I
THE LIBRARY
OF
THE UNIVERSITY
OF CALIFORNIA
LOS ANGELES
SCHOOL OF LAW
^
j?eZ/a/e jurisdiction from the Court of Comjnon Pleas, in
all civil cases; in which the Court of Common Pleas has original jurisdiction;
and the Court of common Pleas has orignal Jurisdicton in all civil cases
where ihe matter in dispute exceeds tlie Jurisdiction of Justices of the
Peace. Stat. Vol. 2%. p. 50. 57. \. 3. 4. Suits arc rarely commenced in
the Supreme Court. That Court holds but one session in each County annu-
ally; and a cause will, in general, be brought to a final decision sooner in
the Supreme Court, by commencing in the Common Pleos, and appealing
to the Supreme Court, than by commencing orignally in the Supremo
Court. — See Appeal.
ASSUMPSIT.
Precipe for Summons in Assumpsit.
A. B. ^
V. > hi Assumpsit. Damages — — Dollars.
CD.)
Issue a Summons, returnable forthwith,
\if in term time,'] or, at next term [if in vacatio7i] Endorse, "Suit
brot, on note of hand given by deft, to pltff. for dollars, dated,
^c, Also for goods sold and delivered, ^c." (a)
To the Clerk of Com. Pleas, or Sup. Court.
Dated, &c. T. S. Attij. for Pltff.
Writ or Summons.
[Seal.] The State of Ohio County, ss.
To the Sheriff of said county, Greeting :
We command you to summon C. D. to appear before
our Supreme Court, or, Court of Common Pleas, of the County
aforesaid, at the Court House in said County, forthwith \ifin term
time] or, on the first day of their next Term, \if in vacation] to
answer unto A. B. in fx'^le^oi Assumpsit. Damages dollars;
and have you then there this writ.
Witness, T. T. Chief Judge of our Supreme Court, or.
President Judge of our Court of Common Pleas, aforesaid, this
day of A. D.
Attest. . T. C. Clerk.
Upon the back of this writ, the Clerk endorses the. cause of action
and the amount appearing to he due, as the same are stated in the
(a) The substance of the cause of action must be briefly set out in the
Praecipe, and endorsed on the writ, otherwise the writ may be quashed on
motion at the costs of the Plaintilf.
AvSSUMPSIT. 9
Prascipe. If liie {plaintiff is anon-resident of the County, the writ
must also be endorsed by some responsible freeholder of the County,
as sccm'ity for costs. Stat. vol. 29. p. 58. 59. § 3. 4. The Sher-
iff is not bound to serve the writ until such security is given ; the
statute however, in this respect, is considered merely directory,
and service of process without an endorsement for the costs is val-
id. The defendant after the service and return of the writ, on mo-
tion to the Court, either at the appearance or any subsequent Term
before final Judgment, may take a rule upon the plaintiff to enter
security for the costs within such time as the Court shall judge rea-
sonable ; and if this rule be not complied with, the plaintiff will bo
non-suited. 2. Ohio Rpj). 259. Ohio Conds. 353.
A copy of this writ must be personally served upon the defend-
ant, by the Sheriff or other proper officer, or left at his usual place
of residence, at any time before the return of the original. Stat,
vol. 29. p. 117. §. 1. If the original be returned "not served,"
or "not summoned," the plaintiff may sue out an alias summons,
and afterwards plurics summonses, until the defendant shall be
served.
Alias Summons.
[Seal.] The State of Oliio County, ss.
To the Shcriir t»f said County, Cueeti?(o:
We command you, as heretofore wo have commanded you, to
summon, &c. [Conclude as in the original su?nmons, ante. 8.]
Pluries Summons.
[Seal.] The Stale of C)hio, Ccninty, ss.
To tli(^ .Slicriir of s;iid ( 'ounty, CunirriNo:
We command ynu. as r>ltcii hcrctoiore wc havooommandedyou,
to summon, &c. [Conclxidc. as in the original summons, ante, 8,]
B
10 ASSUMPSIT.
If the defendant remove into another County, after a summons is
sued out, but before service, the plaintiff may sue out a testatum
summons, directed to the Sheriff of that County, into which he may
have so removed. Stat. vol. 29. p. 118. §. 5.
Testatum Summons.
[Seal.] The State of Ohio, Hamilton county, ss.
To the Sheriff of Franklin county. Greeting:
Whereas we lately commanded our Sheriff of said Hamilton
County, to summon C. D. to appear before our Cmirt of Common
Pleas of said Hamilton County, at the Court House in Cincinnati,
on the day of, &c. to answer unto A. B. in a plea of Assump-
sit, Damages Dollars; and our said Sheriff of iZam/ton county,
hath returned thereon, that the saidC. D. was not summoned; up-
on wliich, on the part of the said A. B. before our said Court of
Common Pleas of Hamilton County, it is sufficiently testified, that
the said C. D. after the suing out of the said writ of summons, did
remove into the said County of Franklin; therefore we command
you to smiimon the said C. D. to appear before our said Court of
Common Pleas of said Hamilton County, at the Court House in Cin-
cinnati on the first day of their next term, to answer unto the said
A. B. in the same plea of Assumpsit, Damages Dollars ; and
have you then there tliis writ.
summons, ante. 8.]
Witness, &c. [^Conclude as in the original
II. Capias ad respondenduji.
The plaintiff is entitled to a capias in all actions brought on any
covenant, bond, sealed bill, promissory note, due bill, bill of ex-
change, or article of agreement for the payment of any sum of
money certain, and in all actions brought on other contracts, by
which the sum due or damages sustained, shall appear to be unccr-
ASSUMPSIT. 11
tain, but which the plaintiff, or iiis agent, shall swear by affidavit,
to be filed in the cause, are not less than one hundred dollars. The
plaintiff is also entitled to a capias in all other cases where the
Court in term time, or any Judge thereof in vacation, shall order
special bail to be given, titat. vol. 29. p. 59. §. 6.
The plaintiff, in all cases where he is entitled to a capias, mav
in the first instance, sue out a summons, and upon its return, the
Court on motion, may order special bail to be given, in the same
manner, as if the capias had beea the first process. Stat. vol. 29.
p. 117. §. 1.
Praecipe for Capias.
A. B. ^
V. > In Assumpsit. Damages Dollars.
C. D. J ^
Issue a capias ad respondendum
returnable forthwith, \if in term time,'] or, at the next term, [if in
vacation,'] Endorse " Suit brot on note given by deft, to pltff.
for Dollars, &c. [See, Prcecipc for summons, ante. 8.]
note (a).
Hold to bail in the sum of Dollars, [double the amount due
or sworn to.]
To the Clerk of Com. Pleas, or. Sup. Court.
Dated, &c. T. S. Attij. for Pltff.
In those cases where the crt/)/rtsSssues upon ajjidavit, and not, as
of course, the affidavit is annexed to the above Praecipe, and is filed
therewitii; thus:
Affidavit to hold to Bail.
The above named A. B. makes oath and says that the above
named C. D. is truly and justly indebted to this deponent in the
sum of dollars, [not less tfutJi 100 hundred dollars.] upon the
IS ASSUMPSIT.
contract set forth in thi; above Prccci])e, or, for dajnagis mslulned
hy this deponent for the violation of the contract set forth in the
above Praicipe.
Sworn to, &c. " A. 13.
The oke by an AGE^T.
T. W. of, &c. agent of the above named A. B. makes oath,
and says, that as he is informed and verily believes, &c.
When application is made to a Judge, in vacation, for a capias,
an affidavit of the "jjarticular circumstances" must in like manner
be annexed to the Praecipe ; and the Judge will exercise a discre-
tion, in allowing or refusing the writ, and also in fixing the amount
of bail: If allowed, the Judge will make the following order on the
PiEEcipe.
Judges order for SrEciAL Bail in Vacation.
Let a capias issue upon the above Praecipe; and the Sheriff" is
hereby ordered to hold the defendant to bail in dollars.
T. W. Judge, &c.
To the Clerk of Com. Pleas, or, Slip. Court.
Dated, &c.
If application be made to the Court in term time, the common
Praecipe for a capias is first filed, and then the plaintiflT discloses to
the Court, by affidavit or otherwise, the particular circumstances,
which entitle him to special bail, and thereupon the following order
is taken :
ASSUMPSIT. VA
Order of Couut for Special Bail.
A. B. ^
V. } In Assumpsit.
CD.)
On motion to the Court, by Mr. O. counsel for th« Plaintiff, it is
ordered that a capias ad respondendum issue in this cause, against
the Defendant and tliat the Sheriff hold him to bail in Dollars.
Writ of Capias ad respondendum.
[Seal.] The State of Qjiio County, ss.
To the Shcriif of said County, Greeting:
We command you to take C. D. if he may be found in your
bailiwick, and him safely keep, so that you have his body before our
Supreme Court, or, Court of Common Pleas, of the County afore-
said, at the Court House in said County,o7i the first day of their next
term, to answer unto A. B. in a plea oi' Assumpsit; Damages
Dollars : and have you then there this writ.
Witness, T. T. Cliicf Judge of our Supreme Court, or,
President Judge of our Court of Common Pleas, aforesaid, tliis
day of A. D.
Attest. T. C. Clerk.
Upon the back of this writ, the Clerk endorses the cause of action,
and the amount appearing to he due, or sworn to, and the amount
for which hail is required to he taken, as the same are stated in the
Praecipe, Judges order, or order of Court. The same endorsement
for costs is also necessary, as the in case of a summons. See,
summons, ante. 8.
For the form o^ alias ^nd plurics capias, See, alias and pluncs
summons, ante. 9.
14 ASSUMPSIT.
Testatu3i Capias.
[Seal.] The State of Ohio County, ss.
To the Sheriff of Franklin County, Greeting:
Whereas we lately commanded our Sheriff of Hcunilton County
to take C. D. if he might be found in his bailiwick, and him safely
keep, so that he should have his body before our Court of Common
Pleas of said Hamilton County, at the Court House in said County,
on the day of, &c. to answer unto A. B. in a plea of Assumpsit,
Damages Dollars; and our said Sheriff oi Hamilton County hath
thereon returned, that the said C. D. was not to be found in his
baihwick, upon which, on the part of the said A. B. before the said
Court of Common pleas oi Hamilton C»unty, it is sufficiently testi-
fied, that the said C. D. after the suing out of the said writ of capias,
did remove into the County of Franklin aforesaid; therefore w^e
command you to take the said C. D. if he be found in your bailiwick,
and him safely keep, so that you have liis body before our said
Court of Common Pleas of Hamilton County, at the Court House
in said County, on the first day of their next term, to answer unto
the said A. B. in the same plea of Assumpsit, Damages Dol-
lars : and have you then there this writ.
Witness, &c. [Cojiclude as in the original capias,
ante. 13.]
When the defendant is regularly arrested, he must either go to
prison for safe custody, or enter into a bond with sureties, to be
approved of by the Sheriff, conditioned for his appearance in Court,
at the return of the writ — This is called bail hclow in contradistinc-
tion to that bail which is afterwards put in when the defendant does
appear upon the return of the writ, and which is sometimes called
bail above.
ASSUMPSIT. 15
Bail Bond to the Siisriff.
Know all men by these presents, that we C, D. E, F. and G. H.
arc held, and firmly bound unto T, W. Sheriff of the County of
in the sum of dollars, [doitble the sum endorsed on the W7-it,'] to
be paid to the said Sheriff, his executors, administrators or assigns,
for which payment well and truly to be made, we do hereby jointly
and severally bind ourselves, our heirs, executors and administra-
tors, sealed with our seals, and dated this day of A. D.
The condition of the above obhgation is such, that if the above
bound C. D. do appear before the Court of Com?non Pleas of the
County of , at the Court House in said County, on the first day
of their next term, or on the succeeding day, («) to answer to A. B. in
a plea of Assumpsit, Damages Dollars, then this obligation to be
void, otherwise in full force and virtue in law.
C. D. [Seal.]
E. F. [Seal.]
G. H. [Seal.]
If the defendant appears according to the exigency of the writ
and the bail bond, fresh security is required of him, who are bound
for the payment of the debt and costs, should the plaintiff recover in
the action ; or that the defendant should be rendered into custody.
This is done by the defendant, and his sureties entering into a
recognizance to that effect, which is called j)utting in hail to the
action, or hail above, or, entering special hail. The form of this
recognizance is prescribed by Statute. Vol. 29. p. 61. §. 17.
(a) Spocial bail must be filed on tbc return day of tho capias, or on tbo
succeeding day. Slat. vol. 29. p. 60. J. 9.
16 ASSUMPSIT.
Recooxizance or Special Bail.
A. B. )
V. > In Assumpsit.
C. D. )
The State of Ohio County, ss.
Be it remembered, that, on this clay of A. D.
G. H. and E. F. of the County of , personally appeared
before J. K. 07ie of the Judges of the Supreme Court of Ohio, or,
one of the Judges of the Court of Common Pleas of the County of
, or, Clerk of the Supreme Court of the State of Ohio, or,
Clerk of the Court of Comjnon Pleas of the County of , \as the
case may &e,] and severally acknowledge themselves to owe unto
A. B. the sum of dollars \double the sum endorsed on the writ,'\
to be levied on their several goods and chattels, lands, tenements
and estates; upon condition that if the defendant C. D. shall be
condemned in this action, at the suit of A, B. the Plaintiff, he shall
pay the costs and condemnation of the Court, or be rendered, or
render himself, into the custody of the Sheriff of said County, for
the same, or in case of failure, that the said G, H. and E. F. will
pay the costs and condemnation for him.
Taken and acknowledged, the day and year above written
before me.
J. K.
The bail piece is also prescribed by Statute. Vol. 29. p. Gl.
^. 17.
Bail Piece,
State of Ohio: Supreme Court, or, Court of Common Pleas, of
the day of , A. D. C. D. of the County of , is
delivered to bail on a cepi corpus, unto G. H. and E. F. of the
said County, at the suit of A. B. in a plea of Assumpsit.
Attest S. W. Ckrk.
ASSUMPSIT. 17
It sometimes happens that after the bail bond to the Sheriff has
been entered into, the conclitiou ic broken by the nec^lcct or refusal
of the defendant to put in and perfect special bail in due time : in
which case there are two remedies, at the election of the plaintiff;
he may either take an assignment of the bail bond, and bring an
action against the bail, or he may rule the Sheriff to bring into court
the body of the defendant, and thus compel him to pay the debt
and costs, and leave him to look for his indemnity to the bail bond.
Stat. vol. 29. 2^. 60. §. 10.
Such is the general outline of the proceedings enforcing the
appearance of defendants, upon a capias, or of obtaining redress
in default thereof: the details are to be found in the statute. Vol. 29.
p. 60. 61. 62, &c.; and do not come within the scope of this work.
In England, when the defendant is abroad, or keeps out of the
way, so that he cannot be arrested or served with process, the
plaintiff on the return of non est inventus to the pluries capias,
may have a writ of exigi facias, and proceed to outlawry. Outlawry,
in civil actions, is putting a man out of the protection of the law,
so that he is incapable of suing for redress of injuries, and may be
imprisoned: and he forfeits thereby all his goods and chattels, and
the profits of his lands, which are seized by the Sheriff and sold for
the benefit of the crown. The plaintiff however, out of the pro-
ceeds, may obtain satisfaction of his debt and costs, upon applica-
tion to the court of exchequer or lords of the treasury. There is
nothing analogous in our law, to this process of outlawry: but so
far as regards the satisfaction of the claims of creditors, where the
debtor absconds or is a non-resident, the same object is efiected by
a writ of Attaclnnent, by virtue of which the proj)erty of the debtor
is seized in the first instance, and placed in the custody of the law;
and after judgment obtained, is sold by the Sheriff and the proceeds
applied, pro rata, to the satisfaction of all the creditors. Stje,
AttacJtment. If a defendant however, at the time of suing out
process, have a residence in, or bean inhabitant of the county, the
court on motion, will order a proclamation to issue, warning the
defendant to appear at a certain day therein named, or that judg-
ment will be rendered against him. This proclamation must be
published three successive days at the door of the Court House, and
also three times in some newspaper published in the State; and if
the defendant fail to appear, judgment by default may be taken
against him, and his property seized in execution, and sold by the
Sheriff. Stat. vol. 29. p. 118. §. 6.
C
IB ASSUMPSIT.
Defendants Appearance.
It is difficult to determine precisely what constitutes an appear-
ance under our practice. In England, it is said to be the first act
of the defendant in Court. This first act formerly consisted in a
personal appearance before the Court, and causing an entry to be
made on the records of the Court, that the defendant ohtulit se in
propria persona; but it is now the practice to appear by attorney,
and tliis appearance consists in filing common hail, in the King's
Bench, and by entering an appearance, in the Common Pleas. This
appearance, which requires an actual entry to be made upon the
roll, or a memorandum to be filed with the proper officer, is neces-
sary in all cases, before the plaintiffcan proceed in his suit, except
by declaring de bene esse, or conditionally. 1. Sell. Prac. 90.
Our statute provides, that when the Sheriff or other officer shall
return the summons or other process, "served " the defendant shall
be considered as being in Court, and may be preceded against ac-
cordingly. Vol. 29. p. 117. §, 3. This statute does not embrace
a capias, as the return upon a capias is, "I have taken the body."
Its object is the same as the statutes, 12. G. 1. c. 29. and 5. G. II.
c. 27; wliich authorize the plaintiff to enter an appearance for the
defendant; that is, it enables the plaintiff to proceed on to final
judgment and execution, without any actual appearance on the
part of the defendant. In our practice a formal appearance is
altogether unnecessary. When the first process is a capias, the
filing special bail is considered an appearance, the same as filing
common bail, in the King's Bench. When the first process is a sum-
mons, the filing a plea, or demurrer, or the doing any other act of
record, would constitute an appearance, for most purposes.
It is a well settled rule, that an appearance cures all errors and
defects in process. 1. Stra. 155. 3. T. R. QU. 1 jB. ^ P. 344.
3. Ohio Rep. 272. Ohio Conds. 569. After a defendant has
appeared, there is, in general, an end of the mesne process, and
ASSUMPSIT. 19
therefore, if after being sued by a wrong christian name, he ap-
pears by his right name, the plaintiff may declare against him
in his right name. 2 Wils. 393. 1 Petersd. Abg. 724. This
rule does not however preclude the defendant from coming into
Court, and moving to quash the process for informality, or set aside
the proceedings for irregularity. But advantages of this sort must
be taken hefore appearance.
The summons having been returned "served," or special bail
having been entered, the plaintiff must file his declaration within
the time limited by the rules of Court, or he will be non-suited.
ASSUMPSIT.
DsCLARATIONS.
No uniform system of pleading has ever been established in the
State of Ohio, although the substance of the English system, as laid
down in Chitty's pleadings, and other English authors, has in gen-
eral been regarded as a part of our law. In several of the United
States, the English forms have been greatly simplified, and prece-
dents from those States have been repeatedly held good, by our
Supreme Court. 2 Ohio Rep. 5. Ohio Conds. 230. 3 Ohio. Rep.
3G8. Ohio Conds. 608, (a) The extreme length of the English
precedents has long been a standing complaint even in England,
and one of the beneficial effects of the late attempts at Reform in
that Kingdom, has been to introduce into their practice a new set
of precedents of declarations in Assumpsit, and to some extent, in
Debt; which has entirely superseded the older forms as found in
Chitty and other authors. These precedents, which are set forth
at length in 20 Com. Law Rep. 323; and in Appendix No. 1, to
this volume, are more full than those of a similar kind in some of
the United States; but upon examination, they will be found the
most perfect forms of declarations, that probably have ever been
(o) Ever since the American Revolution, there has been a constant strug-
gle to disencumber the science of Law of its useless appendages, and the
steady aim has been to arrive at the merits and justice of every cause.
Hence the great degree of liberality in giving matters in ev'dence under
the general issue, which were formerly pleaded specially: the liberal Stat-
utes of Amendments and Jeofails; the extensive practice of submitting
^'as:reed cases;'' and the almost total disuse of pleas in Abatement, a species
of iPleading which occupies no small proportion of the older authors. There
are now nearly three hundred volumes of American reports, and the title,
Abatement, is rarely to be met with in their Table of Contents. But there
may be danger of an opposite extreme, where Form and Justice may be sa-
crificed together; especially under a system like ours, where neither the
reputation or the fees of a Lawyer have any connexion whatever with the
number or magnitude of his folios. Hence originated a practice, which at
n period not very remote, prevailed to considerable extent, in some parts of
of this State, and whicli was denominated ^'Prairie Pleading." Upon the
back of the writ the plaintiff filed his declaration in this form: "J^ai-r. in
Short." To this the defendant plead thus: "Plea in Short." Upon the
issue thus made up, the parties went to the Jury. This mode of pleading
was abolished by the following rule of a late Chief Justice of our Supreme
Court: That in all cases where the declaration is in Sho7-t, and the plea in
Short, the Judgment of the Court shall also be in Short, and the cause
ohall stand dismissed with costs.
ASSUMPSIT. 21
used in England, or in any other country, where the common law
of England prevails. So far as they extend, they have been co-
pied literally into this work, with no other variations than such as
were necessary to adapt them to our practice; and they have been
made the standard of all other declarations and pleadings contained
in the following pages.
On Pbomissory Notes.
^ Supreme Court, or, Courtj)f Co?n-
No. 1. Payee vs. 3IaJcer. | mo7i Pleas: Term. [The Term
to which the writ was returned, or,
the Term at which the cause was
brought into Court hy appeal, or
certiorari'] A. D.
V,
CorNTY, ss.
A. B. complains of C. D. (a) in a plea of assumpsit, for that
whereas * the said C. D. on at made his promissory note
in writing, and delivered the same to the said A. B. and thereby
promised to pay to the said A. B. or order dollars, in days
after the date thereof, which period has now elapsed, and the said
C. D. then and there, in consideration of the premises, promised to
pay the amount of the said note to the said A. B. according to the
tenor and effect thereof. Q)) Yet the said C. D. hath disregarded
(a) If a writ bo returned "served" as to one or more of several defendants,
and "not found" as to others, a suggestion of such return, as to the defend-
ants not found, must be made in the declaration. Slat. Vol. 29. p. 04, }
36. The suggestion may be made immediately after the (a) in the above pre-
cedent, and in the form following: "the Sheriff of said County having re-
turned not found as to E. F. and G. H. against whom process in this cause
was also issued." The declaration then sets forth the cause of action in the
same manner as if all the defendants had been served. The defendants
who were not served, may afterwards be made parties to the judgment, by
scire facias. See, Scire Facias. All declarations may comvicnce as in tho
above precedent, whether the action be originally brought in the Common
Pleas, or removed into that Court by appeal or certiorari, from a Justice of
the Peace.
(i) If the common counts arc added, which is always advisable, they may
be inserted immediately after the (/>) in the above precedent, thus: "And
also for that whereas, the said C. D. on at, was indebted to the
said A. B. in dollars, for the price and value of goods, then and there
bargained and sold by the plaintiff to the defendant, at his request, &:c. —
[Add the other common countt aa in No. 15, post, aiid conclude as ihcrein
23 ASSUMPSIT.
his promises, and hath not paid the said sum of money, or any part
thereof; to the damage of the said A. B. dollars [the amount
stated in the writ; or in cases of appeal or certiorari, an amount
sufficiently large to cover thej)laintiff's demand,'] and thereupon he
brings suit, 6z;c.
By T., his Atty.
No. 2. Indorsee vs. Maker.
[Proceed as in No. 1, to the * — the
said C. D. on at made his promissory note in writing,
and then and there delivered the same to E. F. and thereby pro-
mised to pay the said E. F. or order dollars in days
after the date thereof, which period has now elapsed, and the said
E. F. then and there endorsed the same to the said A. B., whereof
the said C. D. then and there had notice, and then and there, in
consideration of the premises, promised to pay the amount of the
said note to the said A. B. according to the tenor and effect thei'e-
of. Yet, &c. {conclude as in No. 1.] (a)
No. 3. Partners vs. Maker.
[Commence as in No. 1. A. and B.
partners in trade, under the name of A. and Co. complain of C. D.
in a plea of assumpsit, for that whereas, the said C. D. on at
made his promissory note in writing, and delivered the same
to the said A. and B. and thereby promised to pay to the said A.
and B. by the said name of their firm of A and Co. Dollars
directed.] If the maker of a note has not signed his real name, or only a
part of it, say, "under the signature of , &c." If the note he dated in
a foreign country, as at Paris, say, "at Paris, to wit, at T." [Where the
action is brought.] A declaration upon a note, not negotiable, need not set
out the consideration or the original contract. 1 Ohio Rep. 115. Ohio
Conds. 56. 3 Ohio Rep. 368. Ohio Conds. 608.— A note partly destroyed
by accident, may be declared upon as entire. 2 Ohio Rep. 13. Ohio
Conds. 234.
[a) If the notejbe made by an agent, say — "the said C. D. on — at — by
one W. his agent, for that purpose duly authorized, made his promissory
note, &c."
ASSUMPSIT. 23
in days after the date thereof, which period has now elapsed,
and the said C. D. then and there in consideration of the premises
promised to pay the amount of the said note to the said A. and B.
by the said name of their firm of A and Co. according to the
tenor and effect thereof: yet, &c. [Conclude as in No. 1.]
No. 4. Payee vs. Partners.
[Commence as in No. 1. A. B.
complains of C. and D. for that whereas on at the said
C. and D. were partners in trade, under the name of C. and Co.
and so being partners, the said C. and D. on at made a
certain promissory note in writing, and delivered the same to the
said A. B. and thereby under the name of the said firm of C. and
Co. promised to pay to the said A. B. Dollars in days after
the date thereof, which period has now elapsed, and the said C.
and D. under the name of the said ^firm of C. and Co. then and
there in consideration of the premises, promised to pay the amount
of the said note to the said A. B. according to the tenor and effect
thereof: yet, &:c. [Conclude as in No. !.](«)
No. 5. Indorsee vs. Indorsor.
[Proceed as in No. 1. to the * one
E. F. on at made his promissory note in writing, and
thereby promised to pay to X. Y. or order Dollars in
days after the date thereof, which period has now elapsed, and then
and there delivered the said note to the said X. Y. and the said X.
Y. then and there endorsed the same to the said C. D. and the said
C. D. then and there endorsed the same to the said A. B. [or, and
the said C. D. then and there endorsed the same to Q. R, and the
said Q. R. then and there endorsed the same to the said A. B.~\ and
(a) If the suit bo agrainst a survivinnf partner, sny, "For that whereas
"the said C. and one D. tlien livinjj, but Bince deceased, were partners,
&c." and conclude; "yet the said (!. and D. in the life time of the said
D. disregarded tiicir promise and did not pay said sum of money or any
part thereof to tiie said A. ]}, nor Iiath the said C. since the death of the
eaid D. paid the same or any part thereof, &c."'
24 ASSUMPSIT.
the said E. F. did not pay the c.niount thereof, although the same
was there presented to him on the day when it became due; of all
which the said C. D. then and there had due notice. And whereas
the defendant afterwards, on &c. in consideration of the premises,
then and there promised to pay the amount of said note to the said
A. B. on request ; yet he hath disregarded his promises, and hath
not paid the same, or any part thereof; to the damage, &c. [€071-
clude as in No. 1.] («)
No. 6. Indorsee vs. Executor of Maker.
\_Co77ime7ice as 171 No. 1. A. B. com-
plains of C. D. as Executor of E. F. deceased, in a plea of assiwip-
sit, for that whereas the said E. F. in his life time, on at
made his promissory note in writing, and thereby promised to pay
to X. Y. or order Dollars in days after the date thereof,
which period has now elapsed, and then and there delivered the
said note to the said X. Y. and the said X. Y. then and there en-
dorsed the same to the said A. B. whereof the said E. F. then and
there had notice, and then and there in consideration of the premi-
ses, promised to pay the amount of said note to the said A. B. ac-
cording to the tenor and effect thereof; yet the said E. F. in his
life time disregarded his promises and did not pay the amount ol
said note or any part thereof, nor has the said C. D. as his Execu-
tor, since his death paid the same or any part thereof; To the
damage, &c. \_Co7iclude as iti No. 1.]
The following averments, ofivaTit of effects, and, that the maker
could 7iot he foimd, maybe used according to circumstances.
And the said A. B. avers, that at the time of making said
promissory note, and at the time when the same was presented for
payment as aforesaid, the said, E. F. \the maker'] had not in his
hands any effects of the said W. nor had the said E. F. received
(a) A declaration, upon an endorsement of a promissory note guarantying
the payment by the maker, must set out the consideration upon which uuch
endorsement was made. 2 Ohio Rep. 430. Ohio Conds. 430.
ASSUMPSIT. 35
any consideration from the said W. for making or paying said
lote; but the said E. F. made the said note for the accommoda-
ion, and at the request of the said W. and the said W. hath not
sustained any'damages by reason of his not having had notice of
the non-payment by the said E. F. of the amount of said note, &;c.
And the said A. B. avers, that when the said note became
due, on diligent search and enquiry was made after the said
E. F. at [where the note uias])ayable,'\ that tlie said note might
be presented to him for payment, but the said E. F. could not be
found, nor did he then, or at any time before or since, pay the
amount of the said note, &;c.
Inland Bills of Exchange.
No. 7. Drawer, heing also Payee, vs. Acceptor.
[Proceed as in No. 1. to the * the said A.
B. on at made his bill of exchange in writing, and di-
rected the same to the said C. D. and thereby required the said
C. D. to pay to the said A. B. Dollars in days after
the date, or, sight, thereof, which period has now elapsed ; and the
said C. D. then and there accepted the said bill, and promised the
said A. B. to pay the same according to the tenor and effect there-
of, and of his acceptance thereof, but did not pay the same wiien
due: Yet, &c. [Conclude «s i« No. 1.]
No. 8. Drawer, not heing Payee, vs. Acceptor.
[Proceed as in No. 1. to the * the
said A. B. on at made his bill of exchange in writing,
and directed the same to the said C. D. and thereby required the
said C. U. to pay to C. P. or order Dollars in days after
the date, or, sight, thereof, which period has now elapsed, and then
and there delivered the same to the said C. P. and the said C. D.
then and there accepted the same, and promised the said A. B. to
pay the same according to the tenor and elVect thereof, and of his
D
26 ASSUMPSIT.
said acceptance thereof, yet he did not pay the amount thereof
although the said bill was there presented to him on the day when
it became due; and thereupon the same was then and there return-
ed to the said A. B. of all which the defendant then and there had
notice: yet, &;c. [^Conclude as in No. 1.] ,
No. 9. Indorsee vs. Acceptor.
[P-Toceed as in No. 1 . to the * one
E. F. on at made his bill of exchange in writing, and
directed the same to the said C. D. and thereby required the said
C. D. to pay to the said E. F. or G. H. or order dollars in
days after the date or sight thereof, which period is now elapsed,
and the said C. D. then and there accepted the said bill, and the said
E. F. or G. H. then and there indorsed the same to T. S. and the
said T. S. then and there indorsed the same to the said A. B. of all
which the said C. D. then and there had due notice, and then and
there promised the said A. 13. to pay the amount thereof, according
to the tenor and effect thereof, and of his acceptance thereof: yet,
&c. \_Conclude as in No. 1.]
No. 10. Payee v^. Acceptor.
[Proceed as in No. 1. to the * one E. F.
on at made his bill of exchange in writing, and directed
the same to the said C. D. and thereby required the said C. D. to
pay to the said A. B. Dollars in days after the date, or,
sight, thereof, which period has now elapsed; and the said C. D.
then and there accepted the same, and promised the said A. B. to
pay the same according to the tenor and efiect thereof, and of his
acceptance thereof : Yet, &c. [Conclude as in No. 1.]
No. 11. Payee on non-acceptance vs. Drawer.
[Proceed as in No. 1. to the * the
said C. D. on at made his bill of exchange in writing,
and directed the same to T. S. and thereby required the said T. S.
ASSUMPSIT. 27
to pay to the said A. B. dollars in days after the date, or,
sight, thereof, and then and there delivered the same to the said A.
B. and the same was then and there presented to the said T. S. for
acceptance, and the said T. S. then and there refused to accept the
same ; of all which the said C. D. then and there had due notice ;
and whereas the said C. D. afterwards, on — &c. in consideration
of the premises, then and there promised to pay the amount of said
bill to the said A. B. on request, yet he hath disregarded liis pro-
mises, and hath not paid the amount of said bill, or any part there-
of: to the damage, &c. ^Conclude as in No. L]
No. 12. Indorsee, on non-acceptance vs. Drawer.
[Proceed as in No. 1 . to the * the said
C. D. on at made his bill of exchange in writing, and
directed the same to T. S. and thereby required the said T.- S. to
pay to the order of the said C. D. Dollars in days after
tlic date, or, sight, thereof, and the said C. D. then and there indor-
sed the same to the said A. B. \_or, the said C. D. then and there
indorsed the same to L. M. and the said L. M. then and there in-
dorsed the same to the said A. jB.] and the same was then and there
presented to the said T. S. fur acceptance, and the said T. S. then
and there refused to accept the same; of all which the said C. D.
then and there had due notice: and whereas, &c. [Conclude as in
No. 11.]
No. 13. Indorsee, on noa-acccj)tancc,\'s. Indorscr.
[Proceed as in No. 1. to the * one
N. O. on at made his bill of exchange in writing, and
directed the same to P. C^. and thereby required the said P. Q. to
[)ay to his order dollars in days after tlte dale, (n\ sight,
thereof, and the said N. O. then luid there indorsed tiic said bill \i)
the said ('. D. and the said C. D. then and there indorsed the same
to the said A. B. and tiie same was then and there presented to the
said P. C^. for ac(:e[!tan<"e, and tin* said P. Q. tlien and there refused
to accept the same ; of all w Inch the said C. D. then and tliere
had notice : and whereas, kkc. [Coitrhidc as in No. 11.]
28 ASSUMPSIT.
No, 14. Indorsee, on non-acceptance, vs. Payee.
[Proceed as in No. 1. to the * one
N. C. on at made his bill of exchange in writing, and
directed the same to P. Q. and thereby required the said P. Q. to
pay to the said C. D. or order dollars in days after the date,
or, sight, thereof, and then and there delivered the same to the said
C. D. and the said C. D. then and there indorsed the said bill to the
said A. B. "and the same was then and there presented to the said
P. Q. for acceptance, and the said P. Q. then and there refused to
accept the same ; of all which the said C. D. then and there had
due notice : and whereas,-&c. [Conclude a3 in No. 11.]
Directions for declarations on Bills where the action is brought
after the time of payment expired. Schedule of Forms, 20
Eng. Com. Law Rep. 327.
1. On bills payable after date.
If the declaration be against any party to the bill except the
drawer or acceptor, and the bill be payable at any time after date,
and the action not brought till the time is expired, it will be neces-
sary to insert, as in declarations on promissory notes, immediately
after the words denoting the time appointed for payment, the fol-
lowing words, viz. which period has noiu elapsed; and instead of
averring that the bill was presented to the drawee for acceptance,
and that he refused to accept the same, to alledge that the drawee
[naming him] did not pay the said bill, although the same was pre-
sented to him on the day when it became due.
II. On bills payable after sight.
If the declaration be against any party except the drawee or
acceptor, and the bill be payable at any time after sight, it will be
necessary to insert after the words denoting the time appointed for
payment, the following words: viz. and the said drawer [naming
ASSUMPSIT. 29
him] then and there saw and accepted the sa7ne, and the said period
has now elapsed ; and instead of alleging that the bill was present-
ed for acceptance and refused, to allege that the drawer [naming
him'] did not pay the said hill, although the same was presented to
him on the day when it became due.
III. On bills or notes payable at sight.
If a note or hill be payable at sight, the form of the declaration
must be varied accordingly, which may be easily done.
IV. On Foreign bills.
Declarations on foreign bills may be drawn according to the
principles of these forms, with the necessary variations.
No. 15. Common Counts.
[^Proceed as in No. 1. to the * the said
C. D. on at was indebted to the said A. B. in -— dollars
for the price and value of goods, then and there bargained and
sold by the plaintiff to the defendant at his request:
And in dollars for the price and value of goods, then and
there sold and delivered by tiie plaintiff to the defendant at his
request :
And in dollars for the price and value of work then and
there done, and materials for the same provided by the plaintiff
for the defendant at his request :
And in dollars for money then and there lent by the plaintilf
to tiie defendant at his ro({uest :
And in dollars for money then and there paid by the i^lain-
tifffbr the use of the detendant at his request :
And in dollars for money ihen and there received by the
defendant for the use of the plaintilf:
And in dollars for mldings of the said C. D. he the said C. D. promised
to pay him, on demand, so much money as he reasonably deserved
to have therefor; and the said A. B. avers that he reasonably de-
serves to have, &c. [Conclude as in No. 24.]
No. 27. For the hire of horses, Common Pleas, or. Sup. Court.
A. B. )
And the sai d C. D. comes and defends, «Sz;c.
When, &c. and prays judgment of the writ and declaration afore-
said, because he says that the said promises in said declaration
mentioned, if any such were made, were, and each and every of
them was made by the said C. D. to the said A. B. and one E. F.
jointly, and not to the said A. B. separately without the said E. F.,
and that the said E. F. at the time of the suing out and service of
said writ, was and still is living, to wit, at — i&c. and this the said
C, D. is ready to verify : wherefore inasmuch as the said E. F. is
not named in said writ and declaration, the said C. D. prays judg-
ment, and that the said writ and declaration may be quashed ; and
also for his costs.
By F. his Atty.
Affidavit to plea in Abatement.
C. D. the above named defendant, makes oath and says that the
above plea by him pleaded is true in substance and matter of fact.
Sworn, &c. C. D.
No. 2. No such person, in esse.
\_Commence as in No. 1. because he
says that there is not, nor on the day of the suing out and service
ASSUMPSIT. 29
of said writ, was tliere in being, uny sucli person called A. B. of —
&LC. as by the said writ is above supposed, and this he is ready to
verify :whcrefore, he prays judgment, &c. [Conclude, and add Af-
fidavit, as in No. 1.]
No. 3. V/ant of parties, defendants.
[Commence as in No. 1. ])ecause he
says, that the said several promises in said declaration mentioned,
if any such were made, were made by one E. F. and one G. H.
jointly, with the said C. D. and not by the said C. D. alone, and
which said E. F. and G. H. are and each of them is still living, to
wit, at — &c. and this he is ready to verify : wherefore, because
the said E. F. and G. H. are not, nor is either of them named in
said writ and declaration, the said C. D. prays judgment of the said
writ and declaration, and that the same may be quashed, &c. [Add
Affidavit as in No. 1.]
Replication. — And the said A. B. says, that by any thing in said
plea of said C. D. alleged, his said writ and declaration ought not
to be quashed, because he says that the said several promises in
said declaration mentioned, were and each and every of them was
made by the said C. D. alone, in manner and form as the said A.
B. hath above declared against him, and this he prays may be en-
quired of by the country, {a)
(a) The JudgmRnt, upon a verdict for tlie Plainlijf, upon an isene joined
in a pleaof abatement, is final, r/iiod recuperet, and tiie .Iiiry should assess
the damages. 2 IFIls. •Vol , Tidd. Pr. 979. Hut a judgment tur him on
demurrer is not final, but a rcspondcas ouster. 1 c/i-. ll'J. Tidd. Pr. 979.
Our Statute, F^ol. 29. j). OS. ^ "?0. has materially changed the common
law doctrines in regard to pleas in Abatement for non-j(>ind>ir of Partaera.
It provides that wlien one or more of the partners are sued, and a plea in
abatement is filed alleging the non-joinder of other partners, the suit I'nr that
cause shall not abate, but the i)laiuti!r may forthwitii sue out a summons,
(Ske Special ff'rils. No. 10,) again^et the other partners, named in the plea,
and proceed in all other respects thereafter as if such otlier partners had
been included in the original suit, and no other plea in abatement for non-
joinder shall be allowed. (^uen , can tiie summons issue after a verdict
against the Plainti/f on the plea in abatement. It would seem that it may,
otherwise the plea must be taken as absolutely true, without atrial ; and
the Plaintiff might thus be comi)elled to bring persons into Court who were
in no respect interested in the cause.
40 ASSUMPSIT.
No. 4. Another action pending.
[Com7nence as in No. 1. And the said
C. D. comes and defends, &lc. when, &c. and says that he ouglit
not to be compelled to answer to tlie said writ and declaration of
the said A. B. because he says, that the said A. B. heretofore, to wit,
at a Court of held at, within and for the county of on —
impleaded the said C. D. in a plea of Assumpsit, and for the same
cause of action in the declaration aforesaid mentioned, as by the
record thereof in the same Court remaining, appears ; and that the
parties aforesaid to and in the plea aforesaid, in the said Court of
and the said A. B. the now plaintiff here, and the said C. D.
the now defendant here, are the sam.e persons, and not other or dif.
ferent ; and that the plea aforesaid in said Court of yet re-
mains undetermined ; wherefore he prays judgment if he ought to
be compelled to answer to the writ and declaration aforesaid, and
for his costs, &c.
Replication. Nul tiel record.
And the said A. B. says, that, notwithstanding any
thing by the said C. D. above alleged, the said C D. ought to be
compelled to answer the writ and declaration aforesaid, because
he says, that there is not any such record of the plea aforesaid had
in the said Court of existing, as the saidC. D. hath above al-
leged ; and this he is ready to verify ; wherefore he prays judg-
ment, and that the said' C. D. may answer («) to his said writ and
declaration, &c.
(a) It has bcenlielJ that the Plaintiffmay pray judgment in chief, de debi-
to et damnis, because, if tried, peremptory judgment ought to be given.
1 Ld. Rayin. 338. 594. 2. Id. 1022.
The commencement of another suit, for the same cause of action, in the
Court of another State, since the last continuance, cannot be pleaded in
abatement of the original suit; and if the matter in abatement be pleaded,
puis darrein continuance, the judgment, if against the defendant, is peremp-
tory. A siibsequcnl suit may be abated by an allegation of the pendency of
a p7-ior suit, but the converse does not hold in personal actions. 1 Wheat.
215.
ASSUMPSIT. 41
Pleas in Bar.
Pleas in Bar are, in general, governed by the same rules in Ohio,
as in England. The Stat. 4 Anne, c. 16. § 4. 5. which permits se-
veral matters to be pleaded in Bar, has also been substantially-
adopted. Stat. Vol. 29. p. 67. § 48. The practice under the two
Statutes, however, is difierent. In England a rule is applied for,
to the Court, for leave to file several pleas ; but in Ohio, the pleas
are filed, as of course. In England, if the rule be improperly used,
the Court, on the application of the Plaintiff, will rescind it. 15
Com. Law. Rep. 360. Our Courts afford similar relief on motion
to strike the pleas from the record.
The defendant in any action, may plead the general issue, and
give any special matter in evidence, which, if pleaded, would be a
bar to such action, giving notice, witli the plea, to tlie PlaintiflT, of
such matter Stat. Vol 29. p. 67. § 48.
Each party is bound to take notice of the filing of the pleadings
of his adversary, without service of a copy or notice. Stat. Vol
29. p. 73. § 79.
No. 1 . General issue, and notice of set-ojf.
C.D.\
ads. > Com. Pleas, or. Sup. Court.
A. B. )
And the said C. D. comes and defends, &c. and says that he did
not assume and promise, [if a7i administrator, say, ''the said E. F."
the intestate, ^^did not assume and promise ^-c."] in manner and
form as the said A. B. hath declared against him ; and of this
he puts himself upon the country ; and the said A. B. doth the
like, (a)
By S. his Atty.
(a) The common similiter, wliicli may be added by eitlier parly, is fre-
quently omitted, and it may perhaps be questionable wiictlier tbe want of
itcould be taken advantajfu of even on j^'tciVj/ demurrer. It however makes
a more perfect record, and is therefore proper to be added. Tlic IMaintifl",
F
42 ASSUMPSIT.
The plaintiff will also take notice, that the defendant, on the trial
of this cause will give in evidence and insist that the plaintiff, a1
the commencement of this suit, was and still is indebted to the de-
fendant in the sum of dollars for the price and value of goods
before that time bargained and sold by the defendant to the plain-
tiff at his request ; and also in the sum of dollars, for the price
and value of goods before that time sold and delivered by the de-
fendant to the plaintiff at his request ; and also in the sum of
dollars for the price and value of work before that time done, and
materials for the same, provided by the defendant for the plaintiff
at his request ; and also in the sum of dollars for money be-
fore that time lent by the defendant to the plaintiff at his request ;
and also in the sum of dollars for money before that time
received by the plaintiff for the use of the defendant ; and also in
the sum of dollars for money found to be due from the plain-
tiff to the defendant on an account before that time stated between
them ; and that the defendant will set off on said trial, so much of
the said several sums of money so due and owing from the said
plaintiff to the said defendant, against any demand of the said plain-
tiff to be proved on the said trial, as will be sufficient to satisfy and
discharge such demand ; and will also then and there demand a
judgment against the said plaintiff for the balance of said several
sums of money due to the said defendant, according to the statute
in such case made and provided, (a)
under this plea, will not be bound to prove the execution of a note, bill, &c.
declared upon, unless the defendant tiles witii his plea an affidavit of the
truth thereof. Stat. Vol. 29. p. 122. \ 1.
The form of such affidavit may be thus :
The above named C. D. makes oath, and says, that the foregoing plea of
the general issue, is true in substance and matter of fact.
Sworn to, &c.
(a) It is alwaj's advisable to add this general notice of set-off lo a no-
tice of special matter, as a promissory note, bill, bond, judgment, S,-c. for
the same reason that the common counts are annexed to special counts in
the declaration. A general notice may often save a verdict where the evi-
dence varies from the special notice.
A notice of special matter, though not required to be in the strict techni-
cal form of a special plea, must contain all the facts necessary to sustain a
special plea. The true way to test the sufficiency of a notice, is to enquire
whether the matters contained in it, would be good on general demurrer.
13 Johns. 475. 5 Ohio. Rep. 169. 346.
ASSUMPSIT. 43
No. -2. Non (Assumpsit, infra sex annos.
CD. )
ads. > Com. Pleas, or, Sup. Court.
A. B. ^
And the said C. D. comes and defends, &c. (a) and for plea to
the declaration aforesaid, or, to the first count of the declaration
aforesaid, says, that the said A. B. ought not to have his aforesaid
action thereof against him, because he says, that the cause of action
in the said declaration, ox, first count, ^-c. mentioned, cUd not at any
time within six years next before the commencement of said action,
accrue to the said A. B. and this he is ready to verify ; wherefore
he prays judgment, if the said A. B. his action aforesaid thereof
against him ought to have or maintain.
(a) If the general issue be first plead, the second and all subsequent
pleas may commence thus : " And the said C. D. for tifurlher plea to the
declHration aforesaid, says, &c." — Notwithstanding the Statute authorizes
double pleading, in general, still there are certain pleas so inconsistent with
each other, tliat Courts of Justice will not permit them to be joined.
1. Picas ivhich may he joined.
1. Non-assumpsit and the statute of limitation. Str, 678. 889.
2. Non-assumi)sit and discharge by bankruptcy. Str. 1000.
;}. Non-assumpsit, set-off, and statute ot limitations. Barnes. 286.
4. Non-assumpsit and judgment recovered. Fortesc. '3:57.
5. Non-assumpsit and ue unques executor. Fortesc. IJ36.
(5. Non-assumpsit and pZe?ie udniinistravit. Bunb..l82.
7. Non-assumpsit by testator — no cause of action witliin six years — non-
assumpsit by administrator, and plenc admiuislracil. Com. Dig. PI. E- 2.
Ilardio. 2AX
8. JVe unques executor, and plcne adminislravit.
9. Plune admimstravit and set-otl".
1(1. Payment 'd.n<\ plcne adminislravit . Hardw. 178.
2. Picas loiiich may not Le joined.
1. Non-assump.sit and tender. Str. 490. 3 fFils. 145.
'J. .\on-assumpsit and alien enemy. 2 Bos. lV Put. 12.
."}. Non-assumpsit and Infancy. Jldvues. ou-i.
4. Non-assuiiip.s t and solvit ad diem.
T). Non-aasunii).sit to tiio whole and Icniirr to a part. 4 T li. 194.
(). Non-assumpsit to pail and tender to llio rctiiduc. Cli/t. 202. Stonj.
PL by Ol. Id-!.
44 ASSUMPSIT.
Replication. That the plaintiff ivas out of the i^tate,and
sued icithin six years after his return.
And the said A. B. as to the plea of the said CD.
secondhj, pleaded in bar, says, that he ought not to be barred
of his action aforesaid, because he says, that he, the said A. B. at
tlie time when the cause of action in his said declaration mention-
ed accrued, was in foreign parts, out of the State of Ohio, to wit,
at &c. and there resided until he afterwards, to wit, on
returned to the State of Ohio, and that he the said A. B. within
six years after liis said return into the State of Ohio, to wit, on
commenced his action against the said C D. in due manner
and form aforesaid ; and this he is ready to verify : wherefore he
prays judgment, and his damages and costs to be adjudged to him.
Rejoinder. And the said C. D. says that the said A. B. did
not within six years after his said return into the State of Ohio,
commence his action aforesaid, against liim the said C. D. in man-
ner and form as the said A. B. hath in his said replication alleged,
and of this he puts liimself upon the country.
No. 3. Tender.
And for n. further plea as to fifty dollars, residue of the said one
thousand dollars, in the said declaration mentioned, the said C. D.
says, that the said A. B. ought not to recover his damages by rea-
son of the non-payment of said fifty dollars, because he says, that
he the said C. D. after the making of the said promise in the said
declaration mentioned, and before the commencement of this ac-
tion, to wit, on at tendered the said sum of fifty dollars
to the said A. B. who then and there refused to receive the same ;
and the said C. D. further says, that he, from the time of making
of the said promise, in said declaration mentioned, as to the said
fifty dollars, hitherto always has been, and still is ready to pay to
the said A. B. the said sum o^ fifty dollars, and now brings the
same into Court here ready to pay to the said A. B. if he will ac-
cept the same ; and this he is ready to verify : wherefore he prays
ASSUMPSIT. 45
judgment, if the said A. B. ought to liave liis action aforesaid
against him to recover any damages, by reason of the non-pay-
ment of the said sum of ffti/ dollars in this behalf.
Replication. I. No tender made.
And the said A. B. as to the plea of the said C. D
secondly above pleaded, as to the said fifty dollars, residue of the
said one thousand dollars, in the said declaration mentioned, says,
that he by any thing alleged therein, ought not to be barred from
his action aforesaid, to recover his full damages in that behalf, be-
cause he says, that the said C. D. did not offer to pay him the said
sum o( ffty dollars, in manner and lorm as the said C. D. hath
above alleged, and this he prays may be enquired of by the country.
Replication. II. Subsequent request and refusal.
[Precludi non, as in the last precedent] because
he says, that after the making said tender, in said plea mentioned,
and before the commencement of this action, to wit, on at
he the said A. B. requested the said C. D. to pay him the said ffty
dollars, which the said C. D. then and there refused : wherefore he
prays judgment, and that his damages by reason of the non-pay-
ment of said ffty dollars maybe adjudged to him.
No. 4. Satisfaction.
And the said C. D. comes and defends, &c, and says, that the said
A. B. ought not to have his aforesaid action against him, because he
says, that he, after the making of the said several promises in said
declaration mentioned, and before the commencement of tliis action,
to wit, on at gave and delivered to the said A. B. two
pieces of broad-cloth, in full satisfaction and discharge of the se-
veral promises aforesaid, and of the damage sustained by the said
A. B. by reason of the non-performance thereof, which the said
A. B. then and there received and accepted in full discharge and
satisfaction of the said several promises, and of the damages sus-
tained by the said A. B. by reason of the non-performance thereof;
and this he is ready to verify : wherefore he prays judgment, and
that the said A. B. mav be barred of his action aforesaid.
46 ASSUMPSIT.
Replication. Did not accept.
And the said A. B. says, tliat lie, by reason oi'
any thing by the said C. D. in his plea alleged, ought not to be
barred from having his aforesaid action against the said C. D. be-
cause he says, that he did not accept or receive the said two pieces
of broad-cloth, in full satisfaction and discharge of the said several
promises, or any or either of them, or of the damages sustained by
liim by reason of the non -performance thereof, in manner and
form as the said C. D. hath alleged ; and this he prays may be
enquired of by the country.
No. 5. Infancy.
And the said C. D. [who is under the age of twenty-one years, by
E. F. his guardian, who is admitted by the Court here to defend
for the said C. D. (a) ] comes and defends, &c. and says that the
said A. B. ought not to have his action aforesaid against him, be-
cause he says, that at the several times of the making the said seve-
ral promises in the said declaration mentioned, he the said C. D.
was an infant, within the age of twenty-one years, to wit, of the
age of seventeen years, and no more ; and tliis he is ready to veri-
fy : wherefore he prays judgment if the said A. B. ought to have
or maintain his action aforesaid against him.
Replication. Necessaries.
And the said A. B. says that he, by reason of any
thing in the plea of the said C. D. alleged, ought not to be barred
from his action aforesaid, because he says, that the goods, wares
and merchandize, labour and work, materials and necessary things
in said declaration mentioned, were necessaries for the said C. D.
and suitable to his degree and estate, and that the said money in the
said declaration mentioned was paid by the said A. B. for things
necessary for the said C. D, and suitable to his degree and estate >
(a) This statement i& omitted, if the defondant be of age at the time the
action is brought.
ASSUMPSIT. 47
and this he is ready to verify : whereupon lie prays judgment, and
his damages, &;c. to be adjudged to him.
No. 0. Plea, puis darrein continuance.
And now at this day, to wit, the day of in the term
of A. D. to which term this cause was continued on the
day of term last past, comes the said C. D. and says,
that the said A. B. ouglit not further to maintain this action against
him, because he says that since the last continuance thereof as
aforesaid, and before this day, to wit, on at [Here state
the subject matter of the plea, as a release, award, revocation of let-
ters of administration, Sfcl ; and this he is ready to verify : where-
fore he prays judgment, if the said A. B. ought to further main-
tain his aforesaid action against liim.
Affidavit, {a)
The above named C. D. makes oath and says, that the above plea
is true in substance and matter of fact.
Sworn, &;c.
(a) An affido.vit is rot necessary in all cases. 9 Johns. 250. It seems
to be allov/able, without affidavit, at discretion, "if the Justices perceive
any verity therein." Cro. Car. 261. See, 1 Str. 492. 2 Wils. 137. 2
Peters. 543. A plea puis darrein continuance, is a waiver of all prior
pleas. 2 Peters. 543.
48 ASSUMPSI'J\
Demurrers.
No. 1. Tu plea in abatement of writ.
And the said A. B. says, that for any thing by the said C. D. in
his plea alleged, the writ aforesaid ought not to be quashed, because
he says that the said plea, in manner and form as above pleaded,
and the matters therein contained, are not sufficient in law, to
quash the writ aforesaid ; and that he the said A. B. is not bound
by the law of the land to answer the same ; and tliis he is ready
to verify : whereupon, he prays judgment that the writ aforesaid
may be adjudged good, and that the said C. D. may answer
over, &c.
Joinder.
And the said C. D. says that the plea aforesaid, in manner and
form as the same is by him pleaded, and the matters therein con-
tained, are sufficient in law to quash the writ aforesaid, which he
the said C. D. is ready to verify ; and because the said A. B. hath
not answered the said plea, nor denied the same; he as before,
prays judgment of the writ aforesaid, and that it may be quash-
ed, &c.
No. 2. To Declaration.
And the said C. D. comes and says that the said A. B. ought
not to have his action aforesaid against him, because he says that
the declaration aforesaid, \or the first or second count, ^c] and the
matters therein contained, are not sufficient in law to maintain the
action aforesaid, and that he is not bound by law to answer the
same ; wherefore he prays judgment, and that the said A. B. may
be barred of his said action against him. (a)
(o) For a special demurrer, add, "And for causes of demurrer the said
C. U. shows to the court hero the fallowing, to wit, I. That, &c. II.
That, &c."
ASSUMPSIT. 40
Joinder. And the said A. B. says that his declaration afore-
said is sufficient in law to maintain his action -aforesaid, and that
he is ready to verify the same ; wherefore he prays judgment and
his damages aforesaid, to be adjudged to him. (a)
No. 3. To Pleas.
And the said A. B. says that the said several pleas of the said
C. D. in manner and form pleaded, and the matter in the same
contained, are not sufficient in law to bar the said A. B. of his
aforesaid action against him, and that he is not bound by law to
answer the same ; and this he is ready to verify : whereupon he
prays judgment, and his damages aforesaid to be adjudged^ to him.
See, note (a) to last Precedent.~\
Joinder. And the said C. D. says that the said several pleas
and the matters therein contained, in manner and form as the same
are by him pleaded, are good and sufficient inlaw to bar the afore-
said action of the said A. B.; wherefore he prays judgment, and
that the said A. B. may be barred of his aforesaid action against
him.
No. 4. Demurrer to Evidence.
This day came the parties by their attornies, and thereupon
came a Jury, to wit, E. F. &c., wiio being empannelled and sworn
the truth to speak, upon the issue joined between the parties, the
said A. B. to maintain the issue on his part, shewed in evidence to
the jury aforesaid a certain instrument, &c. [Jiere state the evi-
dence^ and the said C. D. says, that the aforesaid matters to the
jury aforesaid shown in evidence by the*said A. B. are not sufficient
(a) In Debt, say — prays judgment and his debt aforesaid, with his dam,
ages to be adjudged, (SJ-c. — In Cask and Trespass — judgment and his dam-
ages ajoresaid, 6,c. — In Covknant — judgment and liis damages aforesaid,
8fc. — In Ejkctment — judgment and possession of his term aforesaid, with
damages, t^*c. — In Detinue — judgment and delivery of the goods and chat-
tcli aforesaid, ivilh his damages, n the Journal at
length, and witli tiie same teciinical precision as is required in the complete
record, I Ohio Rep.'2Q^.
52 ASSUMPSIT.
docket, all causes, petitions, &c. in which an issue is to be tried, or
an inquiry of damages is to be made, or special orders to be taken,
or a special verdict, or a case agreed, demurer, or other matter of
law, is to be argued, in the same order as they stand in the course
of proceeding; setting as near as may be, an equal number of causes
to each day of the time allowed by law for the holding of such
Court, if in his opinion, so many days will be required, in trying
the causes ready for trial; and also issue subpoenas for witnesses
to attend on the days on which the causes stand for trial. No
cause can be removed from its place on the docket; but all causes,
in which the intervention of a jury is necessary, must be tried in
the order in which they stand, unless the parties otherwise agree,
or be continued until the next term. Stat. Vol. 29, p. 74. §.91.
Where there are issues in law and in fact, in the same cause, the
issues in law must be first determined. Stat. Vol. 29, p. 73. § 81.
The manner of convening a Jury for the trial of causes, is also
very different from the English practice. In England a Venire
facias, is issued in every cause, but under our Statute, there is but
one Venire for all the causes to be tried at any one Term. The
same Jury try every issue in fact, which is ready for trial at that
term to which the Venire, is returnable. Stat. Vol. 29. p. 94. See,
Select writs, No. 8.
The Jury may return a general verdict upon the whole matter;
or a special verdict, finding certain specific facts to be true, and
submitting the question of law arising upon such specific facts, to
the consideration of the Court. Special verdicts, however, are
rarely taken in our practice.
The court may conform a verdict to the intention of the jury
without consulting them. 3 Ohio Rep. 384. Ohio Conds. 614.
5 Ohio Rep. 239. The Jury must pass upon all the issues or it is
error. 5 Ohio Rep. 238, 260.
No. 1 . Verdict for Plaintiff, o n non-assumpsit.
A. B. J
vs. > In assumpsit.
CD. )
This day came the parties by their attornies,
and thereupon came a jury, to wit, E. F. &c. who being empannel-
ASSUMPSIT. 53
led and sworn, to speak the truth, upon the it;sue joined between
the parties, upon their oaths do say, * that the said C. D. did assume
and promise in manner and form as the said A. B. hath
complained against him; and they assess the damages of the said
A. B. by reason thereof to dollars. («) Therefore it is con-
sidered, &c.
No. 2. Verdict for Plaintiff, against adminis-
trator, on non-assumpsit.
[Proceed as in No. 1. to the * that
the said E. F. in his life time did assume and promise in manner
and form as the said A. B. hath in that behalf alleged, and they
assess, &c. [Conclude as in No. 1.]
No. 3 Verdict for Plaintiff , rohen all of several
issues are found for him.
Proceed as in No. 1 . to the * that as
to tiie first issue joined between the parties, the said C. D. did
assume and promise in manner and form as the said A. B. hath
complained against liim; and as to the second issue joined
between the parties, the jury aforesaid say, that at the time of the
making of the said several promises in the declaration mentioned,
the said C. D. was not within the ago of twenty one years in man-
ner and form as he hath alleged ; and as to the third issue
joined between the parties, the jury aforesaid say, that the said A.B.
was not indebted to the said C. D. in manner and form as the said
C. D. hath alleged. [Proceed in this ynanner to state the
verdict of the Jury upon each issue seperatehj, in the negative or
affrmative of the pleading which concludes to the country, according
as it is pleaded by the Plaintiff' or Defendant and conclude as iii
No. 1.]
(rt) If there be a motion for a new trini, or in arrest of .Iiidgincnt, such
motion is entered thus: "and tliereupon tlio said dcfendnnt moves for a new
trial, or, in arrest of juJgi)uiit,for reasons oti file," and the judgment on
the verdict is postponed until the motion is disposed of. A party cannot
move for anew trial after a motion in arrest of judgment. Stat. Vol. 29.
p. 73. § 83.
54 ASSUMPSIT.
No. 4. Verdict for Plainlijj\ upon a plea of tender
as to part, and non-assumpsit as to residue.
[Proceed as in No. 1 , to the * that
the said C. D. did assume and promise to an amount beyond the
said sum o^ fifty dollars by the said C. D. in that behalf alleged, to
wit, to the amount of dollars parcel of the several sums of
money in said declaration mentioned, in manner and form as the
said A. B. hath complained against him, and they assess the
damages of the said A. B. by reason of the premises to dollars,
over and above the said sum of fifty dollars above mentioned;
Therefore &c. [Conclude as in No. 1.]
No. 5. When one issue is found for the (
Plaintiff and another for Defendant. \
[Proceed as in No. 1 . to the * that as
to the first issue joined between the parties, the said C. D. did
assume and promise in manner and form on the said A. B. hath in
the first and second counts of his declaration alleged, and they assess
the damages of the said A B. by reason of not performing the
promises in said first and second counts mentioned to dollars.
And as to the last issue joined between the parties, the jury afore-
said say, that the said C. D. did not within six years next before the
Commencement of this suit assume and promise, in manner and
form as the said A. B. hath in the third and fourth counts of his
declaration complained against him.
No. 6. Verdict for Plaintiff on Default.
A. B. ^
vs. > In assumpsit.
C. D. )
This day came the said A. B. by his attorney
and the said C. D. though solemnly called, came not but made
default; whereupon it is considered that the said A. B. ought to
recover his damages by reason of the premises, and the said A. B.
ASSUMPSIT. 55
or C. D. ihereiipon demanding a jury to assess the damages afore-
said, * a jury being called, come, to wit, E. F. &c. who being
empannelled and sworn well and truly to assess the damages
aforesaid, do assess the same to dollars; Therefore &c. {^Con-
clude as in No. 1.]
No, 7. The like, upon a judgment hy clef ault al one Term }
and damages assessed at a subsequent Term. \
[At the first term, enter the judgment as in the
last precedent to the, * and then, say, "It is ordered that this cause
be continued until next term for the assessment of said damages."
At the term ivhen the damages are assessed, say, "This day came
"the parties by their attornies, and thereupon came a jury, to wit,
'•E. F. &c. who being empannelled and sworn well and truly to
"assess the damages sustained by the said A. B. by the non-per-
"formance of the promises of the said C. D. in the said declaration
"mentioned, do assess the same to Dollars; Therefore, &c.
No. 8. Verdict for the Plaintiff, against two defen- ^
dants, when one pleads non-assumpsit, >
and the other is defaulted. )
A. B. )
vs. > In assumpsit.
C. D. )
This day came the said A. B. by his attorney,
and also the said C. D. by his attorney, and the said E. F. though
solemnly called, came not but made default, whereupon it is con-
sidered, that the said A. B. ought to recover his damages against the
said E. F. by reason of the premises, and thereupon came a jury,
to wit, G. II. &;c. who being empannelled and sworn, the truth to
speak, upon the issue joined between the said A. B. and the said
C. D. and also well and truly to assess the damages sustained by
the said A. B. by the non-performance of the promises of the said
C. D. and E. F. in the declaration mentioned, upon their oaths do
say, that the said C. D. did assume and promise in manner and
50 ASSUMPSIT.
form as the said A. B. hatli complained against him; and they
assess the damages of the said A. B. by reason of tlie not perform-
ing of the promises in the declaration mentioned, as well against
the said C. D. as against the said E. F. to dollars: Therefore,
&c. [Conclude as in No. 1.] (a)
No. 9. Assessment of damages on demurrer }
ove? ruled, Nul tiel record, &c. ji
[Enter the proper judgment, See, Judgments;
and then say, "and thereupon came a jury, to wit, E. F. &c. who
being empannelled and sworn well and truly to assess the damages
sustained by the said A. B. by reason of the non-performance of
the promises in the declaration mentioned do assess the same to
Dollars: Therefore, It is considered, &c."
No. 10. Verdict for defendant, on non-suit.
A. B. ^
vs. > In assumpsit.
C. D. )
This day came the parties by their attornies,
and thereupon came a jury, to wit, E. F. &c. who being em pannel-
(o) It is provided by Statute, Vol. 29. p. 73. \ 82, that upon judgment
by default, the Court shall assess the damages, unless a writ of enquiry be
demanded by the Plaintiff or Defendant. But where two or more are sued
upon a joint contract, and only one of them makes defence, it seems that the
Court ought not to assess the damages, and enter final judgment against
those who do not appear; for if upon the trial of the issue, between the
Plaintiff and the Defendant who does appear a verdict should be found
against the Plaintiff, there must be judgment in favor of all the defendants.
Bac. Ahg. Tit. Verdict. '5 Day. ^Q?>. Although this section of the Statute,
in terms, embraces all cases of default, as well in action ex delicto, as ex
contractu, yet the Court, in practice exercise a discretion, in the assess-
ment of damages. In actions upon notes, bills, or covenants for the payment
of a sum certain, in debt upon judgment, and perhaps some other cases,
where the quantum of damages, depends upon calculation, or can be easily
ascertained, the Clerk, or the Attorney for the plaintiff, makes up the amount
of damages, which is inspected by the Court, and judgment entered accor-
dingly. In all difficult cases however, the Court submit the enquiry of
damages to a jury.
ASSUMPSIT. 67
led and sworn the truth to speak upon the issue joined between the
parties, the said A. B. thereupon, fails to further prosecute his
suit against the said C. D. and thereupon the jury were discharged
from the furtiicr consideration of tiic premises. Therefore it is
considered, &c.
No. 11. Va'dict for defendant, on non-assumpsit,
[Proceed as in No. 1. to the * that the
said C. D. did not assume and promise in manner and form as the
said A. B. hath complained against him; Therefore, &c.
No. 12. Verdict for one defendant, on non-assumpsit, where
another has let judgment go by default.
This day came the said A. B. by his attorney,
and also the said C. D. by his attorney, and the said E. F. though
solemnly called, came not but made default, whereupon it is con-
sidered, that the said A. B. ought to recover liis damages against
the said E. F. by reason of the premises; and thereupon come a
jury, to wit, G. H. &c. who being empannelled and sworn the truth
to speak upon the issue joined between the said A. B. and the said
C. D. and also well and truly to assess the damages sustained by
the said A. B. by the non-performance of the promises of the said
C. D, and E. F. in the declaration mentioned, u})on their oaths do
say, that the said C. D. did not assume or promise in manner and
form as the said A. B. hath doclarod against him; and thcreu|)on the
said jury are discharged from iiuiuiring against the said E. F. what
damages the said A. B. hath sustained in the premises; Therefore,
&c. See, No. 9. note (a).
No. 13. Ve7-dict for Defendant, Administrator, (
on non-assumpsit by Intestate. \
[Proceed as i}i No. 1. to the * tliat
the said E. F. in his life! time did not assume or promise in manner
and form as the said A. B. Iiath in tluit bchnlf allcirod. Therefore,
&c. H
58 ASSUMPSIT.
No. 14. For defendant, on several issues.
[Proceed as in No. 1. to the * that
g.s to ihQ first issue joined between the parties, the said C. D. at the
time of the making of the several promises, in the first and second
counts of the said declaration mentioned, was an infant within the
age of twenty one years, in manner and form as the said C. D. hath
in that behalf alleged: And as to the second issue joined between
the parties, the jury aforesaid say, that the goods, wares and
merchandise in the third count of the declaration mentioned, were
not necessary or suitable to the estate and degree of the said C. D.
in manner and form as the said A. B. hath in that behalf alleged.
And as to the last issue joined between the parties, the jury afore-
said, say, that the said C. D. did not after he attained the age of
twenty one years, assent ratify or confirm the several promises
and undertakings in the fourth and fifth counts of the declaration
mentioned, or any of therp, in manner and form as the said A. B.
hath in that behalf alleged: Therefore, &g.
No. 15. When one issue is found for the Plaintiff )
and another for Defendant. )
[Proceed as in No. 1. to the * that
as to the first issue joined between the parties, the said C.
D. did assume and promise in manner and form as the said A. B.
in the first and second counts of his declaration hath alleged, and
they assess the damages of the said A. B. by reason of the not per-
forming the promises in the smd first and second counts mentioned,
to, dollars: And as to the last issue joined between the parties,
the jury aforesaid, say, that the "said C. D. did not within six years
before the commencement of this suit assume or promise, in man-
ner, and form as the said A. B. hath in the third and fourth counts
of the declaration complained against him: Therefore, &c,
ASSUMPSIT. 59
No. 16. Verdict for defendant, on notice of set-off ,
balance found in favour of defendant.
[Proceed as in No. 1. to the * that
the said C. D. did assume and promise in manner and form as the
said A. B. hath complained against him and do assess the damages
of the said A. B. by reason thereof to 300 dollars; and the said jury-
do further say, that the said A. B. is indebted to the said C. D. in the
sum of 300 dollars parcel of the said several sums of money de-
manded by the said C. D. in his notice of set-off"; and thereupon
the said jury do find that a balance of 500 dollars is due from the
said A. B. to the said C. D. after allowing and crediting to the said
A. B. the said sum of 300 dollars, his damages in form aforesaid
assessed; Therefore, &c. See, Judgments, No. 26.
no ASSUMPSIT.
Judgments.
Judgments are either interlocutory or final. Interlocutory
judgments arc, in ordinary acceptation, those incomplete decisions
whereby the right of the plaintift'is established, but the quantum of
damages sustained by him is not ascertained, for this is a matter,
which in general cannot be done, without the intervention of a jury.
Final judgments are such as at once finish the proceedings, by
declaring that the plaintiff either has, or has not, entitled himself
to recover, and by ascertaining to what amount he shall obtain
redress. XI. Petersd. Ahg. 642. It will appear then, that judg-
ments in debt, for a sum certain, judgments by confession, and all
judgments in favor of the plaintiff, after verdict, are final; but in
every other case, as on default or demurrer, in actions of assumpsit,
covenant, case, trespass, trover, &c. the judgment is interlocutory
in the first place, deciding only that the plaintiff ought to recover,
but leaving the amount to be ascertained by a jury, upon an inquiry
of damages, or by the Court. In our practice no writ of inquiry
is sued out, as in England, but after a judgment on default, demurrer
&c. is entered, the inquiry of damages is submitted to the regulai*
jury which is in attendance at every term of the Court. In Eng-
land, damages may be assessed, in cases of bills of exchange,
promissory notes, &c. by a reference to the master, or prothonota-
ry. VII. Petersd. Abg .503. Lee's Diet. 419. It is also provided by
our Statute, Vol. 29. p. 73. § 82. that upon judgment by default, the
Court shall assess the damages, unless a writ of inquiry be deman-
ded by the plaintiff or defendant. This provision seems to embrace
all cases of default, as well in actions ex delicto, Sisex contractu, yet
the Court exercise a discretion in the assessment of damxages. In
actions upon notes, bills, covenants for the payment of a sum cer-
tain, debt upon judgment, and perhaps in some other cases, where
the quantum of damages, depends upon calculation, or can be easily
ascertained, the Clerk, or the Attorney for the Plaintiff, makes up
the amount of damages, wliich is inspected by the Court, and judg-
ment is entered accordingly. In all difficult cases, it is the common
practice to submit the inquiry of damages to a Jury. The right
to recover having been established, and the damages having been
assessed by the Court or ascertained by the jury, final judgment is
entered up accordingly.
ASSUMPSIT. 61
No. 1. Judgment fur Plainl'tff on Demurrer
to a plea in Abatement.
A. 13. \
vs. > In assumpsit.
C. D. )
This cause came on to be heard upon the
flemurrcr of the said A. B. to the plea in Abatement of the said C.
D. and was argued hy counsel, and the Court being fully advised in
the premises, are of opinion that the said plea in Abatement, and the
matters therein contained, are not sufficient in law to quash the
w^rit of the said A. 13. Whereupon, it is considered, that the said
C. D. do further answer to the writ of the said A. B.
No. 2. Judgment for Plaintiff, on Denmrrer to a )
Replication to a jylea in Abatement. )
A. B. )
vs. / In assumpsit.
C. D. )
This cause came on to be heard upon the
demurrer of the said C. D. to the replication of the said A. B. to the
plea in abatement of the said C. D. and was argued by counsel, and the
Court being fully advised in the premises are of oj)inion that the
rcj)lication albrcsaid, and the matters therein contained, are sulfi-
cient in law to maintain the said writ of the said A. B. Whereupon,
it is considered that the said C. D. do further answer to the writ of
the said A. B.
No. 3. Judgment for Plaintiff , on Demurrer to a
Declaration or Replication, and damages
assessed by a Jury.
In assumpsit.
This cause came on to bo heard upon the demur-
rer of the said C. D. to the declaration, or, replication, of the said
6a ASSUMPSIT.
A. B. and was argued by counsel, and the Court being fully ad-
vised in the premises, are of opinion that the declaration, or, re-
plication, aforesaid, and the matters therein contained, are sufficient
in law, to support this action ; {a) Whereupon it is considered that
the said A. B. ought to recover his damages against the said C.
D. by reason of the premises, and the said A. B. demanding a jury
to assess the same, a jury being called, come, to wit, E. F. &c.
who being empannelled and sworn well and truly to assess the
damages sustained by the said A. B. by reason of the non-perform^
ance of the promises of the said C. D. in the declai-ation mention-
ed, upon their oaths do assess the same to dollars ; therefore
it is considered that the said A. B. recover of the said C, D. the
said sum of dollars, his damages aforesaid, in form aforesaid
assessed, and also liis costs in this behalf expended, taxed to
dollars, (b)
No. 4. Judgment for Plaintiff, on demwrer
to a plea or rejoinder.
A. B. ^
vs. > In assumpsit.
C. D. )
This cause came on to be heard upon the de-
murrer of the said A. B. to the plea, or, rejoinder, of the said C.
D. and was argued by counsel, and the Court being fully advised
(a) When the Demurrer is /riyoZous, or filedybr delay, the Court will in
general give final judgment; but when it is filed in good faith, and the
Court are satisfied that the party has merits, leave will be given to with-
draw the demurrer, and plead, reply, &c. When such leave is given, af-
ter entering the judgment upon the demurrer, proceed thus : "Whereupon
the said C. J), moves the Court for leave to withdraw his said demurrer,
and to plead to the said declaration; which is granted him on payment of
costs since filing the demurrer." It is the practice of the Supreme Court
to limit the time within which the plea shall be filed, and the costs paid, in
order that the plaintiff may take judgment by default, if no plea be filed, and
that the defendant may be attached for non-payment of the costs. The
form may be thus : "And it is ordered that the said C. D. plead to the said
declaration within days, and that he pay said costs within days."
[b) In the Supreme Court, add, "And it is ordered that a special man-
date be directed to the Court of Common Pleas for said County of to
carry this judgment into execution."
If notice of appeal be given, enter the notice after the judgment, thus :
"Notice of appeal, by plaintiff, or, defendant, or, by both parties."
ASSUMPSIT. 63
in the premises, are of opinion, that the said jjlea^ or, rejoinder, and
the matters therein contained, are not sufficient in law, to bar the
said A. B. from his said action : Whereupon it is considered that
the said A. B. &c. [Conclude as in No. 3.]
No. 5. Judgment for Plaintiff, hy default, arid
damages assessed hy tJie Court.
A. B. ^
vs. > In assumpsit.
C. D. )
This day came the said A. B. by his attorney,
and the said C. D. though solemnly called, came not, but made
default ; whereupon it is considered that the said A. B. ought to
recover his damages by reason of the premises, and neither of the
parties requiring a jury, and the Court being fully advised in the
premises, do assess the damages of the said A. B. to dollars :
therefore it is considered that, &c. [ Conclude as in No. 3.]
No. 6. Judgment for Plaintiff, on default,
damages assessed by Jury.
In assumpsit.
This day came the said A. B. by his attorney, and the said C.
D. though solemnly called, came not, but made default, whereup-
on it is considered that the said A. B. ought to recover his dam
ages, by reason of the premises, and the said A. B. or C. D. there-
upon demanding a jury to assess the damages aforesaid, a jury
being called, come, to wit, E. F. &c. who being empannelled and
sworn well and truly to assess the damages aforesaid, do assess
the same to dollars ; Therefore it is considered, &.c. [Con-
clude as in No. 3.]
No. 7. Judgment for Plaintiff, plea, )
non-assumpsit, and verdict for Plaintiff. \
[Enter the verdict as in Verdicts in As-
04 ASSUMPSIT.
sumpsit. No. 1. Tliercforc it is considesed, &c. {^Conclude as in
No. 3.]
No. 8. The like against an Executor or Administrator.
[Eiiter the verdict as in No. 2. Verdicts in As-
sumpsit ; therefore it is considered, that the said A. B. reco-
ver against the said C. D. as executor, or, administrator, as afore-
said, the sum of dollars, his damages aforesaid in form afore-
said assessed [and also his costs in this behalf expended, taxed to
dollars'] the said damages [and costs'] to be levied of the goods
and chattels which were of the said E. F. at the time of his death,
and in the hands of the said C. D. as executor, or administrator as
aforesaid, yet to be administered. See, No. 3. note (b)
Na. 9. Judgment for Plaintiff, on submission )
to the Court to try issue and assess damages. \
K.B.)
vs. / In assumpsit.
C. D. )
This day came the parties by their attornies,
and submit this cause to the Court upon the issue joined between
the parties, and the Court bemg fully advised in the premises, do
find that the said C. D. did assume and promise in manner and
form as the said A. B. hath complained against liim, and they as-
sess the damages of the said A. B. by reason thereof, to dol-
lars : therefore it is considered that the said A. B. recover of the
said C. D. the said sum of dollars, his damages aforesaid in
form aforesaid assessed, and also his costs in this behalf expended,
taxed to dollars.
No. 10. Judgment for Plaintiff, by confession, relicta
verijicatione, release of errors, <^-c.
A. B. )
vs. > In assumpsit.
C. D. )
This day came the parties by their attornies,
and thereupon the said C. D. relinquishing his plea, says that he
ASSUMPSIT. 63
cannot deny the action of the said A. B. nor, but tliat he did as-
sume and promise, in manner and form as the said A. B. hath com-
plained against him, and confesses that the said A. B. hath sustained
damages by reason of the premises, to dollars : Therefore, by
consent of parties, it is considered that the said A. B recover of the
said C. D. the said sum of dollars, his damages as aforesaid
confessed, and also his costs in this behalf expended, taxed to
dollars : and the said C. D. releases all error and waives all right
and benefit of appeal.
No. 11. Jud foment for Plaintiff on
Replication of Nul tiel record.
In assumpsit.
This day came the said A. B. by his attor-
ney, and the said C. D. though solemnly demanded to appear and
produce the record by him in pleading alledged, comes not, nor
produces the same, but therein makes default : whereupon it is
considered that the said A. B. ought to recover his damages by
the reason of the premises ; and neither of the parties requiring a
Jury, and the Court being fullv advised, &c. \_Concliide as in
No. 5.]
No. 12. Judgment for Plaintiff, on )
Plea of Nul tiel record. \
In assumpsit.
This day came the parties by their attornies,
and thereupon the record aforesaid being seen and inspected by
Court, it sufficiently appears, that there is such a record of recov-
ery against the said CD. at the suit of tiie said A. B. as the said
A. B. hath alleged ; whereupon it is considered that the said A. B.
ought to recover, &c. [Conclude as in the last precedent, or, if the
damages be assessed by a jury, conclude as in No. 0.]
I
m ASSUMPSIT.
No. 13. Judgment for Plaintiff, on Warrant of JJttorney.
A. B. ^
vs. > In assumpsit.
C. D. )
This day came into court A. B. by Mr. O.
his counsel, and filed his declaration against the said C. D. and
thereupon E. F. one of the attornies of this Courts appeared in
open Court in behalf of the said C. D, and by virtue of a warrant
of attorney for that purpose executed by the said C. D. and now
produced in open Court and duly proved, (a) waived the issuing and
service of process, and acknowledged that the said C. D. did as-
ssume and promise in manner and form as the said A. B. hath in
his said declaration alledged against him, and confessed that the said
A. B. hath sustained damages by reason thereof to dollars.
Therefore it is considered that the said A. B. recover of the said
C- D. the said sum. of dollars his damages so confessed as
aforesaid, and also his costs in this behalf expended, taxed to
dollars. Ai'id by virtue of the same ivarrant of attorney, all error
is released and all right and benefit of appeal waived by the said
C. D.
No. 14. Judgment for Plaintiff,
on demurrer to evidence.
\_E71ter the verdict, No. 4. page 49. and pro-
ceed thus : — This cause came on to be heard upon the demurrer
(a) This statement may be omitted when the production of the warrant of
attorney is not required by the Court. Slat. Vol, 29. p. 69. \ 60. It is al-
ways safest, however, to produce the power of attorney, and tile it with the
other papers in the cause. No process whatever is necessary, hut a decla-
ration, [^commonly containing one of (he money counts'] must be filed.
Warrants executed by a person in custody upon mesne process in a civil
action, to the Plaintiff, are invalid, unless some attorney, on behalf of such
person in custody, and expressly named by him, be present and sign the
warrant as a witness. Slat. Vol. 29, p. 69. § 60. Notes and Bonds are
frequently given with a warrant to confess a Judgment, if not paid. In such
cases the following form may be adopted, adding the proper conditions, 6,c.
Form of a Warrant of Attorney to confess Judgment. I do
hereby authorize and empower A. B. or any other Attorney at law in the
State of Ohio, to appear in any Court of record in said State, at any regu-
lar term of such Court, and waive the issuing and service of process, and
confess a judgment against me, and in favor of J. S. for the sum of
dollars, and thereupon to release all error and waive all right and benefit
of appeal in my behalf.
Dated, fcc. Y. X. [seal.]
ASSUMPSIT. 67
of the defendant to the evidence of the plaintiff, and was argued
by counsel, and the Court, being fully advised in the premises, are
of opinion that the matter to the jury aforesaid, in form afc-esaid,
show^n in evidence by the said A. B. is sufficient in law to maintain
the issue joined between the parties ; Therefore it is considered, (fee
[Co?iclude as in No. 3.j
No. 15. Judgment for defendant
upon non-suit.
A. B. ^
vs. > In assumpsit.
C. D. )
This day came the parties by their attornies, and
thereupon came a jury, to wit, E. F. &c. who being empannelled
and sworn the truth to speak upon the issue joined between the
parties, the said A. B, thereupon fails further to prosecute liis
suit against the said C. D., and thereupon the jury are discharged
from the further consideration of the premises : Therefore it is
considered that the said C. D. go hence without day, and recover
of the said A. B. his costs in tliis behalf expended, taxed to
dollars. See No. 3. Note. {!>)
No. IG. The like, before Jury sworn.
A. B. ')
vs. > In assumpsit.
CD.)
This day came the said C. D. by his attorney,
and the said A. B. being solemnly called, came not, nor does he
further prosecute his suit : Therefore, &c. [Conclude as in the last
precedent.']
No. 17. Non-suit for icant of declaration.
A.K\
vs. > In assumpsit.
C. D. )
This day came the said C. D. by liis attorney,
68 AvSSUMPSIT.
and the said A, B. having failed to declare against the said C. D.
according to the rules of Court, or, as hereinbefore ruled to do :
Therefore it is considered, &c. [^Conclude as in No. 15.]
No. 18. Non-suit for want of replication.
A. B. ^
vs. > In assumpsit.
C. D. )
This day came the said C. D. by his attorney, and the said A. B.
having failed to reply to the plea of the said C. D according to the
rules of Court, or, as hereinbefore ruled to do : Therefore, &c.
[Conclude as in No. 15.]
No. 19. Judgment for defendant }
on discontinuance. )
A. R -)
vs. > In assumpsit.
C. D. )
This day came the said A. B. by liis attorney,
and discontinues his suit : Therefore, &c. [Conclude as in No. 15.]
No. 20. The like, on nolle prosequi.
A. B. ^
vs. > In assumpsit.
C. D. )
This day came the said A. B. by his attorney, and says to the
Court that he will no further prosecute his suit : Therefore, «fec.
[Conclude as in No. 15.]
No. 21. TTie like, as to one or more co7ints.
A. B. ^
vs. > In assumpsit.
CD.)
This day came the said A. B. by liis attorney,
and says to the Court that he will not further prosecute hia suit
ASSUMPSIT. 69
against the said C. D. in respect of the promises in the Count
or Counts, of the declaration mentioned : therefore as to the pro-
mises in that Count mentioned, let the saidC. D. go hence witlKJUt
day, and recover of the said A. B. liis costs in that behalf ex-
pended, &c.
No. 21. Judgment for defendant
on demurrer to Plea.
In assumpsit.
This cause came on to bo heard upon tho
demurrer of the said A. B. to the plea of the said C. D. and teas
argued hy counsel, and the Court being fully advised in the premises,
are of opinion, that the said plea and the matters therein contained,
are sufficient in law to bar the said A. B. from his action against
the saidC. D. (a) Therefore, it is considered, &c. [^Conclude as
in No. 15.]
No. 22. Judgment for defendant on
demurrer to declaration.
In assumpsit.
This cause came on to be heard upon the
demurrer of the said C. D. to the declaration of the said A. B. and
was argued hy counsel, and the Court being fully advised in the
premises, are of opinion that the said declaration and the matters
therein contained, are not sufficient in law to maintain tiic action
(o) If the plainfifi" obtains leave to withdraw liis dciniirror, and reply;
instead of enterinjr up final jiuli,nnent, say, "and tiicroupoii tlie said A. IJ.
moves the Court for leave to withdraw said demurrer, and reply to said plea,
"which is granted on payment of coats since filing said demurrer." See,
70 ASSUMPSIT.
of the said A. B. against the said C. D. (b) Therefore, it is consid-
ered, &c. [Conclude as in No. 15.1
No. 23. Judgment for defendant
on Plea of Nul tiel record.
A. B. )
vs. > In assumpsit.
C. D. )
This day came the parties by their attornies,
and the said A. B. hath not here in Court the record of the supposed
recovery in the declaration mentioned, but makes default in pro-
ducing the same; Therefore, &c. \_Conclude as in No. 15.
No. 24. Judgment for defendant
on non-asswnjjsit.
In assumpsit.
This day came the parties by their attornies,
and thereupon came a jury, to wit, E. F. &c. who being empan-
nelled and sworn the truth to speak upon the issue joined between
the parties, upon their oaths do say, that the said C. D. did not
assume and promise in manner and form as the said A. B. hath
complained against him: Therefore, &c. [Conclude as in No. 15.]
No. 25. Judgment for defendant
on demurrer to evidence.
[Enter the verdict and proceed thus : This
cause came on to be heard upon the demurrer of the defendant to
the evidence of the plaintiff, ajid wus argued hy counsel, and the
(6) Leave to amend the declaration will, in general, be given if requested.
In such case, instead of entering up final judgment, say, "and thereupon
the said A. B. moves the Court for leave to amend his declaration, which
is granted on payment of costs since filing said demurrer." See, Ante.
Ab. 3. J^ote (a).
ASSUMPSIT. 71
Court being fully advised in the pt-emises, are of opinion that the
matter aforesaid shown in evidence to the said jury, in form afore-
said, is not sufficient in law to maintain the issue joined between
the parties : Therefore &c. \_Conclude as in No. 15.] See, Demur-
rer to evidence, page 49.
No. 2G. Judgment for defendant on notice
of set-off, balance found for defendant.
[Enter the Verdict, No. 1 6, j)age 53, and
proceed thus : "Therefore, it is considered that the said C. D.
recover of the said A. B. the said sum of 500 dollars, the balance
aforesaid, by the jury aforesaid found due to him, and also his costs
in this behalf expended, taxed to dollars." See, No. 3, note (b).
72 ASSUMPSIT.
Complete Record.
It is the duty of every Clerk, in vacation, to malve a complete
record of the writ, recognizance of bail, pleadings, orders and judg-
ments, in each cause finally determined at the proceeding term, in a
book, to be prepared for that purpose; which record must be signed
by the President or Presiding Judge of such Court, at the next
succeeding term. Stat. Vol. 39. p. 70. § 101. This record may
be in the form following :
Pleas before the Supi-eme Court, within, and for the The State of
County of i?055, and State of Ohio, on^the tenth day of Okio:Koss
June, [date of final judgmentl in the; year of our Lord "'
one thousand eight hundred and thirty two.
Be it remembered that, heretofore, to wit,
on the fust day of August, in the year of our Lord one
thousand eight hundred and thirty one, A. B. sued out
of the Clerks office of the Court aforesaid, the following
writ of capias ad respondendum, against C. D. to wdt,
[Seal.] The State of Ohio, Ross County, ss.^ To the Capias ad
Sheriffof said County; Greeting. We command you ^'^^^^^^^^'^^"
to take C. D. if he may be found in your bailiwick, and
him safely keep, so that you have his body before our
Supreyne Court, of the County aforesaid, at the Court
House in said County, on the first day of their next
Term, to answer unto A. B. in a plea of assumpsit :
Damages, 1000 Dollars, and have you then there this
writ. Witness, T. T. Chief Judge of our Supreme Court
aforesaid ihxs first day o^ August K. D. 1831. Attest,
F. C. Clerk. Upon which writ was the following en- Endorsc-
dorsement, to wit. Suit brought on note given by deft. ment.
to pltff. for 800 Dollars, dated June 1, 1831, also
for goods sold and delivered, money had and received
&LC. damages 1000 Dollars. Sheriff will hold to bail in
2000 Dollars. X. Y. Atty. for Plaintiff. And afterward?
ASSUMPSIT.
73
to wit, on the sixth day of October in tiie year last afore-
said, the said writ was returned to the Court aforesaid by
said Sheriff, endorsed as fohows, to wit, I have taken the
body. S. W. Sheriffof i?oss County. And afterwards, to
wit, on the day and year last aforesaid, the following re-
cognizance of special bail was entered into, to wit, The
State of Ohio, Ross County, ss. Be it remembered,
that on tliis sixth day of October in the year of our Lord
one thousand eight hundred and thirty one, G. H. and
E. F. of the County of Ross personally appeared before
J. R. Clerk of the Supreme Court of the County of
Ross and severally acknowledged themselves to owe
unto the said A. B. the sum of two thousand dollars to
be levied on their several goods and chattels, lands,
tenements and estates; upon condition, that if the said
defendant C. D. shall be condemned in this action at
the suit of the said A. B. he shall pay the costs and
condemnation of the Court, or be rendered, or render
liimsclf, into the custody of the Sheriff of said County,
for the same, or in case of failure, that the said G. H.
and E. F. will pay the costs and condemnation for
him. Taken and acknowledged, the day and year
above written before me, J. R. And afterwards, to
wit, on the same day and year last aforesaid, on motion
of the said A. B. this cause w^as continued until the
next term of tliis Court. And afterwards, to wit, on
the second day of March, in the year of our Lord one
thousand eight hundred and thirty two, the said A. B»
filed in the Clerks ofiice aforesaid, the following declar-
ation, to wit, Ross County, ss. Supreme Court. Octo-
ber Term, A. D. 1831, A. B. complains of C. D. in a
plea of assumpsit, for that whereas the said C. D. on
the first day of June, in the year of our Lord one thou-
sand eight hundred and thirty one, at the County of
Ross aforesaid made his promissory note in writing,
and delivered the same to the said A. B. and thereby
promised to pay to the said A. B. or order, eight hun-
dred dollars in thirty days after the date thereof, which
K
Sherifs
Return.
Recogni-
zance of
Speciat
Bail.
Continu-
ance.
Declara
tion.
Special
Count.
74
ASSUMP>SIT.
period has now elapsed, and tlic said C. D. then and
there in consideration of the premises, promised to pay
the amount of tlie said note to the said A. B. according
to the tenor and effect thereof: And also for that
whereas the said C. D. on the tenth day of July, in the
year of our Lord one thousand eight hundred and thirty
one, was indebted to the said A. B. in one hundred
dollars for the price and value of goods, then and there
bargained and sold by the said A. B. to the said C. D.
at his request : And in one hundred dollars for money
then and there lent by the said A. B. to the said C. D.
at liis request : And whereas the said C. D. afterwards,
to wit, on the twentieth day of July, in the year last
aforesaid in consideration of the premises, then and
there promised to pay the said last-mentioned several
sums of money to the said A. B. on request: Yet he
hath disregarded his promises, and hath not paid the
said several sums of money, nor either of them nor
any'^part thereof: To the damage of the said A. B.
1000 Dollars, and thereupon he brings suit, &c. By T.
S. his attorney. And afterwards, to wit, on Xhe fourth
day of May, in the year last aforesaid, the said C. D.
filed in the Clerk's office aforesaid the follov/ing plea,
to wit, C. D. ads. A. B. Ross Supreme Court. And
the said C. D, comes and deiends, &c. and says that he
did not assume and promise in manner and form as the
said A. B. hath declared against him, and of this he puts
himself upon the country ; and the said A. B. doth the
like. And afterwards, to wit, on the day and year
first aforesaid, to wit, on the tenth day of Jimc, in the
year of our Lord one thousand eight hundred and thirty
two, before the Supreme Court aforesaid, came as well
the said A. B, as the said C. D. by their attornies afore^
said, and thereupon came a Jury, to wit, E. F. &c.
who being empannelled and sworn the truth to speak
upon the issue joined betv/een the parties aforesaid, upon
their oaths did say, that the said C. D. did assume and
promise in fnanner and form as the said A. B. had
Common
Counts.
Plea.
General
issue.
Verdict.
ASSUMPSIT. ' 75
complained against him, and they assessed the damages
of the said A. B. by reason thereof, to seven hundred
dollars : Thereupon it was considered that the said A. Judgment.
B. recover of the said C. D. the said sum of seven hun-
dred dollars, his damages aforesaid, in form aforesaid
assessed, and also his costs in that behalf expended,
taxec^to ten Dollars, {n).
The Statute of the United States, passed May 26th, 1790, pro-
vides, "that the records and judicial proceedings of the Courts of
any State shall be proved or admitted in any other Court withm the
United States, by the attestation of the Clerk, and the seal of the
Court annexed, if there be a seal, together with a certificate of the
judge, chief justice, or presiding magistrate, as the case may be,
that the said attestation is in due form." By the Second Section
of a supplementary Statute, passed March 27th, 1804, all the pro-
visions of the Statute of 1790, are made to "apply as well to the
public acts, records, judicial proceedings, and Courts of the rcspec-
(a) This form is proper for records in the Supreme Court, in all cases
which arc origiiiiilly broii'jfhl in that Court; but where a cause is taken by
appeal from the Court of Common Pleiis, after stating the placitaas in the
above precedent, proceed thus ; "He it remembered that, heretofore, to
"wit, on A. B. or C D. [Ihc uppcllani] deposited in the Clerk's Office
"of the Supreme Court of the State of Ohio, within and for the said County
"of the orijjinal papers and pleadings in a certain cause then lately
"pending in the Court of Common Pleas within and for the said County of
" wherein the said A. iJ. was plaintiff and the sv.id C. D. was defond-
"ant. (and which cause had been duly appealed by the said A . B. or C. D. to
"tl.e Supreme Court aforesaid,) together with an authenticated transcript
"of the journal entries andof ihe tinal judgment, made and rendered in said
"cause by ilie Court of (Jominon i'leas aforesaid, and which original papers,
"pleadings and transcript are in the words and Dgurcs following, to wit,"
\ Hrre set out, vcrbatini, the original writ and cndorse.incnls, iJcclaraiion,
i^lca, t-Vc. loitk the orders of Court and Judgment, as atalcd in the transcript
and then proceed thu;; "And afterwards, to wit, on &c." [Here state
the proceedings, and final Judgment iii the ISupreme Court, in the same
manner, as if the suit had been originalhj brougfit in that Cou7't.'] See, Jlp-
■jieal.
It has been questioned, whether the complete record after it has been
signed by the proper Judge, can under any circiimstunces be atnended. In
the case of Young vs. 'J'he State of Ohio on error in the Supreme Court of
Franklin County, December 'rani, I'ilili, upon an application for a certior-
ari vn suggestion of diminution of record, Chief Justice HrrcncocK, ex-
pressed an opinion, cxlrajudiciatlij, that a clerical mistake, in making up
the complete record, might be corrected (fer it had been signed by t!jo
Judge; but it is not known that the qucrtion has ever hesn j ud icial 1 1/ settled.
See; 5 Ohio Rep. 27(3. 337.
76 ASSUMPSIT.
tive territories of the United States, and countries suhject to the
jurisdiction of the United States, as to the pubUc acts, &c. of the
several States." The attestation and certificate under the act of
1790, may be thus: [7 Cranch. 408.]
FoR3i OF Attestation and Certificate.
The State o^^Ohio )
FranMin County, ss. \ I hereby certify,
that the foregoing is truly taken and copied
[Seal.} from the Records of the proceedings of the
Court of Common Pleas, within and for the
said County of Franklin.
In testimony whereof I do hereto subscribe my name and
affix the seal of said Court, this day of A. D.
J. S. Clk.
I, A. B. President Judge of the Court of Common Pleas, within,
and for the County of Franklin and State of Ohio, do hereby certify,
that J. S. is Clerk of said Court, and that Iiis attestation aforesaid
is in due form of law, and that to all acts by him so done, full faith
and credit are and ought to be given in judicature and thereout.
[^This certificate is unnecessary when the record is to be used in the
Courts oj the same State.
Dated, &c. A. B.
Under the Statute of 1790, the Supreme Court of the United
States have decided, that a copy certified by the Clerk, without a
certificate of the presiding judge that the attestation is in due form,
is not admissible evidence, in the Courts of another State or District.
9 Cranch, 122. It had been previously held, in Pennsylvania, that
a copy not certified according to the Statute was prima facie evi-
dence, but not conclusive. 2 Yeates. 532. And in North Carolina,
that the Statute was only affirmative, and did not abolish all other
modes of authentication. 1 Hayw. 359.
A record of another vState, informally certified, cannot be read
even on a question of discharging common bail. 1 Pet. Rep. 352.
To make a record of a Court of one State, evidence in another, the
ASSUMPSIT. 77
attestation must be according to the form used in the State from
which the record comes; and the only evidence of this fact is the
certificate of the presiding judge of that Court. Ibid. 1 Johns. Cas.
238. A certificate of a presiding judge, stating tliat the person,
whose name is signed to the attestation of the record, is Clerk, and
that the signature is his hand writing, is not in conformity with tlie
requirements of the Statute. 1 Pet. Rep. 352. Wherever tiic
Court, whose record is certified, has no seal, this fact should a})pear,
either in the certificate of the Clerk, or in that of the Judge. Ibid.
See, also 1 Hayw. 395. The attestation by the Clerk, of the
record of a judgment in another State, must have the seal of the
Court annexed to it, and it is not sufficient that such seal is annexed
to the certificate of the Judge. IVhartons Dig. 22 4. A record of
another State, attested by the Clerk, with the seal of the Court
annexed, and the certificate of two judges, stating it to be in due
form, one of them stating himself to be the judge "that presided,
and oneof the judges of the superior Courts of law of said State;"
and the other stating liimself to be "the senior judge rifthe Courts
oflawof said State" was held to be an insufficient authentica-
tion. 3 Bibb. 369.
In those States where a Justice of the peace holds a Court of
record ; when he is the sole Justice and has no Clerk, he may cer-
tify that he is the presiding magistrate and Clerk of the Court, that
there is no seal, and that the attestation is in the usual form ; and a
copy of the record thus certified is admissible in evidence. But a
copy of the record of a judgment rendered by a justice in another
State, authenticated only by his certificate, stating that it is a true
copy of the file and records remaining in his office, is not sufficiently
proved, either at common law, or according to the Statute of the
United States. 5 Day. 363.
A decree in Chancery must be authenticated according to the
Statute of 1790. 2 J\Iarsh. 293.
A record of a Court of the United States is not within the Statute
of 1790; and if under the seal of the Court, and certified by the
Clerk as a copy, is evidence in the State Courts, without a ccrtifi-
78 ASSUMPSIT.
catc of the presiding judge. 2 Johns. Cas. 119. So the record
of a Court of a Territory was held, in Kentucky, not to be within
the provision of the Constitution and Statute. 2 Bibb. 334.
By immemorial usage, also in Massachusetts, a copy of the
records of the Courts of their own State, attested by the Clerk, is
admissible in evidence. 4 Mass. 402. This is also the com-
mon practice in Ohio. See, also 2 Johns. Cas. 119. Col. and
Caines' Cas. 130. In South Carolina, by a Statute passed more
than a century since, attested copies of all records, certified by the
Clerk of the Court, are admissible in evidence. 2 J\ott Sf McCord.
299. 1 Starkie's Ev. 151. 3.
Judgements regularly obtained in other States, against defend-
ants who have been served with process, or have appeared and had
an opportunity of making a defence, are to be received as conclu-
sive evidence, and no re-examination of the grounds on which they
are rendered can be permitted, but where the defendant has not
been served with process, or not had an opportunity of making a
defence, it seems the record is to be considered only prima facie
evidence, and may be impeached. 1 Ohio Rep. 257. Ohio Conds.
123. See, 3 Wheat. 234. 7 C ranch. 431. 9 Mass. 462.
4 Cranch. 442. 6 Wheat. 129. 1 Dallas. 261. 15 Johns. 121.
DEBT. 79
Debt.
The action of Debt is, in general, commenced by summons or
capias ad respondendum.
1. Summons.
The smnmons is issued, as a matter of course, upon filing a Prae-
cipe with the Clerk of the proper Court, [See, ante, 7. note (a)]
Praecipe for Summons in debt.
A. B
c. b. S
. B. ^
vs. > In Debt — Debt — dollars — Damages — dollars, (a)
Issue a summons returnable [ forZ/i?/;?'///, if in
term time, or at next term, if in vacation^ Indorse, "Suit brot
on single bill under seal given by deft, to pltff. for — dollars, dated,
&c. Also for goods sold, &c." See, ante. 8. note (a).
T. S. Atty. for PItif.
To the Clerk of Com. Pleas, or Sup. Court.
Writ of Summons.
The vState of Ohio County, ss.
To the ShcriU'of said County : Greeting.
We command you to summon C. D. to appear before, our
Supreme Court^ or Court of Common Pleas, of the County afore-
said, at the Court House in said County, forthwith [if in Icnntime]
or, on the first day of ihcir next term [if in vacation'] to answer
(a) This action bein^ for the recovery of a debt, ro nomine, and inmnncro,
damages tliougli awarded for tlic detention of tlie debt, are, in most instan-
ces, merely nominal : Ske, 1 Chit. pi. 97. 4 Edit, and the Jury first find tiie
matter of the issue, at.- ui)oti ;(// dchet; that the defendant owes to tiic plain-
tiff the amount of the debt proved; upon non r.st/dctuui; thatthe bond is the
deed of the defendant, and then liiey assess the damages, which arc in gen-
eral nominal. VII. Pefcrsd. Ab. 525.
eo DEBT.
unto A. B. in a plea of debt for dollars Damages
dollars; and have you then there this writ. (a).
Witness, T. T. Chief Judge of our Supreme Court, or, President
Judge (four Court of Common Pleas, aforesaid, this day of
A. D.
Attest. F. C. Clerk.
For the Forms of an Mias, Pluries and Testatum Summons, See,
Ante, 9.
II. Capias ad respondendum.
When a capias may be sued out. See, Jlnte. 10.
PRiEciPE FOR Capias.
A. B. )
vs. > In Debt — Debt — dollars — Damages — dollars.
C. D. )
Issue a capias ad respondendum returnable forth-
with [if in term time'] or, at the next term [if in vacation'] Indorse
"Suit brot on single bill under seal given by deft, to pltti'. for
dollars, dated, &c. and also for goods, sold, &c." See, Ante, 8.
note (a).
Hold to bail in the sum of dollars, [double the amount due or
sworn to.]
To the Clerk of Co?7i. Pleas or, Sup. Court.
Dated, &c. T. S. ./3«2/. for pltfF.
For the Form of Affidavits, and Judge's order to hold to Bail,
SEE,.5n/e, 11. 12.
(a) For the proper endorsements to be made upon this writ. See, ante, 8.
DEBT. 81
Writ of capias ad respondendum.
The State of Ohio County, ss.
To the Sheriff of said County: Greeting.
We command you to take C. D. if he may be found in your baiU-
wick, and him safely keep, so that you have his body before our
Supreme Court or, Court of Common Pleas, of the County aforesaid,
at the Court House in said County, fortlnoHh, or, on the first day of
their next term, to answer unto A. B. in a plea of Debt for dol-
lars Damages dollars ; and have you then there this
writ.
Witness, T. T. Chief Judge of our Supreme Court, or. President
Judge of our Court of Common PleaSj aforesaid, this day of
A.D.
Attest. F. C. Clerk.
For the proper endorsements to be made upon this writ, the
^orms, of an Jllias, Pluries, and Testatum capias, Bail Bond to the
Sheriff, Recognizance of Special Bail, Bail piece, and Appearance
of Defendant, See, Ante from 13 fo 18.
L
82 DEBT.
Dr
CLARATIONS.
For general principles in relation to Declarations, See, Decla-
rations in Assumpsit, Ante. 20.
No. 1. On Single Bill, or Promis-
sory Note, under seal.
f Supreme Court, or Court of Common Pleas
I Term. [^The term to which the wi it was
County, ss. <( returned, or, the term at which the cause was
brought into Court, by appeal or certiorarifl
A. D.
A. B. complains of C. D. (a) in a plea of debt, (b) for that
whereas * the said C. D. on at made his certain writing
obligatoiy of that date, sealed with his seal (and now to the Court
(a) See, Anle. 21, Js'ute, (a).
(i) It will be observed, ihat in this precedent, the English form of the
commencement, is entirely omitted. That form runs thus : "A. B. com-
plains of C. D. being, &c. of a plea that he render to the said A. B. the sum
of dollars lavvtui money, &c. which he owes to, and unjustly detuins
from the said C. D. for that whereas, cic." The old puthorities required
the blank in the commencement to be filled with the aggregate of all the sums
contained in the several counts ; and it was accordingly held ihat the plain-
tiff could neither prove or recover a less sum than that demanded in the
commencement of his declaration. The same principle was originally ex-
tended to the action of Assumpsit. Thus where the plaintitf declared in
■indebltcJui as9. Fonrierly it was usual in cases of escrow, rasure, interlineation, .\ upon which the judgment of the court i.«, either that the defendant
have oyer, or that lie answer without it. On the latter ju Igmcnt the
defendant may bring a writ of error ; for to deny oyer where it ought
to be grinted is error, but iwl e comer so. XIII. Pdcrsd. Abg. 73. Tliere
is no settled time prescribed for the plaintiff to give oyer, but the defendant
eball, in all cases, have the same time to plead, after oyer given, as he had
nt the time of demanding it: I Sira 7U5. The plaintiff shall have tlie
same time to reply after oyer given him by the defendant as he had at the
tune of demanding it. XIII. Pdcrsd. Abg-IA. See, .'i/i/c, 83. Ao/e (a).
92 DEBT.
also craves oyer of the condition of the said supposed writing
obligatory and it is read to him in these words, [iiere set out the
recitals, and condition, verhatim7\ which being read and heard, the
said C. D. says that the said supposed writing obligatory is not his
deed; and of this he puts himself, &c. (a). [^Conclude as in No. 1.
No. 4. Non est factum and Nil debet to debt
on bond and simple contract.
C. D. ^
ads. > In debt.
A. B. )
And the said C. D. comes and
defends, &c. and as to the said first count of the said declaration,
says, that the said supposed writing obligatory therein mentioned
is not his deed, and of this he puts himself upon the country, &c,
and as to the second, third and last counts of the said declaration,
the said C. D, says that he does not owe the said sums of money
therein mentioned, nor any of them nor any part thereof, in man-
ner and form as the said A. B. hath complained against him, and
of this he puts himself, &c. [^Conclude as in No. 1.
No. 5. Gnerari non (b).
And the said C. D. comes and defends,
'&c. and says, that he ought not to be charged with the said debt
(a) It is said, that when the defendant intends to dispute Uie validity of
the deed, ho should refer to it in his plea, merely by the term " writing"
or "supposed writing obligatory," and should not say "writing obligatory"
because such admission would be inconsistent with the proposed defence.
1 f?aiLiid. 291. a. 7i. 1. Lill. Ent. 166. Where no use is intended to be
made of the bond in pleading, it is unnecest-ary to crave oyer of it at all,
or to enter any such prayer. It is sufiicient to set out the condition upon
oyer. 1 Saund. 9 b. n. 1. But the whole condition, or deed must be set
fortn upon oyer, for if there be any misrecital, the plaintiff, in his replica-
tion, may pray that the deed, &c. may be enrolled, and then demur. 1
Saund. 9. b. n. 1. 4. T. B. 370.
(6) It is said, that when the plea admits the validity of the deed, and
that there was once cause of action, but avoids, or discharges it by matter
Bubsequent, the defendant should say, '^actionem non,'''' but where the va-
DEBT. 93
by virtue of the said supposed writing obligatory, because he
says, &c. [Here state the ground of defence'] and this he is ready
to verify; wherefore he prays judgment, if he ought to be charged
with the said debt by virtue of the said supposed writing obUga-
tory, &c.
No. 6. Deed ohtamcd hy fraud.
In debt.
1. No7i est factum, as in No. 1, and
then proceed thus: And for a further plea, onerari non, as in the
last precedent, because he says that the said writing in the said
declaration mentioned, was obtained from the said C. D. by the
said A. B. (and others in collusion with him) by fraud, covin and
misrepresentation, that is to say, by the said A. B. (and others in
collusion with him) falsely and fraudulently representing to the
said C. D. that, &c. [//ere stale the fraudulent misrepresentations^
and that the deed was executed in confidence of such representations
and conclude thus : to wit, at, &c. aforesaid ; wherefore the said
C. D. saith that the said deed in the said declaration mentioned was
and is void in law, and this he is ready to verify; wherefore he
prays judgment if he ought to be charged with said debt, by virtue
of the said writing, &c. [Add a plea of fraud and covin generally,
omitting a statement of the particuUtr misrepresentations.'] {a).
No. 7. Duress of imprisonment.
In debt.
And the said C. D. comes and defends,
lidity of Uie deed is disputed, tiie defendant should say, '^^ oncrnri non
debet." 1 Sannd. 290. n. ;3. (lucre, as to tlie necctsity of observing lliia
distinction in Ohio.
(a) 'I'hat fraud may be taken advantage of nt law, Set, 2 T. R. 75o.
3 T. R. 438. 2 liai/. 11. 2 Chill, pi. 49.3. Ccnlra-. 13 Joknt. 430.
94 DEBT.
&c. and says, tliat he ought not to bo charged with the said debt
by virtue of the said writing obligatory, because he says, that at
the time of the making the said writing, he the said C. D. was im-
prisoned by the said A. B. and others by their covin, to wit, at, &c.
and there detained in prison until by force and duress of that im-
prisonment he the said C. D. then and there inade, sealed and
delivered the said writing to the said A. B. and this he is ready to
verify; wherefore he prays judgment if he ought to be charged by
the said writing obligatory and for his costs, &c.
Replication. Defendant at large, 6f-c. And the said A. B.
says that notwithstanding any thing by the said C. D. in
pleading alleged, he ought to be charged with the said debt by
virtue of the said writing obligatory, because he says, that the said
C. D. at the time of the making of the said writing obligatory was
at large and at his full liberty and out of all prisons whatsoever,
and that he made, sealed and delivered the said writing to the said
A. B. of his own free will and accord and not Ijy force or duress
of imprisonment, and this he prays may be enquired of by the
countrv, &c.
No. 9. Solvit ad diem.
\_Actio non, after craving oyer, as in No. 3
because he says that he the said C. D. on the said day of
[The daxj of payment inentioned in the coiidition'] paid to the said
A. B. the said sum of dollars in the said condition mentioned,
together with all interest due thereon, according to the form and
effect of the said condition, to wit, at And this he is ready to
verify : wherefore he prays judgment if the said A. B. ought to
have or maintain his said action against him, &;c.
No. 10. General performance, of
covenants in Indenture.
[Actio non, after craving oyer, as in No. 3 ■
because he says that there was not, nor is there any negative or
disjunctive covenant or agreement, contained in the said indenture,
DEBT. 95
in the said condition of the said writing obligatory mentioned, on
the part of the said C. D. to be omitted, done, observed, performed,
fulfilled or kept, and that he the said C. D. hath truly performed
and kept the said indenture, and all things therein contained, ac-
cording to the true intent and meaning thereof: And this, &c.
[Conclude as in No. 9.
No. 11. The like, where the bond is for the perfor-
mance of acts specified in the condition.
\_Actio non, after craving oyer, as in No. 3
because he says, that he the said C. D. at all times since the making
of the said writing obligatory, and the condition thereof, has truly
kept and performed, all and singular, the articles, clauses, payments,
conditions, and agreements in the said condition of the said writing
obligatory mentioned, according to the true intent and meaning of
the same; and this, &c. [Conclude as in No. 9.] (a).
No. 12. Nul tiel record.
In Debt.
And the said C. D. comes and defends, (fee.
and says that there is not any record of the said supposed recovery
in the said declaration mentioned, remaining in the said Court of
in manner and form as the said A. B. hath in his declaration
alleged : and this he is ready to verify; wherefore he prays judg-
ment if the said A. B. ought to have or maintain his said action
against him, In Debt.
C. D. )
This cause came on to be heard upon the
demurrer of the defendant to ^the plaintiff's declaration, and was
argued by cciinsci, and the Court being fully advised in the premises,
are of opinion that the matters contained in the declaration are
sufficient in law for the said A. B. to maintain his said action
against the said C. D. whereupon it is considered, that the said A.
B. ouoht to recover his debt aijainst the said C. D. and his dama-
ges by reason of the detention thereof ; but because the said debt
and damages are to the Court unknown, it is ordered that a jury be
empannelled to inform the Court of the same, * (a) and thereupon
a jury being called came, to wit, E. F. &:c. who being empannel-
led and sworn to enquire as well of the said debt as of the said
damages, upon their oaths do say, that the said C. D. doth owe to
the said A. B. the sum of dollars, and they assess his dama-
ges by reason of the detention thereof to dollars; Therefore
it is considered that the said A. B. recover of the said C D. the
said sura of dollars his debt aforesaid and the said sum of
dollars his damages aforesaid, and also his costs in this behalf ex-
(a) The Verdict is not commonly taken immedlateli/ upon the rendition
of the judgment upon the demurrer, but at a subseqnenl day or term. In
such case the judgment is entered upon the demurrer, at the time of its
rendition, as in the above precedent to tiie. * Afterwards when the verdict
is taken, proceed tlius: "This day came again the parties by their attor-
nies and thereupon a jury being called came, to wit, E. F. &c." [Conclude
at above.]
DEBT. 101
pended taxed to dollars. See, Ante, G2. notes, (a) and'^(b).
and Ante 90. notes (a) and (b).
No. 2. Judgment for plaintiff, by default, )
on simple contract, single bonds, tfv. debt
found and dainages assessed by Court.
In Debt.
This day came the said A. B. by his attor-
ney and the said C. D. tliough solemnly called came not but made
default; whereupon 'jt is considered that the said A. B. ought to
recover his debt against the said C. D. and his damages by reason
of the detention thereof, and thereupon * neither of the parties re-
quiring a jury, and the Court being fully advised in the premises
do find that the^said C. D. doth owe to the said A. B. the sum of
dollars, and do assess his damages by reason of the detention
thereof to dollars: Therefore, &c. \_Concludeas in'^o. 1.]
No. 3. The like, debt found and )
damages assessed by the Jury. )
{Enter the judgment by default as in No. 2,
to the * the said A. B. or, the said C. D. demanding a jury,
it is ordered that a jury be empannelled to inform the Court of the
debt and damages aforesaid, &c. {Conclude as i?i No. 1.]
No. 4. Judgment for Plaintiff,
on nil debt.
[Enter Verdict No. 1. aiite, 97 There-
fore it is considered that the said A. B. recover of the said C. D.
the said sum of dollars his debt aforesaid and the said sum of
dollars his damages aforesaid and also his costs, &c. {Con-
chide as rnNo. 1.]
102 DEBT.
No. 5. Judgment for Plaintiff on submission
to the Court to try the issue and assess damages.
A. B. ^
vs. > In Debt.
C. D. )
This day came the parties by their attor-
iiies and submit this cause to the Court upon the issue joined, and
the Court being fully advised in the premises, do find that the said
C. D. doth owe to the said A, B. the sum of dollars, and do
assess his damages by reason of the detention thereof to There-
fore it is considered, &c. \_Conclude as in No. 1.]
No. 6. Judgment for plaintiff, hy con-
fession, relicta verificatione.
In debt.
This day came the parties by their
attorneys, and thereupon the said C. D. relinquishing his, plea,
says that he cannot deny the action of the said A. B. nor but that
he the said C. D. doth owe to the said A. B. the sum of dol-
lars, and confesses that he the said A. B. hath sustained damages
by reason of tlie detention thereof to dollars ; Therefore it is
considered, &c. {^Conclude as in No. 1.
No. 7. Judgment for plaintiff,
on 71071 est factum.
[Enter verdict No. 2. Ante, 98. —
Therefore it is considered that the said A. B. recover of the said
C. D. the said sum of dollars, his damages aforesaid and also
his costs, &c. [Conclude as in No. 1.
DEBT. 103
^N'o. 8. Judgment for plaintiff,
on nul tiel record.
In debt.
This day came the parties by their
attorneys and the record aforesaid being inspected by the court, it
sufficiently appears that there is such a record of recovery against
the said C. D. at the suit of the said A. B. as he hath alleged ;
whereupon it is considered that the said A. B. ought to recover
his debt aforesaid and also his damages by reason of the detention
thereof, * but because the said damages are to the court unknown,
it is ordered tlrat a jury be cmpannelled to inform the court of
the same ; and thereupon a jury being called to come, to wit,
E. F. &c. who being empannelled and sworn to enquire of the
said damages do assess the same to dollars. Therefore it is
considered, &c. {ri). \_Concliidc as in No. 1.
The ASSIGN3IENT OF BREACHES, AND PROCEEDINGS UPON
Judgments, by defaui.t, confession and demurrer
UNDER THE f^TATUTE. Vol. 29. J^. GG. § 41, 42, 43, 44.
No. 9. Verdict and Judgment for jr'laintijj','\
, \oJierc the hrcaclics, are assigned in '
the declaration, and issue taken to iiic |
country. J
A. B. ^
vs. / In debt.
C. D. )
This day came the parties by their
attornies and thereupon came a jury, to wit, E. F. &c. who being
{(i) In debt upon jiul^mieni, there arc, in gt-ncral, no other damnf^cs, than
interest iijion the orijTinul jiiclgintni. It is usual liicrclore lo s-ubinit tlio
assessnioiit of damages to the court, as in cases of default. In bucli case?,
proceed as in ihe last precedent to tlic •'■ and theti say, "and tliereupon, by
consent of parties, the assessment of said dainngrt; is submitted to tiic
court and the court being fully advised in the premises do assess the same
to dollnra"'; Therefore, iVc. IConcluJc as in No. 1.
104 DEBT.
empannclled and sworn the truth to speak upon the issue joined
between the parties, upon their oaths do say, that the said writing
obligatory is the deed of the said C. D. as the said A. B. hath in
that behalf alleged; and they do further say, that, "the said C. D.
did not, &c. [Here state what the defendant did, or omitted to do^ as
alleged in the assignment of breaches'] ; and the said jury do further
say that said A. B. hath sustained damages by reason of the
premises to dollars : Therefore it is considered that the said
A. B. recover of the said C. D. the said sum of dollars hia
debt aforesaid [The penalty of the bond] : and it is further ordered
that execution issue herein against the said C. D. for the said sum
of dollars, the damages aforesaid, by the jury aforesaid
assessed, and also for dollars the costs of the said A. B. in
this behalf, expended, &c. (a). \_Conclude as in No. 1.] See, ante,
86, ?i. (a).
No. 10. Judgment for plainti^^ for the amount ^
equitably due found by tlie cowl, after > ; .
Judgment by Default. )
A. B. ^
vs. > In debt.
CD.)
This day came the said A. B. by his
attorney and the said C. D. though solemnly called camx not but
made default : Whereupon it is considered that the said A. B.
ought as well to recover against the said C. D. his debt, as also to
have execution for so much thereof as may be due accordmg to
equity; * and thereupon neither party demanding a jury, the court
being fully advised in the premises, do find that the sum of
dollars is now due from the said C. D. to the said A. B. according
to equity: Therefore it is considered that the said A. B. recover
of the said C. D. the said sum of dollars, his debt aforesaid
[the penalty of the bond]: and it is further ordered that execution
(a) When the plaintiff declares for the penalty alone, and the defendant,
after oyer of the condition, pleads non est factum, upon which issue is
joined, the plaintiff may then assign his breaches, and thereupon the ver-
dict and jndgmont follow as in the above precedent. 8 T. R. 25a. 2 Saund.
187. n. 2.
DEBT. 105
issue herein against the said C. D. for the said sum of dollars,
the amount now due as aforesaid according to equity, and also for
dollars, the costs of the said A. B. in this behalf expended,
&c. [Conclude as in No. 1.] See, Ante, 78. n. (a). [The
proceedings after judgment hy confession and on demurrer are
substantially the same as in this precedentJ]
No. 11. The like, when the breaches are (
not assigned in the declaration. \
[Proceed as in No. 10 fo the * but
because judgment hereof should not be given until the truth of
certain breaches hereafter to be assigned by the said A. B. shall
be enquired into, and the amount equitably due to the said A. B.
by reasop of those breaches shall be ascertained, therefore let
judgment hereof be stayed until such time as the said premises
shall be ascertained.
[After the judgment is thus taken the breaches are to be assigned
as follows : " And the said A, B. now comes and says that the
said "writing obligatory in said declaration mentioned was subject
to a certain condition, thereunder written, whereby after reciting,
&c." [Here state the recitals and assign the breaches.'] Then
follows the final judgment thus: "And now comes again the said
A. B. by his attorney, and neither party demanding a jury, &c.
[Conclude as in No, 10.
No. 11. Judgment for the amnxint equitably
due found by jury ajlcr Judgment
by default.
[Pi-occed as in No. 10 io the * and
thereupon the said A. B. or, the said C. D. demanding a jury to
ascertain the same, a jury being called come, to wit, E, F, &c,
who being empannclled and sworn to ascertain the amount now
equitably due to the said A, B, by reason of the premises, upon
their oaths do say that the sum of dollars is now due by
reason of the premises to the said A. B, according to equity:
Therefore it is considered, &:c, [Conclude as in No, 10.
O
106 DEBT.
[. ' "
I The 'like form is applicable to proceedings after Judgment by
confession and on Demurrer.
For the forms of Judgments in favor of the defendant, See,
Judgmentstn Assumpsit, ante, 67.
COVENANT. 107
The action of covenant is, in general, commenced by summons
or capias ad respondendum.
I. Summons.
The summons is issued, as a matter of course, upon filing a
Praecipe with the Clerk of the proper Court. [See, ante, 7,
note (a).
PrjEcipe for Sujimons in Covenant.
A. B. )
vs. > In covenant. Damages dollars.
Issue a summons returnable [^forth-
with, if in term time, or, at next term, if in vacation.'] Indorse,
" Suit brot, &c." See, ante, 8. note, (a).
T. S. Atty. for Pltff.
To the Clerk of Coin. Pleas, or Sup. Court.
Dated, &;c.
Writ of Summons.
The State of Ohio County, ss.
To the Sherift'of said County : Greeting.
Wc command you to summon C. D. to appear before our
Supreme Court, or. Court of Common Pleas, of the County afore-
said, at the Court House in said County, forthwith [if in term time']
or, on the first day of their next term [if in vacation'] to answer
unto A. B. in a pica of covenant broken. Damages dollars:
and have you then there this writ, {a.)
(«) For the proper endorsements to be made upon this writ, See, ante, 8.
108 COVENANT.
Witness, T. T. Chief Judge of out Supreme Cowt^ or, President
Judge of our Court of Common Pleas, aforesaid, this day of
A. D.
Attest.
F. C. Clerk.
For the forms of an Alias, Pluries, and Testatum Summons,
See, ante, 9, 10.
II. Capias ad respondendum.
When a capias may be sued out. See, ante, 10,
Precipe for capias.
A. B. )
vs. > In covenant. Damages dollars.
C. D. )
Issue a capias ad respondendum
returnable forthwith [if in ter-m time'] or, at the next term [if in
vacation.'] Indorse, "Suit brot, &c." See, ante, 8. note, (a).
Hold to bail in the sun) of :• dollars.
To the Clerk of Com. Pleas, or. Sup. Court.
Dated, &;c.
T. S. atty. for pltff.
For the Form of Affidavits, and Judge's order to hold to Bail,
See, ante^ 11, 12.
Writ of capias ad respondendum.
The State of Ohio County, ss.
To the Sheriff of said County: Greeting.
We command you to take C. D. if he may be found in your baili-
COVENANT. 109
wick, and him safely keep, so that y(ju have his body before our
Supreme Court or, Court of Common Pleas, of the County aforesaid,
at the Court House in said County, forthwith, or, on the first day of
their next term, to answer unto A. B. in a plea of covenant broken.
Damages dollars; and have you then there this writ.
Witness, T. T. Chief Jttdge of our Supreme Court, or.
President Judge of our Court of Commori Pleas, aforesaid, this
day of A. D. .
Attest.
F. C. Clerk.
For the proper endorsements to be made upon this writ, the
Forms, of an Alias, Pluries, and Testatum capias, Bail Bond to the
Sheriff, Recognizance of Special Bail, Bail piece, and Appearance
of Defendant, See, Assumpsit, Ante from 12 to 18.
no COVENANT.
Declarations.
For general principles in relation to Declarations, See, Decla-
rations in Assumpsit, Ante, 20.
No. 1. Lessor against Lessee for
rent, upon an Indenture.
Supreme Court, or Cotirt of Common PleaSj
Term. [The term to ivhic/i the w? it was
County, ss. <( returned, or, the term at which the cause was
I brought into Coiirt, hy appeal or certiorari^
A. D.
A. B. complains of C. D. {a) in a plea of covenant, for that
whereas * on at by a certain indenture then and there
made between the said A. B. of the one part and the said C. D. of
the other part, one part of wliich said indenture sealed with the
seal of the said C. D. the said A. B. now brings into Court, (h)
the said A. B. did demise and lease unto the said C. D. his execu-
tors, administrators and assigns, a certain messuage or dwelling
house, with the appurtenances, (c) to have and to hold the same
from to yielding and paying therefor yearly and every
year to the said A. B. his heirs or assigns the sum of dollars
on the day of in each and every year. And the said
C. D. did thereby for himself, his executors, administrators, and
assigns, covenant and agree to and with the said A. B. his heirs
and assigns, that the said C. D. his executors, administrators or
assigns would pay or cause to be paid to the said A. B. his heirs or
assigns, the said yearly sum of dollars at the several days
and times aforesaid. By virtue of wliich demise the said C. D.
(a) See, Ante, 21, note (a).
{b) See, Anle, 83, note (a).
(c) "Certain tenements with the appurtenances particularly mentioned
and described in the said indenture, situate, &c." is a siitRcient description;
and in order to avoid a variance it is advisable not to state the abuttals or
any other particular description. 1 Saund. 238. n. 2. 2 Satmd. 366. n. 1.
COVENANT. Ill
afterwards, to wit, on , entered into the said premises and
was thereof possessed for the term aforesaid : («) And the said
A. B. avers that during the said term, to wit, on a large sum
of money, to wit, the sum of dollars, of the rent aforesaid,
for years of the term aforesaid, then elapsed, was and still is
in arrears and unpaid, contrary to the true intent and meaning of
the said indenture and of the said covenant of the said C. D. And
so the said C. D. hath not kept his covenant aforesaid but hath
broken the same, to the damage of the said A. B. dollars,
\the, amount stated in the icrWl ; and therefore he sues, &c.
By T. his attij.
No. 2. The like, upon articles of agreement.
[Proceed as in No. 1. to the * on
at by certain articles of agreement then and there made and
concluded by and between the said A. B, and the said C. D. sealed
with their respective seals and now to the Court here shown, the
said A, B. did lease to the said C. D. Inlot in the town of in
the County of aforesaid. Number with the appurtenan-
ces thereto belonging for the term of one year commencing the
1st day of April then next. And the said C. D. did thereby cove-
nant and agree to and with the said A. B. to pay liim the sum of
dollars, at the expiration of said term, for the rent of said
premises : And the said A. B. says that the said C. D. afterwards
to wit, on entered upon said premises and was thereof pos-
sessed for the term aforesaid : and the said A. B. further says that
though the said term has long since elapsed, yet the saidC. D. hath
not paid the sum of dollars nor any part thereof: And so
the said C. D. hath not kept his said covenant but hath broken the
same; To the damage, &c. [Conclude as in No. 1.
No. 3. Grantee against Grantor, on covenants )
of seisin, power to convey, warranty, &c. )
[Proceed as in No. 1. to the * iIk' said
C. D. on at by his deed of that date, scaled with
ills seal and duly executed and delivered, and now to the Court
(a) If there be a condition precedent, performance must be specially
shown;
112 COVENANT,
here shown, in consideration of dollars, bargained, sold and
conveyed to the said A. B. his heirs and assigns a certain tract of
land, situate &c. [descriptiori] To have and to hold the same to
the said A. B. his heirs and assigns forever : And the said C. D.
did by the same deed covenant to and w^ith the said A. B. his heirs
and assigns that at the time of the ensealing and delivery of the
said deed, he the said C. D. was seised in fee simple of the afore-
said lands, and had good right and lawful authority to sell and
convey the same in manner aforesaid, and that the said A. B. his
heir and assigns, from thence forward, should by force of that deed,
lawfully possess and quietly enjoy the said premises, free of and
from all incumbrances; and also that he the said C. D. his heirs
executors and administrators, would warrant and defend the same
premises to the said A. B. his heirs and assigns against all lawful
claims whatsoever.* And the said A. B. avers, that the said C.
D. at the time of the ensealing and delivery of the said deed was
not seised in fee simple of the aforesaid lands, nor had he then and
there good right or lawful authority, to sell and convey the same
in manner aforesaid, nor could the said A. B. by force of the said
deed, lawfully possess or quietly enjoy the same, free of and from
all incumbrances, nor hath the said C. D, warranted and defended
the same premises to the said A. B. against all lawful claims what-
soever, but on the contrary thereof the said A. B. says, that at the
time of the ensealing and delivery of the said deed, the paramount
title and freehold in the said premises was in other persons than the
said C. D. by virtue of which said paramount title the said A. B.
afterwards, to wit, on at was evicted out of and from
the said premises: And so the said C. D. hath not kept his said
covenants but hath broken the same : To the damage, &c. (a).
[Conclude as in No. 1.]
No. 4. ^'issignee of Grantee against Grantor^ 1
on covenants of seisin and xcarranty. ^
[Proceed as in No. 1. to the * the
(a) All actual eviction is not necessary to sustain an action on a covenant,
of warranty, when after a juilgment in ejectment, the defendant claims tho
benelitof tlie occupying claimant law, and the case is thus settled. 5 Ohio
Rep. 154. See, H Ohio Rep. 211. Ohio Conds. M'2. 1 Ohio JRep. S86. Ohio
Conds. 171. 3 Ohio Rrp. 523. Ohio Conds. G60.
COVENANT. 113
said C. D. on at by his deed of that date, sealed with
his s^al, and duly executed and delivered, in consideration of
dollars bargained, sold and conveyed to one I. S. of, &c. his heirs
and assigns, a certain tract of land situate, &c. [description :] to
have and to hold the same to the said I. S. his heirs and assigns
forever. And the said C. D. did by the same deed covenant to
and with the said I. S. his heirs and assigns, that at the time of the
ensealing and delivery of the said deed, he the said C. D. was then
lawfully seised in fee simple of the said lands, and that he the said
C. D. would warrant and defend the same to the said I. S. his heirs
and assigns, against all lawful claims whatsoever. And afterwards,
to wit, on at the said I. S. by his deed of that date,
sealed with his seal, and duly executed and delivered, and now to
the Court here shown, in consideration of dollars, bargained
sold and convcj^ed the same lands to him the said A. B. to hold to
him, his heirs and assigns forever. And the said A. B. avers that
at the time of the ensealing and delivery of the said deed to the
said I. S. he the said C. D. was not lawfully seized in fee simple,
&c. [assign the breaches of the coi^enants of seisin and warranty as
in No. 3, and conclude in like manner.']
P
114 COVENANT.
Pleas in Abatement.
For pleas in Abatement, See, Assumpsit^ Ante, 38.
Pleas in Bar.
For general principles in regard to pleas in Bar, See, Ante, 41.
Non infregit Conventionem.
In covenant.
And the said C. D. comes and defends, &c.
and says, that he hath not broken the said covenants in the said
declaration mentioned, or any or either of them, in manner and
form as the said A. B. hath complained against him; and of this he
puts himself upon the country, and the said A. B. doth the
like. (a).
For the Forms of other pleas in Bar, Notice of set-oft', &c. See,
the same titles, in Assimipsit and Debt, which, with very slight
variations, are applicable to covenant.
(a) The plea of iinn infregit convcnlionern, is only applicable to cases where
the plaintiff concludes his declaration, "and so the defendant has broken
his covenant." 2 Jlod. 311. For if the plaintiff conclude his declaration,
"and so the deft^uilaiit hat knot kept his covenant," such plea would be bad;
for it is a negative to a neo^ative; and no issue is joined, as it is only an
answer argumentatively, 8 T. R. 260. And it was admitted in the same
case, that where a party covenants to do certain things, and an action is
brought against him for non-performance , he cannot plead non injregit con-
ventionem; for it is of that description. Com. Dig. PL 2 F. 5. Story PI
213.
COVENANT. 116
Verdicts.
For the general principles in relation to Trials by Jury and Ver-
dicts, See, ^nte, 51.
Verdict for Plaintiff, on non est factum.
In covenant.
This day came the parties by their attor-
nies and thereupon came a jury, to wit, E. F. &c. who being em-
pannelled and sworn, the truth to speak upon the issue joined be-
tween the parties, upon their oaths do say, that the Indenture or,
articles of agreement, or, deed poll, above mentioned, is the deed of
the said C. D. and they assess the damages of the said A. B. by
reason of the breaches of covenant above assigned, to dollars.
Therefore it is considered that the said A. B. recover of the said
C. D. the said sum of dollars, his damages aforesaid in form
aforesaid assessed, and also dollars his costs in this behalf ex-
pended.
For the Forms of other Verdicts and Judgments, See, the
same titles in Assumpsit and Debt, which with very slight altera-
tions, are applicable, to covenant.
116 DETINUE.
Detinue.
The action of Detinue is, in general, commenced by summons or
capias ad respondendum.
I. SuM3IONS.
The Summons is issued, as a matter of course, upon filing a Prae-
cipe with the Clerk of the proper Court. [See, Ante, 1. n. (a).
Precipe fok Summons in Detinue.
A. B. )
\'s. > In Detinue Damages Dollars.
C. D. )
Issue a summons returnable ^forthwith if
in term Urns, or, at next term if in vacation,'] Indorse, "Suit brot,
&c." See, anfe, 8. note, (a).
T. S. Attij. for PltfT.
To the Clerk of Com. Pleas, or Sup. Court.
Dated, &;c.
Writ of Summons,
The State of Ohio County, ss.
To the Sheriff of said County : Greeting.
We command you to summon C. D. to appear before our Su-
preme Court, or. Court of Common Pleas, of the County aforesaid,
at the Court House in said County, forthwith [ if in term tiyne'] or,
on the first day of their next term [if in vacation'] to answer unto
DETINUE. in
A. B. in a plea of Detinue Damages dollars : and have
you then there this writ. (a).
Witness, T. T. Chief Judge of our Supreme Court, or, Presi-
dent Judge of our Court of Common Pleas aforesaid, this day
of A. b.
Attest.
F. C. Clerk.
For the Forms of an Alias, Phiries and Testatum Summons,
Site, Ante, 9.
II. Capias ad respondendum.
When a capias may be sued out, See, Ante, 10.
Praecipe for Capias.
A. B. )
vs. > In Detinue Damages Dollars.
C. D. )
Issue a capias ad respondendum returna-
ble forthwith [if in term timel or, at the next term [if in vacation^
Indorse, "Suit brot, &c." See, Ante, 8. Note, (a).
Hold to bail in the sum of dollars.
To the Clerk of Com. Pleas, or, Sup. Court.
T. S. Atty. for Pltff
Dated, &c.
For the Fo7-m of Affidavits, and Judges order to hold to Bail,
See, ante, 11. 12.
(a) For the proper endorsements to be made upon tliis writ, See, anlr, 8.
118 DETINUE.
Writ of capias ad respondendum.
The State of Ohio County, ss.
To the Sheriff of said County : Greeting.
We command you to take C. D. if he may be found in your baih-
■wick and him safely keep, so that you have his body before our
Supreme Court, or, Court of Common Pleas, of the County afore-
said, at the Court House in said County, forthicWi, or, on the first
day of their next term, to answer unto A. B. in a plea of Deti-
nue. Damages dollars; and have you then there this writ.
Witness, T. T. Chief Judge of our Supreme Court, or. Presi-
dent Judge of our Court of Common Pleas aforesaid, this day
of A.D.
Attest.
F. C. Clerh.
For the proper endorsements to be made upon this writ, the
Forms of an Alias, Pluries and Testatum capias, Bail Bond to the
Sheriff, Recognizance of Special Bail, Bail piece, and Appearance of
Defendant, See, Ante, from 13 to 18,
DETINUE. 119
Declarations.
For general principles in relations to Declarations, See, Declara-
tions in Assumpsit, Jlnte, 20.
County, ss.
'^Supreme Court, or, Court of Conunon Pleas:
Term [The Term to which the u-rit was
returned, or, The Term at which the cause
was hrot into Court hy appeal or certiorari.']
A. D.
A. B.- complains of C. D. (a), in a plea of Detinue; for that the
said A. B. on (b) at delivered lo the said C. D. certain
goods and chattels, to wit, one, &c. (c) of the said A. B. of great
value, to wit, of the value of dollars, to be redelivered by
the said C. D. to the said A. B. when he the said C. D. should be
thereto requested; {d) Yet the said C. D. though he was after-
wards, to wit, on at requested to deliver said goods and
chattels to the said A. B. hath not delivered the same nor any part
thereof, and still unjustly detains the same from the said A. B,
SecondCount
upon a finding.
— And also for that the said A. B. on at was law-
fully possessed of certain other goods and chattels, to wit, &c. of
great value, to wit, of the value of dollars, as of his own pro-
perty, and being so possessed thereof, he afterwards, on at
casually lost the said goods and chattels, and the same aftcr-
(fl) SEE,aH/e. 21. note, [a).
(b) Tiie day is immaterial unless it constitute part of tho contract.
(c) For the necessary certainty in tho description of the chattels, Ske,
2 Sannd. 74. (b) Bac. Abg. Detinue, B.
(d) The contract of bailment must be truly elated. 2 Chit. PL 27S.
note, [b).
120 DETINUE.
wards, to wit, on at came to the possession of the said
C. D. by finding, (a). Yet the said C. D. well knowing the said
last mentioned goods and chattels to be the property of the said A.
B. hath not as yet delivered the same or^any part thereof to the
said A. B. though he was requested on at by the said
A. B. so to do; but he still unjustly detains' the same from the said
A. B. To the damages of said A. B. Dollars, [The amount
stated in the icrit] and thereupon he sues, &c. (b) .
By T. his Atty.
(a) Not traversable.
■ (6) Upon an appeal to the Common Pleas from the trial of the right of
property before Justices of the peace, the claimant may declare in Detinue.
Stat. Vol. 29. p. 20G. ^ 11.
DETINUE. 121
Pleas in Abate3ient.
For pleas in Abatement, See, Assumpsit, ante, 38.
Pleas ln Bar.
General issue, Non detinet^
In Detinue.
And the said C. D. comes and defends,
&c. and says that he does not detain the said goods and chattels, in
the said declaration specified, or any part thereof, in manner and
form as the said A. B. hath complained against him, and of this he
puts himself upon the country, and the said A. B. doth the like.
By S. his Atty.
Q
122 DETINUE,
Veiidicts.
For the general principles in relation to Trials by Jury and
Verdicts, See, ante, 51.
Verdict for plaintiff
on non detinet.
In detinue.
♦ This day came the parties by thejr
attorneys and thereupon came a jury, to wit, E. F. &c., who
being empannelled and sworn the truth to speak upon the issue
joined between the parties, upon their oaths do say, * that the
said C. D. doth detain the goods and chattels, or, deeds and papers
in the said declaration mentioned, in manner and form as the said
A. B. hath complained against him ; and they find the goods
and chattels, or, deeds and papers so detained, to be of the value
of . dollars; and they assess the damages of the said A. B.
on occasion of the detention of said goods and chattels, or, deeds
and papers to dollars («).
( In Replevin. Damages dollars.
C. D. )
Issue a writ of Replevin for the following
goods and chattels, to wit, [jffere describe the articles.'\
T.Atty.forpltff.
To the Clerk Com. Picas.
Dated, &c.
AFFiDAVir-: — »- The a^)ove named A. B. mq.kes oath and sa
that he has good right to tiie possession of the goods and chattCTs
described in' thd af)(^'e.JP4-cecipe,.an.d, that the same are wrongfully
12G REPLEVIN.
detained by the said C. D. and that the said goods and chattels were
not taken in execution on any judgment against the said A. B. nor
for the payment of any tax, fine or amercement assessed against
him (a).^
Sworn to, &c.
A,B.
Writ of Replevin.'
The State of Ohio • County, ss.
To the Sheriff of said County : Greeting.
We command you, that without delay you cause to be replevied
unto A. B. the goods and chattels following, to wit, [Here describe
the property precisely as in the Praecipe'] which C. D. wrongfully
detains from the said A. B. as is said; and also that you summon the
said C. D. to appear at the next term of our Court of Common
Pleas to be held within and for the said County of to answer
unto the said A. B. for the unlawful detention of the goods and
chattels aforesaid : Damages dollars ; \The amount stated in
the Praecipe'] and have you then there this writ.
Witness, T. T. President Judge of our said Court this day
of A. D. {h).
Attest.
T. C: Clerk.
^ (a) This affidavit must always be filed with the praecipe, otherwise the
writ may be quashed at the costs of the Clerk; ana the Clerk as well as the
plaintiff, will be liable in damages, t© the party injured. Stat. Fb/. 29. |7.
128 \ 1.
[h) The Statute, Sec. 6. provides that on the return of the writ, the suit
shall be subject to the same usages and rules of practice, as other cases.
Quere: can an alias and iilurics issue, or can the plaintiffprosecute his action
for damages, the property not being taken.
/T- J^r' ^ ^il^tj^^^ ^^'^y rp^^
7
REPLEVIN. 127
The Sheriff, in the execution of this writ, may break open any
house, stable, out-house, or other building, in which the property
may be concealed; having first made a demand of such property,
and of entrance into such building, and the same being refused.
Stat. Vol. 29. p. 128. § 3.
Before the property is delivered to the plaintiff, he must execute
.a bond to the defendant, with two or more responsible freeholders
of the County, as security, in double the value of the property,
conditioned that the plaintiff will appear at the return term of the
writ, and prosecute his suit to effect, and pay all costs and dama-
ges which shall be awarded against liim. The value of the property
is to be ascertained by the oaths of two or more disinterested per-
sons, which oaths the sheriff, or officer executing the writ, is au-
thorised to administer. Stat. Vol. 29. p. 128. § 4.
Form of Replevin Bond.
Know all men by these presents that we A. B. E. F. and G. H.
of &c. are held and firmly bound unto C. D. in the penal sum
of dollars \_Douhle the value of the property'] to the payment
of which well and truly to be made, we do hereby jointly and
severally bind ourselves, our heirs, executors and administrators
sealed with our seals and dated this day of A. D.
The condition of the above obligation is such, that whereas the
said A. B. on sued out of the Court of Common Pleas of the
said County of a writ of replevin against the said C. D. for
the following goods and chattels, to wit, [Here describe them] and
which said writ is returnable at the next term of said Court;
Now, if the said A. B. shall appear at the next term of said Court
and prosecute his said suit to effect, and pay all costs and dama-
128 REPLEVIN.
ges which shall be awarded against him, then this obligation shall
be void, otherwise in full force, {a).
[Seal.]
Signed, &c. [Seal.J
[Seal.]
This bond is returned with the writ for the benefit of the defend-
ant. Stat. Vol. 29. p. 128. § 4.
(a) Quere: Is it necessary that the hand be executed by the Plaintiff. It
would 5< em to be analogous to Injunction Bonds, Appeal Bonds, Sec. in re-
gard to wnich it is well settled that the bond is good without being executed
by the Plaintiff.
REPLEVIN. 129
Declarations.
rCourt of Common Pleas : Term [The
' County, ss. < Term to ivhich the icrit was returned]
\a. D.
A. B. complains ofC. D. in a plea of Replevin, for that the said
C. D. on at was possessed of certain goods and chattels
of the said A. B. to wit, [Here desn-ibe the articles as in the writ"]
to be delivered to the said A. B. when he the said C. D. should be
thereto afterwards requested : Yet the said C. D. though reques-
ted so to do, has not delivered the said goods and chattels nor any
part thereof to the said A. B. and so the said C. D. wrongfully de-
tains the same from the said A. B. To his damage dollars
[The amount stated in the writ'] and thereupon he sues, &c. {a).
By T. hisAttij.
(a) The action of Replevin, under our iStatute, Vol. 29, p. 128. is entire-
ly difTorent, in all its essential features, from the same action in England.
In England the orig:inal lakinff must be illrp^ul, and the action is there sel-
dom resorted to except \n cusp.s of inilav/td distress. 1 C'hil. P/. 140. But
under our Statute the uu-onic/ul dc/aiiur, is the gist of the action, and it
seems wliolly unnecessary to enquire, whether the ori;(inal taking were by
richtorby wrong, by fraud or by bailment, any furtlier than as such ong/?ia^
l(i/i:inir miiy goto show tlic ivrong-fnlncss oi^ the tl( 'diner. The late revised
Statute of Nor- York regulating tlie action of Replevin, (Jo/. 2. p. 521.)
like our .Statute, authorises the action to be brougiit upon a wrongful de-
taiacr. It provides that "wherever any goods or chatties shall have been
lorongfidiij distrained or otliervvise tvrongfiilh/ taken or shall be irrongfuUij
detained, an action oflleplevin may be brougiit, «^c." The Act then points
out two modes of proceeding, one when the wrong fal taking, and the other
when the icrongfnl detainer, constitutes the foundation of the action; and
declares what allegations the Declaration, in each case, shall in substance
contain. The above precedent is from the Statute of j\ew-York; from
which our Statute, as last revised, seems in part to have been taken. The
Law ofNew-l'ork, as wcUas our own Act, is silent as to a demand before
action brought. In some cases, sucli demand is obviously proper, and it is
I)erhaps safest to make a demand in all cases. It seems (o be unnecessary
iiowever, to allege such demand in the declaration, inasmucli as the allega-
tion of unlawful detainer, cannot be substantiated, wiljiout jiroving a demand,
whenever sucli demand is held necessary to constitute a cause of action. In
.Massaeluisctis, it is held, that a demand, made by tiie SherilT, at the request
of the Plaintid", aflerihc writ has been delivered to him, and before ecrving
it, is sulFicicnt. 15 .l/a*<. J35!).
R
lU REPLEVIN.
Pleas in Abatement.
For pleas in Abatement, See, Assumpsit, Ante, 38.
Pleas in Bar.
For General principles in regard to pleas in Bar, See, Ante, 41.
No. 1. Non detinet.
In Replevin.
And the said C. D. comes and defends, &c.
and says that he does not wrongfully detain the goods and chattels
specified in the declaration, or any part thereof in manner
and form as therein alleged, and of this he puts himself upon the
country, &c. and the said A. B. doth the like. (a).
(a) This plea is also taken from the Revised Laws of New-York. Vol. 2.
p. 529. 540. See, a?«'e, 129. note{a). It may be questionable whether the
plea of 7307* cepit, would not be bad on demurrer, under our Statute, or the
issue joined upon it hnmalerial. In England, non cepit is a good plea, when
the defendant has not in fact taken the goods, as in the case of a Pound-
Keeper, who has merely received them into the pound; Cowp, 476; and
where the place of taking is mistaken, this plea is sufficient. 1 Sound. 347.
n. 1. Under our Statute, the original taking- does not constitute the grounds
of complaint, but the wrongful detainer alone. It is Irue that if the goods
were never taken, in any sense of that term, by the defendant, he could not
be said to be guilty of a wrongful detainer; but the word, taken, as used in
the plea of ?io« cepit, is intended to put in issue the fact of wrongful taking,
independant of any subsequent detainer. The plaintiff also must necessarily
prove the goods, in the possession of the defendant, as a part of his case,
under the above plea of JVb7i detinet.
REPLEVIN. 131
No. 2. Property in the defendant.
In Replevin.
And the said C. D. comes and defends, In Replevin.
C. D. )
This day came the parties by their attor-
nles, and thereupon came a jury, to wit, E. F. &c. who being em-
pannelled and sworn, the truth to speak upon the issue joined be-
tween the parties, upon their oaths do say, that the said C. D.
doth detain the goods and chattels of the said A. B. in manner
and form as the said A. B. hath complained against him; and they
assess the damages of the said A. B. by reason of the premises
to dollars; Therefore it is considered, &c. (a).
No. 2. Verdict for plaintiff, on default.
Damages assessed by Juj-y.
A. B. ^
vs. > In Replevin.
C. D.
This day came the said2A/'B. by his attor-
(a) The charge in the ])eclaration, and the finding in the verdict, "that
the defendant doth detain the goods, &o." is not literally true; because the
goods, on the service of the original writ, are, in fact, delivered to the
Plaintiff; but a kind of legal possession must be supposed to continue in the
defendant.
REPLEVIN. 133
ney and the said C. D. though solemnly called came not but made
default; whereupon it is considered that the said A. B. ought to re-
cover his damages against the said C. D. by reason of the premises,
but because the said damages are to the Court here unknown; It is
ordered that a jury be empannelled to ascertain the same, and
thereupon a jury being called came, to wit, E. F. &c. who being
empannelled and sworn to enquire of the damages sustained by
the said A. B. by reason of the wrongful detention of the goods and
chattels in the said declaration specilied, upon their oaths do assess
the same to Dollars : Therefore, &c.
No. 3. Verdict for chfendant, on Discontinuance, right of
2)roperty, and right of possession found in defendant.
A. B. ^
vs. > In Replevin.
C. D. )
This day came the parties by their attor-
neys, and the said A. B. thereupon discontinues his suit, * where-
upon the said C. D. demanding a jury, a jury being called came, to
wit, E. F. &c. who being empannelled and sworn to inquire into
the right of property and right of possession, of the said C. D. in and
to the goods and chattels in the said declaration specified, upon their
oaths do say, that at tlie commencement of this suit, the rin-ht of
property and right of possession in and to the said goods and chat-
tels, were in the said C. D. and they assess the damages of the
said C. D. by reason of the premises, to dollars : (a) There-
upon, &c.
No. 4. The like, on Nonsuit.
This day came, &c. and the said
A. B. being thereupon called comes not, nor does he further prose-
cute his suit; whereupon, &;c. [Proceed as in No. 3. fro7n the * to
the end.
(a) Where the jury find the right of possession merely, in the defendant,
the Ibrm of the verdict is the same, omittinjj only, ''right of property."
134 llEPLEVIN.
No. 5. The lihe, on demurrer to plea.
A. B. ^
vs. > In Replevin.
C. D. )
This cause came on to be heard upon the
plaintiff's demurrer to the defendant's plea, and tvas argued hy
counsel, and the Court being fully advised in the premises, are of
opinion, that the said plea of the said C. D. and the matters therein
contained, are sufficient in law to bar the action of the said A. B.
against the saidC. D. whereupon, &;c. [Proceed as in No. 2. from
the * to the end.
No. 6. Issues found for, and right of property and right of
possession or either of them found in defendant.
In Replevin.
This day came the parties by their attor-
neys and thereupon came a jury, to wit, E. F. &c. who being em-
pannelled and sworn the truth to speak upon the issue joined be-
tween the parties, upon their oaths do say, that, &c. [Here insert
the finding of the jury upon the issue or issues,'\ and the said jury
further say, that the right of property, or, the right of possession,
[or both, as the case may 6e,] in and to the said goods and chattels,
in the said declaration specified, was at the commencement of this
suit, in the said C. D. and they assess tke damages of the said C.
D. by reason of the premises to dollars.
REPLEVIN. 1S&
Judgments.
For general principles in relation to Judgments, See, Ante, 60.
For the Forms of Judgments, on Demurrer to Pleas, Replications,
&c. in Ahatement,^^^, Ante, 61.
No. 5. Judgment for plaintiff , on non detinet.
[Enter Verdict, No. 1. ante, 132. There-
fore it is" considered that the said A. B. recover of the said C. D.
the said sum of dollars, his damages aforesaid in form afore-
said assessed, and also his costs herein expended, taxed to
dollars.
No. 2. The like, on Default.
[Enter the Verdict No. 2. ante, 132. and
then follow the last precedent verbatim.']
Judgments for the Defendant.
[Enter the Verdict, as in No. 3. 4. 5. 6.
ante, 132. 133. and then say Therefore it is considered that
the said C. D. recover of the said A. B. the said sum of dol-
lars, his damages aforesaid in form aforesaid assessed, and also his
costs herein expended taxed to dollars.
13G CASE.
Case.
This Action is in general commenced by summons or capias ad
respondendum.
I. Summons.
The summons is issued, as a matter of course, upon filing a
Precipe with the Clerk of the proper Court. [See, ante, 1,
note (a).
Praecipe for Summons in Case.
A. B. )
vs. > In Case. Damasres dollars.
C. D. )
Issue a summons returnable [ forth-
with, if in term time, or, at next term, if in vacation.'^ Indorse,
" Suit brot, &c." See, ante, 8. note, {a).
T. S. Atty. for Pltff.
To the Clerk of Com. Pkas, or Sup. Court.
Dated, &c.
Writ of Sujimons.
The State of Ohio County, ss.
To the Sheriffofsaid County: Greeting.
We command you to summon C. D. to appear before our
Supreme Court, or, Court of Cojnmon Pleas, of the County afore-
CASE. 137
said, at the Court House in said County, forthwith [(/' in term time]
or, on the first day of their next term [if in vacation'] to answer
unto A. B. in a plea of the case. Damages dollars: and
have you then there this writ, (a.)
Witness, T. T. Chief Judge of cur Supreme Cowt^ or, President
Judge of our Court of Conwwn Pleas, aforesaid, this day of
A.D.
Attest.
F. C. Clerk.
For the forms of an Alias, Plurics. and Testatum SummonSi
See, ante, 9.
11. Capias ad respo-m>enl>u3i.
When a capias may be sued out, See, ante, 10.
PRiBCIPE FOR CAPIAS,
A. B. )
VS. > In Case. Damages dollars.
C. D. )
Issue a capias ad respondendum
returnable forthwith [if in term time] or, at the next term [if in
vacation.] Indorse, " Suit brot, &;c." See, ante, 8. note, (a).
Hold to bail in the sum of dollars.
To the Clerk of Coin. Pleas, or. Sup. Court.
Dated, &c.
T. S. atty. for pltff. •
For the Form of Affidavits, and Judge's order to hold to Bail.
See, ante, 11, 12.
[a) For the proper endorsements lo be made upon this writ, f^r.r., ante, S,
S
138 CASE.
Writ of capias ad respondendum.
The State of Ohio County, ss.
To the Sheriff of said County: Greeting.
We command you to take C. D. if he may be found in your baili-
wick, and him safely keep, so that you have his body before our
Supreme Court or, Court of Common Pleas, of the County aforesaid,
at the Court House in said County, forthwith, or, on the first day of
their next term, to answer unto A. B. in a plea of the case
Damages dollars ; and have you then there this writ.
Witness, T. T. Chief Judge of our Supreme Court, or.
President Judge of our Court of Common Pleas, aforesaid, this
day of A. D. .
Attest.
F. C. Clerk.
For the proper^ endorsements to be made upon this writ, the
Forms, of an Alias^ Pluries, and Testatum capias, Bail Bond to the
Sheriff, Recognizance of Special Bail, Bail piece, and Appearance
of Defendant, See, Ante from 12 to 18.
CASE. 139
Declarations.
For general principles in relation to Declarations, See, Decla-
rations in Assumpsit, Ante, 20.
No. 1. Against carrier for not
delivering goods, ^^c.
County, ss.
Supreme Cotirt, or Court of Common Pleas,
Term. [The term to which the wi it was
returned, or, the term at which the cause was
brought into Cou7% hy appeal or certiorari,']
A. D.
A. B. complains of C. D. {a) in a plea of the case for that
whereas * the said C. D. on and long before, was, and ever
since hath been, a common carrier of goods and chattels, and dur-
ing all that time hath been used to carry for hire, the goods and
chattels of all persons whatever, requesting thereto, from Q, to X,
and thence back again to Q,. And whereas by the laws and cus-
tom of the land, every common carrier, who receives any goods
and chattels of any person, for hire, to carry the same, is bound to
carry the same without diminishing or losing any part thereof, so
that no damage whatever may happen thereto, by default of such
common carrier, or his servant; and whereas the said A. B. on
at was possessed of as of his proper goods and chat-
tels, and being so possessed thereof, on the same day, at de-
livered to said C. D. said goods, to carry them safely from
to . aforesaid, and then to be deUvered to the said A. B. and
the said C. D. then and there had and received the said goods, to
be carried and delivered in manner above set forth : Yet the said
C. D. hath never delivered the said goods to the said A. B. as he
ought to have done : but on the contrary thereof, the said goods,
afterwards, on at were wholly lost for want of due care
[a) Sek, Ai.te., 21, nolc (a).
140 CASE.
and preservation by the said C. D. To the damage of the said A.
B. dollars [The amount stated in the itv?'/] and thereupon he
syes, &c. («).
No. 2. For immoderately riding a horse..
[Proceed as in No. 1. to the * the said
C. D. on at hired of the said A. B. a certain horse of
the said A. B. to ride from A. to B. and back again, for a certain
sum of money between them agreed upon, and the said A. B. then
and there delivered to the said C. D. the said horse to ride as afore-
said; and the said C. D. the said horse then and there so immoder-
ately rode, that by reason thereof, and for v/ant of due care of said
horse, the said horse afterwards, on died : To the damage, &c.
[Conclude as in No. 1.
No. 3. Par falsely warranting )
a horse to he sound. )
[Proceed as in No. 1 . to the * the
said A. B. on at bargained with the said C. D. to buy of
him a certain gelding of the said C. D. and the said C. D. well
knowing the same gelding to be infirm, unsound and infected with
a certain distemper, called the glanders, by then and there war-
ranting the said gelding to be sound and free from any distemper
whatever, then and there deceitfully sold the said gelding to the
said A. B. for the sum of dollars ; which said gelding, at the
time of the sale thereof, was, and from that time to the time of the
death of said gelding, continued infirm, unsound, and infected with
said distemper, to wit, at, &c. And so the said C. D. falsely and
fraudulently deceived the said A. B. To his damage, &c. [Con^'
elude as in No. 1.] 2 Went. 127.
(a) .Tudgment was arrested in this case, af;er verdict; because trover wag
joined in the same declaration. I Saik. 10. 1 Sid. <;44. But quere, con-
tra. 2 Wils. 319. OL Pre::. 29?.
CASE. 141
No. 4. For charging the Plaintiff with Perjury.
[Proceed as in No. 1 . to the * the said
A. B. is and always has been, a good and faithful citizen of the
State of Ohio, and has sustained a fair character among his neigh-
bours for integrity, and has never been guilty or suspected of the
atrocious crime of false swearing and perjury ; bujt, the said C. D.
not ignorant of the premises, and contriving and intending mali-
ciously and wickedly to injure and destroy his character, to bring
him into disgrace among his neighbours, and to expose him to the
penalties of the law for perjury, did on or about the day
of at utter and publish in the hearing of sundry persons,
the following false, and scandalous words, of and concerning the
plaintiff* to wit ; You (meaning the said A. B.) are a foresworn
rascal : You (meaning the said A. B.) are a perjured villain :
You (meaning the said A. B.) are perjured : You (meaning the
said A. B.) are a perjured scoundrel and I (meaning the said C. D.)
can prove it: By means of publishing which false and scandalous
words, the said A. B. is greatly injured in his good name and
reputation, and has been rendered liable to a prosecution for per-
jury : («) To his damage, &c. [Conclude as in No. 1.
(a) Seperate eets of words may be laid in the same count. '3 Ohio Rep.
40P. OlioConds.&lS. Lill. Ent, 18.
142 CASE.
Pleas in Abatement.
For pleas in Abatement, See, Assumpsit, Ante, 38.
Pleas in Bar.
For general principles in regard to pleas in Bar, See, ^nte, 41 .
General Issue ; Not Guilty.
C. D. ^
ads. > In Case.
A. B. )
And the said C. D. comes and defends, &c.
and says, that he is not guilty of the said supposed grievances laid
to his charge, in manner and form as the said A. B. hath complain-
ed against Mm; and of this he puts himself upon the country, and
the said A. B. doth the like.
, By T. his Atty.
CASE. 143
Verdicts.
For the general principles in relation to Trials by Jury and Ver-
dicts, See, .^nie, 51.
Verdict for Plaintiff, on
plea of Not Guilty.
A. B. ^
vs. > In Case.
C. D. )
This day came the parties by their attor-
nies and thereupon came a jury, to wit, E. F. &c. who being em-
pannelled and sworn, the truth to speak upon the issue joined be-
tween the parties, upon their oaths do say * that the said C. D. is
guilty in manner and form as the said A. B. hath complained against
him, and they assess the damages of the said A. B. by reason of the
premises to dollars : Therefore it is considered, &c.
Tlie like, for Defendant.
[Proceed as in the last precedent to the *
that the said C. D. is not guilty in manner and form as the said A.
B. hath complained against him : Therefore, &c.
Judgments.
For the Forms of Judgments, on Demurrer, Non-suit, Abate-
ment, Default &c. See, same Titles, in Assiimpsit.
144 CASE.
Judgment for Plaintiff on
Verdict of Guilty.
[Enter the Verdict, as above Therefore
it is considered that the said A. B. recover of the said C. D. the
said sum of dollars, his damage aforesaid in form aforesaid
assessed, and also his costs herein expended taxed to ■ dollars.
Judgment for Defendant, on )
Vei'dict of 'Not Guilty. \
[Enter the Verdict as above Therefore
it is considered that the said C. D. go kence without day and re-
cover of the said A. B. his costs herein expended taxed to
dollars.
TROVER. 145
Trovbk.
The action of Trover is, in general, commenced by summons or
capias ad respondendum.
L Summons.
Tlie Summons is issued, as a matter of course, upon filing a Prae-
cipe with the Clerk of the proper Court. [See, Ante, 7. n. (a).
Pk^sicipe for Summons en Thover.
A. B. i
vs. > In Trover Damages Dollars.
C. D. ^ ^
Issue a summons returnable ^forthwith if
in term time, or, at next term if in vacation^ Indorse, "Suit brot,
&c." See, ante, 8. note, (a).
T. S. Atti/. for Pltff.
To the Clerk of Com. Pleas, or Sup. Court.
Dated, &c.
Writ of Summons.
The State of Ohio County, ss.
To the Sherift'of said County : Greetino.
We command you to summon C. D. to appear before our Su-
preme Court, or, Court of Cojmnon Picas, of the County aforesaid,
at the Court House in said County, forthwith [ if in term time'] or,
on the first day of their next term [if in vacation'] to answer unto
T
146 TROVER.
A. B, in a plea of Trover Damages dollars : and have
you then there this writ. (a).
Witness, T. T. Chief Judge of our Supreme Court, or, Presi-
dent Judge of our Court of Common Pleas aforesaid, this day
of A. D.
Attest.
F. C. Clerk.
For the Forms of an Alias, Pluries and Testatum Summons
See, Ante, 9.
II, Capias ad REsroNOENDUM,
When a capias may be sued out, See, Ante, 10.
Precipe foh Capias.
A. B. ^
vs. > In Trover Damages - — - Dollars.
C. D. )
Issue a capias ad respondendum returna-
ble forthwith \if in term time'] or, at the next term \jf in vacation']
Indorse, "Suit brot, &c." See, J.r2,fe, 8. Note, (a).
Hold to bail in the sum of dollars.
To the Clerk of Com. Pleas, or. Sup. Court.
T. S. Atty. for Pltff.
Dated, &c.
For the Form of Affidavits, and Judges order to hold to Bail'
See, ante, 11. 13.
For the proper cndorsementa to be made upon this writ, See, arUe, 8.
TROVER. ' 14T
Writ of capias ad respondendum.
The State of Ohio County, ss.
To the Sheriff of said County : Greeting,
We command you to take C. D. if he may be found in your baih-
wick and him safely keep, so that you have his body before our
Supreme Court, or. Court of Common Pleas, of the County afore-
said, at the Court House in said County, forthwith, or, on the first
day of their next term, to answer unto A. B. in a plea of Tro-
ver. Damages dollars; and have you then there this writ.
Witness, T. T. Chief Judge of our Supre?ne Court, or, Presi-
dent Judge of our Court of Common Pleas aforesaid, this day
of A. D.
Attest.
F. C. Clerk.
For the proper endorsements to be made upon this writ, the
Forms of an Alias, Pluries and Testatum capias. Bail Bond to the
Sheriff, Recognizance of Special Bail, Bail piece, and Appearance of
Defendant, See, Ante, from 1 1 to 18.
148 TROVER.
Declarations.
For general principles in relations to Declarations, See, Declara
tions in Assumpsit, Ante, 20.
No. 1. Common Counts for cattle,
honds, deeds, &c.
^Supreme Court, or, Court of Common Pleas:
Term [The Term to ichich the writ was
County, ss. > returned, or, The Term at ivhich the cause
was brot into Court by appeal or certiorari.']
lA. D.
A. B. complains of C, D. (a), in a plea "of Trover, for that
whereas the said A. B. on at was lawfully possessed,
as of his own property, (b) of certain cattle, deeds, bonds, promis-
sory notes, bank notes, goods and chattels, to wit : ten horses, ten
mares, ten geldings, ten bulls, ten cows, &c. \_stoting the several
hinds of cattle] and also a certain deed, dated, &c., (c) pm'porting
to be a conveyanqp from the said C. D. to the said A. B. of certain
tenements therein mentioned ; and a certain bond sealed with the
seal of the said C. D. whereby he became bound to the said A, B.
in the penal sum of dollars, and then and yet in full force ; and
a certain promissory note made by the said C. D. whereby he
;-)ro-,r.i-ori to pay the said A. B. or oider dollars at a certain
n mentioned and now past; and also divers, to wit: ten
n. t ; ,: the President, Directors, and Company of the Bank of
(a) See, a?(/e. 21. no!e,{a).
(6) As to this allegation, See, 8. T. B. 294, 399. 2 Sound. 47. i. Ic. In
Selwyn, JV. P. 11.57, note 10, it is said the omission is aided by verdict,
but not by judgment by default. 2 Chill. PI. 358.
(c) It is unnecessary to allege the date. 1 Wils. 116. Bac. ^Q'>?. Trove)-.
F. Ld. Rnym. 2T6. ! In Trover.
C. D. )
This day came the parties by their
attorneys, and thereupon came a jury, to wit: E. F. &c. who
being empannelled and sworn the truth to speak upon the issue
joined between the parties, upon their oaths do say * that the said
C. D. is guilty in manner and form as the said A. B. hath complained
against him ; and thoy assess the damages of the said A. B. by
reason of the premises, to dollars : Therefore, &;c.
The like, for Defendant.
[Proceed as in the last precedent to the *
that the said C. D. is not guilty in manner and form as the said
A. B. hath complained against him : Therefore, &c.
IM TROVER.
Judgments.
For the Forms of Judgments on Demurrer, Non-suit, Abate-
ment, Default, &c., See, same titles, in Assumpsit.
Judgment for Plaintiff on
plea of Not Guilty.
[^Enter the vey^dict as above — Therefore
it is considered that the said A. B. recover of the said C. D. the
said sum of dollars his damasres aforesaid in form aforesaid
assessed, and also his costs herein expended,'^taxed to dollars.
Judgment for Defendant on )
plea of Not Guilty. )
[Enter verdict as above — Therefore
it is considered that the said C. D. go hence without day and
recover of the said A. B. his costs herein expended, taxed to
dollars.
TKEb
Trespass.
The action of Trespass is, in general, commenced by sum,/. „^,
or, capias ad respondendum.
Summons.
The summons is issued, as a matter of course, upon filing a
Praecipe with the Clerk of the proper Court. See, ante. 7, n. (a).
Precipe for Summons in Trespass.
A. B. )
vs. > In Trespass. Damages dollars.
C. D. )
Issue a summons returnable [forth-
with, if in term time, or, at next term, if in vacation']. Endorse,
" Suit brot, &c," See, ante. 8, note (a).
T. Atttj. for pitff.
To the Clerk Com. Pleas, or, Sup. Court.
Writ of Summons.
The State of Ohio County, ss.
To the Sheriff of said County : Greeting.
We command you to summon C. D. to appear before our
Supreme Court, or, Court of Comjnon Pleas, of the County
V
154 TRESPASS.
aforesaid, at the Court House in said County, forthwith, [if in
term time] or/ on the first day of their next term [if in vacation]
to answer unto A. B. in a plea of trespass Damages dollars.
And have you then there thi> writ (a).
Witness, T. T., Chief Judge of our Supreme Court, or
President Judge of our Court of Common Pleas, aforesaid, this
day of A. D.
Attest.
• T. C. Clerk.
(o) For the proper endorsements to be made upon this writ, See, ante 8.
For thn Forms of an Alias, Pluries ayrtt^Testofuni Summons; and of a Capias
ad respondendum, and proceedings uiereon, See, same titles, in Assumpsit,
Ante,/rom 12 to 18, which with slighLvariationa are applicable to Trespass.
TRESPASS. 165
Declarations.
For general principles in relation to Declarations, See Declara-
tions in Assumpsit, ante. 20,
No. 1 . Assault and Battery.
( Supreme Court, or, Court of Common
County, ss. < Pleas terin [the term to which
( the icrit was returned.
A. B. complains of C. D. in a plea af Trespass for that * the
said C. D, on at with force and arms, in and upon the
said A. B. made an assault, and him then and there beat, bruised,
wounded and evil entreated, and other enormities to the said A. B.
the said C. D. then and there did ; against the peace, and to the
damage of the said A. B. dollars: and thereupon he sues, &c.
By T. his Atty.
No. 2. The like, with false imprisonment )
and holding in servitude. \
[Pi-oceed, as in No. 1, to the * the
said C. D. on at with force and arms assaulted the said
A. B. and him then and there took and imprisoned, and restrained
him of his liberty, and held him in servitude, from, &c. until, &c.
against the law of the land, and against the will of the said A. B.
and other injuries the said C D. there did within that time; against
the peace and to the damage, &lc. [Conclude as in No. 1.
No. 3. For debauching a daughter or sercant.
[Proceed as in No. 1 to the * — the
snid C. D. on nt with force and arms, assaulted, de-
156 TRESPASS.
bauched, and carnally knew one E. F. then and from thence
hitherto the daughter and servant of the said A. B., whereby the-
said E. F. became pregnant and sick with child, and so continued
for a long space of time, to wit, nine months then next following,
at the expiration whereof the said E. F. on at was
delivered of the child with which she was so pregnant as aforesaid;
by means of which said several premises, the said E. F. during
all the said nine months, was unable to perform the necessary
affairs of the said A. B. so being her father and master as afore-
said; and thereby the said A. B. was during all the said nine months
deprived of the service of his said daughter and servant, to wit,
at aforesaid ; and was obliged to expend and did expend,
divers large sums of money, in the whole amounting to
dollars in the nursing of his said daughter and servant, and in the
delivery of the said child, &c. {^Conclude as in No. 1.
No. 4. Trespass quare clausum fregit.
[Proceed as in No. 1. to the * — the said
C. D. on and on divers other days and times between that
day and the day of the commencement of this suit, (a) with force
and arms, broke and entered the close of the said A. B. situate,
&c. (b) and then and there cut down and destroyed the trees, to
wit, one hundred oak trees, one hundred ash trees, &c. of the
plaintiff, of great value, to wit, of the value of dollars, and
(a) The trespass may be laid with a conlinuando, from such a day to
such a day, when the trespass from its nature, is capable of a continuance.
The English authorities upon this subject are somewhat at variance. —
Breaking and entering the pl;iintitF's house cr close may be ^aid with a
continuando. 1 Sid. 319. Ld. Raym. 24l'. So, spoiling his grass, cutting
his corn, cutting down his wood, &lc. Ibid. So, trampling down grass,
&c. with the feet in walking. Mod. 179. It is said that the act of man,
cannot properly be laid with a continuando, because he is necessarily inter-
rupted by sleep, meals, &c. Salk. 639. Vin. M?. 1, 2, (k). 5 Bac. Ab^.
192.
[b) If the description is general, and the defendant pleads liberum tene-
mentum, the plaintiif must make a new assignment, describing' the p. ace,
where the trespass was committed, with proper certainty. To avoid this
necessity, it is better to give a precise description in the declaration. Great
care however is necessary here as well as in a new assignment; as a mate-
rial variance is fatal. 1 Tatint. 495. 1 Sauud. 299. Starkie's Ev. Tit.
Variance, See, Pleas in Trespass, post. No. 4, note [a).
TRESPASS. 157
the timber and wood thereof, amounting to a great quantity, to
wit, loads of timber, and cords of wood of the said A. B.
of great value, to wit, of the value of dollars, took and
carried away, and converted and disposed thereof to Ids own use;
and other injuries, &c. [Conclude as in No. 1.] Add count for
cutting and carrying away trees, See, post. No. 5.
No. 5. For cutting and carrying away trees.
[Proceed as in No. 1 to the * — the said C.
D. on and on divers other days and times, between that day
and the day of the commencement of this suit, with force and ai'ms,
cut down and destroyed the trees, to wit, oaks, ash,
elms, &c. of the said A. B. of great value, to wit, of the
value of dollars, then growing and being in and upon certain
lands there situate, and took and carried away the same, and con-
verted and disposed thereof to his own use ; and other injuries,
&;c. (a). [Conclude as in No. 1.
No. G. For taking and carrying away goods.
[Proceed as in No. 1 to the * — the said
C. D. on ' at with force and arms, took and carried
away the goods and chattels, to wit, [describe the property as in
Trover, ante, 149,] of tiie plaintirtj then and there found and
being, of great value, to wit, of the value of dollars, and
converted the same to the use of the said C. D. against the peace,
&c. (l)). [Conclude as in No. 1.
(a) It is usual where tlie facts will support the allegation, to declare as
well lor breaking the close, as for cuttiiii,'- down the trees ; but wliere the
land has been demised, and the trees were excepted in the lease, and in
6ome other cases, the above count is most proper. 1 Saund. 32:2, h.5. 7 T.
R. 13. 2 Chit. JP/.420, n. (c).
(6) It is necessary to allege that tlic goods are the plaintift"'8. An omis-
sion of such allegation is not cured by verdict. .SVra. 1U23. 2 Lev. 15G.
Salk. 54!». As to the description of the goods, Hee, 2 Chit. PI. 410. 4
Burr. 24.ir). 3 fnix. 292. The value of tlic goods should be mentioned. 2
Lev. 2o0. Ci-o. Car. 307. The omission to state tlic value, is aided by
verdict. Com. Dig. PI. 3. ¥.5, 2 Jvhns. /tVp. 421.
158 TRESPASS.
No. 7. For mesne profits after a
recoverj/ in ejectment (a).
\_Co7nmence c/ls in No. 1 — A. B.^com-
plains of C. D. in a plea of trespass, for that the said C. D. on".
(ft) with force and arms, broke and entered messuages, &c.
[Describe the premises as in the declaration in ejectment in ivhich
judgment was ohtained'\ situate, &c. and ejected the said A. B.
from his possession thereof, and continued so to keep him from
his possession thereof, for a long space of time, to wit, from the
day and year aforesaid until \the day on which possession was
o'btained~\ and during that time received to his own use all the
issues and profits of the said tenements, being of great value, to
wit, of the value of dollars : Whereby the said A. B. during
all the time aforesaid, not only lost the issues and profits of the
said tenements, but w' as deprived of the use and means of cultiva-
ting the same, and was obliged to, and did expend divers large
sums of money, amounting in all to a large sum of money, to wit,
the sum of dollars, (c) in and about the recovering of the
(a) This action may be in the name of the nominal plaintiff, or of the
lessor of the plaintiff; if there were several dcniises, and the party inter-
ested liad no right of possession anterior to the day of the demise in the
ejectment, it is frequently most advisable to proceed in the name of the
former ; but otherwise in that of tlie latter, in order to recover anterior
mesne profits, 2 Chit. PL 388. Under the statute for the relief of occupy-
ing claimants, vol. 29,^. 261, \", this action is barred, by the report of the
jury, as to all mesne profits, which may have accrued after the service of
the declaration in ejectment, but as to mesne profits anterior to Xhc service
of the declaration, the statute is silent, and the plaintiff, it would seem,
may resort to this action. See, Occupying claimants. Post.
(h) This is usually the day of the ouster laid in tlie declaration in eject-
ment, but when the plaintiff's right of possession and the defendant's un-
lawful entry were anterior to that time, it is advisable to state^'the tin e
according to the fact. 2 Chitt. PL 888.
(c) In this action the plaintiff may recover in damages the value of the
occupation of tne premises, together with the costs of the action of eject-
ment, and if any particular damage, waste, or injury to the premises were
committed by the defendant, it should be stated specially. 2 Chitt. PL 288.
Where the profits claimed, are for a greater length of time than four years,
the defendant may plead the statute of limitations. It should however be
remarked, that the jury, in assessing damages in this action, are by no means
obliged to confine themselves to the annual rents of the land, but may, in
every case, assess such damages, as they think will do justice between the
parties. In .3 JFits. 118, Mr. Justice Gould remarks, that he had known
TRjbis>rAS». 159
possession oi me said tenements, to wit, at tne couaiy aforesaid ;
and other wrongs, &c. \^Conclude as in No. 1.
four times the value of the mesne profits given by a jury in this action.
Whether it be proper to make a suggestion of this kind to the jury, in casea
where the defendant sets up the statute of limitations against the plaintiff's
claim, to prevent him from recovering more than what is not within the
statute, may be worthy of consideration ; in order that complete justice,
either 'per directum or per obliquum, may be done between the parties. Ol.
Free. 498. •
1^0 TRESPAvSS.
Pleas in Abatement.
For pleas in Abatement, See, Assumpsit, Ante. 38,
Pleas in Bar.
For general principles in regard to pleas in Bar, See, Ante. 41.
No. 1. Not Guilty.
In Trespass.
And the said C. D. comes and defends, &c.
and says that he is not guilty in manner and form as the said A. B.
hath complained against him, and of this he puts himself upon the
country, and the said A. B. doth the like, &c. {a).
By S. his My.
(a) In trespass either to real or personal property, the general issue is,
not guilty; and if the action be concerning the former, it puts in issue not
only the fact of trespass, but also the title, evidence of which, and of the
right of possession, is admissible; as a demise from the owner of the land.
7 T. R. 354. Under this plea, soil and Jreehold may be given in evidence.
And. 108. 2 Kel. 154. 8 T. R. 403. Com. Dig. PL (3 M. 11.) Story
PL 624. So the defendant may give in evidence, under this plea, that he
\^ tenant in common with the plaintiff. 2 Esp. JV. P. 103. Gilb. Ev. 487.
Otherwise, if the plaintiff be tenant in common with a third person; for
then it must be pleaded in abatement. Salk. 4. A licence to enter must
be pleaded specially. 2 T. R. IQQ. So, a right of way. Gilb. Ev. 217.
So, an incorporeal right. Com. Dig. PL E. 15. 2 Wils. 173. and where
the act, would at common law, prima facie, appear to be a trespass, any
matter of justification or excuse, must in general be specially pleaded.
Ibid. 12 Mod. 120. XV. Petersd. Abg. 136.
The plea of not guilty is proper in trespass to persons, if the defendant
committed no assault, battery, or imprisonment, &c. but any matter of jus-
tification or excuse, must in general be pleaded specially. 2 Camp. 378.
TRESPASS. 161
No. 2. Son Assault.
In Trespass.
And the said C. D. comes and defends, (fee.
and says, that as to the force and arms, and whatever is against the
peace, he is not guilty thereof, in manner and form as the said A.
B. hath above complained against him: and of this he puts himself
upon the country, and the said A. B. doth the like, &c.
And as to the residue of the trespass aforesaid, above supposed
to be committed, the said C. D. says, that the said A. B. his action
aforesaid against him the said C. D. ought not to have because he
says, that at the the time and place when and where the said tres-
pass is above supposed to have been committed, to wit, on — at —
he the said A. B. with force and arms upon him the said C. D
did make an assault,and him the said C. D. did then and there
beat, bruise, and would have further beaten, bruised and wounded
him ; wherefore he the said C. D. did then and there defend him-
self against the said A. B. which is the residue of the trespass where-
of the said A. B. complains as aforesaid ; and so the said C. D. says,
that the damage or injury, if any then and there happened to the
said A. B. was from the assault of the said A. B. upon liim the said
C. D. and in his defence ; and this he is ready to verify ; wherefore
he prays judgment if the said A. B. ought his action aforesaid to
have against him, &c. (a).
.379. 500. Co. Lilt. 2S2. h. 283. a. Doxig. 611. 1 Saund. 29S. n. 1. Com.
Dig. PI. 3. 15. 10. 17. 2 Bos. and Pull. 224. But if tlie circumstances
could not hu-ve been pleaded, in justilicatiou; as a provocation, Sic. it seems
they may be given iu evidence in mitigation. Ibid. Vin. .ibg. ilv [L. b.)
12J/oJ. 232.
(a) Tiiis pl^a ia commonly annexed to the General Issue, Not Guilty.
The defendant may plead togetiier,, ]Sot (Juiliy and Tender of amends.
2 Bl. 109. 3 Barnes. 359. 300.
So, Not (iJuilty and a Licence. Barnes. 2'o\. oQ>\.
So, Not Guilty and the Statute of Limit.itions. 2 Str. 889.
So, Not guilty and son (tssanll demesne. Barnes. 350.
So, Two justifications may be pleaded together. 1 Sir. 425.
So, Not (iuilty and satisfaction. Barnts.'.i'iU.
So, Not Guilty and libernnitenenientuin, if the locus in r/uo be not ascer-
tained in the declaration. Barnes. '■'I'Ah It was formerly licld, that not
guilty and a justification could not be jdeaded together, because not gvilti/,
V
162 TRESPASvS.
Repucation. Of his own wrong.
And the said A. B. says, that
iie ought not to be precluded from having his aforesaid action
against the said C. D. by reason of any matter by him plead-
ed in bar, because he says, that the said C. D. at the time when,
&LC. committed the trespass aforesaid, in the declaration alleged,
of his the said C. D's. own wrong, and without any such cause as
is by the said C. D. in his said plea alleged ; and this the said A. B.
prays may be enquired of by the country, &c.
No. 3. Property of defendants, <^c.
C. D. et al. )
ads. > In Trespass.
A. B. )
And the said C. D. E. F. and G. H. come
and defend, &c. and as to the force and arms, and the whole tres-
pass aforesaid, except the taking and driving away one heifer of
the said cattle, say that they are in no wise guilty ; and of this they
put themselves upon the country, and the said A. B. doth the like,
&c.
And as to the taking and driving away the same heifer, the said
C. D. E. F. and G. H. say, that the said A. B. his action aforesaid
against them ought not to have, because they say, that long before
the said trespass is supposed to have been done, the property of the
same heifer was in the said C. D. and E. F., and they being possesed
of the same heifer as of their own property, before the time when,
&c. delivered the same heifer into the possession of one A. B. at —
to be safely kept and pastured; and afterwards, and before the
said time when, &c. the said A. B. took and drove away the same
heifer from the possession of the said A. B. and afterwards at the
said time when, &c. the said C. D. and E. F. in their own right, and
denies the trespass, and a justification, admits it. 2 Sir. 876. But now
it is a common practice to plead them together. 2 Car. and P. ^3. ,4rch.
PI. 252. Story PI. by Ol. .598.
TRESPASS. 163
the said E. F. as servant of the said C. D. and E. F. and by theh-
Older, toqk and drove away the said heifer, as they lavi'fully might
do ; and this they are ready to verify ; wherefore, &c.
Replication.
And the said A. B. says that, by reason
of the matters in bar pleaded by the said C. D. E. F. and G. H. he
the said A. B. ought not to be barred from his action aforesaid,
because he says, that the said C. D. E. F. and G, H. by force and
arms at &c. aforesaid took and drove away the said heifer, as the
said A. B. in his declaration has alleged, without this, that the
property of the said heifer at the time of the said trespass, was in
tlie said C. D. and E. F. as the said defendants have alleged ; and
this, (fee.
No. 4. Liberum tenemenhim.
C. D. & G. H. ^
ads. > In Trespass.
A. B.
[1. Not Gidlty. Ante, No. 1.]
And for a further plea in this behalf the said C. D. and G. II. say
that the said A. B. ought not to have his aforesaid action
against them, because they say, that the said close in the said dec-
laration mentioned, now is and at the said several times when the
said several trespasses are supposed to have been committed, was
the close, soil and freehold of the said C. D. to wit, at the County
aforesaid ; wherefore the said C. I), in his own right, and the said
G. H. as his servant and by his command, committed the said sev-
eral supposed trespasses in the said declaration mentioned, in the
said close of the said C. D. as they lawfully might do: and this
they are ready to verify : wherefore they pray judgment if the said
A. B. ought to have his aforesaid action against them. &c.(rt)
(a) See, Ante. \T)(\. nole {!>). This plea is contrary to the {reiicral rules
of pleading, as notwithstandiiifr flio trutjj of it, th(3 plaintiff niny liavc a
I'U TRESPASS.
New assignment to plea
or liberum tExNEMentum.
[Precludi non, &c. because he says
that the said piece or parcel of land, in wliich, &c. in the said dec-
laration mentioned, at the said several times when, &c. was and is
a certain close, situate, &c. [state the boundaries] which said close
now is and at the said several times when, &c. was another and
different close, from the said close in the said last plea of the said
C. D. mentioned, and therein alleged to be the close, soil and free-
^ood causeof action ; and every plea in bar, admitting the facts stated in it
to be true, ought to be a full bar to the action. This plainly is not so; for
the plaintiff might have a lease from the defendant, or claim under any
other person, who conveyed the reversion to the defendant, or even if he
had no right at all, if he had been in quiet possession a length of time, as
in that case the person claiming a right must bring an ejectment, and can-
not enter by force; the plaintiff might sustain his cause. The reason why
this plea was introduced, was because formerly most declarations in Tres-
pass were ^-enerr/Z, only for breaking and entering the plaintiff's close in
such a place, without describing or giving any name to the close. It was
thought a great hardship in such case to oblige the defendant to answer
such a general charge ; for if the plaintiff had a large estate in the town-
ship, the defendant could not tell in which of the closes he would assign the
trespass; and therefore the Courts gave the defendant leave to plead liberum
tenementnm, which obliged the plaintilT to make a new assignment, and
ascertain the place in his replication. If the plaintiff did not, the hardship
would be turned on himself; for if the defendant could prove, that he had
any freehold estate in any part of the township, the action was gone. 6 Jlod.
117. 118. 119. 7 T. R. 33.5. This plea was sometimes called the g'eneral
issue, sometimes, cummon bar, bar at large, ^nd sometimes, blank bar. Cro.
Car. 384. Cro. Jac. .594. But this plea is confined to Trespass quare
clausum /regit. Carth. 17G. Q .Mod. 117. The Plaintiff may reply three
ways. I. If his title be inconsistent with the defendant's plea, he may
traverse the plea, and as the action of Trespass is a possessory action, it is
perfectly indifferent whether he sets out his own title or not. 3 Salk. 354.
II. If the plaintiff derives t'tle under the defendant, then the plaintiff must
admit the defendants title, and insist on his lease or other title, and the
traverse must come on the part of the defendant. III. If the plaintiff has a
middle case, and neither derives title from the defendant, nor one inconsis-
tent with his, be may plead as in Cro. Car. 384; where the defendant plead-
ed soil and freehold, and the plaintiff replied, that before the defendant had
title in the premises, A. A. was seised of them as his freehold, and leased
them to B. B for a term of years now subsisting, imder whom the plaintiff
now claimed, without either confessing or denying the defendants plea; and
it was holden on demurrer to be a good replication. See, TVilles, 218.
225. In this case AA'illes C. J. inclined to think, that if the plaintiff
mentioned the -place, by name, in his declaration, the defendant could
not plead the common Bar. Contra. 2 Bl. Rep. 10S9. See Saund.
299. n. 6. Story Pi. 625.
TRESPASS. 105
hold of the saidC. D. and this he is ready to verify ; wherefore he
prays judgment and his damages on occasion of the committirig of
the said trespass newly assigned, &c. {a).
(a) The defendant may plead to the new assignment in the eame manner
as if the close had been described in the declaration. The form of the com-
mencement is thus: "And the said C. D. as to the said several supposed
tresp'iBses newly assigned, says, that he is not guilty, &ic." S Chik PU 699v
3 Went. 162. 163.
166 TRESPASS.
I Verdicts.
For the general prfndples lo relation to Trials by Jury and
Verdicts, See, Ante, 61.
Verdict for Plalniif
on plea of not Guilty.
In Trespass.
This day came the parties by their attor-
nies, and thereupon came a jury, to wit, E. F. &cc. who being em-
pannelled and sworn, the truth to speak upon the issue joined be-
tween the parties, upon their oaths do say,* that the said C. D.
is guilty in manner and form as the said A. B. hath complained
against him, and they assess the damages of the said A. B. by rea-
son of the premises to dollars j Therefore, &c.
No. ^ Tlie like,for DefendanL
proceed as in the last precedent to the *
that the said C D. is not guilty, in manner and form as the said A.
B. hath complained against him ; Therefore, &c.
For the Forms of Verdicts on Special issues, See, Verdicts in
Assumpsit and Debt, which with slight variations are applicable to
Trespass^.
TRESPASS. 167
JUDOMENTS.
For the Forms of Judgments on Demurrer, Non-suil» Abate-
ment, Default, &c. See, same Titles, io Assumpsit.
Judgment for Plaintiff, on
Verdict of Guilty.
, [Enter Verdict, as above Thei*c-
fore it is considered that the said A. B. recover of the said C. D.
the said sum of dollars, his damages aforesaid in form afore-
said assessed, and also his costs herein expended, taxed to
dollars^
Judgment for Defendant on
Verdict of Not Guilty.
[Enter the Verdict, as above There-
fore it is considered that the said C. D. go hence without day and
recover of the said A. B. his costs herein expended, taxed to ■
dollars.
168 EJECTMENT.
Ejectment.
NATtJBD OP ftEWEDT, AlfD WHEN IT LIES.
Ejectment is the common remedy, resorted to in tlie State of
Ohio, to recover the possession of real property, either in fee, for
life or for years. This action has been somewhat modified by
Statutory regulation, and the decisions of our Courts, as will be
seen hereafter, but the same general principles prevail here as in
England and in several States of the Union.
The general rule is, that Ejectment will lie for any thing attached
to the soil, of which the Sheriff can deliver possession. Mams,
Eject. 16. 16 Johns. Rep. 184. It cannot be maintained where
the thing to be recovered cannot be delivered in execution, and
whereon an entry cannot be made, B. N. P. 99. So it will not
lie for a water course, but it will for the ground over which the
water passes. Yeh. 143. The owner of the soil may maintain
this action for land which is part of the King's highway. Burr.
133. 145. Wherever a right of entry exists, and the interest is
tangible, so that possession of it can be delivered, ejectment will
lie. 9 Johns. Rep. 298. S. P. 1 Tyler, 355. 2 Yeates, 331.
When a highway is laid out over the land of a private person, the
public acquire no more than a right of way, or easement, and the
title of the original proprietor continues : He may use the land in
any manner not inconsistent with the public right, and may main-
tain trespass or ejectment in relation to it. 1 Burr. 143. 15 Johns.
Rep. 447. S. P. 2 Johns. Rep. 357. 15 Johns. Rep. 491.
1 Cowen, 238. 1 Conn. Rep. 103. 6 Pick. 59. 16 Mass. 35.
14 lb. 256. 6 lb. 456. 2 lb. 127. 1 Yeates, 167. 3 Rand. Rep.
563. Ejectment will not lie against a person for setting up a stall
in a street. The remedy is trespass by the owner of the soil.
1 Carr. and P. 123. Ejectment will not lie by the owner of the
soil, for land, which is subject to a passage over it, as a public high-
way, or common. 6 Peters. 431.
EJECTMENT. 169
PLEADINGS.
Declaration. The declaration, from the peculiar mode of
proceeding in this action, may be considered as a kind of writ or
process. Saund. PL and Ev. 545.
Title of term. The declaration is commonly entitled of the
term next preceding the vacation in which it is served : but any
omission or mistake in this respect is immaterial, as the consent
rule precludes the dcfendcnt fi'om raising any objection on that
account. Saund. PL and Ev. 51G. The title to the Declaration in
ejectment is mere form, and good, though of a term after its ser-
vice. 6 Cowen, 597. So, though it be without any title at all.
Ibid.
Venue. The venue is local and confined to the County in which
the lands are situated. Jldams Eject. 18G. G Mod. 222. Cowp.
161. 176.
Demise, by whom. '"In all actions of ejectment, the plaintiff
shall have the same benefit and advantage from a joint demise, that
he could from several demises ; and separate demises shall only be
laid in tlie names of tenants in common." Oiiio Slat. I uL 21). p. 08.
§ 51. 2 Ohio Rep. 287. Ohio Conds. 361. The demise is merely
fictitious, but still it must be consistent with the title of the lessor;
such a demise must be supposed to be made, as would if actually
made, have transferred the right of possession to the lessee. Adams
Eject. 186. 6 Co. 15, h. So, when the demise was laid as joint
when it was made by tenants in common, it was bad; because ten-
ants in common cannot make a joint demise. 2 Wils. 232. Joint-
tenants or parceners, may declare upon a joint demise, or severaJ
demises may be laid from each. \ Ld. Raym. \2(S. 1 Wih.l. 12
W
170 EJECTMENT.
TLEADINGS.
East. 61 39. 6 lb. 182. 3 Camji. 190. [See, Stat, above cited.'] If the
right of entry be in husband and wife, in right of the wife, the de-
mise may be laid, either by husband and wife, or by the husband
alone : Saiind. PL and Ev. 546. Cro. Jac. 332. lb. 617. When the
demise is from a corporation, it is unnecessary to allege, as former-
ly, that it was under a power of attorney, and by deed. JldamSj
Eject. 190. 1 Esp. Rep. 198. 1 Ld. Rayin. 136. Where any
doubts exist as to the person in whom the legal interest is vested,
it is advisable to allege several distinct demises by persons sever-
ally interested. Chitt. PI. 879. Ma7ns, Eject. 184.
It is necessary to obtain the consent of the person under whom
a demise is claimed, to be permitted to make use of his name, and
if no such consent be procured, the Court on affidavit, will set aside
the verdict. 2 Chit. Rep. 110. S. C. 18 Eng. Com. Law Rep.
288. Saund. PL and Ev. 547. A variance in the name of the lessor
will be fatal. C7'o. Eliz 776. Where the demise is by an infant, it
is usual, with regard to the costs, to make his father or guardian,
the plaintiff, instead of a fictitous person. Str. 694. Cowp. 182.
x\lthough the demise is a fiction, still the fiction must be such as
might by possibihty have been true : The lessor is supposed to
have been capable of making a demise not only at the time when
the demise is alleged to have been made, but -when the suit teas
brought. 3 Wend. Rep. 154. -S. P. Chipman 69. 74. The
plaintiff cannot recover under a demise from a lessor who has re-
leased his interest. \2 Johns. Rep. 488. If the plaintiff declare
on a lease, and prove a title in fee he cannot recover. Chipman,
74. A demise from a man who was dead at the commencement
of the suit, may be objected to at the trial, and is cause of non-suit.
A lessor must be capable of making a demise, not only at the time
alleged in the declaration, but also when the suit is commenced.
3 Wend. Rep. 149. A demise by the husband and wife, when the
title is in the husband alone, is bad. 2 Marsh. Rep. (Ky ) 457.
Where the plaintiflf" declares on separate demises by two, each for
a moiety, and fails to prove title in one of the moieties, he may
nevertheless recover, according to the title proved in the other les-
sor. 4 Bibb. 21. Ajn-ochein ami cannot make a vahd demise. 2
EJECTMENT. 171
PLEADINGS.
Ohio Rep. 287. Ohio Conds. 364. After issuejoineduponthe title no
exception can be taken to the form of the declaration. 1 Marsh
Rep. (Ky.) 6. The Court are bound to take notice of the real par-
ties litigating. 1 Yeates. 20. Tenants in common may recover on a
joint demise. 1 Hawk. Rep. 4G9. Or, on separate demises. 2 Caines,
Rep. 169. Tenants in common cannot make a joint demise.
4 Bibb. 241. One of several coparceners may make a separate
demise. 1 Johns. Ca. 231. Separate demises from several les-
sors, may be laid in the declaration, and the plaintiff may give in
evidence the separate titles of the several lessors to separate parts
of the premises, and recover accordingly. 12 Johns. Rep. 185.
Z^". P. 7 Harr. and Johns. 1. Joint tenants must join in ejectment,
and one of three joint tenants cannot recover a third part of the
premises of a stranger. 4 Yeates, 577. Although a plaintiff may
recover less than he claims, yet it must consist of the same nature
with that claimed. If he claim an undivided moiety, an undivided
th'rd, &c. may be recovered, but he cannot recover an undivided
part where he claims an entirety, and vice versa. 1 Harr. and
Johns. 463. The plaintiff cannot declare for a whole tract and
give evidence of a title to an undivided moiety. 1 Taylor, WO.
The plaintiff shall recover according to his right, if the whole be
demanded the jury may find for a moiety. Chipman, 74. Under
a declaration for a moioty, a third may be recovered. 2 Hayiv. 150.
So, if the jjlaintiff, sue for a ninth, he may recover an eighteenth.
2 Hayio. 222. S. P. 1 Cooke, 333. 9 Cranch, 151. 3 Bibb,2,
The plaintiff cannot recover a greater quantity or interest than
he declares for, but he may recover less. 1 Bibb. 110. If the de-
mise be laid from two heirs, and it appear that there were three^
yet the plaintiff shall recover an undivided interest of two thirds.
3 Bibb. 304. 4 Id. 358.
Statement OF TiMK OF DEMISE. The demise must be laid as ol
a day subsequent to that when the lessors riglit accurcd. 4 T. R.
680. B. N. P. 105. 3 i?. andC. 754. 5 D. and R. 711.
15 East. 286. 1 Johns. Ca, 283. In ejectment by mortgagee
172 EJECTMENT.
PLEADINGS.
against mortgagor or those claiming under him, the demise must
be laid as of a day subsequent to a default in payment. 6 Cow-
en. 147, A demise laid before the title of the lessor of the plain-
tiff accrued, cannot be taken advantage of after issue joined. 2
Rand. 353. 3 Call. 3G2. The demise should be laid as far back
as the title of the lessor will admit, with a view to the mesne pro-
fits, as the plantiff is entitled to all such as may accrue subsequently
to the day of the demise. Bu?~r. G65. Whenever doubts exist
as to the exact period it is usual to insert different demises and
different days. Adams Eject. 185. 2 Chitt. PL 8S0. The dura-
tion of the term as alleged to have been demised is not material;
so, the plantiff may declare on a demise for five years though the
lease be only for three years. 3 T. R. 13. B. N. P. lOG. 1 Mod.
10, overrulinsf 2 Lev. 140.
Description of the premises. No determinate rule exists as
to the description of the premises. Adams, Eject. 20. It was
considered an established princip e until within the last fifty years,
that the description must be so certain, that the Sheriff could de-
liver po'ssession without any information from the lessor; this
maxim has however been abolished, and it is now the practice for
the Sheriff to deliver possession, according to the direction of the
claimant who therein acts at his peril. Ada?ns, Eject. 21. Burr.
623, 630, 2672. An ejectment for "four corn mills" is good. 1
Mod. 90. So, for "a stable and cottage" Cro. Eliz. 848. "for a
house" "a passage room" "a room and chamber in the second story"
Ld. Raym. 1470. 3 Leon. 110. In ejectment for land the partic-
ular species should be mentioned, whether pasture, ineadow 6fc.
because land means only arable land. Cowp. 346, 349. 1 1 Co. 55.
"Ten acres of undcrw ood" "Fifty acres of furze" "Ten acres of
peaze," have been held sufficiently certain. 2 Roll. Rep. 482. 1 Mod.
90. 1 Brown, 149. "The ancient rule required the description to
be so certain, that the Sheriff might know from his execution, ex-
actly of what to deliver possession. The relaxation of that rule
has opened the way for numerous and vexatious applications to
EJECTMENT. 173
PLEADI.XGS.
correct the errors ol the Sheriff in delivering possession; and the
settled rule of the Supreme Court, \vhere a general verdict is given
for the plaintiff, is, to restrict him to the taking possession of so
much only, as he gave evidence of his tittle to on the trial." Spen-
cer, Senator 8 Cowen. 427. The \\ or A tenernent in a declaration
is sufficiently certain. 1 Hayw. 24. A plaintiff claiming under a
deed conveying "the balance of a tract of land" must show what
the balance is and where situate or he cannot recover. 3 Marsh.
Rep. (Ky ) 19. It is not necessary to name the Parish or Hamlet.
4 Taunt. 071. The number ot messuages, acres, &c. mentioned
in the demise, need not correspond with the number to which the
lessor claims tittle. He may declare for an indefinite number, as
ten messuages, ten acres of meadow land, &c. and care should be
taken that the number specified in the demise be larger than the num-
ber claimed. Adams, Eject. 198. Burr. 320. In Ohio there is no
reported decision upon this subject. In practice, the premises are
sometimes discribed specifically by 7nefes and hounds, and some-
times a general description only is given, as ten messuages, five
hundred acres of arable land, &c. Nor is it necessary to name
the towns/lip or any other civil division, except the county within
which the lands are situated. It is however the better practice, to
specify the 7netes and bounds in the first instance, and then add a
general description. See Precedents. Post.
Entry. The entry of the plaintiff need not be alleged to
have been made on any jiarticular day, though in the precedents
ft is usually so done. It is sulTicicnt if it be declared generally
that the plaintiff entered by virtue of the demise. Adams, Eject.
198.
Ouster. The statement of ouster is necessary, and the day
on which it is stated to iiave taken place should be after the com-
mencement of the supposed demise. It it usual, though not neces-
sary to mention a particular day. Cro. Jac. 311. Saund. PI. and
174 EJECTMENT.
PLEADINGS.
Ev. 455, A mistake in the statement of the day, especially if the
words, "afterwards, to wit" arc introduced before it, would not, it
seems, be material. Cro. Jac. 06. B. N. P. 106.
Notice to appear. The notice should be directed to the ten-
ant in possession, by his name. 7. T. R. 477. 1 Chit. Rep. 215.
1 Moore 113, 2 Chit. Rep. 179. It is best to insert both Christian
and Surname. 1 Chit. Rep. 573. When there are several tenants
in possession, it is usual to prefix the names of all the tenants to
each declaration, though this is not absolutely necessary. 7 T. R.
477. 5 Moore 72. The term should regularly be mentioned by
name, but if the notice and declaration otherwise show what term
is meant, it will be immaterial. Adams, Eject. 103. {a.) The notice
should be regularly subscribed with the name of the casual ejector,
but it will suffice if it be subscribed with the plaintiff's name. Barn.
173. 3 T. R. 351. Saund, PI. and Ev. 551. The notice is in the na-
ture of process, and cannot be aided by any statement of the person
serving the declaration, or by the defendants appearing and ex-
cepting, unless he enter into the common rule. 3 Marsh. Rep.
(Ky.) 252. Notice to appear "on the first day of the next term
of the Circuit Court" without naming the Court, is bad. 1
Marsh. Rep. (Ky.) 154. The notice may be amended after ser-
vice, by striking out one day and inserting another. 4 Halsted
254. The notice need not be in the name of tke Plaintiff, but, if
in the name of the lessor of the plaintiff, or even any other person,
the court will permit the rule for judgement to be drawn up. 5
Barniv. and Jl Id. 849.
Amendments. The old rules in regard to amendments have
been relaxed ; and the demise, term, &c. &c. are now most cor-
(a.) The terms of our Courts being changed every year by the Legis-
latnre, it would seem that notice to appear "at the next Term" would be
held ^ood.
EJECTMENT. 175
PLEADINGS.
redly considered as formal only, and may be amended if neces-
sary. Adams Eject. 2(y2. Where the demise was laid anterior to
the time of the entry to avoid the fine, and the suit was staid by
injunction, for more than five years after the fine was levied, so
that the lessor was not in time to make a second entry, or bring
a second ejectment, the Court permitted him to change the day of
the demise, to a day subsequent to the day of entry. Burr. 2417,
Richard Roe. )
On motion to the Court, or, by consent
of parties. It is ordered that John Smith be made defendant herein
in_the place of the now defendant Richard Roe.
This order is entered upon the journal, and thereupon the con-
sent^rule is drawn up thus:
John Doe ex dem. A. B. \
vs. >
John Smith. )
And the said John Smith comes
and confesses the lease, entry and ouster in the said declaration
mentioned, and admits himself to be in possession of, &c. [defining
the extent and boundaries of so much of the premises as he defends
for^ parcel of the premises in the said declaration mentioned; and
EJECTMENT. IQI
APPEABAJfCE AND DEFENCE.
for plea says, that he is not guilty of the trespass and ejectment in
the said declaration alleged against him, and of this he puts himself
upon the country, and the said John Doc doth the like.
By T. his Atty.
The consent rule, thus prepared, is filed -with the Clerk, and the
cause, without any change in the declaration, is considered as at
issue, and is thenceforward entitled, John Doe ex deni. A. B. or
The Lessee of A. B. vs. John Smith, and under this title is con-
tinued on the docket until final judgment and execution.
When two defendants are sued jointly, they have no right to
enter into separate consent rules in name of each alone. 3 Cowen.
356.
When the action is brought by a joint tenant, parcener, or ten-
ant in common, against his companion, to support which, an actual
ouster^is necessary, the defendant ought to apply to the Court upon
affidavit for leave to enter into a special rule, confessing the lease
and entry, but not ouster, and tliis special rule will always be grant-
ed, unless it appear that the claimant has been actually obstructed
in hisjoccupation. Mams Eject. 236. Burr. 1895. 2 Taunt. 397,
18 Johns. Rep. 398. An affidavit that the tenant "claims as tenant
in common with the lessors^of the plaintiff, and that as he is ad-
vised by counsel and believes, he is tenant in common" with them,
is sufficient to entitle him to enter into the consent rule specially.
6 Cowen. 391. 2 Ih. 585. But an affidavit "that, as he this depo-
nent, verily believes, this ejectment will involve a question between
tenants in common" is not sufficient. Ibid. To obtain leave to
enter into the consent rule specially, the defendant must apply to
the Court, and is, therefore, entitled to have the costs of such appli-
cation taxed in the final bill of costs, if he be successful. 4 Cowen.
16. The lessor of the plaintiff, is not bound, of course, to enter into
a special consent rule, but only on'application to the Court. 2
Cowen. 442. If the defendant claim title as tenant in common, he
cannot object that no actual ouster was proved at the trial.* 4
Johnt Rep. 311. In an action by one tenant in common, who
192 EJECTMENT.
APPEARANCE AND DEFENCE.
has not been ousted, against his cotenant, the latter may enter into
the consent rule, where he does not dispute the title, as to part of
the premises only, and the plaintiff may take judgment as to the
residue, and recover the mesne profits thereof from his cotenant.
11 Johns. Rep. 461. It seems, that in such case, when the title is
not denied, the tenant need not stipulate to confess ouster. Ihid,
EJF.CTMP.NT. ll>3
CONSOLIDATION.
When ijjveiul tenants are in possession, to whom the claimant
dehvers declarations for dillerent premises, the Court will not join
them in one action, on the motion of either party, ahhough the
claimant has but one title to all the lands; for if the motion be
made on the part of the plainlifl" the Court will object, that each
defendant nmst have a remedy for his costs, which he could not
have if all were joined in one declaration, and the plaintiff pre-
vailed only against one of them; and if it be made on the part of
defendants, that the lessor might have sued them at ditterent ti:nes,
and it would be obliging him to go on against all, when perhaps he
might be ready against some of them only. Adams Eject. 237.
Strang. 1149. But when several ejectments, are brought for the
same premises, upon the same demise, the Court on motion will
order them to be consolidated. 7 T. 11. 477. Adams Eject. 237.
Also, when the premises are different, though the Court will not
consolidate the actions, yet where thirty-seven actions were
brought against separate individuals, and all depending upon the
same title, JiOrd Kenijon said it w'as a scandalous proceeding on
\\\v. part of the claimant, and ordered the proceedings in all the
cases to be stayed, and abide the event of a verdict in one of them.
2 Sell. Prac. 111. Adams Eject. 237. When a number of causes
are brought and all depend u[)i»n the same title, ami the questions
to be litigated, and the evidence are the same in all, it is comj)etent
for either party to make an application to the Court, that only one
of the causes be tried; ami that the plaintiir be not prejudiced by
his omission to try the others; and in a clear case, that they abide
the event of the case to be tried. In passing upon such a motion,
the Court will be guided by the admission of iIk; j>arly against
whom the motion should be mad<'. If the allidavits of the parties
should agree that the points of in(|uiry and the evidence would be
the same in all the causes, the motion would bo grantf'd. If they
should disagree, though they should only leave the matter in doubt,
the motion would be denied. 1 Cniirn. 7H. S. P. 5 Coiren. 282.
Z
194 EJECTMENT.
CONSOLIDATION.
Though a plaintiff cannot compel two defendants, having several
interests, to submit to a joint trial, yet they may conclude them-
selves, by a joint appearance and pica. 4 Yeates. 212. Defend-
ants, after they have taken a joint defence, are not permitted at the
trial to sever this defence. 1 Harr. Sf Johns. 182.
PLEAS IN BAR.
Not Guilty, is, in general, the only admissible plea in ejectment.
Adams Eject. 243. For the form of this plea, and the time when
to be pleaded. See, Consent Rule, ante. p. 190.
Matter of defence arising after issue joined must be pleaded
puis darrein continuance. 3 Cowen. 75. A release from the
lessor, after issue joined, cannot be plead, John Doe being the real
plaintiff on the record. 4 M. ^ S. 300. 19 Johns. Rep. 168. It
is no cause of Abatement that the plaintiff entered into possession
of the premises pending the action. 1 Root 73. The death of the
lessor, will not abate the action, nor can it be pleaded p^ds darrein
continuance. Strang. 1055. Adams Eject. 289. 18 Johns. Rep.
495. 1 Wend. 27. 3 Wend. 153. 2 Bihh. 148. Nor is the action
abated by the death of the defendant. Stat. vol. 29, p. 71, § 72.
EJECTMENT. 195
ORDER FOR SURVEY.
The Lessee of A. B. i
vs. >
John Smith. )
By consent of parties, or, on motion
of the plaintiff, or, defendant, it is ordered that the Surveyor of this
County do go upon the lands in controversy on the day of
(a) if fair, if not, the next fair day, and survey and lay off the
same, as either party shall require, and return four fair plats and
reports thereof, to the next term of this Court together with the
testimony of such witnesses as may be brought before liim by
either of the parties, touching the lines and corners of the lands in
controversy.
(a) Or, " on such day as the plaintiff, or, defendant, shall appoint, giving
the adverse party days' notice," &c. The statute is silent as to the
time when notice must be given; and if the order do dot specify the num-
ber of days, a reasonable notice must be given. The Surveyor may call
upon the Sheriff of the County to remove all force, &c. Stat. vol. 29, p.
401, ^ 10. The order for a survey is almost a matter of course, and ia
allowed in all cases, upon motion, unless good cause be shown against it.
196 EJECTMENT.
VERDICT AND JUDGMENT FOR FLAINTIFF.
The Lessee c?l"A. B. ^
vs. [
John Smith. )
This day came the parties by their
attorneys, and thereupon came a jury, to wit, E. F. &c. who being
empannelled and sworn the truth to speak upon the issue joined
between the parties, upon their oaths do say, that the said John
Smith is guilty of the trespass and ejectment, or, the several tres-
passes and ejectments, laid to his charge, in manner and form as
the said John Doe hath complained against him, and they assess
the damages of the said John Doe, by reason thereof, to one cent:
Therefore, it is considered that the said John Doe recover against
the said John Smith his said term, or, terms, yet to come of and in
the teaements aforesaid with the appurtenances, and also his said
damages by the jurors aforesaid' assessed, together with his costs
herein expended, taxed to dollars.
A verdict being for the plaintiff, for the lands laid down in a
survey made in the cause, as comprehended within certain lines
described by the jury; a judgment that the plaintifi' recover his
term yet to come, of and in the lands in the declaration mentioned',
is erroneous. 2 Wash. 276. Tlie judgment must be for the pre-
mises mentioned in the declaration. It is error to take a judgment
for the land in the plat described. 3 Marsh. Rep. (Ky.) 136. In
ejectment against several defendants, who possessed the premises
in separate parts, and who entered into the consent rule and plead-
ed jointly, the jury found each defendant separately guilty, as to
that part of the premises in his separate possession, and not guilty
as to the other parts possessed by the other defendants; the verdict
is good, and the plaintiff is entitled to judgment against all the
defendants, severally, according to the findii^ of the jury. 5 Johns.
Rep. 278. When several defendants appear and plead jointly, and
EJECTMENT. 197
VERDICT AND JUDGMENT FOU PLAINTIFF.
enter into the consent rule jointly, the plaintiff is bound to prove a
joint possession of all the defendants; and if on the trial it appear
that two of the defendants occupied distinct parcels in severalty,
and that the other defendants possessed the residue of the premises
jointly, the plaintiff can have judgment only against the defendants
holding jointly^ and the defendants holding in severalty, will be
entitled to judgment. 2 Johns. Rep. 438. A judgment for the
plaintiff on a single demise, contained in a single count, that he
recover his term in two parcels of land, being erroneous as to one
parcel, is so in ioto. Per Spencer, 8 Cowen. 40G. Otherwise,
perhaps, where the declaration contains more than one count, lb.
Where the title of the lessor, being a life estate, ends before the
trial, the plaintiff is entitled to judgment, but with a perpetual stay
of the writ of possession, so as to enable him to bring an action for
the mesne profits. 18 Jolnis. Rep. 295; The jury may find a
general verdict for the plaintiff, if the defendant produce a patent
of elder date for a part of the land, without designating what part.
4 Bibb. 285. When the declaration contains two demises, one
valid and the other void, and the judgment is, that the plaintiff
recover his term, in the singular, it shall be adjudged to have been
rendered on the valid demise. 3 Litt. 334. If several demises are
laid in the declaration, from several lessors, and the Court give
judgment for the plaintiff to recover " his term yet to come," the
judgment will be sustained, and the plaintiff' can only have one
execution. 3 Rand. 462. The usual judgment is for the premises
in the declaration mentioned, and a judgment for all the lands that
the tenant had not enclosed on a certain day is good. 5 Litt. 322.
198 EJECTMENT.
VERDICT AND^JUDOMENT FOR DEFENDANT.
For the Forms of Judgments upon Nonsuit, &c. See, Judgments
in Assumpsit, ante. 67.
FOR DEFENDANT ON PLEA OF NOT GUILTY.
The Lessee of A. B. S
vs. >
John Smith. )
This day came the parties by their
attorneys, and thereupon came a jury, to wit, E. F. &c. w\\o being
empannelled, and sworn the truth to speak upon the issue joined
between the parties, upon their oaths do say, that the said John
Smith is not guilty of the trespass or ejectment laid to his charge
in manner and form as the said John Doe hath complained against
him: Therefore, it is considered that the said John Smith go
hence without day, and recover of the said A. B. [^ the lessor
of the plaintiff^ his costs herein^expended taxed to dollars.
EJECTMENT. 199
OCCUPYING CLAIMANTS.
In all cases where any occupying claimant being in quiet pos-
session of any lands or tenements, for which such person can show
a plain and connected title, in law or equity, derived from the re-
cords of some public office ; or being in quiet possession of, and
holding the same by deed, devise, descent, contract, bond or agree-
ment, from any person claiming title as aforesaid, derived from
the records of some public office, or by deed duly authenticated
and recorded ; or being in quiet possession of, and holding the same
under sale on execution, against any person claiming title as afore-
said, derived from the records of some public office, or by deed
duly authenticated and recorded; or being in possession of, and
holding any land under any sale for taxes, authorized by the laws
of this state, or the laws of the territory northwest of the river
Ohio; or any person in quiet possession of any land, claiming title
thereto, and holding the same under a sale and conveyance made
by executors, administrators or guardians, or by any other person
or persons, in pursuance of any order of Court or decree in Chan-
cery, where lands are, or have been directed to be sold ; and the
purchaser has obtained title to and possession of the same, without
any fraud or collusion on his part; cannot be evicted, by any per-
son who shall set up and establish an adverse and better title, until
the occupying claimant, or his heirs, shall bo paid the value of all
lasting and valuable improvements made on the land, by the occupy-
ing claimant, or by the person under whom he claims, previous to
receiving actual notice, by the commencement of suit on such ad-
verse claim, by which such eviction may be eflcctcd, unless the
occupying claimant shall refuse to pay the successful claimant, the
value of the land, without the improvements. Slat. vol. 29, p. 261.
§ 1,2.
Upon the rendition of iinal judgmcnl in favor of \\\v plainlitV
in ejectment, either party may apply to the Court for relief under
this statute. The journal entry, in general, is made immediately
after the judgment, and may be in this form: "And thereupon the
200 EJECTMENT.
OCCUPYING CLAIMANTS.
said A. B. or C. D. {a) by Mr. O. iiis counsel made application
to the Court, for the valuation of improvements and assessment of
damages under the statute, for the relief of occupying claimants,
and the Court having considered of the same, are of opinion that,
he is entitled thereto : Whereupon it is ordered that further pro-
ceedings may be had in the premises agreeably to the provisions
of said statute."
The application kaving been allowed by the Court, the Sheriif
and Clerk, when requested by either party, are required by the
statute, to meet and draw a jury of twelve men, in the same man-
ner that juries in other cases are drawn; and thereupon the Clerk
issues an order to the Sheriff, under the seal of the Court, setting
forth the names of the jury, and the duties to be performed by
them. These duties consist,' in making an assessment of the value
of all lasting and valuable improvements made on the land, by the
occupying claimant, or by the person or persons under whom he
claims, previous to receiving actual notice, by the commencment of
the action of ejectment; and also of the damages,which the land may
have sustained by waste, together with the net annual value of the
rents and profits which the occupying claimant may have received,
after notice of plaintiff's title, by the service of the declaration,
and deduct the amount thereof from the estimated value of such
improvements. The jury also must assess the value of the land,
without regard to any improvements, or damages sustained by
waste; and the report, signed and sealed, must be deposited with
the Clerk, before the first day of the term next after the date of the
order. Stat, vol 20, 7^. 262. § 1, 3,4, G. The form of the order
to the Sheriff may be thus :
[a). It should alwiys appear by whom the ai^plication is made; for the
proceedings under this statute, are separate and distinct, from the proceed-
ings in the action of ejectment, and the party prevailing is entitled to costs.
When the application is made hy the defendant, and a judgment is given in
his favor, the Cuurt.will order the lessor of the plaintitf to pay the costs of
the proceeding. 1 Ohio Rej^. 157. Ohio Conds. 74.
EJECTMENT. 301
occupying claimants.
Oruer to the sheriff for valuation of improvements Sx.
The State of Ohio County, ss.
To the Sheriff of said County: Greetino,
Whereas on the day of A. D. the lessor of
A. B. recovered a judgment against C. D. in a certain action of
ejectment lately pending in our Court of Common Pleas, within
and for the said County of for his term yet to come in the
following lands and tenements, to wit, \_Here describe the lands as
in the declaration in ejectment, or as in the judgment, when the
lands are described in the judgmeiit,'] and whereas also, upon the
rendition of said judgment, our said Court of Common Pleas, on
application for that purpose, granted to the said C. D. the benefits
of the statute for the relief of occupying claimants: We therefore
command you, that without delay, by the oaths of E. F- &c. (a).
[^Names of Jurors'] and upon actual view of the premises, you
cause to be made a just and true assessment of the value of all
lasting and valuable improvements made upon the lands and tene-
ments aforesaid, by the said C. D. or by any person or persons
under whom the said C. D. holds the same, previous to the
day of — — A. D. \_Date of the service of the declaration in
ejectment'] : and also, in like manner, you cause to be made a just
and true assessment, of the damages, if any, which the said lands
and tenements may have sustained by waste, together with the net
annual value of the rents and profits which the said C. D. may
have received from the same, from and after the day of
\_Date of the service of the declaration in cjectjncnt] deducting the
amount of such rents and profits from the estimated value of the
lasting and valuable improvements aforesaid ; and also that in like
manner, you cause to be made, a just and true assessment, of the
(a) The oath may be administered by any competent authority. Stat-
vol. 29, p. 262. } 4.
Aa
202 EJECTMENT.
OCCUPYING CLAIMANTS.
value of the said lands and tenements, on the day of
A. D. l^Date of the final judgment in eject?neni] exclusive of the
improvements made thereon, and of the damages sustained by
waste as aforesaid: and of this writ make legal service and due
return.
WiTNKss ; T. T. President Judge of our said Court of Common
Pleas, this day of — -^^^ — A. D. .
Attest
F. C. Glerk.
It is the duty of the Sheriff, to notify the jurors named in the
writ, who, upon actual view of the premises, and having been af-
firmed or sworn, proceed to make their report.
This report is sometimes delivered to the Clerk, by one of the
jurors, but the better practice is to attach it to the writ. The re-
turn of the Sheriff and the report of the jury may be in this form :
Form of Sheriff's return and report of jury.
The execution of this writ appears in a certain schedule hereto
annexed.
S. W. Sheriff of County.
Dated, ^.
EJECTMENT. 203
OCCUPYING CLAIMANTS.
We, the jury named in the within writ, Iiaving been first duly
sworn, upon actual view of the premises in the within writ des-
cribed, do make the assessment therein commanded, as follows, to
wit:
We find that the said C, D. previous to the
day of A. D. [Date of
the service of the declaration in eject-
mentl had erected upon said premises
one brick house, which with the fixtures,
we estimate at - - - - $1200 00
Also one barn, estimated by us at - 400 00
Also one log cabin - - - - 60 00
We also find that, previous to the same
date, the said C. D. had cleared and
fenced seventy acres of the said land,
the value of wliich improvement, we
estimate at ... - 450 00
He had also planted one orchard contain-
ing two hundred apple trees, estimated
by us at 300 00
Making the whole amount of lasting and
valuable improvements upon said pre- :
mises $2410 00
We further find that said lands have sus-
tained waste, by cutting down of val-
uable timber, to the amount of - $300 00
We also estimate the net annual value of
the rents and profits of said lands, since
the day of A. D. [Date of
the service of the cleclaratiou in eject-
ment'] at 250 Dollars, which to this date,
{Two years and six months) amounts
to 625 00
$925 0(\
Excess in favor of the occupying claimant $1485 00
204 EJECTMENT.
OCCUPYING CLAIMANTS.
And we do also estimate the value of said lands on ihe day
of A. D. [Date of final judgment in ejectment] at 6500
Dollars, exclusive of the improvements, and damages sustained by-
waste as aforesaid.
In testimony whereof, we hereto put our hands and seals this
day of A. D.
E. F. &c. [seal.]
The Court, on application of either party, and upon good cause
shown, will set aside the proceedings of the sheriff and the report
of the jury, at the term to which the proceedings are returned,
and order a new valuation to be made. Stat. vol. 2Q,p. 263, § 6.
If the jury report a balance due to the plaintiff in ejectment, the
Court will render judgment for such balance, without pleadings,
and issue execution thereon as in other cases. Ih. § 7. The form
of the judgment may be thus:
Judgment for Plaintiff in Ejectment for balance
FOUND BY Jury.
Application to assess damages, &c. under occupy-
ing claimant law.
On motion to the Court, by Mr. O. counsel for the said A. B.
and upon producing a report of the jury herein appointed to assess
damages, &c. under the Statute for the relief of occupying claim-
ants, and it appearing by said report that a balance of dollars
is due to the said A. B. upon such assessment. It is therefore con-
sidered that the said A. B. recover of the said C. D. the said sum of
dollars his damages aforesaid assessed; and also his costs here-
in expended, taxed to dollars.
EJECTMENT. 205
OCCUPYING CLAI>IANTS.
If the jury report a balance in favor of the occupying claim-
ant, the plaintiff in ejectment may elect, either to pay such balance,
within a reasonable time to be fixed by the Court, and take pos-
session of the premises ; or he may tender a deed of the land to
the occupying claimant, and demand the assessed value of the
land, exclusive of the improvements; and if the occupying claim-
ant neglect to pay such assessed value, within a reasonable time
to be fixed by the Court, the plaintiff in ejectment may sue out a
writ of possession. Stat, vol 29, p. 263, § 8. He may also have
a writ of possession upon paying the occupying claimant, the
balance reported due to him, by the jury. Ih. § 9. Or, if the
occupying claimant neglect or refuse to pay the assessed value of
the lands, within the time limited by the Court, he having tendered
a general warranty deed to the occupying claimant. Ih. § 10.
When the plaintiff" in ejectment elects to surrender the land and
receive the assessed value thereof, and the occupying claimant
pays such assessed value into Court, and the plaintiff neglects or
refuses to convey the premises, the occupying claimant may file a
Bill in Chancery, in the Court which rendered the judgment in
ejectment, to compel such conveyance. Ih. § 11. {a).
[a) Tliis statute docs not liar the action of trespass for mesne profits
which may have accrued anterior to the service of the tieclara'.ion in eject-
ment. See, trespass, ante. 158, n. (a).
206 ERROR.
EllROK.
Nature of Remedy and when it lies.
Final Judgments in the Courts of Common Pleas, may be ex-
amined, and reversed or affirmed in the Supreme Court, holden
in the same County, upon writ of error. Stat. vol. 29, p. 77, § 103.
At Common Law there are two kinds of writs of error, the one
coram nobis, and the other coram vohis. The writ coram nobis,
may be brought in the sa?ne Court where the judgment was ren-
dered, but lies only for some defect in the execution of the process,
or through some default of the Clerk, or for some error i7i fact.
1 Roll. Abg. 746. Cro. Eliz. 106. 2 Saund. 101. n. {a), "^he
writ coram vobi'^, lies for error in the judgment itself, and must
be brought before another Court than that in which the judgment
was rendered. 2 Bac. M)g. 215. 2 Saund. 101, 7i. (a). The latter
alone is used in the State of Ohio; and it is prosecuted, in general,
upon the principles of the Common Law.
No writ of error can be brought but on a judgment, or an award
in the nature of a judgment. 2 Bac. ..'Ibg. 452. Co. Litt. 288, b.
If a party be non-suited, and a judgment be given against him for
costs, error lies. 2 Johns. Rep. 9. S. P. 6 Johns. Rep. 110. 1 Id.
373. Ohio Stat. vol. 29, p. 75, § 95. Also, on an award for refus-
ing to discharge a prisoner on habeas corpus. 6 Johns. Rep. 337.
So, on motion for a new trial, by reason of any supposed misdi-
rection of the Court to the jury, or by reason that the verdict may
be supposed to be against law. Ohio Stat. vol. 29, p. 75, § 96.
Error does not lie on an arrest of judgment, in N. York. 2 Johns.
Rep. 247. It lies for error in fact, and the Supreme Court can
award a venire to try the fact. 14 Johns. Rep. 417. It lies also
where the Court of Common Pleas refuse to non-suit a plaintiff,
on motion of the defendant, where the evidence entirely fails to
support the plantiff's case. 19 Johns. Rep. 154. Though the
judgment be defective, yet if it be final, and one on which execu-
tion can issue, error lies. 3 DalL 401. The judgment must be
ERROR. 207
final. 4 Dall. 22. The refusal of" the Court below to grant a new
trial, cannot be assigned for error. 5 Cranch. 11. 187. 4 Wlieat.
213. 7 Wheat. 248. See, Ohio Statute, ut supra. Nor that the
Court below refused to reinstate the cause after judgment of non-
suit. 5 Cranch. 280. 7 Cranch. 152. Or, refused to allow a plea
to be amended, or a new plea to be filed, or to grant a new trial, or
to continue a cause. 6 Carnch 20G. 9 Wheat. 576. 1 1 Wheat.
280. I Mason 1^2. Nor, on a judgment of non-suit. 4: Wheat. 1^.
Or, refusing to set aside a verdict. 3 Wash. C. C. Rep. 443. Nor,
generally, upon matters of practice in the inferior Court. 3 Pet.
445. Nor, upon the minutes of the daily proceedings of the
Court. 1 Harr. 208. 1 Ohio Rep. 268. Ohio Conds. 129.
Of the time and manner of bringing a writ of error.
Writs of Error cannot be brought, but within five years after
the rendition of the judgment complained of; or in case the person
entitled to such writ be an infant, feme covert, non compos mentis,
or imprisoned, then within five years exclusive of the time of such
disability. Stat. vol. 29, p. 77, § 104. When one of the plaintiff's
in a writ of error, is within the saving clause of the statute, the
case is saved to all. 3 Ohio Rep. 49. Ohio Conds. 464.
The writ may be allowed by the Court in term, or by a single
Judge in vacation, upon good cause shown. Stat. vol. 29, p. 56,
§ 3. It is not grantable, as in England, ex dchito justicoe, but
only upon cause shown. Ibid.
The party applying for a writ of error must obtain a certified
transcript of the record of the Court of Common Pleas, and after
assigning errors upon it, present the same to one of the Judges
of the Supreme Court in vacation, or to the Court in term time,
for an allowance of the writ. The allowance, which is generally
made by a single Judge, as well in term time, as in vacation, is
endorsed upon the transcript thus : " Let a writ of error be issued,
returnable at next term. T. S. Judge Sup. Court." The tran-
script is then filed with the Clerk of the Supreme Conrf, who
thereupon issues the writ as follows :
208 ERROIi.
Form of Writ of Error.
The State of Ohio, County, ss.
To the Judges of the Court of Common Pleas within and
for said County: Greeting.
Because in the record and proceedings, and also in the rendition
of Judgment, in a certain action of Debt, which was lately in our
said Court before you, wherein A. B. was plaintiff and C. D. was
defendant, error has intervened, as it is said, to the damage of the
said CD. and we being willing that such error, if any there be,
should be corrected, and full and speedy justice done to the parties
aforesaid in this behalf, do command you, that if judgment be there-
upon given, then without delay, you send to us distinctly and openly
under the seal of your Court, an authenticated transcript of the
record and proceedings aforesaid, with all things concerning the
same, and this writ ; so that, the same being inspected, we may, at
the next term of our Supreme Court, to be holden within and for
the said County of on the day of next, cause
further to be done thereupon, what of right and according to the
laws of the land ought to be done.
Wit?;ess : T. T. Cliief Judge of the Supreme Court of the
State of Oliio, tliis day of A. D. • .
Attest.
R. C. Clerk S. C. Counti/.
This writ is taken to the Clerk of the Court of Common Pleas,
who makes out another complete transcript of the record, and
certifies the same under the seal of the Court. To this transcript
the writ is prefixed, after being endorsed as follows : " An au-
thenticated transcript of the record and proceedings within men-
ERROR. ao»
tioned, with all things concerning the same, is herewith returned
to the said Supreme Coui-t, in a certain record to this writ annexed,
as within commanded."
Attest.
G. R. Chrk of Common Pleas.
The transcript, and writ thus endorsed, is then delivered to the
plaintiff in error, who thereupon acsigns errors anew, and files the
same with the Clerk of the Supreme Court, {a).
ASSIGNMSUT OP EnSOKS.
The assignment of errors is in the place of a declaration, and
may be assigned in any part of the record. Vin. Ahg. {A. a.) 4.
2 Bac. Jlhg. 485. 2 Saund. 101, w. (a). An assignment, quod in
omnibus erratum est, is not good, for the Court is not bound to
enquire of errors, if the party does not show them. 2 Bac. Ahg.
486. The plaintiff cannot assign error in fact and error in law
together; for they are distinct things, and require different trials ;
viz. Matters of fact by a jury; and matters of law, by the judge
before whom the record is removed. Yeh. 58. 2 Bac. Mg. 487.
But if errors in law and errors in fact are assigned together, and
the defendant in error pleads, in nullo est erratum; this is a confes-
sion of the error in fact, and the judgment must be reversed ; for he
should have demurred for the duplicity. Salk. 2G8. Ld. Raym.
883, 1005. 2 Bac. Ahg. 488. 9 Johns. Rep. 159. 15 Johns. Rep.
(rt) This is tne regnJar mode of proceeding; but a general practice has
grown tip under the llili rule of the Supreme Court, {Dec. Term, 1823. .5
Ohio Rep. 6. Ohi') Conds. <}.) of altucliiiig the writ of error to tlie transcript
upon which the writ was originally allowed, hnd which is already on file
with the Clerk of the Hupreine Court. In Buch cases the writ is not sent
down to the Court of C tiimon Pleas, but the original transcript is made
the foundation of all subsequent proceedings, in the same manner, as if a
second transcript had been sent up in obedience to the writ. This prac-
tice renders the complete record informal, but it is very convenient, and
much less expensive than the other mode of proceeding; and it may dow bo
considered the settled practice of the Supreme Court.
Bb
•!• ERROR.
159. 15 Johns. Rep, 87. Lev. 76. But if an error in fact be ill
assigned, in nullo est erratum, is no confession of it. Cro. Car.
421. 2 Bac. Ahg. 488. When error in fact is assigned, the plain-
tiffmust conclude with an avermeni, in order to give an opportunity
of trying the fact by the country, if the defendant in error chooses
it. 1 Burr. 412. 2 S.^mno'. 101, n. (a).
Nothing can be assigned for error which contradicts the record.
1 Sir. 684. 2 Ld. Raym. 1411. 1 Wils. 85. Or, that which is
aided by appearance, or by not being taken advantage of in due
time. 2 Bac. Ahg. 230. IX. Petersd. Ahg. 52.
As a general rule, a party cannot assign that for error which
makes to his own advantage. 8 Co. 39. 2 Bac. Ahg. 490. 5 Pick.
213. 11 Mass. 279. 9 Mass. 532. 2 Ohio Rep. 343. Ohio Conds.
386 This rule does not apply to errors of the Court 8 Co. 359.
1 Gallis. 26. 2 C ranch. 126. If a plaintiff assign an error in
fact, and fail to prove it, he cannot assign another error in fact.
7 Pick. 14.5. A man may assign as many errors in law as he
pleases, but he can assign only one error in fact. F. N. B. 20.
(E.) 5 Dane^s ,fihg. 73. When a thing in the record is assigned
for error, which is not error, yet the Court will view the record,
to see if there be any other in it, and if there be, will reverse the
judgment; because no error should be left on the record. For the
same reason, if matter of fact is pleaded in bar of a writ of error,
and on issue joined, it is found for the defendant in error, yet the
(/ourt may examine the judgment, and if error is found in it, may
reverse it. Vin Ahg. Error, (E. c ) 1,2. Story PL hy Ol. 371.
So, if there be any matter in the record to affirm the judgment,
which is not pleaded, the Court may take advantage of it to sus-
tain the judgment. Ihid,
Form of Assignment op Errors.
And the said C. D. now comes and says, that in the record
and proceedings aforesaid there is error in this, to wit :
I . That the declaration aforesaid, and the matters therein
contained, are not sufficient in law to maintain the said action.
II. That, &o.
ERROR. Jll
III. That said judgment was given in favor of the said A. B.
when by the laws of the land it ought to have been given in favor
of the said (\ D.
Wherefore, the said C. D. prays that a citation and supersedeas
[or, if no bond is given, a citation onfy,'] may issue, and that the
said judgment may be reversed and that he may be restored to
all things which he has lost by reason thereof.
By S. his Jitty.
CiTATio.\, Notice, axd Supersedeas.
A citation, signed by the Clerk of the Supreme Court, must be
served upon the adverse party, or his attorney, and notice given,
at least ten days before the commencement of the term, to which
the writ of error is returnable. Stat. vol. 29, p. 77, § 103.
Form of Citation ajjd Notice.
The State of Ohio County, ss.
To the SherifTof said County : Greeting.
We command you to give notice to A. B. that C, D. has
obtained an allowance of a writ of error upon a judi-mpnt rendered
in a certain action of Debt, lately pending bcf )re the Judges of
the Court of Common Pleas in and for the said County of
and wherein the said A. B. was plaintiff and the said C. D. was
defendant : and also to cite the said A. B. to appear before the
Judges of the Supreme Court, at the Court House in said County,
on the first day of the next term of the said Supreme Court, to
show cause, if any there be, why the said judgment should not
be reversed, and why speedy justice should not be done to the
parties in that behalf: And of this writ make legal service and
Wue r»^t»rn.
212 ERROR.
Witness : R. R. Chief Judge of the Supreme Court of Ohio,
this — — day of ■ A. D.
Attest.
R. C. Clerk Cup. Court County,
A copy of this writ is served by the Sheriff, upon the defend-
ant in error, or his attorney, in the same manner as ether mesne
process, and is returned on the first day of the next term.
In England, a writ of error sued out after final judgment, and
before execution executed, is a supersedeas of execution, from the
time of its allowance, and not from the time of the service of the
allowance. 1 Salk. 321. 1 Burr. 340. 1 B. SfP. 478. 1 T. R. 279.
The service of the allowance is only material to bring the attorney
into contempt fof proceeding to sue out execution afterwards. 1
r. R. 280. Willes. 275. 2 Saund. 101, n. (b). But under our
Statute, a writ of error does not operate as a supersedeas, unless
the Clerk before signing the citation, takes a bond from the appli-
cant to the adverse party, with one or more good and sufficient
securities, in double tie amount of the judgment, conditioned for
the payment of the condemnation money and costs, in case the
judgment of the Court below should be affirmed, in whole or in
part. Vol. 29, p. 77, § 104. Hence it would seem, that the writ
can at most operate, as a supersedeas, only from the execution of
the bond.
Form of Bond.
Know all men by these presents, that we, C. D. E. F. &c. of
&c. are held and firmly bound unto A. B. of &c. in the penal sum
of—— dollars, [double the amount of the judgmentl to the pay-
ment of which well and truly to be made we do by these presents
jointly and severally bind ourselves, our heirs, executors, and ad-
ministrators ; sealed with our seals, and dated tliis day of
A.D. —
The condition of the above obligation is such, that whereas the
•aid C. D. has obtained an allowance of a writ of error upon a
ERROR. 213
certain judgment rendered in the Court of Common Pleas within
and for said County of , at the term thereof, A. D.
in favor of the said A. B., and against the said C. D., for the
sum of dollars, damages, and also for dollars, costs :
Now, if the said C. D. shall pay the condemnation money and
costs, in case the said judgment of the said Court of Common Fleas
shall be affirmed by the Supreme Court, m v.hole or in part, then
the above obligation shall be void ; otherwise, in full force in law.
Taken by me, this day of A. D. .
R. B. Clerk Sup, Court County.
C. D. [seal.]
E. F. [seal.]
It is well settled, that a bond, duly executed by the securities,
is sufficient, though not actually signed by the plaintiff in error.
At common law, it was unnecessary in many cases, to sue out
a writ of supersedeas, as the allowance of the writ of error, was
of itself, in contemplation of law, a supersedeas. 1 T. R. 279. 2
Day 370. The practice under our statute, has not been uniform,
but the better opinion seems to be, that the writ of supersedeas
should actually issue in all cases, to prevent execution. See, 5
Dane's Abg. 71, The Supersedeas, Citation, and Notice, may all
be embraced in one writ, thus:
Form oi' Supersedeas, Citation, and Notice.
The State of Chio, County, ss.
To the Sheriff of said County: Greeting.
We command you, that you forbear all further proceedings
upon a judgment rendered in a certain action of Debt, in our Court
of Common Pleas, in and for the said County of , at the
«14 ERROR.
term thereof, A, D. in favor of A. B. and against C. D. for
the sum of dollars, and which said judgment for causes of
error to be corrected, on the complaint of t!:e said C. D. we have
caused to be brought into our Supreme Court by our writ of error:
And also that you give notice to the said A. B that a writ of error
has been allowed upon said judgment : And also that you cite the
said A, B. to appear before the Judges of our Supreme Court, at
the Court House in said < 'ounty, on the first day of the next term
of the said Supreme Court, to show cause, if any there be, why
the said judgment should not be reversed, and why speedy justice
should not be done to the parties in that behalf: And this do, as
you will answer the contrary at your peril.
Witness : R. R. Chief Judge of the Supreme Court of Oliio,
this day A. D.
Attest.
R. B. Clerk Sup. Court County.
A copy of this w^rit is served by the Sheriff, upon the defendant
in error, or his attorney, in the same manner as other mesne
process, and is returned on the first day of the next term.
Demurrer and Plea.
To an assignment of errors the defendant may plead or demur.
Pleas in error are common or special. In nullum est erratum, is
the common plea, and is in the nature of a demurrer. It is fre-
quently called the common joinder, and at once refers the whole
matter in law, to the judgment of the Court. 2 Saund. 101, n. (a.)
ERROR. til a
Form of Com?.ion Joixdeh.
A. B. ^
vs. > In Error.
CD.)
And the said A B. comes and
says, that there is no error, either in the record and proceedings
aforesaid, or in giving the judgment aforesaid : and therefore lie
prays that the said judgment may be aSrmcd, and that his c.fsts
may be adjudged to iiim. &c.
By S. his AtOj.
Special pleas to an assignment of errors contain matters in c^n-
fession_^and avoidance, as a i-elease of errors, the Statute of hmita-
tions, &c. Tidd. Pr. 1120. 2 Saund. 101. n. (a), to which the
plaintiff may reply or demur, and proceed to trial, or argument.
Ibid. When several phiintifls have judgment against them, and
alterwards bring error to reverse the judgment, a release by one
ol them is a good bar. 3 Mod. 135. 2 Cm. 117. But when seve-
ral arc sued, and judgment is recovered against them, a release
by one of them will be no bar to a writ of error by the rest. 2
Cro. 117. G Co. 254. Story PL 372.
Suggestion of diminution and certiorari.
It is a general rule, that after the defendant has pleaded, iii nuJIo
est erratum, no diminution can be alleged. Cro.E/iz. 81. 1 Leon.
22. 1 Salh. 269. But it is also a general rule, that at any time pend-
ing a writ of error, whether before or after error assigned, 1 Sir,
440 or, after in nullo est erratum pleaded, the Court may, ex of-
ficio, ni their disQietion, award dt. certiorari. F. N. B. 58 n. (a). 2
Ld. Raym. 1005. 2 Bac. Abg. 205. 2 Saund. 101. n. (a). 5 Danes
Ahg. 88.
216 ERROR.
The suggestion of diminution, is the assigning of defects in the
record returned from the Court below. Tidd. Pr. 1224. 8ih edit.
IX. Peter sd. Ahg.^l.
Our Supreme Court, in general, require the defects in the
record to be specifically pointed out in writing, and will tlien ex-
ercise a discretion in allowinsj or refusing a certiorari. The form
may be thus :
A. B. J
vs. > In Error.
C. D. )
And the said A. B. or C. D. suggest to the
Court here, that in the transcript of the record returned in this
case from the Court of Common Pleas, there are certain defects,
as follows, to wit, [Here set forth particularly the defects, '\
Wherefore the said A. B. prays the allowance of a certiorari for
a true transcript, of the record and proceedings in the Court be-
low, &c.
By S. his My.
If a certiorari be allowed, the order is entered upon the Journal,
thus:
C. D.
vs. \ In Error.
A. B.
On motion to the Court, by Mr. O. counsel for the plaintiff in
error, it is ordered that a certiorari issue to the Court of Common
Pleas for a true transcript of the record and proceedings in this
cause, in the said Court of common Pleas, returnable on and
thereupon this cause is continued at the costs of the plaintiff in
error.
ERROR. 217
Form of certiorari cn suggestion of diminution. F. N. B. 25.
The State of Ohio County, ss.
To the Judges of the Court of Common Pleas within and for
said County ; greeting.
Whereas, at the suit of C. D.
suggesting to us, that error had intervened, in the record and pro-
ceedings, and also in the giving of judgment, in a certain action of
debt which was lately pending in our said Court before you, wherein
A. B. was plaintiiT and the said C, D. was deiendant, we heretofore
commanded you, that if judgment thereof was given, then without
delay you should send to us, under the seal of your Court, distinct-
ly and openly, an authenticated transcript of the record and pro-
ceedings aforesaid, with all things concerning the same, so that we
might have them on the first day of the then next term of our Su-
preme Court, to be holden within and for the said County of
And now in behalf of the said C. D. it is shown to us, that
though you may have sent to us in our said Supreme Court, at the
time and place aforesaid, an authenticated transcript of the record
and proceedings aforesaid, in some part thereof; yet other parts
of the same, and also other things touching them, still remain before
you, to be sent : Therefore we command you, that without delay
you send to us, under the seal of your Court, distinctly and openlv,
a transcript of the record and proceedings aforesaid, and also of
all things touchnig them, which, as is before said, remain before
you to be sent ; and this writ ; so that we may, on ihc fust day of
the next term of our said Supreme Court, to be holden within and
for the said County of cause to be done, thereupon what of
right and according to the laws of the land ought to be done.
Witness: T. T. Chief Judge of the Supreme Court of the
State of Ohio, this day of A. D. .
Attest.
T. R. Clerk, Sup. Court County.
Co
218 ERROR.
This writ is taken to the Clerk of the Court of Common Pleas,
who malvcs out a corrected transcript of the original record, and
certifies the same under the seal of the Court, and then endorses
the writ as follows : {a).
To the Supreme Court of the State of Ohio, within and for the
County of .
A true transcript of the record and
proceedings within mentioned, with all things touching the same,
is herewith returned to the said Supreme Court, at the day and
place within mentioned, in a certain record to this writ annexed
as within commanded.
The answer of the Judges of the Court of Common Pleas
within named.
Attest.
G. R. Clerk, Com. Pleas.
The writ thus endorsed, is annexed to the transcript, and filed
with the Clerk of the Supreme Court.
In England, a certiorari is often sent down to certify, as to cer-
tain sjjecijlc diminutions or defects, in the record ; and this is the
most advisable, aud by far the least expensive mode of proceeding.
Lill. Ent. 556. The form of such writ is as follows :
(a) The Clerk in miking out his return to this writ, will correct any
errors tliat may have occuned in the iormer copy of the record, but he
cannot alter the original record, in any respect, without the order ot the
Court of which he is Clerk.
ERROR. 219
Form op certiorari, on suggestion of specific diminutions.
The State of Ohio County, ss.
To the Judges of the Court of Common Picas within and
for the said County of G^zeeting.
Because in the record and proceedings, and also in the giving
of judgment, in a certain action o^ debt, which was in our said
Court before you wherein A. B. was plaintiff, and C. D. was
defendant, error had intervened, as it is said, to the damage of
the said C D. a transcript of the record of which said proceed-
ings and judgment before our Supreme Court in the said Covmty
of to correct the errors in the same, we have heretofore
caused to be brought by our writ of error : and because the said
Supreme Court, for certain reasons them moving, before they
proceed in this behalf arc willing to be informed whether these
words, "///5 ccrlain note " between this word, "6?/" and these words,
*^under his hand" are inserted in the said first count of the said
declaration ; and whether these words, "pay them" between these
words, ^-promise to" and these words, "or order, " are inserted
in the said second count of the said declaration; and whether these
words, "next term, " between these words; "of our, " and these
words, "to ansicer, " are inserted in the said writ of summons
[^Proceed in like manner to specif/ all the defects, omissions, mis-
takes, ^cy. Therefore we C(^mmand you, that the record of the
said frst and second counts of the said declaration, and of the
said writ of summons, being searched, what of said words so as
aforesaid omitted or inserted therein, you shall find, to the Supreme
Court al'oresaid, you without delay certify, together with this writ.
Witness: T. T. Chief Judge of the Supreme Coui't of the State
of Ohio, this day of A. D. ^
Attest.
T. C. Chrk Sup. Court County,
220 ERROR.
This writ is delivered to the Clerk of the Court of Common
Pleas who searches the record, and endorses upon the writ as
follows :
To the Supreme Court of the State of Ohio within and
for the County of
We do hereby certify, that the record of the said first and
second counts of the within named declaration, and of the within
named writ of sum?nons, being searched, we do find, that the words,
"his certain note," between this word, "&?/," and these words, "mw-
der his seal" in the said first count of the said declaration, are
inserted ; and that these words, "pay them," between these words,
'^or order,'^ and these words,, ^^promisc to" in the said second
count of the said declaration, are inserted ; and that these words,
"next term," between these words, "of our" and these words, "to
answer," in the said writ of summons, are wholly omitted: as we
are within commanded.
The answer of the Court of Common Pleas within named.
Attest.
T. S. Clerk of Com. Pleas.
The writ,\;thus' endorsed, is filed with the Clerk of the Supreme
Court ; and the endorsment, in all the subsequent proceedings,
is considered as part of the original transcript sent up with the
writ of error, (a)
(a) In practice, the writ of certiorari is not frequently issued, but upon
a suggestion of Diminution, or mistake, the Clerk of the Common Pleas,
by consent of parties, is permitted to amend the original transcript, accor-
ding to the truth of the matter, upon such terms as will work no injustice.
In this, as in other matters of Form, and Jeofails, the liberality of the pro-
fession, in general, permits, "that to be considered as done, which ought to
be don„-"
ERROR. 221
Amendment.
In England, and in some of the U. States, it is the common
practice to amend the record, after error brought, as a matter of
course, and generally, without costs. 2 Str. 863, 902 .2 Ld. Raym,
1587. 2 Johns. Rep. 184. 1 Gallis. 257, 261. But by our Statute,
vol. 29 p. 77. § 106. amendments are not permitted after error
brought.
222 ERROR.
Judgments.
When a judgment is reversed in the Supreme Court, in whole
or in part, that Court may proceed either to render such judgment
as the Court of Common Pleas should have rendered, or remand
the cause to the Court of Common Pleas, by writ of procedendo,
for such judgment ; and the Supreme Court cannot issue execu-
tion in causes brought before them on error, and in which the
judgment is reversed in whole or in part, but a special mandate
is sent down to the Common Pleas to award execution. Stat. vol.
29, p. 77, § 108. When the judgment is reversed, the plaintiff in
error recovers his costs; when the judgment is affirmed, the de-
fendant is entitled to his costs; and when the judgment is reversed
in part and affirmed in part, the costs are equally divided between
the parties. Ih. § 107.
Judgment of Affirmance.
In Error.
This cause came on
to be heard on the transcript of the record from the Court of
Common Pleas of County, and was argued by counsel ; on
consideration whereof, it is ordered and adjudged by this Court,
that the judgment of the said Court of Common Pleas be, and the
same is hereby affirmed with costs; and that a special mandate be
sent to the said Court of Common Pleas to carry this judgment
into execution.
ERROR. 223
Judgment of REVERSAii.
A. B. )
vs. > In Error.
C. D. )
This cause came on to
be heard on the transcript of the record from the Court of Com-
mon Pleas of County, and was argued by counsel ; on con-
sideration whereof, it is ordered and adjudged by this Court, that
the judgment of t«e said Court of Common Pleas be, and the same
is hereby reversed, with costs; and that the said A. B. be restored
to all things which he has lost by occasion of the said judgment ;
and that a special mandate be sent to the said Court of Common
Pleas to carry this judgment into execution. See, next precedent.
The like, specifying the causes of reversal.
In Error
This cause came on to be
heard on the transcript of the record from the Court of Common
Pleas of County, and was argued by counsel ; on considera-
tion whereof, this Court is of opinion, that there is error in the
record and proceedings of the said Court of Common Pleas, in
this, to wit : that it appears from the record aforesaid, that the
said S. H. ivas not surety on the note upon w/tic/i the judg/ncjit set
forth in the said declaration was rendered ; and also in this, that
the said S. H. being hoxind, ^-c. [In like manner specify the seve-
ral grounds of reversal] : Therefore, for the errors aforesaid, it
is ordered and adjudged by this Court, that the said judgment of
the said Court of Common Pleas be, and the same is, hereby re-
versed, with costs; and that the said A. B. be restored to all tlungs
which he has lost by occasion of the said judgment ; and that a
224 ERROR.
special mandate be sent to the Court of Common Pleas to carry
this judgment into execution, (a).
Judgment of reversal, and final judgment for plaintiff.
In Error.
This cause came on to be
heard on the transcript of the record from the Court of Common
Pleas of County, and was argued by counsel, on considera-
tion whereof, it is ordered and adjudged by this Court, that the
judgment of the said Court of Common Pleas be, and the same is,
hereby reversed, with costs ; and that the said A. B. be restored
to all tilings which he has lost by occasion of the said judgment ;
and thereupon, this Court proceeding to render such judgment as
ought to have been rendered by the said Court of Common Pleas,
it is considered, that the said A. B. recover of the said C. D. the
said sum of . dollars his debt aforesaid, and dollars for
his damages which he has sustained by reason of the detention of
said debt, and also dollars for his costs in that behalf ex-
pended ; and it is further ordered, that a special mandate be sent
to the said Court of Common Pleas to carry tliis judgment into
execution.
Judgment of reversal, and cause remanded to the court op
COMMON fleas WITH INSTRUCTIONS TO OVERRULE DEMURRER.
A. B. ^
VS. > In Error.
CD.)
This cause came on to be
heard on the transcript of the record from the Court of Common
(o) It is generally advisable to specify the causes of reversal, in order that
the Court below may be correctly informed of the grounds of euch reversa'
ERROR. 225
Pleas of County, aud was argued by counsel ; on conside-
ration whereof, it is the opinion of this Court that there is error
in the record and proceedings of the said Court of Common Pleas*
in this, to wit : [here specify the grounds ofreversaV] : Therefore,
for the errors aforesaid, it is ordered and adjudged by this Court,
that the judgment of the said Court of Common Pleas be, and the
same is hereby reversed, with costs ; and that the said A.. B. be
restored to all things which he has lost by occasion of the said
judgment : And it is ordered, that tliis cause be remanded to the
said Court of Common Pleas with instructions to overrule said
demurrer, and to proceed without delay to final judgment between
the said parties, according to law.
Jui>GMENT OF REVERSAL, AND PROCEDENDO AWARDED TO TUB
COURT OF COMMON PLEAS FOR FINAL JUDGMENT.
A. B. ^
vs. > In Error.
C. D. )
This cause came on to be
heard on the transcript of the record from the Court of Common
Pleas of County, and was argued by counsel ; on considera-
tion whereof, it is the opinion of this Court, that there is error in
the record and proceedings of the said Court of Common Pleas,
in this, to wit, &c. ; it is, therefore, ordered and adjudged by this
Court, that the judgment of the said Court of Common Pleas be,
and the same is, hereby reversed, with costs ; and that the said A.
B. be restored to all things which he has lost by occasion of said
judgment; and that a special mandate be sent to the said Court of
Common Pleas to carry this judgment into execution; and that a
writ of procedendo also be sent to the same Court of Common
Pleas, to proceed, without delay, to final judgment between tlie
said parties, according to law.
Dd
RO Ef.ROR
Judgment op KETSRfAi, nv ?akt. a^jd ArriRMANCE in paet.
In Error.
This cause came on to be
heard on the transcript of the record from the Court of Common
Pleas of County, and was argued by counsel ; on considera-
tion whereof, it is ordered and adjudged by this Court, that the
judgment of the said Court of Common Pleas, so far as relates to,
4.
SCIRE FACIAS. 237
or, Supreme Court, recovered a judgment against the said C. D.
for the sum of dollars damages, and dollars costs, as by
the record thereof to us appears ; and which said judgment and
recognizance still remain in . full force and unsatisfied ; yet the
said C. D. hath not as yet paid the said costs and condemnation of
said Court nor hath he rendered himself, nor been rendered, into
the custody of the Sheriff of said County, for the same, according
to the form and effect of the said recognizance ; as we are given
to understand : We therefore command you to make known to the
said G. H. and E. F. that they appear before our said Court of
Common Pleas, or, Supreme Court, on the first day of their next
term, to show cause, if any there be, why the said A. B. ought
not to have execution against them for the damages, and costs
aforesaid, and further to do, 4*c. [Conclude as in No. 1.
238 SCIRE FACIAS.
Pleadings.
^x general principles in relation to Pleading, See, Declara-
tions in Assumpsit, ante. 20.
In England, and in some of the United States, it is customary
to file a declaration, upon the return of the scire facias. Such
declaration merely recites the writ, the plaintiff's appearance, and
the return, and concludes with a prayer for execution. Tidd. Pr.
1042. In our State, it seems unnecessary to file a declaration in
any case. The writ of scire facias must itself contain every
thing necessary to constitute a good declaration. 2 OJiio Rep.
240. Ohio Conds. 345. 4 Ohio Rep. 397. Ohio Conds. 841.
The declaration upon a sci. fa. is no more than a copy of the
writ, and a demurrer to the writ has the same legal effect and
operation as a demurrer to the declaration. 1 Paine. 652.
To a scire facias, the defendant may plead, nul tiel record.
This plea is proper in nil cases where there is a material variance
between the record and judgment, as set forth in the scire facias.
4 Salh. 598. So, a release of all actions, or executions. Co. Litt.
290, h. 12 Mass. 268. 2 T. R. 46. Or, that the debt has been levied
by execution. D?/er 299. 1 Salk. 211. Or, payment. \2 Mass.
268. But nothing can be pleaded in bar that might have been
pleaded in the original action. Cowp. 728. 1 Salk. 315. 4 Mass.
218. 12 Mass. 268. 8 Johns. Rep. 77. Stat. vol. 29, p. 74, § 88.
Nor, any thing contrary to the title on which the recovery was
obtained, or which shows the judgment only erroneous and voida-
ble. Com. Dig. PL (3 L.) 10. Nor, the pendency of a writ of
error, on the same judgment. 4 Mod. 247. Semh. contra. Show.
186. Ski7i. 590. To a scire facias, to revive a judgment in
ejectment, for the term and damages, the defendant cannot plead
a conveyance made by the lessor of the plaintiff, subsequent to the
judgment. 1 Peters. C. C. Rep. 446.
SCIRE FACIAS. 239
No. 1. Nul tiel record.
Sci. Fa.
* And the said C. D. come*
and detends, &c. and says, that the said A. B. ought not to have
his execution against the said C. D. for the damages, costs, and
charges aforesaid, because he says, * that there is no such record
of recovery against him, the said C. D. at the suit of the said A. B.
in manner and form as the aaid A, B. hath complained against him;
and this he is ready to verify: Wherefore, he prays judgment if
the said A. B. ought to have his execution aforesaid, &c.
By T, his Attij,
No. 2. Payment.
[Proceed as in No. 1, to the * that
the said C. D. after the recovery of the judgment aforesaid, and
before the issuing of the said writ, to wit, on paid to the
said A. B. the sum of .dollars in full satisfaction and dis-
charge of the said judgment; and this, &c. [Conclude as in No. 1.
No. 3, Death of principal, before
return of Ca. Sa.
[Proceed as in No. 1, to the * that
the said E. F. in the said judgment mentioned, before the issuing
of the said first writ of sci7-e facias, and before the return of any
writ of capias ad satisfaciendum against him, died, to wit, on
at — — and tliis, &.C. {a). [Conclude as in No. 1.
(a) Special Hail are not liable, wiien the principal dies after the return
of the ca. set. noil est, and before the return of tiie first sci. fa. executed, or
Becond, ;u7(7/. The Bail are discharged by the death of tlie principal. The
English rule, that if the principal die after tlie return of the ca. sa. non est,
the bail are charged, does not prevail in Ohio. 1 Ohio Rip. 35. Ohio
Conds. •^\.
240 SCIRE FACIAS.
Verdicts.
For the general principles in relation to Trials by Jury, and
Verdicts, See, ante. 51.
The Forms of Verdicts upon special issues, in scire facias, may
in general be taken, with slight alterations, from the like verdicts
in Assumpsit and Debt.
Judgments.
For the Forms of Judgments, on Demurrer, Non-suit, Abate-
ment, Default, &c. See, same titles, in Assumpsit.
No. 1. Judgment of Revivor, by Default.
Sci. Fa.
This day came the said A. B.
and the said C. D. being solemnly called, came not, but made
default : * Therefore, it is considered that the said A. B. have his
execution against the said C. D. of the damages and costs afore-
said, according to the force, form, and effect of the said recovery;
and also for dollars, his costs in this behalf expended.
No. 2. Judgment for plaintiff,
on nul tiel record.
A. B. )
vs. \ Sci. Fa.
CD.)
This day came the parties by
their attorneys, and the record aforesaid being inspected by the
SCIRE FACIAS. 241
Court, it sut^ciently appears, that there is such a record of reco-
very against the said C. D. at the suit of the said A. B. as he hath
alleged : Whereupon, it is considered, that the said A. B. have
his execution against the said C. D. of his debt, damages, and
costs, aforesaid : and also for dollars his costs in this behalf
expended.
No. 3. Judgment of revivor, by default against >
executor or administrator. ^
[Proceed as in No. 1, to the * —
Therefore, it is considered, that the said A. B. have his execution
against the said C. D. as such executor, or, administrator, as afore-
said, of the damages and costs aforesaid, to be levied of the goods
and chattels which M'ere of the said E. F. ot the time of his death,
in the hands of the said C. D. yet to be administered ; and also
for dollars his costs in this behalf expended, and also to be
levied of the like goods and chattels of the said E. F.
No. 4. The like to make defendants not served ^
with original process, parties to a >
Judgment. )
[Proceed ets in No. 1, to the * —
Thej'efore, it is considered, that the said E, F. and G. IL be made
parties defendants to the judgment aforesaid, and that said A. B.
have his execution against the said E. F. and G. H. of the dama-
ges and costs aforesaid : and also, &c. [Conclude as in No. 1.]
No. 5. The like, on suggestion of further breaches
after judgment on penal bond.
[Proceed as in No. 1, to the * —
Therefore, it is considered, that the said A. B. have his execution
against the said C. D. for his damages aforesaid, in form aforesaid
assessed ; and also for dollars, his costs in this behalf ex-
pended.
F"
842 SCIRE FACIAS.
No. G. The like, against special hail.
[Pi'oceed as in No. 1 , to the * —
Therefore, it is considered, that the said A. B. have his execution
against the said E. F. and G. H. of his debt, damages and costs
aforesaid ; and also for dollars, his costs in tliis behalf ex-
pended.
For the For7n's of Judgments upon Verdicts, &c. See, Judg-
ments in Assumpsit and Debt.
CERTIORARI. 243
Certiorari.
In England, a writ of certiorari is an original writ issuing out
of the Court of Chancery, or the King's Bench, or Common
Pleas, directed in the King's name to inferior judges or officers,
commanding them to certif}^ or to return the records of, a case
depending before them, to the end that the party may have the
more sure and speedy justice before the King, or such justices
as he shall assign to determine the cause. 1 Bac. Ahg. 349. F.
N. B. 245. Com. Dig. Tit. Certiorari. When it issues out of
Chancery, it is returnable in that Court, and the record when
brought up, if required in any other Court, must be sent to them
by mittimus. Tidd. Pr. 400. Peter sd. Ahg. 214.
In Ohio, the Supreme Court and Court of Common Pleas, may
issue this writ upon good cause shown. Stat. vol. 29, p. 2G, § 3. 4.
It lies direct from the Supreme Court to inferior jurisdictions, as
well as to the Court of Common Pleas, but will be allowed to
such inferior jurisdictions, only in extraordinary cases. 3 Ohio
Rep. 383. Ohio Conds. 618. In what cases, and under what cir-
cumstances, a certiorari will lie from the Supreme Court, to the
Court of Common Pleas, does not seem to bo very well settled.
Error lies upon final judgments, and the certiorari, seems to be
the appropriate remedy for correcting errors in the orders and
other acts of the Court, which cannot be reach(ul by the writ of
error. It is the proper remedy to correct the errors of the Com-
mon Pleas, upon an application to redeem lands sold for taxes.
3 Ohio Rep. 277. Ohio Conds. 573. 3 Ohio Rep. 301. Ohio
Conds. 587. {a). It is also the writ sent down from the Supreme
Court upon the suggestion of diminution in the record, in cases of
error. See, Error, ante. 215.
The most common use, however, of this writ, is to correct the
errors of justices of the peace, in the Court of Common Pleas. It
(o) For the form of a Certiorari from the Supreme Court to the Court of
Common Plc.nF, Sic. Sek, Select Wriln, No. 11.
244 CERTIORARI.
may be allowed in term, at any time before satisfaction of the
judgment, and within five years from its date. Stat. vol. 29, p.
180, § 57. It may also be allowed by any single judge in vaca-
tion, at any time within fifteen days, after the rendition of the
judgment. Ihid, § 56. It cannot be issued, however, until the
applicant shall execute a bond to the adv-erse party, with sufficient
surety, resident within the County, conditioned for the payment
of all costs and charges which have accrued, or may accrue on
such writ, together with the amount of any judgment that may be
rendered against the appellant, on the further trial of the cause,
after the judgment of the Court below shall be set aside or re-
versed ; and from the execution of such bond, the writ of certiorari
operates, in all cases, as a supersedeas to execution. Ihid, 55, 58.
The first step to be taken by a party aggrieved, is, to procure
from the justice of the peace a transcript of the proceedings be-
fore him, upon which errors are assigned, as in cases of writs of
error, ante. 210. 2 Ohio Rep. 127. Ohio Conds. 244. The
transcript is then presented to a .Judge, if in vacation, or to the
Court in term time. If a Judge in vacation allows the writ, he
makes the Tollowing endorsement on the back of the transcript :
Form of allowance of a certiorari by a judge in vacation.
Let a writ of certiorari issue in the within case, upon the ap-
plicant giving bond and security according to law.
E. F. Judge, <^r.
To the Clerk of Com. Pleas.
Dated, &c.
If the writ be allowed by the Court in term time, the entry
upen the journal is thus:
CERTIORARI. 24^
Form or allowance of certiokari bt rnr; coruT.
A. B. 1
vs. > Certiorari.
C. D. )
On motion to the Court by ?vlr. O.
counsel for the said A. B. and upon producing a transcript of the
proceedings in this cause before E. F. justice of the peace of the
township of and County of and the Court having in-
spected the same and the errors^ thereupon assigned, do order a
certiorari to be issued herein to the said E, F. returnable at the
next term, upon the said A. B. giving bond and security according
to law.
The transcript is then filed with Clerk, who enters the cause
upon the appearance docket, and takes the bond as follows :
Form of a Certiorari Bond.
Know all men by these presents, that we C. D. («) and E. F.
of the County of and State of Oliio, are held and lirmly
bound unto A. B. of, &c. in the penal sum of dollars, (h) to
the payment of which, well and truly to be made, we do hereby
jointly and severally bind ourselves, our heirs, executors, and
administrators, sealed with our seals, and dated this day of
A. D.
The condition of the above obligation is such, that whereas the
said C. D, hath this day obtained the allowance of a writ of certio-
rari to remove into the Court of Common Pleas, of said County
[a] It is not indispensably necessary, that the applicant himself should
execute the bond.
[b) The Clerk must exercise his discretion as to the amount of the pe-
nalty.
I>4G CERTIORARI.
of a certain judgment for the sum of dollars damages,
and dollars costs, lately rendered against the said C. D by
E. F. a justice of the peace within and for the said County of
in a certain action then pending before him> wherein the said C. D.
was plaintiff, and the said A. B. defendant : Now, if the said C. D.
shall well and truly pay all the costs and charges which have ac-
crued or which may accrue in the prosecution of said writ of
certiorari, together with the amount of any judgment that may
be rendered against the said C. D. on the further trial of said
cause, after the said judgment of the said justice of the peace
shall have been set aside or reversed, then this obligation shall be
void; otherwise, in full force and virtue in law.
C. D. [seal.]
E. F. [seal.]
Approved.
G. R. Clerh Com. Pleas.
The bond being executed and filed, a writ of Certiorari is issued
to the justice of the peace for another transcript.
Form of a Writ or Certiorari.
The State of Ohio County, ss.
To E. F. Esq. a justice of the peace within and for the township
of and County aforesaid. Greeting :
We command you, that a certified transcript of the record and
proceedings of a certain suit lately pending before you, wherein
A. B. was plaintiff, and C. D. was defendant, and wherein you on
rendered a judgment for the sum of dollars damages,
and dollars costs, in favor of the said A. B. and against the
said C. D. with all things touching the same as fully as the same
are now before you, you send, sealed and enclosed with this writ,
CERTIORARI. 247
to our Court of Common Pleas within and lor the said County of
on the first day of their next term.
Witness : T, T. President Judge of our said Court of Common
Pleas, this day of A. D.
Attest
F. C. Clerk.
This writ is taken to the justice of the peace, by tlie party or
his agent, who makes out a certified copy of the proceedings
before him, and in hke manner transmits the same, enclosed and
sealed up with the writ, to the proper Court.
After the writ has been issued, the plaintiff in certiorari, must
give written notice thereof, to the adverse party, his agent or
attorney, if resident in the County, and this notice must be per-
sonally served by reading, or by copy left at the dwelling house
or place of abode of such party ; but if the adverse party, his
agent or attorney, be not a resident of the County, the notice
must be given by advertisement posted up in three of the most
public places in the County. This notice must be given ten days
before the term of the Court to which the writ is made returnable;
but if that number of days does not intervene between the date
and return of the writ, the Court will make such order respecting
the notice to be given, as they shall deem proper. Stat. vol. 29,
p. 180, § 59, 60.
Form of Notice.
To A. B.
Take notice, that, at my instance, a writ of cei-tiorari has
been allowed and issued, to remove into the Court of Common
Pleas of County, a judgment rendered against me and in
your favor, on by E. F. a justice of the peace within and
for the township of and County aforesaid, for the sum of
248 CERTIORAIIJ.
dollars damages, and dollars costs; and that at the next
term of said Court, I shall pray a reversal of said judgment.
C. D.
Dated, &:c.
This notice may be served by the Sheriff or any other compe-
tent person.
Upon the return of the "writ and transcript by the justice of
the peace, the plaintiff in certiorari, within the time limited by the
rules of the Court, assigns errors anew upon the transcript so
returned, and the cause proceeds to a hearing, as in cases of writs
of error. For the Forms of assignment of errors. See, Error,
ante. 210.
Judgments.
If the judgment of the justice be affirmed, the Court will render
judgment against the plaintiff in certiorari, for the costs of suit,
and will direct the judgment of affirmance to be certified to the
justice; or will award execution to carry into effect the judgment
of the justice, in the same manner as if such judgment had been
rendered in the Court of Common Pleas; but where the judgment
of the justice is reversed, the Court will render a judgment against
the defendant in certiorari, for all costs wliich have accrued up
to the time of the reversal, but the cause is retained in the Common
Pleas for trial and final judgment, as in cases of appeal. Stat. vol.
29, p. 181, § 61, 62.
CERTIORARI. 24»-
JUDGRIENT OF AFFIRMANCE.
Certiorari.
This cause came on to be
heard on the transcript of the record and proceedincrs before E.
F. a justice of the peace within and for the township of and
County of and was arf^ued by counsel ; on consideration
whereof, it is ordered and adjudged by this < 'ourt, that the^ judg-
ment of the said E. F. be, and the same is hereby a'Tirmed, with
costs ; * and that this judgment be certified to the said E. F. th;U
further proceedings may be thereupon had according to law.
The like, with an awarw of execution upon justice's
judgment.
[^Proceed as in the last preced3nt to the * and it is further
ordered, that execution issue herein agiinst the said C. D. as well
for the costs aforesaid as for the sun of djiiars tho a-n ^jat
of tile said judgment of tlie said E. F. amounting in ail to
dollars^
Judgment of Reversal.
Certiorari
This cause came on to be
heard upon the transcript of the record and proceedings before
E. F. a justice of the peace within and for the township of
and County of and was argued by counsel ; on considera-
tion whereof, it is ordered and adjudged by this Court, that the judg-
G«
250 CERTIORARI.
ment of the said E. F. be, and the same is, hereby reversed, with
costs ; and it is further ordered, that execution issue herein against
the said A. B. as well for his costs aforesaid, as for his costs before
the said E. F. amounting in all to dollars : And it is further
ordered, that this cause be continued for trial and final judgment.
The judgment being thus reversed, the plaintiff in the Court
below becomes plaintiff in the Court of Common Pleas, a decla-
ration is filed, and the cause proceeds on to trial, as if originally
commenced in the Court of Common Pleas.
CHANCERY. 261
Chancery.
No uniform system of Chancery pleadings has been established in
the United States. Courts of equity in the United States are created
by the Federal and State Constitutions and Statutes ; and by these
their general powers are conferred and their jurisdiction limited.
Subject to such limitations, the pleadings and proceedings in our
Courts of Equity, are in general regulated by the rules and prac-
tice of the English Court of Chancery ; especially as to the modes
of proof, of trial and relief By the constitution of Ohio, the
Supreme Court is vested with original and appellate jurisdiction,
and the Court of Common Pleas with original jurisdiction, in
Chancery, in such cases as shall be directed by law. Art. III. §
2. 3. By the Statute of Ohio, Vol. 29. j9. 81. § 1, 2, 3. the Court
of Common Pleas is vested with jurisdiction in all cases, proper-
ly cognizable by a Court of Chancery, in which plam, adequate,
and complete remedy cannot be had at law ; and the Supreme
Court is also vested with concurrent jurisdiction with the Court
of Common Pleas, in all cases properly cognizable by a Court of
Chancery, where the title to, or any contract in relation to land
is in question, or the sum or matter in dispute, exceeds one
thousand dollars in value ; and apijcllate jurisdiction, in all cases,
regularly brought before them, from the Chancery dicisions of the
Court of Common Pleas. The power is likewise conferred upon
the Sui)romc Court and Courts of Common Pleas sitting as Courts
of Chancery, to make rules and regulations, for the government
of proceedings had before them ; and they are, in all things, to be
governed by the known usuages of Courts of Equity, except where
it may be otherwise ])rovidc(l by law. Ihid. The Statute directing
the mode of i)rocceding in C'hancery, vol. 29. ]>. 81. has in many
respects entirely changed the course <»f jjrocccdings, and, in gene-
ral, has greatly simplified the practice as known and followed in
Courts of Equity in England, and in some of the United States :
but still the great question of Jurisdiction, the several kinds ajid
252 CERTHDRARI.
distinctions of Bills, the peculiar mode of proof, trial and relief,
together with the innumerable details of practice, are in a great
measure governed by the "known usages of Courts of Equity."
Some of the leading features of Chancery practice, as modified
by our Statute, and by usuage, will be found in the subsequent
pages.
CHANCERY. 253
Of the several kinds or Bills.
The several kinds of Bills arc usually classed under three gene-
ral heads. I. Original Bills, which relate to some matter not before
litigated in the Court by the same persons standing in the same
interest. II. Bills not original, which are either an addition to, or
a continuance of an original Bill, or both. III. Bills, which though
occasioned by or seeking the beneht of a former Bill, or of a deci-
sion made upon it, or attempting to obtain a reversal of a decision
are not considered as a continuation of the former Bill, but in the
nature of origmal Bills.
Original Bills are subdivided into Bills praying relief, and Bills
not praying relief. An original Bill praying relief, may be. 1.
A Bill praying the decree or order of the Court toucliing some
right claimed by the person exhibiting the Bill, in opposition to
some right claimed by the person against whom the Bill is exhibit-
ed. 2. A Bill of Interpleader. 3. A Bill praying the writ of
Certiorari to renove a cause Irom an inferior Court of Equity,
(a) An original Bill not praying relief, may be, 1. A Bill to per-
petuate testimony. 2. A Bill of Discovery.
Of Bills not original, which are either an addition to, or a con-
tinuance of, an original Bill, or both, are, 1. A supplemental Bill.
2. A Bill of revivor.. 3. A Bill both of revivor and supplement.
Of Bills in the nature of original Bills, there are, i. A cross
Bill. 2. A Bill of Review. 3. A Bill in the nature of a Review.
(b) 4. A Bill to impeacli a decree upon the ground of fraud. 5.
A Bill to suspend the operation of a decree. 6. A Bill to carry
a former decree into execution. 7. A Bill in the nature of a Bill
of Revivor. 8. A Bill in the nature of a supplemental Bill. Mit.
PL 31. 1). A Petition for a re-hearinff.
(a). No instance is known where this Bill has been resorted to in the
State of Ohio.
(b) The only distinction between the Bill of review and the Bill in the
nature of a Bill of review, in England, is that the one is brought before,
and the other after, the decree is enrolled. This distinction docs not e.xist
in our practice. See post. JiilU of Review.
25* CHANCERY.
Original Bills.
In the English treatises upon Chancery practice, a Bill is usually-
described as consisting of nine parts. 1. The address. 2. The
names and descriptions of the plaintiffs. 3. The statement of the
facts. 4. The charge of confederacy. 5. The pretences and
charges. 6, An averment that the acts complained of are con-
trary to equity. 7. The prayer for an answer, or interrogating
part. 8, The prayer for relief. 9. The prayer for process. Coop.
Eq. 9. Mad. Ch. 166. Several of these constituent parts of a
Bill are not considered absolutely necessary. Thus the fourth,
fifth, sixth and seventh parts, as above enumerated, are in general
considered mere form, and may be omitted. Redes. Tr. Ch. PL
46. Coop. Eq. 10. Still however, in an English Bill, which is
paid for by the nwnher of words it contains, the nine constituent
parts are, in general, set forth in regular and ample form ; and Bills
are rarely found, comprised in so few as fifteen sheets, the length
prescribed by an order of 1 ^ord Bacon : an order which has long
since become obsolete. It is a standing complaint in England,
that Chancery pleadings run into a great deal of unnecessary verbi-
age. 1 Ves. Jun. 350. Till a comparatively modern period, the Eng-
lish Bill contained very little more than the stating part, with a
simple prayer, that the defendant might answer the matters con-
tained in the Bill, and for relief. Mad. Ch. 168. Lord Eldon
speaks with approbation, of this plain and simple mode of pleading.
"Formerly the Bills contained little more than the stating part.
I have seen such a Bill ; with a simple prayer, that the defendant
may answer all the matters aforesaid, and then the prayer for relief.
I believe the interrogating part had its birth before the charging
part. Lord Kenyon never would put in the charging part ; which
does little more than unfold and enlarge the statement." II. Ves.
574.
In Ohio there is little or no uniformity in framing the Bill. Most
of tlie younger members of the profession, fearful of the conse-
quences of a deviation, closely adhere to the nine constituent parts
of the English Bill. Further experience shows this practice to be
useless, troublesome and expensive ; and as a consequence, it not
CHANCERY. 255
unfrequently happens, that the other extreme is fallen into, Oind form
is too little regarded or entirely overlooked. Our Statute, vol. 29,
p. 81. ^ 4. provides, that all applications to the Chancery side of
the Supreme Court or Court of Common Pleas, shall be by peti-
tion, setting forth the nature and grounds of the defendant's claims.
This is almost a Uteral description of the English Bill, in its prim-
itive form, which was nothing but a petition to the King, and by
him referred to the Chancellor as the keeper of his conscience.
The definition given to the English Bill, until a comparitively mod-
ern period of time, is perhaps strictly applicable to what a Bill
ought to be. in the State of Ohio: A petition to the proper Court
containing a statement of the facts of the complainant's case, fol-
lowed by a prayer to grant suitable relief, and for that purpose that
the suhpcena may issue to bring before it the parties complained of.
Coop, Eq. 29. 4.
256 CHANCERY.
t
FORMS OF ORIGINAL BILLS.
No. 1. Bill for. a Specific Performance, Vendee
AGAINST Vendor.
To the Supreme Court, (a) or, Court of Common Pleas, within
and for the County of and State of Ohio, in Chancery
sitting :
A. B. of, &c. {b) * represents that C. D. of, &c. (c) (and whom
your orator, (d) prays may be made defendant to this Bill) on or
(a) The Bill may be originally filed in the Supreme Court, in all cases,
where the title to, or any contract in relation to land is in question, or the
Bum or matter in dispute, exceeds one thousand dollars in value. Slat. ■ool.
29, p. 81, 5 2. In practice, however, the Bill is rarely filed in the Supreme
Court, in the first instance. That Court holds but one session in each
County annually, and a cause will in general be brought to a final hearing
Booner in the Supreme Court, by filing the Bill in thi; Common Pleas, and
appealing from its decision, than to commence in the Supreme Court. See,
Appeal^ post.
(6) Where the complainant is an infant, say, "A. B an infant under the
age of twenty-one years, by E, F. his next friend, represents, ^c."
(c) The complainant may insert as many defendants in his Petition as he
pleases, though they claim undc" different titles; but if any of the defend-
ants disclaim, the complainant will be decreed to pay costs, unlers under
special circumstances. Stat. vol. 29, p. 82, J 9. In cases where it may be
necessary to make the heirs of any decedent defendants, and the names of
air, or part of them, are unknovvn, and the complainant annexes to his peti-
tion an affidavit of his want of knowledge of the names or residence of such
heirs, proceedings may be had against them, without naming them, and
the Court will make such order in relation to notice, as they may deem
proper. Stat. vol. 29, p. 82, J 10. The affidavit may be in the following
form : " The nhove named A. B. makes oath and says, that he has no know-
ledge of the names or residence of the heirs of C. D. the decedent in the above
Bill named. Sworn, lie County
of at the Court House, on the day of instant, or
next ensuing (a) to answer a petition in Chancery (b) cxliibited
against him by A. B. and this he shall in no wise omit, under the
(f/) Tliis form is prefcrihpd bySt:itntP. Vol. 2\). p. S''- . { 6. It. rut vnt, Imiw^
ever in all c;isps l>e lilem/li/ fitilowed. 'I Ik; t'^ms «.f loarl fur tlic cn^u-
inir year, nre estiililithod nt each hp.'^sidn o* the Lfgi>Ialiire : wlieii 1 herelnrp,
n IJili is fileil in tlie winter vacation, before flin tfrnis of Court are e^^tal.-
lislied, it is iinp')-sil)le to make the si/')/J2/a return ible on a dc. (^ir,r. as lo the (diji-ct of llie 'Mhoii-md
(ioll ir |)enilty" in the above (orm. Wiil an aoliun lie Jor it, or is it in I r
rorc.m.
[b) In Djwcr, say, « a Poliiioa hi Dower."
Il
206 CHANCERY.
STJBPOSNA.
penalty of one thousand dollars ; and have you then there this
writ, (c)
Witness : T. T. Chief Judge or, President Judge, of our said
Court, at the Court House, this day of A. D.
Attest.
» ^ T. D. Clerk, of Sup. Court, or, Coin. Pleas.
If there be several defendants, who reside in different Counties,
the Clerk of the Court in which the Bill is filed, may issue subpoe-
nas into the several Counties, in which such defendants are sup-
posed to reside. These subpoenas are to be directed to the proper
officer in each County, and are served and returned as in other
cases. If any or all of the defendants reside out of the State the
complainant may cause personal service of a subpoena, with a
copy of the Bill. Stat. vol. 29 J5. 82 § 7.
The subpoena is served by delivering a copy thereof to the de-
fendant, or leaving a copy at his dwelling house or usual place of
abode: and the officer serving the same, must endorse on the ori-
ginal, the time and manner of service ; and where the service is
made out of the State, the return must be verified by oath or af-
firmation. Stat, vol. 29, p. 82, § 8.
(c) \Miere an injunction has been allowed and bail given, the following
endorsement must be made on the back of the sifftpcewa," Injunction allowed
and bail given. T. D. Clerk." See, Injunctions.
(^HANCERY. 267
NOTICE BY PUBLICATION.
In cases where the title to, or boundaries of land, or contracts
concerning lands and tenements, are drawn in question, and any or
all of the defendants, are non-residents of the State, the Bill may-
be filed in any County where the lands lie, and the Court will
direct the manner of giving notice to the defendants. Stat. vol. 29,
j>. 82, § 11. By the 7th section of the same act it is provided,
that where any or all of the defendants reside out of the State,
the complainant may cause personal ser\ace of a subpoena, with a
copy of the Bill; or he may cause notice of the pendency of the
Bill, containing a summary statement of the object and prayer
thereof, to be published six consecutive weeks, in some news-
paper printed in the County W'here the Bill is filed, if there be any,
and if not, in some newspaper printed in this State, of general
circulation in the County. From these two provisions it seems that
the Court has no power to direct the manner of giving notice,
except in cases, where the title to, or boundaries of land, or con-
tracts concerning lands or tenements, are drawn in question; and
that in all other cases, the non-resident must be personally served
with a subpcEna and copy of the Bill, or notice must be published
for six weeks. In cases of the latter class, the Bill may be filed
at any time, and notice by publication immediately given, without
any order of Court ; and where six weeks intervene between the
filing of the Bill and the next term, the proof of the publication
may be made at the first term, and the final decree taken at the
.second term. The form of notice in such cases may be as fol-
lows :
Form of Notice, without an OiiDnu of Court.
C. D. and E. F. are hereby notified, that on A. B. of, (fee
filed in the Court of Common Pleas of tiie County of and
State of Ohio, a Bill in Chancery against the said C. D. and E. F.
268 CHANCERY.
NOTICE BY PUBLICATION.
the object and prayer of which Bill is, [here state the substance of
the claim and of the prayer of the BiW] ; and the sa'd C. D. and
E. F. are further notified, that unless they appear, and plead,
answer, or demur to the said Bill, within sixty days after the next
term of said Court, {a) the said A. B. at the term next after the
expiration of said sixty days, will apply to sad Court to take the
matters of the Bill as confessed, and to decree thereon accordingly.
S. T. Sol for CompU.
Dated, &c.
At the term next after the publication of notice, a copy of the
notice as published, is produced in Court, and the publication
thereof proved. The proof is, in general, made by the affidavit
of the printer or publisher of the newspaper, attached to a copy
Qf the notice.
FoBM OF ArriDAViT or Flxlication-
Fcrsonally appeared, in open Court, T. W. and made solemn
oath, that the notice hereto attached, was published for six con-
secutive weeks next after in a newspaper called and
that said newspaper was, during that time, (a) printed in the
County of [the County in which the bill was filed.']
T. W.
Attest
F. C. Clerh
(,i) If ilirrn hn not six wpcks hctwpfn the 'nVng of the Bill, nnd tlie
7.r;rM< rn. ti.e (ii'i'iidiuits iiui.-l f(Mintifir«] to Mppear at llie second term,
jiiiil lilt' fnriii i.f tlie riMtice mu-l viry accortlititrlv.
(h) if rid ii(nv,-.[)i|i r bo priiut'd iii tlio ('ourity, thit fict must bf« stiterl
in tlif' iiffiil ivir, a.- well as tlie fict, that tlio riinvspaper ii vvliich the notice
was published, was in general circulation in tlie Cjunty where the Bill was
filed.
CHANCERY. 269
NOTICE BY PUBLICATION.
This affidavit is filed with llic otlicr papers in the cause, and
the fjllowing entry is made upon the journal :
In Chancery.
This day came the complainant,
and proved publication of notice, and thereupon, on his motion,
this cause is continued.
In all cases, however, where the title to, or boundaries of land
or contracts concerning lands or tenements, are diawn in question,
application must be made to the Court, in the first instance, to
direct the manner of giving notice to the absent defendants. The
Court, in this matter, exercise a sound discretion, but in general
order the complainant to give notice in some newspaper, of the
pendency of the suit, and of the substance of the Bill, smd the
prayer thereof, (a).
Order of Counx tor publication or Notice.
In^Chancery.
On motion the Court, by Mr. N.'
counsel for the plaintiff, it is ordered, that notice of the pendency
of this suit, and of the substance of the Bill, and prayer thereof,
(d) The Cmirl ilo imt,, in llic firt^t iiista-co, roquirc proof of the non-
rcKitlonce of iht- cli-roiKliiiits, and liie order for i)uhliLulion is qnitc ;i in;ittcr
of course; baton the final hearing.j such non-residence must be established
to the satisfaciion of the Court.
87» CHANCERY.
50TICE BY PUBWCATIOJf.
be published for consecutive weeks, in newspaper, pre-
vious to the next term of this Court, to which time this cause is
continued.
Form of Notice under an Order of Court.
In pursuance of an order of the Court of Common Pleas of the
County of and State of Ohio, at their term A. D.
C. D. and E. F. are hereby notified, that on A. B. of, &c.
filed, in said Court, a Bill in Chancery, against the said C. D. and
E. F. the object and prayer of which Bill is, [here insert the sub-
stance of the Bill and prayei-] ; and the said C. D. and E. F. are
further notified, that unless they appear and plead, answer, or
demur to the said Bill, within sixty days after the next term of
said Court, the said A. B. at the next term after the expiration of
said sixty days, will apply to said Court to take the matters of the
Bill as confessed, and to decree thereon accordingly.
S. T. Sol. for Complt.
Dated, &c.
The publication of this notice is proved at the following term,
by affidavit attached to a copy of the notice.
Form of Affidavit of Publication.
Personally appeared, in open Court, T. W. and made solemn
oath, that the notice hereto attached, was published for six con-
secutive weeks next after the day of A. D in
newspaper.
T. W.
Sworn to, retended agreement in the said
Bill mentioned, and as to any relief thereby prayed touching such
deed and agreement, this defendant doth plead in bar, and for plea
says, that neither he, this defendant, nor any person by him law-
fully authorized, did ever make or sign any contract or agreement
in writing for making or executing any deed or other instrument
of conveyance to the said A. B. of the said premises, or any of
CHANCERY. 279
them or any part thereof, or to any such effect, as by the said Bill
i-s suo"o-estecl, or any memorandum or note in writing of any agree-
ment whatever, for or concerning, the seUing or conveying by deed
or otherwise, the said premises, or any of them, or any part there-
of, to tliG said A. B. and therefore this defendant doth plead the
matter a^ircsaid in bar, to so much and. such parts of said Bill as
seeks to compel this defendant to execute a deed of said premises
to the said A. B. pursuant to the said pretended agreement; and
also as to any an J all relic:' thereby prayed touching said deed and
agreohrenl ; and prays to be hence dismissed with his costs.
■ J. W. So', for Deft.
FoR?.i 07 Affidavit of th" tkvtii of Plea.
C. D. the above named defendant makes oath and says, that
the matters and things set forth in the foregoing plea are true.
C. D.
Sworn, &c.
The plea is filed with the Clerk, and if the complainant con-
ceives the plea to be delective either in iorm or substance, he must
not file a replicatiun, but t!~ie cause is brought to a hearing, upon
the pica aloue. It on argument tlie plea is allowed, the suit is not
t'.ercby terminated, icr the complainant may li'e a replication,
and take issue upon the facts coniained in tiie plea ; whereupon the
del'cndant must make proof of the truth of his plea by depositions as
in case of an answer. If he fails in tliat j)roof, s(j tliat at the hearing
the plea is held to be no bar, the c )mp!ainant is not to lose the ben-
efit ol the (hscovcrv sought by the bill ; but the Court will order
the defendant to he examined upon interrogatories. New. Cfi. 45.
Mit. PL 210, 241. The pica is sometimes ordered to stand for
an answer. iYcw;. Cli. 45. After a replication to a plea, the suf-
ficiency of the plea cannot be questioned. If it is proved to be
true, however defective either in form or substance, the suit is bar-
red so far as the plea extends. 3. P. Wms. i)4, 95. Mit. PL 241^
«78 CHANCERY.
PLEAS.
A ]j;ca is a special answer, showing or relying upon one or
more things as a cause why the suit should be eltlicr dismissed,
delayed or barred. Like a demurrer, it may be either to the whole,
or to any part oi" the Bill. It must have the signature of counsel
to it, and if il is a plea in bar of matter in pais it must be'upon
the oath of th;; defendant: but if the plea is to the jurisdiati ;n of
the Court, or in disability of the person of the plaintiff, or if it is
a plea in bar of matter of record in the Court itself, or in any
other Court, it need not be upon oath. Coop. E]. 228, 231, If
the complainant conceives the plea to be good, though not true,
he may reply, and take issue upon it, and proceed as in case of
answer. Stat. voL 29, p. 85 § 18, If the defendant proves the
truth of the matter pleaded, the suit, so far as the plea extends, is
barred ; even though the plea is not good -cither in form or sub-
stance. The replication is an aJmission of the goodness of the
plea, and its truth is the only point at issue. Mit. PL 211, 4 P.
TVms. 94. 95. New. Ch. 45.'
Plea of the Statute of Frauls to a Parol Agreement.
The Plea of C. D. defendant to the Bill of A. B. complainant.
And the said C. D. comes and as to so much of the said
Bill as seeks to compel this defend mt, to execute a deed of the
lands and tenements in the said Bill mentioned, or any of them, or
any part thereof, pursuant to the ))retended ngreement in the said
Bill mentioned, and as to any relief thereby prayc^d touching such
deed and agreement, this defendant doth plead in bar, and for plea
says, that neither he, this defendant, nor any person by him law-
fully authorized, did ever make or sign any contract or agreement
in writing for making or executing any deed or other instrument
of conveyance to the said A. B. of the said premises, or any of
CHANCERY. 279
them or any part thereof, or to any such effect, as by the said Bill
is suggested, or any memorandum or note in writing of any agree-
ment whatever, for or concerning, the selling or conveying by deed
or otherwise, the said premises, or any of them, or any part there-
of, to the said A. B. and therefurc this defenJant doth plead the
matter aforesaid in bar, to so much and such parts of said Bill as
seeks to compel this dcfondaat to execute a deed of said premises
to the said A. B. pursuant to the said pretended agreement; and
also as to any and ail relic:" thereby prayed touciiing said deed and
agreenTenl ; and prays to be hence dismissed with his costs.
J. Vv'. So', for Deft.
FoK?.i OP Affidavit of th" TRrrn of Plea.
C. D. tiie above named defendant makes oath and says, that
the matters and things set forth in the foregoing plea ai'e true.
C. D.
Sworn, &c. -
The plea is filed with the C!crk, and if the complainant con-
ceives the plea to be de!ective either in fi)im or substance, he must
not file a replicatiun, but tlie cause is l)rought to a hearing, upon
the {)lca aloiie. I; on argument the plea is allowed, the suit is not
t'..e)"cl)y tenuinatcd, icr ihe CwUi] lainant may file a replication,
and take issue upon the facts contained in the plea ; whereupon the
defendant must make proof of the truth of his plea by depositions as
in case of an answer. If he fails in that proof, so that at the hearing
the plea is hekl to be no bar, the c :)nip!ainant is not to lose the ben-
efit oi the (hscoverv sought by the bill ; but the I ourt will order
the defendant to be examined upon interrogatories. New. Cli. 45.
Mit. PL 240, 241. The plea is sometimes ordered to stand for
an answer. NevK Cli. 45. After a replication to a plea, the suf-
ficienaj of the plea cannot be questioned. If it is proved to be
true, however defective cither in form or substance, the suit is bar-
red so far as the plea extends. 3. P. ^Vms. 04, 95. Mit. PL 241_
280 CHANCERY.
Ar.'SWET..
Tho dofondant in his answer, is boun:l to admit or deny all the
fac'.s stated in the Bill, with all their material circauistances, with-
out any special interrogatories in the Bill for that purpose. Ho
must answer specially, to the speciiic clrarii;es in the Bill,, and a
general answer, though it anuuuts t j a fall denial, is not su Iicient.
1 Johns, Ch. 103. Mit. Fl. 2115. He must answer directly and
precisely to every material allegation in the Bill and not by way
of negative pre^-nant. The changes are not to be answ^ered lilorallv:
the dex-ndant must confess or traverse the substance of each
cliar^e positively. Ifa lact is charged to be witliin the d.fendant's
knowledge, he must answer positively, and not to his remem-
brance or belief; and as to facts not within his own knowledge, he
must answer as to his information or belief, not as to information
or hearsay, without stating his belief one way or the other. 1
Johns Ch. 103. 3 lb. 247 2 Vcs, Jun. 454. But when o. defen-
dant answers, that he has not any knowledge or belief of a fact
charged in the Bill, he is not bound to declare his belief one way
or the other. 3 Jolins. Ch. 297.
The answer always begins with its title, specifying which of
the defendants it is the answ^er of, and the names of the plaintiffs
in the cause in which it is filed as an answer. Where there are
several defendants they should answer Jo/?i%, unless their titles
are different. Coop. Eq. 322. 2 Ves. Jun. 328.
The reservation to the defendant of "all and all manner of
benefit of exception, &2." is unn^C33ar^^ R^dss. Tr. 249. Coop.
Eq. 323.
The defendant must swear or affirm to his answer, before a
Judge, Justice of the Peace, Master Commissioner m Chancery,
or in some Court of Record within the State. Stal. vol. 29, p.
85, § 23.
A corporation aggregate, answer under their comm Dn seal, and
not upon oath; bat where a discovery is wanted, it is usaal to
make their Clerk a party. New. Ch. 52.
CHANCERY. 5&1
ANSWER.
The answer must, in general, be signed by the defendant ;
which is required, to identify the instrument which he has
sanctioned by his oath, and more particularly for the purpose of
rendering a conviction of perjury more easy. Ne.w, Ch. 52.
A married woman, generally defends jointly with her husband,
but if she claims a separate interest in the matter in question, and
in some few other cases, she may defend separately from her hus-
band by an order of Court for that purpose. Where it was clear
that she married merely to defraud creditors, she was ordered to
defend as if sole. 1 Dick. 410. Coop. Eq. 109.
A great diversity of practice prevails in this State in relation to
infant defendants. In some of the circuits, no process whatever
is served upon the infant, or notice given to its relatives. Some
person, generally an attorney not interested in the cause, is ap-
pointed guardian ad litan, on motion of the complainant. This
guardian, without consulting the infant or relatives, files a formal
answer, merely alleging his ignorance of the matters in contro-
versy, any very frequently without oath. No further attention is
given to his trust by the guardian, and a decree generally passes
sub silcntio against the infant. In other circuits a greater degree
of strictness is required, but there seems to be no settled uniform
rule upon the subject. The supreme Court in, 3 Ham. 302. Ohio
Conds. 608, held that it was error to d(^crce against infant defendants
until a guardian ad litem should be appointed, accept the appoint-
ment, and either appear or be served with process. In England, if the
infant reside within twenty miles of London, the guardian is ap-
pointed by the Court ; for which purpose the infant and the per-
son intended to be appointed guardian personally attend in Court
when such person, if no well grounded objection is made to him,
is appointed guardian to the infant to answer and defend the suit :
if the infant reside above twenty miles from London, the guardian
it appointed by commission, under which any two of the persons
to whom the commission is directed, upon having the infant person-
ally produced before them, appoint a proper person to be iiis guar-
dian, which appointment they certify totiie Chancellor. New. Ch.
bl. The guardian is also appointed by commission when the in-
fant is out of the Kingdom. G Mad. 28. An infant defendant
Ll
282 CHANCERY.
ANSWER.
.abroad cannot have a guardian assigned to put in his answer on
motion, but a commission must go. 1 1 Ves. 533. The testamen-
tary guardian, may be assigned guardian ad litem for an infant
abroad, to answer and defend the suit. Dick. 31. It may per-
haps be questioned, whether this practice does not, to some ex-
tent at least, form a part of "the known usages of Courts of Equi-
ty" as recognized by our statute, vol. 2i), ^.81, § 3.
Words of course preceedixg an answer.
The joint answer of C. D. and E. F. defendants to the Bill of
A. B. complainant :
The said C. D. and E. F. now come and for answer to the
said Bill of the said" A. B. say, that, &c. [Here insert the body of
the answer- and conclude thus : And the said C. D. and E. F
deny all fraud anclr combination wherewith they stand charged and
pray to be hence dismissed with their costs, &c. {a).
CD.
E. F.
T. S. Sol. for Defts.
(a) When it is necessary fiir the defendant to bring a ne»v parfy before
the Court, he may state it in his answer, an. I insert interrogitories for "him
to answer, and tliereupon a suhpcena will be sent out, and other piocted-
ings" be had, as in case ol otlier defendants.
The defendant also, a'ter lie has tiled his answer, mny exhibit interroga-
tories to the coiiiplainaiit, which he is bound to answer on oiitii or affirma-
tion, and such answer is received as evidence in the case, in the s-ime man-
ner and to the same cflect, as the defendant's answer to the Bill; and if
the complainant shall not answer such interrogatories by the lime ap-
pointed by the Court, he will be considered in contempt, and his Bill may
be dismissed with costs. Slat. vol. 29. p. 65, 86, .\ 27, 29.
CHANCERY, 283
ANSWER.
The like, by guardian ad litem.
The joint answer of C. D. raid E. F. infant defendants to the
Bill of A. B. complainant ; by X. Y. their guardian ad litem.
And the said C. P. and E. F. by X. Y. their guardian ad litem
now come and for answer to the said Bill of the said A, B. say,
that, &c.
C. D.
E. F.
T. S. Sol. for Defts.
By X. Y. their guardian ad litem.
Form of affidavit to truth of ajv'swer.
The State of Ohio County, ss.
I, C. D. being duly sworn, de-
pose and say that all the several matters and things which are
stated in the foregoing answer as from the information of others,
I believe to be true, and thai all the several other matters and
things therein set forth are true in substance and in fact.
C. D.
Sworn to and subscribed before me this day of A. D. —
T. X. Jus. Peace, or, Master in Clnj. ^-c.
The answer is filed with the Clerk, and the complainant must file
exceptions, or a replication within thirty days after the expiration
of the time limited fur filing the answer ; otherwise the cause will
stand for hearing on Bill and Answer Stat. vol. 29, p. 85, § 22.
284 CHANCERY.
EXCEPTIONS TO ANSWER.
If the defendant does not, in his answer, admit or deny all the
material facts and allegations stated in the Bill, according to the
best of his knowledge, remembrance, inform.ation and belief, the
the answer is said to be insufficient and may be excepted to by
the comp-ainant on that account. 3Iit. Fl. 75. 1 Johns. Ch. 76,
4GG, 7. 3 Johns. Ch. 297. 5 Johns. Ch. 247. 2 Ves. Jun. 454.
As a general rule, exceptions cannot be filed after a replication;
under special circumstances, however, the Court may permit the
replication to be withdrawn and the exceptions received. Mit. PI.
75, 76.
Form of Exceptions to Answer.
A. B. )
vs. > In Chancery.
C. D. and E. F. )
Exceptions to the answer put in by the defendants to the Bil]
of the complainant :
1. That the said defendants have not answered and set forth,
according to the best of their knowledge, remembrance, informa-
tion, and belief, whether, &c.
2. That the said defendants have not, in manner aforesaid, an-
swered and set forth, whether, &c.
In all which particulars, the complainant insists, that the said an-
swer of the said defendants, is evasive, imperfect, and insufficient,
wherefore, he excepts thereto, and prays that the said defendants
may be compelled to amend the same and put in a full and suffi-
cient answer to the said Bill.
By S. T. his Sol.
CHANCERY. 28&
EXCEPTIONS TO ANSWER.
The exceptions are filed with the Clerk, and if upon the hearing
the answer is adjudged insufficient, the defendant must file a fur-
ther answer within thirty days after such adjudication, unless the
Court allow further time, and on failure thereof, the bill may be
taken as confessed. The second answer may also in like manner
be excepted to, and if found insufficient, the defendant will be de-
creed to pay double costs, and further time to answer will not be
allowed, but a decree pro confesso may be taken, as if no answer
had been filed. If the exceptions to the answer be overruled, the
complainant will be decreed to pay costs, and if the answer be
adjudged insufficient, the defendant will be decreed to pay them.
Stat, vol 29, p. 85, § 23, 24, 25.
286 CHANCERY.
REPLICATION.
When the parties proceed to a hearing on Bill and Answer only,
without a replication, the answer will be taken to be true in all
points; and no evidence can be received to contradict the answer,
except matters of record, to which the answer refers, and is pro-
vable by such record. Stat. vol. 29,/). 8G, § 33. The Court, how-
ever, will sometimes permit a replication to be filed, after the
cause is called for a hearing, when it has been omitted by accident
or mistake. When by mistake, a rephcation has not been filed,
and yet witnesses have been examined, the Court has permitted
the replication to be filed nunc pro tunc. Mosely. 296. Mit. PL
267. It was formerly the practice to reply specially to an answer
offering new matter. This led to a rejoinder, surrejoinder, adsur-
rejoinder, &c. &:c. The inconvenience, delay, and unnecessary
length of pleadings, arising from these various allegations on each
side, occasioned an alteration in the practice, and special repHca-
tions, with all their consequences, are now out of use. Mit. PL
256. Prac. Reg. 215.
Form of General Replication.
A. B. J
vs. > In Chancei-y.
C. D. and E. F. )
And the said A. B. comes
and says that the matters and things set forth in his said Bill of
complaint, are true, in substance and in matter of fact, and that
the matters and things set forth in the answer of the said C. D.
and E, F. contrary thereto, are untrue ; and this he is ready to
make appear, as by this Court shall be directed.
By T. D. his SoL
The Replication is filed with the Clerk, and the cause thus
stands at issue without a rejoinder. Stat. vol. 29, p. 86, § 34.
CHANCERY. ^^37
EXAMINATION OF WITNESSES AND PROCEEDINGS PREPARATOKY TO
A HEARING.
The English practice in relation to the examination of witnesses,
and the preparation of the cause for a hearing, is almost entirely
abolished by our Statutes and Rules of Court. In England, as a
general rule, no testimony can be taken, until the defendant has
appeared to rejoin gralis, or until the return of a subpoena to
rejoin, and service on the defendant or his Clerk in Court; or, in
other words, until the cause is regularly at issue. The cause
being thus at issue, the witnesses, if they reside within twenty
miles of London, are examined at the examiners office in London;
if they reside more than twenty miles from I^ondon, they are
examined under a commission in the nature of a dedimus potesta-
tem. All witnesses are examined upon special interrogatories,
framed and drawn up by the counsel of the respective parties,
and annexed to the commission. The depositions are reduced to
writing, by the examiner or commissioners, and are not to be dis-
closed by any of the persons before whom they were taken, or by
their Clerks, but are to be closely kept by the examiner, or com-
missioner, until publication passes, when the depositions may be
opened,, and copies given to the parties. As a general rule, no
depositions can be taken after publication passes, but the cause is
set down forthwith for a hearing. The cause is set doiim for a
hearing, by entering it upon a kind of docket, called the cause-
book, :uid giving notice thereof to the adverse party. The cause
being thus set down for a hearing, a suhpa;na to hear judgment
and hearing, is issued, and served upon the opposite party, and
then tlie cause is taken up in its course, argued, and disposed of
Hind. '105. 1 Turn. Cfi. 92, 93. Mit. PL M9, 150. The prac-
tice in Oliio, in all these particulars, is essentially different. De-
positions of witnesses, may be taken," in any part of the United
States, or territories thereof, at any time after the commencement
of the suit, by giving the proper notice to the adverse party. (See,
Depositions.) As a general rule, however, depositions ought not
to be taken until after the cause is at issue ; for until that time, it
288 CHANCERY.
cannot in general be known, what particular facts will be disputed
or denied. Cases, however, not unfrequently occur, when it is
highly convenient to take depositions at an early stage of the
proceedings, and this course is clearly warranted, by constant
practice, as well as by statute. Stat. vol. 29, p. 124, § 1. If de-
positions thus takeuj should be found on the final hearing, to be
irrelevant or immaterial, the Court will exercise a discretion in
decreeing the costs of them against the party taking them. All
depositions are to be filed with the Clerk, and may be opened by
him, at the request of either party, or his counsel. Rules of Prac-
tice for the Circuit, adopted 1823, No. 4. Ohio Conds. 3. A
witness may be examined viva voce, at the hearing, for a particu-
lar purpose, as to prov-e exhibits, &c. (1 Johns. Ch. 559) but, in
general, all the proof in Chancery cases, should be reduced to
writing, and is properly taken before a Master in Chancery,
though it may be taken in the same manner as depositions in cases
at law.
BILLS TO PERPETUATE TESTIMONY.
The mode of proceeding upon bills to perpetuate testimony, is
particularly pointed out by statute. Vol. 29, p. 91, § 03, 04, 05,
00, 07. It is, however, a remedy not often resorted to, especially
as the act providing a mode for perpetuating testimony in certain
cases {vol. 29, p. 127) affords, in general, adequate relief in a more
simple and expeditious manner.
CHANCERY. «80
BILLS OF DISCOVERT.
This Bill is commonly used in aid of the jurisdiction of other
Courts, as to enable the plaintiff to prosecute or defend an action
at law, or any other legal proceeding of a nature merely civil,
before a jurisdiction which cannot compel the production of deeds,
&c. or any discovery on oath, from the defendant himself 1 Ves.
205. It may be brought to aid the jurisdiction of a foreign Court.
Mit. PL 150, note (s). The Bill must state the matters concern-
ing which a discovery is sought, the interest of the several parties
in the subject, and tf.e plaintiff's right to the discovery wanted.
An affidavit is required to be annexed to the Bill, only where it
prays, in addition to the discovery, such relief as the plaintiff
would be entitled to at law, if the deeds and writings were in his
possession. 3 ^Qtk. 132. Coop. Eq. 60. But a Bill for a discovery
merely, or which only prays the delivery of deeds or writings,
does not require an affidavit. 2 P. Wms,A^\. Coop. Eq. 60. 4
Johns. Ch. 294. By Statute, vol. 29, p. 75, § 97, the Supreme
Court and Court of Common Pleas, in trials of actions at law,
are authorized, on motion, and on ten days notice thereof, to re-
quire the parties to produce books and writings in their possession
or power, which contain evidence pertinent to the issue, in cases,
and under circumstances, where they might be compelled to pro-
duce the same by the ordinary rules of proceeding in Chancery;
and if a plaintiff fails to comply with such order, he may be non-
suited, or if a defendant fails to comply, judgment may be rendered
against him by default. This provision has, in a great measure,
superseded the use of Bills of discovery to enforce the delivery
of deeds and other papers. The most frequent use of a Bill of
discovery, in this State, is in aid of the jurisdiction of a Court of
law. Such Bill, it seems, may be filed, before the action at law
is commenced, or pending such action, but after a verdict, the
party comes too late for a discovery. 1 Vem. 176. Mit. PL 151,
3 Johns. Ch. 351. If a Bill seeks discovery in aid of the juris-
diction of a Court of law, it must appear that such aid is clearly
necessary, and the discovery material ; for where the facts depend
Mm
290 CHANCERY.
BILLS OF DISCOVERY.
on the testimony of witnesses, and the Court of law can compel
their attendance, Chancery will not interfere. 1 Ath. 388. 1
Ves. 205. 2 Ves. 451. 1 Johns. Ch. 543. The Bill is most com-
monly filed by a defendant, in an action at law, and an injunction
is usually prayed for, to stay all proceedings, until answer. In
such case, the Bill must charge certain facts to be within the
knowledge of the defendant, and that a disclosure from him is
necessary ; and the Bill or affidavit, to support the injunction,
must state the belief of the plaintiff, that the answer would fur-
nish discovery material to the defence, and that the plaintiff has
not the means of obtaining the facts, without such discovery. 1
Johns. Ch. 409. 19 Ves. 223. 2 Munf. 290. But it seems, that
when the Bill is for discovery merely, and no injunction asked for,
and there is a demurrer to the Bill, the Court will not examine so
nicely as to the materiality of the discovery. ^ Johns. Ch. 409.
In such case, whether the discovery b3 material or not, is chiefly
for the plaintiff to judge, for he must pay the costs of the applica-
tion. 1 Bro. C. C. 69. In a Bill for discovery merely, there is,
of course, no decree, except for costs, which are always to be paid
by the complainant. Mit. PI. 1G3. The defendant is compelled
to answer, and the answer may be excepted to, in the same man-
ner as in cases of Bills for relief. See, Exceptions to Answer,
ante. 284. Under circumstances, the Court will give leave to
convert a Bill of Discovery into a Bill for relief. 2 Russ. 561.
There is no instance of a Bill of Discovery being allowed to be
amended by adding parties as plaintiffs. 2 Mer. 74. Under cer-
tain circumstances, the Court, on Bill of discovery, will direct a
search to be made in boxes of an absent party, in the hands of a
defendant as depositary. 2 Prica. 177. 2 Price. 48.
The formal parts of a Bill of discovery are substantially the
same, as in cases of bills for relief, except the prayer for relief is
entirely omitted. See, Forms of Original Bills, ante. 256.
The Bill is filed with the Clerk, and process issues as in cases
of Bills for relief. See, ante. p.2G5.
CHANCERY. 201
SUPPLEMENTAL BILLS.
This species of Bill is generally filed for the purpose of bringing
before the Court some event which hiis happened subsequent to
the filing of the orignal bill, and before decree. It is also some-
times filed for the purpose of stating events which have happened
subsequent to the decree. 5 Ves. 737. Coop. Eq. 74. A sup-
plemental bill must state the original bill and proceedings thereon;
and if the supplemental bill is occasioned by an event subsequent
to the original bill, it must state that event, and the consequent
alterations with respect to the parties ; and, in general, the supple-
mental bill nuist pray, that all the defendants may appear and
answer the charges it contains. Where, however, a supplemental
bill is merely for the })urpose oi' bringing ibrmal parties before
the Court as defendants, the defendants to the original bill need
not, in any case, be made parties to the supplemental bill. Coop.
Eq. 83, 84.
Form of Supplemental Bill.
To the Court of Common Tleas within and for tiie County of
and State of Oliin, in Chancery sitting :
A. B. of, &:c, represents, that on your orator exhibited
his original bill of comi)laiut in this Court against C D. tiiereby
j)rayiiig that the said (/. J3. might be decreed specifically to per-
forin his agrc.H^mcnt with yoiu- orator, tou(;hing the sale of the farm
and premises in the said bill mentioned, and to make, execute,
and deliver to your orator, a deeil therefor, your orator being
rea(l\' and willing to do every thing on his part recjuired to be
performed, in pursuance of said agreement. Your orator further
re})resents, that the said C. \). a})peared and put in his answer
to the said original bill, as hy the said original bill and answer,
now remaining in this Court, will mure fully ai)pcar.
292 CHANCERY.
SUPPLEMENTAL BILLS.
Your orator further represents, that since the fihng of said
original bill, the said C. D. hath caused an action of ejectment to
be commenced upon the law side of this Court, for the purpose
of ejecting and turning your orator out of possession of the said
farm and premises; which said action of ejectment is still pending:
That, your orator has requested the said C. D. to desist from
proceeding in the said action of ejectment, but the said C. D. re-
fuses so to do, and still continues the prosecution thereof.
Your orator therefore prays, that a writ of subpasna may be
issued against the said C. D. that he may be compelled to answer
all and singular the premises ; that he may be restrained by the
injunction of this Court, from proceeding in the said action of
ejectment, and also from commencing any other action or pro-
ceeding at law for the purpose of turning your orator out of the
possession of the said farm and premises; and that your orator
may have such other and further relief in the premises, &c.
S. T. Sol. for Complt.
This bill must be sworn to, as in other cases of injunctions ;
(See, Injunctions) and is then filed with the Clerk, who issues
process, ^^c. as in other cases.
CHANCERY. 293
BILLS OF REVIVOR.
A bill of revivor must state the original bill, or rather who were
the plaintiffs and defendants to it, and what its prayer or object
was, and the several proceedings thereon, and the abatement.
It is then necessary to state so much new matter, and no more,
as is requisite to show how the party becomes entitled to revive,
and charge that the cause ought to be revived, and stand in the
same condition, with respect to the parties to the original bill, as
at the time the abatement happened ; and it must pray that the
suit may be revived accordingly. Coop. Eq. 69, 70.
Bill of Revivor upoiv the death or Plaintiff.
To the Court of Common Pleas within and for the County of
and State of Ohio, in Chancery sitting :
A. B. of, &c. represents, that on or about one C. D. late
of, &c. but now deceased, exhibited his original bill of complaint
in this Court against E. F. as defendant thereto, stating as therein
is stated, and praying that, &c. \^Insert the substance of the prayer
of the original MIL] That the said E. F. appeared and put in his
answer to the said bill, to which the said C. D. put m his replica-
tion, and afterwards depositions in said cause were taken by both
parties. That afterwards the said cause was referred to the master
commissioner of this Court to report generally thereupon, and that
some proceedings have been had before the said master, but no
report has yet been made in said cause; and that the said C. D.
on or about departed this life intestate ; that your orator
has been duly appointed his administrator, and has thereby be-
come his legal representative ; that the said suit and proceedings
having become abated by the death of the said C. D. your orator
is, as he is advised, entitled, as the personal representative of the
said C. D. to have the said suit and proceedings revived against
ii94 CIIANCEllY.
BILLS OF KEVIVOR.
the said E. F. and to liavc the said cause in the same state and
condition as the same was in at the time of the death of the said
C. D.
Your orator therefore prays, that a writ of subpoena may be
issued against the said E. F, and that he may answer all and sin-
gular the premises ; and that the said suit and proceedings, may
stand revived, and be in the same condition as the same were in
at the time of the death of the said C. D. or that the said E. F.
may show good cause to the contrary, &lc.
By T. D. his Sol.
The bill is filed with the Clerk, who issues process, &c. as in
cases of original bills.
In England, it is usual, after appearance, to apply to the Court
for an express order to revive the proceedings, but under our
statute, such an order seems unnecessary, and it is rarely, if ever,
applied for. Upon the return of process "served," or upon proof
of publication, the party is considered in Court, and the cause
proceeds on to a final hearing, as if no abatement had taken place.
Bill of Revivor upon death of Defendant.
To the Court of Common Pleas, within and for the County of
and State of Ohio, in Chancery sitting :
A. B. of, &c. represents, that on or about your orator ex-
hibited his original bill of complamt in this Court, against C. D.
stating as therein is stated, and praying, that, &c. [/iere insert the
substance of the pirajer of the original biW] ; that the said C. D.
was duly served with process, but departed this life, intestate, not
having put in his answer to the said bill, and leaving E. F. and
G. H. his heirs at law, and who have l^een duly appointed his ad-
ministrators ; that the said suit and proceedings having become
abated by the death of said C. D. your orator is, as lie is advised.
CHANCERY. 29o
BILLS OF REVIVOK.
entitled to have the said suit and proceedings revived against tiic
said E. F. and G. H. as the legal representatives of the said C. D.
and to have the said cause put in the same condition as the samo
was in at the time of the abatement thereof.
Your orator therefore prays, &c. '[Conclude as in the last jpre-
cedcnt.']
The method of reviving by bill, in case of the death of the par-
ties is now rendered unnecessary by the Statute of 1831, as to all
cases commenced since the passage of that act. By the provisions
of this Statute upon tlie death of either of the parties, the executor,
administrator, heir, legatee or devisee, of the decedent is authorized
to make himself a party to the proceedings, upon motion ; and if
he neglects or refuses so to do, the Court will order a citation to
issue, returnable at the next term ; and if the citation be disreirard-
ed, the C'ourt \vill proceed in the same manner, as upon default, in
case of a bill of revivor, ^tat. vol. 29, j). 91, § 52. p. 10, 11,^
64, 05, G(>, (57, 08, 71, 72. The citation may issue at the term
next succeeding the death of the parly, and is granted, as a matter
of course, upon motion. Stat. vol. 29, ;;. 70, § (>(>. "\Yhen the rep-
resentative of the deceased party appears voluntarily, the entry
on the journal may be thus.
Suggestion of pfatii, and Representative made Party.
A. B. \
vs. > In Chancery.
C. D. \
The death of C. 1). L)cing this
day suggested : on motion of E. F. his executor, &c. by jMr. N.
liis counsel, it is ordered, that the said E. F. be made defendant
in the place of the said C. D.
296 CHANCERY.
Order for Citation.
A. B. ]
vs. > In Chancery.
C. D. )
The death of C. D. bein^ this day
suggested; on motion of by Mr. N. his counsel, it is ordered,
that a citation issue against E. F. exccutoj; &c. of the said C. D.
to make him defendant, in place of the said C. D. returnable at the
next term.
Form of Citation.
The State of Ohio, County, ss.
To the Sheriff of said County, Greeting :
We command you, that you cite E. F. executor, &c. of C. D.
to appear on the first day of the next term of our Court of Common
Pleas within and for the said County of before our Judges of
the same Court, at the Court House in said County, and make
himself party defendant, in the place of the said C. D. in a certain
suit in Chancery now pending in our said Court, wherein A. B. is
complainant and the said C D. was defendant, and have you then
there this writ. (a>.
Witness, T. T. President Judge of our Court of Common
Pleas, aforesaid, this day of A. D. .
Attest.
F. C. Clerk.
The citation is served upon the party in the same manner as
a subposna, and upon the return of such service, the cause pro-
ceeds to a hearing in the same manner, as if a bill of revivor had
been filed, and the subpoena returned served.
(o) This form is equally applicable to actions at law, by substituting the
words "a/ /<»t*," in place of the words "in Chancery.'"
CHANCERY. 297
BILLS OF REVIVOK A>U SUPPLEMENT.
This species of bill is resorted to, when not only an abatement
has taken place in a suit, but defects are to be supplied, or new
events stated, which have arisen since the commencement of the
»uit. Coop. Eq. 84. This bill is readily formed by combining
the forms of a bill of revivor and supplemental bill, ante. p. 291, 293.
CItOSS BILL.
A cross bill, presupposes that a bill has been filed by the defend-
ant in a suit against tiic plaintiff, respecting the matter in question in
that bill ; and in such case it is a, weapon of defence. Sometimes
however, a cross bill is brought by one defendant against his co-
defendants, in such depending suit, where they have opposite claims
which the Court cannot determine upon in the bill already filed ;
but in such case the original plaintiff must be made a defendant
to the cross bill. A defendant is sometimes of necessity obliged
to resort to a cross bill, in cases where by the rules of pleading in
equity, he would not be able to avail himself of the matter of his
defence in any other way. Thus if the matter of defence arises
after the cause is at issue, as that the plaintifl'has given the defendant
a release, or that there has been an award made on a reference alter
issue joined, which at law may be pleaded, puii darrein con-
tinuance; a defendant in equity cannot avail himself of either by
plea or answer, and therefore must resort to a gross bill. 4 East.
413. 9 East. 82, Coop. Eq. 80, A cross bill is a defence, and
so connected with the original bill, tiiat they arc always consider-
ed but as one cause. 5 ^l//i-. 812. The IMaintitfin the cross bill
must put in his answer to the original bill, before the defendant to
the cross bill can be compelled to answer. Stat. vol. 29,/>. N(;, §
29, A cross iiill taken y>/v; cunfcsso, \w:\y be ordered to be read at
the hearing of the original cause, 2 Mad. 43. It is an invariable
rule in England, ihat a cross bill must be brought befirc publica-
tion is passed in the original cause, and not after, unless the j)lain-
tiff in the cross bill will go to a hearing upon the depositions
already published. I Ktj. Ca. 79. Coop. Eq. 37. There is
298 CHANCERY.
CROSS BILLS.
nothing in our practice analogous to the passing of publication in
England, and at what time a cross bill cannot be filed seems never
to have been settled by our Supreme Court,
The form of a cross bill, is substantially the same as an original
bill. It should state the parties to the original bill, the prayer or
object of it, the proceedings thereon, and the rights of the party
exhibiting the bill, w^hich are necessary to be made the subject of
cross litigation. Coop. Eq. 88.
CHANCERY. 209
BILL OF REVIEW
• Bills of review are in the nature of a writ of error, at com-
mon law, and are brought to review, alter or reverse decrees in
Chancery. Formerly writs of error lay directly from the Su-
preme Court, to the final decrees of the Court of Common Picas,
and this was the remedy often resorted to, in order to correct the
errors of the Court of Common Pleas. The statute authorizing
writs of error in such cases was repealed in 1831, and a bill o^
review is now the only remedy by which decrees in Chancery
can be rc-cxamincd, and reversed or affirmed. Any person who
was party to the decree, his heirs, executors or administrators, may
file a bill, to review the proceedings in which such decree was
rendered, at any time within five years, after the rendition of the
decree. If the person entitled to such bill, be an infant, feme covert,
non compos mentis, or im}>risoned, the bill may be filed within
five years after the removal of such disability. Stat. vol. 29. p.
90. § 57. If the bill be brought upon errors in law appearing in
the body of the decree, or proceedings themselves, it may be filed
as an original bill in Chancery, as a matter of course ; but if it be
brought upon the discovery of new matter, since the liearing on
the former decree, it can be filed only by leave of the Court to
which it is cxiiibitcd. Ihid. § .58.
In England, it is a well settled rule, that on a bill of review for
errors hi lair, the Court cannot enquire into the sujficiency of the
^Yoo^ o{ any fact, but the original decision of the Court upon the p/^
feet of evidence, is to be taken as conclusive. 1*» Yes. 348. 2JuIiiis.
C/i. 17, Ves. 173. Coop. Eg. 89. This rule seems to be founded
upon, or rather grows out of, another settled principle, that the
final decree must present a history of the case, and must contain
a///// slatrinenl of all the fads on which the decision of the Chan-
cellor is founded. Hind. 129. I liar. Cli. 418. In our state
however, an entirely dinbrent practice prevails. Errors may be
assigned upon the record generally, and the Court will examine
the whole case, and deride as if the matter were open before them,
in the same situation, as when die decree was pronounced. It is
300 CHANCERY.
BILL OF REVIEW.
not necessary that the facts proved, or principles decided should
be inserted in the decree ; and the Court, upon a bill of review,
will examine all the exhibits, proofs, &c. in order to determine
whether the original decree be erroneous or not, 2 Ohio Rep. 372.
Ohio Conds. 405. (a)
The bill must recite the substance of the original bill and an-
swer, exhibits and depositions, and the proceedings thereon, and
must state the points in which the party conceives himself aggriev-
ed. 3 Ch. Rep. 45. 2 Ohio Rep. 372. Ohio Conds. 405. No error
can be examined but what, is assigned in the bill. Coop. Eq. 95. 1
Har. 140. Vin. Ahg. 414.
It is discretionary with the Court to give leave to file a bill of
review on the discovery of new evidence. 2 Cox 3. 1 Ch. Ca. 152.
The rule of Lord Bacon, as declared in his ordinance. No. 1. (and
Lord Hardwicke says the rule has never been departed from) is,
that a bill of review, upon matter of fact, must be upon special
leave of the Court, and upon oath of the discovery ot ^^new mat-
ter, or evidence which hath come to light after the decree, and
could not possibly he had or used at the time when the decree pas-
sed." If the party might have used the new proof when the
decree was made, it is not a sufficient ground for a bill of review.
3 Johns. Ch. 128. Though the plaintiff is confined to errors on the
(a) The case here referred to wns decided, and the practice upon bills of
review as here gtat^d, originated under t!ie act of 1810, which has been
repealed, by a subsequent statute; and doubts have been entertained,
whether under our present statute, vol. 29, p. 81, the final decree should
not, as in England, find all the material facts, and the decision of the Court
upon the ejfect of evidence, be held conclusive. It must be admitted, that
the practice under the act of 1810, is extremely loose and inartificial. At
law the finding of a jury, after judgment, is conclusive, and it seems some-
what inconsistent, to hold, tliat the finding of a Chancellor, who is gener-
ally more competent, and proceeds with more deliberation, and with bet-
ter lights, should conclude nothing; and that his judgment, upon a given
state of facts, should be subject to re-examination, by every succeeding
Chancellor, until the statute of limitation interposes a bar. The practice,
however, under the act of 1810, as recognized in the case above refered to,
has very generally prevailed under the present statute, and seems to be so
far established as to render necessary the interposition of the Legislature,
or a decision of the Supreme Court, in order to effect a change, should a
change be considered desirable.
CHANCERY. 801
BILL OF REVIEW.
record, the defendant is at liberty to allege every matter relevant
to his defence, whether in or out of the record, by way of re-
lease, &c. to prevent disturbing the decree. And when pleaded
the Court is to judge whether the matter alleged, is sullicicnt to
preclude the plaintiff from the review he seeks. 2 Bio. F. C. 107.
1 Ch, Ca. 122. Parties to the original decree must all be made
parties to the bill of review. Ibid.
A bill of review cannot be brought after a demurrer allowed to
a former bill of review. 1 Vent. 441. Where the original de-
cree was by consent of parties, a bill of review will be dismissed.
3 Swan. 658. A bill of review cannot be iilcd by the party in
favor of whom the decree was pronounced. 2 Free. 182. But, See,
3 Swa7i. 625.
FORM OF BILL OF REVIEW UPON ERRORS IN LAW.
To the Court of, &c. [The Court wJiicli pronounced tlic ori-
ginal decree. '\
A. B. of, &c. represents that on or about ozie C. D. of, &c.
filed his original bill in tiiis Court, against your orator, setting
forth, &c. [Here insert the substance of the original bill, exhibits,
^c] and afterwards on or ab(xit your orator put in his
answer to said bill setting forth, &c. [Here insert the substance
of the original answer, exhibits, ^^c.'] to which answer the said
C. D. afterwards replied generally, and thereupon the following
depositions were taken, to wil, [Here insert the depositions] {a)
and afterwards on or about the said cause coming on to be
heard in this Court, it was ordered, adjudged and decreed as fol-
lows, to wit. [Here insert the original deci-ee.'] * And your orator
avers that he is aggrieved by the said proceedings and decree*
(rt) In like manner, state all the interlocutory orders, Master's Report,
continuances, kc. See, ante- 300 , n. { In Chancery.
C. D. )
Exceptions taken by the complainant
to the report of T. X. Master in Chancery, made in tiiis cause,
and bearing date, &c.
1. For that the said Master in his said report has stated,
that, &c.
2. For that the said Master in his said report has certified*
that, &c.
316 MASTERS IN CHANCERY.
In all which particulars, the said complainant excepts to said
report, and appeals therefrom to the judgment of this Court.
The Master Commissioner is often required to make sales of
real and personal property under an interlocutory order. For the
form of such orders, See, Interlocutory Decrees and Orders. The
Master's report in such cases, is as follows:
Report of Sale by Master Commissioner.
A. B. \
vs. > In Chancery.
CD.)
The report of T. X. Master in
Chancery, who was ordered to make sale of the lands and tene-
ments in the bill mentioned, by an interlocutory decree, rendered
at term, A. D. .
The said T. X. in pursuance of said interlocutory decree, pro-
ceeded on the day of A. D. by the oaths of A. S.
E. S. and T. S. three disinterested freeholders, resident within the
County of \tke County where the lands are situate'\ to cause
the lands and tenements in the said bill mentioned to be appraised,
and which were accordingly appraised, by said freeholders, at the
sum of dollars, as per copy of said appraisement herewith
filed ; and thereupon the said T. X. having first given public notice
of the time and place of sale, by advertising the same for
days [at least thirty days] in the a newspaper printed in the
said County of and in general circulation therein, did sell the
said lands and tenements, at public auction, on the day of
A. D. between the hours of and to F. W. for
the sum of dollars, being more than two-thirds of the ap-
praised value thereof. See, not-e (a) next page.
All which is submitted.
T. X. Master Comm.
Dated, &c.
MASTERS IN CHANCERY. 317
The Master's report of the pubUcation of the notice of the time
and place of sale, is not sufficient evidence of such publication,
but a copy of the notice with an affidavit of publication is neces-
sary. The form may be thus :
Form of Affidavit of Publication.
Personally appeared, in open Court, T. W. and made solemn
oath, that the notice hereto attached, was published for days
next after in a newspaper called and that said news-
paper was, during that time, printed in the County of ,
T. W.
Attest
F. C. Clerk.
(rt) This form can be readil}^ varied to meet the sale of personal property.
■\Vhen no newspaper is printed in ihe County, the notice niu.st be published
in a newspaper iii general circulation in such County, and by putting up an
adveriisenieut upon the Court house door and in five other |)ublic places in
the County, two of which must be put up in the township whore such lands
and tenements lie. Stat. vol. 29, p. i(l4, \ 14. In such cases, the above
form must be varied lo meet the state of facts.
318 NE EXEAT
Ne exeat.
The Supreme Court, or any Judge thereof, and the Court of
Common Pleas or any President Judge thereof, may grant writs
of ne exeat, upon bill filed, with an affidavit annexed of the truth
ctf the allegations. Stat. vol. 20, p. 87, 39. This writ is consid-
ered in the nature of equitable bail, and will not, in general, be
granted upon a legal demand, nor under circumstances which
would not entitle the plaintiff' to bail at law. For the general
principles regulating this writ. See, 8 Ves. 503. 14 Ves. 2G1. 1
Jac. and Walk. 405. 2 Jac. and Walk. 213. 15 Ves. 443. 18
Ves. 353. 1 Fes. and B. 129, 371. 1 Turn, and Russ. 332, 342.
1 /. C. R. 1, 3G4. 6 /, C. R. 138. 2 /. C. R. 75, 412. 7 J. C.
R. 189.
If the writ be granted, the Court or Judge will direct to be en-
dorsed thereon, the amount in which security shall be given to the
complainant. Stat. vol. 29, p. 87, § 39.
Form of Writ Ne exeat Republica.
The State of Ohio, County, ss.
To the Sheriff of said County, Greeting :
Whereas, it is represented to us, in our Court of Common
Pleas, within and for the said County of sitting in Chancery,
on the part of A. B. complainant, against C. D. defendant, among
other things, that he the said defendant, &c. [Jiere set forth the
particular cause of complaint'] and designs quickly to depart with-
out the limits of this State, we therefore hereby command you,
that you without delay, cause the said C. D. personally to come
before you, and give sufficient security in the sum of dollars,
\the sum fixed by the Court or Judged that he the said C. D. will
not depart beyond the limits of this State, without the leave of our
said Court; and in case the said C. D. shall refuse to give such se-
NE EXEAT. 310
curity, then you are to commit him to the jail of said County, there
to be kept in safe custody until he shall do it of his own accord, or
be otherwise legally discharged ; and when you have taken such
security, you are forthwith to make and return a certificate thereof
to us, in our said Court of Chancery, under your seal, together
with this writ.
Witness, T. T. President Judge of our Court of Common
Pleas, aforesaid, this day of A. D. .
Attest.
F. C. Clerh.
If the defendant, by his answer, satisfies the Court that there is
no reason for his restraint, or gives security to perform the decree,
the writ may be discharged. Stat, vol, 29, 7?, 87, § 40.
320 FINAL DECREES.
FINAL DECREES.
In England, a final decree must contain a full statement of all
the facts upon which the decision of the Chancellor is founded.
It is not common to express the reasons upon which the decree is
founded, although in extraordinary cases it is sometimes done ;
but it is essential that all the facts should be embodied in the de-
cree. When there is evidence adduced in the cause, it is not
enough that the decree says, "on reading the prcJofs," it is decreed,
&c. ; but it should be, "on reading the proofs it appeared thus and
thus," and therefore it is decreed, (fee. 2 Ch. Ca. 161. 7 Ves. 373.
This rule however does not prevail in our practice, and it is held
by our Supreme Court, to be unnecessary to insert in the decree,
either the facts proved, or principles decided. 2 O/iio Rep. 372.
Ohio Conds. 485. In a bill of review for errors in law, the assign-
ment of errors, is not, as in England, limited to the decree alone,
but may extend through the whole record, and thus the Court may
enquire into the sufficiency of the proof of any and every fact in
the cause. Ibid. It is superfluous therefore, to allege in a decree,
that the Court find any fact or any state of facts to be true,
or to make any recital whatever, except so far as may be necessary
to render the decree intelligible. The facts upon wliich the court
pronounce their decision are all matters of record ; and a recital
of their existence or non-existence, of their truth or falsity, of the
equity of the parties, or the want thereof, can give no additional
efficacy to a decree, (a)
BILL DISCUSSED, WITH COSTS, UPON FINAL HEARING.
In Chancery.
This cause came on to be heard upon the bill, answer, i^epli-
cation, Master's report, testimony and exhibits, and was argued
[a) See, ante. 300. ?i. (a.)
FINAL DECREES. 321
by counsel ; on consideration whereof the Court do order and
decree, that the said bill stand dismissed, with costs ; and without
prejudice^ and that the said A. B. pay the same within days,
or in default thereof that execution issue therefor as upon judg-
ments at law. {a)
No. 2. Injunction dissolved and bill dismissed, with costs,
UPON final hearing
This cause came on to be heard upon the bill, answer, repli-
cation, Master^s report, testimony and exhibits, and was argued
by counsel; on consideration whereof, the Court do order and de-
cree, that the injunction herein before granted stand dissoh^ed, that
the said bill stand dismissed with costs, and that the said A. B. pay
the same within days, or in default thereof that execution
issue therefor as upon judgments at law.
No. 3 Injunction dissolved, bill dismissed, and decree for
defendant, for the amount of judgment at law,
WITH costs and penalty.
This cause came on to be heard upon the bill, answer, repli-
cation. Master's report, testimony and exhibits, and was argued by
counsel ; on consideration whereof, the Court do order and decree,
that the^injunction hereinbefore granted stand dissolved, that said
bill stand dismissed, with costs, and that the said A. B. pay to the
said C. D. within days, the sum of dollars, (/>) together
with the costs of this suit, or in default thereof that execution is-
sue therefor, as upon judgments at law.
(n) If the decree be renileriMl in the Supreme ("ourt, and a mamlatc bo
awiirdcd, say, "and it is further onlcrcd tliat a ppecial mandate be sent
down to the next Court of Common I'lcas, of this County, to carry thia
decree into execution." It is necessary to insert llic words, "and without
prejudice," as in tliis precedent, if the plaintitf wisiies to litijjatc the mat-
ter dc iioco. The Court exercises a discretion in dismissing tlie bill, tvilli
or wilhout, prejudice.
(/)) If the decree be taken in tlic Court of Common Plr.ax, this blank is
to be filled witli the aggregate sum, of the debt or damages interest and
322 FINAL DECREES.
DECREE UPON ANSWER, &C. AGAINST ONE DEFENDANT, AND -prO
confesso against another.
This cause came on to be heard upon the bill of the complain-
ant, answer of the defendant C. D. and the exhibits and testimony,
(the defendant E. F. still failing to appear, plead, answer or
demur to said bill) and was argued by counsel ; on consideration
whereof, it is ordered and decreed as follows, to wit: I. That said
bill be taken for confessed as against the said E. F. and that the said
E. F. within days execute and deliver to the complainant a
good and sufficient deed in fee simple with covenar>ts of general
warranty for the lands in said bill mentioned. II, That the said C.
D. within days pay to the said complainant the sum of •
dollars, the residue of the purchase money in said bill mentioned,
and in default thereof that execution issue therefor as upon judg-
ments at law. III. That each of said defendants within days
pay one half the costs of this suit. '
Decree for specific performance.
This cause came on to-be heard upon the bill, answer, replication
exhibits and testimony, and was argued by counsel, on consider-
ation whereof, it is ordered and decreed, that the said C. D. with-
in ' days, shall convey the premises in the bill mentioned to the
said A. B. in fee simple, ivith covenants of general warranty, and
that within days the said C. D. pay the costs of this suit, and
in default of such payment that execution issue therefor as upon
judgments at law.
costs recovered at law and interest since the rendition of the judgment,
with. five per cent, penalty on the amount of the debt or damages and in-
terest which may have accrued : If however, the decree be taken in the
Svpreme Court, upon an appeal by the complainant from a decree of the
Court of Common Pleas, the blank is to be filled, with the debt or damages,
interest and costs, which were recovered at law, and interest since the ren-
dition of the judgment, with ten per cent, penalty on the debt or damages, and
interest accrued in favor of the respondent. Siat, vol. 29, p. 88, § 44, 4-5.
FINAL DECREES. 323
The like, 2^ii' INTERLOCUTORY DECREES AND ORDERS.
No. 4. Injunction dissolved, and cause continued.
This cause came on to be heard upon the defendants answer to
the plaintiff's hill, or, upon tJie ■plaintijf"' s replication to the de-
fendants answer, and was argued by counsel ; on consideration
whereof, the Court held the equity of the plaintiff's bill to be de-
nied by the defendant's answer, and thereupon do order, that the
injunction hereinbefore granted, stand absolutely dissolved ; where-
upon, on motion to the Court, by Mr. S. counsel for the defendant?
it is ordered, that this cause be continued until next term, at the
defendant's costs.
No. 5. Order, nunc pro tunc.
On motion to the Court by Mr. O. counsel for the plaintiff, it is
ordered that the following order, to wit, " That, &c." made in this
cause, at the last term of this Court, but by mistake omitted to
be entered, at that term, be entered now as of the last term.
No. 6. Order to jiake an Election.
On motion to the Court by Mr. S. counsel for the defendant, and
it appearing to the Court that the plaintiff is prosecuting the de-
fendant both at law and in this Court, for one and the same matter;
it is therefore ordered, that the plaintiff, within days, make
his election m which Court he will proceed; and if he shall elect
to proceed in this Court, then his proceedings at law are stayed
by injunction; but if he shall elect to proceed at law, or in default
of such election by the time aforesaid, then the plaintiff's bill is
from thenceforth to stand dismissed, with costs.
No. 7. To ADD A Defendant to a Bill.
On motion to the Court, by Mr. O. liis counsel, the plaintiff has
liberty to insert into his bill the name of X. Y. with apt words
to charge him as defendant thereto.
INTERLOCUTORY DECREES AND ORDERS. 32'
No. 8. Order for the discharge of a suitor arrested
ON leaving the Court.
Complaint being this day made to the Court by Mr. O. counsel
for the plaintiff" in this cause, that on yesterday the plaintiff" A. B.
on leaving this Court, was arrested; and the said A. B. being pre-
sent in Court, in the custody of the Sheriff" of this County, who
arrested him, and the said A. B. being sworn and examined, and
deposing that h3 is the plaintiff" in tliis cause, and that on his return
and before he got home, he was arrested by the said Sheriff" at the
suit of H. Y. for a debt of dollars, and the writ being pro-
duced in Court ; it is thereupon ordered, that the said A. B. be
forthwith discharged out of custody.
Receiver appointed with liberty to let the Estate with
THE approbation OF THE CoURT.
On motion to the Court by Mr. O. counsel for the plaintiff", it is
ordered, that this cause be referred to E. F. Master Commissioner
of this Court, to appoint a proper person to be receiver of the rents,
and profits of the real estate mentioned in the bill, and to allow him
a rcas()nai)le compensation for his care and pains tiicrein; such per-
son so to be appointed receiver, first giving security to be approved
by the said Master, duly and annually to account for and i)ay, what
he shall so receive, as this Court siiall direct ; and the tenants of
said estate are to attorn and pay their rents in arrear and growing
rents to such receiver, who is at liberty to let the said estate from
time to time, with the a})probatiou of this Court, as there shall be
occasion.
Reference to a Master on exceptions to answer for in-
sufficiency.
On motion 1o the Court by Mr. O. counsel for the jilaintifl",
It is ordered that this cause be rclerrcd to V,. F. Master Commis-
328 INTERLOCUTORY DECREES AND ORDERS.
sioner of this Court, to look into tlie plaintiff's bill, the defendant's
answer, and the exceptions taken thereto, and certify whether the
said answer be sufficient in the points excepted to or not.
The like, for Scandal and Impertinence.
On motion to the Court by Mr. O. counsel for the plaintiff, It
is ordered that this cause be referred to E. F. Master Commis-
sioner of this Court, to look into the plaintiff's bill and defendant's
answer, and certify whether the said answer is scandalous and im-
pertinent or not.
Reference to a Master to state an Account.
This cause came on to be heard upon the bill, answer, replica-
tion, exhibits and testimony, and was argued by counsel, on con-
sideration whereof. It is ordered that this cause stand referred to
T. S. Master Commissioner of this Court [or to T. S. who is
hereby appointed special Master Commissioner for that purpose j
to take and state an account between the parties, and in taking
such account, the said Master Commissioner shall be governed
by the following rules ; 1 That, &c. See, Masters in Chan-
cery, ante. 313 And it is furiher ordered that the said Master
Commissioner proceed to take said account, at the request of either
party, giving the adverse party ten days notice of the time and
place of commencing the same ; and it is further ordered that the
said Master Commissioner make liis report in the premises, at the
next term of this Court, to which time this cause is continued.
Confirmation of Master's Report.
On motion to the Court by Mr. O. counsel for the plaintiff, and
upon producing a report made in this cause by T. S. Master
Commissioner of this Court, bearing date, &c. It is ordered that
INTERLOCUTORY DECREES AND ORDERS. 329
the said report and all the matters and things therein contained,
do stand ratified and confirmed.
OuDEii FOR Master to sell real estate.
This cause caine on to be heard upon the bill, answer, replica-
tion, exhibits and testimony, and was argued by counsel, on con-
sideration whereof, it is ordered, that T. S. Master Commissioner
of this Court, [or, T. S. who is hereby appointed special Master
Commissioner for that purpose^ proceed to cause the lands and
tenements in the bill described, to be appraised, advertised and
sold, at public auction, as upon executions at law, and that the
money arising from such sale he bring into Court at the next term,
to which time this cause is continued.
Sale by^Master confirmed and Defd ordered.
On motion to the Court, by Mr. O. counsel for the plaintiff",
and upon producing a report made in this cause, by T. S. Mas-
ter Commissioner of this Court, bearing date, &c. it is ordered
that said report, and all the matters and things therein contained,
do stand ratified and confirmed : and it is further ordered, that the
said Master Commissioner, convey the said lands and tenements,
so sold as aforesaid, to the said T. W. in fee simple.
Leave to file Bill of Review on discoveuv of New Matter.
On motion to the Court by Mr. O. his counsel, A. B. has liberty
to file a bill of review upon a decree in Chancery rendered at the
term of this Court A. D. wherein C D. was complain-
ant and the said A. B. defendant, and thereupon the said A. B. filed
his bill of review accordingly.
Kr
380 INTERLOCUTORY DECREES AND ORDERS.
Decree reversed on Bill or Review in Common Plea».
This cause came on to be heard upon the demurrer of the de-
fendant to the bill of the plaintiff, and was argued by counsel ; on
consideration whereof, it is ordered and decreed, that the decree,
in said bill of review mentioned, be and the same is hereby rever-
sed ; * and it is further ordered that the original cause, in said bill
of review mentioned, be forthwith reinstated upon the Chancery
docket of this Court to be proceeded in as if no decree had ever
been rendered therein, and it is further ordered that the said C. D.
pay the costs of this suit within days or in default thereof, that
execution issue therefor as upon judgments at law.
Decree of Coivimon Pleas reversed in Supre3ie Court on
Bill of Review.
[Proceed as in the lust precedent to the * — and it is further or-
dered that the original cause in said bill of review mentioned, be
remanded to the Court of Common Pleas to be proceeded in as if
no decree had ever been rendered therein ; and it is further order-
ed that the said C. D. pay the costs of this suit within days
and in default thereof that execution issue therefor as upon judg-
ments at law"; and it is further ordered that a special mandate be
sent to the said Court of Common Pleas to carry this decree into
execution.
The like, and cause continued, &c. !?« the Supreme Court.
2 Ohio Rep. 372. Oiiio Conds. 405.
[Proceed as above to the * — and thereupon on motion of the
complainants, it is further ordered, that this bill of review, as
against C. D. be considered and held a suplemenial bill, and that
as to the said C. D. the cause stand for plea or answer to be filed
within days after this cause shall be re- docketed in the Su.
preme Court ; and as to the other defendants, it is ordered that
INTERLOCUTORY DECREES AND ORDERS. 831
the cause stand for further proceedings in the same manner as if
no decree had ever been pronounced ; and thereupon tlie whole
case is continued to the next term.
Decree op Common Pleas affirmed in Supreme Court 05
Bill of Review.
This cause came on to be heard upon the demurrer of the defen-
dant to the bill of the plaintiff, and was argued by counsel, on con-
sideration whereof, it is ordered and decreed, that the original
decree, in the said bill of review mentioned, be and the same is
hereby in all things affirmed ; and it is further ordered that the
said C. D. pay the costs of this suit within days, or in de-
fault thereof that execution issue therefor as upon judgments at
law; and it is further ordered that a special mandate be sent dowm
to the said Court of Common Pleas to carry this decree into ex-
ecution.
Decree of Common Pleas reversed and final decree in
Supreme Court.
This cause came on to be heard upon the demurrer of the de-
fendant to the bill of the plaintiff, and was argued by counsel, on
consideration whereof, it is ordered and decreed that the original
decree in said bill of review mentioned, be and the same is hereby
reversed, and thereupon this Court proceeding to render such de-
cree as ought to have been rendered by the said Court of Com-
mon Pleas, do further order and decree, that the said C. D. within
days shall convey the premises in the said original hill mention-
ed to the said A- B. in fee simple, with covenants, ^-c. and that with-
in days the said C. D. pay the costs of this suit, and in default
thereof that execution issue therefor as ujxm judgments at law ;
and it is furthei ordered that a special mnndalc be sent down to
the said Court of «. Common Pleas to carry this decreg into «x».
cution.
332 INTERLOCUTORY DECREES AND ORDERS.
Depositions suppressed and cause continued.
On motion to the Court by Mr. O. counsel for the plaintiff, it is
ordciedthat the depositions of E. F. &c. filed in this cause, by
the defendant, be suppressed ; and thereupon on motion of Mr. S.
counsel for the defendant, it is ordered that this cause be continued
at the costs of defendant.
Order for Publication of Notice to non-residents.
On motion to the Court by Mr. O. counsel for the plaintiff, it is
ordered, that notice of the pendency of this suit and of the sub-
stance of the bill and prayer thereof, be published for con-
secutive weeks in newspaper previous to the next term of
this Court, to which time this cause is continued.
Order for a New Trial at Law.
This cause came on to be heard upon the bill, answer, replica-
tion, exhibits, and testimony, and was argued by counsel, on con-
sideration whereof, it is ordered, that the cause in the said bill
mentioned, wherein the said A. B. was plaintiff, and the said C. D.
defendant, be entered upon the law docket of this Court, and stand
for trial upon the merits at the next term; and it is further ordered,
that, upon such trial, the said bill, ansM'er, replication, exhibits, and
testimony, as well as the depositions heretofore taken in said cause,
may be used as evidence by either party; and it is further ordered,
that this cause be continued for further proceedings.
Issue out of Chancery, devisavit vel non. 5 Ohio Rep. 279.
It being made to appear to the Court, that the complainant in
this case, seeks to set aside a certain paper writing, purporting to
INTERLOCUTORY DECREES AND ORDERS. 333
be the last will and testament of T. G. late of the County of
deceased, which lias been admitted to probate, according to the
statute in such case made and provided; it is ordered, that an issue
at law be made up between the parties, to try the validity of said
will, and transmitted to the Supreme Court of said County next to
be holden therein, to ascertain by the verdict of a Jury, whether
said writing is the valid last will and testament of the said T. G.
or not; and that, in making the said issue, the respondents file a
a declaration affirming the said paper writing to be the last will
and testament of the said T. G. And the said complainant shall
plead to the said declaration, that the said paper writing is not
the last will of the said T. G. deceased. It is further ordered,
that either party may use on the trial of said issue at law, any of
the depositions properly taken, and now on file in tliis cause, which
contain relevant and competent evidence, provided, the witnesses
whose depositions are offered at the trial, are deceased, aged, in-
firm, or without the jurisdiction of the Court, as depositions taken
de bene esse, are allowed to be read in cases at law. It is further
ordered, that the motion of the respondent, for leave to read his
own answer in evidence, be denied, and that this cause be con-
tinued.
334 COMPLETE RECORD IN CHANCERY.
Complete Record in Chancery.
After a cause in Chancery is determined, it is the duty of the
Clerk to enter, in a book to be kept for that purpose, the bill,
answer, pleadings, exhibits, reports, decretal orders, statement of
facts found by a jury, or agreed by the parties, and the final de-
cree. Stat. vol. 29, p. 86, § 36= The form may be thus:
Proceedings in Chancery, before the Coiirt of Common Pleas,
within and for the County of Ross and State of Ohio, on the
day of A. D. [date of the final decree'] in a certain
cause wherein A. B. was complainant and C. D. defendant.
Be it remembered, that heretofore, to wit, on the
first day oi June, A. D. 1832, A. B. filed in the office
of the Clerk of said Court of Common Pleas, a certain
bill in Chancery, in the words and figures following, to
wit: To the Court of Common Pleas, within and for ^i^^-
the County of Ross and State of Ohio, in Chancery sit-
ting: A. B. of the said County of Ross, represents,
that C. D. of tbe same County, (and whom your ora-
tor prays may be made defendant to this bill) on or
about the 10th day of May, A. D. 1830, was seized
in fee-simple, of a certain tract of land, situate in said
County of Ross and which is hereinafter more par-
ticularly described; and the said C. D. being desirous
to dispose of said lands, entered into an agreement
with your orator, for the sale thereof, to him, and
which agreement was reduced to writing, and signed
by the said C. D. and your orator, and is, in sub-
stance as follows : {Proceed in this manner to copy
the bill, verbatim] a copy of which agreement is
herewith filed, and made a part of this bill. Your
COMPLETE RECORD IN CHANCERY. 335
orator further represents, that he has, in all respects,
complied with the terms and conditions of the said
agreement, on his part to be performed, and that he.
has applied to the said C. D. and requested him spe-
cifically to perform his part of the said agreement,
but the said C. D. hath hitherto wholly neglected and
refused so to do. Your orator therefore prays, that ^^7/.
the writ of subpoena may issue against the said C. D.
and that he may be compelled to answer all and sin-
gular the premises, and that on the final hearing of
tliis cause, the said C. D. may be decreed specifically
to perform his said agreement, or if it should appear,
that he is unable to do so, that he may be decreed
to repay to your orator his purchase money afore-
said, with interest, and such damages as your orator
may have sustained by reason of the premises, and
that your orator may have such other and further
relief, in the premises, as equity and good conscience
may require. T. B. SoL for cojnplt. The exhibit
referred to in the bill and filed therewith, is in the
words and figures following, to wit : Articles of Exhibits.
agreement, &c. [Here copy the exhibits, verbatini] ;
and thereupon the following subpoena was issued out
of the Clerk's office aforesaid, to wit : [Seal.] The
State of Ohio, Ross County, ss. To the Sheriff" of Subpasna.
Ross County, Greeting : We command you to sum-
mon C. D. to appear before our Court of Common
Pleas, of the County of Ross, at the Court-house, on
the first day of their next term, to answer a petition
in Chancery, exhibited against him by A. B. and this
he shall in no wise omit, under the penalty of one
thousand dollars, and have you then there this writ.
Witness, T. T. President Judge of our said Court,
at the Court-house, this 1st day of June, A. D, 1830.
Attest. F. G. Clerk of Ross Com. Pleas. And af-
terwards, to wit, on the 1st day of September, A. D.
1630, the Sheriff' of said County of Ross, returned
the said writ of subpoena endorsed as follows, to wit: ^''c'ijT s re-
served, by delivering a copy to the said C. D. on the "^'
lOthday of May, A. D. 1830. T. X. Sheriff of /?o«
33G COMPLETE RECORD IN CHANCERY.
County. And afterwards, to wit, at the July term Continu-
of said Court, A. D. — - — this cause, on motion of the ance.
said A. B. was continued. And afterwards, to wit, on
the 20th day of October, A. D. 1830, the said C. D.
filed in the office of the Clerk aforesaid, a demurrer
to said bill, in the words and figures following, to
wit : The demurrer of C. D. defendant, to the bill of Dernurrer.
A. B. complainant. The said C. D. comes and
demurs to the said bill of the said A. B. and for cause
of demurrer shows, that the said A. B. by his said
bill, has not made such a case as entitles him, in a
Court of equity, to any discovery from this defend-
ant, or relief against him : Wherefore, and for other
good causes, the said C. D. demurs to the said bill-
and prays the judgment of this Court, whether he
shall be compelled to make any other or further an-
swer thereto, and that he may be hence dismissed,
with his costs. And afterwards, to wit, on the 15th
day of November, A. D. 1830, the said A. B. filed in
the office of the Clerk aforesaid, a joinder in demur-
rer, in the words and figures following, to wit : And
the said A. B. says, that his said bill, and the matters -finder in
therein contained, are sufficient to entitle him to the
discovery and relief prayed for in said bill : Where-
fore, he prays that the demurrer of the said C. D.
may be overruled, and that the discovery and relief
prayed for in said bill, may be granted him, &c. By
W. T. his Sol. And afterwards, to wit, at the March
term of said Court, A. D. 1831, this cause, on mo- Continu-
tion of the said CD. was continued. And afterwards, (^nce.
to wit, at the July term of said Court, to wit, on the
10th day of July, A. D. 1831, this cause came on to
be heard upon the demurrer to said bill, and was ar- Demurrer
gued by counsel; on consideration whereof, the Court "^^'"^ ulea.
held the said demurrer to be insufficient, and ordered
the same to be overruled with costs, and thereupon
the said C. D. moved the Court for leave to answer
said bill, and filed in the office of the Clerk aforesaid, ^'^^^^7^ M
an affidavit, in the words and fiorures following, to „„^«
wit: A. B. vs. C. D. In Chancery. The said C. D.
COMPLETE RECORD IN CHANCERY
337
makes oath and says, that the demurrer by him filed
in this cause, was not filed for the purpose of delay,
and that as he is advised and verily believes, he has
a meritorious defence to the same. C. D. Sworn to^
and subscribed in open Court, July 10th, 1831. T.
B. Clerk. And thereupon, liberty to answer said
bill in sixty days, was granted by the Court to the
said C. D. And thereupon this cause was continued
on the motion, and at the costs of the said C. D. And
afterwards, to wit, on the 1st day of August, A. D.
1831, the said C. D. filed in the office of the Clerk
aforesaid, an answer to the said bill, in the words and
figures following to wit : The answer of C. D.
defendant to the bill of A. B, complainant. The said
C D. comes, and for answer to the said bill of the
said A. B. says, that, &c. [Ilcre irisert the ansicer,
verbatim, cmd cvhibits, if any, in the sarne manner,
as exhibits filed with the bill, also, the replication,
interlocutory orders, reports of the master, plats,
surveys, (J-c. ^'-c. i7i their j)roper order.'] And after-
wards, to wit, on the 10th day of September, A. D.
1831, the said A. B. filed in the office of the Clerk
aforesaid, certain depositions in the words imd figures
following, to wit : [//ere copy the depositions of the
complainant, verbatim.] And afterwards, to wit,
on the 20th day of September aforesaid, the said C.
D. filed in the office of the Clerk aforesaid, certain
depositions, in the words and figures following, to
wit: [Here copy tliem, verbatim.] (o) And after-
wards, to wit, on the day an,d year first aforesaid,
this cause came on to bo heard upon the bill, answer,
replication, exhibits, and testimony, and was argued
by counsel; on consideration whereof, it was ordered
and decreed, that the said C. 1). within da}s,
should convey the promises in the said bill mentioned.
A (Ji davit of
merits.
Liberlr to
answer in
fiO days.
Answer.
Depositions
ofcomplain
ant.
Depositions
of defend-
ant.
Final de-
cree.
(a) The Statute does not r0{iulrc tlic depositions to be recorded, but it
should always ho dono, as ihoy I'orni an indispensublo part of the record
upon a bill of review. Ske, a»/c. '.M)0, n. [a).
Ss
338 COMPLETE RECORD IN CHANCERY.
to the said 'A. B, Jn fee-simple, with covenants of
general warranty, and that, within days, the
said C. D. should pay the costs of this suit, and in
default of such payment, that execution should issue
therefor, as upon judgments at law. [JPbr the mode
of authenticating records, SfC. See, Complete Record
in Assumpsit.^
HABEAS CORPUS. 339
Habeas Corpus.
Form of application for Habeas Corpus.
To A. B. one of the Judges, &c. (a)
C. D. of, &c. (h) represents, that he
is imprisoned or detained by E. F. without any legal authority, (c)
he therefore prays that a writ of habeas corpus may be issued to
the said E. F. and that he may be discharged from said imprison-
ment.
The above named C. D. being duly sworn, says that the matters
and things set forth in the above application, are true.
C. D.
Sworn to, and subscribed, before me, this day of
A. D. .
T. X. Jus. Peace.
The allowance is endorsed on the back of the application thus :
Allowance of Habeas Corpus by single Judge.
FiOt a writ of habeas corpus issue on the within application,
(tt) The application may bo madf? to any .Tiulire of the Snpromo Toiirt, oi
any I'rosidcMit or As.-ociatc .Iu(lii{, p. TjH, J 3, 4.
{/)) The application may be niado by the person imprisoned, or by any
other person in his beiialf. f/>iil, ji. KVl, j 1,
(r) If the applicant be imprisoned under legal prorcpsjic must set forth,
in his api)licati(m,a copy of the commitment, or cause of his detention; and
in such case un affidavit is unnecessary. I/iid.
340 HABEAS CORPUS.
returnable before me at on the day of instant, at
ten o'clock A. M.
A. B. Judge, SfC.
To the Clerk of Common Picas, {a)
Dated, &c.
If the writ be allowed in term time, the entry is made upon the
Journal thus:
Allowance of Habeas Corpus in term time.
C. D. this Jay came into Court and filed his application for a
writ of habeas corpus ; on consideration whereof, it is ordered,
that a writ of habeas corpus issue to E. F. of, &c, commanding
him to have the body of the said C. D. together with the day and
cause of his caption and detention, before this Court on the
day of instant, at 10 o'clock, A. M.
Form of Writ of Habeas Corpus.
The State of Ohio, (]!ounty, ss.
To E. F. of, &c.
We command you, that the
body of ('. 1). in your custody detained, as it is said, together with
the day and cause of his- caption and detention, by whatsoever
name the said C. D. may be known or called, you safely have,
before A. B. Judge, ^yc. (b) or, 0217- Supreme Court, or. Court of
Comjnon Pleas, at on the day of instant, at 10
(a) The writ is to ho issued !.y the Clerk of that Court, of which the per-
son allowing the writ, is Judge. Slat. vol. 2;?, ■>>. 164, \ 1.
(h) In case of tiio absence or disability of the Judge who allowed tlie
writ, it incy be returned before some other Judge of the same Court. Stat,
vol. 29, p. IGI, \ -J.
HABEAS CORPUS. 341
o'clock A. M. to abide such order as the said A. B. or said Court
of Common Pleas, or, Supreme Court, shall make in this behalf ;
hereof fail not, and bring this writ with you.
Witness, T. T. President Judge of our Court of Common
Pleas, aforesaid, this day of A. D. — .
Attest.
F. B. Clerk.
The writ is served by delivering the original to the person to
whom it is directed. This may be done by any disinterested per-
son. A copy of the original should be retained by the person
serving the writ, in order to furnish proper evidence for further
proceedings, should the original writ be disobeyed.
The writ must be returned at the proper time and place, together
with the body ; and the day and cause of caption and detention are
endorsed thus:
Return of Habeas Corpus.
The within named E. F. hereby certifies to the within named
J]. B. or, to the within named Supreme Court, or, Court of Com-
mon Pleas, that the within named C. D. was taken into the custody
of the said E. F. on the day of A. D. and is now
detained in his custody, by virtue of, &c. [Here set forth, spcciji-
calhj, the cause of detention, such as legal process, guardianship
under a will, or hy appointment of Court, right of parent, cj-c]
E. F.
Dated, &c.
Upon the return of tiie wx'xX, the Court or Judge will examine
into the cause of caption and dt;tcntion, and either coniinil, dis-
charge, or let to bail. Stat. vol. :jy, p. KM, § 3. The statute
makes no provision for reducing to record, the proceedings ujion
habeas corpus, before a single Judge in vacation. In such cases,
■' -^ better practice seems to be, to enter the proper orders, &c. ujion
342 HABEAS CORPUS.
the journal of that Court, of which the Judge allowing the writ,
may be a member; to be signed by such Judge, as in cases of spe-
cial Courts for the appointment of administrators and guardians.
Such entry may be as follows :
Order for Discharge, upon Habeas Corpus, by single Judge.
In obedience to the command of a writ of habeas corpus issued
by me, one of the Associate Judges of the Court of Common Pleas
of the County of on the day of A. D. upon
the application of C. D. of, &c. E. F to whom said writ of habeas
corpus was directed, appeared before me, on this day of
A. D. and brought with him the body of the said C. D. and
the said E. F. having returned upon said writ, that the said C. D.
was taken into his custody on the day of A. D.
and is now detained in his custody by virtue of, &c. [Here set out
the return, verbatim] ; and having examined into the cause of said
caption and detention, it is ordered, that the said C. D. be and he
is discharged from the custody of the said E. F. (a).
A. B. Judge, ^c.
The like, by the Court.
This day, E. F. to whom a writ of habeas corpus was directed
on Friday last, upon the application of C. D. appeared in open
(a) On the appearance of the party, the Court, in general, will only sec
that he is not under any illegal restraint; but in the case of a young lady,
the Court will order the tipstaff to wait upon her home to her guardian.
Stra. 444. A chiid of nine years old, was delivered to her uncle, being
her testamentary guardian. Stra, 570. A boy of thirteen, brouglit up by
habeas corpus sued by his father, to hive him delivered lo him by his aunt,
the Court will deliver him from his aunt and let him go where he pleases.
Stra. 982. Qiiere, whether the Court will not deliver him to the lather.
See, 3 Bac. Abg. 15. 1 Burr. 606. 3 Burr. 1434.
If the party be recommitted, say : " // is ordered, that the said C. D.
bCf and he hereby is recommitted lo the custody of the said E. F.^' If let to
bail, say: "// is ordered, that the said C. T). be let to bail vpon entering
into a reeog-nizance, ivith security, to the amount of dollars ; and there-
upon, the said C. D. with E. F. and G. H. his securities, entered into such
recognizance in the]said sum of dollars, conditioned according to lawJ'^
HABEAS CORPUS. 343
Court, and brought with him the body of the said C. D. and the
said E. F. having returned upon said writ that the said C. D. was
taken into his custody on the day of A. D. and
is now detained in his custody by virtue of, &c. {Here set out the
return, verbatim] ; and the Court having examined into the cause
of said caption and detention, it is ordered, &c. [Conclude as in
the last precedent.']
344 DEPOSITIONS.
Depositions.
When the testimony of any person is necessary' in any civil
cause or matter, pending in the Court of Common^ Pleas or Supreme
Court, sitting as a Court of law or equity, and such person resides
out of the County where such cause or matter is pending, or shall
intend to leave the County before the time of trial, or is ancient
or very infirm, the deposition of such person may be taken be-
fore any Justice, or Judge of any Court of the United States, or
before any Chancellor, Master Commissioner in Chancery, Justice
or Judge of any Supreme or Superior Court, Notary Public,
Mayor or Chief Magistrate of any city or town corporate, Judge
of any County Court or Court of Common Pleas, or Justice of the
Peace of this State, or of any of the United States, or any district
or territory thereof; such officer not being of counsel or attorney
to either of the parties, or otherwise interested in the event of such
cause. Stat. vol. 29, p. 123, 9 L Before such deposition, however,
can be taken, proper notice must be given to the adverse party,
which may be in the following form :
Form of Notice to take Depositions.
Com. Pleas.
Depositions will be taken in this
case, by the plaintiff, at in the town of' County of
and State of on the day of next, between six A.
M. and nine R M.
A. B.
Dated, &c.
This notice must be served on the adverse party, his agent or
attorney of record, or left at his usual place of abode, at such time
DEPOSITIONS. 315
as will cnablo the adverse party to attend at tlic taking of the de-
pdsilions, by travelling at the rate of twenty miles per day, vSun-
days v.'xclusive. SUit. vol. 29, p. ]24, § 2. Service of this notice
may l)e made by any disinterested person, and proof of such ser-
vice may, in general, be required before the deposition can be read.
In some instances, service of notice has been made by the party,
and hif) own onth admitted to prove sacii service; but, ia general,
it is more safj to cause service to be made by some disinterested
person,
The attendance of v/itnesscs before the oiTicer may be enforced
by subpoena and attachment. StaL vol. 29, p. 124, § 6, 7.
Form of Subpos^'a fou Witnesses.
The State of Ohio, County, ss.
To the ShcrifF (a) of said County, Greetujo :
You are hereby commanded to summon F. W. to be and appear
before mc, G. II. a Justice of iha Fcacc, Jud'^c, <^-c. at on
the day of at nine o'clock, A. M. then and there
to be examined, and the truth to'«pe'ak, in bchaU* of the pkunliff,
in a certain cause ponding in the Court of ^vh^Jrc:n A. B.
is plaintiff, and C. D. defendant: Ik^reof fail not, under the
penalty of the law, and have you then there tliis Vvrit.
Given under my hand and seal, this day of A. D. .
G. II. [seal.]
If a v.'itness, v.-ithout reasonable excuse, neglects or refuses to
appear, according to tlie command of the subpoena, an attach-
ment may issue. Stat. vol. 20, /?. 125, § 7. A Avitness, however,
on being subpccnaeu, mny demand his j^ai/ (the fccLi for a day) and
if refused he need not alt end ; and so frcm day to day he may
(ci) The subpoena may be directed to any sheriff or coustulle. Sial.vol,
20, jj. 125, 412.
T T
340 DEPOSITIONS.
requrc his fees, and if refused he need not remain at his own ex-
pense, and such refusal will be a sufficient answer to an attachment.
But if he do not demand his fees, tiic omission to j)ay them will not
exonerate the witness. An attachment will not, in general, issue
■without personal service upon the witness.
Form of Attachment.
The State of Ohio, County, ss.
To the Sheriff of said County, Greeting :
We command you, that without delay you attach E. F. so as to
have him before G. 11. a Justice of tie F^acc, Jidge, <^c. at
to answer to us touching a contempt v.hich he, as it is alleged, has
committed against us, and farther to perform and abide such order
as the said G. H. shall make in this behalf, (a).
Given under my hand and seal, this day of A. D. — .
G. H. [seal.]
The witness must be sworn or affirmed, by the Judge or other
officer, *'lo testify the truth, the ichole truth, and nothing but the
truth," and after he has been thus sworn or affirmed, his testimony
must be reduced to writing, by the officer taking the deposition
or by the witness, or some other disinterested person in his pre-
sence, and subscribed by the witness. Stat. vol. 29, p. 124,^ 3.
WOKDS or COURSE PRECEDING DEPOSITIONS TAKEN UPOJt NoTICE.
Depositions of witnesses taken in a cause pending in the Court
of wherein A. B. is plaintiff, and C. D. defendant, in pursu-
ance of the notice hereto attached.
(a) It is customary to endorse upon the writ, the substance of the com*
plaint thus : "For not appearing; u a witccss iu behalf of A. B. haviog
been duly summoned."
DEPOSITIONS. 847
G. H. of, &c. of lawful age, being first duly sworn, or, affirmsdf
deposes and says, That, &c.
Also, T. S. of, &c. of lawful age, being first duly sworn, or,
a^rmcd, deposes and says, That, die.
The depositions having been respectively subscribed by the
witnesses, the officer annexes the following certificate. Stat, vol
29, p. 126, § 15.
Form of Certificate.
I, S. S. Judge, or, Justice of the Peace, or, other officer, {^stating
the official clf.iracter^ do hereby certify, that the above named G.
H. and T. S. were by me sworn, or, afinned to testily the truth,
the whole truth, and nothing but the truth, an.i that t!ic foregoing
depositions by tlicm respectively subscribed, wen^ reduced to wri-
ting by [jiainiiig the person'] and were taken at the time and place
specified in the enclosed notice.
S. S. (a).
Dated, &c.
If the depositions are to be used, within the limits of the Judi-
cial Circuit of t!ie Court of Coni:non Pleas, wherein they are taken,
no further act of authentic ition is necjssary; but the officer taking
the same will deHvcr them into t!ie office of the proper Clerk, or
other proper officer; or will ssal tlum up witli a copy of the notice,
direct and transinit ihcm to sucli Clcrlv or other i)roper officer,
there to rimain under seal until opened according to t!ie rules of
Court. Slut, vol 29, /J. 125, § 4, t), 11. {\\ however, the deposi-
tions arc not taken within the Judi^'ial C'irciiitin which they arc
to be used, wlieiher taken in this State or cIseA'lvjre, they must be
further aiillienticated, either liy parol i)roof, adduced in open Court,
or by the annexation of tlic olhcial certificate and seal of some
Secretary or other officer of State, keeping the great seal of the
{«) If tlie ofliccr, before whom llie dcpositiona arc taken, have a ssil of
•ffice, icmufit be annexed to iiis name. Stat. vol. 29, p. llJU, J 11.
248 DEPOSITIONS.
State, or the Cleric, or Frothonotary of the Court of seme City,
County, Circuit, District, Plate, Territory, Frovinco, or other di-
vision, that the officer by whom the depcsitionr: were taken, was
at the time of taking the same, an ofiiccr within the meaning of
the Statute. Ibid, §11.
Cehtificatf. or County Clerk,
[Seal.] State of Ohio, County, ss.
I. A. B. Clerk of the Court of Common
Pleas within and for said County of do hereby certify that
on the day of A. D. S. S. was a Justice of the
Fence within and for the said County of duly elected and
qualified.
Given under my hand and seal of ofEce, this — -. — day of ■
A. D. .
A. B.
Dedi^izts Potestati::^!,
The Statute makes no provision for taking depositions in foreign
countries ; in such cases, recourse is had to :\. deilijn^!:^ poieslatcrn.
A dedimus potestaicTn may also be granted in other case?, a<^-
cording to the common usages of Courts, where it may be neces-
sary to prevent the delay or failure of justice. Siat. vol. 29, p.
72, § 75. It ma^y" be granted by the Supreme Court, or Court of
Common Pleas, in term time, or by any President Judge in vaca^
tion. Ibid.
Cruer for a Dedimus Potestatem.
On motion of the Court, hy Mr. O. counsel for the plaintiff, it
is ordered, thai a dedimus pctestaicni issue in this cause, to take
the deposilions of sundry persons in the city of New Orleans, to be
directed to S. T. and W. any two of whom may execute the same:
DEPOSITIONS. 349
and it is further ordered that the defendant within ten days file
with tjic Clerk of this Court the name of an ai^cnt resident in the
said Citv of Neto Orleans, to whom notice of the time and place
of eACcntinf:^ said dedimus pot^statcm may be given; and it is fur-
ther ordered that the service of sucli notice upon such agent, tcr^
days previous to the execution of said dc.diwus pntesta'em cliall
be deemed good service upon the dcfendcmi: and it is further or-
dered that if the defendant fail to file with the Cleric, the name of
such agent, hy the time aforesaid, then said dedimus pctestafem
may issue ex parte, (a)
FOUM OP DEDIMUS POTEST ATEM TO TAKE DEPOSITIONS GENERALLY,
[Seal.] The State of Ohio Count}-, ss.
To S. T. and Yi. of, &:c. Greeting :
Know ye, that wo in confidence of your prudence and fidelity,
have appointed you, and by these presents do give to you or any
two of you, full power and aalhoritj', to examine and take the de-
positions of witnesses in a certain cause depending in our Cowt
of Common Fleas, within and for the said County of and
wherein A. B. is plaintiff and C. D. defendant; •■ and therefore
WC command you or any two of you that at certain days and
{(i) Tlio Commii-sionors arc appointed Vy the Ccmit or agreed on by the
parlicf.-. In Knyl^ni!!, llio order ot" tlin Cuiiia ciirccis the Ul-rk cf ilie aJ-
vorsp parly, to name to IIr- Clerk ol' llie parly applying lur ilio coniniisijion,
nn agi.nt rci-iclont m tlio place wliore the c<:minission is to be exetutod, to
whom nolii nf tlie execution of the co!iiini<'9ion is to bo "-iven, nnd that
service of euoh notice en tiic iigcnt be good notice, or in dclyiiltof naniing
an owont. llie conunission to is&n.- arc purlc. JWw. Ck. Pr. ]'20. J)eposi-
tions lakon npoii conimiesiyn are not giiverncd by llio .Statute proviJnur'for
the takinrr of »/. LH). p.l'^, { 7").) but by the '-Cimmon uZirca
of Couns." Slat. vol. ij!), p. 72, ^ 75. in some cJisci--, it would \.d wliully
impracticable to .f^ivc the noiico rtquircd by llio generui law; us if deposi-
tions w:;io to bo lakiMi in (.!uh;u!.ta, or in many |)aris of ICitropc. Indeed
inconvciiienco and delay ot\on arise from this cuw^'j, in tukir!; dcposifiona
in tiie Atlanuc ciiics. (Jur Courts are au:horii-.ed lo i.-eue a (!id:mu3
"wlicnevcr it may be nr^cessiry to prevent the delay or failure of jug;ice."
Stat. vol. 2'.), p. 72, J 7.'>. Tlvj application is addressed to llic scir.d dis-
cretion of the Court, and may be niado at law as well as in Ckanccry. Jbid.
850 DEPOSITIONS.
places to be appointed by you, the said parties or their agents hav-
ing ten days notice thcreot, you c:iusc such witnesses, as may be
required by either of s:yd parties or their agents, to be brought
before \ou or any two of you, and tlien and there examine each of
them on their respective corporal oaths, first taken before you or
any two of you, and that you reduce such examination to writing,
and return the same, together with this writ closed up under your
seals, or the seals of any two of you, into our said Court with
all convenient speed.
Witness : T. T. President Judge of our said Court of
Common Pleas this day of A. D. .
Attest.
T. C. Clerk.
Form of dedimus potestatem to take depositions ; ex parte, (a)
[^Proceed as in the last precedent to the * on the part of the
plaintiff, and therefore v/e command you or any two of you, tliat
at certain days and places to be appointed by you, you cause such
witnesses, as may be required by the said plaintiff, to be brought
before you or any two of you, &c. [Conclude as in the last prece-
dent.^
As mistal\es, in the execution of this commission, are easily
made, and all the proceedings thereby rendered invalid, it is advi-
sable for the parly, or his attorney, Lo transmit special instructions,
with the commission, which may be as follows :
To e. T. AND W.
Enclosed is a commission issued
by the Court of authorizing you or any two of you to examine
witnesses in a certain cause pending in said Court. In the exe-
cution of this commission you will please observe the following
directions :
(a) See, ante. i349 nule (a).
DEPOSITIONS. 851
You "will draw up on paper, preparatory to the cxaminalion of
witnesses, the title of the depositions, thus: "Depositions of wit-
nesses, produced, sworn and affirmed on the day A. D.
at by virtue ol' u CuJUini.ssion issued from the Court of
to us directed for the examination of witnesses in a certain
cause pending in said Court, wherein A. B. is plaintiff and C. D.
defendant."
You will next administer to the witness whom you are about
to examine, an oath or alfirmalion, that with.out favor or affection
to either party, he will speak the truth, the whole truth, and
nothing but the truth, and then proceed as follows :
"G. T. of, (fcc. aged years or thereabouts
being produced, sworn or a^Jiryned, and examined on behalf of the
plaintijf or drfcndanf, deposes and says, that, &c." After the ex-
amination in chief is concluded, if there be a cross examination,
say, "Upon cross examination by the defendant or plaintiff, the
said G. T. furtiier says, that, &:c." If the witness be rc-cxamin-
ed by the party calling him, say, "Upon re-exam. i nation by the
plaintiff or defendant, the said G. T. further says, that, &.c."
The witness will then subscribe his examination with his name,
and the acting commissioners, will put their names opposite to his
signature for the purpose of identifying it, and if in the courscof the
examination, the witness refers to any paper, or docurnent,it must
be marked by some letter or figure, and further identified by the
acting commissioners, tlius; '-This is the paper referred to by
in his examination, as the paper marked, (A)" to which they will
si^jn their names.
The examination being completed, the commissioners who con-
ducted it. will attach the depositions and exhibits to th.c commis-
sion, and endorse the same as follows: " The execution of this
commission appears in a certain schedule hereto annexed," to which
the names of the commissioners will be subscribed. The whole
thus prepared, will be enclosed in an envelope, scaled up, and ad«
662 DEPOSITIONS.
dressed as follows : "To, &c." \_T/t,c Court from lolnch thn com,'
mission issued.'] It may then be delivered to an agent, cr for-
•VvarJed hy the most expeditious and safe conveyance. («)
(a) 111 England and in some of the United States, witnesses arc CAamin-
ed upon written interrogatories, which are usiiaily prepared by counsel, and
annexed to the connnitsioii. Tiiid practice does not prevail to any con-
Biderablo extent, in our Jr'tatc. The exaniiiiatinn is gtnicraily viva voce and
the te.^ment be in the favor
of the jdaintid", no |)urL of the defuiuianl's costs can be embraced in the
judgment or inserted in the execution, and vice cersa. Each parly is pre-
sumed to pay his own costs, from time to time, as they accrue, and the
jiidgmnnt fur co^sls, includes only the costs of the successt'ul party. 5 Ohio
Rep. 210, TUetxacl amount of tiie debt, damages and costs, /br ichicli
tliejnhj^nicul in iiilcreil, uui.'-t he indorsed on tin; execution. Stat. vol. 1*9,
p. ioi. (i CM. All costs which accrue nflrr judgment, and which arc called
" costs of increase and accruing costs," are incideulal to tiie execution and
form no part of the judgment; and they should always be inserted in a
separate clause, as in the above precedent.
{b) When the judgment is joint against principal and bail or surety, pro-
ceed thus: "and in default of goods and chattels, landsand tenements of the
said ('. I), that you cause the jfume to be hn-ied of the goods and chattels,
and for the want thereof, of the lands and tenements within your bailiwick
of G. n. and I', v. and have you, iVc."
V V
354 EXECUTIONS.
WiTA^Ess: T. T. President Judge of our said Court of
Common Pleas, this day ©f A. D. .
Attest.
T. E. Clerk.
No. 2. The like, or^ Ma^jdate from the Supreme Court.
[seal.] The State of Ohio, County, ss.
To the Sheriff of said County, Greeting:
We command you, that you cause to be levied of the goods
and chattels in your bailiwick, of C D. the sum of dollars
[Sbe, No. 1. note (<',').] which by the judgment, or, decie3,of oi\t
Supreme Court within and for the said County of at tlie
term thereof A. D. A. B. recovered against the said
C. D. wiih interest thereon from, &c. [The date of the judgment
or dccresi until paid: and for want of goods and chattels that you
cause the same to be levied of the lands and tenements, in your
, bailivs'ick, of the said C. D. and have that money before our Court
of Common Pleas within and for the said County of on the
first day of their next term to render unto the said A. B. and have
you then there this writ.
Witness, &c. [Cojichide as in No. 1.]
No. 3. Form of Ca. Sa. on Juegment, or Decree for mo-
ney, IN Common Pleas.
\P7-oceed as in No. 1. to the * that you take C. D. if he
shall be found in your bailiwick, and him safely keep, so that you
have liis body before our Court of Common Pleas v.ithin and for
the said County of on the first day of their next term to
EXECUTIONS. 355
satisfy A. B. for the sum of dollars [See, No. 1. Note, {a) ]
* * which by the judgment, or, decree, of our said Court at the
term thereof A. D. A. B. recovered against the said
C. D. with interest thereon from, &c. [T/ze date of judgment or
decree'] until paid, and have you then there this writ, {a)
No. 4. The like, on Mandate fsom the Supreme Court.
[Proceed as in. the last precedent to the * * which by the judg-
ment, or, decree, of cur Supreme Court within and for the
said County of at the term thereof A. D. A- B.
recovered against the said C. U. with interest thereon from, &c.
[The date of the judgment or decreel unlil paid, and have you then
there this writ.
Witness, &c. [Conclude as in No. 1.]
No. 5. Form of Venditioni exponas.
[Proceed as in No. 1. to the * that, those goods and chat
tch, or those lands and tenements, of C. D. \\ hich you lately, ac-
cording to our command took into your hand 5, and which remain
unsold ; you expose to sale, to satisfy A. B. the sum of dol-
lars [Sek, No. 1. note («) ] wiiich by the judgment, or, decree, of
our Supreme Court, or, Court of Common Pleas, within and for
the said County of at the trrni thereof A. D. A.
B. recovered against the said C. D. with interest thereon from, 'i'c.
[The date of the judgment or decree] unlil paid: and have the
money arising from such sale before our said Supreme Court, or.
Court of Common Pleas, on the first day of their next term, to ren-
der unto the said A. B. and have you then ;herc this writ.
Witness, &.c. [Conclude as in No. 1.]
(a) Where a Cn. Sa is tlircctcd lo tlio iSlicrilT of another County than
thntin wliicli tho jinlfjment ig rendered, tho Ciirk must endorse on the ca.
sa. "Funds arj depobitod lo pay the ShorilF on tliin writ. T. C Clerk."
356 EXECUTIONS.
Forms of Alias and Pluries writs or Execution.
[seal.] The State of Ohio County, ss.
To the Sheriff of said (Jounty, Greeting:
We command you, as before we have commanded yov, if an
Alias ; or, as oftevJimcs before ice have commanded you, if a Plu-
ries; that you, &c. [Conclude as in the original.']
No. G. Form of Habere Facias Possessionem, with Fi. Fa.
et Lev. Fa. F(ik damages and costs.
[seal.] The State of Ohio County, ss.
To the Sherilf of said County, Ctreeting;
Whereas John Doe on the day of A. D. in
our Court of Common Pleas, or, Supreme Court, within and for
the said County of recovered against Joseph Smith, his
term yet to come in [two messuages, two hundred acres of arable
land, ^c. as in the Declaration'] situate in your bailiwick, which
John Rogers had demised to the said John Doe for a term which
is not yet expired ; (.7) and also, the sum of dollars for his
damages, and dollars for his costs in that behalf expended:
Therefore we command you, that without delay, you cause the
said Johii Doe to have possession of his said term yet to come of
and in the tenements aforesaid with the appurtenances : and we
also command vou that without delav you, cause to be levied of
[a) ^Yhere the Doolaration contains a double di'mise, and a recovery has
been had upon hot!), proceed thus frona the (a) "And whereas also the said
John Due at the eame timo and in llie eame Court recovered against the
Eaid Joseph Smith, two other messuages, &lc. situate, &lc. and also the sum
of Dollars, (f^cc."
EXECUTIONS. 357
the goods and chattels, in your bailiwick, and for want of goods
and chattels, of the lands and tenements, in your bailiwick, of the
said C. D. the sum of dollars, the damags and costs afore- •
said, with intere':t thereon from, &c. [The date of the judgmenf]
and in what manner you shall have executed this writ, make ap-
pear to our said Court of Common Pleas on the first day of their
next term : and have you then there the damages and costs afore-
said together with this writ, (p)
Witness, &c. [Conclude as in No. 1,]
Form of Execution in Detinue.
No. 7. [Proceed as in No, 1. to the * — that you cause to be
levied of the goods and chattels in your bailiwick, of C D. the sum
of dollars («), which by the judgment of our Court of Com-
mon Pleas, within and for the said County of at the term
thereof, A. D. A. B. recovered against the said C. D. with in-
terest thereon from, &c. [Date of judgment'] \xn\\\\iXvA'. and for
want of goods and chattels, that you cause the same to be levied
of the lands and tenememts, in your bailiwick, of the said CD.
and have that money before our said Court of Common Pleas, on
the first day of their next term, to render unto the said A. B.
We also command you, that you cause to be levied of the same
goods and chattels, lands and tenements, of the said C. D. the
further sum of dollars [The value of the goods and chattels as
assessed by the jury'] with interest thereon from, &c. [Date of
judgment'] until j)aid; unless the said C, D. shall render to the said
A. B. the following goods and chattels, lately in our said Court ad-
judged to him, to wit: [here enumerate the articles'] and in what
manner you shall have executed this writ, make appear to our said
Court, on ihe same day above written.
Witness, &c [Conclude as in No. 1.
[ii] Whiin.' the jiulgiiient. is t.y dt^I'milr, .• jrainst l!ie riiPU.U ejector, siihsti-
tute tlic name of tliu cnsuul ojrclor for .losopli Smith, and omit all that
part of llic writ which ri'liites to coste. If a moiety or any other portion,
be recovered, the nece?s:iry alicrations in the above form miiy he made f.oni
the Judgment. A c«. sa. for liie costs may be subslilutcd in the pl;icc of
the Fi. Fti. et Lev. Fa.
[b). This blank is to bo filled willi the ar- In case, &c. Damages Dollars.
C. D. )
Issue a writ of attachment returnable at next Term.
Endorse "Suit brot for, &c.'' [State the cause of action in hrief.'\
S. T.attij.for Pltff.
To the Clerk of Com. Pleas.
Dated, &c.
The above named A. B. {a), makes oath and says, that the above
named C. D. is his debtor and hath absconded to the injunj of his
(a) It the affidavit be made by an ngeiit or attorney, say, ''T. S. a^e'it. or,
a/Zo/'HCT/, of the above iiaiiicd A. B. makes oath and says, that, the above
named C. D. is the debtor of the above named A. B. and hath absconded to
to tlie injury of his creditors, or, &c" -If the writ issues without the proper
oath or affirmation, it may bo quashed at the costs of the Clerk. Slal. vol.
29. p. 130. 5 1.
ATTACHMENT. 359
creditors, or, that the above named C. D. is his debtor, and is not a
resident of the Slate of Ohio, as he verily believes.
A. B.
Sworn to and subscribed before me
this day of A. D.
T. X. Jus, Peace.
Form of writ of Attachment.
[Seal.] The State of Ohio, County, ss.
To the Sheriff of said County, Greeting:
We command you to attach the lands, tenements, goods, chat-
tels, rights, credits, monies and effects, of C. D. wheresoever they
may be Ibund, and the same to keep, or so to provide that the same
or the value thereof, may be forthcoming, to answer the judgment
of our Court of Common Pleas within and for the said County of
in a certain action on the case, therein prosecuted by A. B.
against the said C. D. for dollars damages; and in what
manner you shall execute this writ, make appear to our said Court
of Common Pleas on the iirst day of their iicxt term, and have you
then there this writ.
Witness, T. T. President
Judge of our said Court of Common Fleas, this day of
A. D.
Attest. T. C. Clerk.
The ofliccr, with this writ, goes to the place where the property
of the defendant is to be found, and in the presence of two freehol-
ders of the county declares, that by virtue of said writ, he attaches
the property, at the suit of the Plaintiff'; and thereupon the officer,
with the freeholders, who arc to be under oath or affirmation, to
360 ATTACHMENT.
to be administered by the officer, must make out a true inventory
and appraisement, of" all the property attached, which must be sign-
ed by the officer and freeholders, and returned with the the writ.
Stat. vol. 29. Tp. 130. §2.
Form of Inventory ai^d Appraisement.
An inventory and appraisement of property attached by T. S.
Sheriff of County at the suit of A. B. against C. D. made this
day of A. D. by the said Sheriff and E. F. and
G. H. two freeholders of said county, the said E. F. and G. H.
having been first duly sworn, or, affirmed, by said Sheriff; To wit :
One sorrel horse appraised at Dollars.
One road wagon " " "
One hundred acres of land, bounded and described as follows, to
wit: \_Here insert the metes and bounds with as much particularity ,
as in deeds of conveyance.'] and appraised al Dollars.
T. S. &c.
This inventory and appraisement is attached to the writ, upon
which the Sheriff endorses his return thus :
Sheriff's Return.
I executed this writ on the day of ■ A. D. by at-
taching certain property in the possession of T. X. described in the
inventory and appraisement herewith returned, and which pro-
perty now remains in my hands, or, icas delivered to the said T. X.
upon bond and security being given.
T. S. Sheriff of County.
Dated, &c.
ATTACHMENT. §^1
Form of Bond to the Sheriff upon redelivery of Property.
Know all men by these presents, that we T. F. E. F. and G. F.
[Two freeholders of the County'] arc held and firmly bound unto
T. S" Sheriff of the County of in the State of Ohio, in the
penal sum of dollars [Do?ibIe the appraised value of the prop-
ertij'] to the payment of which well and truly to be made we do
b}^ these prcfcnts jointly and severally bind ourselves, our heirs, ex-
ecutors and administrators, sealed with our seals, and dated tills
day of A. D.
The condition of the above obligation is such, that, whereas, by
virtue of a writ of attachment issued out of the Court of Common
Pleas of the said county of against C. D. at the suit of A. B.
bearing date the day of A. P. the said Sheriff hath
seized upon and taken the following property, in the possession
of the said T. F. to wit, [description'] and which has been apprais-
ed according to law to I 'ollars, and upon the ensealing of these
presents is redelivered to the said T, F. Now, if the said prop-
erty above described, or its appraised value in money, shall be
forth-coming to answer the judgment of said Court, then this ob-
ligation shall be void; otherwise in full force and virtue in Law.
T. F. Seal.
E. F. Seal.
G. F. Seal.
Upon the return of the writ it is the duty of the Clerk, to make
out an advertisement, and deliver the same to the Plaintiff, or his
attorney on demand, who must cause the same within tiiirty days,
to be inserted in one of the newspapers printed in the State, and
nearest the place where the attachment issued, for six weeks suc-
cessively; and if the plainlill" neglects to iiave such notice published,
the attachment will be dismissed with costs. Slat. vol. 2i), p. 131.
§3.
Ww
863 ATTACHMENT.
Form of Advertisement.
All persons interested will take notice that A. B. on the
day of A. D. sued out a writ of attachment from the
Court of Common Picas of County in the State of Ohio,
against C. D. for the sum of Dollars, which writ has been
served and returned.
Attest.
T. C. Clerk.
Dated, &c
A. T. atty. forPIff.
Form of Affidavit to make Garnishee partv.
A. B. J
vs > In Case, &c.
C. D )
The above named A. B. [^Or other credible
person. Stat. vol. 29. p. 131. § 5.] makes oath and says that he
has good reason to, and does verily believe, that T. W. has in his
possession the following property, \_descriptLon'\ belonging to the
above named defendant.
Signed, A. B.
Sworn to, &c.
If the Sheriff cannot come at such property, he is to leave with
the garnishee, or at his usual place of residence, a copy of the writ
of attachment, and of the above affidavit, with the following
notice.
ATTACHMENT. 3M
Form of Notice to Garnisheb.
Common Pleas — Attachment.
To T. W. of, ^c.
You are hereby notified
to appear on the first day of the next Term of said Court, and an-
swer such questions as may be put to you touching the property
and credits of the above named defendant, in your possession, or
within your knowledge, and abide the order of the Court in the
premises.
A. B.
Dated, cc/a7-a/io«5 i?i Assumpsit, Case,
364 BILLS OF EXCEPTION.
Bills of Exception.
Forms of Bills of Exception.
In case, &c.
Be it remembered, that on the trial of this cause
in the Court of Common IMeas of County at the Term
thereof, A. D. the said A. B. to maintain the issue on his
part, offered to prove to the Jury, that, ^c. [Sta'e the evidznce ob-
jected to and ove?'fuJed, (t/id such other nu.tter as will show the j) ar-
ticular point wherein thepartij excepting m :y have been injuredhy
the opinion excepted to. 4 Ohio Rep. 888. OJiio Conds. 838]
Wliereupon the said C D. objected to the admission of said testi-
mony, which objection was overruled by the Court, and said tes-
timony admitted, to which opinion of the Court, the said < ". I), ex-
cepted and prayed that his Bill of exceptions in that behalf might
be allowed, which is accordingly done; and upon his motion,
the same is ordered to be made a part of the record in this case, (n)
E. F. Seal.
Term, A. D. G. H. Seal.
T. S. Seal.
T. T. Seal.
{a) Bills of Exceptions may be taken to the opinion of the Court, on a
motion to direct a nonsuit, to arrest the testimony trom the Jury, and in
all cases (if motions fur a new tria', by reason ofany supi)osed misdirection
of the Court to the Jury, orliy reason that a verdict is supposed to bo against
law. Stdt. vnl.'Z'^. ^^ 75 ^ ^G. The bill must he; si In Case.
C. D. )
Be it remembered that on the trial of this
cause in the court of Common Pleas of County, at the
Term thereof A. D. the evidence on both sides being closed,
the defendant moved the Court to instruct the Jury, that, &c.
which instructions the Court refused to give to the Jury, and
thereupon the said defendant excepted to such refusal, and prayed
tiial his Bill of Exception in that behalf might be allowed, which is
accordingly done; and upon his motion the same is ordered to be
made a part of the record in this cause. [See, last precedent.
Note (ci) J
ticns whether true or not. Thn power of detprminincr whether a T3il] of
GXCPi)tions is true or not. is vested in the .Tiultrcs, to whom it is prrsonted
for signature. 4 Ohio Rpp.'^'yi. Ohio Cond^ 8 .'(). There is no law in
tlii8 stit.e, an'lioriainir hyt^land, rs to allow or certify hills of Exceptions.
2 O.'do Rep. 355. Ohio Coiids. 350.
366 APPEAL.
Appeal.
In all civil cases, an appeal, lies, of course, to the Supreme
Court from any judgment or decree rendered in the Court of Com-
mon Pleas, in which the latter Court has original jurisdiction, {a)
The party wishing to appeal his cause must enter upon the record
his intention so to do, during the term in which the judgment or
decree is rendered ; and within thirty days after the close of such
term must execute a bond to the adverse party conditioned as the
law directs. Stat. vol. 29, p. 78. § 1G8. 109. Administrators and
executors may appeal without bond. Ihid 1 Ohio Rep. 518.
Ohio Conds. 218. An appeal does not vacate a submission to ar-
bitration nor the award. 1 Ohio Rep. 271. Ohio Conds. 130. In
a joint action against several defendants, one may appeal the
whole cause, by giving the bond required by law, but such appeal
cannot affect his co-defendant. 1 Ohio Rtp. 518. Ohio Conds. 217.
An appeal lies to the Supreme (]^ourt though the trial in the
Common Pleas was irregular. 1 Ohio Rep. 534. Ohio Conds. 226.
In Replevin the plaintiff may appeal from a voluntary judgment of
non-suit. 2 Ohio Rep. 79. Ohio Conds. 2G1. So, in all cases when
a non-suit is directed in the Court of Common Pleas, by reason of
irrelevancy of testimony, or by reason that the testimony addu-
ced, does not support the case, set forth in the declaration, and
also whenever the testimony is arrested from the jury, by reason,
of which the plaintiff becomes non-suit. Slat, vol 29. p. 75. §96.
If the appeal bond be executed after verdict, but before judgment
the appeal will be quashed. 2 Ohio Rep. 253. Ohio Conds. 349.
So, if the bond be not double the amount of the judgment and costs.
(a) In what cases appeals ma}' be taken from interlocutory Decrees,
seems not to have been definitely settled by our Supreme Court. It has
been held on the Circuit, that an appeal will lie from an interlocutory de-
cree for the sale of mortgaged premises, or a bill to foreclose; or for the
sale of real estate geneially. The general current of decisions on the
Circuit seems to be, that an appeal lies from any interlocutory Decree,
which is in its nature final or conclusive of the subject matter, or which d«-
termines the rights of the parties, in the matter in controversy.
APPEAL. 3G7
5 Ohio Rep. 27G. 337. 4 Ohio Rep. 175. Ohio Conds. 76G.
Where the plaintiff appeals, and recovers no more in the Supreme
Court than in the Court of Common Pleas, two judgments are
entered, one for the plaintiff for the amount recovered, and the
other for the dc'bndant, for the costs on the appeal. 3 Ohio Rep.
72. Ohio Conds. 47G. An appeal does not lie on an application
to redeem land sold for taxes. 3 Ohio Rep. 277. Ohio Conds.
57Sr. When an appeal is quashed for a defect in the appeal bond,
occasioned by the mistake or oversight of the Clerk, a Court of
equity will order a new trial, upon a proper case made. 4 Ohio
Rep. 175. Ohio Conds. 7GG. In cases certified to the Common
Pleas, upon attachment from Justices of the Peace the Common
Pleas have original jurisdiction, and an appeal lies to the Su-
preme Court. 3 Oliio Rep. 202. Ohio Conds. 323.
Notice of appeal is generally given at the time of the rendition
of the judgment or decree, and it is entered on the journal imme-
diately after the entry of the judgment or decree, thus : "Notice
of appeal by the defendant, or, plaintiff, or, hj both parties.''^
When an appeal is taken, and bond and security given, the judg-
ment or decree of the 0»\irt of Common Pleas is suspended ; the
lien however, of such judgment or decree, upon the real estate of
the appellant, is not removed or vacated by the appeal ; but such
real estate remains bound in the same manner as if the appeal had
not been taken. Slat. vol. 29. p. 78. 79. § 110. 112. If the plain-
tiff appeal, and do not recover a greater sum in the Supreme Court,
than in the Court of Common Pleas, exclusive of costs and inter-
est, which have accrued after the rendition of the judgment in the
the Court of Common Pleas, the Supreme Court will render judg-
ment against him for the costs accruing in the Supreme Court : and
if the defendant appeal, in any personal action, and the plaintiff
recovers the same, or a larger sum than was recovered in the
Court of Common Pleas, exclusive of costs, the Supreme Court
will render judgment for the sum so recovered, with costs of suit.
Stat. vol. 29. ;;. 79. § 111.
368 APPEAL.
Form of Appeal Bond.
Know all men by these presents that we A. B. and C. (a) are
held and firmly bound unto I. S. in the penal sum of dollars
[^at least double the amount of the judgment or decree, including
costs] to the payment of which well and truly to be made, we do
hereby jointly and severally bind ourselves, our heirs, executors
and administrators, sealed with our seals and dated this day
of A. D.
The condition of the above obligation is such, that whereas the
said A. has taken an appeal from a certain judgi7ient, or, decree,
rendered against him in favor of the said I. S. in the Court o^
Common Pleas within and for the County of in the state of
Ohio, at the term thereof A. D. for the sum of dol-
lars, debt, or, damages, and dollars costs, (6) to the Supreme
Court within and for the County aforesaid ; Now, if the said A.
shall pay the full amount of the condemnation in said Supreme
Court, and costs, in case a judgment, or decree, shall be entered
therein in favor of the appellee, then this obligation shall be void: '
otherwise in full force and virtue in law.
Approved by me, T. C. Clerh.
A. [seal.]
B. [seal.]
C. [seal.]
After the bond is execuied and approved, the Clerk of the Com-
mon Pleas will make out an authenticated transcript of the jour-
( Partition Com. Pleas County.
C. D. et al. )
We the Commissioners appointed in this cause, to assign dower
to T. S. widow of T. T. late of, &c. deceased, in the following
real estate, situate, &c. [describe the lands as in the writ\ and also
to make partition of the same lands, subject to said dower estate,
between A, B. C. D. E, F. and G. H, and having been duly sworn,
upon actual view of the premises, do assign to the said T. S. for her
dower estate, so much of said lands as is contained within the fol-
lowing limits: [Hei'e set out the description hy vietes and bounds.l *
And we do also set off and assign to the said A. B. in severalty,
for his share of said lands, so much thereof as is contained within
the following limits: [Here set out the description by 7?ietes and
bounds.'] And we do also set off and assign to the said C. D. in
severalty, &c. [Proceed in the same manner to assign to each his
share.]
Given under our hands this day of day of A.
D. .
(Signed.)
If in the opinion of the Commissioners, partition of the estate
cannot be made, without manifest injury, it is their duty to report
the same to the Court, and to make out and return a just valuation
of the estate. Stat. vol. 29, p. 256, § 8. The report may be in
the following form:
Report of Valuation by Commissioners.
[Proceed as in the last precedent to the *] — And upon further
view of the premises we are of opinion, that said lands cannot be
PARTITION. 877
divided without manifest injury to the same, and thereupon we do
estimate the value thereof, subject to said dower estate, at ■
dollars.
Given under our hands this day of A D. — — .
(Signed.)
The report of the Commissioners is attached to the writ which
is returned, by the Sheriff, to the Court endorsed, thus:
Sheriff's Return.
I have executed this writ, by the oaths of the within named
Commissioners, whose report is herewith returned.
A. T, Sheriff" of County,
Dated, &c.
No. 1. Report of Partition confirmed.
On motion to the Court by Mr. O. Counsel for the Petitioner and
upon producing the proceedings of the Sheriff, and also the report
and proceedings of the Commissioners hereinbefore appointed, and
the same being examined. It is ordered that said proceedings and
report be and the same are hereby approved and confirmed; and
that the said parties hold in severalty the shares set off and assign-
ed to each respectively by the said Commissioners: and it is fur-
ther ordered that the costs and expenses of this suit taxed to
dollars, be paid within days, by the parties in the following
proportions, to wit, (Src: («) and in default thereof that execution
issue therefor.
(a) The costs and expenses, are to be tax^d accorJing to equity, having^
regard to the interest of the parties, and the benefit each may derive from
the partition. Stat, vol, 29, p. 2'^S, \ 10. In some parts of the State it i«
luual to include in the bill of costs, reasonable counsel f«es.
Yt
378 PARTITION.
Upon the return of the Commissioners, that partition cannot be
made without manifest injury to the estate, any one or more of the
parties may elect to take the estate at the valuation of the Commis-
sioners, upon making payment to the other parties; and the Sheriff
is authorized to make a deed accordingly. Stat. vol. 29, p. 256,
§8.
No. 2. Order confirming an election by one of the par.
TIES, AND DIRECTING THE SheRIFP TO MAKE DEED.
On motion to the Court by Mr. O. Counsel for the Petitioner,
and upon producing the proceedings of the Sheriff and the report
and proceedings of the Commissioners hereinbefore appointed, and
the same being examined: It is ordered that said proceedings and
report be and the same are hereby approved and confirmed, and
thereupon the said A. B. electing to take said estate at the said
valuation of said Commissioners, and having paid to the said C.
D. E. F. and G. H. their respective proportions of the appraised
value thereof, the said estate is hereby adjudged to the said A. B.
and the said Sheriff is ordered to execute a deed in fee-simple for
the same to the said A. B. according to the statute in such case
made and provided: And it is further ordered, &c. [^Conclude as
in No. 1.]
Form of Sheriff's Deed, to party electing to take the
ESTATE.
To all to whom these presents shall come — Greeting:
Whereas on the day of A. D. , A. B. of, &c. filed
his certain petition in the Court of Common Pleas, within and for
the County of against C. D. E. F. and G. H. demanding par-
tition of certain real estate hereinafter described, and whereas such
proceedings were had upon said petition, that the Commissioners
appointed by said Court to make partition of said estate, made re-
port, that partition of the same could not be made without manifest
injury, and that the value thereof was dollars: and whereas at
PARTITION. 379
the Term of said Court A. D. the said report of said Com-
missioners was approved and confirmed by said Court, and the said
A. B. electing to take said estate at the valuation of said Commis-
sioners, and having paid to the said C. D. E. F. and G. H. their
respective proportions of the appraised value thereof, the said Court
did adjudge said estate to the said A. B. and did order the said She-
riff to execute a deed in fee-simple for the same to the said A. B«
all w^hich will more fully appear reference being had to the records
of said Court: Now, Therefore, I, W. X. the Sheriff aforesaid,
in consideration of the premises, and by virtue of the powers in me
vested by law, do by these presents grant, bargain, alien, and con-
vey unto the said A. B. and unto his heirs and assigns forever the
said real estate so adjudged as aforesaid to the said A. B. and which
is bounded and described as follows, to wit: [Describe the lands as
in the petition.'] with all and singular the appurtenances.
To have to hold the said premises to him the said A. B. and to
his heirs and assigns forever.
In testimony whereof, I hereto set my hand and seal, as Sheriff
as aforesaid, this day of A. D. .
W. X. )
Sheriff of ■ County, jj
Executed and delivered
in our presence,
T.-X.
M. X.
The State of Ohio, County, ss.
Be it remembered, that on this dav of A. D.
before mc one of the Justices of the Peace within and for the county
aforesaid, personally came W. X. and acknowledged the fore-
going instrument to be iiis free and voluntary act and deed a«
Sheriir of said county of .
S. li. Jxis. Peace.
380 PARTITION.
If partition cannot be made and neither of the parties elect to
take the estate, the Court, on motion of the demandant, will order
the estate to be sold by the Sheriff, in the same manner as lands
are sold upon judgments at law. Stat. vol. 20, p 25G, § 9.
Order to sell the Estate.
On motion to the Court by Mr. O. counsel for the Petitioner, and
upon producing the proceedings of the Sheriff', and the i^eport and
proceedings of the Commissioners hereinbefore appointed, and the
same being examined, It is ordered that said proceedings and re-
port be, and the same are hereby approved and confirmed; and
thereupon neither of the parties electing to take said estate, at the
valuation thereof, as returned by said Commissioners; on motion
of the Petitioner, It is ordered that said estate be sold at public
auction, by the Sheriff of said county of according to the
statute in such case made and provided.
The Sheriff, upon receiving a certified copy of this order, will
proceed to advertise and sell, as upon judgments at law, and return
his proceedings accordingly.
Confirmation of Sheriff's sale, deed ordered, and money,
distributed.
On motion to the Court by Mr. O. counsel for the Petitioner
and upon producing the proceedings of the Sheriff and the sal 3
by him made in pursuance of a former order of this Court and the
same being examined, It is ordered that said proceedings and sale
be and the same are hereby approved and confirmed ; and there-
upon it appearing that the consideration money of said estate has
been paid by said purchaser into the hands gf the Sheriff, it is
ordered that the Sheriff execute and deliver to the said purchaser
a deed in fee simple for said estate ; and it is further ordered that
out of the same consideration money, the said Sheriff pay the
PARTITION. 381
costs and expences of this suit, amounting to dollars (a), and
that he distribute the residue thereof between the said parties in
the following proportions, to wit, To A, B. dollars : To C. D.
dollars, &c.
Form of Sheriff's deed to purchaser.
To all to v/hom these presents shall come — Greeting :
Whereas on the day of A. D. A. B. of, cfec.
filed his certain petition in the Court of Common Pleas within
and for the County of against E. F. G H. and C. D. de-
manding partition of certain real estate hereinafter described, and
whereas such proceedings were had upon said petition that at
term of said Court A. D. the SheritTof said County
of was ordered to sell said real estate at public auction, and
the said Sherifl'having caused the same to be duly advertised, did
on the day of A. *D. sell said real estate at public auc-
tion to T. S. for the sum of dollars, which sale was after-
wards at the term of said Court A. D. approved and
confirmed and the said Sheriff" ordered to execute and deliver a
deed in fee simple to the said purchaser for said estate ; all which
will more fully appear reference being had to the records of said
Court. Now, therefore, I, W. X. the ShGriff" aforesaid, in con-
sideration of the premises, and by virtue of the powers in me
vested by law, do by these presents grant, bargain, alien and con-
vey unto the said T. S. and unto his heirs and assigns forever the
said real estate, so sold as aforesaid and which is bounded and des-
cribed as follows, to wit, [Dcsci-ibc the land as in the petition,']
with all and singular the appurtenances, to have and to hold the
said premises to him the said A. B. and to his heirs and assigns for-
ever.
In testimony whereof, [Conclude as in Shcrijf deed, ante. 370]
[u) Ske, ante. 377. note {a).
382 DOWER.
Dower.
The widow of any person dying, is endowable ofono fu]l equal
third part of all the real estate, both legal and equitable, of which
her husband was seized, as an estate of inheritance, at any time
during the coverture. Stat. vol. 29. p. 250. § 1.
The most common, and, at this time, perhaps the universal rem-
edy, for enforcing the assignment of dower, upon the direct ap-
plication of the widow, is \^j petition in Chancery, under the Sta-
tute; although the common law writ of dower, has been, and prob-
ably still may be, resorted to. 1 Ohio Rep. 99. Ohio Conds 45.
Dower is also frequently assigned upon proceedings in partition
and in sales by Administrators. See, Partition and Sales hy Ad-
ministrators.
FoR.M OF Petition for Dower.
To the Court of Common Pleas within and for the
County of («). and State of Ohio; in Chancery sitting.
A, B. of, &c. represents that T. B. late of, SfC. departed
this life on or about the day of A. D. leaving your
Petitioner his widow, and C. B. and D. B. his heirs at law and legal
representatives, (b). That the said T. B. during coverture with
your Petitioner was seized, as an estate of inheritance, of the follow-
ing real estate, situate, &c. [descriptioii] in which your Petitioner
is entitled to dower; and that your Petitioner on or about in
a peaceable manner, requested the said C. B. and D. B. to assign
(a) When the lands lie in several Counties the petition must be prefer-
red in the County where the principal messuage of the deceased is situated
Slat. vol. 29. p. 251. 5 11-
[h). The heir or other person having the next immediate estate of in-
heritance, must be made defendant. Idid. ^ 9.
DOWER. 383
reasonable dower in said premises to your Petitioner, which they
refused to do. (a). Your Petitioner therefore prays that said C. B.
and D. B. may be made defendants to this petition, that they may
answer the same, and that reasonable dower in said premises
may be assigned to your Petitioner, and that she may have such
other and further relief in the premises as shall seem equitable.
By T. S. her Sol.
The petition is filed with the Clerk of the proper Court, who
issues process as in other cases in chancgry. See, J.nte, 265. De-
fence is also made by plea, answer or demurrer as in other cases
in chancery. See, Ante. 265.
Form of Decree for the assignment of dower.
This cause came on to he heard upon the petition, answer, repli-
cation, 6fC. and was argued by counsel, on consideration where-
of, oY, On motion of the court hi/ Mr. O. counsel for the Petitioner,
It is ordered that the said Petitioner be endowed of one full equal
third j)art of the lands in the said petition described; and it is further
ordered that a writ issue to the Shcrilf of the County of com-
manding him, that by the oaths of three judicious, disinterested men
of the vicinity, who arc not of kin to either of said parties, he cause
such dower to be set ofl'and assigned to the said Petitioner, accor-
ding to the Statute in such case made and provided.
(a). Arequest to assign dower ouglit to be niade whenever it is practi-
cable, otherwise costs may be decreed against the Petitioner.
384 DOWER.
Form of writ for the assignment or Dower.
[Seal.] The State of Ohio County, ss.
To the Sheriff of County: Greeting:
We command you, that without delay, by th§ oaths of three ju-
dicious, disinterested men of the vicinity, who arc not of kin to ei-
ther of the parties interested, you cause to be set off and assigned
to A. B. of, &c. widow of T. B. late of &c. deceased, one full
equal third part of the following real estate, situate, &c. [Describe
ike lands as in the petition'] in pursuance of an order lately made
in our said Court of Common Pleas within and for the said County
of in a certain petition for dower, wherein the said A. B. is Peti-
tioner and C. D. and D. B. respondents; and that your proceedings
in the premises, you distinctly certify under your hand to our said
Court of Common Pleas, on the first day of their next Term, and
have you then there this writ.
Witness, T. T. President Judge of our
said Court of Common Pleas, this day of A. D.
Attest. T. C. Clerh.
Under this writ, the SherifTis bound to select three men, such as
are described in the writ, and see that the proper oath be adminis
tered to them, and if necessary assist them in makinsr the assicrn-
ment. He then returns the writ endorsed thus:
Sheriff's Return.
By the oath of A. E. S. P. and T. U. three judicious, disinteres-
ted men of the vicinity, who are not of kin to either of the
parties, I have caused to be set off and assigned to the within nam-
ed A. B. as her dower estate, so much of the real estate within
DOWER. 885
described as is contained within tiie following boundaries [Set out
the metes and hounds specially.'\
F. M. Sheriff of County.
Dated, (Sec.
Sheriff's assignment confirmed and writ of seisin ordered.
Onmotion to the Court by jlr. O. counsel for the Petitioner, and
upon producing the proceedings of the Sheriff and the assignment
of Dower io the Petitioner by him made in pursuance of a former
order of the court, and the same being examined, It is ordered that
said proceedings and assign nent of do^vcr be and the same are here-
by approved and conlirmed, and that the said A. B. stand endowed
of so much of said real estate as is contained within said assign-
ment, and bounded as follows \_S^t oullhr, metes and bounds as in
the She7'ijf's return, { In Case.
C. D. )
The said C. D. moves the Court for a 7icw trial, or, in arrest
of judgment, tjj-c. in this cause, for the following reasons:
1. That, &c.
It is the better practice, to enter the motion upon the Journal,
at the time it is made, thus :
A A A
394 MOTIONS.
Journal entry of Moiion.
In Case.
The said C. D. by Mr. O. his counsel, moves the Court for a
new trial, or, in arrest of judgment, 6^0. in this cause, for reasons
on file.
The Court will, in general, require reasonable notice of the mo-
tion to be given to the opposite party, or his counsel; and after ar-
gument the motion, is either granted or over-ruled, with or w^ithout
costs, in the discretion of the Court, according as they are of opi-
nion that 'the motion ought or ought not to ha,ve been made, and
ought or ought not to have been resisted.
Motion to produce Books and Writings.
The Supreme Court and Court of Common Pleas, in the trial of
actions at law, are authorized, on motion, and on ten days notice
thereof, to order the parties to produce Books and Writings in
their possession or power, which contain evidence pertinent to the
issue, in cases, and under circumstances, where they might be
compelled to produce the same, by the ordinary rules of proceed-
ing in Chancery; and if the plaintifi' fail to comply with such order,
judgment of non-suit may be rendered against him; and if the de-
fendant fail to comply with the same, judgment may be rendered
against him by default. Stat. vol. 29, p. 76, § 97. This mode
of proceeding is much more expeditious and much less expensive
than a Bill of Discovery, and may often be substituted in its stead.
The form of the notice may be thus:
MOTIONS. 3D5
Form of Notice to produce Books, &c.
A. B. ^
vs. > Tn Assumpsit — Com. Pleas.
CD. )
The said C. D. will take notice, that on the day of
next, or as soon thereafter as counsel can be heard, application
will be made to the Court, by the said A. B. for an order upon the
said C. D. to produce on the trial of this cause, the following,
Books, Sf'C. \_D e script ion. ^ in the possession or power of the said
C. D. and which contain evidence pertinent to the issue in this
cause.
A. B.
Dated, &c.
This notice must be served on the opposite party, at least ten
days before application for the order is made. If the motion
be granted, which is generally done as a matter of course, and
without cause shown, the entry may be thus:
Order to produce Books and Writings.
In Assumpsit.
A. B. by Mr. O. his counsel, this day moved the Court for an
order upon C. D. to produce upon the trial of this cause, the fol-
lowing Books, 6fC. and it appearing to the Court that due notice of
this motion had been given to the said C. D. It is thereupon or-
dered, that the said C. D. do produce, in open Court, on the trial
of this cause, the said Books, 6fC. then and there to be in spected,
and otherwise used as the Court shall direct.
396 MOTIONS.
The Books, &c. must be produced, on the trial of the cause, if
within the possession or control of the party; but if not, affidavit
to that effect must be made and filed in the cause. The form
mav be thus:
A. B. )
vs. > In Case.
C. D. )
The said C. D. makes oath and says, that the Books, <^'C. spe-
cified in a former order in this cause, are not, and at the time no-
tice to produce the same was served upon him, were not, and never
since have been, in the possession of the said C. D. or in any man-
ner whatever within his power or under his control, (a)
C. D.
Sworn to, &c.
If the Books, &c. are in the possession of the party, and he re-
fuses to produce them, agreeably to the order of the Court, judg-
ment of non-suit, or by default, may be taken. See Judgments.
{a) Qnere: Can counter affidavits, or other testimony, be admitted to
falsify the affidavit.
CONTINUANCE. 397
CONTINUANCE.
The term continuance imports the continuing of a cause in Court,
by an entry upon the records for that purpose; or as expressed,
•3 Blac. Com. 318; from the time of the defendant's appearance, it
is necessary that both parties be kept or continued in Court from
day to dav, until the final determination of the suit. As then the
parties, with their proceedings, should be regularly before the
Court, the cause, if not tried at the issue term, should be continued
by a proper entry upon the Journal of the Court. VI Peter sd. Ahg.
169. In England the continuances may be entered at any time-
6 T. R. G18, 1 Tidd. 183, n. (d). And the want of a continuance
is aided by the appearance of the parties. 1 Wih. 40. VI. Petersd.
Abg. 171. So the want of continuances is aided by the statute of
Jeofails, and where error is brought, such want shall not be assign-
ed for error. 1 Lee's Diet, of Practice 376, VI Petersd. Abg. 171.
How far these principles would be recognized by our Courts, re-
mains to be determined, there being no reported decisions upon the
subject. Continuances are granted, of course, or by consent or
upon cause shown, and are regulated by Rules of Court, which
vary in different Circuits. In general, the grounds for a continu-
ance are submitted to the Court, in the shape of an affidavit, and
the application is rejected or allowed, in the discretion of the
Court. The form of an affidavit for a continuance, on the ground
of the absence of a witness, may be in the form following, and
wliich can be readily adapted to any other state of facts.
Form of Affidavit for Continuance for the absence of a
Witness.
In Case.
The said C. D. makes solemn oath, that E. B. of, &c. is a ma-
terial witness for him, in this cause, without whose testimony, he
398 CONTINUANCE.
cannot safely proceed to the trial thereof, as he is advised and verily
believes to be true: that on this deponent sent to the place of
residence of the said E. B. for the purpose of serving him with a
subpoena in this cause, but the said E. B. was absent on a journey
to , from whence he is not expected to return until some time
after the expiration of the present term of this Court, as this depo-
nent is informed and verily believes to be true: that deponent hopes
and expects to procure the attendance of the said E. B. at the next
term of this Court, and that this affidavit is not made for delay
merely, but for the purposes of justice.
C. D.
Subscribed and sworn to in
open Court, this day of
A. D. .
Attest— Y. C. Clerh.
The Journal entry of a continuance may be in this form:
A. B. ^
vs. > In Case.
C. D. )
Continued, or. Continued at"the costs of defendant, or, plaintiff.
OATH.S. 399
Oaths.
Oath to Foreman of Grand Jury.
You do solemnly swear or affirm, that saving yourself and fel-
low jurors, you, as foreman of this grand inquest, shall diligently
inquire*, and true presentment make, of all such matters and things
as shall be given }'ou in charge, or otherwise come to your know-
ledge, touching the present service: the counsel of the State, your
own and your fellows, you shall keep secret unless called on in a
Court of justice to make disclosures: you shall present no person
through malice, hatred or ill will, nor shall you leave any person
unpresented through fear, favor, or affection, or for any reward or
hope thereof: but in all your presentments, you shall present the
truth, the whole truth, and nothing but the truth, according to the
best of your skill and understanding: and this you do, as you will
answer to God at the Great Day, or, under the pains and penalties
of perjury, (a).
The like to the other Grand Jurors.
You and each of you do solemnly swear, or, affirm, that the same
oath which A. B. your foreman, hath now taken, before you, on
his part, you and each of you shall well and truly observe and
keep on your respective parts: and this you do, as you shall an-
swer to God at the Great Day, or, under the pains and penalties
of perjury, (a).
{a). Those foriue are prescribed by Statute. Vol. 20. p. 97. } H- 1~-
400 OATllfe.
Oath of Executors.
You do solemnly swear in the presence of Almighty God, the
searcher of all hearts, or, upon the Holy Evangelists of Almighty
God, or, you do solemnly declare and affirm, that this writing con-
tains as far as you know or believe, the true last will and testament
of A. B. and that you will well and truly perform the same, by
paying first the debts, and then the legacies contained in said will,
as far as his goods, chattels, credits and effects will extend, and
the law charge you, and that you will make a true and perfect in-
ventory of all the said goods, chattels, credits and effects, and also
a just account thereof as required by law: and this you do, as you
shall answer to God at the Great Day, or, under the pains and
penalties of perjury.
Oath of Adjiinistrators.
You do solemnly swear, in the presence of Almighty God, the
searcher of all hearts, or, upon the Holy Evangelists of Almighty
God, or, or you do solemnly declare and affirm, that A. B. de-
ceased, died without any will, as far as you know or believe, and
that you will well and truly administer all and singular the goods,
chattels, credits and effects of the said deceased, and pay his debts
as far as his goods, chattels, credits and effects, will extend, and the
law charge you, and that you will make a true and perfect invento-
ry of all the said goods, chattels, credits and effecls, and also a just
account thereof as required by law. and this you do, as you shall
answer to God at the Great Day, or, under the pains andpenalties
of perjury.
Oath op Petit Jurors.
You and each of you do solemnly sivear, in the presence of Al-
mighty God, the searcher of all hearts, or, upon the Holy Evangelists
OATHS. 401
of Almighty God, or, you and each of you do solemnly declare and
affirm, that you will well and truly try the issue joined between the
partiesin this cause, wherein A. B. is Plaintiff and C. D. Defendant,
and a true verdict give according to the evidence; unless with-
di'awn by the parties or dismissed by the Court: and this you do,
as you skall anncer to God at the Great Day, or, under the pains
and penalties of perjury.
Oath of witnesses before Jury.
You and each of you do solemnly swear, in the presence of Al-
mighty God, the searcher 'of all hearts, or, upon the Holy Evange-
lists of Almighty God, or, you and each of you do solemnly declare
and affirm, that you will testify the truth the whole tru'h and no-
thing but the truth, in the cause now pending here before the jury
wherein A. B. is Plaintiff and C. D. Defendant: and this you do, as
you shall answer to God at the Great Day, or, under the pains and
penalties of perjury.
The like before the Couut.
You and each of you do solemnly swear, in the presence of Al-
mighty God, the searcher of all hearts, or, upon the Holy Evange-
lists of Almighty God, or, you and each of you do solemnly de-
clare and affirm, that you will testify the truth, the whole truth
and nothing but the truth touching the matters now under examin-
ation before the Court: and this you do, as you shall answer to God
at the Great Day, or, under the pains and penalties of perjury.
Bbb
402 SELECT WRITS.
Select Writs.
No. 1. Attachment for contempt of Court.
[Seal.] The State of Ohio Count3% ss.
To the Sheriff of said County, Greeting.
We command you * that you attach E. F. so as to have his
body before our Court of Common Pleas within and for the said
County of forthwith, or, on the first day of their next term, to
answer us of a certain contempt by him lately committed against
us, as it is said, and further to do and receive what our said Court
shall in that behalf consider: Hereof fail not, and have you then
there this writ. («).
Witness, T. T. President Judge of our said Court
of Common Pleas, this day of A. D.
Attest. T. C. Clerk.
No. 2. Habeas Corpus, to give evidence.
[Proceed as in No. 1. to the * that the body of E. B. in
our prison under your custody, as it is said, detained, under safe
and secure conduct, by whatever name the said E. B. may be
called in the same, you have before the Judges of our Court of
(a). It is customary to endorse upon the writ the substance of the com-
plaint thus: "For not appearing and answering a Bill in Cliancery exhib-
ited against him by A. B." or, "for not appearing as a witness in behalf of
A. B. having been duly summoned," or, "for not appearing to settle up the
estate of A.B. as administrator thereof," &c.
SELECT WRITS. 403
Common Pleas within and for the said County of at the Court
house of said County, on the 10^/^ day of this instant month at eight
o'clock before noon of the same day, then and there to testify the
truth of his knowledge in a certain cause in our said Court now
depending, and then and there to be tried, between A. B. Plaintiff
and C. D. Defendant: and then immediately after the said E. B.
shall have so given his testimony, to return him to the same prison
under like safe and secure conduct: Hereof fail not, &c. \_Conclude
as in No. 1.
No. 3. Special Mandate froji Supreme Court to Court
OF Common Pleas, to carry Judgment or Decree in
TO EXECUTION.
[Seal.J The State of Ohio County, ss.
To the Court of Common Pleas within and
for the said County of Greeting.
We command you, that you cause A. B. to have execution of a
certain Judgment, or, Decree, rendered in his favour against C. D.
by our Supreme Court within and for the said County of on
the day of A. L). for the sum of dollars, rfam-
ages and dollars costs.
Witness, T. T. Chief Judge of our said Supreme
Court this day of A. D.
Attest, T. W. Clerk.
404 SELECT WRITS.
No. 4. Procedendo.
[Seal.] The state of Ohio County, ss.
To the Court, &c. [As in the lastprecedenf].
We being moved with certain causes in our Supreme Court
within and for the said county of do command you, that with-
out delay, in a certain plaint against 0. l). at the suit of A. B, be-
fore you now depending undetermined, you proceed, in such man-
ner, according to the law of the land, as you shall see proper, any
other writ to the contrary in any thing notwithstanding.
Witness, &c. [Conclude as in last precedentj.
No. 5. Prohibition.
[Seal.] The State of Ohio County, ss.
To the Court (a) of Common Pleas within
and for the County of Greeting:
Whereas A. B. has exhibited before you his Petition against his
wife C. D. seeking a divorce, and dissolution of the marriage con-
tract between them, as we, in our vSupreme Court within and
for the County aforesaid, are informed: Therefore we command
you, if it be so, that you absolutely supersede that plaint from being
further proceeded in before you in that behalf.
Witness, &c. [Conclude as in No. 3.]
{&) The writ may be directed to the Court and to the party; and an
attachment will lie upon it. Fitz. N. B. 40.
SELECT WRITS. 405
No. 6. Restitution in Ejectment.
[Seal.] iThe vState of Ohio County, ss.
To the Sheriff of said County, Greeting:
Whereas by our writ reciting, that whereas John Doe on the
day of A. D. in our Court of Common Fleas within
and for the said County of recovered against Joseph Sridlh
his term yet to come in [Two messuages, 4'C. as in the Habere
Facias'] situate in your baiUwick, which John Rogers had demised
to the said John Doc for a term not yet ended, we lately command-
ed you, that you should cause the said John Doe to have his pos-
session of his term aforesaid yet to come, in the tenements afore-
said with the appurtenances, and how you should execute that our
writ you should make appear to the Judges of our said Court of
Com.mon Pleas on the first day of their then next Term, by virtue
of which writ you caused the said John Doc to have possession of
his term aforesaid in the tenements aforesaid, as by your return
thereof appears: and because that writ did wrongfully, unadvised-
ly and en oneously issue out of our said Court of Common Pleas,
therefore we command you that without delay you restore to the
said Joseph Smith his full possession of said tenements with the ap-
purtenances, from him so unjustly taken as aforesaid; and how
you shall execute jhis writ make appear to the Judges of our said
Court of Common Pleas on the first day of their next term, and
have you then there this writ.
Witness, &;c. [Conclude as in No. 1].
406 SELECT WRITS.
No. 7. SuBPfENA FOR WITNESSES.
[seal.] The State of Ohio County, ss.
To T. R. &c. [names of witnesses] (a) Greeting:
We command and strictly enjoin you and each of you, that
layino" aside all manner of businesses and excuses whatsoever, you
and each of you be and appear in your proper persons before the
Judo-es of our Court of Coiiimon Pleas, within and for the said
County of at the v'ourt House in said County, on the 2\st
day of September next, at 10 o'clock forenoon, (/>) then and there
to testify what you and each of you may know, in a certain ac-
tion in said Court pending, wherein A. B. is plaintiff and C. D.
defendant : and this do you under the penalty of the law.
Witness, as within and for the said county of a writ of
capias ad respondendum, against C. D. in the words and figures
following, to wit: \^Iiei-e set out the writ, verbatiyn.'] Upon which
writ, T. W. the Sheriff of said county, afterwards, to wit: on the
414 CIRCUIT COURT.
day of A. D. made the following return, to wit
{^Hei'e set out the return verbatim.'] And afterwards, to wit: on the
day of A. D. the said C. D. filed his petition to
remove this suit into the Circuit Court of the United States for the
District of Ohio, and which petition is in the words and figures fol-
lowing to wit: [He}'e set out the petition, verbatim.'] and after-
wards, to wit: on, &c. the said Court of Common Pleas made the
following order in the premises, to wit: [Here set out the order of
removal verbatim.]
The State of Ohio County, ss.
I, F. W. Clerk of the Court of Common Pleas within and for
the said county of do hereby certify, that the foregoing is a
true copy of the process, and proceedings thereupon had by the
Court aforesaid, as the same remain of record in my office.
(^'^^ In testimony whereof I do hereto set my name
-^ SEAL, y and official seal this day of A. B,
F. W.
SPECIAL ENTRIES. 416
special entries.
Appointment op Guardian chosen by Infant.
A. B. aged years on the day of past, son of E.
B. deceased, this day came into CoLirt nnd made choice of S. H.
as his guanhan, who thereupon appeard in open Court and ac-
cepted said appointment and gave bond with security to the accept-
ance of the Court, in the penalty of dollars conditioned as
the law directs.
The like, where Infant cannot make choice.
,', :Qn motion to the Court, by Mr. O. it is ordered that S. H. be
appointed guardian of A. B. aged years on the day of
past, and of E. R. aged years on the day of
past, infant children of T. B, deceased, and thereupon the said
S. A. appeared in open Court and accepted said appointment and
gave bond with security, to the acceptance of the Court, in the
penalty of dollars conditioned as the law dii'ects.
Tavern license granted
On motion of A. B. by Mr. O. his counsel. It is ordered that li-
cence be granted to him to keep a Tavern for the term of one
year from, &c. at his dwelling house in township in this
County, upon the payment of dollars.
Letters of administration granted and appraisers appointed.
A. B. widow of J, B. deceased having relinguished her right
to tha administration of said decedent's estate, m favor of G. H.
416 SPECIAL ENTRIES.
on motion of said G. H. by Mr. O. his counsel, It is ordered, that
letters of administration be granted to the said G. H. and there-
upon the said G. H. was duly sworn and gave bond with securi-
ty, to the acceptance of the Court m the penalty of dollars
conditioned as the law directs : Whereupon it is ordered by the
Court that CD. B. D. and A. D. appraise the personal property
of said estate.
Probate of Will.
The last will and testament of A. B. late of, &c. was this day
brought before the Court, and was proved by the oaths of S. and
T. two of the witnesses thereto, whose examinations were redu-
ced to writing, and it appearing to the satisfaction of the Court,
that the said A. B. at the time of executing said will was of full
age, and of sound mind and memory, and not under any restraint,
It is ordered that said will and the proof so reduced to writing be
recorded: * and thereupon on motion of D. L. the executor in said
will named. It Is ordered that letters testamentary be granted to
the said D. L. who was thereupon duly sworn, and gave bond
with security to the acceptance of ihe Court, in the penal sum of
dollars conditioned accordmg to law.
Letters of administration granted with the will annexed.
l^Proceed as in the last precedent to the * — and thereupon D. L.
the said executor in said will named refusing to act as such execu-
tor, [or, no executor being named in said will] and E. B. the widow
of the said A. B. having relinquished her right to the administra-
tion of said decedent's estate, in favor of G. H. ; on motion of the
said G. H. It is ordered that letters o administration with the
will annexed be granted to the said G. H. and thereupon the said
G. H. was duly sworn and gave bond with security, to the accep-
tance of the Court, in the penalty of dollars conditioned as
the law directs : whereupon It is ordered that C. D. B. D. and
A. D. appraise the personal property of said estate.
SPECIAL ENTRIES 41'
Rule for srcuiUTY roR costs.
On motion to ihe Court by Mr. S. counsel for the defendant, It ia
ordered that the plaintiff give security Pjr costs wllJuii if<^>j3,
or, by the first day of next term, and iu default liieicuf thai this causu
stand dismissed at the plaintiff's cost.
Security for costs entered in term time.
S. T. appeared in open Court and undertook for the said A. B. to
pay all the costs that have accrued and all the costs that may accrue,
in this cause, in default of the said A. B. to pay the same, {a)
Judgment for costs against security, on motion. See, Stat.
Vol. 29. p. 59. } 5.
On motion to the Court by Mr, O. counsel for the defendant [or
other person, entitled to the costs'] and it appearing to the satisfaction
of the Court, that S. T. was security for cos(s in a certain acli' n
heretofore, pending in this Court, wherein C. D. was plaintiff ami
E. F. defendant, and wherein judgment for costs was rendered
ogainst the said CD. and which costs, to the amount of dol-
lars remain unpaid; and it further appearing to the satisfaction of the
Court, that due notice of this motion has been given to the said S, T.
It is therefore considered that the said defendant c^'c. recover of the
said S. T. the said sum of dollars the costs due and unj)aid,
and that execution issue therefor accordingly.
(a) If Eccuiiiy is to be nrivcii in vacation, the endorsemont may be made
on the writ, thus : "I, !S. T. of &c. do undertake for the witliin plain-
tiff, lo pay all tlio costs that have accrued and all tlie costs that may ac-
crue, in tills cause, in default of the plaintiff to pay the same.
S.T.
Ddd
4J8 SPECIAL ENTRIES.
Verdict set aside and new tial granted.
This cause came on to be heard upon motion of the defendant to
set aside a verdict hereinbefore rendered and to grant him a new
trial, and was argued by counsel ; on consideration whereof, It is
ordered that said verdict be and the same is hereby set aside, and
that a new trial be had between the parties at the next term of this
Court; and thereupon on motion of the defendant this cause is con-
tinued.
Juror withdrawn and cause continued.
This day came the parties by their attorneys, and thereupon came
a jury, to wit, E. F. &c. who being empannelled and sworn the
truth to speak upon the issue joined between the parlies, by consent
of the parties and with the assent of the Court, G. S. one of the said
Jurors is withdrawn; whereupon it is ordered (hat the residue of said
Jurors be discharged, and that tlie cause be continued at the cost
of, &c.
Reference to arbitration.
This day came the parties by their attorneys and submit ail mat-
ters in difference between them in this suit to the final determination
of G. S. and T. S. and in case they disagree, to the determination
of such other person as they shall choose for umpire, whose award or
the award of such umpire thereupon, ihe parties agree shall be made
a judgment of this Court, and to such award or the judgment to he en-
tered thereon, no exceptions, either formal or otherwise shall be taken;
and the same is ordered accordingly.
Award returned and Judgment thereon.
This day came the parlies by their attorneys, and thereupon a cer-
tain award between the parties wasproducedjin the words and figures
SPECIAL ENPUIf'^S. 410
following, to wit, [Here insert the awiuul vrrbafi/ii.] uhcrei'pon it is
considered, &c. [Enter the judgment noreeahly to the nivard.]
Defendant stJBKE^'DEIlED uv SrEcrAL dail.
G, S. special bail for the said C. D. this day surrendered the
said C. D. in open Cjurt in discharge of his recognizance, and there-
upon on motion of the plaintiff, It is ordered that the said C. D. be
committed to the Jail of the County, there to remain until discharged
by due course of law. [If the defendant is not prayed into custody
then after the icord, "recognizance," say, and thereupon the said
G, S, is altogether discharged therefrom, and the plaintiff refusing
to pray the said C. D. into custody, it is ordered that the said C D,
be discharged."
Jury sworn and adjourned.
This day came the parties by their attorneys and thereupon came
a Jury, to wit, E. F, &c. who being empannelled and sworn the
truth.to speak upon the issue joined between the parties, and the evi-
dence not being closed, were adjourned until to-morrow morning at
nine o'clock.
Attachment awarded agafnst a witness.
A. S. who was summoned to appear here this day as a witness in
behalf of G. D. was solemnly called and came not, and thereupon
on motion of the said C. D. It is ordered that an attachment issue
against the said A. S. returnable forthxcith, or, on the first day of
the next term.
'1^0 SPECIAL ENTRIES.
Verdict and Judgjient set aside and New Tkial granted
This cause came on to be heard upon the motion of the defendant
to set aside the verdict rendered licrein on Friday last, and also the
judgment rendered thereupon j and was argued by counsel, on con-
sideration whereof, It is ordered * that the said verdict and judgment
be and (he same are hereby set aside, and that a new trial be had
between the parties at (he next term of this Court, upon the said de-
fendant paving the costs of this term; and thereupon on motion of the
defendant this cause is continued, at his costs.
Motion to set aside, verdict and judgment, and for a New
Trial over-ruled.
[Proceed as in the last precedent to the^ —that the said mo*
tion be overruled with costs.
Entry or- satisfaction.
A. B« this day came into Court and acknowledge himself satisfied
of the Judgment thereofore rendered in this cause.
License to Marrv.
On motion, and it appearing to the satisfaction of the Court that
A, B. is a regularly ordained minister of the Gospel, of the denom-
ination usually called-- It is ordered that a licence be granted
to him authorising him to solemnize marriages within this State, so
long as he shall continue such regular minister.
SPECIAL ENTRIES. 421
Sale on Execution coNFiRaiED and deed ordered.
The Court this day having examined the proceedings of the Sheriff,
and the sale by hitn made upon the execution issued in this cause,
and being satisfied that said sale has in all respects been made in
conformity to the provisions of the statute in such case made and pro-
vided, do order the Clerk to make an entry on the Journal, that the
Court are satisfied of the legality of the sale, and that he also enter
an order on the Sheriff to make to the purchaser a deed for the lands
and tenements so sold, all which is entered accordingly.
Motion to quash appeal over. ruled.
This cause came on to be heard upon the motion of the defendant
to quash the Appeal, and was argued by counsel, on consideration
whereof, It is ordered that said motion be over. ruled, with costs.
Motion in akrest of Judgjient oveu-ruled, and final Judg-
ment UPON VERDICT.
This cause came on to be heard upon the motion of the defendant
in arrest of the judgment herein rendered on Friday last and was
argued by counsel, on consideration whereof, It is ordered that said
motion be over-rulod; whereupon it is considered that the plaintiff
recover of the defendant the said sum of— ——dollars his damages
aforesaid in form aforesaid assessed, and also dollars for his
Coals in this behalf expended.
422 SPECIAL ENTRIES.
Judgment arrested and leave to amend Declaration.
This cause came on to be heard upon the motion of the defendant
in arrest of the judgment herein rendered on Monday last, and was
argued by counsel, on consideration whereof. It is ordered that said
judgment be arrested, with costs: whereupon on motion of the plain-
tiff, It is ordered that he be at liberty to amend his declaration with-
in days upon the payment of said costs, and this cause is
continued.
Writ of error auASiiED.
This cause came on to be heard upon the motion of the defendant
to quash the writ of error issued in this cause, for want of jurisdic-
tion, and was argued by counsel, on consideration whereof, It is or-
dered that said writ of error be quashed, with costs.
Motion granted to amend Judgjient. Hamer vs. JSVConnclU
2 Ohio Rep. 33, Ohio Conds. 240.
This cause came on to be heard upon the motion of the plaintiff to
amend the verdict and judgment in this cause, and was argued by
(counsel, on considertion whereof, It is ordered that the plaintiff be
at liberty to amend the said judgment by striking out the name of
John JirConnell, so as to make the same conform to the pleadings
and issue, and to the manifest intent and operation of the verdict.
Leave to withdraw demurrer and plead issuably.
On motion to the Court by Mr. O. counsel for the defendant, It is
ordered, that the defendant be at liberty to withdraw his demurrer
SPECIAL ENTRIES. 423
■end plead issuably within days upon payment of costs in re-
pec t thereof.
Judgment for Plaintifi' iton agreed case.
This cause came on to'be heard upon a case agreed between the
parties, and was argued by counsel, on consideration whereof, the
Court are of opinion that the law of the case is with the plainlifF,
Wliereupon it is consideredj that the plainliff recover of the defend-
ant the sum of — dollars in the agreed case mentioned, being
the damages liquidated by the parties, a:tid also dollars for his,
costs in this behalf expended.
Rule for attachment for coNTEJirT of court.
Ordered that a rule be taken upon A. B. to be and appear before
this Court on the first day of the next Term, to show cause, if any
he have, why a writ of attachment should not issue against him for a
contempt of this Court, in writing and causing to be published, in a
newspaper called the ' bearing date a certain paper
or essay, entitled and signed which said paper or
essay, reflects upon the integrity and impartiality of this Court, and
was calculated and designed to forestall the public opionion, by crea?
ling false impressions in relation to a certain cause then pending in
this Court, and wherein C. D. was plaintit]', and E. F. defendant,
and thereby to prevent the fair and irnpnrtial administration of jus-
tice; and it is further ordered, that a copy of this order, duly certi-
fied by the Clerk of this Court, be served upon the said A. B. by the
Sheriff of this county, at least twenty days previous to the next term
of this Court.
424 SPECIAL ENTRIES.
Order tor change of Vekue.
This cause came on to be heard upon an application of the defen-
dant to change the venue fi-om this County where the same is de-
pending, to some adjoining County; and it appearing to the Court
that due notice of this application has been given to the Plaintiff, and
it further appearing, that there cannot be a fair and impartial trial of
the issue joined between the parties, in this County. It is therefore
ordered that the venue in this suit be changed from this County to
the adjoining County of and that the Clerk of this Court trans-
mil to the Clerk of the Court of Common Pleas of the said County of
the original writ, pleadings, depositions and other papers
filed in this cause days before the next term of said Court in
said County of — — —
Admission of Attorney and Solicitor.
M, S. an applicant for admission to (he Bar, having produced the
requisite Certificates, and having been found upon examination, in all
respects qualified: It is ordered that he be admitted and licensed to
practice as an Attorney an Counsellor at law and Solicitor in chan-
cery, in any of the Courts of Record of this State, whereupon the
said M. S. appeared in open Court and took the oath required by
law.
The like under the keciprocity act.
On motion to the Court, by Mr. C. D.and it appearing that A. B,
is a practising Attorney and Counsellor at law, residing in the State
of Kcntucly, where by law. Attorneys and Counsellors residing in
Uiis State are permitted to practice; It is ordered, that the said A. B.
be admitted to practice in this Court, while he continues to reside in
the said State o( KcntucJfy, and while Attorneys and Counsellors at
law in this Slate are permitted to practice in the Courts of that Stale.
SPECIAL ENTRIES. 425
Judgment for defendant upon special verdict.
This cause came on to be heard upon the special verdict hereto-
fore rendered herein, and was argued by counsel, on consideration
w^hereof, the court are of opinion that the law of the case is with
the defendant, whereupon it is considered that the defendant go
hence without day and recover of the Plaintiff liis costs herein ex-
pended taxed to dollars.
Order of Common Pleas reversed on Certiorari in Supreme
Court.
This cause came on to be heard upon the transcript of the pro-
ceedings in the Court of Common Pleas, and was argued by coun-
sel, on consideration whereof, this Court is of opinion that there
is error in the proceedings and order of the said Court of Common
Pleas, in this, to wit. That, &c. Therefore for the errors afore-
said, it is ordered and adjudged that the order aforesaid, made by
the said Court of Common Pleas be and the same is hereby rever-
sed, with costs, and that the said C. D. be restored to all things he
has lost by reason of the same : and it is further ordered that a spe-
cial mandate issue to the said Court of Common Pleas to carry this
Judgment into execution.
Order of Common Pleas afeirmed on Certiorari in Supreme
Court.
This cause came on to be heard upon the transcript of the pro-
ceedings in the Court of Common Picas, and was argued by coun-
sel, on consideration whereof, this Court is of opinion that there is
no error in the proceedings or order of the said court of Common
Pleas: Therefore it is ordered and adjudged, that the order afore-
said made by the said Court of Common Please, be and the samo
is hereby confirmed, with costs, &c. {^Conclude as in the last pre-
cedent.'^
E e E
420 SPECIAL ENTRIES,
JoURNAIi ENTRY AT THE COMMENCEMENT OF A TeRM.
At a Court of Common Pleas began and held for the County of
at the Court, House in on the day of in the
year of our Lord and of the State of Ohio the , Present,
G. S. President, J. F. E. L, and A, B. associate Judges of said
Court. R. B. Sherift' and T. C. Clerk.
Appointment or Clerk.
D. E. having this day produced to the Court, a certificate from
a majority of the Judges of the Supreme Court, that he is well qual-
ified to execute the duties of Clerk of any Court of the same dig-
nity with this : It is ordered that the said D. E. be and he hereby
is appointed Clerk of this Court for the constitutional term of seven
years, and thereupon the said D. E. appeared in open Court, and
having executed and filed a bond to the State of Ohio in the penal
sum often thousand dollars, bearing date this day of
A. D. with T. D. and T. O. his securities, conditioned accor-
ding to law, which is approved by the Court, took the oaths of office
required by law.
Allowance of further time to an Administrator.
On motion of A. B. administrator ot C. D. by Mr. O. his counsel,
It is ordered that the said A. B. have the further time of one year
to settle up his accounts as such administrator.
Final settlement of administrators accounts.
G. B. administrator of T. B. deceased, this day settled his ac-
coiints with the Court, and a balance is found in his hands due the
estate of the said T. B. of Dollars, which is ordered to be
distributed according to law.
SPECIAL ENTRIES. 427
CoMJIITMENT FOR CONTEMPT OF CoURT.
W. R. a witness in the case of A. B. vs. C. D. now pending in
this Court, appearing in open Court, in a state of intoxication, It is
ordered that he be imprisoned in the jail of this County for such
contempt, until tomorrow morning, nine o'clock.
Order for administrator to complete real contract or
Intestate.
This day A. B. adminstrator of C. D. deceased, filed his petition,
praying an order of this Court authorizing a deed to be made by him
as such administrator, on the part of the heirs of said C. D. to D.
W. in pursuance of the contract in said petition mentioned; and
the Court being fully advised in the premises, and having found
that said contract was duly made, and has been fully complied with
Qn the part of the said D. W. as alleged in said petition, do order
the said A. B. to make, execute and deliver a deed in fee-simple
for the tenements in the said petitirm described, for and in behalf
of the heirs of the said CD. to the said D. \V. according to the
statute in such case made and and provided.
Appraisement on execution set aside and new one granted.
On motion to the ('ourt, by Mr. O. counsel for the plaintiff. It
is ordered, that the former appraisement made herein be get aside,
and that a new appraisement be had at the costs of
Rule to plead extended*
On motion to the Court, by Mr. O. counsel for the defendant,
It is ordered, that the rule granted herein to plead on Tuesday last
be extended thirty days, and this cause is continued at the cost of
4'?8 SPECIAL ENTRIES.
Order tor the redemption of land sold for taxes.
A. B. this day appeared in open Court, hy Mr. O. his counsel,
and made application to redeem the following real estate sold for
taxes on the day of A. D. to T. W. to wit: [De-
scriptio7i]; and the Court heing satisfied that due notice of this ap-
plication had been given, and that the deposit reqmred by law, had
been made with the Clerk of this Court, and having examined the
testimony of the said A. B. relative to his right of redemption, [and
the countei' testi?nony of the adverse party, if any be offered,] and
bein^j satisfied that the said A. B. is eniitled to redeem said real
estate, do order that the said real estate be, and the same hereby is
redeemed and restored to the said A. B. and restitution of the same
is hereby awarded to him: And it is further ordered, that the said
A. B. pay the costs of this application within days; and that
the money deposited with the Clerk as aforesaid be paid by him, on
demand, to the adverse party, (a)
Al^PEAL QUASHED.
On motion to the Court, by Mr. O. counsel for the appellee. It
is ordered, that the appeal taken in this cause be and the same is
hereby quashed, for the reason that the recognizance was not taken
witliin ten days from the rendition of tlie judgment, whereupon it
is considered that the appellee recover of the appellant liis costs
herein expended, taxed to ■ dollai's. (h)
(a) This application should, in general, be in writing, in order that the
proceedings niny betaken to the Supremo Court, on Ceiiiorari, it" necessa-
ry. 8 Ohio Hep. JiOl, Ohio Coiids. 587, 5 Ohio Rep. 328, Stat. vol. 29, p.
son. 5 2, 3, 4. A copy of tliis order must be recorded, in the office of the re-
corder of deeds, v/iiliin thirty days.
(/>) The cause for quashing the appeal must be stated in the order. Slat,
vol. "0. p. Vi9. ^ 51. A copy of tiiis order is lodged with the Justice,
wiio thereupon issues e.^ecation in the same mauner as if no appeal had
been taken. Ibid.
SPECIAL ENTRIES. 429
Change op recognizance on appeal, in Common Pleas.
On motion to the Court, by Mr. O. counsel for tb.e appellant,
and it appearing to the satisfaction of the Court, that the testimony
of T. W. who is security in the recognizance for the appeal of this
cause, is required by the appellant. It is thereupon ordered, that
said recognizance be changed, and that X. Y. be substituted in the
place of the said T. W. and thereupon the said X. Y. appeared
in open Court and acknowledged himself to be indebted to the said
A. B. in the sum of dollars conditioned for the payment of the
debt or damages, and costs that have accrued, or that, may be
adjudged against the appellant in this Court; and it is further
ordered, that the recognizance of the said X. Y. he certified to
A. S. the Justice of the Peace from whose judg7nent this cause was
appealed, or, that the recognizance of the said X. Y. he recorded in
this Court, (a)
TlIE LIKE, WHERE THE RECOGNIZANCE IS INSUFFICIENT IN form,
OR amount.
On motion to the Court, by Mr. O. counsel for the appellant,
and it appearing to the satisfaction of the Court, that the recogni-
zance for the appeal of this cause is insufficient in/o?7/i, or, amount
[as the case may be] : It is thereupon ordered that said recogni-
zance be renewed, and thereupon X. Y. appeared in open Court
and acknowledged himself to be indebted, &c. \_Conclude as in
last precdent.
Transcript filed by appellee, and Judgment in his favor
IN Common Pleas.
A, B. this day filed a transcript of the proceedings and judg-
ment of A. S. a Justice of the Peace of Township, in a cer-
(a) The recognizance is not commonly certified to the Justice, but re-
mains of record in the Court of Common Pleas. See, Stat. vol. 2d. p. 179.
) 52.
430 SPECIAL ENTRIES.
tain cause wherein the said A. B. was plaintiff and C. D. defendant,
and which cause was appealed to this Court by the said C. D.
and thereupon on motion of the said A. B. by Mr. O. his counsel,
and it appearing to the satisfaction of the Court, that the said C.
D. has failed to deliver a transcript of the proceedings and judg*
ment aforesaid to the Clerk of this Court, and to cause his said
appeal to be docketed, within the lime required by law ; It is or-
dered, that said cause be docketed in behalf of the said A. B. and
thereupon on motion of said A. B. * it is considered by the Court,
that the said A. B. recover of the said C. D. the sum of dol-
lars (a) together with his costs in this Court expended taxed to
dollars, (b)
Transcript filed by appellee, appeal disbiissed and cause
remanded.
'[Proceed as in the last precedent to the * — It is ordered that
said appeal be dismissed, at the cost of the said appellant, and that
said cause be remanded to the said Justice of the Peace to be pro-
ceeded in as if said appeal had not been taken ; and it is further
ordered that the costs of said appeal be paid by said appellant
within days.
(a) The amount of the Justice's Judgment. Slat. vol. 29. p. 178. { 45.
[b) If the appellant fail to deliver the transcript and other papers, if
any, to the Clerk, and cause his appeal to be docketed, on or i)efore the
second day of the term next after the appeal is taken, the appellee, at the
same term, may file a transcript, and on his motion, the Court will order
the appeal to be docketed, and will either render final judgment in his fa-
vor, or dismiss the appeal and remand the cause to the Justice of the
Peace, at the option of the appellant. Stat. vol. 29. p. 178. { 45.
SPECIAL ENTRIES. 431
Judgment of nonsuit against appellant, andfinal judg-
ment pr FAVOR OP APPELLANT. Stat. voI. 29. p. 178. § 46.
This day came the "said A.*^ B. by his attorney, and the said C.
D. being solemnly called came not nor does he further prosecute
his suit, therefore it is considered that the said A. B. (the appellee)
recover of the said CD. the sum of dollars [the amount of
the Justices judgment with interest'] together with his costs in this
behalf expended taxed to dollars.
APPENDIX— No. I.
REGULA GE^^ERALIS.
Whereas declarations in actions upon bills of exchange, promissory
notes, and the counts, ueiiallj'' called the cnmijion counts, occasion unneces-
sary expense to parties by reason ot their ien this ordor, or demands of a like nature, shall
exceed in length sucii of the said forms set forth or directed in the said
schedule, ns may be applicable to the case; or, if any declaration in -lebt
to be so filed or delivered fur similar causes of action, and for which the
action of assiimpsil would lie, shall exceed such length, no costs of the ex-
cess ^hall be allowed to the plaintiff' if he succeeds in the cause; and such
costsof the excess as have been incurred by thh defe'idaut, sliaU ne taxed
and allowed to the defendant, and he deducted from the costs allowed to
the [)laintiff. And it is kurtmkr ordeiikd. That on the tixation of costs,
as bitvveen attorney and client, nocusts shall be allowed to the attorney in
respect of any such excfss of length; and in ca-e any costs shall be paya-
ble by the plaintiff to the df^fendant nn account of such excess, the amount
thereof shall be deducted from the amount of the attorney's bill.
Tenteuden. J, Vauciian.
K. C. TiNDAL. J. Parke.
I.YNDiiunsT. W. Holland:
J. BaYLEY. J. B, BOSANQUET.
J. A. Park. W. E. 'I'aj'nton.
J. Littleeale. E. H. Alderson.
S. Gasulee. J. Patterson.
Schedule of Forms and Directions.
Count on a pioinissniy note against the maker, by payee or indorsee, as the care may be.
For that whereas the defendant on the day of , in
the year of our Lord , at London [or in the county of ,]
434
made his promissory note in writing-, and delivered the same to the plain-
tiff, and thereby promised to pay to the plaintiff £
C days ^
/ weeks \ after the date thereof lor as the fact may he], which
# months \
period has now elapsed, [or if the note he payable to A. B.] and then and
there delivered the same to A. B., and thereby promised to pay to the said
C days ^
A. B. or order £ < weeks ( after the date thereof
/ months V
[or as the fact may be"], which period has now ehpsed, and the sa'.d A. B.
then and there indorsed tlie same to the plaintiff, whereof the defendant
then and there had notice, and then and there, in consideration of the
premises, promised to pay the amount of the said note to the plaintiff, ac-
cording to the tenor and effect thereof.
Count on a promissory note against payee hy an indorsee.
"Whereas one C. D., on the day of in the year of
onr Lord , at London [or, in the county of ], oiade his
promissory note in writing, and thereby promised to pay the defendant, or
C days 1
order. £, < weeks \ after the date thereof [07-
# mcnths, \ .
at the fact may he'], which period has row elapsed, and the defendant then
and there indorsed the same to the plaintiff [or, and the defei)dant then
and there indorsed the same to X. Y., and the said X. Y. then and there
indorsed the same to the plaintiff] and the said C. D. did not pay the
amount thereof, although the same was tliere presented to him on the day
when it became due, of all which the defendant then and there had due
notice. •
Count on a promissory note against indorserby indorsee.
"Whereas one C. D., on , at London, or, in the county of
[j made his promissory note in writin?. and thereby promised to pay to
■ ( J^ys ~ ^
Y. Y., or order, £ < weeks \ after the date thereof [or
i months ^
asthefad may be], which period has now elapsed, and then and there de-
livered the said m te to the said X. Y., and the said X. Y. then and there
indorsed the same to the defendant, and the defendant then and there in-
dorsed the same to the plaintiff [or, and the defendant then and there
indcrsed the same to Q,. R., and the said Q,. R. then and there indorsed
the same to the plaintiff]; and tlie said C. D. did not psy the amount there-
of, although the same was there presented to him on the day when it be-
came due, of all which the defendant then and there had due notice.
Count on an inland bill of exchange against the acceptor by the drawer, being also
payee.
"Whereas the plaintiff on at London [or in the county of .] made
his bill of exchange in writing, and directed the same to the defendant,
and thereby required the defendant to pay the plaintiff £
485
( days ^ , ^g^^ .
^ weeks I after the < ^^^^'^ > thereof, which period has now
f mocths V I "= )
elapsed; and the defendant then and there accepted the said bill, and prom-
ised the plaintiff to pay the same according to the tenor ai.d effect tnereof
and of his said acceptance thereof, but did not pay the same when due.
Count on an inlaud bill of exchange again=t the acceptor by the drawer, not being the
payee.
Whereas the plaintiff on at London [or in the county of ,] made
his bill of exchange in wri'.ing, and directed the same to the defendant,
and thereby required the defendant to pay to O. P., or order, £
i days i ^^^^
J weeks \ after the ^ -. \ thereof, which period has now
I months V C " ° >
elapsed, and then and there delivered the same to the said O. P., and the
eaid defendant then and there accepted the same; and promised the plain-
tiff to pay the same according to the teuor and effect thereof and of his
acceptance thereof, yet he did not pay the amount thereof, although the
said bill was there presented to him on the day when it became due; and
thereupon the same was then and there returned to the plaintiff; of all which
the defendant then and there had notice.
Count on an inland bill of exchange against the acceptor by ttie indorsee.
"Whereas one E. F., on at London [or in the county of ,] made
his bill of exchange in writing, and directed the same to the defendant,
and thereby required the defendant to pay to the said E. F. [or to H. G.,]
C days ^ , .^^ J
or order, £ < weeks C after < ^^^^ > thereof
f months \ ' ~ )
which period is now elapsed, and the defendant then and there accepted the
said bill, and the said E. F. [or, the said H. G.] then and there indorsed
the same to the plaintiff [or, an i the said E. F. or, the said H. G. then
and there indorsed the same to K. J. and the said K. J. then and there
indorsed the same to the plaintiff,] of all which the defendant then and
there had due notice, and then and there promised the plaintiff to pay the
amount thereof, according to the tenor and effect thereof and of his accep-
tance thereof.
Count on an inland bill of exchange against the acceptor by the payee.
Whereas one E. F. on at London [or, in the county of ,] made
his bill of exchange in writing, and directed the same to the defendant,
and thereby required the defendant to pay to the plaintiff
C days 1 ^ siirhi )
) weeks V after the ) jj^ > thereof, which period has now
i months \ C J
elapsed; and the defendant then and there accepted the same, and promised
the plaintiff to pay the same according to the tenor and effect thereof and
of his acceptance thereof.
Count on an inland bill of exchange agaiinst the drawer by payee on non-acceptance.
Whereas the defendant, on at London [or, in the county of ,]
436
made his bill of exchange in writing, and directed the same to J. K., and
thereby required the said J. K. to pay to the plaintitf £
S weeks ( after the \ 7^!l' I thereof, and then and there de-
f months \ \ )
livered the same lo tlu- said pi nntifF, and the same was then and there pre-
sented totiiH snid J. K. for ;icccpiance, and the sad J. K. then and theie
refuse'1 to accept the same; of all which the defendant then and there had
due notice.
Count on an inland bill of exchange against drawer by indorsee on non-acceptance.
Whereas the defendant, on at London [or, in the county of ,]
made his bill of exchange in writing, and directed tiie same to J. K., and
thereby required the said J. K. to pay to the order of the said defendant
C days ^ , ^._^,^^ .
jp J weeks I after the < ^j^ > thereof and the
*^ I months \ ' J
said defendant then and there indorsed the same to the plaintiff [or, and
the said defendant then and there indorsed the same to L. M. and the said
L. M. then and there indorsed the same to the plaintiff.] and the same waa
then and there presented to the said J. K. for acceptance, and the said J.
K. then and there refused to accept the same; of all which the defendant
then and there had due notice.
Count on an inlaud bill of exchange against indorserby indorsee on non-acceptance.
And whereas one N. 0.,on at London [or, in the county of ,]
made his bill of exchange in writing and directed the same to P. Q-. and
thereby required the said P. Q,. to pay to his order £,
r days ^ C I 1
3 weeks V after the ^ ^jtrK, c thereof, and the said N. O. then
i months \ ( " » S
and there indorsed the said bill to the defendant [or, to R. S., and the said
R. S. then and there indorsed the same to the defendant,] and the defend-
aui then and there indorsed the same tc the plaintiff, and the same was
then and there presented to the said P. Q,. (or acceptance, and the said P.
Q,. then and there refused to accept the same; of all which the defendant
then and there h..d due notice.
Count on an inland bill of exchange against paj^ee by indorsee on non-acceptance.
Whereas one N. C. on at London [or, in the county of,^ ,] made
his bill of exchange in writing, and directed the same to P. R,, and there-
by required the said P. Q,. to pay to the defendant or order jj
r days ^ , ., J
3 weeks V ' after the ) ^^.'^^^ > thereof, and then and there de-
i months \ C >
livered the same to the defendant, and the defendant then and there indor-
sed the said bill to the plaintiff [or, lo R. S. and the said R. S. then and
there indorsed tlie same to the plaint'ff,] and the same was tlien and there
presented to the said P. Q,. for acceptance, and the said P. Q,. then and
there refused to accept the same, of all which the defendant then and there
had due notice.
437
Direction for declaiations on bills where action brought after time of pa3'ment expired.
1st, On bills payable afterdate.
If the declaration be against any party to the bill except the drawee or
acceptor, and the bill be payable at any time alter dale, and the action not
brought ti'l the time is expired, it will be necesaary to insert, as in decla-
rations on i)romissory notes, immediately after tlie words denoting the time
appointed tor payment the following words viz. which period has now elaps-
ed; iirid instead of averring tliat tue bill was presented lo the drawee for
accc.plance^ and ibat lie refused to accept the same, to allege that the drawee
[naming him] did iiot pay the said bill, alt/iougk tha name was presented to
him on the day wJien it became due.
2ndly, On bills payable after sight.
And if the declaration be ngainst any party except the drawee or accep-
tor, and ihe bill be payable at any time after sight, it will be necessary to
insert after t le words denoting ihe time apjjointed for payment the follow-
ing words; viz. and the said -en admitted to the Suprfmc, or a Circuit Court of the
United Slates, or who have practiced fortlirec years, in the highest Court
of a State or Territory, shall be adiiiitied to practice in this Court upon
producing satisfactory evidence of such admission and of good moral char-
acter.
2. Upon admission, such Counsellor, Solicitor or Attorney, shall take an
oath to support the Constitution of the Uniied States, and of fidelity to his
Client and to the Court.
;}. For mul practice or other good cause, this Court, on motion, may di-
rect the name of any Counsellor, Solicitor, or Attorney, to be stricken from
the roll, and thereafter unless restored, such person shall be incapable of ap-
pearing in any cause in this Court.
PROCESS, BAIL, &.c.
4. In a'l actions, against citizens of this State, founded upon any writ-
ten instrument for tin- payment of a sum of money certain, and in all other
actions, where the plaintiff siiall file an atlidavit, that a p\im of money is
duo, or that a certain amount of damages has been sustained, or where a
judge, witliout such affidavit, shall direct, the process may he a capias ad
respondendum, upon which, appearance, as well as special bail, shall be
given.
5. Where a summons has issued, the Court in term time, or a Judge in
vacation onafiidavit, may direct special bail and the amount.
440 RULES OF PRACTICE IN THE
6. The amount of bail required, shall be endorsed upon the capias, —
Where the capias shall issue upon affidavit of damages, or that a sum of mon-
ey is due, bail shall not be required beyond the same.
7. A capias ad respondendum may issue upon a Judges order, in term
time, returnable immediately.
8. When neither appearance nor special bail is required, a summons
shall issue.
9. The capias or summons (except issuod in term time) shall be returna-
ble at some reasonable time therein to be specified and when issued in term,
it may be returnable immediately.
10. If a defendant upon a capias does not give sufficient appearance bail,
he shall be committed to prison, to remain until discharged by due course
of law. But underneit '.er mense nor final process, shall any individual be
kept imprisoned, who, under the insolvent law of the State, has, for such
demand, been released from imprisonment.
11. The Marshal shall file the appearance bail bond, at the return of the
capias.
12. A summons may be served by reading, by delivering a copy to the de-
fendant, or leaving one at his usual place of abode.
I'-i. When the capias or summons is returned served or executed, the de-
fendant shall be deemed in Court.
14. The appearance bail may surrender the principal in term time, and
the defendant shall goat large, unless prayed into custody by the plaintiff;
and if prayed into custody, he shall stand committed until discharged by
due course of law.
15. Special bail may in like manner surrender his principal, in term time,
or to the Marshal before judo-ment, anl if in term, he shall go at large, un-
less the plaintiff shall pray him into custody: Such imprisoned defendant
m?iy, however, give other special bail and be discharged If prayed into
custody, and he do not give special bail, he shall remain in prison until dis-
charged by due course of law.
16. A defendant in prison on mesne process, shall be charged with a ra-
plas ad sa'ifijaciendum, within 30 days after final judgment against him, or
be set at lilerty.
17. Whether a surrendered defendant shall be committed or go at large,
he shall receive a declaration as in ordinary cases.
18. The filing of a declartion shall, in no case, be deemed a waiver of
bail.
19. A bail piece may issue, according to the usages of law.
20. Special bail sliall be filed by the second day of the term, and may be
put to justify according to the usages of law.
21 The Marshal may be amerced to the amount of the bail required, if
he fail to take appearance bail, or to return the bail bond with the capias,
or if he take insufficient bail; or he may be ruled to bring in the body, and
failing, may be reisonnblv amerced. He may always enter special bail for
the defendant, and be saved from amercement. Before the Marshal shall be
amerced, he shall hav'efive days j)revious written notice.
22. Upon all mesne process which shall be returned executed or sprved,
sixty days before the first day of the term, the plaintiff may, immediately
file his declaration and put thi= same to rules; and when the rules have been
regularly taken, a trial m.iy be had or judginent by default, be confirmed at
the first terra, unless cause be shown.
28. When process shall be actually served (and returned) less than six-
ty days before the first day of the Court, the cause shall stand continued of
course.
24. When the defendant, being a citizen of the state, lurks or keepsout of
CIRCUIT COURT. 441
the way of the Ivlarshal, and has no usual place of abode, and a pluries ca-
pias or summons shall be so returned, the court may direct proclamation to
be made, three successive days at the Court house, warninsf sucli defendant
to appearand answer, and if he do not appear, on the tiiird mornincr, he
shall bodeenir-d in Court; hut before finn! judirinent, notice of the pendency
of the suit «h' II be jriven, four succes.eivc weeks, in some newspaper, pub-
lished at the place where the Court sits.
2."). Special bail may be taken by the Marshal or any .Tudge in vacation,
or other ofii'-ers appoin'ed by the Court. Tiie bond shill in such ca^c be
returned by the second day of the term, and such bail shall be deemed suf-
ficient, if not put to justify.
26. Where special bail is required to justify, and the Court shall declare
the same insufficient, the det'eiidant shall immediately j^ive other sufficient
special bail, or his appearance bail shall he liable on his bond, unless the de-
fendant appear pnd is prayed into custn^ly.
27. When the defendant has been t^ken upon a capias ad res. and has
given satisfactory appearance bail, but fiils to appear, or jjive special bail,
the plaintiJmay proceed to final judg'cment; whicli proceed incr shall not re-
leas3 the appearance bail, and the plaintifTniay obt lin in such case, a judg-
ment also against the appearance bail, on motion, and proof of notice, of such
motion, fifteen days before the motion is made.
28. When s|)ecial bail is given, and a ca. si. Ins been returned non est
inventus, or not found, judgment may be rendered against such special bail,
for the amount of the judq-inent recovered and costs, upon amotion in open
Court, and the service of a written notice to the special bail, fifteen daya
before the commencement of the Court.
29. The form of an appearance hail bond may in substance be thus: I (A.
B) acknowledge myself indebted to (C D) in the sum of dollars. The
condition is, thitif (K V) shall appear at the next Circuit Court of the U-
hited States, in the district of Ohio, and answer to the suit of (G H) and
surrender himself or give special bail, then this obligation shall be void,
otherwise in full force. l, s.
30. The form of a special bail bond may in substance be thus: I (A B)
acknowledge myselfspeci.il bail for (C D) in the sum of drdlars. The
condition is, that if said (C D) shall surrender his body in due time to the
Marshal after (E F) shall obtain a jndg.aent against him in the 7th Cir-
cuit Court of the I' nited State, in the District of Ohio, then this obligation
to be void, otherwise in force. l. s.
Taken before me,
COSTS, SECURITY FOR, &c.
31. The Clerk shall require of all nonresidents of this District an endor-
ser fi)r costs. The follnwing tbrni upon the writ, may substantially be pur-
sued: I (/V B) auknowledire myself security for all costs, for whicli the
plaintilf maybe liable in thiscuit. i,. s.
32. If the plaintilf enter a relrnxit, becomes nonsuit, dismisses the ac-
tion, or fails on the trial, and does net pay liis costs; judfrment may be en-
tered therefor against the security, on motion and ten days notice in wri-
ting.
83. The costs for unnecessary witnesses, or for a survey which is unne-
cessary, shall be paid by the party creating the costs.
34. Ea.
(«) ThcFC Rules do not extPinI to all ilie Coimiiesin the Circuit.
(i) These Rules do not cxleivl to nil liie Counties in the Circuit. .
468 RULES OF PRACTICE.
adverse party, or his attorney, of such exception, by the second day of the
term, at which the cause is heard; and the objections at the same time en-
dorsed on the depositions objected to, or filed with them.
6. No deposition sliall be used on the hearing of any cause, which was
not taken before the commencement of the term at which the cause is heard,
and opened as early as the lirst day of the term.
7. No cause will be heard until the Court have had for one day, a clear
and concise abstract of the bill and answer, and depositions, and other doc-
uments, evidence in the cause, and a statement of the points relied on by
the party who brings on the cause, signed by himself or his counsel, and de-
livered to the Court.
8. On the hearing of a cause, but two counsel on a side shall argue; one
open, two for the adverse party follow, one to reply. In a cause of great
importance and difficulty, before the argument commences, leave may bo
had for a greater number to argue.
9. No motion to dissolve an injunction will be heard, unless the defend-
ant's answer or demurrer has been filed four days- and until the defendant
or his counsel, has had two days notice in writing, of the motion, or good
cause shown why such notice was not given. All documents to be used
on the motion, unless they are records of one of the courts of record of this
county, shall be filed in the cause at least two days before the motion is
made.
10. TheSilOth, 11th and 12th rules of this Court on the law side on the
subject of motions and affidavits, will govern the Court and parties and
counsel in chancery.
11. The party for whom the Court decree must draw up the decree, pre-
sent it to the adverse party or counsel, for inspection, or show cause why
he has not done so, and lay it before the Court to be signed and entered
at the same term, unless further time until next term is granted by the
Court.
RULES OF PRACTICE
FOR THE COURT OF COMMON PLEAS OF WARREN COUNTY.
ADOPTED NOVEMBER TER3I,
1820.
1. The first Monday of every month, shall be a rule day.
2. The plaintiff shall file his declaration where special bail is required,
on the first rule day after special bail is entered and perfected; where the
defendant is in custody, on the first rule day after he is so returned, or es-
tering a committitur or waiver of bail, where the first process in the action
is a summons and no bail is ordered, the declaration must be filed on the
fiist rule day after the return of the process served.
a. The defendant shall file his plea on the first rule day after the plain-
tiff has filed his declaration. The plaintiff shall reply on the next rule day
if a replication is necessary, and so the parties shall continue to answer
each oJier each succeeding rule day, until issue is joined.
f^'^ .^. ;3^ he clerk shall endorse on each declaration, plea, &c. filed, the time
' -^'gjf iiling and insert the same in liis rule docket, at the time of filing. If
. J" 'Itdtberpairty ehall make default by not declaring or pleading, &c, according
to tJie alM»ve.{i}'lee, the clerk shall enter the default at the time it takes place
RULES OF PRACTICE. 409
in his rule docket: He shall enter it also on his continuance docket for the
term next after.
5. On calling the docket at the term next after the defaulthas taken place,
the default will be confirmed, unless the party in default on motion, and
showing cause, obtain leave of the Court to declare or plead, &;c. on terms,
such as the nature of the case may require.
6. A default entt-red against a defendant for not filing his plea on the
rule day next afterfiling oftiie delaration will be set nside, only, on the de-
fendant, on motion and satisfying the Court by atfulavit or otherwise, that
he has merits, paying costs instantly filing an issueable plea, receiving a
replication, A:c. so as to place the cause at issue, and going to trial, at the
time the cause would have been tried had the issue been made up at the
time the default took place, if the plainlitf requests it; but the defendant
shall not be compelled to try the cause, if he shows such cause for a contin-
uance as the Court would require for its continuance, had the issue been
made up when the default took place.
7. A ilefault for a plea, &c. on either of the last twelve days of a vaca-
tion shall be noticed by the clerk on his docket as others, and be set aside
on the same terms.
8. The plaintiiF who on motion obtains leave to withdraw his declara-
tion and declare again, shall pay the costs of filing the declaration with-
drawn, and subsequent, until filing the new declaration. If a plaintiff
on motion and leave ofthe Court add a count or counts to his declaration,
or otherwise materially amend it, he shall pay costs such as the Court shall
order. The plaintiff shall instantly file his new declaration, or make his
amendment, and join issue, if the cause was at issue before the declara-
tion was withdrawn or amended. If tbe defendant requires time to
plead, the cause shall be placed on the rule docket, and the issue then be
made up by the defendant's filing his plea the first rule day, the plaintiff the
next, &;c. If the issue is immediately made up and the defendant requires
>a trial, the cause shall be tried at the term it would have been tried, had
no amendment been made in the pleadings, unless on good cause shown
and on payment ofthe costs by the plaintiff, the court continues the cause.
This rule will govern in withdrawing or materially amending any other
pleading of the plaintifl". After a cause is continued, leave to amend by
the plaintiff will be granted on terms other than the foregoing such as shall
appear to the Court just.
9. The defendant, who on motion obtains leave to withdraw a plea
and plead again, or to add a plea or notice of offset, or materially to amend
a plea or notice, shall pay costs, instantly file his plea, notice, or amend-
ment, receive a replication, &c., so as to make up the issue. If the plea
requires a replication, and the plaintiff wishes time to reply, the cause
shall be placed on the rule docket the plaintiff sliall reply on the first rule
day after, the defendant on the next. Sec. If the plaintiff does not require
time to plead, and the issue is immediately made up, and theplaintiff wishes
to try the cause, it shall be tried at the time it would have been tried
had no amendment been made, unless the defendant show good cause to the
Court for a continuance.
10. Motions granted of course will be heard at any convenient time, mo-
tions granted on showing cause only, will not be heard until the reasons
for the motion signed by the party or his attorney, and the documents to be
used, have been filed with the clerk, at least one day; the documents to be
read on the motion and a motion in writing signed by the party or his at-'-
torney and notice of one day at least has been given to the adverse party or
his attorney or reasonable cause sliown for notfilmg the reasons aud -doC-^
uments and giving such notice. On motions made in a cau^^n tfial, or
470 RULES OF PRACTICE.
for a continuance of a cause, because a necessary and expected witness
does not answer when the cause is called for trial, and others which re-
quire to be made as soon as the reason for making are discovered, to obtain
the benefit of them, no reasons or documents will be required to be filed or
notice given.
11. Motions founded on facts which are not proved by the records or files
of the Court, or by written statements signed by the parties their attor-
neys, or other authentic documents must be supported by affidavit. No affi-
davit will be heard by the Court, except the aliidavit oi a party to the mo-
tion unless reasonable notice has been given to the adverse party of the time
and place of taking such affidavit, or sufiicient cause shown for not giving
such notice, no supplementary affidavits will he heard by the Court.
12. On motion the Court will hear but one counsel open for the motion,
one against it, one in reply. In an important and difficult motion before
the argument commences, leave may be obtained to have more.
13. But two counsel for a party will be heard in argument on the trial
of a cause, one will open, two for the other party follow, one reply; when
the cause is important and difficult, leave may be had of the court, before the
argument commences, for more ihan two on a side to argue.
14. The clerk on assigning the causes their several days for trial shall
place the state continuances on indictments first; then leave sufficient space
for the causes on indictments previously found on which capiases have is-
sued, and shall allow on the first day or days of the term as much time as
will in his opinion be necessary, to try such of the said continuances and ap-
pearances as will be tried, next to these, the civil causes on the law dock-
et; next the chancery, &c.
15. State continuances, will be called and tried or continued in the order
in which they are placed on the docket; on very good cause shown, the
Court may order one or more to be put to the end of the jury causes, next
the appearances to indictments found at a previous term will be called tried
or continued unless on good cause shown, one or more, siioiild be placed or
laid over to the end of the jury causes, nexttheCourt will call, try or con-
tinue the jury causes on the civil docket, then the state causes laid over,
and the appearances to indictments found at the same term; the court v/illthen
hear the arguments, &c., on tlie law docket, then the chancery causes for
hearing, 8ic., when the business of any term cannot all be done at that
term, the court will divide their time in the trial of the state, law and chan-
cery causes as the nature and importance of the business may require.
RULES OF PRACTICE
IN THE
EIGHTH CIRCUIT.
1. Within forty days after the term at which any Executor, Adminis-
trator or Guardian may file l;is account and vouchers for settlement, the
Commissioner of Administration sjiall examune the same and report thereon
a statement of the account of such Executor, Administrator or Guardian,
which report said Commissioner shall file in the Clerk's office, with the
vouchers of such administrator, &c. and any person interested conceiving
himself aggrieved by said report of said -Commissioner shall file his specific
exceptions thereto, on or before the third day of the next term...
2. All motions to extend the time of settlement of any Executor, Ad-
ministratOTjfer guardian with the Court, shall be predicated on a report of the
C<)mmis£i,oiier of Admini-stration as to the progress of such Administrvator,
RULES OF PRACTICE. 471
Executor or Guardian, accompanied with the accounts and vouchers of such
Executor, Administrator or Guardian, so f;ir as the same has progressed.
3. All petitions by any Executor, Administrator or Guardian for the
sale of real estate shall exhibit a report of tiie Commissioner, of the state-
ment of the account of such Executor, Administrator, or Guardian.
4. The report of the Commissioner, when no exceptions are filed thereto,
shall be the statement of the account of such Executor, Administrator or
Guardian, upon which the Court will striKe the balance, and proceed in
pursuance of the eighth section of the act entitled "An act defining the du-
ties of Executors and Administrators."
RULES ADOPTED, MAY TERM, 1827.
1. Declarations shall be filed within thirty days, after the end of the ap-
peartince term; pleas within thirty days thereafter, and every twenty days
thereafter a rule day, until issue joined.
2. The party in default, by not complying with first rule, shall not have
leave to plead, except upon payment of all costs of the term, up to that
time, and the other party shall be entitled to a continuance or not at his
option.
3. Notice of motion to dismiss appeals or mesne process for irregularitj',
shall be given in writing to the counsel of the other party, or filed with the
Clerk, if there be no counsel; nor shall such motions be heard, unless they be
made the second day after appeals or process may have been filed with the
Clerk, if filed in term.
4. Notice in writing with the grounds thereof for new trial, or in arrest,
shall be filed with the Clerk, or served on opposite party, the day on which
verdict is rendered.
5. On denmrrcr, and in chancery causes, the counsel shall furnish iho
Court, twelve hours before the trial, with a brief q( the points relied on, and
of the authorities,
6. Vn applications for injunctions in term time, notice in writing shall
be given the opposite party, or his attorney of record in the suit, sought to
be enjoined, one day before motion, if party or attorney reside in county.
7. No motion shall be heard to dissolve injunction, on bill and answer,
unless the answer shall have been filed, and notice thereof given, at least
one day before the motion, if that time shall intervene after filing bill.
8. No exceptions to depositions for other causes than the competency of
the witnesses, or the competency or relevancy of the testimony, shall be
heard, unless the same be reduced to writing and filed the day before the
trial, or served on the opposite counsel, before the cause is called for trial.
6. Tiic Clerk shall at the request of either party npen depositions in
term time, thougii the Cuurt may not be in session, and shall endorse when
opened, and at whose request, but shall not permit them to be taken out of
hisoflicc.
10. Only two counsel on a side, slnll be heard on the trial of any cause
except capital cases, and but one on a question of evidence, motion for any
amendment, new trial or in arrest of judgment.
11. Proof of publication shall be by affidavit, with copy of notice at-
tached.
12. When demurrer is sustained, leave to amend will only be given, on
the payment of Clerk's and Shcrill'sfees, and when over-ruled; leave to re-
ply Jkc. on same terms. l . ■ '
13. IJilis of exception shall be committed to vvritiiig, at the time tlie ex-
ceptions are taken, not after.
472 RULES OF PRACTICE.
14. No motion for a new trial, in arrest, to amend or for a rehearing,
of any matter once heard during the term, shall be heard after the President
Judge has left the Court.
RULES OF PRACTICE
IN THE
COURT OF COMMON PLEAS OF HAMILTON COUNTY,
ADOPTED FEBRUARY TER3I, 1833.
1. The second Monday after the close of each term of this Court for civil
business, excluding the day of adjournment, and every alternate Monday
thereafter, until notice day of the next ensuing civil term, excluding notice
day, shall be rule days, on which, after return day of process; declarations,
and all other pleadings at law, and assignments of errors, may be filed, and
rules for declaration, plea, or any other pleadings in a cause, or for assign-
ment of errors, may be entered, to expire on the next succeeding rule day.
2. Declarations may be filed in vacation, notwithstandinq; a default and
rules taken thereon, at any such time that two rule days will intervene be-
tween the rule day of filing and notice day of the next ensuing civil term;
and when the declaration is filed in term time, rules may be taken at the fil-
ing, to plead thereto by the first rule day after the term.
3. For all pleadings in a cause, subsequent to the plea to the plaintiff's
declaration, every Monday in vacation, after the day on which a default
would accrue in the cause, shall be considered as a rule day.
4. All pleadings filed or rules entered in the interval between two rule
days, shall be considered as filed or entered on the rule day next succeeding
the day of filing or entry, except when filed in term time.
5. All rules and office judgments shall be entered on the docket by the
clerk, with the date of the entry.
6. That in any case wherein an executor or administrator shall become a
party to the suit commenced by or against the testator or intestate, accord-
ing to the provisions of the statute in such cases, it shall not be necessary
where declarations shall have been filed, to file anew declaration, or amend
the original, but it may be done on motion; and the executor or adminis-
trator becoming party defendant to such suit, may, on motion, change or
amend the plea or pleas, or proceed upon those already filed: and in either
case, no interlocutory costs shall be charged to sither party.
7. In case either party neglects to file the proper pleadings within the-
time he is ruled to do, an office judgment may be entered in term time, as
"well as in vacation, on the proper docket. But until such office judgment
be entered, the opposite party may file the requisite pleading, and save his
default, and rules thereon may be taken as in other cases.
8. OtRce judgments shall be affirmed of course, and damages thereon as-
sessed, whenever they are first regularly called upon the issue docket; but
until so affirmed they shall be opened on motion, and on the terms, that the
pleading for the want of which such office judgment was signed, be filed, and
the cause put at issue iastanler, and the cause shall stand for trial at the
current terra; except that the party in whose favor such office judgment was
signed, may continue the cause at the costs of the opposite party, provided
^he shall elecjt to continue, or try, within twenty-four hours after the filing
'of the deferje4 pjeading; and if he elects to try, he shall also have the right
' ,-*fcea to elect* whether he will try th^, cause in its order on the docket, or
RULES OF PRACTICE. 473
place it at the heel of the docket. But in actions of assumpsit and debt
founded on promissory notes, due-bills, drafts, bills of exchange, bonds, and
other contracts for the payment of a sum of money certain, and on the com-
mon money counts, sucii default shall not he opened, unless the defendant
or his agent shall file an affidavit of a mniitorious defence, or in case of their
absence, a professional statement of the attorney in the cause of such de-
fence.
9. Judgments will bs entered of course, upon verdicts at the time they
are rendered, unless notice be given of a motion for a new trial, or in arrest
ofjudginent.
'10. In cases of scire facias to revive judgments, and on tran'5cript from
Justices of the Peace, to make lands liable, short rales to plead within the
term, may be taken by order of the Court, and judgment thereon may be
entered by default at the same term, unless an affidavit of a meritorious
defence be filed.
11. All judgments are to be considered as bearing interest from the first
day of the term, and interest to the first day of the term only, to be included
in the computation.
12. All indictments shall be considered for trial at the term at which they
are found, and shall be entered on the criminal docket in their order, as re-
turned by the grand jury, and shall be called nod tried in the same order as
entered upon the said docket; excepting capital or penitentiary cases, which
may, by co'iricnt of counsel, bn assigned for particular days; and excepting,
also, such cases as the Court may consider, from peculiar or extraordinary
circumstances, may be entitled, to a transposition on the docket, or to the as-
signment of a particular day for trial, in which cases, on motion and a state-
ment in writing, the Court will make such order as shall seem meet and
just: Provided, the trial of au}"^ indictment may be continued or placed at
the heel of the docket, on the same principle, and for the like reason as in
civil cases.
13. All criminal cases which shall have been continued from a previous
term, and are for trial, shall he assigned by the Clerk fi)r trial on the first
days of the term, in the same manner that civil causes are assigned; and
eubpoDiias and other process therein shall issue, and be made returnable ac-
cordingly.
14. All motions for continuances shall be in writing, accompanied by a
statement of the facts upon which each motion is founded, verified by oath,
unless the facts are of record, or otherwise appear on paper, in the cause;
and each motion shall be made as early as the day on which the cause is set
for trial, and not after; unlaws the c luso of such motion arose subsequent to
that day, which facl sliaJU-^e stated in the affidavit accompanying the mo-
tion, or other good cause be shown for not making the motion earlier.
1.5. Wh'^n a motion is made for a continuance of a cause, a second time,
on account of the absence of any witness, the aflidavit shall state the sub-
stance of what the party expects to prove by such witness.
IG. \Vlicn a motion is made fur the continuance of a cause on account of
an absent witness, or want of papers or other evidence, if the opposite party
will admit in writing the facts expected to be proved by the absent witness,
papers, or otiier evidence, the cause shall proceed to trial on such admission.
17. All motions to continue causes; to set aside office judgments; to ap-
point aduiinistrators and guardians; to remove a cause out of its place on
the docket; to as>ign a cause for trial on any particular day, shall be sub-
mitted, with the grounds thereof, in wriiin"', and decided without argument.
18. All causes and matters ponding in Uonrt p,t any term, and not other--
wise disposed of, will stand continued of (Joursc, and continuances may be
entered on the record, at any time, by the Clcik.
L L L "'
474 RULES OF PRACTICE.
DEPOSITIONS.
19. Afler process served in any cause, either party may take out a dedi-
mus potestatein, to take ihe depositions of absent, going, or infirm witnesses,
directed to any oiliccr or person authorized by the laws of this State to take
depositions, or to such person or persons, as tlie parties may, by writing,
agree upon; — to which dedimus shall be attached the interrogatories to be
put to the witnesses.
20. That the party wishing to take the depositions, shall file his inter-
rogatories with the Clerk of the Court, and give notice thereof to the oppo-
site party, or his attorney, whr) shall have live days to file cross-interroga-
tories; at the expiration of which period, the Clerk shall issue the dedimus
at the request of either party: Provided, that if upon the filing of the cross-
interrogatories, the other party shall wish to file additional interrogatories,
he may do so, giving notice, and waiting for cross-interrogatories, as be-
fore. But these rules si.all not interfere with the right of parties to take
depositions on notice merely, without a dedimus; and where cross-inter-
rogatories are filed, notice of the time and place of taking depositions un-
der a dedimus, shall be considered as waived thereby, and need not be given.
21. That depositions may, upon request of either party, be opened at any
time by the Clerk in his oiice, or in Court, he taking care to endorse on the
deposition, when and by whom opened.
22. That no exceptions to depos-tions for "other causes than the compe-
tency of the witness, or the competency or relevancy of the testimony,
shall be heard, unless the same be made in writing, and notice thereof given
to the opposite counsel, before th^ cause is called for trial.
23. Tbat a notice to take a deposition, served on the attorney, on a day
in term time, shall not be considered as a reasonable notice; but notice to
the party may be given, in term time.
24. That after a deposition has been returned to the Clerk of the Court,
the party taking it, sliall not have liberty to withdraw it; but the opposite
party may use it on the trial, provided the testimony be in itself legal and
proper.
MOTIONS.
25. That all motions to set aside executions, levies, appraisements, or
sales; to set aside judgments or other proceedings for irregularity; to set
aside non-suits or judgments entered on default; to make entries in journal,
nunc pro tunc, or for amending journal entries after the term in which they
are entered; for new trials, or in arrest of judgment; for quashing appeals;
for changing venue; to sot aside awards; for attachments; applications for
the allowance of writs of certiorari and habeas corpus; motions for taxation
or retaxation of costs; and for the consolidation of actions; shall be made in
writing setting forth the grounds of such motion, and the testimony in sup-
port of, or against such motion, if not of record or on file, shall be reduced
to writing, and filed; and when the proceeding is not in its nature exparte,
and not arising in a docketed cause, the opposite pnrty or his counsel shall
,lmve twenty-four hours' notice; and a docket shall be kept by the Clerk, on
• AVh veil all motiotn*, not exparte. and not arising at the calling of a docketed
•'cau's^ shall>be^entfei'ed. ' \":''-
■ j-*JGCj.:Th41:>mtiJii^to amerce Sheriffs shall be in writing, setting out the
"cause of aragrcement; and the evidence on both sides, if not of record, or
,ron the files of thei Court, shall be taken in writing under the same rules and
' regpilationa that evidence in Chancery cases is taken.
RULES OF PRACTICE. 475
27. That all applications for the removal of executors, administrators,
or guardians, shall be by petition in writing, setting forth the causes of com-
plaint; and notice of the application with a copy of tlie causes of complaint,
shall be served on the defendant in the petition, at least ten days before the
application is made; and the evidence shall be reduced to writing, as in case
of motions for amercement.
AMENDMENTS.
28. That all pleadings on the law side of the Court may be amended on
application to the Clerk in vacation before office judgment, of course; the
other party's costs accrued since filing the defective pleading being first
paid; and rules may be entered upon such amended pleading as in other
cases of pleadings filed; but if the opposite party i^lia 11 have replied to such
defective pleading, or taken a copy thereof, belbre the amendment, notice
of the amendment shall be served on him, and the rule shall take efiect from
the rule day on whicli, or next after which, such service is made.
29. On opening defaults, or setting aside judgments in actions of assump-
sit, leave to plead issuably will not be granted, except on a statement in
writing, of the purport of the pleas intended to be filed, that the Court may
judge of the necessity and propriety of granting the leave.
30. That if any pleading be amended after subsequent pleadings are filed,
the otlier party shall have a right to answer the amended pleading anew;
but if he does not uithin the rule plead anew, he slialL be understood to
abide by his fi)rmer plea.
31. Pleas that are niei-e nullities or palpably double, and all pleas which
are special in form, but amount in substance to the general issue; and all
pleas pleaded with the general issue, but which contain matters properly
available in evidence under the general issue, may, on motion, be stricken
out.
32. That in no case where pleadings are amended, shall the original
pleadings be withdrawn from the files, and no part shall be so obliteratail as
to render the same illegible, and the Clerk by some memorandum entry,
shall show wiiat the amendment is.
33. Tliat wiien amendments are allowed in any case in term time, by or-
der of the Court, at the costs of the party amending, he shall be required to
pay the costs of the amendment within thirty days tliereafter, and if such
costs are not paid in tliat time, the other party may, upon application to
the Court, enforce payment by attachment. Wlien leave is granted to
amend pleadings on ])ayment of costs, it is to be understood that the costs
accrued since filing the defective pleading, are to be i)iiid, unless the Court
shall otherwise direct: but mere clerical errors will be amended without
costs.
34. That when parties except to any order, opinion, or judgment of the
court, a memorandum in writing of tiie particular onler, opinion, or judg-
ment excepted to, shall be made by tlie counsel excepting, at the time the
order is made, oroi)ini()n or judgment pronounced, and given to the Court
during trial, or immediately thereafter.
35. All matters that are in bar of the plaintiff's right of action which
may aiise after suit brought, may be pleaded as rising since tlic commcnce-
mentof the suit in bar of the further i)rosecution thereof, without i)ursuiDg
in any case the form of picas i)leaded puis darreui, couiijiuanct; but guch.
plea shall be verified by afiidavit, cxccpt.the maUW tlif leof' be ©f record, of
law, or witliin the knowledge of the Court* « U. -U .. ■ - . ^
470 RULES OF PRACTICE.
3G. That in all interlocutory questions, only one counsel shall be heard
upon a side; but one counsel on a side shall examine a witness; and but two
counsel shiill be heard for the same party upon trial of any cause, except ia
cases for capital oO'ences or with the special permission of Court.
37. That all civil causes for jury shall be called on for trial in the order in
which they stand in the issue docket, and shall be tried when called on to tri-
al, unless continued, or by consent of both parties put at the heel of the dock-
et; and criminal causes shall be subject to the same rule, except that the
Court will, when convenience requires it, assign a day for the trial of capi-
tal or penitentiary causes.
38. If a case, when called for trial in its regular order, is not ready for
trial, or ready for other disposition according to rules, the Court will or-
der it continued, as a matter of course, or stricken from the docket, unless
good cause be shown to the contrary.
. 39. Demurrers may be taken up by either party before they are reached
on the docket, by consent, or on twenty four hours notice to the opposite
party, and if not previously disposed of, shall be heard in their order on the
docket; if the cause stands on demurrer only, and the demurrer is with-
drawn or over-ruled, judgment shall bo entered of course against the party
demurring, unless he shall show good cause to the Court for leave to file
other pleadings, and if such leave is given, the cause will be remanded to
rules, to be proceeded in as other cases, unless the court otherwise direct.
40. If tliere be an issue both of law and fact in the same cause, both
shall be considered as standing for trial at the same term.
41. In any pleading, where profert is made of a sealed instrument, a copy
thereof shall be filed with the pleadings, before rule thereon, but it shall
not be necessary to set forth the instrument at length in the body of the
pleading; nor shall it be required to set forth the instrument at length, on
craving oyer, when a copy thereof appears in the pleadings.
42. That proof of publications required by law, and notices shall in all
cases be by afiidavit, with a copy of the publication or notice attached; all
of which shall be filed with the clerk.
43. Judgments by confession may be entered up at any time during the
term by the clerk, on declaration being filed, without application to the
court, the warrant of an attorney, when the conf<;ssion is by attorney
or a copy thereof being first filed with an affidavit of an execution of the
warrant.
EJECTMENT.
44. That in ejectment cnuses, the copy of the declaration served on ten-
ant in possession, shall be filed in court, and shall be the declaration on
which the cause shall proceed, and an amendment of it, as to the name of
the defendant shall not be necessary.
45. That when any person is made defendant in the room of the casual
ejector, he shall file a written confession of lease, entry and ouster, and that
he is in possession of the premises, or that part of them which he defends;
and in case he does not dei'end for the whole; a particular statement of the
part for which he does defend, together with his plea of not guilty; provi-
ded that when one tenant in common is sued by his co-tenant, he shall not
be obliged to confess ouster.
RULES OF PRACTICE. 477
46. That in proceeding under the last rule, the following form shall be
deemed sutiicient.
ss. John Doe, ]
on demise of A. B. |
vx. J>
C. D. (adding other j
defend'ts if necessary.) J
E. F., who is by the court now admitted to defend the trespass and eject-
ment complainedof in the plaintin''s declaration, (or if lie defends for only apart
of the premises — say the trespass and ejectment as to a part of the prem-
ises described in plainti/f's declaration, to wit: here describe particular-
ly the premises for which the defendant defends,) comes into court by I. F.,
his attorney, and confesses ihe lease, entry, and ouster in the declaration
supposed, and that he is in possession of said premises, (adding if he de-
fends for part only,) as to which he is made defendant. And the said E.
F., by his attorney, says he is not guilty in manner and form ss the said
plaintiff has declared against him, and of this he puts himself upon the
country — and tiie plaintitF doth the like.
47. That the defendant in ejectment may before plea, &c. or afterwards,
if it is necessary, by HOtice in writing, served on the plaintiff or his attor-
ney, require the plaintiff to specify in writing, the lands which he means
to proceed for ; and after such notice given, no further proceedings on the
part of the plaintiff shall be had until such specification be furnished to
the defendant's attorney.
48. The plaintiff in ejectment may enter up juf'gment by default against
the casual ejector at any time after the second day of the appearance term,
on affidavit of due service of the declaration, ten days before the term ;
but such judgment shall be liable to be set aside of course, on filing the
consent rule and plea, at any time during the term to which the tenant has
notice to appear, but not after.
49. That in cases of certiorari, issued from this court, directed to two
justices of tlie peace, acting under the act against forcible entry and de-
tainer, or to one jm;tice, acting under tlie bastardy act, the same notice
shall be given as is provided by law in other cases of certiorari directed to
justices.
50. That no person except a judge of the court be permitted to take pa-
pers from the files of the court ; but in all cases the parties or their coun-
sel shall be entitled to have copies of his adversary's pleadings and doc-
uments therein referred to, the expense of which shall be charged in the
bill of costs : Hut costs shall not be taxed for more than one copy furnish-
ed to the same attorney and for the same individual party.
ADMINISTRATION.
.51. Letters of administration will be granted to none except the next of
kin to tiie intestate, unless notice to all the next of kin and interested, to ad-
minister, Avithin tiic county, be given of the intended application, and proof
thereof nuulc by afhdavit, or a written declaration of the next of kin be
produced and filed, or the ajiplicant files his athdavit that there is no one
one of kin in the county, as lie believes.
52. The court shall appoint a master conimisfiioner of probate, to serve
as such during the pleasure of the coufl/Vho Bnail take an oath faithfully
and impartially to discharge bis duties: and whose duty it shall be to ex-,
amine and report upon all accounts of executors, adminietrators and guar-
478 RULES OF PllACTICE.
dians, and discharge such other duties pertaininfj tothe settlement of the es-
tates of deceased persons as mny be required by law or order of the court, and
ehall receive such compeneation forliis services in each case, as other offi-
cers are entitled to for like or analogous services, or as the court may al-
low in each particular case.
5.3. That the administration account, in all cases, and in case of insol-
vent estates, the account of the last sickness and funeral expenses shall
be kept distinct, and form items in the general account,
54. That all accounts of administrators, or guardians, which have been
submitted to the court, and have not been actcil upon, and all accounts as
aforesaid which shall be submitted to the court or filed with the clerk, be
referred to the master commissioner of probate, who shall report thereon
to this court, as soon as convenient ; which report shall state the amount
of moneys on hand at the time of the death, the amount received from
sales of personal estate, also the amount received from sales of real
estate, if any ; amounts of debts, collected and uncollected ; stating par-
ticularly for what time and upon what sums such interest is charged ; also,
amount of debts paid ; expenses of last sickness, where estate is insolvent,
and the amount of costs of administration and funeral expenses; and if the
master, upon examination, shall report unfavorably to any part of the ac-
count, he shall state his reason for so doing; and when accounts are repor-
ted to the court oy the master for allowance, such allowance shall be en-
tered of course, vn the journals, specifying the gross amount allowed, and
distinguishing privileged claims and special liens from general claims, and
such accounts Vvill of couise, stand open for exceptions till ihe ensuing
term, which exceptions shall be filed in writing with tlic clerk before the
end of the ensuing term.
55. The master, in examining the accounts, may take the affidavit of the
executor, administrator or guardian, if he think proper, and such other
legal evidence as may be offered, all of which shall be reduced to writing,
and returned to court with the papers.
5(5. Petitions by executors, administrators, or guardians, for sale of lands
or any interest therein, may be filed in term time or vacation, and due notice
thereof given by a summons directed to the sheriff, or other proper ofhcer,
returnable forthwith, if issued in term, or by other legal notice; and where
publication is necessary, it may be made of course, without an order of
court; and notice not served by an officer, shall be proved by affidavit with
a copy thereof; and such petitions shall be placed on the issue docket.
57 When application is made to the court for an order of appraisement
or sale on such petition, a short statement from the master shall be ex-
hibited to the court, showing the amountof the available personal assets, and
of the assetsarising from prior sales of lands, the amount of claims against
the estate, and the amount of debts against the estate remaining unpaid,
and the amount of bonds given by the administrator or executor.
58. For all examinations; allowances, certificates, or other duties he
may perform, the n.asters shall be entitled to receive his reasonable fees,
at th« time of rendering the service, and may retain his certificates of
statements until the same be paid.
CHANCERY.
T 59l That in all cases ih"chancery', where a defendant shall not file his
answef, plea, or demurrer, witliin the tiipe prescribed by law or the rules
of the court, compiainant may file in the clerk's office in term time or va-
csiion, a decree 7usiVupon the biiriaken as confessed; which decree shall
RULES OF PRACTICE. 479
of course be made absolute, on motion in court, on any day after the se-
cond day of any term, and after twelve days from the filing of such de-
cree 7iisi, unless sufficient cause be shown; provided that the counsel filing
the decree shall at the same time enter on the clerk's docket a memoran-
dum, dated and signed by him, stating that bill is taken as confessed, and
decree nisi filed; and any |)arty intending: to resist confirmation of such
decree, shall enter on the docket notice thereof, before confirmation; and
where leave shall be obtained to plead, answer, or demur, after default,
the complainant shall have his election to set down the cause for hearing
at the same term, and such other terms shall be imposed as the court shall
deem reasonable.
60. That in case answer be filed, but no exception or replication be filed
within the time required by law, or tlie rule of the court, either party may
set down the cause for hearing, upon bill and answer; and after cause is
set down for hearing, as above, no replication shqjl be filed without the
special leave of court, and upon such terms as to them seem proper.
61. If a cause in chancery be put in issue on replication to plea and an-
swer, twenty days from filing the replication, shall be allowed to the par-
ties to take testimony, and testimony taken afterwards shall not be read
without the special leave of the court; and upon the expiration of the
twenty days, either party may set down the cause for hearing; but either
party may take testimony at any time after service of process or notice in
the cause, or publication made; the costs of depositions taken before issue
joined, to be paid by the party taking them, unless they are used at the hear-
ing.
62. That in cases when replication be not put into plea, within the time
allowed, or in case ©f demurrer to bill, either party may set down the cause
for hearing.
63 That a general chancery docket shall be kept by the clerk, on which
causes shall be noted for hearing, decrees ?ji'si minuted; and other entries
made; and also a chancery docket, on which all causes for hearing shall be
entered in the order in which they are set : and causes shall be set for hear-
ing in the following manner; the solicitor setting the cause for hearing,
sluill enter on the docket of the clerk as follows : "'I'his cause is set for
hearing on bill and answer," or as the case may be; which entry shall
be subscribed by tlie solicitor, and be dated the day on which it is made.
64. That when any bill or answer shill refer to any paper or document
as part thereof, the originals or copies must be filed with the-n, and for
default thereof, on the part of complainant, the suit may be dismissed as
for want of a bill, or on the part of defendant, decree pro coiifcsso signed.
6.J. That in all cases set for hearing upon bill and answer, or upon bill,
answer, replication, and testimony, the complainant's counsel shall pre-
pare a brief, containing an abstract of the case, with the points and au-
thority's relied on, to be presented to the court on the first day of the term,
if set for hearing before that day, otherwise, on the day of setting them
for hearing; and if such brief be not prepared and presLMited, the cause
may eitlicr be dismissed or continued at the costs of the complainant, or his
counsel, as the court may direct-
66. After tlic expiration of the time allowed by the statute for filing an
answer, plea, or demurrer, farther time will not be allowed by the court,
unless on motion in writing, with an affidavit, stating the substance of a
meritorious defence. '.; '■ ''t'. ; "^ '^^ ':■'■..''
67. On the heai^ingof all (Jauses set forhcarilig on bill and answer only,
all cxhibita and (3ocumcntarjf*cvidbn60 ^liaLl be iieard; a^d when a decreo
7ii si is filed, and the bill taketi us confessed, it shall be competent for th^
defendant to produce and read his answer, or any legal toetimonj,
480 RULES OF PRACTICE.
which shall, however, be Eiihjcct to all proper exceptions, and fhall receive
weight only, as the court shall think proper and just under all the circum-
stances.
68. All causes on the eq'jity side of the court which are set for hearing-,
twelve days before the term, shall be put on liie clnnccry issue docket; and
others may be set for hearing at any time thereafter, as well in term lime
as in vacation; and Vv'iicn so set for hearing, either party may have the
cause placed at tlie heel of the chancery docket; and after the expiration
of twelve days from the time the cause is set fdr hearing and placed on the
said issue docket, it shall be considered as ready for hearing, and takes its
course, as other causes on said docket.
69. That in all cases set for hearing upon plea or demurrer, or upon
plea and replication, the party pleading or demurring, shall prepare' and pre-
sent a brief, as is required in the sixty-fifth rule; and if such brief be not
prepared and presented as aforesaid, the plea or demurrer may be over-
ruled at the costs of the counsel of the party pleading or demurring.
70. The causes on the chancery issue docket will be called and tried in
the order in which iliey stand on the docket of the court, unless for good
cause shown, a case may be passed over or continued.
71. That in the trial of chancery cases, the counsel furnishing the
brief will read the papers, (ualesss this be dispensed with by the court,)
and open the cause; the counsel for the other party will reply, the opening
counsel will rejoin, and this will close the discussion; and this rule will
be observed, whether the argument be in writing or viva voce.
73. In docketed cases at law or equity, the parties and their attorneys
shall be charged with a knowledge of the notice of the tiling all pleadings,
decrees, papers, or motions; (not enumerated,) in causes not docketed, or
otherwise provided for, notice shall be given to the opposite party, and all
others interested in the matter, at last twenty-four hours before such
application, petition, or motion will be heard.
73. Of the assignment of a day or time for the trial, hearing, arguing or
settling any cause or matter, each party shall lake notice at his peril, unless
the court may please otherwise to order.
74. In the computation of time, except in cases provided for by statute
law, the day on wliich a rule or order is entered, or notice, declaration, or-
der, or other pleading or rule, is served, shall be excluded, and the day on
which the compliance therewith is required, shall be included, unless that
day be on Sunday, in which case, Sunday shall be excluded.
75. The power of imposing costs, where the statute has made no pro-
vision, being incident to the equitable power of the cuurtover its suitors, it
is ordered, that in all cases of motions, applications, or petitions to the
court, where the statutes have not provided for the taxation of costs, the
court will order and direct costs to be paid according to equity and justice,
unless prohibited by the positive provisions of the law.
• 76. When motions are gr.mted on the payment of costs, or on the per-
formance of any condition, or costs are ordered to be paid on any inciden-
tal question, the costs shall be paid or condition performed, within thirty
days, unless otherwise ordered; and on failure, the party entitled to the
costs, or the performanceof the condition, may serve notice on the party in
default, to appear in court on a day therein named, not earlier than ten
days from'the time of serving such notice, to answer to a rule to show cause
why\tta.chm$nt%hould not issue on such ■default; and on proof of the ser-
vice of such notice, by affidavit, and oiVmotion in writln^the court will con-
sider thereof, and grant an attachment, or dismiss the motion, as may
seemjuiEt"aud right, and direct the taxation of costs there on accordingly.
77. When by the terms of any order of court, any act is directed to be
RULES OF PRACTICE. 481
performed instanter, it shall be understood that the time thereby allowed
for performance, is twenty four hours from the entry of the order.
78. Petitioners for the benefit of the act for the relief of insolvent debtors,,
will be required to comply strictly with the provisions of that act; and no
petition not presented or tiled on the first or second day of the term, will be
subsequently received, unless the same be accomponied with an affidavit, or
other testimony, containing "suflicient cause" to excuse the delay, and to
permit such petition to be filed.
79. No agreement or understanding between the parties, their attorneys
or solicitors, or between them and the officers of court, or between any of
them, unless the same be in writing, and signed by the parties thereto, will
be enforced, inquired into, or recognized by the court, other than such as
ars made in open court, in any matter wliatever, relating the progress,
management or conducting of any business pending in court.
80. All applicitions to court for licenses siiall be made in writing, and
the requisite proof shall be furnished by affidavit.
81. If process is returned, "servi^d," in suits at Jaw or in chancery, com-
menced by non-resident plaintiffs, the suit will not be dismissed for want ot*
security for costs, without a rule of court.
CONTEMPTS.
82. In all attachments against the officers of the court or others, for'
contempt, for disobedience of process, or other cause, and on all rules nisi
for attachment, if the cause for the attachment, or rule do not exist of re-
cord, or does notappe.ir by the process of court and the return thereof, (ex-
cept in cases of con>,empt, in view of the court,) the party applying for the
fule or attachment, shall lay the cause before the court by affidavit and
motion in writing.
83. On the return of the attachment, '-served," or proof of the personal
service of the rule to show cause, the party in whose fivorsuch attachment
or rule issued, shall without delay, file interrogatories, which the respon-
dent shall answer on oath, in writing, inslaater, unless the court give fur-
ther time, and on failure to do so, the coiirt will consider the charge or con-
tempt as confessed, and proceed in their discretion to final adjudication
thereon.
84. In all cises of attachment or rule nisi, as above, where the person a-
gainst whom either shall issue, leaves the jurisdiction of the court, or
evades the process of the court so that he cannot be attached or served per-
sonally witti notice jf such rule, the court will, on due proof of such abscon-
ding or evasion of process, direct in their discretion, such publication to be
made thereon, or such other course to be pursued to consummate the action
of the court therem,a3 shill be considered just and proper.
85. In all cases of attachment for contempt or disolieJience of the pro-
cess, judgment, decree, order or rule of C'ourt, wherein other testiHiony
than the answer of the respondent to the interrog itories to be tiled as afore-
said, shall be necessary and pr()()er, the same shall be taken in writing, by
affidavit or depositions, and on due notice lo the adverse party, as in adver-
sary suits at law.
8t5. The examination of garnishees in attachment cases, shall be by in-
terrogatorus tiled in the cause, to which the answers shall be filed in writ'
ing, und.-r oath.
87. Attorneys of (his Court sliali not be received as bail or surety, in
any cause or matter in Court, except as security for costs for noo-resideat
plaintiffs , ■ ■
M M M
482 RULES OF PRACTICE.
88. Each Saturday, during term time, shall be set apart to hear and dis-
pose of non-enumerated motions, which shall be called in their order on the
proper docket.
89. There shall be a register or roll-book,' to be kept by the Clerk at all
times in his office, for inspection, in which each member of the Court and
Bar ghall write his name, in his own proper hand, with the date and place
of his birth, and the location of his office, or dwelling, or both, as he may
please; and the members of the Bar who are in partnership, shall also in-
sert the names of the partners and the style of the partnership, the date of
its commencement, and when it expires, insert the day of its dissolution;
and as changes in location, of office or of partnership, may take place, each
shall note the same in said roll-book. Any member of the Bar intentionally
omitting to comply with any of the requisitions of this rule, will be deemed
to have committed a contempt of Court, and be dealt with accordingly.
INDEX.
ABATEMENT.
See, Pleas and Pleadings.
ACTIONS.
Origin and several kinds of, 5.
ADMINISTRATORS.
Sales of real estate by, 387. Form of petition, 387. Ap-
pointment of Guardian ad litem, 388. Order of appraise-
ment and assignment of dower, 388. Report of appraise-
ment and assignment of dower, 388. Order of appraise-
ment, 389. ileport of appraisement, 389. Order of sale,
389. Return of sale made, 390. Sale confirmed and
deed ordered, 390. Form of administrator's deed, 390.
Allowance of further time to administrator, 420. Final
settlement of administrator's accounts, 420. Order for
administrator to complete real contract of intestate, 427,
AFFIDAVITS.
To hold to bail, 11. The like, by an agent, 12. To plea
in abatement, 38. To plea jjuis darrien continuance,
47. To plea of the general issue, 41. For writ of re-
plevin, 125. For injunction, 258, 71. (a). Against col-
lusion in bill of interi)leadcr, 203. Of want of know-
ledge of names of delcndants in chancery, 250, n. (c).
AUidavit of publication, 208, 270. The like, on sale by
Master Commissioner, 317. Affidavit of merits for leave
to answer, 277. To truth of plea in chancery, 279.
To truth of answer, 283. For Habeas Corpus, 339. For
writ of attachment, 358. Of publication in partition, 373.
Of personal service in partition, 373. For continuance,
400.
APFEAL.
From Common Pleas to Supreme Court, when and how
taken, 300. Form of notice, 02, n. (h) 307. Appeal
bond, 3(53. Certificate of journal entries upon appeal,
309. From Justices of the Peace to Common Pleas, 370.
See, Special Entries, 428.
APPEARANCE.
What and how ciTectcid, 18. Cures cAjrs" Und defects
in process, 18. In Chancery, 272.
484 INDEX.
ASSUMPSIT.
Origin of action, 5. How commenced, 7. Praecipe for
summons in, 8. For capias, 11. Declarations in. See,
Declarations. Complete record in, 72.
ATTACHMENT.
Pra3cipc and affidavit for writ of, 358. Form of writ,
359. Inventory and appraisement, 300. Sheriff's re-
turn, 360. Bond to Sherifi' upon redelivery of the pro-
perty, 3G1. Advertisement, 362. Affidavit to make
garnishee party, 362. Notice to garnishee, 363. She-
riffs return, 363. Declarations in, 363. See, Deposi-
tions and Select Writs.
BAIL.
Affidavit to hold to bail, 11. Judges order for special
bail in vacation, 12. Order of Couit for special bail. 13.
Appearance bail, 14. Bail bond to Sherif!', 15. Special
bail when to be entered, 15, n. (a). Form of recogni-
zance, 16. Bail piece, 16.
BILLS IN CHANCERY.
See, Chancery.
BILLS OF EXCEPTION.
Form of, how and by whom allowed, 364, 365.
BONDS.
Bail bond to Sheriff, 1 5. Replevin bond, 127. Bond on
writ of error, 212. The like, on Certiorari, 245. In-
junction bond, 311. Bond to Sheriff on redelivery of
property in attachment, 361. Appeal bond, 368. For
removal of cause to Circuit Court, 413.
CAPIAS AD RESPONDENDUM.
Nature of, and how served, 7. When it may issue, 10.
Praecipe for in assumpsit, 11. In debt, 80. In covenant,
108. In detinue, 117, Incase, 137. In trover, 147.
In trespass, 154, n. (a). How endorsed, 13. Alias and
Pluries, 13. Testatum, 14.
CASE.
Action of, 5. How commenced, 136. Praecipe for
-^^^_ summons in, 136. For capias, 137. Declarations in.
^tiS?r^ /-V''^- See, Declarations.
^# "^CERTIORARI.
f)efined^243. Form pf allowance by Ju3ge ia^acation,
•■^j 244. B^ Court in term time, 245. Foymof bond, 245.
•■ ^ . Form of writ, and how served, 246. Form of notice,
INDEX. 485
and how served, 247. Judgments in, 248. For the al-
lowance and forms of certiorari on suggestion of diminu-
tion in error, See, Erroy; Special Entries, 426.
CHANCERY.
Courts of, how established, 251. Of the several kinds of
bills, 253. Form of original bills, 254. • For a specific
performance, vendee against vendor, 256. The like,
when a title bond was given and the lands resold to a
subsequent purchaser with notice, 258. Atfidavit ibr
injunction, 258, n. (a). 13111 of foreclosure, 260. Bill of
interpleader, 262. Affidavit against collusion, 263. Of
want of knowledge of names of defendants, 256, n. (c).
Form of writ of subpoena, 265. Notice bv publication,
267, 270. Affidavit of publication, 268, 270. Order of
Court for publication, 269. Appearance and defence,
273. Demurrer, 274. Conclusion of answer insisting
for benefits of demurrer, 276. Affidavit of merits for
leave to answer, 277. Pleas, 278. Affidavit to truth of
plea, 279. Answers, 280. Words of course preceding
answer, 282. The like, by guardian ad litem, 283. Af-
fidavit to truth of answer, 283. Exceptions to answer,
284. Replication, 286. Examination of witnesses and
proceedings preparatory to a hearing, 287. Bills to per-
petuate testimony, 288. Bills of discovery, 289. Sup-
plemental bills, 291. Form of, 291. Bills of revivor,
293. Revivor on motion, 295. Form of citation to re-
vive, 296. Cross bill, 297. Bills of review, 299. Upon
errors in law, 301. Upon discovery of new matter, 302.
Entry of leave to file bill of review, 303. Defence to
bill of review, 304. Bills to carry decrees into execution,
306. Bills to suspend the operation of decrees, 306. Pe-
tition for rehearing, 306. Complete record, 334. See,
Injunction, Master in CJianccr^j, Final Decrees, IntcrlO'
cutory Decrees and Orders.
CIRCUIT COURT.
Removal of causes from the State Courts to the Circuit
Court, 410. Form of Petition, 411. Order of removal.
412. Form of bond, 413. Record, 413.
CLERK.
Certificate to record, 76. The like, on rennoval oi causes
from State Court to Circuit Court Order for appoint-
ment of, 426. ^'- . ,
COMPLETE RECORD.
At law, 72. In Chancery, 334. '
486 • INDEX.
CONTINUANCE.
Defined, 397. Affidavit for, 397. Entry of, 398.
COSTS.
Security for, when and how given, 8, 9. Order for, on
leave to amend declaration, plea, &c. 02, n. (ci). When
and how to be inserted in execution, 353.
COURTS AND THEIR JURISDICTION.
Justice of the Peace, 1. Common Pleas, 2, 7. Supreme
Court, 3, 7. Court in Bank, 4.
COVENANT.
Action of, 5. How commenced, 107. Preecipe for sum-
mons in, 107. For capias, 108. Declarations in. See,
DecIaratio7is.
DAMAGES.
Assessment of by jury on demurrer over-ruled, nul tiel
record, ^"C. 56, By Court 5G. n. (a) 60.
DEBT.
Action of, 5. How commenced, 79. Praecipe for sum-
mons in, 79. For capias, 80. Declarations in. See,
Declarations.
DECLARATIONS.
In Assumpsit, Payee vs. maker of promissory note, 21. In-
dorsee vs. maker, 22. Partners vs. maker, 22. Payee
vs. partners, 23, Indorsee vs. indorser, 23. Indorsee
vs. executor of maker, 24. Averments of want of effects
and that the maker could not be found, 24. Drawer of
bill of exchange, being also payee vs. acceptor, 25.
Drawer, not being payee vs. acceptor, 25. Indorsee vs.
acceptor, 26. Payee vs. accepter, 20. Payee on non-
acceptance vs. drawer, 26. Indorsee on non-acceptance
vs. indorser, 27. Indorsee on non-acceptance vs. payee,
28. On bills payable after date, 28. On bills payable
alter sight, 28. On foreign bills, 29.
Common Coiints, 29.
Agreements and special j)Tomises. For refusing to deliver
^ goods, 30. The like, upon request, 30. On award by
parol submission, 31. On note payable in trade, 31,
J'V * , The like, the price being agreed upon, 32. On a promise
'■"^^ . "to take back a horse, if unsound, and refund the price,
' S'S. On the? sale of a horse with warranty, 33. For not
delivering goods, &lc. in exchange, 34. ,
QuantuTTt-^ieruit counts. For rent, 34. For use and oc-
cupation, 35. For horse feed, stabling, &c. 35. For the
INDEX. 487
hire of horses, &c. 35. By physicians foi' medicines, &c.
36. By attorney for his fees, &c. 36.
In debt. On promissory note under seal, 82. On bond for
tlie payment of money, 84. On bond without date, 84.
On bond by surviving obHgee, 84. By baron and feme,
on bond given to feme dum sola, 85. Administrator of
obhgee against obhgor, 85. Obligee vs. administrator of
obligor, 85. On bonds stating the conditions under the
statute, 86. On a bond to perform covenants in another
indenture, 87. On judgement, 87. Assignment of
breaches under the statute, 103.
In COVENANT. Lessor vs. lessee, for rent, 110. Grantee vs.
grantor, on covenants of seisin, power to convey, war-
ranty, &c. 111. Assignee of grantee vs. granter, on
covenants of seisin and warranty, 112.
In DETINUE, 119.
In replevin, 129.
In trover, 148.
In case. Against carrier for not delivering goods, &c. 139.
For immoderately riding a horse, 140. For falsely war-
ran tying a horse to be sound, 140. For charging the
plaintiff with perjury, 141.
In trespass. Assault and battery, 155. The like, with false
imprisonment, 155. For debauching a daughter or ser-
vant, 155. Trespass quare clausum fregit, 156. For
cutting and carrying away trees, 157. For taking and
carrying away goods, 157. For mesne profits after a
recovery in ejectment, 158. New assignment to plea of
liherum tenementum, 104.
In ejectment, 179.
Leave to amend declaration, 62, 70.
DECREES.
Forms of, 320. Bill dismissed with costs on final hear-
ing, 320. Injunction dissolved and bill dismissed with
costs on final hearing, 321. Injunction dissolved, bill dis-
missed and decree for defendant for the amount of judg-
ment at law with costs and penalty, 321. Decree upon .
answer, &c. against one defendant, and pro confesso
against another, 322. For specific performance, 322.
^^, The like, y^ro confesso, 323. For perpetual injunction
and conveyance of real estate, 32^, See, Interlocutory
Decrees and Orders. /r,^\
DEDIMUS rOTESTATEM. ' '^ '
See, Depositions.
,.^ 488 INDEX.
DEED.
Sheriff's deed to party electing to take the estate in par-
tition, 378. The Uke, to a purchaser in partition, 381.
Administrator's deed, 390.
DEMURRERS.
See, Pleas and Pleadings.
DEPOSITIONS.
When and how taken, 344. Form of notice, 344. Form
of subpoena for witnesses, 345. Form of attachment, 346.
Words of course preceding depositions taken upon notice,
330. Cerlificateof officer taking depositions, 347. Clerk's
certificate, 348. Dedimus potestatem, 348. Order for,
348. Forms of; 349, 350. Directions to Commissioners,
350. Depositions suppressed and cause continued, 332.
DETINUE.
Action of, 5. How commenced, 11 G. Praecipe for sum-
mons in 116. For capias, 116. Declarations in. See,
Declarations.
DOWER.
Form of petition, 381. Decree for assignment of, 383.
Writ of, 383. Sheriff's return, 384. Sheriff's assign-
ment confirmed and writ of seisin ordered, 385. Writ
of seisin, 385.
EJECTMENT.
Action of, 5. Nature of remedy and when it lies, 168.
Title of term, 169. Venue, 169. Demise by whom, 169.
Time of demise, 171. Description of the premises, 172.
Entry, 173. Ouster, 173. Notice to appear, 174. A-
mendments, 174. Declarations in, 179. Notice to
tenant, 180. Service of the declaration, how and upon
whom made, 181. By whom made, 182. When it must
be made, 183. Affidavit of service, 184. Judgment by
default against casual ejector, 186. Who may defend,
188. Consent rule, 190. Consolidation, 193. Pleas in
bar, 194. Order for survey, 195. Verdict and judg-
ment for plaintiff, 198. The like, for defendant, 198.
See, Occupying Claimants.
ERROR.
Nature of remedy and when it lies, 206. Of the time
.^ . and manner of bringing a writ of error, 207. Form of
X- :^, writ of error, 208. Assignment of errors, 209. Cjta-
* ' ti on, notice and supersedeas, 211. Form of citation and
v,:^s^ notice, 211. Form of bond on error, 212. Supersedeas,
I
INDEX. 489
citation and notice in one writ, 213. Demurrer and plea,
214. Common joinder, 215. Sui^gestion of diminution
and certiorari, 215. Order for allowance of certiorari^
216. Form of certiorai4, 217. The like, on suggestion
of specific diminution, 219. Amendment, 221. Judg-
ment of affirmance, 222. Of reversal,. 223. The like,
specifying the causes of reversal, 223. Judgment of re-
versal and final judgment for plaintiff in Supreme Court,
224. Judgment of reversal and cause remanded to Com-
mon Pleas with instructions to over-rule demurrer, 224.
Judgment of reversal and procedendo, 225. Judgment
of reversal in part and affirmance in part, 226. Man-
dates, 226, 227. Writ of restitution, 228. Scire fa-
cias quare executionem non, 229.
EXECUTIONS.
Fi. Fa. et Lev. Fa. on judgment or decree for money in
Common Pleas, 353. The like, on mandate from Su-
preme Court, 354. Ca. Sa. on judgment or decree for
money in Common Pleas, 354. The like, on mandate
from Supreme Court, 355. Venditioni exponas, 355.
Alias and pluries executions, 350. Habere facias posses-
sionem, 356. Execution in Detinue, 357.
FINAL DECREES.
See, Decrees.
GUARDIANS.
Sale of real estate by, 392. rorm ot peiuion,
HABEAS CORPUS.
Form of application, 339. Allowance ol by single Judge,
339. The like, in term time, 340. Form of "writ, 340.
Service and return, 341. Orders for discharge, recom-
mitment, &c. 342.
INJUNCTIONS.
Allowance of, 308. B}' Court, 310. By Judge in va-
cation, 310. Injunction bond, 311. ^li^n. Chancery ^ In-
terlocutory orders and decrees.
INTERLOCUTORY DECREES AND ORDERS.
For leave to amend bill, 321. For a])pointment of guar-
dian ad Litem, 325. Demurrer or jilca over-ruled, leave
to answer, &ci 325. Injunclioi] allowed by Court, 325.
By Judge in vacation, 325. Injunction dissolved and
cause continued, 320. Order nunc pro tunc, 320. Or-
der to make an election, 320. To add a defendant ta a
bill, 320. For the discharge of a suitor arrested on leav-
ing Court, 327. For the appointment of a receiver with
N .N \
480 INDEX.
liberty to let the estate, &c. 327. Reference to Master
on exceptions to answer for insufficiency, 327. The like,
for scandal and impertinence, 328. Reference to Mas-
ter to state an account, 328. Confirmation of Master's
report, 328. Order for Master to sell real estate, 329.
Sale by Master and deed ordered, 329. Leave to file
bill of review, 329. Decree reversed on bill of review in
Common Pleas, 330. The hke, in Supreme Court, 330.
The like, and cause continued, 330. Decree of Common
Pleas affirmed in Supreme Court, on bill of review, 331.
Decree of Common Pleas reversed and final decree in
Supreme Court, 331, Depositions suppressed and cause
continued, 332. Order for publication of notice to non-
residents, 332. Order for a new trial at law, 332. Is-
sue out of Chancery, devisavit vel non, 332.
JUDGMENTS.
In assumpsit. For plainlifl' on demurrer to plea in abate-
ment, 61. For plaintiff" on demurrer to a replication to
plea in abatement, 61. For plaintiff on demurrer to de-
claration or replication, and damages assessed by jury,
61. For plaintiff on demurrer to plea or rejoinder, 62.
For plaintiff by default and damages assessed by Court,
63. The like, damages assessed by jury, 63. For plain-
tiff on plea of non-assumpsit, and verdict for plaintiff, 63.
The like, against an executor or administrator, 64. For
plaintiff on submission to Court to try issue and assess
damages, 64. For plaintiff, by confession, relicta veri-
jicatione, release of errors, &c. 64. For plaintiff on re-
plication of nul tiel record, 65. On plea of nul del re-
cord, 65. By confession on warrant of attorney, 66. On
demurrer to evidence, 66. For defendant on non-suit,
67. The like, before jury sworn, 67. Non-suit for want
of declaration, 67. For want of replication, 68. On
discontinuance, 68. Nolle prosequi, 68. The like, as to
one or more Counts, 68. For defendant on demurrer to
plea, 69. To declaration, 69. On plea of nul tiel re-
. . cord, 70. On non-assumpsit, 70. On demurrer to evi-
. • dence, 70. On notice of set-off, judgment for balance, 71.
Ii* DEBT. For plaintiff on demurrer to declaration on simple
contracts, single bonds, &c. 100. The like, by default,
debt found and damages assessed by Court, 101. The
like, debt found and damages assessed by jury, 101. On
nil debet, 101. On submission to Court to tr^ issue gnd
assess damages, 102. By confession relicta veri^atfone,
102. On Hon e'st factum, 102. On nul tiel record, 103.
Assignment of breaches and judgments under the statute,
103. 4, ^. .. *r
INDEX. ^ 491
In detinue. For plaintiff, on general verdict, 124. On ver»
diet in part, 124. For defendant, 124.
In replevin. For plaintiff' on non detinet, 135. The like,
on default, 135. For defendant, 135.
In case. For plaintiff on plea of not guilty, 144. The like,
for defendant, 144.
In trover. For plaintiff on plea of not guilty, 152. The
like, for defendant, 152.
In TRESPASS. For plaintiff on plea of not guilty, 167. The
like, for defendant, 167.
In EJECTMENT. For plaintiff, 196. For defendant, 198. For
plaintiff under occupying claimant law, 204.
In error, 222.
In scire facias, 240.
JUSTICES OF THE PEACE.
Jurisdiction of, 1. Appeals from, 370. Seej Certio-
rai^i, Special Entries,
MANDATE.
Order for to carry judgment of Supreme Court into exe-
cution, 62, n. (b). The like, on writ of error, 226, 227.
MASTERS IN CHANCERY.
How appointed and their duties, 313. Words of course
preceding Master's report, 3 15. Words of course pre-
ceding exceptions to Master's report, 315. Report of
sale by, 316. Affidavit of publication of Master's sale,
317. See Interlocutory decrees and orders.
MESNE PROCESS.
Nature and several kinds of, 6.
MOTIONS.
Defined, 393, Form of, 393. Journal entry of, 394.
To produce books and writings, 394. Form of notice,
395. Order to produce books, &c. 395.
NE EXEAT REPUBLICA.
Nature of remedy and when it lies, 318. Form of writ»
219.
NOTICE.
See, Chancery, Depositions^ Partition, Motions,
OATHS.
To foreman of grand jury, 399. To other grand jurors,
399» ' Of executors, 400. Of administrators, 400. Of
petit jurors, 400. Of witnesses before jury, 401. The ^.
like, before Court, 401. ' '--*''•
492 INDEX.
OCCUPYING CLAIMANTS.
Order of Court for valuation of improvement, 199. Or-
der to Sheriff, 201. Sheriff's return and report of jury,
202, Judgment for plaintiff for balance found by jury,
204.
OFF-SET.
See, Set-off.
ORDERS.
See, Interlocutor]/ decrees and orders, special entires.
PARTITION.
Form of petition, 371. Notice, 373. Affidavit of pub-
lication, 373. Affidavit of personal service, 373. De-
fence, 374. Order for partition, 374. Writ of partition,
375. Report of Commissioners on partition made, 376.
Report of valuation by Commissioners, 376. Sheriff's
return, 377. Report of partition confirmed, 377. Order
, confirming an election by one of the parties and direct-
ing the Sheriff' to make deed, 378. Order to sell the
estate, 380. Confirmation of Sheriff's sale, deed ordered
and money distributed, 380. Sheriff's deed to purchaser,
381.
PLEAS AND PLEADINGS.
For declarations. See, Declarations.
Pleas in abatement. Want of parties, plaintiffs, 38. Want
of parties, defendants, 39. No such person in esse, 38.
Another action pending, 40.
Pleas in bar. Non-assumpsit, 41. Statute of limitations,
43. Tender, 44. Satisfaction, 45. Infancy, 46. Puis
darrein continuance, 47. Non est factum. 89. Nil de-
bet, 90. Nf>n est factum after craving oyer, 91. Non est
factum and nil debet to debt on bond and simple contract,
92. Onerari non., 92. Deed obtained by fraud, 93. By
duress of impi'isonment, 93. Solvit ad diem, 94. Gene-
ral performance, 94, 95. NiJ tiel record, 95. Non
damnificatus, 95. Non infregit conventionem, 114. Non
detinet, in detinue, 121. The like, in replevin, 130.
Property in defendant, 131. Not guilty, in trover, 150.
The like, incase, 142. The like, in trespass, 160. Son
assault, 161. Property of defendant, &c. 162. Libe-
> . rum tenementum, 163. New^ assignment to plea of libe-
• rum tenementum, 164. In ejectment, 194. In scire
r^: facias, 238.
w^
INDEX. 493
REPLICATIONS.
To pleas in abatement, 39. Nul tiel record, 40. That
plaintiff' was out of the State, 44. No tender made, 45,
Subsequent request and refusal, 45. Did not accept, to
plea of satisfaction, 46. Necessaries, to plea of infancy,
46. Defendant at large, to plea of duress, 94. Of his
own wrong, to son assault, 162.
Rejoinder. To plea in bar, 44.
Demuukers, To plea in abatement, 48. Joinder, 48. To
declarations, 48. Special demurrei', 48, n. (a). Joinder,
49. To pleas in bar, 49. Joinder, 49. Demurrer to
evidence, 49. Joinder, 50. Leave to withdraw, and
plead, reply, &c. 62, n. (a). Form of entry. Ibid. G9.
PRAECIPES.
For summons in assumpsit, 8. In debt, 79. In cove-
nant, 107. In detinue, 116. Incase, 136. In trover,
145. In replevin, 125. In trespass, 153. For capias
in assumpsit, 11. In debt, 80. In covenant, 108. In
detinue, 117. In case, 137. In trover. 146. In Ires-
pass, 154, 71. (a).
PROCESS.
Mesne process, nature and several kinds of, 6. See,
Summons, Capias, Writs.
RECORD.
Complete record at law, 72. In Chancery, 334. Au-
thentication of, 76. Form of in removing causes from
State Courts to Circuit Court, 413.
REJOINDER.
See, Pleas and pleadings.
REPLEVIN.
Action of, 5, How commenced, 125. Precipe and af-
iidavitin 125. Writ of, 126. Bond, 127. Declaration
in, 129.
REPLICATIONS.
See, Pleas and pleadings.
SALE OF REAL ESTATE BY ADMINISTRATORS.
# See, Administrators.
SALE OF REAL ESTATE BY GUARDIAN.
See, Guardians. ' ■
3CIRE FACIAS.
Nature of remedy and when it lies, 25L To revi\-iR».
judgment for plaintiff after five years, 231. The like, in*^--
494 INDEX.
behalf of executor or administrator of plaintiff, 232. To
revive judgment against executor or administrator of de-
fendant, 232. To make defendants not served with ori-
ginal process, parties to judgment, 233. Suggesting fur-
ther breaches after judgment on penal bond, -^34. To
make sureties of Sheriff parties to amercement, 235. To
subject real estate to the payment of Justices judgment,
235. Against special bail, 236, Pleadings in, 238. Nul
tiel record, 239. Payment, 239. Death of principal
before return of Ca. Sa. 239. Judgments in, 240.
SECURITY.
For costs how and when to be given, 8, 9. Defendant
may rule plaintiff to give security for, 9. See, Bail.
SELECT WRITS.
Attachment for contempt of Court, 402. Habeas Cor-
pus, to give evidence, 402. Special mandate from Su-
preme Court to Court of Common Pleas, to carry judg-
ment or decree into execution, 403. Procedendo, 404.
Prohibition, 404. Restitution in ejectment, 405. Sub-
pceha for witnesses, 406. Venire facias for grand and
petit jurors, 407. Citation to administrators or guardians,
407. Summons upon plea in abatement, 408. Certio-
rari from Supreme Court to Common Pleas or other in-
ferior jurisdictions, 408.
SET-OFF.
Form of notice, 42. Verdict for defendant for balance
on notice of set-off, 59. Judgment for same, 71.
SPECIAL ENTRIES.
Appointment of guardian chosen by infant, 415. The
like, where infant cannot make choice, 415. Tavern li-
cense granted, 415. Letters of administration granted
and appraisers appointed, 415. Probate of will, 416.
Letters of administration granted with the will annexed,
416. Rule for security for costs, 417. Security for costs
entered in term time, 417. Judgment for costs against
security on motion, 417. Verdict set aside and new trial
granted, 417, Juror withdrawn and cause contiued, 418.
Reference to arbitration, 418. Award returned and
judgment thereon, 418. Defendant surrendered by spe-
cial bail, 419. • Jury sworn and adjourned, 419. Altach-
■ v^lfignt awarded '■against a witn^gs, 419. Verdict and
V - '^'-judgment set asid6 and new tri^ftanted, 420. " Motion
: to set aside verdict and judgixflilit jttid for a iiew .trial
■■^■i'- \ over-ruled^ ^20. . Entry of satisf?k<5tion," 420. " ' ' efee
V ^ .rf"! > to marry, Jlo. Sale on execution confirm. i'eed
ordered, 421. Motion to ^ra^iPiJ appeal over-ruled, 421.
INDEX. 495
Motion in arrest of judgment over-ruled and final judg-
ment upon verdict, 421. Judgment arrested and leave
to amend declaration, 422. Writ of error quashed, 422.
Motion granted to amend judgment, 422. l^eave to with-
draw demurrer and plead issuably, 422. Judgment for
plaintiff upc:i agreed case, 423. Rule for attachment for
contempt of C'ourt, 423. Order for change of venue, 424.
Admission of attorney and solicitor, 424. The like, un-
der the reciprocity act, 424. Judgment for defendant
upon special verdict, 425. Order of Common Pleas re-
versed on certiorari in f^^upreme Court, 4"25. Order of
Common Pleas affirmed on certiorari in Supreme Court,
425. Journal entry at the commencement of a term,
426. Appointment of Clerk, 426. Allowance of fur-
ther time to an administrator, 426. Final settlement of
administrators accounts, 42G. Commitment for con-
tempt of Court, 427. Order for administrajpr to com-
plete real contract of intestate, 427. Appraisfement on
execution set aside and new one ordered, 427. Rule to
plead extended, 427. Order for the redemption of land
sold for taxes, 428. Appeal quashed, 428. Change of
recognizance on appeal in Common- Pleas, 429. The
like, when the recognizance is insufficient in form or
amount, 429. Transcript filed by appellee and judg-
ment in his favor in Common Pleas, 429, Transcript
filed by appellee, appeal dismissed and cause remanded,
430. Judgment of non-suit against appellant, and final
judgment in favor of appellee, 430.
SUBPOENA FOR WITNESSES, 406.
SUMMONS.
Nature of writ and how served, 7. Writ of in assump-
sit, 8. In debt, 79. In covenant, 107. In detinue, 116.
In case, 136. In trover, 145. In replevin, 126. In
trespass, 154, n. (a). Cause of action must be endorsed
upon, 8. Alias and pluries summons, 9. Testatum, 10.
SURVEY. .
Order fbr in ejectment, 195.
suretV. '^
She, Securityr^^^ ,
TRFSPASS. ' iL^f*
' if. ;"). How commenced, \ 53. Sf rajcipe for sum-
mons m, 153. For capias, 154, 7i. (a). Declarations in.
Sek, Declarafion^'^1^^ ^ssx^maQwi to plea of libcrum
tenemcntum, 164.
496 INDEX.
TRIALS AND VERDICTS.
Nature of, 51. See, Verdicts.
TROVER.
Action of, 5. How commenced, 145. Praecipe for sum-
mons in, 145. For capias, 140. Declarations in. See,
Decla?^ations.
VERDICTS.
How rendered, 52. Special verdicts, 52,
In ASSU3IPSIT. For 7?Z«m//'^ on non-assumpsit, 52. Against
administrator, 53. When all of several issues are found
for plaintiff, 53. On plea of tender as to part, and non-
assumpsit as to residue, 54. When one issue is found
for plaintiff and another for defendant, 54. On default,
54, 55. Against two defendants when one pleads non-
assumpsit, and the other is defaulted, 55. Assessment
of damages on demurrer over-ruled, nul tiel record, &c.
50, For defendant on non-suit, 50. On non-assumpsit,
57, For one defendant on non-assumpsit, when another
has let judgment go by default, 57. On non-assumpsit by
intestate, 57. On several issues, 58. When one issue is
found for defendant and another for plaintiff, 58. On
notice of set-off, balance found for defendant, 59.
In debt. For plaintiff on nil debet, 97. On non est factum,
98. On solvit ad diem, 98. For defendant on nil debet, 98.
On non est factum, 98, The like, on notice of set-off^ 98.
In covenant, 115.
In detinue, 122.
In replevin. For^/aiw^j^on non detinet, 132.. On default
damages assessed by jury, 132. Y or defendant, on dis-
continuance, right of property and right of possession
found in defendant, 133, The like, on non-suit, 133. The
like, on demurrer to plea, 134, Issues found for, and
right of property and right of possession or either of
them found in defendant, 134,
In trover, 151.
In case, 143.
In trespass, 1 GQ.
-In ejectment. 196, 198,-
WARRANT OF ATTORNEY TOGOI^^FESS JUDGMENT,
, 'i-'- : .66,71. (a). -- % -^' ; '
■'^" " ' Writ of error, 20S, Of certiorari on suggestion of di-
minution, 217, 219, Writ of restitution; 228, Scire
facias, 231. Certiorari to Justices of the Peace, 246.
See, Summons, Capias, Select W^-its.
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