Blackstone’s Commentaries with Notes of Reference (1803)
St. George Tucker
Of Judgment, and its Incidents
IN the following chapter we are to consider the transactions in a cause, next immediately subsequent to arguing the demurrer, or trial of the issue.
IF the issue be an issue of fact; and, upon trial by any of the methods mentioned in the two preceding chapters, it be found for either the plaintiff or defendant, or specially; or if the plaintiff makes default, or is nonsuit; or whatever, in short, is done subsequent to the joining of issue and awarding the trial, it is entered on record, and is called a postea.1 The substance of which is, that postea, afterwards, the said plaintiff and defendant appeared by their attorneys at the place of trial; and a jury, being sworn, found such a verdict; or, that the plaintiff after the jury sworn made default, and did not prosecute his suit; or, as the case may happen. This is added to the roll, which is now returned to the court from which it was sent; and the history of the cause, from the time it was carried out, is thus continued by the postea.
NEXT follows, sixthly, the judgment of the court upon what has previously passed; both the matter of law and matter of fact being now fully weighed and adjusted. Judgment may however for certain causes be suspended, or finally arrested: for it cannot be entered till the next term after trial had, and that upon notice to the other party. So that if any defect of justice happened at the trial, by surprise, inadvertence, or misconduct, the party may have relief in the court above, by obtaining a new trial; or if, notwithstanding the issue of fact be regularly decided, it appears that the complaint was either not actionable in itself, or not made with sufficient precision and accuracy, the party may supersede it, by arresting or staying the judgment.
1. CAUSES of suspending the judgment by granting a new trial, are at present wholly extrinsic, arising from matter foreign to or dehors the record. Of this sort are want of notice of trial; or any flagrant misbehavior of the party prevailing towards the jury, which may have influenced their verdict; or any gross misbehavior of the jury among themselves: also if it appears by the judge’s report, certified to the court, that the jury have brought in a verdict without or contrary to evidence, so that he is reasonably dissatisfied therewith;2 or if they have given exorbitant damages;3 or if the judge himself has misdirected the jury, so that they found an unjustifiable verdict; for these, and other reasons of the like kind, it is the practice of the court to award a new, or second, trial. But if two juries agree in the same or a similar verdict, a third trial is seldom awarded:4 for the law will not readily suppose, that the verdict of any one subsequent jury can countervail the oaths of two preceding ones.
THE exertion of these superintendent powers of the king’s courts, in setting aside the verdict of a jury and granting a new trail, on account of misbehavior in the jurors, is of a date extremely ancient. There are instances, in the year books of the reigns of Edward III,5 Henry IV,6 and Henry VIII7of judgments being stayed (even after a trial at bar) and new venire‘s awarded, because the jury had eat and drank without consent of the judge, and because the plaintiff had privately given a paper to a juryman before he was sworn. And upon these the chief justice, Glyn, in 1655, grounded the first precedent that is reported in our books8 for granting a new trial upon account of excessive damages given by the jury: apprehending with reason, that notorious partiality in the jurors was a principal species of misbehavior. And, a few years before, a practice took rise in the common pleas,9 of granting new trials upon the mere certificate of the judge, unfortified by any report of the evidence, that the verdict had passed against his opinion; though justice Rolle (who allowed of new trials in case of misbehavior, surprise, or fraud, or if the verdict was notoriously contrary to evidence10) refused to adopt that practice in the court of king’s bench. And at that time it was clearly held for law,11 that whatever matter was of force to avoid a verdict, ought to be returned upon the postea, and not merely surmised to the court; lest posterity should wonder why a new venire was awarded, without any sufficient reason appearing upon the record. But very early in the reign of Charles the second new trials were granted upon affidavits;12 and the former strictness of the courts of law, in respect of new trials, having driven many parties into equity to be relieved from oppressive verdicts, they
are now more liberal in granting them: the maxim at present adopted being this, that (in all cases of moment) where justice is not done upon one trial, the injured party is entitled to another.13
FORMERLY the only remedy for reversal of a verdict unduly given, was by writ of attaint; of which we shall speak in the next chapter, and which is at least as old as the institution of the grand assize by Henry II,14 in lieu of the Norman trial by battle. Such a sanction was probably thought necessary, when, instead of appealing to providence for the decision of a dubious right, it was referred to the oath of fallible or perhaps corrupted men. Our ancestors saw, that a jury might give an erroneous verdict; and, if they did, that it ought not finally to conclude the question in the first instance: but the remedy, which they provided, shows the ignorance and ferocity of the times, and the simplicity of the points then usually litigated in courts of justice. They supposed that, the law being told to the jury by the judge, the proof of fact must be always so clear, that, if they found a wrong verdict, they must be willfully and corruptly perjured. Whereas a juror may find a just verdict from unrighteous motives, which can only be known to the great searcher of hearts; and he may, on the contrary, find a verdict very manifestly wrong, without any bad motive at all: from inexperience in business, incapacity, misapprehension, inattention to circumstances, and a thousand other innocent causes. But such a remedy as this laid the injured party under an insuperable hardship, by making a conviction of the jurors for perjury the condition of his redress.
THE judges saw this; and very early, even for the misbehavior of jurymen, instead of prosecuting the writ of attaint, awarded a second trial: and subsequent resolutions, for more than a century past, have so extended the benefit of this remedy, that the attaint is now as obsolete as the trial by battle which it succeeded: and we shall probably see the revival of the one as soon as the revival of the other. And there I cannot but again admire15 the wisdom of suffering time to bring to perfection new remedies, more easy and beneficial to the subject; which, by degrees, from the experience and approbation of the people supersede the necessity or desire of using or continuing the old.
IF every verdict was final in the first instance, it would tend to destroy this valuable method of trial, and would drive away all causes of consequence to be decided according to the forms of the imperial law, upon depositions in writing; which might be reviewed in a course of appeal. Causes of great importance, titles to land, and large questions of commercial property, come often to be tried by a jury, merely upon the general issue: where the facts are complicated and intricate, the evidence of great length and variety, and sometimes contradicting each other; and where the nature of the dispute very frequently introduces nice questions and subtleties of law. Either party may be surprised by a piece of evidence, which (had he known of its production) he could have explained or answered; or may be puzzled by a legal doubt, which a little recollection would have solved. In the hurry of a trial the ablest judge may mistake the law, and misdirect the jury: he may not be able so to state and range the evidence as to lay it clearly before them; nor to take off the artful impressions which have been made on their minds by learned and experienced advocates. The jury are to give their opinion instanter; that is, before they separate, eat, or drink. And under these circumstances the most intelligent and best intentioned men may bring in a verdict, which they themselves upon cool deliberation would wish to reverse.
NEXT to doing right, the great object in the administration of public justice should be to give public satisfaction. If the verdict be liable to many objections and doubts in the opinion of his counsel, or even in the opinion of bystanders, no party would go away satisfied unless he had a prospect of reviewing it. Such doubts would with him be decisive: he would arraign the determination as manifestly unjust; and abhor a tribunal which he imagined had done him an injury without a possibility of redress.
GRANTING a new trial, under proper regulations, cures all these inconveniences, and at the same preserves entire and renders perfect that most excellent method of decision, which is the glory of the English law. A new trial is a rehearing of the cause before another jury, but with as little prejudice to either party, as if it had never been heard before. No advantage is taken of the former verdict on the one side, or the rule of court for awarding such second trial on the other: and the subsequent verdict, though contrary to the first, imports no tittle of blame upon the former jury; who, had they possessed the same lights and advantages, would probably have altered their own opinion. The parties come better informed, the counsel better prepared, the law is more fully understood, the judge is more master of the subject; and nothing is now tried but the real merits of the case.
A SUFFICIENT ground must however be laid before the court, to satisfy them that is necessary to justice that the cause should be farther considered. If the matter be such, as did not or could not appear to the judge who presided at nisi prius, it is disclosed to the court by affidavit: if it arises from what passed at the trial, it is taken from the judge’s information; who usually makes a special and minute report of the evidence. Counsel are heard on both sides to impeach or establish the verdict, and the court give their reasons at the large why a new examination ought or ought not to be allowed. The true import of the evidence is duly weighed, false colors are taken off, and all points of law which arose at the trial are upon full deliberation clearly explained and settled.
NOR do the courts lend to easy an ear to every application for a review of the former verdict. They must be satisfied, that there are strong probably grounds to suppose that the merits have not been fairly and fully discussed, and that the decision is not agreeable to the justice and truth of the case. A new trial is not granted, where the value is too inconsiderable to merit a second examination. It is not granted upon nice and formal objections, which do not go to the real merits. It is not granted in cases of strict right or summum jus, where the rigorous exaction of extreme legal justice is hardly reconcilable to conscience. Nor is it granted where the scales of evidence hang nearly equal: that, which leans against the former verdict, ought always very strongly to preponderate.
IN granting such farther trial (which is matter of sound discretion) the court has also an opportunity, which it seldom fails to improve, of supplying those defects in this mode of trial which were stated in the preceding chapter; by laying the party applying under all such equitable terms, as his antagonist shall desire and mutually offer to comply with: such as the discovery of some facts upon oath; the admissions of others, not intended to be litigated; the production of deeds, books, and papers; the examination of witnesses, infirm or going beyond sea; and the like. And the delay and expense of this proceeding are so small and trifling, that it never can be moved for to gain time or to gratify humor. The motion must be made within the first four days of the next succeeding term, within which term it is usually heard and decided. And it is worthy observation, how infinitely superior to all others the trial by jury approves itself, even in the very mode of its revision. In every other country of Europe, and in those of our own tribunals which conform themselves to the process of the civil law, the parties are at liberty, whenever they please, to appeal from day to day and from court to court upon questions merely of fact; which is a perpetual force of obstinate chicane, delay, and expensive litigation.16 With us no new trial is allowed unless there be a manifest mistake, and the subject matter be worthy of interposition. The party who thinks himself aggrieved may still, if he pleases, have recourse to his writ of attaint after judgment; in the course of the trial he may demur to the evidence, or tender a bill of exceptions. And, if the first is totally laid aside, and the other two very seldom put in practice, it is because long experience has shown, that a motion for a second trial is the shortest, cheapest, and most effectual cure for all imperfections in the verdict; whether they arise from the mistakes of the parties themselves, of their counsel or attorneys, or even the judge or jury.
2. ARRESTS of judgment arise from intrinsic causes, appearing upon the face of the record. Of this kind are, first, where the declaration varies totally from the original writ; as where the writ is in debt or detinue, and the plaintiff declares in an action on the case for an assumpsit: for, the original writ out of chancery being the foundation and warrant of the whole proceedings in the common pleas, if the declaration does not pursue the nature of the writ, the court’s authority totally fails. Also, secondly, where the verdict materially differs from the pleadings and issue thereon; as if, in an action for words, it is laid in the declaration that the defendant said, “the plaintiff is a bankrupt;” and the verdict finds specially that he said, “the plaintiff will be a bankrupt.” Or, thirdly, if the case laid in the declaration is not sufficient in point of law to found an action upon. And this is an invariable rule with regard to arrests of judgment upon matter of law, “that whatever is alleged in arrest of judgment must be such matter, as would upon demurrer have been sufficient to overturn the action or plea.” As if, on an action for slander in calling the plaintiff a Jew, the defendant denies the words, and issue is joined thereon; now, if a verdict be found for the plaintiff, that the words were actually spoken, whereby the fact is established, still the defendant may move in arrest of judgment, that to call a man a Jew is not actionable: and, if the court be of that opinion, the judgment shall be arrested, and never entered for the plaintiff. But the rule will not hold e converso, “that every thing that may be alleged as cause of demurrer will be good in arrest of judgment:” for if a declaration or plea omits to state some particular circumstance, without proving of which, at the trial, it is impossible to support the action or defense, this omission shall be aided by a verdict. As if, in an action of trespass, the declaration does not allege that the trespass was committed on any certain day;17 or if the defendant justifies, by prescribing for a right of common for his cattle, and does not plead that his cattle were levant and couchant on the land;18 though
either of these defects might be good cause to demur to the declaration or plea, yet if the adverse party omits to take advantage of such omission in due time, but takes issue, and has a verdict against him, these exceptions cannot after verdict be moved in arrest of judgment. For the verdict ascertains those facts, which before from the inaccuracy of the pleadings might be dubious; since the law will not suppose, that a jury under the inspection of a judge would find a verdict for the plaintiff or defendant, unless he had proved those circumstances, without which his general allegation is defective.19 Exceptions therefore, that are moved in arrest of judgment, must be much more material and glaring than such as will maintain a demurrer: or, in other words, many inaccuracies and omissions, which would be fatal, if early observed, are cured by a subsequent verdict; and no suffered in the last stage of a cause, to unravel the whole proceedings. But if the thing omitted be essential to the action or defense, as if the plaintiff does not merely state his title in a defective manner, but sets forth a title that is totally defective in itself,20 or if to an action of debt the defendant pleads not guilty instead of nil debet,21 these cannot be cured by a verdict for the plaintiff in the first case, or for the defendant in the second.
IF, by the misconduct or inadvertence of the pleaders, the issue be joined on a fact totally immaterial, or insufficient to determine the right, so that the court upon the finding cannot know for whom judgment ought to be given; as if, on an action on the case in assumpsit against an executor, he pleads that he himself (instead of the testator) made no such promise;22 or if, in an action of debt on bond conditioned to pay money on or before a certain day, the defendant pleads payment on the day23 (which, if found for the plaintiff, would be inconclusive, as it might have been paid before) in these cases the court will after verdict award a repleader, quod partes replacitent: unless it appears from the whole record that nothing material can possibly be pleaded in any shape whatsoever, and then a repleader would be fruitless.24 And, whenever a repleader is granted, the pleadings must begin de novo at that stage of them, whether it be the plea, replication, or rejoinder, etc, wherein there appears to have been the first defect, or deviation from the regular course.25
IF judgment is not by some of these means arrested within the first four days of the next term after the trial, it is then to be entered on the roll, or record. Judgments are the sentence of the law, pronounced by the court upon the matter contained in the record; and are of four sorts. First, where the facts are confessed by the parties, and the law determined by the court; as in case of judgment upon demurrer: secondly, where the law is admitted by the parties, and the facts disputed; as in case of judgment on a verdict: thirdly, where both the fact and the law arising thereon are admitted by the defendant: which is the case of judgments by confession or default: or, lastly, where the plaintiff is convinced that either fact, or law, or both, are insufficient to support his action, and, therefore abandons or withdraws his prosecution; which is the case in judgments upon a nonsuit or retraxit.
THE judgment, though pronounced or awarded by the judges, is not their determination or sentence, but the determination and sentence of the law. It is the conclusion that naturally and regularly follows from the premises of law and fact, which stand thus: against him, who has rode over my corn, I may recover damages by law; but A has rode over my corn; therefore I shall recover damages against A. If the major proposition be denied, this is a demurrer in law: if the minor, it is then an issue of fact: but if both be confessed (or determined) to be right, the conclusion or judgment of the court cannot but follow. Which judgment or conclusion depends not therefore on the arbitrary caprice of the judge, but on the settled and invariable principles of justice. The judgment, in short, is the remedy prescribed by law for the redress of injuries; and the suit or action is the vehicle or means of administering it. What that remedy may be, is indeed the result of deliberation and study to point out, and therefore the stile of the judgment is, not that it is decreed or resolved by the court, for then the judgment might appear to be their own; but, “it is considered,” consideratum est per curiam, that the plaintiff do recover his damages, this debt, his possession, and the like: which implies that the judgment is none of their own; but the act of law, pronounced and declared by the court, after due deliberation and inquiry.
ALL these species of judgments are either interlocutory or final. Interlocutory judgments are such as are given in the middle of a cause, upon some plea, proceeding, or default, which is only intermediate, and does not finally determine or complete the suit. Of this nature are all judgments for the plaintiff upon pleas in abatement of the suit or action: in which it is considered by the court, that the defendant do answer over, respondeat ouster; that is, put in a more substantial plea.26 It is easy to observe, that the judgment here given is not final, but merely interlocutory; for there are afterwards farther proceedings to be had, when the defendant has put in a better answer.
BUT the interlocutory judgments, most usually spoken of, are those incomplete judgments, whereby the right of the plaintiff is indeed established, but the quantum of damages sustained by him is not ascertained: which is a matter that cannot be done without the intervention of a jury. As by the old Gothic constitution the cause was not completely finished, till the nembda or jurors were called in “ad executionem decretorum judicii, ad aestimationem pretii, damni, lucri, etc.”27 This can only happen where the plaintiff recovers; for when judgment is given for the defendant, it is always complete as well as final. And this happens, it the first place, where the defendant suffers judgment to go against him by default, or nihil dicit; as if he puts in no plea at all to the plaintiff’s declaration: by confession or cognovit actionem, where he acknowledges the plaintiff’s demand to be just: or by non sum informatus, when the defendant’s attorney declares he has no instructions to say anything in answer to the plaintiff, or in defense of his client; which is a species of judgment by default. If these, or any of them, happen in actions where the specific thing sued for is recovered, as in actions of detinue or debt for a sum or thing certain, the judgment is absolutely complete. And therefore it is very usual, in order to strengthen a bond-creditor’s security, for the debtor to execute a warrant of attorney to any one, empowering him to confess a judgment by either of the ways just now mentioned (by nihil dicit, cognovit actionem, or non sum informatus) in an action of debt to be brought by the creditor for the specific sum due: which judgment, when confessed, is absolutely complete and binding. But where damages are to be recovered, a jury must be called in to assess them; unless the defendant, to save charges, will confess the whole damages laid in the declaration: otherwise the entry of the judgment is, “that the plaintiff ought to recover his damages, (indefinitely) but, because the court know not what damages the said plaintiff has sustained, therefore the sheriff is commanded, that by the oaths of twelve honest and lawful men he inquire into the said
damages, and return such inquisition when taken into court.” This process is called a writ of inquiry: in the execution of which the sheriff sits as judge, and tries by a jury, subject to nearly the same law and conditions as the trial by jury at nisi prius, what damages the plaintiff has really sustained; and when their verdict is given, which must assess some damages (but to what amount they please) the sheriff returns the inquisition into court, which is entered upon the roll in manner of a postea; and thereupon it is considered, that the plaintiff do recover the exact sum of the damages so assessed. In like manner, with a demurrer is determined for the plaintiff upon an action wherein damages are recovered, the judgment is also incomplete, till a writ of inquiry is awarded to assess damages, and returned; after which the judgment is completely entered.
FINAL judgments are such as at once put an end to the action, by declaring that the plaintiff has either entitled himself, or has not, to recover the remedy he sues for. In which case if the judgment be for the plaintiff, it is also considered that the defendant be either amerced, for his willful delay of justice in not immediately obeying the king’s writ by rendering the plaintiff his due;28 or be taken up, capiatur, to pay a fine to the king, in case of any forcible injury.29 Though now by statute 5 & 6 W. 7 M. c. 12. no writ of capias shall issue for this fine, but the plaintiff shall pay 6 s 8 d, and be allowed it against the defendant among his other costs. And therefore in judgments in the court of common pleas they enter that the fine is remitted, and in the court of king’s bench they now take no notice of any fine or capias at all.30 But if judgment be for the defendant, then it is considered, that the plaintiff and his pledges of prosecuting be (nominally) amerced for his false suit, and that the defendant may go without a day, eat sine die, that is, without any farther continuance or adjournment; the king’s writ, commanding his attendance, being now fully satisfied, and his innocence publicly cleared.31
THUS much for judgments; to which costs are a necessary appendage; it being now as well the maxim of ours as of the civil law, that “victus victori in expensis condemnandus est” .32 Though the common law did not professedly allow any, the amercement of the vanquished party being his only punishment. The first statute which gave costs, eo nominee, to the demandant in a real action was the statute of Gloucester, 6 Edw. I. c. 1. as did the statute of Marlbridge 52 Hen. III. c. 6. to the defendant in one particular case, relative to wardship in chivalry: though in reality costs were always considered and included in that quantum of damages, in such actions where damages are given; and, even now, costs for the plaintiff are always entered on the roll as increase of damages by the court.33 But, because those damages were frequently inadequate to the plaintiff’s expenses, the statute of Gloucester orders costs to be also added; and farther directs, that the same rule shall hold place in all cases where the party is to recover damages. And therefore in such actions where no damages were then recoverable (as in quare impedit, in which damages were not given till the statute of Westm. 2. 13. Edw. I.) no costs are now allowed;34 unless they have been expressly given by some subsequent statute. The statute 3. Hen. VII. c. 10. was the first which allowed any costs on a writ of error. But no costs were allowed the defendant in any shape, till the statutes 23 Hen. VIII. c. 15. 4 Jac. I. c. 3. 8 & 9 W. III. c. 11. and 4 & 5 Ann. c. 16. which very equitably gave the defendant, if he prevailed, the same costs as the plaintiff would have had, in case he had recovered. These costs on both sides are taxed and moderated by the prothonotary, or other proper officer of the court.
THE king (and any person suing to his use35) shall neither pay, nor receive costs: for besides that he is not included under the general words of these statutes, as it is his prerogative not to pay them to a subject, so it is beneath his dignity to receive them. And it seems reasonable to suppose, that the queen-consort participates of the same privilege; for, in actions brought by her, she was not at the common law obliged to find pledges of prosecution, nor could be amerced in case there was judgment against her.36 In two other cases an exemption also lies from paying costs. Executors and administrators, when suing in the right of the deceased, shall pay none.37 And paupers, that is such as will swear themselves not worth five pounds, are, by statute 11 Hen. VII. c. 12. to have original writs and subpoenas gratis, and counsel and attorney assigned them without fee; and are excused from paying costs, when plaintiffs, by the statute 23 Hen. VIII. c. 15. but shall suffer other punishment at the discretion of the judges. And it was formerly usual to give such paupers, if nonsuited, their election either to be whipped or pay the costs:38 though that practice is now disused.39 It seems however agreed, that a pauper may recover costs, though he pay none; for the counsel and clerks are bound to give their labor to him, but not to his antagonists.40 To prevent also trifling and malicious actions, for words, for assault and battery, and for trespass, it is enacted by statutes 43 Eliz. c. 6. 21 Jac. I. c. 16. and 22 & 23 Car. II. c. 9 §. 136. that, where the jury who try any of these actions shall given less damages than 40 s. the plaintiff shall be allowed no more costs than damages, unless the judge before whom the cause is tried shall certify under his hand on the back of the record, that an actual battery (and not an assault only) was proved, or that in trespass the freehold or title of the land came chiefly in
question. Also by statute 4 & 5 W. & M. c. 23. and 8 & 9 W. III. c. 11. if the trespass were committed in hunting or sporting by an inferior tradesman, or if it appear to be willfully and maliciously committed, the plaintiff shall have full costs,41 though his damages as assessed by the jury amount to less than 40 s.
AFTER judgment is entered, execution will immediately follow, unless the party condemned thinks himself unjustly aggrieved by any of these proceedings; and then he has his remedy to reverse them by several writs in the nature of appeals, which we shall consider in the succeeding chapter.
1. Append. No. 11. § 6.
2. Law of nisi prius. 303, 4.
3. Comb. 357.
4. 6 Mod. 22. Salk. 649.
5. 24 Edw. III. 24. Bro. Abr. t. verdite. 17.
6. 11 Hen.IV. 18. Bro. Abr. t. Enquest. 75.
7. 14 Hen. VII. 1. Bro. Abr. t. verdite. 18.
8. Styl. 466.
9. Ibid. 138.
10. 1 Sid. 235. Styl. Pract. Reg. 310, 311. edit. 1657.
11. Cro. Eliz. 616. Palm. 325.
12. 1 Sid. 235. 2 Lev. 140.
13. 4 Burr. 395.
14. Ipsi regali institutioni eleganter inserta. (Glanv. l. 2. c. 19.)
15. See pag. 268.
16. Not many years ago an appeal was brought to the house of lords from the court of session in Scotland, in a cause between Napier and Macfarlane. It was instituted in March 1745; and, after many interlocutory orders and sentences below, appealed from and reheard as far as the course of proceedings would admit, was finally determined in April 1749: the question being only on the property in an ox, adjudged to be of the value of three guineas. No pique or spirit could have made such a cause, in the court of king’s bench or common pleas, have lasted a tenth of the time, or have cost a twentieth part of the expense.
17. Carth. 389.
18. Cro. Jac. 44.
19. 1 Mod. 292.
20. Salk. 365.
21. Cro. Eliz. 778.
22. 2 Ventr. 196.
23. Stra. 994.
24. 4 Burr. 301, 302.
25. Raym, 458. Salk. 579.
26. 2 Saund. 30.
27. Stiernhook de jure. Goth. l. 1. c. 4.
28. 5 Rep. 49.
29. Append. No. II. § 4.
30. Salk. 54. Carth. 390.
31. Append. No. III. § 6.
32. Cod. 3. 1. 13.
33. Append. No. II. § 4.
34. 10 Rep. 116.
35. Stat. 24. Hen. VIII. c. 8.
36. F. N. B. 101. Co. Litt. 133.
37. Cro. Jac. 229.
38. 1 Sid. 261. 7 Mod. 114.
39. Salk. 506.
40. 1 Equ. Cas. abr. 125.
41. See pag. 214, 215.