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which re-organized the judicial system, conferred upon the Legislature authority to establish Special Courts of Appeal, to try all causes which were pending on the docket of the Supreme Court of Appeals, when the Judges of that court ceased to hold their offices under the old Constitution.*
This clause of the Constitution was carried into effect by the act of Assembly, passed February 25, 1854.† This act distributed all the causes pending on the docket of the Supreme Court of Appeals, when the Judges thereof ceased to hold office under the old Constitution, in which the matter in controversy was merely pecuniary, and which involved an amount less than five hundred dollars, and all the said causes involving an amount exceeding that sum, where neither party to them objected, among the District Courts as Special Courts of Appeal; and all the said causes remaining, it transferred to a Special Court of Appeals at Richmond, to be composed of the five Judges of the Circuit Courts, whose commissions were the oldest under the former Constitution. By this act, a very large, interesting, and important docket was created for the Special Court of Appeals at Richmond.
No provision was made by law for reporting the decisions of this court, other than the general enactment, which authorizes Special Courts of Appeal to appoint Reporters.
As we have volunteered to do this work, having been appointed Reporters by the court on our own motion, although we have, in this regard, the sanction of the example of the English Reporters of the best credit and highest authority, (the decisions of the courts of Westminster, having been handed down to us through a long period, by the individual enterprise of the Reporters, in the absence of any provision of law,) yet it will not be amiss here to set forth our views of the propriety and usefulness of the publication of these decisions.
The utility to the profession of a collection of the well-considered opinions of able and experienced jurists upon questions of law fully argued before them, is too obvious to require comment. The decisions of the courts of Massachusetts, New York, and other States, are daily cited in the courts of Virginia. Surely then the value of the careful decisions of a court composed of five eminent Virginia Judges, of questions arising under the laws of Virginia, cannot be doubted. But, in our view, the decisions of the Special Court of Appeals, apart from their intrinsic merit, should be regarded as decisive authority, settling the rules of property in this State. It is the court of the last resort in the cases to which its jurisdiction extends, which comprises most of the appeals to the Supreme Court of Appeals during the term of five or six years. It was erected for a specific object, it is true, (that justice might no longer be denied to the litigants,) but we can see nothing in that object to deprive its decisions of the acknowledged attributes of decisions of courts of the last resort. “The immediate province of the courts of justice is to administer the law in particular cases. But it is equally a branch of their duty, and one of still greater importance to the community, to expound the law they administer, upon such principles of argument and construction, as may furnish rules which shall govern in all similar or analogous cases.
* Constitution, Art. 6, & 12.
+ Sess. Acts 1853-4, p. 18.
The existence of the Special Court of Appeals is limited. Its functions cease with the determination of a limited number of causes. But during its existence, its jurisdiction is coördinate with the Supreme Court of Appeals, and its decisions of equal force and authority.
Nor is there any thing in the constitution of this court, which should induce the bench and bar of Virginia to hesitate to accord to its decisions, the authority here claimed for them. The Judges are men of ripe judicial experience, and the majority of the members of the court have grown grey on the bench.
The court has furnished an example of diligence in the determination of causes which, if followed by the courts throughout the State, would soon relieve Virginia from the too just reproach of denial of justice, resulting from inconvenient delays in the administration of her laws.
As to the execution of these Reports, we have endeavored to be concise and accurate, in the abstracts of points decided, and the statements of the facts. In reporting the arguments of counsel, we have been guided rather by the interests of the subject-matter discussed, than by the ingenuity and learning of counsel. The Reports appear voluminous for the number of cases decided. This is due in a great measure to the number of opinions delivered by the Judges, attesting their industry, while it greatly increases the bulk of this volume. Since the first term, there has been a change in the practice of the court in this regard, and one opinion is usually delivered in behalf of the court, unless there be some dissentient. There is material on the docket of the court for two more volumes, which will be published, if the enterprise meets with the approbation and encouragement of the profession.
* Preface to 1st Vol. Douglas' Reports.
The General Index to Grattan's Reports is a work which we believed the wants of the profession required. No effort was made to make it a digest of the law, as it now is, upon the subjects considered in Grattan. Such a task would have required more time and labor; and we believed the Index to be a subject to which the maxim, qui cito dat, bis dat, clearly applied. Our purpose, then, has been merely to furnish a convenient reference to the decisions of the Supreme Court of Appeals, since the publication of “Tate's Digested Index," and during the period embraced in the nine volumes of Grattan, commencing with the third and ending with the eleventh. It was a dry and uninviting task, and its performance claims no other merit than fidelity and accuracy.
TABLE OF CASES REPORTED.
Adams et als. and Hewitt's adm'r, 34 | Isler v. Willis,
43 Adams et als. v. Gilliam et als. 101 Anderson et als. and Doswell, 185 James et als. v. Gibbs et als. , 277 Ashby, &c. v. Harrison's Committee, 1 James River and Kanawha Co. and
94 Bardin and Graham,
206 Breathed et al. v. Smith et al. 301 Lesslie's ex'or v. Brown's ex'ors, 216 Brockenbrough v. The James River and Kanawha Co. 94 Major's ex'or v. Gibson, &c.
48 Brown's ex’ors and Leslie's ex’or, 216 Miller et als. and Wilson et ux. 353
Montgomery v. Rose,
5 Campbell et als. and Turner, 256 Carlisle and Sherrard et als. 12 Perkins v. Clements et als.
141 Clements et als. and Perkins, 141 Poythress et als. v. Harrison, 197 Craddock et als. and Foxwell et als. 250 Preston and Early,
228 Crump v. Ficklin for Guthrie, 201 Price, sheriff, v. Holland, assignee, 289
Price v. Same,
289 Doswell v. Anderson et als.
5 Early v. Preston,
228 Edmunds v. Venable et als. 121 Sandidge's ex’or v. Graves' ex’or, 101 Elliott's adm'r and Smith, 307 Sherrard et els. v. Carlisle,
12 Smith v. Grosjean,
109 Ficklin for Guthrie and Crump, 201 Smith v. Elliott's adm'r,
307 Foxwell et als. v. Craddock et als. 250 Smith et al. and Breathed et al.
Smith and Sneed, Gibbs et als. and James et als. 277 Sneed v. Smith,
46 Gibson, &c. and Major's ex'or, 48 Gilliam et als. and Adams et als. 161 Thompson v. Graves' ex’or, 101 Graham v. Bardin, 206 Thompson and Green,
427 Graves' ex’or and Sandidge's ex'or, 101 Turner v. Campbell et als.
256 Same and Thompson,
101 Green v. Thompson,
427 Vass' ex'or et als. and Young et als. 167 Grosjean and Smith,
109 Venable et als. and Edmunds, 121
Harrison's Committee and Ashby, 1 Willis and Isler,
43 Harrison and Poythress et als. 197 Wilson et ux. v. Miller et als. 353 Hewitt's adm'r v. Adams et als. 34 Holland, assignee, and Price, sheriff, 289 Young et als. v. Vass' ex'or et als. 167 Same and Price,