ments for a long time made under it; the being and authority of the vestries for seventy years past have been derived from it; many duties are required of these by subsequent acts; and some share of our civil polity depends upon the existence of it; it was expressly excepted out of the general repeal in 1704 and has been referred to and made the ground-work of many later acts of assembly. This long uninterrupted allowance, and frequent recognition of the validity of it, leave no room to doubt of the uniform sense of the people and opinion of the legislature with respect to its existence, and furnishes a strong argument against questioning the force of it at this time of day.

As to the second question: By the act of 1702, sect. 3, for the encouragement of faithful and able ministers, laboring in the work of the gospel, to come and reside in this province; it is enacted, that a tax or assessment of 40lbs. of tobacco per poll, be yearly, and every year successively, levied upon every person, &c. and paid to the minister, &c. And the act directs, sect. 6, that, for the better and more effectual collecting of the duty of 40lbs. of tobacco per poll and paying the same to the uses intended and appointed by the law, the sheriff of the county shall, and is obliged, to collect and gather the said assessment of the several persons within each respective parish, in the same manner, and by the same authority, as the public and county levies are collected, and shall pay, &c. It could scarce be imagined, that a minister, who had a comfortable establishment in England, would be induced to come over to this province for the sake of the provision made by this act. Those who should come, it might be expected, would be such as from their circumstances must depend on their sala

ry for the support of themselves and their families. Hence a necessity that this should be annually collected and paid, and that some power should be placed in the hands of the sheriff who was to collect and gather the 40lbs. of tobacco per poll, by which he might in a speedy and summary way enforce the payment of it; and I have no doubt but that this was done and that the sheriffs had power to execute for it The act does not, indeed, in express words give a power; but the sheriff is obliged to collect and gather in the same manner and by the same authority, as public and county levies were already collected. The words are in the same manner; and by the authority, have a plain reference to the mode of collecting, i. e. compelling the payment then in use and practice, which was clearly by way of execution, or to some law then in being which pointed out a mode of compelling payment, or to both. I have met with no law which does originally and expressly give a power of executing for public and county levies, or point out any mode of compelling payment. If such an one can be found to have been existing when the act of 1702 was made, it might perhaps put an end to this question. If there was no such law in being, the mode referred to must be the usage and practice of the time.

The act of 1699, of directions for the sheriff's office, which was a perpetual law, and, I apprehend, continued in force until it was re-enacted in 1704, does plainly prove the mode then in use and practice, to have been by execution. It restrains the sheriffs from seizing tobacco unstripped, or marked for merchants, or others, for any cause except levies, and gives him a power to break locks in order to seize tobacco for public levies. This law was again re-enacted, so far as concerns the

present question, with some addition in 1715, cap. 46, a perpetual law now in force, by which the sheriffs are restrained from seizing tobacco unstripped, &c. for any cause except levies due to the public, county or parish, or for the 40lbs. of tobacco per poll to the minister; and he is empowered to break locks in order to seize tobacco for levies and dues as aforesaid.

In 1699, the law of 1702 not being made, the exception was confined to levies. In 1715, it includes the 40lbs. of tobacco per poll to the minister, because that was to be collected and gathered in the same manner. And by sect. 5 of this act the sheriff shall not levy by way of execution any public dues, or officers' fees, upon the body, goods, or chattels, of any inhabitant, except he has made a demand thereof, at or before the 20th day of February. The 40lbs. of tobacco per poll is here omitted, and I conceive with design, because every man might know without demand what he was to pay the minister. By the act of 1723, cap. 16, fines for breaches of this law are to be levied by the sheriff, by way of execution, as other public dues are to be levied. By the act of 1724, cap. 21, no sheriff shall be allowed any fee or reward for executing for any public or county levies or any public dues or officers' fees. This act recites, that several sheriffs, to increase fees to themselves, had executed several persons for public and county levies and officers' fees, and had charged execution fees thereon; and that the power of execution ought not to be used in oppression of the people, but only to enable the sheriff to collect the public dues and officers' fees with greater facility. Usage is said to be one of the best expounders of a law: the usage, in this case, is not only proved by the acts of assembly above referred to, which

at the same time that they evince the fact, shew the sense of the legislature with respect to the legality of it, but might be appealed for to the experience of every man in the county who lived and was conversant in business. Before the inspection law of 1747 took place, the sheriffs used to execute body or goods, as he thought most effectual for obtaining payment.

To draw this matter into a narrow compass, the terms tax, assessment, levy, as used in the act, convey an idea of something compulsory. The sheriffs, by the act, are obliged to collect this tax and to pay it annually. The purposes to which it is applied, required that it should be annually collected and paid. A compulsory power, therefore, in the hands of the sheriff, was necessary to enable him to discharge this obligation: the law plainly intended to give him a compulsory power. Of what nature was it? I conceive, for the reasons assigned, a power to execute body or goods, as should be most conducive to the end and purposes of the power.

August 1, 1772.

Second.

JAMES HOLLYDAY.

Sketches of an argument on this subject, by Mr. Daniel Dulany, one of the ablest lawyers which America ever produced, after he had retired from the bar.

Quare.-Whether the validity of the act of 1701 may not be asserted on the principles of the common law, though the Governor's commission determined on the royal demise, inasmuch as the meeting of the assembly and passing the act were agreeable to the commission

while in force, aud happened before notice of the royal demise ?

Defendant in assize pleaded a recovery before commissioners of oyer and terminer of damages, wherein one moiety of the land demanded was on eligit taken into execution &c. The plaintiff replied, that after the said commission, and before judgment, another commission issued. &c. Fish prayed judgment, because the plaintiff did not allege that the first commissioners had notice before judgment of the second commission; because, though the second commission, when executed, has, to some purposes, relation to the date, yet the acts done under the first, before notice, were good.-So adjudged, 34th As. Pl. 8.

Under a commission to examine witnesses, the commissioners began the examination the 28th of March, 1625, the day after King James's demise, but before notice of it. Agreed, the commission was determined by the royal demise, without any notice; but held that the proceedings before notice were good, and that the witnesses, if perjured, might be punished, because examination before notice of the royal demise was legal. Crow

v. Vernon. Cro. Car. 97. in which Lib. Ass. is referred to.

An attachment sued out in the time of Car. II. and executed at Exeter three days after his demise, but before notice of it, held to be good.-Burch v. Maypowder, 1 Vern. 400, in which the case in Cro. is cited. A commission to Algiers to examine witnesses. plaintiff died before the examination, but the witnesses were examined before notice of his death. Though the

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