UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY Faculty library DENNIS & CO., INC. Law Book Publishers 251 MAIN STREET BUFFALO 3, N.Y. REPORTS AND DISSERTATIONS, IN TWO PARTS. PART I. REPORTS OF CASES DETERMINED IN THE SUPREME COURT OF THE STATE OF VERMONT, IN THE YEARS 1789, 1790, AND 1791. PART II. Dissertations on the Statute adopting the Common Law of England, the Statute of Conveyances, the Statute of Offsets, and on the Negotiability of Notes. WITH AN APPENDIX, CONTAINING FORMS OF SPECIAL PLEADINGS IN SEVERAL CASES; FORM OF RECOG N1ZANCES; OF JUSTICES RECORDS; AND OF WAR- RANTS OF COMMITMENT. BY NATHANIEL CHIPMAN, LATE CHIEF JUSTICE. RUTLAND: PRINTED BY ANTHONY HASWELL, FOU THE AUTHOR; M.DCC.XCIII. SECOND EDITION. ST. PAUL, MINN.: WEST PUBLISHING COMPANY. 1888. District of Vermont, to wit. Be it remembered, That on the twenty-first day of January, in the seventeenth year of the independence of the United States of America, the Hon. Nathaniel Chipman, of Rutland, in the said District, Esq. hath deposited in this office, the title of a Book, the- right whereof he claims as Author, in the words, letters, and figures following, to wit: Reports and Dissertations, in two parts. Part I Reports of Cases determined in the Supreme Court of the State of Vermont, in the years 1789, 1790, and 1791. Part II Dis- sertations on the Statute adopting the Common Law of England, the Statute of Convey- ances, the Statute of Offsets, and on the Negotiability of Notes. With an Appendix, con- taining Forms of Special Pleadings in several cases; Forms of Recognizances; of Justice Records; and of Warrants of Commitment. By Nathaniel Chipman, late Chief Justice. In conformity to the act of the Congress of the United States, entitled "An act for the encouragement of learning, by securing the copies of Maps, Charts, and Books to the authors and proprietors of said copies during the time therein mentioned." FREDERICK HILL, Clerk of the District of Vermont. N. CHIP. (*2) PART FIRST. REPORTS OF CASES DETERMINED IN THE SUPREME COURT OF THE STATE OF VERMONT. v. CHIP. C*3) PREFACE TO THE REPORTS. I do not apprehend any apology, for publishing the following reports, to be nec- essary. In our mode of practice, a doubt lest the principles of some determinations may have been erroneous, ought not to be a reason for withholding their publication. It is well known, that the maxims and precedents of the English law do not, with us apply in all cases. From a difference of government and a difference of customs, the reason of cases frequently differs. The english common law writers fail us, in many instances. It becomes necessary, therefore to investigate principles, and establish precedents for ourselves. While former decisions rest only in the memory of the Judge, overburthened in term, and perplexed with a multiplicity of cases; or in the memory of the counsel, frequently under a powerful bias, in the recollection and state- ment, little assistance, in establishing uniform principles, can be expected from pre- cedents. Such is the order of courts and the mode of practice in this state, that the Judges can have little opportunity for deliberation. They are necessitated to form their opinions, as I may say, in transitu, and on the urgency of occasion. It is therefore, of importance to them, and to the public, that they should have an op- portunity of reviewing as well what is wrong as what is right in their decisions. This may enable them to correct their former errors, and at leisure to discover those prin- ciples of Justice, and the exceptions and limitations of each, which might have es- caped their utmost sagacity in the hurry of the circuit. It may assist them, no less, in tracing, establishing, and rendering familiar, on every emergency, those permanent principles, of which they had, perhaps, caught only a glance on the occasion. In the following cases, there is but one instance of a difference of opinion with the Judges. It was not practiced for the Judges to give their opinions seriatim on those points, in which they were agreed. I conceived it necessary to mention this, lest I should be thought to have omitted the arguments of my brethren on the bench. RUTLAND, September 3, 1792. N. CHIP. (*4-5) HIV NAMES OF CASES. B Bennington selectmen vs. M' Gennes 45 Chapin vs. Scott 33 Cl&rkvs. Campbell 57 Conant vs. Bicknell 66 Douglass vs. Spooner 74 Havens vs. Griffin 42 Ivers vs. Chandler 61 Lyon vs. Ide . . . Ludlow vs. Gill M M'Kenzie vs. Putney 11 Morrison & Freeman vs. Shattuck, elal... 84 Oliver vs. Chamberlain. PAGE. 26 Paine 0*. Ely & Ely 14 Paine & Morris vs. Smead 99 Parker vs. Parker 27 Pierson vs. Hovey, et al. 77 B Rhodes vs. Risley Rich vs. Wait. . 84 Shattuck vs. Tucker 69 State of Vermont vs. Annice 9 State of Vermont vs. Marsh 28 State of Vermont vs. Mather 32 Stoddard vs. Allen 44 U Underbill vs. Smith. . , 81 W Wier vs. Church . . 95 N. CHIP. (*6-7) ORANGE COUNTY. NATHANIEL CHIPMAN, ESQ. Chief Justice. NOAH SMITH, ESQ. and ) A SAMUEL KNIGHT, ESQ. / ** ttonf e8 ' *9 *STATE OF VERMONT vs. ANNICB. (Orange, Dec. adj'd term, 1789.) On an indictment for adultery with one E . Farrand, attorney for the state, produced E , as a witness to prove the fact. Buck, for Annice, objected, that no person shall be allowed to testify his guilt or tur- pitude to convict another. *10 *By the court. She ought not in this case, to be admitted. Particepswas In tne same cause reputation not admitted to was offered in evidence to prove Annice's marriage. Court- In this cause, which is a criminal prosecution, reputation cannot be admitted. Reputation of Though in an action on the a marriage not case for crim. con. it might be allowed - admitted. Verdict, NOT GUILTY. *11 *STEDMAN ex dem. M'KENZIE vs. J. PUTNEY. (Orange, Dec. adj'd term, 1789.) Ejectment for lands in Tunbridge, on the second division of the original right of . On trial to the jury, it was objected by the defendant's counsel, that it does not appear, that the warning for the pro- Objection. prietor's meeting was published It does not r ,. appear by the according to law ; and the clerk proprietor's na8 no t inserted, that the pro- records, that . , , , r , the proprietors prietor's meeting was regularly meeting was warned. It is not, therefore to be presumed, nor proved aliunde. Court. The better way is for the clerk to insert the warning in the records, and that the same was published accord- it is the better , _1_1 U way to insert it; ing to law. In which case it but this is not w jii b e presumed to be so, prima conclusive. ^ *12 *But if it be omitted, as the publica- tion is not a corporate act of the pro- prietors, but something preparatory; the rec- {ire no ^ 8O conclusive as Asthepnbii cation IH not H other proof . As to the publica- other >r pr t o'oT t> tion it8elf in tne Papers. th ere may be more is no office, no repository, to which application can be made N. CHIP. 1 on occasion. Witnesses may therefore be ad- mitted to prove this point. Buck, for the plaintiff, offered in evidence a vote of the proprietors reciting a neglect of their committee to make return of the second division, and directing a completion. The defendant's counsel objected, that the vote was passed since the commencement of this action. *Court. If there was no title at the *13 commencement of the suit, it cannot, as to the purposes of this suit, be aided by any subsequent act. L,. ii 11 j If there was Objection allowed. no title at Buck, on the part of the plain- the commence- ,.jv. , ,, . r , . , , -V. t ment of the tiff, moved that he might be al- BU it, it, cannot lowed to prove, by Witnesses, be aided by any the division, draught, and ac- afterwards. ceptance. To which Jacob and Farrand, for the de- fendant, objected. Court. Partition can be only by deed, or in the method pointed out by Statute. In the first case, it must be proved by the deed; in the latter, by A proprie- -i , --T J tary division the proprietor's records, lou under the stat- might as well prove a convey- ute - can be r . , " proved by the ance by parole evidence, as sev- records only, erance. Verdict, NOT GUILTY. *ELIJAH PAINE, esquire, vs. JOEL *14 ELY and JOEL ELY, jun. (Orange, Dec. adj'd term, 1789.) This was an action on a bond assigned by the sheriff of Windsor county to the plaintiff, conditioned, that Joel Ely, then . Bonds given a prisoner in the common gaol to the sheriff of in said Windsor, on execution w. to indemnify i i'xt li i u him for lotting at the plaintiff's Stilt, Should aprlonorto not depart the liberties of said the liberties ot prison, &c. (in common form.) Bn&!hat Breach assigned, that the said ^' prisoner Joel did depart, contrary to the condition; wherefore, &c. Buck, for the defendants plead a very lengthy plea in bar, the substance of which was, that after the execution of said bond, viz. on the 2 ( Jth day of June, 1789, the said 14 N. CHIPMAN'S REPORTS. (Orange Co. Joel Ely made application to Elias *15 Weld, one of the judges of the *county court, for said county, who thereupon issued his citation for the said Paine to ap- pear at on before Elijah Rob- inson, one of the judges of the county court, for said county, and John Weld, esq., justice of the peace: to shew cause why the said Plea that the ^ oe ^ snol| l l1 not ue admitted to prisoner, one of the insolvent debtor's oath; an* "T E e w^~ which citation was regularly discharged un- served, &c. That on at - the said E. R. and and J. W. proceeded to examine the gaolers. ga j,j JQ^ an( j djtl administer the oath, and give a certificate thereof agreeably to the Statute in such case made and pro- vided That the said Joel thereafter remained within the said prison and the liberties there- of, for the space of twelve hours That no provision being made for his support, *16 as directed by the stat*ute, he de- parted That until that time he had kept within the liberties of the said prison, according to the condition of the said bond. To this there was a demurrer and joinder in demurrer. By HUTCHINSON and JACOB, for the plain- tiff, it was argued that the statute in this case has erected a summary ju- risdiction, that the justices de- rive their authority solely from this statute, that they must pursue their au- thority precisely as pointed out by the stat- ute, otherwise the whole is coram nonjudice. The statute requires, that on application of a debtor confined, &c. to two Justices of the Peace, one of whom shall be Judge, &c. they, or either of them, shall issue a citation to the creditor or creditors at whose suit, &c. *17 notifying them to ap*pear before such Justices, at a time and place therein mentioned, to shew cause, &c. that the cita- tion in this case was not issued by the Jus- tices, who administered the oath, or either of them therefore they had no jurisdiction One set of Justices are not empowered by the statute to convene the creditors before another set of Justices. Buck for the defendants. The statute, as it provides for the relief of poor debtors, is remedial, and ought to be construed liberally : E. W. had a right to issue a citation ; E. R. and J. W. are such Justices as have a right to hear, examine, and admin- ister the oath. There cannot, therefore, be a want of jurisdiction, as argued by the plaintiff's counsel. *18 *It is likewise a case against bail, who ought to be favored It would be hard, that either bail or principal should be accountable for the doings of the Justices Their proceedings, if irregular, ought to be reversed, but until reversed, ought to be deemed valid otherwise sheriffs and gaolers, who are no judges in this matter, may also be exposed. It was also insisted "that sucl Counsel for defendants. Justices," in the statute, does not mean the same Justices who issued the citation; but similar Justices Had it intended the same Justices, the word "aforesaid" had been used. The plaintiff's counsel in reply. This is not a remedial statute counsel for If it gives a privilege to the Plaintiff, in deb'tor, at the same time it takes re P'y- away the common iaw right of the reditor It is a *rule that all summary *19 jurisdictions must confine themselves strictly to their powers Neither writ of error nor certiorari will lie If advantage cannot be taken of the irregularity in this way, the reditor has no redress, be the proceedings ever so illegal and unjust They therefore prayed judgment for the plaintiff. The Chief Justice delivered the unanimous opinion of the t p mrt. :ourt. The statute in question gives a privilege to the debtor, in derogation of the common law right of the creditor the ur * i. u- The statute is right of holding the debtor in i n derogation ustody until he obtain legal of the common satisfaction. This privilege is * given to the debtor, not for his own sake, but for the sake of the public, who are interested in his labour, and in favour of human- ity The debt*or does not demand a *20 remedy against the creditor for an in- jury he has sustained The statute is not therefore in a law sense reme- it is not in dial; but the case does not turn a law sense on this point. The question is remedial, whether there has been any fatal irregularity in the proceedings of the ' Justices and whether the plaintiff is proper here to take advantage of the irregularity, if any. The jurisdiction of the justices, in the case under consideration, is in derogation of the jurisdiction of the common law -jhejurisdic- courts, the proceedings are sum- tion given to rnary, not warranted by the gVjgJjSg course of common law proceed- be taken' ings; but warranted solely by 8trictl y- the statute. Blackstone observes, after sir Edward Coke, that "Particular Black, com. "jurisdictions, derogating from vol. 3, p. 35. "the general jurisdiction of the courts "of *common law are ever taken *21 "strictly, and cannot be extended far- ther than the express letter of their priv- ileges will warrant." This observation is applicable to the mode of proceeding in the case under condsideration, as well as to the jurisdiction of the Justices. The mode is pointed out and regulated, not by the common law, but solely pj^edout by by the statute; and must be the statute strictly pursued A different mode cannot be adopted, under pretence of its being more convenient for the debtor, or for the Justices This would be to assume an arbitrary power not warranted by law. In this case there has been clearly a deviation from the mode prescribed The words of the statute, so far as relates to the N. CHIP. Windsor Co.) STATE v. MARSH. 21 present question are "on application *22 "to two * Justices of the Peace, one of "whom shall be a Judge, &c. they or ''either of them shall issue a citation to the "creditor or creditors at whose Words of the su jt the prisoner is confined, statute. ^, . "notifying him or them to ap- "pear before such Justices, een free and voluntary." The Chief Justice, in his charge to the 29 N. CHIPMAN'S REPORTS. (Windsor Co. Jury, gave his opinion on this point, in which the other Judges fully concured. Whether the clause in the Constitution in- sisted on for the defendant extends to the choice of officers in towns and lesser corpora- tions, must be determined, 1st. by consider- ing the subject matter; and 2d. by compar- The 3ist sec- * n & ^ w * tn t ner parts of the tiouofthecon- Constitution. The framers of not^exten^to * ne constitution were forming the election of a plan for the general govern- towu officers. men t of the State. They do not appear to have had an eye to the internal regulation of lesser corporations. In *30 this section they point out the mode *of electing the officers to the general gov- ernment, and in this view they confine it to elections by the people and General Assembly. "The People, "here means the collective body of the people, who have a right to vote in such elections and is used as synonymous to "Freemen." The word "Election," when the choice is to be by the people or freemen, is, in every part of the Constitution, used in the same appropriate sense; as in the 7th section, "In order that the Freemen of this State may enjoy the benefit of elections as equally as may be, each town within this State may hold elections therein" For what purpose? for the choice of Representatives. In the 10th section, "On the day of election for choosing Representatives," &c. *31 *I am, therefore, clearly of opinion, that the 31st section of the Constitu- tion does not extend to the The above ?ec- , . ,., . . tion to be laid choice of town officers, and is out of the pres- to be laid wholly out of the case cut case. J . , , . under your consideration. The Jury found the defendant Guilty. *32 *STATE OF VERMONT vs. MATHER. (Windsor, Dec. adj'd term, 1789.) Indictment for Burglary, for breaking and entering the house of at - , on - , between the hours of twelve at night, and nine of the evening succeeding. On demurrer, exception was takCn t0 thC indictment for want quashed for of a noctanter; that it was un- certain, from the indictment, whether the facts were com- mited by night or by day and of this opinion were the Court, and quash'd the indictment. noctanter* *33 *- ex dem. GIDEON CHAPIN vs. A. SCOTT. (Windsor, Dec. adj'd term, 1789.) Ejectment for lands in Weathersfield. if plaintiff in ^ was objected, that the plain- ejectment de- tiff had proved a title to no more vho'ie'ylt he t han tnree fourths of the lands may recover in question; that as he had de- for a part. manded the whole, he had failed in his proof. But, by the Chief Justice, and agreed by the Court In ejectments the plain- tiff shall recover according to his right if the whole be de- Den ex'deni manded, the jury may find for Burges, vers. a moiety, and it is good. Purvis, et al. Substance of the bill. *D. MORRISON & P. FREEMAN vs. W. *34 SHATTUCK, J. BOND, R. RICE, and A. SAWYER. (Windsor, Dec. adj'd term, 1789.) In chancery. This was a Bill in Equity, setting forth, that in the year of our Lord 1752, W. Will- iams, esq. of Pittsfield, in, &c. by virtue of a deed duly executed by Coates, now of , the orig- inal proprietor, was seized in his demesne, as of fee, of and in the right No. 1, in Halifax, in the State of Vermont That in the same year, the said W. Williams, by deed under his hand and seal, duly executed, conveyed the right No. 1, to Hugh Morrison, of , now deceased That from the time of the said W Williams's said *purchase, until the year 1783, he was *35 possessed of a good deed from the said Coates to himself, of the same right That on the 15th day of May, 1754, the said Hugh Morrison, by deed under his hand and seal, duly executed, conveyed the said right to John Morrison, then of - , who, on the 29th day of Feb. 1788, by deed under, &c. conveyed the said right to your orators (ex- cept 100 acres on the west side of said right.) And the said orators further shew, that the deed from the said Coates not being re- corded, William Shattuck, of , in April 1783, by misrepresentation, obtained it from the said W. W. that the said W. S. know- ing that the said H. M. had a deed from the said W. W. and the said J. M. from the said H. M. of the said right No. 1, *with an intent of defrauding the said *36 J. M. for a trifling consideration, on the 26th day of June, 1783, obtained a deed from the said Coates to himself, and gave up to the said Coates the deed given to the said W. W. as aforesaid the said Coates being then incapable of transacting business And the said orators further shew, that the said W. S. afterwards sold the said right No. 1, to Jonas Bond, of G. who in September, 1786, sold 200 acres, part of said right, to Reuben Rice and William Rice, of ; and the first day of March, 1787, the said J. B. sold 50 acres, part, &c. to James Knap, and in December, 1787, sold the remainder to Abner Sawyer of . That the said J. K. claims no part of the right conveyed to the orators. *That the said R. R. W. R. and A. *37 S. had brought an action of ejectment for the said right, against the orators, which is now depending, and that they are without remedy, save in this Court, &c. They, therefore pray an injunction to stay N. CHIP. Addison Co.) STODDARD v. ALLEX. 37 proceedings at law, that the said deed from oates to W. S. may be set aside, and the said R. R. W. R. and A. S. may he ordered to release to the orators, or grant such other relief, &c. Three defend- To which kill the defendants ants demur. W. R. It. R. and A. S. demur- red, not confessing, &c. Fourth defend- , ^. Shattuck the other de- ant demurs fendant, also demurred sev- seperately. erally. The defendants W. It. R. R. and A.S. were first heard on the demurrer. *38 *For these defendants, it was in- sisted, that by the plaintiff's own shew- ing, thedefendants have not been guilty of any fraud they have purchased the title, bona fide, without notice of any equity in an- other. Counsel for At the time of their purchase, the three de- there was no pretence of right in the plaintiffs, who have since purchased, and revived a dormant claim. The persons, under whom the plaintiffs claim, were negligent in not recording the title deeds. Whatever equity H. M. might have had against W. S. yet neither H. M. or the present plaintiffs could have any against these defendants. For the plaintiffs it was urged, that the Court wil1 assist in mending defective conveyances, and even supply a deed that has been *39 destroyed. It is immaterial what parties are concerned; its being sold by W. S. can make no difference. It might have passed through several hands, before W. Shattuck's fraud was known. The vendee cannot be in a better situation than the ven- dor. The title of W. S. being void by reason of fraud, the subsequent or derivative titles must likewise be void. Per Cur: These defendants are set up in the bill to have purchased of "W. S. they are not charged with fraud personally, or even with notice of the title, under which the plain- Wo5?iey"tai. tiffs claim They are therefore assignees of to be taken to be bona fide pur- flnler vs. De- p}i>i<*pr<< without noti^p It Irm mattos & Slader. " the 3 de- \y. It. It. It. and A. S. must be fendante. with ,. , ... ... cost RKHinstthe dismissed, with costs against the plaimitis. plaintiffs. 4th defend- For the defendant W. 8. it was ant's counsel. Hr g IUH j f that the plaintiffs, at the time of the fraud ailed ged, owned noth- ing; they are to be considered as purchasers of a mere equity, which will not entitle them N. CHIP. to maintain this action that neither were in fact in possession. For the plaintiffs it was said, Plaintiffs that any subsequent purchaser counsel, had a right to disencumber. *Per Cur : *41 The plaintiffs do not stand in the place of heirs or representatives of H. M. H. M. had been defrauded of his title to the land in question; after which, and with notice (since it is not denied, and they are supposed to make the best of their own case) the plain- tiffs have purchased. The injuiy was not done to them they have no right in their own names, to a remedy in this suit. The bill, as to the defendant W. S. was dismissed, but with- .?%?? OUt COSts. defendant, but Judge Knight, did not sit in without costs - this case, having been of counsel for the de- fendants. *HAVENS vs. GRIFFIN. *42 (Windham, Dec. adj'd term, 1789.) The declaration consisted of two counts, 1st. on an order accepted; 2d. for money had and received. It appeared in evidence, that at , on , the plaintiff and defendant, and one Sever, were in company The plaintiff was endeavouring to pi - ocure payment on a small note, which he held against Sever. The defendant said, "Get an order on me, and I will pay it." Sever drew an order on G. the defendant, for the amount of the note, and H. the plaintiff, gave up the note. H. then turned to G. and said, "Here will you pay it?" G. replied, "Give me the order" took it, and wrote on it, that he *would *43 pay it, when he, (G.) should collect so much of one Taylor, against whom he had a demand in favour of Sever. H. said, it was not the agreement. G. said, "It will not hurt you." For G. it was insisted, that he was bound by the written acceptance only; and, as he had collected nothing of Taylor, he was not bound to pay. But the Court held, that G. was bound by his agreement to pay uncondi- tionally; that he could not, aft- to A " y^To^deJ erwards, accept, to pay in a dif- to be drawn, ferent manner, or on contin- gency. Accordingly, there was a Verdict for the plaintiff. *DAIUUS STODDARD vs. LKVI ALLEN. *44 (Addison, Aug. term, 1790.) Debt on a judgment obtained by D. S. against L. A. by default, in the county of Litchlield. and state of Connecticut. There was 1st. a plea of nil dcbet; 2d. an offset. The Court (Judges Smith and , Foreign t- i . \ i v ii Judgment Knight on the bench) allowed impeached. 44 N. CHIPMAN'S REPORTS. (Windham Co. the defendant to impeach the original judg- ment, so far, as to shew, that more was re- covered than was, in fact, due. N. B. This goes no further than foreign judgments on default. *45 *SELECTMEN OF BENNINGTON vs. M'GENJJES. (Bennington, Aug. term, 1790.) Indebitatus assumpsit, for money laid out and expended. Non assumpsit pleaded. Actiou to re- Ifc appeared in evidence, that rover back mon- in the year - , the defendant was resident at Bennington, relief of a pau- but not an inhabitant. The de- P er - fendant, his wife and two or three children were taken sick, and in very distressed circumstances, being poor and un- able to provide for themselves; the selectmen of Bennington provided for them as paupers, and advanced, for their relief, the sum de- manded in the declaration. The wife, *46 and one, or *more of the children, died the defendant, on his recovery, re- moved out of the state returning afterwards, on business, the present action was brought. A motion was made, that one of the plain - One of the tiffs a selectman, might be piaiutiffs in the sworn, to prove a special agree- man uof^d- ment of the defendant to repay. mitted as a wit- By the Court He cannot be uess. admitted. Charge to the The Chief Justice, in his Jury. charge to the Jury, observed. i ! = That this was an action, the This action Is , , i_- , , , j the first of the first of the kind, which he had kind. ever known; an action brought by the town against a pauper, to recover back money expended for his relief. There is, in this case, no special agreement to re- pay. It rests on the general implica- *47 tion of law in such *cases. As the money was advanced, if the law im- plies, generally, an obligation on the part of it rests on the the Pper to repay such monies, general impiica- as the town may have advanced for his relief ; then the plaintiffs ought to recover. This may be gathered from the intention of the law, in the provis- ion made for the relief of the poor. The provision made, by law, for the relief f tlle P OO1> is in the poor, is a my opinion, a charitable pro- Pr " vision - To consider it in any other light, detracts much from the benevolence of the law, and casts a reflec- tion on the humanity of the richer part of the community. Poverty and distress give a man, by law, a claim on the humanity of society, for relief; but what relief, if the town have a right immediately, to demand *48 repay*ment? And to imprison the pauper for life, in case of inability to pay ? This, instead of a relief, would be adding poignancy, as well as perpetuity to distress. nopromise If this be so, certainly the law raises no promise. Verdict for the defendant. August term, 1791. On a review, the de- fendant again had a verdict. *DAVID LYON vs. JOSEPH IDE. *49 (Windham, Aug. term, 1790.) The plaintiff declared, as assignee of the Sheriff of Windham, on a bond given to the Sheriff by the defendant, in the penalty of 200, that if one pi veVto the Joseph Bullen, then a prisoner sheriff of w. confined for the plaintiff's debt, p/iainer"!^ * should behave as a good orderly the liberties prisoner ought to behave, and should pay to the Gaoler one shilling and six- pence per day for his victualing, and pay the Gaoler's fees, and not depart said prison without the leave, and liberty of the Sheriff, then, &c. *There were three several pleas in *50 bar, by Bradley, for the defendant. To the first and third pleas there was a traverse and issue bond 8 was taken to the Second Which for SUb- by the Sheriff ia stance was, that the bond was Wsown wiong, ii c i ii- 1, -j -r> 11 colore omen, taken for letting the said Bullen for matters to the liberties of the prison other than the i xi 01 -J* law allows. that it was taken by the Sheriff in his own wrong, colore officii, for other things than the law allows, viz. for the prison- er's good behaviour, for his diet, and to secure the Gaoler's fees, and that he should not de- part without leave of the Sheriff, &c. there was a demurrer, and joinder in demurrer. The demurrer was argued, by Bradley, for the defendant, and by brother Knight, for the plaintiff. After consideration, the Chief Justice de- livered the opinion of the Court. *This is an action on a bond taken by *51 a Sheriff in the execution of his office, for letting a prisoner, confined in gaol for debt, to the liberties of the gaol- yard, under the statute regulat- $$$ f ing gaols and gaolers, and by the sheriff assigned to the plaintiff, the orig- inal creditor. As the bond and condition are inserted at large in the declaration, and as the final re- covery, in this action, will depend on the legality of the bond, it will be unnecessary to consider the defendant's plea: For, on this demurrer, if the tnrn/on'the fcs declaration be not good, or in g all *,y of the other words, if the bond be ille- gal, the plaintiff cannot recover in this ac- tion; and nothing is disclosed in the defend- ant's plea, but what is apparent on the face of the declaration. *A person, acting in his private ca- *52 pacity, may annex what conditions he pleases, to his agreement; so, that they be not mala in se, or prohibited by some positive Demurrer. N. CHIP. Kit Windham Co.) CLARK v. CAMPBELL. 52 law: But a person acting under ingb^vi ? rtue C of a uthorit y must pursue that au- an authority, thority ; nor can lie act by virtue thafamhoiity ^ *" s authority, and in his pri- vate capacity, in the same in- strument. I however, at present, extend this no farther, than to ministerial officers of the law. Any person, imprisoned for debt, may be admitted to the liberties of the gaol- Theendof yard ' on P rocu ririg sufficient the bond, is bonds, to indemnify the Sheriff only to indem- that is, to indemnify him nify the Sheriff. . , . , . . , tfgamst an escape, which might, in such case, be made: for a prisoner, admitted to the liberties, can escape, when he pleases. The law cannot mean, in this case, to *53 indemnify the *Sheriff, or the Gaoler, who is his deputy, for any thing fur- nished the prisoner on a private agreement. Neither the Sheriff, nor the The prisoner ~ > i_i- * i IB not obliged Gaoler are obliged to furnish to take i, is diet prisoners with diet; nor is the prisoner obliged to receive his diet from them, or either of them. So far from this, that the statute before mentioned expressly declares, that all prisoners shall be allowed to provide, and send for the neces- sary food, from whence they please. Bonds for ^ ffi cer can De allowed to ease or favour take a bond, or any reward, for not allowed. ease< Of favour> other than such as are expressly allowed by law. Such a prac- tice, were it to obtain, would open a wide door to extortion, and the most grievous op- pression; and an officer is clearly pun- *54 ishable, who shall, *under color of his office, and for doing that, which the law obliges him to do, as to take bail, &c. take monev from a prisoner, Officer pun- ., ., * , , ^ ishnbie for tak- other than legal fees, or any ing more than service, either for his own ben- efit, or that of a third person; Agreements and veI 7 agreement, extorted for such pur- for such purposes, must be ille- posevoid. gal and void. This bond is The bond under consideration grosiy oppress- is of the same nature, and is grosly oppressive. There is not one word about indemnifying the Sheriff the only thing required by the statute. In- it binds the stead of that, lie is first bound prisoner to his to his good behaviour and good behaviour. though j, e oug htto behave well, the sheriff had no right to demand it of him To pay the under a penalty. 2. He is bound Gaoler i6 pr to pay the Gaoler 1$6 per day for day for his diet. his victualing, a most extrav- agant price in this country. This is *55 directly in *face of the statute, as it is a means of obliging the prisoner to take his food of the Gaoler only. 3. He is obliged to pay the Gaoler's fees. The fees. Gaoler, who took this bond in the sheriff's name, had a right, it was not if fees were due, to take secu- SmKsecure rity for their payment; but, if payment for IK; agreed to wait, and take them at a future day, it was a private concern, which ought not to have been put into this bond, taken officially He might as well have taken security for any other debt, in the same way. 4. He is bound not to depart without leave of bo ^ e t r to the sheriff the sheriff is au- depart without thorized to detain the prisoner, ^f e ^lff f Uie untill he pay and satisfy the debt, for which he stands committed, and lawful fees. When he has done that, though in close confinement, he may demand his liberty, and *if not presently set *56 at large, an action lies against the sheriff; and yet, in such case, if this bond be good, should he depart without f j.i v. -A i c -t, He need not leave of the sheriff, he forfeits W ait the siur- 200. The bond is, therefore, ifrs m e ) a I J' t e a ^ er totally bad, as being against dtbFand fees. law, the common principles of right ; and, in every view highly vers'ul' M a- oppressive The consequence ningham. . re ., , , , TJl,..Ha,, is, that there must be Judgment for the defendant. Plowdea. *CLARK vs. CAMPBELL. *57 (Windham, Sept. term, 1790.) This was an action removed into this court by certiorari. Campbell, the plaintiff below, brought an action before Mr. Justice Burt, against Clark, on a recognizance for the sum of ten pounds, conditioned to prosecute a certiorari, formerly taken out by Clark against Campbell, and not prosecuted. An exception was taken, in the court below, that the cause exceeded the jurisdiction of a justice of the Peace; which was over-ruled, and judgment rendered for 3:4:6. In this case the plaintiff (below) Campbell, declared in debt for 3:4:6, setting forth the recognizance for 10. with *the *58 condition to prosecute to effect, and answer damages and costs, &c. Declaration and avered, that his costs and in debt on a damages amounted to 3:4:6. -f/X^unfof To this there was a demurrer, 101. for a less and joinder in demurrer. West for Campbell, Bradley for Clark. The Chief Justice delivered the unanimous opinion of the Court, in effect as follows: The decision, in this case, will virtually determine whether the ^^"urt f Justice had jurisdiction in this cause For, if the plaintiff below can sup- port a declaration in debt, fora less sum than that which is contained in the recogni/anee, on an implied covenant in the condition of the recognizance, the action will come with- in the jurisdiction of a Justice; otherwise not. *It is said, that the conusee is not *5'J obliged to go for the penalty, but may go upon a covenant implied in the condition; and, that in debt, " Id ci-i-tnm est (jn n the 6th of September, the date of the lease. On the part of the defendant, coaniS dant>8 *' was l aove d by a copy from record, that, on the same day, the lessor sold the land in question to the said Jonathan Bates. It was insisted by the defendant's coun- N. CHIP. sel, 1. That the lessor *having con- *70 veyed on the same day, on which the lease is supposed to be made; and, as the lease is a mere fiction, devised at the time of beginning the action, which, in this case, was long after the supposed date, or time of making the lease, the plaintiff has failed; for though the lease be a fiction, yet there must be a real subsisting title in the lessor of the plaintiff, at the (supposed) time of making the lease, and also at the time of bringing the action. 2. In this case had there been an actual lease made on the 6th day of September 1786, yet the lessor having conveyed to the lessee, on the same day, in fee, the lease was merged and gone; so that the plaintiff has not supported his title, in the way he has set it up. *The counsel for the plaintiff in- *71 sisted, that, as an ejectment is in form a fiction, designed to try the lessor's title; or rather, to put the real owner into possession; it is sufficient, if it can by any intendment, be made to answer this purpose. As the lease is laid to be made on the same day with the deed of conveyance, it is sufficient to in- tend, that the lease was prior, on the same day; and such intendment ought to be made in support of the plaintiff's right. As to the merger, that gives the plaintiff a real, instead of a fictitious title. No injustice will, there- fore, be done, should he recover He will be put into possession t h $wn U f Of his own. Iu ejectment, But the Court held, that the <{^ a e flctlon , lease, though a fiction, must, must by possi- by possibility be a subsisting ^jy be^sub- lease, at the time of bringing "' the ac*tion; at the time of the sup- *72 posed ouster; and at the supposed time of making the lease the whole is under the controul of the lessor, who is The lessor ia the real plaintiff. He is con- the real "piain- usant of his own title to that tiff- he must at his peril conform his declaration. He must set forth a lease, which .... -i-i-i \ He must set might, by possibility, be a good forth a lease subsisting lease, at the time of which mi^ht ,. , , , , . be goou, ivc. the supposed date, or making of the lease; at the time of the ouster; and at the time of bringing the action. Hero there is a merger the lease is united to and merged in the fee There could not be a sub- sisting lease, either at the time of the sup- posed ouster, or at the time of bringing the action. If the principle contended for by the plaintiff's counsel should prevail, by carry ing back the fiction, in point of time, recove*rie.s might frequently be had, *73 on titles long since extinguished, or transferred. In this action the plaintiff is, and must be considered, as merely nominal, and all the J.^VjVii right and benefit, as belonging the n^hi mid to the lessor. If the lessor had SfiffiS? 8 * no title to enable him to make the lease, or, if he have departed with his 73 N. CHIPMAN'S REPORTS. (Chittenden Co. title, though to the lessee himself, the action cannot be supported. The jury found verdict for the defendant. *74 *NORTON ex dem. A. DOUGLASS vs. ELIAKIM SPOONER. (Windham, Dec. adj'd term, 1790.) Ejectment for fifty acres of land in "West- minister, on the original right of A. Doug- lass. On trial a deed was produced from A. D. the lessor, to Norton, the plaintiff, dated in February, 1762, acknowledged and recorded June 9th, 1789. In this case, the court held, the* operation' that the operation of the lease is of the lease is no t confessed The proof must be according to the allegation. If the lease be made prior to the con- *75 veyance in fee, *the lease is merged. If a man take a lease of his own land, the lease is void the trespass laid is fiction, for which the defendant shall not be pun- ished. The connection between the lessor and the plaintiff, is supported by the fiction of a lease. If that fiction potentially cease, or a fact arise, which destroys the possibility of such lease, or destroys its effect, if sup- posed once to have existed, there can be no recovery The deed given in February, 1762, and recorded in June, 1787, becomes good from the date by retrospect. Even without recording, it is good against Douglass, and . his heirs. If a man have a title not demand on i n f ee he should demand on a lease, and re- that title, not on a lease. A plaintiff demanding on bond, shall not recover on note or if he *76 demand in his own right; *he shall not recover in the right of an admin- istrator. Douglass had departed with his right to Norton Norton has declared on a lease, and proved a title in fee He cannot recover in this action. Verdict for the defendant. N. B. In January, 1791, Noah Smith, Esq. resigned and Elijah Paine, Esq. was ap- pointed Judge in his stead. *77 *MOSES PlERSON VS. HOVEY & HlBBARD. (Chittenden, Aug. term, 1791.) This was an action on Sher- iff's bond for liberty of the prison, and assigned to the Plea duress, P lf ntiff ' tne creditor. and issue to the Plea, duress of imprisonment i ur y- and traverse. Substance of The substance of the evidence the evidence. wag> that the plaintiff had re _ covered a judgment against Hovey, for .17; 10 bond ap took out execution, and delivered it to Grant, constable of Charlotte, who took Hovey's cattle, posted, and delivered them on receipt to W. and Strong, who left them in Hovey's custody the cattle were not brought to *the post, but were eloigned by *78 Hovey. The plaintiff had the execu- tion returned, without being satisfied, and took an alias which he delivered to Rich, then Constable of Charlotte Rich made de- mand of Hovey, who refused to turn out any property whereupon Rich took Hovey's body, and committed him to goal in Rutland, according to the precept of the writ, on which this bond was given, &c. It was insisted by the defendant's counsel, that this imprisonment was illegal, that property having been once taken in execu- tion, that execution was, as to Hovey, dis- charged. In this case, the Chief Justice gave the fol- lowing in charge to the Jury. The property was not, in fact, taken out of Hovey's cus*tody, but was left *79 in his hands (although receipted by third persons) and was by him eloigned. Had the property in fact remained in the hands of the officer, it might have had a different con- sideration. Had the propertv , ,,. . % When proper- proved insufficient, a second ty taken on ex- levy might have been made, ? cu j o". proves either with the same execution, seconfMevy* or an alias. I do not appre- may be made, hend, if an officer take property on an execution, which proves not ^reciudVd insufficient, or the property of by an msuffi- another, he is precluded to levy c on the body; or, by direction of the creditor, on land, for the remainder. "On a Capias ad satis faciendum, in case an escape, or rescue, be returned, a new capias may be taken out;" for, says the book, "an insufficient return of an execution is as none. " *The officer had taken the cattle, so *80 far as to have a lien upon them, for satisfaction of the execution. On receipt, I do not consider, that the officer wholly departs with that lien, to prorortyre- and trusts to the receipt only, ceipted on an The property is delivered out of e his actual custody, for the convenience of the defendant. The officer is, therefore, less se- cure of the property; but his lien still con- tinues. He may take it without the leave of the person receipting. As T , )e ioign the property is out of the actual property re- custody of the officer, to eJoign gPjJ g n to it, would not, in strictness, be some purposes a rescue; but to some purposes, h ~ s lhe 'same as in the present case, might ders 'the exe- have the same effect to render Button ineflect- the execution ineffectual. The Jury found a verdict for the plaintiffs, which was approved by the other Judges, Knight and Paine. N. CHIP. Bac. Abr. Kutland Co.) RHODES v. RISLEY. 81 *81 *UNDERHILL ex dem. UNDERBILL vs. SMITH. (.Addison, Aug. term, 1791.) Ejectment for lands in Addison. The defendant's counsel conceded the title to be in the lessor of the plain- rivVs his* title 6 " tiff, unless the defendant had a from a proprie- good title. The defendant '" ector - claimed under a deed from P. Advertisement collector of a proprietor's tax in published in Addison. The tax was regular- paper n The e iaw ty Voted P. Was appointed COl- requires it lector, and published a notifica- iished d to t P wa" t ion of the tax, January 1, 1784, Benningtonaud in Bennington paper only. The law requiring all such notifica- tions to be published both in Benning- *82 ton and Windsor papers, was *passed in October 1783 an advertisement was regularly published, notifying the sale to be on Monday the first day of September, 1784. In this case the Chief Justice jury arge to the ODserve d to the jury A propri- etor's collector acts, solely, by virtue of a power given by statute. He has merely a naked power to sell anaked'powel the lands of those proprietors, to sell, but no who are delinquent in the pay- lanT* 1 1D ^ ment f the tax ' He has n in - terest in tlie land. It is neces- sary, therefore, by the rules of law, that he should pursue his power strict- Must pursue , t, j-o; ij. TT his power strict- ty. however diflicult. He must ly, and give ail perform all pre-requisites, which required by law. stand as conditions precedent to his right of selling; such as, otherwise his giving all previous notices re- quired, and in the precise man- ner required by law. Otherwise the *83 land owner cannot be Considered as delinquent, and shall not forfeit his right. The legal consequence of a deviation by a collector, from the line of proceeding pointed out by statute, is, to invalidate his sales, if made; and he shall be answerable to his vendee. The Jury found for the plaintiff and ap- proved by all the Judges. *84 *RHODES vs. RISLEY. (Rutland, Aug. term, 1791.) Action on the case, for that on the 24th day of May, 1774, one J. Parker endorsed " made his note to Risley, for the the en- 8um o f .53:12:2. payable in beef, pork, &c. That after- wards, to wit, on the same 24th day of May, 1774, the said Risley did, by his endorsement on the said note, order the said J. P. for value received, to pay to the plaintiff, the said sum of 53:12:2, &c. in due form. The note, with the endorsement, was pro- duced and read Proved, that Parker died insolvent, about the year 1778. *85 *The defendant's counsel stated, and N. CHIP. offered to prove, that in the year 1781 the de- fendant employed one Pomroy, to bring an action on the note, Defei ? d ^ lt ij against one Grant, as executor, to l provethe in his own wrong on the estate purpose of the of Parker; Grant having mar- tvMch^was^in ried Parker's widow, and taken blank, and that the estate without administer- pajda" ud taken ing; and that Risley 's name up, by one was then put on the note for J^SSSE the purpose of filling a power tor of Parker of attorney That a suit was JSSgSJ 1 commenced against Grant, who, that Grant had afterwards settled, paid Risley ~JJ ^ ^ a certain sum, about 20. and it to the plain- took up the note That Grant j}^J l f d put off the note to J. G. and J. tilled th en- G. to the plaintiff, Who filled dorsementto .. , r himself. up the endorsement to himself, and brought this action And states, that the defendant had never heard of the note, since the year 1781, when Grant took it up. *It was objected, that, if a note be *86 endorsed blank, the endorser shall never be allowed to prove it was plaintiffs intended for some other pur- counsel in ob- pose, and not to make him liable; J ectlou - especially when it comes into the hands of a third person. Agreeably to this have been the determinations in Connecticut Kirby's Rep. 393. Hungerford vs. Thompson. By the Court Kirby's reports Kirby's re- are not to be cited as an author- ports no au- ity here, nor are the determina- H 1 ''/"^*? !: h ! 3 * MU it;, uui rtii tions' ot Courts in other States; sous may be but you may cite their reasons. Clted - After a full hearing on the objection, the Court were of opinion, dissenti- ente Paine, to admit the evi- B JgJ ad * dence The following argu- ment is inserted from memory no minutes were taken at the time; but it is the substance of what was said on the question. *Chief Justice. 1 have never been *87 satisfied with those decisions, which introduce an arbitrary custom, .- j i Ar.'ument ot to bind a man contrary to his the chief jus- express agreement, and the real tice " l e equity of the case. If, however, ' such custom have generally prevailed in a State, have been authorized by judicial decis- ions, and property be involved in its contin- uance; it ought not rashly to be shaken. In this state, I apprehend, such No custom custom as is here contended for, has prevniied has not generally prevailed. t ^ e - f . There have been no leading de- fet-t the ques- cisions in the courts of law on tion - the point. The matter, therefore, lies open to investigation. It is said, if a man sign his name blank on a note, which he transfers, the endorsee may fill it up with a power, or a general endorsement, for value ""received; and *68 from the nature of the transaction, the endorser shall be bound, and that he shall never controvert the right, notwithstanding any agreement made at the time of the tran.s- 11 N. CHIPMAN'S REPORTS. (Windham Co. fer. We lay aside custom and go on the foot- ing of common justice between the parties. A sells a note to B, and to enable B to re- cover of the maker, endorses his name blank HOW far an on tne note - At the same time endorser is re- it is fairly agreed, that B shall risk the ability of the maker of the note, and shall, on his failure, have no demand on A. In this case, A is, in common Endorsee justice and honesty, under no cannot demand obligation to B, on failure of the aSenKai 18 m^er. Nay, B cannot, with a the time of en- good conscience, demand any thing of A. The endorsement, though filled up by the endorsee, may *89 be, prima facie, evi*dence of an obli- gation on the endorser; but it is only, Endorsement prima facie, evidence, and in prima lacieevi- justice, should be allowed to be controverted. What ought to be decisive in this case, is, if the endor- that if the endorsee make use of the ma endorse- * ne en d rsenient contrary to ment, contrary agreement, to the damage of the to MS agree- endorser, he is answerable in ment he is an- , *werabie in damages. This has been clearly damages. decided, in Great Britain, where the negociation of notes is carried to its greatest length. This was the great point decided in the case of Moses vs. Macpherlan. Moses endorsed Burr. 1005 & i, four notes to Macpherlan, un- Black. 219. 8. C. , . , der a special agreement, that Macpherlan should indemnify him against all the consequences of such endorsement (note, this agreement was in a separate memorandum.) Macpherlan brought *90 his actions, on the several en*dorse- ments, against Moses, at an inferior Court. The Court refused to hear evidence of the agreement, and gave judgment against Moses, who, thereupon, brought his action against Macpherlan, to recover back the money so unjustly recovered And it was solemnly determined, that an action well lay. inconsistency Tnis is to sav ' tne endorser in oi that deter- such case is holden, and he is notholden. The evidence, which could not be admitted, to save him from an unjust payment, could be admitted, and thought amply sufficient, in another action, to recover back the identical money. However, it was observed by Lord Mans- field, in that action, that the inferior Court did right in not going into the collateral agreement, otherwise they might have *91 gone into matters, *which exceeded their jurisdiction. This reason seems to imply, that a superior Court might, and would have gone into the whole matter. Let us now consider the nature of the transaction, as it stands between the original endorser, and the subsequent endorsees. And in considering this point, I shall not Principles of feel myself bound by foreign the common precedents, but by the principles of the common law, which are, the principles of common justice as they ap- 12 ply to the general circumstances and situa- tion of this Commonwealth In Great Brit- ain, they consider the endorsee as giving credit, as much to every prior, as to his im- mediate endorser. This, it is said, is estab- lished by the course of trade, and is for the benefit of commerce. This is, at least, *problematical. But as this State is *92 not, and from local situation, cannot be greatly commercial, this may be laid out of the question. The case then will stand thus, A sells a note to B, at the risk of the purchaser, and endorses it blank In this case, it is unconscionable in B, on failure of the maker of the note, to demand the money of A. But B has sold the same c . tekes a note note, still endorsed blank to C. of B. endorsed The question is, whether B can SSteusvtoB give a greater right, than he for the right he had himself. A's name is on may have ,. ,, . , , . against A, on the note this may prove that failure of the B, the possessor, has a right to maker - use, or sell, and nothing more, independent of the custom. C contracts with B, to B he ought to look for the right, which he pur- chases, whether it be a right against the maker only or whether A is to war- rant, in *case the maker shall fail. If *93 B deceive C, he alone shall be answer- able. The fraud of B. ought not to injure A. Let each trust where he contracts Caveat emptor, "Beware, purchaser," may with great justice be applied in this case The same hard, technical reasoning has prevailed, in some laws, against the makers of a nego- tiable note in the hands of an endorsee, where a payment, not minuted on the note, has been made before the transfer. But, in some of the neighbouring states, the same principles of common justice, which I now go upon, have prevailed, in this point. The courts have made it a rule to allow all payments bonaflde made before the transfer or rather, before notice; and the endorsee must look to the endorser for so much. This *differs only in name; the reasons go *94 the whole length of the present case the evidence ought to be admitted. As to the other point, of a long time hav- ing elapsed, without notice given to the en- dorser, it is on the part of the plaintiff to prove due diligence, and reasonable notice of failure It is not in the present question. The evidence was admitted, and the jury found a verdict for the defendant. *ROBERT WlER VS. T. CHURCH. *95 (Windham, Sept. term, 1790.) Indebitatus assumpsitfor .45:13:3, money had and received, &c. Plea, Non assumpsit. The substance of the evi- dence to the Jury, was, that on the day of , 1787, N. Smith had an execution against R. Wier, in the hands of an officer. The defendant, as agent for N. CHIP. Evidence. Windsor Co.) JACOB v. SMEAD. Smith, proposed to Wier, that the execution should rest, without expresly saying for how long: and that Wier should see Smith, for a settlement, on a certain day, which was agreed between them. And to secure *96 *all damages, which might happen by the delay, Wier delivered to Church a note signed by one Aylesworth, endorsed by one Watkins, and by Wier. At the same time, Wier declared, if he did not go, and make a settlement, at the time, the whole should be forfeited. Church directed the of- ficer immediately to go, and serve the execu- tion on Wier' s land, and to keep it secret, until he knew, whether Wier made the settle- ment; which was done by the officer. Wier did not go, or make a settlement with Smith, at the day alledging.that Church had broken the agreement. Wier's land was then set off to Smith, to satisfy the same execution. Church sold the note to Shattuck, who brought an action against Wier, as endors- er, and Wier paid the note, to the *97 *amount of .45:13:3. It was proved, that Wier said, the note was good for nothing, and that Church said, he knew Wier ought to have something but he had made a jocky trade with Shattuck, and took some lands, which were, perhaps, of no value; and Shattuck would not join in a settlement. Court The Court observed to the Jury, that, though it were not u re oThe t e r,?ns- expressly mentioned, yet, if action, forbear- they found, it was the mean- uln^ct on a th" ing of the parties, and followed one part, which, from the nature of the transac- !S> h roen- ex ~ tion tn a fc tne execution against tioned, was in Wier should be staid, that he and m c omem g pia. "?ight have an opportunity of tion of the par- settling with Smith, it must be "aTy ^render!" considered as a condition pre- performance of cedent; for if the execution any avail, or wen t on, there was no oppor- tunity for a settlement, and Wier *98 would not *forfeit, tho' he did not at- tempt it; consequently, Church could have no right to retain the note, the'other part? Trover would have lain against it must be taken Church, immediately, on refusal precedent 11 ' ' to deliver it to Wier, while it remained in his own hands wou^dllZTnfe- AR he has sold it, Wier has a lendant have right to wave the tort, and go ty'pWnuff'inay ^ or *- ne va l ue f the note as wave the tort sold. vaiul. f r lhe Verdict for the plaintiff. *99 * JACOB ex dem. PAINE & MORRIS vs. JOEL SMEAD. (Windswr, Sept. term, 1791.) Ejectment for lands in Windsor. General issue, Not guilty. On trial, the plaintiff gave in evidence an office-copy of a charter under Newhampshire, of the township of Windsor, in which Simeon Chamberlain was a grantee a deed from N. CHIP. Chamberlain to J. Willard, dated the 16th of July, 1761 from Willard to Israel Curtis, 3d October, 1767 from Curtis to William Smead, 1 May, 1770 a power of at- torney, Dec. 3*0, *1771, from William *100 Smead and others, proprietors under the Newhampshire grant, to N. Stone, for the purpose of authorising him to procure from the Governour of Newyork, a confir- mation of their claims in Windsor, either in their names, in the name of Stone, or in the name of any other person or persons, as he should think proper. The Newyork Charter, reciting, that the Newhampshire Charter was surrendered, &c. was dated the 28th of March, 1772, to N. Stone, and 21 other persons a release from the other grantees to Stone, dated the 31st of March, 1772 a deed from Stone to Henry Cruger, April, 1772, of 3000 acres of land in Windsor, which was sold by agreement of the Newhampshire proprietors, to de- *fray the expences of the Newyork *101 grant the Will of Henry Cruger, who is since dead, dated June llth, 1779, signed, sealed, and attested by three witnesses, in which, among other things, there is a devise to his executors, N. Watson, - Van Schaack, and - Cruger; to sell all, or any part of his lands in America (he died in England) in fee This Will had been proved in England, and was recorded in Windsor, Nov. 7th, 1787. It was objected by the defend- ant's counsel, that Cruger's will has never been probated in any purpose of proper olnce in this State: But % j I f^ i * by the Court, it is not necessary, to the conveyance it is suflicient to prove the execution of the Will *A deed from two of the executors, *102 to the lessors of the plaintiff, dated 23d of April, 1787, acknowledged and recorded. The land demanded is 100 acres, parcel of the 3000 A receipt from W. Smead to N. Stone, for a deed gjiven to himself and a third person, of his, W Smead's, proportion of land in Windsor, under the Newyork grant. Objection by the defendant's counsel, that the receipt was not proper evidence, to prove a conveyance. Court. It is not designed to prove a con- veyance from W. Smead Acceptauce Grantees under a former charter and acquies- might surrender to the King, Sf^SnSy without deed, and may be bound be proved by acceptance of, and aoquies- wi ' hou t d *J- cence under a second grant, without deed. The re*ceipt may be evidence *103 of such acceptance aivd acquiescence. Several witnesses proved, that Proof that the there was a general acceptance, N. 11. proprie- and acquiescence in the New- tors m-neraiiy york grant, and by W. Smead "T-r.mTthat w. in particular. It did not appear, s. accepted in that W. Smead, who is since r dead, did, in his lifetime, make claim to the 13 pr 103 N. CHIPMAN'S REPORTS. (Windsor Co. lot in question, which was divided to the Chamberlain right, under Newhampshire. The defendant claims, as heir to W. Smead, and has taken possession since his death. It was conceded, that the de- i eir tc w ' fendant is son and heir to W. Smead. Smead. No evidence was produced on the part of the defendant. In the charge to the Jury, charge to the the chief Justice made, among others, the following observa- *104 tions, to which Judge Knight, *the other Judge in court, fully agreed. The right now in question, ttoSSSS&t as far as relates to the opera- to be agreeably tion of the charters, must be ioVce^arthe 11 determined agreeably to the time, which law, then in force, which was Ton law of m " the common law of England. England. The Governour of Newhamp- shire, while this territory was Power of the under that Jurisdiction; and, after the transfer to Newyork, the Governour of that province, had a power to grant such lands, as were then in the right of the King, wer^mlde^y These grants were not made in authority from the personal, or even jurisdic- a^e toTe n eon- tional right of the Governors, sideredas but by royal authority, given royal grants. for tha( . purpose . and they are The King the t ^ e considered, in their COn- ultimate owner struction, and operation, as royal grants The King was, in view of the law, the ultimate owner *105 of all lands *within his dominions, and had the reversion in himself an estate in fee, the highest right, which a sub- ject could have, to lands, was right derived said to be derived out of the from and sub- King's right, and to be subor- his "ighV ' dinate to that right. Agreeably to this doctrine, a surrender Surrender might be made to the King, of ' de ' a former grant. On a surrender the King was in of his former right, and might grant again as he pleased. The plaintiff, in this case re- on 1 a' surrender ^ es that the Newhampshire ot the N. H. charter of the town of Windsor, was surrendered into the hands And that the of the Governour of Newyork NY grant op- for the crown; and, that the fi r rmation a C U letters patent issued, in conse- quence, by that Governour, acting for the Crown, and intended to op- erate by way of confirmation to the claim- ants under the former grant, were *106 *good and valid. The act itself, by which the surrender was made, is not produced. The proof of a surrender of the Newhampshire grant, arises from the power given to Stone, the agent from 8u?re C .!d a e'r in the recital contained in the let- the 2d grant, ters patent of Newyork ; which, pri.ma facie we think, is good ground of pre- sumption, and, indeed, prima 14 facie, evidence of a surrender; and from the acceptance, and long acquiescence of the Newhampshire proprietors, un- Long acquies . der this grant; It should seem, cenceunderthe that the acceptance and acqui- O f^ e d n a s y aver escence alone, which must have involved almost the whole property of the land in the town, would be con- Presumptlon strued a waver of the former f rom the N. H. grant, and a confirmation of the ^ter not b e - latter. It may be further ob- served, the original charter of New- hampshire has not been *produced; *107 and it is agreed, that it was lodged in the office of the Secretary of the Province of Newyork, previous to issuing these letters patent, and, that it remained in that office. The defendant, in this action Defendant stands in the place of his father, stands in place William Smead; and his claim of W. Smead. must be viewed in the same light. W. Srnead, who claimed the premises under the grant of Newhampshire, was a proprietor of several rights, or shares, and was one of those, who executed the power to Stone, to w gm^,^ procure a confirmation from the executed a ' Governour of Newyork. It is gn& 8 B5l in evidence, that W. Smead ac- him a deed of cepted from Stone a title of lau <*s&c. lands in Windsor, to himself and vendees, in full for his claim under the former grants; in part, of the same *lands, *108 which he formerly claimed, and in part of other land, the benefit of which he enjoyed and left to his heirs; for it will be observed, that under the Newyork grant, the whole property was vested in Stone, in trust, that he might convey to every one, according to his right; and, that the division, which was made under the N. Hampshire title, was not then taken to have any legal efficacy, but served only for description. Had the ques- tion arisen between a Newyork claimant, and a claimant under N. Hampshire, who had dis- vorabieiora agreed to these proceedings, and refused any benefit under the second grant, it might have had another consideration; at least, it would have stood in a more favorable light. The Governour of N. York, and the authority of that *Province, were guilty of the highest *109 oppression and injustice toward the Newhampshire grantees. They held the titles derived through the Governour of Newhamp- shire to be void. They were able to enforce this opinion by violent laws, and by the arbi- trary decisions of their courts In conse- quence of these measures, they extorted large sums of money from the Newhampshire grantees and settlers, for what they called, a confirmation. This was practised upon the proprietors of Windsor. It is insisted, that the injustice of this demand ought to invalidate the New- york grant. It is, wholly, a eiation given new doctrine, that the great- ness, or, if you will, the enor- N. CHIP. Windsor Co.) JACOB v. SMEAD. 109 raity of the consideration given, should in- validate a grant. If it be not a legal *110 reason, it is, certainly, *a favorable N. CHIP. argument for the grantees, in support of their grant. Yerdict for the plaintiff. 15 END OF THE REPORTS. PART II. DISSERTATIONS ON THE STATUTE ADOPTING THE COMMON LAW OF ENGLAND, THE STATUTE OF CON- VEYANCES, THE STATUTE OF OFFSETS, AND ON THE NEGOTIABILITY OF NOTES. N. CHIP. 2 (*113) 17 PREFACE TO THE DISSERTATIONS. I have not the vanity to suppose, that the opinions contained in the following Dissertations, are to be considered as precedents they are only private opinions upon points of very considerable importance in the administration of law and justice, in this State. It has been my aim to derive these opinions from principles, which coincide with the principles of our government, and the spirit of its laws ; and to support them by reason, rather than by precedents. A knowledge of the principles, in which precedents are founded ; and the true reason of their application, is of much greater importance in the profession of the law, than the knowledge of precedents only. The latter may serve to form the mere tech- nical lawyer ; the first leads to the fountains of justice, the existing relations of nature in society, and connects the principles of law with the true principles of morality. It is believed, that the principles and reasons, an illustration of which is here attempted, have, if well founded, often occurred to gentlemen of the profession. To such, these Dissertations may be less useful; but, I flatter myself, that they may be, in some measure, useful to students, by exciting them to the due use of their reasoning powers, as well as the power of memory ; and by furnishing them with some hints for a proper estimate of precedents, their principles and application. RUTLAND, September 3, 1792. N. CHIP. (*115-116.) 19 A DISSERTATION ON THE ACT ADOPTING THE COMMON AND STATUTE LAWS OF ENGLAND. *117 *The reasons for passing this act are contained in the following pre- amble: Preamble. "Whereas it is impossible, at once, to pro- vide particular statutes, applicable to all cases wherein law may be necessary for the happy government of this people. And whereas the inhabitants of this State have been habituated to conform their manners to the English laws, and hold their real estates by English tenures." *118 *lst section. Adopting the common law of England. By the first section it is enacted, "That so 'much of the common law of England, as is 'not repugnant to the constitution, or to any 'act of the Legislature of this State, be, arid 'is hereby adopted, and shall be, and con- 'tinue to be, law within this State." What is understood by the common law of Eng- land. By the common law of England, exclusive of positive laws enacted by statute, are un- derstood those rules and maxims, by which decisions are made in their courts of law, whether in relation to the mode of prosecut- ing a right, or to the right itself Rules and maxims, which have been there adopted, "time, whereof the memory of man runneth "not to the contrary." Learnt from law reports. For a knowledge of the common law of England, we must have recourse to *119 the history of their law proceedings, handed down in almost innumerable volumes of reports, and to the writings of the sages of their law. Hence are drawn maxims and precedents for the decision of all causes, at common law. Adopted under restriction*. The aforegoing statute, adopting the com- mon law of England, in this state, has ren- dered a knowledge of that law indispensible in our courts. This statute expressly limits the adoption of the common law, to so much as is not repugnant to the constitution, or any act of the Legislature- of this State. N. CHIP. Cases in which U is excluded. By this limitation, all that part of the com- mon law, which relates to the royal person, family, and prerogative ; all which relates to the peerage, their privileges and pre-em- inence, is excluded. We have no common law officers. They are all by constitution or statute. We have, strictly speaking, no com- *mon law officers all the offices in *120 in this state, are established, and the duties, in general terms, pointed out by the constitution, or by statute. The terms and expressions, adopted in both, are frequently derived from the common law. The office of Sheriff, for instance, is contemplated in the constitution, and established by statute. Their duties may sometimes be learnt from the common law. His power and duties are pointed out, gen- erally, by statute: those are, mostly, the same, as those of a Sheriff in England; yet these powers, and duties, are derived from the constitution and statutes of this state, and limited by them the manner, in which these shall be exercised, if not pointed out by our laws, must be learned from the common law of England, so tar as adopted here as, the manner of an arrest what shall be deemed an escape. *Rulcs of practice in few instances ad- *121 mltted. English rules aupllcalile in plctidlngs, in torts, frauds, and con- tracts. From the different constitution of our courts, the English mode of practice can, in very few instances, be adopted; but their rules may, in most instances, be applied in determinations on pleas and pleadings; in the construction of words and of laws; in almost every instance, which can arise, in our state of society, between individuals, on torts, frauds, or contracts. Less in title* of land, except where ilcrlvcd under UIOKC lcr roj/d the same; there- fore, to the intent to encourage trade "and commerce, which" (as it is there said) N. CHIP. "will be much advanced, if such notes shall "have the same effect as inland bills of ex- Change. " Enacting part. "It is enacted, That all notes in writing, "that shall be made and signed by any per- "son or persons, body politic or corporate, "or by the servant, or agent, of any corpo- " ration, banker, goldsmith, merchant, or "trader, who is usually entrusted by him, "her, or them, to sign such promissory notes "for him, her, or them, whereby such person "or persons, body politic and corporate, his, "her, or their servant, or agent, as afore- "said, doth or shall promise to pay any other "person or persons, body politic and "corporate, his, her, or *their order, *185 "or unto bearer, any sum of money "mentioned in such note, shall be taken and "construed to be by virtue thereof, due and "payable to any such person or persons, body "politic and corporate, to whom the same is "made payable; and also every such note, "payable to any person or persons, body "politic and corporate, his, her, or their or- "der, shall be assignable and endorsible over, "in the same manner as inland bills of ex- " change are, or may be, according to the cus- "tom of merchants; and that the person or "persons, body politic and corporate, to whom "such sum of money is, or shall be, by such "note, made payable, shall and may maintain "an action for the same, in such man- "ner as he, she, or they *might do *186 "upon an inland bill of exchange, "made or drawn according to the custom of "merchants, against the person or persons, "body politic and corporate, who, or whose "servant, or agent, as aforesaid, signed the i "same; and that any person or persons, body "corporate and politic, to whom such note, j "that is payable to any person or persons, "body politic and corporate, his, her, or their , "order, is endorsed or assigned, or the money "therein mentioned ordered to be paid by i "endorsement thereon, shall and may main- 1 "tain his, her, or their action, for such sum "of money, either against the |>erson or per- "sons, body |M>litic and corporate, who, or "whose servant, or agent, as aforesaid, "signed such note, or against any of *" the persons that endorsed the same, *187 "in like manner as in case of inland 35 187 N. CHIPMAN'S REPORTS. "bills of exchange; and in every such action, "the plaintiff or plaintiffs shall recover his, "her, or their damages, and costs of suit." I have inserted this statute at large, be- cause it shews the situation of these notes at common law, and the grounds of subsequent decisions in their courts, upon this subject. After this act, no question was made at common law. After this act, no farther question was made, whether such notes were assignable upon common law principles. It was suffi- cient, that they were assignable by the stat- ute, which put them on the footing of inland bills of exchange, the law of which had long been pretty well settled. *188 *OF THE NOTE. Resemblance of a promissory note en- dorsed, to a Mil of exchange. While a promissory note, payable to order, remains in the hands of the original payee, it takes none of the properties of a bill of ex- change, except its negotiability. When it is once endorsed, it has the principal properties of a bill of exchange. The endorser becomes a drawer, as well as an endorser. The en- dorsee is the payee; and the maker is the drawee, with this distinction, that as between him and the endorsee, he has already accepted the draught. 2 Burr. 676. Heylyn et al. vs. A damson. OF THE ENDORSEMENT. Endorsement may be struck out. If a note have been endorsed to a third person, and not paid, the endorser may strike out the endorsement, and recover in his own name. The endorsement is a direction *189 to the maker, to *pay the contents to a third person, the endorsee. May be endorsed from one endorsee to another. Every endorsee has the same right to en- dorse the note over, as the original holder. It is usual for the endorser to sign his name blank, on the note, to be filled on occa- sion; which may be done at any time before the cause goes to trial to the jury. By administrators, &c. The endorsement by any person, who might himself maintain an action on the note, is good to transfer the right to the endorsee; as, by an administrator, on a note given or endorsed to his intestate, (2 Stran. 1260;) or by the husband, on a note given or endorsed to the wife, while sole: but the declaration must agree with the case. *190 *ENDORSEB AND ENDORSEE. Endorser is a warranter. The endorser is considered as warranting the note, on failure of payment by the maker. It is incumbent on the endorsee to use due diligence to obtain the money of the maker. He must apply, and make demand of pay- ment of the maker, unless he have absconded ; in which case he may go upon his endorser, 36 without an actual demand, which he could: not possibly make. Endorsee must use due diligence or the endorser is discharged. The endorsee must not neglect an unrea- sonable time, or give farther time of pay- ment to the maker; if he do, it is at his own peril; he takes all the risk upon himself, and shall never resort to the endorser. 2 Burr. 676. Heylyn et al. vs. Adamson. Receiving part of the money of the maker held to discharge the endorser. It has been held, that if the endorsee re- ceive any part of the money of the maker, the endorser is absolutely discharged; *for that credit is thereby given to *191 the maker. 2 Stran. 745. Kellock vs. Robinson. Contrary opinion. The contrary has likewise been holden, which seems to be the most reasonable opin- ion. Bui. n. p. 271. 2 Wils. 262. Johnson vs. Kennion. On a bill of exchange. It is clearly for the advantage of the en- dorser, that any part of the money should be received. It is probable, that the circum- stance of giving farther time of payment, being generally connected with that of re- ceiving part of the money, gave rise to the former opinion. General endorsement to be taken according to the tenor of the note. If the endorsee have used due diligence to- demand the money of the maker, and the maker refuse, or neglect to pay, the endorsee has a right of action against the endorser. If a note, payable at a future day, be endorsed generally, it is an endorsement to pay accord- ing to the tenor of the note. No laches can be imputed to the endorsee, until the note become *payable. *192 Money appointed to be paid before the note is payable. Endorser holden to his time. If the endorser appoint the money to be paid at an earlier day, though the endorsee may safely wait till the note become payable, before he demand the money, yet he is not obliged to give this time to the endorser. He- may, if the maker refuse payment, resort to the drawer, at the time set in the endorse- ment. Endorsement of notes payable to bearer. A note payable to A B, or bearer, may be endorsed; and the endorsement will be a good warranty, as in the case of a note pay- able to order; but an endorsement is not necessary for transfering a right of action against the maker. Such right, according to the tenor of the note, passes by delivery from hand to hand. These notes art', in many respects, like bank bills, or bills of public credit. When passed without *193 endorsement, *they are, in the same manner, at the risk of the bearer, as. to the ability of the maker. N. CHIP. ON THE NEGOTIABILITY OF NOTES. 193 OF PAYMENT. Payment to the original payee, or a dis- charge by him to the maker, seems to have been admitted as a good defence to the maker. But it was admitted with great caution. The note must have been in the hands of the payee, at the time of the discharge or pay- ment. The burden of proof, in this point, \vas thrown on the maker. It was of no avail, that he had not notice of an indorse- ment; so that it was almost impossible to avoid a second payment. Hence an opinion has prevailed with many, that such defence was not admissible. *194 *TIIE NEGOTIABILITY OF NOTES, CON- SIDERED ON PRINCIPLES. There is, in this State, no statute directly authorising the Negotiability of Notes; nor have there been any leading decisions in point. In England, it was formerly doubted, not only, whether the endorsee of a note could, in his own name, maintain an action against the maker, but whether this could be done by the original payee, on the note itself. ' The statute of the 3 and 4 Ann. recites these difficulties, and provides a like remedy in both cases. It is not now doubted, but that a declara- tion on a note is good, and that the payee may, on common law principles, maintain an action on the note against the maker. *195 *Holt opposed to the action on note. L. Rayrn. 157. Lord Holt was strenuously opposed to such action. At the same time he allowed the note to be good evidence on an indebitatus assutnpxit. The true reason was, that notes having been but recently introduced, no pro- vision had been made by the ancient rules of law, for this form of action. It is clearly one of those cases, in which forms were long allowed to control, and sometimes even to exclude principles. Objection to the negotiability of notes, a chose in action not transferable. As to the negotiability of notes, the great objection was, that they were mere c?ioses in action; and it was a maxim of law, that a chose in action cannot be transfered. In the case of bills of exchange, the custom of mer- chants had prevailed against the maxim; and they had long been holden to be transferable by endorsement. *1W *'llicy were not cstalilishcd by the common law practice in England. Before the 3 and 4 of Ann. promissory notes had been introduced, and the merchants had attempted, to make them negotiable by endorsement; but their negotiability had not been steadily allowed in the courts of law, as was observed above. It cannot, therefore, be said to have been established by the prac- tice of the common law, and to have passed to us through that channel. The idea, how- ever, lias not a little prevailed, that notes, payable to order, are negotiable, and endor- N. CHIP. sees have, in some instances, maintained ac- tions upon them, in the lower courts, in their own names. With us, it must depend on principles. If such action can be maintained in this State, it must be on principles of right, aris- ing from the nature of the transaction itself. We will enter a *little more at *197 large into this subject, and see if we | can discover principles, which will be sum j cient to support the negotiability of notes, | and how far such principles extend. The contract as expressed in the note. The form of the contract between the maker arid the original payee, is this : Value received, f promise to pay to A B, or order, ten pounds, lawful money, one month after date. Explained. The substance of which may be thus ex- pressed: "Whereas I, C D, am indebted to A B, in the sum of ten pounds, lawful money, I promise and engage to pay to A B, the sum of ten pounds, in one month from the date hereof; or, if it shall be more con- venient for A B, I will pay it to any one, whom A B shall, by his order, appoint; and any person, who will, by satisfying A B for the contents, procure *his or- *198 der therefor, shall be entitled to receive the aforesaid sum of ten pounds, in the place of AB." It clearly implies this general proposal, that if any person will pay to A B, the con- tents of the note, the maker will, on the pro- ducing of the note, and an order endorsed accordingly, pay to such person the full sum due. Indorsee is equitably entitled according to the tenor of the contract. It is clear, then, that by complying with the proposal, paying the debt to A B, and taking his order; such third person, the en- dorsee, acquires an equitable right to demand the money of C D, according to the tenor of his engagement. The endorsee has paid the debt of C D, and taken the order, with his approbation; not, indeed, a particular, but a general approbation. *The maker has given the payee a power *199 to appoint the ixiymcnt to a third per- son. Appointment yood to vest a riyht. Even where the iHsininor ha* no interest. From the nature of the contract, fairly ex- pressed, C B has given to A B, a power of appointing a third person, who shall demand the money to his own use. In other cases, ! such appointments have been holden good, ! to vest a right in the appointee. In a family | settlement, a sum of money is to be paid to such person as 1* shall appoint. P appoints it to be paid to S. In this case, a right vests j in S, on the appointment of P, to demand | the money, and that without any act done, or consideration advanced on the part of S. It matters not, whether the right of S be at law, or in equity. Jt is now well agreed, 1 that a right, which is sutlicient to found a 37 199 N. CHIPMAN'S REPOETS. decree in equity, is sufficient to support an ac- tion at law. In the case here put, the *200 nominor has no interest in the *money. He lias only a naked power of appoint- ment. This is, certainly, going farther than the case of negotiable notes Here the orig- inal payee has an interest in money, as well as a power of appointment. He may either receive the money himself, which will dis- charge the whole contract, and, consequently, the right of appointment; or, he may appoint it to be paid to a third person, by endorse- ment. The indorsee is an appointee for a valuable con- sideration. It is still a stronger case for the endorsee, that he is an appointee, for a valuable con- sideration. Analogy to tlie case of an agent, &c. There is, likewise, as to the right of the endorsee, an analogy to the case of a person contracting with a servant, agent, or factor. If A give to C, a credit to make certain con- tracts on his, A's account, and this *201 credit be held out to the pub*lic, or to individuals, With whom C, the agent, negociates, those, who contract with C, on that credit, will have good right against A, although they might never have seen him. The case on a negotiable note, does not go farther. The maker empowers the Original payee to make a contract, which shall bind him, the maker, viz. to make an order to a third person, the endol-see, upon such con- sideration as he shall choose, and engages to pay the order. Maker is holden to the indorsee precisely as the acceptor of a bill of exchange to payee. After all, no two cases, as to original principles of right, can be more precisely the same, than the case between the payee, and acceptor of a bill of exchange; and the case between the endorsee, and the maker of a promissory note, payable to order. The en- dorsement is, to every intent, a bill of *202 exchange. The *note authorises the draft, and contains a previous accept- ance, subject, perhaps, to one condition, which will hereafter occur. A previous agreement to accept, is an acceptance. Havens vs. Griffin, ante. 43. It was judged, upon the best ground, in the case of Pttlans and Rose, vs. Van Mierop and Hopkins, that an agreement to accept a bill to be drawn, was an acceptance to bind the drawee, when the bill should be drawn accordingly. 3 Burr. 1664. Fenner vs. Hears. is a similar case as to prin- ciples 2 Bloc. rep. 1269. An endorsement on a bond promising to pay to any person to whom the bond should be assigned, binds to pay to the assignee. The same principle, which applies to the negotiability of notes, was adopted or con- ceded by the Judges of the Common Pleas, in the case of Fenner vs. Mears. Hears bor- rowed of Cox, on two respondentia bonds, upon an India voyage, .1000: and to enable Cox to raise money by an assignment of the bonds, signed hereon an endorsement to the following purport; that the sum con- tained was due *to Cox, and that he *203 would pay the same to Cox's assignee, without any deduction or abatement. After- wards, Fenner advanced money to Cox, upon an assignment of these bonds. Mears re- turned with the ship, having performed the voyage; and Fenner, by one Evans, informed him of the assignment, and requested pay- ment. Mears desired time, and that Fenner would not sue him; but delaying payment, Fenner brought an action against him for money had and received. There was a ver- dict for the plaintiff, and a motion for a new trial, because, it was said, the endorsement on the bonds could not make them assign- able, so that Fenner could recover in his own name. Judge Blackstone observed, that from a caution, lest, by turning a specialty debt, by *assignment, into a simple *204 contract, some consequences might arise, which he could not then foresee, rather than from any great doubt attending the case, he chose to go on clearer grounds in deter-' mining the particular question. He was of opinion, that Mears had made a sufficient promise, after his return. Chief Justice De Gray, and Justice Nares, held clearly, that Fenner had a good right of action, in virtue of the endorsement by Mears, and the assign- ment by Cox. The plaintiff, said the Chief Justice, is certainly entitled to the money in conscience, and therefore, I think, entitled at law. The maker, who has not paid, can set up no hon- est defence against the endorsee, Let us see what defence the defendant can set up against an endorsee. It is true, says he, that I gave the note to A B, for ten pounds due to him; that I *prom- *205 ised to pay the money to him, or to any person, who would procure his order en- dorsed. It is true, that I have never paid the money; and the plaintiff has, by paying my debt, from a reliance on my written word, procured an order endorsed from A B that according to the expression in the note, the plaintiff might have expected me to pay him the money; but the law does not allow the endorsee to recover in his own name. This is certainly the fairest defence, which can be made upon the statement, and is a gross eva- sion, founded in injustice. Notes payable to order, assignable on legal and equitable principles. It appears, therefore, that notes payable to order, are, on every just, legal, and equitable principle, assignable, by endorsement; and that an endorsee may rightfully main- tain an *action in his own name, *206 against the maker. As this may be considered in this State, res Integra,^ we are not obliged, on this sub- tA new matter, or unaffected by precedents. N. cnip. ON THE NEGOTIABILITY OF NOTES. 206 ject, to follow the reasons and policy of the English law. We are at liberty to make such decisions as shall, in a general view, be agreeable to justice, and the nature of the transaction. How far the endorsee is holden to warrant. To consider the endorser of a note, who has received the money of his endorsee, as warranting the ability and punctuality of the maker, the same as on a bill of exchange, in respect to the drawee, is agreeable to justice. Endorsee must use due diligence, otherwise it is at his own risk. It is equally agreeable to justice, that the endorsee should use due diligence to obtain the money of the maker, who is to be consid- ered as an accepting drawee; and that *207 if he be guilty of any unreasonable neglect, either in demanding the money of the maker, or in giving notice of non- payment to the endorser, he should be holden to take the risk upon himself, and to dis- charge the endorser of his warranty. For this opinion there are two good rea- sons. 1st. From the silence of the endorsee, the endorser may well conclude that the money has been received, and make his ar- rangements accordingly. 2d. During the time of delay, the endorsee, possessed of the note, prevents the endorser to take any measure to secure or recover the money of the maker. Subsequent endorsees within the same reason. These reasons will hold equally between any subsequent endorsee, and all the endorsers; against either of whom, he may have his rem- edy, on failure of the maker to pay. *208 *There are two cases worthy of con- sideration. One is, between the en- dorser and endorsee; the other, between the endorsee and the maker. Case between endorser and endorsee. The first, between the endorser and en- dorsee, is where the immediate endorser is discharged of any warranty, either by agree- ment, at the time of endorsement, or through the neglect of the endorsee. Neglect of the first endorsee, runs against every subsequent endorsee. If thro' the neglect of the endorsee, the endorser be discharged, and the note be after- wards endorsed to a third person, the liability of the first endorser is not revived, though the last endorsee had no knowledge of the neglect of the intermediate endorser. "Were it otherwise holden, it would be an easy mat- ter, by subsequent endorsements, perpetually to charge the first endorser, which would be very unjust. *209 *!/ a note be endorsed generally, "value received, "no private agreement should avail against a milntetiuent endorsee. An agreement between the endorser and endorsee, has an appearance of more difficulty. If a note be endorsed, "Value received, pay the contents to C D, or order," it includes every subsequent endorsement, ad injlnitum. The last endorsee has the same, remedy against the first, and every intermediate endorser. N. CHIP. No private agreement ought to be allowed to contradict, what is so held out in the endorse- ment. The reason is plain. It would be to allow the endorser to hold out a deception. The endorser, between him and his imme- diate endorsee, might make every defence al- lowed to a note of hand; and would, as I conceive, be admitted to proof, under the same limitations. If the word "order, " be omitted, it is a restricted endorsement. Where the word order is omitted, notwith- standing some opinions to the con- *trary, it is, on the face of it, a lim- *210 ited contract, between the endorser and his immediate endorsee. It implies no warranty to a subsequent endorsee. A subsequent endorsee must take the note on the credit of his immediate endorser. The contract, as to the warranty, is between them only. Setting aside the custom, which has obtained in England, there can be no decep- tion. Nothing on the face of the contract, warrants a supposition, that the endorser will warrant to any future endorsee. There is nothing to support even the fiction of a privity for this purpose. To carry the sense of the word order, in the note, which, in re- ference to a bill of exchange, is the expression of the acceptor, into the endorsement, which is the act of the drawer, so as to bind him, is a harsh and unnatural construction. If, for the ""convenience of a subse- *211 quent endorsee, to enable him to re- cover of the maker, the word order, on the face of the note, be implied in the endorse- ment, it will, perhaps, be an injury to no one; but to imply it for the sake of a remedy against the first endorser, is to introduce, by implication, that, which was carefully avoided in the expression. Notes endorsed blank. May not be used by the endorsee, contrary to agreement. It is frequent for notes to be endorsed blank, and to pass from hand to hand, either with or without any subsequent endorse- ment; and for the blank to be filled up on occasion. Here a question has been made, whether the person, who receives a note thus endorsed blank, may not fill up the blank with any kind of endorsement, as he shall choose. * Proof may be admitted of the intention. *212 Between the endorser and his imme- diate endorsee, it is clear, no use can justly and equitably be made of the endorsement, substantially different from the intention of the parties, at the time of endorsing. Proof, therefore, ought to be admitted between these parties, to shew what was that intention. Endorsement filled contrary to agreement, and rxissed without notice. If an endorsee, who had received a note thus endorsed blank, fora particular purpose, should afterwards fill up the blank with a general endorsement, and without giving notice of the agreement between him and his endorser, endorse the same note to a third 39 212 N. CHIPMAN'S REPORTS. person, it might, at first view, seem to admit a different consideration. It may be said, that by neglecting to fill up the blank accord- ing to the agreement, the first endorser *213 had, at least, put it in *the power of his endorsee to exhibit him as a war- rantor; which, if allowed to be controverted, might prove a deception upon third persons. The subsequent endorsee, ought to trust to the honesty of his endorser, for the right he has against a prior endorser. Notwithstanding this consideration, I can- not but think it more agreeable to justice and equity, that the subsequent endorsee should, in this point, trust to the honesty and credit of his endorser, with whom alone he is con- cerned in contract. Were this established tor law, there would be much less room for deception, than upon an admission of the contrary doctrine. It is true, the credit of every endorser may add to the credit of the note. But this, on a contract for a transfer, is an advantage to the seller, not to the buyer. I see no good reason, why a construction should be *214 *forced, to give him an advantage to which he is not, in equity, entitled, which he cannot take, with a good conscience, and for the sake of the buyer, who is a mere volunteer, to allow the seller to bind a third person, contrary to agreement. It is here considered independent of custom. A custom may alter the reason. I here go upon a supposition, that no cus- tom has, in this case, been established. The prevalence of a general custom, frequently alters the reason of cases. It is, while re- maining in force, equal to a general agree- ment. If a note endorsed blank pass thro' several hands, to what purpose the endorsement shall serve. "Where the note passes thro' several hands, the name of the original payee remaining en- dorsed, in blank, may well justify a sale of the note, by authorising the holder to receive the money; but as to any other purposes, it ought to be taken subject to the agree- *215 ment, made *on the first endorse- ment. It ought, as to the first endorsee, to be subject to the agreement made at the time. If A, for instance, sell a note to B, at the risk of B, and endorse it blank; and B sell it to 0, without giving notice of the agreement with A, or should he falsely affirm, that A was holden to warrant, the deceit of B ought not to injure A. C ought to look to B, with whom he dealt, and to whom alone he had a right to give credit. A. name endorsed without a custom, implies no warranty. If a custom have not prevailed to suggest the idea, no one would suspect, that a name only, written on the back of a note, had any thing to do with a warranty. A. case of forgery. To consider this matter in another point of light A employs B to transact a certain 40 piece of business, and signs his name on a blank paper, for the purpose of filling up a receipt in the course of that business. Instead of a receipt, B fills up a *note *216 against A, payable to himself, or or- der. None will hesitate to pronounce this to be a complete forgery; and that the note, whether in the hands of B,or of his endorsee, would, on proof, be utterly void against A. To sell an endorsement contrary to agreement^ equally fraudulent. There can, in point of substantial justice, be no difference between the case put, and that of a blank endorsement, filled contrary to an express agreement. The latter is, in foro conscientice, equally criminal with the former, and ought to be deemed equally void. Case between the endorsee and the maker. The second case, as mentioned above, be- tween the maker and the endorsee, is, where the payee himself could not maintain an ac- tion against the maker, either because the maker had made full payment to the payee, or obtained a discharge from him, be- fore the endorse*ment, or rather, be- *217 fore notice of the endorsement ; or be- cause the note was originally obtained by fraud, imposition, or on an illegal considera- tion ; where the maker has paid before en- dorsement, and neglected to take up his note; the question occurs, shall the maker of the note, because he has neglected to take it up, or to have it cancelled, although he has hon- estly paid, be still holden to the order of the payee? In favor of the endorsee, it is said, that the promise to pay to A, or order, is a general promise to pay to any person, who shall procure such order; and that, to suffer any private transaction between the maker and original payee, to deprive a third person, who had dealt, bonafide, of the benefit of his order against the maker, is to suffer one man *to be imposed upon through *218 the neglect of another. The promise to pay A, or order, is to one or the other, not to both. This argument, however, will have no weight, without a general custom to support it. The promise contained in the note im- ports no such thing. "1 promise to pay to A, or his order," that is, to one or the other, who first demands; not to both. If the maker have paid to A, the right is extin- guished; no right remains to be assigned. If the maker have fulfilled his promise to A, the contract is clearly discharged. A has not a scintilla juris* to demand any thing farther on the contract. He has, in fact, no demand to assign. Shall his endorsement, which is in itself a fraud, convey, or revive a right against the maker, who has honestly paid, according to agreement? This would be to enable A, by the intervention of an en- dorsee, to effectuate a fraud, which he could not have done in his own *name. *219 * A spark, or glimpse of right. N. CHIP. ON THE NEGOTIABILITY OF NOTES. 219 Endorsee is a volunteer purchaser. Ought to se- cure himself against his endorsee. The endorsee, in this case, is a volunteer. He is under no necessity to purchase this particular note. He deals with A alone. He is at full liberty, if he distrust the hon- esty of A's representation, to take security, or refuse the contract. Let him trust for security where he deals, and take his remedy against the man who deceived him. CAVEAT EMPTOR, beware purchaser, may, in this case, with great propriety, be applied to the en- dorsee. If he have neglected to secure him- self against A, he ought to suffer the loss. Proof of notice should come on the part of en- dorsee. Maker not to be bound, unless notified. It is but reasonable, that the maker should be bound only by notice of the endorsement; and, that in all such questions, to charge the maker on the alternative of his prom- *220 ise, to pay *to the order, the proof should come on the part of the endor- see. It is a matter in his own knowledge; and it is in his own power to fix the maker, by notice of the endorsement. The maker has good reason to suppose his contract to remain in statu quo, until he be informed of a change of parties ; and to make his pay- ments accordingly. Where the note was obtained by fraud, endorsee ought not to recover. The same reasons hold with equal, if not greater force, where, between the maker and original payee, the note was obtained by fraud, imposition, or on an illegal consideration. Hard constructions in the English law, have not always prevailed against the maker. In the English laws, there have been many hard constructions against the makers of notes, in favor of endorsees; but such con- structions have not always prevailed. "221 *By 9 Ann. notes given for money lent to game with, void. By the 9th Ann. c. 14. s. 1. it is enacted, that, "all notes, where the whole, or any part "of the consideration is money knowingly "lent for gaining, shall be void, to all intents "and purposes whatever." 2 Stran. 1155. Bowyer vs. Bampton. In an action brought by the plaintiff, as endorsee of several prom- issory notes, it appeared, that the notes were given to one Church, for money by hrm knowingly advanced to the defendant, to game with, at dice; that Church endorsed them to the plaintiff, for a full and valuable consideration; and that the plaintiff was not privy to, or had any notice, that any part of the money, for which the notes were given, was lent for the purposes of gaining. A note (liven for money lent tr> game ivith, held voitl in the hands of a bonajldc and innocent endorsee. Upon this case, a question arose, *222 whether the plaintiff, a *bona Jide, and innocent endorsee, could maintain an action on these notes, against the defend- ant? After two arguments, the Court were of opinion, that he could not: "For," said they, "it will be making it of some use to the lender, if he can pay his debts with it; and it will be a means to evade the statute, being so very difficult to prove notice upon an en- dorser. And though it will be some incon- venience to an innocent man, yet that will not be a balance to those on the other side; and the plaintiff is not without remedy; for he may sue Church on the endorsement. It is but the common hazard of taking notes of infants, and femes covert." Less favorable than the case of previous pay- ment. These reasons are much more con- clusive in favor of the maker *of a *223 promissory note, who has paid the money before endorsement, or rather, before notice; or where the note was obtained by fraud, imposition, or upon a consideration, which was illegal, as being malutn in se, Here the maker is innocent. He has been punctual; he has been honest. In that case, the defendant was not innocent He had re- ceived the full value of Church, and screened himself under a statute, which had more re- gard to public policy, than private honesty. The law of nature against fraud, ought to have equal force with an act of legislation. That no one should benefit himself, or le- gally charge an innocent man, by a fraudu- lent act, is a law of nature, of reason, and common honesty, which ought not to be less regarded in the administration of justice, than acts of legislation. *After endorsement, and notice to *224 the maker, he cannot honestly, or safely, make further payment to the original payee. He is then holden to the second part of the alternative in his promise, to pay to the order. Notes payable to bearer, within the same reason with notes payable to order. It will readily be perceived, that the same arguments will apply to the case of notes payable to bearer. They are equally negotia- ble.according to the true intent of thecontract. More subject to frauds. But as, upon a literal construction, no en- dorsement, nothing but a delivery from hand to hand, is necessary to pass the right, they might, in practice, open a door to many frauds and secret impositions. May be remedied by Insisting that they be en- dorsed, to give a right of demand. A remedy might, however, be applied con- sistently with the nature of the contract, and the principles of justice. The holder of such *note, that he may be entitled *225 to demand of the maker, must be a bona Jide bearer. Let it, then, be insisted, that the bearer, in order to establish his right of demand, shall prove himself a b< ma Jide bearer, by producing an actual endorsement of the note. This would be no more than just, and would, perhaps, obviate every rea- sonable objection arising from the danger of secret fraud. N. CHIP. 41 END OK THE DISSERTATIONS. APPEN DIX. *227 *Rules of the Supreme Court of the State of Vermont. ADDISON COUNTY. SUPREME COURT, August Term, 1790. It is ordered, That after the present cir- cuit, all actions cognizable before this court, shall be entered on the first day of the sitting of the court, and not after. By order of the Court, N. BRUSH, Clerk. CHITTENDEN COUNTY. SUPREME COURT, August Term, 1791. It is ordered by the court, That all causes brought to this court, by appeal from any county court, shall be heard, tried and deter- mined upon the pleadings in the court below; unless one of the parties in the court *228 below, *shall think he has missed his plea, replication, rejoinder, &c. In which case the party so missing his plea, re- plication, rejoinder, &c. shall have liberty to alter or amend the same, or plead de novo, as the case may be, on giving to the adverse party notice in writing, of such alteration, amendment or new plea, &c. at the time of granting such appeal, or not less than thirty days before the court to which such appeal shall be entered. Provided nevertheless, On the first or sec- ond day of the court sitting, that upon mo- tion and sufficient cause, the party who shall have missed his plea, replication, &c. and not given notice as aforesaid, shall have lib- erty to alter or amend, or plead de novo, by paying down to the adverse party, such rea- sonable cost as they shall award for such neglect. By order of the court, N. BRUSH, Clerk. *229 *OKANGE COUNTY. SUPREME COURT, September Term, 1791. It is ordered by the court, That on the en- try of every writ of error, the plaintiff in error shall deliver to the court a lair copy of the writ of error, with the assignment of the errors. And whenever an issue of law is joined on special pleadings in any cause, the party demurring shall in like manner furnish the court with a fair copy of all the plead- ings in the cause on his filing his demurrer. By order of the court, N. BRUSH, Clerk. *ORANGE COUNTY. *230 IN CHANCERY, September Term, 1791. It is ordered, That the plaintiff or plain- tiffs in every suit in chancery, shall deliver to the court a fair copy of his, her, or their bill, at the opening of the court on the sec- ond day of the term in which the bill is filed and the defendant or defendants, in like manner, shall give to the court a fair copy of his or their answer, plea, or demurrer, at the time of filing the same with the clerk. By order of the court, N. BRUSH, Clerk. *Forms of Special Pleadings. *231 Eecord of a cause before the County Court. ASSUMPSIT ON NOTE, WITH SEVERAL PLEAS OF OFFSET. James Jinks, vs. John Simpson. RUTLAND COUNTY. Be it remembered, That at a county court, holden at Rutland, in and for the county of Rutland, on the day of November, in the year of our Lord 1791, John Simpson, of Rutland, aforesaid, was summoned to an- swer to James Jinks, of Pittsford, in the county aforesaid, in a plea of the case; whereupon the said James Jinks, who comes by H, his attorney, declares and says, Declaration. That on the first day of May, in the year of our Lord 1790, at Rutland aforesaid, the said John Simpson did make and deliver to the said James, his certain note in writing, commonly called a promissory note, signed with the proper hand of him the said *John, and bearing date the day and *232 year last aforesaid; in and by which said note, the said John promised the said James to pay to him, for value received, the sum of fifty pounds, lawful money, on the first day of May, which should be in the year of our Lord 1791, with the lawful interest for the same by the reason whereof, the said John became liable to pay to the said James, the aforesaid sum of fifty pounds, according to the tenor and effect of said note; and being so liable, the said .lolm afterwards, to wit, on the same first day of May, in the year of our Lord 1790, at Rutland aforesaid, did, in consideration thereof, assume upon himself, and to the said James faithfully promise to pay the aforesaid sum of fitly N. CHIP. 232 N. CHIPMAN'S REPORTS. pounds according to the tenor and effect of said note; nevertheless the said John not re- garding liis promise and assumption afore- said, hath never performed the same, al- though often thereto requested, to the dam- age of the said John, as he says, the *233 sum of *.70 lawful money to re- cover which, with his costs, he brings this suit. Defendant's appearance. Continuance. At which day the said John Simpson comes into court here, by C D, his attorney, and prays a continuance in this behalf, until the next county court to be holden in Rutland aforesaid, in and for the county of Rutland; and it is granted; and the same day is given as well to the said James, as to the said John. PL non. ass. At which day come the said John and the said James, by their attornies aforesaid; and the said John, by his said attorney, pleads and says, that he did not assume and promise in manner and form as the said James, in his declaration hath alledged, and thereof puts himself on the country for trial and the said James doth the same. Plea of offset. And for farther plea, the said John says, that the said James is indebted to him the said John, in divers large sums of money; 1st Count, note. *234 For this, *to wit, that at Rutland aforesaid, on the first day of October, in the year of our Lord 1790, the said James made and delivered to the plaintiff his certain note in writing, commonly called a promis- sory note, signed with the hand of the said James, and bearing date the day and year last aforesaid; in and by which said note, the said James promised the said John to pay to him, for value received, the sum of .10 lawful money, on the first day of Jan- uary then next, and before the commence- ment of the said James's present action; whereupon the said James became liable in law to pay to the said John the aforesaid sum of .10, according to the tenor of said note; and being so liable, the said James aft- erwards, to wit, at Rutland aforesaid, on the same first day of October, in the year of our Lord 1790, did, in consideration thereof, as- sume upon himself, and to the said John faithfully promise to pay to him, the *235 aforesaid sum of 101. according to the tenor of said note. 2d Ind. ass. And also for this, to wit, that at Rutland aforesaid, on the first day of April, in the year of our Lord 1791, and before the com- mencement of the present action of the said James, the said James was indebted to the said John, in the sum of 301. lawful money, for so much money by the said John ad- vanced, laid out, and expended for the use of the said James, at his the said James's spe- cial instance and request; whereupon the 44 said James became liable in law to pay to the said John, the aforesaid sum of 301. and be- ing so liable, did afterwards, to wit, at Rut- land aforesaid, on the day and year last afore- said, in consideration thereof, assume upon himself, and to the said John faithfully promise to pay to him the aforesaid sum of 301, when he should be thereunto requested. 3d Endorsed note. And also for this, to wit, That whereas on the 4th day of May, in the year of our Lord 1791, the said James made and deliv- ered to one *Titus Thompson, his cer- *236 tain note in writing, commonly called a promissory note, signed with the hand of him the said James, and bearing date the day and year last aforesaid ; in and by which said note, the said James promised the said Titus to pay to him, or to his order, the sum of 201. lawful money, within one month after the date of said note, with lawful interest for the same And afterwards, to wit, on the first day of July, in the year of our Lord 1791, and before the commencement of the present action of the said James, the said sum of 201. being then and still unpaid, the said Titus did, by his endorsement, signed with his own proper hand, appoint and order the said James to pay to the said John the said sum of 201. according to the tenor and effect of said note; of all which the said James, to wit, at Rutland aforesaid, on the day and year last aforesaid, had notice; whereupon the said James became liable in law to pay to the said John the aforesaid sum of 201. according *to the tenor and effect *237 of said note; and being so liable, the said James afterwards, to wit, at Rutland aforesaid, on the day and year last aforesaid, did, in consideration thereof, assume upon himself, and to the said John faithfully promise to pay to him the aforesaid sum of 201. according to the tenor and effect of said note And the said John says, the said sum of 201. last aforementioned, was due and payable from the said James, before the com- mencement of the present action of the said James. Nevertheless the said James, his promises and assumption aforesaid not re- garding, hath never performed the same, or either of them to the damage of the said John the sum of 601. lawful money; the said John therefore prays that the same may be offset against the demand of the said James, and that he the said John may recover the balance which shall be found due to him from the said James, according to the statute in such case made and provided. *Pltff 1 s plea as to the 1st and 2d counts. *238 And the said James, by H, his at- torney as aforesaid, pleads and says, that as to the 1st and 2d counts in the plea of offset of the said John, he did not assume and promise in manner and form as the said John hath therein alledged, and hereof he puts himself on the country And the said John doth likewise. N. CHIP. APPENDIX. 238 Plea to the 3d count. And as to the 3d count in the said plea of offset of the said John, he says, that the said John ought not to recover thereof against him the said James, because, he says, that after the making of the said promissory note, in the said 3d count mentioned, and before any endorsement thereof by the said Titus Thompson, to wit, on the first day of June, in the year of our Lord 1791, he the said Titus, at Rutland aforesaid, by his certain deed, then and there made by the said Titus, to the said James, (which said deed of the said Titus, signed with his hand, and sealed with his seal, the date whereof is the *239 same day *and year last aforesaid, the said John brings into court here) did remise, release, and forever quit claim to the said James, by the name of James Jinks, of Pittsford, in the county of Rutland, his heirs, executors, and administrators, all and all manner of action and actions, cause and causes of action, suits, notes, bills, bonds, writings obligatory, debts, duties, accounts, sum or sums of money, judgments, execu- tions, controversies, trespasses, damages, and demands, of what name or nature soever, which he the said Titus ever had, or might hereafter claim, challenge, or demand, by reason of any matter, cause, or thing what- ever, from the beginning of the world, to the day of the date of said deed, as by the said deed, relation being thereunto had, may more fully appear. And the said James further says, that at the time of making the said deed of the said Titus, as aforesaid, the said promissory note, mentioned in the said 3d count of the plea of the said John above *240 plead*ed, was in the custody and pos- session of the said Titus, not endorsed by him, and this the said James is ready to verify; wherefore he prays judgment, wheth- er the said John ought to recover against him the said James, on the count last aforesaid. Further plea, 1st count, debt on bond. And for further plea he saith, that the said John is further indebted to him the said James, in divers large sums of money; for this, to wit, that on the first day of Septem- ber, in the year of our Lord 1791, the said John Simpson, by his certain writing obliga- tory, signed by the hand, and sealed with the seal of the said John, and ready to be shewn to the court, did acknowledge himself to be holden and firmly bound to the said James, in the sum of 401. lawful money, to be paid to the said James, by the said John, when he the said John should be afterwards there- unto requested. *341 *2d On judgment. And also for this, to wit, that whereas at a county court holden at Rutland, in and for the county of Rutl.ind, on the third Tuesday of November, in the year of our Ix>rd 1791, the said .James, by thu considera- tion and judgment of said court, recovered N. CHIP. against the said John, by the name of John Simpson, of Rutland, in the county of Rut- land, the sum of twenty pounds lawful money, for damages which he had sustained by reason of a certain trespass of him the said John, heretofore done to the said James, as well as for his costs and charges, by him in that behalf expended; whereof the said John has been convicted, as by the record and proceeding thereof still remaining in the said court, more fully appears; which said judgment still remains in said court in its full force, strength and effect, never reversed, annulled, set aside, paid, satisfied, or dis- charged; and the said James hath not yet obtained any execution on his said judgment; whereby an *action hath *242 accrued to the said James, to have of and from the said John, the aforesaid sum of 201. Nevertheless the said John hath never paid or satisfied to the said James the aforesaid sums, or either of them. But the same, being 601. in the whole, is still due and owing from the said John to the said James; which he prays may be set off against the demand of the said John, in his plea of offset above pleaded; and that he the said James may recover the balance thereupon due to him, according to the statute in such case made and provided. Deffs repl. And the said John, by his said attorney, farther pleads and says, that for any thing in the plea of the said James, in bar above pleaded, he the said John ought to recover on the said 3d count contained in his plea in offset above pleaded, because he says, that the said James, on the first day of May, in the year of our Lord 1791, did make and de- liver to the said Titus Thompson, his certain note in writing, *commonly *243 called a promissory note, subscribed with his hand, and bearing date the day and year last aforesaid; in and by which said note, the said John promised the said Titus to pay to him, or to his order, the said sum of 201. within one month after the date of said note, with lawful interest for the same; and the said Titus did, afterwards, to wit, on the first day of July, in the year of our Lord 1791, appoint and order the said James to pay to the said John, the aforesaid sum of 201. according to the tenor of said note, of which the said James had notice, and became liable, and did assume and promise to the said John, the same sum of 201. according to the tenor of said note. Traverse. And the said John, in fact, says, that the said Titus did not make and execute the said deed of release, to the said James, on the said first day of June, in the year of our Lord 1791, or at any other time before the endorse- ment of the said note to the said John *and hereof lie puts himself on the *244 country for trial. 45 244 N. CHIPMAN'S REPORTS. Plea to the 1st count of the plaintiff, in offset. Oner of tiie bond & condition Payment at the day in bar. And as to the 1st count contained in the plea of offset by the said James above pleaded, the said John pleads and prays oyer of the said writing obligatory, which is read to him in the following words, to wit, (here insert the bond) and he also prays oyer of the con- dition of the writing obligatory, which is read to him in the following words, to wit, (here insert the condition) which being read and heard, he says, that the said James ought not to recover thereof against him, because he says, that he the said John, on the day of in the said condition above spec- ified, paid to the said James, the sum of 201. lawful money, which he the said John ought to have paid to the said James upon that day, according to the form and effect of the said condition, to wit, at Rutland aforesaid, *245 and this he is ready to verify; * where- fore he prays judgment if the said James ought to recover thereof against the said John. To 2d count, nil debet. And as to the 2d count in the said plea of offset of the said James, he says, that he does not owe the said James in manner and form as the said James therein hath alledged, and hereof puts himself on the country for trial and the said James doth likewise. Replication to tlie plaintiff's plea in bar. And the said James, by his attorney, re- plies to the plea of the said John in bar above pleaded, and says, that for any thing therein alledged, he ought to recover thereof against him the said John, because he says, that the said John, on the first day of September, in the year of our Lord 1791, did, by his certain writing obligatory, signed by his hand, and sealed with his seal, the date whereof is the day and year last aforesaid, acknowledge himself holden and firmly bound to the said James, in the sum of 401. lawful *246 mo*ney, to be paid, &c. Traverse. Issue. And the said James in fact says, that the said John did not, on the said day of in said condition specified, nor on any other day, either before or since that time, pay to the said James, the said sum of 201. which he the said John ought to have paid to the said James, upon that day; and hereof he puts himself on the country for trial and the plaintiff likewise. Jury awarded. Verdict. Wherefore, let a jury come, who are neither of kin to the plaintiff or defendant, to rec- ognize between the said parties, on the issues aforesaid; and afterwards, to wit, at the same county court, holden at Rutland, within and for the county of Rutland, on the said third Tuesday of November, in the year of our Lord 1791, come the jurors of the jury abovementioned, to wit, (here, in making up the record, the names of the jurors are to 46 be inserted) good and lawful men of the county of Rutland aforesaid, and be- ing tried, *are sworn upon that jury, *247 to give a true verdict of the matters aforesaid, who. upon their oaths, say, they find for the plaintiff to recover of the defend- ant the sum of 401. lawful money for his damages, and to recover his costs. Judgment. Whereupon it is considered by the court here, that the plaintiff recover of the defend- ant, the aforesaid sum of 401. lawful money, damages, and his cost, by the court here taxed at .4-10-6', and thereof he may have execu- tion. SCIBE FACIAS AGAINST BAIL, ON MESNE PROCESS. Alsted, vs. Goodman & Jeykil. RUTLAND COUNTY. Whereas Abel Alsted, of Claredon, in the county of Rutland, heretofore, to wit, at Rut- land in said county, on the 24th day of Octo- ber, in the year of our Lord 1791, took out a writ of attachment against Peter Penniless, of Pittsford, in said county, at the suit of him the said *Abel, in an action of *248 the case, on promises, demanding dam- ages the sum of 501. which said writ was signed by N. O. then and still clerk of the county court for the county of Rutland afore- said, bearing date the day and year last afore- said, and made returnable to the county court, then next to be holden at Rutland, in for said county of Rutland, on the 3d day of November, in the year of our Lord 1791; and the said Abel delivered the same writ to Jonathan Bell, then and still sheriff of said county, to serve and return according to law; and afterwards, to wit, on the day and year last aforesaid, the said Jonathan Bell, sheriff as aforesaid, thereon arrested and took the body of the said Peter, at the aforesaid suit of the said Abel; and the said Peter being so arrested, and in custody of the said Jonathan Bell, sheriff as aforesaid, George Goodman and Justus Jeykil, both of said Pittsford, became bail and sureties for the said Peter, that he should appear in said suit of *the said Abel as aforesaid, and re- *249 spond the judgment, which should be therein obtained, if any, by endorsing their names, severally, with their own hands, on the back of said writ, according to the form and effect of the statute in such case made and provided; and the said writ, being le- gally returned to said county court, holden at Rutland, in and for the county of Rut- land aforesaid, the said suit was continued until the county court held at Rutland, in and for the county aforesaid, on the day of March, in the year of our Lord 1792, at which court the said Abel, then and there, by the consideration and judgment of the said court, recovered against the said Peter, in the suit aforesaid, the sum of 401. for his damages, and the sum of .4-10 for his costs N. CHIP. APPENDIX. 249 in and about his said suit; and afterward, to wit, on the 25th day of March, in the year of our Lord 1792, and within 30 days after the rendering of the judgment aforesaid, the said Abel prayed out his writ of execu- *250 *tion on said judgment, against the said Peter, dated the day and year last aforesaid, and signed by N. O. clerk of said court, returnable within 60 days from the date last aforesaid, and delivered the same writ of execution to Jonathan Bell, then and still sheriff of said county, to levy, serve, and return, according to law; and afterwards to wit, at Rutland aforesaid, on the 10th day of May, in the year of our Lord 1792, and within sixty days next after the rendering of the judgment aforesaid, the said Jonathan Bell, sheriff as aforesaid, returned the said writ of execution into the office of the clerk of said county court, with a return legally thereon endorsed, that he could find neither body nor estate of the said Peter, within his county, wherewith to satisfy said writ of ex- ecution; and the judgment aforesaid yet re- mains in full force, not reversed, annulled, set aside, or in any wise paid or satisfied to the said Abel; whereof the said Abel hath supplicated a proper remedy to be provided for him in that behalf. *251 *To the end, therefore, that justice may be done, you are hereby required, &c. to make known to the said George Good- man and Justus Jeykil, that they be before the county court, next to be holden at Rut- land, in and for the county of Rutland, on the day of November, in the present year of our Lord 1792, to shew cause, if any they have, wherefore the said Abel should not have execution against them for his dam- ages, (or debt, as the case may be) and cost as aforesaid, according to the form, force, and effect of the statute in such case made and provided; and farther to do and receive that, which the said court shall then consider of them in this behalf: hereof fail not &c. Dated at Rutland, this 5th day of June, in the year of our Lord 1792. E. M. Judge. *252 *PLEA TO THE ABOVE, THAT THE BAIL RENDERED THE BODY OF THE PRINCIPAL IN COURT. And now the said George Goodman and Justus Jeykil, by II. their attorney, come into court here, plead and say, that the said Abel ought not to have execution against them for his damages and cost aforesaid, be- cause they say, that after the said George and Justus became sureties for the appear- ance of the said Peter, as in the said writ of scire facias of the said Abel is supposed, and before the rendering of judgment against the said Peter in the suit of the said Abel as aforesaid, to wit, at a county court holden at Rutland, in and for the county of Rutland, on the 3d day of November, in the year of our Lord 1791, the said George and Justus did, setting the said court, render up the N. CHIP. body of the said Peter in said court, in dis- charge of themselves, as sureties for the ap- pearance of the said Peter, in the aforesaid suit of the said Abel; and the said Peter was, by the order of said court, *then *253 and there received into custody of an officer of said court, on the aforesaid suit of the said Abel, and a record of the said render made in said court; as by the records and proceedings of the said court here may more fully appear, and this they are ready to verify ; wherefore they pray judgment, whether the said Abel ought to have execution against them for his damages and costs aforesaid. DECLARATION ON A PRISON BOND, BY THE ASSIGNEE OF THE SHERIFF. Simon Sears vs. Richard Roe. to answer to Simon Sears, of Rut- land in the county of Rutland, assignee of J. B. sheriff of said county, in a plea, that to the said Simon the said Richard Roe render the sum of 1001. lawful money, which he owes and unjustly detains, for this, to wit, that, whereas, at a county court holden at Rutland, in and for the county of *Rutland, on the 3d day of November, *254 in the year of our Lord 1791, the said Simon, by the consideration of said court, re- covered judgment against Timothy Rolls, of Ira, in said county, for the sum of 501. lawful money, for his damages which he had sus- tained by reason of the non-performance of certain promises, and for the sum of .4-10-6 for his costs, in and about his suit in that behalf laid out and expended; and after- wards, to wit, at Rutland aforesaid, on the 25th day of November, in the year of our Lord 1791, aforesaid, the said Simon took out a writ of execution against the said Tim- othy, in due form of law, on the judgment aforesaid, dated the day and year last afore- said, signed by N. O. clerk of said court, and returnable within 60 days from the date aforesaid, and delivered said writ of execu- tion to J. B. then and still sheriff of said county, to levy, serve, and return, according to law; and afterwards, to wit, at Rutland aforesaid, on the 2d day of January, in the year of our *Lord 1792, the said *255 J. B. then being sheriff as aforesaid, for want of goods and estate of the said Tim- othy, whereof to levy the debt aforesaid, by virtue of said writ of execution, and accord- ing to the precept thereof, arrested and took the body of the said Timothy, and him com- mitted to the gaol of said county, within the said prison, until he should pay and satisfy to the said Simon, his damages and costs aforesaid, as by the said writ he was com- manded; the said J. B. then and still being, by virtue of his said office of sheriff of said county, keeper of the. aforesaid prison; and the said Timothy being so imprisoned, in the custody of said sheriff, within said prison, for the debt of the said Simon, as aforesaid, was afterward, to wit, at Rutland aforesaid, 47 255 . CHIPMAN'S REPORTS. on the day and year last, aforesaid, admitted to the liberties of said prison, by the sheriff aforesaid, and on that occasion, and as secu- rity for the said Timothy to indemnify the said sheriff, against any escape, or *256 other unlawful act of the said *Simon, whereby the said sheriff should be sub- jected to damages, by reason of the said Tim- othy being admitted to the liberties of the prison as aforesaid, the said Richard, by his certain writing obligatory, signed with his hand, and sealed with his seal (and ready to be shewn to the court) the date whereof is the same day and year last aforesaid, became holden, and firmly bound, to the said J. B. then, and still sheriff, as aforesaid, in the sum of 1001. lawful money, to be paid to the said sheriff, or to his assigns, when he should be afterwards thereunto requested, under the following condition: If the said Richard should indemnify and save harmless, the said sheriff, against any escape of the said Tim- othy, then a prisoner, for the cause aforesaid, and against any other unlawful act of the said Timothy, whereby the said sheriff might be subjected to damages in the premises, by occasion of the said Timothy being admitted to the liberties of the said prison, as *257 aforesaid, *then the said writing obli- gatory, to be void, otherwise of force; as by the said writing obligatory, and the condition thereof, (relation thereto being had) will more fully, and at large appear; and the said Simon saith, that after the admission of the said Timothy to the liberties of the prison as aforesaid, and after the making of the said writing obligatory, to the said sheriff, by the said Richard, as aforesaid, to wit, at Rut- land, aforesaid, on the 10th day of January, in the year of our Lord 1792, the said Tim- othy, having never paid to the said Simon his debt, as aforesaid, nor been, in any way, legally liberated or discharged from his im- prisonment, aforesaid, for the debt of the said Timothy, as aforesaid, did escape from the said prison, and the liberties thereof, and go at large, whether he would; whereby the said sheriff became liable, to pay to the said Simon, his debt aforesaid, for which the said Timothy was committed to prison, as aforesaid, and was thereby subjected *258 *to loss and damage; by reason whereof, the writing obligatory, afore- said, became forfeited. And, whereas the said J. B. so being sheriff, as aforesaid, aft- erwards, and before the payment, of the said 1001. contained in the said writing obligatory, or any part thereof, to wit, on the 5th day of February, in the year of our Lord 1792, at Rutland aforesaid, at the request of the said Simon, the creditor, for whose debt the said Timothy was committed to prison, as afore- said, according to the form, force, and effect of the statute in such case made and pro- vided, in due manner, assign and set over the said writing obligatory, to the said Simon, by writing, under the hand and seal of the said sheriff, endorsed on the said writing 48 obligatory, as by the said assignment en- dorsed on the said writing obligatory, and ready to be shewn to the court, the date whereof is the day and year last aforesaid, more fully appears; by reason of which said premises, and by force of *the *259 statute in such case made and provided, an action hath accrued to the said Simon, as assignee of the said J. B. sheriff, as afore- said, to have and recover of the said Richard, the aforesaid sum of 1001. yet the said Rich- ard, although often thereto requested, and demanded, hath never paid the said sum of 1001. or any part thereof, to the said sheriff, before the said assignment, or to the said Simon, since the assignment; but hitherto hath refused to pay the same to the said sher- iff, or to the said Simon, and still doth refuse to pay the same to the said Simon, to his damage, &c. SPECIAL PLEA TO THE FOREGOING DECLAR- ATION. And now the said Richard Roe, by S H his attorney in court, here pleads and says, that the said Simon, from having and maintain- ing his said action, thereof against him the said Richard, ought to be barred, because he says, that, after the commitment of the said Timothy, to the said prison, for the *debt of the said Simon, as aforesaid, *260 and after the making of the said writ- ing obligatory, by the said Richard, as afore- said, the said Timothy having at all times then before kept within the liberties of said prison, to wit, on the 10th day of January, in the year of our Lord 1792, the said Simon, with intent wrongfully to charge the said Richard with the said debt did, at Rutland aforesaid, persuade, entice, and procure, the said Timothy to go at large out of the liber- ties of said prison, and the said Timothy, to wit, at Rutland aforesaid, on the day and year last aforesaid, did, by the enticement, persuasion, procurement, and consent of the said Simon, go at large, out of the liberties of the prison aforesaid; which is the same going at large, and supposed escape of the said Timothy, in the declaration of the said Simon above all edged, & this he is ready to verify; wherefore he prays judgment, if the said Simon, from having and maintaining his said action against him, ought not to be barred. *RECOGNIZANCE OF BAIL TAKEN IN *261 COURT. RUTLAND, ss. County Court, day of James Jinks, vs. John Doe. Be it remembered, That in the term of November, in the year of our Lord 1792, appeared John Doe, of Rutland, in said county, principal, and Richard Roe & Robert Lilly, of Rutland aforesaid, bail, and ac- knowledged themselves jointly and severally indebted to James Jinks, of the same place, N. CHIP. APPENDIX. 261 ** ** in the sum of 1001. lawful money, to be levied of their, and each of their goods and chattels, lands and tenements, and for want therof, on their bodies, if default be made in the condition following: The condition of the above recognizance is such, that if the defendant, John Doe, shall be condemned in the action, and sliall pay the condemnation money, or render *262 himself a prisoner on the writ *of ex- ecution thereupon to be issued, then the above recognizance to be void, otherwise of force. Taken and acknowleged jn in court, this 22d day of ** November, in the year of our Lord 1791. N. O. Clerk. BAIL-PIECE ON THE ABOVE. KUTLAND, ss. County Court, day of James Jinks, vs. John Doe. On a writ of attachment, at the suit of James Jinks, of Rutland, in said county, against John Doe, of said Rutland, in a plea of debt of 501. The bail are Richard Roe, of said Rutland, and Robert Lilly, of the same place. The party himself, and the bail, jointly and severally in the sum of 1001. Taken and acknowleged in court, the 22d day of November, in the year of our Lord 1791. N. O. Clerk. *263 *As by the laws of this State, the bail on the original writ stand in the place of special bail, and have a right, pend- ing the suit, or before judgment be rendered on the scire facias, to bring in the principal, in discharge of themselves; it is conceived, that the following will be a proper form of a Bail-piece, to be given by the sheriff, before the return of the writ, or by the clerk of the court, after the return, with some little al- teration. BAIL-PIECE BY THE SHERIFF. James Jinks, vs. John Doe. RUTLAND COUNTY, ss. On a writ of attachment, at the suit of James Jinks, of Rutland, in said county, against John Doe, of the same place, in a plea of debt of 501. returnable to the county court to be holden at Rutland, on the day of in the year of our Lord 1791. *264 "The aforesaid John Doe is arrested, and the bail are William Wise, of Clar- enden, in said county, and John Jocelin, of the same place. ^ By them endorsed on (L.S) the writ, the 2d day of October, in the year of our Lord 1791. J. B. Sheriff". N. CHIP. 4 RETURN OF AN OFFICER TO A WRIT OF EX- ECUTION LEVIED ON LAND. RUTLAND COUNTY, ss. Know all men by these pres .its, That 1 J. B. Sheriff of the county of Rutland, by virtue of the within writ of execution to me directed, and by the direction of J. W. the creditor within named, did, at in said county, on the day of in the year of our Lord 17 levy the said writ of execu- tion on a certain tract or parcel of land, shewn to me by the said J. W. as the prop- erty of B. G. the within named debtor, situ- ate, lying, and being in afore- said, and *bounded as follows, to wit. *265 Beginning (here insert the bounds of the land as set off] and afterwards, to wit, at aforesaid, on the day and year last aforesaid, I caused the same land, with the appurtenances thereof, to be appraised by P P, I N, and I S, good and lawful freehold- ers of the vicinity, chosen, appointed fc sworn as the law directs, who, on their oaths, have appraised the same at the sum of .40-10-5. lawful money, to full satisfaction of the within writ of execution, and the legal cost thereon arising, as stated in the bill hereunto annexed, and on the same day of in the year of our Lord 17 I deliv- ered possession of the above described prem- ises to the said J. W. and caused him to be- come seised thereof. In witness whereof I have hereunto subscribed my name, and affixed my seal, the day and year above contained. J. B. & *RECORD OF A CAUSE BEFORE A JUS- *266 TICE OF THE PEACE, ON A NOTE, WITH SEVERAL PLEAS OF OFFSET, AND APPEAL. On note. RUTLAND COUNTY. Be it remembered, That at a justice's court holden at Rutland, in the county of Rutland, on the 3d day of October, in the year of our Lord 1791, before N. O. justice of the peace for the county aforesaid, E. B. of Rutland, aforesaid, was summoned (or attached) to answer to J. S. of the same place, in an ac- tion of the case on note; Whereupon the plaintiff in court complains, that the defend- ant, in and by his certain note in writing under his hand, bearing date the 4th day of May, in the year of our Lord 1790, and now exhibited to court, promised the plaintiff, for value received, to pay to him the sum of 31. lawful money, with interest, on the Hrst day of October then next; which promise the defendant hath not performed, tho' often re- quested, to the plaintiff's damage 41. for which he brings suit. *D<'fr pica, did not promise,. *267 And the defendant in court pleads and says, that he did not promise as theplain- 49 267 N. CHIPMAN'S REPORTS. tiff hath alledged, and hereof puts himself on a jury of the country for trial. Offset 1st for money luid & received. And he further says, that the plaintiff is indebted to him in divers sums of money; for this, to wit, that on the 5th day of Janu- ary in the year of our Lord 1791, and before the commencement of the present action, the plaintiff being indebted to the defendant, in the sum of .2-5, for so much money had and received to the use of the defendant, at the instance and request of the plaintiff, he, the plaintiff, did promise to pay to the defend- ant, the said sum of 21. 5s. when he should be requested.* 2d For money laid out and expended. And also for this, that the plaintiff, on the 4th day of March, in the year of our *268 Lord 1791, and before the ""commence- ment of his, the plaintiff's, action, be- ing indebted to the defendant in the sum of 11. 2s. for so much money by the defendant laid out and expended for the use of the plaintiff, and at his request, he the plaintiff promised to pay to the defendant the said sum of 11. 2s. when thereto requested. On Note. And also, for this, that the plaintiff, in and by his certain note, under his hand, dated the 5th day of May, in the year of our Lord 1791, and now exhibited to the court, prom- ised the defendant, for value received, to pay to him fifteen shillings lawful money, on de- m;md ; which said sum was due and payable before the commencement of the plaintiff's said action. All which said sums are due and owing to the defendant, from the plain- tiff; he therefore prays the same may be set off against the plainliffs demand, and that the defendant may recover the balance there- upon due to him. *-269 *Pltf. as to the money, did promise. And the plaintiff says, that as to the 21. 5s. and 11. 2s. by the defendant above men- tioned, he acknowledges, that he did assume and promise as he hath alledged. To tJie note, did not promise. And as to the note, by the defendant above mentioned, he says, that he did not promise, and hereof puts himself on a jury of the country for trial. Pit. in offset, 1st on settled account. And he further says, that the defendant is indebted to him in divers other sums, for this, to wit, that on the first day of June, in the year of our Lord 1790, at - the plaintiff and defendant came together, com- puted and settled their book accounts, and there was found due to the plaintiff the sum of six shillings lawful money, which the de- * This form of record for a declaration or plea, will be proper in all cases where one party has in any way received money, which he ought in equity and good conscience to pay to the other. 50 fendant then and there acknowledged in writing under his hand; and being therefor liable, promised to pay the same to the plain- tiff. 2d Goods sold. And also for this, to wit, that on the 14th day *of July, in the year of our *270 Lord 1790, and before the commence- ment of the plaintiff's action, the defendant being indebted to the plaintiff, in the sum of 18s. for goods by the plaintiff sold and deliv- ered to the defendant, at his instance and re- quest, promised to pay to the plaintiff the said sum of 18s. when requested; yet he hath not performed his said promises, but the sums aforesaid are now due and owing to the plain- tiff; he therefore prays that the same may be set off against the aforesaid demands of the defendant, and he the plaintiff may recover the balance, &c. Defendant did not promise. And the defendant says, as to the several demands of the plaintiff in offset, last above mentioned, he did not promise as the defend- ant hath alledged ; and of this he puts him- self on a jury of the country for trial. Jury. Verdict. Wherefore it is awarded that a jury imme- diately come, good and lawful men of the vicinity, who are of kin neither to the plaintiff nor defendant, *for the trial *271 of the issues aforesaid, between the parties aforesaid ; and afterwards, to wit, on the same 3d day of October, 1791, come the jurors of the jury aforesaid, to wit, A M, S T, I K, P N", D S, and E L, good and law- ful men, and are sworn upon that jury, to give a true verdict between the parties afore- said; who, upon their oaths, say, that they find for the plaintiff to recover of the defend- ant, the sum of 31. lawful money, damages, and his costs: wherefore, it is adjudged by the said Justice, that the plaintiff recover of the defendant, the said sum of 31. lawful money, and the sum of 18s. for his costs in and about this suit. Appeal. And now the defendant, within two hours after the rendering of the aforesaid judgment, prays that an appeal may be granted him, in the matters aforesaid, to the county court, next to be holden at Rutland, in and for the county of Rutland, on the *day *272 of November, in the present year of our Lord 1791. It is thereupon ordered that the defendant be allowed his appeal. The defendant as principal, and W S, & I K, as sureties, recognized to the plaintiff in the sum of 201. for the prosecution of the said appeal, in due form of law. The aforegoing is a true ** copy from the record ** with a minute of the recognizance, exam- ined by N. O. Justice of Peace. N. CHIP. APPENDIX. 272 A copy of the writ should be annexed. X. B. The form used in a plea of offset, will serve as the form of a declaration in all cases of a similar nature. *273 ""TRESPASS, ASSAULT, AND BATTERY. Be it remembered, That at a Jus- tice's court, holden at Rutland, on the 10th day of May, in the year of our Lord 1792, before X O, justice of the peace for said county, A S, of said Rutland, was attached, to answer to P P, of the same place, in a plea of trespass, with force and arms, where- upon the plaintiff before the court, complains, that at Rutland aforesaid, on the 2d day of May instant, the defendant did an assault make upon the body of the plaintiff, and him beat, bruise, wound, and evilly entreat, while he the said plaintiff was in the peace of the state, and about his own business; to his damage, as he says, 41. lawful money; to re- cover which he brings suit. And on the same 10th day of May comes here the defend- ant, and says, that he is not guilty, as the plaintiff against him hath alledged, and of this he submits to the said justice for *274 trial, and the plaintiff *doth the same. Whereupon the said justice having duly heard and considered the proofs and al- legations of said parties, finds that the de- fendant is not guilty, as the plaintiff hath alledged, and therefore adjudges that the de- fendant be thereof acquitted, and that he re- cover of the plaintiff, his costs in and about this suit by him expended, taxed by the said justice at 15s. and thereof he may have exe- cution. N. O. Just, of peace. ACTION ON BOOK ACCOUNT. Be it remembered, That at a justice's court, holden at Rutland, in the county of Rutland, on the 4th day of June, in the year of our Lord 1791, before N O, justice of the peace for said county, D H, of Pittsford, in said county was summoned to answer to M P, of Rutland aforesaid, in an action on book ac- count, whereupon the plaintiff, here in court complains, that before the 24th day of May, last past, the defendant was indebt- *275 *ed to the plaintiff on book, to balance book accounts, the sum of 31. lawful money, which he has never paid, to the plain- tiff's damage 41. And the defendant here in court says, that he does not owe the plaintiff as he hath al- ledged, and he further says, that there is subsisting between the plaintiff and defend- ant mutual accounts, yet unsettled, lie there- fore prays that the same may be tried by a jury of the country: wherefore, it is ordered that a jury immediately come, good and law- ful men of the country, who are of kin neither to the plaintiff nor to the defendant, to rec- ognize between the said parties in the mat- ters aforesaid. Afterwards, to wit, on the N. CHIP. same 4th day of June, in the year of our Lord 1792 aforesaid, come the jurors of the jury aforesaid, to wit, A R, &c. good and lawful men, and are sworn upon that jury, to give a true verdict between the parties aforesaid, who upon their oaths say, that the defendant is indebted to the plaintiff, the sum of *10s. to balance their book *276 accounts, they therefore find for the plaintiff to recover of the defendant, the aforesaid sum of 10s. lawful money and his costs. "Whereupon it is adjudged and or- dered, by the said justice, that the plaintiff recover of the defendant, the aforesaid sum of 10s. and his costs, taxed at 18s. lawful money, and thereof he may have execution. N. O. Justice of peace. ON NOTE, THE DEFENDANT BEING OUT OP THE STATE. RUTLAND COUNTY. Be it remembered, That at a justice's court, holden at Rutland, in the county of Rutland, on the 7th day of August, in the year of our Lord 1791, C D, of was by his prop- erty attached to answer to A S, in an action on note, whereupon the plaintiff here in court complains, that the defendant in and by his certain note in writing, under his hand, dated the 27th day of April, in the year of our *Lord 1790, and now *277 exhibited to the court, promised the plaintiff to pay to him, for value received, the sum of 21. 4s. lawful money on demand, with interest; yet the defendant hath never performed his said promise, to the plaintiff's damage as he saith, the sum of 31. to recover which he brings suit. And because it appears to the said justice here, that the defendant at the time of serv- ing the writ of the plaintiff in this action, was absent out this state, and hath not re- turned within the same, since that time, it is therefore ordered that this court, with the action aforesaid, be adjourned until the 30th day of this instant August, at 2 of the clock, after noon of said day, at this place ; at which day comes the plaintiff, and because the said defendant hath not returned within this state, and it doth not appear that the said defendant hath had any notice of the plain- tiff's said action, commenced against the de- fendant as aforesaid; it is therefore ordered that this court, with *lhe ac- *278 tion aforesaid, be fuither adjourned, until the 25th day of September now next, at 2 of the clock afternoon of said day, at this place; at which day comes the plaintiff, and the defendant being three times solemnly called, doth not come, but thereof maketh default; whereupon it is adjudged and or- dered by said justice, that the plaintiff re- cover of the defendant the sum of 21. 9s. damages, and the sum of H.vG for his costs, and hereof he may have execution. N. O. Justice of peace. 51 278 N. CHIPMAN'S REPORTS. THE DECLARATION IN TROVER IS, BY REASON OF THE FICTION, TOO INTRICATE TO BE IN- TRODUCED INTO JUSTICES RECORDS. IT IS CONCEIVED THAT THE FOLLOWING FORM, WHICH CONTAINS THE SUBSTANTIAL PART OF THE PLKADINGS IN THAT ACTION, MAY WELL BE ADOPTED. RUTLAND COUNTY. Be it remembered, That at a justice's court, holden at Rutland, in the county of Rutland, on the 17th day of Novem- *279 ber, *in the year of our Lord 1791, be- fore N O, justice of the peace for said county, John Brian, of said Rutland, was summoned to answer to James Morey, of the same place, in an action on the case; where- upon the plaintiff here in court complains, that at Rutland aforesaid, on the 23d day of October last past, the defendant took and de- tained from the plaintiff, one certain two- year-old steer, of a red colour, the property of the plaintiff, of the price and value of 31. and did, at Itutland aforesaid, on the day and year last aforesaid, without law or rjght, convert the steer aforesaid to the defendant's use to the plaintiff's damage, as he says, 31. to recover which, he brings suit. And the defendant, because he is not pre- pared for his defence in that behalf, prays that this action may be adjourned until the 25th day of instant November; Whereupon it is ordered by the said justice, that this court, with the said action, be ad- *280 journed until the 25th day *of instant November, at 9 of the clock in the forenoon of said day, at this place. And the same time is given to the parties aforesaid. At which day come the said parties, and the defendant pleads and says, that he is not guilty as the plaintiff hath alledged, and hereof puts himself on a jury of the country for trial; wherefore it is awarded that a jury immediately come, &c. RECOGNIZANCE IN AN APPEAL, CERTIFIED AT LARGE. [See p. 272. ante.] RUTLAND COUNTY. Be it remembered, That on the 3d day of October, in the year of our Lord 1791, before N O, justice ot the peace for the county aforesaid, personally appeared E B, of Rut- land, in said county, principal, and J G, and S F, of the same place, sureties, and acknowl- eged themselves jointly and severally in- debted to J S, of said Rutland, in the sum of 201. lawful money, to be levied of their, and each of their goods and chattels, lands *281 and te*nements; and for want thereof, on their bodies, if default be made in the condition following: The condition of the above recognizance is such, that if the said E B, shall prosecute his appeal now prayed out against J S, to effect, and answer and pay all intervening damages occasioned by reason of the delay, to the said E B, with additional costs, in case 52 judgment be affirmed, then this recognizance to be void, otherwise of force. Taken and acknowleged xx this 3d day of October, ** in the year of our Lord, 1791, before N O, Justice of Peace. A RECOGNIZANCE TO BE SENT UP BY A JUS- TICE OF THE PEACE, IN A CRIMINAL PROS- ECUTION. RUTLAND COUNTY. Be it remembered, That on the 24th day of June, in the year of our Lord 1792, before N O, *justice of peace for the *282 county of Rutland, personally appeared L I, of Rutland, in said county, principal, and E P, and J O, of the same place, sure- ties, and acknowledge themselves jointly and severally indebted to the Treasurer of the State of Vermont, in the sum of 5001. lawful money, to be levied of their, and each of their goods and chattels, lands and tene- ments; and for want thereof, on their bodies, if default be made in the condition follow- ing: The condition of the above recognizance is such, that if the above named L I, charged before me, with having counterfeited, and assisted in counterfeiting the current coins of this State of Vermont, shall make his per- sonal appearance before the supreme court, to be holden at Rutland, in and for the county of Rutland, on the 2d Tuesday of August now next, and answer to the matters and things, which shall then and there be objected to him in this behalf, shall abide the order of the said supreme *court, and *283 not depart without leave of the same, then tins recognizance to be void, otherwise of effect. Taken and acknowleged ,,.* this 4th day of August, ** in the year of our Lord 1791, before N O, Justice of Peace. RECOGNIZANCE FOR A WITNESS TO APPEAR AND TESTIFY. RUTLAND COUNTY. Be it remembered, That on the 24th day of June, in the year of our Lord 1792, before N O, justice of the peace for the county of Rutland, personally appeared T T, of Rut- land, in said county, and acknowleged him- self indebted to the Treasurer of the State of Vermont, in the sum of 301. lawful money, to be levied of his goods and chattels, lands and tenements, and for want thereof, on his body, if default be made in the condition fol- lowing: *The condition of the above recog- *284 nizance is such, that if the above named T T, shall appear before the supreme court to be holden at Rutland, in and for the county of Rutland, on the 2d Tuesday of Au- N. CHIP. APPENDIX. 284 gust now next, to testify his knowlege in a certain prosecution in behalf of the (State of Vermont against L J, of and shall not depart without the leave of said court, then this recognizance to be void, otherwise of force. Taken and acknowleged . this 24th day of June, ** in the year of our Lord 1792, before N O, Justice of Peace. RECORD OF A CRIMINAL PROSECUTION BE- FORE A JUSTICE OF THE PEACE. State of Vermont, vs. CD. RUTLAND COUNTY. Be it remembered, That at a justice's court, holden at Rutland, in the county of Rutland, on the 16th dav of February, in the *285 year of our Lord 1792, before *N O, justice of the peace for said county, C D, of was brought to answer to complaint exhibited to the said justice by A K, one of the grandjurors for said county, who complains, that at Rutland aforesaid, on the 12th day of February instant, the said C D, did, with force and arms, an assault make, upon the body of one I P, of said Rut- land, the said I P, then being in the peace of the state, and about his own lawful business, and did then and there beat, bruise, wound and evilly entreat the said I P, and other wrong, then and there did against the peace and dignity of the state; and the said C D, being put to answer to said complaint, pleads and says, that he is not guilty, and puts him- self on a jury of the country for trial ; where- fore it is awarded", that a jury immediately come, good and lawful men of the vicinity, to make deliverance between the State of Vermont, and the said C D. And after- wards, to wit, at Rutland aforesaid, on *286 the same 16th day *of February afore- said, come the jurors of the jury above mentioned, to wit, A, B, &c. good and law- ful men of the vicinity, and are sworn on that jury to make true deliverance between the State of Vermont, and the said C D; who, on their oaths, say, that the said C D is guilty of the facts charged against him in said com- plaint. Wherefore the said justice doth ad- judge and sentence the said C D, to pay a fine of 15d. lawful money to the treasurer of the said town of Rutland, and costs of this prosecution, taxed at 19s. and to stand com- mitted until he have complied with said sen- tence. N O, justice of peace. WARRANT OF COMMITMENT ON THE ABOVE SENTENCE. To the sheriff &c. RUTLAND COUNTY. Whereas C. D. of was, on the com- plaint of A B, one of the grandjurors *287 for said county, this 16th day of * Feb- ruary, in the year of our Lord 1792, before one N O, Justice of the Peace for said N. CHIP. county, duly convicted of an assault and bat- tery on the body of one I P, of Rutland, in said county, and was thereupon sentenced to pay a fine of 16s. lawful money to the Treas- urer of the town of Rutland aforesaid, and the sum of 19s. costs of prosecution, and the said C D, having neglected and refused to perform said sentence. These are therefore, By the authority of the state of Vermont to command you to take the body of the said C D, and him commit to the keeper of the gaol in said Rutland, within the said prison, who is hereby commanded to receive the said C D, and him keep in safe and close custody, until he pay to the treasurer aforesaid the said sums being 11. lawful money in the whole, and for this warrant, together with the cost of this commitment, and his own fees, or until the said C D, be otherwise discharged by due course of *law. *288 Hereof you may not fail of this precept and your doing herein make due returns to me according to law. Given under my hand at Rutland, this IQth day of Febmary, in the year of our Lord 1792. N O, justice of the Peace. WARRANT OF COMMITMENT FOR NOT FIND- ING SURETIES. To the sheriff &c. RUTLAND COUNTY. Whereas at Rutland, in the county of Rut- land, on the 24th day of June, in the year of our Lord 1792, L I, of said Rutland, was on a charge of having added and assisted in counterfeiting the current coin of this state, by me N O, justice of the peace for the said county, ordered to find good and sufficient sureties, for his appearance before the su- preme court, next to be holden at Rutland, in and for said county, on the 2d Tuesday of August, in the year of our Lord 1792, to answer to matters and *things, *289 which should then and there be ob- jected to him in that behalf; and the said L I, having neglected and refused to find sureties for his appearance aforesaid. These are therefore, By the authority of the State of Vermont, to command you to take the body of the said L I, and him commit to the keeper of the gaol in said Rutland, within the said prison, who is hereby commanded to receive the said L I, and him keep in safe and close custody, so that he be had to appear before the said supreme court to be holden at Hut- land aforesaid, on the 3d Tuesday of August aforesaid, or until he find good and sufiicient sureties for his appearance as aforesaid, or be otherwise discharged by due course of law. Of your duty herein fail not. Make due return of this precept according to law. Qiven under my hand at Rutland, the 25M day of June, in the year of our Lord 1792. 2V O, Justice of peace. * 63 A TABLE OF THE PRINCIPAL MATTERS CONTAINED IN THE REPORTS. *290 *ASSUMPSIT. Where the plaintiff might have had trover, for a note in the hands of the defendant; if the note be sold, he may have assumpsit for the money. Wier v. Church, 98. AUTHORITY. A person acting under authority, must pur- sue that authority Cannot act by virtue of his authority, and in his private capacity, in the same instrument. Lyon v. Ide, 52. BURGLARY. Indictment for burglary quashed, for want of a noctantur. State v. Mather, 32. CITATION. A citation to appear in the supreme court, must be signed by a judge. Parker v. Par- ker, 27. COLLECTOR. A collector of proprietors taxes has a naked power to sell the delinquent's land, but no in- terest in the land. He must pursue his power strictly, and give all previous notices required by law, or his sales are void. Under/till v. Smith, 82. CONDITION. If from the nature of the transaction, for- bearance to do a certain act, on the one part, be necessary to render a performance of any avail, or even possible, on the other; it must, tho' not expresly mentioned, be considered a condition precedent. Wier v. Church, 97. DIVISION. See Partition. EJECTMENT. Though the lease be a fiction, it must by pos Bibility, be a good subsisting lease, at the time of commencing the action, at the time of the supposed ouster, and at the supposed time of making the lease. Shaltuck v. Tucker, 71. If before the bringing of the action, the les- sor have conveyed in fee to the plaintiff, the lessee in the action, the lease is merged. S. C. 73. The plaintiff in ejectment is merely nominal. The interest belongs to the lessor. S. C. 73. The operation of the lease is not confessed by the rule. Douglass v. Spooner, 74. The plaintiff cannot demand on a lease, and recover in fee. . C. 75. *291 ELECTION. The 31st section of the constitution, that elec- tions shall be by ballot, does not extend to the election of town officers. State v. Marsh, 20. ENDORSER AND ENDORSEE. In an action against an endorser of a note, evidence was admitted to prove the purpose of the endorsement; and that the note, on which the defendant's name had been endorsed for a certain end, was paid and taken up by one Grant, executor in his own wrong on the estate of Parker, the maker that Grant had sold the note to J. G. J. G. to the plaintiff, who filled up the endorsement to himself. Rhodes v. Ris- ley, 84. - No custom has prevailed in this State, to bind the endorser contrary to agreement at the time. S. C. 89. If the endorsee make any use of the endorse- ment, contrary to agreement, he is answerable in damages. <$. C. 89. An inconsistency in the case of Moses and Macpharlan, that the same evidence which was deemed insufficient to free the endorser from payment of the money, should be held suffi- cient to recover back the same money. S. C. 92. On principles, if C take a note of B, endorsed by A, he must trust to B for the right which he may have against A. S. C. 92. ESCAPE. In an action for an escape, on mesne process, the whole debt was given in damages. Before the court rendered judgment, they directed the plaintiff to enter a rule to allow the officer the benefit of the former judgment. Oliver v. Chamberlain, 26. EVIDENCE. On a trial for adultery, reputation of a mar- riage cannot be admitted in evidence; other- wise in an action for crim. con. State v. An- nice. 10. Proprietors records may be prima facie evi- dence, that a proprietors'meeting was legally warned; but is not as conclusive as other evi- dence. ATKewiev. Putney, 11. Proprietary division cannot be proved by witnesses. &'. C. 13. EXECUTION. Money collected on execution, is not attach- able in the hands of an officer. Conant v. Dick- nell, 67. If an officer deliver property taken by execu- tion, on receit, he does not wholly depart with his lien AV/vw/t v. llvrey, rfv. 80. If the property taken by execution prove in- sufficient, a second levy may be made. '. C. 79. To eloign the property receipted, is not a rescue; but to some purposes, has the same ef- fect It renders the execution ineffectual. S. C, 80. FOREIGN JUDGMENT. Foreign judgment by default impeached. Mvddard v. Allen. 44. N. C HIP. 291 INDEX. FRAUD. Where a claimant by prior deed, was know- ing to a second purchase, a witness to the sec- ond deed, &c. and concealed his claim, it is a fraud. Item v. Chandler, 62. A deed first recorded may be postponed by reason of fraud. Fraud, if proved, invalidates as well at law, as in equity. Ludlow v. Gill, 65. If a subsequent purchaser have notice, that the equitable title is in another, his purchase, as against that title, is fraudulent and void, though his deed be first recorded. S. C. 65. GAOL BOND. An action on a bond for the liberties of the prison, was brought by the assignee of the sheriff. Defendant plead, that the bond *292 was taken for other things than *the law allows, to wit, for the prisoner's good behavior, diet, and that he should not depart without leave of the sheriff. &c. Lyon v. Ide, 49. The end of the bond is to indemnify the sheriff. S. C. 52. The prisoner cannot be obliged to take his diet of the sheriff or gaoler. S. C'. 53. Bonds for ease or favor void. >. C. 53. An officer is punishable for taking more than legal fees, and all agreements for that purpose are void. 8. C. 54. Such bond totally bad. S. C. 56. GRANTS. Acceptance and acquiescence under a second grant, may be proved without deed. Paine & Morris v. Smead, 102. Decision in this case to be made agreeably to the law in force at the time of the grant, which was the common law of England. S. C. 104. Grants made by authority of the Crown, are to be considered as Royal grants. S. C. 104. The King was considered as the ultimate owner of all lands. S. C. 105. *293 *ORDER. An agreement to pay an order to be drawn, shall bind after the draft be made, and in the manner agreed. Havens v. Griffin, 43. PARTITION. Partition among proprietors of townships, must be either by deed, or in the way prescribed by statute. M'Kenzie v. Putney, 13. PAUPERS. The provision made by our law for the relief of the poor, is a charitable provision. Select- men, of Bennington v. M' Gennes, 47. A pauper is not holden to refund money ad- vanced by the town for his relief. S. C. 48. POOR PRISONERS. The statute by which poor prisoners confined for debt, may obtain a discharge, is in deroga- 56 tion of the common law right of the creditor; and is not in a law sense remedial. Paine v. Ely, 19, 20. The jurisdiction of the justices in the case of poor prisoners, is in derogation of the jurisdic- tion of the common law courts, and is to be taken strictly. S. C. 20. The mode prescribed by the statute must be strictly pursued. /S'. C. 21. Citation to the creditor must be issued by the same justices, or one of them, to whom appli- cation was made by the debtor. S. C. 22. The hearing must be before the justices who issued the citation. S. C. 23. For one justice to issue a citation for the creditor to appear before other justices, is ir- regular. 8. C. 24. Erroneous process is valid, till reversed; ir- regular process is void from the beginning. S. G. 24. Every man, who procures a process in his favor, must see that it is regular at his peril. S. C. 25. PURCHASER. A bona fide purchaser, without notice, shall not be affected by the fraud of his vendor. Morrison & Freeman v. Shalluck, &c. 39. Purchasers are not in all respects representa- tives of the vendor; they have no personal right to demand satisfaction for a fraud upon their vendor. 8. C. 41. RECOGNIZANCE. Debt will not lie on an implied covenant in the condition, to prosecute a certiorari, &c. Clark v. Campbell, 60. *SURETY. *294 In a case of a bond for the liberty of the prison, no excuse can be admitted for the surety which would not equally avail the principal. Paine v. Ely, &c. 25. TITLE. If there be no title at the time of commenc- ing an ejectment, it cannot be aided by any subsequent act. M'Kenzie v. Putney, 13. WARRANTY. To support an action on the covenant of warranty in a deed of conveyance, there must have been an eviction, or some disturbance tantamount. Rich v. Wait, 68. WITNESS. On trial for adultery, one charged to be a particeps, was not allowed to testify. State v. Annice, 9. In a suit by a town, a selectman named plain- tiff in the writ, was not allowed to testify. Se- lectmen of Bennington v. M' Gennes, 46. N. CHIP. CONTENTS OF THE DISSERTATIONS. DISSERTATION I. On the statute adopting the common law.. 117 Common law what 118 How learnt adopted under restrictions. . . 119 How far applicable in this State 121 Precedents how to be regarded 123 Principles of the British government their influence on its jurisprudence 131 Principles of the government of this State different 133 Lord Mansfield's opinion of the common law 136 The statute adopts principles rather than precedents 137 2d Section, adopting the statute laws, &c.. 138 DISSERTATION II. Intention of the statute 142 Species of conveyances contemplated 143 On the statute of conveyances 144 Requisites of a deed of conveyance 145 Authority to grant 148 Exception of persons incapable 149 Conveyance by power 150 Acknowledgement and its effect 152 Operation of a deed authenticated accord- ing to the statute 154 Livery what 155 Attornment 156 *295 *Operation of the first section 157 2d Section Conveyances not valid, unless 159 Question of construction 160 Subsequent purchaser without notice 160 with notice 162 Prior purchaser concealing his title 164 What estates are comprehended in the statute 165 DISSERTATION III. On the statute of offsets 167 N. CHIP. * What demands may be set off 168 Must be in the same right 171 Accounts 174 Contracts not due 175 Endorsed notes and bills 176 DISSERTATION IV. On the negotiability of notes 181 Brief view of the British law on the same subject 182 Considered on principles 194 Negotiability not established at common law .' 196 Contract explained 197 Endorsee entitled according to the tenor of the contract 198 Maker has given power to appoint the pay- ment 199 Analogy to the case of an agent 200 Maker holden as an accepter 201 Defence against the endorsee 204 Endorser how far holden to warrant 206 Endorsee must use due diligence 207 Case between endorser and endorsee 208 General and restricted endorsements 209 Blank endorsements 211 *Case between the endorsee and the *296 maker 216 Payment before notice of the endorsement 217 Note obtained by fraud. &c 220 Note given for money lent to game with, holden to be void in the hands of an en- dorsee, by the 9 Ann 221 Less favorable than the case of previous payment 222 No one ought to be benefited by his own fraud 223 Note payable to bearer, within the same reason as those payable to order 224 More subject to fraud 224 May be remedied by endorsement 225 57 INDEX TO THE APPENDIX. Rules of the supreme court 227 Record of a cause in the county court with several pleas of offset, bar, &c 231 Kcire facias against bail with a special plea 247 Declaration by assignee on prison bond. . . 253 Special plea to the same 259 Recognizance of Bail, and bail piece. . .26163 Levy of execution on land 264 N. CHIP. Record before a justice on note, with pleas of offset, 266 Trespass, 273 On book, 274 On note, defendant out of the state, 276 Trover, 278 Recognizance in appeal, 280 For a delinquent's appearance, 281 Wit- ness to appear, 283 Criminal prosecution, 284 Commitment, 286. 59-