Act of January 9, 1818–January 1, 1820. R. C. ch. 77. 10. 7. The clerks of the several courts aforesaid, shall respectively, on or before the fifteenth day of December in each year, account for on oath to the auditor of public accounts and pay into the public treasury, all the taxes which shall have been received by them, by virtue of their offices, previous to the first day of September in such year, after a deduction of five per centum therefrom, as a commission for their service in collecting the said taxes; and in case of fraud herein by any clerk, he shall, on conviction thereof, be deprived of his office.(1) 1784, c. 70, and 1800, c. 255, R. C. 11. § 13. Upon the appointment of a clerk of the court of appeals, of the general court, or of either of the chancery district courts, it shall be the duty of the clerk so appointed to enter into bond, with sufficient surety, to be approved by the court of which he is the clerk, in the penalty of ten thousand dollars, payable to the governor for the time being and his successors, and conditioned for the faithful performance of the duties of his office. The bond when so executed shall be acknowledged by the clerk, or proved by two witnesses, and shall be entered of record in the court of which he is the clerk. And if any such clerk so appointed shall fail herein, he shall for such failure forfeit his office. Feb. 19, 1816, c. 32. 12. 14. The bonds of the clerk of the general court, and of the several clerks of the chancery district courts aforesaid, shall, after being recorded in the said courts respectively, be certified within sixty days thereafter to the clerk of the court of appeals, to be by him recorded and safely kept, which it shall be the duty of the said clerk of the court of appeals to do. Ibid. 13. 15. The bonds hereby required may be put in suit from time to time, for the benefit and at the costs of any person or persons, bodies politic or corporate, who shall be aggrieved by the non-feasance, misfeasance or malfeasance of the clerks aforesaid, until the whole penalties shall be recovered. Ibid. 14. 6. All the penalties by this act imposed shall be prosecuted for and recovered by bill, plaint, or information, in any court of record, one moiety to the use of the informer, and the other to the use of the commonwealth. 1784; 1792, c. 70, R. C. Act of February 17, 1823, ch. 36. 15. § 1. It shall and may be lawful for the security or securities of any clerk of the county or other court, or of the coroner of the county, to enter upon the record of such court, when in session, that he, she, or they, their heirs, executors, or administrators, or either of them, are no longer willing to remain bound in such securityship, and thereupon it shall be the duty of such court to make an order requiring the said clerk or coroner to appear at the succeeding term, and execute new bond and security, as if none had ever been given by him; and it shall be the duty of the clerk or coroner to give such bond and security; and the security or securities, their heirs, executors, (1) By act of March 3, 1840, c. 2, § 45, p. 18, "The clerks of the several county and corporation courts, superior courts of law and chancery, general court and court of appeals, shall each and all respectively, on or before the 15th of Dec. in every year, account for, on oath, with the auditor of public accounts, and pay into the treasury, the seve ral amounts of taxes by them respectively received, previous to the 1st of September in each year, in pursuance of the present or any future act or acts of assembly, imposing taxes for the support of government, de ducting thereout five per centum for receiving and paying the same; and on failure therein, it shall be lawful for the general court to render judgment against the said clerk, for a penalty of six hundred dollars, for such failure, and he shall be subject to an additional fine of six hundred dollars for every year during his failure to account and pay; the said penalties to be recoverable with costs by the auditor, on motion in the general court, for the use of the commonwealth, after ten days notice thereof to the delinquent." Act of February 17, 1823, ch. 36. or administrators, bound in the original bond, shall be released and absolved from all responsibility for any act of the said clerk or coroner, done after the execution of the new bond required by this act; but the said responsibility shall continue in full force, for all the actings and doings of the same clerk or coroner, prior to his giving such additional bond. (2) 16. § 2. If the clerk or coroner, so required to execute such new bond, shall refuse, or omit to execute the same, he shall forfeit and pay, for the use of the literary fund, a sum not exceeding five hundred dollars, nor less than fifty dollars, to be recovered by action of debt in any court of competent jurisdiction; and shall, moreover, be prosecuted and punished as he would be by law for any other breach or omission of official duty; and shall be removed from office upon conviction of default herein. 17. § 3. Whenever the security of any clerk or coroner shall remove out of the commonwealth, or become insolvent, on a rule made, notifying such clerk or coroner of such removal or insolvency, the same proceeding may be had, and the same remedies applied as in the case of securities notifying the clerks and coroners, as provided in the foregoing section. See tit. JUDICIARY-respective divisions. (2) See Chapman v. Chevis, 9 Leigh, 297; and Perkins et al. v. Giles, Gov. Ibid. 397. By act of March 7, 1826, Ses. Acts 1825-6, c. 15, § 15, 16, Sup. R. C. c. 103, § 15, 16, p. 133, “The superior courts of chancery were required once in every three years to appoint commissioners to examine the fee books of their clerks; and to ascertain and report to the courts whether or not the fees are charged conformably to law; and the clerks were required to keep regular fee books, and to submit the same to the inspection of the said commissioners. And the chancellor in each district is required, from time to time, at least once in five years, to enquire into the sufficiency of the securities given by the clerks in their respective courts, and if, upon such enquiry, he deems it proper to require additional security, he may so order it; and if the clerk shall fail to obey such order, he shall forfeit his office, and the chancellor is required to transmit to the attorney general a copy of the proceedings requiring such security; and the attorney general is required thereupon, to institute a prosecution against said clerk in the general court." By act of February 27, 1829, Ses. Acts 1828-9, c. 27, p. 29, Sup. R. C. c. 126, p. 181, it is prescribed, "That it shall be the duty of the clerks of the several county and corporation courts within this commonwealth, to index all deeds hereafter admitted to record in the said courts respectively, and the offices thereof, as well in the name of the grantee as of the grantor." By act of April 9, 1831, Ses. Acts 1830-31, c. 21, p. 79, Sup. R. C. c. 125, p. 181, it is provided: "That from and after the commencement of this act, it shall be the duty of the clerks of all the courts of this commonwealth, to make and keep an index of all orders made by such courts respectively: also, an index, in the names of both plain tiffs and defendants, of all final judgments and decrees rendered by their respective courts; also, a like index of all executions issued by such clerks respectively and an index of all wills, inventories and appraisements, executors', administrators' and guardians' accounts, admitted to record in their several courts.' By act of January 19, 1837, c. 64, p. 40, it is provided: "That the clerks of the courts of appeals, and the clerks of the circuit superior courts of law and chancery of this commonwealth shall, on or before the first day of November, annually, report to the clerk of the house of delegates, the number of suits commenced within their respective courts for the previous year, ending the thirtieth day of August; the number pending at the time of such report; the number decided, and the number of days their respective courts were actually in session. From which reports the clerk of the house of delegates shall make a condensed statement or abstract, and report the same to the legislature. 2. "That if any clerk shall fail to make the report herein required, he shall, on motion of the auditor of public accounts, in the general court, (ten days previous notice being given,) be fined at the discretion of the court, in a sum not exceeding fifty dollars, for the use and benefit of the literary fund; and it shall, moreover, be the duty of the clerk of the house of delegates to report to the auditor of public accounts, such of the clerks as have failed to make the report herein before required." And by act of April 6, 1838, c. 88, p. 69, the preceding law was amended, and the form of the report previously required was directed to be made in the following form: By act of April 2, 1839, c. 12, § 4, p. 12, it is provided: "That if any will, containing devises or bequests for the establishment or endowment of any school, academy or college, shall be admitted to probate in any of the courts of this commonwealth, other than the circuit superior court of law and chancery, it shall be the duty of the clerk of such court to certify the fact of such probate, and send an attested copy of the will to the circuit superior court of law and chancery having jurisdiction over the place of granting the certificate of probate as aforesaid." By act of February 28, 1840, c. 7, § 2, p. 22, it is prescribed, "That in all cases where the clerks of the several county and corporation courts are empowered to make deeds for lands sold for non-payment of taxes, it shall be lawful for the deputy clerks to make and execute such deeds, and the same shall be as valid as deeds executed by the clerks. By act of March 13, 1840, c. 53, p. 46, defendants are permitted to confess judgments or decrees in the clerk's office of the court in which the suit is instituted, and the clerks are required to enter every judgment so confessed among the office judgments of the court, and every decree in the proper order book, after the orders of the previous term. And by the third section of the same act it is made lawful for the clerk of the circuit superior court of law and chancery to enter orders at rules appointing guardians to defend infant defendants in suits depending in the said courts, subject at all times to be set aside by the courts when in session. By act of February 19, 1840, c. 54, p. 47, it is provided: "That it shall be the duty of the several clerks of the county and corporation courts of this commonwealth in the list of deeds required to be set up at the principal door of their respective courthouses, to include all deeds admitted to record during the terms of their courts. Any clerk failing to perform the duty aforesaid, shall forfeit and pay, for every such neglect of duty, the sum of one hundred dollars, recoverable with costs on action or information in the circuit superior court of law and chancery for the county in which such clerk has his office, one moiety to the informer and the other to the commonwealth for the benefit of the literary fund." By act of February 19, 1840, c. 55, p. 47, it is also provided: "That if the deed book or any other book containing the record of any conveyance, will, testament or other writing, or papers which may lawfully be recorded in any court of this commonwealth; or containing the record of any suit, judgment, decree or order of any court be stolen, destroyed or mutilated, it shall be lawful for the clerk of such court, upon the production to him of the original writing so recorded, or a copy thereof duly attested, or a copy of any such record, judgment, decree or order duly attested, to record the same again, upon the application of any person who may require it to be done, and to charge to such person the same fee as may have been chargeable for recording the same in the first instance. Every such record shall state whether it was made from the original writing or a copy thereof, and also the form of its authentication or attestation; and thereupon the conveyance, will, judgment, decree, order or other writing so recorded, shall be held and taken to be duly recorded, and the record thereof, or a copy of the same, shall in like manner have the same effect as the original record thereof in the book stolen, destroyed or mutilated, as a copy thereof would have been entitled to. "That where any judgment, decree or order has been made, rendered or entered in any court of this commonwealth, and the record-book containing such judgment, decree or order shall have been stolen, destroyed or mutilated, or shall hereafter be stolen, destroyed or mutilated, it shall and may be lawful for such court, if there be found the minute-book, order-book, verdict of the jury, decree or any other paper or evidence which was the foundation of the entry, judgment, decree or order so stolen, destroyed or mutilated, to cause the clerk of the said court to enter such judgments, orders or decrees de novo, and such judgments, decrees or orders, so as aforesaid re-entered, shall have the same force and effect as the judgments, decrees or orders originally entered, and the said services shall be performed by the said clerk or clerks without any compensation." 1. § 1. Where a husband doth lose the lands of his wife by default, it is unreasonable that the wife, after the death of her husband, should have no other recovery but by writ of right: 2. § 2. Be it therefore enacted, &c. That a woman after the death of her husband, shall not be injured by such default, but shall, notwithstanding, retain her right of entry, and may prosecute the same by any real or mixed action that may best suit the case. If the tenant shall object to the wife's claim, that he entered by judgment, and it be found that his entry was by default, to which he shall answer, if required, he shall then further answer and shew his right in like manner as in the writ he first purchased against the husband and wife; and if he can shew such right, the wife shall gain nothing by her writ; but, if the husband absent himself and will not defend his wife's right, or, against the wife's consent, will render the wife's lands in any suit instituted against the husband and wife, for lands which are her inheritance during the coverture, then the wife may come at any time before judgment, and defend her right. West. 2, 13; Edw. 1, C. 3. 3.3. If tenant in dower, tenant by the courtesy, or otherwise for term of life, or by gift, where the reversion is reserved, do make default, or, will give up, the heirs, or they unto whom the reversion belongeth, shall be admitted to their answer if they come before judgment; and if, upon such default or surrender, judgment happen to be given, then the heir, or they unto whom the reversion belongeth, after the death of such tenants, shall in no wise be injured by such default or surrender. West. 2, 13; Edw. 1, c. 4. 4. § 4. The dying seized hereafter of any disseizor, having no right or title, shall not be such descent in law, as to take away the right of entry from such, as, at the time of the death of the disseizor, had lawful title of entry, except such disseizor hath had peaceable possession five years, next after the disseisin committed, without entry or continual claim of such as have lawful title. 38 Hen. 8, c. 33. 5. § 5. No feoffment, or other conveyance, or other act or acts hereafter to be made, suffered, or done by the husband only, of any lands, tenements, or hereditaments, being the inheritance or freehold of his wife, during the coverture between them, shall in any wise be, or make, any discontinuance thereof, or be prejudicial or hurtful to the said wife or her heirs, or to such as shall have right, title, or interest to the same by the death of such wife; but the said wife or heirs, and such other to whom such right shall appertain after her decease, shall and may then lawfully enter into all such lands, tenements, and hereditaments, according to their rights and titles therein; any such feoffment, or other conveyance, or act, to the contrary notwithstanding. "Actions popular, prosecuted by collusion, shall be no bar to those which be prosecuted with good faith." Act of 28 Nov. 1780, R. C. c. 170. Persons claiming rights of personal property, being under disability of infancy or coverture, when their rights accrue, may prosecute any remedy in equity they are en titled to, by prochein amy, at any time while the disability continues, no matter how long; or, in their proper persons, within five years after the disability removed; the right to such remedy being within the saving of the statute of limitations. Hansford et ux. et al. v. Elliott et ux. et al. 9 Leigh, 79. COMMON LAW. Common law ordained. Ord. of Convent. July 3, 1776. R. C. ch. 38. The common law of England,(a) all statutes or acts of parliament made in aid of the common law prior to the fourth year of the reign of king James the first, and which are of a general nature, not local to that kingdom, (b) together with the several acts of the general assembly of this colony now in force, so far as the same may consist with the several ordinances, declarations, and resolutions of the general convention, shall be the rule of decision, and shall be considered as in full force, until the same shall be altered by the legislative power of this colony.. [See tit. AcTS OF PARLIAMENT.] May, 1776, c. 5, § 6, 9 Stat. Larg. 127; Act of March, 1661-2, 2 Stat. Larg. 43. (a) To enquire from what source the force of the common law of England, in this state, is derived, would, at present, be a useless speculation; since all agree, that it is the general law of the land, where it is not taken away by our statutes. Pendleton, J. in Browne v. Turberville, 2 Call, 404. As the common law of England was, and is, the common law of this country, and as an appeal from the courts of Virginia lay to a tribunal in England, which would be governed by the decisions of the courts, the decisions of those courts, made before the revolution, have all that claim to authority, which is allowed to appellate courts. Those made since the revolution lose that title to authority, which was conferred by the appellate character of the tribunal which made them, and can only be considered as the opinions of men distinguished for their talents and learning, expounding a rule by which this country, as well as theirs, professes to be governed. Per C. J. Marshall, in Murdock, &c. v. Hunter's rep's, 1 Brock. Rep. 140-1. Where a distinction is of ancient date, and the attempt to overrule it has itself been overruled since the revolution, such modern adjudication can be considered in no other light than as the true exposition of the ancient rule. Livingston v. Jefferson, 1 Brock. R. 203, 210. (b) The rigid doctrines of the ancient common law, must be liberalized according to the circumstances of the case, and the manners and genius of the people; so as to ef fect a reasonable and substantial compliance therewith, rather than a literal one. See Coleman v. Moody, 4 H. & M. 19-20-21; Thornton v. Smith, 1 Wash. 83; Baring v. Reeder, 1 H. & M. 161-2. The common law, adapts itself to the varied situation and circumstances of the country. Roane, J. in Findlay v. Smith et ux. et al. 6 Munf. 148; and see 2 Mod. 238. Private justice, moral fitness, and public convenience, when applied to a new subject, make common law, without a precedent; much more, when received and approved by usage. Per Willes, J. in Millar v. Taylor, 4 Burr. 2312; and Abbott, C. J. in Stockdale v. Onwhyn, 5 B. & C. 173. "The common law of England, is not to be taken in all respects to be that of America. Our ancestors brought with them its general principles, and claimed it as their birth right; but they brought with them and adopted only that portion which was applicable to their situation." Per Story, J. in Van Ness v. Pacard, 2 Peters's U. S. R. 144. The common law has been adopted by the legislature of Virginia. Had it not been adopted, I should have thought it in force. When our ancestors, &c. See C. J. Marshall, in Livingston v. Jefferson, 1 Brock. R. 211. A practice or usage, however general, introduced into this country since its settlement, and in opposition to the common law, can have no force on the ground of custom, because it lacks the essential ingredient of a good custom, it is not immemorial. Per Cabell, J. deliv. court's op. in Harris v. Carson, 7 Leigh, 632, 636-7. 20 |