the plaintiff, by which he hath damage to the sum of, &c.

The first attempt was made in the case of Norman vs. George.(8) The declaration was in the Common Pleas, and was trespass with a quod cum. The error assign ed was, that the trespass was alledged by way of recital, when the charge ought to have been certain and positive. The defendant in error insisted, that, as the count inserted the writ, a reference to the writ aided the insufficiency of the charge. Of this Lord Raymond doubted, for if the recited original vary from the count, the court could not take notice of it, but by resorting to the original. He also observed, that a reference to the writ, as recited, would not amount to a positive allegation, for there it is quare vi et armis. No judgment however was given.

Four years after this, in the case of Warren vs. Lapdon, (9) in the Common Pleas, the declaration in trespass was with a quod cum, and a motion was made after verdict to arrest the judgment for this cause. But the court refused a rule to shew cause, being of opinion, that although cum, if it stood alone, might be bad, yet the recital of the original had helped it.

Notwithstanding the Common Pleas would not arrest the judgment for this defect, an attempt was made in the king's bench,in the case of Douglass vs. Hall,(10) to reverse a judgment of the Common Pleas for this error. But Lee, Chief Justice, thought the declaration with a quod cum well enough, as it referred to the writ, in which quare vi et armis was a sufficient averment. However Dennison, J. assumed a different ground. He would reject cum as surplusage after the merits had been tried, but thought it bad upon demurrer. No judgment was given.

Afterwards, in the case of White vs. Shaw, (11) in the Common Pleas, whereas had compleat success. A declaration in trespass with a quod cum was demurred to specially for that cause. The court observed, that, if the declaration had been in a bill in the king's bench, it might have been bad; but in the Common Pleas, the count is helped by setting out

(8) Fitzg. 255.

(9) 1 Barnes' Notes, 176. (10) 1 Wils. 99. (11) 2 Wils. 203.

the writ in the declaration, and the plaintiff had judgment. Thus it is settled in the Common Pleas that cum, when referred to the potent word quare, amounts to a positive allegation. Yet if we look into the case of Hore vs. Chapman, (12) in the king's bench, we shall find a declaration in trespass, where quare is substitut ed for quod cum. But judgment was arrested after verdict, because quare is not positive but interrogatory, and much worse than quod cum. It is however settled in the Common Pleas, that by connecting the whereas, a word of recital, with the interrogative why or wherefore, there results a positive allegation: the reasons for this decision it is not expedient critically to examine. We perfectly understand Justice Dennison, when he observes, that, after the merits had been tried," whereas" ought to be considered as surplusage, and no notice be taken of the officious intruder.

I have found no decision of the court of king's bench, since the proceedings were in English, on the effect of whereas in a count in trespass, when introduced in proceedings by a bill, in which is not contained the interrogative why.

But

Thus far we have considered the authorities in the books. The general rule, which governs in deciding on the forms of declarations in all cases, is that they should with sufficient certainty describe the gravamen, that the defendant may know what to answer. And certainty to a common intent is sufficient. there is a greater strictness in the rule, in actions where the consequences of a conviction are penal to the defendant, than in others. In assumpsit it has been determined as long ago as the case of Ernly vs. Ld. Falkland & al. (13) that a declaration quod cum super se assumpsit is good after verdict. But the reason why in trespass it is not, is given in the case in Fitzg. 255, already cited. It is because, on a conviction in trespass, there is a judgment quod capiatur against the defendant. In this state a judgment of capiatur cannot be entered, and there is therefore no reason for requiring greater strictness in declarations in trespass than in assumpsit. There is also a difference in the form of the writ prescribed by our statute, and the common law form in the Common

(12) 2 Salk. 636. (13) Hard. 1. 103.

Pleas. In the English form, the plaintiff, after alledging his damages, adds, "and thereupon he brings suit," &c. or proffers his witnesses. In our form, there is a material substitution of the affirmative words, "which shall then and there appear." By our writ the defendant is attached to appear at a court named, there to answer to the plaintiff in a plea of trespass, for that whereas the defendant with force and arms at the time and place mentioned assaulted and beat the plaintiff, to his damage, &c." which at the said court shall appear." In this view of the declaration, can it be doubted, whether it is not certain to a common intent; or whether

the charge be not positively, although not in technical form, affirmed?

To relieve parties from the consequences of objections to mere informality in legal proceedings, the statute of Oct. 30, 1784, besides vesting the court with a general power to order amendments on motions, enacts that "no summons, writ, declaration, process, judgment or other proceedings in court or course of justice, shall be abated, arrested, quashed or reversed for any kind of circumstantial errors or mistake, where the person and case may be rightly understood by the court, nor through defect or want of form only." In the action before us, the person and case cannot be misunderstood by the court from the unnecessary use of the word "whereas." Its insertion is a mere technical mistake in form, and not a sub. stantial error. And we think with Mr. Justice Dennison, that it is mere surplus age, and after verdict shall rejected. It is not necessary to decide what judgment would have been given, had the defendant demurred specially to this declaration. But as it is a matter of practice, and the negligence or unskilfulness of attornies may again bring up the question, we are fully satisfied that as the mistake is merely formal and not substantial, a general demurrer would not avail the defendant. As we are not satisfied with the reason of the judgment in the case of White vs. Shaw, if the defendant should demur, and assign this mistake specially for cause of demurrer, we think the exception must prevail.

We are sensible, that this opinion is against the judgment of the court in the case of Holbrook vs. Pratt. By the present system of administering justice by This court, the Judges on the circuit have

not time to deliberate, or to examine books on any subject. Under these cir cumstances it would be surprising, if a mistake were not sometimes made by the Judges. This apology which we make for others, we hope the candour of the public will allow to the present Judges. Let judgment be entered according to the verdict.

DANIEL WESTON vs. MOSES HUNT.

:

In this action the plaintiff demands possession of a lot of land in the township of Gray, in this county, which, he alledges, was, in the original division of the township, appropriated to the use of the minister of Gray, for the time being that he was on the 26th of October, 1803, duly settled and ordained, as the minister of said Gray, and still so continues," and ought by the law of the land to be in the quiet possession of said lot of land, and enjoying the use thereof without hindrance or molestation. Yet the said Moses Hunt, without right or judgment of law, hath entered into the said lot, and turned the said Daniel out of the pos-ession of the same, and still holds him out. To the damage," &c.

The defendant pleaded not guilty, and upon trial before Thatcher, J. at some former term in this county, obtained a verdict. And now the plaintiff moves for a new trial, on what grounds does not clearly appear, but it may be presumed as on a verdict against evidence, the ev idence being reported by the Judge, who sat in the trial of the cause. As the opinion of the court was not bottomed upon the particular facts reported, it is unnccessary to recite them here.

PARSONS, C. 7. delivered the opinion of the court, as follows:

So far as we can collect from the declaration, the plaintiff demands the land described in his writ, as minister of the town of Gray, and in right of his town. After stating, very unnecessarily, the title, but without declaring on his own seizin, or the seizin of any predecessor, he concludes by averring, that he ought to have quiet possession, and that the defendant has turned him out of possession, whence by implication it may be inferred, that the defendant entered on him when in possession. Upon trial on the issue of not guilty, the Judge reports that it was admitted by the parties that the

plaintiff never had been in possession. Thus the part of the declaration that was most material was not proved, and the verdict for the defendant is right. In deed if the verdict had been for the plaintiff, it is difficult to discover any legal principles, on which he could have had judgment upon his declaration; the nature of his remedy, if he had right, being totally misconceived.

By the provincial statute of 28. G. 2. c. 9. the ministers of the several Protestant churches were made sole corporations, capable of taking, in succession, any parsonage lands, granted to the minister and his successors, or to the use of the ministry. And no alienation made by any minister of any parsonage lands, holden by succession, shall be valid any longer than he shall continue minister; unless, being minister of some particular town, district or precinct, such alienation be made with the consent of such town, district or precinct; or being a minister of some Episcopal church, the alienation be made with the consent of the

vestry.

The provisions of this statute, on this subject, are re-enacted by the statute of Feb. 20, 1786, on which rests the right of ministers, to hold parsonage lands, in succession, as sole corporations, and also the restriction of the alienation of their parsonages.

Ministers being thus made sole corporations, their rights and remedies are clearly defined by the common law. They stand on the same foundation, as to their parsonages, with all other sole corporations holding lands in succession, at common law.

The minister, holding parsonage lands in fee simple, holds them in the right of his parish or church; and therefore, on his resignation, deprivation or death, the fee is in abeyance, until there be a suc

cessor.

During the vacancy the parish or church have the custody, and are entitled to the profits of the parsonage.

If the minister alien with the assent of his parish, or of the vestry of the church, the alienation shall bind the successor: if without such assent, it will be valid no longer than he continues minister; and it will be no discontinuance of the estate, so as to drive the successor to his action, but he may enter.

An alienation of the parsonage by the town, district, precinct, or vestry is void :

for if there be a minister, the fee is in him; or if there be a vacancy, the fee is in abeyance. And a corporation cannot acquire a freehold by a disseizin committed by itself.

Because the minister holds the parsonage in succession, in all legal proceedings he must claim it in the right of his town, district, precinct or church.

If the minister be,or his predecessor has been disseized, he may enter, if the right of entry be not taken away; or he may bring a writ of entry, declaring upon his own seizin, or upon the seizin of his predecessor, according to the nature of his case.

If his predecessor has aliened without the assent of his town, district, precinct, or church, he may have a writ of entry sine assensu parochiae, and in the writ he must declare on the seizin of his predecessor within fifty years, and this writ may be brought in the per, in the per and cui, or in the post. And the writ of entry sine assensu capituli, in the register, will be an authority for him.

The minister may also have his writ of right on his own seizin within thirty years, or on a disseizin done to, or an alienation without assent made by, his predecessor in which last case he may declare on the seizin of his predecessor within sixty years.

In examining the declaration in the case at bar, it is not supported by any of these principles nor by any other legal principle that occurs to us. If the verdict had been rendered in favor of the plaintiff, he could not have judgment, but as it is against him; judgment must be entered according to the verdict.

* As some of our readers may not possess the Registrum Brevium,we transcribe for their use the form of the writ bere alluded to.

"Precipe A quod juste, &c. reddat B. episcopo de S. unum messuagium cum pertinentiis in N. quod clamat esse jus ecclesiæ suæ beatæ Maria de S. & in quod idem A. non babet ingressum nisi per H. cui R. quondam episcopus de S. predecessor predicti nunc episcopus illud demisit sine assensu & voluntate capituli sui c. See S. W. Fitz. Nat. Brev. 194.

ART. 18.

A Sermon preached on the day of General Election, May 25, 1808. B Thomas Allen, A. M. Minister

of the Congregational Church in Pittsfield. Boston, printed by Adams & Rhoades, printers to the State.

WE should naturally conclude, that men would become adepts in any art, which they had long practised; and that what they are under the necessity of doing often, they would at length learn to do well. But this certainly is not the case with the divines of New-England, where, though more. sermons are published than in any other part of the world, yet there are few, that bear the stamp of sterling merit. The cause of the general insipidity, which pervades these performances, we have not presumed to determine; whether it proceed from too strong an attachment to metaphysical pursuits in the writers, or from the narrowness of their circumstances, which, rendering manual labour indispensable, allows them no leisure for the cultivation of elegant litera

ture.

The sermon of Mr. Allen is a flat, ill written performance; nor does it contain a single good sentence from beginning to end. It is, however, in general intelligible, and so far, Mr. Allen, as an author, is superior to Mr. Bentley, the orator of the last year.

The text is from 1 Tim. iv. 8.

"Godliness is profitable unto all things, having promise of the life that now is, and that which is to come." On these words, Mr. Allen thus comments :

An inspired apostle assures us in our text, that godliness is profitable unto all things; that religious obligation reaches every state and condition of life, even the most exalted.

With submission to Mr. Allen, the text says nothing like the latter clause of this sentence, and the

whole meaning of the apostle is, that piety will be rewarded both in this life and the next. Mr. A. has a right to draw his own inferences from any text of scripture, of the justness and propriety of which the authorized in making the sacred publick are to judge, but he is not writers say, what they have not said.

Godliness in the human breast is a precious gift of heaven, it is an unction from the Holy One, a seal and earnest of the Spirit, a well of water springing up to everlasting life. It triumphs over every selfish consideration, inflexibly adheres to truth and duty, notwithstanding every discouragement, and opens the eyes to see the truth as it is in Jesus. It

courts no man's favour, and fears no man's censure, so as to make shipwreck of a good conscience, and nothing can quench the sacred flame.

P. 7.

Here godliness is transformed by the reverend orator into Proteus himself. It is a gift, an unction, a seal, an earnest, a well of water, and a flame.

Omnia transformat sese in miracula rerum,

Ignemque horribilemque feram, fluviumque liquentem.

Pious ralers will be opposed to state establishments of religion, and to the imposition of creeds. They will give the people the benefit of their pure examples. Their veneration of the holy scriptures, their regard to the institutions

of religion, their affection for the faithful ministers of the Gospel, their fear of

God and constant sense of accountableness to him will give a lustre to their characters, which will shine around them P. 12.

All this is highly applicable to our most virtuous and pious administration, and must be perused with delight by our exemplary president, and his accomplished secretaries.

These principles brought our first fa thers here.

P. L.

It should be hither. I go thither, and there should remain until it is time to depart thence, and return hither, and continue here, and go bence.

Though for the present our ships are shut up in our harbours to preserve them from capture, &c. P. 13.

To detain our ships in port to be worm eaten, in order to prevent their capture, is about as wise, as if we were to lock up our cloaks in a trunk to be moth eaten, lest by wearing them abroad, they might be stolen from a friend's entry, as it has sometimes happened. Ships and cloaks were designed for use; and if the former are not employed, and the latter worn, the money expended in their purchase is thrown away. To discover the wisdom of the embargo, we must borrow the spectacles of Mr. Jefferson, or those of Mr. Allen, his admirer, who thus proceeds in his panegyrick on our most excellent president.

The President of our country has for many years employed his talents in pursuing the public good, has displayed in life many virtues honorable to his char

acter.

p. 16.

The friends of Mr. Jefferson would have been more gratified, if Mr. A. had specified the virtues that adorn that eminent statesman and philosopher. Why did he not descant on his piety and attachment to christianity; on his unsullied chastity; on his inviolable integrity; on his personal courage, on the frankness of his disposition, and on the noble qualities of his heart. These virtues are truly respectable, and should not have been omitted on such an occasion in the enumeration of presidential accomplish

ments.

ART. 19.

Corinna, or Italy. By Mad. De Stael Holstein. Boston, Farrand, Mallory & Co. Belcher & Armstrong, printers. 2 vols. 12mo. 1808.

THIS work, though assuming the form of a novel, is of higher rank than most others of that name. The author has interwoven with her fable sketches of history, discussions of literary and moral topics, and pointed discriminating reflections, which raise the work much above the farrago of love, and absurdity, and ignorance, commonly denomi nated a novel. The fable is indeed, if not a secondary, a partial object of the performance, as the title seems to imply: It is therefore not great-. ly diversified with incidents.

Oswald, Lord Nelvil, a nobleman of Scotland, is the hero. He is designed as an example of the true national British character. Possessed of sensibility, taste, and nobleness seclusion of manners, heightened by of mind, but veiled by a reserve and the influence of unfortunate circumstances. In his travels in France, in the early period of his life, he had contracted an acquaintance with an artful and designing woman, whose character is depicted with much niceness of observation. This connexion, though exceedingly disagreeable to the father of Oswald, by the artful management of the lady, was continued for some time in spite of his disapprobation. A further developement of circumstances at length totally dissolved it, but not till the death of his father had ensued, hastened by his anxiety for the consequences. In this situation then we see Oswald, at the opening of the story, his health impaired and his feelings lacerated by remorse, on a