USA > Virginia > Virginia colonial decisions : the reports by Sir John Randolph and by Edward Barradall, of decisions of the general court of Virginia, 1728-1741, v. I > Part 21
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*Wilkes Barre, Penn., 1871, page XIII.
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and indeed, although it is highly probable that his parents came to Virginia to live, nothing could be found to prove it.
The inscription on the tombstone shows that his brother Henry was born in 1710, and therefore Edward Barradall was six years his senior, but the ages of the other brother and of the two sisters is not known. That the sisters survived their three brothers is proved by the fact that they erected the tombstone, but be- yond this nothing at all is known of them.
Edward Barradall was a vestryman of Bruton Church and occupied pew No. 10, the fourth from the entrance on the left-hand side of the main aisle of the church. His legal education, at least, was had in England, at the Inner Temple. As a lawyer his standing was high, and at an early age he acquired a large practice.
The Virginia Gazette of November 18, 1737,1 an- nounces the death that morning between five and six o'clock, of John Clayton, Esq., " His Majesty's Attor- ney General and Judge of the Court of Vice Admiralty," and closes with the announcement that " His Honour the Governor has been pleased to appoint Edward Barradall, Esq., to act as Attorney General until His Majesty's Pleasure shall be known." This office he held until his death, and he also succeeded Mr. Clayton to the offices of judge of the Vice Admiralty Court, and as representative in the General Assembly for William and Mary College. He was a member of the General Assembly at the sessions of November 1, 1738, May, 1740, August, 1740, and May, 1742.2
On January 5, 1735-36, Barradall married Sarah, daughter of Hon. William Fitzhugh, of " Eagles Nest," Stafford, now King George County, Virginia. She
1Virginia Magazine. Vol. XIV. 5.
$No copies of the Virginia Gazette corresponding to these dates could be dis- covered.
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was the granddaughter of Col. William Fitzhugh, one of the best known lawyers of the colony. She did not long survive her husband, he dying in June and she in October, 1743.
Edward Barradall is spoken of as the earliest Vir- ginia reporter, but in fact both Hopkins and Randolph wrote their manuscript reports in advance of Barradall. His, however, are much the more numerous, Randolph's consisting of forty cases, while Barradall wrote out ninety-seven cases.
Barradall's style in the argument of his cases is more labored and less interesting than that of Ran- dolph. There is greater display of learning, and more evidence of preparation and research, but it can readily be seen that Randolph was the superior advocate. He must have been much the readier debater, and his handsome and attractive personality gave him decided advantages, both before the regular juries and before the County and General Courts, both of which courts, indeed, were but more select and superior juries.
The cases reported by Barradall are of much the same character as those reported by Randolph, and any further review of them would be but a repetition of what has been already said.
These later reported cases show how often Randolph and Barradall were opposed to each other, in the later years of Randolph's life, but they are rather more liberal in noting the views of Randolph than the latter seems to have been of the positions taken in the argu- ments by his opponents.
There is nothing to indicate that the cases these reporters have preserved in their manuscripts were intended by them for publication, and if they, or either of them, had any such decided purpose, it probably was not the primary motive that influenced them.
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Of cases dependent upon English law they had, compared with this day, few precedents, but still enough. For rulings upon the colonial statutes there were no precedents. Then, too, there were cases involv- ing both English and Colonial law, and the practice of the law was English, modified not a little by local custom. In the eighteenth century law business had acquired considerable proportions, and more and more cases of a mixed complexion were likely to arise. It became, therefore, a matter of concern to the busy lawyer to have at hand the decisions of the General Court, the highest in the colony, and the chief tribunal of both original and appellate jurisdiction. Then, too, there was an attraction in preserving in book form (even a manuscript book) those arguments on which so much labor had been bestowed, and which would constitute the chief part of the reported case.
Although there seemed to be no immediate prospect of printing, the writers scarcely anticipated that this publication would be delayed near two hundred years; or hardly thought that before their writings had come to a condition for public usefulness, they would have been anticipated and become fossilized by trooping generations of book-makers, reports of decisions too numerous to be counted, and digests which offer the gist of lengthy cases in an abridgment of a few lines. Nor did they ever imagine that within two centuries from the time of their writing in the little city of Williamsburg, there would be in this land such a swell- ing tide of population, such unimaginable changes in the volume and condition of property holding, and such a consequent rush, demand and need for shorter and quicker methods of meeting the instant and con- stant necessities of business, or that they, and what they wrote, would have their chief interest in having
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been the beginning of things of their kind,-the little fountains to be sought chiefly by those who will always seek the sources, no matter how wide may be the stream.
So it has come about that the writers and their writings have to be brought together, the public and private conditions with the principles of law and government which those conditions produced, and which in time governed them, before either could be fully appreciated. And that is both the motive and the excuse for coupling these ancient cases, the first recorded deliverances of the earliest courts, with the story of the people and the country, whose rights and wrongs were preserved and remedied by these decisions of the court, now brought to light and offered to the reader
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SIR JOHN RANDOLPH'S REPORTS
HIM
SIR JOHN RANDOLPH'S REPORTS
October 1729.
[114]1 [Here ends (sic) the Arguments of Edward Barradall Esq, and next comes the Reports of Sir John Randolph of Cases Adjudged in the General Court.]
2SMITH US BROWN. Trespass. Fr Plt.
In trespass the plt. must charge the goods injured were his proper goods. Except those part of the close broken-he need not fix any value to the goods damaged. The same action may be felony ag't Com- mon'lth and trespass as to individual.
The Plt. Declares that the Deft. such a Day and Year broke and entered the Close of the Plt. at South Farnham in the County of York and took and carried away 4000 1b. Tob'o of the Plts. to the value of 40£ Curr't money and did burn and destroy one Tob'o House then and there being
Upon not guilty a Verd't is found for the Plt. and 25£ Sterl'g Damage and now upon a Motion to Arrest the Judgment it is objected that the Decl. is nought as to the burning of the House it [not] being laid to be the Plts. House, and entire Damages are given. So if the Plt. as to one Trespass hath not Shewn a good cause of Action the Verd't is not good and he shall not have Judgm't, which is agreed
It must be agreed likewise that if there are no words in the Declaration which do suffitiontly alledge the House to be the Plts. it shall not be intended after a Verdict
But it will be necessary to understand the reason of the Law in this point which is clear enough in the cases that must be Cited in Maintenance of the Exception. So I shall mention all or most of the Judgments which have been given upon this point in Order to settle the true difference between them in the present Case
In the Case of Whiteman and Hawkins, 3. Bulst. 303. the Plt. Declares of breaking his Close and taking and carrying away
'These figures, in brackets, refer to the original paging of the manuscript.
'S. C. in MSS. Virg. Rep. in Congr. Libry. Supposed to have come from Mr. Jefferson's Library. [Note by W. G.]
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three Sheaves of Corn then and there being After Verd't the Judg't was stay'd. Because it was not Alledged to be the Corn of the Plt. notwithstanding the Words then and there being, which the Court held wou'd not supply it
In the Case of Furrel and Bradley Yelv. 36. The Plt. De- clared of an Assault and taking a Mare a Persona ipsius (sic). And after a Verd't it was moved in Arrest of Judgment, that the Decl. was not good Because the Plt. had not laid any prop- erty in the Mare, for there may be two Intendments as the Declaration is, one that the Mare was the Defts. Then the taking was Lawful. The other that it was the Plts. and then it was Tortious. So being indifferent it shall be taken strongly ag't the Plt.
[115] 2d Suit Concess vs Fenner being only then in Court, Same Case is Reported in Cro. Ja. 46. and there it appears that Judgment was given Accordingly by the Judges, Gawdy, Fenner & Yelverton
In the Case of Terry and Stradwick 2. Lev. 156. In Case for Obstructing a Water Course and turning the water upon the Plts. land whereby it was overflowed and Twenty Load of Hay then and there being was Spoiled, not saying the Plts. and for that reason Judgment was Arrested tho it was objected that it might be intended the Hay of the Plt.
In the Case of Bennet and Collingdel 2. Show. 395. In Trespass for taking and carrying away the Cattle of the Plt. to wit, one Horse and a Hat. After a Verd't Judm't was arrested because no property in the Hat is laid in the Plt.
And the same point is Admitted in several other Cases 2. Lev. 20. 2. Sannd. 379. Raymond 395. 2. Rol. 250. P1. 7. Yet vid Usher and Bushley 1. Keb. 53.
In the case of Joce and Mills 2. Salk. 64 c. The Plt. Declared for breaking his Close and taking and carrying away the Horses then and there found and 100 Bushels (Congeoo) of Wheat of the proper Goods of the Plt. then and there also found. Upon Not guilty a Verd't was found for the Plt. and Judgment was Arrested Because the Horses were not laid to be the Goods of the Plt. for it did not follow that they were the Plts. because they were found in the Plts. Close and the Court wou'd not allow de bonis propriis to be Applied to the Horses, being different Sentences, tho as to that there is a contrary Resolution 2. Rol. Abr. 250. P1. 7. Allowed in that Case by one Justice to be Law.
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These Cases it must be allowed do prove very Clearly That where the Plt. in Trespass Declares of breaking his Close and taking and carrying away Goods or anything Severred from the Freehold he must lay the property of such Things in him. Otherwise it shall be intended he has no property not even after a Verdict And the reason is as clear that there may be two Intendments and that which is against the Plt. shall rather be taken because he ought to make the Cause of his Action appear very Clear upon the face of his Declaration
But in the Case at Barr the Declaration is for Breaking the Plts. Close and burning a Tobacco House then and there being Now after it is say'd that the Close is the Plts. Saying likewise that the House in the Close is the Plts., wou'd have been mere Surplusage. For if the Land was the Plts. it is a necessary Consequence that the House upon the Land is his, against which there can't possibly [116] be any Intendment as in the Cases of things severed from the Freehold
For supposing a Man is Seised of an Acre of Ground of the value of 10{ & a House upon the Land of the value of 10£ and he Grant the Ground without mentioning the House, that the House will pass with the Land I think can't be denied for this see 2. and 123. And upon the Reason of this difference I take it clearly to be Law That if the Plt. in Trespass Declares for breaking his Close and taking and carrying away, or destroying any Thing which is part of the Freehold, tho' he doth not alledge it to be his the Declaration will be good even upon a Demurrer and fortiori after a Verdict. For tho' the Law requires a good deal of Exactness in setting forth a Cause of Action it requires nothing Superfluous or unnecessary
In the Case of Holland & Ellis 1. Vent. 278. The Plt. declared for Breaking his Close, treading down the Grass and carrying away divers Loads of Wheat there being, and after a Verd't it was moved in Arrest of Judgment that the Declaration did not mention whose the Loads of wheat were and it was Adjourn'd. But Ventris. Notes that it was not there growing
Same Case is cited 2. Lev. and there it appears that the Judg- m't was stay'd and Jones Attorney General who say'd he moved the Case again upon the Judgments in Terrys Case (there re- ported) resisted
But in the 3. Rob. 524. the same Case is Reported and that Judgm't was stay'd and it was say'd by Wylde and Agreed by
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the others that if the Declaration had been for breaking his Close and carrying away divers loads of Wheat, there growing it wou'd be intended the Plts. But being of Loads it is severed and may be the Goods of a Stranger
And this is an Authority full in point to maintain the Decl. in the present Case and proves the difference between declaring of any Thing Severed and what is part of the Freehold Vid. Cro. Ja. 129.
In the Case of Gilliam and Claton 3. Lev. 93. For breaking his Close and pulling up and carrying away 200 Post fixed in the Ground. No Exception is taken that they are not mentioned to be the Plts. posts, besides there are Precedents which justify this Declaration 1. Mod. Intrandi 384. Declaration in Trespass for breaking Plts. Close and cutting, and carrying away several Trees there lately growing without saying they were the Plts. Lillys Int. 439. Declaration in Trespass Clausum fregit and consuming the Grass and Corn in the same Close growing and being without saying his Grass Wherefore notwithstanding this Exception the Plt. ought to have Judgment
Obj. 2. Perhaps another Exception may be taken that the value of the House is not mentioned
Answer. But that is nothing but form and not material In the Case of Usher and Bushel 1. Sidf. 39. Adjudged in Tres- pass for Goods and [117] Chattles omitting the price or value is helped after a Verd't by the Stat. of Jeofails
Same Case 1. Keb. 53. but nothing of this Point, Tho in the Case of Wood and Smith Cro. Ja. in Trover it was held that omitting the price or value was not helped by the Stat. by two Judges ag't two 129. 130. But in the Case of Bagshaw & Toward. Cro. Ja. 147. It is say'd that it is only matter of Form And so it is Adjudged between Bradford & Ramsay Cro. Ja. 654. and that is Aided by a Verd't
Obj. 3. Perhaps it may be Objected that the Cause of Action is a Felony and therefore the Plt. ought not to have Judgment
Answer. To this I must observe that upon the face of the Decl. no Felony Appears nor is there any Special Verdict in the Case, how it appeared upon the Evidence I don't know But in the Case of the Widow Lutterell vs Reynell and al. 29. Car. 2. 1. Mod. 283. Where the Defend'ts were found Guilty in an Action of Trespass for taking several Sums The Attorney General excepted to the Evidence that it amounted to prove the Defts.
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guilty of Felony and the Law will not suffer a Man to Smooth a Felony and bring Trespass for Robbery before the Party has been tried and Acquitted or found guilty
But the Lord Chief Barron Montague, declared and it was agreed that it shall not lie in the Mouth of the Party to say, He is a Felon and not Guilty of Trespass. And this Opinion is Agreeable to the old Books, and not contradicted by any Opinion that I know of Tho' the Reporter says Perhaps if the Fact appeared upon the Declaration it might be otherwise and puts a Quere what the Law would have been, if it had been found upon a Special Verdict Which is a Questioning the Opinion of the Lord Chief Barron. For there can be no difference Whether it appears upon the Decl. or is found in a Verdict or is dis- covered upon the Evidence. So that it seems to me in this Case the Law is settled Braxton Cup. 22. Cited Stam (P. C. 28. a. 83. b. Says the Prosecutor may in the beginning Proceed either Civilly or Criminally at his pleasure for he may demand his Goods lost by the Testimony of good Men, altho' they are Stolen and he may afterwards Prosecute the Party as a Felon by Appeal
But if he first Prosecute his Appeal he shall not afterwards descend and bring a Civil Action
Now we shall see how this agrees with the Opinion of the Judges in Cases where this Point has come in Question Serjeant Rolls in his Abr. 556. pl. 19. Says it was Adjudged in Days Case that if a Stranger takes my Horse or other Goods and sells them to I. S. No Action of Trespass lies against him And he gives the Reason, because it appeared to the Court to be Felony which belongs only to the King to Punish, for which he Cites Huggins Case Immediately afterwards he Abridges Huggins's Case and it appears there was an Action of Trespass for beating the Plts. Wife so that she Languished six Weeks [118] and then died. Which being Felony the Action did not lie. The same Case is Reported Noy. 18. and the Judgment was given Accordingly.
But Janifield1 gives another Reason, because the Wife was dead and she ought to have been joined, and there is no doubt but that Case is good Law. For Braxton excepts the Case de morts Nominis
In the Case of Markham and Cobb. 2. Rol. Abr. 557. pl. 52 (222)
'In MS. of Congressional Library, p. 118, it seems to be "Tarnfield."-R. T. B. "This insertion is William Green's.
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Noy 82. and Latch 114 (1441). an action of Trespass was brought for breaking his House and taking and carrying away 3000£ of Money in Baggs. The Deft. Pleaded that he and another were Indicted for the same Offence, and Convicted of Felony and had his Clergy according to Rolls the action did not lie. Because when it appears that the fact was Felony, the Party ought to Prosecute by way of Appeal to have his Goods again, or to Prosecute by Indictment and then to have his Goods by the Stat. 21. Hen. 8. for otherwise nobody wou'd Prosecute a Felony but wou'd only have Trespass for his private Interest
By the Opinion of Doddridge and Whitlock ag't Jones as Rolls Reports But According to the Report of Noy Jones was of Opinion that the Action did not lie And Doddridge and Whitlock that it did lie Because an Indictment was a Suit of the Kings who cou'd not hinder the Subject of his right And by the Report of Latch it seems the three Judges were of one mind that the Action did not lie at first But Jones afterwards Changed his Opinion
Justice Jones reports the same Case Sr. W. Jones 147. which ought most to be depended upon where he tells us Doddridge and Whitlock gave Judgment for the Plt. in the Absence of the Chief Justice for a default in Pleading and not upon the matter of Law But as to the matter of Law Doddridge and Whitlock Prima facie were of Opinion that the Action did lie and the Party had his Election to bring Trespass or appeal And since he had not brought an Appeal he shall have Trespass Jones of another opinion. One of his Chief Reasons were (was2), that the Matter being found by Verdict that it was Felony The Aver- ment Cou'd not be against it that it was Trespass, but if the Party had been Acquitted it wou'd have been otherwise and in the Conclusion he says what he had say'd to this Point was only Argumenti gratia and not his Absolute Opinion. So say'd the Other Judges But he puts in a Quere and says it is a point of great Consequence of both sides
So the Law Notwithstanding the Case was unsettled Whether a Man that is robbed after Convicting the Party may have an Action of Trespass for his Goods But the reason of the Case seems very strong that he may For surely Justice Jones's difficulty, how a fact that [119] had been found Felony cou'd after become
'This insertion is William Green's.
?Id.
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Trespass is easily Answered Being with respect to the King and Government Felony, and with respect to the private Interest of the Party robbed a Trespass only. So it is ruled in Dawkes and Covonaugh's Case 2. Rol. Abr. 556. and Styl. 346.
And as to the other point, Whether before a Trial the Party robbed may have Trespass I can see no difference whether the offender be tried before or after bringing such an Action. Tho in Rol. Abr. ubi. supra pl. 23. it is say'd If the fact upon Evidence appears to be Felony the Action does not lie. It does not appear it was so Adjudged and Lutterols Case is an Authority in point that he may
But it was only Objected that it might be intended that the House was Leased But the Exception was overruled and Judgm't for the Plt. by the whole Court except one
1DIGGES US LILLY. Tres. on Case Fr Plt.
A deceit sufficient ground of the action, exclusive of the word "assumed."
The Plt. Declares That upon a Day and year at R-n [sic] bought of the Deft. 3 Hhds of Tob'o then immediately to be delivered for 20£ yet the Deft. tho' often required had not delivered the Tob'o, but doth falsly and fraudulently detain the same
Upon not Guilty the Jury have found for the Plt. and 10s Damages and now the Question is whether the Plt. shall have Judgm't upon this Declaration
And I think the Declaration is good, the Action being grounded upon a Deceit in refusing to deliver Goods after the Plt. had bought them. For tho' the Plt. might have Declared upon the Mutual promises which are implied in every Bargain and so have founded the Action upon a Breach of Promise yet where there is a deceit he is at liberty to declare upon it 1. Ro. Abr. 10. 21. H. 7. 41. p. Tineus. If a Man sells Lands for a Certain Sum to J. S. and promise to enfeoffe him, tho he do not Enfeoff another but keeps it himself yet deceit lies against him 20. H. 6. 34. which Fr Roll is Contra Deceit is brought for Enfeoff'g a Stranger after a Bargain made with the Plt. for the Purchase and an Agreement to Enfeoff him and by the
'S. C. in MSS Virg. Rep. in Congr. Libry. [Note by W. G.]
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Opinion of most of the Judges it is maintainable, and Aysiough there says there is no difference betwe'n Enfeoffing another and retaining the Land himself and that in neither Case Deceit lies but Covenant. Old Book of Entries 48. b. There is a Pre- cident of a Decl. in deceit wherein the Plt. Declares that he bo't of the Deft. 4 Acres of Land for a certain Sum of Mo in hand p'd & the Deft. promised to deliver Seizin thereon within a certain time then past yet he falso et fraudulenter Enfeoffed one & refused to deliver Seizin thereof to the Plt.
[120] Robinsons Entries 29. There is a Precident where the Plt. declared upon a Bargain for all the Wool growing upon the Defts. Sheep to be delivered to him at a price agreed every Year during their lives And that the Deft. for several Years sold it to Persons unknown Plita General and Pial1 14-19. There are two other Precedents of the same sort
Obj. And tho' there is an assumpsit laid in those Declarations to deliver the Wool it was not so Essential but that it might have been omitted and any other word Expressing the Agree- ment wou'd have been as well As in this Case the Plts. declaring that he bought of the Deft. three hhds of Tob'o then immedi- ately to be delivered for so much Money is as Expressive as if it had been say'd the Deft. Promised to deliver it
In the Case of Kirby & Coles Cro. Eliz. 137. The Plt. declared that there was a Communication between him and Cooper for the Mast'g Certain Hoggs and in Consideration that the Plt. gave Cooper three Shillings for every hogg well Masted the Deft. promised they shou'd be well fatted and redelivered, to which Promise the Plt. giving Credit delivered 50 Hogs, and because they were not redelivered the Action was brought. After a Verd't it was moved in Arrest of Judgment that there was no Consideration to Charge the Deft. But by Wray & Clynch ag't Gawdy the Action is maintainable being grounded upon the Promise and Deceit Indeed where the Promise is the sole foundation of the Action there the word Assumsit is material As in the Case of Buckler and Angel 1. Sidf. 246. The Plt. Declares that in Consideration that he had procured I. S. to Surrender a House the Deft. Solveret the Plt. 106 and after a Verdict Judgm't stay'd because no Assumsit is laid
Yet same Case is Reported Raym. 123. and there Chief Justice Keiling held it only matter of Form and S. C. is Re- 'W. G. writes above - et special - for "and Pial," as in the MS.
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ported 1. Lev. 164. There the Exception is that as there was no Promise Non assumsit was no Issue to be tried and for that Reason Judgm't was Stay'd
Vid 2. Keb. L. P. Adjourned and 1. Sidf. 306. Mr. Holloway Cited Plowd. 303. 309. If a Man buy a Horse and pay no money no Action lies for the money for the Horse and here is Nud Pact Motion overruled.
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