
    *Daniel v. Robinson’s Ex’x.
    [April, 1793.]
    Royal Assent to Statute — How Ascertained. — The royal assent to the act of 1769, concerning- executions upon judgments on forthcoming bonds, inferred from circumstances.
    Same — Same — Presumption. — Alter such judgment the court would presume that the. royal assent was proved in the district court.
    Same — Form of Declaring. — Form of declaring the royal assent, or dissent, to an act of assembly, before the revolution.
    By the act of assembly passed in 1748, it is enacted that, if the owner of goods taken in execution shall give sufficient security to the “sheriff or officer, to have the same goods and chattels forthcoming at the time of sale, it shall-be lawful for the sheriff or officer, to accept such security, and to suffer the said goods and chattels to remain in the possession, and at the risk, of such debtor, until the time aforesaid.” Old Virginia Laws, 194.
    By the same act, it is further enacted, “that where any execution shall be served upon the goods or other estate of the debtor, if such debtor shall, within five days, or ,at the time of sale, tender sufficient sureties, approved by the creditor, to be bound with him, to pay the money or tobacco for which execution was so served, and all costs, with lawful interest for the same, to such creditor, within three months, then the sheriff or officer shall restore to such debtor the goods or estate so taken.” Old Virginia laws, 194. Upon which last mentioned bond, a motion fora judgment is given upon ben days notice, if the money is not paid at the end of the three months : and the clerk of the court is directed to endorse upon the back of the execution, “that no security is to be taken.”
    By the act of 1769, intituled “an act to amend an act declaring the law concerning executions, and for relief of insolvent debtors,” it is, after reciting that no remedy was given by the fpregoing act upon forthcoming bonds, enacted, “that if the owner of such goods or chattels shall fail to deliver up the same, according to the condition of the bond, or pay the money or tobacco mentioned in the execution, *such sheriff or officer shall return the bond to the office of the clerk of the court from whence the execution issued, to be there safely kept, and to have the force of a judgment; and thereupon it shall be lawful for the court, where such bond shall be lodged, upon motion of the person to whom the same is payable, his executors or administrators, to award execution for the money and tobacco therein mentioned, with interest thereon from the date of the bond, till-payment and costs, provided the obligors, their executors or administrators, or such of them against whom execution is awarded, have ten days previous notice of such motion.” And that the clerk should endorse on every such execution, “that no security of any kind should be taken. ’ ’ Chan. Rev. 4, To this act was added a suspending clause, as follows : “Provided always, that the execution of this act shall be, and the same is hereby suspended until his majesty’s approbation thereof shall be obtained.” Chan. Rev. 5.
    There is a note, in the Chancellor’s Revisal, at the foot of the law, in these words, “The king’s approbation, which was likewise requisite to give this act validity, was published by the governour’s proclamation in the Virginia Gazette, as the persons who were appointed to inspect .the work have been credibly informed.” And that the same remark was applicable to the stray law and four others.
    The usual mode of authenticating the royal assent, in such cases, was by sending the act of assent from London to the gover-nour, to be deposited and registered in the archives of the council; after which the governour issued a proclamation testifying the king’s assent, which was published in the Virginia Gazette. But there is no such act of assent, registration, proclamation, or newspaper, now to be found ; nor any other public act or document extant to prove that the royal assent ever was in fact obtained. But', after a reasonable time from the passage of the act, the practice commenced of granting judgments and executions upon such bonds, agreeable to the tenor of the said last mentioned act of assembly, and continued, afterwards, without any interruption.
    *On the 4th of January, 1787, an act of assembly passed, intituled “an act directing the mode of proceeding under certain executions,” whereby it was enacted, “that so much of all and every act and acts of assembly as empowers the sheriffs or .other officer levying an execution on the goods or other estate of the debtor, to restore such goods or estate so taken, to the debtor, on his entering into bond with security to pay the money or tobacco for which execution was so served,, and all costs, with lawful interest for the same, to such creditor within three months, shall be, and the same is hereby repealed.” 12 Hen. Stat. 457. And instead of the three months bond, (then commonly known by the name of a replevy bond,) a bond for twelve months was substituted.
    This act repealed all acts “coming within the purview” of it. 12 Hen. Stat. 462.
    By an act passed on the 14th of December, 1787, intituled, “an act to supply the defect of evidence, of the royal assent, to certain acts of assembly under the former government :” which act, after reciting the inconveniences arising from the want of evidence of the king’s assent in such cases, enacts, “That from and after the passing of this act, when in any court of law or equity a question shall arise, whether an act of assembly passed with a clause suspending such act until the royal approbation thereof was obtained, hath received such approbation ; every such question shall be discussed upon such evidence and circumstances as ■may be produced by the parties, without requiring either party to shew the official assent to such act, or a certificate from the council books that such assent was registered therein ; any law, usage, or custom to the contrary notwithstanding.” 12 Hen. Stat. 501.
    By an act, intituled, “an act to amend the act directing the mode of proceeding under certain executions,” passed the 29th of December, 1788, it is enacted, “That bonds may still be given for the forthcoming of goods or other property at the day of sale, but, if the condition of such bond shall not be complied with, and judgment shall be entered '^thereupon, the obligors shall be deprived of the benefit of this, and the above recited act.” 12 Hen. Stat. 777.
    March 1st, 1791, George Daniel and William Churchill gave a forthcoming bond to Rachel Robinson, executrix of Donald Robinson, deceased, with a condition “ that whereas the above named Rachel Robinson, executrix, &c. hath sued out of the district court of King and Queen a writ of fieri facias against the estate of the above bound George Daniel, upon a judgment obtained in the said, court, which writ, with the legal costs attending the same, amounts to the sum of eighty-four pounds seven shillings and five pence; and whereas William Segar, D. S. of Middlesex, hath levied the said writ, on five negroes, to wit: Armstead, Avey, John, Diclc and James: now if the said George Daniel shall deliver or cause to be delivered, the above mentioned property unto the said William Segar, or any other acting sheriff, for the aforesaid county, on the tenth day of this month at Urbanna, the place appointed for the sale of the said estate taken as aforesaid, then the above obligation to be void, or else to remain in full force and virtue.”
    The property was not delivered ; and, on the 18th of April, 1792, Rachel Robinson, the executrix, obtained judgment, by motion, after legal notice, on the said forthcoming bond, against the said Daniel and Churchill; who appeared, by counsel, and defended the motion : and, from that judgment the defendants appealed to the court of appeals.
    The single question was, whether the act of assembly passed in 1769, entitled, “an act to amend an act declaring the law concerning executions, and for relief of insolvent debtors,” had ever received the royal assent ? For if not, the motion upon the forthcoming bond, in the district court, could not be sustained, and the judgment was erroneous.
    For the appellants, it was said, the judgment was erroneous, as there was no proof that the royal assent had ever been obtained; for the note, at the foot of the law, in the Chancellor’s Revisal, was of no authenticity; because *those who made it had no authority to enquire into it; and, if they had, their memorandum was founded upon hearsay only, without any judicial examination, or even the form of an affidavit: which was not sufficient, in a case where the validity of the law depended upon the royal assent being obtained ; for, until that was procured, the act, by the express terms of it, was to be suspended. That the only competent evidence of the king’s approbation was the act of royal assent, or, at least, a certificate from the council books, or a copy of the governottr’s proclamation: and, as none of these was produced, the act was of no validity, and did not warrant the motion and judgment.
    For the appellee, it was said, that the memorandum at the foot of the act, in the Chancellor’s Revisal, was evidence of the king’s assent, after so great a lapse of time: and the constant practice under it, for upwards of twenty years, by all the courts, afforded irresistible testimony of the fact; for it was impossible that such a uniform practice could have prevailed, without it; because, not only would the courts have required the proof, but the debtors, themselves, must have, frequently, raised the objection, if it had existed.
    Cur. adv. vult.
   PENDLETON, President,

delivered the resolution of the court as follows :

The doubt raised was whether the royal assent, to the act of 1769, relative to motions upon forthcoming bonds, was ever obtained, as the act was suspended, until that was procured ?

The ordinary evidence in such cases is the council books of the time, and the govern-our’s proclamation, published in the Virginia Gazette ; but the derangement of the council books during the revolutionary war, and the perishable nature of newspapers, have deprived us of that kind of testimony ; and therefore the court proceeded, under the act of 1787, to supply the defect of evidence, by making such enquiries *as might lead to some satisfactory result. The fruit of which is 'as follows :

1. Mr. Brown the clerk informs us, that application was once made to him as clerk under the stray law ; and that he applied, to Mr. Carrington, respecting it; who told him, that he had read the governour’s proclamation announcing the royal assent; which he himself afterwards saw in the newspaper, and noted in his book, that the stray law was assented to. That, being a law of the same period, and thus authenticated, is, of itself, a strong circumstance to prove, that the law concerning executions was also assented to, as nothing appears to the contrary.

2. The act concerning executions has been uniformly acted under, from that time, to this; which is most conclusive evidence, that the royal assent to it had been obtained, in the sense of the legislature expressed in the act of 1787, which declares that “every such question shall be discussed upon such evidence and circumstances as may be produced by the parties, without requiring either party to shew the official assent to such act, or a certificate from the council books, that such assent was registered therein For the long practice, commencing at a very early period after the passage of the act, and continued, afterwards, without interruption, is a circumstance, entirely, convincing, that the king’s approbation had been procured.

3. The legislature, itself, seems to have acted under the same impression. For the act of 1787, omits forthcoming bonds altogether, and only repeals the laws relative to replevy bonds of three months ; substituting, in their stead, the twelve months replevy bonds ; and repealing, so much of all acts as came within the purview of that, leaving the forthcoming bond, untouched, although that had, as before observed, been acted on, from 1770 to that period : and it is impossible that such an inveterate practice could have escaped the observation of the assembly, which proves that they meant it should continue, and they considered that the king’s approbation had, in fact, been obtained ; but that *the official evidence of it was lost: and it was, to supply the lost evidence that the act of 1787 was made.

4. But the act of 1788 still further elucidates that impression ; and removes all doubt with regard to the legislative opinion of the validity of the act of 1769 ; for it declares, in words, that “ Bonds may still be given for the forthcoming of goods or other property at the day of sale ; but if the condition of such bond is not complied with, and judgment shall be entered thereupon, the obligors shall be deprived of the benefit of this and the above recited act.” 12 Hen. Stat. 777. Which was intended as a commination, to produce compliance ; but there would have been very little terror in it, if it related to the act of 1748, as that was nothing more than a common obligation to the sheriff, upon which a suit only, and not a motion, could be maintained : an evil which the act of 1769 professed to remedy ; and there is nothing to shew that either the legislative will, or the sentiment of the country, had changed, upon the subject.

All these circumstances combined, lead to absolute conviction, that the royal assent was, in fact, obtained. But, if those circumstances had not been so conclusive, the court would have presumed, that it had been proved in the district court.

The judgment is therefore áffirmed.

See 5 Hen. Stat. 559, for the form of the instrument declaring the royal assent to an act of assembly, with a suspending clause to it.

And see the same book, page 566, for the form of the governour’s proclamation repealing an act of assembly, which had no suspending clause to it.  