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BUT NOT PROPER TO BE INCORPORATED.
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orders and regulations then following, shall be taken as the law of
the land, and those rules, &c.
comprehending every necessary direction, it is not thought proper that
this statute or perhaps any
other on the subject, should be so incorporated.
CHAP. 23. Executors may have a writ of accompt.
The action of account which at common law lay only
between the parties, was given to executors
by this statute, and further extended by others that will be noticed.
From the frequency of these actions in the province,
it is to be inferred that this statute was in
force; but considering the general powers given to executors by the testamentary
law, (Ch. 8, S. 5,)
it does not appear necessary that it should be continued or incorporated
with our laws.
CHAP. 29. To whom only the writ of trespass of oyer
and terminer shall be
granted.--In what case the writ de odio et atia is granted.
See 4 Com. Dig. title Justices, (G. 1,) 2 Inst. 419,
and 6 Con. Dig. title Prerogative, (D. 28 and
29.) See also the seventh section of the charter, as to the power
of constituting courts of justice.
It appears by the council proceedings, that in 1696, a special commission
was prayed for to try a
ship seized for bringing in goods contrary to a late act of parliament,
on which, separate reports
were made by the gentlemen of the law who were applied to, as follows:
" I have read and perused
the statute of West. 2. and lord Coke's commentaries thereon, and I am
of opinion that a commission
of oyer and terminer cannot issue--R. G." " Upon consideration of
the statute and comment
aforesaid, and the constant practice and constitution of this province
consonant to the laws of England,
I am of opinion that such a commission as is prayed, may be granted and
executed in the
province--W. D." A similar opinion given by G. P.
In 1669, the following petition was sent by the house
of delegates to the governor: " It being represented
that there are two persons confined in gaol for murder; and whereas there
are several justices
of the provincial court, and the attorney-general in town, whereby the
said criminals may be
tried, &c. this house humbly prays that your excellency will be pleased
to grant a commission of
oyer and terminer, for the trying, hearing and determining the criminals
aforesaid during the session,"
which was assented to. Several other instances of commissions of
oyer and terminer occurred
before the revolution. In February 1777, an act passed, to enable
the governor to grant such commissions
in certain cases, which power was to exist only during the war. And
an act with the same
title in November 1783, which expired in 1785. And in May 1781, an
act was passed to ascertain
the allowance of officers in any court of oyer and terminer and gaol delivery.
In November
1787, an act passed declaring that the governor should have power to
issue such commissions for the
trial of all crimes, offences and misdemeanors whatsoever, which renders
it improper that this statute
should be incorporated, &c.
As to the last part of the statute see the note on 9
Hen. 3, Ch. 26.
CHAP. 32. Mortmain by recovery of land by default.
See 2 Bl. Com. 271. And see the note on 9 Hen.
3, Ch. 36.
CHAP. 33. Lands where crosses be set, shall be forfeited
as lands aliened in
mortmain.
Same.
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