1811.

w

Fall v.

ty.”. Unless the charge be thus conjunctly considered, OCTOBER,
it amounts to nothing but a charge of getting her with
child, which, standing singly, might be incompetent to
give cognizance to the Court. Admit, however, that we Overseers of

Augusta.
were at liberty to separate and garble this charge, it
ought not to be done ; as every construction should be
adopted to support, rather than reverse, the judgments of
the Courts below. The judgment, in this case, therefore,
affirms all those facts, (by referring to the recognisance,)
which are necessary to give the county Court complete
jurisdiction: and, therefore, the question does not arise,
in this case, whether such an affirmation in the judgment
be absolutely necessary. Without going at all into that
question, at present, the case of Preston v. The Auditor,
1 Call, 475., is a conclusive authority that a general aver-
ment, that the necessary facts appeared to the Court, is
sufficient. While this general averment in the case be-
fore us is afterwards annihilated, and done away, in rela-
tion to the previous instalments, by the particular facts,
inconsistent there with, agreed between the parties, it re-
mains in full force as to the subsequent instalments.
There is not, therefore, a vice, in this part of the judg-
ment, which should extinguish and destroy it altogether.

My opinion, therefore, is, that the Court erred in giving judgment at all in relation to the previous instalments, for the reasons stated, and erred, to the appellant's injury, in disallowing the rejected testimony: and that the judgment be reversed, and the cause remanded, to be proceeded in, in relation to the future instalments; in which future proceeding, the rejected evidence ought to be admitted.

Judge FLEMING. Deeming it unnecessary, in this case, to consider whether evidence tending to criminate a person, not before the Court, be admissible or not, my opinion is formed on other grounds.

It is an uncontroverted principle of law, that, in all prosecutions on penal statutes, the strict letter of the law

1811.

Fall
y.

a

OCTOBER, must be pursued, and nothing admitted by inference, or

implication; the proceedings in the prosecution before

us, then, are erroneous from their foundation, Overseers of In an act " providing for the poor,” &c. passed the Augusta.

26th of December, 1792, sect. 18., it is enacted, that if
any single woman, not being a servant or slave, shall be
delivered of a 'bastard child, which shall be chargeable,
or likely to become chargeable, to any county, and shall,
upon examination before any justice of the peace, of the
county, to be taken in writing, upon oath, charge any
person, not being a servant, with being the father of such
bastard child, it shall and may be lawful for any justice
of the peace of the county,' wherein the person sợ
charged shall be a resident, or inhabitant, upon applica:
tion made to him, by the Overseers of the Poor, or any
one of them, of the county wherein such child shall be
born, to issue his warrant for the immediate apprehende
ing of the person so charged as aforesaid,” (to wit, with
being the Fatuer of such bastard child,)“and for bring.
ing him before such justice, or before any other justice of
the county,' &c. &c.

It appears from the record, that the recognisance,
under which the present prosecution is carried on, is the
third he has been compelled to enter into for the same
cause;

the first of which was dismissed on the 17th of August, 1796, the Court being of opinion that the recog. nisance was improperly taken. On a second prosecution, for the same alleged offence, the said appellant, Fall, ap. peared in Augusta county Court, on the 18th of October, 1736, “in discharge of his recognisance, entered into at the instance of the Overseers of the Poor; and no person appearing to prosecute, the said Fall is discharged.” Thus the matter rested, until the month of November, 1797, when he was carried before Mr. Justice Swoope, and compelled to enter into a third recognisance, in which the justice states, “ that Catharine Thyrey, of the said county, single woman, hath, by her examination, on oath, hefore me, declared, that on the 15th day of January,

1811.

V.

1796, last, she was delivered of a bastard child, in the October, county aforesaid, which is likely to become chargeable to the said county, and hath charged the above-bound Daniel

Fall Fall with having gotten her with child; now, if,” &c. : Overseers of

Auugsta. which he might have done a dozen times, and not have been liable to this prosecution ; inasmuch as it is not stated that the woman ever charged him with being the father of the child aforesaid, born on the 15th of January, 1796, which the law expressly requires, to authorize a prosecution, by the Overseers of the Poor, on that statute; and, in my apprehension, no subsequent proceedings have cured, or can cure, this radical defect in the prosecution. It is a well-settled rule of law, and has been often decided by this Court, that, in common civil suits, the plaintiff must show, by averment in the declaration, a just cause of action, or it will be error, even after verdict and judgment.(a) How much more forcibly does the (a) See

( rule apply, in criminal prosecutions, under a penal sta. ministrator v. tute? The law being explicit in requiring a direct charge, M 127.

Dawney, 3 H. upon oath, that the delinquent is the FATHER of such bas. Lomax.;

Hord, ibid. tard child, before a prosecution can be legally com- 271, "Gordon menced; and there being no such charge in the whole Browne's er

ecutor, ibid. record, I am clearly of opinion, that the judgments in 219.; "and maboth Courts are erroneous, and ought to be reversed, ny other ca. and the whole proceedings quashed, and judgment entered for the defendant.

Moore's ad.

and others v. Monday, Dec. 7th,

1812

Coleman and wife against Holladay.

A tract of land was

and

of the

after her

THIS was an appeal from a judgment of the district conveyed, in Court of Fredericksburg, in an action of ejectment; trust, “to I. L., his heirs upon a special verdict, finding that Betty Littlepage,

assigns forever, to the now Betty Holladay, the now wife of Lewis Holladay, grantor du: the defendant, was, on the 14th of March, 1774, seised ring, her na in her demesne, as of fee, in the lands and premises in tural life, and,

the declaration mentioned, and being so seised, did, on death, to the use of her son, the sanie day and year, by her certain indenture of trust, L. L., and his heirs and as-convey the same to John Lewis, his heirs and assigns, signs forever; but her said for certain uses and trusts therein mentioned; whereup38"5001 as he on the said John Lewis entered into the said lands and son to possess should arrive

premises, and was thereof seised and possessed as the at full age, a certain part law requireth, which indenture was admitted to record thereof; her intended hus. in the general Court the 9th of December, 1783 ;

that to the use of the the said Lewis Holladay had notice thereof on the day remaining

when it was executed; that soon after the execution of part during his life, or un; the said indenture, a marriage took effect between the til he should marry, after said Lewis Holladay and Betty Littlepage, who was living her death, and

longer at the time of finding this special verdict ; that Mary and if the said 2. L. should Littlepage, (the daughter mentioned in the said inden. arrived at the ture of trust,) one of the lessors of the plaintiff, interage of twen- married with Robert S. Coleman, the other lessor of the

plaintiff, prior to the institution of this suit; that Lewis child, or chil- Littlepage (the son in the same indenture mentioned) dren, the said

his having attained the age of twenty-one years, died, withsigns

, to hold out ever having had a child, that John Lewis, the trusith the use of tee, departed this life prior to the institution of this suit; the grantor's daughter, J.

Lu, and her heirs and assigns forever." It was decided, that L. L., the son, was seized in fee, of the lands conveyed by the deed, from the date thereof, (subject to the reservations and exceptions in favour of the grantor and her intended husvand) with a right to take possession of part, on attaining the age of twenty-one years; which estate in tice vas sebi ject to be defeated by his dying under age, and without a child; but that the concurrence of both these contingencies was necessary to defeat that estate ; and, therefore, it appearing That L. L. did attain the age of twenty-one years, though he afterwards died without 205 child, that no right accrued to the daughter, under the deed.

no

ty-one years,

die

without

trustee,
heirs and as-

1811.

that the defendant, Lewis Holladay, and Betty, his wife, OCTOBER, by their certain indenture of bargain and sale, bearing date the 15th of June, 1778, conveyed the land in ques. Coleman and tion to Joseph Holladay, (who was a subscribing witness

Holladay. to the said indenture of trust, and had full notice thereof,) to him, his heirs and assigns forever; that Joseph Holladay departed this life, having first duly made and published his last will and testament in writing, whereby he directed the lands in question to be sold by his exe-, cutors ; that the defendant, Lewis Holladay, one of the executors therein mentioned, alone proved the same, and took upon himself the burthen of the execution thereof; that he, as executor' of Joseph Holladay,

• by indenture of bargain and sale, dated the 1st of May, 1798, conveyed the said land to Benjamin Holladay, who was one of the devisees under the said will ; and the said Benjamin Holladay, by his indenture of bargain and sale, dated the 28th of November, 1799, conveyed the same to the said Lewis Holladay, the defendant."

The deeds and wills above mentioned were found, by the jury, in hæc verba. The deed of trust from Betty Holladay to Fohn Lewis, (after reciting that the said Betty had two children, to wit, a son named Lewis, and a daughter named Mary, for whom she intended to make some provision, and that a marriage was shortly to be solemnized between the said Betty and Lewis Holladay) witnessed that, “ for, and in consideration of the premises, &c. she conveyed the land, &c. to the said John Lewis, his heirs and assigns forever, to the use of the said Betty during her natural life, and after her death to the use of her son, Lewis Littlepage, and his heirs and assigns forever; but her said son to possess, as soon as he arrived of full age, that part of the said land that lies on the east side of East North East River; her said intended husband to have the use of the remaining part of her said land, during his life, or till he should marry, after her death, and no longer : and if the said Lewis Little