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the influence of officers upon the practicers in the several courts, lest by that means their offices should decay; but principally, because, as the present constitution of the county courts and hundred courts stands, it were a kind of extremity to put these statutes fully into execution; for it were to drive men from the courts of Westminster, for small matters where they may have justice, unto inferior jurisdictions, where as they are at present constituted, they are like to have little or none.

"The first business, therefore, would be to rectify inferior jurisdictions; and then we may with probable safety and advantage, abridge the courts of Westminster from these trivial and inconsiderable suites, where the ordinary costs, that are given to the party that recovers, exceed the value of what he recovers. Therefore I propound,

"(1.) That the county court may be established in this manner in all places. 1. That there be in every county court, a person learned in the laws, a barrister of at least seven years standing, that may be the steward of the county court, by grant from the king, quamdiu se bene gesserit, with a fee of per ann. out of the perquisites of the county. 2. That the steward do try the causes at issue in the court by jury of twelve men, and be the judge to give judgment therein. 3. That the perquisites of the courts be answered to the king. 4. That there be also a sworn clerk to make and keep the records. 5. That there be a select number of attorneys, not exceeding the number of six in any one county, to be deputed, and upon cause to be removed, by the chief justice of the common bench for the time being; and none other to be the immediate attorneys to the court. ·

"(2.) That, although in a proportion as hath been observed, 107. now is less than 40s. in the time of Ed. 1. yet I should not propound so high a measure for them, but they should hold plea of any debt, or debt, or damage, of the value of 57. where the title of freehold, or lease for years, comes not in question.

(3.) That where the sum in demand exceeds not that sum, the cause should not be removed from thence by any recordari, certiorari, pone, or habeas corpus, unless upon oath made, that the title of the land will come in question; and if upon that surmise and oath, a plaint or suit be removed by either party, and it appear to be untrue upon the pleading or triall, the party removing the suit to pay double costs.

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(4.) That the processes be only by summons, attachment,

and distress, and the execution by fieri facias or levari facias, and not otherwise.

"This being thus settled, I should propound, that the courts at Westminster should not hold plea of any suit for debt or damages under 51. unless where the title of lands is concerned; and that if upon the triall of any such cause, or otherwise it shall appear the debt or damages amount not to 51. the plaintiff should recover no more costs than damages; and if it be found for the defendant, that then he recover double costs.

"The greatest danger imaginable in this is, that it may give a handle to the erecting of country judicatures to the countermining of the kingdom. And I must confess, were this to be the ef fect of it, I think it were the most pernicious thing imaginable.

"But certainly this is but a vain fear, unless we were in such giddy times, that could not be contented with an ease and convenience to the people, without destroying the law and the government of the kingdom. For was not that law the same in the time of E. 1. and ever since, as to the point of the jurisdiction touching matters under 40s. and hath it any time introduced that inconvenience? That which is propounded, is but to ease the county court of what makes it unuseful and burthensome to the people, and to render it serviceable and convenient, and to disburthen the courts! of Westminster of these suits, wherein the costs to be recovered exceed the value of the thing in demand. Indeed there are some few alterations from the ancient constitution.

"1. In the judge; for the truth is, I think a person acquainted with the law, and sworn in the office, is fitter to be trusted, than a few ignorant, and it may be, concerned suitors.

"2. In the triall, which I would have by the oath of twelve men; and so in some counties it is used; though in others, the trial of the fact is by witnesses, and the opinion of the major part of the suitors; in others by wager of law. I hold the triall by jury returned, the best triall.

"3. In the sum, which I have estimated to 51. which is not so much even in intrinsecal value as 408. in the time of E. 1. And upon the same account, the freehold of jurors hath been raised. First in the time of E. 1. it was 208. then by 2. H. 5. it was 40s. in some cases; then by 27. Eliz. it was raised to 47. and since to

201.

"If men indeed will be giddy and unsteady, and if we should suppose parliaments not to be wisely sensible of their own, and the public concern, men may suppose that 57. may in time arise to be

50%. and so the courts of Westminster be destroyed. He that supposeth this, may suppose things yet more dreadful. But, in my understanding, if things were reduced to this state with the county court, 1. It would be a great ease to the people. 2. It would disburthen Westminster-hall of many suites, which are indeed a reproach to the honour and dignity of it. 3. It would prevent multitades of oppressive suites; many men suing for trifles, because, if they recover, the costs will crush and undo the defendant, being oftentimes forty times more than the principall. 4. It would accommodate the county court, to be admirably auxiliary and subservient to the great courts at Westminster. Writs of enquiry of damages, might be there executed by the sheriff, and in the presence, and with the assistance of the steward, and not by a jury packed by the under sheriff in a corner. Here outlawries might be proclaimed, tables of them set up, and tables of fines, and infinite more accomodations; because it would be a place of note and resort, and things would be managed with order, and much inore notoriety, than it is possible they can be now as the county court is constituted.

"That which seems to be the greatest objection against this is, that it will multiply suites, the jurisdiction being cheap and at hand.

"I answer, that it is regularly true, that this doth multiply suites, but yet these allayes with it.

"1. If it were admitted, yet in respect of the sum propounded, it is apparently necessary, that some remedy should be provided for such sums: and it is apparently unreasonable, that they should be driven to sue at Westminster; for if the suit be necessary, he shall lose by his suite, though he recover, in respect of the expence he shall be put to.

"2. Possibly at this day, many trifling and causeless suites are commenced at Westminster, to undo a defendant, with the costs in case of a recovery, or to put him to great expence; which would not be if the suits of this nature were in the county court thus qualified, where the defence would be as cheap for the defendant, as the suit is for the plaintiff; and the costs of recovery would not probably exceed the damage, but be probably less, which would be no great encouragement to vexation.

"3. I suppose, that, in the progress of this discourse, something will be proposed evidently necessary to discourage vexatious writes, as well in this as in all other jurisdictions.

"4. But if the judge of the court be such, as he ought to be for his learning and integrity, and the practicers sober and credible men, vexatious suites will not receive much countenance.

"I shall conclude this business with this farther observation that by this means the students and professors of the law, which are now generally driven or drawn up to London, so that there are scarce any left in the country, will have some encouragement to reside in the country, and the country not left to the management of attornies and solicitors."

The above extract will give a view of the grounds upon which that great man, sir Mathew Hale, proposed extending the jurisdiction of the county courts, as to the sum in demand, except as to cases, where the title to land came in question; and this in consideration of the depreciation of money. There will be seen also, his unwillingness to take away the trial by jury. It is this very kind of county court of common pleas, that we had in Pennsylvania prior to the revolution, consisting of justices of peace, and since perfected under our present constitution by giving a person learned in the law as president. But Chief Justice Hale says nothing of annexing a civil jurisdiction to the office of justice of the peace, to act without a jury.

It was highly questioned by governor M'Kean, whether the increasing the jurisdiction of the justices did not affect the right of the trial by jury as heretofore, and which was secured by the constitution; and he even went so far as to put a negative upon a bill, which afterwards, passed into a law, by the constitutional two thirds of both houses of the legislature.

The question was afterwards brought before the supreme court, as to the constitutionality of the law, in the case of "Emerick v. Harris, 1 Binney, 416, to the observations in which case I refer the student. I will acknowledge, that I have been at all times, more friendly to an increase of the jurisdiction of the justices, than to the system of unmanagable, and desultory arbitrations. I would check them by taking away an appeal from him entering the rule of refer ence, and compelling the adversary to take that tribunal, unless in a case allowed by the court.

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I am friendly to a reasonable increase of the civil jaisdiction of the justices; and therefore I approve of the patronage of the general assembly to Mr. Bache, by authorizing the governor to subscribe for 1500 copies of his Manual. I think it money well laid out; and would have no objection to them following up their blows in that way, and authorizing the governor, or the speaker of each house to take, for the use of the members, and the officers of government, a copy, each, of this publication, which will about pay me for what I allow my amanuensis for transcribing; viz. 175 coples from the printer, in boards, and which is all I get for this edition of the work.

"An estate-tail may be barred, or destroyed by a fine, by a common recovery," &c. 2 Bl. Com. 116.

"that

BY an act of 27 Jan. 1749-50, it was provided fines and common recoveries heretofore levied and suffered within the province of Pennsylvania, or which shall hereaf ter, &c. duly and according to the common and statute laws of England, &c. shall be of like force and effect," &c.

An act of 16th Jan. 1799, reciting that the mode of conveyance by common recoveries is attended with a heavy expence, provides in Sec. 1. "that any persons seized of any estate tail in possession, reversion or remainder, shall have full power to convey, &c. by such manner and form of conveyance or assurance, as any person seized of an estate in fee-simple may grant, bargain, sell, &c. and all such grants &c. shall be good and available against all persons whom the grantor, &c. could debar by any mode of common recovery, or by any means whatever."

Sec. 2. enables any person who has sold an estate-tail to a bona fide purchaser, for a valuable consideration, to confirm such sale by new deeds executed according to the act, pro vided that the intention to bar shall be stated in the deed.

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