I have already stated, ante, beginning page 143, reasons why I would think it not unadvisable to have the entailing of estates altogether taken away. "By the statutes 31 Hen. 8, c. 1, and 32 Hen. 8, c. 32, joint tenants, either of inheritances, or other less estates, are compellable by writ of partition to divide their lands." 2 Bl. Com. 185. THESE statutes are reported by the judges to be in force in Pennsylvania. By an act "concerning writs of partition," passed 11th April, 1799; "the supreme court shall have original jurisdiction over the whole commonwealth, as to the granting and proceeding upon writs of partition, at the suit of any tenant in common, joint-tenant or co-partner."-And by an act passed 28th March, 1806, "the respective county courts of common pleas, shall have, and exercise all the powers which the supreme court had and posessed by the above act, as to the granting and proceeding upon writs of partition," &c. See 3d Smith's laws, 388. By stat. 8 and 9 Will. 3, c. 31, no plea in abatement shall be admitted in any suit for partition of lands; nor shall the same be abated by reason of the death of any tenant. 3 Bl. Com. 302. This statute of William has not been reported by the judges to be in force; but by an act passed 7th April, 1807, Sec. 4,"no plea in abatement shall be admitted or received in any suit for partition, nor shall the same be abated by reason of the death of any defendant." Where there is any the least probable cause to found such prosecution upon. 3 Bl. Com. 126. PROBABLE cause which shall excuse in an action for a malicious prosecution; or, in other words, shall constitute a defence in such an action, is sometimes said to be a mixed question of fact and law. I gave my sentiments on that head, on a motion for a new trial in a case of Lyon and Fox; and to which I will refer, having given it to Mr. Browne, amongst other papers, with a view to his reporting it. In that opinion I totally rejected the idea, or expression of calling it a mixed question; for it was calculated to mislead, and did mislead in the argument; and it became necessary to analyze and explain this principle. Lyon had been committed, in the first instance, and bail refused by the magistrate committing; and, in the second instance, on a habeas corpus by the chief justice, and other judges in term, on a hearing, bail was refused, and he was remanded to custody. If probable cause was a question of law, this must be considered as concluding, so far as to stand between the prosecutor Fox, and Lyon the accused. It was holden by me that it did not stand in the way of shewing before a jury, that notwithstanding all this, no probable cause existed; that the weakness or wickedness of a prosecutor; and what was more, the error of judges in thinking there was probable cause, did not affect the right of Lyon on a trial before a jury to shew there was no probable cause. And this doctrine I have understood to have been approved by the whole profession. For my reasoning and authorities I refer to the report which Mr. Browne may publish. I add further, that even where a grand jury, finds a bill, in addition to all that judges have done, in committing, it is still enquirable whether there was reasonable ground for the prosecution; and it can go only in mitigation of damages, even where nothing has been kept back by the prosecutor, in the investigation of the probability of a cause for commitment. I am not to be at the mercy of a judge, or a whole bench, who at the instance of a prose cutor, have thought there was probable cause. For I cannot sue them; or have redress, otherwise than against him. His misconception will not justify, by alleging the act of those who, pro hac vice only, and called upon by him, are to judge. In the case of Lyon v. Fox, a new trial was granted; but on the ground only of excessive damages. We heard no more of it; I presume there was a compromise, "An assize of nuisance." -3 Bl. Com. 220. "A REMEDY which has been long antiquated in England, and which if ever pursued in this state, has certainly not been used more than once, or twice: indeed no precedent has been of its having ever been carried completely through." Chief Justice Tilghman, 2 Bin. 194. The novelty of the case induces me to give a report of an assize of nuisance, which was carried completely through. It was that of Livezey and another, against Gorgas, and others. It had been removed by certiorari from the court of common pleas to the supreme court; and after a motion to quash the certiorari (see 2 Binney, 292) came before me at a court of nisi prius, holden for the eastern term, May 26th, 1811. Lewis for the plaintiffs. Rawle for the defendants. Philadelphia County, 88. December, 1807.-No. 33. The commonwealth of Pennsylvania, to the sheriff of Philadelphia county. GREETING. WHEREAS, John Livezey, and Joseph Livezey, have complained to us that Benjamin Gorgas, Jacob Gorgas, John Weiss, George Horter, and Catherine his wife, Joseph Weiss, William Struper, and Jacob Weiss, unjustly and without judgment, have erected, levied and raised a certain wall and dam, thereby obstructing a certain mill race and water course, and have diverted a certain other mill race and water course in the township of Roxborough, in your county, to the nuisance of the freehold of them the said John Livezey and Joseph Livezey, situate in the same township and county, within 30 years last past; and therefore, We command you, that if the said John and Joseph shall make you secure of prosecuting their claim, then you shall cause 12 free and lawful men of the neighbourhood to view the said mill race, water course, and tenements, and the nuisance thereof done, and the names to be impannelled and summon them by good summoners that they be and appear before the judges of our court of common pleas, at Philadelphia, at our county court, there to be held, the 7th day of December next, together with the parties ready to recognize, &c. and put by sureties and safe pledges, the said Benjamin Gorgas, Jacob Gorgas, &c. if they be found in your bailiwick, so that they be and appear then and there before our judges aforesaid, ready to hear and recognize, &c. and have you then and there the names of those pledges and this writ. Witness, Jacob Rush, Esq. President of the said court, at Philadelphia, the 26th day of September, 1807. Served the within writ upon the within named Benjamin Gorgas, Jacob Gorgas, and John Weiss-the within named George Horter and Catherine his wife, Joseph Weiss, William Struper, and Jacob Weiss, have nothing nor have any of them any thing in my bailiwick, by which they may be attached, nor are they or any of them found within-The residue of this writ to me directed, appears in a certain pannel hereto annexed. So answers JOHN BARKER, Sheriff. The names of the recognitors of an assize of nuisance between John Livezey and Joseph Livezey, plaintiffs, and Benjamin Gorgas, (ut supra) 1 Abraham Duffield, 2 Daniel Thomas, &c. in all 24, (which number sheriff must summon in an assize. Co. Litt: 155, a" albeit the words of the writ be duodecim, yet by an ancient course the sheriff must return 24, and this for the expedition of justice.") Sheriff's notice to John Weiss, who was the actual tenant to the precipe. You are hereby informed that the recognitors of the within named assize will be and appear at the mill race, water course and tenements within mentioned, and the nuisance thereof, on the 19th day of the present month of October, at 10 o'clock, A. M. then and there to view the said mill race water course and the nuisance thereof done and you are summoned to be and appear before the judges within mentioned then and there ready to hear the recognition within mentioned. JOHN BARKER, Sheriff. Docket Entries in the Com. Pleas, of Dec. Term, 1807.-No. 33. John Livezey & Jos. Livezey, VS. Benjamin Gorgas, Jacob Gor- Assize of Nuisance, Dec. 7. 1807. Proclamation made and recogninitors of the assize called, 15 of whom appeared, the parties to the suit were then called-the plffs. appeared by Mr. Lewis their atty, and the said Benj. Gorgas, Jacob Gorgas, appeared by Mr. Rawle their atty, and protested.. against such their appearance being construed into an admission of the regularity of the plaintiff proceeding in any respect whatever, the said John Weiss saith he is seized of the premises in the count of the plaintiff mentioned, wherein the said dam, &c. are alleged to have been erected, and prays leave to present to the court an affidavit by him made, which is granted, and the said affidavit is read and filed. Whereupon the said John Weiss prays that the view in the said assize may be set aside, he the said John Weiss not having had a reasonable notice thereof, as he alleges. The court thereupon having heard the plaintiffs, by their counsel, and the said John Weiss, by his counsel, refuse the said prayer of the said John. The action was then removed by certiorari to the supreme court. Whereupon a summons to the recognitors issued from the said supreme court, as follows: The Commonwealth of Pennsylvania, to the Sheriff of PhilaGREETING. delphia County, WE command you that you cause to come before our justices |