III. OF EMBRACERY IN PARTICULAR.

I. What it is. II. How punishable by the common larv.

by statute.

I. WHAT IT IS.

III. How

1. It seems clear, that any attempt whatsoever to corrupt, or influence or instruct a jury, or any way to incline them to be more favourable to the one side than the other, by money, promises, letters, threats, or persuasions, is a proper act of embracery, whether the jury to whom such attempt is made give any verdict or not, or whether the verdict given be true or false. 1 Haw. 259.

2. And the law so far abhors all corruption of this kind, that it prohibits every thing which has the least tendency to it, what specious pretence soever it may be covered with, and therefore it will not suffer a mere stranger so much as to labour a juror to appear and act according to his conscience. Ibid.

3. But any person who may justify any other act of maintenance, may safely labour a juror to appear and give a verdict according to his conscience; but no one whatsoever can justify the labouring a juror not to appear. Ibid. 260.

II. HOW PUNISHABLE BY THE COMMON LAW.

There is no doubt, but that offences of this kind do subject the offender either to an indictment or action, in the same manner as all other kinds of unlawful maintenance do by the common law. Ibid.

III. HOW BY STATUTE.

"If any juror, upon any inquest whatsoever, shall take any thing by himself or another, to give his verdict, and shall be thereof convicted, such juror shall not thereafter be put on any jury, and shall pay ten times as much as he shall have taken; whereof one half shall go to him who will sue for the same, and the other half to the commonwealth." 1 Rev. Code, ch. 48, p. 47, sect. 3.

"Every embracer, who shall procure any juror to take gain or profit, shall be punished by fine not exceeding two hundred pounds, and imprisonment not exceeding one year." Ibid. sect. 4.

Indictment for maintenance.

year of

The jurors for the commonwealth, upon their oath present, That A O, late of in the county aforesaid, yeoman, on the day of in the with force and arms, at aforesaid, in the county aforesaid, did unjustly and unlawfully maintain and uphold a certain suit, which was then depending in the court of the commonwealth, between A P, plaintiff, and A D, defendant, in a plea of debt, on the behalf of the said A P, against the said A D, contrary to the form of the statute in such case made and

provided, and to the manifest hindrance, and the disturbance of justice, and in contempt of the said commonwealth and the laws thereof, and to the great damage of the said A D, and against the peace and dignity of the commonwealth.

MANDAMUS.

1. A WRIT of mandamus is, in general, a command issuing from a superior court, having competent authority for that purpose, and directed to any person, corporation, or inferior court of judicature, requiring them to do some particular thing therein specified, which appertains to their office and duty, and which the superior court has previously determined, or at least supposes to be consonant to right and justice. 3 Bl. Com. 110.

2. Applications for mandamus should always be supported by affidavits, that the court may judge of the propriety of granting them; and this is the constant practice. See Buller's N. P. under this head.

3. And therefore, if it does not appear to the court what the office is, to which the party wishes admittance, the court will refuse a mandamus. 2 Mod. 316.

4. Where the mandamus is pursued as a remedy to enforce obedience to the laws of the commonwealth, it is grantable of common right; but where the right is of a private nature, as to an office, &c. it is discretionary in the court to grant or refuse it. 11 Co. Bagg's case. B. N. P. Mandamus.'

5. It is a writ of a most extensive remedial nature; and may be issued in some cases where the party injured hath also another more tedious method of redress; as in the case of admission or restitution to an office; but it issues in all cases, where the party hath a right to have any thing done, and hath no other specific means of compelling its performance. 3 Bl. Com. 110.

6. But it ought not to be granted (except in very particular cases) where the party applying for it has a specific legal remedy. 3 Burr. 1265. 4 Burr. 2186. Cowp. 378. 1 Term. Rep. 396.

7. This writ lies as well to restore one who has been unjustly removed, as to admit one who has a right. Onslow's N. P. 191.

8. It lies to admit a person to academical degrees; to the use of a meeting house, &c. for the production, inspection, or delivery, of public books and papers; for the surrender of the regalia of a corporation; to oblige bodies corporate to affix their common seal; to compel the holding of a court; and for an infinite number of other purposes, which it is impossible to recite minutely. But at present, we are more

particularly to remark, that it issues to the judges of any inferior court, commanding them to do justice according to the powers of their office, whenever the same is delayed. 3 Bl. Com. 110. See 1 Wils. 12, 21, 76, 125, 133, 138, 206, 283, 305.

9. This writ is grounded on a suggestion by the party injured, of his own right, and the denial of justice below; whereupon, in order to satisfy the court more fully that there is a probable ground for such interposition, a rule is made (except in some general cases, where the probable ground is manifest) directing the party complained of to shew cause why a writ of mandamus should not issue. 3 Bl. Com. 111.

10. But where the mandamus is to swear or admit, the court will, in case the right appear plain, grant the writ upon the first motion; but where it is to restore one who has been removed, they would first grant a rule to shew cause why such a writ should not issue. Onsl. N. P. 191. 11. And note, the rule to shew cause must always be to the same persons to whom the writ is to be directed. Onsl. Ñ. P. 191.

12. Where the court grants a rule to shew cause, though upon shewing cause it appears doubtful whether the party have a right or not, yet the court will issue the mandamus, in order that the matter may be tried upon the return. Onsl. N. P. 192.

13. If on the rule to shew cause no sufficient cause is shewn, the writ itself issues. 3 Bl. Com. 111.

14. The first writ of mandamus always concludes with commanding obedience, or cause to be shewn to the contrary; but if a return be made to it, which upon the face of it is insufficient, the court will grant a peremptory mandamus, to do the thing absolutely; to which no other return will be admitted, but a due execution of the writ; and if that be disobeyed, an attachment will issue against the persons disobey, ing it. Onsl. N. P 193. 3 Bl. Com. 111.

15. So if no return be made, the court will grant an attachment against the persons to whom the mandamus was directed; with this difference, however, that where a mandamus is directed to a corporation to do a corporate act, and no return is made, the attachment is granted only against those particular persons who refuse to pay obedience to the mandamus; but where it is directed to several persons in their natural capacity, the attachment for disobedience must issue against all, though, when they are before the court, the punishment will be proportioned to their offence. Onsl. N. P. 193.

16. But if the return upon the face of it be good, though the matter of it be false, the court will not try the truth of the facts upon affidavits, but will for the present believe it, and proceed no further upon the mandamus. But then the party injured may have an action against him for his false return, and (if found to be false by the jury) shall recover damages equivalent to the injury sustained; together with a peremptory mandamus to the defendant to do his duty. 3 Bl. Com. 111. Onsl. N. P. 194.

17. An action will lie for suppressing the truth in a return, as well as for returning a falsehood, and that if the return be true in words, but false in substance. Doug. 154.

18. Where the return is made by several, the actions may be either joint or several, it being founded upon a tort; but if it appear upon evidence, that the defendant voted against the return, but was over

ruled by a majority, the plaintiff shall be non-suited; and though the return be made in the name of the corporation, yet an action will lie against the particular persons who caused the return to be made; or if the matter concern the public government, and no particular person be so interested as to maintain an action, the court will grant an information against the persons making the return. Onsl. Ñ. P. 194.

Note. Where several join in an application for a mandamus, they must all join in an action for a false return. Ibid.

19. What have been held sufficient returns, and what not, may be seen in Buller's or Onslow's Nisi Prius, under the head of Mandamus,' and the several books of reports where that subject has come before the court.

See the case of Dew v. Judges of Sweet Springs district court (3 H. & M. 1.) where the doctrine is very fully considered.

(A) Form of a return to a mandamus.

(On the back of the writ the following endorsement is made.) The execution of this writ appears in a certain schedule to this writ annexed. A B, &c.

Then on a piece of paper annexed to the writ make the following

return.

The answer, &c. to the writ to this schedule annexed, according to the command of the said writ.

We certify, &c. (here insert the cause, &c.) See 11 Co. Bagg's case. 3 L. Raym. (pleadings) 203. Ibid. 1.

MANSLAUGHTER, See HOMICIDE.

MARRIAGES.

THE rites of matrimony have been variously celebrated in Vir ginia, since the first settlement of the colony, as may be seen by comparing the laws referred to, in the 1st vol. of the Statutes at Large, under the titles in the index of Marriages,'' Matrimony,' with those now in force. Until the year 1784 (October session, ch. 76) no person could celebrate the rites of matrimony but a minister of the church of England, though provision was frequently made during the revolu tion, for particular frontier counties, where it was otherwise. By the existing laws, any ordained minister, in regular communion with any society of Christians, may celebrate those rites according to the forms of the church to which he belongs. (See 1 Rev. Code, p. 193, sect. 2.) And in certain counties, where there are no ministers of the

gospel, the legislature have, from time to time, authorised the courts to appoint persons to celebrate the rights of matrimony.

A certificate of any marriage solemnized, whether by a minister, or person appointed by the court, must be returned to the clerk of the county or corporation court, within twelve months, under the penalty of sixty dollars, which must be recorded by the clerk, under a like penalty. 1 Rev. Code, p. 194, sect. 10, 11.

For other matters relating to marriages (and which do not particularly fall under the cognizance of a justice of the peace) see 1 Rev. Code, ch. 104, p. 192. Ch. 169, p. 318. Ch. 218, p. 371.

MASTER AND SERVANT.

THE relation of master and servant as it respects them individually, as well as strangers, considered in a legal point of view, being of general concern, a few of the most important points relating to that subject are inserted.

1. If the hiring of menial servants (domestics) be general, without any particular time limited, the law construes it a hiring for a year. 1 Bl. Com. 425.

2. Apprentices, labourers, stewards, factors, and bailiffs, are considered by the law as servants. 1 Bl. Com. 427.

3. A master may by law correct his apprentice for negligence, or other misbehaviour, so it be done with moderation; though if the master or master's wife beats any other servant of full age, it is good cause of departure. 1 Bl. Com. 428.

4. The master may maintain, that is, abet and assist his servant in any action at law against a stranger, without being guilty of maintenance. 1 Bl. Com. 429.

5. A master also may bring an action against any man for beating or maiming his servant; but in such case he must assign, as a special reason for so doing, his own damage by the loss of his service; and this loss must be proved upon the trial, 1 Bl. Com. 429.

6. A master likewise may justify an assault in defence of his servant, and his servant in defence of his master. 1 Bl. Com. 429.

7. If any person do hire or retain my servant, being in my service, for which the servant departeth from me and goeth to serve the other, I may have an action for damages against both the new master and the servant, or either of them; but if the new master did not know that he is my servant, no action lies; unless he afterwards refuse to re store him upon information and demand. 1 Bl. Com. 429.