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until process issues. 2. From the return of process until issue is joined. 3. When to be tried; and who shall not be jurors. 4. Evidence at the trial.
How emancipation may be made. Proof of emancipation by will. De by other instrument. Where the emancipator had no title. Where children of the slave are born aster instrument is executed.
5. Form and effect of the judgment. Nature of the judgment as to costs.
Chap. XII. Cases of caveat. 1. When a caveat may be entered; and consequence of not entering it. 2. Proceedings after the caveat is entered.
Chap. XIII. Action of ejectment. 1. Right of entry. Entry upon disseisor by disseisee. Do. by heirs of disseisee. Do, by devisees of disseisee. Entry upon bargainor by those claiming under bargainee. Entry upon widow of bargainor by claimants under bargainee. Entry upon heirs of disseisor. Entry in case of abatement. Entry in case of intrusion. Entry by wife notwithstanding default of husband. Entry by reversioner notwithstanding default of tenant for life. Entry by wife notwithstanding conveyance by husband. Tenant may require claimant to prove his right of entry. In some cases defendant not at liberty to prore outstanding title. Estate in trustee cannot be set up against cestui que trust. Tenant cannot set up title against that under which he entered.
But tenant may show that the lease continues. Where the tenancy is ended by notice to quit. When proof of notice to quit is dispensed with. Limitation of right of entry.
2. Of the declaration.
Where there are several counts. Who may be joined in same count. Nature of each count. Notice to tenant. How notice is served.
3. Conditional order; and judgment by default. 4. Entering into common rule; plea of general issue; and effect thereof. 5. Order of survey. 6. Death of parties. 7. Amendment of declaration. 8. Proof at the trial.
Claimant of lands must have paid taxes. What is to be shown where the claimant is a purchaser of land sold for taxes. Where plaintiff claims under a mortgage or trust which is satisfied. Where claimant is a vendor and defendant is a vendee entitled to specific execution. On question of boundary, parol evidence may be given of marked trees upon the line. Entry may be admitted to identify the calls of a patent.
9. Verdict of the jury. 10. New trial. 11. Judgment; and legal effect thereof.
No bar in subsequent action. No evidence of title at the date of the demise. Form of the judgment. How defendant may get the value of his improvements.
C. 11, s. 1, p. 425. • Every poor person who shall have cause of action, shall have, by the direction of the court before whom he would sue, writ or writs according to the nature of his case, nothing paying for the same. I R. c. 1819, p. 481, s. 1, 2. Taken from 11 H. 7, c. 12.
CHAP. XIV. Writs of right. 1. Limitation of action. 2. Writ to institute the action. 3. Count. 4. Conditional order; and judgment by default. 5. Where the first writ is not executed. 6. From the defendant's appearance until the mise is joined. Plea of non-tenure. Plea of joint tenancy.
Plea of several tenancy. Other pleas in abatement. Demurrer to count. Plea in bar. Replication. Mise. Defence by other than the tenant.
7. Death of parties. 8. Trial of the Mise.
What may be given in evidence under the mise. Actual possession need not be proved. Where the demandant claims as devisee. Comparison of rights. Rules in relation to proof generally.
9. Effect of nonsuit. 10. Verdict and judgment.
Damages may be assessed. Form of general verdict. Special verdict may be found. New trial may be granted. Statute of jeofails extends to writs of right. Form of judgment for demandant. Do. for tenant. In some cases the judgment is no bar. How tenant may get value of his improvements.
Chap. XV. Dower. 1. Of what a widow may be endowed. Where the husband was seized. Trust estates. Mines of coal, lead, &c.
2. Assignment of dower by the heir. 3. Widow's quarantine. 4. Commencement of action for dower. 5. Proceedings at rules. 6. Pleas by the tenant.
Where dower has been received of another tenant. Where there is a jointure in lieu of dower. Where the wife leaves the husband. Where the husband lost the land in which dower is claimed.
7. Verdict and judgment.
Where the husband dies seized. Where the husband has aliened. How he assign ment of dower is made. Where the verdict is for the tenant. When a judgment in dower is no bar.
Chap. XVI. Suits relating to lands not before mentioned. 1. Complaint of unlawful entry or detainer.
To whom remedy extends and limitation thereof. Form of complaint. Affidavit that complaint is true. Warrant to officer. Service and return of warrant. How subpænas for witnesses shall be issued and executed. How court is constituted. Trial by jury. Form of verdict. New trial. How judgment shall be entered and executed. Effect of judgment. How judgment may be reversed and consequence of reversal.
2. Monstrans de droit. 3. Action of waste. 4. Partition. Chap. XVII. Taxing costs. Attorney's fee. Tax on law process. Clerk's fees. Fees of sheriff, ser
· C. 15, s. 7. p, 490. On the subject of dower, in case of improvements by the heir, or alienation by the husband and improvement bythe alienee, Mr. Robinson cites the English law and the decisions in New York and Massachusetts, which differ in one respect; in New York the widow is not entitled to the advantage by rise in the value of the land after alienation by the husband, in Massachusetts she is entitled to the advantage of rise in value independent of any improvements made by the alienee.
The Virginia reports appear not to furnish any decisions on this subject.
geant, coroner and constable. Where a notice is served, whether by an officer or not. Costs incurred in taking depositions. Allowance to witnesses for attendance. Deductions from the costs incurred by the success
Chap. XVIII. Executions. 1. General rules applicable to the different sorts of execution.
Within what time first execution must issue. To whom directed. Form of execution. When returnable. Teste. Authority of attorney to control execution. Sheriff must return how he has executed the process.
2. Writ of fieri facias.
Lien upon goods and chattels. When levy may be made. What may be levied on. Money may be taken. Goods of the debtor conveyed by a deed void as to creditors. Where the conveyance is voluntary and by a person indebted at the time. Where a person not indebted at the time makes a gist which is not recorded nor possession delivered. Where the debtor has been in possession five years under a loan. Where the debtor has sold his goods without delivering possession. Absolute deed by feme immediately before marriage good against husband's creditors. Sale by father to child may be good though child reside in father's family. Sale may be good though former owner retain possession, if made by a third person and if public and notorious. Mortgagor or grantor in deed of trust may retain possession. What power given to the grantor will make a deed of trust fraudulent. Deed of trust or mortgage must be duly recorded. Purchaser under execution not affected with notice of unrecorded deed. Equitable interest of grantor in mortgage or trust cannot be levied on. Deed of trust by feme though not recorded good against husband's creditors. Remedy of creditors where grantor in void deed has died. If personal representative have possession, goods conveyed by decedent may be levied upon. Where decedent had an equitable but not a legal title. Where property of decedent is in possession of legatees or distributees. Where the property is upon leased premises. Where partnership effects are taken. When slaves may be taken. To whom increase of slaves belongs. What constitutes a levy. Bond for the forthcoming of property at the day of sale. When sheriff may require an indemnifying bond. How, when and where sale shall be made. Authority of sheriff' to receive money. Sheriff's commissions and other charges. How sheriff is to dispose of money made under execution.3 Power of court to direct proper disposition of money. Where
1 C. 18, s. 2, p. 511. It has been decided in Virginia that money may be levied under a fi. fa. notwithstanding the old maxim that it has no ear-mark. It is not stated by Mr. Robinson whether there is any distinction in this respect between the precious metals and bank notes.
* C. 18, s. 2, p. 527. In regard to the property in the increase of slaves it has been held in Virginia that such increase born during a temporary interest in the mother belongs not to the person having the temporary interest, but to the owner of the mother.
3 C. 18, s. 2, p. 533. According to the law of Virginia the sheriff must bring into court the money received by him on a levy of an execution, and the court orders to whom it shall be paid over; though in modern practice the sheriff in fact pays it over to the judgment creditor, where no claim is interposed.
there is an injunction. Return upon fieri facias. Where goods remain in sheriff's hands unsold. Effect of levy in preventing new execution.
3. Writ of elegit.
Where debtor parted with legal estate after term commenced. Where debtor parted with an equitable estate after term commenced. Where debtor had conveyed previous to term by deed not recorded. How long lien of judgment will operate against debtor. Operation of lien as against debtor's alienees. As to the quality of estate which may be extended. As to the moiety which should be extended where debtor has aliened. As to the moiety which may be extended where there are several judgments. Form of the inquisition. Where tenant by elegit is evicted.
4. Writ of capias ad satisfaciendum. When this process should not be executed.? To what jail the debtor shall be committed. Creditor liable to jailor for support of debtor. Where debtor escapes. Debtor may tender property in discharge of his body. Debtor may discharge his body by paying money. Debtor may go out of prison upon giving security to keep within certain bounds. Debtor may go out of custody upon obtaining an injunction. Debtor may be discharged upon making oath to his insolvency. Insolvent's whole estate vested in sheriff. Sheriff to make sale of insolvent's estate. Sheriff to return schedule and account of sales. Where insolvent delivers up debts or estate in possession of another. Nature of creditor's lien where debtor is taken in execution, How new execution may issue where debtor has been charged in execution. Where debtor is not discharged by plaintiff's consent. In case debtor die in execution. Where debtor is discharged by taking oath of insolvency. Where debtor is discharged for non-payment of jail fees. Where debtor obtains discharge by tendering property insufficient or incumbered.
5. General rules in relation to issuing a second execution.
Where sheriff makes return on first execution. Where return day has arrived and first execution is not returned. Where return day of first execution has not arrived. When cost of second execution is borne by plaintiff and when by defendant. Limitation of right to sue out new execution.
6. Executions in particular cases. Against a corporation. Distringas after judgment in detinue. Extendi facias against an heir after judgment on bond of ancestor. Where execution issued by a justice is returned no effects.
7. Power of court to quash execution.
Where it issues against a person without a judgment against him. Where the record shows the judgment to be discharged. Where the discharge of the judgment does not appear of record. Who may move to quash.
8. Power of court to direct clerk to issue execution.
Chap. XIX. Scire facias upon judgment or recognisance. 1. In what cases writ should issue.
1 C. 18, s. 4, p. 549. The laws of most of the States provide that a memhe: he legislature shall have the privilege of exemption from arrest. The law of Virginia is the same, but it provides that when a member under arrest is liberated under his privilege, he shall return himself as a prisoner after his privilege ceases.
Where execution has not issued within the year. Where there is a change of parties by death. Where judginent is joint against two, scire facias against representative of first decedent. For or against administrator de bonis non. Where feme plaintiff or defendant marries after judgment. Where husband and wife recover judgment and wife is survivor. Where money becomes payable under judgment after rendition thereof. Where goods, land or debtor have been taken in execution. Upon recognisance of special bail, criminal or witness.
2. Limitation of writ. 3. How writ is sued out. 4. Form of writ.
To whom directed. Judgment must be correctly stated. Recognisance must be set forth as it is. Where several recognisances of special bail in one cause. Matter posterior to judgment or recognisance. When scire facias is returnable.
5. Service and return of writ. 6. Proceedings at rules.
Award of new process. Award of execution on return of process executed. Do. on return of two nihils. When writ of inquiry is proper. Where defendant appears.
7. Amendment of sheriff's return. 8. Change of parties to writ. 9. Pleas to writ. 10. Final judgment.
By default. Where bail surrenders principal. Where there is a confession. On plea of no such record. No damages for detention of debt can be given in a scire facias.
Chap. XX. Motions for judgment and award of execution. 1. General rules applicable to motions.
Notice to defendant. Where judgment is for defendant. Judgment for costs. Exceptions to judgment.
2. Motion on forthcoming bond.
Tenor of obligation. Form of condition. Sealing and delivery. Forfeiture of bond. Return of forfeited bond to clerk's office. Forfeited bond has force of judgment. How far forfeited bond discharges previous judgment. Consequence of quashing forthcoming bond as faulty. Where the bond is a good common law bond. Who should be plaintiff in the motion. Judgment on bond by default. Judgment against one on notice to several. Judgment where defence is made. When the execution is part of the record. Judgment in appellate court
3. On three months replevy bond taken for rent. 4. By surety against principal. 1
Valid judgment against surety. Proof of suretyship. Proof of payment by surety. Judgment against principal. Judgment against heirs. What will constitute part of the record.
5. By surety against co-surety. 6. By bail against principal.
C. 20, s. 4, p. 604. The law of Virginia provides a very convenient proceeding as between principal and surety, whereby the surety, in case of judgment and execution against him on the debt for which he is surety, may by motion merely, in the same court, have execution on the same judgment against the principal.