grantee as well as a grantor; and the when the grant is made, be in esse and ceiving; otherwise the grant is void. Tit. Grant, A, B.

grantee must, capable of reComyn's Dig.,

It seems to be quite clear, therefore, that a patent for land is void if the patentee is dead at the time it is issued.

In Kentucky a statute was passed in 1792 reciting that, "Whereas in some instances grants have been issued in the names of persons who were dead prior to the date of the grant, and cases of the same nature may happen in the future," and enacting that "in all such cases the land shall descend to the heir, heirs, or devisees in the same manner as it would do if the grant issued in the lifetime of the decedent." Stat. Laws of Ky., p. 779; 1 Litt. 160. And it has been held in that State that a patent issued to a dead person prior to this act of 1792 conferred no right until the passage of the act; and that, where, in the interval between the issuing of such patent and the passage of the act, a patent had been issued to another, the title of the grantee in the last patent was good against the heir or devisee of the grantee in the prior patent, who was dead when it issued in his favor. Lewis v. McGee, 1 A. K. Marsh. R. 199.

No such statute has ever been passed in Virginia. Section 12, ch. 144, of the Code, p. 582, (which re-enacts the law of February 24th, 1820—Acts 1819-20, ch. 28, §2,) does not make valid a patent issued to one dead at the time, or give to his heirs and devisees the benefit of it. It manifestly applies to personal contracts and obligations merely, and the remedy given by it is confined to the personal representative. As to patents, therefore, the rule of the common law is still in force with us.

But it is insisted that, admitting this to be so, yet the instruction ought not to have been given, because a patent cannot, in an action at law, be avoided or defeated by

1860. July Term.

Blankenpickler

V.

Anderson's heirs.

1860. July

Term.

pickler

matter dehors; that a patent, being record evidence that a title has passed from the Commonwealth, cannot, as Blanken- long as it remains in force and is not vacated or annulled by some direct proceeding calling in question its validity, be collaterally impeached for any matter not appearing on its face.

V.

Anderson's beirs.

There has been much conflict of opinion, and no little contrariety of decision, upon the question how far a patent may be impeached, in an action at law, for causes not apparent on its face. The better opinion seems to be that while its validity cannot be questioned in a suit at law, but is impeachable in equity only, for causes anterior to its being issued which render it voidable merely, it may be impeached at law, for any matter which makes it absolutely void: as where the State has no title to the thing granted, or where the officer had no authority to issue the grant. Polk's lessee v. Wendal, 9 Cranch's R. 87; Same case, 5 Wheat. R. 293; Patterson v. Winn, 11 Wheat. R. 380; Whittington v. Christian, 2 Rand. 353; Warwick v. Norvell, 1 Rob. R. 308.

In the case now under consideration, there was no effort to impeach or set aside a patent. The design was to show that the paper purporting to be a patent did not really possess that character. The defence set up was not that a patent relied on by the plaintiffs ought to be vacated, but that the paper produced by them, as and for a patent, was in truth no patent-that it was an utter nullity. Of course, therefore, the rules protecting patents from assault, in a court of law, can have no application. A matter like this is, to use the language of Judge Marshall in Polk's lessee v. Wendal, "necessarily examinable at law." Accordingly in the case, already referred to, of Lewis v. McGee, 1 A. K. Marsh. R. 199, the patent was held void in an action of ejectment; there being no suggestion even that it was necessary to

resort to a scire facias, or other proceeding, for the purpose of vacating it.

The refusal to give the instruction asked for constitutes error for which the judgment must be reversed, and the cause remanded for a new trial. This renders it unnecessary to express an opinion upon any of the other questions in the case, inasmuch as upon the next trial they may not arise.

The other judges concurred in the opinion of Robertson, J.

1860. July Term.

Blankenpickler

V

Anderson's heirs.

1860. July Term.

Lewisburg

PARSONS v. HARPER.

August 28th.

*

1. Since the act, Code, ch. 148, § 7, p. 589, counts in trespass may
be joined to counts in case in an action on the case.
2. In an action on the case for suing out a capias and imprison-
ing the plaintiff, in an action of slander in which he was
defendant, it is not necessary to aver malice or want of
probable cause in suing out the capias.

3. In an action on the case for suing out a capias and imprison-
ing the plaintiff, in an action of slander in which he was
the defendant, he may prove as damage sustained by him
the amount of the fee paid by him to counsel for a motion
to quash the capias.

4. Where the motives of a party are a material enquiry in a
cause, any evidence which tends in any degree to throw
light upon them is not to be rejected, though the court
may think it not entitled to much weight with the jury.
5. If a record is offered in evidence, a part of which is ob-
jected to by the other party, he must specify the part ob-
jected to, or the objection may be properly overruled.
6. In an action on the case for false imprisonment, the whole
record of the case in which the imprisonment occurred is
competent evidence for the plaintiff.

7. In an action on the case for false imprisonment, if the defen-
dant has unlawfully sued out process of arrest against the
plaintiff, and has caused him to be imprisoned upon it, and
the process has been afterwards set aside because illegally
issued, it constitutes no defence to the party; but the
plaintiff is entitled to recover damages for the wrong done
him, without regard to the motives of the defendant, or
the circumstances attending the doing of the wrongful and
unlawful act.

*The act says: "In any case in which an action of trespass will lie, there may be maintained an action of trespass on the case."

8. In such a case, though the act complained of was done without malice, yet, being unlawful and in violation of the plaintiff's right, he is entitled to recover not only for the costs he has incurred, but for the loss of time, interruption to his business, and the suffering, bodily and mental, which the act may have occasioned.

9. An irregularity in forming a jury must be objected to before the jury is sworn, unless the party is shown to have been injured by it.

This was an action for trespass on the case in the Circuit court of Randolph county, brought in August, 1856, by William J. Harper against Solomon Parsons. The declaration contains eleven counts, the first of which is as follows:

Virginia, Randolph county, to-wit: William J. Harper complains of Solomon Parsons, who hath been summoned in a plea of trespass on the case.

First Count.-For that the said Solomon Parsons, on the 29th day of October, 1855, at the county aforesaid, had pending in the Circuit court of Randolph county an action of trespass on the case in his favor against the said William J. Harper, for words alleged to have been spoken of and concerning the said Solomon Parsons by the said Wm. J. Harper. That the said Solomon Parsons, on the day and year aforesaid, at the county aforesaid, maliciously, falsely, and without probable cause, made complaint before Wm. C. Chenoweth, a justice of the peace for the county of Randolph aforesaid, under oath, that he, the said Solomon Parsons, believed that the said Wm. J. Harper was about to quit this State unless he, the said Wm. J. Harper, be forthwith apprehended. That the said Solomon Parsons, on the day and year aforesaid, maliciously, and without probable cause, procured the said justice to, and the said justice then and there, by reason of the procurement by the said Solomon Parsons aforesaid, did then and there direct VOL. XVI.-S

1860.

July

Term.

Parsons

V.

Harper.