ment of the Court of Errors be affirmed and it was so ordered, 179 leaving 
Jeake in possession of the land in dispute. 
One of the problems with which the legislature of Virginia had to cope 
related to the disposal of entailed lands, the soil of which had become exhausted 
and which were no longer of profit to the tenant in possession, let 
alone to those in whom a future interest was vested. Although in some 
colonies, the common law recovery was used (e.g., New York) 180 or this de- 
rents, otherwise no such Information could 
have been brought, and therefore he should 
not dwell upon the objection made by the 
appellants council with respect to the Defect 
in the information in not precisely charging 
that the lands in question were in grant from 
the Crown and liable to quit rents; that the 
appellant setting up this title the respondent 
in bar says 'I have a possessory title under the 
acts of Assembly of this island; I have proceeded 
according to the directions of those acts, 
proclamations have been made, you did not 
come in, I have obtained letters patent which 
are a bar.' That 2 things appeared very clearly 
upon the proceedings however die facts might 
be, 1 st. that Lady Cotton had nothing in the 
island to distrain upon for the arrears of the 
quit rents due for those lands. 2dly. that no 
quit rents had been paid since Sir Thos. Lynch's 
death, for the information states that no quit 
rents had ever been paid, that it appeared too 
from the proceedings that the appellant had 
nothing to do with the lands at the time of 
the judgment, it did not even appear, that he 
held them as tenant at will or otherwise; all 
that is shewn is, that he had a covenant from 
Lady Cotton to sell, but no legal estate or 
right whatsoever; then comes the principal 
question, whether the respondent's judgment 
is not conclusive in this collateral action? His 
Lordship says he should not consider those 
acts of Assembly as penal laws, but as beneficial 
and remedial ones, made against persons who 
owned uncultivated lands in the island, and 
would neither cultivate them themselves nor 
suffer others to do it. If in 1754 quit rent for 
such lands were unpaid from 1685 and no 
Cultivation of the lands had ever been, very 
right it was they should got into other hands 
who would and were bound to cultivate 
them. That these informations are a Proceeding 
in Rem and suppose the person intitled 
an Absentee & not amenable to the 
process of the island the informer can't come 
into the Court for lands, but when quit rents 
are due, and are due upon a Grant from the 
Crown and therefore his Lordship could by no 
means think the information irregular, for the 
acts of Assembly suppose no occupier, and the 
party claiming out of the island. It is therefore 
a contradiction to call it a proceeding contra 
totum Mundum—There may a Haeres nati 
and a Haeres facti, it would have been more 
correct to have called upon the heir or assignee 
of Sir Thos. Lynch, than his heir or other 
representative; the assignee of the land is the 
heir; the information contains a sufficient description; 
if it were necessary to describe and 
ascertain the owner, how is it to be known 
it would be in the power of the owner, by 
secret conveyances and methods totally to prevent 
it. This is a specifick action and judgment 
respecting the thing and the Court had competent 
jurisdiction. If the judgment was a 
nullity it might have been objected to in that 
court where it was obtained, and the matter 
examined and set right there. There is no 
doubt but that this being a proceeding by 
Proclamations in rem the Court ought to allow 
every person claiming either as Assignee or in 
any other Right to come in after they have 
knowledge of the judgment but there is no 
case where the same partys or persons claiming 
under the right of the same partys, can controvert 
a judgment of a Court in a collateral action 
for an error in that judgment but they 
can controvert it in the same court, and in the 
same suit, if they come in due time, and the 
assignee of Sir Thos. Lynch may come in still, 
if he has not been guilty of latches and might 
always have contested this judgment in a summary 
way" (ibid., 199-200). Compare the 
variant version of the opinion in WO 1/404/56- 
57- 
179 PC 2/111/285, 3°4- For opinions as to 
how the appellants could assert their rights in 
accordance with this judgment see Add. MS, 
36,219/203-9. 
180 See the references in Goebel, Cases and Materials 
on the Development of Legal Institutions 
(1946 ed.), 532, 534.