Act of April 16, 1831, Ses. Acts 1830-31, ch. 11. Sup. R. C. ch. 109. 61, § 2, 3. p. 38, 39.] [There shall be held two terms of the said court in every year, for the trial of all criminal causes now pending in, or which may hereafter be brought before the said court. One of the said terms shall commence on the seventeenth day of April, and the other on the twenty-seventh day of October, and each of the said terms shall continue for fifteen juridical days, if the business of the court shall require it: Provided however, That nothing herein contained shall be so construed as to prevent the said judge during the terms aforesaid, from granting injunctions, writs of ne exeat, certiorari, and other process heretofore usually granted in vacation. Act of March 29, 1839, c. 57, § 1.] [The terms of the said circuit superior court now directed by law to be holden for the trial of civil causes, shall commence on the fifteenth of November and the second Monday in May, and shall continue for forty juridical days, for the trial of suits and causes upon the common law side of the court; and for forty juridical days for the trial of chancery causes, if the business of the court shall require it, and no longer; and at the said terms for the trial of civil causes, the said court shall have no jurisdiction over criminal causes. Ibid. § 3.] And the clerk of the said court shall receive the allowances prescribed by the act, entitled "an act concerning the superior court of law of Henrico county," passed January 29, 1823, [the sum of one hundred dollars annually.] Acts 1822-3, c. 19, § 3. The said superior courts for Henrico shall be held at the capitol, but if, in the opinion of the judge, it should not be convenient to hold the sessions in the capitol, they may be held in the courthouse of Henrico county, or in the city hall of Richmond. 63. 38. If there be more than one defendant in any suit in chancery, brought or pending in any circuit superior court, the said suit may be instituted in the circuit superior court of the county or corporation wherein either of them may reside; and the clerk shall and may issue process against the other defendant or defendants, directed to the counties or corporations in which they may be found; and on the return thereof, the like proceedings shall be had, as if all the defendants resided within such county or corporation: Provided, That any such circuit superior court sitting in chancery may, at any time, on motion and for good cause shewn by any defendant or defendants residing in any other county or corporation than that wherein such suit in chancery may be brought, or for reasons appearing to the court itself, order any such suit to be removed to the circuit superior court of the county or corporation wherein the defendant or defendants principally interested or chargeable may reside; and upon such order made, the original papers thereto belonging shall be transmitted by the clerk to the clerk of the court to which the cause shall be so ordered to be removed, together with a copy of all orders and rules previously made, and a statement of all costs previously incurred therein Whereupon, the cause shall be further proceeded in, heard, and determined by the court to which the same shall be so removed as if it had been originally brought there, and the costs attending such removal of any cause, shall be charged to the plaintiff or plaintiffs, or any one or more of them, or to the defendant or defendants, or any one or more of them as the court ordering such removal, shall think just and direct. Act of March 8, 1819—January 1, 1820. R. C. ch. 69. 64. § 72. Each superior court for a county in which a district court may have been holden, shall have, exercise, possess, and enjoy the same jurisdic tional salary allowed to the former judge, and does not in terms or by necessary implication take it away, it was not the intention of the legislature to take it away; and 2. That if the legislature had intended to take the additional salary away, and had so enacted, such enactment would have been unconstitutional. Com. v. Clopton. Act of March 8, 1819-January 1, 1820. R. C. ch. 69. tion, to hear and decide all questions arising on motions made, either by the security against his principal, to recover money paid under a judgment of the said district court, or of a security or securities against others jointly bound with him or them in the same obligation, where the principal obligor proves insolvent, to recover their and each of their respective shares and proportions of the debt paid under the judgment of the said district court, as the said district court had, previous to the passage of the act, entitled, an act to organize and establish a superior court of law in each county of this commonwealth. Feb. 14, 1811, c. 65, ed. 1812. 65. § 75. The said courts shall have jurisdiction respectively in all causes, matters and things in the circuit courts respectively depending, at the commencement of this act; and no discontinuance shall take place in any case whatsoever, civil or criminal, which shall be depending in any circuit court at the commencement of this act, by reason of the passing thereof, but the same shall be therein tried and determined, as if this act had never been made. See 1792, c. 66, R. C. 66. § 12. The circuit courts shall have power to try all issues and enquire of damages by a jury, in all causes before them, and to determine all questions concerning the legality of evidence and other matters of law which may arise; for which trials, the court shall cause the sheriff attending them, to summon, impannel and return jurors. 1792, c. 66, R. C. 67. § 13. The said courts shall hear and determine motions against sheriffs or other officers, and attorneys at law, for refusing to pay money due to clients, for the directors of the James river, Potomac and other incorporated' companies, and for securities against their principals, or each other, for contribution, in all cases, and according to the rules prescribed by law. Ibid. Act of April 16, 1831, Ses. Acts 1830-31, ch. 11. Sup. R. C. ch. 109. 68. 28. The said circuit superior courts shall not, in future, adjourn any matter or question of law, arising in any civil case to the general court; but they may in any criminal case, with the consent(1) of the person accused, adjourn a question(b) of law to the general court, which may be there argued and decided, though such accused person be not present. Act of March 8, 1819-January 1, 1820. R. C. ch. 69. 69. 53. If either of the judges of the general court be interested in any suit, which in the case of any other person would have been proper for the jurisdiction of such judge, it shall be lawful to institute such suit in any court within an adjacent circuit; and the process from such adjacent court may be served in the circuit to which such judge shall be allotted, or in which he shall reside; and proceedings shall be thereupon had. Feb. 10, 1808–Jan. 1, 1809, c. 121, ed. 1808. 70. § 54. When any judge of a circuit court shall be interested in any cause depending in his circuit, or related to either of the parties, or in any manner situated so as to render it improper in his judgment(a) to preside at (1) The consent of the accused must appear on the record; it cannot be presumed. The Commonwealth v. William Garth, gen'l ct. July T. 1831, 3 Leigh, 761; The Commonwealth v. Reynolds, 4 Leigh, 663; The Commonwealth v. Young, 9 Leigh, 638. (b) It must be a question adjudicated by the adjourning court. This law intended the adjournment only of such questions as might be decided by the general court; and the decisions whereof must be entered as the judgment of the superior courts, and not such as had already been decided by the superior courts. The Commonwealth v. Hening, Virg. Cas. 324, 325, 328; Prebble v. Boghurst, 1 Swanst. 320. (a) When a judge of a circuit court is so situated as to render it improper, in his Act of March 8, 1819-January, 1, 1820. R. C. ch. 69. the trial, it shall be lawful for such judge to cause the same to be removed to the next circuit, and to the most convenient court in that circuit, for trial. Feb. 4, 1809, c. 6, ed. 1812. 71. § 29. When in any prosecution for an offence against the laws of this commonwealth, depending before any superior court of law for the county, the judge of such superior court shall be so nearly connected with the accused, or with the person upon whom the offence charged may be alleged to have been committed, as to render it unfit that the judge assigned to such superior court should preside on the trial, or when, for any other cause, it may be unfit that such judge should preside on such trial, he shall enter upon the record the cause of such unfitness, and that he is unwilling to preside upon the trial. Feb. 7-March 1, 1814, c. 18. 72. 30. If the offence charged be cognizable in the county court, the judge shall forthwith cause the proceedings thereupon to be certified and transmitted to the court of the county having jurisdiction thereof; and it shall be the duty of such county court to proceed to trial, judgment and execution therein, in the same manner in every respect, as if the proceedings so certified had originated in that court. Ibid. 73. § 31. If the offence charged be not cognizable in the county court, the cause shall be continued until the next term, and the clerk of the superior court shall forthwith certify to the general court, the pendency of such prosecution, and a copy of the entry, testifying the unfitness and unwillingness of the judge to preside at the trial. The general court shall thereupon assign to the circuit, in which such superior court of law may be, some other judge of the general court whose duty it shall be to hold all the courts within that circuit at their next succeeding terms, and to continue to hold them, from term to term, until such prosecution shall have been finally tried and decided. During the time that the judge, so designated by the general court, shall hold the courts within that circuit, the judge, who had been assigned thereto by law, shall hold all the courts within the circuit, which by law had been assigned to the judge so designated by the general court. Ibid. Act of April 16, 1831, ch. 11. Sup. R. C. ch. 109. 74. § 52. The said circuit superior courts shall have power, on motion made in term, for good cause shewn,(c) to change the venue in any suit at law depending in any such circuit superior court, to any other circuit superior court within the same circuit, or to the most convenient circuit superior court within an adjoining circuit, as shall seem most conducive to a fair and impartial trial: or, in vacation, upon petition preferred to any judge of the circuit in which suit shall be depending, setting forth good and sufficient reasons for such change of venue, such petition being verified by the oath of the party, and the allegations thereof being satisfactorily proved by affidavits, or the change of venue being consented to by the adverse party, such judge of the circuit, may order a change of venue to any circuit superior court in the same circuit, or to the most convenient circuit superior court in an adjoining circuit: Provided, That such order for a change of venue, in vacation, shall be made only by consent of the parties, or upon reasonable notice in writing, judgment, for him to preside at the trial of a cause, it is lawful for him, under this section, to remove the cause to another circuit. In such case, however, the propriety of removing or refusing to remove depends on the self-consciousness of the judge, from whose decision no appeal lies. Boswell v. Flockheart, 8 Leigh, 364. (c) An application by a defendant for a change of the venue, on the ground of general prejudices existing against him in the town where the cause is to be tried, should be supported by the affidavits of disinterested persons. Boswell v. Flockheart, 8 Leigh, 364. Act of April 16, 1831, ch. 11. Sup. R. C. ch. 109. given by the party making the application, to the adverse party, of the time and place of making the same: And provided, That the general court shall have power to change the venue, as heretofore, from circuit to circuit. 75. § 50. Writs of habeas corpus may be granted by the said circuit superior courts in term, or in vacation by any judge of the circuit superior court, in manner prescribed by law. And where any person shall be committed in any civil action to the jail of any county or corporation, for any cause or matter cognizable in the said courts, it shall be lawful for the clerk of the circuit superior court of the county wherein such commitment shall be, and he is hereby required, upon the application of such person, and a certificate of his or her being actually in jail, to issue a writ of habeas corpus cum causa, to remove the body of such prisoner into the circuit court jail, and the cause of his commitment into such circuit superior court, returnable on the first day of the succeeding court, if issued in vacation, and on the last day of the term, if sued out whilst the court is sitting: Provided however, That such writ of habeas corpus cum causa, shall not be awarded, after issue or demurrer joined in the cause.(d) 76. § 33. If any person or persons shall desire to remove any suit in chancery, or at law, pending in any county or corporation court, into the circuit superior court of law and chancery of the county or corporation, (such suit at law being cognizable in such circuit superior court,) a certiorari for such removal may be granted by the circuit superior court, upon motion, and ten days previous notice thereof given in writing, to the adverse party; or in vacation, the party desiring such writ, shall, by petition to the judges of the circuit superior courts, set forth his or her reasons, and make oath or affirmation before a magistrate of the truth of the allegations of such petition; whereupon, any of the said judges may order the certiorari to issue, or may reject such petition, as to him shall seem just, provided ten days previous notice of the time and place of applying for such writ, be given in writing to the adverse party and upon the order in vacation, allowing the certiorari, the clerk Ishall issue the writ. And it shall be lawful for any circuit superior court, in term, or for any judge of the said circuit superior courts, if it shall appear to such court, or to such judge, that justice cannot be done in any cause in chancery, or at law, pending in any county or corporation court, and that it has come to the knowledge of the party, after answer filed in a suit in chancery, or issue joined, or writ of inquiry awarded, in a suit at law, to award a writ of certiorari, in like manner, and upon like terms, as herein above prescribed. But if any suit at law, so removed by certiorari, shall be remanded to the inferior court by procedendo, or otherwise, such cause shall not afterwards be removed to the circuit superior court, before final judgment shall be given therein in the inferior court. 77. 36. A certiorari, to remove proceedings or bring up records for any purpose except the removal of a suit from an inferior court, may be granted by the said circuit superior courts in term, or in vacation, by any judge of the said circuit superior courts. 78. § 34. And whenever any county or corporation court shall unreasonably neglect or delay to decide any cause in chancery or at law, which now is, or shall hereafter be depending in such inferior court, upon petition of either (d) This writ, in order to effect a removal of the cause, must be shewn to the court or delivered to the sheriff. Fleming v. Bradley, 1 Call, 203. 246. See Darmsdatt v. Wolfe, 4 H. & M. Mere consent of parties cannot give this court jurisdiction of a case instituted in the county court. The Commonwealth v. Brownwell, 2 Virg. Rep. 223. On an application for a certiorari, a copy of the record should be produced. Pr. Ch. Taylor, in Triplett v. Tyler, 4 H. & M. 413. Act of April 16, 1831, ch. 11. Sup. R. C. ch. 109. party, so precluded from justice by the neglect or delay of such inferior court, verified by oath or affirmation, the circuit superior court of law and chancery in term, or in vacation, any judge of the circuit superior courts is hereby authorized and directed to issue writs of certiorari, to remove such cause or causes before the circuit superior court of law and chancery, having jurisdictiont over the county or corporation, in the same manner as in cases of partiality and injustice, provided ten days previous notice in writing of such application be given to the adverse party. 79. § 35. The clerks of the said circuit superior courts of law and chancery shall carefully preserve all such petitions for writs of certiorari, with the affidavits thereto, in his office; and if any person in such affidavit shall wilfully make a false oath, and be thereof convicted upon a prosecution commenced within three years after the offence committed, such offender shall suffer the pains and penalties directed for wilful and corrupt perjury. 80. § 51. When any suit or action shall hereafter be removed, from any county or corporation court, to any circuit superior court, by writ of habeas corpus or certiorari, such cause shall be placed in the same situation in such circuit superior court, as it stood in the inferior court when such writ of habeas corpus or certiorari was delivered. And it shall be the duty of every such circuit superior court to proceed to final judgment in the manner such inferior court ought to have done, without any new pleadings, unless the same would have been proper if such suit had remained in the inferior court. 81. § 37. Any judge of the said circuit superior courts shall have power in vacation, to order a subpœna duces tecum to be issued, returnable to any of the said circuit superior courts, in like manner as the same may be ordered by such courts in term. Act of March 8, 1819-January 1, 1820. R. C. ch. 69. 82. § 47. The said courts, in their discretion, may direct an issue to be tried, whenever it shall be judged necessary, either in those courts or in any other courts whatsoever, as justice or convenience to the parties may require:(f) and in all other cases, the mode of trial shall be the same as hath + See Halley v. Baird et al. 1 H. & M. 25; Fazacharly v. Baldo, 1 Salk. 352; Steiner v. Fell, 1 Dall. 22, for the law anterior to this provision. (f) The discretion of the chancellor, upon the propriety of awarding an issue, as on all other occasions, is to be exercised by him, upon sound principles of reason and justice; and an appellate court has a right to judge whether he has so exercised his discretion. Stannard v. Graves et al. ex'rs of Blaydes, 2 Call, 369, 373. If the testimony to a material fact be such as to leave it doubtful, an issue should be directed. Marshall v. Thompson, 2 Munf. 412; Bullock v. Gordon et al. adm'rs of Irvine, 4 Munf. 450; Johnson v. Hendley, 5 Munf. 219; Galt et al. v. Carter, 6 Munf. 245; Banks et al. v. Booth, 6 Munf. 385; Knibb's ex'r v. Dixon's ex'r, 1 Randolph, 249; Douglass v. M'Chesney, 2 Rand. 109. But where the testimony is clear, the court may decree without the aid of a jury. Pryor v. Adams, 1 Call, 382; Rowton v. Rowton, 1 H. & M. 91; Savage v. Carroll, 1 Ball & Beatty, 283, 550-1; Samuel v. Marshall et ux. et al. 3 Leigh, 567. When the evidence is all in the record, the court of chancery may decide the cause without directing an issue; and if an issue be directed, and the verdict should not be satisfactory, the court may set aside the verdict and decide the cause without another trial. Love v. Braxton and Ham, 5 Call, 537; Bullen v. Michel, (house of lords,) 2 Price's Exch. R. 399, 466-7, &c. Courts of equity have an original jurisdiction, which, I agree, must be exercised according to a sound discretion, to try questions of fact without the intervention of a jury; and which aid is sought, according to the common expression, for the purpose of informing the conscience of the court. I agree, that a mistake in refusing to send the cause to a jury is a just ground of appeal, if the court of appeal should think that the contrary decision would have been a sounder exercise of discretion: but it is a competent exercise of the authority and duty of the court, in every case, and through |