
    *Wilkinson v. Mayo.
    Tuesday, 25th April, 1809.
    County and Corporation Courts — Jurisdiction at Quarterly Terms — At flonthly Terms. — The County or Corporation Courts, at quarterly terms, may, in their discretion, receive the probate of deeds, or wills, or decide on controversies concerning mills, &c. or, indeed transact any business embraced by the general jurisdiction of such Courts; but, at a monthly session, they cannot take jurisdiction of any case expressly and exclusively assigned to a quarterly term.
    Mills — Application for Leave to Build — Ownership of Land. — If the applicant for leave to build a mill state, that he is the owner of the land on both sides of the water-course, when, in truth, he is not, the writ of ad quod damnum and inquisition taken upon it, ought to be quashed.
    This was a supersedeas to a judgment of the District Court of Richmond, by which a judgment of the County Court of Powhatan was reversed.
    Joseph Mayo, at the December term, 1805, made application to the Court of Powhatan County, for leave to erect a water grist-mill, on* Mahook creek, the bed whereof was stated to belong to himself, and that he owned the lands on both sides. A writ of ad quod damnum was thereupon issued, in the manner prescribed by law, which having been duly executed on the 11th day of January, 1806, was returned, with an inquisition annexed, to the January Court, which was held on the 15th of the month; and thereupon it was ordered, that Thomas Wilkinson, the proprietor of the lands, which, it appeared by the inquisition, would be overflowed by the mill-pond, should be summoned to the next Court, (which, in Powhatan, is a quarterly term,) to shew cause why Mayo should not have leave to erect his mill &c. at which Court, Wilkinson, being- summoned, appeared ; and, on hearing the parties, by their counsel, the writ of ad quod damnum, and inquisition thereupon, were quashed, “it appearing to the Court, that a part of the dam of the applicant, will run upon the lands of the said Wilkinson.” From which order, Mayo appealed to the District Court; where the same was reversed, at the costs of Wilkinson, the Court being of opinion, “that the County Court had no jurisdiction over the cause, at the term when the same was decided.” On the first application to the Court of Appeals, for a supersedeas to the last-mentioned judgment, the motion was denied; but, afterwards, the Court doubting on the subject, it was granted.
    Samuel Taylor, for the plaintiff in error. There are two points in this cause. 1st. Whether the County Court had jurisdiction over the case of a mill at a quarterly term ? and, *2dly. Whether the District Court did not err in awarding costs against Wilkinson ?
    The first point will depend on the true construction of the 5th, 7th, and 8th sections, of the act by which the present jurisdiction of the County Courts is defined. By the 5th section, a general jurisdiction is given to the C ounty Court; the 7th section prescribes the ordinary jurisdiction of those Courts at the quarterly terms ; and, though there are no express words in this section giving jurisdiction in case of mills, yet there are no negative words. Under the 8th section, the monthly Courts are restrained by negative words from exercising the powers given to the quarterly Courts: certain acts are enumerated, which the Justices at their monthly sessions may perform; and they are prohibited from doing such business as is particularly assigned to the quarterly Courts; but no such exception or restriction exists in the 7th section. The true reasons of the Legislature, (as may be seen in the preamble to the act of 1785,) were to separate the trial of causes, from the ordinary business of the Court. Anterior to that act, they were only monthly sessions of the Court, and the docket business was often interrupted. It was merely to enable the Court to proceed with that kind of business, with more regularity, that quarterly terms were established. But it was still discretionary with them to proceed on other objects embraced by the general jurisdiction of the Court.
    The practice of the country is strongly in favour of the exposition which I have given. It has been the universal practice, since 1785, to admit wills and deeds to record, at a quarterly term; and, generally, to transact any other business, within the general jurisdiction of the Court, which might be done, without interfering with the business of the docket. If then there remained a doubt upon the subject, the necessity of quieting rights, would induce the Court to lean in support of the practice.
    On the second point, the District Court certainly erred, in awarding costs against Wilkinson. He was summoned to shew cause, at a quarterly term, at the instance of Mayo. He was made a party contrary to his inclination ; and must either have submitted to a judgment against him, unheard and undefended; or have appeared, and contested. If the Court had no jurisdiction, the party ought shrely to pay the costs who improperly brought him into it.
    Call, for the defendant in error. This is a question growing out of the plain words of an act of assembly ; and the whole difficulty arises from confounding the ancient with the present jurisdiction of the County Courts.
    By the act of 1785, a new jurisdiction of the quarterly Courts was created; not a mere abrogation of the monthly Courts : and it is a rule of law that where a Court is instituted with particular jurisdiction, it can exercise none but that expressly given. Before that act, the quarterly Courts could try any matter ; but this act confined the jurisdiction to particular causes: and by the repealing clause, all other laws on the subject were repealed. How then can it be said, that a quarterly Court may exercise a jurisdiction-under a pre-existing law ?
    The explanatory act of 1787 declares, that March, May, August and November, shall be quarterly terms, for the trial of certain causes ; all other causes to be tried at the monthly Courts; and where the Legislature mean that they shall exercise concurrent jurisdiction they say so. in express terms, and enumerate the cases. There are certain cases in which the monthly and quarterly Courts have concurrent jurisdiction ; certain others, in which the monthly Courts have sole jurisdiction; certain others, where the jurisdiction is exclusively given to the quarterly courts; but in no part of any law can it be found, that the quarterly Courts may exercise jurisdiction over a mill case. How is it possible, then that a quarterly Court can exercise a jurisdiction expressly given to a monthly Court ?
    It may be objected, that a purchaser may lose his land, if a deed could not, in some cases, be recorded at a quarterly Court; because eight months would expire before the succeeding monthly Court. But there is no want of Courts *in this country for recording deeds; since it may be done in the General Court, the District Court, or the Court of the County where the land lies; and, if these are not enough, the inconvenience must be remedied by the Legislature. The jurisdiction for proving and recording deeds is expressly given to the monthly Courts, and therefore, I contend, cannot be exercised by a quarterly Court. But, perhaps, as to deeds, the general words of the act for regulating conveyances, may vary the effect of those used in the 8th section of the County Court law, and authorise their being recorded at any Court, whether monthly or quarterly, within the eight months.
    The object of the Legislature was to prevent any interruption to the trial of pleas between parties. No reason can be given for taking up questions concerning mills, which does not equally apply to all other cases. Will the Court then give a construction which will entirely frustrate the intention of the Legislature ?
    As to the costs, it is admitted that Mayo can only recover the costs of the reversal, and not the costs in the County Court.
    Taylor, in reply. The principal point, on which Mr. Call relies, is, that by the act of 178S, constituting quarterly Courts, a new jurisdiction was created. But this idea is erroneous. The Court was composed of the same Judges, without the grant of any new powers. If there had been a newly created Court, there must have been new commissions to the magistrates : which was not the case. There was, indeed, an alteration in the terms of the Court, but no new powers were conferred ; nor was the general jurisdiction of County Courts abridged.
    The Legislature, it is true, at the last session, passed an explanatory law respecting the probate of deeds and wills, and the granting of letters of administration at the quarterly terms,  But no decision of this Court rendered such an act necessary. Doubts might have been entertained, as expressed in the preamble of the act; but they were the doubts *of inferior Courts; and until a law is expounded by the highest judicial tribunal, it is never deemed to be settled.
    Friday, April 28. The Judges gave their opinions.
    
      
      See monographic note on “Courts” appended to Cropper v. Com.. 2 Rob. 842.
    
    
      
      Mills — Application for Leave to Build — Ownership of Land. — The law expressly says that the party applying to build a mill must own the lands on which he means to build. Stokes v. Upper Appomatox Co., 3 Leigh 335, citing Wood v. Boughan, 1 Call 329; Wilkinson v. Mayo, 3 Hen. & M. 565. See foot-notes to Home v. Richards, 4 Call 441; Richards v. Hoome, 2 Wash. 36, and monographic note on “Mills and Milldams” appended to Calhoun v. Palmer, 8 Gratt. 88.
      Same — Right of Mill-Owners to Condemn Lands. — See the principal case cited in Varner v. Martin, 21 W. Va. 546.
    
    
      
      a) Rev. Code, v. 1, p. 84, 85.
    
    
      
      b) c. 8.
    
    
      
       Sessions Acts, c. 10.
    
    
      
      See acts of 1808, c. 25, p. 33.
    
   JUDGE TUCKER.

On the 18th day of December, 1805, Mayo petitioned the County Court of Powhatan for leave to build a mill ; and thereupon a writ of ad quod damnum was awarded, executed and returned to January Court; whereupon it was ordered, that Thomas Wilkinson, the proprietor of the lands, which it appeared by the inquisition would be overflowed by the mill-pond, should be summoned to appear at the next Court, to shew cause, &c. at which Court, Eeb. 19th, 1806, Wilkinson, being summoned, appeared, and on hearing the parties by their attorneys, the writ of inquisition was quashed; it appearing to the Court that a part of the dam of the applicant will run upon the lands of the said Wilkinson.

The suggestion of Mayo when he applied for leave to build a mill, that he owned the lands on both sides Mahook creek, the bed whereof belonged to himself, being disproved (as it would seem) by evidence offered on shewing cause, there can be no doubt that, upon the merits, the judgment of the County Court was correct.

But it is suggested, that February Court, to which Wilkinson was summoned to shew cause, being a quarterly Court, the County Court had not jurisdiction over the case at that term, when the case was decided ; and for this cause the judgment was reversed, with costs, by the District Court.

But, which of the parties was in fault ? The summons must have been awarded on the motion of Mayo, in January ; and, being Issued and served on Wilkinson, he must either have appeared to shew cause against the application, or have lost his land, without compensation.

I cannot consider this as a question of jurisdiction, strictly. The Court obtained jurisdiction over the case regularly in December, and its proceedings were regular at that term, •and'in January, except in directing that Wilkinson should be ‘summoned to shew cause at the next Court, which happened to be a quarterly term, instead of a monthly one. The error, if one, in awarding the summons to be made so returnable, proceeded from Mayo, and must have been founded upon his motion. Is he entitled to take advantage of his own error ? I think not; the cause being once regularly in Court, could not, I think, be said to be coram non judice, although the summons were directed to be returnable to a wrong term : at least, Wilkinson alone had a right to complain, that he was not summoned to the proper term. For the monthly and quarterly Courts are all the same Courts, consisting of the same Judges, appointed and sitting by virtue of the same commissions, and qualifications. Their original .constitution as Courts of Record, for the counties respectively, has never been altered, although their terms have been varied, and the course of business in many respects regulated by statutory provisions. • Under these provisions it would certainly be error to try an ejectment at a monthly Court, because the law expressly declares, that such trials shall be had at the quarterly terms. But there is a maxim in law, consensus tollit errorem, which might, perhaps, (for I mean not to give an opinion on the point,) cure the error, if the consent appeared upon the record, Wilkinson having obeyed the summons, without objecting to the irregularity of it, and Mayo being present by his attorney, and both parties being heard upon the merits, without objection from either, surely that party, from whom all the irregularity proceeded, had no right to complain of that irregularity, when judgment was pronounced against him. Under all the circumstances of the present case, I think the judgment of the County Court was right, and therefore ought to be now affirmed — and that of the District Court reversed.

JUDGE ROANE.

The writ of ad quod dam-num and inquisition in this case were rightly quashed by the County Court, for the reason given, if that Court had at the time, a competent jurisdiction to hear and determine the controversy.

*On a deliberate consideration of the several acts on this subject, I am of opinion that the County Courts are not prohibited from acting, at the quarterly sessions, on the subjects embraced by the general jurisdiction of such Courts, by any provision contained in those acts. Indeed, the importance of many of such controversies may have weighed with the Legislature to confide them, the rather,1 to the quarterly sessions, which are probably better attended by justices and counsel, than the monthly Courts : at any rate, however, I see nothing to prohibit the quarterly Courts from acting on the subject, and therefore that the judgment of the District Court should be reversed.

JUDGE FLEMING.

On the 18th day of December, 1805, Joseph Mayo made application to the County Court of Powhatan, for leave to erect a water grist-mill on Mahook creek, stating that he was owner of the lands on both sides of the said creek, the bed whereof belonged to himself ; and obtained a writ of ad quod damnum to issue, agreeably to the act of Assembly concerning mills, &c. which writ having been duly executed on the 11th of January, 1806, was returned to Court, with an inquisition annexed, on the 15th day of the same month, and ordered to be recorded; and Thomas Wilkinson, the proprietor of the land which will be overflowed by the said pond, was ordered to be summoned to the next Court {which was the Court of Quarter Sessions for the County) to shew cause, &c. at which Court Wilkinson appeared, in obedience to the summons, and the Court proceeded to trial.

From this statement of the case, two questions arise.

1st. Whether the Court had jurisdiction of the case, at a quarterly session ? and if so,

2dly. Whether the judgment is erroneous on its merits ?

1st. With respect to the point of jurisdiction. The preamble of the act of 1785, for reforming the County Courts, which was the foundation of the present system, shews the principal object of the Legislature. Itrecites that, ‘ ‘whereas the methods hitherto established for the administration *of justice within this Commonwealth, have proved ineffectual, and the various kinds of business, cognisable by the County Courts render it necessary that certain sessions of the said Courts should be set apart for the trial of suits, depending in the said Courts, and other sessions for the transaction of other business ; — Be it enacted,” &c.

In the act of December, 1792, for reducing into one the several acts on the subject, it is enacted, section 7th, that Courts of quarter sessions shall be held, in the respective Counties, for the trial of all presentments, criminal prosecutions, suits at common law, and in Chancery, where the sum exceeds twenty dollars, or eight hundred weight of tobacco, and shall continue for the space of six days, unless the business be sooner determined.

Sect. 8th. A monthly session shall be held, &c. for the trial of petitions for small debts ; or for trover and conversion, or detention of any thing not exceeding twenty dollars, or eight hundred pounds of tobacco ; for proving and recording deeds and wills, and granting certificates of probate and administration, and for transaction of all business, which by law is, or shall be, made cognisable in a County or Corporation Court, except such as has been herein assigned to the Court of quarter sessions. Provided nevertheless, that injunctions in Chancery, and several other enumerated cases, may be heard and determined, either at a monthly or quarterly Court. But the case of controversies about mills is not one of those enumerated in the proviso, giving concurrent jurisdiction to the monthly and quarterly Courts : notwithstanding which, as there are no restraining words in the law, prohibiting the Courts of quarter sessions from hearing and deciding those cases, (in doing which they may use their own discretion,) I can see no good reason why they should not do so, if they find leisure for the purpose ; as the monthly, and quarter session Courts are composed of the same members, acting under the same commission, and holding their respective sessions at the same place. Different, indeed, would the case be, if a monthly Court ^should hear and determine a cause particularly assigned to a Court of quarter sessions ; and why ? because there is an express exception of such cases in the eighth clause of the act.

The principal object of the law, in discriminating the business of the monthly, from the quarter session Courts, was, that the business of inferior consideration should not interfere with, and clog the business of superior importance ; but, if the latter Courts find they have sufficient time (in the course of six days, being the time which those Courts are by law to continue, unless the business be sooner finished) to do both, I am of opinion that they have jurisdiction to do so, especially in cases of contests about mills, where expedition is necessary, for the convenience of the parties. And it seems strange to me, that the appellee in this case, the prime mover of the business, (who set out in error, by misstating his case, and dragged the appellant into the Court of quarter sessions against his will,) should now except to the jurisdiction of the Court, which heard and decided the cause, at his particular instance and request.

The proving and recording deeds, and wills, is a business particularly assigned to the monthly Courts, and not mentioned in the proviso giving concurrent jurisdiction to both Courts. 1 will suppose, for example, that Wilkinson had conveyed his land to Mayo, by deed, dated the 17th of June, 1805, and had acknowledged it in Court, or it had been proved by three witnesses, on the 16th of February, 1806, the "day the controversy about the mill was decided, which would have been one day within eight months from the date, I have no hesitation in saying that, in my opinion, it would have been as valid, to all intents and purposes, as if it had been acknowledged, or proved, at the first monthly Court after it was executed : and I believe Mr. Mayo would have been of the same opinion.

If the Court of quarter sessions would have had jurisdiction to receive the probate of the deed and admit it to record, I see no reason why it should not have had jurisdiction in the case before us.

*As to the merits of the case, I concur with the Judges in the following opinion, which has been unanimously agreed to.

“This Court is unanimously of opinion, that there is error in the judgment of the District Court, in this, that the appellee, on his first application to the County Court of Powhatan, for leave to build a mill on Mahook creek, stated that he was owner of the lands on both sides of the said creek, (the bed whereof belongeth to himself,) when it appeared in evidence, that a part of the dam of the applicant will run on the lands of the appellant Thomas Wilkinson : the said judgment is therefore reversed with costs ; and that of the County Court affirmed ; and the petition of the appellee, and the subsequent proceedings thereon in the County Court, ordered to be dismissed.” ^Virginia, to wit:

At a General Coiirt held at the Capitol, in Richmond, the nth day of. June, 1808. 
      
       Vi. L. V. edit. 1794. c. 67, sect. 1, 2, 3, 5, 7, 8, 9, in which the words, the said Courts, are constantly used and repeated.
     
      
       Vi. 1 Call, 336.
     