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an omitted case, where land is demanded; and therefore the law must remain the same as it was before, as to costs of suit, on setting aside award, or a verdict in ejectment.

But, by the act of 20 March, 1810, considerable alterations from this act have been made, and in regard of costs. By sec. 9, "no appeal shall be allowed to either party, until the appellant pay all the costs that may have accrued on such surt or action." Quere, will not this amount nearly to a denial of an appeal, to the poor man altogether? In a case lately brought from Luzerne county, by writ of error to the term at Sunbury, the costs of the different arbitrations, amounted, if I recollect right, to the sum of $276.

For the further amendments by this act, and the adjudications of the court upon it, I refer to 5 Smith's laws, 139.

"The king (and any person suing to his use) shall neither pay nor receive costs." 3 Bl. Com. 400.

THE acts of assembly have made a considerable alteration from the law as it is in England, with respect to costs.

By an act entitled " A supplement to the penal laws of this state," passed 23d Sept. 1791, it is provided, (sec. 11,) that costs accruing on bills returned ignoramus shall be paid by the county.

By sec. 13, of the act of 1791, the county shall pay the costs of unfounded charges, preferred before a justice of the peace or other magistrate having jurisdiction in the

case.

By sec. 15, where a defendant shall be convicted of a crime punishable capitally or by imprisonment at hard labour, the county in which the crime hath been or shall be committed shall pay the costs, if defendant hath not property sufficient to discharge the same; but where the same person hath been or shall be convicted of divers offences at the same term or sessions, the county shall pay the costs of one indict. ment only.

By a supplement to the penal laws of this state, March 20, 1797, "all costs accruing on all bills of indictment found by the grand jury of the city or any county in this commonwealth, charging a party with any felony, breach of the peace, or other indictable offence, shall, if such party be acquitted by a petit jury, on the traverse of the same, be paid out of the county stock, by the city or county in which the prosecution commenced."

But it being found that these laws obliging the counties to pay the costs of prosecution where the party indicted was acquitted, tended to promote litigation, "an act to regulate the payment of costs on indictments" was passed, 8th December, 1804, which provides that "in all prosecutions, cases of felony only excepted, if the bill or bills shall be returned "ignoramus," the grand jury who returns the same shall decide and certify on such bill, whether the county or the prosecutor shall pay the costs of prosecution; and in all cases of acquittals, by the petit jury, on indictments for the offences aforesaid, the jury trying the same shall determine, by their verdict, whether the county or the prosecutor or the defendant or defendants, shall pay the costs of prosecution," &c.

There is an act, passed in 1805, explanatory of the act of 1804, which, as well as the second section of this "act explanatory" &c. is made perpetual by that of 29th March, 1809. See Smith's laws, in note, vol. 2, 548.

"To this real sullennes, but affected timidity of the judges, such a narrowness of thinking was added, that every slip (even of a syllable or a letter) was now held to be fatal to the pleader, and overturned his client's cause." 3 Bl. Com. 410.

BY the statutes of Jeofails in England, which had been adopted here, great relief had been given in case of slips of the pen or mispellings, &c. defects in process or declaration, pleading, &c. But by the 6th sec. of the act to regulate ar

bitrations and proceedings in courts of justice, passed 21st March, 1806, "suits brought in any court of record in this commonwealth shall not be set aside for informality, if it appear that process has issued in the name of the commonwealth, against the defendant for monies due, or for damages by trespass, or otherwise, as the case may be, that said process was served by the proper officer, and in due time, nor any plaintiff non-suited for informality in any statement or declaration filed, or by reason of any informality in entering a plea; but when in the opinion of the court, such informality will affect the merits of the cause in controversy, the plaintiff shall be permitted to amend his declaration or statement, and the defendant may alter his plea or defence on or be fore the trial or cause, and if by such alteration or amendment the adverse party shall be taken by surprise, the trial shall be postponed until the next court."

Obstinacy is the characteristic of an Englishman; irrascibility that of the Scot. Ea est pervicacia, says Tacitus of the Germans. One would think, says Blackstone, that Tacitus was describing a modern Englishman, 4 Bl. Com. 171. Per fervidum Scotorum ingenium, says Buchanan, in his History of Scotland.

The truth is, obstinacy and firmness, spring from the same root, virtue. It is obstinacy where the cause is bad; it is firmness where the cause is good. What could make the judges sullen, in regard of amendments which they had the power to make, being within the province of the practice of the law? I can conceive no cause, but narrowness of thinking, which Blackstone hints at ; and, the habit of travelling long in the same track. The ass is the most obstinate of all animals; this from its nature; and, the habit of going in the same path, produces with men a dread of innovation. Hence the timidity of which Blackstone speaks. It is from these reasons, that little improvement is to be expected from the old in any theory of science. There is an attachment to prescription in physicians, to precedent in lawyers, and they are afraid to depart from rule. Old generals are afraid of accidents, says Marshal Berwick in his Memoirs. They

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have character to lose; and by according to what has been done before, they risk less than in departing from it; for they have precedent to justify. And it is in the application of the rule to the case, that the judgment errs. Departure from rule can be justified only by success.

Judges would not undertake to amend pleadings, because they had no precedent of this, or that, being amended; and hence at an early period the first statute of Jeofails, 14 Ed. 3. c. 6. viz. "That by the misprision, wheresoever it be, no process shall be annulled, or discontinued by mistaking in writing, one syllable, or one letter, too much or too little; but as soon as the thing is perceived by challenge of the party, or in other manner, it shall be hastily amended, in due form, without giving advantage to the party that challengeth the same, because of such misprision."

The timidity of judges arises a good deal from a respect for the profession; and strict practitioners, who are not always the most enlightened upon general principles, consider it as affecting the craft to lessen mystery, or to detract from precedent. With regard to these, it is to be observed, that, in some measure, small lawyers at least, find their account in it; and it may be said of them, hac arte vivitur; by this craft do they live. We see therefore the expediency of the provisions of this act of the legislature, which is more than has been provided by any of the English statutes; and is an improvement of the practice as it was before, in this state.

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"If the plaintiff recovers in an action real or mixed, whereby the seisin or possession of land is awarded to him, the writ of ecution shall be an habere facias seisinam, or writ of scisin of a freehold-" 3 Bl. Com, 412.

BY the law of England, unless in the case of a chattel interest, which, upon a fieri facias, is taken possession of by the sheriff, he cannot make delivery to the purchaser; so that, in

case of the sale of a freehold interest, the purchaser must recur to his ejectment; and, after recovery, must have an habere facias possessionem to enable the officer to give possession. In the case of the sale of a lease-hold interest, which is a chattel real, possession may be immediately given. The case in 2 Shower, 85, which lays it down, that, “on the sale of a term, the sheriff cannot turn out the tenant but the vendee must bring an ejectment, was cited in the case of Taylor v. Cole, 8 T. R. 298, and yet there, justice Buller gives it as his opinion, that the sheriff might turn out the tenant." Addison's Rep. 204, Pennsylvania v. Kirpatrick and Menaugh.

In this case possession had been taken by the purchaser under a sale by the sheriff without bringing an ejectment, and recovery, and writ of habere facias. But an indictment of forcible entry and detainer was the consequence; and there was judgment for the commowealth, and restitution awarded. The observations of judge Addison in that case led to an act passed 6 Ap. 1802, "To enable purchasers at sheriff's or coroner's sales to obtain possession," which provides, that where lands shall be sold by the sheriff, by virtue of an execution, the purchaser may give notice to the defendant, or person, in possession, and require him to surrender the possession within three months: on refusal to surrender, the purchaser may complain to any two justices of the county, who on due proof, &c. shall issue their summons to the sheriff, commanding him to summon before the justices, twelve freehold. ers, and also the defendant to shew cause why delivery of possession should not be forthwith made, and if on hearing the parties, or non-appearance of the defendant, the jury find against the defendant, the justices may make a record of the same, assess damages, and direct the sheriff to deliver full possession; and no certiorari which may be issued to remove such proceedings, shall be a supersedeas, or have any effect to prevent, or delay the execution aforesaid, or the delivery. of the possession agreeably thereto.

By an act of 21 March, 1772, the same proceedings are

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