arose. 
 
 The process must be served on any of the officers 
 named (chief or subordinate), in order of rank, who 
 may reside therein, and are not at the time absent there- 
 from. If there be none, then the plaintiff has here also 
 several options: 
 
 (i).' To serve process on any agent of the corpora- 
 tion (not being a bank), resident therein, with publica- 
 tion, &c. ; 
 
 (ii) To serve process on the officers named (chief 
 and subordinate), in the order of rank, in the county or 
 corporation wherein each respectively resides; not resort- 
 ing to the inferior, unless the superior be absent from 
 his county or corporation. 
 
 But this last alternative is allowed only in case the 
 corporation be a railroad, canal, turnpike, or telegraph 
 
 company. Q0,^Sh^)^icfoM^ 2.) 
 
568 OOEPOKATIONS. [bOOK I. 
 
 4. Where the suit is commenced (pursuant to Y. C. 
 1873, c. 165, § 1) in the county or corporation where in- 
 sured property is, or a person whose life is insured resided 
 at the date of the policy. 
 
 The process is to be served as in the preceding case 
 (3, supra) ; or if the corporation be a foreign insurance 
 company, it may be served upon the agent of such com- 
 pany, resident in the Commonwealth, whom the law 
 requires to be appointed. (V. C. 1873, c. 36, § 20, 23.) 
 4s. Proceedings in Suits against Corporations, after Pro- 
 cess Served. * 
 
 The proceeding against a corporation, after once it 
 has been properly convened before the court, is sub- 
 stantially the same as in case of a natural person. 
 Whether plaintiff or defendant, the corporation ought 
 to be designated by its true name ; and at common law, 
 if a mistake occurs in either, it may be taken advantage 
 of by a plea in abatement for the misnomer, but not by a 
 plea in bar, in consequence of any supposed variance 
 from the alleged cause of action, that is, unless there be 
 no such corporation in rerum natura. (1 Chit. PI. 282; 
 Mayor, &c. of Stafford v. Bolton, 1 Bos. & Pul. 40 ; 
 Jowett V. Charnock, 6 M. & Selw. 46 ; Boughton v 
 Frere, 3 Camp. 29 ; Doe v. Miller, 1 B. & Aid. (4* E. 
 C. L. ) 753.) In Virginia, by statute, no plea in abate- 
 ment for misnomer is allowed in any action; but the de- 
 claration may on the defendant's motion, and on afiBdavit 
 of the right name, be amended hj iaserting the right 
 name. (V. C. 1873, c. 167, § 18.) And where the con- 
 tract, being in writing, is made by or to a corporation, 
 by a name different from its true name only in syllabis 
 et verbis, and not in sensu et re ipsa, the best course is to 
 sue by the right name, and aver in the declaration, in 
 describing the writing, that it was made by or to the 
 body by the name mentioned in the instrument, by 
 which name as well as by the right name it is called 
 and known. Of course the identity of the corpo- 
 ration named in the instrument, with that which sues, 
 or is sued, must be made to appear at the trial, a diver- 
 sity in syllabis et verbis being of no importance if it 
 appear by express averment in the pleadings, or by the 
 iinding of a jury, that the bodies are one and the same. 
 (Case of Mayor, &c. of Lynne, 10 Co. 125 b ; Cul- 
 peper, &c. Man. Soc. v. Digges, 6 Hand. 167-'8; Aug. 
 & A. Corp. 583 & seq.) 
 
 The testimony of a corporator is not at common law 
 admissible for the corporation, wherever any advan- 
 tage, how^Y^j^ikbA, mibim^am^ *« i^™ ^i^om ^^ tes- 
 
CHAP. XVIII.J COEPOEATIONS. 569 
 
 timony ; save only for collateral purposes, as to prove 
 the custody or loss of a document, &c. But where the 
 members of the body corporate have no private pecu- 
 niary interest therein, they are competent vsdtnesses, as 
 in case of the trustees or members of a purely charitable 
 foundation, such as a hospital, &c. So they may in 
 general be made competent by assigning their shares, 
 fully paid up, or by a legal sentence of disfranchise- 
 ment. (Kex V. Mayor of London, 2 Lev. 231 ; Steven- 
 son V. JSTevinson, 2 Stra. 583 ; S. C. 2 Ld. Kaym. 1533 ; 
 Maj'or of Colchester's case, 1 P. Wms. 595; Ang. & 
 A. Corp. 587-'8, 593.) But at present, in Virginia, 
 interest constitutes no disqualification to testify. " ISTo 
 witness," says the statute, "shall be incompetent to 
 testify because of interest." (V. C. 1873, c. 172, § 21.) 
 
 Whether the admissions of a member of a coi'jjorate 
 body may be proved against the body, is a question 
 not wholly settled. It woiild seem that whenever a 
 corporator may not at common law be examined as a 
 witness, he has such a joint interest as would make his 
 admissions evidence against the corporation more or 
 less persuasive, according as his opportunity and mo- 
 tive to ascertain the truth of the fact admitted were 
 greater or less. . (1 Greenl. Evid., § 175, & n 4; Ang. 
 & A. Corp. 592.) 
 
 Proceedings in equity, by a corporation as com- 
 plainant, are, in the main, conducted in like manner as 
 by a natural person; and with us the same rule pre- 
 vails as at law touching the necessity and modes of 
 proving the incorporation. [Ante p. 562~'63.) Pro- 
 ceedings against a corporation as defendant, are marJced 
 by several diversities as compared with those against a 
 natural person. Thus, the answer of a corporation 
 must be under the common seal, instead of under oath; 
 but so far as it is responsive to the bill, it has the same 
 eifect as if it were sworn to. (Mitf . Eq PI. 9 ; Stor. 
 Eq. PL § 874; Bart. St. in Eq. 110; Kexv. Windham, 
 Cowp. 377; Anon. 1 Vern. 117; Thornton v. Gordon, 
 2 Rob. 719; Bait. & O. E. E. Co. v. Gallahue, 12 Grat. 
 655); and where the custodian of the common seal re- 
 fuses to aflix it to an answer to which the proper autho- 
 rities have assented, he may be constrained to do it by 
 mandamus. (Eex v. Windham, Cowp. 377.) 
 
 As the answer thus, under the comynon seal, how 
 false soever it may be, involves no perjury, where an 
 appeal is really desired to be made to somebody's con- 
 science for a discovery of facts, it is customary to make 
 such of thqD^fe'g J5y mSh^ffk corporators as are 
 
570 00EP0BATI0N8. [BOOK I. 
 
 supposed to be personally cognizant of them, parties 
 defendant along with the conapany itself; and notwith- 
 standing the general rule in equity is that a mei-e 
 witness shall not be made defendant to a bill, yet the 
 convenience of the practice in question has caused it to 
 be long employed both in England and in this country. 
 (Bac. Abr. Corp. (E); Wych v. Meal, 3 P. Wms. 310; 
 Moodalay v. Morton, 1 Bro. C. C. 469; Duramer v. 
 Chippenham, 14 Ves. 245, 252; Stor. Eq. PI. § 235.) 
 Independently of statute, the appearance and answer 
 of a corporation are^compelled in equity, after service of 
 the iii'st process of suhposna (as the summons in chan- 
 cery is styled), by distringas, or distress of the corpo- 
 rate chattels and the profits of the lands ; and if that 
 be unavailing, by further process of contemjjt. (Stor. 
 Eq. PI. § 44; Ang. & A. Corp. 597, & seq.) In Vir- 
 ginia, the summons is in like terms as at law, and is 
 followed by like orders, taking the bill for confessed, 
 and entering a decree by default against the defendant, 
 and, if need be, constraining an answer by process of 
 contempt. (Y. C. 1873, c. 107, § 43, 47, 48 ; Ante p. 
 565.) 
 7'^. Power to remove Members and Officers. 
 
 See 2 Kent's Com. 224; Ang. & A. Corp. 83; Ante p. 
 525 & seq. 
 3°. Disabilities of Corporations. 
 
 The disabilities of corporations are thus summed up, not 
 with entire accuracy, by Sir Wm. Blackstone. (1 Bl. Com. 
 476-'7.) Numbers are attached to the several propositions, 
 in order to point out those inaccuracies, or the changes in 
 doctrine which have occurred since he wrote : 
 
 (1). "It must always appear by attorney, for it cannot 
 appear in person, being, as Sir Edw. Coke says, invisible, 
 and existing only in intendment and consideration of law; 
 (2). " It can neither maintain, nor be made defendant to, 
 an action of battery, or such like personal injuries; for a cor- 
 poration can neither beat nor be beaten in its body politic ; 
 (3). "A corporation cannot commit treason or felony, 
 or other crime, in its corporate capacity, though its members 
 may in their distinct individual capacities; 
 
 (4). " Neither is it capable of suffering a traitor's or felon's 
 punishment, for it is not liable to corporal penalties, nor to 
 attainder, forfeiture, or corruption of blood ; 
 
 (5). "It cannot be executor or administrator, or perform 
 any personal duties; for it cannot take an oath for the due 
 execution of the office ; 
 
 (6). "It cannot be seised of lands to the use of another. 
 Digitized by Microsoft® 
 
CHAP. XYIII.J OOEPOEATIONS. 571 
 
 for Slick kind of confidence is foreign to the end of its in- 
 stitution ; 
 
 (7). "Neither can it be committed to prison; for its ex- 
 istence being ideal, no man can apprehend or arrest it. 
 
 (8). "And therefore, also, it cannot he outlawed; for out- 
 lawry alwaj's supposes a precedent right of arresting, which 
 has been defeated by the party's absconding, and that, also, 
 a corporation cannot do; for which reasons the proceedings 
 to compel a corporation to appear to anj^ suit by attorney 
 are always hy distress on their lands and goods ; 
 
 (9). "Neither can a corporation be excommunicated; for 
 it has no soul, as is gravely observed by Sir Edward Coke ; 
 (10). "And therefore, a corporation is not liable to be 
 summoned into the ecclesiastical court upon any account; 
 for those courts act only pro salute animm, and their sen- 
 tences can only be enforced by spiritual censures." 
 
 We have seen, in the course of the discussion, that some 
 of these propositions have been by subsequent authorities 
 ovei-ruled, and others qualified, and it will, therefore, be ex- 
 pedient to consider them in order; 
 W. C. 
 I''. Disability of a Corporation to appear in Person. 
 
 This disability exists as stated by Blackstone. 
 2'^. Disability to Maintain, or be made Defendant to, an action 
 of battery, or such like personal injuries. 
 
 The modifications of this doctrine have been set forth 
 Ante p. 558. 
 3'^. Disability to commit Treason or Felony, or other crime. 
 
 This is true as to treason or felony. As to misdemea- 
 nors, which may be appropriately punished iy fines, it is 
 materially qualified. See Aide, p. 659. 
 4"^. Disability to suffer Corporal Penalties, or to be liable to 
 Attainder. 
 
 This disability exists as stated by Blackstone. 
 5'^. Disability to be Executor or Admiiiistrator . 
 
 This disability was never applied to any but corporations 
 aggregate, for as corporations sole can prove the will and 
 take the oath., they were never considered to be within the 
 disability. And it seems to be now settled that when even 
 an aggregate corporation is named executor, it may appoint 
 persons styled syndics to receive administration with tlie 
 will annexed, who are sworn like other administrators. It 
 is remarkable that Blackstone should have taken no notice 
 of this quahfication, seeing that it had been exemplified in 
 the will of Mr. Viner, whereby he endowed the professor- 
 ship by virtue of which the commentator was delivering 
 the lectures which constituted the substance of his great 
 work. Mr. VC;^;iiekdiJSjia1/WteRj^Si^fe©constituted the Uni- 
 
672 COEPOEATIONS. [bOOK I. 
 
 versity of Oxford his executor, which committed the work 
 to several members of the university convocation, as ad- 
 ministrators luith the will annexed. (1 Bl. Com. 28, note (h) j 
 Bac. Abr. Ex'or (A), 2; 1 Lom. Ex. 165-'6.) 
 6*. Disability to stand Seised to a Use, or to be a Trustee. 
 
 It is true, as Blackstone suggests' in referring to this 
 disability, that a corporation, being a •political institution, set 
 on foot for objects of public benefit, has no other capacities 
 and powers than are xieeessary, or fairly auxiliary, to effect 
 the purposes of its creation. But it is now perfectly settled 
 that it may be seised to uses, either as a feoffee or bargainor, 
 and a fortiori may be a trustee for purposes not foreign to 
 its institution. And whenever a corporation may be a 
 trustee, equity will compel a due observance and fulfilment 
 of the trust; and, as we have seen {Ante, p. 550), if the 
 corporation is not competent, for any reason, to fulfil the 
 trust, equity will supply another trustee. (2 Kent's Com. 
 279 ; 2 Th. Co. Lit. 601, n (C) ; Gilb. Uses, &c., 6, & seq., 
 n (1); Id. 367; Atto. G-en, v. Utica Ins. Co., 2 Johns. C. 
 K. 389; Jackson v. Hartwell, 8 Johns. 422; Phillips' Acad. 
 V. King, 12 Mass. 546; Sutton v. Cole, 3 Pick. 232; Am- 
 herst Acad. V. Cowes, 6 Pick. 427; Yidal v. Girard's Ex'ors, 
 •2 How. 127; Dummer v. Chippenham, 14 Ves. 252-'3; 
 Atto. Gen. v. Foundling Hospital, 2 Ves. Jr. 42, & n (2).) 
 7*. Disability to he Imprisoned. 
 
 This disability, of course, exists without modification, 
 and is attended by the general consequences stated by 
 Blackstone. 
 8''. Disability to he Outlawed. 
 
 This disability, doubtless, remains Mrithout change with 
 us. 
 9"^. Disability to he Excommunicated. 
 
 As we have no ecclesiastical authority in this country 
 clothed with civil power, there can be no such process with 
 IIS as that of excommunication, of which the law takes cog- 
 nizance. 
 10'^. Disability to be Summoned into the Ecclesiastical Courts. 
 We have no ecclesiastical courts in Virginia, and, of 
 course, a corporation can be under no disability in re- 
 spect to them, any more than a natural person. 
 S^. The Relation of Members to the Corporation; W. C. 
 1". Personal Liability of Members for the Contracts and Torts 
 of the Corjporation. 
 
 In general the members individually are not responsible 
 for the engagements of the body corporate, or for its 
 torts. In the case of corporations not municipal, the mem- 
 bers are liable only when it is so provided in the charter 
 or by some g®i^i&(SabytMiOIPDs6^ they have been so 
 
■CHAP. XVIII.J OOEPOEATIONS. 573 
 
 personally concerned in the transaction as to have made 
 themselves liable by their own act, either by a promise, 
 in case of contract^ or in case of tort, by participating 
 therein. (Bac. Abr. Corp. (E) 5 ; Harman v. Tappen- 
 den & als, 1 East. 565; S. C. 3 Esp. 278; Anderson v. 
 Com'th, 18 Grat. 295, 297, & seq. ; 2 Kent's Com. 272, 
 n b. But see Harvey v. E. India Co., 2 Vern. 396, 
 note, citing Salmon v. Hamboroiigh Co.) But municipal 
 corporations, siich as cities, counties, &c., having usually 
 no corporate fund, each inhabitant is liable for every 
 established demand against it, if the statute gives a suit 
 against such a community. (2 Kent's Com. 274 ; Ante 
 p. 503.) 
 2'=. Nature and Transfer of Stock in Joint- Stock Corporations. 
 In corporations constituted for municipal or eleemosy- 
 nary or religious purposes and the like, although the 
 bodies may be possessed of vast wealth (e. g. the corpora- 
 tion of Trinitj' church in New York), yet the individual 
 corporators have no separate interest therein, but are mere 
 trustees for the purposes of the charter. But companies 
 organized for ' business purposes, and for proiit to their 
 members, consist usually of persons who have taken shares 
 in the enterprise, and are denominated joint-stock' com- 
 panies. The principles which regulate the subscription 
 for shares are stated Ante p. 528 & seq., and those which 
 relate to the transfer of shares are mentioned Ante p. 523 
 & seq. 
 6^. The Visitation of Corporations. 
 
 Corporations being composed of individuals subject to 
 human fi-ailties, are liable, as well as private persons, to 
 deviate from the end of their institution. And for that 
 reason the law has provided proper persons or authorities 
 to visit, enquire into, and correct all irregularities that 
 arise in such corporations, either sole or aggregate, and 
 whether ecclesiastical, civil, or eleemosynary The visitato- 
 rial control exercised over eleemosynary corporations, how- 
 ever, differs so materially from that which is applicable to 
 such as are ecclesiastical or civil, that some writers have pro- 
 posed to employ the phrase visitation in respect to eleemosy- 
 nary corporations alone (2 Kent's Com. 304; 1 Bl. Com. 
 481, n's (c) and (12);) but as the idea 'and object of visita- 
 tion is to have a controlling authority outside of the corpora- 
 tion itself, to constrain it to fulfil its functions, it will pro- 
 bably tend more to clearness of apprehension to adopt Black- 
 stone's view of the subject. (1 Bl. Com. 480. ) Let us con- 
 sider, therefore, the doctrines applicable to — (1), The visita- 
 tion of ecclesiastical corporations ; and, (2), The visitation of 
 lay corporations. Digitized by Microsoft® 
 
674: COKPOEATIONS. [bOOK I. 
 
 w. c. 
 
 1". The Visitation of Ecclesiastical Corporations. 
 
 The ordinary is the visitor .of ecclesiastical corporations 
 — ^that is, the king, as supreme ordinary, is the visitor of 
 the archbishop or metropolitan ; the metropolitan has the 
 charge or coercion of all his suffragan bishops; and the 
 bishops, in their several dioceses, are the visitors of all 
 deans and chapters, of all parsons and vicars, and of all 
 other spiritual coporations, a power which they usually 
 exercise, so far as concerns coercion, through the several 
 orders of ecclesiastical courts. (1 Bl. Com. 480 ; Id. 
 380-'81, 382; Bishop of St. Davids v. Lucy, 1 Ld. Eaym. 
 447; S. C. Id. 539.) 
 
 In this country there are, for the most part, no ecclesias- 
 tical corporations. But if there should be any, as there are 
 no spiritual authorities by law established with us, it is sup- 
 posed they are to be visited in the same manner as such as 
 are eleemosynary. 
 2°. The Visitation of iay Corporations; W C. 
 1*. The Visitation of Eleemosynary Corporations. 
 
 It .is said that no other corporations go under the name 
 of eleemosynary but colleges, schools and hospitals, and 
 they are s(j only when they bestow their advantages gra- 
 tuitously. At common law they are visited by the founder 
 or his heirs, or as the founder shall appoint; and by the 
 founder is commonly meant the endower, whom Blackstone 
 denominates the fundotor perficiens, in contradistinction to 
 the Crown, which is the fundator incipiens. If, however, 
 the King and a private man join in an endowment, the 
 King, by his prerogative, is to be deemed the founder, 
 both perficiens and incipiens, and consequently the King is 
 the visitor, and exercises his functions as such for the most 
 part in the King's bench, but sometimes in the court of 
 chancery. 
 
 In Virginia the same principles prevail. Eleemosynary 
 corporations are visited as the founder shall direct, or in 
 the absence of any direction, by the founder himself or 
 his heirs, observing that if any part of the endowment is 
 supplied by the Commonwealth, it constitutes the Common- 
 wealth the founder and visitor, a function which it exer- 
 cises through ithe legislature, and also through the courts, — 
 for the most part the courts of law, — and by means of the 
 writs of mandamus and quo warranto. 
 
 The visitor appointed by the founder, or the founder 
 and his heirs, if they act as visitors, determine finally and 
 without appeal all questions relating to the interior polity 
 and administration of the institution (1 Bl. Com. 483-'4, 
 & n (5) ; 7\nM0ke&h^!^cMK&^xa.. 5 ; King v. Bishop 
 
OHAP. XVIII.J C0EP0EATI0N8. 575 
 
 of Ely, 2 T. E 290 ; St. John's Coll. v. Bishop of Ely, 1 
 Burr. 200 ; 2 Kent's Com. 302) ; but the visitor is still 
 not beyond the reach of the law. In respect of contracts 
 made lawfully, and trusts assumed, the court will always 
 constrain the observance of justice and right; and the 
 court of chancery, by virtue of its general jurisdiction in 
 cases of abuse of trust, and of fraiid, will grant redress 
 in such cases ; and where the corporation is a mere trus- 
 tee of a charity, it will, if need be, talce away the trust 
 altogether, and vest it in some other hands. (2 Kent's 
 Com. 303-'4 ; Atto. Gen. v. Foimdling Hosp. 2 Yes. Jun. 
 42 ; Dartmouth Col. v Woodward, i Wheat. 6Y6, Story, 
 J.) 
 2''. The Visitation of Civil Corporations. 
 
 Blackstone insists that civil corporations being always 
 founded solely by the King, the right of visitation results 
 to him by the same rule as in eleemosynary corporations, 
 by virtue of being such founder ; his functions being exer- 
 cised, as in that case, in the courts of justice. At all 
 events, civil corporations are, in fact, visited and controlled 
 by the King's court, — usually by the court of King's bench, 
 by means of the writs of manda.m'us and quo ivarranto. 
 
 In Yirginia also, civil corporations (whether public or 
 private) are visited and restrained, or kept up to their 
 duty, in the courts; — for the most part courts of law, and 
 by means of the same writs of mandamus and quo warranto. 
 (2 Kent's Com. 304 ; Com'th v. James Riv. Co. 2 Va. Cas. 
 190 j Ang. & A. Corp. 610, 630, & seq. 684, & seq.) 
 V'. Jiidicial Proceedings to restrain and dii-ect Corporations in 
 the exercise of their Functions and Franchises ; W. C. 
 1°- Writ of Mandamus. 
 
 A writ of mandamus in the name of the Commonivealth 
 may, with us, issue from a circuit or corporation court, 
 directed to any person, corporation, or inferior court within 
 the State, requiring to be done some particular ministerial 
 act therein specified which appertains to theii- duty. It is 
 a writ of an extensively remedial nature, and issues in all 
 cases where the party has a right to have any ministerial 
 act done, and has no other specific and adequate means of 
 compelling its performance, or of obtaining redress. A 
 mandamus, therefore, lies to compel the admission or resto- 
 ration of the party applying, to any ofiicer in a corporate 
 company ; to academical degrees ; to oblige bodies corpo- 
 rate to affix their common seal, &c. (3 Bl. Com. 110 ; 
 Booker v. Young, 12 Grat. 303, 306 ; 3 Bl. Com. 264-'5, 
 & n (11); Y. C. 1873, c. 151, § 1, &c.; Bac. Abr. Man- 
 damus, (C) & (D).) 
 2". Writ of Q,uoD1§iti2i^tt)y Microsoft® 
 
576 COKPOBATIONS. [bOOK I. 
 
 A writ of quo warranto is. in the nature of a writ of .right 
 for the Crown or Commonwealth against one who claims 
 or usurps any office, franchise, or liberty, in order to en- 
 quire by what authority he supports his claim, in order to 
 determine the right. It lies also in case of non-user, or long 
 neglect of a franchise, or mis-user, or abuse of it ; being a 
 writ commanding the defendant to show 6?/ luhat warrant 
 he exercises such a franchise, having never had any grant 
 of it,, or having forfeited it by neglect or abuse. If judg- 
 ment be for the defend qjit, it is a judicial allowance of the 
 franchise ; but in case of judgment for the Crown or Com- 
 monwealth, because the party is entitled to no such fran- 
 chise, or has disused or abused it, the franchise is either 
 seised into the hands of the sovereign power, to be granted 
 out again, or there is merely a judgment of ouster, to turn 
 out the party who usurps it. (3 Bl. Com. 262-'3 ; V C. 
 1873, c. 61 § 56 ; Commonwealth v. Birchett, 2 Va. Cas. 51 ; 
 Commonwealth v. J. Kiver Co. 190 ; Ang. & A. Corp. 684 
 & seq.) 
 8^. Dissolution of Corporations. 
 
 Any particular member may be disfranchised, as we have 
 seen, or may lose his place in the corporation, by acting con- 
 .trary to the laws of the society, or the laws of the land ; or 
 he may relinquish it by his own voluntary act of resignation 
 or transfer. But the body politic may also itself be dissolved 
 in several ways, which dissolution is the civil death of the 
 corporation. Let us first enquire into the consequences of 
 such dissolution, and then consider t/ie modes by which it 
 may be brought about. (1 Bl. Com. 484: ; 2 Kent's Com. 
 305 & seq.) " 
 W. C. 
 1". The Consequences of a Dissolution of a Corporation. 
 
 Upon the dissolution of a corporation, at common law, 
 the lands and tenements belonging to it revert to the per- 
 son, or his heirs, who granted them to the corporation, 
 whilst the chattels in possession go to the crown, or, with 
 us, to the Commonwealth. (1 Bl. Com. 484.) 
 
 Several reasons are given why the lands and tenements 
 of the corporation should revert to the grantor — namely, 
 that the law annexes a condition to every such grant, that 
 if the corporation be dissolved, the grantor shall have the 
 land again, because the cause of the gi-ant fails; and also, 
 that the grant is only during the life of the corporation; 
 which may endure forever; but when that life is determined 
 by the dissolution of the body politic, the grantor takes it 
 back by reversion, as in the case of every other grant for 
 life. It seems, however, to be merely the case of a base or 
 determinable fiBjgiti^diaj^ilHacmsc^SMl soon become better 
 
CHAP. XVin.J COKPOKATIONS. 577 
 
 acquainted in the second volume. (1 Bl. Com. 484; 2 do. 
 109; 2 Insts. Com. & Stat. Law, c. vii; Boiling v. Mayor of 
 Petersburg, 8 Leigh, 224.) 
 
 A further consequence, at common law, of the dissolu- 
 tion of a corporation, is that debts' due to it and debts due 
 from it are alike lost, the defunct corporation being inca- 
 pable either of suing or being sued, and the individual cor- 
 porators being neither entitled to claim what is due to the 
 body politic, nor bound for what is due from it^ agreeably 
 to the doctrine of the Roman law, " /Si quid universiinti de- 
 betur, singulis non debetur ; nee quod debet universitas, singuli 
 debeni." (Dig: Lib. Ill, 4, 7; 1 Bl. Com; 484; 2 Kent's 
 Com. 307; Edmunds v. Brown & al, 1 Lev. 237; Eider v. 
 Union Factory, 7 Leigh, 154; Bank of Alexandria v.Patton, 
 1 Eob. 499 ; May v. State Bank of IST. Car'a, 2 Bob. 66.) 
 
 The common law doctrine in this particular, however, 
 is frequently modified by charter, or by statute, as we 
 shall presently see it has been in Virginia. (2 Kent's Com. 
 307-'8.) 
 
 The embarrassment arising from these common law con- 
 sequences of the extinction of a corporation may be, and 
 in most instances is, practically obviated by an assignment, 
 which the corporation, in anticipation of its end, makes to 
 trustees, of all its property and effects of every sort, upon 
 trust to collect the debts due to the corporation, or to 
 secure them by deed of trust, which is good, notwithstand- 
 ing the dissolution of the corporation, to sell the property 
 belonging to it, to pay the debts due from it, and to dis- 
 tribute the residue amongst the corporators. Or the 
 assignment may be to a succeeding corporation, who must 
 pay the debts, and is entitled to recover those due to the 
 predecessor. (Aug. & A Corp. 751; King v. Jno. Pas- 
 more, 3 T. E. 241-2; Mayor, &c., of Colchester v. Seabor, 
 3 Burr. 1866; Mayor, &c., of Scarborough v, Butler, 3 
 Lev. 237; Eider v. Union Factory, 7 Leigh, 154; May v. 
 State Bank of IST. Car'a, 2 Eob. 56; Bank of Alexandria 
 V. Patton, 1 Eob. 499 ; Barksdale & als v. Finney, 14 Grat. 
 338; Zantzinger v. Gunton, 19 Wal. 32.) 
 
 In Virginia, this result is accomplished in most cases by 
 statute, which enacts that "when any corporation shall 
 expire or be dissolved, or its corporate rights and privileges 
 shall have ceased, all its works and property, and debts due 
 to it, shall be subject to the payment of debts due by it, 
 and then to distribution among the members according to 
 their respective interests; and such corporation may sue 
 and be sued as before, for the purpose of collecting debts 
 due to it, prosecuting rights under pre\T.ous contracts with 
 it,_ and eTdoEft^4^^^^]^§oW4 distributing the pro- 
 37 
 
578 COEPOBATIONS. [bOOE I. 
 
 ceeds of its works, property and debts among those entitled 
 thereto." (V. C. 1873, c. 56, § 31.) 
 
 A corporation having been dissolved, may be, of course, 
 revived again by the charter-making power, or a new one 
 may be created with the same name, the same members 
 and officers, the same object and purpose, and the same 
 capacities; but it is very material to distinguish whether 
 it is the one or the other. If it be a revival of the old 
 corppration, all the rights and responsibilities thereof are 
 revived with it; whereas, if it be a new charter of incorpo- 
 tion, notwithstanding the identity of name and other par- 
 ticulars, none of the rights and obligations of the former 
 attach to it, unless, indeed, it be so pi-ovided in the new 
 charter, and the same be accepted. And in order to ascer- 
 tain whether a new corporation is created, or only a former 
 one revived, the terms of the charter must be considered, 
 and the legislative intent explored by the established rules 
 of construction. (King v. Pasmore, 3 T. E. 241-'2, 247 to 
 249 . Wyman v. Hallowell & A. Bank, 14 Mass. 58 ; Hop- 
 kins V. Swansea Corp., 4 M. & Welsby, 621; J. Kiv. & 
 Ka. Co. V. Early, 13 Grat. 541; Wilson 'v. Ches. & O. E. 
 K. Co., 21 G-rat. 660, & seq.) 
 2°. Modes of Dissolving Corporations. 
 
 It will be needful to discriminate here between public 
 and private corporations, the precise difference between 
 which has been already set forth. (See Ante p. 503-'4; J. 
 Eiv. & K. Co. V. Early, 13 Grat. 552-'3.) 
 W. C. 
 1'^. Modes of dissolving Public Corporations. 
 
 The modes of dissoh-ing public corporations are these 
 four, namely: (1), By act of the legislature ; (2), By the 
 loss of all its members, or of an integral part of itself by 
 death or otherwise; (3), By the surrender of its franchise 
 to be a corporation ; and (4), By forfeiture of its franchise 
 by non-user or misuser. And of these four modes, tlie last 
 three are identical with those applicable to private corpo- 
 rations. The first mode only, — namely, by act of the legis- 
 lature, — presents a material diversity ; 
 W. C. 
 1". Dissolution of Corporations by Act of Legislature. 
 
 The main distinction, it will be remembered, between 
 public and private corporations is, that over the former 
 the Legislature, as the trustee and guardian of the public 
 interests, has exclusive and unrestrained control; and as it 
 may create by the exertion of its own will, so it may 
 modify or destroy them, as public exigency requires or re- 
 commends; whilst the charters of private corporations, 
 on the ather/J^p(^e^^/q!3g^g®td^®llf®wimc!!s, and, as we have 
 
CHAP. XVIII.J C0KP0EATI0N8. 579 
 
 seen, are protected by that clause of the Constitution of 
 the United States (Art. I, § x. 1) which forbids a State 
 to pass any law impairing the obligation of contracts. 
 (Fletcher v. Peck, 5 Cr. 88; Terrett V. Taylor, 9 Cr. 43 
 Dartmouth Col. v. Woodward, 4 Wheat, 5i8, 694 & seq 
 Eich'd, Fred. & Pot. E. R. Co. v. Louisa E.E. Co., 13 How 
 71; Yeaton v. Bank of Old Domin'n, 21 Grat. 598-'9 
 City of Eichmond v. Danville E. E. Co., 21 Grat. 604.) 
 
 Thus, a municipal corporation, such as a city, town, 
 county, township, school district, &c., being public, is 
 subject thus to be dissolved or modified at the discretion 
 of the Legislature. So is any corporation created exclu- 
 sively for public purposes, and endowed even in part with 
 puilic funds, such as the University of Yirginia, the Vir- 
 ginia Militai-y Institute, the Board of Education (save in so 
 far as the constitution regulates it), the insane asylums at 
 Staunton, Williamsburg, &c., the Deaf, Dumb and Blind 
 Asylum, &c. The corporation is not public, however, 
 wliere rhe design of it is gain, merely because the govern- 
 ment is a shareholder therein, as in case of a bank or inter- 
 I ual improvement company. In such case, even though the 
 government owns the whole stock, it does not impart to 
 the corporation any of the attributes of its own sove- 
 reignty, such as non-liability to be sued, &c., although, 
 being the sole proprietor, the government is of course com- 
 petent to modify or abolish it at pleasure. (Bk. of U. S. 
 V. Planters Bk.'of Georgia, 9 Wheat. 907; Bk. of Ken- 
 tucky V. Wistar & als, 2 Pet. 318 ; Bk. of U. S. v. Mc- 
 Kenzie, 2 Brock. E. 393; Dunningtons v. N. W. Eoad, 
 6 Grat. 170-'71; Eichm'd v. Danville E. E. Co., 21 Grat. 
 604. See Sayre v. N". W. T. Pike, 10 Leigh, 454; Boul- 
 ton V. Crowther, 2 B. &. Cr. (9 E. C. L.) 703; Plate Glass 
 Co. V. Meredith, 4 T. E. 794; 8 Cow. 146.) 
 2''- Dissolution of Corporation by the loss of all its Mem- 
 bers, or of an integral part of itself, by death or otherwise. 
 
 By the death of all its members a corporation aggregate, 
 other than & joint-stock cotnpany, is always dissoh^ed. In 
 the case of a joint-stock company, the shares are trans- 
 mitted to the personal representatives of the shareholders, 
 so that the death of the latter does not interrupt the suc- 
 cession. The death of all the members extinguishes the 
 corporation only where the corporators have no separate 
 property therein. And in such cases also the corporation 
 is dissolved when, from death or disfranchisement, so few 
 members remain that by the charter they cannot continue 
 the succession; as in Virginia, where the number in cer- 
 tain corporations is reduced below five, or rather where 
 four-fifths of WI^\WzbA %!(ybSfoisedi#<|>roperty of less than 
 
580 COEPOBATIONS. [bOOK I. 
 
 five persons. &c. (V. C. 1873, e. 57, § 36); and also 
 where one of several necessary integral parts is lost. 
 (Colchester v. Seabor, 3 Burr. 870; S. C. 1 Win. Bl. 591; 
 Hex V. Pasmore, 3 T. E. 241; Rex. v. Miller, 6 T. R. 278; 
 Rex V. Morris, 3 East. 216; Strata Marcella, 9 Co. 25 b; 
 2 Kent's Com. 309.) 
 
 The dissolution of a corporation from the loss of a por- 
 tion of its members, or of one or more of its integralimrts 
 (that is, distinct parts without every one of which the body 
 is incomplete, — e. g., a corporation consisting of Mayor, 
 Aldernien and commonalty), results from the incapacity 
 of the body in its imperfect state, either to act, or to re- 
 store itself by a new election. Wherever, therefore, the 
 corporation may restore itself, or be restored by a new 
 ■election or appointment, although until so restored it may 
 be suspended, yet it is not extinguished. (Com. Dig. 
 ■Franchise (G. 4); Rex; v. Pasmore, 3 T. R. 241, 243 ; Phil- 
 lips V. Wickham, 1 Pai Ch. R (IST. Y.) 596-'7; Slee v. 
 Bloom, 19 Johns. 459.) 
 
 This method of dissolution is as applicable to private 
 :as to public corporations, save only that, in the United 
 States especially, it is not customary to have even muni- 
 •cipal corporations, and much \q%% private ones, composed 
 of integral parts ; for where a corporation is designated 
 by such a title as " The President, Directors & Co.," tfcc, 
 the president and directors are not generally integral parts, 
 and their non-existence by no means supposes even the 
 suspension, much less the extinction, of the body politic. 
 (Phillips V. Wickham, 1 Pai. Ch. R. (IST. Y.) 590; Rus- 
 sell V. McClellan, 14 Pick. 63.) 
 3". Dissolution of a Corporation by the Surrender of its 
 Franchise to he a Corporation. 
 
 The capacity of a mumcipal corporation to surrender its 
 corporate existence has been in England inuch questioned 
 (Ang. &' A. Corp. 736, & n 2; Rex v. Amery, 2 T. R. 
 531, 532); but the better opinion is, that where duly 
 made, the surrender is effectual to dissolve the municipal 
 body. (Rex v. Miller, 6 T. R. 277; Rex v. Hawthorne, 
 5 B. & Cr. (11 E. C. L.) 410; Butler v. Palmer, 1 Salk. 
 191; Newling v. Francis, 3 T. R. 196-'7 ; Rex v. Hol- 
 land, 2 East. 72; Rex v. Osborne, 4 East. 335; 2 Kent's 
 Com. 309, & seq.) 
 
 The power of a private corporation to make such sur- 
 render appears never to have been donbted. (2 Kent's 
 Com. 311; Mumma v. Pot. Co., 8 Pet. 281; Slee v. 
 Bloom, 19 Johns 456 ; McLaren v. Pennington, 1 Pai. 
 Ch. R. (]Sr. Y.) 107; Riddle v. Merrimac Locks, 7 Mass. 
 185 ; Hamp0iMzecfE&»riKtee93P9'?Sass. 86.) 
 
CHAP. XVm.J COEPOEATIONS. 581 
 
 It seems that the officers of a corporation cannot dis- 
 solve it withoiit the consent of the corporators any more 
 than they can assign its effects, &c., without such assent; 
 and in all cases where the officers, and in many wliere 
 the majority of corporators are proceeding to act in a 
 manner destructive of the corporation, or perversive of 
 its purposes, a court of equity will intervene at the in- 
 stance of one or more corporators to prevent the wrong by 
 injunction. (Ang. & A. Corp. 737; Smith v. Smith, 3 
 Cessans. (S. C.) 557; Bait. & O. E. R. Co. v. Wheeling, 
 13 Grat. 40; Stevens v. Davidson, 18 Grat. 819.) 
 
 The surrender, in England, is to be made by deed to 
 the King; and forasmucli as the Cro^mi can take nothing 
 save by matter of record, the deed avails not until it is 
 enrolled. Nor is the surrender effectual until it is ac- 
 eejyted. The same principles are applicable in the United 
 States, but the books do not indicate the mode whereby 
 the surrender is to be made, nor how the acceptance is 
 to be signified. (Butler v. jPalmer, 1 Salk. 191; Eevere 
 V. Boston Copper Co., 15 Pick. 351 ; Boston Glass Manfy 
 V. Langdon, &c., 24 Pick 49; Ward v. Sea Ins. Co. 7 
 Pai. Ch. E. (ISr. Y.) 294; Ang. & A. Corp. 737-'8; 2 
 Kent's Com. 310-'ll.) 
 
 Mere non-user of its franchises is Jioi jjer se a surrender, 
 nor in general does it justify the inference of a surrender, 
 in the absence of anything in the charter to give it such 
 effect. (Universitjr of Md. v. Williams, 9 Gill & Johns. 
 (Md.) 365; Ang. & A. Corp. 739.) Neither does the 
 sale of all the visible and tangible property of the cor- 
 poration, although accompanied by its insolvency and a 
 neglect to hold meetings and elect officers. (Brinckenhoff' 
 V. Brown, 7 Johns. Ch. E. 217; State v. B'k of Md., 6 
 Gill & Johns. (Md.) 205; Boston Glass Manf. Co. v. 
 Langdon, 24 Pick. 49); nor the sale under execution of 
 part, or the whole, of the company's works, &c. ; as, e.g., 
 of a railroad belonging to a railroad corporation (State v. 
 Eives, 5 Ired. (N. C.) 309); nor one or two individuals 
 acquiring the whole of the stock, unless where the num- 
 ber of corporators is limited, as in Virginia, in the case 
 of mining and manufacturing companies it is to the num- 
 ber of five, &c. (Eussell v. McLellan,.14 Pick. 63; Oakes 
 V. Hill, Id. 442; Spencer v. Campion, 9 Cow. (N. T) 
 536; Wilde v. Jenkins, 4 Pai. Ch. E.; Y. C. 1873, c. 57, 
 § 36); nor in case of a joint stock company, where the 
 members have respectively a sep)arate property interest, 
 all the members dying at the same instant of time,iox their 
 respective personal representatives immediately succeed 
 to their sever^'W^^^iMgfP^.oMLeUan, 14 Pick. 63); 
 
582 COEPOEATIONS. [bOOK I. 
 
 nor a vote of the majority to dissolve it, and close its con- 
 cerns, the assignment of its eifects to trustees, and giving 
 notice to the executive department of the goverment that 
 the corporation claims no further interest in its charter, 
 at least so as to avoid its existing engagements or debts. 
 (Revere v. Boston Copper Co. 15 Pick. 351; Campbell 
 V. Miss. Un. B'k, 6 How. (Miss ) 681.) 
 
 On the other hand, an act of the Legislature repealing 
 the act of incorporation {with the assent of the corpora- 
 tion), would undoubtedly be a sufficient surrender. (Rid- 
 dle V. Proprietors of Locks, &c , 7 Mass. 185; McLaren 
 V. Pennington, 1 Pai. Ch. R. lOT; Dartm. Col. v. Wood- 
 ward, 4 "Wheat. 518 ) And for some purposes it is a sur- 
 render, if the corporation suffer acts to be done which 
 defeat the end for which it was instituted ; e. g., where by 
 statute all debts due by the company at its dissolution are 
 charged on the persons individually who then compose it ; 
 and the company being indebted, suffer all its property 
 to be sacriiiced, omit the periodical elections, and take no 
 step looking to a resumption of the corporate functions: 
 such acts constitute a surrender in order to ascertain who 
 are personally responsible for the corporation debts. (Slee 
 V. Bloom, 19 Johns. 456 ; Penniman v. Briggs, 1 Hopk. Ch. 
 R. (K Y.) 300; S. C. 8 Cow. 387; 2 Kent's Com. 311-'12.) 
 4*. Dissolution of Corporation T)y Forfeiture^ for Non-user, 
 or Mis-user, of its Franchises. 
 
 Although it was once doubted whether < the heing of a 
 corporation would be forfeited by a misapplication of the 
 powers entrusted to it, it is now well settled that it is a 
 tacit condition of a grant of incorporation that the gran- 
 tees shall act up to the end or design for which they were 
 incorporated ; and hence, through neglect or abuse of its 
 franchises, a corporation maj^ forfeit its charter as for con- 
 dition broken (Rex v. Saunders, 3 East. 119; Rex v. 
 Amery, 2 T. R 515; Rex v. Pasmore, 3 T. R. 246; Ter- 
 rett V. Taylor, 9 Cr. 51, 52; Dartm. Col. v. Woodward, 
 4 Wheat. 658--9; Com'th v. F. & M. Ins. Co., 5 Mass. 
 230; People v. Manhattan Co. 9 Wend. 351; Ch. Riv. 
 Br. V. Warren Br. 7 Pick. 371; 1 Bl. Com. 485; Ang. 
 & A. Corp. 742.) 
 
 The acts, respectively, of neglect, or non-user, and of 
 mis-user, or abuse, which will be cause of forfeiture, can 
 only be illustrated by a few examples of each. Thus, 
 the omission or refusal of a corporation to set forth the 
 right by which it claims its corporate franchises, when 
 called on in a court of justice so to do (Rex v. Amery, 2 
 T. R. 567); the suspension by a bank of specie payments, 
 when such ^^fftl'.^^'fg^^t by the charter (Ang. 
 
CHAP. XVIII.] OOBPOEATIONS. 583 
 
 & A. Corp. 743); the suspension of business for more 
 than a year, by formal resolution of the board of direc- 
 tion, on the part of a marine insurance company (Ward 
 V. Sea Ins. Co., 7 Pai. Ch. E. 294); the contracting of 
 debts, or issuing of bills by a bank, to a larger amount 
 than the charter allows; embezzling deposits; making 
 large dividends while debts are denied payment; loaning 
 money to its directors contrary to law; or making an 
 assignment of its effects, or being otherwise insolvent 
 (Bank Comm'rs v. Banks of Buffalo, 6 Pai. Ch. K. 497; 
 People V. Hudson B'k, 6 Cow. 217 ; People v. Niagara 
 B'k, Id. 196 ; Ang. & A. Corp. 748-'4) ; non-compliance 
 on the part of a turnpike or railroad company with the 
 requirements of the charter, touching the construction or 
 repairs of the road (People v. Kingston & M. T. Pike Co., 
 23 Wend. 193; People v. H. & C. T. Pike Co., Id. 254; 
 Ang. & A. Corp. 745-'6 ; a railroad company suffering 
 its road to be sold on execution, and broken up in whole 
 or in part (Ang. & A. Corp. 745 ; State v. Rives, 5 Ired. 
 (N. C.) 309); dis-user of the corporate franchise for a 
 time such as may be designated by law,, e. g. in Vir- 
 ginia, dis-user of a ferry for two years and a half (Ang. 
 & A. Corp. 745-'6 ; State v. Rives, 5 Ired. 309 ; Y. C. 
 1873, c- 64, § 11); — all these are causes of forfeiture of 
 the charter. 
 
 In general, the abuse or neglect must be something 
 more than accidental or casual negligence, excess of 
 power, or mistake in its exercise. 'In order to make a 
 forfeiture, there must be something wrong arising from 
 wilful abuse, or improper and jjej'sistent neglect. A single 
 act of abuse or of wilful nonfeasance is a cause of for- 
 feiture, if it be insisted on; but a single act of non- 
 feasance not committed wilfully or negligently, nor pro- 
 ducing nor tending to produce serious mischief, and not 
 being contrary to the requisitions of the charter, will not 
 work a forfeiture. (Ang. & A. Corp. 74.5 ; People v. 
 Bristol & R. T. Pike Road, 23 Wend. 222 ; Bank Com'rs 
 V. Banks of Buffalo, 6 Pai. Ch. R. 497; Ward v. Sea 
 Ins. Co., 7 do. 294 ) 
 
 Causes of forfeiture do not operate per se, nor can they 
 even be taken advantage of collaterally or incidentally, or 
 in any other mode than by a direct proceeding , instituted 
 for the purpose, against the corporation, so that it may 
 have an opportunity to answer. And that proceeding 
 can be instituted by no one hut the government which 
 created the corporation, which, if it thinks fit, may waive 
 the forfeiture, and may do so by plain implication, as well 
 as expressl-fli0i^f(i:T^i/S^6imth§§BlsLtvfe acts recognizing 
 
584: OOEPOEATIONS. [bOOK I. 
 
 the continued existence of the corporation, &c., although 
 this doctrine must be taken in subordination to the char- 
 ter, if that expressly declares .that any act of abuse or 
 neglect shall ij^so facto operate a forfeiture. (Rex v. 
 Staverton, Yelv. 190 & n (1) ; King -v. Carmarthen, 1 
 Wm. Bl. 187; S. C. 2 Burr. 869; King v. Amery, 2 T. 
 R, 515 ; Rex v. Pasmore, 3 T. R. 244; Terrett v. Taylor, 
 9 Cr. 51 ; Banks v, Boiteaux, 3 Rand. 142 ; Soc.for Prop. 
 Gospel V. N. Haven, 8 "Wheat. 464, 483-'4; 2 Kent's Com. 
 312; Ang. & A. Corp. 746 to 748.) 
 
 The forfeiture of the charter can be enforced in a court 
 of law alone. A court of chancery may hold a corpora- 
 tion to account, as trustee, for abuse of trust, but cannot 
 divest it of its corporate character, unless specially autho- 
 rized by statute so to do, as in New York it is. (King 
 V. Whitwell, 5 T. R. 85; Atto. Gen. v. Clarendon, 17 
 Yes. 491; Slee v. Bloom, 5 Johns. Ch. R. 380; 2 Kent's 
 Com. 313-'14.) 
 
 The mode of proceeding against a corporation, in 
 order to enforce a forfeiture of its corporate franchise, is 
 either by scire facias, or by information in the nature of 
 a quo warranto. ^ There seems, however, to be no material 
 diversity in their use; and in Yirginia the latter has been 
 more frequently employed. (1 Bl. Com. 485; Rex v. 
 Pasmore, 3 T. R. 244, 245 ; People v. Bank of Magara, 
 6 Cow. 196; People v. Bank of Hudson, Id. 217; Id. 
 211; Y. C. 1873, c. 61, § 55; Com'th v. Birchett, 2 Y. 
 Cas..51; Com'th v. J. River Co. 190; 3 Kent's Com. 
 313.) See Earl of Rutland's Case, 8 Co. 55 a, where the 
 question as to the right to an office was determined upon 
 a writ 'of assise of novel disseisin, as between the two 
 rival claimants. 
 2*^. Modes of Dissolving Private Corjjorations. 
 
 The modes of dissolving private corporations are the 
 same as in the case of public corporations, save only as to 
 dissolution by act of the Legislature, which in the United 
 States, by virtue of the Federal Constitution, is not uni- 
 versally applicable to dissolve private, as it is to extinguish 
 public corporations. 
 
 The charter of b, private corporation is, as we have seen, 
 a contract, and, therefore, to alter or repeal it without the 
 consent or default of the corporators, except where the 
 power to do so is reserved in the charter, or by general 
 statute, is to impair the obligation of contracts, which the 
 Constitution of the United States (Art. I, § x, 1,) forbids 
 any State to do . This clause of the Constitution had been 
 enforced in Fletcher v. Peck, 6 Cr. 87, against the State 
 of Georgia, ^9ia^^^!^¥M%§SM & \&nA.-gr&nt -^vihick it 
 
CHAP. XVIII.J COKPOKATIONS. 585 
 
 had previously made ; and in N. Jersey v. Wilson, 7 Cr. 
 164, against the State of New Jersey, which wished to 
 evade an exemption from taxes which it had granted ; but 
 the doctrine had not been applied to corporations w\A. their 
 charters, until the very noted case ofTerrett & als v. Tay- 
 lor & als, 9 Cr. 53 & seq., where the validity of the acts 
 repealing the acts incorporating the Episcopal churches in 
 Virginia, and appropriating their property to public uses, 
 came under the examination of the Supreme Court of the 
 United States, and the acts were pronounced unconstitu- 
 tional, as impalrhig the contracts contained in those char- 
 ters. "A private corporation," said C. J. Marshall, in de- 
 livering the opinion of the court, " created by the Legisla- 
 ture, may lose its franchises by mis-user or a non-user of 
 them ; and they may be resumed by the government under 
 a judicial judgment, upon a quo warranto to ascertain and 
 enforce the forfeiture. This is the common law of the 
 land, and is a tacit condition annexed to the creation of 
 every svich corporation. Upon a change of government, 
 too, it may be admitted that such exclusive privileges at- 
 tached to a private corporation as are inconsistent with the 
 new government may be abolished. In respect, also, to 
 public corporations, which exist only for public purposes — 
 such as counties, towns, cities, &c. — the Legislature may, 
 under proper limitations, have a right to change, modify, 
 enlarge, or restrain them, securing, however, the property 
 for the use of those for whom and at whose expense it was 
 originally purchased. But that the Legislature can repeal 
 statutes creating private corporations, or coniirming to 
 them property already acquired under the faith of previous 
 laws, and by such repeal can vest the property of such 
 corporations exclusively in the State, or dispose of the 
 same to such purposes as they may please, without the con- 
 sent or default of the corporators, we are not prepared to 
 admit. And we think ourselves standing upon the princi- 
 ples of natural justice, upon the fundamental laws of every 
 free government, upon the spirit and letter of the Consti- 
 tution of the United States, in resisting such a doctrine.-" 
 But the leading and principal case on the subject is that of 
 Dartmouth College v. Woodward, 4 Wheat. 518. 
 
 The case of Dartnaouth College v. Woodward originated 
 in an attempt of the Legislature of New Hampshire to 
 modify, without consent of the corporators, the charter 
 of Dartmouth College, granted in 1769 by the royal 
 authority. Li pursuance of certain acts of the Legislature 
 of New Hampshire, of 27th June and 18th December, 1816, 
 changing the charter of the college, which acts had been 
 enacted without tBffi'*6^ff^M^#/<lfftS©®i.ing trustees, who 
 
586 0OEPOEATION8. [BOOK I. 
 
 constituted the corporation, one Woodward had obtained 
 possession of the book of records, corporate seal, and other 
 corporate property of the college, and refusing to surrender 
 them upon the demand of the old trustees, they instituted 
 against him an action of trespass on the case in trover and 
 conversion to recover the value. The jury found a special 
 verdict, setting forth the origin of the institution ; the man- 
 ner of its endowment (which was exclusively by private 
 persons in New Hampshire and in England); the charter 
 of 1769 granted by th^ Crown; and the acts of the New 
 Hampshire Legislature of June and December, 1816, pro- 
 posing to modify the charter, which were without the as- 
 sent and contrary to the wishes of a majority of the trus- 
 tees then composing the corporation ; and estimating the 
 value of the property withheld by Woodward at $20,000, 
 submitted to the court the question whether the law was 
 for the plaintiffs or for the defendant. The New Hamp- 
 shire com-ts deemed the acts of 1816 valid, and gave judg- 
 ment, therefore, /or </ie defendant; and to that judgment 
 of the Supreme Court of New Hampshire, the trustees, in 
 pursuance of the 25th section of the Judiciary Act of 1789, 
 obtained a writ of error from the Supreme Court of the 
 United States, because there had been drawn in question 
 in the State court, the validity of an act of the State Legis- 
 lature, on the ground of its repugnance to the Constitution 
 of the United States, and the decision of the State court 
 had been in favor of its validity. The question was then 
 discussed at great length, and with consummate ability, in 
 the Supreme Court of the United States, by Mr. Webster 
 and Mr. Hopkinson for the college, and Mr. Holmes and 
 Mr. Wirt for Woodward. The judgment of the court was 
 pronounced by Chief -Justice Marshall, with only one dissen- 
 tient from the conclusion, although Washington and Story, 
 J. J., gave separate opinions, somewhat varying the 
 grounds of decision, 
 
 The judgment of the Supreme Court of the United States 
 was, — 
 
 1. That the charter granted by the Crown to Dart- 
 mouth College in 1769 made it & private corporation, and 
 was a contract within the meaning of that clause of the 
 Constitution of the United States (Art. I, § x, 1) which 
 declares that no State shall make any law impairing the 
 obligation of contracts ; 
 
 2. That the charter was not dissolved, nor affected by 
 the Revolution; and 
 
 3. That the act of the New Hampshire Legislature, 
 altering the charter without the consent of the corpora- 
 tion, in a m@))i§(K!j2feqt)fe5;l'iM(i5t^O#i) an act impairing the 
 
CHAP. XVin.J COBPOEATIONS. 587 
 
 obligation of the charter, and was unconstitutional and 
 void. 
 
 The judgment of the Supreme Court of New Hamp- 
 shire was therefore reversed, and the Supreme Court of 
 the United States, proceeding to give such judgment as 
 the court below ought to have given, it was "considered 
 by the court that the said trustees of Dartmouth CJollege 
 do recover against the said "William Woodward the afore- 
 said sum of twenty thousand dollars, with costs of suit." 
 
 These doctrines have ever since been recognized as 
 those which are to govern all cases of private corpora- 
 tions; but it has never been considered that they applied 
 to prevent the exercise of the right of eminent domaiii on 
 the part of a State, whereby a corporate franchise may 
 be appropriated, in whole or in part, for public uses, upon 
 providing a just compensation. The grant of a franchise 
 is of no higher order, and confers no more sacred title, 
 than the grant of land to an individual ; and when the 
 public necessities require it, the one as well as the other 
 may be taken for public purposes, subject only to the 
 condition of making just compensation, as in case of the 
 . appropriation by the public of other subjects of property. 
 A franchise is property, and is to be protected like other 
 property, neither more nor less, (West. Eiv. Br. Co. v. 
 Dix. & al, 6 How. 534, & seq. ; Richmond, &c., Rl. Kd. 
 Co. v. Louisa Rl. Rd. Co. 13 How. 83; Stokes v. Upper 
 Appom. Co. 3 Leigh, 337; Tuckahoe Can. Co. v. Tuckahoe 
 Rl. Rd. Co. 11 Leigh, 74-'5, & seq.; Jamee Riv. & K. 
 Co. V. Thompson & al, 3 Grat. 270 ; Boston Water Row. 
 Co. V. Worcester Rl. Rd. 23 Pick. 360-'61 ; 7 Pai. Ch. 
 R. 45; Gov. & Co , &c., v. Meredith, 4 T. R. 794 ) 
 
 .One further question remains to be considered, — viz., 
 whether it is competent to a State to grant a rival fran- 
 chise which shall impair or destroy one previously granted. 
 The New York courts strenuously insisted that it was not; 
 that a franchise once vested, not only could not be divested 
 without consent of the owner, or his default, but that it 
 could not be encroached upon and rendered less valuable 
 iy rivalry, being deemed in its nature a monopoly, whe- 
 ther expressly made stich or not. They held all statute- 
 privileges to come within the equity of this principle. 
 No rival road, bridge, ferry, or other similar establish- 
 ment, they held, could be tolerated so near to one pre- 
 viously subsisting as materially to affect or impair its 
 profits. It operated, they declared, as a fraud upon the 
 grant, and went to defeat it. (N. Bingh. T. P. Co. v. 
 Miller, 5 Johns. Ch. R. Ill; Ogden v. Gibbons, 4 Johns. 
 Ch. R. IGO^igitized by Microsoft® 
 
588 C0EP0EATI0N8. [BOOK I, 
 
 These principles have received little countenance else- 
 where, and it is the generally accepted doctrine in this 
 country that no grant of a franchise is exclusive, unless 
 it is plainly declared to he so. Monopolies and exclusive 
 privileges in the nature of monopolies, are not favored by 
 the common law, nor by the interests of society. A gov- 
 ernment is not to he presuTued to design to relinquish or 
 circumscribe its rightful power or control in promoting 
 the advantage of the community, any further than it has 
 plainly and clearly indicated, without the necessity of re- 
 sorting to remote inference and construction. This re- 
 luctance to carry exclusive privileges and public grants 
 beyond their certain import is well illustrated in England 
 in the case of Stourbridge Can. v. Wheeley & al, 2 B. & 
 Ad. (22 E. C. L.) 793, and in several cases in the Supreme 
 Court of the United States (e, g., Jackson v. Lamphire, 3 
 Pet. 289 ; Beatty v. Lessee of Knowles, 4 Pet. 168; Prov. 
 Bank v. Billings & al, 4 Pet. 514; U. S. v. Arredondo, 
 8 Pet. 738.) And in Chas. E.iyer Bridge v. "Warren Free 
 Bridge, 11 Pet. 544, & seq., it was directly determined 
 by the Supreme Court of the United States, that no fran- 
 chise was exclusive unless so ascertained to he hy the un- 
 mistakable terms of the grant, therein affirming the opin- 
 ion previously pronounced in the same case by the Su- 
 preme Court of Massachusetts. (7 Pick. 371.) The 
 Supreme Court of the United States reiterates this same 
 doctrine in the case of the Bichmond, &c. , R. B. Co. v, 
 Louisa R. E. Co., 13 How. 71. And in Virginia it is 
 the firmly established doctrine of the law. (Stokes v. 
 Upper Appom. Co. 3 Leigh, 337; Tuckahoe Can. Co. v. 
 Tuckahoe R. E. Co., 11 Leigh, 69 ; Trent v. Cartersville 
 ^ Bridge Co., 11 Leigh, 521.) 
 
 Digitized by Microsoft® 
 
INDEX 
 
 Abandonment, cause of divorce, 260, 
 
 265, 2ii6 
 Abduction, of oMId, and remedies, 397 
 to 402 
 of ward, and remedies, 437 to 439 
 Abjuration, of realm. 53, 54 
 Abolition, of slavery, in Va. & V. States, 
 172-'3 
 of slave-trade by Va. (1778), 164 
 byGr. Britain (1806), 176 
 by XJ. Slates (1808), 175 
 Absolute rights, and duties, nature of, 
 52 
 several sorts, 52 to 59. See Rights, 
 Duties. 
 personal security, 52, 55 
 
 security uf life and limbs, .'>2 
 security of body and health, 54-'5 
 security of reputation, 55 
 personal liberty, 55 to 59 
 private property, 59 
 freedom of conscience, 59, 60 
 solemn declarations and guards of, 60 
 to 67 
 in England, 60 to 62 
 in Virginia, 62 to 67 
 Abstracts, written as modes of study, 21 
 Access, of husband, when presumed, 41 1 
 Account of sales by guardians, 452 
 Accounts, tcj be rendered by agents, 200 
 stated iby infants, 485 
 of guardians, 444 to 470 
 
 general doctrine of, as to guardians, 
 
 444-'5 
 particulars, 445 to 450 
 
 ward's estate in hand, 445-'6 
 losses by guardian's neglect, 446 
 
 to 449 
 losses by co-guardian's default, 
 449-'50 
 means to compel prompt and accu- 
 rate settlement, 450 to 454 
 commissioner of accounts, 451 
 inventory and account of sales, 
 
 452 
 annual settlement, 452 to 454 
 mode of stating, 454 to 470_ 
 general principles, 454-'5 
 modes of charging interest, 455 
 allowances to guardian, 456 to 460 
 
 Digitized by 
 
 Accounts — 
 
 disbursements, 456-'7 
 compensation, 457 to 460 
 guardian's private settlement, 
 
 461 
 guardian's own examination, 
 
 461-'2 
 production of books and vouch- 
 ers, 462 
 proceedings by ward, and limi- 
 tations thereto, 463 
 form of stating, 464 to 470 
 Accountability of guardians. 444 to 450 
 Act of legislature, see Statute. 
 Act of parliament, see I'arliament. 
 Act of settlement, 60, 61 
 Actions, by and against husband and 
 wife, 347 to 364 
 by husband and wife, 347 to 357 
 husband and wife join, 347-'8 
 husband sues alone, 348 to 351 
 husband and wife may join or not, 
 
 351 to 353 
 wife may sue alone, 353 to 354 
 when husband or wife dies, 354 to 
 
 357 
 consequences of mistake in parties, 
 357 
 against husband and wife, 357 to 364 
 husband and wife lo be joined, 
 
 358-'9 
 husband to be sued alone, 359-'60 
 husband and wife to be joined or 
 
 not, 360 
 wife to be sued alone, 361 
 when husband or wife dies, 361-'2 
 consequences of mistake in parties, 
 362-'3 
 suits in equity between husband and 
 wife, 363 to 365 
 See Husband & Wife. 
 by and against agents, 216, 224 to 
 
 226 
 by and against corporations, 555 to 570 
 by corporations, 555 to 557 
 
 causes, forms of action, modes of 
 
 suing, ,555 to 557 
 foreign corporations, 557, 541 
 in U. States courts; 557 
 against corporations, 557 to 570 
 
 Microsoft® 
 
590 
 
 INDEX. 
 
 Actions — 
 
 contracts, 558 ; torts, 558 to 560 
 foreign corporations, 560 to 562 
 mode of proceeding by and against 
 corporations, 562 to 570 
 See CorporationH . 
 by and against infants, 473 to 476 
 See Infants. 
 Accusation, cause and nature demand- 
 able, 63-'4 
 self, not compellable, 63-'4 
 Adjournment of parliament, 73 
 Ad litem, guardians, 472-'3. 475 
 Administrator, husband of wife, 305, 311 
 Admiralty courts, laws used in, 35 to 37 
 Ad quod damnum, substitute for writ, 
 
 118 
 Adultery, divorce for, 255-6, 264 
 not permitted by deeds of separation, 
 289 
 Advowsons, 151 
 Affinity, bar to marriage, 235, 240 
 
 cause of divorce, 258, 262 
 African slave-trade, see Slame-trade.. 
 Africans, naturalization of, 139 
 Age, of consent to marriage, 237-'8 
 want of, effect on marriage, 237-'8, 
 
 241-'2 
 want of, cause of divorce, 259, 261-'2 
 of infants, for divers purposes, 471 
 full, for all purposes, 472 
 precise time of attaining, 473 
 Agency, see Principal & Agent, Agent. 
 Agent, liability of for money In bank, 
 198-'9 
 for money received, 198, 199 
 for depreciated currency, 198-9 
 measure of knowledge, skill and pru- 
 dence required, 199 
 unlawful appropriation of master's 
 
 goods, 199 
 rendering accounts, 200 
 dealing for Ms own benefit with sub- 
 ject, 222-'3 
 how strangers affected by relation, 200 
 to 223 
 
 See Master & Servant. 
 mutual defence and maintenance of 
 
 suits, 201 
 seducing away servants, and torts to 
 
 them, 201 
 contracts by agent, 202 to 217 
 delegation of authority, 211 
 torts by agent, 218 to 222 
 grounds and limits of. master's lia- 
 bility for, 218 
 liability of, on contracts as agents, 212 
 to 216 
 contract in agent's own name, 212 
 to 214 
 government agent, 212-'13 
 private agent, 213-'14 
 no principtJ disoloS'ed, 214-15 
 authority exceeded, 2 15-'16 
 foreign principal, Slgj/g/f/^gc/ by 
 
 Agent — 
 
 mode of enforcing agent's liability, 
 216, 224 to 226 
 rights of, on contracts, 217 
 termination of agency, 223 to 227 
 revocation of authority, and when 
 
 not revocable, 223-4 
 death of either party, 224 
 change in condition of principal, 
 
 226 
 completion of business, 227 
 war, 227 
 of government, government's liability 
 
 for torts of, 227 
 superior government officer not liable 
 
 for acts of subordinate, 228 
 when wife is, of husband, 342-'3 
 child of parent, 377 
 infant, acts of, 485 
 of corporations, 541 to 547 
 power to appoint, and who may be, 
 
 542 
 acts of, when obligatory, 542-'3, 545 
 
 to 547 
 mode, and proof of constituting, 
 
 542 to 544 
 duration of authority, 544 
 mode of contracting by, 445-'6, 
 
 37r-'8 
 proof of contracts by agent, 545 
 ex officio authority, 546 
 notice to, 546-'7 
 See Prirvd'pal & Agent, Corporations. 
 Agreement, see Contract. 
 Aggregate corporation, 501, 547, 556, 
 
 559-'60 
 Alderney, isle of, 46 
 Alfred, dome-book of, 30 
 eonditor legum anglieanarum, 31 
 military arrangement of, 156 
 Allegiance, what, 134 
 natural 134 
 
 local and temporary, 134 
 obligations arising from, 134-'5 
 rights arising from, 135 
 renunciation of, 135-6 
 oath of, 137 : age for, 471 
 Aliens, who are, 137 
 
 no political rights, 141-'2 
 naturalization of, 139 to 141 
 right to take and hold property, 142 
 to 148 
 personal property, 142-'3 
 real property, 143 to 148 
 history of doctrine, 143 
 actual doctrine, 143 to 148 
 at common law, 143-'4 
 
 reasons for doctrine, 144 
 in Virginia, 145-'6 
 doctrine as to ante-nati subjects 
 of England and Virginia, 146 
 to 148 
 Alien-enemy, 142, 143 
 AUenation, of lands by aliens, 143-4, 
 
INDEX. 
 
 591 
 
 Alienation — 
 
 by husband to wife, and vice versa, 
 
 291 to 295, 319 to 321 
 by wife before marriage, in fraud of 
 
 husband, 298 
 of wife's separate property, 319 to 326 
 
 restrictions upon, 337 to 331 
 by wife to stranger, 338 to 341 
 to wife, 341 
 
 by infants, 477, 487, 494 
 by corporations, 552 
 restraints upon, 552 
 Alimony, 269, 278, 281 to 283 
 Allowances to guardians, 456 to 462 
 Amalfi, discovery of Pandects at, 11, 36 
 Ambassadors, prerogative of king to 
 send, 81 
 inviolability of, 81 
 Amotion, of public officers, causes and 
 modes, 93 
 officers of corporations, 527 
 Answer, of corporations in chancery, 
 
 o69-'70 
 Ante-nati, 147 
 
 Ante-nuptial contracts of wife, 302, 335- 
 '6, 484 
 conveyances of wife, 298 
 Anticipation, of income of wife's sepa- 
 rate estate, 327 to 329 
 of joint-income, of family, restrained, 
 329-30 
 Annual parliaments, 74 
 Annus luctus, of widow, 410 
 Appearance, of infant, in court by guar- 
 dian ad litem, or next friend, 432-'3, 
 473 to 475 
 error cured by Statute of Jeofails, 
 when, 432-'3, 475 
 Appointment of court, guardians by, 
 
 427 to 429 
 Apportionment, of hires of servant, 170 
 Apprehension of bodily hurt, cause of 
 
 divorce, 259-'60 
 Apprentices, who, and why so called, 180 
 mode of binding, 180 to 183 
 instrument ol contract, 1 80-'81 
 proper parties, 181 to 182 
 terms, 182-3 
 obligation of master, apprentice, and 
 
 parent, respectively, 183 to 185 
 liability of apprentice to action, 184, 
 
 482-''3 
 master's right to apprentice's earn- 
 ings, 185 
 authority of master, 185-'6 
 assignment of contract, 186 
 adjustment of differences between 
 
 master and, 186-'7 
 penalty for enticing or harboring ap- 
 prentice, 187 
 dissolution of contract, 187-8 
 Archbishops, 48, 148-'9 
 Archbishoprics, 48. 
 - - ' "150 
 
 ArcMea»onr^, H Digitized by kcroim^°^ *° °P''*'' " ^^"^Sinia, 540 
 
 Aristocracy, characteristics of, 27 
 in government of England, 27 
 of American States, 27 
 Arms, right to have for defence, 62, 67 
 Armies, standing, dangerous, 66, ]56 
 Artificers, 155 
 Artificial persons, or o(»poratioiis, 497 
 
 See Corporations. 
 Assault and battery, by and on corpora- 
 tions, 570 
 Assent to marriage, age of party for, 237, 
 241, 247, 262, 471 
 of parent or guardian, 244 
 Assessment, on shares in corporation, 
 
 .530-'31 
 Assignment, of contract of apprentice- 
 ship, 186 
 wardship, 425-'6, 430-'31 
 Assize, of novel disseisin for office, 584 
 Attainder, bills of, prohibited, 63 
 Attorney, appearance of infants by, 
 47l-'5 
 power of by infant, void, 485-'6 
 Auctioneer, as agent, 204 
 Authorities, to determine the law, 31 to 
 
 32 
 Authority, of master over apprentice, 
 185 
 master over servant, 194 
 of agent, express or implied, 203 to 
 
 206 
 agent, extent of, 206 to 209 
 
 joint and several, general or special 
 to be pursued, 207 to 209 
 delegation of, 209 
 
 contracts in pursuance of, 209 to 216 
 grounds and limits of liability, in case 
 
 of torts, 218 to 221 
 termination of, 223 to 227 
 revocable generally, and exceptions, 
 
 223-'4 
 of husband over wife, 285-'6 
 of parent over child, 397 to 400 
 given by infant, void, 486- '6 
 Avoidance, of contracts by infants, 487 
 to 488, 492 to 495 
 of torts, by infants, not allowed, 495 
 to 497 
 Bachelor, knight, 155 
 Bail, excessive, prohibited, 63, 64 
 Bailiffs, of hundreds, 100 
 special, 100 
 private, 188 
 Banishment, 54 
 
 Bank-directors, authority of, 546 
 Banking corporations, power of States 
 to create, 510 
 currency, not be issued by city, 539-'40 
 foreign in Virginia, 640 
 See Banks. 
 Bankruptcy, of principal, revokes agen- 
 cy, 226 
 Banks, liability of agent, &c., for depo- 
 sits in, 198-'9 
 
592 
 
 INDEX. 
 
 Banks — 
 liens on shares, for debts to, 554 
 See Banking Dorporatiom. 
 Banns, of marriage, 238, 243 
 Banneret, knight, 155 
 Bargain and sale, corporations convey- 
 ing by, 550 
 Baron, 154 
 Baron and feme, 230. See Husband and 
 
 Wife. 
 Baronet, 155 
 
 Bastards, provisions for support, 128 
 legitimated by subsequent marriage, 
 &a., 374 a 
 
 mother, natural guardian, 398 
 definition of, 408-'9 
 duty of parents to, 412 to 416 
 
 compelling fathers to support, 412 
 
 to 416 
 custody of, 416 
 rights of, at common law, 416 to 419 
 parish settlement of, 419 
 incapacities of, at common law, 
 
 419-'20 
 rights and privileges of, in Virginia, 
 420 to 421 
 Bath, knight of the, 155 
 Beggars, 127 
 Benefit of clergy, 868-'9 
 Berwick, 45 
 Betrothal, age for, 471 
 Bills, as currency, not by city, 540 
 
 not by foreign banks, 540 
 Bill in chancery, for abduction of in- 
 fants, 402, 439 
 Bill of rights, 61, 62-'3 
 Billeting of soldiers, 61 
 Bishops, 149 
 Bishoprics, 48 
 
 Board, of supervisors, 133, 124 
 school tax, 394 
 of education, composition and powers, 
 390, 395 
 public corporation, 503 
 county school, 392, 503 
 bank directors, 528-'9, 542, 546 
 directors, of corporations, 542, 543, 
 554, 56.5-'6 
 Body, security of, 54, 61 to 64 
 
 corporate or politic, 497 
 Bonds, official, 93-'4, to 130 
 
 sheriff, 93-4 ; deputy sheriff, 96 
 coroner, 102 ; constable. 111 
 surveyor of road, 105 ; overseers of 
 
 poor, 123 
 escheator, 130 
 officers of corporations, 547 
 Boroughs, 49 
 Borough's elder, 49, 110 
 Borough-English, custom of, 33 
 Borsholder, or borough's elder, 49, 110 
 Bracton, 32 
 
 Breach, of promise of marriage, 251 
 defences to action for, 251 to 253 
 
 damages for, 253 Digitized by 
 
 Bridges, erection of public, 119 
 Brocage, marriage, 231-'2 
 Brooke's abridgment, 32 
 Butlerage, 88 
 
 By-laws, pciwer of corporations to make, 
 522, 553 to 555 
 mode of enacting, 553 
 to be fair and reasonable, 553- '4 
 for transfer of shares, 594 
 enforced by penalties, 5o4-'5 
 Cambridge. See Unwersities. 
 Canon law, 37 
 
 in what courts used, 37 
 in what causes in Virginia, 37 
 Canons, or prebendaries, 150 
 Canonical impediments to marriage, 232 
 to 237, 239-'40, 258 
 why so called, 232, 258 
 classes of, 233 to 236 . 
 
 pre-contract, 233-'4, 239, 258 
 consanguinity, 234-'5, 240, 258 
 affinity, 235, 240, 258 
 incurable impotency of body, 236, 
 240, 262 
 effect of canonical impediments, 
 236-' 7 
 in respect of divorce, 236, 258 
 in respect of legitimacy of issue, 
 236-'7, 2-8 
 Case, action of against agent, 225-'6 
 Cashier, of bank, power of, 546 
 
 process served on, 565-'6 
 Causeways, construction of, 119 
 Celebrant, of marriage, 245-6 
 Chancery. See Equity. 
 
 ward in, 428-'9 
 Change of guardian, not approved, 435 
 Chapter, of cathedral, 148 to 150 
 Charter-governments of English colo- 
 nies, 47-'8 
 Charter, great, of England, 55, 60, 62 
 of corporations, grant of, 508 to 511 
 acceptance of, 520-'21 
 a contract, how and when modified, 
 .503, .535, 578-'9, 584 to 587 
 new or old, difference in effect, 578 
 Chattels, real of wife, 302 to 304 
 
 personal of wife, in possession, 299 to 
 
 303 
 choses in action of wife, 304 to 310 
 reversionary, of wife, 310-'ll 
 will of, age for making, 471 
 right of corporation to acquire, 547, 
 
 548-'9, 551 
 of corporations, at dissolution, 552 
 Chester, county palatine, 50 
 Children. See Parent k OhUd, Infants, 
 Bastards. 
 paupers, provision for, 128 
 custody of, in case of divorce, 269 
 effect of nullity of marriage, or divorce 
 on legitimacy, 237, 258, 239, 259, 
 272- '3, 275 
 custody of, by deeds of separation, 289 
 1, who are, 374 
 
INDEX. 
 
 59S 
 
 ■Children — 
 
 duties of parents to, 375 to 396 
 maintenance, 375 to 380 
 hy father, 375 to 379 
 allowance out of child's estate, 378 
 dis-inheriting, 379 
 after-born, effect on will, 379-'80 
 protection, 380 
 
 education, 381 to.396. See Educa- 
 tion. 
 power of parents over, 396 to 405 
 custody, and correction, 396 to 403 
 remedies for abduction, 400 to 402 
 consent to marriage, 244-'5, 243, 
 245-'6, 247, 402-'3 
 care of estate of, 403-'4 
 parent's delegation of power, 404-'5 
 termination of parent's authority, 
 405 
 duties of to parents, 405 
 illegitimate, or bastards, 405 to 421 
 who are, 405 to 411 
 
 bastards born out of wedlock, 407 
 
 to 411 
 bastards born in wedlock, 411 
 duties of parents to bastards, 412 to 
 416 
 father compelled to support, 412 
 
 to 416 
 custody of, 416 
 rights and incapacities of bastards, 
 416 to 421 
 at common law, 416 to 420 
 in Virginia, 420 to 422 
 meaning of term child, &o. , in gifts, 
 417 to 419, 421 
 Chivalry, guardians in, 424-'6 
 Choosing guardian, mode of, 426-'7 
 
 age for, 471 
 Ohoses in action, husband's interest in 
 wife's, 304 to 310 
 wife's equity in, 306 to 310 
 Church, in Virginia, before revolution, 
 5Ij2 
 glebes sequestered, 502 
 Church-wardens, 121, 152 
 Circuit courts, corporations created by, 
 609-'10 
 jurisdiction of divorces, &o., 266 to 
 270, 279, 281, 283-'4 
 Cities, 49 
 
 counties corporate, 50 
 not to issue currency, in Virginia, 
 539-'40 
 Citizens, who are in England, 137-'8 
 who are in Virginia, 138-9 
 naturalized in England, 138 
 naturalized in Virginia, 139 to 141 
 Civil corporations, nature of, 504-'5 
 advantages of, 505 
 limited partnerships, 506-7 
 Civil divisions, of England, 49, 50 
 Civil law, 35 to 37 
 
 in what courts used, 37 
 in what cases in 
 
 Civil liberty, 52 
 
 Civil list, of England, 90 
 
 Civil rights, 63 to 65, 60-'7 
 
 and political equal, 66 
 
 difference between the sexes, as to, 
 369 to 373 
 
 act, in case of bastardy, 413-'14 
 Civil state, who compose in England, 
 
 153 to 155 
 Clementine constitutions, 36 
 Clergy, averse to common law, 10 to 13 
 
 devotion to civil law, 12, 13 
 
 of England. 148 to Inl 
 
 benefit of, 368, 369 
 Clerks, parish, in England, 152 
 
 of county, &c. courts issue marriage 
 licenses in Virginia, 245 
 Code, of Justinian, 35-'6 
 
 codes, revisals of, how construed, 41 
 Co-guardian, losses from misconduct, 
 
 449-'50 
 Coke, institutes, 32 
 
 reports, 32 
 CoUative advowsons, 151 
 Collegia, in Koman law, 500 
 Colleges, in Roman law, 500 
 
 nature of in English universities, ' 508 
 
 nature of in TJ. States, 508 
 Colonies, and plantations, laws of, 47 
 Colored persons, who are, 179, 242. See 
 
 Wegro. 
 Comitatus, posse, 100 
 Commerce, king the arbiter of, 83 
 Commission of array in England, 157 
 
 of lunacy, 86 
 
 justice of peace, 105-'6 
 Commissioners, of monthly courts in 
 Virginia, 106 
 
 of roads, election, 114 
 
 functions, 117, 118, 119-'20 
 
 to assess damages for roads, 118 
 
 to contract for bridges. 1 1 9 
 
 of accounts, 451 to 454 
 appointment, 451 
 duties, 451 to 454 
 
 require inventory and account of 
 
 sales of iiduciaries, 451 
 require annual settlements, 451 to 
 
 454 
 proceedings to enforce duties, 451 
 to 454 
 Commissions, guardian's, 457 to 460 
 
 amount allowed guardian, 457-'8 
 
 forfeiture by guardian, 458-'9 
 
 on what estimated, 459-'60 
 Commonalty, who compose the, 154-'5 
 Common law, what, 30 
 
 rise and original, 30, 31 
 
 parts of, 30 to 37 
 
 subjects to which it relates, 31 
 
 depositaries of, 31, 32 
 
 what is in Virginia, 43 
 Common placing, mode of study, 21 
 Commons, House of, members, 70 
 
 Vireinia, 37 elections of members, 70 to 72 
 
 ^ Digitized by Microsoft® 
 
594 
 
 INDEX. 
 
 Commons — 
 
 qualifications of electors, 71 
 qualifications of elected, 71-'2 
 special disqualifications, 72 
 writs of election, 72 
 privileges of, 72 
 
 Common seal of corporations, 522, 535 
 to 537 
 
 Oomm/wne conailium, 68 
 
 Compensation, of guardians, 457 to 460 
 
 , See Commissions. 
 
 Compound interest, against guardians, 
 455, 469 
 in favor of guardians, 455 ' 
 
 Compromise, by guardian, 446-'7 
 
 Concordia disoordantium, 36 
 
 GonMtor legum omglvMnwrum, 31 
 
 Condonation, bars divorce, 255, 257 
 
 Confederate currency, received by agent, 
 &o., 198, 199 
 
 Confirmation, of election of prelates, 
 148-"9 
 infant's contracts, 488 to 495 
 applies to contracts voidable, 488-'9 
 infant guilty of fraudulent misrepre- 
 sentation, 489 
 infant may avoid, until, 489 
 terms of, 489-90 
 from conduct, 491 
 as to continuing contracts, 491-'2 
 of executed contracts, 492 to 495 
 of executory contracts, 493-'4 
 consequences of avoidance, 493 to 495 
 by statute to be in writing, 495 
 of torts by infants, not required, 495 
 to 497 
 
 Conge, d' elire, 150 
 
 Congress, laws of, 44 
 restraints on, 62 to 67 
 power to create corporations, 510 
 power to tax State agencies, 516 
 
 Conjugal rights. See Husbarid & Wife 
 and Wife. 
 
 Consanguinity, bar to marriage, 234, 
 235, 240 
 cause of divorce, 258, 262 
 
 Conscience, freedom of, 59 
 constitutional guaranty of, 66 
 
 Consensus non conmibitus nuptias fadt, 
 231 
 
 Consent, of parent or guardian to mar- 
 riage, 244-'5, 398 
 
 Conservators of peace, sheriff, 95-'6 
 coroner, 100; justice of peace, 105, 
 
 108 
 constable, 110, 112 
 
 Consideration, valuable, in subscribing 
 shares in stock companies, 528 
 valuable in contracts of corporations, 
 538 
 
 Consort-queen, 75 
 
 Constables, antiquity and origin&l, 109 
 high, 109 
 appointment and removal, 110, 111 
 
 securing fideUty, 111- Digitized by MiQtsmoft®gTia.T6ian, 485 
 
 Constables — 
 
 duties and powers, 112 
 Constitution, guaranties of liberty, 62 
 to 67 
 guaranties of personal security and 
 
 liberty, 62-'3 
 guaranties of private property, 64 ta 
 
 66 
 guaranties of freedom of conscience, 
 
 66 
 statutes must conform to, 40 
 of U. States, laws and treatisea su- 
 preme, 44 
 secures charters against invasion, 503, 
 515-'16, 539, 678-9, 584, &c. 
 Constitutionality, of statutes, 40, 502-3, 
 
 584 to 588 
 Constitutional law, 22 
 Constitutions, Clementine, 36 
 
 Provincial and Legatine, 36-'7 
 Construction, of statutes, rules for at 
 common law, 39 to 41 ; in Virginia, 
 41 to 43 • 
 Continuing contracts, avoidance of, 
 
 491-'2 
 Contracts, obligation of, not to be im- 
 paired by the States, 65 
 of service not to be performed in a 
 
 year, 189 
 indefinite, for service, 190 
 entire for service, 190, 191 
 how agents should make, 209 to 212 
 by agents, master's liability for, 212 
 
 to 216 
 by agents of government, 212-'13 
 of marriage, 231, & seq. See Eus- 
 
 band <Sc Wife. 
 of husband and wife before marriage, 
 
 289 to 291 
 of husband and wife after marriage, 
 
 291 to 295 
 ante-nuptial of wife, as to strangers, 
 
 334 to 336 
 wife's, during coverture, as respects 
 herself, 336 to 341 
 executory, 336 to 338 
 conveyances, by and to wife, 338 to 
 341 
 wife's, during coverture, as repects- 
 her husband, 341 to 345 
 husband's liability on score of agen- 
 cy, 342, 343 
 husband's liability on seore of duty, 
 343 to 345 
 of infant, to marry, 250 
 of infants, effect of, 477 to 495. See 
 
 Infants. 
 of corporations, 537 to 541 
 Convention, of parliament, 68 
 Conveyances, by husband to wife, and 
 tnce versa, 291 to 295 
 husband to trustee for wife, and race 
 
 versa, 292-3 
 husband directly to wife, 293 to 295 
 
INDEX. 
 
 595 
 
 ■Conveyauoes — 
 
 infants, voidable, 486 to 488 
 infants, confirmation, 488 to 495 
 infants, consequences of avoidance, 
 
 493 to 495 
 corporations, preferring creditors, 541 
 ■Convocation, 149 
 
 copies of statutes, how authenticated, 
 39 
 Oopyhold, customs, 38 
 Ooronation-oath, 78, 135 
 Coroner, antiquity and original, 100, 101 
 appointment and removal, 101-'2 
 securing fidelity of, 102 
 duties and powers of, 102 to 105 
 judicial, 102, 103 
 ministerial, 103-'4 
 assistants of, 105 
 Coronatore, de eUgendo et exonerando, 101 
 Corporate counties, 50 
 Corporation courts, see County Courts. 
 jurisdiction of divorce, &c., 266 to 
 270, 278-'9, 281 to 284 
 Corporate meetings, 528-9, 531, &o. 
 
 See Corporation. 
 Corporate names, 511 to 514. See Cor- 
 porations. 
 Corporations, reasons for and uses, 
 497-'8 
 origin and nature of, 498 to 501 
 several kmds, 501 to 508 
 aggregate and sole, 501-'2 
 public and private, 502 to 504 
 ecclesiastical, 504 
 lay, 504 to 508 
 civil, 504 to 507 
 nature of, 504-5 
 advantages, 505-6 
 limited partnerships, 506-7 
 eleemosynary, 508 
 creation and organization, 508 to 531 
 creation, 508 to 520 
 
 creation in England, 508-9 
 by whom, 508-9 
 words of creation, 509 
 creation in Virginia, 509 to 511 
 by legislature, 509-'10 
 by circuit courts, 510 
 concurrence of several States 
 
 in creating, 519 
 circumstances which attend cre- 
 ation, 511 to 520 
 persons to be incorporated, 
 
 511 
 name, therefore, to be ob- 
 served, 511 to 514 
 place, 514 to 520 
 imposition of taxes, 514 to 
 517 
 tax on franchise, 515 
 tax on federal corpora- 
 tions, and vice versa, 
 516-'17 
 exemptions from taxes, 
 517 
 
 Digitized by Microsoft® 
 
 Corporations — 
 
 conduct of business, 517 
 
 to 519 
 citizenship, 519-20 
 suing and being sued, 
 519-20 
 in federal courts, 519 
 in State courts, 520 
 organization of, 520 to 521 
 acceptance of charter thereof, 
 
 520-'2] 
 attributes or incidents at common 
 law, 521 to 523 
 admission of members and officers, 
 523 to 525 
 admission of members, 523 ■ 
 election of officers, 523 to 525 
 disfranchisement of members and 
 
 amotion of officers, 525 to 527 
 subscription for and assessmeat on 
 
 shares, 527 to 531 
 modes of action, and powers of corpo- 
 rations, 531 to 572 
 modes of action, 531 to 534 
 
 in meetings, with notice, time, 
 
 and place, 532 
 persons composing, 532-3 
 powers of, 534 to 572 
 perpetual succession, 534-5 
 common seal, 535 to 537 
 contract and be contracted with, 
 537 to 547 
 mode of contracting, 535-'6, 
 
 537-'8 
 with whom, by what name, &.O. 
 
 538 
 what contracts, 538 to 541 
 agent and agency, 541 to 547 
 taie, hold and transmit property, 
 547 to 552 
 mort/main policy, 547 to 548 
 not limited to habitat, 549-'50 
 by way of trust, 550 
 chattels, 548-'9, 551 
 grants to corporations, 552 
 consequences of dissolution, 
 552 
 make by-laws, 553 to 555 
 sue and be sued, 555 to 570 
 capacity to sue and be sued, 
 
 555 to 562 
 proceeding in suits, 562 to 570 
 proceeding where corporation 
 is plaintiff, 562 to 564 
 place of suit, 564 
 process, 564-5 
 mode of serving process, 565 
 
 to 568 
 proceedings after process, 
 568 to 570 
 remove members and officers, 570 
 disabilities of, 570 to 573 
 appear in person, 571 
 sue or be sued for certain torts, 
 658-'9, 571 
 
596 
 
 INDEX. 
 
 Corporations — 
 
 commit treason or felony, 571 
 suffer corporeal punishmeiit, 
 
 (fee, 571 
 be executor or administrator, 
 
 571-'2 
 stand seised to use or trast,622 
 be imprisoned, 572 
 be outlawed, excommunicated, 
 572 
 relation of members to body, 
 
 ^72-'3 
 visitation of, 573 to 575 
 judicial proceedings to controlj* 
 575-'6 • 
 mandamus, 575 
 quo warranto, 576 
 dissolution of, 576 to 588 
 
 consequences of dissolution as to 
 
 property and debts, 576 to 578 
 modes Ox dissolving, 578 to 588 
 Corporators, witnesses, 568-'9 
 
 liability for contracts and torts of 
 
 body, 505-'6, 572-'3 
 transfer of stock, 526, 55-t, 573 
 subscription for shares, 528 to 531 
 Corpus juris cimlis, 35-'6 
 Corpus juris canonici, 36 '7 
 Correction, apprentice by mtister, 185 
 servant by master, 194 
 wife by husband, 285-'6 
 child by parent, 397 ; by tutor, 404 
 Councils, of crown, 76 to 78 
 Coupons, and coupon bonds of corpora- 
 tions, 539-'40 
 Counties, or shires, 49, 50 
 ordinary, and palatine, 50 
 corporate, 50 
 Counts, or earls, 49, 154 
 Counts, in declarations against infants, 
 
 486 
 County coarts, jurisdiction of roads, 
 117 to 119 
 jurisdiction of bridges, ifec, 119 
 apprentices, 186 to 188 
 paupers, 124 to 128 
 bastards and pauper children, 128 
 County roads, 117 
 County bridges, 119 
 Courts, King may erect, 82 
 county, see County courts. 
 circuit, see Circuit courts. 
 corporation, see Corporation courts, 
 privy council, &o., 77-'8 
 Const, eoustum, coutum, 88 
 Coustumier, le grand, 46 
 Coverture, 230 to 373. See Husband & 
 
 Wife, and Wife. 
 Creation, of corporations, 508 to 520 
 of corporations, words of, 509 
 circumstances accompanying, 511 to 
 520 
 lawful authority, 511 
 persons, 511 
 
 511 to 514 Digitized by Micro§sft&o^ «« Action. 
 
 Creation — 
 
 place, 514 to 520 
 Creditors, of corporation, preferences, 
 
 541 
 Crime, liability of wife for, 364 to 366 
 difference between sexes as to, 367 to 
 
 369 
 age of responsibility for, 471 
 of corporations, 570-'71 
 See Corporations. 
 Criminal conversation. See Adultery. 
 Criminal liability, of sheriff for jailor, 
 99 
 master for servant, 220 
 Crimination, self, not compellable, 63, 
 
 64 
 Croke's reports, 32 
 Crown , title to, 74. See King. 
 councils of, 76 to 78 
 prerogatives of, 78 to 83 
 revenue, 83 to 90 
 Cruelty, divorce for, 256-7, 259 
 Curate, 152 
 Curator, 422, 434 
 
 Currency, not to be issued by cities, 
 589-'40 
 depreciated, agent receiving, 198-'9 
 Curtesy, In wife's lands, 31 1 to 313 
 Custodes pads, 105 
 
 Oustodia terrcE et hceredis, writ of, 438 
 Custody, of idiots and lunatics, 85-6 
 infant child, 269, 289, 397 to 402, 416 
 ward by guardian, 478 to 482, 436 to 
 439 
 Customs, general, 31 
 
 of particular places, 88 to 35 
 instances, 33 
 
 requirements, and allowance, 33, 34 
 in Virginia, 34-5 
 
 contrasted with prescription, 34-'5 
 guardian by, 431-'2 
 Custom, duty or tax, 87, 88 
 Custuma, 88 
 Danelage, 31 
 
 Death, civil, 53-'4, 887-'8 
 natural, value set on life, 54 
 protection to life by magna oharta, 
 
 54 
 revocation of agent's authority, 224 to 
 
 226 
 of king, effect on parliament, 74 
 by violence, coroner's inquest, 103-4 
 dissolves marriage, 253 
 guardian's terminates wardship, 471 
 corporators, effect on corporation, 
 579- 80 
 Dean, rural, 48, 151 
 Dean and Chapter, 149-50 
 Debt, by Slate of Virginia, prohibited, 
 65 
 national, of England, 90 
 of corporation, as to corporators, 
 
 572-'3, 505 -'6- 
 to or from corporation dissolved, 677 
 
-INDEX. 
 
 597 
 
 Deceit, master's liability for servant's, 
 
 219 
 Declarations and guards of rights, 60 to 
 67 
 See Absolute Rights. 
 Declaratory, statutes, 39 
 
 part of law, 28 
 Deeretalia Oregorii, 36 
 Beeretum Oratiani, 36 
 Dedication, highways to public, 120 
 Deed, of corporations, how made, 536-'7 
 how acknowledged for registry, 537 
 trust by corporation preferring credi- 
 tors, 541 
 De facto government, 134 
 Defence of person, master and servant, 
 , 200, 201 
 parent and child, 381 
 Delegatus non potest delegare, 209, 542 
 Demise of crown, 81 
 Democracy, characteristics of, 27 
 
 in English and American govern- 
 mients, 27 ( 
 
 Denizens, who are, 137 
 Deodands, 85 
 Depositories, of canon law, 31-'7 
 
 civil and canon laws, 35 to 37 
 Deprivation, of clergy in England, 
 
 149-50 
 Deputies to sheriffs, 97 to 100 
 
 to coroners, 105 
 Descent of crown, 75 
 
 of lands of bastards, 420 
 Desertion, cause of divorce, 260, 265 
 Digest, of Justinian, 35-'6 
 
 English law, 30, 31, 32 
 Dignity, of king, 79 to 81 
 Dioceses, 48 to 149 
 Directory, part of law, 28 
 
 provisions in statutes, 243, 524, 544 
 Direct prerogatives, of crown, 79 to 83 
 Disabilities, for marriage, 237 to 242 
 clasoes of, at common law, 237-'8 
 effect of, at common law, 239 
 as to marriage and issue, 239 
 as to divorce, 259 
 classes of in Virginia, 241-'2 
 of infants, 473 to 497 
 as to suits, 473 to 476 
 
 suing and being sued, 474-'5 
 staying proceedings, 475 
 effect of judicial proceedings as to 
 infants, 4r5-'6 
 as to property and contracts, 476 to 
 497 
 disposition of property, 477 
 contracts executory, 477 to 497 
 See Infants. 
 Disbursements, what allowed to guar- 
 dians, 456-'7 
 vouchers for, 456-'7 
 Discord, 
 
 Disfranchisement, of corporators, 525-'6 
 Disinheriting, of children. 379 
 Dis-membering, of Blavgy^^^l^^^ ^^ ^-^^^mir 
 
 Dismissal, of servant, effect on wages, 
 
 192 
 Dissolution, of parliament, 73-'4 
 marriage, 253 to 280. See Dwioi'ce. 
 corporations, 555 to 588 
 effect as to lands, chattels and debts, 
 
 552, 576-'7 
 modes of, 578 to 588 
 Distress, to compel corporations to ap- 
 pear, 565, 570 
 Distribution, wife's share of husbaiid's 
 chattels, 313 to 315 
 effect of husband's will, 314 
 husband's share of wife's chattels, 305 
 Distringas, to compel* corporations to 
 
 appear, 570 
 Divorce, effect of canonical impediments 
 236-'7 
 effect of legal disabilities, 239 
 several kinds of, 254 to 266 
 a mensa, causes in England, 254 to 
 257 
 causes in Virginia, 259 to 261 
 a vinculo, causes in England, 257 
 to 259 
 causes in Virginia, 261 to 266 
 courts charged with cognizance of, 
 
 266-'7 
 modes of proceeding in, 267-'8 
 powers of court, 269-70 
 legislature prohibited to grant, 270 to 
 
 271 
 effect of in England, 271 to 274 
 effect of in Virginia, 274 to 278 
 
 capacities and incapacities of par- 
 ties, 271, 275, 
 legitimacy of issue, 272, 275 
 estates of parties, 273-'4, 276 
 foreign, 279 to 280 
 alimony incident to, 293, 297 to 299, 
 269, 278, 280 to 283 
 Dome-book, of Alfred, 30 
 Domicil, for divorces, 279-'80 
 
 of husband and wife, 279-' 80. See 
 Lex domicilii, ami Residence. 
 Donatio mortis causa,, husband and wife, 
 
 295, 320-'21 
 Donative advowsons, 151 • 
 Dowager, queen, 76 
 
 Dower, of wife in husband's lands, 
 315-'16 
 age for, 471 
 
 assignment by infant, 483 
 Drunkenness, in officers, 93 
 Duelling, forfeits office, 93, 94 
 Duke, 153 
 
 Duress, per minas, 53 
 of imprisonment, 58 
 Durham, county palatine, 50 
 Duties, and rights, 61 
 of king, 78 
 
 of taxes on goods, 87 to 90 
 of sheriff, 94 to 96 
 judicial, 94-'5, 96 
 minjfiterial, 95, 96 
 
698 
 
 LNDEX- 
 
 Dnties — 
 
 coroner, 102 to 105 
 judicial, 102, 103, 104 
 ministerial, 103, 105 
 justice of the peace, 108 to 109 
 constable, 112 
 
 surveyor of highways, 115 to 117 
 overseer of poor, 123 to 128 
 escheator, 130 to 133 
 in relation of people, 134 
 husband and wife mutually, 284-5 
 parents to legitimate children, 374 to 
 
 396 
 children to parents, 405 to 407 ♦ 
 parents to bastard child, 412 to 416 
 support by father, 412 to 416 
 custody, 416 
 guardians, 436 to 444 
 Dyer's reports, 32 
 Earl, 49, 158 
 
 East Indies, British possessions, 47 
 Ecclesiastical, divisions of England, 48 
 courts which adopt civil and canon 
 
 laws, 37 
 courts, guardians by, 427 to 429 
 courts, jurisdiction of divorces, &c., 
 
 258, 259, 266-'7, 283-'4 
 corporations, what are, 504 
 visitation of, 574 
 Education, of children, duty of parents, 
 '381 
 duty and interest of State as to pri- 
 mary, 381 to 387 
 advantages of general, 382 to 384 
 tends to preserve peace and order,382 
 tenus to improve political society, 
 
 382 
 promotes physical comfort and ma- 
 terial prosperity, 383 
 augments production and value of 
 lands, 383 
 modes, of effecting general, 384 to 385 
 duty of State as to colleges, <to., 385-'6 
 compulsory, 386-'7 
 history of efforts in Virginia, 387 to 390 
 system in Virginia, 390 to 396 
 
 organization of system, 390 to 393 
 board of education, 390, 395 
 superintendent of public instruc- 
 tion, 391 
 county school-board, 392 
 county superintendent of schools, 
 
 391 
 district school trustees, 392 
 funds for its support, 393-'4 
 regulations for its government, 394 
 to 396 
 legislature has power of compul- 
 sory education, 394 
 duty to establish normal schools, 
 
 394-'5 
 power to establish otb er grades, 395 
 city and county accountable for 
 destruction of school property, 
 
 395 Digitized by 
 
 Education — 
 
 school officers to have no pecu- 
 niary interest in books, &o., 395 
 what teachers employed, 395 
 teachers' meetings, 395 
 school-houses and appliances, 395 
 public schools free, 396 
 regulations by board of education, 
 
 396 
 system for cities and towns, 396 
 ancient seminaries, 500, 501 
 Edward the Confessor, code, 31 
 
 reatilmtor legvm, AngJm, 31 
 Elections, to parliament, 70 to 72 
 succession to the throne by, 75 
 of Arch-bishops, bishops, &c., 148 to 
 
 152 
 for slave to be free, 168 
 guardian by, 426-7 
 powers and duties, 433-'4 
 bond and security, 434 
 Eleemosynary corporations, what, 508 
 
 visitation of, 574-'5 
 Ely, Isle of, 50 
 
 Emancipation, of slaves in Virginia, 167 
 to 169 
 general in Virginia, and United States, 
 
 172 
 effect on bonds for purchase of slaves, 
 173-'4 
 Eminent domain, ns to charters of cor- 
 porations. 503, 535, 587 
 Employer, liability for acts and default 
 
 of contractor, 229-30 
 Enemies, alien, 143, 145 
 England, countries subject to cmthority 
 of, 45 to 48 
 territory, subject to laws of, 48 to 50 
 ecclesiastical divisions, 48 
 civil divisions, 49, 50 
 Enlarging statutes, 39 
 Enlistment, contracts by infants, 484 
 Entireties, tenants by, 333-'4 
 En venVre sa mere, 52, 409 
 Eqmtes aurati, 155 
 Equity, natural, 29 
 
 technical, 29, 30 ^ 
 
 wife's, in her equitable cTioses in ac- 
 tion, 306 to 310 
 wife's separate property, 316 to 333 
 suits in, between husband and wife, 
 
 363 to 365 
 power to remove children from pa" 
 
 rents 399, 400 
 power to appoint and control guar- 
 dians, 428, 429 
 power to restore infants to right cus- 
 tody, 402, 439 
 Escapes, liability of jailor for, ^9 
 Escheats, 85, 130 to 133 
 Escheators, 128 to 133 
 antiquity and original, 128-'9 
 appointment and removal, 130 
 fidelity secured, 130 
 M;afiQ6»S@L31 to 133 
 
mDEX. 
 
 599 
 
 Esoheators — 
 
 what lands exempt, 131 
 proceedings to escheat, 131 to 133 
 notice and inquest, 131-'2 
 verdict, 132 
 
 redress, to persons aggrieyed, 132, 
 133 
 Esquire, 155 
 Estate. See Property. 
 Estimated profits, interest on, by guar- 
 dians, 455 
 Bstrays, 85 
 Excise, duties, 89 
 Executive, power, 74-'5 
 Executor, age for acting as, 471 
 
 corporation, 570, 571 
 Exile, 59 
 
 Expatriation, doctrine at common law, 
 135 
 doctrine in Virginia, 135-'6 
 effect as to United States, 136 
 Exports, and imports, duties on by 
 States, 65 
 duty on by United States, 65 
 Em post facto laws, what are, 24 
 
 prohibition of, 62, 63 
 BxtrwBagantes, in canon law, 36 
 Factors, 188. See Master and Servant. 
 Family, royal, 75-'6 
 Father, obligation to support infant 
 child, 375 to 378 
 right to infant child's wages, 376, 399, 
 
 400 
 power to delegate authority, 404-5 
 appointment of guardian by, 430, 431, 
 
 404-'5 
 guardian by nature, 423-' 4, 434 
 right to custody of infant child's per- 
 son, and remedies, 397 to 402, 434 
 Felony, conviction of, cause of amotion 
 
 from office~93 
 Fellow-servant, torts by, master's lia- 
 
 biUty, 196 -'7, 220, 221 
 Feme covert, origin of term, 230-'31 
 
 See Husband A Wife, and Wife. 
 Verne sole, when married woman may act 
 
 as, 337-'8, 353-'4, 361 
 Feudal wardships, 424 to 426 
 chivalry, 424-5 
 socage, 425-6 
 Fifteenths, 86 
 Filius nullius, 416, 421 
 Filiuspopuli, 416 
 Fines, excessive prohibited, 63, 64 
 Fish, royal, 84 
 Fitzherbert's Abridgment, 32 
 Fleta, 32 , 
 
 Flotsam, 85 
 Folc-rihU, 31 
 
 Force, cause of divorce, 263-'4 
 Foreign corporation, contracts by, 517 to 
 
 519, 540, 541, 549- '50 
 Foreign divorces, 279, 280 
 Foreign marriages, 247 to 249 
 
 Foresight, knowledge aiy3,^.^u^ep^ m^.^^ie^ot orphanage^ 422 
 
 agent, 199 
 
 Forest, royal, 84 
 
 Forfeiture, infant's contract involving, 
 485 
 
 franchises of corporations, 582 to 584 
 
 requires judicial sentence, 483-'4 
 
 enforced only in court of law, 584 
 Fortescue, reason for omission of law- 
 study at Oxford anfl Cambridge, 17, 18 
 Founder, of corporation, 574, 575 ' 
 Franchises, of corporations, 498 
 
 mis-user and non-user, 576, 582 to 
 585 
 
 subject to eminent domain, 587 
 
 rival when admissible, 587-'8 
 Fraud, master's liability for servant's, 
 219 
 
 cause of divorce, 263-'4 
 Freedom, of conscience, 59, 66 
 
 press and speech, 66, 67 
 
 civil and political rights, 66 
 Freeholds, husband's interest in wife's, 
 311 to 313 
 
 wife's interest in husband's, 315-'16 
 Free schools, see Education. 
 Fugitive, from justice, cause of divorce, 
 
 265 
 FuU age, 471, 472 
 Fundator, perfiaiens, and incipiens, of 
 
 corporation, 674 
 Gaol, see Jail. 
 Gaoler, see Jailor. 
 Garter, knights of, ]55 
 Gates, on highway, 120 
 Gavelkind, custom of, 33 
 Oemote, vdttena, or michel, 68 
 General, or public, statute, 38 
 
 or great council of England, 68 
 Gentleman, 155 
 Qerefa, 91 
 
 QiW/i mercatoria, 509 
 Glanvil, 32 
 
 Glebes, sequestered in Virginia, 502 
 Government, required for society,j26 
 
 qualities, needful, 26 
 
 simple forms, 26-'7 
 
 mixed forms, 27 
 
 elements of English and American, 27, 
 
 declaration and guards of rights in 
 England, 60 to 62 
 
 declaration and guards of rights in 
 Virginia, 62 to 67 
 
 agents, liability of government for 
 torts, 227 
 
 ofBoer, liability of superior for subor- 
 dinate, 228 
 Governor, meaning of in statutes, in 
 
 Virginia, 41 
 Grand Jury, presentments required, 
 
 when, 64 
 Great council, of England, 68 
 Guaranties, constitutional, ofd liberty 
 
 62 to 67 
 Guardian and ward, relation of, 422 to 
 497 
 
 ' awrator in Koman law, 422 
 
600 
 
 INDEX. 
 
 Guardian — 
 
 different kinds of, how appointed and 
 power' and duty, 422 to 470 
 different kinds, and how appointed, 
 422 to 433 
 
 guardians, by nature, 422 to 424 
 
 for nurture, 424 
 
 in chivalry, 4B4-'5 
 
 in socage, 425-'6 
 
 by election, 426-7, 433, 471 
 
 in chancery, 427 to 429 
 
 in ecclesiastical court, 429 
 
 by 4 and 5 Ph. & M. 429-'30 
 
 by will of father, 430, 431 » 
 
 by custom, 431-2 
 
 ad litem, 432-'3, 475 
 circumstances under which different 
 
 kinds of wardship occur, 433-4 
 guardians in Virginia, who have care 
 
 of ward's estate, 433 
 powers and duties of guardians, 
 
 436 to 444 
 powers limited to state, 435 
 transfer of ward's effects, 435-6 
 custody of ward's person and edu- 
 cation, 436 to 439 
 
 remedies for ward's abduction, 
 
 437 to 439 
 .care of ward's estate, 439 to 444 
 
 what guardians have, 433, 439 
 
 right to sue, 439-40 
 
 management and sale, 440-41 
 
 execution of trust by infant 
 trustee, 441-2 
 
 ward's support and education 
 out of income, 442 to 444 
 
 guardian's personal responsi- 
 bility for support, 444 
 
 ward's personal responsibility, 
 444 
 guardian's accounts and aEowances, 
 
 444 to 470 
 general accountability, 444-'5 
 particulars for which guardian 
 liable, 445 to 450 
 
 estate in guardian's hands, 445-'6 
 
 losses by guardian's neglect, 
 446 to 449 
 
 losses by co-guardian's default, 
 449-'50 
 means to compel prompt settle- 
 ments, 450 to 454 
 
 commissioner of accounts, 451 
 
 inventory and account of sales, 
 452 
 
 annual settlement, 452 to 454 
 mode of stating guardian's ac- 
 counts, 454 to 470 
 general principles of statement, 
 
 454 
 allowances to guardians, 456 to 460 
 disbursements, 456 
 compensation, 457 to 459 
 
 guardian's private settlement, 
 and conveyan^^fjj^gf j^ 
 
 Guardian — 
 
 dealing for his own benefit with 
 
 ward's property, 461 
 examination before commis- 
 sioner, 461-'2 
 production of . books and 
 • vouchers, 462 
 
 proceedings against guardian, 
 and limitation thereto, 463-'4 
 termination of wardship, 471 
 doctrine as to capacities and incapaci- 
 ties of infants, 471 to 497 
 ages for divers purposes, 471 
 precise time of infant's majority, 
 
 472-'3 
 doctrine as to privileges and dis- 
 abilities of infants, 473 to 497 
 as to infant's suing or being sued, 
 
 473 to 476 
 as to stay of proceedings against 
 
 infants, 475 
 effect of judicial proceedings as 
 
 to infants, 475-'6 
 infant's responsibility for crime, 
 
 476 
 as to infant's privileges and dis- 
 abilities, touching property and 
 
 contracts 476 to 497 
 touching disposition of prop- 
 erty, 477 
 touching contracts executory, 
 477 to 497 
 contracts iialid, 474 to 484 
 necessaries, 479 to 482 
 marriage settlement, 482 
 apprenticeship, 482-'3 
 assignment of dower, 483 
 contracts void, 484 to 486 
 contracts voidable, 486 to 488 
 confirmation of infant's con- 
 tracts, 488 to^95 
 acts for which infancy is no 
 defence, 495 to 497 
 Guards of absolute rights in England, 
 61-'2 
 in Virginia, 62 to 67 
 Guernsey, isle of, 46 
 Habeas corpus, nature and proceedings, 
 55 to 58 
 securities for, 56 
 suspension prohibited, 58, 63 
 to recover child by parent, 401-'2 
 to recover ward by guardian, 438-'9 
 Habitat, of corporation, when created, 
 514 to 520 
 corporation may conduct business out- 
 side, when, 5]7-'18 
 corporation sued outside of, 519-'20 
 corporation may acquire lands out- 
 side, when, 549-'50 
 Habitation. See Habitat. 
 Hanover, 47 • 
 
 Head of church, King in England, 83, 
 574 
 
INDEX. 
 
 601 
 
 Hereditary right to crown, 75 | 
 
 Hexhamshire, 50 
 Hidage or hydage, 86-7 
 Higla constable, 49, 109 
 High seas, 48 
 
 Highways, surveyors of, 112 to 120 
 means of keeping in repair, 115 to 117 
 redress if road not in repair, 116-17 
 establishing and altering roads, and 
 landings, 117 to 119 
 preliminary examination by viewers 
 
 or eommissiouere, 117 
 summons to land-owners, 117-18 
 writ of ad quod damnum, 118 
 sentence of court, 118-'19 
 road in several counties, 119 
 building bridges or causeways, 119 
 discontinuing roads and landings, 120 
 erection of gates, 120 
 extent of public right to, 120 
 dedication to public, 120 
 police regulations touching, 120, 121 
 Homicide, of husband by wife, &c., 
 
 367-'8 
 Honor, King fountain of, 83 
 Hospitals, r,08, 57-4 
 Hundreds, 49 
 
 Husband and wife, relation of, 230 to 
 373 
 definition of marriage, 230 ; coverture, 
 
 230-'31 
 baron and feme, 230 
 marriage a civil contract, 231 
 mode of contracting marriage, 231 to 
 253 
 willingness to contract, 231 
 consensus non concubitas nuptias 
 
 facit, 231 
 marriage-brocage contracts, 231- '2 
 capacity to contract, 232 to 242 
 in England, 232 to k,38 
 
 canonical impediments, and why 
 so called, 232 to 237 
 pre-contract, 2o3-'4 
 consanguinity, 234 to 235 
 affinity, 235 
 
 incurable impotency, 236 
 effect of canonical impediments 
 236-'7 
 legal or civil disabilities, 237-'8 
 prior marriage, 237 
 want of age, 237 
 want of reason, 238' 
 want of consent of parents, &o., 
 
 238 
 effect of legal disabilities, 238 
 in Virginia, 238 to 242 
 
 impediments which make mar- 
 riage voidable, 239 to 242 
 incurable impotency, 240 
 consanguinity and affinity, 
 
 240-'41 
 want of reason, 240 
 conviction before marriage of 
 infamous oHenc^j^j-^'^ [^l 
 
 39 
 
 Husband and wife — 
 
 pregnancy of wife at marriage, 
 
 241 
 notorious prostitution of wife 
 at marriage, 241 
 disabilities which make marriage 
 void^er s^ 241-'2 
 prior marriage, 241 
 want of age, 241 
 difference of race, 242 
 actual contract of marriage, 242 to 253 
 contract of actual marriage, inpre- 
 senii, 242 to 249 
 circumstances needful in Eng- 
 land, 242 
 circumstances needful in Vir- 
 ginia, 243 to 249 
 effect of foreign marriages, 247 to 
 
 249 
 proof of marriage, 249 
 contract to marry in Juturo, 250 to 
 253 
 modes of dissolving marriage, 253 to 
 280 
 death, 253 
 divorce, 253 to 280 ' 
 divorce a mensa, 253-'4 
 causes for divorce a mensa, 254 
 
 to 261 
 effect of divorce a mensa, 271 
 to 276, 281-'2 
 divorce a vinculo, 254 
 cause of divorce a vinculo, 257 
 
 to 266 
 effects of divorce a vinculo, 272 
 to 278 
 courts charged with divorce causes, 
 266 to 270 
 modes of proceeding, 268 
 powers of court, 269 
 prohibition upon legislature to grant 
 
 divorces, 270-'71 
 effect of foreign sentence of di- 
 vorce, 279-'80 
 matrimonial causes other than di- 
 vorce, and courts, 280 to 283 
 legal consequences of marriage, 284 
 to 373 
 effect as between husband and wife, 
 284 to 334 
 as to their persons, 284 to 289 
 
 one in law, 284 
 husband's duties, 284-'5 
 wife's duties, 285-'6 
 husband's power to correct, 285-'6 
 deeds of separation, 286 to 289 
 as to their property, 289 to 334 
 touching contracts, <fec., before 
 
 marriage, 289 to 291 
 touching contracts, &.a., during 
 coverture, 291 to 297 
 conveyances one to another, 291 
 
 to 295 
 contracts executory between 
 
602 
 
 LNDEX. 
 
 Husband and wife — 
 
 testamentary dispositions, one 
 
 to another, 295, 320-'21 
 marriage settlements between 
 them, 296-7 
 touching the property of each in 
 regard to the other, 297 to 
 334 
 wife's ante-nuptial conveyances 
 &e., in frau<l of husband, 
 297-'8 
 interest of each in the other's 
 property, 299 to 334 
 husband's interest in wife's 
 property, 299 to 313 
 chattels, 299 to 311 
 freeholds, 311 to 313 
 wife's interest in husband's 
 
 property, 313 to 316 
 wife's separate property, 316 
 to 334 
 effect of marriage as to third persons, 
 334 to 367 
 touching wife's ante-nuptial con- 
 tracts, 334 to 336 
 touching contracts made by wife 
 
 during coverture, 336 to 338 
 touching conveyances by and to 
 wife during coverture, 338 to 341 
 touching wife's contracts during 
 coverture as respects husband, 
 341 to 345 
 on score of agency, 342, 343 
 on score of duty, 343 to 345 
 touching husband's liability for 
 wife's torts, 345 to 347 
 suits by and against husband and wife, 
 347 to 364 
 actions by husband and wife, 347 to 
 357 
 both must join, 347 to 348 
 husband must sue alone, 348 to 
 
 351 
 they may join or not, 351 to 353 
 wife may sue alone, 363-'4 
 who to sue, if either dies, 354 to 
 
 357 
 consequences of mistake, 357 
 actions against husband and wife, 
 357 to 364 
 both must be joined, 358 
 husband must be sued alone, 
 
 3fl9-'60 
 they may be joined, 360 
 wife may be sued alone, 361 
 who to be sued if either dies, 361 
 consequences of mistake, 362-'3 
 suits between husband and wife in 
 equity, 363, 364 
 liability of wife to be punished for 
 
 crime, 365-'6 
 husband and wife witnesses, 366-'7 
 contrast of sexes in respeot to rights, 
 &c., 367 to 373 
 in respect of crimes, p^htf)-^^ fjy 
 
 Husband and wife — 
 
 in respeot of civil rights, 370 to 37S 
 Hydage, or hidage, 86-'7 
 Idiots, who are, and custody of, 85-'6 
 marriage of, 238, 240, 247, 259, 262 
 Ignorance, master's liability for ber- 
 
 vant's, 220 
 Impediments, canonical to marriage, 
 233 to 236 
 marriage in Virginia, 239 to 241 
 See Canonical impediments. 
 Imports, and exports, duty on by State, 
 65 
 duty on exports by 0. States, 66 
 Impotency, bar to marriage, 236, 240 
 
 cause of divorce, 258, 262 
 Impressments, of seamen, 160 
 Imprisonment, what is, 58 
 
 illegal, protection against, 56 to 59 
 duress of, 58 ; warrants for, 59 
 habeas corpus, 61, 63 
 Incapacities, of bastards, 419 to 421 
 Incestuous marriages, 234-'5, 240, 248, 
 
 268 
 Incidental prerogatives, 79 
 Incorporation, power of, 508 to 511 
 Indefeasible right, to crown, 75 
 Indentures, of apprenticeship, 180-'81 
 Independence of United States, date of, 
 
 146 
 Indictment, mode of removal from of- 
 fice, 93 
 Infamous offence, effect on marriage, 
 240-'41 
 cause of divorce, 262-'3 
 Infant, marriage of, 237-'8 
 
 divorce for want of age, 259, 261-'2 
 
 license to marry, 244-'5 
 
 consent of parents, &c., to marriage, 
 
 238, 244-'5, 402-3 
 contract to marry in futuro, 250 
 obligation of father, and of mother, to 
 aupportj 375 to 379 
 
 See Parent & Child and Ghildren. 
 power of parents over person, 396 to 
 
 403 
 power of parents over estate, 403-'4 
 guardian ad litem for. 432, 433, 475 
 guardian's custody of person, 436 to 
 
 444 . . 
 
 ward, abduction of and remedies, 437 
 
 to 439 
 ward, maintenance and education, 
 
 437, 442 to 444 
 precise time of attaining age, 472 
 privileges and disabilities, 473 to 497 
 touching suits, 473 to 476 
 as plaintiffs, 473 to 475 
 prochein ami, 474 
 guardian, 474 
 attorney, 474 
 as defendants, 475 -'6 
 guardian ad litem, 475 
 attorney, 475 
 VlicrOSOftW °* proceedings, 475 
 
INDEX. 
 
 603 
 
 Infant — 
 
 effect of judicial proceedings as 
 to, 4:75-'6 
 as plaintiff, 475 ; as defendant, 
 
 476 
 leave to show cause, 476 
 responsibility for crime, 471, 476 
 touching property and contracts, 
 476 to 497 
 effect of lapse of time, 476 
 as to conveyance, will, &c., 477 
 aa to contracts executory, 477 to 
 497 
 valid, void, and voidable, 477, 
 
 47S 
 valid contracts, 478 to 484 
 necessaries, 479 to 482 
 marriage settlements, 482 
 apprenticeships, 483-'3 
 to do what law requires, 
 488-'4 
 void contracts, 484 to 486 
 principles of. and instances, 
 
 484-'5 
 why powers are, 48S-'6 
 voidable contracts, 486 to 488 
 principles of, and instances, 
 
 486-7 
 voidable by infant alone, 
 
 487-'8 
 difference in effect from i>oid, 
 488 
 confirmation of contracts, 488 
 to 495 
 applies only to voidable, 488 
 avoidance against purchaser, 
 
 489 
 fraud as to age, 489 
 valid until avoided, 489 
 terms of ratification, 489 to 
 
 493 
 bond confirmed by parol, 490 
 to stranger, 490 ; by conduct, 
 
 491 to 493 
 continuing contracts, 49 1-'2 
 time and mode of avoidance, 
 
 494-5 
 effect of avoidance, 493 to 
 495 
 contracts executory, 493 
 contracts executed, 494 
 avoidance entire, 494-'5 
 statute as to confirmation, 
 495 
 contracts to pay money, 495 
 collateral contracts, 495 
 avoidance of contracts of re- 
 cord, 495 
 acts for which infancy is no de- 
 fence, 495 to 497 
 torts, 495-'6 
 
 ambiguoiB acts which may 
 be torts, 496-'7 
 Information, in nature of quo warranto, 
 
 575, 576, 584 Digitized by 
 
 Infra annum luatus, 410 
 Inheritance, bastard's, 420-'21 
 Inns of court, 14 to 17 
 InofScious teslament, 375 
 Inquest, of coroner, 104 
 
 of office, by escheator, 13l-'2 
 Insane person, meaning in statutes, 42 
 In sensu et re ipsa, 512, 568 
 Institutes, Coke's, 32 
 
 Justinian's, 35-6 
 Insurance companies, process in suits, 
 
 564, 568 
 In syllabis et verbis, 512, 568 
 Interes';, in guaraiaii's accounts, 454, 
 
 455, 469 
 International law, 22 
 Interpretation, of laws, 28-'9 
 Interregnum, 81 
 Inventory, by guardians, 452 
 In ventre sa mere, 52, 409 
 Ireland, 45 
 Irish peers, 70 
 Isles, Man, 46 
 
 Jersey, Guernsey, Sark, Alderney, 46 
 
 Wight, Portland, Thanet, Ac, 46 
 
 Ely, 50 
 Issue, effect of canonical impediments 
 on legitimacy, 236-'7 
 
 effect on legitimacy, of civil disabil- 
 ities, 239 
 
 legitimacy of, effect of divorce, 272, 
 275-'6 
 Jactitation of marriage, 280-'81 
 Jail, how kept, and expenses in, 98-'9 
 Jailor, deputy of sheriff, 98 
 
 duties and liability, 98-'9 
 
 liability for escape, 99 
 
 transfer of prisoners, 99 
 Jay's treaty, 145, 146 
 Jeofails, as to infants, 475 
 Jeopardy, twice for same offence, 64 
 Jersey, isle of, 46 
 Jetsanj, 85 
 
 Joint-stock companies. See Corpora- 
 tions. 
 Judges, of England, 82 
 
 signs to interpret laws, 28-'9 
 Judgment, prudence, skill, &o., required 
 
 in agent, 199 
 Judgment against sheriff, effect as to 
 
 deputy, ifec. , 98 
 Judicial decisions, effect of, 31 
 Judicial duties, sheriffs, 94-'5 
 
 coroners, 102, 103 ; justices of peace, 
 108, 109 
 Judicial power, separate from executive, 
 
 82 
 Jure dimno, title to crown, 74-'5 
 Jura regalia, 46, 50 
 Jury, trial secured, 63, 64, 65 
 Justice, not to be sold, denied, or de- 
 layed, 60, 61 
 
 administration of required, 60, 61, 62 
 
 king, fountain of, 82 
 /V^p@lS?^fit®iistration of, 82 
 
604 
 
 INDEX. 
 
 Justices of peace, antiquity and original, 
 105-'6 
 
 appointment and removal, 106, 107 
 
 fidelity secured, 107, 108 
 
 diTties of, 108, 109 
 
 liability, 108 
 Justinian, Institutes, Pandects, Code, 
 
 Novels, 35-'6 
 Kindred. See Co-nmnguinity. 
 King, limitation on prerogatives, 62 
 
 constituent part of parliament, 68 
 
 title to crown, 74 ; royal family, 75 
 
 queen regnant, consort, dowager, 75-'6 
 
 Prince of Wales, 76 * 
 
 younger children, 7(5 
 
 councils, 76 to 78 
 high court of parliament, peers, 
 judges and privy council, 76 to 78 
 
 duties, 78 
 
 prerogatives, 79 to 83. See Preroga- 
 
 revenue, 83 to 90. See Revenue. 
 ordinary, 83 to 86 
 extraordinary, 86 to 90 
 Knights, general character, 155 
 fee, estate of knights, 155 
 several kinds, 155 
 garter, bath, bachelor, banneret, 
 baronet, 155 
 Knighthood, 155 
 Knowledge, judgment, ifcc, required of 
 
 agent, 199 
 Laborers, 155 
 Laches, of king, 80 
 
 infants, -176 
 Laity, 153 to 160 
 Lancaster, comity palatine, 50 
 Lands, tax on in England, 87 
 
 holding by corporations, 547 to 550 
 by corporations, outside of habitat, 
 
 549-'50 
 conveyances of, to corporation, 550, 
 
 551 
 of corporations, shares in personalty, 
 
 551 
 devise to corporation, 551 
 grants to corporations, 512 to 514 
 alienation of by corporations, 552 
 restraint upon corporation's aliening, 
 
 552 
 of corporation, at dissolution, 552, 
 576 to 578 
 Lands, power to convey to be under 
 seal, 203 
 responsibility of owner for nuisance, 
 
 230 
 conveyance of between husband and 
 
 wife, 291 to 295 
 conveyance of by or to wife, 338 to 
 
 341 
 conveyances of by infants, 487, 492 to 
 495 
 Landings, establishment of, 117 to 119 
 discontinuance, 120 
 
 Lathes, 49 Digitized by 
 
 Law, utility of study to divers persons, 
 2 to 8 
 neglect of study at Oxford and Cam- 
 bridge, 8 to 17 
 reasons for resuming study there, 17, 
 
 18 
 taught in inns of court, 14 to 17 
 methods to facilitate study, 18 to 21 
 nature of, 22 to 30 
 general definition, 22 
 several kinds of, 22 to 30 
 divine, 22 
 human, 22 to 30 
 international, 22 
 constitutional, 22 
 municipal, 22 to 30 
 
 definition of municipal law, 22 
 objections to Blackstone's de- 
 finition, 22-3 
 preferable definition, 23 
 particulars in definition, 23 to 28 
 rule prescribed, 23 to 26 
 retrospective laws, 23 to 26 
 ex pout faato hiws, 24 
 rights and remedies, 24-5 
 time of taking effect, 25 
 publication, 25, 26 
 by law-making power, 26 to 28 
 
 See Statutes. 
 several parts of a law, 28 
 obligation to obey, 28 
 interpretation of laws, 28 to 30 
 contrasted with equity, 29, 30 
 of England, several kinds, 30 
 to 44 
 unwritten, 30 to 37 ; written, 
 
 37 to 43 
 common. See Common Law 
 civil and canon, 35 to 37 
 statutes, 37 to 43 
 of Virginia, before and since 
 1776, 43, 44 
 of England, countries subject to, 45 to 
 50 
 subject to authority of England, 45 
 
 to 48 
 subject to the laws of England, 48 to 
 50 
 ecclesiastical divisions, 48 
 civil divisions, 40, 50 
 due process required to deprive one of 
 
 rights, 63, 64 
 suspension of by legislature only, 65 
 of domicil governs disposition of chat- 
 tels, 143 
 domicil as to marriages, 247, 249 
 as to divorces, 279, 280 
 ancient seminaries for, 500, 501 
 Lay corporations, 504 to 508 
 civil, 504 to 507 
 eleemosynary, 508 
 visitation of, 574-'5 
 Leet, 110, 112 
 
 Legislature, of England, 68, 74. See 
 l^icroW0ft@ment. 
 
INDEX. 
 
 605 
 
 Legislature — 
 no limits to power of, 41 
 of Virginia, jDower limited by Consti- 
 tution, 40 
 prohibited to grant divorces, 270, 
 
 271 
 impair contracts, pass ex post facto 
 laws, bills of attainder, &c. 62 to 
 67 
 of U. States, see Congress 
 act of, dissolTing corporation, 578-9, 
 584 to 587 
 Legitimate child, 374 to 407 
 definition of, 374 
 duties of parents to, 374 to 396 
 maintenance, 375 to 380 
 protection, 380 
 education, 381 to 396 
 See Education. 
 powers of parents as to, 396 to 407 
 custody of person, and remedies, 
 
 397 to 402 
 consent to marriage, 402-'3 
 control of estate, 403-'4 
 delegation of authority, 404, 405 
 termination ot power, 405 
 duties of, to parents, 405 to 407 
 
 obedience, protection, and mainte- 
 nance, 40t;, 407 
 Le grand coustumier. 4<; 
 Lefitical degrees, 234, 235, 240 
 Lex domicilii, see Domicilii 
 Lex loci contractus, 549 
 Lex loci rei dice, 549 
 Lex non scripta, 30 to 37 
 Lex scripta, 37 to 43 
 LiabOity, see Master & Servant, Hus- 
 band <t Wife, Parent & Child, Guar- 
 dian & Ward. 
 shareholders in corporations, 505-'6 
 Liberty, natural, civil political, 52 
 right of personal, 55 
 protection of, 55 to 59 
 press and speech, 67 
 License, to marry. 244 to 247 
 Life, security of, 52 to 54 
 Ligan, 85 
 
 Ligeanee, see Allegiance. 
 Limbs, security of, 52 to 54 
 Limitation, to proceedings against guar- 
 dian, 403 
 Limited partnership, 506, 507 
 Literary fund, 388-'9, 393 
 Littleton, tenures, 32 
 London, customs, 33 
 Lords, of parliament, 68-9 
 privileges; 69 
 hereditary councilors, 76 
 how created and deposed, 154 
 Lunacy, of principal revokes agency, 
 
 226 
 Lunatics, who are, and custody of) 85-6 
 
 marriage, 238, 240, 247, 259, 262 
 Magisterial district, see Township. 
 
 school purposes, 390 Digitized by 
 
 Magistrates, rights and duties, 68 to 133 
 supreme, 68 to 90 
 parliament, 68 to 74. See Parlia- 
 ment. 
 king, 74 to 90. See King. 
 subordinate, 91 to 133 
 
 sheriff, 91 to 1 00. See Sheriff. 
 coroner, 100 to 105. See Coroner. 
 justice of peace, 105 to 109. See 
 
 Justice of Peace. 
 constable, 109 to 112. See Constable. 
 surveyor of roads, 112 to 121. See 
 
 Survey or a of Hightcays. 
 overseer of poor, 121 to 128. See 
 
 Overseer of Poor. 
 escheator, 128 to 133. See Eschea- 
 
 tor. 
 supervisors, 133. See iiuperi)isors. 
 Magna Charta, protection to life and 
 liberty, 60 
 protection to property, 59, 60 
 extorted from John, and provisions, 60 
 guaranties justice, 60 
 Magnatum scandalum, 154 
 Maintenance, of suits between master 
 and servant, 200, 201 
 between parent and child, 880 
 of legitimate child by parents, 375 to 
 
 380 
 of child, out of his own estate, 378 
 of parents, by children, 407 
 bastards, 412 to 416 
 wife, 343 to 345 
 Majority of corporation, 533 
 when infant attains, 472-'3 
 Malfeasance, of officer, cause of amotion, 
 
 93 
 Malicious torts, of servants, master's 
 
 Uability, 220 
 Malus usus dbolendus est, 33 
 Man, isle of 46 
 
 Mandamus, suit of, as to corporations, 
 574, 575 
 to enforce road-law, 119 
 Manumission, of slaves, 167 to 169 
 Marches, 153 
 Mariners, impressment of, 160. See 
 
 Sailors. 
 Maritime state, 159-'00 
 Marque and reprisal, letters of, 81 
 Marquis, 153 
 Marriage, of female servant, 194 
 
 of female principal, revokes agency, 
 
 226 
 relation of husband and wife, and 
 rights thereon arising, 230 to 373 
 definition and character of, 280 
 how contracted, 231 to 373 
 brocage-contracts, 231-'2 
 capacity of parties to contract, 232 
 to 253 
 canonical impediments, 232 to 237 
 legal or civil disabilities, 237, 238 
 impediments and disabilities in 
 /W;CrOSOl?<^™ia, 239 to 242 
 
606 
 
 INDEX. 
 
 Marriage — 
 
 actual contract of in presenti, 242 to 
 249 
 at commori law, 242-'3 
 in Virginia, 243 to 247 
 foreign, 'iil to 249 
 proof of, 249 
 contract to marry infaturo, 250 to 
 253 
 circumstances of contract, 250 
 mode of enforcing, 251 
 defences to action, 251 to 253 
 damages in action, 253 
 dissolution of by death or divorcdf 
 253 to 283 
 See DvBorce. 
 legal consequences of marriage, 284 
 to 367 
 effect as between husband and 
 wife, 284 to 334 
 in respect of their persons, 2S4 
 
 to 289 
 in respect to their property, 
 289 to 334 
 See Husband & Wife. 
 effect as to third persons, 334 to 
 367 
 as respects the wife herself, 336 
 to 341 
 wife's ante-nuptial contracts, 
 
 385, 336 
 contracts during coverture, 
 
 336 to 338 
 conveyances, ,338 to 341 
 as respects husband, 341 to 347 
 wife's ante-nuptial contracts, 
 
 335-'6 
 contracts during coverture, 
 
 336 to 345 
 torts by wife, 345-'6 
 suits by and against husband 
 and wife, 347 to 3B4 
 actions by husband and wife, 
 
 347 to 357 
 actions against husband and 
 wife, 357 to 364 
 wife's hability to punishment 
 for crime, 364 to 366 
 husband and wife witness, 
 one for another, 366-'7 
 contrast of sexes as to rights and 
 privileges, 367 to 373 
 Married women. See Feme covert, Feme 
 Sole, Wife. 
 contract as feme sole, when, 337-'8 
 separate estate, liability for debts, 316 
 
 to 333 
 separate estate, power to alienate or 
 change, 322 to 333 
 See Husband & Wife. 
 Master and servant, relation of, 160 to 
 188 
 definition of, 160 
 several classes of servants^ .160 to 188 i , 
 
 slaves, 160 to 180 Digifizea by Mi 
 
 Master and servant — 
 
 menials, 180 
 
 apprentices, 180 to 188 
 
 laborers, 188 
 
 stewards, factors, bailiffs, &c., 188 
 effect of relation on master and ser- 
 vant, 188 to 200 
 
 relatioji depends on contract, 188 to 
 197 
 
 mode of contracting for service, 189 
 
 indefinite contract of service, in 
 point of time, 190 
 
 entire contract of service, 190 to 
 
 effect on wages of servant's sick- 
 ness, 101 
 dissolution of contract of service, 
 191 to 193 
 mutual consent, 192 
 act of master, 192 
 act of servant, 193 
 act of God, 193 
 effect of marriage of female servant, 
 
 194 
 authority of master, 194 
 obligation of master, as to servant, 
 194 to 197 
 as to wages, 194-'5 
 maintenance, 195 
 medical attendance, 19.5-'6 
 servant's personal safet}', 196-7 
 character of employment, 196 
 default of fellow-servant, 196-'7 
 indemnifying servant, 197 
 pecuhar privileges of apprentices, in 
 
 England, 197 
 homicide of master by servant, 197 
 testimonials to character, 197-'8 
 liability of servant to master, 198 to 
 200 
 duration of service, 198 
 conduct and care, 198-'9 
 appropriation of master's goods, 
 
 199, 200 
 rendering accounts, 200 
 deahng for his own benefit, with 
 master's business, 200, 222-'3 
 effect of relation as to strangers, 200 
 to 230 
 mutual personal defence,' and main- 
 tenance of suits, 200-'l 
 seducing away or hiring servant, 201 
 personal torts done to seiTants, 
 
 201-'2 
 contracts made and acts done by 
 servants, 202 to 221 
 contracts, 202 to 218 
 torts, 218 to 222 
 termination of relation, 223 to 227 
 doctrine where government and its 
 servants are concerned, 227 to 229 
 doctrine as to liabiUty of govern- 
 ment officer for subordinate, 228 
 liabilite of municipal corporation 
 '/CrOSfip^rts by its sei-vants, 229 
 
INDEX. 
 
 607 
 
 Master and servant — 
 
 liability of employer for oonlraetor, 
 
 229-'30 
 liability of owner of real property 
 for hurtful use, 230 
 Matrimonial causes, 280 to 28-t 
 Mayhem, 53 
 
 Measures and weights, 83 
 Medicines, for apprentices, 183 
 for servants generally, 195-'6 
 Meetings, of corporators for organiza- 
 tion, r)28-'9 
 of corporation in general, 531 to 534 
 time, place, notice, 531-':^ 
 persons composing, rules, 532 to 534 
 Members of parliament, 68 to 72 
 lords, spiritual and temporal, 68-'9 
 commons, 70 to 72. See Commons. 
 Menials, who, and why so called, 180 
 
 See Master & Servant. 
 Mensa et toro, nature of divorce, 253 '4 
 causes of divorce, 254 to 257, 259 to 
 
 261 
 powers of court in divorces, 269-'70 
 as to estate and children, 269 
 as to perpetual separation. 269-70 
 power of legislature, 270-'l 
 effect of divorce. 27L to 276 
 
 as to capacities of parties, 271-2 
 
 274-'5 
 as to legitimacy of issue, 272. 275 
 as to estate of parties, 273, 276 
 Mercen-lage, 31 
 Metropolitan, 148 
 Michel gemote, 68 
 
 Mihtary, courts, laws used, 35 to 37 
 subordinate to civil power, 66 
 State, who compose, 156 to 159 
 power of king, 82 
 danger of standing armies, 156 
 See Public Defence. 
 Militia, safe defence of State, 66 
 
 in England, 1 58 
 Minor, see Infant. 
 Minority, none in king, 81 
 
 See Infancy, Infant. 
 Ministers, of king, responsible. 80, 81 
 Mis-user, of franchises of corporation, 
 576 
 
 forfeiture of franchises by, 582 to 584 
 forfeiture of of&ce by, 93 
 Monarchy, characteristics of, 27 
 
 features of in English and American 
 Governments, 27 
 Money, paid from treasury only by law, 
 
 65 
 acts appropriating, how passed, 65 
 
 coining. 83 
 Monk, 53, 547 
 Monopoly, not favored, 588 
 Monstrans de droit, 132 
 Month, meaning of. 42 
 Mortis causa, donations, between hus 
 
 band and wife, 320 
 
 MMtmainTpoiicy ofl RiDtg^ized by MicrosoS® 
 
 Mother, obligation to support child, 377, 
 400, 413 
 natural guardian, when, 398, 400, 416, 
 
 423, 434 
 guardian for nurture, 424 
 of bastards, complaint against father, 
 
 412 to 416 
 of bastard, competent witness against 
 
 father, 415 
 of bastard, entitled to custody, when, 
 398, 400, 416, 434 
 Municipal corporations, liability of for 
 the torts of officers, 229 
 liable to modification at pleasure of 
 
 legislature, 503, 579 
 individual corporators liable for debts, 
 
 503 
 cannot divest itself of legislative 
 
 power, 538-'9 
 what is, 579 
 Municipal law, definition of, 22 
 
 particulars contained in definition, 23 
 to 27 
 
 a rule, permanent, uniform, &c. , 23 
 a rule of civil conduct, 23 
 a rule prescribed, not retrospective, 
 23 to 26 
 several classes of retrospective 
 
 laws, 24 
 time, whence laws take effect, 25 
 mode of publication, 25-'6 
 a rule prescribed by law-making 
 power, 26-7 
 nature of society and civil govern- 
 ment, 26 
 qualities needed in government, 26 
 different forms of government, 
 26-'7 
 simple forms, 27 
 mixed forms, 27 
 obligation to enact best laws, 28 
 several parts of a law, 28 
 obligation to obey, 28 
 interpretation of laws, 28-'9 
 method, in Roman law, 28 
 signs whereby to interpret will of 
 law-giver, 28-9 
 words, coniext, subject matter, 
 
 28-'9 
 effects and consequences, 29 
 reason and spirit, 29 
 natural equity, 29 ' 
 
 technical equity, 29, 30 
 definition of equity, 29 
 distinctions, courts of law 
 and of equity, 29, 30 ; 
 Mutilation, 191 
 
 Mutiny act, annual, of England, 158-'9 
 Mutuality, in subscription to corpora- 
 tions, 529 
 in contracts of corporations, 638 
 Names, of wovship, not of dignity, 155 
 of corporations, 511 to 514 
 of corporations, to be observed, 512 
 
608 
 
 INDEX. 
 
 Names — 
 
 change of, in oorporaiions, 514 
 
 variety of, in corporations, 513-'14 
 National defence, arrangements for, in 
 
 England, 156 to 160 
 Nations, law between, 22 
 
 safe conduct from king, 52 
 National backs, power of congress to 
 create, 510 
 
 state taxes on, 516-'17 
 
 personal liabilities of shareholderR, 
 * 505-'6 
 
 no lien on shares for dues, 554 
 Naturalization, in England, 138 t 
 
 in United States, 139 to 141 
 Natural, liberty, 52 
 
 life, 54 
 
 persons, 52, and seq. 497 
 
 born citizen, 137 to 139 
 Nature, law of, 22 
 
 guardian by, 422 
 Naval discipline, 160 
 Navigation acts, in England, 159 
 Necessaries, for apprentice, 183-'4 
 
 fur wife, 343 to 345 
 
 infant child, 375 to 378 
 
 infant's contracts for, 479 to 482 
 what are, 479 
 
 when supplied elsewhere, 479 
 particular instances of, 479 to 482 
 mere ornaments, never, 479, 480 
 money lent, 480-'81 
 form of contract, 481 
 
 for wife, children, &o. , 481-'2 
 when under control of parent, 
 &B., 482 
 iVe exeat regno, writ of, 82 
 Negative, or veto, of king, 82 
 Neglect, of servant, master's liability, 
 
 219-'20 
 Negotiable securities, of wife, 299 
 
 by infant, 485 
 Negro, slavery. See Blawry. 
 
 who is in Virginia, 179 -'80, 242 
 
 marriage with white person, 242, 262 
 
 marriages of, 244 
 Nobility, who compose, 153-'4 
 Non-claim, or infants, 476 
 Non compos mentis. See Idiots and 
 
 Lunatics. 
 Non-feasance, cause of amotion from 
 
 office, 93 
 Non-user, cause of amotion from office, 
 93 
 
 of franchises of corporation, 576 
 
 forfeiture of franchise by, 581 to 
 583-'4 
 Novels, of Koman law, 86 
 NuUius filius, 416, 421 
 Numa, laws of as to corporations, 500 
 Nurture, guardian for, 424 
 Oaths, of office, 94 
 
 sheriff, 94 ; deputy sheriff, 96 
 
 justice of peace, 108; constable, 111 
 
 surveyor of highways, Digitized by 
 
 Oaths — 
 
 overseer of poor, 123 ; escheator, 130 
 Obedience, to law a moral duty, 28 
 servant to master, 192, 194, 198 
 apprentice to master, 184, 185 
 children to parents, 406 
 Objects of common and statute law, 61 
 Obligation of human law, 28 
 Office, king, fountain of, 83 
 oaths of, 94 
 bond of, 94 
 
 removal from, causes and modes, 93 
 found by escheator, LSI to 133, 145 
 Officers, supreme, in England, 68 to 90 
 subordinate, several kinds, duties, &c. 
 90 to 133 
 See Sheriff, Coroner, Justice of 
 Peace, Constable, Surveyor of 
 Highway, Overseer of Poor, 
 Eschea,tor, Supermsors, 
 superior, liability for subordinate, 228 
 of corporations, 525 to 527 
 de facto, acts bind when, 525 
 holding over, 525 
 amotion of, 527 
 Official bonds, see Bonds. 
 Ordinary, the visitor of ecclesiastical 
 
 corporations, 574 
 Organization, of corporations, 520 to 
 531 
 acceptance of charter, and proof of it,. 
 
 520-'21 
 attributes or incidents, 521 to 523 
 admjt-sion and election of members, 
 and officers, 523 to 525 
 Overseers of poor, 121 to 128 
 antiquity and original, 121 
 appointment and removal, 122-'3 
 fidelity secured, 122, 123 
 duties of, 123 to 128 
 board of overseers, 123 
 superintendent of poor, 124 
 powers and duties of overseers singly,. 
 124 to 128 
 poor to be provided for. 124-'5 
 application for relief, 125-6 
 redress, if denied, 126 
 mode of maintenance, 126 
 removal of intruders, 126-'7 
 beggars and vagrants, 127 
 pauper children and bastards, 128 
 Overseers of roads, see Surveyors of 
 
 Highways. 
 Outlawry, of oorp'oration, 571, 572 
 Oxford, see Universities. 
 Palatine counties, 50 
 Pandects, of Justinian, 35-'6 
 Pater est quern nuptim demonstrant, 374 
 Paraphernalia, of wife, 3{)l-'2, 314 
 Pardon, power of in England, 82 
 Parent, and child, relation of, 374 to 421 
 consent to marriage of infant child,. 
 
 238, 244-'5 
 children legitimate, 374 to 407 
 Micr&SMt®"^ of legitimate child, 374 
 
INDEX. 
 
 609 
 
 Parent — 
 
 duties of parents to legitimate child, 
 37-t to 396 
 maintenance, 375 to 380 
 
 favor shown to children, 379- 
 '80 
 protection, 380 
 education, 381 to 396 
 See Education. 
 power of parents as to legitimate 
 children, 396 to 405 
 custody and correction, 396 to 402 
 interposition of equity, 399, 
 
 400 
 remedies for abduction, 400 to 
 402 
 consent to marriage, 402-'3, 
 
 244-'5 
 care of estate, 403-'4 
 delegation of authority, 404-'5 
 in parent's life-time. 404 
 by will, 404-'5 
 termination of authority, 405 
 duties of legitimate children to pa- 
 rents, 405 to 407 
 obedience, 406 
 protection, 407 
 maintenance, 407 
 children, illegitimate, or bastards, 407 
 to 421 
 definition of bastard, 407 to 412 
 bastards born betore coverture, 
 
 408-'9 
 born during coverture, 408- '9, 411- 
 
 '12, 412-'13 
 born after coverture ended, 408 to 
 
 411 
 duty of parents to bastards, 412 to 
 416 
 compelling father to support, 412 
 
 to 416 
 custody of child, 416 
 rights and incapacities of bastards, 
 416 to 421 
 See Bastards. 
 Parishes, 48, 151-2 
 Parish clerk, 152 
 
 Parliament, -constitution, powers. Sea., 
 62 
 omnipotence of, 41 
 original and antiquity, 68 
 summons and assembling, 68 
 constituent parts, 68 to 72 
 
 king, 68 ; lords, 69 ; commons, 70 
 to 72 
 
 See those titles. 
 laws and customs of, 72-'3 
 proceedings in, 73 
 dissolution of, 73-'4 
 Parol agreements, statnte of, 189 
 Parol demurrer, for infancy, 475 
 Parsons, 151, 502 
 Partitions, by infants, valid, 483 
 Partnership, limited, 506-' 7 
 between corporations, Qfnjtized bv 
 
 Patent of peerage, 154 
 Paternity, double, 410 
 
 certain, obviates bastardy, 408 
 
 in gifts to bastards, fatal to validity, 
 417 
 Paupers, see Overseers of Poor. 
 Payment of wages, when presumed, 195 
 
 to infant, 195 
 
 of legacies to infants, to fathers, &c., 
 4U::i-'4 
 Peace, king's power to make, 8 1 
 
 conservation of, see ConserDation of 
 Peace. 
 Peers, see Lords. 
 
 why so called, 153, 155 
 
 mode of creating, 154 
 Peerage, ranks of, J53-'4 
 
 writ, and patent of, 154 
 
 incidents to, 154 
 Pembrokeshire, 50 
 Penal statutes, 40 
 Penalties, in infant's contracts, 485 
 
 by by-laws of corporations, 554-'5 
 Penitentiary, sentence to, cause of ;.di- 
 
 vorce, 264-'5 
 People, relation of, 134 to 160 
 
 classes in England, 137-'8 
 
 classes in Virginia, 138 to 141 
 
 clergy and laity in England, 148 to 152 
 
 civil state, 153 to 155 
 
 military and maritime state, 156 to 160 
 Perpetual separation, of husband and 
 
 wife, 269-'70, 275, 276 
 Perpetual succession, of corporations, 
 
 498, 499, 534, 
 Perpetuity of king, 81 
 Personal representative, meaning in 
 statutes, in Virginia, 42 
 
 husband is of wife, 305, 311 
 Persons, natural, and their rights, 51 -'2, 
 497 
 
 artificial, or corporations, 497-'8 
 
 natural or artificial compose corpora- 
 tions, 511 
 Petition of right, 61 
 
 remedy for lands escheated, 132 
 Petition, right of to king and parliament, 
 02 
 
 right of to government, in tJ. States, 
 67 
 
 for escheated lands, 132-' 3 
 Petit treason, 368 
 Petty constable, 109 
 Philip and Mary, guardians by statute, 
 
 429-'30 
 Pin-money, 295, 321-'2 
 Place, of corporation, 514 to 520 
 
 imposition of taxes on corporations, 
 514 to 517 
 
 conducting business, 517 to 519 
 
 suing and being sued, 519-'20, 564 
 in federal courts, 519 
 in State courts, 520, 564 
 
 of corporate meetings, 528, 532 
 
 and colonies, laws of, 46-'7 
 
610 
 
 INDEX. 
 
 Plowden's reports, 32 
 
 Political rights, of all, equal, 66 
 
 liberty, 52 
 Polygamy, 230, 237, 2-tl, 247, 249, 261 
 Poor, See Cherseera of Poor. 
 wlio are poor, 124 
 what to be provided for, 124-'5 
 to whom to apply for relief, 125-6 
 modes of maintaining, 126 
 settlement of, 126, 
 intruders removed, 126-' 7 
 beggars and vagrants, 127, 128 
 children, proceedings as to, 128 
 bastards, 128 
 pauper children, 128 
 Poor-laws, 123 to 128 
 Poor- settlement, 124-'5 
 Portland, island of, 46 
 Ports, of States, no preference allowed, 
 
 66 
 Posse comitatus, TOO 
 Posthumous children, 379-'80 
 Post nati, 146, 148 
 
 Post-office, duties arising from, in Eng- 
 land, 89 
 Poundage, 88 
 
 Powers, parents over legitimate children, 
 396-'7 
 of attorney by infants void, 485 
 of corporation, 521, 522, 634 to 570 
 perpetual succession, 521, 534 
 common seal, 522, 535 to 537 
 contract and be contracted with, 
 
 522. 537 to 547 
 take, hold, and transmit property, 
 
 522, 547 to 552 
 make by-laws, 522, 553 to 555 
 sue and be sued, 52:i, 555 to 570 
 remove members and officers, 522 
 
 to 527, 570 
 disabilities of corporations, 570 to 
 572 
 Precedents, judicial, effect of, 31 
 Pre-contract, effect as to marriage, 233-'4 
 Pregnancy, of wife at marriage, effect, 
 241 
 cause of divorce, 263 
 trial by writ de ventre, &c., 409-'10 
 Prerogatives, limitation on royal, 62 
 of king of England, 78 to 83 
 
 relating to king's dignity, 79 to 81 
 personal pre-eminence, 79 
 absolute perfection, 80 
 relating to king's authority, 81 to 83 
 foreign concerns, 82 
 domestic affairs, 81 to 83 
 part of legislature, 82 
 generalissimo of realm, 82 
 fountain of justice, 82 
 fountain of office, &c. , 83 
 relating to king's revenue, 83 to 90 
 Prescription, nature of, 34 
 contrasted with custom, 34-'5 
 corporations by, 509 
 
 Presentative advowsons, E^gltlzed by MicmS£)M^ is shareholder, 579 
 
 President of corporation, power of, 546 
 Press, freedom of, 67 
 Pressing seamen, 160 
 Prince of Wales, 76 
 Primate, 148 
 Princess, royal, 76 
 
 Principal, and agent, relation of, 160 to 
 230 
 agent to render accounts,- 200 
 quifacitper alium, fa/sit per se, 200 
 principal's liability for contracts, 203 
 
 to 216 
 express authority, 203 
 * implied authority, 204 to 206 
 
 recognition of similar acts, 204 
 connexion with agent's business, 204 
 being an essential incident, 205-'6 
 subsequent ratification, 20(5 
 extent of agent's authority, 206 to 209 
 joint authority, 207 
 general authority, 208 
 special authority, 208-'9 
 power to delegate authority, 209 
 agent's mode of contracting, 209 to 212 
 agent's declarations as evidence, 212 
 agent's liability on contracts, 212 to 
 
 216 
 mode of s.uiug agent personally, 216 
 rights of principal on contracts by 
 
 agent, 217 
 rights of agent on contracts made by 
 
 him as agent, 217 
 principal's hability for torts by agent, 
 218 to 221 
 grounds and limits of his ability, 
 
 218 
 instances of liabihty, 219 to 221 
 agent's hability for torts done by him, 
 
 221-'2 
 agent's dealing with subject of agency, 
 
 200, 222-'3 
 termination of agency, 223 to 227 
 government agents, 227 
 superior government officer and sub- 
 ordinate, 228 
 municipal corporation's agent, 229 
 agent and sub-agent contrasted with 
 
 contractor, 229 
 real property used for hurtful pur- 
 poses, 230 
 Prior marriage, effect of, 237, 241, 254, 
 
 261 
 Prisage, 88 
 Prison. See Jail. 
 
 Private act of legislature, 23, 38, 39 
 Private corporation, what is, 503 
 
 modification by legislature, 503, 578-9 
 
 584 to 588 
 charter a contract, 503, 515, 578-'9, 
 
 584 to 588 ' • 
 may surrender charter, 580 
 charter when repealable, 584 to 588 
 subject to eminent domain, 503, 535, 
 587. 
 
INDKX. 
 
 611 
 
 Private property, an absolute right, 69 
 
 guaranties of in England, 60, 61 
 
 in Virginia, 6-t to 66 
 
 compensation for, 59, 64, 65 
 Privileges, of lords of parliament, 69 
 
 commons, 72 
 
 infants, 473 to 407 
 
 suing or being sued, 473 to 476 
 property and contracts, 476 to 497 
 torts, 495 to 497. See Infants. 
 Privy council, constituents and power, 
 
 77-'8 
 Process of law, to deprive one of rights, 
 63, 64 
 
 against corporations, 564 to 568 
 Proehein ami, 475 
 Profits to crown, 84 to 86 
 
 demesne lands, 84 ; wine license, 84 ; 
 
 courts, 84 ; forests, 84 ; royal fish, 84 ; 
 
 wrecks, 84 ; mines, 85 ; treasuretrove, 
 
 85 ; waifs, 85 ; estrays, 85 ; deodands, 
 
 85 ; escheats, 85 ; idiots and lunatics, 
 
 85-6 
 Promulgation of laws, 25-'6 
 Proof, of statutes, 38-'9 
 
 marriage, 259-60 
 Property, right of. 59 
 
 origin of right, 59 
 
 protection to, 59, 60, 64, 65-'6 
 
 private, compensation for, 59, 64, 65 
 
 personal, rights of aliens as to, 142 to 
 148 
 law which governs disposition of, 
 142-'3 
 
 real, rights of aliens, as to, 143 to 148 
 
 rights to, conferred by marriage, 289 
 to 334 
 
 effect of divorce on, 273-'4, 276 to 
 278 
 Proprietary governments, 47 
 Prorogation of parliament, 73 
 Prostitution of wife, effect on marriage, 
 241, 263 
 
 cause of divorce, 263 
 Protection, chOdren, 380 
 
 maintenance of suit, 380 
 allows defence, 380 
 extenuates homicide, 380 
 
 by children, 407 
 Provinces, Canterbury and York, 48, 
 
 148 
 Provincial governments, 47 
 Proxy, of lords in parliament, 69 
 
 in corporate, meetings, 524 
 Prudence, skill, judgment, &c., what 
 
 required in agent, 199 
 Frudentum responsa, 35 
 Publication, of statutes, 25-'6 
 Public oorI^rations, nature of, 503 ,. 
 
 change by legislature. 503 
 Public education, see SJducation. 
 Public defence, in England, 156 to 160 
 
 militia in Virginia, 66 
 Public schools, see Education. 
 
 75-'6 
 inter 
 
 • IS 
 
 Public statutes, 38 
 
 Punishments, cruel and unusual^ 63, 64 
 
 Qualifications of electors and members 
 
 of parliament, 70 to 72 
 Quartering of soldiers, 61 
 Queen, regent, consort, dowager. 
 Qui ex damnato coitu nasountur, 
 
 liberos non computentur, 421 
 Quod nolunt leges Anglim viuta/re, 
 Quorum, 538 
 Quo warranto, mode of removal from 
 oface, 98 
 against corporations, 564, 576, 583-'4 
 Rapes, English divisions of counties, 49 
 Katifiontion, of infant's contracts, 489 
 
 to 495 
 Ravishment, of ward, writ of, 401, 438 
 Reading law, 18 to 21 
 Real property, liability of owner for 
 hurtful use. 230 
 See Lands. 
 Reason, and spirit of law, 29 
 
 want of, invalidates marriage, 238,239, 
 
 240, 241, 259, 262 
 want of in infants, 473, 475, 478 
 See Infants, Idiots, I/u/natics. 
 Regnant, queen, 75 
 Register, marriage, 246, 247 
 Relations, public and private, 68 to 497 
 public, 68 to 160 
 
 magistrates, 68 to 138 
 magistrates, supreme, 68 to 90 
 parliament, 68 to 74 
 king, 74 to 90 
 
 See Parliament, King. 
 magistrates, subordinate, 90 to 133 
 people, 134 to 160. See People. 
 private, 160 to 497 
 
 master and servant, 160 to 230 
 
 See Master & Servant. 
 husband and wife, 230 to 373. 
 
 See Husband & Wife. 
 parent and child, 373 to 421. 
 
 See Parent & Child. 
 guardian and ward, 422 to 497. 
 See Guardian & Ward. 
 Relative rights, 68 to 497 
 public, 68 to 160 
 
 private, 160 to 497 See Relations. 
 Release, by ward to guardian, when 
 
 void, 461, 485 
 Religion, freedom of belief, 59, 66, 67 
 Remedies, retrospective laws as to, 24-5 
 Remedial part of law, 28 
 
 statutes, 39, 40 
 Removal, from office, causes and modes, 
 93, 101-2, 107, 111, 114, 122, 130 
 officer from sphere of duty, effect, 93 
 pauper, 127-'8 
 child from parent, 399 
 guardian, 399 
 Repeal, of repealing statute, effect, 41 
 Reports, early English, 32 
 Representation, by ambassadors, &o., 81 
 
 Public school system, seQ^ff^^^y MiC^lB&^@^^^^' ™ *° ^^ 
 
612 
 
 Beputation, security of, 55 
 Kescripts of Emperor, 28 
 Besidence, of paupers, 126 
 apprentice, 181, 185-'6 
 woman, as to marriage license, 244 
 purposes of divorce, 267, 279-'80 
 infants for guardianship, 428 
 corporations, 514 to 520 
 Bespondeat superior, 2 2 7-' 8 
 Sesponsa prudentum, 35 
 Bestitutioo, of conjugal rights, 281 
 SestUutor legum Anglicanarwm, 31 
 Bestraining statutes, 39 
 Eestrictions, on corporations not fa- 
 vored, 539 j 
 Retainer, of another's servant, 187, 201 
 Eetrospective laws, 24, 25 I 
 Bevealed law, 22 i 
 Eevenue, of crown, 83 to 90 j 
 ordinary, 83 to 8B I 
 ecclesiastical sources. S3-'4 
 temporal sources. 84 to SG 
 extraordinary, 86 to 90 
 
 ancient modes of taxation, 86 to 87 
 modern modes of taxation, 87 to 90 
 application, 90 
 
 annual expenses of public service, 90 | 
 civil list, 90 i 
 
 national debt, 90 
 Eeverbionary interests, of wife, 310-'ll 
 Eevisals, of code, how construed, 41 
 Eevival, of corporations, 578 
 Revocation, of agent's authority, 223-4 
 wife's agency, 342 
 husband's duty to wife, 343-'4 
 wills by subsequent birth of child, i 
 379-'80 ! 
 
 Eidings, of Yorkshire, 49 
 Bights, correlative of duties, 51 
 which concern the person, 51-'2 
 perfect and imperfect, 51 
 natural persons, 51-2 
 absolute, nature and several sorts, 52 
 to 67 
 personal security, 52 to .ij, 62 to 64 
 personal liberty, 55 to 59' 62 to 64 
 private property, 59, 64 to 66 
 freedom of conscience, 59, 60, 66 
 declarations and guards of, in Eng- 
 land, 60 to 62 
 in Virginia, 62 to 67 
 relative, 67 to 497 
 public, 67 to 160 
 
 magistrates, 67 to 133 
 supreme, 67 to 90 
 subordinate, 91 to 133 
 people, 134 to 160 
 private, 160 to 497 
 
 master and servant, 160 fo 230 
 husband and wife, 230 to 373 
 parent aud child, 374 to 421 
 guardian nnd ward, 422 to 497 
 artificial persons, or corporations, 
 497 to 588 
 
 Bival franchise, 587-'8 
 Boads, see Highways. 
 
 surveyor of, 112 to 121 
 
 commissioners of, 114, 117, 119 
 Eoman law, what, and in what courts 
 
 used, 35, 36 
 Eoyal family, 75-'6. See King. 
 
 councils, 70 to 78 
 
 duties, 78 
 
 prerogatives, 78 to 83 
 
 revenue, 83 to 90 
 
 assent to laws, 82 
 Bural dean, 151 
 Eural deanery, 48 
 Sacristan, 152 
 Safe conduct, 81 
 Sailors, impressment, 160 
 
 naval discipline, 160 
 
 privileges, 160 
 Sale, of office, cause of amotion, 93 
 
 by guardian of ward's lands, 440-'41 
 
 ward's chattels, 441 
 
 guardian's account of, 452 
 Salvage, 85 
 
 allowed to corporations, 539 
 Sark, isle of, 46 
 Scandalum magnatum, 154 
 Schools, see Education. 
 School-master, 404 
 
 Scife facias, against corporations, 584 
 Scotland, 45 
 Scots peers, 64 
 Scroll, when a seal, 536-'7 
 Scutage, 86 
 Seal, meaning in sta'ntes, 42 
 
 common, of corporations, 522, 535 to 
 ; .537 
 
 i Seamen, see Sailors. 
 j Security, right of personal, 52 
 ' life, limb.-, and body, 52 to 55 
 
 health and reputation, 55 
 Seduction, of daughters, 201, 202 
 
 female servants, 201, 202 
 
 servants, 201 
 apprentices, 187 
 Self-crimination, see Grmination. 
 Self-defence, .53 
 
 Seminaries of learning, 500, 501 
 Separate property, of wife, 316 to 333 
 
 nature and origin of, 31(i-'17 
 
 phraseology which creates, 3 1 7 to 31S> 
 
 trustees in ease of, 319 
 
 conveyances, between husband and. 
 wife, 319-20 
 
 pin-money, 321, 322 
 
 wife s power of disposition, 322 to- 
 333 
 
 wife's power to alienate, 322, 323 
 
 charge, 324 to 326 
 
 restraints as to charging, &c., 327 to 
 332 
 
 trailing with, 332, 333 
 Separation, U. States from England, 
 146 
 
 Eight, petition of, 61 Digitized by li/lidlS^O^&f^nA wife, decree for, 269-'7(> 
 
INDEX. 
 
 613 
 
 Separation — 
 
 effect of, 276 
 deeds of, 28G to 289 
 Septennial parliament, 74 
 Servant, and master, relation of. 160 to 
 
 230 
 definition, 160 
 different kinds, 160 to 188 
 contract to serve for life, 179 
 relation depends on contract, 188 to 
 197 
 
 indefinite hiring. 190 
 
 entire contract, 190-'91 
 
 effect of .sickness on wages, 191 
 
 dissolution of contract, 191 to 194 
 
 effect of marriage of female, 194 
 
 authority of master over, 194 
 
 obligation of master as to wages, 
 &c., 194, 195 
 
 obligation as to maintenance, 195 
 
 obligation as to medicines, etc., 
 195-'6 
 
 obligation as to servant's personal 
 safety, 196-'7 
 
 obligation as to indemnifying ser- 
 vants, 197 
 peculiar privileges of apprentices in 
 
 England, 197 
 homicide of master by, 197 
 master's testimonials to character, 197, 
 
 198 
 liability to master, 190 to 200 
 dealing with subject of agency for his 
 
 own benefit, 200, 222-'3 
 defence of master, &o., 200, 201 
 retainer bj' another, 201, 187 
 personal torts done to, 201-'2 
 seduction of female, 201-'2 
 contracts and torts by, 202 to 223 
 
 contracts made by, 202 to 217 
 
 torts done 'oy, 218 to 223 
 termination of relation, 223 to 227 
 of government, 227-'8 
 municipal corporation, 228 
 distinguished from contractor, 229 
 
 See Master A- Servant, Agent. 
 Service, contract for perpetual, 179 
 Settlement, act of in England, 61 
 of pauper, 124-'."> ; bastard, 419 
 marriage, 29G-'7 
 guardian's accounts, 4r>2 to 470 
 guardian's private with ward, 461 
 ward's release or conveyance, 461 
 marriage, by infants, 482 
 Sextons, 152 
 
 Sexes, contrast in rights, &c., 367 to 
 373 
 
 differences as to crimes, 367 to 369 
 civil rights, 369 to 373 
 Shares, in corporations, personal estate, 
 
 ,500. .551 
 subscription for, 528 to 531 
 assessment on. 530, 531 
 transfer of, 523, 554, 573 
 liens on for dues to cowjp_rfttLop,.£i54 
 
 'Bigkized^y Microsoft® 
 
 Shareholders, limit of responsibility for 
 debt of corporation, 50.5-'6 
 national banks, liability of, 505 
 circuit court corporations, liability of, 
 
 505-'6 
 transfer legal and equitable title, 623, 
 
 554, 573 
 torts and contracts of corporations, 
 572-'3 
 Sheriff, antiquity and original. 91 
 appointment and removal, 92, 93 
 fidelity secured, 93-'4 
 duties, 94 to 96 
 assistants, 96 to 100 
 
 deputy or under sheriff, 96 to 98 
 jailor, 98 ; bailiff, 100 
 piixse comitatus, 100 
 Shipwreck, 84- '5 
 Shire, or county, 49, ,50 
 
 gerefa, 91 
 Skill, prudence, &c., required of agent, 
 
 199 
 Slaves, see Slavery and Slave-trade. 
 Slavery, dpfinition, 160 
 in England, 161, 165, 178 
 origin generally and in Virginia, ] 62, 
 
 163 
 justification in Virginia, 163 
 history of in Virginia, 163 to 174 
 first progress, 16t 
 efforts to stop importation, 164 
 final prohibition of trade, 164 
 •what persons enslaved, 165 
 penal legislation as to slaves, 165-'6 
 manumission of staves, 167 to 169 
 mode of manumission, 167 
 conditional, future, elective, 167-'8 
 contracts of with sltives, 168-'9 
 mode of recovering freedom, 
 
 168-'9 
 damages recovered, 169 
 liability of hirer of glaves, ]69-'70 
 safe return of slave, 109-'70 
 apportionment of slave hires, 170 
 medical bills, 170 
 what persons were slaves at abolition 
 
 of, 171 
 proposals for general emancipation, 
 
 171-2 
 abolition of in Virginia, 172-'3 
 recovery in suits for, 173, 179 
 bonds for price of slaves, 173-'4 
 federal government, as to, 174 to 176 
 recognition of slavery, 174 
 
 as to apportionment of taxes, &c., 
 
 174 
 as to slave-trade, 174-'5 
 as to fugitive slaves, 175-'6 
 African slave-trade, 176-'7 
 effect of going to another country, 177 
 
 to 179 
 wages, when slave still serves, with- 
 out agreement, 179 
 contract to render perpetual service, 
 
614 
 
 pNDEX-j 
 
 Slavery — 
 
 wko deemed negro or colored person, 
 1 79-'80 
 Slave-trade, effurts of Virginia to abol- 
 ish, 164 
 
 as to Indians, 165 
 
 abolished by England (1806), 176 
 
 by United states (1808), 175, 177 
 
 present status, 177 
 Socage, guardian in, 425-'6 
 Society, requires government, 26 
 Soldiers, quartering, 61 
 
 annual mutiny act, 158-9 
 
 disabled, provision for in England, 
 ]59 
 Sole corporation, 502 
 Solon, laws of as to corporations, 499 
 Speech, freedom of, 67 
 Stamp-duties, 89 
 State, meaning in statutes, 41 
 
 not to contract debts, 65 
 
 power to create banking corporations, 
 510-11 
 
 not to tax federal agencies, 516 
 
 agencies not taxed by congress, 516 
 Statutes, take effect when, 25 
 
 publication of, 25-'6 
 
 mode of enacting, 37 -'8 
 
 different kinds, public and private, 
 3«-'9 
 
 mode of proving, 38-'9 
 
 declaratory and remedial, 39 
 
 enlarging and restraining, 39 
 
 constiuction at common law, 39 to 41 
 
 construction in Virginia, 41 to 43 
 
 repugnant to constitution, 40 
 
 modifying charters or franchises, 503, 
 515, 535, 539, 578-9, 584 to 588 
 Statutory guardians, 430-'31 
 Stewards, 188 
 
 Stockholders. See SlmrehoMers. 
 Study, of law, utility to various persons, 
 2 to 10 
 
 causes of neglect at Oxford and Cam- 
 bridge, 8 to 17 
 
 reasons lor resuming it there, 17, 18 
 
 methods to facilitate, 18 to 21 
 Subjects to which common law relates, 
 
 31 
 Subordinate magistrates, 91 to 133 
 
 See Magistrates. 
 Subscription for shares in corporations, 
 
 528, to 531 
 Subsidy, 87 
 
 Successors, in corporations, 550-'51 
 Suffragan-bishops, 574 
 Suits, tiy and against husband and wife, 
 
 347 to 365 
 See Actions, 
 
 maintenance of between master and 
 servant, 200, 201 
 
 between parent and child, 380 
 
 by and against corporations, where, 
 519-'20 
 
 capacity of corporation j|mj^|^{j> ^ 
 
 Suits — 
 proceedings in, by and against corpo- 
 rations, 562 to 570 
 when corporation is plaintiff, 562 
 
 to 564 
 when corporation is defendant, 564 
 to 570 
 place of suit, 564 
 process employed, 565 
 serving process, 565 to 568 
 prooeeJings afterwards, 568 to 
 570 
 Summons, to parliament, 68 
 , process against corporation, 565 
 Superior respondeat, 227-'8 
 Superintendent of poor, 123-'4 
 
 public instruction, 391. See Educa- 
 tion. 
 Supervisors, of counties, &c., 12.S-'4, 133 
 Supreme magistrates, 68 to 90. See 
 
 Magistrates. 
 Surveyors of highways, 112 to 121 
 antiquity and original, 113 
 appointment and removal, 114 
 fidelity secured, 114, 115 
 duties, 115 to 117 
 accounts for road fines, 116 
 Suspension, of habeas corpus, 61, 63 
 Syndics, 571 
 Tallage, 87 
 
 Taxation, of women, 371-'2 
 Taxes, only by consent of people, 59, 65 
 equal, uniform, and ad Daiorem, 65 
 diiect to U. S. apportioned, 66 
 indirect to TJ, S. uniform, 66 
 modern in England, 87 to 90 
 for roads in Virginia, 11.5-'16 
 poor, 124 
 schools, 394 
 
 municipal, on corporations, 514-'] 5 
 on national banks, 515 
 on franchises of corporation, 515 
 State on federal corporations, &c., 
 
 516 
 federal, on State agencies, 516 
 exemption, conferred on corporations, 
 517 
 Tenants by entireties, 334 
 Tenths, 86 
 Termination, of agency, 223 to 227 
 
 wardship, 434-5, 471 
 Testamentary guardians, 430 to 431 
 supersede mother, when, 431, 434 
 give bond and security, 433-'4 
 Testamentuin inoffidosum, 375 
 Testimonials, master to servant, 197-'8 
 Text-writers, early English, 32 
 Thanet, isle of, 46 
 Time, of corporate meetings, 528, 531 
 
 lapse of don't bar infants, 476 
 Tithing, in English counties, 49 
 
 man, 49 
 Tonnage, 88 
 Torts, to servant's, master's rights, 
 
 h/licrd^if® 
 
INDEX. 
 
 615 
 
 Torts— 
 
 by servants, master's liability, 218 to 
 221 
 wilful and malicious, 220 
 
 by servants, their own liability, 221-'2 
 
 by wife, husbands liability, 346 to 347 
 
 to wife's property or person, suit for, 
 349-'r>0 
 
 by and to corporations, 558-'9 
 Tourn, 111, 112 
 Towns, 49 
 Township, 93, 98, 101-'2, 103 to 105, 
 
 113,116-17. See Magisterial District. 
 Tradesmen, 155 
 
 Trading, of wife, with separate estate, 
 332, 333 
 
 of infant, 481 
 Transfer of shares in corporations, 524, 
 
 554, 573 
 Transportation, 53 
 Traverse of office, 133 
 Treasure-trove, 85 
 Treaties, king's power to make, 81 
 Tresfadunt Collegium, 500 
 Trespass vi et armis, for abduction of 
 
 child, 401 ; of ward, 438 
 Tribonian, 35, 36 
 Triennial parliaments, 74 
 Trusts, husband to wife, and viee ■versa, 
 292 
 
 direct from husband to wife, 293 to 
 295 
 
 of separation, husband and wife, 286 
 to 289 
 
 marriage settlements, 296, 297 
 
 for several jointly, cannot be alienated 
 nor charged separately, 229-'30 
 
 liability of wife's trustee, 333 
 
 corporations seised to, 550 
 Trustee, between husband and wife, 
 286 to 289, 292 to 297 
 
 liability of wife's, 333 
 
 corporation seised ae, 550, 572 
 Tutor, 422 
 
 Twelve tables, laws of, 499 
 Twenty-one, full age, 471 
 
 precise time of reaching, 472-'3 
 Ubiquity, of the king, 82 
 Ultra vires, act of corporation, 549 
 Under-sheriff, 96 
 United States, safeguards of liberty in 
 
 constitution, 62 to 67 
 Zfniwrsitates, 501; 
 
 Universities, neglect of law-study in, 10 
 to 17 
 
 reasons for resuming it, 17, 18 
 
 courts of law in, 37 
 
 representation of in parliament, 71, 
 72 
 
 in Roman law, are corporations, 500 
 
 Greek and Koman, 500, 501 
 University of Virginia, 389, 503, 579 
 Unskilfulness of servant, master's lia- 
 bility, 219-'20 
 Usage, effect on coDtraotj.34 
 
 bigitized by Microsoft® 
 
 Use, corporations seised to, 550 572 
 Usury, forbidden to corporations, 539 
 
 not a defence to corporations, 539 
 Vagrants, 127 
 Valvasors, 155 
 
 Valuable consideration, 529, 537 
 Ventre inspiciendo, writ de, 409-'10 
 Veto-power, of king, 82 
 Vicars, 152 
 
 Vice-comes, or sheriff, 49, 91. See She- 
 riff. 
 Vidame, or valvasor, 155 
 Viewers, of roads, 117, 120 
 Vill, 49 
 ViUenage, 161 
 
 Vinculo matrimonii, nature of divorce, 
 254 
 causes of divorce, in England, 257 to 
 
 259, 261 to 266 
 in Virginia, 261 to 266 
 power of court in divorce, 269, 270 
 power of legislature in divorce, 270, 
 
 271 
 effect of divorce, 271 to 278 
 capacities of parties, 272, 275 
 legitimacy of issue, 272, 275 
 estates, 287-'8, 290 lo 293, 273-'4, 
 276 to 278 
 Virginia, military institute, public cor- 
 poration, 579 
 university of, 389, 503, 519 
 Viscount, 154 
 
 Visitation, of corporations, 573, to 576 
 object of, 573 
 
 ecclesiastical corporations, 574 
 lay corporations, 574 to 676 
 eleemosynary, 574-'5 
 civil, 575 
 Void contract, of infants, 484 to 486 
 
 marriages, 239, 24l-'2 
 Voidable contracts, of infants, 486 to 
 488 
 confirmation of, 488 to 495 
 marriage", 236, 239-'40 
 Vouchers, for guardian's disbursements, 
 
 456-'7, 462 
 Wages, liabilitv of master for, to slaves, 
 169, 179 
 master's implied liability for, 189 
 
 194-'5 
 forfeiture of month's, in case of me- 
 nial, 190 
 case of entire contract, 190, 191 
 effect on, of servant's sickness, 191 
 recovery of, on dissohition of con- 
 tract, 191 to 193 
 presumption of payment, 195 
 payment to infants, 195 
 set-off against, 195 
 father's right to infant child's, 376, 
 
 399, 400 
 mother's right to infant child's, 400 
 Waifs, 85 
 
 Wales, Prince of, 76 
 country of, 45 
 
616 
 
 INDEX. 
 
 "Wapentake, 49 
 
 War, king's power to make, 81 
 
 revokes agency, when, 227 
 Ward of chancery, marrying, 428- '9 
 
 See Guardian and Ward. 
 Wardship, see Ghiardian and Wa/rd. 
 Warrant, of commitment, 59 
 general prohibited, 63, 64 
 Weights and measures, 83 
 West Saxon lage, 31 
 Wife, effect of divorce on property of, 
 
 273 to 274, 276 to 278 
 deeds of separation, 286 to 289 
 contracts of before marriage, 289 to, 
 
 291 
 transactions with husband during 
 
 coverture, 291 to 295 
 will as to husband, &c., 295, 320 
 marriage settlements, 296-'7 
 ante-nuptial conveyances in fraud of 
 
 husband, 298 
 husband's interest in property of, 299 
 
 to 313, 370 
 interest of, in husband's property, 
 
 313 to 316 
 separate property, 316 to 333 
 tenant by entiretits, with husband, 
 
 334 
 eguiti/ of, 306 to 310 
 ante-nuptial contracts, effect as to 
 
 strangers, 335, 336 
 contracts during coerture, as to h 
 
 self, 336 to 341 
 contracts during coverture, as to hus- 
 band, 341 to 345 
 maintenance by husband, 343 to 345 
 torts, husband's liability for, 345 to 
 
 347, 352, 358 
 crimes, her liability to punishment, 
 
 365-'6 
 
 Wife- 
 witness for or against husband, and 
 vice versa, 366-'7 
 Wight, isle of, 46 
 Wilful torts, of servants, 220 
 Will, husband to wife, and viee versa, 
 295, 3:'0-':5l 
 revoked by subsequent birth of child, 
 
 when, 379-80 
 guardian, by, 404-'.5, 430-31 
 by infants, of personalty, 471 
 by infants, of lands, 486 
 husband cannot deprive wife of her 
 distributive share, by, 314 
 Wine license, 84 
 Wittenagemote, 68 
 Witnesses, husband and wife, for or 
 
 against each other, 366-'7 
 Women, contrast with men as to rights, 
 &c., 367 to 373 
 crimes, 367 to 369 
 civil rights, 370 to 373 
 intestate property, 370 
 chattels, 370 
 lands, 371 
 taxation, 371-'2 
 chastity, 372-'3 
 reputation, 373 
 Words, of law, how expounded, 28 
 Wreck, 8t-'5 
 
 Writ, de custodia terrm et hmredis, 438 
 de ventre inspieiendo, 409-'10 
 habeas corpus, 401, 439, 56 to 58, 61, 
 
 53 
 ravishment of ward, 401, 438 
 quo warranto, 93, 576, 583-4 
 mandamus, 575, 119 
 Year, meaning of, in statutes, 42 
 Year-books, 32 
 Yeoman, 155 
 
 Digitized by Microsoft® 
 
TABLE OF CASES CITED IN VOL. I. 
 
 Ableman v . Booth, 56 
 Abbott e. Bailey, 338 
 Aoton V. Pierce, 290 
 " Acton, 322 
 
 " IJfhite, 328 
 
 Addison ■». Gandasseqni, 211 
 Adelphi Loan Asso'n i>. Fairhurst, 346 
 Adley ■b. Keeves, 555 
 Ailesbury v. Patteeon, 28 
 Aiscough's Case, 410 
 Alebury v. Walby, 351, 352, 354-'5 
 Alexander's Case, 93, 107 
 Alexander v. Alexander, 207, 209 
 Alfred®. E'itzjames, 169, 179, 189 
 Allen V. Hart, 561 
 Alley c. Kogers, 199 
 Allison ». Banks, 202, S47 
 Allory ■». Hotson, 226 
 Almond v. Almond, 282, 284 
 Amherst Academy v. Cowes, 572 
 Amor «. Fearon, 192 
 Anderson i>. Anderson, 1G9 
 
 " Commonwealth, 572 
 
 Andover T'pike Corp'n v. Gould, 522, 
 
 530 
 
 " " " Hay, 530 
 
 Andrews v. Askey, 372 
 
 " Commonwealth, 506 
 
 Partington, 377, 378 
 
 " Thompson, 443 
 
 Ankerstein ®. Clarke, 351, 354. 
 Annandale 1>. Harris, 419 
 Ann Knee, exparte, 416 
 Anonymous, 347, 361, 399, 475, 569 
 Am elope. The, 177, 179 
 Antoni v. Wright, 24, 40, 65, 517 
 Appleton®. Binks, 210, 211, 213 
 Archer v. Colby, 306, 348 
 Armistead v. Waller, 461 
 Armstrong v. Stone, 57, 398, 402, 423, 
 434, 439 
 
 " Pitts, 330 
 
 Walkup, 449, 453, 455, 
 456 
 Arundell D. Phill'ps, 296 
 
 " Phipps, 364 
 
 " Short, 301 
 
 Ash V. Way, 374, 408 
 Atkin V. Aoton, 192 ^^ ^ygy^y^ed by 
 
 Att'y Gen'l v. Exeter, 503 
 
 " Foundling Hos'l, 572, 575 
 
 Clarendon, 584 
 Scott, 524, 545 
 Stewart, 548 
 " Turpin, 118 
 
 " Utioalns. Co., 572 
 
 Auditor «. Johnson, 227 
 Aughtie «. Anghtie, 274 
 Aurora City v. West, 540 
 Austin ■». Sandal, 173 
 Aylett w. King, 463 
 Ayray's Case, 513 
 Bark v. Andrews, 334 
 Baggett V. Meux, 328 
 Baggs' Case, 526 
 Bagwell V Babe, 142 
 Baker ». Hall, 306 
 
 Lovett, 484, 487 
 Bailey i). Bailey, 256, 260, 266, 268, 278, 
 283 
 " Griffith, 98 
 
 " Ins. Co., 41 
 
 " Poindexter, 168 
 
 " Robertson, 200, 222, 461 
 
 Bainbridge B. Pickering, 482 
 Baird «. Bank of Washington, 544 
 Ball V. Ball, 399 
 " Coutts, 322 
 " Montgomery, 282, 310 
 Ballard «. Thomas, 97 
 Ballow V. Talbot, 226 
 Bait. & 0. K. R. Co. ». Gallahue, 519, 
 5.58,561, 562, 
 569 
 " " " Harris, 518 
 
 " " " Wheeling, 581 
 
 Baltimore & Susq. B.B. Co. v. Nisbet, 24 
 Banbury Peerage Case, 411 
 Bankof Alex'ai). Patton,433,475,552,577 
 " " Taylor, 39 
 
 " of Auburn v Weel, 556 
 " of Augusta 1). Earle, 518, 519, 541, 
 
 550, 567 
 " Commissoners v. Banks, 583 
 " of Columbia B.'Patterson,522,536, 
 
 543, .5.58 
 " of Kentucky v. Wister, 579 
 Hi.- " j^^ " Lanier, 554 
 
 Microsoft® ' 
 
618 
 
 TABLE OF OASES nST VOLUME I. 
 
 Bank of Marietta i). Pindall, 518, 540, 
 
 55Q 
 
 of Metropolis v. Jones, 542, 546 
 
 of North. Lib's, v. Cresaon, 545 
 
 of Old Dominion B. McVeigh, 65 
 
 V. Poiteaux, 518. 522, 536, 548, 
 
 549, 558, 584 ' 
 of Poughkeepsie i). Abbotson, 506 
 of Vieksburg ■!). Slooomb, 519,557 
 of Virginia v. Craig', 441, 459, 460 
 of U. States «. Beirne, 207 
 
 " Deveaux, 498, 519, 
 
 557 
 " Dana, 546 
 
 i; Dandridge, 525,542 
 
 544, 545, 558 
 Dunn, 542, 546 
 " MoKenzie, 579 
 
 " Planters Bank, 503, 
 
 579 
 " of Watertown, ■». Assessors, 515 
 Barbee « Barbae, 280 
 Barber «. Dennis, 185 
 Barber Surge^ms «. Pelson, 556 
 Barker v. Taylor, 437 
 Barksdale v Finney, 551, 552, 558, 577 
 
 " Neal, 566 
 
 Barlow v. Bishop, 333 
 
 ■ " Grant, 442, 443 
 Barnfather v. Jordan, 341 
 Barnum ». Frost, 437, 444 
 Barton v. Butler, 191 
 
 " Briscoe, 327 
 
 Barzizas v. Hopkins, 139 
 Bates,®. Dandy 306 
 Bathurst i>. Murray, 429 
 Batty » Oarswell, 204, 208, 209 
 Baugher 'O. Nelson, 24, 25 
 Baxter ii. Baxter, 256 
 
 Benfield, 186 
 Bayard v. Morphew, 238, 239 
 Baylis «. Dineley, 487, 490 
 Beaston v. Farmers Bank, 561 
 Beard ». Beard, 294, 320 
 
 Webb, 338 
 Beatty v. Lessee, 688 
 Beaufort i). Berty, 399, 431 
 Beaver v Lane, 355 
 Beeby ®. Beeby, 255, 256, 257 
 Bell V. Bowen, 196 
 Bennett v. Claiborne, 442 
 " Davis, 319 
 
 " Toler, 421 
 
 Ex-parte, 461 
 Ben. Mercer ii. Kelso, 169 
 Berks «.. Dauphin Co. 513 
 Berne v. Cahawba E. R • Co. 530 
 Bernard «. Maury, 198 
 BerroUes ». Kamsay, 479 
 Berry ». Nevis, 346, 360 
 
 " Usher, 379 
 Berston «. Colly er, 180 
 Best V. Givens, 491 
 Betty 11. Horton, 177, 178 
 Beverley v. Miller, 433, IDi§itized by 
 
 Bickerton «'. Barrel!, 212, 218 
 Biddis 1). Jamen, 39 
 Bidgood V. Way, 349, 352, 353, 357, 
 Biilgerry v. Branch, 142, 227 
 Billingsley «. Crickett, 378 
 Binghampton Bridge,'517 
 Bishoips of St. Davids v. Lucy, 574 
 Black 11. Zaoharie, 554 
 Blackburn v. Edgeley, 407 
 " Greaves, 350 
 
 " Scboles, 227 
 
 Blades i>. Free, 224, 225 
 Blakey i). Newby, 306 
 <Blanchet v. Foster, 298 
 Blane v. Proudfit, 206 
 Bletson v. Sawyer, 294 
 Blewett «. Evans, 173 
 Blight «. Bochfcster, 147 
 Bloodgood V. M. & H. E. E. Co., 559 
 Blount ®. Barrow, 462 
 
 " Winter, 364 
 
 Bobo 1). Hansen, 490 
 Boggett B. Frier, 54, 349, 353, 354 
 Boisseau v. Aldridge, 379 
 Boiling ». Boiling, 463 
 
 " Mayor of Petersburg, 120, 577 
 
 Bollman's C^ase, 58 
 Bonham's Case, 40 
 Booker v. Young, 575 
 Booth's Case, 40, 99 
 Borden «. Keverberg, 338 
 Boston Bank ». Qhambliss, 49 
 " Glass Manufacty ii. Langdon, 
 581 
 
 ' ' Water-power ». Worcester E. K. 
 Co., 587 
 Bostwick's Case, 442 
 Bosvill i>. Brouder, 307 
 Boughton D Frere, 568 ■ 
 Boulton «. Crowther, 579 
 Bourlaud D. Eidson, 373 
 Bowden ii. Taggert, 447 
 Bowers v. Glendening, 447 
 Bowles 1!. Bengham, 412 
 Bowyer D. Turnpike Co., 563 
 Boyoe «. Tabb, 174 
 Boyd V. Bovd, 450, 453 
 
 Oglesby, 447, 458 
 Bracken v. Wm. & M. Col., 504 
 Bradford «. Jenkins, 173 
 Bradley v. Fisher, 527 
 
 The People, 516 
 
 ■' Ex parte, 527 
 
 Bradsbaw «. Bradshaw, 435 
 Bragdon i). St. Boat W'enonah, 41 
 Branch v. Bowman, 54, 136, 353 
 
 " Errington, 185 
 
 Brandon i). Eobinsou, 327 
 Brashford v. Buckingham, 349 
 Braxton ®. Harrison, 447 
 
 " Lee, 476 
 
 Bray v. Dudgeon, 315 
 Brewer v. Harris, 182 
 Briggs V Penniman, 506, 554 
 /W/Brt9Stl*!©)ff «. Brown, 581 
 
TABLE OF OASES IN VOLUME I. 
 
 619 
 
 Briscoe «. Bank of Kentucky, 510 
 Bristow V. Eastman, 496 
 Britton v. So. Wales R. Way, Go.. 559 
 Broadus v. Bosson, -t-ll, 443, 446, 449 
 Bronson v. Chappell, 206 
 " Kinzie, 2.5, 65 
 
 Brooker v. Scott, 480 
 Brooking v. Dudley, 474 
 Brooks » . Callaway, 373 
 Broughton », Manchester W. Works, 541 
 Brown v. Armistead, 476 
 " Carter, 407 
 
 " Craig, 39 
 
 " Clark, 317 
 
 " McGrace, 223 
 
 " McEae, 433, 475 
 
 " Pocock, 329, 331 
 
 Powell, 327 
 " Prest. Pen. Bank, 515-'16 
 
 Browning ®. Headley, 278, 305, 306, 
 
 307, 308, 311 
 Bruce's (Lord) Case, 526, 527 
 Buck V. Wroten, 296, 317, 319 
 Buckles V. Lafferty, 200, 222, 461 
 Buckley ». Collier, 349 
 Buckridge 1). Ingram, 551 
 BuUard v. Bank, 554 
 Bullock ». Sebrell, 182 
 Bunting v. LoppingweU, 233 
 
 , 248 
 
 Burghart 4), Angerstein, 479, 480 
 Burnett!). Hawpe, 315,323, 326, 327. 328 
 Burr V. McDonald, 204, 522, 523, 525, 
 527, 532, 536, 537, 541, 543, 
 544, .546, 558, 559 
 Burr, 278 
 Burrell ». Jones, 210, 214 
 Burrill D Nahant Bank, 542 
 Burwell v. Anderson, 463 
 " Corbin. 475 
 
 " Lumsdeu, 296 
 
 Bury's Case, 236 
 Butler 1). Break, 484 
 " Butler, 378 
 
 Palmer, 580, 581 
 " Eayland, 34 
 Cadaval ®. Collins, 58 
 Cadogan «. Kennett, 296 
 Cage i>. Acton, 274, 290 
 Caister & Aides' Case, 181, 186, 187 
 Calder ». Bull, 63 
 Callo V. Brouneker, 192 
 Calvin's Case, 137, 138, 144, 146 
 Camanche, The, 539 
 Cameron v. Reynolds, 97 
 Campbell v. Campbell, 448 
 " Gordon, 141 
 
 " Leach, 207 
 
 " Montgomery, 43 
 
 " Mississippi Union Bk, 582 
 
 " Walker, 461 
 
 White, 202' 
 Cannam v. Farmer, 346 
 Cannell «. Burkle, 290 
 Canton v. Raynham, ^^jgitized by MIi 
 
 Carew v. State, 25 
 Carpenter ii, Simma, 120 
 
 Whitman, 398, 416 
 Carr e. Carr, 257, 260, 266, 268, 273, 
 278, 282, 283 
 
 " Chapman, 463 
 
 " Es erbrooke, 310 
 
 " Jones, 182 
 
 " Taylor, 336 
 Carrington ii, Goddin, 492 
 Carroll «. Blencore, 364 
 Carson v. Harris, 34 
 Carter ®. Cutting, 446, 459, 460 
 Carteret v. Paschall, 306 ' 
 Cartwright ». Vaudry, 418 
 Caiy ■». Bertie, 445 
 Castleman D. Holmes, 506 
 Catterall v. Kenyon, £546 
 Gathell v. Goodwin, 351 
 Catherwood «. Caslon, 233, 242, 243, 
 
 249 
 Cattin V. Bell, 98 
 Cavendii-h i] Fleming, 446, 458 
 Cecil «. Juxon, 333 
 
 Centre & K. T. P. Co. «. MoGoneby, 529 
 Chamberlain of London's Case, 555 
 
 " v. Williamson, 253 
 
 Chambers v. Goldwin, 458 
 Chandler t). Grieves, 191 
 Chappie B. Cooper, 481 
 C. H. T. P. Co. V. Rutter, 5:.9 
 Charles v. Charles, 315, :j22 
 Charles Riv. Br. v. Warren Br. 582, 588 
 Charters v. Bayntern, 480 
 Chatham ». Audley, 458 
 Cheever v. Wilson, 279, L'SQ 
 Cheitango Mut. Ins. Co. in re 525 
 Chester Glass Co. ii. De\i ey, 545 
 Chew v. Justices, 93,. 107 
 Chicago D. Robbins, 218, 228, 229, 239 
 Child 1). Affleck, 197- 8 
 
 '• Hudson's Bay Co., 553, 554 
 
 Childers i>. Deane, 455 
 Chirac v. Chirac, 139 
 Cholmeley ». Cholmeley, 315 
 Christmas v. Russell, 280 
 Churchill ». Dibben, 323 
 City of Quincy i). Von HofFman, 25 
 
 " Richmond «. E. & D. E. R. Co., 
 503, 539, 579 
 Claridge ii. Evelyn, 524 , 
 
 Clark's Case, 553, 555 
 Clark's Lessee v. Courtney, 211 
 Clarke v. Benton, 543 
 
 " City of Washington, 545 
 " Imper. Gas-Light Co., 537, 546 
 " Mayo, 117, 120 
 " N. J. St. Nav. Co., 562 
 " Pistor, 328 
 Glarson v. Doddridge, 556 
 Clay V. Williams, 447 
 Clayoomb «. Claycomb, 459, 460 
 Clayton ii. Fawcett, 224, 544 
 Cleland ». Watson, 318 
 
620 
 
 TABI-E OK CASES IN VOLCTME 1. 
 
 Cliquot's ChampagQe, 227 
 Clopton's Case, 40 
 Clough«. Beard, 449 
 
 " Clough, 448 
 Coalter ii. Hunter, 35 
 Coates V. Mayor of New York, 539 
 
 " Wilson, 480 
 Cochran v. Islam, 209 
 Cockrell ®. Barber, 458, 459 
 Cocksedge v Cocksedge, 288 
 Coggs«. Bernard, 199 
 Colchester v. Seabar, 569, 577, 579 
 Cole V. Gower, 416 
 Coleman u. Lyne, 463 
 Moody, 44 
 " Sarrel, 297 
 Collectors). Day, 516 
 College of Physicians' Case, 514 
 CoUins V. America, 178 
 
 " ■ Evans, 226 
 Collis v. Blackburn, 378 
 Colt V. Bishop of Coventry, 523 
 Combe's Case, 185, 209, 210, 211, 213,224 
 Commissioners v. Aspinwall, 540, 543 
 Commonwealth v. Aves, 178, 179 
 
 " Birchitt, 576, 584 
 
 " Bristow, 146 
 
 " Edwards, 185 
 
 F. & M. Ins. Co. 582 
 " Pox, 39 
 
 Gaskins, 24 
 " Griffith, 176 
 
 " Guardians, 526 
 
 Hewet, 24 
 ' ' James Kiver Co. 575, 
 
 576, 584 
 Martin, 131, 132.142, 
 145 
 " . Penn. Benev. Instit. 
 
 526 
 " Selden, 131, 142 
 
 " Sherrard, 93 
 
 St. Mary's Ch. 542 
 St. Pat. Soc. 526 
 " Tate, 93 
 
 Compton V. CoDinson, 838 
 Connecticut v. Jackson, 470 
 Conner «. Elliott, 142 
 CoDlicental Ine, Co. «. Kasey, 212 
 Cook V. Darby, 202 
 " Cook, 273, 278 
 " Deaton, 479 
 Cooper, Countess of, Case, 295 
 " Hepburn, 440 
 " Martin, 378 
 " Phillips, 196 
 
 Thornton, 404 
 " "Witham, 346 
 
 Coppin v. , 352'3 
 
 Corfield v. Coryell, 142 
 
 Corking v. Pratt, 407 
 
 Cornfoot «. Fowke, 226, 
 
 Corpe «. Overton, 494 
 
 Corry B. Corry, 407 _. ... ,, J JJavoux E. J 
 
 Cothay -D. Fennel, 216 Digitized by nmm&m. 
 
 Counden v. Clarke, 513 , 
 
 Coventry v. Woodhall, 185 
 Countess Cowper's Case, 295 
 
 " Shrewsbury's Case. 198 
 Cowper, Countess of, Case, 295 
 Covington D. B. Co. ■». Shepherd, 557 
 Cox V. Thomas, 96 
 
 " Robinson, 3i> 
 Crabtree v. Bramble, 379 
 Craig V. Brown, 39 
 
 Leslie, 142, 145 
 Crawford v. Halstead, 43 
 " Patterson, 330 
 
 " Turk. 98 
 
 Crenshaw v. Delaplane, 34 
 " Patterson, 117 
 
 " Slate Eiv. Co. 40, 64 
 
 Creuze v. Hunter, 399, 437 
 Crewe v. Crewe, 255 
 Croft v. Allison, 220 
 Cronie «. Hart, 293, 307 
 Crump V. Dudley, 298 
 Goddin, 40 
 
 U. S. Mining Co. 219,521.544,. 
 564 
 CuUen V. Queensbury, 215 
 Culpeper Man. Soc. v. Digges, 513, 538, 
 
 .568 
 Cuming v. Hill, 185 
 Cummings v. Missouii, 24, 40, 63 
 Cunningham u. Cunningham, 455 
 Curran v. Arkansas, 65, 511 
 Currie«. Mut. Ins. Co., 521 
 Curteis v. Kenrick, 323 
 Curtis V. EngeU, 325 
 Dabney v. Taliaferro, 98 
 Dade v. Alexander, 311 
 Dayley v. Tolferry, 404 
 D'Aguilar v. D'Aguilar, 257 
 Dalrymple v. Dalrymple, 233, 242. 243, 
 
 248, 263 
 Dana v. Bank of U. States, 542 
 Dandridge v. Minge, 301, 306. 
 Danksi;. Quackenbosh 25 
 Danville ». Pace, 539 
 D'Arcy v. lyle, 197 
 
 " Ketchum, 280 
 Darley v. Darley, 318, 378, 
 Darnall v. Smith, 327 
 Darrington v. Bank of Alabama, 511 
 Dartmouth, Col. v. Woodward, 275, 503, 
 503-4, 508, 520, 
 521, .'535, 575, 579, 
 582, 585. 
 Davenport v. Xelson, 353 
 Davidson v. Atkinson, 319 
 Davies ■». Thomycroft, 331 
 Davis c. Harman, 199, 448 
 
 " Bank of England, 526 
 " Maxwell, 193 
 " Newman, 447 
 " SpurUng, 450 
 " Tingle, 177 
 
 ""anning, 223 
 'awson, 168, 
 
tABLE OF CASES IN VOLUME I. 
 
 621 
 
 Dawson v. Godfrey, 247 
 Day ®, Pargrave, 353 
 
 " Pickett, 24 
 Dean i>. Brown, 333 
 
 " of Norwich Case, 512 
 
 " V. Pierce, 556 
 
 " ■Williams, 470 
 Deerly v. Mszarine, 338, 354 
 Dehan v. Karey, 223 
 Dejarnette v. Allen, 312, 313, 348 
 DeLacey ». Antoine, 169 
 Delancey v. Taylor, 41 
 • Delaplane v. Crenshaw, 34. 
 DeManneville v. DeMaaneyille. 399, 402, 
 
 437, 439, 475 
 Dempsey v. Lawrence, 169 
 Dengate v. Gardner, 350 
 Desdoity, Ex-parte, 549 
 Dillard v. Tomlinson, ^8 
 Dilliard t>. Tomlinson, 4+6 
 Dillons. Coppin, 297 
 Dodson «. Simpson, 441, 449 
 Doe V. Aeldam, 135, 146, 148 
 
 " Miller, 512, 568 
 
 " Mulcaster, 146, 148 
 
 " Parratt, 334 
 Dold «. Geiger, 305, 307, 308 
 Dorr's Case, 58 
 Downer v. Morrison, 204, 206 
 Downes v. Glazebrook, 461 
 Dover B. Alexander, 418 
 Drake v. Beekhany 214 
 Draper ®. Fulkes, 300, 346, 359, 360 
 Dred' Scott v. Sandford, 139, 178 
 Drehman ». Stifle, 24 
 llrummond v. Sneed, 311 
 Drybntter v. Bartholomew, 551 
 Dubois ». Hole, 364 
 
 Del. & Hnd. Can. Co., 543 
 Dncarry «. GiUs, 545 
 Ducat V. Chicago, 519 
 Dummeri). Chippenham, 570, 572 
 Duncan «. Surry Case, 559 
 DXindas v. Ellzey, 41 
 Dunlop «. Monroe, 228 
 Dunn v. Amey, 169 
 
 Eeotor, 522, 536, 543, 544 
 Dunnington v. N. W. Koad, 579 
 Dunston v. Barwell, 352 
 Dupree v. Gary, 314 
 Durant v. Durant, 266, 257 
 
 Titley, 288 
 Durrett v. Davis, 428 
 Duval s. Craig, 210 
 
 " Malone, 24, 25 
 Dyer B.Dyer, 379 
 Eades «. Vanderput, 185 
 Earle v. Wilkinson, 545 
 
 Wilson, 417 
 Early v. Wilkinson, 210, 214 
 Easley «. Craddook, 170, 183, 196, 377 
 East Ind. Co. «. Hensley, 209 
 Eckhols ■». Graham, 296 
 Edmunds «. Brown, 538, 577 
 
 Edwards v. Van Bibber, 133 
 Edwin e. Williams, 306 
 Elder i). Eider, 178 
 Elliott t). Carter, 448 
 
 " Davis, 203 
 
 " Gurr, 236, 258 
 
 " Home, 484 
 Lyell, 24, 25 
 Ellis ®. Marshall, 520 
 Nimmo, 297 
 " Sheffield Gas Co., 218, 230 
 EUibank ». Montolieu, 307 
 Ellison « Ellison, 297 
 Elsee V. Gatewood, 199 
 Ellzey ». Hepburn, 41 
 Elvira's Case, 57 
 
 Emerson «. Prov. Hat Man. Co., 542 
 Emery v. Wase, 312 
 England v. Downes, 295 
 Essex B. Atkins, 322, 324 
 Evans b. Collins, 225 
 
 " Davies, 418 
 
 " Evans, 255,256,257,260,266,285 
 
 " Masaey, 417 
 
 " Pearoe, 377, 379, 449, 456, 456 
 Evelyn B. Chichester, 479, 492 
 Eureka Co. B. Bailey Co., 522, 636, 558 
 Ewart B. Saunders, 199 
 Ewing B. Smith, 325 
 Eyre B. Shaftsbury, 401, 427, 431, 435, 
 
 438, 441 
 Fairfax B. Hunter, 145 
 Falls B. 0. P. Augusta Co., 415 
 Farm. & Mech. Bk. B. Smith, ,5,53 
 Farnsworth B. Garrard, 190 
 Faulkner B. Davis, 440 
 
 " Faulkner, 299 
 
 Fawcett b. Beavres, 346-' 7, 359, 361 
 
 " Cash, 190 
 
 Fawkner B. Watts, 373 
 Feely's Case, 176 
 Fenn B. Harrison, 206 
 Fenner B. Taylor, 309 
 Ferneyhough v. Dickinson, 456, 458, 
 
 459,' 460 
 Pernsler B. Moyer, 436 
 Fettiplace «. Gorges, 322 
 Ficklin B. Ficklin, 428 
 Field B. Evans, 328 
 " Farrington, 223 
 
 Sohi<-fFelin, 440, 441 
 Filli'eul B. Armstrong, 192 
 Finch's Case, 512, 513, 638 
 
 " Squire, 55l 
 Findlay b. Findlay, 314, 315 
 
 " Smith, 44 
 
 Fiott ®. Commonwealth, 133, 145, 147 
 Fisher B. Bassett, 441, 449 
 
 " Smith, 117 
 
 " Vanmeter, 98 
 Fitzgerald B. Jones, 457, 468 
 Fitzhugh B. Dennington, 473 
 Fitzpatrick B. Hearne, 173 
 Fleckner b. United States Bank, 522, 
 
 Edmundson v. Mitc'hell,'®/f;f;zecf by /lJ7;Ci8©S(Sf ® 545, 546, 558 
 
625 
 
 TABLE OF CASES IN VOLtJME t. 
 
 Fletcher «. Ashby, 298 
 Fletcher, 288 
 Peck, 24, 40, 63, 579, 584 
 Foote V. Hayne, 252 
 
 "" Mayor of Truro, 524 
 Forbes «. Cochrane, 179 
 Ford «), Fothergill, 479 
 
 Phillips, 491 
 Foreman s. Murray, 442, 456 
 Forward v. Thamer, 168 
 Foster v. Foster, 178 
 
 Stewart, 185 
 Fowle V. AJexandria, 229, 569 
 Fowler ■». Fowler, 322 
 Fox V. Comm'tb, 89 
 
 " Crosby, 438 
 
 " Mackreth, 222, 461 
 Foxcroft's Case, 413 
 Franklin v. Franklin, 263 
 Franklin Glass Co. b. White, 530 
 Frazer v. Berill, 450 
 Freeman v. Fairlie, 458, 463 
 Frete «. Brown, 398, 400 
 Frontin «. Small, 210, 211 
 Frost ■D. Wolverton, 492 
 Fugates Case, 93, 107 
 Fulcher D. Hunter, 39 
 Fulwood's Case, 95, 96, 263 
 Fulton Bk. B. N.Y.ife Sharon Can.Co., 546 
 Gaines b. Spann, 431 
 Gallatin v. Bradford, 553 
 Gait B. Carter, 296 
 Gardner «. Ward, 146 
 Garforth ■». Bradley, 310, 336 
 Garland, ex parte, ,24, 40, 63, 527 
 Harrison, 420, 421 
 " Loving 440 
 Garrett v. Carr, 445, 455 
 GaskmsB. Comm'th, 24 
 Gelly V. Cleve, 165 
 Gelpcke s. Dubuque, 540 
 Genet B. Talmadge, 441 
 George v. Clagett, 217 
 
 " Elliott, 170, 191, 193 
 
 Gentry v. Bailey, 314, 371 
 Gibbons v. Ogden, 40 
 Gilbert «. Fletcher, 184, 483 
 Gilby v. Copley, 556 
 GillB. SheUey, 418 
 Givens v. Manns, 167 
 Goddin u. Crump, 40 
 Goodman v. Pocock, 193 
 Gordon v. Gordon, 417 
 Gore 10. Knight, 322, 333 
 Gosdeu n. Tucker, 296 
 Gough v. St. John, 226 
 Governor &, Co. v. Meredith, 587 
 " Heirs v. Koherlson, 145 
 " " v. Withers, 34 
 
 Gozzler i). Georgetown, 538-9 
 Grace (Slave), 178 
 Graff B. Castleman, 449 
 Graham B. Londondeiy, 295, 314, 315 
 " Strader, n&.. ... . . ... 
 
 Graham v. Austin, i^i^lQltlZed by Ml 
 
 Grammar v. Nixon, 219 
 Gratz V. Kedd, 531, 555 
 Granberry ■». Granberry, 458 
 Gray v. Gray, 266 
 
 Portland Bank, 530 
 Turnpike Co., 520, .521, 531, 
 .584, 555, 556, ."iSS 
 Great West. K, R. Co. ». Blake, 511 
 Green ti. Greenbank, 497 
 '■ Hanbury, 447 
 
 Hopke, 216 
 King, 834 
 Greene ®. Butherford, .J.iO 
 Greenwell v. Greenwell, 377 
 Gregory v. Baugh, 165 
 
 Haifa, 300, 306 
 Paul, 338, 354 
 " Pierce, 2i,0 
 
 Gremeley's Case, 274 
 Griffin v. Macaulay, 52!) 
 Griffith V. Bird, 377, 379 
 'Pauny, 177 
 , Hood, 364 
 Gcigsby ®. Cox, 322, 324 
 Griswold r. Hepburn, 24 
 
 " Waddington, 227 
 
 Guerrant -d. Hocker, 299,' 435 
 Gunn V. Barry, 24, 4(1, 65 
 Gunmaker's Co. v. Fell, 553 
 Gut's Case, 64 
 
 Gylbert v. Fletcher, 184, 483 
 Habergham v. Tiicent, 379 
 Hagerstown T'pike Co. D. Green, 513 
 Haguenin v. Beazeley, 407 
 Hakewell, in re, 402, 439 
 Hale B. Gerrish, 491 
 
 " Wall. 142, 199, 227 
 HallB. Hall, 43 7 
 
 " HoUett, 461 
 Ham B. Ham, 427, 485 
 Hamlin B. .Atkinson, 441, 444 
 Hampden Sid. Col. B. Legrand, 38, 522, 
 
 536, 543, 558 
 Hampshire B. Franklin, 580 
 Hampton b. McConnel, 280 
 Hamtramck r. Selden, 540, 
 Handley B. Snodgrass, 455, 463 
 Hands B. Slaney, 479 
 Hannah v. Boyd, 446 
 Harcum B. Hudnad 301, 306 
 Hardin ». Fisher, 147 
 Harford v. Morris, 263 
 Harman B. Tappenden, 526, 572 
 Harnett B. McDougall, 328 
 Harrell B. Watson, 173 
 Harris v. Carson, 34, 432 
 " Elliott 120 
 " Harris, 256 
 Hicks, 237 
 " Jays, 544 
 " Nicholas, 170, 220 
 " Wall, 491 
 Harrison b. Fane, 480 
 
 'i.-^ Harrison, 551 
 rOSOft® Jackson, 203 
 
TABLE OF CASES IN VOLUME I. 
 
 623 
 
 Harrison v. Worley, 495 
 
 Harrison Justices v. Holland, 40. 
 
 Hart i>. Ten Eyok, 448 
 
 Hartford & N. H. E. E. Go. v. Crosswell. 
 
 530 
 Hartley v. Harman, 192 
 " Wharton, 491 
 
 Hartshorne «. Whittles, 211, 545 
 Harvey ■». Epes, 170, 196 
 " E. India Co., 573 
 
 Skipwith, 3U 
 " Steptoe, 219 
 Harwood v. Oglander, 464 
 Haselinton ». Gill, 296 
 Hassell ». Long, 547 
 Hatch V. Taylor, 209 
 Hatchett v. Baddeley, 353, 354 
 Hawkesworth «. Hillaiy, 188 
 Hawkins i). Kemper, 40 
 Haxall ». Shippen, 301 
 Hayoroft «. Orea8y,'226 
 Hay>ien v. Gould, 242 
 Hayes «. Ewell, 311 
 Goode, 463 
 N. W. Bank, 562 
 Hazard J). Irvin, 226 
 Israel, 97 
 Head «. Briscoe. 346 
 Head, 411 
 " Prov. Ids. Co., 545 
 
 Stamford, 335, 336, 361 
 Healey ®. Rowan, 482 
 Hearle«. Greenbank, 323 
 Hedgeley «. Holt, 10:., 480 
 Helyear «. Hawke, 227 
 Henderlite ». Thurman, 173, 174 
 Henriques ». Dutch W. India Co., 556, 
 
 557, 663 
 Henry ®. Graves, 311 
 Hepburn ■». Dundas, 167, 420, 421 
 " EUzey, 41 
 
 " Griswold, 24 
 
 Herbert v. Herbert, 248 
 
 Tarbol, 473, 486 
 Herkimer M. &H. Go. i>. Small, 531, 555 
 Hem 1). Nicholas, 219, 225 
 Heron «. Heron, 407 
 Hervey e. Hervey, 207 
 Hewet B. Commonwealth, 24 
 Heygate v, Aunesley, 306 
 Hibblewhite «. McMorine, 203 
 Higgins 1). Senior, 211, 214 
 Highland T'pike Go. v. McKean, 531 
 Hill's Case, 105, 245 
 
 " Manchester Water Works, 537 
 " Saunders, 355 
 " Turner, 406, 437 
 Hindley ft. Westweath, 288 
 Hipkins v. Bernard, 456, 458, 459 
 Hite's Case, 133 
 Hobart v. Suffolk. 379 
 Hodge V. Combes, 206 
 
 " First Nat. Bank, 206, 646 
 Hodgens «. Hodgens, 309 
 
 Hodsden «. Lloyd, 323 
 Hoge 1). Trigg, 97 
 Holden v. Holden, 256 
 Hole V. Railway Co. 230 
 Holland v. Holland, 256 
 
 " Harrison Justices, 40 
 
 Malkin, 416 
 Holmes i). Latless, 25 
 " Blogg, 494 
 " Ex parte, 549 
 Holloway v. Headington, 297 
 Holt V. Clarfencieux, 487 
 
 Ward, 233, 238, 250 
 Home i>. Richards, 120 
 
 Rouse, 517, 539 
 Home of the Friendless v. Rouse, 517, 
 
 539 
 Homer «. Thwing, 497 
 Homestead Cases, 24, 40, 65 
 Honner t). Morton, 306, 311 
 Hookman v. Chambers, 353 
 Hooe«. Oxley 204 
 Hoop, The, 227 
 
 Hooper v. Eoyster, 442, 455, 456 
 Hope Ins. Co. b. Boardman, 557 
 Hopkins ». Blane, 206 
 
 " Swansea (-'orp. 578 
 
 Hornsby v. Lee, 311 
 Horten i>. Townes, 209 
 Hoste «. Pratt, 377, 378 
 House 11. Chapman, 551 
 Houston 1). Robertson, 224 
 
 " Cantril, 224 
 
 Howard's, Sir Robert, Case, 472 
 Digby, 322 
 " O. P. Powhatan, 414 
 Howell V. Maine, 349, 351, 357 
 Howery ». Helms, 200, 223, 461 
 Hubbard v. Goodwin, 132, 144, 145 . 
 Huddersfield Can. Co. ii. Buckley, 527 
 Hughes «. Hughes, 377, 378 
 
 Edwards, 142, 147 
 Hull V. Hull, 406 
 Hulme 1). Hulme, 260 
 
 " Tenant, 317, 318, 325, 366 
 
 Hume v. Hoard, 323, 326 
 Hunt V. DeBlaquiere, 344, 345 
 Peake 487 
 " Rousmanier, 223, 224, 227, 544 
 Hunter 1). (.'oalter, 3.5 
 
 Fairfax, 146, 147 
 " Fulcher, 39, 177 
 " Lawrence, 223, 441, 449 
 " Martin, 40 
 Hussey's Case, 4(jl, 438 
 Huston 11. Cantril, 544 
 Hutchinson v. York R. R. Co. 197, 221 
 
 222 
 Huttman v. Boulnois, 190 
 Hyde ii. Price 353 
 Hylton 1). Hylton, 457 
 Idle B. Cook, 419 
 
 Inglie 1). Trustees Sailor's Snug. Harb. 
 135, 136, 146 
 
 Hodgson «, Dexter, 21fygifi2ecl by Midf&^Sft^ Ing^w^, 209 
 
624 
 
 TABLE OF CASES IN VOLUME I. 
 
 Inhabitants ■». Strong, 513 
 Inuis v. Wylle, 526 
 Instone «. Bridge Co. 531 
 Insurance Co. v. Francis, 519, 557 
 " BaUey, 41, 99 
 
 Mahone, 212 
 " Wilkinson, 212 
 
 Irwin 1). Dearman, 372 
 Isaac «. Johnson, 169 
 IsbeU V. NorveU, 170, 196 
 Island City in re, 539 
 Iveson v. Connington, 214 
 Jack e. Martin, 176 
 Jackson v. Bank of Marietta, 556, 563 
 " Carpenter, 487 
 
 " Claw, 249 
 
 " Hartwell, 550, 572 ' 
 
 " Hobhouse, 327 
 
 " Jackson, 378, 443, 455 
 
 " Rose, 40, 176 
 
 " Lamphire, 588 
 
 " Kose, 40, 176 
 
 " Turner, 476 
 
 " Updegraffe, 449 
 
 " "Walsh, 543 
 
 Jacobs t>. Commonwealth, 96 
 
 Hill, 96 
 James «. Biddis, 39 
 
 McCubbin, 97 
 James Kiv. Co. ». Early, 578 
 " Rogers, 559 
 
 " Thompson, 64, 503, 
 
 535, 587 
 " Turner, 64, 118 
 
 Jarmau «. WooUaton, 296, 333 
 Jee V. Thurlow, 288 
 Jefferys «. Jefferys, 297, 378 
 Jenkins b. Dye, 407 
 
 . " Hutchinson, 216 
 
 Jennings i). Montague, 268 
 
 Eundall, 495, 497 
 Jenny ■». Alden, 400 
 Jesson 11. CoUms, 243 
 Jincey v. Wingfield, 169 
 Johns 'D. Commonwealth, 516 
 Johnson v. Macon, 99 
 " Freeth, 331 
 
 " Pie, 497 
 
 " Somerville, 506 
 
 Johnston v. Zane, 330 
 Joice's Case, 178 
 Joliffe v. King, 34 
 Jones' Case, 57, 460 
 Jones V. Carter, 2 10, 545 
 Goodohild, 419 
 Obenchain, 294, 297, 320 
 " Van Zandt, 176 
 
 ■Williams, 458 
 Jordan v. Norton, 209 
 Jowett «. Charnock, 568 
 .Judge's Case, 40 
 Kaine's Case, 58 
 Kaye v. Pienne, 338, 354 
 Keane v. Boycott-, 184, 477_, 488 
 Kearney's Case, 55 Digitized by 
 
 Kee 11. Kee, 446, 447 
 Kelly's Case, 120 
 Kelly v. Scott, 274 
 Kemper n. Hawkins, 40 
 Kendall v. Lancaster, 488 
 Kennedy v. Gouveia, 210 
 Kevan v. "Waller, 430, 431 
 Keyworth v. HiU, 346, 360, 361 
 Kilham v. "Ward, 146 
 Killich V. Plexney, 461 
 Kinehart v. Kinehart, 407 
 King V. Amery, 584 
 " Armesby, 181 
 " Arundel, 184 
 " Bedford Level, 544 
 " Belkinger, 533 
 " Billinghurst, 263 
 " BisViop of Ely, 574-'5 
 " Bridge, 524 
 BuUer, 532 
 " Cromford, 483 
 " Delavall, 324 
 " Devonshire, 533 
 " Faversham, 532 
 " Gaborien, 532 
 " GreenhiD, 402, 439 
 " Hawkins,. 524 
 " Hill, 532 
 
 Hull Dock Co., 515 
 " Isley, 402, 4.39 
 " Joliffie, 34 
 " Jones, 363 
 " Langhorii, 532 
 " Lynn Regis, 527 
 " Mayor of Colchester, 523 
 " of Gravesend, 542 
 " " of Liverpool, 560 
 
 " " of Norwich, 524 
 
 " of Portsmouth, 527 
 "of Stratford, 560 
 Mirfield, 515 
 Morris, 533 
 liotberseU, 563 
 " Parry, 524 
 " Pasmore, 520, 577, 578 
 '• Smith, 523 
 
 Stockland, 186' 
 " Teignmouth, 515 
 Thornton, 533 
 "WhitweH, 584 
 "Williams, 527, 523 
 Kingston, Duchess of. Case, 281 
 Kinnaird v. "WiUiams, 314 
 Kinzie n. Bronson, 25 
 Kirkpatriek v. Love, 462 
 KirtwaU v. Kirkwall, 255 
 Knight n. Fox, 229 
 
 Kuight, 329 
 Plyu outh, 448 
 Korn n. Mutual Assurance Co. 538 
 Krnge n. Moore, 419 
 Lacou v. Briggs,-463 
 Lacy v. Osbaldistone, 192 
 Lafayette Ins. Co. v. French, 518, 541, 
 
 Micmsa^® 
 
TABLE OF CASES IN VOLUME I. 
 
 625 
 
 Lake v. Smith, 360 
 Lambe v. Milnes, 317 
 Lamburn v. Cruden, 192 
 Lampert v. Lampert, 364 
 Lampher ». Creed, 333 
 Lane v. Cotton, 227, 228 
 " Ironmonger, 345 
 Lange's Case, 58 
 Langford v. Gascoyne, 450 
 Lattess v. Holmes, 25 
 •Laugher v. Pointer, 218, 220, 230 
 Lawrence v. MoArtee, 486 
 Lean v. Shutz, 353, 354 
 Lee ■». Bank of U. States, 323, 320 
 " Hodges, 202, 373 
 " Mynne, 351 
 " Prieaux, 319 
 Leftwioh's Case, 57 
 Legal Tender Cases, 40, 24 
 Legard v. Johnson, 288 
 Legrand «. H. S. College, 38, 522, 536, 
 
 543, 558 
 Leland v. Wilkinson, 39 
 LeLoir «. Bristow, 195 
 Lemon ii. Harnsbarger, 440, 474, 441, 
 
 444, 445 
 Leunard v. Robinson, 210 
 Le Vasseur v. Scratton, 300 
 Levy ti. McCartee, 43 
 Lewis V. Washington, 117 
 Adams, 317, Sis 
 Babcook, 350 
 Caperton, 301 
 Fullerton, 107, 17S 
 Lee, 353 
 Nicholson, 216 
 Exparte, 472 
 Liddesdale v. Robinson, 447, 457 
 LifEord's Case, 205 
 Lightfoot -£>. Colgin, 314, 370 
 
 " Price, 470 
 
 Lillia V. Airey, 325 
 LUly's Case, 184 
 
 " B. Elwin, 192, 193 
 Lindsay », Howerton, 4o<) 
 Lionberger ii. Rouse, 516 
 Lister's Case, 287 
 Lithgow's Case, 562 
 Liverpool Ins. Co. ■». Mass'ts, 518 
 Livesay ». Helms, 300, 306 
 Lloyd V. Mason, 309 
 
 Williams, 309 
 Loan Association «. Topeka, 41, 65 
 Lobdell V. Baker, 22<; 
 London & B. R. R. Co. i>. Wilson, 530 
 London Dock Co. v. Sinnot, 535, 55S 
 Louisville, 0. & C. R. R. Co. ». Letson, 
 
 519, 557 
 Lowe V. Grifath, 479 
 Lucas 1). Lucas, 294, 295, 319, 320 
 Luthel's Case, 514 
 Lyell V. Elliott, 24, 25 - 
 Lyle 4). O. P. Ohio Co. 411, 412, 414 
 Lyme Regis v. Henley, 229 
 Lyon 4>. Jerome, 542 
 
 Diglgzed by Microso 
 
 I Lyons ■». Blenkin, 399 
 I " Martin, 220 
 " Miller, 215 
 Maberley v. Turton, 377, 378 
 Macbeth v. Haldiman, 213 
 Madrazo «. Willes, 173, 177, 179 
 Magor i>. Lansley, 322 
 Mahone «. KeKuIe, 216 
 Malcolm D. O'Callaghan, 331 
 Male ■». Roberts, 472 
 Malone ». Duval, 24, 25 
 Manly i). Scott, 342, 343, 344 
 Manhattan Ins. Co. v. Warwick, 142, 
 
 227 
 Mann's case, 93, 107 
 Manns v. Givens, 167, 169 
 
 Commonwealth, 413, 414 
 King, 208 
 Manning v. Napp, 419 
 Maria v. Kirby, 178 
 
 Surbaugh, 168 
 Maria Louise -e. Maret, 178 
 Marine Ins. Co. «. Hodgson, 546 
 Markham ii. Guerrant, 330 
 Marlow v. Pitfield, 481 
 Marshall v. Bait. & O. R. R. Co., 519, 567 
 Conrad, 146 
 
 Rutton, 288, 338, 353, 354, 
 359, 360, 364 
 Martin ». Flowers, 211, 545 
 " Hunter, 40 
 
 " Mays, 490 
 Maryland v. McCulloch, 40 
 Mason v. Farmer's Bk. , 566 
 
 Moyers, 34, 432 
 Massey v. Parker, 329, 331 
 Mathewson v. Satterlee, 24 
 May V. Boisseau, 305, 349, 357 
 
 State Bank, 562, 577 
 Mayhew ii. Thatcher, 280 
 Maynard v. Firemen's Ins. Co. ,559 
 Mayor of Carlisle i>. Blamire, 514 
 ' ' Colchester v. Seaton, 577 
 " Colchester's Case, 569 
 " Lynne D. Turner, 559 
 " Lynne Regis Case, 511, 513, 
 
 538, 562, 568 
 " Scarborough)). Butler,514,577 
 " Stafford «. Bolton, 568 
 ' ' Workingham ». Johnson, 554 
 Mayor «. Gorry, 556 
 
 Henley, 229 
 McCall V. Peachy, 447, 455, 457, 458, 459 
 McCardle's Case, 58 
 McCartee «. Orphan Asylum, 292 
 McChesney «. Brown, 315, 323, 326, 327, 
 
 328 
 McClintic v. Lockridge, 57 
 McCormick v. McCormick, 313 
 MCracken i). Hayward, 65 
 McCulloch V. State Bank Maryland,5]0 
 " Maryland, 40, 516 
 
 " Dawes, 446 
 
 McDaniel v. Brown, 98 
 MoEIwain «. Mudd, 173 
 
626 
 
 TABLE OF CASES IN VOLUME I. 
 
 MoGill V. United States Bank, 547 
 McGrath n. Hemdon, 178 
 McLaren v. Pennington, 580, 582 
 McLean <b. Longlands, 294, 295, 319 
 McManus v. Crickett, 220 
 McMath v. Johnson, 173 
 McMinn ». Eichmond, 485, 486 
 McNamara ii. Fisher, 353 
 McNielage «. Holloway, 300 
 McQueen b. M. Man. Co., 561 
 McWhirt's Case, 381 
 McWiUiams ». Willis, 210, 215, 545 ' 
 Meade's Case, 287 
 
 Meadows ■». Duchess of Kingston, 281 
 Mechanics Bk. ■». Bk. of Coltunbia, 211, 
 545 
 " Seton, 646 
 
 Medley v. Horton, 328 
 Meems v. Hayworth, 226 
 Mellish V. DaCosta, 398 
 
 MeUish, 378 
 Mendez •». Mendez, 435 
 Mercer ». Gilman, 177, 178 
 
 " Kelso, 169 
 
 " Whall, 192 
 
 " Watson, 24 
 Mercer Co. v. Hacket, 540, 543 
 Merchants <fe Fire Ins. Co. v. Grant, 490 
 Meredith v. FaiT, 418 
 Metcalfe v. Clough, 223 
 Metham «. Devon, 417, 418 
 Meth. Episc. Ch. v. Jaques, 325 
 Metzzer's Case, 58 
 Meyer «. Muscatine, 640, 543 
 Micherson t>. Easton, 487 
 Michie v. Michie, 105 
 Middlesex Husbandmen B.Davis,521, 545 
 T. P. Co. ». Swan, 530 
 
 Walker, 530 
 Middleton v. Croft, 361 
 
 " Case, 527 
 Milboum v. Ewart, 290 
 Milldam Foundry ■». Hovey, 536 
 Miller v. Holcombe, 447 ^ 
 
 Marshall 109 
 Smith, 475 
 Trevillyan, 470 
 Milligan's Case. 58, 64 
 
 " B. Wedge, 218, 229 
 Mills ■D. Duryea, 280 
 " Graham, 496 
 
 Stuart, 506 
 Milner v. Harewood, 441, 482 
 
 Milner, 363 
 Minor v. Mechanic's Bank, 544, 547 
 Minot V. Curtis, 514 
 MitcheU «. Moore, 296, 317, 318 
 
 " Reynolds, 553 
 
 " Thornton, 117 
 
 " Trotter, 447 
 
 Mitchinson v. Hewson, 336, 360, 362, 363 
 Mitford V. Mitford, 336 
 Mittelholzer s. Follarton, 173, 179 
 MofFett i). Bickle, 359, 362 
 
 Moises V. Thornton, SSDJgJtized by MiCrO^bft® Hatter, 348, 351 
 
 Moloney v. Kennedy, 318 
 Moloney, 281 
 Montague ». Benedict, 343, 345 
 Monteith v. Commonwealth, 96 
 Montgomery v. Henry, 97 
 Moodalay v. E. Ind. Co., 504 
 
 " Morton, 570 
 
 Moore's Case, 245, 247, 249 
 
 " D. Dawney, 97 
 
 " Ferguson, 322 
 
 '' Frowd, 457 
 
 " Illinois, 174 
 
 Moore, 287, 328, 364 
 
 " Thornton, 311 
 
 Morgan v. Morgan, 266 
 Morris v. Terrell, 208, 222, 224 
 
 " MiUer, 249 
 
 " Morris, 459 
 Staps, 553 
 Morrow v. Peyton, 446, 450 
 Mortimer «. Mortimer, 256 
 Mortimore v. Wright, 376 
 Mosby ». Mosby, 96 
 Moseley ■D. Buck, 222 
 " Moss, 373 
 
 Moses V. Stevens, 483, 487 
 Mountfort, Six parte, 399 
 Monntstuart v. Mountstnart, 437 
 Moyers v. Mason, 34 
 Moyle Finch's Case, 513, 538 
 Mmr V. Falconer, 118 
 Muller v. Bailey, 323, 324, 326 
 Mumma «. Pot. Co., 580 
 Munday «. Howe, 377, 378 
 
 " Vawter, 296 
 
 Munford v. Rice, 96 
 Murphy, Ex parte, 525 
 Murray ■B. Barlee, 325 
 
 " Charming Betsy, 135 
 
 " Elibank, 307, 308, 309, 310 
 
 McCarty, 136, 142 
 Musser n. Thompson, 39 
 Mustard ». Wohlford, 487, 489, 492, 493, 
 
 494 
 Myers v. Wade, 377, 443, 446 
 
 " Zetelle, 199, 448 
 Nabob of Camatic v. E. Ind. Co. 504 
 National Bank v. Kentucky, 516 
 
 " Comm'th, 515, 516 
 Needham's Case, 291 
 N. Binghamton T. P. Co. v. Miller, 587 
 N. Eng. Mar. Ins. Co. «. DeWolfe, 545 
 Nelson «. Baugher, 24, 25 
 
 " Page, 447 
 
 " PoweU, 211 
 Nel thorp ». Anderson, 301, 3.60 
 Nesbit V. Bait. & Susqueh. R. R. Co. 24 
 Newby «' Wiltshire, 196 
 New Bedford T. P. Co. ». Adams, 530 
 Newburgh v. Bickerstaffe, 445 
 NeweU's Case, 435 
 Newling v. Francis, 580 
 New Jersey v. Wilson, 585 
 Newton u. EUis, 230 
 
TABLE OF OASES IN VOtUME I. 
 
 m 
 
 Newton v. Poole, 456, 457 
 Eeid, 329, 331 
 Nicholas i). Squire, 429 
 Nichols V. Aylor, 35 
 Nicholson v. Bradfield, 535, 558 
 NickeU ■». Handley, 330 
 Nickerson «. Easton, 483 
 Nimmo v. Commonwealth, 456 
 Nixon ». Rose, 318, 323, 326 
 Noke V. Windham, 475 
 Norfolk Overseers ». Bank of Va. 199 
 Norman ». Cunningham, 334 
 Norris i>. Staps, 534, 556 
 North's (Lord) Case, 198 
 North Am. Coal Co. v. Dyott, 325 
 Northey v. Northey, 314 
 Norton v . Pazan, 343 
 Heron, 214 
 Turvil, 364 
 Nowlan v. Ablett, 180 
 Nurse v. Craig, 353 
 Oakes v. Hill, 534, 581 
 O'Bryan n. Knivan, 544 
 
 " Earn, 336 
 
 OfBoer V. Sims, 174 
 Offley V. "Warde, 556 
 Ogden V. Gibbons, 40, 587 
 Ohio & Miss. E. E. Co. «. Wheeler, 519, 
 
 557 
 Oliver ». Hundlet, 487, 488 
 
 " OUver, 260 
 O'Neale's Case, 249 
 Orme ». Orme, 281 
 Orr V. Hodgson, 139, 145, 147 
 OsbomB. Bk. of U. States, 510, 516, 543 
 " Mobile, 517 
 " Nicholson, 174 
 " Taylor, 167, 169 
 Otway V. Otway, 260 
 Overton v. Freeman, 218, 229 
 Owen s. Dickinson, 325 
 
 " Sears. 551 
 Owing «. Speed, 520, 563 
 Oxford, Earl's Case, 547 
 Packet Co. v. Clough, 212 
 
 McCue, 197, 221 
 Page's Case, 145 
 
 " ». Bent, 226 
 Pallas V. Hill, 165 
 Palmer ». Stephens, 216 
 Parker v. Brooke, 319 
 Kett, 544 
 McCoy, 476 
 White, 328 
 Parramore v. Taylor, 41 
 Parka v. Boss, 213 
 Parry i). Hindle, 355, 356 
 Parsons v. Freeman, 379 
 Pasley ». Freeman, 198, 226 
 Pate V. McOlure, 198 
 Patterson «. Ailesbury, 28 
 
 " Gandassequi, 211 
 
 Paul v. Virginia, 519 
 Paup D. Mingo, 169 _. ... 
 Pawson «. Watson, 22i)igitlZecl by M 
 
 Payne v. Coles, 462 
 Peacock «. Monk, 322, 323 
 Pearce ii. Pearce, 475 
 Pearson in re, 402, 439 
 Peck ■0. Fletcher, 24, 40 
 Penn v. Spencer, 308 
 
 " Whitehead, 323,326,333,377,400 
 Pennimau v. Briggs, 582 
 People 1). Chegary, 402, 439 
 " Commissioners, 516 
 
 " Landt, 398, 416 
 " Mercelin, 399 
 
 " Meroieu, 437 
 Moore, 484 
 
 ; 399 
 
 Peppini). Cooper, 544, 547 
 Perkins v. Bank of Hudson, 554 
 
 Bristol & R. T. P. Co. 583 
 " Dickinson, 330 
 " H. & C. Turnpike Co. 583 
 ' ' Kingston & M. T'pike Co. 583 
 
 Manhattan Co. 564, 582 
 " Niagara Bank, 583 
 " Eunkle, 524 
 
 " Trustees of Geneva Col. 518 
 Peshine v. Shepperson, 208 
 Pete V. Hague, 227 
 Peter v Hargrove, 169 
 Peters v. Fleming, 479, 480 
 Phelps ». Prothen, 215, 
 Phil. & E. E. E. Co. «. Derby, 219 
 Phil. Wilm. & Balto. E. E. Co, ii. Mary- 
 land, 519 
 Phillips' Case, 43 
 
 " V. Bary, 508, 574 
 Evans, 173 
 Wickham, 524, 580 
 Phillips Academy v. King, 550, 572 
 PhilUskirk «. Pluckwell, 351, 353, 355, 
 
 357 
 Phoebe i>. Boggess, 169 
 Pickering v. Bersh, 205 
 
 " Stainford, 463-'4 
 
 Puckett v. Chilton, 317, 476 
 
 " Day, 24 
 
 Pidgeonfl. Williams, 199 
 Pierce ■». Massenburg, 181, 404 
 Pigot « . Thompson, 556 
 Pinckard «. Woods, 441, 449 
 Pindall v. Bank of Marietta, 470 
 Plate Glass Co. v. Meredith, 679 
 Platner v. Sherwood, 54, 353 
 Pleasants i). Pleasants, 168, 169 
 Plymouth ■». Throgmorton, 193 
 Poindexter i). Jeffries, 307, 308, 309 
 PolhiU V. Walter, 216 
 Polyblank e. Hawkins, 312 
 Pomf ret «. Ricrof t, 205 
 " Windsor, 445 
 
 Pool's Case, 57, 176 
 Pope i>. Sale, 416 
 Popkin B. Popkin, 257, 260 
 Portland Bank ■». Aythorpe, 516 
 Portmore «. Bunn, 551 
 '^'gf^yft®'h ». Portsmouth, 238, 263 
 
628 
 
 TABLE OF CASES IN VOLUME I. 
 
 Potinger v. Kightman, 434 
 Potts ®. Belt, 227 
 Poulson V. Justices, 93, 107 
 Poulterers' Co. «. Phillips, 634 
 Poulton ® Lattimore, 191 
 Powell «. Manson, 335 
 Prather s. Prather, 399 
 Pratt ». Taliaferro, 299, 301 
 Presb. Church «. Manson, 215 
 N. York, 539 
 Prest. & Col. of Phys. v. Salmon, 511 
 Preston ». Hull, 204 . 
 Price «. Stokes, 450 
 Priest V. Oummings, 139 
 Priestly «. Fowler, 194, '196, 197, 221 
 Prigg ». Pennsylvania, 176, 179 
 Proctor V. Proctor, 255 
 Pro-ridenee v. Clapp, 229 
 Prov. Bank v. Billings, 516, 587 
 Pulliam ». Johnson, 447 
 Pulvertoft V, Pulvertoft, 297 
 PumpeUy «. Green Bay Co. 64 
 Pureell ». PurceU, 249, 282, 284 
 Purdew v. Jackson, 311 
 Pusey V. Clemson, 458 
 Pybus V. Smith, 322, 324, 327, 328 
 Pyle «. Cravens, 486 
 Quackenbush «. Danks, 25, 65 
 Quarman «. Burnett, 218, 220, 229 
 Queen v. MUlis, 233, 242 
 
 " BrightweU, 524 
 Eabone v. Williams, 217 
 Bagland v. Butler, 34 
 Kailway Co. v. Allerton, 542, 546 
 McMichael, 492 
 " • Whitton, 519, 551 
 
 Railroad Co. «. Harris, 511, 619, 557 
 Baleigh & Gaston, K. K. Co. a. Keid, 517 
 Eamsey «. McCue, 98 
 Randall «.Eotch, 185 
 
 Van Vechten, 643 
 Wade, 495 
 Randleson v. Murray, 230 
 Randolph's Case, 58 
 
 " i>. HiU, 170, 196 
 Rapson «. Cubitt, 218, 229, 230 
 Batcliffe's Case, 423, 425 
 Raynor ». Grote, 212, 218 
 Raynham v. Canton, 39 
 Read v. Dunsmore, 192 
 " Read, 146, 147 
 Snell, 315 
 Redford ». Peggy, 169 
 Reedie ». Railway Co., 229 
 Rees ». Conococheague Bank, 540, 656, 
 562, 563 
 " Rees, 278 
 Reeves v. Reeves, 256, 265 
 Reid B. Blackstone, 169 
 Revere «. Boston Copper Co., 581, 582 
 Regina ». Bailiffs of Ipswich, 527 
 " B. & Cr. RaUway Co., 660 
 " Mayor of Ipswich, 527 
 
 '" Scott,' 56o^'^#^^^^ by Mi^roso 
 
 Smith, 183 
 
 Regina «. Truebody, 527 
 
 Rex ». Albertson, 413 
 
 " Amery, 521, 582 
 
 " , Andover, 526 
 
 " Armesby, 404 
 
 " Askew, 520 
 
 " Barebaker, 415 
 
 " Basey, 521 
 Beneier, 407 
 
 " Birmingham, 239, 244, 403 
 
 " Blow, 184 
 
 " Bow, 187 
 
 " Bramley, 238-'9 
 ■ " Cambridge, 521 
 
 " Chalk, 627 
 
 " Clarkson, 402, 439 
 
 " Closeworth, 180, 181 
 
 " Combe, 180 
 
 " Corporation Wells, 627 
 
 " Courtney, 624 
 
 " Cowles, 46 
 
 " Delaval, 402, 439 
 
 " Dempsey, 378 
 
 " Doncaster, 531, 632 
 
 " East Bridgford, 186 
 
 " Edingale, 180 
 
 " Faversham, 626 
 
 " Poster, 612 
 
 " Foicroft, 524 
 
 " Gardner, 515, 539 
 
 " Guilford, 181 
 
 " Guildford, 526 
 
 " Hardwicke, 400 
 
 " Hawthorne, 580 
 
 " Hill, 531 
 
 " Hincksworth, 125 
 
 " Holland, 580 
 
 " Hughes, 521 
 
 i" Johnson, 402 
 
 " Lady Partington, 53 
 
 " Leigh, 125 
 
 " Liverpool, 626, 531, 532 
 
 " London, 526, 669 
 
 " Ludbrooke, 191 
 
 " Luffe, 411, 413 
 
 " Lynn Regis, 526, 527 
 
 " May, 531, 532 
 
 " Mayor of York, 627 
 
 " Mayor of Andover, 527 
 
 ' ' Mayor of Leicester, 527 
 
 " Martin, B63 
 
 ■' Miller, 580 
 
 " Morris, 580 
 
 " Moseley, 416 
 
 " Mountsorrel, 184 
 
 " Munday, 378 
 
 " Munden, 407 
 
 " Osborne, 580 
 
 " Pasmore, 580, 682, 684 
 
 " Poole, 624 
 
 " Richardson, 526, 527 
 
 " Rogers, 526 
 
 Rotherfield Grays, 400 
 
 t Bartholomew, 515 
 Luke's, 515 
 St. Nicholaa, 182 
 
TABLE OF CASES IN TOL0ME I. 
 
 629 
 
 Bex V. Saunders, 582 
 " Soper, 416 
 " Spencer, 553 
 " Staverton, 584 
 " Street, 415 
 " Smith, 196, 401, 402, 438 
 " Taylor, 527 
 " Thame, 527 
 " Thurston, 25 
 " Vice Chan. Cambridge, 520 
 " Wigston, 184 
 " Wilmington, 400 
 " "Windham, 568 
 Khea v. Gibson, 204 
 
 " Eheuner, 338 
 Rice V. Chute, 213 
 " EfEord, 249 
 Rich V. CorkeU, 295, 317, 319 
 Richards v. Richards, 357 
 Richardson v. Hall, 336 
 
 " Perkins, 98 
 
 Richmond v. Danville E. R. Co., 503, 
 539, 579 
 Long, 227, 229 
 Richmond Enquirer Co. i>. Robinson, 
 
 546, 547 -• 
 Rich. P. &F. R. R. Co. v. Louisa R. R. 
 Co., 503, 579, 
 587, 588 
 " Riohmo'd, 549 
 " llich'd&D.U.R. 
 Co., 503, 539 
 " " " Snead, 206,546 
 
 Riddle i). Merrimao Locks, 520, 580, .582 
 Rider ». Union Factory, 552, 577 
 Ridgway ■». Darwin, 462 
 
 " Hungeiford, 192 
 
 Rigley i>. Lee, 361 
 Ripley «. Sampson, 530 
 Rivanna Nav. Co. ■b. Dawson, 548, 549 
 Rives 1). Farish, 173, 174 
 
 " State, 581 
 Roach V. Garner, 435 
 Quick, 484 
 Roadcap v. Sipe, 347, 359, 360 
 Boanes 1), Archer, 330 
 Robbing i>. Chicago, 218, 230 
 Robum i>. Drummond, 215 
 Roberts i). Stanton, 433, 476 
 Robertson «. Read, 200 
 " Sharpe, 40 
 
 Robin «. Hardaway, 165 
 Robinson v. Cox, 39 
 
 Pett, 457 
 " Scotney, 462 
 
 " Ex parte, 527 
 
 Rodney v. Chambers, 288 
 Roe v. Hervey, 473 
 
 " Hodgson, 441 
 Rogers «. Clifton, 198 
 
 " Rogers, 255, 446 
 RondaU v. Trimen, 216 
 Roper v. Wren, 322 
 Rose V. Jackson, 40 
 
 " Bowler, 352, 353 Qigifj^ed by 
 
 Ross V. Gill, 441 
 Ross V. Milne & ux, 217, 556 
 Eossiter v. Rossiter, 216 
 Roundtree «. Baker, 173-4 
 Royster ii. Leake, 96 
 Ruddle V. Ben, 169 
 Rumsey ». George, 349, 351 
 Runyan v. Lessee, 557 
 
 " Coster, 550 
 
 Russell 4). Come, 350, 352 
 Lee, 487 
 McLellap, 521, 545, 580, 581 
 
 " Men of Devon, 503 
 Rutland's Case, 584 
 St. John «. St. John, 255, 288, 289 
 St. John's Col. D. Bishop of Ely, 575 
 
 Todington, 553 
 St. Louis, The, 177 
 
 " i). Ferry Co., 518, 541, 550, 557 
 St. Michael v. Nully, 125 
 St. Savior's i). Bostock, 547 
 Salisbury v. Wilkinson, 463 
 Salmon «. Hamborough Co. , 673 
 Salway «. Salway, 310 
 Sampsons. Goochland Justs. , 120 
 Sangster ii. Commonwealth, 97 
 Sangston v. Gordon, 204 
 Santissima Trinidad, The, 135 
 Sargeant ii. Morris, 215 
 Satterlee v. Mathewson, 24 
 Saunderson «. Baker, 97 
 SaviUe e. Sweeney, 333 
 Sawney i). Carter, 168 
 Sawyer ». Corse, 228 
 Sayers d. Cassell, 456 
 
 " Wall, 319, 320 
 Sayre v. N. W. T. P. Co., 579 
 Schaok V. Anthony, 556 
 Scherchardt b. Allen, 206 
 Schneider v. Heath, 225 
 Scholefield «. Eichelberger, 227 
 Soholey i). Mearns, 556 
 Schoonmaker «. Elmendorf, 351 
 Schuyler v. Hoyle, 306 
 Scott «. City of Manchester, 604, 229 
 Gibbon, 318, 330 
 Saudford, 139, 178 
 " Tankersley, 98 
 Scriven ». Tapley, 309 
 ■Seaton ». Benedict, 343, 345 
 Seagrave ». Seagrave, 364 
 Segar v. Edwards, 200, 222, 461 
 
 " Parrish, 195 
 
 Seins «. Bond, 217 
 Selden «. Overseers, 502 
 Sellen d. Norman, 195, 196 
 Senter v. Pugh, 120 
 Shanks v. Dupont, 135, 139, 145, 146 
 Sharon Can. Co. ». Fulton Bank, 511 
 Sharpe ii. Robinson, 40 
 Sheats «. Selden, 42 
 Shelley v. Westbrooke, 398 
 Shelton v. Springalt, 376 
 Shepard «. Shepard, 294, 297, 320 
 Starke, 336, 458 
 
630 
 
 TABLE OF OASES IN TOLUME I. 
 
 Shepherd v. Lincoln, 228 
 
 Shepperson «. Shepperson, 292, 320 
 
 Sherrard's Case, 107 
 
 Shiels V. Blaokbirrne, 198, 199 
 
 Shipbrooke v. Hinehinbrooke, 450 
 
 Shipley's Case, 526 
 
 Shipman ■». Thompson, 224 
 
 Shrewsbury's Case, 198 
 
 Shue «. Turk, 168, 169 
 
 Shumate's Case, 40 
 
 Sidney «, Sidney, 364 
 
 Sillings V. Bumgardner, 440 
 
 Silver Lake Bank D. North, 518, 540, 650, 
 
 557 
 Simms «. Shaw, 378 
 Sims 1). Bond, 215 
 Siter, (fee, v. McClanachan, 301 
 Skinner v. Storks, 215 
 
 " JE!x parte, 402, 439 
 Skyring ». Greenwood, 169 
 Slack ». Wood, 547 
 Slanniug v. Style, 294 295, 320, 321 
 Slate Eiv. Co. ». Crenshaw, 40 
 Slaughter's Case, 549 
 Slave Grace's Case, 178 
 Sleee. Bloom, 506, 553, 554,580, 582,584 
 Slocombe «. Grubb, 484 
 Sly i). Edgeley, 230 
 Smart v. Sanders, 223 
 Smith ex parte, 193 
 Smith V. Betty, 212 
 
 " Brovm, &c., 165, 178 
 
 Clay, 463 
 " Haywood, 192 
 Moore, 210 
 
 Smith, 178, 179, 318, 581 
 Smout ®. Ilberry, 215, 224, 225 
 Society of Praot. Knowl. v. Abbott, 538 
 " for Propag. of Gospel i). New 
 Haven, 584 
 Solly V. Kathbone, 209 
 Somerset «. Dighton, 398 
 Somerset's Case, 161, 178 
 SomerviUe v. Wimbish, 38 
 Sonley i>. Clookmaker's Co. , 550 
 Southby 1}. Stonehouse, 323 
 Souther's Case, 166 
 Spain V. Arnott, 192 
 Spear «. Crawford, 506 
 Spencer e. Campion, 581 . 
 Ford, 282 
 Pilcher, 170, 196 
 Spittle B. Lavender, 214 
 Spurhng «. Bochfort, 309 
 Stackpole «. Beaumont, 429 
 Stafford «. Bolton, 512 
 Staffordshire Canal Case, 516 
 Stainback b. Bank of Va. 208, 223 
 " Bead, 207 
 
 Bead & Co. 223 
 Stainforth ». Staggs, 416 
 Starke v, Ches. Ins. Co. 141 
 State V. Carew, 25, 65 
 
 " Bank of Maryland. 581 .. 
 " Penney, 141 -D/fil/T/Zecf toy 
 
 State V. Rives, 581, 583 
 Stayte v. Faiquharson, 264 
 Steadman v. Poole, 328 
 Steamboat Wenonah ®. Bragdon, 41 
 Stearns v. Taylor, 25 
 Stebbins v. Jenpings, 509 
 Steedman «. Bose,- 479 
 Steene v. Denny, 226 
 StegaU ». Stegall 411 
 Stephen's Heirs «. Swann, 145 
 Steptoe ». Bead, 359, 362 
 Stephens «. Davison, 542, 554, 581 
 Stevenson v. Singleton, 168 
 ' " Nevinson, 569 
 
 Sullivant, 420, 421 
 Stifle V. Drehman, 24 
 Stinchcomb v. Marsh, 210, 545 
 Stokes ». Upper Appomattox Co. 587,588 
 Stone v. Wilson, 99 
 Stones ». Keeling, 374, 408 
 Story D. Livingston, 470 
 
 '! Perry, 479 
 Stourbridge Can. ■». Wheeler, 688 
 Strata Marcella, Case of Abbot, 580 
 Stracy v. Deoey, 217 
 Strangways ®. Robinson, 416 
 Sfcrathmore ii. Bowes, 298 
 Strawbridge ». Curtis, 519, 557 
 Stribling «. Bank of the Valley, 561,562 
 Sturges «. Champneys, 308 
 
 " Corp, 322 
 
 Sullivan ». Sullivan, 266 
 Sutton's Hospital Case, 509, 511, 514,534 
 
 " v. Cole, 572 
 Swalne ». Kennerly, 418 
 Swanzey «. Vanderhayden, 485 
 Swithin v. Vincent 346, 359. 363 
 Switzer ®. Switzer, 288, 293, 320 
 Syme ». Butler, 213 
 Symmes' Case, 627 
 Tabb 11. Archer, 482 
 
 " Harrison, 378 
 Taft «. Biewstat, 210 
 Talbert®. Jenney, 169 
 Talbot 11. Jansen, 135, 136 
 Taliaferro d. Minor, 459 
 
 " Taliaferro, 306 
 
 Talley v. Starke, 440 
 Tanner i>. Christian, 214 
 Tapp v. Lee, 198 
 Tappan ». Merchants Bank, 516 
 Tarble's Case, 56 
 Tar Riv. Nav. Co. ». Neal, 531 
 Taylor ». Ashton, 226 
 
 " Bank of Alex'a, 39, 618, 550, 
 
 557, 563 
 
 " Benham, 448 
 
 " OuUins, 168 
 
 " Delancey, 41 
 
 " Dulwith Hosp. 535 
 
 " Parramore, 41 
 
 " Steams, 25, 65 
 
 " Yarborough, 299, 300, 311, 
 
 317, 318 
 ■RVoLaohlan, 190 
 
TABLE OF OASES IN VOLUME I. 
 
 631 
 
 Templeman v. Pauntleroy, 355, 462 
 
 Tennent ». Patton, 476 
 
 Terrett v. Taylor, 146, 502, 503, 535, 
 
 582, 584, 585 
 Thames. Tun. Co. v. Sheldon, 529 
 Theaker's Case, 410, 411 
 Thomas v. City of Blchmond, 539, 540 
 " Genevieve, 178 
 " Meeh. Bank, 562 
 
 " Roberts, 485 
 , " Williams, 192 
 
 Thompson «. Bond, 216, 224 
 " Brown, 448 
 
 " Davenport, 211, 215 
 
 " Lambe, 461 
 
 Lee Co., 540 
 Musser, 39, 563 
 Pae. B. E, Co., 516 
 Thomund v. Suffolk, 335 
 Thomdike v. Keynolds, 326 
 Thornton v. Gordon, 569 
 " Thornton, 334 
 
 Winston, 314, 355 
 Thrift «. Hannah, 167 
 Tillotson V. Cheatham, 96 
 Timmings v. Timmings, 255 
 Tippets V. Walker, 642 
 Tipping B. Tipping, 314 
 Todd r. Eerrick, 180 
 Tombigbee B. E. Co. v. Kneelaud, 518, 
 
 541, 550, 557 
 Tomlinson v. Dillard, 28 
 Tompkins ii. Branch Bank, 566 
 Tone Conservators i>. Ash, 509 
 Topeka v. Loan Association, 41 
 Towles' Case, 138, 139, 141 
 Town of Paulet v. Clark, 509 
 Townes ■». Lucas, 214 
 Townsend v. S. T. P. Co., 559 
 Townson v. Wilson, 416 
 Tremain's Case, 406, 437 
 Trent v. Cartersville Br. Co. 564, 588 
 Triplett v. Jameson, 458 
 Troy T. P. & E.,E. Co. i>. MoChesney, 531 
 Tmeman v. Hurst, 486 
 Truss V. Old, 440, 441 
 Tuckahoe Can. Co. v. Tuckahoe B. B. 
 
 Co., 587, 588 
 Tucker v. Moreland, 493 
 Tullett ®. Armstrong, 329 
 Tunstall ■». Pollard, 446 
 Turner's Case, 166 
 Turner i). Lucas, 211 
 " Mason, 194 
 
 Eobinson, 190, 192 
 Trisby, 481 
 Turner, 474, 475 
 Turpin v. Lockett, 502 
 Turquand v. Eoyal Brit. Bank, 543 
 Turvil V. Aynsworth, 512 
 Tutt V. Lewis, 213 
 Tyree v. Donnally, 96 
 
 Wilson, 96 
 Tyrrell v. Hope, 318 
 Udel «. Atherton, 219 
 
 Digitized by 
 
 Uhl's Case, 365 
 
 Union v. Wolsley, 213 
 
 Union Bank v. Beime, 207 
 " Laird, 554 
 
 Union Pao. E. E. Co. v. Fort, 196, 197, 
 221 
 
 United States v. Amedy, 39 
 
 " Arredondo, 588 
 
 Blakeney, 57, 484 
 City Bank, 546 
 Cottingham, 57, 484 
 " Klrkpatrick, 547 
 
 " Lipscomb, 58, 484 
 
 " McLemore, 470 
 
 " Nelson, 204 
 
 " Percheman, 47, 146 
 
 VanZandt, 544 
 
 U. S. Bank i>. Amedy, 561 
 " Beime, 207 
 
 " Dandridge, 521, 544 
 
 " Merchants Bank, 561 
 
 University of Oxford's Case, 573 
 
 of Maryland v. Williams, 581 
 
 Van AlleQ D. Aesessors, 516 
 
 Van Buren i>. Digges, 191 
 
 Vance v. McLaughlin, 305 
 
 Vandervall's Case, 42 
 
 Vane's Case, 287 
 
 Van VaJkenberg ». Watson, 377 
 
 Vasse V. Smith, 496, 497 
 
 Vaughan i>. Jones, 440 
 Bodes, 401 
 " Wilson, 306, 348 
 
 Veazie Bank v. Fenno, 66, .517 
 
 Veil ». Mitchell, 199 
 
 Vent V. Osgood, 484, 487 
 
 Vernon i). Keys, 198 
 
 Vicksburg &M. E. E. Co.,t). Green, 173 
 
 Vidal V. Girard's Ex'or, 550, 572 
 
 Villa Beal v. MeUish, 289, 434, 444 
 
 Vine B. Saunders, 347 
 
 Vintner's Co. i>. Passey, 554 
 
 Virg'a Cent. E. B. Co. «. Sawyer, 230 
 
 Vizonneau ». Pegram, 322, 326 
 
 Von Hoffman i). City of Quincy, 25, 65 
 
 Wade «. Boxley, 311, 355 
 
 Waddye. Hawkins, 458 
 
 Wagstaffe i). Smith, 322 
 
 Wainwright ®. Bridges, 173 
 
 Wall ■». Tomlinson, 306 
 
 Walker's Case, 199 
 
 Walker ®. Page, 476 
 
 " Walker, 288, 289 
 WethereU, 443 
 
 Wallace's Case, 93 
 
 Wallace «. Taliaferro, 300, 306 
 
 Wallis ». Day, 179 
 
 Waller «. Armistead, 298, 407 
 
 Wallop's Case, 410 
 
 Walters. Hodge, 294, 295, 320 
 
 Wamsley v. Lindenberger, 487, 488 
 
 Waukford v. Waukford, 291 
 
 Ward V. Sea Ins. Co., 581, 583 
 
 Waring v. Waring, 257 
 
 Warner's Case, 39, 249 
 
 Microsoft® 
 
632 
 
 TABLE OF CASES IN VOLUME I. 
 
 Warner ». McKay, 217 
 Warren's Case, 527 
 Warwick®. Mayo, 109 
 " Bruce, 487 
 
 Wash'n University «. Rouse, 517 
 Water Co. v. Ware, 218, 229, 230 
 Watkins' Case, 55 
 Watkins v. Carlton, 374, 411 
 Hewlett, 416 
 Watkins, 290, 364 
 Watson V. King, 224 
 " Lyle, 133 
 
 " Mercer, 24 
 
 " Eider, 281 
 Watts «. Cole, 433 
 Weald of Kent Can. Co. e. Robinson, 
 
 529 
 Weightman v. Washington City, 227-8, 
 
 229 
 Weller «. Baker, 349, 352 
 " Dippers, &c. , 351 
 Wellesley ». Diike of Beaufort, 399 
 Wellford v. Chancellor, 223 
 Wells V. Nurse, 357 
 
 " Winfree, 433 
 Wennall ii. Adney, 196 
 Wescombe ■». Dodds, 281 
 West V. West, 295, 318, 322, 323, 326 
 Westmeath ». Westmeath, 257 
 Weston-B. Hunt, 502 
 West Riv. Br. Co. «. Dix, 587 
 - West. Un'n Tel. Go. v. Richmond, 516, 
 562 
 Wharton v. Lewis, 252 
 
 " McKenzie, 480 
 
 Wheatley v. Martin, 447 
 Wheaton v. East, 487 
 Whichcote i>. Lawrence, 461 
 White V. Campbell, 373 
 " Coleman, 117 
 " Cuyler, 345 
 
 Hart, 65, 174 
 " Johnson, 97 
 
 Verra't &Mass. R. R. Co., 540 
 Whitefield v. Lord Despencer, 227, 228 
 
 " Hayes, 399 
 
 Whitehead i). Whitehead, 448, 453 
 Whiting «. Earle, 400 
 " Rust, 323 
 
 Whitney «. Dutch, 487, 491, 
 Wightman v. Wightman, 259, 261 
 Wigmore b. Jay, 197, 221 
 
 , 243 
 
 Wilbraham v. Snow, 300, 346, 359, 360 
 Wilcox «. Rowth, 491 
 Wilde V. Griffin, 416 
 
 " Jenkins, 581 
 
 Wilks V. Bark, 210 
 
 Wilkinson «. Adams, 417, 418 
 
 " Leland, 39 
 
 Willard v. O. P. Wood Co. 416 
 
 Stone, 487 
 Williams v. Moor, 485 
 " Ogle, 512 
 
 " Stonestreet, 189 
 
 Welsby, 203-'4 
 Williams, 399 
 Williamson v. Beckham, 323, 326 
 " Coalier, 168 
 
 Paxton, 360 
 " Watts 485 
 
 Willoughby's Case, 409, 410 
 Wilmington R. R. f:o. v. Reid, 517 
 Wilton B. Poindexter, 182 
 Wilson 11. Brockley, 264 
 
 Ches. & 0. E. R. Co. 511, 614 
 Fuller, 226 
 Peverley, 228 
 " Spencer, 540 
 
 Wimbish ii. Somerville, 38 
 Winstone ». Linn, 188 
 Wise 1). Wilson, 188 
 Withers v. Governor, 34 
 
 " Green, 190, 191 
 
 Witte, Bx parte, 402, 439 
 Wood V. Garnett, 453 
 Woodhouselee v. Dalrymple, 418 
 Woodman «. Chapman, 336, 362 
 Woodmas v. Mason, 537 
 Woodmeston ». Walker, 327, 331 
 Woodruff ». Trapnall, 611 
 Woodson V. Perkins, 296, 326 
 Woodward «. Newhall, 488 
 Woodyear ». Gresham, 336, 355 
 Worcester «. Eaton, 487 
 
 West Point R. R. Co. 516 
 Word's Case, 432, 433, 475, 476 
 Worrall ». Jacob, 288, 289 
 Wright V. Antoni, 24, 40 
 " Deacon, 176 
 
 Wright, 398 
 Wrightman i). Wrightman, 261 
 Wroe 1). Harris, 95, 96 
 Wych i>. Meal, 670 
 Wyman «. Hallowell, 578 
 Wynne v. Thomas, 224 
 Yarborough t>. Bank of England, 559 
 Yard v. Eland, 349, 361, 357 
 Yates 1}. Boen, 303 
 
 Yeaton ii. Bank of Old Dom. 521, 579 
 Yerby ». Grigsby, 206 
 
 " Lynch, 306 
 
 Yerger's Case, 40, 58 
 Young V. Peachy, 407 
 Zantzinger i>. Gunton, 577 
 Zouch V. Parsons, 477, 483-'4,486,487,488 
 
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