T
^^
THE
CONNECTICUT CIVIL OFFICER,
IN THREE PARTS.
PART I. CONTAINING THE POWERS AND DUTIES OP
JUSTICES OF THE PEACE.
PART II. CONTAINING THE POWERS AND DUTIES OF
CONSTABLES.
PART III. CONTAINING THE POWERS AND DUTIES O>
SELECT MEN ;
WITH SUITABLE AND APPROVED FORMS FOR EACH.
TOGETHER WITH NUMEROUS LEGAL FORMS, OF COMMON USE,
AND GENERAL CONVENIENCE.
BY JOHN M. NILES, ESQ.
Atsotiate Judge of the County Court for Hartford County.
HARTFORD,
HUNTINGTON & HOPKINS.
1823.
DISTRICT OF CONNECTICUT, ss.
BE IT REMEMBERED, That on the second day of January,
L. S. in the forty-seventh year of the Independence of the Uni-
ted States of America, HUNTING-TON & HOPKINS, of the
said district, have deposited in this office the title of a book, the
right whereof they claim as proprietors, in the words following
to wit : " The Connecticut Civil Officer, in three parts Part I.
' containing the powers and duties of Justices of the Peace Part
' II. containing the powers and duties of Constables Part III.
' containing the powers and duties of Select-men ; with suitable
' and approved forms for each. Together with numerous legal
' forms, of common use, and general convenience. By JOH> M:
' NILES, Esq. Associate Judge of the county court for Hartford
' county." In conformity to the Act of the Congress of the Uni-
ted States, entitled "An Act for the encouragement of learning,
by securing the copies of Maps, Charts, and Books, to the au-
thors and proprietors of such copies, during the times therein
mentioned."
CHARLES A. INGERSOLL,
Clerk of the District of Connecticut.
A H. copy of Recara,
Clerk of the District of Connecticut.
PREFACE.
THE delay in the publication of this work has been occa-
sioned by a partial relinquishment of the undertaking, on the
part of the publishers, soon after the original proposals were
issued, which was the result of circumstances, not necessa-
ry to be disclosed ; and in consequence of which, the work
was not commenced until a few months since, within which
period it has been prepared for the press, in the time that
the author could spare from other avocations. This fact is
mentioned to shew the cause of the delay, which may have
occasioned disappointment to subscribers, and seem to re-
quire some explanation, and not to claim indulgence towards
the work for any deficiences or errors it may contain, as
the haste with which it has been compiled can afford no
excuse for its faults.
I have been fully sensible that accuracy and simplicity
constitute the principal value of a publication of this de-
scription, and have bestowed upon it that degree ofcare and
attention, which I trust will render it a safe guide to those
officers for whose use and convenience it is intended.
Whilst I have endeavoured to supply all forms, deemed
necessary, in the discharge of the official duties, both of
Justices of the Peace and Constables, these constitute but a
small part of the work. To give forms without directions
as to the use of them, would be in some measure like put-
ting the tools of a mechanic into the hands of a person wholly
unacquainted with the art or trade in which they are to be
used.
It has been my intention to make this work a directory
and manual, to Justices of the Peace and Constables, in the
discharge of their various and often important duties : how
far I have succeeded in this, I submit to the public.
With respect to Justices of the Peace, I have aimed to
specify their numerous official acts, both of a ministerial and
judicial nature, and to give directions for their proceedings
in both civil and criminal matters, connected with suitable
forms, and to present such an abstract or general view of
2< &
iv PREFACE.
the law as appeared to be necessary for these objects. A?
to Constables, their duties lying within a narrower compass.
I have endeavoured to present a complete view of them,
and to give a digester summary of the law relating thereto.
I have given only a very general view of the duties of
Select-men.
With a view to perspicuity, and to prevent misapprehen-
sion, I have been particular to separate matters belong-
ing to the same general subject, and to treat of them with
as much distinctness as possible, bearing in mind that I
was writing for those who in general are unacquainted with
the elements of legal science.
There is a disagreeable responsibility attending a publi-
cation of this description ; as from its humble character,
Success will afford no credit, whilst a failure must subject
the compiler to deserved animadversion. If it contains
errors, its being designed for common use, and by those
who in general will not be capable of detecting the same,
must render them the more dangerous. And that no er-
rors should have intervened, is hardly to be expected ; but
I trust they will not be found so numerous or essential as
to impairits usefulness.
INTRODUCTION.
THE first section of the fifth article of the Constitution of this
State, provides that the judicial power shall be vested in a Su-
preme Court of Errors, a Superior Court, and such inferior
courts as the General Assembly may establish. The second sec-
tion provides, that there shall be appointed in each county a suf-
ficient number of Justices of Peace, with such jurisdiction in
civil and criminal matters as the General Assembly may pre-
scribe. The third section directs that the judges of the supreme
court of errors, of the superior and inferior courts, and justices of
the peace, shall be appointed in such a manner as may be prescri-
bed by law. Since the adoption of the constitution, this is the
basis of the judicial department in Connecticut, although the
constitution made no alteration in the system.
It is provided by statute, (a) that the judges of the supreme
court of errors, of the superior and county courts, judges of pro-
bate and justices of the peace, shall be appointed by the concur-
rent vote of the Senate and House of Representatives ; the judg-
es of the court of errors and the superior court, are required to
be chosen by ballot in each house, and hold their offices during
good behaviour, removable by impeachment, or by the govern-
or, on the address of two thirds of the members of each house of
the assembly. The judges of the county courts, of probate, and
justices of the peace, are chosen annually, and continue in office
until the 20th of June, in the year next following their appoint-
ment, unless sooner removed or suspended by the general assem-
bly. The mode of proceeding is by bill, as in the case of other
bills for public acts; it may originate in either house. A
nomination of the judicial officers of each county, is usually made
in county meetings, consisting of the representatives of the seve
ral towns in the county. These nominations are introduced into
the house of representatives in the form of bills ; the judge of the
county court, the associate judges, and judges of probate, in sep-
arate bills, but the justices of the peace of each county all
in one bill. These bills can be amended by erasing, adding,
or substituting names, in either house ; but both houses
must concur as to each name, or the person is not appointed.
After the county bills, as they are called, are passed, other bills
are usually introduced by members of either house, for the ap-
pointment of additional justices of the peace.
The judges of the superior and county courts, and judges 01
probate, receive separate commissions ; but the justices of each
county are commissioned jointly, in one commission, consti-
(a) St. p. 149,
1
VI INTRODUCTION.
tuting them justices of the peace within and for the county, for
which they are appointed, to which their authority is confined.
No judge or justice of the peace, is capable of holding his office
after he arrives to the age of seventy years (c). No justice of the
peace can hold the office of sheriff, deputy sheriff or constable, or
be a taverner (d).
All judges and justices of the peace are to be sworn before en-
tering upon the duties of their office, and without which their acts
are void. Before the adoption of the constitution, there were
specific oaths for judges of the courts and justices of the peace;
but since the adoption of the constitution, the general oath pre-
scribed therein, which is both an oath of allegiance and of office,
is administered to the members of the assembly, and to all state
and judicial officers. This oath which is now to be administered
t.o justices of the peace, is as follows : " You do solemnly swear
' "or affirm, as the case may be) that you will support the constitu-
tion of the United States, and the constitution of the state of Con-
necticut, so long as you continue a citizen thereof, and that you
will faithfully discharge, according to law, the duties of the office
of to the best of your abilities. So help you God."
The office of justice of the peace is very ancient, and like most
other human institutions, has in the progress of civilization and
improvements gradually experienced important changes. It was
derived to us from England, the land of our fathers, with the fun-
damental principles of our jurisprudence and civil law. In that
country it appears to have originated from the office of conserva-
tor of the peace, which was a mere executive office, held in some
instances by prescription, or as incident to the tenure of fiefs or
freholds, and in others by appointment of the freeholders of the
county. In the first year of Edward III. commissioners of the
peace were appointed by statute, which superseded the office of
conservators of the peace. They, however, continued only con-
servators, or keepers of the peace, until the 34th year of the
same reign, when the power of trying felonies was conferred up-
on them by act of parliament ; and being invested with judicial
authority, they soon acquired the more dignified and honourable
appellation of justices. This appears to have been the origin of
the judicial power of justices of the peace, or indeed of the office
itself, for previously, the office of conservator and commiss : oner
of the peace, had in its duties much more resemblance to that
of constable than to that of justice of the peace at the present day.
From that period the authority, duties, and jurisdiction of jus-
tices of (he peace, have been enlarged and extended from time
io time by numerous statutes.
In tl.e 'colony of Connecticut, the office appears to hare been
adopted without the authority of any express statute, and its ex-
istence is probably coeval with the colony. They were, botif
[<) COT?. .trt.Sth. (d}Sl.p. 148.
INTRODUCTION. Vll
the revision oi 1702, called commissioners, but possessed judicial
authority, and in the oldest statutes of the colony, commissioners
were associated with magistrates and select-men in the adminis-
tration of justice. The assistants, as they were afterwards call-
ed, were then denominated magistrates, and originally their pri-
mary powers and duties were of a judicial nature.
(e) The compact formed by the towns of Hartford, Windsor
and Wethersfield, in 1639, provided for establishing a general
court to be holden in April and September, to consist of the
^overnor, at least four magistrates, and a majority of the deputies
which were to be chosen by the towns. This body united all the
powers of government, executive, legislative & judicial. The par-
ticular courts, which had previously been constituted, consisting
of a certain number of mag ; strates, still continued to be held, from
which appeals were made to the general court. In October the
same year, the several towns were authorised to establish a town
court, to consist of three, five, or seven of their principal inhabit-
ants, one to be chosen moderator. This court was to be holden
once in two months, and had jurisdiction as to persons over the
inhabitants of the town only, and as to cases, of matters of tres-
pass, and contract, not exceeding forty shillings. An appeal
might betaken from its decisions to the particular court. This
is evidently the origin of justices' courts, and of the civil jurisdic-
tion of justices of the peace in this state. In 1647, a question arose
as to what number of the magistrates formed a quorum, to hold a
particular court ; and it was finally decided that the governor
or deputy governor, and two magistrates, had power to hold such
court, and that in case the governor or deputy governor should
not be present, three magistrates, one to be chosen moderator,
were competent to hold the court (f ). This court was attended
by a jury, but all causes under forty shillings could be tried by
the court.
In 1665, after the union of the two colonies of Connecticut and
New-Haven, by the charter of Charles II. the court of assistants
was established, consisting of at least seven assistants, the name
of magistrate having at this time been changed to that of assist-
ant. The next year the colony was divided into the counties of
Hartford, New-Haven, New-London and Fairfield, and a county
court established in each, consisting of one assistant, and three
or more commissioners. These courts superseded the particular
courts. In 1669, the town courts were re-organised, and were to
consist of an assistant, or a commissioner, and at least two of the
select-men (#.) By subsequent acts, any one assistant was authori-
sed to try all causes arising in his county without a jury, wherein
the matter in demand did not exceed forty shillings ; and in those
towns where no assistant resided, the same power was given to a
(e} Pref. 1st, Conn. Rep. (/} Pref. 1, Con. Rep.
Vlll INTRODUCTION.
commissioner and two select-men. From these courts an appeal
was allowed to the county-court, and from the decisions of that
court to the court of assistants, and from thence to the general
assembly, which was the dernier resort in all matters of law and
equity.
In 1698, it was provided that in each county, at least four justi-
ces of the peace should be appointed, three of whom were to be
justices of the quorum, who, with a judge to be appointed for that
purpose, were to hold county courts ; and subsequently, three
justices of the quorum, were authorised to hold the court in the
absence of the judge. The judge and justices of the quorum,
were at first appointed during the pleasure of the general assem-
bly ; but afterwards were appointed annually. The judicial pow-
er of justices of the peace, appears at this period to have been es-
tablished, and to have superseded the inferior courts held by an
assistant, and by a commissioner and two select men. By nu-
merous statutes, their jurisdiction was extended to various sub-
jects, enlarged, and the right of appeal in certain cases taken
away. Their jurisdiction in civil matters was finally fixed at fif-
teen dollars, with the right of appeal, ordinarily in cases exceeding
seven, and so continued until the year 1821, when it was extended
to thirty-five dollars, with the right of appeal in causes exceeding
seven dollars, as before. The constitutionality of this law has
been doubted, on the ground of its interfering with the right of
trial by jury, and it is understood that a cause from Fairfield
county is now pending before the court of errors, in which this
question is to be discussed and decided. It is, however, hardly
to be expected that the court will declare the law void ; it would
be a subject of regret if thev should, as so far as we are enabled
to judge from experience, it is promotive of convenience and
economy.
The criminal jurisdiction of justices remains the same as before
the statute last referred to; it embraces a great : variety of matters,
and comprises a considerable part of their duties. In addition to
their judicial authority, both civil and criminal, they are by dif-
ferent statutes entrusted with various powers,, and required to
discharge various duties of a ministerial nature.
PART J.
CHAPTER I.
Of the ministerial porcers and ditties of Jit slices of the Peace.
THE powers and duties of Justices of the Peace, may be
divided into those which are judicial, and those which are
ministerial ; although in many cases they partake of both.
The latter consist of the authority which they possess at
common law, and which is in general recognized by
Statute, as conservators of the Peace, and the various pow-
ers and duties which have been entrusted to them by dif-
ferent statutes, of an executive or ministerial nature. This
and several succeeding chapters are devoted to a consid-
eration of their ministerial duties, or rather to a notice of
them, as neither our limits nor the object of this work will
admit of their being examined at length.
1st. (). This power is undoubtedly to be
confined to proceedings before the general assembly. Spe-
cific forme of oaths are prescribed for town and other sub-
ordinate officers, and also for judicial proceedings. The
governor, lieutenant governor, members of both houses of
the legislature, sheriffs and judges of the courts, and of pro-
bate, and justices, take the oath prescribed in the constitution
as an oath of office. Where a person, from scruples of con-
science, declines to take the witnesses oath in the usual
form, it may be administered to him as follows : " You,
A. B. do solemnly and sincerely affirm and declare, that
the evidence you shall give to this court, concerning the
case now in question, shall be the truth, the whole truth,
and nothing but the truth, upon the pains and penalties of
perjury ."
3d. The poor debtor's oath, as it is called, is adminis-
tered to poor debtors in gaol on civil process for debt only.
It has been decided that this is so far a ministerial act, that
it may be administered by any justice in the county, al-
though not residing in the town in which either of the par-
ties belong (9). The oath to be administered to the debt-
ors is as follows : " You, A. B., solemnly swear, that you
have not any estate, real or personal, in possession, rever-
sion, or remainder, of the value of seventeen dollars in the
whole, or sufficient to pay the debt or demand for which
(p) St. May Ses. 1822. (?) 3 Con. Rep.
jou are imprisoned, (except what is by law exempt from
being taken on execution) and that you have not directly
or indirectly sold or otherwise disposed of all or any part
of your estate, thereby to secure the same, to receive or
expect any profit or advantage thereof, or to defraud or de-
ceive your creditors So help you God." Notice must be
given by citation to the creditor, or to his attorney if he is
out of the state, four days, inclusive, before the day on
which the oath is to be administered, to appear and shew
reasons, if any he has, why the oath shall not be adminis-
tered to such debtor. The citation may be directed to
any proper officer, or an indifferent person, and must be
served by copy ; when served by an indifferent person,
he must make affidavit to his endorsement, before any Jus-
tice of the county, who must certify the same on the back
of the citation. It is usual to notify the adverse party to
appear at the gaol of the county on a certain day and hour,
to shew reasons why the oath shall not be administered,
without mentioning any Justice before whom to appear, as
it might not be convenient to obtain the same. This prac-
tice has grown up from considerations of convenience, but
the statute evidently contemplates that the adverse party
should be notified to appear before some particular Justice,
to whom the notification should be made returnable. It
would be more correct that he be cited to appear before
any proper authority. In case the adverse party appear,
it is the duty of the Justice who is called on to admin-
ister the oath, to enquire into the matter, and if no sufficient
reasons are shewn to the contrary, to administer the oath.
The creditor may shew that the debtor is possessed of
property to a greater amount than seventeen dollars, or the
debt for which he is imprisoned, or that he has fraudulent-
ly conveyed away property to defraud his creditors and
qualify himself to take the oath ; in either of which
cases it is the duty of the Justice to refuse him the oath.
When the oath is administered, the debtor is discharged,
unless the creditor shall lodge with the keeper of the gaol
such sum for the weekly maintenance of the debtor as the
county court have established ; and in case the debtor im-
mediately adopts the legal steps to take said oath, the cred-
itor must also leave rnoney for the support of such debtor
20
from the time of his application to the time of administering
the oath, provided it does not exceed seven days, or the
gaoler will not stand charged with the prisoner. It is the
duty of the keeper, when a debtor immediately applies for
the oath, to furnish such debtor with necessaries, and if the
creditor does not pay for the support of such debtor ante-
cedent to his taking the oath, the keeper may recover the
same by suit against such creditor ; and if he is unable to
pay the same, the gaoler may recover it of the town to
which such pris6ner belongs ; and if he is not an inhabit-
ant of any town in this state, then the same shall be paid by
the state. The prisoner is entitled to his weekly mainten-
ance of the gaoler in money if he demands it.
If the oath is refused by the Justice, the prisoner cannot
make application except to two judges of the county court,
or one judge and a justice of the peace, who may adminis-
ter or refuse said oath ; and if the oath shall be administer-
ed by the Justice on the first application, the creditor has
a right to apply to two judges of the county court, or one
judge and ajustice, to review said cause, giving reasonable
notice to the prisoner, and if on a full hearing, it shall ap-
pear to the satisfaction of such court that the prisoner is
not entitled to the benefit of the poor debtor's oath, it is
their duty to order his support to cease, and he shall thence-
forward be holden in prison, in the same manner as though
said oath had not been administered. It was long consid-
ered as doubtful whether the decision of a court of review
was final and conclusive or not ; and a practice has pre-
vailed when the oath was refused by such court, for the
debtor to commence de, novo, and cite the creditor again to
appear before a Justice ; and it has been decided by the
superior court that this might be done (r). But in the re-
vision of the statutes there was a provision added, that if
the circumstances of the prisoner subsequent to the refusal
of the oath by such court of review, shall become changed,
so that he may lawfully be entitled to take said oath, he
may make application therefor, as in the first instance.
This provision is confined to the case where the oath is
refused by the Justice, and his decision confirmed by the
court of review ; but as the reason is the same, it is un-
(r) Hart. Co. Sept. term, 1821. Phelps. Shff. vs. Soper, et al.
21
doubtedly equally applicable to the case where the oath j-
administered by the Justice on the first application, and re-
fused, and the support of the prisoner ordered to cease, by
the court of review. This provison may be considered as
making the decision of the court of review final, except in
cases where there is a change in the circumstances of the
prisoner after the oath has been refused, if the oath is
refused to a debtor on the ground of his possessing more
than seventeen dollars in property, he may subsequently
assign his property in payment of bona fide debts, and
thereby entitle himself to the oath ; but this must be done in
good faith, for if such assignment is made even to actual
creditors only as a cover, and the debtor intends to reclaim
the property, he cannot be entitled to the oath. If the oath
was refused on the ground of the debtor's having made a
fraudulent conveyance, it would seem that the fraud might
be purged and the fraudulent debtor entitled to the benefit
of the oath, by his afterwards assigning such property in
good faith in payment of bona fide debts. It has been de-
cided by the court of errors that a fraudulent debtor is en-
titled to the benefit of the insolvent act, after having purged
the fraud by the assignment or transfer of the property
which had been fraudulently conveyed to his creditors in
payment of bona fide debts. The same rule would be ap-
plicable to a debtor, thus situated, applying for the poor
debtor's oath.
Form of citation to Creditor :
To the sheriff of the county of or his deputy, or
either of the constables of the tovyn of within said
county, Greeting or if directed to an indifferent person.
To A. B. of the town of in the county of an
indifferent person, Greeting By authority of the state
of Connecticut, you are hereby commanded to summon or
give notice to C. D. of in the county of the
creditor, on an execution in whose favour E. G. is now
confined in the gaol of said county, to appear on the
day of at o'clock, noon, at the common
gaol in in said county, before A. B. Justice of the
Peace for said county, or other proper authority, then and
there to shew reason if any he hath, why the oath provided
22
by law for the relief of poor debtors in prison, shall not
be administered to the said E. G. a poor prisoner, confined
in said gaol for debt only (as it is said.) Hereof fail not,
but make service by leaving a true and attested copy of this
citation with the said C. D. or at his usual place of abode,
and make return according to law. Dated at the
day of A. D.
A. B. Justice Peace.
Form of certificate where the service is made by an indifferent
person.
County of ss. day of A. D.
Personally appeared before me, C. D. and was sworn to
the truth of the above endoisement, by him subscribed
and attested.
A. B. Justice Peace.
4. Justices of the Peace are authorized to take deposi-
tions, swear the deponents, make the certificate, and direct
them to the court wherein they are to be used, in all cases
in which depositions are allowed by law. Depositions are
authorized by statute, not being evidence at common law.
(s) When any witness in a civil cause, lives out of the state,
or more than twenty miles from the place of trial ; is going
to sea, or out of the state, or by age, sickness, or bodily in-
firmity, is unable to travel to court, or is confined in gaol
on legal process, his deposition may be taken. If the ad-
verse party lives within twenty miles of the place of cap-
tion, or he has an agent or attorney within that distance,
notice must be given to him or to such agent or attorney, to
be present at the time and place of taking such deposition.
The statute doe? not prescribe any mode of notice ; but it
is most safe that it be in writing, and delivered to the party
or left at his usual place of abode. A citation is often issued
and served on the party, and returned before the magis-
trate ; which affords him the best evidence that notice has
been given ; no time of notice is required, but it should be
reasonable. Depositions may be taken in any other state
or country by a magistrate having power by the laws thereof
to administer oaths. Where, depositions may be taken, a
(*) St. 47.
justice is authorized to issue a subpoena for the appearance
of the witness before him, to give his deposition ; and if he
refused to appear, the subpoena having been served and
returned, the justice may issue a capias, and cause him to
be brought before him ; and if he shall refuse to give his
deposition, and in any case if a witness shall refuse to de-
pose, the justice may commit him to prison until he shall
comply. Neither the party, his attorney, or any person
interested, can write, draw up or dictate a deposition ; and
they should regularly be written by the witness or the ma-
gistrate. The deposition must be signed by the witness,
and the justice should caution him to speak the whole truth
before he administers to him the oath. The justice must
certify that he administered the oath to the witness, the
reason of taking the deposition, that the adverse party, or
his agent, if either live within twenty miles, was notified
and present, or notified and not present, (as the case may
be,) or that he lives more than twenty miles, and was not
notified or present. He must seal it up and direct it to the
court, or he may himself return it to the court unsealed ;
but if delivered open by any other person, it will be rejec-
ted. A justice cannot take a deposition except in the coun-
ty in which he belongs, nor in any other case administer
an oath out of his county. A justice may take depositions
here to be used in any other state where they are allowed.
Form of certificate.
County of ss. day of A. D. Be it
remembered that on the day aforesaid,, C. D. who hath sub-
scribed the foregoing deposition, appeared before me, and
after being examined and cautioned to speak the whole
truth, made solemn oath to the same deposition ; which is
taken at the request of J. S. to be used in an action now-
pending before the court to be holden at within
and for the county of on the Tuesday of
(or now in session at within and for the county of
as the case may be) wherein the said J. S. is plain-
tiff, (or defendant as the case may be,) and G. H. is defen-
dant, (or plaintiff.) The reason of taking said deposition
is, that the said deponent resides more than twenty miles
from the place of trial ; (or is going to sea, or out of the
state, or from sickness is unable to travel to court, as tke
.M
case may 6e) the adverse party was notified and present, or
living more than twenty miles from the place of caption,
and having no known agent or attorney within that distance,
was not notified or present. Said deposition drawn up and
certified by A. B. Justice Peace.
DIRECTION.
To the honourable court, to be holden at
within and for the county of on the Tuesday
of A. D. The deposition of C. D., taken, seal-
ed up, and directed at in the county of this
day of A. D. by me.
A. B. Justice Peace.
If the deposition is to be used before a Justice, vary the
direction as follows : To A. B. Esquire, Justice of the
Peace, for the county of The deposition of, &c. The
subpoena, when it is necessary to issue one for the appear-
ance of the witness is in common form, summoning him to
appear at a specified time and place, before a justice, then
and there to testify his knowledge in a certain cause pend-
ing before a certain court, the cause and court being des-
cribed.
CAPIAS when the -witness refuses to obey the subpoena.
To the sheriff of the county of his deputy, or
either constable of the town of within said county,
Greeting : Whereas C. D. of in said county, hav-
ing been summoned to appear before me at my office in
on the day of A. D. at the hour
of then and there to testify his knowledge in a cer-
tain action pending before (describe the court and
cause) and has neglected and refused to appear. Where-
fore, by authority of the state of Connecticut, you are
hereby commanded to take the said C. D. if he shall be
found within your precincts and him cause to be safely kept,
so that you him have forthwith, (or at a certain day and
hour) before me at my office in then and there to
testify his knowledge in the cause aforesaid. Hereof you
are not to fail, but have you there this writ, and how you
shall have served the same, make known by your endorse-
ment thereon. Dated &c.
A. B. Justice Peace.
Mittimus in case he refuses to testify.
To the sheriff, &c, Greeting : Whereas C. D. of
in the county of having been brought before me by a
Capias to testify his knowledge in a certain cause (describe
the cause and the court before which it is ponding) and the
said C. D. wilfully and contemptuously refuses to U^ufy
and depose what he knows concerning said cause : \\
fore By authority of the state of Connecticut, you are
hereby commanded to take the said C. D. and him commit
into the custody of the keeper of the gaol of said cou,-.;y,
and to leave with said keeper this mittimus ; and said keep-
er is hereby commanded to receive the said C. D. and
him safely keep in the common gaol of said county, until
he consent to testify his knowledge in the aforesaid cause,
and be discharged by due course of law. Hereof you arc
not to fail. Dated, &c.
A. B. Justice Peace.
5. Justices of the Peace are authorized to take the ac-
knowledgment of deeds, and all other instruments which are-
required to be acknowledged, to give them validity. All
grants, deeds and mortgages of lands and buildings must be
acknowledged by the grantor to be his free act and deed
before, a justice of the peace, or any judge of the superior
or county courts ; and if executed out of the state, the
acknowledgment may be taken by a judge of the supreme
or district court of the United States, a judge of the su-
pnu^ or superior court, or of the court of common pleas,
or county court ; before a commissioner or other officer
having power by the laws of such state to take acknow-
ledgment of deeds (<.)
All leases of lands or houses for more than one year
mnst be acknowledged, witnessed and recorded, the same as
When a deed is executed by an attorney, it must be ac-
knowledged by him ; but it should be executed and acknow-
1<'<1_ M' in the name of the principal : the power of attorney
mast ;ilso be acknowledged. No sale or lease for a longer
term than one year of any pew in any meeting house or
(0 St. 302.
3
church shall be effectual in law, except against the grantor
or leasor and their heirs, unless it is in writing, subscribed,
witnessed and acknowledged in the same manner as deeds
of land, and recorded by the clerk of the society in a book
to be kept for that purpose. One pew, the property of
any person having a family, who ordinarily occupy the
same, is exempt from being taken by execution for debt or
taxes. When any grantor having executed a deed shall, on
being required by the grantee, his heirs or assigns, refuse
to acknowledge the same, the grantee, his heirs or assigns
may enter a caveat, or caution, upon the lands and houses
granted in such deed, with the town clerk or register,
where they are situated, by leaving with him a copy of the
deed, with a claim of title by virtue thereof; which caution
shall secure the interest of the grantee, until a legal trial
can be had ; and an attested copy of the judgment of the
court delivered to the register shall be his warrant to re-
cord such deed, although the grantor refuse to acknowledge
the same, and such deed shall have the same effect as if
acknowledged. The party need only leave the deed with
the register, and a written statement that he claims title by
virtue thereof, and intends to try the validity of the same.
6. Where all the persons interested in an estate of a de-
ceased person, being legally capable to act, mutually agree
on a division of the same, it must be by writing, signed,
sealed, witnessed and acknowledged before a justice or
the judge of Probate, and when returned to said judge and
recorded it will be effectual in law.
CHAPTER III.
Of the ministerial powers *nd duties of Justices of th Peace.
1. Justices of the Peace are authorised to join persons in
marriage ; but this must be done within their county.
Marriage may also be solemnized by ordained ministers, so
long as they continue in the work of the ministry, and by
the j<> Iges of the superior and county courts. No form of
raveuant or contract is required, and every denomination
27
oi Christians, and almost every individual who officiates
pursues a form of his own.
If any Justice of the Peace or other person authorized,
shall join persons in marriage, before the intention of the
parties has been published in some public meeting or con-
gregation on the Lord's-day, or some public fast, thanks-
giving or lecture-day in the parish or society where the
parties, or either of them ordinarily reside, or by setting
up such intention or purpose in fair writing upon some post
or door of their meeting-house, or near the same, in pub-
lic view, there to stand so that it may be read for eight
days before such marriage, they shall forfeit and pay the
sum of sixty-seven dollars for every such offence : one
moiety 10 him who shall complain and prosecute, and the
other to the Treasury of the county where the offence is
committed. And where such publication has been made,
if the parties or either of them are minors, the justice or
minister forfeits the same sum for joining them in marriage,
without previously being certified of the consent of their
parents or guardians, if any they have, whose care and con-
troul they are under. If any person shall deface or take
down any notice in writing set up as aforesaid before the
expiration of eight days, he shall be fined three dollars.
It is the duty of every person who celebrates the mar-
riage contract, within thirty days after, to lodge a certifi-
cate of the same with the clerk of the town in which such
marriage is performed, and to pay such clerk twelve and a
half cents for recording the same, which it is his duty to do,
in a book to be kept for that purpose, and for every neg-
lect to lodge such certificate, he forfeits the sum of fifteen
dollars to the treasury of the town wherein such marriage
was performed (M).
2. When any person under an overseer does not sub-
mit to his authority, two or more Justices of the same town,
on application of the select-men, may issue a warrant to
bring him before them, or grant a summons or other writ-
ten notice, for him to appear at a certain time and place, or
if he abscond, leave such notice at his usual place of abode.
On his appearing, or without, after notice, and refusal, said
(w) St. 316.
Justices may inquire into the matter, and if they find such
person refuses to submit to the authority of his overseer,
or that by his misconduct he is wasting his estate, and like-
ly to be reduced to want, they may authorize the overseer
or any other person they may appoint, to take such person,
his family and estate under their care. The power and
duty of a person thus appointed will be the same or simi-
lar to that of a conservator appointed by the county court.
An overseer thus appointed, may for misconduct be remov-
ed by the select-men and two justices of the town, and
.mother appointed ; so also in the case of his death ; and
in case of vacancy of an overseer, the disability of the per-
son is to continue nine days, to give the select-men time to
appoint another. If such person reforms, said Justices
may revoke the appointment of the overseer, and order
his estate restored to him. An appeal lies from the doings
of the select-men, or the two Justices, to the next county
court (t>). The two Justices must record the appoint-
ment of an overseer and all their doings.
3. The children of those persons who receive reliefer
supplies from the town, and who suffer their children to
live in idleness ; and also those children who have no pa-
rents, or others to take care of them, and are exposed to
want and distress, and who live in idleness, the select-men,
with the consent of one Justice of the Peace, are empow-
ered to bind out to proper masters, to be instructed in some
trade, calling, or profession ; males until the age of twenty-
one, and females until that of eighteen, or the time of their
marriage within that age (x).
4. If any apprentice, bound by indenture, shall refuse
to serve as an apprentice, according to the terms ot the in-
denture, or shall disobey the lawful commands, or resist
the authority of his master, or shall waste or destroy his
property, or be guilty of any gross misbehaviour and wil-
ful neglect of duty, on complaint of the master to any two
Justices of the Peace of the same town, the said Justices
may issue a warrant and cause such apprentice to be
brought before them, and inquire into the truth of the com-
plaint, and if they find such apprentice guilty, they may
(w) St. 276, (,r) St. 319.
29
commit him to the house of correction, and if there is none,
to the common gaol in the county, there to be confined at
hard labour for such term of time as they may think pro-
per, not exceeding thirty days ; and if he reform, said Jus-
tices may release him from prison before his term expires.
Said Justices are also empowered, if they judge it best, to
discharge said master from the contract of apprenticeship,
and cancel the indenture (^).
In case an apprentice, bound by an indenture, departs
from the service of his master, any Justice, on complaint
of his master, may issue a warrant to^the sheriff or consta-
ble, commanding them to press men, if necessary, to pur-
sue said apprentice and bring him back by force, at the re-
quest and expense of his master.
Where the master is guilty of personal cruelty or abuse,
or refuses to provide for him necessary food or clothing,
or neglects to instruct him in his trade or business, or if an
apprentice shall flee from the tyranny of his master, to the
house of any inhabitant in the same town, on complaint of
the parent or guardian of such apprentice, or the select-
men, to any Justice of the town, such Justice may cause
such master and apprentice to appear before him, and re-
concile them if he can, and if he cannot, he may at his dis-
cretion bind the master and the apprentice to the next
county court, or give order for the apprentice's custody
in the mean time, and for his appearance at court.
Complaint to two Justices.
To A. B. and C. D. Esquires, Justices of the Peace for
the county of and residing in the town of
in said county, comes O. P. an inhabitant of said twn of
and complains and informs said Justices of the Peace,
that he is by profession and occupation a blacksmith, and
carries on said business in said town, and that for more
than one year last past, Q, R. has been, and now is, an in-
dented apprentice to your complainant, and duly bound by
indenture to the complainant by S. T. his father, (or guar-
dian) with the written consent of said apprentice, express-
ed by bis subscribing said indenture, to learn the trade of a
(y) St. 319.
30
blacksmith ; and he further informs that at divers times,
and particularly on the day of A. D. in the
town aforesaid, the said apprentice did wilfully and con-
temptuously disobey the lawful commands, and resist the.
authority (or, did grossly misbehave and wilfully neglect
his duty, as the case may be) of the complainant, to the
great interruption and detriment of his business ; and which
said doings of said apprentice are contrary to the statute in
such case provided, and of evil example. And the com-
plainant prays that you will issue a warrant, and cause said
apprentice to be brought before you, to answer unto this
complaint, and that ytm will inquire into the truth of the
matters herein alledged.
O. P.
Warrant.
To the Sheriff, &c. You are hereby commanded
forthwith to arrest the aforesaid Q, R. of the town of
in the county of apprentice to the aforesaid O. P.
and him forthwith have (or at a certain day and hour) be-
fore us, the undersigned, Justices of the Peace, at the office
of A. B. in said town, that he may be examined, touching
the foregoing complaint, and be dealt with according to
law. Hereof you are not to fail, &c.
A. B. Justice Peace.
C. D. Justice Peace.
Record.
county, ss. H day of A. D.
Be it remembered, that on this day, Q. R. of was
brought before us by virtue of a warrant by us issued, on
the complaint of O. P. of representing that the said
Q,. R. being an indented apprentice to the complainant,
bound to him by indenture, by his father, and with his own
written consent expressed in said indenture, at divers
times, and particularly on the day of A. D.
at said did wilfully disobey the lawful commands,
and resist the authority of the complainant, to the injury
and detriment of his business, and contrary to the statute in
such case provided; and having appointed L. M. guardi-
an, to defend the said Q. R., he being required to an %
swer to said complaint,says he i not guilty, whereupon we
proceeded to inquire into said matters, and having fully
31
considered the evidence, do find that said Q,. K. is guilty in
manner and form complained of, by the said O. F. and there-
upon it is considered by us, that the said Q. R. be confined
in the common gaol of said county, as a house of correction,
there being no house of correction in said town of
to be kept at hard labour, for a period of time not exceed-
ing twenty days, and that in case he reform before that
time, he be released by our order.
A. B. Justice Peace.
C. D. Justice. Peace.
Mittimus.
To the Sheriff, &c. Greeting.
Whereas Q. R. of was on the day of
A. D. found guilty before as of disobeying the lawful
commands, and resisting the authority of O. P. his master,
the said Q. R. being an indented apprentice to the said O.
P. and by us sentenced to confinement in the common gaol
of sad county, as a house of correction, and there to be
kept at hard labour, a period of time not exceeding twenty
days, and to be discharged on his reformation, before that
time, by our order. Wherefore you are hereby command-
ed to take the said Q, R. and him commit to the keeper of
said gaol, and to leave with him this mittimus ; and said
keeper is hereby commanded to receive said Q,. R. and
him safely keep within said gaol at hard labour during said
term of twenty days from the date hereof, unless sooner
discharged by us. Hereof you are not to fail, c.
A. B. Justice Peace.
C. D. Justice Peace.
Minor children, who are stubborn arid rebellious, and re-
fuse to obey their parents or those who have the care of
them, may be proceeded with and sentenced in the same
way as apprentices, on complaint of their parents, or
those who have the charge of them, or an informing officer,
to two Justices of the Peace of the town where the parties
Jive (*).
4.. Two or more Justices of any town, on application
(*) St. 107.
of the select-men, may issue a warrant to remove any per-
son who has become chargeable to such town, not being
an inhabitant thereof, to any other town in this state to
which such pauper may belong. Also in case any inhabit-
ant of any other state come to reside in any town in this
state, not having a settlement in this state, any two or more
Justices of such town may, on application of the select-
men, grant a warrant to convey such person out of the
state, from whence he came. We shall consider this sub-
ject more fully in treating of the duties of select-men (a).
Form of Warrant.
To either Constable of the town of within the
county of Greeting Whereas, E. F., G. H.,
and I. K. a major part of the select-men of said town of
have made application to the undersigned Justices of the
Peace for said county, and residents in said town of
representing that U. V. and his family, on or about the
day of A. D. removed into the said town of
that he has become chargeable to said town, and
is a pauper ; that he belongs to, and is an inhabitant of the
town of in the county of [or that he is
not an inhabitant of this state, and came from in
the state of New-York.]
Wherefore, Bj r authority of the state of Connecticut,
and agreeably to the statute in such case provided, you are
hereby required and commanded to take the said U. V. and
his family forthwith, or as soon as they can safely be re-
moved, and them convey into said town of where
they belong and have a legal settlement, [or them convey
out of this state into the said state of New-York, whence
they came.] Hereof you are not to fail, &c.
A. B., Justice of the Peace.
C. D., Justice ofthe Peace.
E. F., Justice ofthe Peace.
There are various duties and powers, of a ministerial na-
ture, confered by numerous statutes upon Justices of the
Peace, either individually, or upon two or more, or upon
(n) St. 281.
33
one or more Justices and the select men, or upon the
civil authority, consisting of the board of Justices of the
town, or the civil authority and the select-men ; but as
these services are not of frequent occurrence, or of much
importance individually to magistrates, and as in general
they present but little difficulty, we shall merely notice
them; our limits not admitting of more. Those cases, too,
where one or more of the civil authority are to act in con-
junction with the select-men, we may have occasion to no-
tice when considering the duties of select-men.
5. The civil authority and select-men of those towns
where manufacturing establishments exist, are constituted
a board of visitors, and it is their duty in the 'month of Jan-
uary annually, and at such other times as they may think
proper, to visit such factories, and examine and ascertain
whether the requisitions of the statute relating to the instruc-
tion and preservation of the morals of the children employ-
ed in such factories have been complied with, and if they
find any neglect, to leport the same to the next county
court. They may delegate their power, and appoint a
committee of visitors if they please (6).
6. The civil authority and select-men of the several
towns in the state are constituted a board of health, and
may organize themselves and act as such when occasion
may require ; appoint a president and clerk, and such
health officers or health committees, as they may deem
expedient, and exercise all the power and authority neces-
sary for the prevention, or to stop the diffusion and spread
of malignant or contagious diseases (c).
7. It is the duty of the civil authority on the first Mon-
day of January in each year in their respective towns, to
appoint, or to approve of proper persons to be retailers of
wines and spiritous liquors, for the year ensuing. They
are to appoint a clerk who must be sworn, and they mut
lodge with the clerk a list of the persons approbated, certi-
fied by the chairman, designating the place where, as well
as the name or firm under which such persons desire to re-
tail. A license will then be issued to each person or firm
in the name of the civil authority, attested by the clerk.
(6) St. 320. (c) St. 419.
A duty at the rate of five dollars per annum is to be paid
for each licence, and twenty five eents to the clerk for the
licence (rf).
Oath of the Clerk. " You, A. B. being chosen and ap"
pointed Clerk of the civil authority of the town of
do swear that you will truly and faithfully execute the office
to which you are chosen and appointed, make true entries
of the proceedings of the civil authority at any of their
meetings, account for, and pay over all monies belonging
to this state received by virtue of your office, and perform
all other duties incident to your appointment according to
your best skill. So help you God."
Form of License. " Whereas the civil authority of the
town of in the county of in the state of Con-
necticut, reposing special confidence in the integrity and
faithfulness of to support the laws of this state for the
suppression of an improper use of spiritous liquors, and
having approved of the said according to law to be a
retailer of the same : We therefore do give license to the
said to be a retailer of wines and distilled spiritous
liquors, according to the laws of this state at in said
town of until the second Monday of January next.
Given under my hand this day of
Per order, C. D., Clerk."
Special meetings of the civil authority may be called if
necessary. The civil authority also grant licenses to auc-
tioneers, which are necessary to enable them to sell for-
eign goods or produce. They are required to pay a duty
of two per cnt. on all foreign goods they may sell, to the
clerk of the civil authority, and to give a bond with surety
io secure a compliance with the law (e).
8. The civil authority, select-men, constables, and
grand jurors of the several towns in the state, are constitu-
ted an electoral body for the appointment or nomination of
taverners, which must be done sometime in the month of
January annually. They are required to nominate by
their major vote such person or persons as they shall judge
fit and suitable to keep houses of public entertainment in
(d)St. 436. (c)St. 61.
such town the ensuing year, which nomination certified
under the hand of a majority of the civil authority and se-
lect-men, shall be transmitted to the next county court,
which can reject or approve such nominations, and grant
licenses to such as are approved. Each taverner must give
a bond of seventy dollars to the treasurer of the county for
the due observance of the laws relating to houses of public
entertainment (/).
It is the duty of the civil authority and select-men to in-
spect the conduct of tavern-keepers in their towns, and if
they are satisfied they do not observe the laws to admonish
them ; and if such taverner disregard such admonition, and
persist in his disobedience to the law, a major part of the
civil authority and select-men may revoke and set aside his
license ; and on their causing a copy of such revocation to
be left with such taverner, and another posted on the sign-
post of the town, his right to keep a public house ceases,
and determines.
8. The civil authority, select-men, grand jurors and con-
stables of the several towns on the first Monday of January,
choose by ballot, the number of jurors, to which such
town is entitled, to serve in the superior and county courts
in the county the ensuing year. They must be freehold-
ers, having a freehold estate set in the list at nine dollars
or more (^). Land under mortgage is not a legal freehold,
even if the mortgage debt has been paid, after it became
forfeited.
10. The civil authority and selectmen of any town are
empowered to authorize any person to enter on the land
of any other person, within the town at any season of the
year, on which barbary bushes are growing, and to dig up
and destroy the same, and such person shall not be liable
to an action therefor. The same authority may be given
by vote of the town in legal town meeting (ft).
11. The civil authority and select-men of the respect-
ive towns, are empowered to abate the one eighth part of
all taxes which may be granted by the General Assembly,
and for which the treasurer may issue his warrant, arising
upon the lists of the inhabitants of such town, and apply
(/) St. 442. (g) St. 45. (h) St. 91.
30
the same tor the relief of the indigent or unfortunate in the
abatement of their particular rates, in whole or in parl, in
such a manner as they may judge most just and reasonable.
And which abatements the civil authority and select-
men must certify under their hands to the Treasurer of the
State, who thereupon must allow the same to the credit of the
collector of such tax. They are authorized to make a fur-
ther abatement of the taxes of the poor, but all abatements
above one eighth must be made up by the town (z).
CHAPTER IV.
Of the Judicial Powers and Duties of Justices of the Peace.
Although the office of Justice of the Peace was origin-
ally ministerial, at the present time their judicial powers
and duties are far the most important. This branch of
their authority and duties, is naturally divided into those
which are of a civil and those which are of a criminal nature.
We propose first to consider the civil branch of their judi-
cial powers, and shall devote this chapter to an examina-
tion of their
CIVIL JURISDICTION.
The general civil jurisdiction of Justices of the Peac,
as it respects the subject matter is now fixed at thirty-five
doll'U's. All causes wherein the title of land is not con-
i. and wherein the debt, trespass, damage, or other
nr-itter in dem i-id, does not exceed thirty-five dollars, must
be beared and determined by a Justice of the Peace ; pro-
vi-!- 1 ! that in all cases where the sum demanded shall ex-
-?ven dollars, except in actions on notes or bonds
v i hf.d bv two witnesses and given for money only, an
a ! -hill be allowed to the next county court (A-).
I'i'is of tresp is* qu f tre chiusum fregit must be brought
'-ounty where the land lies. When in such actions,
lins; not more than seven dollars damages, the de-
fendant shall justify by a plea of title to the land, a record
(i) St. 453. (fc)St. 41.
shall IK; made thereof and the matter of fact shall be taken
to be confessed and the defendant shall become bound to
the adverse party before the justice with surety, in a re-
cognizance in a sum not exceeding seventy- dollars, that he
will prosecute his plea and enter his cause in the next
countv court where the land lies and prosecute the same to
eflect'and pay all damages and costs if he fail to make his
plea good. If he neglect to give such bond his plea shall
be rejected and the action proceed. When such bond is
given it determines the jurisdiction of the Justice, as a
Justice of the Peace has no jurisdiction as to the title of
land in any case where it appears from the record that the
title is in issue ; but when in an action of trespass upon
land the defendant does not plead title, but gives his title
in evidence under the general issue, the Justice can pro-
ceed with the case and incidentally try the title, for if the
defendant wishes to take away the jurisdiction of the Jus-
tice he must pie ul his title. Where the defendant pleads
his title and enters into a recognizance, it is his duty to
procure copies of the proceedings before the justice, cer-
tified bv him, and have the cause entered in the docket of
the county court ; which must be left with the clerk on the
first or at the opening of the court on the second day of the
court, and if he neglect so to do, he becomes liable on his
recognizance, to the plaintiff' for all the damage he has sus-
tained. And if on a trial before the county court, he fail
to make out .a title to the land, paramount to that of the
phintiff, lie is liable to pay treble damages and costs (/).
He will not be permitted before the county court, to alter
his plea, but the action must be tried on the plea put in
before the jdltire.
In all actions brought before a Justice of the Peace, de-
manding not more than seven dollars damages, charging the
defendant with raising or obstructing the waters of any
stream, river, creek or arm of the sea, by the erection of
any mill, dim, or other obstruction, in which the defend-
ant shall justify the same by a special plea, stating or al-
leging a lawful right ; and in all actions demanding not
more than seven dollars damages, charging the defendant
(/) St. 53.
4
H
with an injury done to land, in which the defendant sliali
justify the same, stating or alleging a right of way ; the
party who shall be aggrieved by the judgment of such Jus-
tice of the Peace, shall be allowed to 'appeal to the next
county court in the same county, on his giving bond with
surety to prosecute his appeal to effect.
A justice is authorized to take the acknowledgment of
a debt from a debtor to his creditor for any sum not ex-
ceeding seventy dollars and the costs of such confession.
The confession must be made by the debtor himself, not
by any other person for him ; it can only be for the debt
and the cost of the confession which is twenty-five cents.
Before the revision, a confession might be for costs which
had previously accrued by suit, as well as the costs of con-
fession ; but now, in such cases, a new note must be given
including such costs and a confession taken thereon. The
Justice must make a record thereof and issue execution
as in other cases (.)
The civil jurisdiction of justices as to persons is, in a
qualified sense, confined to the town in which they reside.
All actions betore a justice of the peace must be brought
and tried in the town in which the plaintiff or defendant
dwells ; but where there is no justice of the peace who
can lawfully try the cause in either town, it may be brought
before any justice of the town next adjoining to that where
the plaintiff belongs (?). But where neither of the par-
ties belong in this state, the action must be brought in the
town where the defendant is at the time the suit is commenc-
rnenced ; or if the service is made by attaching the property
of the defendant, or factorising his debtor, the plaintiff and
defendant neither being inhabitants of the st*e, the action
must be brought where the property is attached or the debtor
of the defendant resides. If a suit is brought by a corporation
having no location, it should be brought where the. defend-
ant resides. If the plaintiff is not an inhabitant of this rtate.
the action should be brought in the town where the de-
fendant is when the writ is served upon him, or if service
is made by attaching property, the defendant not residing
in the state at the time, in the town where the property
(m) St. 146. (n) St. 41.
9*
is attached. Where the plaintift' is an inhabitant 01 tins
state, and the defendant is not, the action cannot be brought
where the defendant may be found and a writ served upon
him in the state, but it must be brought where the plain-
tiff belongs. Actions of trespass quare clausumfregit, need
not be brought in the town where the land lies but where
either of the parties belong, in the same county. Where
there is so near a relationship between a judge or justice
of the peace, and either of the parties in any civil action,
as father and son, by nature or marriage, brother and broth-
er, uncle and nephew, or landlord and tenant, such judge
or justice is disqualified to act. And where he is interes-
ted in the suit, and may receive any direct benefit or loss
or is liable for the cost, or has engaged to pay the wholt-
or any part of the expences of carrying on such suit, he i*
likewise disqualified (o). An interest in the question or
principle on which the case depends, not connected with
any interest in the suit, is not a legal disqualification ; but
in such cases a magistrate from considerations of delicacy
at least, ought to excuse himself. An action in which a
corporation is a party or interested, cannot be). It is provided by a subsequent statute that
where writs have not been returned forty-eight hours be-
fore the session, they may be received at the discretion of
the court, the officer's fees to be disallowed. This law
does not extend to suits before justices, although the rea-
son is the same. As the statute requiring writs to be re-
turned before a justice twenty-four hours before the day
of trial, does not expressly say that where they are not so
returned, the justice cannot proceed in the case, it is the
most reasonable construction of the statute, that where no
objection is made on account of the writ's not being re-
turned in season, the justice -can try the case, as the de-
fendant may waive the objection. In case of defaults where
the defendant does not appear, if the writ has not been re-
turned in season, the justice may enter upon judgment by
default, as the defendant may be considered as waiving the
exception by not appearing.
(9.) In an action brought before a justice wherein the
defendant is an inhabitant of the state, but out of the state
when the suit was commenced and does not return before
the trial, such action must be adjourned a reasonable time,
not less than one month, nor more than nine, to give the
defendant an opportunity to return, or for notice to be giv-
en to him. And where in an action before a justice, the
defendant is not an inhabitant or resident of this state, and
actual notice is not given to him, the action must be ad-
journed for a term not less than three, nor more than nine
months (r). If judgment is given on default, without ar<
(p) St. 37. (?) St. 39. (r] St. 40.
41
appearance by any other person for the defendant, and
without the cause being adjourned, in either of the afore-
said cases, it will be erroneous ; and on application to the
county court a new trial will be granted.
In actions on joint securities, where all the defendants
are not inhabitants of this state, service on those that are
inhabitants of this state, is sufficient to maintain the action
against all the defendants ; and in such cases it is not ne-
cessary to continue the suit on account of some of the de-
fendants not being iiihabitants of this state. A justice of
the peace has in no case the power of granting new trials ;
but in either of the aforesaid cases if judgment is rendered
against a defendant who was out of the state at the service
of the writ, who continued absent until after the time of
trial, and who had no actual notice, he may apply to the
county court of the same county, which, on his making it ap-
pear, that such judgment was obtaiaed wrongfully, and that
he has a good ground of defence, may grant him a new
trial, and proceed to final judgment therein. The case is
not to be returned to the justice to be tried again by him.
Petition must be brought to the county court, within six
months after such absent defendant returns or comes in-
to this state, and within three years from the rendering of
the judgment (s). Where judgment was rendered against
an absent debtor after adjourment of the cause, formerly the
form of the judgment was that execution issue on the Plain-
tiff's, giving bond, with surety in double the amount of the
judgment to refund the money in case the judgment
should be set aside. But since the revision of the statutes
this is not necessary. When the defendant does not ap-
pear, or if he appears and does not answer to the case
on its being called, the plaintiff is entitled to judgment
on default, and it is the duty of the justice to enter up
judgment accordingly, and issue execution.
Form of Record on Default.
County of ss day of A. D.
At a court holden before the undersigned authority, at
the time and place aforesaid, John Brown against Peter
(*) St. 40.
4*
42
Smith, action on the case demanding thirty-five dollars
damages ; the plaintiff appeared, but the defendant being
called made default of appearance, whereupon it is consid-
ered that the plaintiff recover of the defendant the sum of
damages, and his costs of suit, taxed and al-
lowed at making in the whole the sum of
dollars and cents ; and that execution issue therefor,
with seventeen cents more for the same, and returnable
according to law.
Dated &c. A. B. Justice of the Peace.
It is.- not however, necessary to make out a record in
full ; it' is sufficient to make an entry or memorandum on
the file, that the case was defaulted on such a day, and to
enter the amount of the damages and costs ; items of the
costs being specified. Such an entry on the file is not a
record of the judgment ; but no inconvenience can arise
from the practice, as a justice is authorised at any time
afterwards to fill up and complete the record, not only
during his continuance in office, but after he is out of office,
except he is removed or left out in consequence of some
crime of which he has been convicted, by impeachment
or otherwise (<). When a justice shall die or removes
out of the state, or is removed from office on account of
some crime, his files shall be by himself or his heirs, ex-
ecutors, or administrators, lodged in the office of the town
clerk of the town where he last resided. And such town
clerk is required to demand and receive such files and re-
cords, and safely to keep the same to give, when requir-
ed, true copies, which shall be legal evidence. And if
such person who has exercised the office of justice of the
peace, and is removed as aforesaid, or the executor or ad-
ministrator of a justice in case of his death, shall refuse to
deliver to the town clerk his files and records within ten
days after they are demanded, he shall forfeit for each
week he so refuses, the sum of five dollars, to be recover-
ed in an action in the name of the county treasurer ().
2. If on calling the action the Plaintiff does not appear,
and the defendant does, the defendant is entitled to judg-
(<) St. 381. (M) St. 381.
nient on non-suit. It is usual to give one hour of grace be-
fore the action is called.
Form of Judgment. At a court, &c. (name the partie?
and cause as in default,) the defendant appeared and an-
swered to the action, but the plaintiff being three times
publicly called, did not answer or appear ; whereupon it
is considered that the defendant recover of the plaintiff his
costs, taxed and allowed at and that execution issue
therefor, with seventeen cents more for the same, and re-
turnable according to law.
A. B. Justice of the Peace.
CHAPTER VI.
//. Of Proceedings in Trials.
When the parties appear before a Justice for trial, vari-
ous motions and interlocutory questions may arise. If the
writ has not been returned in season, an exception may be
taken, either on motion or by plea in abatement.
Of Special Bail.
1. Where the body of the defendant has been attached,
the plaintiff is entitled to special bail. When it is required
by the plaintiff, no defendant, whose person has been at-
tached, and let to bail, shall be admitted to plead or defend
in such action until he hath in court given special bail, with
sufficient sureties for his abiding final judgment in the cause.
If the defendant was attached and imprisoned, and so re-
mained at the time of trial, he cannot be required to give
bail (a). Special bail is to be ordered on motion ; where
the defendant is taken by surprise, it is proper to give him
reasonable time to procure bail, and it may sometimes be
necessary to adjourn the cause for that purpose. The lia-
bility of special, is the same as common bail, or the bail on
the attachment ; he is liable to satisfy thejudgment in case
of the avoidance of the principal and return of non est in-
(n) Stat. 62.
44
ventus that the principal cannot be found on the execu-
tion. When bail is taken on mesne process or attachment,
the bail or surety may at any time during the trial, before
entering up final judgment, surrender the principal up in
court, and move to be discharged. He must thereupon, if
he wishes it, move to have him taken into custody, which
the court will order and grant a mittimus to commit him to
the keeper of the gaol, that his body may be taken on the
execution. If the plaintiff does not move to have him taken
into custody, he will be discharged (6). He is to be kept
in custody live days after final judgment ; when if execu-
tion is not levied on him, he may be discharged (c).
Form of J^Iittimus,
To the Sheriff, &c. Whereas A. B. of was at-
tached by C. D., deputy to the sheriff of by a writ
of attachment in favour ofE. F. of against the said
A. B., demandingthe sum of damages issued by G. H.,
Justice of the Peace, returnable before me this day ; and
the said A. B. having been let to bail, and his said bail or
surety having brought him into court and surrendered him
during the trial, and before entering up final judgment, and
moved to be discharged : Wherefore, you are hereby
commanded to take the said A. B., &c.
If a defendant does not obtain bail in the first instance,
but is committed to gaol, and is bailed whilst confined, as he
may legally be by the sheriff having the charge of the gaol,
the plaintiff has the same right to special bail, as though he
had been let to bail at first. Where the plaintiff is entitled
to special bail, he must move for it before tbe defendant has
been permitted to plead in the case ; for after a plea has
been received it is too late, and as the law requiring spe-
cial bail has an apparent rigour in it, the plaintiff ought to
be held to the strict rule, and his motion rejected, unless
made in season. Where special bail is ordered, and the
defendant neglects, refuses, or is unable to give bond with
surety, if he will not agree to suffer a default, judgment
must be given against him on nihil dicit the defendant's
(&) St. 63. (c} Swf. Dig. 596.
refusing to plead or answer, for if he neglects or refut-e.-
to comply with the legal orders of the court, where'
plea can be received, he is considered as refusing to plead
or answer in the case ; whereupon judgment may be enter-
ed up against him on the ground of such neglect or refu-
sal.
Form of Judgment.
At a court, &c. (same as in default,) the action being
called, the parties appeared, and the defendant bavin;:; been
attached on the mcsne process and let to hail, the plaintiff
moved for special bail, which was ordered by the co'irt,
but the defendant neglected and refused to give special bail,
agreeably to the order of the court, and so the defendant
neglected and refused to answer, plead, or defend in s -iid
cause ; whereupon it is considered that the plaintiff is
entitled to judgment against the defendant, and that he re-
cover of him the sum of damages, .c.
Of Bonds for Prosecution.
2. Where a bond was not given at the praying out of
the writ, or where the bond taken is insufficient, the Jus-
tice, on motion of the defendant, and on satisfactory proof
that the plaintiff or his surety is not able to satisfy the bill
of cost that may be recovered in the suit, must order the
plaintiff to give a bond with surety to prosecute his action
to effect, and pay all d images in case he fail in his suit ().
If the plaintiff neglect or refuse to give bond with sufficient
surety, he must be non-suited, and the defendant is enti-
tled to recover his cost. The proof lies upon the defend-
ant, who must shew that the plaintiff, and his surety where
bonds were given at the issuing of the writ, are not able to
pay the bill of cost that may be recovered. Where the
plaintiff has no visible property on which the execution
might be levied, and where he is without credit, bonds
ought to be ordered ; the mere want of visible property on
which to levy, would not justify ordering bonds, where {he
plaintiff possessed credit, as many persons of sound credit
do not possess visible properly. But when from the testi-
mony it appears probable the defendant would not be able
to collect his bill of cost, bonds should be ordered, as no
(d) St. 40.
person should be dragged into a court of justice and com-
pelled to defend himself, and having done so, be unable to
recover the cost which the law allows him, which is much
less than his actual expense in defending himself.
Of motions for Adjournment.
3. Motions for adjournment frequently occur in trials
before Justices. They may be made by either party, and
at any stage of the trial. Justices have power to adjourn
from time to time, in all cases ; there can be no fixed rules
upon this subject, but they must exercise a sound discretion.
They ought not to adjourn for trivial causes ; the absence of
a material witness, where there has been no neglect of the
party in obtaining his testimony, is always sufficient cause
for postponement. The sickness of a party where his pre-
sence is necessary, or his personal attention in preparing
the case, the sickness or absence of counsel when the par-
ty is surprised by it, and has not had an opportunity to em-
ploy other counsel, and numerous other oirounstanees are
sufficient causes for postponement of a trial. When there
is another suit pending before the higher courts, flpon the
same subject matter, or depending upon the same principle
of law, between the same parties, it is punVient cause for
delaying the trial, until such cause can be decided. So
likewise is the pendency of a petition before the superior
court for thebenefit of the. insolvent law, a reason for post-
poning a cause until such petition can be decided ; for if
decided in favour of the petitioner, his body will be libera-
ted, and execution can issue only against his goods and estate,
ft is usual, however, in such cases, for the plaintiff to take
execution against the goods only ; and where he consents
to do this, there is no cause for postponement. A Justice
may adjourn a cause, without the appearance of either par-
ty on the day, by their previous consent ; or he may ad-
journ for his own convenience, giving the parties notice, if
he conveniently can. Justices also may at their discretion
adjourn a cause, when one party only appears, where they
are satisfied the other party has been surprised, or where
they personally know of satisfactory reasons why the ab-
sent party has not attended. In actions upon notes and oth-
er securities, where the plaintiff has no reason to expect
there is a defence, or that the defendant will appear, it is
IT
not usual tor the plaintiff to attend at the trial, and in such
cases it is proper for the Justice, if the defendant appears
for trial, to adjourn the cause, and notify the plaintiff. But
if the plaintiff' knew there was a dispute about the note, he
ought to attend, and could not be thus indulged. In actions
fin torts, and in all cases where from the nature of the suit
it might be expected to be a dispute, it is as much the duty
of the plaintiff to attend at the time of trial, as that of the
defendant. Actions of book debt, are of an equivocal na-
ture, being for a debt, yet one which may not be liquidated ;
but as the attendance of the plaintiff may be necessary to
substantiate his account, and as the defendant may also
have an account against the plaintiff, it is in general, the du-
ty of the plaintiff to attend himself, or by some other per-
>on. Where, however, there are no mutual accounts be-
tween the parties, and the plaintiff's account is liquidated,
or the amount known to the defendant, actions on book
stand on much the same ground as those on note. As there
i* no regular sessions of justice courts, a liberal practice
ought to be adopted as to adjournments, to accommodate
the parties and others concerned.
Of 'motions for Amendment.
4. Motions for amendment frequently occur in trials
before Justices. The plaintiff may amend any defect, mis-
take, or informality in the writ or declaration, at any time
during the trial ; provided such amendment shall not
change the form or ground of action ; and both parties may
amend any mistake, defect or informality in the pleadings
or other part of the record or proceedings. Either party
may change his plea, replication or rejoinder, when he
thinks he has missed the ground of his plea, and plead anew.
But in all cases of amendment or pleading anew, the other
party is entitled to reasonable notice to answer the same ;
and where the amendment is material, varying the nature
of the claim or of the defence, it is sufficient cause of ad-
journment ; and in all such cases, too, it is discretionary
with the court to allow cost against the party making the
amendment (e). When the amendment is merely verbal.
or some informality, and does not essentially affect the
() St. 44.
48
claim or the defence, costs ought not to be allowed ; but
where it occasions a delay or inconvenience to the other
party, costs should be allowed ; and particularly in all ca-
-es where it occasions an adjournment, unless it is waved.
Of motion j or Oyer.
5. In actions where a note is declared upon, as the gist
or ground of the action, and a profert made thereof, (which
is necessary to be done,) that is, an averment, that the
plaintiff is ready to produce such writing in court, the de-
fendant is entitled to over of such writing. Oyer, is having
the writing read to him, but the practice is to deliver him
a copy of the note or writing, which he is entitled to on
motion. In actions of book debt, the pi tintiff makes a pro-
fert of his book, and must give the defendant a copy of his
account, or the original, on motion. As the defendant also
may have an account against the plnintiff. and as the courts
governed by the common law. refused over of the defend-
ant's account, a statute was made requiring it to be given,
~o that the plaintiff is as much entitled to oyer of the de-
fendant's account now, as the plaintiff is of his. In actions
on bond, it is necessary for the defendant to have oyer of
tiie bond, to see if there is not a condition annexed to it, and
to plead it if there is.
Of Pleas in Abatement.
6. Pleas in abatement are often made before Justices ;
as they do not relate to the merits of the cause, and are
sometimes merely for vexation and delay, they ought not
to be encouraged. The defendant, however, has a right to
offer such a plea, and when he does, it must be received
and regularly disposed of. The plaintiff should be requir-
ed to answer the plea as in other cases, that there may be a
regularissue closed ; this maybe either an issue in fact, or
an issue in law. If the matters set up in abatement are
traversed or denied, it is an issue in fact ; if demurred to.
it is an issue in law. In the former case, the parties intro-
duce testimony as to the matters of fact put in issue, the
same as on issue as to the merits ; and the Justice must de-
cide whether the plea or allegations contained therein, are
true or not ; when the plea is demurred to, the facts are
admitted to be true, and the Justice has to decide as to the
operation of law on these facts, or whether the plea, it be-
49
nig admitted to be true, is sufficient to abate the action.
We do not propose to go into an examination of the various
pleas in abatement, as our object is only to state the mode
of proceeding. We will, however, mention some of the
most common.
Where the plaintiff is under age, and does not sue
by his parent, guardian, or next friend, advantages may
be taken of it in abatement ; but if a minor is sued, it is
not cause of abatement, for the court will appoint a
guardian to conduct the suit for him. This should be done
by the Justice, and the name of the person so appointed
guardian, entered on the file, who should be notified if not
present ; and such person will plead and controul the suit
for such minor. Persons under the care of conservators
and overseers, may sue in their own names ; but it is most
usual to join the conservator or overseer ; and if they are
not, they can withdraw the suit, as well as though their
names were on the record ; although the defendant cannot
plead in abatement. Where such persons are sued without
citing their conservators or overseers, it is not cause of
abatement, but the court will notify them, and continue, or
postpone the case if necessary, to enable them to come in
and defend (/).
If a married woman brings a suit in her own name, with-
out joining her husband, this can be plead in abatement ;
but if she marry during the pendency of the suit, the hus-
band can cause the marriage to be suggested or entered on
the record, and the suit shall proceed in the same manner
as though it had been commenced after the marriage (g).
If a married woman is sued as though she was single, this
is cause of abatement, and also if she marry during the pen-
dency of the suit.
Members of both branches of the General Assembly are
by the constitution privileged from arrest on civil process,
during the session, and fer four days before and after the
same, so that if their bodies are attached, it is cause of
abatement.
Misnomer, or misdescription of either party, is ground of
abatement. Where the defendant is misnamed or misde-
scribed, he can take advantage of it by plea in abatement ;
(/) Swf. Dig. 609. (g) St. 42.
5
50
but he should not plead as defendant, as this would be ad-
mitting himself to be the same person ; but the form should
be, " and, A. B., on whom this writ was served, pleads and
says that at the time said writ was served on him, and for a
long time previous, he was known and called by the name
of A. B., which is his true name, and that he was not at said
time known and called by the name of mentioned
in said writ, and by which he was sued" (/i). If a party is
described as of the wrong town or county, that is cause of
abatement ; but a mere mispelling, either of the name of a
party or place, is not fatal, if the words are the same and
can be rightly understood. If a person is sued as execu-
tor, when he is administrator, or an administrator is sued
as executor, this may be taken advantage of in abatement.
If one of two defendants is misnamed or misdescribed, or
the writ has not been legally served on him, he alone can
take advantage of it, or he may waive it ; and if the cause of
action is joint and several, the writ would abate only as to
the person misnamed, but if joint only, it must abate in to-
to (i). If a person execute a note or writing by a false
name, he must be sued by his true name, and declare that
he executed such writing, by such false name. This is
contrary to the English practice. The want ofjurisdiction
is also cause of abatement, either as to the subject matter,
or the parties ; as where the demand exceeds thirty-five
dollars, or where neither of the parties belong to the town
where the action i* brought. Where the action is on a
note, or other writing which affords evidence of the
amount of thn debt or demand, that is the rule to deter-
mine the magnitude of the claim ; and where the note or
other writing is of greater amount than thirty five dollars,
a Justice has not jurisdiction, although no more than that
sum is demanded in damages. But where the note is less
than thirty-five dollars, if more is demanded, it is bad. In
other cases where the amount of the plaintiff's claim does
not appear from the cause of action as set forth in the de-
claration, the amount demanded in damages is the rule both
as it respects the Justice jurisdiction and the right of appeal.
Where there are more than one plaintiff or defendant, and
one of them dies pending the suit, if the cause of action sur-
(h) Swf. Dig. 609. (i) ib. 60S.
51
Vive for, or against, such surviving plaintifl' or defendant,
such death may be suggested on the record, and the action
will not abate. And if the defendant, or all of them where
there is more than one, in any action, die pending the same,
if the action might originally have been prosecuted, against
the executor or administrator of such defendant or defend-
ants, it shall not abate, and the plaintiff shall have a scire-
facias against the administrator or executor of such deceas-
ed defendant, to shew cause why judgment shall not be
rendered against them (To).
A misjoinder or non joinder, is cause of abatement ; as
where all the persons who ought to have been made plain-
tiffs, or all who ought to have been defendants are not join-
ed. In joint contracts, all the contracting parties ought to
be joined, whether as plaintiffs or defendants ; but those
which are joint and several, all may be joined, or a part on-
ly. Trespasses and torts are joint and several, and all or a
part may be sued. Where persons who are not inter-
ested, and should not be parties, are joined, either as
plaintiffs or defendants, it is cause of abatement. Where
it is claimed that other persons should have been made de-
fendants, the plea must name them, so as to give the plain-
tiff a better writ, as he may not know who they are (/).
A defect in the writ, or service, is ground of abatement.
A mere defect in form, or in an immaterial part, will not
abate a writ ; if it is signed by proper authority, the court
and time so described that they can be understood, it is
good. If a writ has been filled up by a sheriff, his deputy,
or constable, this will abate it. A material alteration in a
writ of attachment after it is signed, will vitiate it, except it
is done by the Justice signing it, as all attachments must be
filled up and completed before they are signed, and a ma-
terial alteration may vary the liabilities of the person who
has given bond (-m). The same rule by parity of reason,
applies to a summons, where, from the plaintiff's being not
an inhabitant of the state, or from his poverty, a bond is re-
quired and has been given at the issuing of the writ.
A defect in service is cause of abatement. Writs should
be served in the manner required by law. If served by
copy, if the copy is left at some other place than the defend
(fc) St. 42. (/) Swf. Dig. 609. (m) Swf. Dig. 610.
ant's abode, it will abate (n) ; so if there is a material va-
riance from the original, it will be bad ; yet if the court,
the time of trial, and the cause of action, can be rightly un-
derstood from the copy, it will be good. The service of
an attachment may be good as a summons, although not good
as an attachment, so as to hold the property, as where in-
correct or no copies are left, yet if the writ was read to the
defendant, it i sufficient to hold him to trial. In case of
defect in a writ, which is discovered before the time of
trial, it may be altered and served over again ; or in case
of defective service, the writ may be served again, or a new
writ may be obtained and served, and the officer need not
return the first (o). If an officer has made a defect or omis-
sion in his endorsement, the service having been regularly
made, he may be permitted to come into court and amend
it. The return of an officer is -prima facie evidence of the
facts stated in it, and sufficient, unless it is disproved. The
pending of another action, whether of the same form or
not, for the same cause and matter, between the same par-
ties, whether before the same or any other court, will abate
the second suit. The rule to decide whether it is the
same cause, is the evidence required to support the action ;
where the same evidence is required, the cause of action
is the same, although the form may be different. As to
form of pleas in abatement, they should begin and end in
abatement ; if they end in bar, they will be considered a?
pleas in bar, and final judgment given. Various distinct
causes of abatement may be included in one plea, and it
will be good. A plea in abatement cannot be received af-
ter the defendant has plead to the action. When an issue
is formed on a plea in abatement, the justice must find the
issue for one party or the other. If the plea is denied, he
must decide either that the facts contained in it are true, or
that they are not true ; if the facts are admitted, and the plea
demurred to, he must decide that the plea is sufficient or
insufficient. If he decide the issue in fact or law, in favour
of the defendant, his judgment is that the writ abate ; if in
favour of the plaintiff, his judgment should be, that the writ
do not abate, and that the defendant answer over, or plead
to the merits of the action. After one plea in abatemetr
(n) 1 Root. 120. yiFoot,5f.O
has been decided against the defendant, he cannot be per-
mitted to plead another, although it consist of different
matter. Where the judgment is that the writ abate, the
plaintiff may amend by statute, but the cost must be paid,
as there is no discretion with the court in such cases. This,
however, can only be done where the defect is amendable.
An appeal may be taken by the defendant from a judgment,
on a plea in abatement, where the action is appealable, and
if he fail to make his plea good, before the court to which
he appeals, he shall pay cost, however the action may final-
ly issue (p). A writ of error also lies on a judgment on a
plea in abatement, but not until after final judgment ().
Of Pleas to the action.
7. These are the general issue, pleas in bar, a traverse,
and demurrer ; which we can barely notice, so as to give
some general idea of them. A demurrer, as we have sta-
led, forms an issue in law. It may be taken to the declara-
tion, the plea in bar, the replication, or any part of the
pleadings. If the defendant demurs to the plaintiff's decla-
rations, he admits the facts to be as set forth, but claims
that the law is so that the plaintiff is not entitled to recov-
er, notwithstanding. The plaintiff must join in the demur-
rer, and then the parties are at issue, whether the law is
so that the plaintiff is entitled to recover or not. When
the plaintiff demurs to the defendant's plea, the question is
whether the defendant's plea is a sufficient answer to the
plaintiff's declaration or not. There may be a demurrer
to evidence, which is, where the party admits the evidence
to be true, but denies its effect and operation in law,
and wishes to raise the legal question ; to carry the cause
to a higher court, or for other reason. This is seldom done,
and is mostly confined to written evidence.
A traverse, is where the defendant denies some material
iact or point in the declaration or where the plaintiff de-
nies all or a part of the facts in the defendant's plea, or
-.vhere the defendant denies all or a part of the facts in the
plaintiff's replication or reply to his plea. It is only a de-
nial of some material fact or allegation in the pleadings, and
must be of some material point which will make an end of
the case.
(p) St. 43. (9) 1 Cay, 28.
5*
54
Pleas in bar, or as they are usually called, special plea*
in bar, are where the defendant admits the truth of the facts
set forth in the declaration, but sets up certain other facts,
by which, he intends to avoid the legal effect of the facts
in the declaration, and defeat the plaintiff's right of recov-
ery.
In an action on a note, the defendant may admit the exe-
cution and the promise, and plead that subsequently he had
paid the note ; or an accord and satisfaction, or that he
was a minor when he gave the note, or any other fact which
admits the execution of the note, but shews that the plain-
tiff is not entitled to recover.
But at the present time, the general issue is the most
common plea, and it is admitted by statute in various cases
where a special plea was required at common law. The
general issue is a general denial of ajl the material facts in
the declaration ; as in an action of trespass, that the defend-
ant is not guilty ; in an action of assumpsit, or on a prom-
ise, that he did not assume and promise. It is provided by-
statute that any defendant may plead the general issue, in
any action, and on the trial give in evidence under such
plea, his title or any special matter in his defence and justi-
fication, according to the nature of the action ; excepting
only a discharge from the plaintiff or his accord and satis-
faction, or some special matter, whereby the defendant, by
the act of the plaintiff', is saved and acquitted from the
plaintiff's demand in the declaration ; provided that at the
time of making his plea, he gives notice to the plaintiff in
writing, of the special matter which he proposes to give in
evidence (r). Such notice must set out such special mat-
ter with nearly the same certainty and particularity as a
special plea. If notice is not given, no special matter can
be received in evidence under a general plea, and the par-
ty will be confined to the same rules and restrictions as at
common law.
It is also provided by Statue that the defendant may by
special leave of court, plead as many several matters bj'
distinct pleas, as he may think necessary for his defence.
Leave to plead double is granted of course by the court
'nlese it shall appear that the party had no other object.
M St. 43.
by pleading a plurality of pleas, than to embarrass the
trial, and confuse the record. When the defendant plead?
several pleas the plaintiff must answer them all, so that
several issues will be formed, which may be either issues
in law or in fact or both. The court must try and decide
all the issues formed. And if any issue is found for the
plaintiff the court must allow the plaintiff his cost, though
on some other issue the defendant should be entitled to
judgment ; unless the court shall be of opinion the defend-
ant had probable, cause, to plead such matter as has been
found against him (s). Unless it is apparent that the de-
fendant plead such matter without any cause or for mere
vexation or to embarrass the trial, he ought not to be sub-
jected to pay a bill of cost, where the action is decided in
his favour on some other issue, as this would in a great meas-
ure defeat the object of the statue. In actions of replev-
in where the defendant makes avowry, the plaintiff has
the same right to plead double, in reply thereto. In ac-
tions on bond, note or other obligation, with a condition
annexed, where the plaintiff does not set out the condition
in his declaration, and where the defendant having prayed
oyer of such writing sets out such condition, and pleads
performance thereof, and the plaintiff replies thereto, set-
ting forth any breach or breaches, the defendant may, with
leave of court, rejoin as many several matters by distinct
rejoinders, as he might have pleaded, had such condition
and breach or breaches, been set forth in the declaration
(t). In an action founded on a note, or other obligation
not negotiable, if the defendant plead or give in evidence,
a discharge, acknowledgement, payment or other act of the
plaintiff on the record, the plaintiff may reply or give in
evidence as the case may require, the assignment of such
note or other obligation and notice given of such assign-
ment to the defendant ; and if such payment, discharge,
acknowledgment, or other act of the plaintiff was after
such assignment, it will not avail such defendant ().
We cannot notice the various matters which may be
given in evidence under the general issue in pursuance of
the statue, but there is one matter, as it rests on a recent
law, and may be of frequent occurrence, we will notice ;
'.)St. 45. (<) St. session 1822. () St. sess. 182-2.
50
we allude to set-offs. Where the plaintiff lives out of the
State, or is insolvent, the defendant may plead a set-off,
of mutual debts, or give it in evidence, under the general
issue on given notice. But a debt claimed by assignment
cannot be set off, unless the plaintiff had notice of such
assignment before commencement of the suit (a). The
debts to be mutual, must be between the same parties, so
that where the debt declared on, is in favour of two or
more persons as partners, the defendant could not set off
a debt against one of such partners. The defendant must
state his debt with the same certainty and particularity as
in a declaration that the plaintiff may be able to defend
against it. He must state the amount of his debt, and that
it exceeds the claim of the plaintiff, to wit, in such a sum,
and that he is willing and offers to allow and set off his
debt against the plaintiff's demand according to the form
of the statue in such case provided ; and conclude with a
verification. If the defendant's debt is less than the plain-
tiff's demand, it may be set off in part ; if it is more, he
may recover the balance ; but if the balance exceeds thir-
ty-five dollars a justice cannot give judgment for the bal-
ance ; but in such cases he must find the amount of the
plaintiff's demand or damages, and also find that there is
a greater debt due to the defendant which he has offered
and is entitled to have offset, and that he off-sets the same
to the amount of the plaintiff's demand and give judgment for
the defendant to recover his cost. The defendant may then
bring an action for the residue of his debt. If the defend-
ant demands a balance due to him, and the court find there
is a balance in favour of the plaintiff they must off-set the
defendant's debt as far as it goes and give judgment for the
plaintiff to recover the residue of his claim (?/). The de-
fendant may give in evidence several distinct debts if the.y
are mutual ones ; if some are proved and others not, those
that are, will be off-set ; or if some are not entitled to be
off-set, they will form no obstacle to the off-set of those
that are. Where a debt or debts are plead or given in
evidence as set off, which are not entitled to be set off, tho.
plaintiff may demur, or traverse, or deny the plea, which
(x) St. 34. (y) Swift's Dig. 713.
will not preclude him from taking advantage of the legal
exception.
8. Of motions or objections as to testimony.
In trials before justices as before other courts various--
questions arise as to the admission or rejection of testimo-
ny. No general rules can be laid down upon this subject,
as all questions of this sort depend upon the law of evidence,
which it does not come within the views of this work to
examine. The parties & all persons interested in the cause,
that is, where they m;iy gain or lose by the suit, or where the
judgmentmay be evidence, for or against them in any other
case, are inadmissible, except in particular cases where they
are admitted by statute ; but an interest in the question or
principle on which the case depends does not exclude a
witness, but affects his credit only. The testimony ought
to be confined to the issue or issues formed in the case and
upon which the parties are on trial ; so that evidence which
is irrelevant and has no bearing on the issue is not to be
received ; but this rule must not be confined to testimony
having a direct bearing on the issue, for any fact or cir-
cumstance which tends to prove any fact put in issue is
proper. Where there is a variance between a note or
other writing declared upon and the one offered in evidence,
this variance may be taken advantage of by an objection to
its being received as evidence on the trial ; and if the va-
riance is material it cannot be received. No fact can be
proved in a court of justice but by the testimony of at least
one credible witness or testimony equivalent to it ; so that
where there is but one witness to a fact, without any cor-
roborating circumstances, who is impeached, the fact can-
not be considered as proved. In all cases it belongs to the
party, whether plaintiff or defendant, who takes the affirm-
ative of an issue to prove it, and if he fails the; cause
must be decided against him, although there is no evidence
on the other side.
When testimony is objected to, the party making the
objection first states the grounds or reasons of his objec-
tion, to which the party offering it replies, and the court
must then decide either to reject or admit the testimony.
If the party against whom the court decides is dissatisfied,
he may file his bill of exceptions, which consists of a state-
ment of the testimony offered, the purpose for which offer-
68
ed, that it was objected to, and admitted or rejected by the
court as the case is. This must be signed by the justice
and it then becomes a part of the record and lays the found-
ation for a writ of error. If the parties cannot agree as
to the facts, or if the bill presented is incorrect, the jus-
tice must correct it, but when correct it is his duty to sign
it, and if he refuse he may be compelled by a writ of man-
damus from the superior court. A bill of exceptions may
be taken to any other incidental question, arising upon any
challenge or exception during the trial, where the facts are
agreed or admitted and the court decides a point of law (z}.
9. Of appointment of auditors.
In actions of account before the higher courts, when
the judgment is for the plaintiff that the defendant do ac-
count, auditors must be appointed to take the account ;
but it is provided by statute that in actions of account be-
fore justices of the peace, the justice shall take the ac-
count, without the appointment of auditors and render
judgment accordingly (a).
In actions of book debt it is provided that where the ac-
count is alleged to be more than seventeen dollars, the
court before which such action is pending shall have pow-
er to appoint three or less judicious and disinterested men
to audit & adjust the accounts between the parties ; who shall
have the same power and be sworn and proved in the same
manner as auditors in the proper action of account ; and the
award being returned into court judgment shall be render-
ed in pursuance thereof (ft). This statute applies to jus-
tices, who are empowered when the account is alleged to
be more than seventeen dollars to appoint auditors. If
the defendant in his plea alleges an account of more than
seventeen dollars auditors may be appointed ; where either
party alleges his account to be more than seventeen dol-
lars auditors may be appointed, although it is in fact less
than that sum. But it is not necessary that auditors be ap-
pointed where the amount exceeds seventeen dollars ;
where either party moves for the appointment of auditor?,
the court is to exercise a sound discretion and appoint them
if the case requires it. / When the accounts of the parties
-iro of long standing, of considerable amount, or involved
':} Swif. Dig-. 771. fa) St. 34 (b] St. 94.
59
in intricacy or difficulty, it would be proper to appoint au
ditors ; and in most cases where both parties request it.
When auditors are appointed they must take the following
oath : " You swear that you will faithfully examine and
adjust the accounts referred to you, and award thereon ac-
cording to your best skill and judgment So help you GotZ."
The parties and other persons interested will be permitted
to testify before the auditors the same as before the jus-
tice. They must make and report to the justice an award,
stating which party they find indebted, and the amount ;
and the justice must render judgment upon such award.
An objection may be made by way of remonstrance, stating
the grounds of the objection to the acceptance of the
award, and it may be set aside by the court, where the au-
ditors have decided against some plain principle of law,
considered matters not submitted to them, committed a mis-
take on their own principles, or improperly admitted or
rejected testimony (c). Where the award is set aside new
auditors must be appointed. It will however probably
seldom be necessary to appoint auditors in trials before
justices of the peace.
Of judgment.
The judgment must follow the issue. The pleadings in
all trials should be regularly closed, and where the parties
are not capable of doing it, the justice should do it himself.
The issue must be expressly and directly decided ; when
it is an issue in law formed by a demurrer to the declaration,
the plea, the replication or the rejoinder, the court must
always give their opinion as to that part of the pleadings
to which the/lemurrer is taken, and which is put in issue ;
for instance, if the demurrer is taken to the declaration,
they must decide that the declaration is sufficient or insuffi-
cient, as their opinion may be. If the question of law is
decided in favour of the plaintiff, they must, after deciding
that point, proceed to give judgment that the plaintiff recov-
er such sum in damages as they may think reasonable and
his costs. If it be decided that the declaration is insuffi-
cient, the judgment must be for the defendant to recover
his costs. In entering up judgment on a demurrer, the
record will read :
o) 1 Swf. Dig. 726.
60
" This court is of opinion -that the plaintiff's declaration
(or the defendant's plea as the case may be) is sufficient,
and thereupon it is considered that the plaintiff recover of
the defendant the sum of dollars damages and his
costs taxed at dollars, or is of opinion that the plain-
tiff's said declaration, is insufficient, and thereupon con-
sider and give judgment that the defendant recover of the
plaintiff his costs taxed at dollars."
Where an issue in fact is joined, the facts put in issue
must be expressly found to be true or not true, and judg-
ment given accordingly. In cases of the general issue, of
owe nothing, not guilty, did not assume and promise, the
court may say, this court does find that the defendant owes
or does not owe, did or did not assume and promise, or is
not guilty in manner and form, the plaintiff in his declara-
tion has alleged, and thereupon it is considered that the
plaintiff recover of the defendant the sum of dollars
damages, and costs taxed at , or if the issue be found
for the defendant ; and thereupon it is considered that he
recover of the plaintiff his costs taxed at . If there
be special pleadings and a traverse or denial of some par-
ticular fact, either in the declaration, the plea, replication
or rejoinder, the court must find true, or not true, every fact
put in issue, and give judgment according to their finding
of the facts (rf). Where there are several issues joined,
in consequence of the defendant's pleading several pleas
in pursuance of the statute, or in other cases, whether
they are all issues in fact, or issues in fact and issues in law,
the court must decide all the issues joined, and give judg-
ment accordingly to their find. If any one issue is found
for the defendant he is entitled to judgment. Where
there are several issues joined between the parties, if the
court finds one issue, and proceeds to give judgment ac-
cordingly, without taking any notice of the other issues
the judgment will be erroneous : so too where the court
renders judgment generally for one pnrty or the other,
without finding any issue. In every trial there must be
one or more issues formed between the parties, which the
court must expressly decide and give judgment accordingly.
The decision of the issue is the principal thing, and tho
'nd having heard the parties with
their witnesses and exhibits, I do find that the said C. D.
did assume and promise, in manner and form the plaintiff
in his declaration hath alleged, and thereupon it is consid-
ered by me that the plaintiff recover of the goods and es-
tate of the said C. D. in the hands of the defendant, as ex-
ecutor of his said last will, the sum of dollars dama-
ges and his costs, taxed at and that execution issue
against the goods and estate of said deceased in the hands of
the defendant, to recover the same, with seventeen cents
more for said execution, and returnable according to law.
Dated, &c.
Execution.
To the Sheriff, &c. Greeting
Whereas A. B. of recovered judgment against
the estate of C D. late of deceased, in the hands
of J. S. executor of the last will of the said C. D. before
me, a Justice of the Peace, for the county of on
the day of A. D. for the sum of
dollars damages, and for the sum of dollars costs of
suit, "as appears on record : whereof execution remains to
be done. These are therefore to command you, that of the
71
money*, goods and chattels of the said C. D. deceased, in
the hands of the said J.. S. to be by him shown unto you,
within your precincts, you cause to be levied, paid and sat-
isfied unto the said A. B. the aforesaid sums, being
dollars and cents in the whole, with seventeen cents
more for this writ, together with your own fees. Hereof
fail not and make due return of this writ, with your doings,
within sixty days next coming. Dated, &c.
Q,. R. Justice of the Peace.
NOTE. If the executor does not pay the execution, and
he has not represented the estate of the deceased insolvent,
after return of the execution, a scire faeias may issue
against him and judgment be obtained, upon which, execu-
tion will issue in common form against him and his estate.
An executor or administrator is not liable to be sued until
the time .for settling the estate has expired ; and then if
the estate was represented insolvent, he is liable for such
sum or proportion of each debt, or dividend, as the credit-
ors are entitled to receive, where, the estate is not suffi-
cient to pay the whole of the debts. In such cases he may
be sued directly for the dividend, or on the original claim,
ns executor, and judgment given only for the amount of the
dividend, or portion of his claim, to which the plaintiff may
be entitled.
2. DECLARATION by the holder of a note not negotiable against
the endorser.
In case of a general or blank endorsement, the contract
or legal liability of the endorser is not an absolute one, but
conditional. It is an undertaking to pay the note in case it
( cannot be collected of the maker, with (Inf. tlill^e.nce un the
part of the endorsee or holder. In ordinary cases he must
sue the maker, and can only come upon the endorser, after
failure of collecting the debt by suit.
In it plea of the case, for that, on the day of
A. D. the defendant had in his possession a certain
writing or note, made and executed by A. B. whereby and
wherein the said A. B. promised for value received, to pay
to the defendant the sum of twenty dollars on demand and
interest ; and that afterwards, viz. on the day and year l.jst
aforesaid, fora valuable consideration, the defendant iy lii-i
72
endorsement on the back of said note, assigned and trans-
ferred said note to the plaintiff, and authorised him to col-
lect and receive the contents of said note to his own use and
benefit. And afterwards, viz. on the day of
A. D. the plaintiff caused said note to be put in suit,
by a writ of attachment issued by Q,. R. justice of the peace,
and directed to a proper officer to serve, of the date last
aforesaid, and returnable before said Q,. R. justice of the
peace for the county of on the day of
A. D. at in said county ; and which said writ
of attachment the plaintiff delivered to O. P. constable of
said town of who thereupon made diligent search
for goods or estate of the said A. B. but finding none, he at-
tached the body of the said A. B. and took bail for his ap-
pearance at court, and returned said writ to said Justice
more than twenty-four hours before the time the same was
made returnable. And on the said day of the plain-
tiff obtained judgment in the name of the defendant, before
said Justice, Q,. R. in said suit against the said A. B. for the
sum of dollars damages, and the sum of dol-
lars costs of suit ; for which said sums execution was duly
issued, and for seventeen cents more, the price thereof,
by the said Justice, Q, R. and directed to a proper officer
to serve, returnable within sixty days from the date there-
of, and bearing date the day of A. D. ;
and the plaintiff delivered said execution into the hands of
said O. P. then a lawful constable of the said town of
who thereupon, and by virtue thereof made diligent search
for goods and estate of the said A. B. whereon to levy to
satisfy said execution, and his fees thereon, but could find
none, and none were shewn unto him by the said A. B.
whereupon the said constable levied said execution on the
body of the said A. B. and him committed to the keeper of
the gaol in and for said county of to be confined in
said prison on said execution. And the plaintiff further
says, that afterwards, viz. on or about the day of
in the year aforesaid, the said A. B. had legally administer-
ed to him, by C. D. Justice of the Peace for said county,
the oath by law provided for poor debtors in prison, and
the said A. B. was thereupon discharged from confinement
in said gaol on said execution ; and which said execution,
with the said constable's doings endorsed thereon, was re-
turned to said Justice, Q,. R. during the life thereof. And
the plaintiffs-ays that said execution hath not in any other-
wise been satisfied than by the aforesaid levy, and that tho
same with the said constable's fees thereon, amounting; to
dollars cents, is now justly due unto tl,r< p]
tiff, and that said judgment hath not been reversed or set
aside, but is now in force And the plaintiff says ihr-
ment thereon, to the said A. B. at and requested pay-
ment of the same ; but the said A. B. then and there neg-
lected and refused iv pay said note or any part thereof
And the plaintiff snys, that the said A. B. was at the time
said note was assigned to him .i aforesaid, and ever since.
hath been insolvent, and wholly unable to pay the contents
of said note, and that he did not at the time of the assign
ment of said note, or at any time since, possess any
goods or estate except what are by law exempted from be
ing taken, that could be attached to secure sau' -M)t, which
is now wholly unpaid and justly due to the plain . iff. And
the plaintiff says that by means of the premises the defendant
became liable to pay to him the contents of said note, and
in consideration thereof afterwards (viz.) on the
day of at assumed and promised thr> plaintiff
to pay to him on request, the contents of the same note ;
7
but his promise not regarding, hath not performed the same
although often requested, &c.
[If the debtor absconds before the note becomes due or
before demand, say :]
And the said A. B. before said note became due, (or im-
mediately after the assignment of said note if then due)
absconded out of this state to parts to the plaintiff unknown ;
;ind at the time of the assignment of said note, and when
the said A. B. absconded as aforesaid, he was not in the
possession of any goods or estate liable to be taken for
debt ; but was totally insolvent and wholly unable to pay
said note, and known by the defendant so to be, when he
assigned said note. And the plaintiff says, that by means
of the premises the defendant became liable to pay the
contents of said note, and being so liable &:c.
[Where the endorser interferes with the collection of
the note or discharges the same, the declaration will be
the same until vou state the interference of the defendant :]
And the defendant appeared before said justice Q,. R. on
the said day of A. D., and then and there
withdrew said suit and prevented the plaintiff from obtain-
ing judgment on said note and collecting the same ; and
which said note hath never been paid by the said A. B. to
the plaintiff, but is now justly due to him. And the plain-
tiff says, that by means of the premises the defendant be-
came liable &c.
[Or where the defendant gives a discharge of the note, say :]
And the said A. B. appeared before said justice at the
time and place aforesaid and'answered to said action ; and
then and there as a defence to the same, plead or gave in
evidence, a discharge from the defendant to the said A. B.
of all claims and demands, executed after the date
and assignment of said note, and before the said A. B.
had had notice of said assignment; and the said justice
did then and there give judgment for the said A. P>. to re-
cover hi.- costs : and by means of the defendant's giving said
discharge the plaintiff was def'.-ntcd in the collection of-iid
note, and put to great cost and charge (viz.) the sum of -f,
'dollars, and the said note hath never been paid to the
}=l iintiiV. but i* m>\v justly due to him, together with his
said cost and charges. And the plaintiff say;, that by means
.-.f the- premises the defendant became liable to pay the
contents of said note and his said costs and charges, arising
from said suit &c.
[Where there has been a discharge, or payment, and no
suit commenced on the note, say :]
And after the assignment of said note (viz.) on the
day of A. D. the defendant settled with the said A. R.
and received from him the contents of said note in full, and
the said A. B. then and there paid to the defendant said
note, the said A. B. not having been notified by the plain-
tiff of said assignment ; or, And after the assignment of
said note and before the said A. B. had been notified of
such assignment (viz.) on or about the day of
A. D. the defendant executed to the said A. B. for a valua-
ble consideration, a discharge of all claims ancf demands,
whereby said note was cut off, and discharged, and the
plaintiff prevented from the collection of the same ; and
which said note hath not been collected or paid to the
plaintiff, but is now justly due to him. And by means of
the premises the defendant became liable &c.
3. DECLARATIONS on Negotiable Notes.
Justices of the peace have now jurisdiction of negotia-
ble notes, where they are for the sum of thirty-five dol-
lars, and expressed not to be on interest. A note less
than thirty-five dollars, cannot be negotiable, and unless
expressed not to be on interest, all notes now draw inter-
est, consequently the accruing interest will immediately
take away the jurisdiction of the justice. But it some-
times happens that justices have occasion to make writs
returnable to the county court. A negotiable note must
be for thirty-five dollars or more, payable in money only,
to any person or his order or bearer. The only difference
whether a note is payable to order or bearer, is, that the
latter pass by delivery, and the former by endorsement.
A negotiable note when assigned or negotiated, is complete-
ly transferred, so that the assignee can sue it in his own
name, and the original promisee cannot discharge or con--
troul it. It is the duty of the holder of a negotiable note
in order to charge the indorser, to make demand of the
maker of payment of the note on the third day after the
note falls due, being the last day of grace as it is called,
if the maker neglects or refuses to pay the note, the hold-
er must immediately give notice to the endorser of the
failure of payment. If the endorser lives in the same
town he must have actual notice ; b\:i if he lives out of
town he may be notified by a letter put into the post-office.
When tiie note is over due at the time it is negotiated, still
a demand must be made of the maker with due diligence,
and notice immediately given to the endorser as in other
cases (a).
The Indorser against the Maker.
In a plea of the case for that, the defendant in and
by a certain note or writing under his hand, and by him
well executed, promised, for value received, to pay to one
A. B. of or order, the sum of with the interest,
in ninety-five days from the date of said note, and which
was dated the day of A. D. ; and the said
A. B. afterwards (viz.) on the day of
A. D. by his endorsement of the same note in writing un-
der his hand, ordered the contents thereof to be paid to
the plaintiff or his order, according to the tenor of said
note, of which the defendant then and there had notice,
and thereby became liable, and in consideration thereof,
then and there promised the plaintiff to pay to him, the con-
tents of the same note, according to the tenor thereof, yet,
although often requested and demanded, the defendant
had never paid said sum or any part thereof, but wholly
neglects & refuses so to do, to the damage of the plaintiff, &c.
Indorsee against the Indorser.
In a plea of the case for that, one A. B. f
on the day of A. D., made his certain
writing or promissory note, his own proper hand being
thereunto subscribed, dated the same day & year last afore-
said, thereby and therein promised the defendant to pay to
him or order, for value received, the sum of
dollars with interest, in ninety-five days from the date
thereof. And afterwards (viz.) on the day of
A. D. by his endorsement of the same note in wri-
.ting under his hand, the defendant ordered the contents of
the same note to be paid to the plaintiff or his order, ac-
cording to the tenor thereof. And the plaintiff says that
afterwards, 9n the day said note became due and payable
(viz.) on the day of A. D. at
(a) 2 Conn. Rp. 419.
77
he presented said note with the said endorsement thereon,
unto the said A. B. and requested him to pay the contents
of the same note, according to the tenor thereof, and of
gaid endorsement ; but the said A. B. then and there neg-
lected and refused to pay the sum of money contained in
said note, nor hath he yet paid the same oT any part there-
of; of which the plaintiff afterwards (viz.) on the day and
year last aforesaid, gave notice to the defendant. And the
plaintiff says, that by means of the premises, the defendant
became liable to pay to the plaintiff the sum of money
mentioned in the same note, and being so liable and in con-
sideration thereof, afterwards (viz.) on the day and year
last aforesaid, assumed and promised &,c.
[Where the note has passed through several hands say :]
One A. B. made and executed his certain promissory note,
dated &,c. wherein he promised to pay to C, D. or order,
the sum of and the interest, in ninety-five days
from the date thereof; and that afterwards (viz.) on the
day of A. D. the said C. D. by his en-
dorsement in writing made on said note, his own hand be-
ing thereto subscribed, ordered the contents of said note
to be paid to J. S. or order, for value received ; and- -after-
wards the said J. S. (viz.) on the day of
\. D., the said sum contained in said note being unpaid,
by his endorsement made on said note, under his hand, and
for value received, ordered the contents of said note to be
paid to the plaintiff &,c.
[Or if you please, you may declare against a prior en-
dorser in the same manner as though there were no sub-
-equent endorsers, alleging the note to have been directly
endorsed by the prior endorser to the holder, taking no
notice of the intermediate endorsements ; but in such cases
you must strike out the subsequent endorsements.]
4. DECLARATION on a Receipt taken by tfn Officer for the
safe keeping and delivery of property taken on Execution.
In a plea of the case for that, the plaintiff says, on the
day of A. D., he was and ever since hath been
a constable of the town of in said county ; and that af-
terwards (viz.) on the day and year last aforesaid, there
was delivered into his hands to levy a writ of execution
issued by .'. P. justice of the peace for the county of
78
upon a judgment recovered before said justice, by A. B,
against C. D., and of the sum of dollars
damages, and dollars costs including seventeen
cents for said writ of Execution, and which was directed
to the sheriff of said county of his deputy or ei-
onstable of said town of and was in due form
of law. And the 'plaintiff afterwards repaired with said
execution to the usual place of abode of the said C. D. in
and then and there made demand of the debt,
or sum due on said execution, and his fees for executing
the same, which the said C. D. then and there neglected
and refused to pay ; whereupon the plaintiff afterwards
(viz.) on the day of A. D. at said
said execution being in full life, levied the same on a cer-
tain horse, the proper goods of said C. D., took the same
into bis possession, and thereupon drew a description of
said horse, and posted up the same on the public sign-post
in the society of in said town, within which socie-
ty said property was taken ; and with said description of
said property, the plaintiff also set up a declaration that
the same would be disposed of at public vendue at the
place where posted, at the end of twenty days from the
day of that day having been previously named at
the hour of o'clock in the afternoon. And the plaintiff
says that afterwards (viz.) on the day of
A. P., whilst he held said property to satisfy said execu-
tion , ud hie fi'os thereon, at their special request, he de-
livered said horse into their hands for safe keeping and
re-delivery ; and thereupon and in consideration thereof
the defendants executed and delivered to the plaintiff a
certain writing or receipt, dated the day and year last
aforesaid, their hands being thereunto subscribed, where-
in they acknowledged the receipt of said property, and
promised the plaintiff safely to keep said horse, and to re-
deliver the same at said sign-post, on the day and hour
mentioned aforesaid, for the disposal of the same accord-
ing to law.
And the plaintiff says that the defendants did not re-deliver
said horse to the plaintiff at paid sign-post on said
day of although he was then and there ready to
receive the same ; nor h;ver of the defendant the aforesaid several sums,
and seventeen cents more for the execution which issued
88
on said judgment, together with the interest thereon ; yet
the defendant, although often requested and demanded, hath
not rendered and paid the said several .sums and the inter-
est thereon, nor either of them, nor any part thereof, but
unjustly detains the same, to the damage of the plaintiff, &c.
7. Declaration of Debt on an Award.
In a plea that to the plaintiff, the defendant render the
sum of which he justly owes to him, and from him un-
justly detains : Whereupon the plaintiff declares and saySj
that on the day of A. D. the plaintiff and de-
fendant mutually and amicably agreed to, and did submit,
certain matters then in controversy and dispute between
them, to the arbitrement and determination of A. B. and C.
D. to hear and determine the same, and make their award
thereon, on or before the day of A. D. ; and
the said A. B. andC. D having agreed to act as arbitrators,
and to examine and decide said matters, afterwards, viz. on
the day of A. D. the plaintiff and defendant ap-
peared before them, and were fully heard with their wit-
nesses and exhibits in the premises whereupon the said
arbitrators did adjudge, decide, and make and publish their
award of and upon the said matters in controversy submit-
ted to them as aforesaid, that to terminate and put an end
to said controversies, the defendant should pay to the plain-
tiff the sum of dollars, in a reasonable time ; yet the
defendant hath never paid said sum nor any part thereof,
although often requested and demanded, and although a
reasonable time hath long since elapsed ; but refuses so to
do, and unjustly detains the same to the damage of the
plaintiff, &c.
8. Debt on Recognizance.
Whereupon the plaintiff declares and says, that the said
defendant, A. B. brought his action of the ease against the
plaintiff by process, returnable before J. P. Justice of the
Peace for the county of on the day of A. D.
and during the trial of said cause, on the same day the
defendants appeared before said justice and acknowledged
themselves holden and bound, in a recognizance to the
plaintiff, the said A. B. as principal, and the snid C. D. as
surety, in the sum of dollars, to be paid to him incase
the said A. B. should fail to prosecute his said action to ef-
fect, and pay all damages in case he fail to make his plea
good; and the plaintiff says that afterwards, viz. on the
same day said justice J. P. gave judgment in said cause for
the plaintiff to recover of the defendant A. B. his costs ot
suit taxed at the sum of dollars ; and thereupon the
said Justice issued an execution on said judgment for the
said sum of and seventeen cents more for said execu-
tion, and afterwards, viz. on the day of A. D.
the plaintiff delivered said execution to O. P. then and ev-
er since a constable of the town of to levy and collect,
and afterwards, viz. on the day of said constable
made return of said execution into the office of said Justice,
J. P. with an endorsement made thereon, that he could find
neither goods, chattels, or the body of the said A. B. where-
on to levy the same, and to his said endorsement he annex-
ed his fees amounting to dollars cents, all of which
may more fully appear, from the files and records of said
cause, ready in court to be produced. And the plaintiff
says that said judgment hath not been reversed, or satisfi-
ed, and that said recognizance hath not been cancelled or
vacated ; and that A. B. did fail to prosecute his said action
to effect, and that he hath also failed to satisfy the dama-
ges and costs sustained by the plaintiff thereby, to the dam-
age of the plaintiff the sum of to recover which, &c.
[Where a recognizance is given on an attachment, say :}
For that on the day of A. D. A. B. applied to
J. P. Justice of the Peace for the county of for a writ
of attachment in his own favour and name, against the plain-
tiff, and the said Justice, J. P. then and there filled up a
writ of attachment in the name and behalf of the said A. B.
against the plaintiff, dated the day and year laet aforesaid,
and returnable before the said Justice, J. P. on the
day of A. D. and thereupon the defendant appeared
before said Justice J. P. and acknowledged himself holder,
bound and obliged unto the plaintiff in the sum of dollars,
to be paid to him in case the said A. B. should fail to .pros-
ecute his said suit to effect, and answer all damages and
costs the plaintiff might sustain if he did not make his plea
good ; and thereupon said Justice J. P. issued said writ of
attachment in due form of law. And the plaintiff further
says, that afterwards, viz. on the day of A. D,
8*
90
the plaintiff recovered judgment in said action before said
justice J. P. for his costs of taxed and allowed by said
Justice, at dollars and cents. [The remainder of
the declaration the same as the last.]
9. Of Scire Facias.
A writ of scire facias may be brought upon a recognizance
taken before a Justice of the Peace, or upon a judgment
when the Justice dies, or is removed from office, or where
either the plaintiff or defendant dies, or against a garnishee
in case of foreign attachment, or factorising suit. Where a
scire facias is brought upon a recognizance or judgment of
a Justice of the Peace, it should be signed by the Justice
rendering the judgment, and made returnable before him if
the demand does not exceed thirty-five dollars. If the de-
mand exceed thirty-five dollars, the writ must be signed by
the justice, and returnable to the county court. If the
Justice rendering the judgment is dead, the writ may be
signed. and made returnable before any other Justice. On
recognizance?, however, i> i? now most common to bring
an action of debt, of which we have already given a form of
declaration.
Of Scire Facias against Garnishee.
[A foreign attachment or factoi ising suit, is a suit in com-
mon form, at the bottom of which there is a direction to
the officer to leave a copy with the debtor, agent, or factor
of the defendant. At the bottom of the writ say as follows :]
And the officer to whom this writ is directed, and who
may serve the same, is also commanded to leave a true and
attested copy of this writ, with C. D. of or at his usual
place of abode, at least fourteen days before the day the
t>ame is made returnable, who is the agent, trustee, factor
and debtor of the defendant in this writ, and has of the
monies and goods of the said defendant, in his hands ; and
you are likewise to leave a like copy at the last usual place
of abode of the defendant, if he hath had any in this state
Plaintiff recognized in the sum of to prosecute, &c.
J. P. Justice of the Peace.
As we have elsewhere stated, the cause must be adjourn-
ed if the defendant is not an inhabitant of this state, not less
ban three, nor more than nine., months. On judgment be-
91
fore the county court in such cases execution cannot issue
until a bond with surety is given to refund the amount of
the judgment, if on a petition for a new trial, the court
should so determine ; but this is not necessary in judg-
ments before Justices of the Peace, no bond being required
by the statute, but the defendant within six months after
his return to this state, may bring a petition to the county
court for a new trial. The return of the execution unsat-
:ind also that demand of the same was made of the
garnishee or the person f ictorised, and of his refusal to pay
the execution, or expose the property in his hands, lays
the foundation for a scire facias, against the garnishee.
10. Declaration of Scire Facias against Garnishee.
To the Sheriff, &c. Greeting. Whereas A. B. of
brought his action of the case on a note against C. D. an ab-
sent and absconding debtor,, by writ of attachment dated the
day of demanding thirty-five dollars, and return-
ahle before J. P. Justice of the Peace for the county of
on the day of A. D. ; and which said writ was
duly served on the said C. D. by leaving a true and an at-
tested copy thereof at his last usual place of abode in this
state, and also, agreeably to the direction therein, a like
copy with the officer's doings thereon endorsed, was left
with E. F. of attorney, agent, trustee and debtor to
the said C. D. more than fourteen days before the day said
writ was made returnable, and which said writ was duly
returned to the office of said Justice ; and on the said
day of A. D. the C. D. not appearing to answer to
said action, the same w.is adjourned to the day of
being more than three months from the day said action was
made answerable, when the said A. B. recovered judgment
against the said C. D. before said Justice, for the sum of
doll.irs damages, and costs of suit, and thereupon said
Justice issued execution for said sums, with seventeen cents
more for said execution, dated the same day ;md year, di-
rected to the sheriff of the county of his deputy, or
either constable of the town of and returnable in six-
ty <> .y* from its date, and which said execution the said A.
B. put into the hands of O. P. then and ever since constate
of the said town of who on the day of made
return of the same into the office of said Justice, J. P. with
his endorsement thereon, that he had made diligent search
for goods of the said C. D. and for his body, whereon to
levy, but could find neither, and that on the day of
he made demand of the said E. F. agent, trustee and debt-
or to the said C. D. of the sums contained in said execution,
and of the monies and goods of the said C. D. in his hands
to satisfy said execution and his fees thereon, but the said
E. F. refused to pay said execution, or to tuin out or ex-
pose any goods or estate of the said C. D. whereon to levy
to satisfy the same ; and to his said endorsement said con-
stable annexed his fees, charged at ; ass by the files
and records of said justice, J. P., in said cause may more
fully appear. And now the plaintiff says that the said C.
D. at the time of the service of said writ, was an absent
and absconding debtor, and thatE. F. at the time the copy
of said writ was left with him, was agent, trustee, debtor
and attorney to the said C. D. and justly indebted to him in
a greater sum th-m the amount of said execution and the
officer's fees thereon ; yet the defendant would not pay the
same, nor expose or discover any estate, whereon the said
execution might be levied and satisfied, whereby the de-
fendant hath become liable to satisfy the paid execution and
the officer's fees thereon, out of his own estate ; and the
plaintiff says that said judgment hath never been reversed
or satisfied, but the same, with the officer's fees on said ex-
ecution are now justly due to him, with the interest there-
on. Wherefore, by authority of the state of Connecticut,
you are hereby commanded to attach (or summon) the
goods, &c. of the said E. F. to the value of &c. and for
want thereof attach his body, and him have to appear before
J. P. justice of the peace for said county of on the
day of then and there to shew reasons, if any he have,
why judgment should not be rendered against him in favour
of the plaintiff, for the amount of said sums contained in
said execution, and the officer's fees thereon .and costs of
this suit. Hereof fail not, but due service and return make.
The plaintiff recognized in the sum of to prosecute.
&c. Dated at, &c.
J. P. Justice of the Peace,
Plea.
The defendant defend-, pleads, and says, that at the time
of the issue of the writ mentioned in the plaintiff's decla-
9.J
ration, he was not agent, trustee or debtor of the said C
D. and that he had not any monies, goods or estate of the
said C. D. in his hands and was not indebted to him in any
sum whatsoever, and hereof for trial puts himself on the
court and prays to be examined on oath, as is by statute
in such cases provided. E. F.
And the plaintiff does likewise. A. B.
1 1. Scire facias on judgment of a justice who is deceased.
To the sheriff &c. Whereas A, B. of on the
day of recovered judgment against
C. D. before J. P. then justice of the peace for the county
of for the sum of dollars damages, and the
sum of costs of suit, upon which said judg-
ment execution was issued by said justice, which has nev-
er been levied, and was returned unsatisfied, as by the
files and records of said justice in said cause will appear.
And whereas since the return of said execution, the said
J. P. is deceased, and no execution can be issued on said
judgment, which hath never been reversed or in any oth-
er way satisfied. Wherefore by authority of the State of
Connecticut, you are hereby commanded to make the said
C. D. to know that he appear before Q,. R. justice of the
peace for the county of on the day of
then and there to show cause, if any he hath,
why the said judgment of said justice J. P. deceased,
should not be affirmed and judgment rendered, against the
said C. D. in favour of the said A. B for the several sums,
damages and costs, of the aforesaid judgment, the interest
thereon, and costs of this suit. Hereof fail not &c.
[Where the justice is left out of office, or has removed
out of the State, allege that fact instead of his being dead.]
12. Scire facites against Administrator or Executor.
To the sheriff &c. Whereas A. B. of on the
day of recovered judgment against C. D.
of before J. P. justice of the peace for said county
of for the sum of damages, and the sum
of costs, and took out execution for said sums, and
seventeen cents more for said execution, which was dated
the same day of A. D. ; and whereas since
the rendering of said judgment, and granting of said exe-
94
cution the said A. B. died ; and whereas E. F. of
is administrator (or executor of the last will,) of the goods
and estate of the said C. D. deceased, and has taken upon
him the burden of said trust. And the plaintiff says that
said judgment hath not been reversed, and the same, and
said execution have never been in any way satisfied, but
are now justly due. Wherefore you are required to cause
the said E. F. as administrator of the estate of the said
C. D. deceased to know that he appear before J. P. jus*
tice of the peace for the county of on the
day of at then and there to show cause, if any
he hath, why judgment shall not be rendered against
the goods and estate of the said C. D. deceased, delivered
into the hands of the saidE. F. as administrator as aforesaid,
Hereof fail not &c. J. P. Justice of the Peace.
13. Scire facias by an Administrator or Executor.
To the sheriff &c. Whereas A. B. of on
the day of recovered judgment against
C. D. before J. P. justice of the peace for the county of
for the sum of damages and the sum
of costs of suit, and took out execution therefor,
dated the,, day and year last aforesaid ; and where-
as afterwards (viz.) on the day of the said
A. B. died ; and E. F. of is executor of the last will
and testament of the said A. B. and hath taken upon him
the execution of the said trust. And the said E. F. a*, ex-
ecutor as aforesaid saith that said judgment hath never
been reversed, and that the same and said execution have
never been paid or satisfied, and thereupon prays remedy
in the premises. Wherefore, you are hereby commanded
to causo the said C. D. to know that he appear before the
said justice J. P. at &c. on the day of &c.
then and there to shew reason why judgment shall not be
rendered against him in favour of the said E. F. executor
of the last will of the said A. B. deceased, for the several
sums aforesaid, amounting to , the interest there-
on, and the costs of this suit. Hereof &c.
J. P. Justice of the Peace.
14. DECLARATION of Covenant.
A covenant differs from other agreements only from its
being under seal. Actions of covenant are now seldom
brought except upon the covenants in deeds, which as
they relate to lands are called covenants real, and go with
the title. Although an action for the breach of covenants
in a deed cannot be brought before a justice of the peace,
as the title is directly brought in question, yet we give a
form of the declaration.
In a plea of covenant broken, whereupon the plaintiff
declares, and says, that on the day of for
the consideration of he purchased of the defend-
ant a certain tract of land, lying described as fol-
lows : and that the defendant on the day
aforesaid, made, executed, and delivered to the plaintiff a
deed of conveyance of said lands, in which, among other
things, the defendant covenanted with the plaintiff, that at,
and until the ensealing of said deed, he the defendant was
well seized of the premises, as a good indefeasible estate
in fee as by said deed ready in court to be shewn, ap-
pears. Now the plaintiff says, that at the time of ""execu-
ting said deed, the defendant was not well seized of the
premises, as an estate in fee, and that he was not owner of
said land, but the same belonged to C. D. and thereupon
the plaintiff says that the defendant his said covenant not
regarding has wholly failed to keep, and perform the same,
though often requested, but has broken the same, and re-
fused, and still does refuse to keep the same, to the damage
of the plaintiff.
CHAPTER X.
OF THE ACTION OF TRESPASS.
Actions of trespass are either for injuries done to things
real, to things personal, or to persons. A parent or master
may maintain trespass for an injury to /us child or servant,
on the Around of loss of service. The first is commonly
c :' 1 trespass quare clansum fregit, and the last assault
ittery. Minors, and persons non compos are li-ible
f ii-espasso5,;md when they are sued, their parents/guar-
dians, conservators or overseers should be notified, if they
-
have any, but if they are not, the court must stay the pro-
ceedings and cause them to be notified. Where a minor
has no parent or guardian, the court will appoint a guardi-
an to defend him in the suit, otherwise the judgment will
be erroneous.
1. Declaration of Trespass quare clttusumfregit.
In an action of trespass, whereupon the plaintiff de-
clares, and says, that on the day of he was
and ever since has been possessed of a certain tract of
land, lying in butted, and bounded, and described
as follows and the plaintiff says that on the
day of the defendant with force, and arms did
break, and enter into, and upon said described tract of land
of the plaintiff, and did tread down, consume and destroy
the herbage then and there growing, and did cut down one
hundred trees, then, and there standing, and growing, to
the damage of the plaintiff.
Where the damage is done by cattle, the declaration
must charge the defendant with breaking into, and entering
upon the land of the plaintiff, and treading down, and de-
stroying the grass, and herbage with his cattle, viz. horses,
oxen, sheep, kc.
Plea.
The defendant defends, pleads and says, that of having
&. maintaining his said action the plaintiff ought to be barred,
because he says that although true it is, he entered on the
said land, described in the plaintiff's declaration, yet he
says he had a good right so to do ; that he is the owner of
said land, and at the time of the acts complained of, the
title of said land was in the defendant, and that ever since
the title to said land hath been and is still in the defendant,
which he is ready to verify, and hereof prays judgment.
Defendant for himself.
Record.
At a court holden &c. A. B. against C. D. action of
trespass, whereupon the plaintiff declares and says that on
the 'i-y of he was seized and possessed
of a certain piece of land, bounded and that
afterwards (viz ) on the day of the defendant
9?
with force and arms entered into and upfi said piece of
land, trod down the herbage and cut and carried away one
hundred trees, then and there standing &c. ; to which, the
defendant pleads and says that true it is, he entered upon
aid land and cut said trees, but he further says that at that
time and ever since he was owner of said land and that the
title thereof was then and is still in the defendant, which
he is ready to verify ; and thereupon the defendant with
surety entered into a recognizance in the sum of
dollars to the plaintiif conditioned that he would enter said
cause and prosecute his said plea to effect in the next
county court of the county of within which the said
land lies, and pay all damages and costs, if he fail to make
bis plea good. J. P. Justice of the Peace.
Recognizance.
H county, ss. II ,
Appeared before me on the day and year above written,
C. D. and E. F. and acknowledged themselves jointly and
severally, the said A. B. as principal and the said E. F. u.~
surety to be indebted and bound and holden unto the afore-
said C. D. in the sum of dollars to be paid, in
case the said A. B. shall neglect and fail tu enter the afore-
said cause in the docket of the county court to be holden
at within and for the county of
and prosecute his aforesaid plea to effect, and pay all the
damages and costs, the said A. B. plaintiff in said action,
may sustain in case he fail to make his said plea good.
J. P. Justice of the Peace.
If the defendant after pleading title, refuses to recognize
with surety, the action must proceed, and his plea be rejec-
ted by the court ; yet if he refused to plead anv other,
judgment may be given against him on nih.il dicit.
2. Declaration of Trespass to personal property.
In an action of trespass, whereupon the plaintiff declare;-
and says, that on the day of he was the
lawful owner of a certain bay horse, six years old, of
' the price and value of one hundred dollars, and the.
defendant on said day, did with force, and arms, take and
<-arry au-uv said horse out of the possession of the plain-
i7
tiff, to some place unknown, whereby the plaintiff has whol-
ly lost the same, to his damage.
In an action of trespass, whereupon the plaintiff declares
and says, that the defendant, on the day of at
did with force and arms, break into the dwelling
house of the ^plaintiff, and did him assault and beat, and
unlawfully imprison for the space of twenty-four hours,
and did with force take, and carry away his goods and chat-
tels, viz. one thousand hats of the price, & value of one thou-
sand dollars, &,c. whereby the plantiff lost the same, to his
damage.
Plea.
And the defendant defends, pleads and says, that he is
not guilty in manner and form the plaintiff hath alleged,
and hereof for trial puts himself on the court.
A. B.
And the plaintiff does likewise. C. D.
3. Declaration of Assault and Bo.ttery.
In a plea of trespass, whereupon the plaintiff declares
and says, that on the day of at he
then and there being in the peace of this State, the defend-
ant with force and arms. viz. with fists and clubs, and with
great violence, did an assault make upon the body of the
plaintiff and him beat and strike many blows, whereby he
was greatly injured, and other injuries and enormities the
defendant then and there did and committed upon the per-
son of the plaintiff, against the peace, and to his damage
dollars &c.
4. Declaration of False Imprisonment.
In an action of trespass, whereupon the plaintiff declares
and says, that the defendant on the at did
with force and arms an assault make upon the body of the
plaintiff, and him did beat and wound, and unlawfully im-
prison, and detained and confined him in prison for the
space of twenty-four hours, and then and there did to him
many other injuries, against the peace and to his damage
5. Declaration Trespass for Debauching the Plaintiff's
Daughter.
In an action of trespass, whereupon the plaintiff declares
rind nvs. that the defendant on the day of
und at divers other times since, did with force and arms,
break and enter into the house of the plaintiff, and assaults
make upon the body of A. B. the plaintiff's servant and
daughter, under the age of twenty-one years ; and the de-
fendant did then and there seduce and debauch the said
A. B. and carnally know her, and get her with child. By
which the plaintiff lost the company and service of his said
servant and child for a long time, viz. from and
was put to great labour and trouble, and was forced to ex-
pend one hundred pounds in maintaining and taking care of
her lying in of said child, to his damage.
ACTION OF TROVER.
T roverjis brought for the recovery of the value of person
al property, which was either unlawfully taken, or is unlaw-
fully detained by the defendant. Where property ha*
been found or loaned, and demand made of the same by
the owner and a refusal to deliver it up, trover may b?
brought.
6. Declaration Trover.
In a plea of the case, whereupon the plaintiff declares,
and says, that on the day of he .was pos-
sessed of ten yards of broadcloth, of the value of ten
pounds lawful money, which was his own proper estate,
and being so thereof possessed, he afterwards on the
day of lost said broadcloth, out of his hands and
possession, which afterwards on the day of
came into the hands and possession of the defendant, by
finding : and the plaintiff says, that the defendant well
knew that the said cloth belonged to the plaintiff, but con-
triving, and intending to deceive, and defraud him, he the
defendant has at all times neglected and refused to deliver
said cloth to the plaintiff, though often requested, particu-
larly on the day of and the defendant af-
terwards on the day of converted, and dis-'
posed of the same, to his own use, to the damage of the
plaintiff.
7. Declaration in the action of Slander.
In a plea of the case, whereupon the plaintiff declares
and says, that from his youth to the present time, he hae
ever sustained a good character, and has never been guil-
100
ty of the crime of^theft, yet the defendant minding and
intending to injure and destroy the character of the plain-
tiff, did on at maliciously, falsely, and openly,
utter and publish in the hearing of sundry citizens of this
state, the following false, and scandalous words of and con-
cerning the plaintiff viz. A. B. (meaning the plaintiff) is a
thief and has stolen my horse (meaning the defendant's
horse) and the plaintiff says that by reason of the defend-
ant's speaking said words, he has been greatly injured in
his good name and reputation, has been put to great trouble
and expense and exposed to a 'criminal prosecution for the
crime of theft, which is to his damage.
8. Declaration Malicious Prosecution.
In a plea of the case, whereupon the plaintiff declares
and says, that he has from his youth to the present time,
sustained a good character, has never been guilty of
perjury, of which the defendant was not ignorant, but con-
triving and maliciously intending to injure the character of
the plaintiff, and bring him to public scandal and disgrace,
did falsely and maliciously and without any reasonable, or
probable cause whatever, on the day of
cause and procure the plaintiff to be informed against, and
indicted for the crime of perjury, in the following manner
(recite the information or indictment -with the whole proceed-
ings and the acquitat). And the plaintiffsays that he was in-
nocent of said crime of perjury charged in said information,
yet the defendant well-knowing the innocence of the plain-
tiff, but intending to injure him did falsely, and maliciously
and without any reasonable or probable cause whatever,
cause, and procure the plaintiff to be informed against,
indicted and prosecuted for the crime of perjury as afore-
said, whereby the plaintiff has been greatly injured in his
reputation, and has been put to great trouble and cost in his
netessary defence ; to his damage.
OF TRESPASS ON THE CASE.
This action is brought either for misfeasance or a non-
feasance ; a wrongful act not immediately and directly in-
jurious, for if so, trespass is the proper action, but only
injurious in its consequences ; and for any omission or of
what the law requires a person to do. This action is a
^uost extensive remedy, and is brought against all officers*
101
agents, trustees, &c. whether public or private, for neglect
of duties ; and is the usual remedy in cases of warranties,
&c. The doctrine of implied warranty in the sale of per-
sonal property, has been adopted in this State. So that if
a person sells a horse or other article of personal property,
for a fair price, and as for a sound horse, the law implies
a warranty that it is sound. In such case it is not necessa-
ry to prove any deeeit, or that the vendor knew the horse
was unsound, for he is liable if he did not know it. iWhere
a person knows a horse to ba unsound, and sells it, rep-
resenting it to be sound, or without such representation,
if he neglects to inform the purchaser of its defects, he is
liable on the ground of deceit or fraud. In an action on
an implied warranty the declaration will be the same as if
it was an express warranty. In all cases when a person
sells an article of personal property the law implies a war-
ranty that he is owner of it.
9. Declaration of Trespass on the case for Warranty.
In a plea of the case whereupon the plaintiff declares
and says, that on the day of he purchased
of the defendant, a certain horse and paid him
therefor, the valuable consideration of one hundred
dallars, and the plaintiff says, that at the time of the
sale and delivery of said horse, the defendant did affirm,
declare and warant to the plaintiff that the same was sound,
wind and limb, and free from any defect or disease what-
ever, and the plaintiff saj'S that at the time of said sale, de-
livery and warranty of said horse, the same was disorder-
ed and defective, and for a long time before, and then had
a certain incurable disease, called whereby said horse
was rendered of no value, and the plaintiff has wholly lost
the same : and the plaintiff says that the defendant has not
kept his said warranty, but has broken the same,
to his damage, &c.
10. Declaration on the case for Fraud.
In a plea of the case, whereupon (he plaintiff declares
and says, that on the day of he purchased
of the defendant a certain horse and paid him therefor,
the valuable consideration of one hundred dollars, and
the plaintiff .-ays, that he purchased said hor.-e as, and
for a sound horse, and that the defendant at the time of said
102
sale and delivery, did affirm and declare to the plaintiff,
that said horse, was sound wind and limb, and free from
any defect or disease whate?er. And the plaintiff further
says, that at the time of said sale and delivery, said horse
was unsound, and then and for a long time before, had an
incurable disease, called which was then well known
to the defendant, but wholly unknown to the plaintiff : and
that the said disease has rendered said horse of no value,
and that the plaintiff has wholly lost the same, to his dam-
age, &c.
1 1. Declaration against an officer for neglecting to levy or
return an Execution.
To the sheriff &c. To summon O. P. of
by reading this writ in his hearing or leaving a copy with
him or at his usual place of abode at least fourteen days before
the same is made returnable, to appear &.c. &c.
In a plea of the case for that, the plaintiff declares and
savs. thnt on the day of he recovered judg-
ment before J. P. justice of the peace for said county of
in his own name and favour against A. B. of
for the sum of damages, and the sum of costs of suit,
and thereupon took out an execution for said sums, with
seventeen cents more for the same, and which said execu-
tion was dated the day and year last aforesaid, directed to
the sheriff of the county of his deputy or either
constable of the town of in the county last aforesaid,
to serve, and return, and was returnable within sixty davs
next coming from the date thereof; arid was all in due form
of law signed by the said justice J. P., as by the files
and records of said justice may appear ; and afterwards,
viz. on the said day of the plaintiff delivered said
execution into the hands of the defendant then and ever
since constable of said town of to levy and collect,
and return the same execution according to law ; yet the
plaintiff says that the defendant neglecting and disregarding
his duty did not serve, levy or collect said execution or
return the same into the office of said justice J. P. withiu
the life of the same execution. And the plaintiff says that
said judgment hath not been reversed, and that the same
and said execution are wholly unsatisfied, and now justly
due, pnd that by means of the premises he has been injur-
ed and damaged the sum of dollars,, to recover
which with costs &c.
103
; :. Where the officer makes a false return within the sixty
days.
[The same as the above until alleging the delivery of
the execution into the hands of the defendant, then say :]
And afterwards viz. on the day of the de-
fendant returned said execution into the office of said jus-
tice J. P. with his endorsement thereon made that he had
demanded said execution and his fees of the said A. B.
who had neglected and refused to pay the same, and that
he had made diligent inquiry and search for goods and es-
tate of the said A. B. whereon to levy to satisfy said exe-
cution but could find none within his precincts ; and also
that he had made like search for the body of the said A.
B. wheron to levy, but could not find the same ; as by the
files &- records of said justice J. P. in said cause may appear.
And the plaintiff says that the said return and endorsement of
the defendant are false and untrue, and that during the life of
said execution and whilst the same was in the defendant's
hands to levy and collect as aforesaid, the said A. B. was
in possession of goods and estate liable to be taken on ex-
ecution, within the said precincts of the defendant, of
greater value than the damages and costs of said execution
and sufficient to have satisfied the same, which might have
been found, taken and levied on, with due diligence. And
the plaintiff says that said judgment hath not been revers-
ed or satisfied, or said execution satisfied or paid, and that
by the aforesaid wrong doings of the defendant, he hath
lost his remedy for the collection of said execution and
judgment to his damage, &c.
13. For not taking property on attachment.
In a plea of the case for that, on the day of
the defendant prayed out a writ of attachment in his own
name and behalf, against C. D. dated the day and year last
aforesaid, signed by J. P. justice of the peace for the
county of and directed to the sheriff or his deputy
or either constable of the town of them command-
ing to attach to the value of thirty-five dollars of the goods
or estate of said C. D. and for want thereof attach his
body ; and returnable before said justice J. P. on the
day of at in said county, and demanding
thirty five dollars damages ; and afterwards, viz. on the
said day of the plaintiff delivered said writ of
attachment into the hands of the defendant then and ever
104
since a constable of said town of to serve and return
acccording to law. And the plaintiff says that afterwards,
viz. on the day of the defendant returned said
writ into the office of said justice J. P. with his endorse-
ment thereon made, that he could not find any goods or
estate of the said C. D. whereof to attach, he having made
diligent search within his precincts, and that for want
thereof he attached the body of the said C. D. and took
sufficient bail for his appearance at court. And the plain-
tiff says that said return and endorsement were false and
untrue, and that the said C. D. was at the time of the ser-
vice and return of said attachment, possessed of goods
and estate to a greater value than thirty-five dollars, liable
to have been attached and taken for debt, within the pre-
cincts of the defendant, which might have been found and
attached, with due diligence and enquiry. And the plaintiff
says that afterwards on the day of he recov-
ered judgment against the said C. D. in said action before
said justice J. P. for the sum of damages and the sum
of costs for which sums execution was then and
there issued in due form, and for seventeen cents more,
which afterwards, viz. on the day of
was put into the hands of the defendant to levy and collect,
who after.vards and whilst said execution was in life and
after having made demand of the same, for want of goods
and estate of the said C. D. levy the same on his body and
him committed to the keeper of the gaol in the county of
and returned said execution with an endorse-
ment of his said doings thereon ; and afterwards, on the
day of the said C. D. had duly administerd
to him the oath by law provided for poor debtors in pris-
on and was thereupon discharged from confinement in
said gaol on said execution. And the plaintiff says that
said judgment hath never been reversed or satisfied, and
that said execution hath never been paid or otherwise satisfi-
ed, than by the aforesaid levy, and that by the said wrong
doings of the defendant, he hath wholly lost said judgment,
and the officer's fees on said execution,"charged at
to his damage the sum of
[In case of the default of a deputy sheriff a suit may br
brought against him or the sheriff.]
J4. Declaration in case for injuries arising froia negligence,
In a plea of the case whereupon the plaintiff declares
and says, that the defendant on the day of
instant, long before, and ever since was, and hath
been an inn-keeper or licensed public taverner in said
and as such hath been used and wont to enter-
tain guests and their horses for certain hire : whereupon
the plaintiff declares and says, that the plaintiff on the day
aforesaid, at aforesaid, being a guest at the
defendant's house, by him the defendant entertained as
taverner aforesaid, he the plaintiff then and there deliver-
ed to the defendant to feed and keep his the plaintiff's cer-
tain horse, of the price of thirty-five dollars lawful mon-
ey, and also a good saddle and bridle to the value of three
dollars lawful money, which the defendant received and
for his certain reasonable hire to be paid, undertook safe-
ly to keep and re-deliver to the plaintiff whenever thereto
requested. Yet nevertheless, the defendant so carelessly
and negligently looked after said horse, saddle and bridle,
as that by the defendant's so negligently and carelessly
keeping as aforesaid, the plaintiff's said horse, soon
after the said day, strayed away out
of the defendant's keeping and custody, and awavfrom the
plaintiff and out of his reach and knowledge ; and the said
saddle and bridle were also lost, contrary to the defendant's
undertaking and trust as aforesaid. And thereby the plain-
tiff is damnified and made worse as he saith, the sum of
lawful money, and therefor and for costs
he brings this suit. Fail not, dated, &c.
OF THE ACTION' OF REPLEVIN.
Replevin is a remedy to regain the possession of goods
which have been wrongfully distrained or taken, and is
the proper action to regain the possession of beasts which
have been impounded, and property attached. In replev-
in of cattle the plaintiff alleges them to have been wrong-
fully taken, and summons the defendant to appear before
the court and answer to a plea of trespass for wrongfully
taking and unjustly impounding his beasts. The defendant
if he admits and justifies the taking by a claim of title to
the land is said to make avowry, which is in substance, a
declaration, setting forth his right or title, and the trespass
f the plaintiff's beasts, and claiming damage.
*i 106
1 o. Writ and Declaration of replevin of beasts impounded.
To the sheriff of F. &c. Greeting.
By authority of the state of Connecticut, you are here-
by commanded, justly and without delay, to cause to be
replevied to T. C., of S. his beasts, to wit, now dis-
trained or impounded by S. H. of N., and by him unjustly
detained, as it is said : and you are to summon the said
S. H. to appear before J. P. justice of the peace for the
county of on the day of A. D.
then and there to answer unto the said T. C., in a plea oi'
trespass, wherein the said T. C. complains, that the said
S. H., on the day of, &c. at M., in a certain
place, called "&c. took the said beasts, that is to
say, and them unjustly impounded and detained
as aforesaid, until this time ; which is to the damage of
the said T. C., as he saith, the sum of dollars,
and therefor brings this suit, &c. (the said T. C.
having given bond according to law.) Hereof fail not, and
make due return of this writ, with your doings thereon,
&c.
Dated &,c. J. P. Justice of the Peace.
The justice who issues a writ of replevin should take a
bond of the plaintiff with surety, or he will be liable him-
self, which should be annexed to the writ.
Bond, or'Recognizance.
You, A. B. and C. D. of acknowledge yourselves,
jointly and severally, bound to E. F. of in a recog-
nizance of dollars, that G. H. of shall prosecute the
writ of replevin, he hath now taken out against the said E.
F. at the next county court, to be holden at on
the Tuesday of next, (or, before the justice of
the peace to whom the same is returnable,) to full effect ;
and in case he make not his plea good, satisfy such demands
and dues as the said E. F. shall recover against him.
Avowry.
And the said C. D. comes into court and defends the
force and inquiry, &c. and avows the taking the said beasts
in the place alleged in the plaintiff's declaration, and avers
that said place where said beasts were taken is in and a part
of a certain parcel of land situated at W containing
acres, and bounded which said parcel of land
iui
.ras at the time said beasts were taken, the soil and free-
hold, and in the possession and occupation of the said C. D. ;
and he further says that said beasts at the time they were
taken at the place aforesaid, were depasturing the grass,
and doing damage on the avo want's said soil and freehold,
and for the doing which said damage, the said C. D. avow?
the taking said beasts, which he is ready to verify, and
prays judgment for the damage done to his said land by the
plaintiff's said beasts, in manner aforesaid, which he says i?
dollars, together with costs and charges.
C. D.
Plea in bur of the dvowry.
And the said A. B. says that the said C. D. ought not to
avow the taking of said beasts, as he has alleged, because he
says that said beasts entered into & upon said piece of land de-
scribed by the avowant, from an adjoining lot of land belong-
ing to the plaintiff, through and over that part of the fence
dividing the said lot of the plaintiff from the said lot of the
avowant, belonging to, and which is the fence of, the said
C. D. and his duty to keep and maintain the same ; and that
the said fence of the avowant through which said beasts
broke and entered, was not at the time said beasts broke
and entered through the same, a good and substantial fence,
five rails high, or a stone wall four feet high, well erected,
or equivalent to such five rail fence, or stone wall ; but
said fence was weak and defective, from which cause the
plaintift's beasts broke through the same, and entered 4ipon
the avowant's said land, from whence they were unjustly
taken, impounded and detained, until delivered and repla-
ced by the plaintiff's said writ ; all which he is ready to
verify, and he prays that damages for the unjust taking and
detention of his said beasts, and costs may be adjudged to
him. A. B.
Replication'.
And the said avowant replies to the said plea in bar of
the s:\id A. B. and says that the part of the division fence
between the said lot of the plaintiff and that of the avowant,
whereon said beasts were taken, belonging to the said A.
B. is not a five rail fence, or a stone wall four feet high,
or equivalent thereto, and that the said beasts broke and
tered on the said land of the said C. D. through his the
A. B.'s part of said fence, in consequence of its defect-
108
iveness, without that, that the said part of said division fence
belonging to the avowant at the time said beasts entered on
said land and were taken, was not a five rail fence, or a
Jtone wall four feet high, or equivalent thereto, and with-
out that, the said beasts broke and entered into and upon
the said land of the avowant where they were taken, through
and over the said C. D.'s part of said division fence, be-
tween said lots of land, and hereof puts himself on the
court. C. D.
And the plaintiff does likewise. A. B.
Record.
H county, ss. H , day of A. D.
At a court holden before me, A. B. against C. D. in au
action of Replevin of certain beasts of the said A. B. alleged
by him to have been unlawfully taken and impounded by
the said C. D. who avows the taking of said beasts damage
feasant on a certain parcel of land situated in the soil
and freehold belonging to him the Sfiid C. D. as he avers,
and to which avowry the said A. B. pleads in bar that said
beasts broke and entered on the said land of the avowant,
through and over a part of the fence dividing and separa-
ting the said lot of the avowant from an adjoining lot of the
plaintiff, belonging to the said C. D. and that the same was
noi a five r ul fence or a stone wall four feet high or equiv-
alent thereto ; and the said avowant replies to the plaintiffs
pica in bar, and traverses the facts or allegations therein, of
the insufficiency of the avowant's said fence, and of said
' having entered through the same, and puts himself on
the court for trial ; and the plaintiff doth likewise, as by the
pleadings of said parties on file more fully appears ; and
having fully heard the parties with their evidences, I do
find that the facts and allegations contained in the plaintiff's
said olea in b;tr are true, whereupon it is considered that
the said A. B. recover of the said C. D. the cum of
damage.?, for the unlawful taking and detention ofthe plain-
tiit" - ^-idbeasis, and his costs taxed at 4'C.
[If the issue is found for the avowant, say :]
I do find that the facts and allegations contained in the
plaintiff's said plea in bar are not true, whereupon it is
<-v>;i-ir!ered th;it the saidC. D. recover of the said A. B. the
sum of damages, for the injury done by^ln: .-.!.;
A. B.'s beasts eu his said land, and his costs, taxed at
and that execution issue in due form.
J. P. Justice of the Peace.
[If the avowant demands more than thirty-five dollars
damages, or an issue is joined as to the title to the laud
whereon the beasts were taken, the cause must be remov-
ed to the county court, in the same manner as where the
defendant pleads title in an action of trespass on land.]
16. Writ and declaration to replery goods attached.
To the Sheriff of the county of, &c.
By authority of the State of Connecticut, you are herein
commanded justly and without delay, to cause to be replevied
unto C. D. of his goods, viz. [here describe them] now
attached and detained by A. B. of by virtue of a writ
of attachment in his favour against the said C. D. issued in
due form, and returnable before J. P. justice of the peace
for said county, on the day of And you are to
return this writ with the said writ of attachment, into the
office of the said justice J. P. twenty-four hours at least be-
fore the said writ of attachment is made returnable, and to
give notice of the same and of your doings hereon to the
said A. B. (the said C. D. having given bond with sufficient
surety according to law). Hereof fail not, but due service
and return make. Dated, &.c.
J. P. Justice of the Peace.
The same bond must betaken as in the preceding 1 case.
and the writ, when it can be done, should be delivered to be
served by the samp officer who attached the property. The
bond should be sumcient to indemnify the attaching party,
and equal to the value of the goods attached. The bond
must be annexed to the writ, and kept on file by the Jus-
tice, as surety to the attaching creditor.
17. Declaration in Replevin, where property is attached be-
longing to a third person.
To the Sheriff, &c.
By authority of the State of Connecticut, you are hereby
commanded justly and without delay, to cause to he repte-
vied to C. D. his goods, viz. [here describe them] wrong-
fully attached or taken by A. B. of by a writ of at-
10
no
tachment in his name and favour, against . F. of and
by him unjustly detained in the custody of O. P. the officer
who served said writ of attachment, and you are hereby
commanded to summon the said A. B. to appear before J.
P. justice of the peace within and for the county of
at his office in in said county, on the day of
then and there to answer unto said C. D. in a complaint or
plea of trespass, wherein the said C. D. complains that the
said A. B. on the day of at wrongfully
took the aforesaid goods, then, ever since, and still the
property of the said C. D. from and out of the possession
of ; the same having been so wrongfully taken on a
writ of attachment duly issued in favour of the said C. D.
against E. F. returnable before J. P. justice of the peace,
for said county, on the day of at as and
for the property of the said E. F. and to respond the judg-
ment that might be recovered against him the said E. F. in
said action ; but the said C. D. says that said goods were
tiot the property of said E. F. when so attached or taken,
but were then and still are the property of the said C. D.
and which said goods so wrongfully taken, have ever since
been and still are unjustly detained from the said C. D. un-
til this time, which is to the damage of the said C. D. as he
aaith, the sum of dollars, and therefore he brings this
suit (the said C. D. having given bond, with sufficient
surety according to law). Hereof fail not and make due
return of this writ, with your doings thereon endorsed.
Dated at J. P. Justice of the Peace.
The following bond must be taken by the justice issuing
the writ, and annexed thereto :
You A. B. and C. D. of acknowledge yourselves,
jointly and severally, bound to E F. of in a recogni-
/ance of dollars, that G. H. of shall prosecute
the writ of replevin, that he hath now taken out against the
Haid E. F. at the next county court, to be holden at
on the Tuesday of next, (or, before the justice of
the peace 1 efore whom the same is made returnable,) and
in case he fail to make his plea good, to return and deliver
the goods directed to be replevied to J. K., the officer, who
attached the same, in a suit in favour of said E. F. against
J.. M. of so that they may be forthcoming to be taken
Ill
on the execution that may be recovered by said E. F. m
said suit ; and on failure thereof, to pay the debt, damage?
and costs, that may be recovered in said suit.
The defendant if he intends to justify, must make avowry,
oi\he may plead the general issue, and by giving notice,
may under that plea set up a justification. Cases of this
kind will usually depend on the right of property in the
goods attached. If the court is of opinion that the goods
belonged to the plaintiff in replevin, the judgment should
be for him to retain the goods, and also to recover damages
for the unlawful taking and detention of them, and his costs ;
but if the plaintiff fail to make out a title to the property,
judgment should be rendered against the plaintiff, that he
return the goods to the officer who attached them, and that
on failure thereof, he pay the value of such goods, when
they do not exceed the amount of the debt or damages and
costs that might be recovered in the suit on which they
were attached, and where they do .exceed it, that he pay
the amount of the judgment, damages and costs that may be
recovered in the attaching suit (a). The judgment must
be according to the statute, and the execution must follow
the judgment.
Record of judgment for the Plaintiff.
At a court, &c. [state the action, the avowry, or justifica-
tion, the reply to it, and the issue joined by the parties, as
in the first case] and having heard the parties with their
witnesses, I find the issue for the plaintiff ; whereupon it
is considered that the plaintiff retain the said goods describ-
ed in his said declaration, and that he recover his costs of
suit taxed at and that execution issue for said costs,
and seventeen cents more for the same, returnable accord-
ing to law.
Judgment for the Defendant.
And having heard the parties, I find the issue for the
defendant, and am of opinion that the plaintiff has failed to
make out a title to the goods described in his said declara-
tion, and do find said goods to be of the value of dol-
lars, and less than the judgment that may be recovered in
the action in which they were attached'; whereupon it is
considered that he return the said goods to O. P. of
he officer who attached the same at the suit of the defend-
(a) St. 383.
ant against E. F. that they may be held to respond the judg-
ment that may be recovered in said suit, and that on failure
of the plaintiff to return said goods, or deliver the same to
the officer who may execute this judgment, that the defend-
ant recover of the plaintiff the sum of dollars dama-
ges, being the value of said goods and his costs of suit tax-
ed at and that execution issue therelbr.
Execution.
To the Sheriff, &c. Whereas A. B. of recover-
ed judgment before me, .1. P. justice of the peace for the
county of on the day of against C. D. of
in an action of replevin, brought on a certain statute law of
this state, by the saidC. D. against the said A. B., that the
said A. B. return the goods replevied to him in said suit,
viz. [here describe the goods] to O P. of the officer
who attached the same at the suit of the said A. B. against
E. F. that the same may be held by said officer to respond
the judgment that may be recovered by the said A. B.
against the said E. F. in said action ; and that on failure of
the said C. D. to return said goods, the said A. B. recover
of the said C. D. the sum of dollars damages, being
the value of said goods, the same being of less value than
the judgment that may be recovered by the said A. B.
against the said E. F. in said action, and the sum of
costs of suit ; whereof execution remains to be done :
These are therefore by authority of the State of Connecti-
cut to command you to demand the said goods of the said
C. D., &on the same being delivered to you, or found by you
with in your precincts, you are to take said goods &. return and
deliver the same unto the said O. P. to be held by him for
the purposes aforesaid, and on failure of said C. D. to de-
liver said goods to you, to be returned as aforesaid, and in
case you cannot find the same so as to return them, you
are further commanded that of the goods, chattels or lands
of the said C. D within your precincts, you cause to be le-
vied, and the same being disposed of or appraised as the
law directs, paid and satisfied unto the said A. B. the afore-
said sum of dollars damages, and the sum of
costs, &,c. [as in common cases.]
[Where the goods are of greater value than the judg-
ment that may be recovered in the original suit at which
the goods were attached, the rule of damages is not the va-
113
hie of the goods, but the amount of such judgment, which
it would seem the court must inquire into. There seeme
to be great difficulty in rendering judgment in conformi-
ty to the statute where the plaintiff faik of making out a
title to the goods, and it would have been better to have
given judgment only for the costs in such cases, and left the
defendant to his remedy on the bond ; and as the law now
is, he has a remedy on the bond, if the judgment in the re-
plevin is in his favour, and is not so rendered as to afford
him redress, or is not enforced, or cannot be enforced from
the inability of the plaintiff.]
Where several persons in distinct suits attach the same pro-
perty, all must be joined in the action of replevin ; the decla-
ration must state each attachment or taking of the property
severally, and all of the attaching creditors must be cited to
appear and defend in the suit. This could not be done ac-
cording to the principles of the common law, applicable to
actions of trespass, as the attachment of the goods by each
creditor would be a distinct trespass, and the defendants
could not be joined ; but the joining of all of the attaching
creditors in one suit, seems to be the only mode in which
the statute can be carried into effect, as there can be but
one judgment rendered. The statute is attended with great
difficulty.
CHAPTER XI.
OF ACTIONS ON STATWTES.
Bastardy.
The form of proceeding upon the statute, providing foi
the support of bastard children, is of a criminal nature, al-
though in its consequences it is only a civil action, (o) Any
single woman who is pregnant with a bastard child, or after
her delivery may exhibit her complaint to a justice ot the
town where she resides, against the person she charges
with being the father of such child ; to the truth of which
(a) Stat. 91.
10*
114
cuinplaiut, she must make oath before said justice, who
thereupon n
day of A. B. of said H . com-
plainant against C. D. of wherein the said complain-
ant snith that the said C. D. is his lessee of a certain mes-
suage situated in H and described in his said com-
plaint, th;it he has been notified agreeably to the statute
in such case provided, to quit said premises ; that he holds
over his leasft and continues in possession after the time,
at or before which, he was notified to quit ; and the said
C. D. being required to answer to said complaint, says he
is not guilty, and for trial puts himself on the country
agreeably to the statute in such case provided : and the
said complainant does likewise ; and the parties having
been fully heard, with their witnesses, the cause w; s duly
committed to a jury summoned for the trinl of the same,
agreeably to the statute in such c^se provided, and du!y
sworn, who on their oaths say, that the said C. D. is lessee
if the said A. B, of the premises described in his saidcoov
11
122
plaint, and holds over the term of his lease, that notice has
been given him to quit, and that he holds possession after
the time, at or before which he was notified to quit said
premises, as is alleged in the complaint of the said A. B. ;
and thereupon it is considered by this court, that the said
A. B. recover the possession of his? said premises, and his
costs taxed at dollars and cents, and that ex-
ecution issue accordingly.
Execution.
To the sheriff &c. Greeting,
Whereas A. B. of recovered judgment before
J. P. Esq. of H , justice of the peace for said
county, in pursuance of the statute in such case provided,
on the day of for the possession of a certain
messuage consisting of a dwelling house, out houses, and
the garden and yard thereunto appertaining, situated in
H , and bounded and described as follows : (here
describe the premises) against C. D. of who un-
justly holds over his lease, and continues in the possession
thereof, after the expiration of the time, at or before which
he was notified to quit the ?ame ; and also for his costs of
suit, taxed at dollars, whereof execution remains
to be done. These are therefore by authority of the state
of Connecticut to command you without delay to cause the
said A. B. to have possession of and in the premises afore-
said, situated in said H consistingof a dwelling-house,
out-houses, ihe land whereon they stand, and the yard and
garden thereunto appertaining ; and also, that of the
monies, goods and chattels of the said C. D. you cause to
be levied (and the same being disposed of as the law di-
rects) paid and satisfied unto the said A. B. the aforesaid
sum of with seventeen cents more for this writ,
together with your own fees : and for want of such mon-
ies, goods and chattels of the said C. D. to be by him
shewn unto you or found within your precincts, for satis-
fying the aforesaid sums, you are commanded to take the
body of the said C. D. and him commit to the keeper of
the gaol in H in the county of H who is hereby
commanded to receive the said C. D. and him safely keep
until he pay to the said A. B. the aforesaid sum, and be
by him released, and also satisfy your fees. Hereof faiJ
,ot, but make due return of this writ, with your doings
thereon, within sixty days next coming.
Dated at the day of A. D.
J. P. Justice of the Peace.
FORCIBLE ENTRY AND DETAINER.
Complaint.
To L. W. Esq. judge of the county court for the county
<)f H and J. P. justice of the peace for said
county comes A. B. of H in said county of H
and complaint make?, that on the day of
he was well seized and possessed of a certain parcel of
land and the dwelling house thereon standing, situated IH
s-riid H and bounded as follows, viz.
and that afterwards on the day of C. D
of ?;iid H the said A. B. then being so possessed
of said premises, did with a strong hand make forcible en
try into and upon the aforesaid premises, and with like
force disseize and dispossess the said A. B. ef the same
premises, and with a strong hand and great force doth con-
tinue unto this time to hold possession of said premise?
and to deforce and keep the said A. B. out of the posses-
sion of the same, against the peace and contrary to the
form of the statute entitled " An act directing proceedings
against forcible entry and detainer." And the said com-
plainant prays process against the said C. D. that he may
be summoned to appear before said judge and justice to
answer to this complaint, and be dealt with herein agree-
ably to the statute aforesaid. And also that you cause to
be summoned twelve freeholders of said county qualified
to act as jurors, to appear before said justice of the peace
and said judge, at the time and place the said C. D. may
be summoned to appear, to fill a pannel to inquire into
the matters alleged herein.
Dated at H day of A. B.
Summons.
To the sheriff of the county of H A:c. Greeting :
By authority of the state of Connecticut you are hereby
commanded to summon C. D. of mentioned in
the foregoing complaint to appear before us, L. W. judge
f the county court for said county and J. P. justice of
124
the peace for said county at the office of said J. P. in said
H on the day of at o'clock in the forenoon,
[there must be six days notice given as in othr cases and
not more than eight] then and there to answer to the mat-
ters contained in said complaint, and be dealt with therein
as to law and justice appertaineth. Dated &c.
L. W., Judge.
J. P., Justice of the Peace.
Venire Facias.
To the sheriff &c. Greeting :
Whereas A. B. of hath exhibited his complaint t*
us, in pursuance of the statute in such case provided,
wherein he saith that C. D. of on the day of
made forcible entry into a certain dwelling-house situated
in said H of which the said complainant was then in
peaceable possession, and disseized the said A. B. and with
a strong hand detains the same and forcibly holds the said
complainant out of the possession thereof. Wherefore you
are hereby commanded to cause to appear before us at the
office of J. P. justice of the pence for said county, in H
on the day of at o'clock in the forenoon, twelve
freeholders of said county, qualified to act in the matter
aforesaid, to form a \>. nnel, and inquire on their oaths into
the allegations and matters set forth in said complaint of
said A. B. Dated at H day of
L. W., Judge.
J. P., Justice of the Peace.
Plea Not guilty.
Verdict.
A. B. against C. D. complaint, for forcible entry and de-
tainer. In this case the jury find that the said C. D. is
guilty in manner and form the said A. B. hath alleged in
his said complaint, and that he have restitution of his said
premises, and recover his costs.
[Signed by the Jurors.]
Record of Judgment.
[State the cause and recite the complaint as in the case
of holding over the term of a lease.]
And the said C. D. pleads not guilty to said complaint
and puts himself on the country ; and the said A. B. does
the same ; and the parties being fully heard, with their
witnesses, the cause was committed to a jury summoned
*nd irnpanneled agreeably to the .^tutute in such case pro
vided, and duly sworn, who return a verdict that the said
C. D. is guilty as alleged in said complaint ; and thereupon
it is considered that the said A. B. be restored to and re-
seized of the said premises described in the said A. B's
complaint, and that the said A. B. recover of the said C. D.
his costs of suit, taxed at and that execution issue there-
for accordingly.
Execution.
To the sheriff &c. Greeting :
Whereas A. B. of recovered judgment against C. D.
of both in the county of H before us, L. W. judge
of the county court for said county of H and J. P.
justice of the peace for said county, on the day of
holding a court of inquiry of forcible entry and detainer,
that he the said A. B. be restored to, and re-seized of a cer-
tain parcel of land, and the dwelling-house thereon stand-
ing, situated in said H and bounded as follows, (here
describe the premises,) and also for his costs of suit, tax-
ed at dollars, whereof execution remains to be done.
These are therefore by authority of the state of Connec-
ticut to command you to cause the said C. D. (taking with
you the power of said county of H if necessary) to
be immediately removed from said premises, and the said
A. B. restored to, and re-seized of the same premises ;
and also that you cnuse to be levied of the goods and chat-
tels of the said C. D. to be shewn unto you or found with-
in your precints (and the same being disposed of agreeably
to law) paid and satisfied unto the aforesaid A. B. thn said
sum of and seventeen cents more for this writ, together
with your fees hereon ; and for want of such goods and
chattels of the said C. D. to satisfy the aforesaid sums,
and your fees, you are commanded to take the body of the
said C. D. and him commit to the keeper of the gaol in and
for said county of H , who is hereby likewise com-
manded to receive the said C. D. and him safely keep with-
in said prison, until he pay to the said A. B. the sum afore-
said, and be by him released, and nlso to satisfy your fees.
Hereof fail not but make due return of this writ within
sixty days next coming, with your doings thereon endorsed,
Dated &c. L. W., Judge.
J. P., Justice of the Peace.
11*
126
[If the defendant shall neglect to appear, the court must
proceed and inquire into the facts and render judgment in
the same manner as though he was present. The court
must be held in the town where the land lies. If the de-
fendant is found not guilty, judgment is to be rendered for
him to recover his costs.]
ACTION ON THE STATUTE FOR CUTTING TIMBER.
Declaration.
In a plea of trespass with force and arms, whereupon
the plaintiff declares and says, that on the day of
he was well seized and possessed of a certain parcel of
land situated in W , in said county, and bounded as fol-
lows, viz. ; and that afterwards on the said
day of the plaintiff being then seized of said land as ^
aforesaid, the defendant wilfully and with intention to injure
the plaintiff, entered into and upon said piece of land, and
with force and arms, then and there cut, fell, and carried
away twenty trees of greater dimensions than one foot di-
ameter, and forty poles or trees of less dimensions than one
foot diameter, then and there standing and growing on said
premises. And the plaintiff says that said trees of greater
dimensions than one foot diameter, were worth, when so
eut and carried away, three dollars each ; and that the
aforesaid wrong doings of the defendant are contrary to the
form of the statute, entitled " An act for detecting and pun-
ishing trespasses in divers cases, and directing proceedings
therein ;" and that by means of the premises and by force
of said statute the defendant hath forfeited and become lia-
ble to pay to the plaintiff for said trees of greater dimen-
sions than one foot diameter, one dollar and sixty-seven
cents for each tree, and also three times the value thereof;
and for each tree or pole under the dimensions of one foot
diameter cut and carried away by the defendant as afore-
said, he hath forfeited the sum of eighty-four cents, amount-
ing in the whole to the sum of dollars, which sum the
defendant hath never paid, although often requested, but
unjustly refuses so to do. And the plaintiff says that by
means of the premises and by force of said statute he hath
been injured and damaged the sum cf dollars, to re-
I'over which &c.
ACTIONS OX THE STATUTE TO RECOVER THE VALtL Of
COUNTERFEIT BILLS.
When a person receives a counterfeit bank bill, it is hit
duty to deliver it to some justice of the peace, who, if he
is satisfied the bill is counterfeit, must deface it, enter the
name of the person of whom he received it on the back
of it, and retain it in his possession. The person so de-
livering up a counterfeit bill must give notice to the person
of whom he took the bill with whom it is left, and demand
payment, and on neglect or refusal, may bring an action for
the recovery of the amount thereof on the statute. He
must not offer to return the bill to the person of whom he
received it, and if he does, it will bar him of his remedy
on the statute, but he could maintain an action at common
law, if he has common law testimony. The object of this
provision is to stop the circulation of bad bills. A suit may
be brought without notice and demand of payment, where
the plaintiff can make oath before the justice issuing the
writ that he verily believes it necessary in order to secure
the demand. In an action on this statute the parties may
be examined, on oath. The action need not be brought
before the same justice with whom the bill is left.
Declaration.
In an action brought on a certain statute entitled " An
act to prevent the passing of counterfeit bills or coins,"
whereupon the plaintiff declares and says, that on the
day of at the defendant uttered and put off, and the
plaintiff then and there took and received of the defend-
ant for a valuable consideration, a certain false, forged and
counterfeit bank bill or note purporting to have been issued
by the president, directors & Co. of the Pho?nix Bank, a
bank incorporated by the laws of this state ; and which is
of the denomination and sum of five dollars, payable to
or bearer on demand, and purporting to have been
signed by C. S., president, and countersigned by G. B..
cashier, and numbered ; and which said counterfeit
bill the plaintiff received as for a true bill, he then believ-
ing the same so to be, and paid the defendant the full
amount thereof. And the plaintiff says, that afterwards
on the day of discovering said bill to be false and
forged, he in pursuance of said statute lodged the same
bill with J. P. Esq. justice of the peace for the county of
H , and thereupon viz. on the said day of
at gave notice to the defendant that said bill was coun-
terfeit, that he had lodged the same with said the J. P. and
at the same time and place demanded of the defendant
payment of the same bill or note, which the defendant then
and there neglected and refused to pay, and hath ever
since neglected and refused to pay the plaintiff the amount
of said counterfeit bill, although often requested and de-
manded. And the plaintiff says that by means of the prem-
ises, and by force of said statute, an action hath accru-
ed to the plaintiff to recover of the defendant his just dam-
ages in the premises, which he says are seven dollars,
which the defendant hath never paid, nor any part thereof,
although often requested and demanded, and to recover
which and his costs, his suit is brought, &c.
Action on statute to prevent gaming.
Any person losing any money or other property not
less than one dollar in gaming or by betting on any game
played by others, may recover the same back at any time
within three months ; and after three months if the loser
has not brought an action to recover the same, any other
person may sne for it and recover treble the value thereof.
Where the loser brings this suit he may call on the defend-
ant to disclose under onth.
Declaration by the loser.
In a plea that to the plaintiff the defendant render the
sum of dollars which to the plaintiff the defendant
justly owes and from him unjustly detains, whereupon the
plaintiff declares and says, that on the day of
the defendant won from the plaintiff the said sum of
dollars by playing at cards with him, and the plaintiff then
and there lost said sum by gaming with the defendant as
aforesaid, contrary to the statute entitled " An act to prevent
gaming." And the plaintiff says that by means of the prem-
ises and by force of said statute, an action hath accrued to
him to recover of the defendant the aforsaid sum, yet the de-
fendant hath never paid the same nor any part thereof, al-
though often requested and demanded, to the damage oi'
the plaintiff the sum of to recover which and costs he
brings this suit.
1*3
Action on statutes for preventing mischief by dogs.
Every person is responsible not only for the mischief or
Jamage done to the person or property of another, by his
ivn dog, but also for that done by the dog of his minor
':hild or servant.
Declaration where the dog of the defendants son injures
the son of the plaintiff.
Then and there to answer unto A. B. of in an action
brought on a certain statute, entitled " An act for preventing
mischief by dogs," whereupon the plaintiff declares and
says, that C. D. of is and for more than one year last
past has been the owner and keeper of a dog called
and -that said C. D. is a son of the defendant and a minor
under the age of twenty-one years ; and the plaintiff says,
that on the day of at the s.-id dog of the
defendant's said son, being a mischievous and ferocious dog,
attacked E. F. a child of the plaintiff of about ten years of
age, and did bite and wound him severely, whereby the
plaintiff was put to great trouble and expense for surgical
assistance, nursing and taking care of his said child. And
the plaintiff says that by means of the premises and by
force of said statute, an action hath accrued to him to re-
cover of the defendant the damage he hath sustained in
the premises, which he says is the sum of dollars, which
sum the defendant hath never paid, although often request-
ed and demanded, and to recover which with costs this
suit is brought.
Declaration where the defendant's dog killed the plaintiff" 's
sheep.
In an action brought on a statute entitled " An act for
preventing mischief by dogs," whereupon the plaintiff says,
that on the day of a certain dog, of which the de-
fendant was then and ever since hath been the owner and
keeper, called tiger, killed two of the plaintiff's sheep in
his pasture at H of the value of three dollars each.
And the plaintiff says, that by means of the premises, and
by force of said statute an action hath accrued to him to
recover of the defendant his damages in the premises, which
he says are seven dollars, which the defendant hath neg-
lected and refused to pay, although often requested, and t
recover which &c.
130
.-iciion oa, statute regulating Drivers of Stages and other
Carriages.
In an action brought on a statute entitled " An act for the
i-egulation of drivers of stages & other carriages ;" where-
apon the plaintiff declares and says, that on the day of
he was travelling on the road leading from S to H
in a pleasure waggon of four wheels drawn by one horse,
when he was met by the defendant at W travelling in
an opposite direction on said road in a large four wheel
carriage or waggon, drawn by two horses, of which the de-
fendant was the driver, the plaintiff turned to the right
hand, leaving ample room for the defendant to pass, \\ith-
out injury to his own or the plaintiffs carriage, and leav-
ing him more than half of the travelled path, and afford-
ing him fair and equal advantage to pass, but the defend-
ant then and there drove his said carriage or wasrgon so
carelessly and negligently, that he run the same forcibly
against the carriage of the plaintiff, whereby the same was
over-set and much injured and broken, and himself greatly
exposed. And the plaintiff says that the aforesaid wrong
doings of the defendant are contrary to the form of the
aforesaid statute, and to his damage five dollars ; and that
by means thereof and by force of said statute, the defend-
ant hath forfeited and become liable to pay to the plaintiff
the sum of fifteen dollars, being treble the said damages
sustained by the plaintiff, and that an action hath accrued
to the plaintiff to demand and recover the same ; which the
defendant hath neglected and refused to pay, although often
requested and demanded, and for the recovery of which &c.
CHAPTER XII.
OF QUI-TAM ACTIONS ON STATUTES.
This is a mixed action, brought in the name of a common
informer, or the person injured, where by a breach of some
statute, a penalty or forfeiture is incurred, a part of
which is given to the public, and a part to the party injur-
ed, or a common informer ; or where a fine or other pun-
ishment is incurred for a breach of a statute, and damages
131
given to the party injured. In the former case, where
there is a forfeiture or penalty incurred, part to the pub-
lic, either a town, county, or the state, and a part to the
person injured, or some common informer, a qui-tam action
nriy be brought in the name of the state and the common
informer, to recover the whole penalty. This is a mere
civil suit, and the same notice must be given as in other
cases, and it is entirely under the control of the person
who commences it. Where a part of the penalty is given
to a town or county, the action should be brought in the
name of the state and the common informer. In cases of
a forfeiture, part to the public and part to the person who
prosecutes for the offence, a public prosecution may be
brought for the whole penalty previous to the commence-
ment of a suit by a common informer.
Information qui-tam on statute, is different from an action
qui-tam ; this is a criminal proceeding brought forward and
prosecuted by a common informer, or the person injured, in
his own name and that of the state. An information qui-tam
can only be brought where the statute expressly provides
that remedy, in case of a forfeiture, part to the public & part to
the party injured or a common informer ; or where an offence
is prohibited by statute and a fine or other punishment in-
flicted, and also damages to the party injured, and the stat-
ute makes no provision as to the remedy. This is a prac-
tice which has grown up in this state, but ought not to be
extended. An infoimation qui tain is essentially a criminal
proceeding, and the form is much the same as a public
prosecution ; it is however under the control of the pic.in-
tiff and can be withdrawn by him (a).
Qui-tam for Pound Breach.
To answer unto A. B. of who sues in his own name
and behalf, as well as in the name and behalf of the state of
Connecticut, in an action brought on a certain statute entitled
" An act to provide pounds and to regulate the impounding
of creatures," whereupon the plaintiff declares and says,
that on the day of he found the cattle of the de-
fendant, consisting of (describe them) doing damage on his
hind, situated in said town of and which said land is en-
(a) Swf. Dig. 686-7.
tag
closed by a sufficient fence, and then and there took the
same and proceeded with the said beasts and caused them
to be confined arid lawfully impounded in a pound kept by
C. D. in said town of and which said pound is nearest
the place where said beasts were taken ; and thereupon
the plaintiff gave notice to the defendant of his having so
taken and impounded his beasts, damage feasant. And tbe
plaintiff says that afterwards, viz. on the said day of
in the night season at said the defendant broke the
said pound, and conveyed from and out of the same, his
said beasts, whereby the plaintiff hath wholly lost his
poundage and damage. And the plaintiff says, ihA by means
of the premises and force of the statute aforesaid, the de-
fendant hath forfeited, and that an action hath accrued to
the plaintiff to recover of the defendant the sum of seven
dollars, the one half to and for the use of the treasury of
?aid town of and the other half for his own use, and
also the damages sustained by the plaintiff by said pound-
breach, which the plaintiff says is seven dollars ; which
sums the defendant hath never paid, although often re-
quested and demanded, and to recover said several sums,
for the uses herein specified, and his costs, this action is
brought, hereof tail not, &c.
Qui-tam for gaming against the winner.
To answer unto A. B. of who sues as well in the
name and behalf of the state of Connecticut as in his own
name and beh-ilf, in an action brought on a certain statute
entitled " An act to prevent gaming," whereupon the plain-
tiff declares and says, that on or about the day of
at the defendant and one J. S. played divers games ot
cards together, for the space of more than one hour, and
that in and by said games the defendant won of the said
3. S. the sum of ten dollars, and that the said J. S. lo=t in
plaving said games at cards the said sum of ten dollars,
which was won by the defendant and then and there paid
and satisfied to him by the said J. S. contrary to the form
of the statute aforesaid. And the plaintiff snys, that the
said J. S. has not brought his action on this statute against
the defendant to recover said money so won from him by
the defendant, although three months from the time the
^ame was so won, has long since elapsed. And the plain
133
tiff say=, that by means of the premises and by force of
said statute, the defendant hath forfeited and become liable
to pay, and that an action hath accrued to the plaintiff to
recover of him the sum of thirty dollars, being treble the
value of ten dollars, so won by the defendant, of said J. S.
at said games, one half thereof to and for his own use, and
the other half for the use of the said county of H ,
which said sum the defendant hath never paid, nor any part
thereof, although often requested and demanded ; and to
recover which, for the uses aforesaid, with costs, this suit
is brought, &c.
Information qui-tam for Breach of Peace.
To J. P. of Esq. justice of the peace for the county
of comes A. B. of said and complains as well in
the name and behalf of the State of Connecticut, as in his
own, that on the day of at in said county, C. D.
of said with force and arms, did assault, beat and wound
the complainant, then and there in the peace of this state
being, and about his lawful business, whereby he was great-
ly injured in his person, suffered much bodily pain, and for
a long time was unable to attend to his business ; and which
said wrong doings of the said C. D. are against the peace
and contrary to the form of the fifty -ninth section of the
statute, entitled " An act concerning crimes and punish-
ments," and of evil example. And the complainant prays
process against the said C. D. that he may be arrested and
examined touching this complaint, and be dealt with there-
in, agreeably to said statute. Dated &c.
A. B.
[Warrant, the same as in criminal cases, as the delin-
quent is to be arrested forthwith.]
Record of Judgment.
At a court holden at this day of C. D. was
brought before me by virtue of a warrant issued on the
complaint of A. B. for that on the day &c. [recite the
allegations in the complaint] and the said C. D. being re-
quired to answer to said complaint says that he is not guilty,
and puts himself on the court for trial ; and having fully
heard the parties, T do find that he is guilty in manner and
form as alleged in said complaint ; whereupon it i
134
ered that the said C. D pay a fine of seven dollars to the
treasury of the said town of [and that he be impris-
oned ten days in the common gaol of said county,] and it
is further considered that he pay to the said A. B. the sum
of five dollars damages, and the costs ot this prosecution,
and stand committed until judgment be complied with.
[If the offence is of a very aggravated nature, and requires
greater punishment than a fine of seven dollars and one
month's imprisonment, the justice may bind the offender
over to the next county court.]
Qui-tam for trespasses committed in the night season.
To J. P. of Esq. justice of the peace for the county
of comes A. B. of said and complains as well in the
name and behalf of the state of Connecticut as in his own
name, that one C. D. of on the day of at said
in the night season of said day, viz. about the hour of
o'clock, in a secret and clandestine manner, with
force and arms, did wantonly, wilfully and maliciously,
shear and cut off the mane and tail of a certain bay horse,
the property of the plaintiff, whereby the same was great-
ly injured and rendered unfit for use for a long time ; and
which said wrongdoings of the plaintiff are contrary to the
statute entitled " An act to detect and punish trespasses
committed in the night season ;" and the said complainant
prays process against the said C. D. whereby he may be
arrested and brought before your worship, that he may be
examined touching said offence in the manner provided in
said statute, and be dealt with in the premises as to said
statute, and to justice appertaineth.
A. B.
[Warrant, same as in criminal cases, except that the of-
fender must be brought before the same justice to whom
the complaint is presented, and who issues the warrant. If
the complainant produces proof o as to render it probable
the accused did the acts complained of, he must be ad-
judged guilty unless he shall offer to be examined on oath.
If he offers to be sworn the justice must admit him to his
oath, and if from his testi irony he can satisfy the court that
he did not commit the injury complained of, or was not
aiding therein, he must be acquitted and recover his costs.
If he is found guilty, judgment is to be rendered against
135
him for the damages and the costs, but he is not to be fined
as was the case before the revision of the statutes.]
Record of Judgment.
At a court holden &c. was brought before me, C. D. by
virtue of a warrant issued on the complaint of A. B. for
that &c. [recite the charges] and being required to answer
thereto, the said C. D. says he is not guilty and puts him-
self on the court for trial ; and having heard the testimo-
ny introduced by the plaintiff, and the said C. D. refusing
to be examined on oath, touching said trespass, I do find
that the said C. D. is guilty in manner alleged in said com-
plaint, whereupon it is considered that he pay to the said
A. B. the sum of twenty dollars damages for said injury,
and the costs of the prosecution, taxed at , and stand
committed until judgment be performed.
Qin-tam for theft.
To J. P. Esq. of justice of the peace for the county
of comes A. B. of and complains as well in the
name and behalf of the State of Connecticut as in his own,
that on the day of A. D. at , one C. D. of
with force and arms, feloniously did take, steal and carry
away one ox-chain, of the value of three dollars, of the
property of the said A. B. then and there being, against
the peace, contrary to the form of the statute in such case
provided, and of evil example : and said complainant prays
process against the said C. D. that he may be arrested and
examined touching this complaint, and be dealt with there-
in as to law and justice appertaineth.
A. B.
[Warrant same as in criminal cases. The judgment will
be the same as in a public prosecution far theft, except
that damages are also to be given to the complainant ; the
justice must expressly find the value of the property, and
give judgment that the offender pay treble the amount to
the complainant, in addition to a fine, and whipping, when
the latter is required by the statute.]
136
CHAPTER XIII.
Pleas in abatement.
1. To the jurisdiction of the court.
A. B. vs. C. D. action of assumpsit on note : the de-
iendant comes into court and pleads and prays the opinion
of the court, whether it will take cognizance of the plain-
tiff's said action ; for that he says the note in and by which
it is alleged the defendant assumed and promised, including
the interest which has accrued thereon, is of greater
amount than thirty-five dollars, and the promise set up and
alleged in the plaintiff's said declaration, is to pay a greater
sum than thirty five dollars, which he is ready to verify,
and hereof prays judgment, &c. C. D.
2. Abatement for defect in writ.
The defendant defends, pleads and says, that the plain-
tiff's said writ and process ought to abate, and the defend-
ant be no longer held to answer thereto, for that, the defend-
ant says the plaintiff's said writ was filled up on the day
of by M. S. then and ever since a lawful constable of
the town of and that said writ was in no otherwise
drawn and filled up, than by snid constable, who served the
same, which he is ready to verify ; and he prays judgment
of the plaintiffs said writ and process, that the same may
abate and be dismissed.
C. D.
General issue to an action of Assumpsit, with notice that
special matter will be given in evidence.
The defendant defends, pleads and says, that he did not
assume and promise, in manner and form the plaintiff hath
alleged, and hereof for trial puts himself on the court.
A. B.
The plaintiff will take notice that on trial of the above
action, under said plea, the defendant intends to give in ev-
idence the payment of said note, wherein the plaintiff de-
clares the defendant assumed and promised &c. : (or that
he intends to give in evidence the following special matter,)
viz. That on or about the day of the plaintiff caus-
ed the defendant to be falsely arrested and taken into cus-
137
tody, on a pretended writ of attachment, and demanded in
said writ the sum of five hundred dollars, under the false
pretence that the defendant had slandered the character
of the plaintiff ; and that the said pretended writ of attach-
ment was not signed by any proper authority, and that his
pretended arrest was illegal, and his detention thereon false
imprisonment ; and he was so falsely arrested, detained and
threatened with imprisonment to oppress him, and extort
money from him, and that whilst so falsely arrested and
detained, and to obtain his releasement and liberty, he ex-
ecuted said note, on which &c., which the defendant saith
was obtained by duress of imprisonment.
A. B.
A general notice is not sufficient, but it must set out the
particular matter which the defendant proposes to give in
evidence. In such state of pleadings, if the court is of
opinion that the defendant did assume and promise, but
finds the special matter contained in the notice to be true,
as claimed by the defendant, the judgment however must
be that the defendant did not assume and promise, as that is
the only issue formed.
Of Several pleas in pursuance of the statute.
The defendant pleads, defends and says, that he did not
assume and promise, in manner and form as the plaintiff has
alleged, and hereof for trial puts himself on the court.
And for further plea in this behalf, leave of court having
been obtained, he pleads and says, that of having and main-
taining his said action, the plaintiff ought to be barred, be-
cause he says that the note on which &c. is corrupt and
usurious, for that he says, that on or about the
day of it was corruptly and usuriously agreed by and
between the plaintiff and defendant, that the plaintiff should
loan to the defendant the sum of dollars for the peri-
od of ninety-five days, and that the defendant should give
him for the use and forbearance of said sum for said time,
more than at the rate of six dollars, for the use and for-
bearance of one hundred dollars for one year, to wit, the
sum of five dollars, which said sum of five dollars was and
is included in said note ; and that these was and is included
in said note the sum of dollars and cents over and
above the rate of six dollars, for the forbearance of one
hundred dollars for one year, usuriously and corruptly, and
12*
138
that said note was executed in pursuance of said usurious
and corrupt agreement, and to carry the same into effect ;
and that the same is usurious and corrupt, which he is
ready to verify ; prays judgment &.c.
And for further plea in this behalf he pleads and says,
that on the day of A. D. and since the said prom-
ise alleged in the plaintiff's said declaration is declared to
have been made, the plaintiff in and by a certain receipt or
release of that date, for the consideration of dollars
discharged and released the defendant from all demands
whatsoever, as by said release or writing ready in court to
be produced, may appear ; and which he is ready to ver-
ify ; judgment &c.
C. D.
Replication.
And now the plaintiff replies to the defendant's said sev-
eral pleas, by him pleaded, and says, that as to the defend-
ant's said first plea he joins issue thereon ; and as to the
defendant's second plea, the plaintiff says that, on the
day of the defendant borrowed of the plaintiff the sum
of dollars, for the period of ninety-five days, when it
was agreed by said parties, that the defendant was to pay
the plaintiff for the use and forbearance of said money, af-
ter the rate of six dollars for the forbearance of one hun-
dred dollars, for one year, and no more ; and that in pur-
suance of said agreement the defendant executed a note
for said sum of , payable in ninety-five days from- the
said day of , and which is the same note on
which &c. without that, that the said note on which &c. was
given in pursuance of a corrupt and usurious contract,
and upon a corrupt and usurious consideration, and that
there is included in the same, corruptly and usuriously, the
sum of dollars and cents, for the use and forbear-
ance thereof, more than at the rate of six dollars for the
forbearance of one hundred dollars for one year, and this
he is ready to verify : prays judgment. And as to the
third plea, by the defendant pleaded, the plaintiff says he
ought not to be barred any thing alleged therein notwith-
standing, because he says that previously to the date and
execution of said discharge, pleaded by the defendant, viz.
on or about the day of , the note on which kc.
had been assigned and transferred by the plaintiff, to one
E. F. for a valuable consideration, and notice of such as-
signment given to the defendant previous to the execution
of said discharge, viz. on or. about the day of at
, and the plaintiff says that the defendant obtained said
discharge, with a full knowledge of the fact, that said note
had been assigned as aforesaid, for a valuable consideration,
and with intent to defeat the collection cf said note and
defraud the said E. F. of the same, which he is ready to
verify : judgment &c.
A. B.
Rejoinder.
And now the defendant rejoins to the replication of the plain-
tiff and says, that as to the second plea, by him pleaded, the
note on which &x. is usurious and corrupt, that it was cor-
ruptly agreed between the plaintiff and the defendant on
the day of that the defendant should pay the plain-
tiff for the use and forbearance of the sum of dollars
ninety-five days, the sum of five dollars, and that the note
on which &x. was executed in pursuance of said corrupt
agreement and upon said usurious consideration, and that
there is contained in said note usuriously and corruptly the
sum of dollars and cents, and hereof puts him-
self on the court. And as to the replication of the plain-
tiff so far as relates to the third plea by the defendant
pleaded, he says that the plaintiff ought to be barred, with-
out that, that previous to the execution of said discharge, on
or about the day of the note on which &,c. was assigned,
bonafide^ and for a valuable consideration by the plaintiff
to the said E.F. and without that, that at the time, or previous
to the executions of said discharge the plaintiff had notified
the defendant of said assignment which he is ready to ver-
ify : judgment &c. C. D.
Sur -rejoinder.
And the plaintiff sur-rejoins to the rejoinder of the de-
fendant and joins in the issue tendered as to the second
plea of the defendant ; and as to the defendant's rejoinder
relating to the third plea, the plaintiff says, that previous
to the date and execution of said discharge, the note on
which &c. had been assigned by the plaintiff to the said
E. F. bona fide, and for a valuable consideration, and also
that previous to the execution of said discharge, the said
E. F. notified the defendant of the assignment of said note,
140
and that the same was his property, and hereof for trial
puts himself on the court. A. B.
And the defendant does likewise. C. D.
Record of Judgment.
At a court &c. A. B. against C. D. action of assunopsit
on note, demanding thirty five dollars damages ; the par-
ties appeared and the defendant pleads, first, that he did
not assume and promise, as alleged ; and with 'leave of
court further pleads, that the note on which &c. was a
corrupt and usurious note give in pursuance of a usurious
agreement, and that there is usuriously included therein,
the sum of dollars and cents, more than at the rate
of six dollars for the forbearance of one hundred dollars,
for one year, and further pleads a general release and dis-
charge of all demands executed subsequently to said note ;
the plaintiff replies to the plea of the defendant and joins in
the issue tendered in the first plea ; and as to the second
traverses the facts alleged therein ; and as to the third plea,
he says, that previous to the execution of said discharge,
the note on which &c. had been assigned to E. F. and no-
tice there* f given to the defendant prior to the execution
of said discharge ; and the defendant rejoins to the repli-
cation of the plaintiff and affirms over his second plea and
puts himself on the court ; and as to the replication of the
plaintiff so far as relates to the third plea, the defendant
traverses the facts alleged therein of the assignment of said
note and notice thereof, and prays judgment ; the plaintiff
sur-rejoins to the rejoinder of the defendant, and joins in
the issue tendered as to the second plea ; and as to the
third plea, he affirms over the facts alleged in his said re-
plication as to the assignment of said note and notice, and
puts himself on the court ; and the defendant does likewise,
as by the pleadings on file may more fully appear ; and
having heard the parties I find the first issue for the plain-
tiff, that the defendant did assume and promise, and I also
find the second and third issues for the plaintiff, whereupon
it is considered &:c. or I find the first and second issues for
the plaintiff, but find the third issue for the defendant, that
at or previous to the execution of said discharge, he had
not been notified of the assignment of said note, and there-
upon it is considered that the. defendant recover his costs Stc.
141
General issue and notice of set-off' to action on note.
The defendant defends, pleads and says, that he did not
assume and promise in manner and form the plaintiff hath
alleged. C. D.
The plaintiff will please to take notice, that on the trial
of this action it is proposed under the above plea to give
in evidence a set off ; for that the defendant says, that at
the date and issuing of the plaintiff's said writ, the plainliff
was and now is indebted to the defendant on book, in a
greater sum than the amount due on the note on which &c.
viz. the sum of sixty dollars, and that the plaintiff's said
debt secured by said note and the defendant's claim on
book are mutual debts, that the plaintiff is wholly insolvent,
and that he has always been willing and ready, and is now
ready and offers to set-off his said debt or claim on book,
against the said note of the plaintiff; and the defendant
says that the sum due him on book exceeds the sum due
from him to the plaintiff' on said note the sum of thirty
dollars, which he claims to recover and his costs.
C. D.
General issue in an action of Trespass against several.
The defendants in court severally defend, plead and say,
that they are not guilty in manner and form as the plaintiff
hath alleged, and hereof severally put themselves for trial
on the court. A. B.
C. D.
Judgment.
At a court holden &c. J. S. against A. B. and C. D. in
an action of trespass for taking and carrying away the plain-
tiff's goods ; the defendants severally plead not guilty, and
put themselves on the court for trial, and the plaintiff does
likewise, as may more fully appear by the pleadings on
file ; and having fully heard the said parties, I do find that
the said A. B. is not guilty of the wrong alleged against
him in the plaintiff's declaration, and do further find that
said C. D. is guilty in manner and form, as is alleged in the
plaintiff's declaration, and also find that the plaintiff is dam-
aged by the said trespass and wrong of the said C. D. tin-
sum of dollars ; whereupon it is considered that the
plaintiff recover of the said C. D. the sum of dollars
damages, and his costs of suit, taxed at , and that exe-
142
cution issue therefor ; and it is further considered, that
the said A. B. recover of the pi u'ntiff his costs, taxed at
and that execution issue therefor accordingly.
Demurrer.
And the plaintiff says, that the defendant's said plea, and
the matters therein contained, are insufficient in the law,
judgment &c. A. B.
And the defendant says his said plea, and the matters
therein contained, are sufficient in the law. judgment, &,c.
C. D.
Special Demurrer.
And the plaintiff says that the said plea of the defendant,
and the matters therein contained, are insufficient in the
law, and for causes of demurrer the plaintiff says, that said
plea is informal, and double, and that it amounts to the gen-
eral issue and nothing more : and prays judgment ice.
A. B.
Judgment by confession.
A justice may take a confession of judgment to the a-
aiount of seventy dollars
On Book.
H county ss. H day of A. D.
You A. B. of confess and acknowledge yourself to
owe and be indebted unto C. D. in the sum of dollar?
en book, to balance book accounts, and hereby acknowl-
edge a judgment against yourself in favour of the said C.
D. for that sum, and for twenty-five cents costs, before
me ; whereupon it is considered that the said C. D. recov-
er of the said A. B. the sum of dollars damages, and
the sum of twenty-five cents costs, and that execution issue
therefor accordingly.
J. P. Justice of the Peace.
On Note.
You A. B. of , confess and acknowledge that you are
justly indebted on the within note, [where the judgment
is made on the back thereof] in the sum of seventy dol-
lar?, [or, if the record is not made on the note, say in a
certain note, dated Sic. describe the note,] and hereby ac-
knowledge a- judgment against yourself in favour of said
C. D. for that sum, and for tweniy-five cents costs, before
me : whereupon it is considered that the said C. D. re-
i43
cover of the said A. B. the sum of seventy dollars dama-
ges and the sura of twenty-five cents costs, and that execu-
tion issue therefor &.c.
Execution, same as in other cases, except that it should
be stated that A. B. of recovered judgment against C.
D. of upon his acknowledgment and confession, before
J. P. Esq. &c. ; so that it may appear upon what authority
a justice of the peace rendered a judgment and issues an
execution for a greater sum in damages than thirty-five dol-
lars.
CHAPTER XIV.
Of the judicial powers and duties of Justices of the Peace
of a criminal nature, '
The power of Justices of the Peace in criminal matters
consists of authority to cause arrests in all cases, to try and
sentence for certain crimes of which they have jurisdiction,
and to examing and recognize to the higher courts for of-
fences where they have not jurisdiction, and also in certain
cases to order offenders to give bonds to keep the peace, and
for their good behaviour. In examining the executive du-
ties of Justices we noticed their power of granting war-
rants, and need only add here, that a Justice of the Peace
is authorized to grant a warrant to arrest and bring b :fore
himself or any other justice of the county, all persons
charged with the commission of a crime, of however high
a nature, that he may be examined and dealt with accord-
ing to law. All officers of the government, whether of the
state or the nation, in the militia, army or navy, must sub-
mit to the authority of a Justice's warrant, legally issued
upon the complaint of an informing officer, stating the cause
of the arrest. A justice may direct his warrant to an in-
different person to be served in any part of this state, or
to a proper officer, to be served within his precincts (a).
In criminal cases there is no limitation of the authority
of a Justice, as to persons ; it is of no consequence who
the offender is, or where he belongs ; the only limitation
is from the location of the crime. It is a gre it principle
of the common law, which has been adopted in this State,
(a) St. seas. 1822.
144
and every where else, where the common law of England
has been introduced, that crimes must be punished where
they are committed. This principle is founded primarily
upon the consideration that the offender must be punished
by the laws of that community which have been violated,
and part from considerations of humanity, as it is thought
but reasonable that persons accused of crimes, should be
tried where they were committed, and where they may be
supposed to be best known. In this State all crimes must
be punished in the county where they were committed,
except theft, which may be punished either where the
crime was committed or in any county where the criminal
may carry the stolen property, and the crime of bigamy,
which may be tried where the parties are apprehended.
If a person is maliciously stricken or poisoned in one county
and dies in another within a year, he must be tried in the
county where the stroke or poison was given. A Justice
can only grant a warrant to arrest within his county, for
crimes committed therein, but his warrant is sufficient au-
thority to arrest in such cases in any part of the state, if
the criminal flees out of the county (6). A justice has no
more authority to grant a warrant to arrest a person for a
crime committed out of his county, triable by the county
or superior court, and to bind such offender over for trial,
than he has for crimes of which he has jurisdiction.
A Justice has jurisdiction of all offences committed with-
in his county, punishable by fine or forfeiture, not exceed-
ing seven dollars. This is the general extent of his crim-
inal jurisdiction, but by particular statutes it is extended ;
in case of theft he has jurisdiction, where the property
stolen is of the value of thirty dollars, and may inflict a
fine of seven dollars, order the offender to be whipped, and
sentence him to pay treble the value of the property stol-
en, to the party injured, where he brings forward a suit in
his own name, and that of the state ; in a prosecution for
breach of the peace, the offender may be fined seven dol-
lars and sentenced to be imprisoned in the count}' gaol not
exceeding one month. In all cases of qui-tam informations
where there is a fine to the public, damages are also to be giv-
en to the party injured. The jurisdiction of a Justice is not
final and conclusive in criminal matters, except for the
crimes of drunkenness, profane swearing and cursing, and
(6) St. 171.
breach of sabbath ; in all other cases an appeal lies to the
county court, and the right of appeal is the same whether
the process is a complaint of an informing officer, or qui-
tam information. A writ of error may also be brought
upon the judgment of a justice in all criminal cases, to the
superior court, for any error apparent upon the record,
the same as in civil cases. In all cases where a justice
has not cognizance of the offence, and can not proceed to
pass sentence upon the offender, he must bind him over
as it is called, to the court having jurisdiction of the of-
fence. This is an important branch of the authority of
Justices of the Peace and should be exercised with much
discretion. They are not to decide upon the guilt of the
accused, this belongs to the court and jury having final
jurisdiction of the offence. The statute provides that in
such cases, the Justice shall inquire into the facts charg-
ed, and if he shall be of opinion that probable ground ex-
ists to support the complaint he may order the accused to
enter into a recognizance with surety for his appearance
before the court having jurisdiction of the crime. If he
acquits a person against whom there exists probable
grounds of his guilt, he takes the case away from the court
having jurisdiction, and from a jury, which is the proper
tribunal in all matters of fact, particularly those of a crim-
inal nature, and decides upon the guilt of the accused
himself, although he has no jurisdiction of the offence ;
and on the other hand, if he binds over persons where the
evidence is slight, and where no probable cause exists, he
often does a serious injury to the accused and subjects the
public to unnecessary expense. The duty of a magistrate
in such cases has been considered as analogous to that of
a grand-jury ; he is not to try the accused, but to inquire
into the matter, and decide whether there is probable
grounds of his guilt, so that he ought to be held for trial.
It is provided by statute that any Justice of the Peace,
from his personal knowledge may ex officio require sureties
of the peace and good behaviour of any person, who threat-
ens to beat or kill another, or contends with hot and an-
gry words, or by threats, turblence and violence, or any
other unlawful act, terrifies and disturbs the good people
of the state (a). This authority to order bonds to keep
(a) St. 147.
13
146
the peace by a justice ex-officio does not seem consistent
with another statute (6), which provides that no judgment
shall be rendered for any offence except for drunkenness,
profane swearing, and hreach of sabbath, without a previ-
ous complaint and warrant, not even on personal view or
confession. It would be safest in such cases for the ma-
gistrate to cause a complaint to be made and signed. When
any individual shall complain on oath to a Justice of the
Peace against any person that he has just cause to fear
that he will imprison, beat or kill him, or procure others
to do so, and that he is under fear of death or bodily harm,
such justice may require sureties of the peace and good
behaviour of the person complained of, and on his failure
to procure the same, may commit him to gaol, there to
remain till the next county court, or until he is otherwise
legally discharged (c). The provisions of this statute are on-
ly in confirmation of the common law. Surety of the
peace may be demanded by all persons having legal dis-
cretion ; by a wife against her husband, who may threaten
to beat or kill her ; and even by a husband against his
wife, for like causes (d). Surety of the peace may be
granted against all persons of legal discretion, against mi-
nors and femes covert, or married women ; but in such
cases they can not become bound themselves, but must be
ordered to become bound by surety, and in case of failure.
>rocure the same, must be committed. It can not be
lercd against an idiot or a person non compos mentis.
All persons who actually break the peace by assaulting or
beating another, or by threatening to kill or beat another,
or who go armed offensively, or appear with an unusual
number of attendants, to the terror of the people, may be
required to give sureties of the peace, on complaint of a
proper intorming officer. Challenging to fight or quarrel,
is a cause for binding to keep the peace, and to good be-
haviour ; and threatening to burn or destroy the property
of another, as well as threatening to injure their persons ;
persons guilty of an affray, may also be bound to keep the
peace.
If any person shall break the peace by assaulting or beat-
ing another, or by tumultuous and offensive carriage, threat-
?&) St. 172. (c) St. 14B. (d) Hawk. P. C. 253.
to pr
orde
147
turns, traducing, quarrelling, or challenging any person, n
the presence of a constable, he mny arrest him, and bring
him before a Justice of the Peace, but the Justice can not
order him to procure sureties of the peace, without a
complaint and warrant, charging him with the offence.
Surety for good behaviour may be required of common
drunkards, idlers, common cheats, common thieves and
gamblers, prostitutes, and common whore-mongers, such
a.- raise the hue and cry, without cause, or lie in wait to
rob (e).
Justices of the Peace have authority on complaint or in-
formation of the District Attorney for the district of Con-
necticut, to inquire into offences against the laws of the
United States, committed within the district or upon the
high seas, by any person coming into the district, and to
bind them to the circuit court for trial.
CHAPTER XV.
OF. PROCESS AND TRIAL.
fn criminal cases the process consists of a complaint or
information and warrant. Grand-jurors are the proper in-
form ing officers, but constables and tything-men, may act
as such, in case of offences against the laws relating to
the sabbath and disturbing public worship. Grand-jurors
are town officers, and can only make complaint of offences
committed within their respective towns ; if a person
commits a crime in pne town and goes into another in the
same county, he can not be informed against by a grand-
juror of the latter town. The complaint too of a grand-
juror can only be presented to a Justice of the town where
the grand-juror belongs. Constables, if they act as inform-
ing officers, are also confined to their town. If any grand-
juror refuses to make complaint of any crime committed
within the town, that comes to his knowledge, he forfeits
two dollars. The several grand-jurors of each town of
which there can not be less than two, nor more than swr,
(0 Burns' Just. 243, 4. Statutes 250.
may meet when they think proper to advise concerning
breaches of the peace, and 'inquire after offences, and make
complaint of the same. They are authorized to summon
persons to appear before them as witnesses ; and if they
refuse, to procure a capias and compel them.
The attorneys for the State may also act as informing of-
licers before justices, andean make complaint of all crimes
committed in any town in the county, and to an}' justice of
the peace of the county.
A complaint may also be made by a private person for
sureties of the peace and good behaviour, where he has
just cause to fear that another will imprison, beat or kill
him, or procure others to do it, or where he is under fear
of death or bodily harm ; but'in such cases he must make
oath to the truth of the complaint, which must be certified
thereon by the justice.
The complaint contains a statement of the crime, charg-
ed in proper, legal language, the time and place of its com-
mission, and concludes with praying that the offender may
be arrested and examined, and must be signed by the grand-
juror. A warrant is issued by the justice annexed to the
complaint, directed to a proper officer, commanding the
arrest of the person accused, and that he be brought be-
fore himself, or some other justice of the peace of the
county, that he may be examined touching the crime charg-
ed in the complaint, and be dealt with according to law.
For the crimes of drunkenness, profane swearing and
cursing, and breach of sabbath, of which a justice of the
peace or constable has personal view, the offenders may
be arrested and fined without any complaint or process,
but for no other offence can a justice pass sentence, or ren-
der a judgment without a complaint and warrant. There
are qui-tam complaints or informations or which we have
already spoken.
2. Of Trial in Criminal Cases.
Trials in criminal cases are essentially the same as in civ-
il. The prisoner must be arraigned, or the complaint pub-
licly read to him, and he then required to plead or answer
to the same ; and in all cases he must either plead guilty
or not guilty. If he pleads guilty the justice proceeds to
pass sentence, or orders bonds for his appearance before
149
the court having jurisdiction, as the case may require ; if
he pleads not guilty the court proceeds to inquire into the
charges alleged in the complaint. If the prisoner is a min-
or the justice must appoint a guardian to defend him, in the
prosecution, and advise him how to plead. This must be
done before he pleads, and an entry of the appointment
made on the file. In criminal cases, the rules of evidence
are the same as in civil, except that depositions are not
admissible ; nor can they be admitted in qui-tam informa-
tions, where corporeal or other punishment is inflicted (e) j
and that in capital offences the testimony of at least two
witnesses is required, or that which is equivalent thereto.
When a case is adjourned, a practice has prevailed of re-
turning the process to the officer, by virtue of which, to
hold the prisoner ; but this is incorrect, for after the pris-
oner has been brought before the court and the officer
made his indorsement, the warrant has been executed and
can give no authority to detain the prisoner. The regu-
lar mode is to order him to enter into recognizance ; and
if he refuses or is unable to procure surety, he must be
committed, or the justice may give a written or verbal
order to an officer to take him into his custody, and have
him forthcoming ; but he should retain the process in
his hands as the grounds of his own authority ; but in
cases not bailable, no recognizance can be taken.
Judgment.
Where the court have jurisdiction they must, as in civil
cases, find the issue either that the prisoner is, or is not
guilty, and in the latter case proceed to render judgment,
according to law. A warrant must then be issued to carry
the judgment into execution, containing a command to a
proper officer, to inflict the punishment, levy the fine and
costs, or to commit to prison, the offender. In cases of in-
quiry where the justice has not jurisdiction, if he finds
that the prisoner is guilty, or rather that there is probable
groands to support the complaint, he must order him to
become bo'ynd i n a recognizance, with sufficient surety,
that he appear before the court having cognizance of the
crime, at it*! next term. Where the superior court has
fe) Swift's Ev. 144.
13*
140
cognizance of the offence, and the prisoner is bound to ap-
pear before that court, the recognizance should be taken
to the treasurer of the State ; when he is bound to the
county court, il must be taken to the treasurer of the
county. There can be no fixed rules as to the amount of
bonds ; this must depend upon circumstances ; the natura
of the crime, the situation and pecuniary circumstances of
the. prisoner, the certainty or doubtfulness of his guilt ;
but the sum ought to be reasonable having reference to
the circumstances of the case, as the constitution provides
that excessive bail shall not be required. The object of
bail is to favour personal liberty, and whilst on the one
hand proper regard is to be paid to this object, on the oth-
er it must not be forgotten, that the security of the pub-
lic is the primary object of all punishment, and if such
bonds were not required as would be likely to hold the
prisoner to trial, the object of the law would be defeated,
rogues after they were within the reach of justice be suf-
fered to escape, and society exposed to their depredations.
Of Commitment.
If the prisoner refuses or is unable to procure bonds, or
in cases hot bailable, he must be committed to gaol to
await his trial. This is done by authority of a mittimus
or warrant of commitment, which contains a recital of the
cause of commitment, and a command to the officer to con-
vey and deliver the prisoner into the custody of the keep-
er of the gaol of the county, and also a command to such
keeper to receive him into such gaol, to be kept therein,
until discharged by due course of law.
Of Fines and Costs.
All fines, penalties, and forfeitures, not otherwise dis-
posed of by law, imposed on any person by a justice of
the peace, belong to the treasury of the town wherein the
offence was committed. When a part of a fine or pen-
alty is given to a common informer, or to the person in-
jured, and part to some public treasury, unless a qui-tam
suit has been commenced, a prosecution may be brought
by an informing officer, in which case the r vhole fine or
penalty will belong to such public treasury. The treas-
urers of towns have power to receive all moneys belong-
ing to towns for fines, forfeitures and penalties.
151
In criminal prosecutions, costs are not taxed against tin
public, when the prisoner is acquitted, in his favour ; but
the costs on the part of the prosecution are taxed against
the public. Where the prisoner is convicted, costs are al-
ways taxed against him, and are to be paid before he is
discharged ; but if the same can not be obtained of him or
out of his estate they are to be paid out of the treasury
of the town wherein the prosecution is had ; and if the
same shall afterwards be recovered of the person convic-
ted, they shall be paid into the treasury of the same town.
The justice can immediately draw an order for thp amount
of the bill of costs, and it is his duty to pay it out to those
who are entitled to receive it.
in all cases where a justice of the peace has juris-
diction and renders final judgment, the prisoner can not be
discharged until the judgment has been complied with, in-
cluding payment of the costs, and this is a part of the
sentence.
CHAPTER XV.
FORMS IN CRIMINAL CASES.
We shall not in general define the different crimes, as
our limits would not admit ; neither would it be of any par-
ticular use in a work of this kind, as questions of law, as
to whether a crime charged has been committed can sel-
dom arise, and xvhen they do, if attended with doubt or dif-
ficulty, and in cases of inquiry, it is most proper the justice
should send the cause to the court having jurisdiction.
We will however make a few observations as to crimes in
general.
There is one important distinction between crimes arid
civil injuiries ; the former require the concurrence of the
will, and the intent with which the act is done, is the char-
acteristic feature of a crime ; there must be a criminal in-
tention as well as an unlawful act. No person therefore,
who does not possess a sound mind, or legal discretion can
be guilty of a crime, nor can a crime be committed where
the act is done by mistake, accident or compulsion. Idiots.
lunatics, and persons non compos mentis, being without un-
derstanding cannot commit crimes. A lunatic, however,
during his lucid intervals, may commit and be punished for
crimes. As to infants, the law is, that under the age of
seven years, they are incapable of committing crimes : at
fourteen, which is the period of legal discretion, they are
as much responsible for their criminal acts as any other
persons ; but between these two ages is a doubtful period,
yet the law presumes that they are incapable, and in order
to make them responsible and punishable for criminal acts,
it must be proved that they have understanding and capa- ,
city to distinguish between good and evil. A boy of ten
years and another of nine, have been executed for killing
their companions, it being considered that they showed a
consciousness of guilt, one by hiding the body of him he
had killed, and the other, by secreting himself. When a
person is compelled by threats which give just and well-
grounded apprehension of death or bodily harm, he is in
some instances deemed innocent of a crime. A wife is
considered as so much under the subjection and correction
of her husband, thai her acts of a criminal nature, done
in the company of her husband, are supposed to have been
committed by his command and authority, and she is ex-
cused from guilt. But in case of crimes against the
law of nature, which are morally wrong, she is respon-
sible for her criminal conduct. Intoxication, although it
deprive a man of his reason, being a voluntary and a crim-
inal act, forms no legal excuse for the commission of a
crime, and a man 7nust be punished nhen he is sober, for
his deeds when in a state of inebriety.
We shall begin with crimes of the highest nature and
follow the order of the statute.
1. Of crimes against the lives and persons of individuals.
Form of complaint for murder.
To A. B. of Esq justice of the peace for the coun-
ty of H comes C. D. of in said county, grand-
juror of said town of and complains that a transient
person, calling himself J. S. on the day of at
in the night season, with force and arms, wilfully, and of
malice aforethought, did feloniously kill and murder E. F.
J S3
of by discharging at him a pistol, the ball of which
passed through his body, near the heart, of which wound
he immediately expired, against the peace, contrary to the
form o.C the statute, and of evil example. And the said
C. D. prays process against the said J. S. that he may be
arrested and examined. Dated &c.
C. D. grand-juror.
[In case of man-slaughter, the words of malice afore-
thought, may be omitted.]
Perjury n-ith intent to take the life of a person.
To A. B. &c. comes C. D. of grand-juror of
and complains, that on the day of at H in said
county, before the honourable superiour court, then and
there in session, then and there being on trial before said
court O. P. of on an indictment charging the said O.
P. of having wilfully arid maliciously burned the dwelling-
house of R. S. and thereby caused the death of the said
R. S. ; and during the trial of said O. P. for said crime
of arson, one Y. Z. of having been duly sworn to tes-
tify in said case, by Z. H., clerk of said court, did wickedly,
wilfully, corruptly, and falsely, and with malice afore-
thought, and with intention to take away the life of the
said O. P. then on trial as aforesaid, and to cause him to
be convicted of said crime of arson, testify and swear
[here set out the words] which said wicked, corrupt, and
false testimony of said Y. Z. was material to the determin-
ation of the issue then on trial, and intended to take away
the life of the said O. P. and cause his conviction ; and
which said acts and doings of the said Y. Z. are against the
peace, contrary to the form of the statute, and of evil ex-
ample. Dated &c.
Arson, causing the death, or endangering the life of a person.
To A. B. &c. comes C. D. of grand-juror of the
town of and complains, that E. F. of being an evil
minded person, did on the day of with force and
arms, wilfully, maliciously and feloniously set fire to and
burn the store of G. H. of situated in said thereby
causing the death of J. S. then in said store asleep, he be-
ing burnt and consumed in said building, against the peace,
contrary to the statute, and of evil example.
154
(Jotnpluint for Rape.
To A. B. 6cc. comes C. D. &.c. and complains that or: itn-
day of at E. F. of with force and arms, did make
,m assault on the bodv of E. M. of a single woman of the
age of twenty years, then and there in the peace of this
State being, and with like force and arms, and with actual
violence, did then and there forcibly and feloniously, and
against the will of the said E. M. have carnal copulation
with the said E. M. and did her ravish, force and know,
against her will, and without her consent, against the peace,
and contrary to the form of the statute in such case pro-
vided, and of evil example.
The warrant in these cases will be in common form.
The record of judgment will recite all the material allega-
tions contained in the complaint, and then say : And the
prisoner being required to answer to said complaint, pleads,
and says that he is not guilty, and having heard the testi-
mony, as well in behalf of the prisoner as of the State, I
am of opinion that there are probable grounds to support
said complaint, whereupon it is corx-idered, that the said
E. F. be committed to the keeper of the gaol in and for
said county of H therein safely to be kept until he
shall be delivered and discharged according to law.
Mittimus*
To the sheriff &c. Greeting :
Whereas E. F. of on the day of was brought
before me by virtue of a warrant issued upon tho com-
plaint of C. D. grand-juror of the town of complaining
of the said E. F. that on the day of at with
force and arms [recite the allegations charging the crime] ;
to which said complaint the said E. F. plead not guilty,
and having heard the evidence and inquired into facts al-
leged in said complaint, I was of opinion that there were
probable grounds to support said complaint, whereupon it
was considered that the said E. F. be committed, (the said
crime not being bailable,) to the keeper of the gaol in
and for the county of H therein to be kept until deliv-
ered by due course of law.
These are therefore to command you to take an.l con-
vey the said E. F. to said gaol, and him deliver into the cus-
tody of the keeper thereof, and lr;:\e with him this ua:
rant of commitment ; and said keeper is hereby command-
ed to receive the said E. F. and him safely keep within
-iid :;;iol until delivered and discharged hy due course of
law. Dated &c.
The preceding crimes are capital offences, and punished
by death.
Complaint for having carnal knowledge of a female under
the age of ten years.
and complains that A. B of on the - day of
at , with force and arms, did commit an assault on the body
of C. D. a female child of the age of nine years and six
months, and with like force did then and there feloniously
copulate with said child, and her carnally know and abuse,
against the peace, contrary to the form of the statute, and
of evil example..
Complaint for an attempt to commit a rape.
complains that A. B. of on the day of
at with force and arms, feloniously an assault made on
the body of C. D. of , a female of the age of fifteen
years, with the intention to ravish, carnally know, and com-
mit a rape on the body of the said C. D. against the peace,
and contrary to the form of the statute.
Complaint against a woman for concealing her pregnancy.
complains that E. F. of was on the day
of at , intentionally and feloniously de-
livered in secret, and by herself, of an issue of her body,
being a male child, which child is by law a bastard, and
that for nine months previous to the delivery of said child,
the said E. F. had intentionally and feloniously concealed f
her said pregnancy : all of which is against the peace and \
contrary to the form of the statute in such case provided.
Complaint for administering poison to a woman to procure .
an abortion. J
complain? that on the day of at A. B^i
of , with force and arms, did wilfully, maliciously and
feloniously administer a certain poisonous medicine and
noxious and destructive substance called to C. D. of
a female and unmarried, the said C. D. then being
pregnant and quick with child, with intention thereby to
cause the miscarriage of the said C. D. of the said child
of which she was then pregnant, and by means whereof
the said C. D. did miscarry of the child of which she was
then pregnant, against the peace &c.
When poison is administered to any person to cause
their death, say : did wilfully, maliciously and feloniously
and with malice aforethought, administer and cause to be
administered to C. D. of a certain deadly poison and
noxious and destructive substance, called with an in-
tention him the said C. D. thereby to kill, cause the death
of, and murder, against the peace &c.
Complaint for an assault rcith intention to kill or rob.
- complains that on the day of at ,
A. B. of , being an evil disposed person, with force and
arms, and with actual violence, and with the intention him
to kill and murder, (or with intention him to rob,) an as-
sault made on the body of C. D. of then and there in
the peace of this State being, against the peace, and con-
trary to the form of the statute in such case provided.
Complaint for the concealment of the death of a bastard child.
complains that on the day of at A. B.
of , then and ever since a single woman, was secretly
delivered of an issue of her body, the same being still-
born and without life, and which issue, if born alive, would
have been a bastard, and that the said C. D. hath intention-
ally and feloniously, by herself, and the procurement of
others, concealed the death of said issue of her body,
against the peace &.c.
Complaint for kidnapping.
complains that on the day of A. B. of
with force and arms, did deceitfully and feloniously
kidnap, and forcibly and fraudulently carry off and decoy
out of this state, C. D. of a free person of colour, and
did then and there with like force and fraud, arrest and
imprison the said C D. and him convey and carry off out
of this State, he the said A. B. then and there well-know-
ing the said C. D. to be free, against the peace.
complains that on the day of at
A. B. of with force and arms, deceitfully, fraudulently
,iud feloniously, did forcibly arrest C. D. of , a free
person of colour, and him with like force imprison and
confine in a certain vessel, called the , lying in the har-
bour of , with the intention him the said C. D. to con-
vey and carry out of this State, he the said A. B. then and
there well knowing that the said C. D. was free, against the
peace &c.
[The last eight offences are punishable by imprisonment
during life, or such other term as the superior court, which
has recognizance of the crimes may determine. They are
consequently bailable. The record of judgment will be
the same until the finding of the issue :] And having in-
quired into the facts and allegations contained in said com-
plaint, I do find and am of opinion that there are probable
grounds for supporting said complaint, whereupon it is
considered that the said become bound with sufficient
surety, in a recognizance of five hundred dollars, to the
Treasurer of the State, that the said appear before the
honourable superior court next to be holden at H , on
the Tuesday of A. D. for said county of H ,
then and there to answer to said complaint, and abide the
decision of said court thereon, and the said , and G.
H. as his surety, became bound accordingly.
Recognizance.
H county, ss. H , the day of A. D.
You C. D. of as principal, and G. H. of as surety,
acknowledge yourselves jointly and several bound to the
Treasurer of the State of Connecticut in a recognizance
in the sum of five hundred dollars, that the said C. D. shall
appear before the next superior court to be holden at H
on the Tuesday of A. D. in and for said county
of H , then and there to answer to the foregoing com-
plaint of E. F. grand-juror, charging the said C D. with
the crime of and abide the decision of said court there-
on. Taken and acknowledged in H , the day and year
above written, before me.
J. P. justice of the peace.
[If the prisoner cannot procure bail, he must- be com-
mitted, in which case the conclusion of the record will be
as follows :]
And the said C. D. neglecting and refusing to become
bound with surety as aforesaid, he was ordered to be com-
14
158
initted into the custody of the keeper of the gaol lor said
county of H , and by virtue of a warrant of commit-
ment by me issued, was committed accordingly.
Mitiimut,
To the sheriff &c. Greeting :
Whereas C. D. of , on the day of , was brought
before me by virtue of a warrant issued on the complaint
of E. F. grand-juror of , for that on the day of
at the said C. D. with force and arms, did &c. [here
recite the allegations in the complaint charging the crime]
and to said complaint the said C. D. plead not guilty, and
having inquired into the facts, I did find that there were
probable grounds to support said complaint, and thereup-
on it was considered that the said C. D. become bound
with sufficient surety to the Treasurer of this State, in the
sum of five hundred dollars, that the said C. D. appear be-
fore the superior court, to be holden at H on the
Tuesday of A. D. for said county, then and there to
answer to said complaint, and abide the decision of said
court thereon ; and the said C. D. having neglected and
refused to become bound as aforesaid. Wherefore, by au-
thority of the State of Connecticut you are hereby com-
manded to take and convey the said C. D. to the gaol of
said county of H , and him to deliver into the custody
of the keeper thereof, and to leave with him this warrant
of commitment ; and said keeper is also commanded to re-
ceive and safely to keep the said C. D. within said prison,
until he may be delivered and discharged by due course of
law.
OF CRIMES AGAINST PUBLIC PROPERTY'.
Complaint for Burning a Magazine.
complains that on the day of A. D. at
H , C. D. of , with force and arms, did wilfully,
maliciously and feloniously burn and destroy a magazine of
military stores then and there being, belonging to the State of
Connecticut, against the peace and, contrary to the iorm of
the statute in such case provided, and of evil example.
Complaint for burning public buildings.
complains that on the day of at A. B.
of with force and arms, did wilfully, maliciously and
159
feloniously set fire to, and burn a school house, situated in
said , used for the purposes of education, and belong,
ing to the school-district in the society of , in said town
of . and said house was wholly consumed and destroy-
ed, against the peace &c.
Complaint for forging public sureties.
complains that on the day of at in
the county of E. F. of , with force and arms, wil-
fully, fraudulently and feloniously, did falsely make, forge
and counterfeit a certain writing or order, purporting to
have been made by A. B., C. D and G. H. select-men of
the said town of , and purporting to be directed to and
requesting J. S., treasurer of said town of , to pay to
the said E. F. the sum of twenty dollars, and which said
false, forged and counterfeit order is of the following tenor
viz. [here copy the order literally] as by the same order
ready in court to be produced may appear. And the said
grand-juror avers that the said J. S. was on the day of the
date of said order, and when the same was so falsely made,
treasurer of said town of , and that the same was so false-
ly made, forged and counterfeited by the said E. F. with
the intention to defraud the said town of , being a cor-
poration, against the peace &c.
CRIMES AGAINST PRIVATE PROPERTY.
Complaint for robbery.
complains that on the day of at one
G. H. of , being an evil minded person, with force
and arms, did wickedly, wilfully and feloniously make an
assault on the body of A. B of , he then and there be-
ing, and did by feloniously putting him the said A. B. in
fear of losing his life, or of bodily harm, from him feloni-
ously take and rob three bank bills or notes, one, of the
denomination and value of five dollars, issued by the pres-
ident, directors &. co. of the Phoenix Bank incorporated by
the laws of this state, of the number of dated , and
signed by C. S. president, and countersigned by G. B.
cashier of said bank [describe all the bills, or if property
is taken, and not money, describe the property] ; and
which said wrong acts and doings of the said G. H. are
160
agaiast the peace, contrary to the form of the statute i:
such case provided, and of evil example.
Complaint for burglary.
complains that on the day of at , in the
county of a transient person of the name of
John Brown, otherwise Peter Foster, then at said .
being, in the night season of said day about the hour of
o'clock in the night, with force and arms, feloniously
and burglariously, did break and enter the dwelling-house
of A. B. situated in said , with the intention to steal or
commit some other felony, and did then and there feloni-
ously take, steal and carry away [here describe the prop-
erty stolen] of the proper goods and chattels of the said
\. B. and of the value of fifty dollars, against the peace, &c.
Complaint for breaking a dwelling-house in day time and
putting any person in fear.
complains that on the day of at ,
in said county of , A. B. otherwise called C. D. a
transient person, about the hour of twelve o'clock at noon,
with force and arms, felonionsly did break and enter the
dwelling-house of J. S. situated in said town of , with
the intention to steal therein, and E. S. the wife of the
said J. S. then and there being alone in said house, he the
said A. B. did feloniously and with the like intent, put her
the said E. S. in dread and fear of her life, or bodily in-
jury, against the peace &c.
Complaint for arson.
complains that on the day of at , E. F.
of , being an evil disposed person, with force and arms,
did wilfully, maliciously and feloniously, set on fire and burn
a certain dwelling-house, situated in said , the prop-
erty of , against the peace and contrary to the statute
n such case provided, and of evil example.
Complaint for burning a house, store, or manufactory by
the owner, to defraud insurers.
complains that on the day of A. B. of
was the owner of a certain manufactory, for the manufac-
ture of cotton goods, situated in , that afterwards,
161
viz. on the said of the said A. B. procured and ob-
tained a policy of insurance of the ./Etna Insurance Com-
pany, a body politic and corporate, incorporated by the le-
gislature of this State, underwritten by said corporation,
on said factory and the machinery, and stock therein con-
tained, to the amount of five thousand dollars, and which
said policy was signed by T. K. president &c. [here de-
scribe the policy] as by said policy of insurance ready
to be produced appears. And said grand-juror further
complains, that afterwards, on the day of at said
, the said A. B. then owner of said factory, with force
and arms, did wilfully, maliciously, fraudulently and felon-
iously set on fire and burn said factory, the machinery and
stock therein contained, with the intention to defraud said
corporation and body politic, and the underwriters of said
policy, against the peace &c.
Complaint for Forgery.
complains, that on the day of at in said
county of , A. B. of , with force and arms, did wil-
fully, fraudulently and feloniously, f Isely make forge,
and counterfeit, a certain writing, commonly called a prom-
issory note, the same purporting to be a true and genuine
note, made and signed by J. S. wherein he promised to pay
O. P. or order, the sum of one hundred dollars at the Phoe-
nix bank, an incorporated bank, and which said false note
is in the words and figures following viz. [here copy the
note or instrument forged] as by the same note ready in
court to be produced appears : and which said forged note
was so by the said A. B. falsely made, forged and counter-
feited, with the intention to defraud the said Phoenix Bank,
being a body corporate, incorporated by the Inws of this
State, and with the intention to defraud the said J. S.,
against the peace and contrary to the form of the statute &c.
Where the endorsement is forged.
complains that on the day of A. B. of ,
had in his possession a certain writing, commonly called a
promissory note, his own name being thereto subscribed,
therein promising to pay to J. S. or order, at the Phrenix
Bank, an incorporated bank, incorporated by an act of the
legislature of this State, the sum of one hundred dollars
14*
that afterwards, on the said day of at said . the
said A. B. with force and arms, did wilfully, fraudulently
and feloniously, falsely make, forge and counterfeit a cer-
tain writing or endorsement on the back of said note, pur-
porting to be a true and genuine writing and endorsement
of the said J. S. and purporting that the said J. S. thereby
ordered the 'contents of said note to be paid to the said
Phoenix Bank ; and which said note is in the words and
figures following viz. [here copy the note] ; and which
said falsely made, forged, and counterfeit writing or en-
dorsement thereon is of the tenor following, viz. " J
S ;" and which said false, forged and counterfeit en-
dorsement was so as aforesaid falsely made, forged and
counterfeited by the said A. B. with the intention to de-
fraud the said J. S. and with the intention to defraud the
said Phoenix Bank, against the peace &c.
Complaint for publishing a forged instrument.
complains that on the day of , at , A. B. of .
had in his possession a certain falsely made, forged and coun-
terfeit writing or note, purporting to be the true and genuine
note of J. S., wherein the said J. S. promised to pay C. D. or
order, one hundred dollars on demand, and which said false
notewas of the tenor following, viz. [here copy the note] as
by said note ready to be produced may fully appear. And
said grand-juror further complains, that afterwards on the
said day of at , the said A. B. with force and
arms, did wilfully, fraudulently and feloniously, utter and
publish as true, to O. P. said false, forged and counterfeit
note, well knowing the same note to be falsely madf , forg-
ed and counterfeited, with the intention to defraud the said
J. S. and with intention to defraud the said O. P., against
the peace &c.
Complaint for Counterfeiting Coin.
complains that A. B. of at on the day
of , with force and arms, did wilfully, fraudulently and
feloniously counterfeit and falsely make, a certain false and
counterfeit silver coin, current in this State, called a Span-
ish milled dollar, in likeness and similitude of the true and
genuine silver coin, called a Spanish milled dollar, of cer-
tain base and corrupt metals, with intention to defraud the
s;ood people of this state, against the peace &c.
163
Complaint Jor pulling off' Counterfeit Coin.
complains that on the day of * , A. B. of
had in his possession a certain falsely made and counter-
feited coin, in likeness and similitude of a genuine gold
coin, called a half eagle, a coin current in this state ; that
afterwards on the same day of at said , with
force and arms he did fraudulently and feloniously offer to
pass and give in payment, and did utter, put off, pass and
give in payment, to O. P. as and for a true coin, and for the
consideration of five dollars, said false and counterfeit coin,
he the said A. B. well-knowing said falsely made and coun-
terfeit coin was spurious, false and counterfeit, with the
intention to defraud the said O. P. and other citizens of
this state, against the peace &c.
Complaint for making or procuring to be made any
plate for counterfeiting.
complains that on the day of at , A. B.
of , with force and arms, wilfully, feloniously and fraud-
ulently, made, caused, and procured to be made and en-
graved, a certain plate for falsely making and counterfeit-
in"; of bills or notes, for the payment of money in the
name of the president, directors and company of the Phoe-
nix bank, an incorporated bank, incorporated by an act of
the legislature of this state, wi'th intent to defraud said
bank, and the good people ofthis state, against the peace &c.
Complaint for possessing -with intent to pass counterfeit bills.
complains that on the day of , at , A. B.
otherwise called C. D. a transient person, with force and
arms, wilfully, fraudulently and feloniously had in his pos-
session, sundry false and counterfeit bank bills or notes,
for the payment of money, viz. one of five dollars, pur-
porting to have been issued by the president, directors and
company of the Phoenix bank, an incorporated bank [de-
scribe the bills] ; that the said A. B. had in his possession
said false and counterfeit notes, well knowing the same to
be falsely made and counterfeit, and with the intention to
utter and pass the same, or to cause and procure the same
to be uttered and passed, and with the intention to de-
fraud the several banks aforesaid, and the good people of
this state, against the peace &c.
164
Complaint for selling 4'C. counterfeit bills with the intent to
have the same passed.
complains that on the day of at , A. B.
of , with force and arms, did wilfully, fraudulently and
feloniously sell, exchange, and give in payment to C. D. of
, a certain false, forged, and counterfeit bill, pur-
portine to be a true and genuine bill, issued by the pres-
ident, directors and company of the Phoenix bank, incor-
porated by an act of the legislature of this state, and which
said bill is of description following, viz. [describe the bill] ;
he the said A. B. well knowing the same to be falsely made,
forged and counterfeited, with the intention 1o have the
same bill uttered and passed, and with the intention to de-
fraud the said Phoenix bank and the good people of this
state, against the peace &c.
[In the preceding cases the prisoner must be bound to
the superior court.]
Complaint for Horse Stealing.
complains, that on the day of at A. B. a
transient person, with force and arms, did wickedly and fe-
loniously take, steal, and convey away, from and out of, the
possession of J. G. of said a certain bay horse, the pro-
perty of the said J. G. then and there being, and of the va-
lue of dollars, against the peace, contrary to the form
of the statute, and of evil example.
[A qui-tam information lies in favour of the owner of the
horse, who is entitled to treble the value thereof.]
For stealing from a Person.
complains, that on the day of at A. B. of
with force and arms, did wilfully and feloniously take,
steal, and carry away, from the person of C. D. of said
by picking his pocket, sundry bank bills or notes, amount-
ing in all to the sum of dollars, and which said bills
were of the following description, viz. [here describe the
bills, mentioning the banks by which they were issued] ; of
the proper moneys and chattels of the said C. D. and of the
value of fifty dollars ; [or, did take, steal, and carry away
from the person of the said C. D. a certain gold watch and
chain, of the goods of the said C. D. then and there in his
possession being, and of the value of thirty dollars, against
the peace,] &c.
165
[If the property stolen is not of the value of twenty dol-
lar?, it is only simple theft. If the theft was committed at
afire, say:] did feloniously take, steal, and carry away
from the person of C. D. of at at and during an as-
semblage of people collected for the purpose of extinguish-
ing a fire, &c.
Complaint for breaking and stealing from a building in the
day time,
complains, that on the day of at R. E. a
transient person, with force and arms, feloniously did un-
lawfully break and enter, about the hour of noon of said
day, into the shop, or store, of C. D. of situated in said
and therein did feloniously take, steal, and carry away
four yards of blue broadcloth, then and there being, of the
proper goods of the said C. D. and of the value of twenty
dollars, against the peace, &c.
[If the property stolen is not of the value of one dollar,
it is only simple theft. In the last five cases the prisoner
may be bound either to the next superior or county court.]
Complaint for Simple Theft.
complains, that on the day of at A. B. of
with force and arms, one silver mounted watch, with a
gold seal, of the property of C. D. of and of the value
of thirty dollars, feloniously did then and there take, steal,
and carry away from and out of the possession of the said
C. D. against the peace, contrary to the form of the statute,
and of evil example, &c.
Warrant same as in other criminal cases.
Record of Judgment.
H county H , day of A. D.
Be it remembered, that on this day of A. B. of
was brought before me by virtue of a warrant issued
on the complaint of G. H. grand juror of said town of H
for that, on the day of at in said county of H
with force and arms the said A. B. feloniously did take,
steal, and carry away a certain silver mounted watch and
gold seal, of the property of C. D. of and of the value
of thirty dollars, against the peace, &c. and being required
to answer to said complaint, the said A. B. pleads that he
166
is not guilty ; and having inquired into the facts, and fully
heard the parties with their witnesses, I do find that the
said A. B. is guilty in manner and form alleged in said com-
plaint, and do further find that said watch is of the value of
ten dollars ; whereupon it is considered that the said A. B.
pay a fine of seven dollars to the treasury of the town of
where said crime was committed, and that he be further
punished, by being whipped on his body ten stripes, and
that he pay the costs of this prosecution, taxed at dol-
lars cents, and stand committed until this judgment be
performed.
[If the goods stolen are found to be of less value than
four dollars, and greater than one, the judgment will be as
follows :]
I do find that the said A. B. is guilty as charged, and further
find that the said goods are of the value of three dollars,
and thereupon it is considered that the said A. B. pay a
fine to the treasury of of five dollar* [not to exceed
seven] and the costs of this prosecution, taxed at ; and
the said A B. having neglected and refused to pay said fine
and costs, or secure the payment of the same, a reasonable
time having been allowed him so to do. it is thereupon fur-
ther considered that the said A. B. be punched by
whipping seven stripes on his body, and that he stand com-
mitted until the same is performed, and the costs of this
prosecution paid.
[Where the value of the jroods is found to exceed thirty
dollars, the person is to be bound to the county court .is in
other cases ; and where the value is less than one dollar,
he can only be fined and subjected to pay the costs.]
A qui-tam information may be brought for theft, for which
see page 133, in which case damages are also to be given to
the owner of the goods, to the amount of treble the value
thereof.
Warrant of Execution.
To the Sheriff of, &c. Greeting.
Whereas, A. B. of was on the day of convict-
ed before me, of having stolen a silver watch and gold seal
of C. D. of and the same was found to be of the value of
ten dollars ; and thereupon it was considered that the said
A. B. pay a fine to the treasury of the town of of sev-
167
en dollars, aod the costs of prosecution, taxed ut and
that he be further punished, by whipping seven stripes on
his body, whereof execution remains to be done. These
are therefore to command you without delay to convey the
said A. D. to some suitable place, and there inflict on his
body seven stripes ; and that of the moneys, goods and chat-
tels, of the said A. B. to be found within your precincts,
you cause to be levied the aforesaid fine and costs, and pay
the same to me, to be disposed of according to law, and fif-
ty cents more for this warrant, and also to satisfy your fees ;
and for want of goods and chattels of the said A. B. to satis-
fy said several sums, you are to levy on his body, and him
commit into the custody of the keeper of the gaol for said
county of who is hereby commanded to receive the
said A. B. within said gaol, and him safely keep therein,
until he is delivered and discharged by due course of law ;
and you are to leave a copy of this warrant with said keep-
er.* Hereof fail not, but make return within sixty days
next coming.
Dated^ &c. J. P. Justice of the Peace.
[Where the goods are more than one dollar, and less
than four, the warrant will be the same as the preceding,
until you state the conviction] : was convicted before me
of having stolen a watch, of the proper goods of C. D. and
the same was found by me to be of the value of three dol-
lars, whereupon it was considered that the said A. B. pay
a fine to the treasury of of five dollars, and the costs of
prosecution, taxed at and the said A. B. having neglect-
ed and refused to pay said fine and costs, or secure the pay-
ment of the same, a reasonable time having been allowed
him so to do, it was thereupon further considered that he
be punished by whipping ten stripes on his body, and that
he pay the aforesaid costs of prosecution, whereof execu-
tion remains to be doue. These are therefore, by author-
ity of the state of Connecticut, to command you to convey
the said A. B. to some suitable place, and there inflict up-
on his body ten stripes ; and that of the goods and chattels
of the said A. B. to be found within your precincts, you
cause to be levied the aforesaid sum of the costs of said
prosecution, with fifty cents more for this warrant, and al-
so for your fees ; and for want of goods and chattels of the
168
said A. B. to satisfy said sums, you are to levy on his bod) .
and him commit into the custody of the keeper of the gaol
for ?aid county of and leave with him a copy of this
warrant ; and said keeper is hereby commanded to receive
the said A. B. and him safely keep within said gaol, until
he be delivered and discharged by due course of law.
Hereof fail not, but of this warrant, with your doings there-
on, make return within sixty days next coming.
Dated, &c. J. P. Justice of the Peace.
[When the goods stolen are of less value than one dollar,
the warrant will command the officer to levy the fine and
costs, and for want oCgoods to satify the same, to take and
Commit the body of the prisoner, to gaol, as in the preceding
Quitam Process for theft and Search- War rant.
To A. B. of Justice of the Peace for the county of
conies C. D. of and complains as well in the
name of the state of Connecticut, as in his own name, that
one E. F. of on the day of at said one certain
piece of woollen cloth, three fourths of a yard wide, con-
taining ten yards, of the proper goods of the said A. B. and
of the value of dollars, then and there being, with force
and arms, feloniously did take, steal, and carry away, from,
and out of the possession of the said complainant, who fur-
ther complains and informs, that he hath good grounds to
suspect, and doth suspect, that the said E. F. hath feloni-
ously secreted and concealed said stolen goods, in his
dwelling house, situated in said and that said goods are
now so feloniously concealed and secreted by the said E.
F. in his said dwelling-house, against the peace, and con-
trary to the statute in such case provided, and to the dam-
age of the complainant the sum of ten dollars ; and the
complainant prays that process may issue to search for said
stolen goods, and to arrest the said E. F. that he may be
examined and dealt with according to law.
Dated, &c. A. B.
County of H ss. H , day of A. D.
Personally appeared before me, A. B. who hath subscri-
bed the foregoing complaint, and made oath to the truth of
ihc saiue, and that he hath just grounds to suspect, and doth
suspect, that said goods were stolen by the said E. F. and
that they are secreted and concealed by him in his said
dwelling-house as mentioned in said complaint.
J. P. Justice of the Peace.
Warrant.
To the Sheriff, &c. Greeting
Whereas the foregoing complaint hath been made to me,
and the said complainant hath made oath to the truth of the
same ; these are therefore, by thf authority of the State of
Connecticut, to command you forthwith to proceed with
the said A. B., taking assistance, if necessary, and in the
day time enter into the dwelling-house of the said E. F. de-
scribed in said complaint, and diligently make search there-
in for the said stolen goods mentioned in said complaint,
and if found, to seize the same, and forthwith bring the
same before me or some other justice of the peace of said
county ; and you are also commanded to arrest the body of
the said E. F. if he can be found within your precincts,
and him forthwith have before the same justice of the peace,
that he may be examined, touching the matters contained
in said complaint, and be dealt with according to law.
1 Dated, &c. J. P. Justice of the Peace.
If the prisoner is found guilty, and the property found
to be of the value of four dollars or more, the judgment
must be that he be fined not exceeding seven dollars, and
whipped not exceeding ten stripes, and also that he pay
treble the value of said goods to the said A. B. the party
injured. For form of Record, see page 165.
Complaint for receiving and concealing stolen goods.
complains, that on the day of at some
person to the said grand-juror unknown, feloniously took,
stole, and carried away from the possession of C. D. of
a certain timber chain, of the length of feet, of the pro-
per goods of the said C. D. and of the value of three dol-
lars, and that afterwards, on the same day of at said
E, F, of with force and arms, did feloniously receive
the said goods, well knowing the same to have been stolen,
and did then and there fraudulently and feloniously conceal
15
170
nui secrete the same goods, against the peace, and contra
ry to the form of the statute, fcc.
OF CRIMES AGAINST PUBLIC JUSTICE.
Complaint for Perjury.
complains that on the day of at in the
county of H before the superior court then in session
at H for said county, a certain cause then being on trial
before said court, wherein A. B. was plaintiff, and C. D.
defendant, O. P. of was then and there before said court
duly sworn to testify in said cause, and had administered
to him by f. C. the clerk of said court, and duly authoriz-
ed to swear witnesses, to testify before said court, the oath
provided by law for witnesses ; and that afterwards, on said
day of and during the trial of said cause, the said
O. P. did wickedly, corruptly and feloniously, falsely testi-
fy and swear, that [here set out the words] he, the said O.
P. then well knowing that said testimony was untrue and
false, and the same was material to the issue joined and on
trial between said parties in said cause, against the peace,
contrary to the form of the statute in such case provided,
and of evil example.
Complaint for Subornation of Perjury.
complains that on the day of at A. B.
did wickedly, corruptly, and feloniously suborn and procure
E. F. of to appear before the superior court, on the
day of at the said court then and there being in ses-
sion for said county of H and then and there corruptly
and falsely to testify in a cause then on trial before said
court, wherein the said A. B. was plaintiff, and the said C.
D. defendant, that [here recite the false testimony] ; and
the said E. F. was then and there by T. C. clerk of said
court, duly sworn to testify in said cause, and did, during
the trial thereof, testify the aforesaid false and corrupt
words and facts, and which false testimony so falsely and
wickedly procured by the said A, B. to be testified, he well
knew to be false and corrupt, and the same was material to
the issue then on trial between said parties ; which wrong
and corrupt acts and doings of the said A. B. are again=!
the peace, &c.
171
Complaint for Bribery.
complains, that on the day of at A. B. oi
did wickedly, corruptly and feloniously offer to J. P.
then justice of the peace for the county of H and con-
cerned in the administration of justice, the sum of dol-
lars in money, with the intention to bribe the said J. P. and
influence his behaviour in his said office, in relation to a
cause then pending before said Justice, wherein the said A.
B. was plaintiff, and C. D. of defendant; and which
>aid wrong and corrupt acts and doings of the said A. B. are
against the peace, &c.
[The criminal must be bound to the superior court for
bribery.]
Complaint for Embezzling any Record.
complains, that on the day of at C. D. oi
with force and arms did wilfully, corruptly and feloni-
ously embezzle, eloine, and take away from the office of J.
P. justice of the peace for the county of H and author-
ized to hold courts of record, a certain writ and process
returned before said justice, wherein A. B. was plaintiff
and the said C. D. defendant, and which was issued by [here
describe the same] and which said writ and process was a
part of the riles, proceedings and records of said Justice in
said cause, and the same writ and process were so embez-
zled, eloined, and taken away from and out of the office of
said Justice, by the said C. D. with the intention to defeat
said suit and cause, and to prejudice the rights of the said
A. B., against the peace, and contrary to the form of the
statute, &c.
Complaint for Resistance to Officers.
complains, that on the day of at A. B.
of with force and arms did make an assault on M. S.
then constable of the said town of while the said M. S.
was in the execution of his said office, and attempting to ar-
rest O. P. of said by virtue of a writ of attachment in
favour of Q, R. against the said O. P. issued in due form of
law by J. P. justice of the peace, and the said A. B. did
then and there, whilst the said M. S. was attempting to ar-
rest the said O. P. in obedience to the command in said
writ, with like force and actual violence, abuse and resist
the said M. S. in the execution of his said office, against the
peace, and contrary to the form of the statute, &c.
[For resisting an officer, the offender must be bound to
the county court, and punished by fine and imprisonment.]
OF CRIMES AGAINST THE PUBLIC PEACE.
Complaint for a Riot.
complains, that on the day of at A.
B., C. D. and E. F. all of and several other persons to
said grand juror unknown, with force and arms, riotously
and tumultuously assembled together with an intention to do
an unlawful act, against the peace, or to the manifest ter-
ror of the people, and with force and violence, and against
the peace, to pull down and demolish the dwelling-house
of O. P. situated in said ; and being so riotously and
unlawfully assembled, J. P. justice of the peace for said
county, obtaining knowledge thereof, resorted to the place
where the said A. B., C. D.&c. were so unlawfully assem-
bled, and then and there, after commanding silence, in their
hearing, made proclamation, with an audible voice, as fol-
lows, viz. " In the name and by authority of the State of
Connecticut, I charge and command all persons assembled,
immediately to disperse themselves, and peaceably to depart
to their habitations, or to their lawful business, upon the
pains and penalties of the law ;" that the said A. B., C. D.
and E. F. and divers other persons to said grand juror un-
known, did not disperse themselves after said proclamation.
but continued so unlawfully and riotously assembled togeth-
er, to the great terror of the good people of this state, against
the peace, and contrary to the form ol the statute, &c.
Another.
complains, that on the day of A. B., C. D.
and E. F. and divers other persons, to the said gnmd juror
unknown, with force and arms, and riotously and tumultu-
ously assembled at in said county, to do an unlawful
, act, and with force and violence, and against the peace, to
pull down, demolish, and destroy the dwelling-house of
situated in said and being so riotously, tumultuous-
ly, and unlawfully assembled togetfef.r, with force and
arms, and with actual violence, and to the manifest terror
173
ofsundry of the good people ofthis state, did then and there
pull do\vn, demolish and destroy the said dwelling-house of
the said against the peace, and contrary to the form of
the statute in such case provided, and of evil example.
[For this crime the offenders must be bound, either to
the next superior or county court, for trial. The record
of judgment, recognizance, and mittimus, if necessary, the
same as in other cases.]
Complaint for breaking Windows, fyc. in the night season.
romplains, that on the day of at about
the hour of twelve o'clock at night, A. B. of with force
and arms, did wilfully and maliciously break a window, by
forcibly throwing a large stone against the same, in the
dwelling-house of C. D. of said , the family of the said C.
D. then and there being, and residing in said dwelling-house,
against the peace and contrary to statute, &.c.
[For this crime the justice may give judgment, and fine
the offender seven dollars, or bind him to the county court,
where he may be fined, not exceeding one hundred dollars,
and imprisoned in the county gaol not exceedingsix months.]
Complaint for Breach of the Peace.
To A. B. Esq. of justice of the peace for the coun-
ty of cornes C. D. of grand juror of the town of
and complains, that on the day of at E. F, of
said with force and arms, did make an assault on the
body of G. H. of said and with great force and violence
did him then and there strike and beat many severe blows,
whereby the said C. D. was greatly injured, against the
peace, and contrary to the form of the statute in such-case
provided, and of evil example. And the said grand juror
prays process against the said E. F. that he may be arrest-
ed and examined touching this complaint, and be dealt with
according to law. C. D. Grand-Juror.
Warrant, in common form.
Record of Judgment.
H county, ss. H , day of A. D.
Be it remembered, that on this day of A. D.
E. F. of was brought before me, by virtue of a warrant
15*
174
issued upon the complaint of C. D. grand-juror of for
that on the day of at the said E. F. with force
and arms did an assault make on the body of G. H. and with
like force did then and there him strike and beat many se-
vere blows, whereby he was greatly injured, against the
peace, and contrary to statute : and being required to an
swer to said complaint, the said E. F. pleads and says he is
not guilty, and puts himself on thecourtfor trial ; and hav-
ing heard the evidence introduced by said grand-ju-
ror in support of said complaint, and that in behalf of the
said E. F. I do find that the said E. F. is guilty as charged
against him in said complaint, and thereupon it is consider-
ed that he pay a fine to the treasury of the town of of
seven dollars, and also that he be imprisoned in the common
gaol of said county of H for the period of one month
from the date hereof, and pay the costs of this prosecution,
taxed at dollars and. cents, and stand committed un-
til judgment be performed.
Warrant of Execution.
To the Sheriff, fee. Greeting.
Whei'ca?E. F. of \vas, on the day of before
me convicted of having on the day of at with force
and arms made an assault on the body ofG. H. of and of
having then and there, with like force, him, the said G. H.,
beaten and stricken many severe blows, whereby he was
greatly injured, against the peace and contrary to statute ;
whereupon it was considered by me that the said E. F. pay
a fine of seven dollars to the treasury of and also that
he be imprisoned in the common gaol of said county for one
month from the day of the date of said judgment, and
that he pay the costs of said prosecution, taxed at :
whereof execution remains to be done. These are there-
fore, by the authority of the State of Connecticut, to com-
mand you to convey the said E. F. to the gaol of said county
of H and him deliver to the keeper thereof, and to leave
with him a copy of this warrant ; and said keeper is also
hereby commanded to receive the said E. F. within said
gaol, and him confine and imprison within the same, during
the period of one month from the aforesaid date of said judg-
ment, when he is to be discharged on his paying said fine
and costs ; but if he neglects or refuses so to do, he is to
I
175
be safely kept in said gaol until he pay the same, and the
legal costs and charges, or until he is delivered and dis-
charged by due course of law. Dated, &.c.
[The justice may impose a fine only, when on the pris-
oner's failing to pay the same, and cost?, a mittimus must be
granted in common form. If the offence be of an aggrava-
ted nature, it is the duty of the justice to require bonds for
his appearance to the next county court, and take a recog-
nizance in common form, or if he fails to procure bonds, to
issue a mittimus and commit him to gaol, as in other cases.
Or he may be ordered to procure bonds for his' appearance
to the next county court, and in the mean time to keep the
peace and be of good behaviour. In which case the judg-
ment will be as follows :]
I do find that the said E. F. is guilty, &c. whereupon it
is considered that he become bound in a recognizance, with
sufficient surety, in the sum of dollars, to the treasurer of
the county of conditioned that he appear before the
county court next to be holden at H for the county of H
then and there to answer to the foregoing complaint, and
abide the decision of said court thereon, and that in the
mean time he keep the peace and be of good behaviour.
Recognizance.
You, E. F. as principal, John Doe as surety, jointly and
severally acknowledge yourselves bound in a recognizance
of dollars to the treasurer of the county of H condi-
tioned that the said E. F. appear before the county court
next tobe holden at H for the county ol H then and
there to answer to the foregoing complaint, and abide the
decision of said court thereon, and that in the mean time he
keep the peace and be of good behaviour.
1'aken and acknowledged before me this day of
\. D. . J. P. Justice of the Peace.
[In a qui-tam information for breach of the peace, for
which see page , the court mustgive damages to the par-
ty injured, besides imposing a fine, and sentencing the of-
fender to be imprisoned, if he thinks the case requires it.
And the prisoner cannot be discharged without paying the
damages, as well as the fine and costs, and must be commit'
ted on his failure so to do.]
17G
Complaint by private individuals for surety of the peace and
good behaviour.
To J. P. of justice of the peace for the county of
comes A. B. of and complains in the name and in behalf
of the state of Connecticut, that on the day of at
in said county, C. D. of with force and arms did threat-
en, that he would, before long, beat, wound, or kill him,
the complainant, or do him some great bodily harm ; and
the said A. B. further complains, that he has just cause to
fear, and that he doth fear, that the said C. D. will beat,
kill, or wound the complainant, or do him some great bodi-
ly harm, or procure others to do the same, and that he is
under fear of death, or bodily injury from the said C. D,
whereupon he requires surety of the peace and good behav-
iour against the said C, D. and prays that process may issue
that he may be arrested and examined touching this com-
plaint, and be dealt with according to law. A. B.
Oath.
H county ss. H , day of A. D.
Personally\appeared before me, A. B. who hath present-
ed and subscribed the foregoing complaint, and made oath
to the truth of the same.
J. P. Justice of the Peace^
/ [The warrant to be in the same form as in other crimin-
al prosecutions, to arrest the accused forthwith. If the
> prisoner is found guilty, the judgment will be] that he be-
come bound in a recognizance of dollars, with surety,
to the treasurer of the county, conditioned that he appear
before the next county court, then and there to answer to
said complaint, and abide and submit to the order and deci-
sion of said court thereon ; and that in the mean time he
keep the peace and be of good behaviour to all the citizens
of this State, and especially towards the said A. B. and that
he stand committed until sentence be complied with.
The recognizance will be taken to the treasurer of the
county, and be the same as the preceding, only adding the
words after good behaviour, " especially to A. B. the com-
plainant." If the delinquent fails to produce bonds, he
must be committed.
177
Complaint by a Wife against her Husband.
To J. P. justice of the peace, &.c. comes Mary Smith,
wife of John Smith, hoth of and complains, in the name
and behalf of the state of Connecticut, that, &c. [ The pro-
cess in all respects the same as the preceding, the only dif-
ference is that the fact appear in the complaint, and the
judgment that the complainant is the wife of the delinquent.
She must sign the complaint and make oath to the *ame,&c.]
Complaint for Secret Assault.
To J. P. of H , justice of the peace for the county
of H comes A. B. of , in said county, and complains
as vvell in the name and behalf of the state of Connecticut,
as in his own name and behalf, that on the day of
at , about the hour of eleven o'clock at night of said
day, C. D. of , with force and arms, assaulted the said
A. B. and then and there with like force and like secrecy,
with fists, clubs and stones, and other dangerous weapons,
did beat, bruise and wound him the said \. B. whereby he
was greatly injured in his body and limbs, and many other
injuries and enormities, the said C. D. then and there did
and committed, secretly and forcibly, against the peace and
contrary to the form of the statute in such case provided,
and to the damage of the complainant the sum of one hun-
dred dollars ; whereupon the said A. B. prays process
against the said C. D. that he m-iy be arrested and exam-
ined touching this complaint, and be dealt with as to law
and justice appeflaineth.
Dated &c. A. B.
Oath.
H county, ss. H day of A. D. appeared be-
fore me A. B. who hath made and subscribed the foregoing
complaint, and made solemn oath to the truth of the same.
J. P. justice of the peace.
Warrant.
To the sheriff &c. Whereas A. B. of , hath pre-
sented to me the aforesaid complaint, and made oath to the
truth of the same ; and likewise m-ide application to me
and exhibited the wounds and bodily injuries he had re-
ceived by the secret assault mentioned in said complaint ,
WherofiM'e. bv minority of the state of Connecticut you
are hereby commanded without delay, to arrest the body
178
of C. D. of , mentioned in said complaint, and forth-
with bring him before me [he must be brought before the
same justice to whom complaint is made, and his wounds
shewn] at my office, in , in said county, that he may
be examined touching the facts alleged in the aforesaid
complaint, and be dealt with therein, as to law and justice
may be found to appertain. Dated &,c.
J. P. justice of the peace.
[In prosecutions on this statute the complainant is ad-
mitted as a witness, and upon his testimony and the exhi-
bition of his wounds and injuries, it is the duty of the jus-
tice to bind over to the county court, unless the tes-
timony of the complainant should be contradicted by other
witnesses. From the terms of the statute it would seem
that the accused was not to be admitted to testify before
the court of inquiry, yet as he is expressly admitted to tes-
tify before the county court, it is difficult to conceive why
he should not be admitted as a witness before the justice
on the inquiry.]
The record of judgment will be the same as in other
cases of binding over to the county court, except that it is
proper to state that the complainant was examined under
oath. The recognizance^ must be taken to the adverse party.
Recognizance.
H county, ss. H day of A. D.
You C. D. of , as principal, and O. P. of , as
surety, jointly and severally acknowledge yourselves bound
in a recognizance of dollars to A. B, of , that the
said C. D. appear before the county court next to be hold-
en at , in and for the county of H , then and there
to answer unto the foregoing complaint of the said A. B.
and submit to the decision of said court thereon. Taken
and acknowledged before me the day and year above writ-
ten. J. P. justice of the peace.
If the delinquent neglects or refuses to recognize with
surety, he must be committed to gaol, and a mittimus issued
in common form.
OF CRIMES AGAINST CHASTITY.
Complaint for Adultery.
complains that on the d;:y of A. B. of
a single man, at . in aid county, with force and arms,
179
did commit the crime of adultery with E. M. of' , a
married woman, and the lawful wife of S. M. and did then
and there, her the said E. M. carnally know, against the
peace, contrary to the form of the statute, and of evil ex-
ample.
Complaint for Bigamy,
complains that on the day of A. B. of , then
being a married man, and having a lawful wife named C. B.
to whom he was married on or about the day of living,
with force and arms, did feloniously and deceitfqlly, marry
N. S. of , a single woman, and hath ever since continu-
ed to cohabit and live with the said N. S. as his wife, against
the peace, contrary to the form of the statute, and of evil
example.
Complaint for Fornication.
complains that on the day of at ,
A. B. of , with force and arms, did commit the crime
of fornication with L. M. of , a single woman, and did
then and there, her the said L. M copulate with, and car-
nally know, against the peace, contrary to the form of the
statute, and of evil example.
OF CRIMES AGAINST MORALITY AND DECENCY.
Complaint for Profane Swearing,
complains that on the day of , at , A. B.
of , did swear rashly, vainly and profanely ; and did
then and there utter and repeat in the hearing of sundry
good people of this state, rashly and vainly, the following
profane oaths and words [here recite the words used] ; or
did then and there sinfully, wickedly and profanely curse
C. D. of , and say of and concerning him the said C.
D. the following wicked and profane words, yiz. [here state
the words], against the peace, contrary to the statute in
such case provided, and of evil example.
Complaint for distributing Obscene Books.
complains that Q, P. of , on the day of
at , in said county of with force and arms, did fel-
oniously sell and distribute to A. B. and C. D. both of said
and sundry other good people of this state, a certain
vicious and obscene book, or pamphlet, containing obscene
language, prints and descriptions, called , and did
180
then and there receive of the said A. B. and C. D. and
sundry other persons, sundry sums of money for the sale
of said obscene book or pamphlet, against the peace &,c.
[For this offence the delinquent must be bound to ap-
pear before the county court for trial.]
Complaint for Drunkenness.
complains that on the day of at , Q, R.
by drinking excessively of spiritous liquors, became and
was intoxicated and drunk, whereby he was disabled and
bereaved in the use and exercise of his reason and under-
standing, against the peace & contrary to the statute in such
case provided, and of eril example.
[The crime of drunkenness is distinct from that of being
a common drunkard ; the former is punished by a forfeit-
ure of two dollars only : but in the latter case, the offend-
er may be bound to his good behaviour, or sentenced t<
the work-house.]
Complaint for breach of the Sabbath.
complains that L. M. of , on the day of
being the Sabbath or Lord's day, about the hour of
of said day, with divers other persons, to said grand-juroi
unknown, at , in said county, engaged in vain sport
and recreation, and then and there with the said persons
unknown to said grand-juror, used and played the game of
, to the great disturbance of the good people of
this state, against the peace and contrary to the statute in
such case provided.
Complaint for Disturbing a Religious Meeting.
complains that on the day of at , a uum-
ber of the good people of this state being then and there
met and assembled together, for the public worship of
God, and whilst engaged in such worship, Q,. R. of
did wilfully interrupt and disturb said assembly, and the
worship thereof, by speaking with a loud and audible voice
in said assembly, and during the religious worship of the
same, sundry words, with the intention to interrupt and
disturb said assembly, and the worship thereof, against the
peace, and contrary to the statute in such case provided,
and of evil example.
181
[For this ollence the magistrate may impose a fine not
exceeding seven dollars, nor less than one, or .bind the of-
fender over to the county court, where he may be fined
not exceeding thirty-four dollars. The crime is the same,
whether the religious meeting is on the sabbath or any
ether day.]
OF CRIMES AGAINST PUBLIC POMCY.
Complaint for Selling unauthorized Lottery Tickets.
complains' that on the day of at , in
said county of , T. H. of , did dispose of and sell
to A. B. of , a lottery ticket in a lottery called ,
authorized by the authority of the state of New-York, and
which said ticket was duly issued by the managers of said
lottery under the authority of said state of New- York, and
of the number of and signed by [describe the ticket] ;
and for the sale and disposal of said ticket the said T. H
received of the said A. B. the sum of dollars ; all of
which doings of the said T. H., are against the peace, and
contrary to the form of the statute in such case provided.
Complaint for Betting upop a Horse Race.
complains that on the day of at , J. B.
of , did unlawfully wager and bet with J. S. the sum of
dollars, upon ahorse race, to be run between a cer-
tain horse of the said J. B. and a certain horse of the said J.
S. at , on the day of , and which said money
so waged and bet, was lodged and staked in the hands 'of
R. R. and a like sum loged in his hands by the said J. 8.
both of which sums were by said wager, to be delivered
by the said R. R. to the said J. B. in case his said horse-
beat the horse of the said J. S. in said race ; and which'
said doings of the said J. B. are against the peace, and con-
trary to the statute in such .case provided.
Complaint for the forfeiture of a Horse used in a horse race.
To J. P. justice &.c. comes G. H. grand-juror of
and complains that on the day of at in said coun-
ty, a certain bay horse supposed to belong to O. P. of
was used and employed in a horse race with another cer-
tain horse belonging to R. R. of , on which said race
sundry bets and wagers were made of sundry sums of money,
182
and particularly a bet between A. B. and C. D. of the sum
of dollars, whereby, by the force of the statute in such
case provided, the said horse hath become forfeited to this
state. And the said grand-juror prays process against the
said horse, that he may seize the same, and safely keep said
horse, that he may be informed against, before the next
county court for said county of , and be by said court
disposed of according to law.
G. H. grand-juror.
Warrant.
To any constable &c. Whereas the aforesaid complaint
hath been made to me : Wherefore you are hereby com-
manded forthwith to seize the said horse, and take the
same into your custody, and the same keep that it may be
informed against, before the next county court for said coun-
ty, and disposed of according to law. And you are hereby
required to give notice to O. P. the supposed owner of said
horse, to appear, if he see cause, before the county court
next to be holden at , in and for the county of and
there shew reasons, if any he hath, why said horse shall
not be adjudged forfeited to this state, and disposed of ac-
cording to law. Hereof fail not, but of this process, with
your doings thereon, make due return to the said county
court.
[The officer's return will be that he seized the hor? -.
and has it in hi< custody, and that he notified the party.]
Complaint for Playing Cards for Money.
complains that on the day of at , R. R.
of , did play divers games at cards with A. B., C. D.
and E. F. for monev, and in and by said games at cards.
the said R. R. won the sum of dollars of the said A. B.
and C. D., which doings of the said R. R. are against the
peace, and contrary to the form of the statute &,c.
Complaint for Keeping a Billiard Table,
complains that on the day of at L. M.
of had and kept, and still has and keeps in his custody
and possession, and at or near his dwelling-house, in said
, a billiard table, for the purposes of gaming, against
the peace and contrary to the statute in such case provided.
183
Complaint against a Taverner for Pertniting Gaming.
complains that on the day of , at R. K.
of , was a taverner, and previously to that period had
been duly and legally appointed and licensed to keep a
house of public entertainment in said town of , and
that on said day of , sundry persons, viz. A. B.,
C. D. and E. F. and several others, to said grand-juror un-
known, played sundry games at cards, for money, within
the house and tavern of the said R. R. and on which said
games the said A. B., C. D. and E. F. bet and hazarded
sundry sums of money, and divers sums were won and lost
by the said A. B , C. D. and E. F. the amount of which is
unknown to said grand-juror, and which said gambling,
playing and hazarding, was practised with the knowledge,
consent arid permission of the said R. R. within his said
house and tavern, against the peace and contrary to the
form of the statute in such case provided.
[The offenders against the statute must be bound to the
county court for trial.]
Complaint against Mountebanks.
complains that on the day of at , J. K.
a transient person, being a mountebank, tumbler and rope-
dancer, did exhibit and cause to be exhibited, on a public
stage, fitted and prepared for that purpose, in the tavern
and public house of entertainment in said , divers
games, tricks, shows, tumbling, rope-dancing, and feats of
uncommon dexterity and agility of body, to divers good
people of this State, then and there collected, to witness
the same, and for which the said persons each paid to the
said J. K. the sum of twenty-five cents, against the peace
and contrary to the statute in such case provided.
[The offender against this statute must, if there is prob-
able grounds of his guilt, be bound to the county court for
trial.]
In all criminal prosecutions where a Justice of the Peace
has jurisdiction, and renders judgment, except for drunk-
enness, profane swearing, breach of sabbath, selling unau-
thorized lottery tickets, and perhaps some other cases
specially provided for by statute, an appeal lies from such
judgment to the county court, in favour of the prisoner,
where judgment has been rendered against him ; but when
J84
the judgment is rendered in his favour, the prosecuting
officer has no right to appeal in behalf of the state. The
party appealing must enter into a recognizance, with sure-
ty, for his appearance, and to prosecute his appeal, and
pay a duty of fifty cents, as in civil cases. In qui-tam
prosecutions for crimes, the same right of appeal exists.
Form of Appeal.
[After recording the judgment say ] : From which judg-
ment the said A. B. moves to appeal to the county court
to be holden at H , in and for the county of H ,
on the Tuesday of A. D. which said motion is
allowed : whereupon the said A. B. pays a duty to this
state of fifty cents on his said appeal, and himself as prin-
cipal, and C. D. as surety, recognize before me in the sum
of dollars, to the treasurer of said county of H ,
for his appearance before said county court, to prosecute
his said appeal to effect, and that he abide and submit to
the decision and order of said court thereon.
J. P. justice of the peace.
Recognizance in case of Appeal.
H county ss. H day of A. D. appeared
before me, A. B. of , as principal, and C. D. of , as
surety, and jointly and severally acknowledged themselves
bound in a recognizance of dollars to the treasurer of
said county of H , conditioned that the said A. B. ap-
pear before the county court next to be holden at H ,
in and for the county of H , and then and there pursue
and prosecute to effect his said appeal, and abide the judg-
ment that may be rendered by said court thereon. Taken
and acknowledged before me the day and year above writ-
ten. J. P. justice of the peace.
In case of any error apparent on the record in any crim-
inal prosecution before a justice of the peace, a writ of
error may be brought to the superior court the same as in
civil cases. Petitions for new trials may also be brought
by the prisoner, and in both cases service is to be made
by leaving a copy with the attorney for the State, in the
same county.
Accessaries, or any person who snail aid, abet, assist,
fcire, or command any other person, to commit any of the
J85
albresaid crimes, is equally guilty, and on conviction, must
suffer the same punishment as the principal offender.
Previously to the revision there was a statute abolishing
whipping in all cases as it respects females, which provis-
ion as we are informed was unintentionally omitted by thr j
committee of revision, so that females are now liable to be
whipped as well as males : but as the legislature has not
intentionally repealed this provision, it may be considered
as virtually in force, and as there is something revolting in
corporeal punishment, especially as applicable to females,
it would seem most proper that whipping should not be in-
flicted on females, until the legislature act upon the subject,
when it will be known, whether they will restore the law,
or make a retrograde movement in legislation, and revive
a punishment which belongs to a barbarous age.
IS o suit or action can be brought on any penal statute, for
the recovery of a forfeiture by jmv person who may law-
fully sue for the same, after tl e expiration of one year
from the commission of the offence. No person can be
prosecuted for any crime punishable by imprisonment in
New Gate prison, unless the complaint shall be exhibited
within three years next after the crime shall have been
committed ; and no person shall be prosecuted for any
other crime or misdemeanor, except those punishable with
death, unless complaint or information be exhibited within
one year after the offence was committed.
All fines, penalties and forfeitures received by justices
of the peace in pursuance of any judgment rendered by
them, which are not otherwise expressly appropriated, are
to be paid to the treasurer of the town where they reside,
and it is the duty of the town treasurer, at least within
one year after the judgment is rendered, to call on the
justices of the town to account for the fines, forfeitures,
and penalties they may have received, in pursuance of
such judgment.
When for any offence it is provided by statute that the
offender be sent to a work-house or house of correction,
and there is no work-house in the town, they must be sent
to the county gaol, which is the common work-house and
house of correction for the whole county They must be
sentenced and ordered to be confined there, as a work-
house and house of correction.
16*
186
A Justice of the Peace is not personally liable for any
act done by him, of a judicial nature, whether in civil or
criminal proceedings, unless he act corruptly or intentionally
transcend his jurisdiction ; when he may become liable to the
party injured, although he professed to act in his judicial
character. But as it respects his ministerial acts and du-
ties, such as signing writs, issuing warrants, administering
oaths, taking depositions, and the acknowledgment of deeds,
&c. if a justice refuses to act, or is guilty of gross negli-
gence, he makes himself liable to the party injured. Where
his authority is discretionary, he does not make himself
liable for refusing to do any official act. Taking bonds on
issuing writs is a discretionary act, as it respects the suffi-
ciency of them ; but where the law expressly require?
surety, if the justice neglects to take it, he becomes per-
sonally liable to the party injured ; but if he takes bonds
with surety, where that is required, or without, where
surety is not required, which are apparently good, but
prove to be insufficient, he is not personally responsible (a).
(a) Swf. Dig. 546 i 1 Root 165
PART II.
THE POWERS AND DUTIES OF CONSTABLES.
THE Office of Constable is of great antiquity in England,
the knowledge of it extending beyond the .period of any
known statute relating to it. This office, like that of justice
of the peace, and most others, has undergone a gradual but
important change, since its first institution, which was for
the conservation of the peace. The office of Constable
was brought by our ancestors from England, and has existed
here since the settlement of the colony.
It is provided by statute that every town shall, at their
annual meeting appoint one Constable, to collect the state
taxes, and such additional number, as they may think ex-
pedient, not exceeding seven. They must take the oath
prescribed in the constitution for executive officers, on or
before the first Monday in January in each year, and hold
their office until the next annual meeting of the town, or
until others are chosen and sworn (a). No Constable can
be legally chosen but at annual town meeting, except in
cases where there is a vacancy by the death, refusal to
serve, or removal, of any Constable thus appointed, when
such vacancy may be filled at any legal town meeting,
whether it be the annual meeting or not. This provision
extends to all town officers (6). It is the duty qf the se-
lect-men to cause Constables, and all other town officers,
of whom oath is required, immediately after their appoint-
ment, to be summoned to appear before some justice of the
peace, and to take the oath prescribed by law ; and if any
such officer refuses to be sworn and execute the duties of
his office, he incurs a forfeiture of five dollars to the town,
unless he can make it appear to the court, before which
he may b sued for the recovery of such forfeiture, that
he is oppressed by such appointment, or that others are
(a) St. 132. (b) St. 458
188
unduly exempted. If he accepts the office, or does not
declare his refusal to accept, yet neglects and refuses to
perform the duties thereof, he forfeits three dollars to the
town ; and in such cases too, would be liable to the per-
son injured by his neglecting or refusing to perform his
official duties.
For convenience we copy the Oath : " You do solemnly
swear (or affirm as the case may be) that you will support
the Constitution of the United States, and the Constitution
of the State of Connecticut, so long as you continue a cit-
izen thereof; and that you will faithfully discharge, ac-
cording to law, the duties of the office of [Constable for
the town of H ,] to the best of your abilities. .So help
you Gocf."
CHAPTER I.
Of the Powers and Duties of Constables, as Peace Officers, #c.
It is provided by statute, that Constables shall receive all
hue-and-cries, and the same diligently pursue to full effect ;
and that when no justice of the peace is near at hand, they
may put forth pursuits, or hue-and-cries, after murderers,
peace-breakers, thieves, robbers, burglarians, and all cap-
ital or criminal offenders : and that without a warrant they
may apprehend such as are guilty of profane swearing,
drunkenness, or Sabbath-breaking, if taken in the act, or
on present information of others, and carry them before
the next justice of the peace, to be dealt with according to
law (a).
This statute would seem by implication, to take away the
authority of Constables, to make arrests without a warrant,
except by putting forth pursuit, by hue-and-cry, where no
Justice is at hand to do it, or for the three offences men-
tioned ; but as their authority as conservators of the peace
is more extensive at common law, the exercise of which is
important to the preservation of the peace, and the appre-
hension of criminals, it cannot be considered as taken away
by mere implication. Previously to the late revision rer officer, who is to serve the same, by putting into the
hands of the person who has the custody of him, who is di-
rec'e! to be brought up, on such writ, a true and attested
copy of said writ ; and he must make immediate return of
the same, with his doings thereon endorsed, to the judge is-
suinc such writ, on pain of forfeiting fifty dollars to the per-
son so held in custody. This writ, which is considered as
one of the great bulwarks of English liberty, is very sel-
dom Applied for, or issued in this country, so extremely
rarp are encroachments upon personal liberty. Where
thf>' * is no power exercised, except what is. derived from
the people, and where oppression is aaknown, the writ of
219
habeas corpus possesses much less importance than in oth-
er countries, as a barrier of civil liberty.
Writs ofscire-facias, may be either a summons or attach-
ment, and are to be served and returned in the same man-
ner as any other writ.
CHAPTER IV.
6F FORMS OF RETURNS ON MESNE PROCESS.
1 . Endorsement on summons served by reading.
H county ss. H , day of A.D. ; then I read
this writ, in the hearing of the within named defendant.
Test. A. B. Constable.
To travel to serve and return, 10 m. 50
Reading, - 9
$69
JVtiere served by copy.
H county ss. H , day of A. D. ; then I left
a true and attested copy of this writ, with the within named
defendant. [Or, at his usual place of abode.]
Test. A. B. Constable.
On writ against corporation.
H county ss. H , day of A. D. ; then I left
a true and attested copy of this writ with C. D. town clerk,
[or select-man] of the within named town of H
Test. A. B. Constable.
Endorsement on the Copy.
This is a true copy of the original writ.
A. B. Constable.
On Subpoena.
H county ss. H day of A. D. ; Then I read
ihis writ, in the hearing of the several persons within
named.
Where service cannot be made for want of time.
This writ came so late into my hands, that I had not
time to make service of the same.
220
Where on joint contracts part of the defendants are not resi-
dents of this State.
Then I read this writ in the hearing of the defendant,
A. B., the defendants, C. D. and E. F. not being inhabitants
of this State.
2. FORMS IN SERVICE OF ATTACHMENTS.
Where goods are Attached.
H county ss. H , &c. Then, by virtue hereof,
and by the direction of the creditor [if the fact is so] I at-
tached a certain bay horse, the property of the within
named defendant, and on the seme day left with him (or at
his usual place of abode) a true and attested copy of this
writ, with my said doings thereon endorsed. [If the defend-
ant is not a resident of this state, the endorsement will be :]
and on the same day I left an attested copy of this writ
with J. S. of the agent of the defendant, he not being
an inhabitant or resident of this State.
Where goods are attached and rescued.
Then, by virtue hereof, I attached, as the property of
the within named defendant, a certain bay horse, and took
the same into my possession, and on the same day deliver-
ed to the said defendant a true and attested copy of this
writ, and my said doings thereon endorsed ; and afterwards,
whilst I had said horse in my custody, viz. on the day of
at A. B., C. D. and E. F. and sundry other per-
sons, to me unknown, with force and arms, and with dan-
gerous weapons, made an assault upon me, and with like
force and actual violence, did forcibly seize and rescue said
horse out of my custody ; and t have not, on diligent search,
been able to find or retake said horse, and whereby I can-
not have the said horse, to answer the demand in this writ ;
and I can find no other goods of the said defendant within
my precincts, whereof to attach.
Where the goods are destroyed, and without default of the of-
ficer.
Then, by virtue hereof, I attached, as the property of
the defendant, a certain bay horse, and took the same into
ray custody, to have the same to aaswer the demand iu this
221
writ, and on the same day left a true and attested copy
hereof, and of my said doings thereon endorsed, with the
said defendant ; and afterwards, viz. on the day of
the said horse died of a disorder called the hotts, and the
said defendant hath no other goods or chattels within my
precincts, whereof to attach.
Where bank or other stock is attached.
Then, by virtue hereof, 1 attached five shares of the
stock of the Phoenix Bank, as the property of the defend-
ant herein, by leaving a true and attested copy of this writ,
and of my doings hereon endorsed, with G. B. cashier of
said bank, and on the same day I left a true and attested
copy hereof, with my said doings endorsed thereon, with the
said defendant.
Endorsement on the copies.
[The copy must not only be a copy of the writ, but of ttoe
endorsement on the same, excepting that part of the en-
dorsement stating the leaving of the copy, and including
the attestation and signing.] This is a true copy of the ori-
ginal writ, and my endorsement thereon.
Wliere partnership property is attached for the individual
debt of one of the partners.
Then by virtue hereof, and by direction of the creditor
[in all cases where the plaintiff gives direction, it is most
safe to state it] I attached all the following property, and
all the right and interest the within defendant hath therein,
the same belonging to him in partnership, with A. B. and
C. D., partners in company, under the name and firm of A.
B. &, Co. and thereupon, on the same day, left a true and
attested copy of this writ, with my doings thereon endorsed,
with the said defendant herein.
Where neither goods nor the body can be found.
Then, by virtue hereof, I made diligent search forgoodfi
and chattels of the defendant herein, throughout my pre-
cincts, whereof to attach, and could find none ; I also made
diligent search for the defendant, to attach his body, but
could not find the said defendant within my precincts ;
whereupon I left a copy hereof at his usual place of abode.
19*
222
[The copy of an attachment left at the defendant's usual
place of abode, is good service as a summons, and to hold
the party to trial.]
Where the body is arrested and bail taken.
Then 1 made diligent search throughout my precincts,
for goods or estate of the within named defendant, whereol
.to attach, but could find none, and for want thereof 1 attach-
ed the body of the said defendant, read this writ in his hear-
ing, and took sufficient bail for his appearance at court.
Bail Bond.
Know all to whom these presents may come, that we.
A. B. and C. D., both of H in the county of H arc
jointly and severally bound and obliged to E. F. of said H
Constable of said town of H in the sum of dollars,
to be paid to him, the said E. F. his certain attorney, exec-
utors, administrators or assigns : to which payment well
and truly to be made and done, we bind ourselves jointly
and severally, and each of our heirs, executors and admin-
istrators, firmly by these presents.
Signed and sealed by us, this day of A. D. .
The condition of the above obligation is such, that where
as the above bounden A. B. is arrested at the suit ofG. H
by writ duly issued, dated the day of demanding the
sum of damages, returnable before the county court tc
be holden at H within and for the county of H on the
Tuesday of A. D. ; now if the said A. B. shall ap-
pear before said court and answer to said action, then this
obligation to be void, otherwise to be in force.
A. B. and seal.
Signed, sealed, and deliv- ) C. D. and seal.
ered, in presence of $
[Where the writ is returnable before a justice of the
peace, the condition will be as follows :] The condition of
the above obligation is such, that whereas the above bound-
en A. B. is attached at the suit of G. H. of by writ da-
ted the day of A. D. , demanding the sum of dol-
lars, and returnable before J. P. justice of the peace for
the counfy of H at his dwelling-house in H in said
Bounty, on the day of A. D. at the hour of o'clock :
iiow if the said A. B. shall appear before said justice, J. P.
at the time and place above written, and answer to said ac-
tion, then the above obligation to be void, otherwise to be
in force.
Assignment of Bail Bond.
I hereby, at the request of the within named plaintiff,
and in pursuance of the statute in such case provided, as-
sign to him the within bail bond.
A. B. Constable.
Where the defendant is arrested and committed to gaol.
Then, by virtue hereof, and for want of goods and chattels of
the within named defendant, whereof to attach, I arrested his
body, and he having neglected and refused to find sufficient
bail for his appearance at court, and by virtue of a mittimus
duly issued for that purpose, I committed the said defend-
ant into the custody of the keeper of the gaol in and for said
county, therein to be kept until delivered by due course
of law.
Mittimus.
To A. B. keeper of the gaol in and forthe county of H
Greeting Whereas O. P. of was this day arrested by
A.. B. constable of the town of H in the county of H
by virtue of a writ of attachment duly issued by J. P. jus-
tice of the peace for said county of H in favour of C.
D. against the said O. P. demanding dollars, and return-
able to the county court next to be holden at H in and
forthe county of H on the Tuesday of A. D. ; and the
said O. P. having neglected and refused to procure bail for
his appearance before said court, to answer to said cause :
These are therefore, by authority of the State of Connecti-
cut to command you to receive the said O. P. into your cus-
tody, and him safely keep within said gaol, until delivered
by due course of law. J. M. Justice of the Peace.
Where there is an arrest and rescue.
Then, by virtue hereof, and for want of goods and chat-
tels of the within named defendant, whereof to attach 1 ar-
rested his body, and he neglecting to find bail, was proceed-
ing with him to the gaol of said connty, to commit him to
prison, when, at in said county, A. B., C D. and E.
F. and sundry other persons t me unknown, with force
224
and arms, and with offensive and dangerous weapons, made
an assault upon me, and then and there, with like force and
actual violence, rescued and took the said defendant
out of my hands and custody, whereby I cannot have
him forthcoming, to answer the demand in this writ ; and
after diligent search, the said defendant hath not since beea
found by me within my precincts.
Where from sickness the defendant cannot be removed,
Then, by virtue hereof, and for want of goods and estate
of the within defendant, whereof to attach, I arrested his
body, who then was, and hath since remained until the last
day of the return of this writ, so sick that he could not be
taken into custody without imminent danger to his life,
wherefore I cannot have him to appear before said court as
commanded herein.
Where the body is arrested, released, and goods attached.
Then, by virtue hereof, and for want of goods of the
within defendant, there found by me, within my precincts,
whereof to attach, I arrested his body, and he neglecting
to find bail, I was proceeding with him to commit him into
the custody of the keeper of the gaol of said county, when
the said defendant tendered and offered to me to be attach-
ed on said writ, in satisfaction of the demand therein, and in
discharge of his body, a certain gold watch, the property
of the defendant, whereupon I released the body of the said
defendant from my custody on said writ, and by virtue
thereof, attached the said watch, and on the same day left
with the said defendant an attested copy of this writ, and of
my doings endorsed thereon.
Where real estate is attached.
H county, ss. H , day of A. D.
Then, by virtue hereof, for want of goods and chattels, and
by the direction of.the plaintiff, 1 attached all the right, title,
and interest of the within named defendant, in a certain
parcel of land situated in said H and bounded and de-
scribed as follows : [here bound and describe the land ;]
and on the " day of I left with the said defendant, (or
at his usual place of abode) a true and attested copy of this
writ, and of my endorsement of said doings made thereon ;
226
and on the same day I left a like copy, containing a descrip-
tion of said land, in the office of the town clerk of said town
of H within which said land is situated.
[If the defendant is not a resident of this State, and has
an agent or attorney within the State, the endorsement will
be, after describing the land :] and on the day of
A. D. the said defendant, not being a resident of this State,
1 left a true and attested copy of this writ, and of the en-
dorsement of my said doings made thereon, with S. T. of
the agent of the defendant, and on the same day alike
copy in the office of the town clerk, &c.
[If the defendant has no agent or attorney in this State,
then a copy is to be left with the person who has posses-
sion or charge ofthe estate attached, and the endorsement
will be as follows, after the description ofthe land attached :]
and on the day of A. D. I left a true and attested co-
py of this writ, and ofthe endorsement of my said doings
thereon, with R. R. of who has the charge and posses-
sion of said estate, the said defendant not being a resident
in this State, nor having any known agent or attorney in the
same ; and on the same day left a like copy in the office of
the town clerk, &c.
Endorsement on the copies.
[The copies must contain not only a copy of the writ,
feut a copy of the endorsement made thereon, except that
part of the endorsement which states the leaving of the
copies, with the attestation or signing of the officer, and
must contain the following certificate :]
The above and within is a true copy ofthe original writ,
and of my endorsement of my doings thereon.
A. B., Constable.
3. OF RETURN ON FOREIGN ATTACHMENT.
Where the defendant is an inhabitant of this State, or has
resided herein.
H county ss. H day of A. D. ; then by vir-
tue hereof, I attached all the goods and effect* ofthe with-
in named defendant, in the hands of J. S. described herein,
as the agent, debtor, factor, trustee and attorney of the
said defendant, by leaving with him (or at his usual place
of abode) a true and attested copy of this writ, more than
fourteen daye before the day the same is returnable ; and
226
on the same day I left a copy hereof, duly attested, at the
last usual place of abode of the within named defendant,
in this State.
Where the defendant has never resided in this State.
Then by virtue hereof I attached all the goods and ef-
fects of the within named defendant in the hands of J. S.
of , described herein as the agent, debtor, factor, trus-
tee and attorney of the said defendant, by leaving a true
and attested copy of this writ at the usual place of abode
of the said J. S. more than fourteen days before the day
of return of the same.
4. OF RETURN ON PETITIONS.
H county ss. H day of A. D. ; I then read
this petition and citation in the hearing of C. D. the within
named respondant.
Where served by copy.
1 then left a true and attested copy of this petition
and citation, at the usual place of abode of C. D. the with-
in named respondant.
5. OF RETURN ON WRIT OF ERROR.
H county ss. H day of A. D. ; I then made
service of this writ by leaving 'a true and attested copy
hereof with C. D. the within named defendant in error.
In a criminal case.
I then made service of this writ by leaving a true and
attested copy hereof with J. S. attorney for the State, with-
in and for the county of H
In case of Petition for Highway.
I then made service of this writ by leaving a true and
attested copy hereof with R. R. of one of the three
first signers of the petition for the laying out of said high-
way.
6. OF RETURN ON REPLEVIN.
Where Cattle are Impounded.
Then by virtue hereof I replevied to A. B. the within
named plaintiff his beasts described herein, unlawfully dis-
trained and impounded as herein t^ted by C. D., and on
the same day left a true and attested copy of this writ, and
227
ef my doings endorsed thereon, at the usual place of abodt
of the said C. D. the within named defendant.
[On a writ to replevy goods attached in favour of any
person not the defendant in the original action, and who
claims to own the goods, the return will be the same, as
where cattle impounded, are replevied.]
Where the beasts or goods cannot be found.
Then by virtue hereof I made diligent search within
my precincts for the goods, [or beast, as the case may be,]
described herein, whereof to replevy, but c'ould not find
the said goods, the same having been eloined by the with-
in named A. B. to places to me unknown, so that I could
not replevy to the plaintiff the said goods as herein com-
manded ; and on the same day 1 left a copy of this writ,
duly attested, at the usuJ place of abode of the said A. B.
the within defendant.
Where goods attached are replevied by the defendant in the
original suit.
Then by virtue hereof I replevied to the within named
C. D. the goods described herein, attached at the suit of
A. B. against the said C. D. and read this writ in the hear-
ing of the said A. B.
7. OF ACTION ON WRIT OF HABEAS CORPUS.
Then agreeably to the direction herein, I made service
of this writ by putting into the hands of the within named
A. B., who hath the custody of C. D. mentioned herein,
a true copy of the same duly attested.
CHAPTER V.
OF THE SERVICE OF FINAL PROCESS IN CIVIL CASES.
When final judgment is rendered in any cause, the last
and most important thing remains to be done, which is to
execute the judgment, or give the p^rty who is entitled
to it, the benefit and enjoyment of the same. And for this
purpose, fi"al pvoross o; i \\vit of rxe record* of the cause, and a new execution
granted, which should contain a copy of the endorsement
229
..ti the first. If the plaintiff or defendant be dead, or
where the execution has been levied on the body of the
defendant and he has been discharged from gaol by taking
the poor debtor's oath, an alias execution cannot be issued ;
but an action of scire facias or debt on the judgment, must
be brought and a new judgment obtained. But where an
execution has been endorsed satisfied, by mistake, or is ap-
parently satisfied by a mistaken levy, as when goods are
levied on and sold, that were the property of another per-
son, or where land supposed to belong to the defendant, but
which in fact belonged to another person, is set ofi' thereon,
or where land belonging to the defendant as tenant in com-
mon, or his interest in mortgaged estate is set off by metes
and bound*, whereby the plaintiff gets no title, the county
and superior courts grant an alias execution on motion.
The motion must be in writing stating the grounds of the
application. A justice of the peace under the same cir-
cumstances, may issue a second execution, but he should
require a motion or statement in writing, containing the
reasons and grounds of the application ; ;md should require
proof of the truths of the facts contained in such motion,
and certify thereon that the same were found to be true,
and preserve the same on file ; otherwise it would appear
from his records that a second execution had been issued
after the judgment had been satisfied.
An execution in common cases contains a recital of the
judgment, and a command to the officer to levy of the goods,
chattels and lands of the debtor, and the sane cause to be
disposed of according to 1-uv, to satisfy the judgment, and
his fees ; and for want thereof, to take the body of the
debtor, and him commit to the keeper of the gaol in the
same county.
It is the duty of an officer having an execution in his
hands to execute, to make 1 demand of the debtor of the
sums contained in the execution ; the demand must be made
within his precincts, and regul-irl\ he should repair to the
debtor's usual place of abode and nuke the dem.iii.l there ;
but a demand any where within his presence is sufficient.
If on demand of the sum due on the execution and of his
fees, the debtor ne-j;l o cts or refuses to pay the same, the
officer must endorse on the execution, the time and place
of his making such demand, and thereupon must lvy the
20
230
execution on the personal estate of the debtor, excepting
such articles as are exempted by law from being taken for
debt, and on those when turned out by the debtor. We
noticed the articles exempted in treating of the service of
attachments, page 213. A description of the property
taken must be set up on the sign-post in the society where
the same was seized, and accompanying the same a notice
that the property will be sold at the place where posted,
at public ve.ndue, at the end of twenty days, specifying the
day when the sale is to take place. And in those societies
from parts of two or more towns, the constables of such
towns shall have the same power and authority where the
sign-post shall be without the limits of the town to which
they belong, as other constables have within their respec-
tive districts. J here appears to be a mistake in this par-
agraph in the statute ; the word society is evidently used
instead of that of town. If the debtor does not pay the
execution and charges within the twenty days, the officer,
on the day of sale, at the beat of the drum, must dispose
of so much of the property posted, to the highest bidder,
as is necessary to pay the execution, and the lawful fees
and expenses, which have accrued, and the overplus, if
any, he may return to the debtor (a). When he levies
on goods the officer must t;ike them into his possession,
and remove them out of the possession of the debtor, or
they may be attached or taken by any other creditor, in
which case he will become liable for the debt. He must
also produce the goods taken, at the post, for sale, when
the articles can be removed ; but when, from their nature
or bulk, this Cannot he reasonably done, they may be sold
by samples or description. An execution may be levied
on money and the sime applied to the payment thereof:
bank bills are considered as money forming the currency
of the country, and may be taken and applied as such.
Not only the articles of property exempt, but any personal
property may be so situated that it cannot be taken and
soH on -xecution. Goods p.uvned for debts, or let for
hire, for a period of time, or distrained or attached by a
prior attachment, and h >ve been previously taken on exe-
cution, and in all cases, where the owner has not the right
(a) St. 56.
231
ful possession, cannot be taken and sold on execution.
If however, the creditor purchase or procure the right of
the person having an interest therein, they may be taken ;
and where goods are pawned for debt, it would seem that
if the creditor would pay or tender to the pawnee the
amount of his debt, for which the goods are pawned, he
might be justified in taking them.
Where goods are attached by a subsequent attachment,
they are held subject to the claim of the prior attachment,
and if the prior creditor does not take out execution and
levy on the goods within sixt}' days after the final judgment,
they may be taken and sold on the execution issued upon
the judgment obtained in the subsequent suit. If the pri-
or attaching creditor has the goods taken on his execution
within the sixty days and sold, what there is left, after pay-
ing his debt and charges, are held for the subsequent cred-
itor, and must be levied on by him within sixty days after
the sale on the first execution. It is equally reasonable
and necessary, that a creditor should have the right of levy-
ing his execution on goods which had previously been lev-
ied on, and hold the same, subject to the prior claim as it
is that goods may be taken and held by subsequent attach-
ment. It is believed there can be no objection to this, and
that the levy of an execution on goods previously levied
upon, which give the creditor a lien thereon subject to the
rights of the prior creditor ; and that the same might be
posted, with a notice that such part thereof would be sold,
as might remain after the first execution had been satisfied
therefrom, & as might be necessary to satisfy the subsequent
execution and charges. But in such a case, and in all the ca-
ses stated where a third person has a lien upon goods, and the
debtor has not the legal possession of them, it is not the duty
of the officer to take them unless directed by the creditor.
In case the property consists of an entire and indivisible
article, as a jhorse, a subsequent levy may be made upon it,
and the same posted for sale, as in other cases, and notice
thereof given to the officer who had levied the prior exe-
cution thereon, and it would seem that he would be obliged,
after satisfying his execution and costs, to pay the over-
plus, to the officer making such subsequent levy ; instead of
paying the same to the debtor.
Where a subsequent attachment is levied on a horse the
avails thereof, after satisfying the first judgment, must be
232
applied to the judgment recovered in the subsequent at-
taching suit, and the reason is the same where the prop-
erty is taken on executions. Choses in action, notes, bonds,
and accounts, cannot be levied on ; but it is believed, that
a negotiable note or bill of exchange, payable to bearer ;
or if payable to order indorsed in blank, by the payee, so
as to be transferable by delivery, might be levied on and
sold like other personal property (n).
Corn, or other crops, growing, where the debtor has no
interest in the soils, is a chattel, and may be taken and
sold on execution, standing in the field, or if it is in a sit-
uation to harvest, within the twenty days after the levy, it
mr.y be harvested and sold. If sold growing, the officer
c;,:>. all he can to execute the writ ; but where the body can
Betaken, he cannot safely levy on goods, unless they are
sufficient. But if the debtor has personal property suffi-
cient to satisfy the execution and charges, which might be
found and taken by due diligence, and the officer neglects
to do it, and levies on the body, he is liable to the debtor
for false imprisonment, and to the creditor for the debt if it
is lost. He cannot require the creditor or debtor to turn
out goods, but it is his duty to search for them, and levy
thereon.
If an officer take estate greatly more than sufficient, and
sell the same, so that the debtor sustain an unnecessary sac-
rifice, he will be liable ; yet, as respects many kinds of
property, it is extremely uncertain what it will sell fur at
auction, if an officer act fairly and in good faith, although he
take more property than was necessary, lie will be justifi-
ed ; but if he do it with a view to oppress the debtor, he
will be subjected to heavy damages. So if an officer de-
cline to take goods apparently insufficient, and levy on the
bod3 r , and it should afterwards appear that the goods were
sufficient, if he acted honestly and only misjudged, courts
would not be rigid towards him (i).
If sufficient personal property cannot be found, and the
creditor does not direct the execution to be levied on real
estate, it is the duty of the officer to take the body of the
debtor ; and if he neglect to do this, in case the body might
have been taken with proper diligence, he becomes liable.
Whether an officer, having in his hands an execution, actu-
ally sees the debtor or not, yet ifhe might have been taken
by due diligence, and the officer fails to do it, and makes a
return of non esl inventus, he will be liable. As to what
constitutes an arrest, and the law relating to that subject,
we must refer to our remarks on the service of attachments,
the same principles being applicable to arrests, whetheron
attachment or execution. After having arrested the body
for want of goods, if personal property is found or tendered,
the body may be released and the goods taken. But the
officer, after having legally arrested the body, is not obliged
to take goods on their being tendered by the debtor and
(i) Swf. Dig. 797,
237
discharge the body, for the debtor having refused to pro-
duce estate, whereby his body has been legally taken, it
would be unreasonable that the officer should be obliged to
risk the sufficiency or the title to the estate after he has
once made a legal levy of the execution. But if the cred-
itor should direct the bod}' released and goods taken, it is
believed the officer would not be justified as respects him
in declining to do it. But if the debtor pay the money on
the execution, or tender the same, the officer could not be
justified in committing him to gaol. When the body of the
debtor is taken, he must, according to the principles of the
common law, be kept in the actual custody of the officer,
and conveyed to gaol as soon as convenient, anil in the most
direct manner (a). If after arresting the body ofthe debt-
or, the officer permit him to go at large, out of his custody,
it is a voluntary escape, and the retaking and committing
him to prison, within the life ofthe execution, will not save
him harmless, but he will be liable for the debt. In this
State, however, it has been decided by the superior court,
that an officer, after an arrest, might permit the debtor to go
at large until the last day ofthe execution, and then com-
mit him, without being liable for an escape (c).
As the principle of this decision has not received the
sanction ofthe supreme court of errors, it is not advisable
for an officer to permit a person arrested on execution, to
go at large, even where he may feel no anxiety as to being
able to retake him during the life of the execution. On
mesne process, an officer may permit a prisoner to go at
large, provided he has him at the return of the writ (i).
But in case of voluntary escape, on final process, the officer
is not permitted to retake the prisoner, and if he do, it is
false imprisonment (fc). If the court of errors should over-
rule the decision ofthe superior court, and recognize the
common law principle, that permitting a prisoner to go at
large after arrest on execution, is a voluntary escape, the
officer would not be permitted to retake him during the life
ofthe execution, and if he should, it would not save him
from his liability to the creditor, and at the same time, he
would be liable to the debtor for f-ilse imprisonment.
Where an officer does not intend to commit a debtor imme-
'a) I Bos. and Pul. 27. (c) 2 Root, 133. (?) 2 T. R. 172.
(fc)2T. R. 177.
diately to gaol, he ought not to arrest him, for if he does not
actually arrest him, he may take him at any time during
the life of the execution, which will be sufficient. The
only risk, if he sees him and does not make an arrest, will
be as to his being able to take him during the life of the ex-
ecution ; but if he is arrested, and permitted to go at large,
it may be a question, whether retaking and committing him
to gaol within the life of the execution, will justify the offi-
cer. It has been decided in the state of New- York, that
where a debtor who had been arrested on execution was
permitted to have his liberty on the promise of another per-
son to pay the debt if he iail to deliver him by a certain
day, was a voluntary escape in the officer, and the promise
to deliver him, void (o). In case of voluntary escape, as
well as of negligent escape, the creditor has a claim on the
officer, and still holds his claim on the debtor ; but in a vol-
untary escape, the officer has no claim on the debtor. It
is a clear principle of the common law, that it the plaintiff
discharge the debtor from arrest on an execution, or if the
officer permit him to go at large with the consent of the
plaintiff, the debtor not only cannot be retaken on the ex-
ecution, but is entirely discharged from the judgment. And
although the party is discharged on an agreement to pay
the debt which is not complied with, or to surrender him-
self by a given day, if he did not in the mean time pay the
debt, the law is the same (p}. So where the plaintiff con-
sents to discharge one of several defendants, this is a dis-
charge of all, being a discharge of the judgment, and the
others cannot afterwards be taken. Where the defendant
agreed on being discharged out of custody by the consent
of the plaintiff, that the judgment should stand revived for
twelve months, it was held to be void. So a bond taken for
the surrender of a prisoner on a certain day that he miijht
be retaken, who had been discharged out of custody of ex-
ecution, by the consent of the plaintiff, was held to be void.
The discharge of the prisoner by the creditor, or by the
officer with his consent, is considered as a discharge of the
judgment, and the plaintiff is thereby deprived of ereri; rem-
edy, against the debtor. It is understood to h;
cently decided by the court of errors in this State, that the
((>} 13 John. 366. (p) 6 T. R. 525.
J.j-J
discharge of the debtor by the plaintiff from arrest on execu-
tion, was a discharge or satisfaction of the judgment.
When a debtor is committed to gaol, the officer must
leave with the gaoler a copy of his execution and of the en-
dorsement of hi? doings thereon, which is a sufficient war'
rant for the gaoler. Where a debtor is committed to gaol
on attachment for want of bail, the execution must be levied
on him within five days after final judgment. When an of-
ficer has levied on goods during the life of an execution,
he may sell them, after the sixty days have elapsed ; and so
if his term of office expire after the levy, either before or
after the execution is run out, he may complete the sale.
But he cannot make a levy, after either the execution or
his office has expired.
Where partnership property is taken on an execution
against one of the partners for his individual debt, it must
be posted, and the right or interest of such partner therein
sold only, and not the goods. The interest of each part-
ner in partnership property is altogether uncertain, and
depends upon the demands upon the partnership and the
accounts of the partners (a). The creditor can only take
the interest the debtor has in the partnership effects, after
a settlement of the partnership accounts, and this interest
being extremely uncertain, the officer would be justified in
taking a large amount of property, perhaps the whole part-
nership effects, \vhere there was reason to believe that such
p irtner possessed hut little if any interest in the property
of the partnership. The If vy on partnership property
mint be o u-ice r t:iin, that the officer ought always, if he
can, to obtain the direction of the creditor. On an execu-
tion a^unst -several, as partners, the officer may take either
partnership property or the individual property of any one
of the defendants, and if there were individual and company
good' sufficient to sati-fy the execution, and he neglects to
take them, he will be liable. So on an execution against
several who are not partners : the officer may take the
property of nther, or part of one or p irt of the other, and
the proportion in whi.;h the debt should be paid is a matter
which concerns the debtors only. Where goods are taken
n attachment, they must be levied on within sixty days af
(a) 2 Conn. Rep. 514.
240
ter final judgment, and if receipted", demand must be made
of the receiptsman within that time. If the demand is made
out of his precincts it is sufficient (6).
Where goods have been attached, they cannot be levied
on by the execution, without a previous demand of pay-
ment thereof of the debtor, as in other cases. Where an
execution has been levied by one officer on goods which are
disposed of, and the execution partly satisfied, it may be
taken out of his hand and delivered to another officer, if di-
rected to him, to levy for the residue thereof, the same be-
ing returned with each of their doings thereon endorsed.
But the first officer could not safely deliver the execution
to another, without the direction of the creditor. If the
execution is returned partly satisfied, a new one may be
prayed out and directed to a different officer. Where an
execution is issned by the State Treasurer against the
inhabitants of any town for the arrears of taxes, the judg-
es of the county court of the same county, may, at the
request of the sheriff, depute some suitable indifferent per-
son to leave the same, who shall have the same power as
sheriffs, und such sheriff shall be responsible for his con-
duct.
When an execution is levied on the stock or shares of
the debtor in any bank, insurance company, turnpike com-
pany, or of other corporation, the officer must leave a
copy duly attested, with the cashier, secretary or clerk,
with an endorsement that he levies upon and takes such
stock or shares on such execution. It is the duty of
the cashier, or secretary, or clerk of any corporation, on
enquiry by an officer to inform him by a written certificate,
with his official .signature, of the number of shares of stock
any person po?sesses, against whom such officer holds au
execution or attachment. After snrh levy, the shares ta-
ken are to >>e posted and sold like otlu-r personal property ;
and thereupon the officer must give the purchaser a proper
instrumer 1 in writing, conveying uch shares, and leave a
copy, wit's am endorsement of his doings thereon, with such
cashier, secr-Tiary, or clerk, before he returns the execu-
tion, and nr.nke return due thereof. The purchaser obtain*
a title not mly to the stock, hut to all dividends, profits and
interests which may have accrued thereon.
(6) I Con. Rep. 255.
241
Vv here no personal estate can be found, and if the credit-
or gives direction, it is the duty of the officer to levy the
execution on the real estate of the debtor, holden in his
own right. The creditor has his election to take the body,
or levy on the land of the debtor ; but the officer cannot
safely levy on real estate without the direction of the cred-
itor, nor can the del-tor tender real estate on the execution,
to avoid the imprisonment of his body. The direction of
the attorney of the creditor is the same as that of the plain-
tiff himself. To constitute a levy, he must actually enter
upon the land. The officer must cause the land levied on
to be appraised by three indifferent freeholders, of the town
where the land lies, or if that town be a party, then of the
ni-xt adjoining town, one of whom to be appointed by the
creditor, the other by the debtor, and if they cannot agree
in appointing a third, or if either party neglect or refuse to
appoint, the officer must apply to any justice of the peace
in the town, who by law may judge between the parties,
who shall appoint one or more appraisers as the case may
require : which appraisers being sworn according to law,
must make an estimate of such real estate according to its
true value, in writing, under tfeeir hands, or either two of
them, and the same deliver to such officer, who must set
out to the creditor by metes and bounds, so much of the
land as may be sufficient at the appraisal, to pay the execu-
tion and the lawful charges, if there is sufficient ; if not, so
much as there may be, to be endorsed on the execution, in
part or in whole satisfaction thereof. And the officer must
cause such execution, with a proper endorsement of his do-
ings thereon, to be recorded :\i length in the records of
lands of the town where the estate lies, and must return
the execution, with an endorsement of all his said doings
thereon, unto the officer of the court whence it issued,
there to be kept on file, which shall vest in the creditor and
his heirs all the title and interest the debtor had in the
land (e).
The appraisers must be indifferent freeholders, and of
the same town where the land lies, unless such town is a
party, or interested, then of an adjnii inir town. It has been
decided by the superior court, that where the parties agree
(e) t. r,7-8.
21
242
on freeholders belonging to another town, or any one ot'
them, it will be bad, because the parties cannot alter the
law (g). Any relationship between an appraiser and one
of the parties, whether by blood or marriage, calculated to
produce a bias, will render the proceeding illegal. The
relationship to either of the parties, which disqualifies a
judge from acting in civil cases, is considered as a reasona-
ble rule in case of appraisers (A). A nephew, by marriage,
to one of the parties has been adjudged not to be an indif-
ferent person within the statute (z). If the^principle ap-
plicable to judges is to apply to appraisers, no person be-
tween whom and either of the parties there is so near a re-
lationship, as father and son, by nature, or marriage, brother
and brother, uncle and nephew, or landlord and tenant, can
be an indifferent freeholder within the meaning of the stat-
ute. A person who has directly or indirectly any pecunia-
ary interest in the matter, cannot be an appraiser. The
appointment of an appraiser by a justice of the peace, is a
ministerial act, and not a judicial act, and if an appraiser ap-
pointed by a justice is not an indifferent freeholder, the
fact m iy be proved to impeach the title (a). To be a free-
holder, requires an estate in lands in fee simple or for life,
either during the grantee's own life, or that of any other
person. An estate under mortgage is not a le^al freehold
in the mortgagor. Where an execution is issued in an ac-
tion offoieign attachment, without bonds being given to re-
fund, as required by statute, and the execution is levied on
lands, it has br>en decided that the levy is good as to other
crCiKt'rs of the debtor, the law requiring bonds, being con-
d a^ intended for the benefit ofthe debtor, not of cred-
ito s (A).
It has been decided that where a woman marries after
judgment, and an execution in her name is levied on land,
the appointment of an appraiser by her is legal (-). It
would seem, however, that it should be done with the con-
sent of her husband, as a woman after marriage can do no
legal act, besides after marriage, the judgment was entire-
ly "subject to the control of the husband, and could be dis-
charged by him. It would be the safest in such cases, that
fe\ i Foot, 196. (h) I Con. Rep. 295. (i) ib. (a) 1 COB. Rep. 20ft
(k ) 1 Rot, 176. (n) 2 Root, 15.
the appointment should be made jointly by the husband and
wife. Where husband and wife are plaintiffs or defendants,
the appointment may be made by the husband only ; but in
other cases, where there are two or more plaintiffs or de-
fendants, it would seem the appraiser should be appointed
by them jointly, and if a part only agree to make an ap-
pointment, that it would be necessary to decline such ap-
pointment, and apply to a justice. If one of several plain-
tiffs or defendants.be authorized to act for the rest, an ap-
pointment by him would be good. In case of partners, one
plaintiff, it would seem, might act for all : and likewise one
defendant of partners, where the execution was levied on
land belonging to the partnership, but if levied on the land
of an individual partner, the appraiser, it would appear,
ought to be appointed by him, and if appointed by any oth-
er of the defendants without his concurrence, it is doubtful
whether the levy would be valid.
Land which the debtor owns as tenant in common with
others, cannot be set off by metes and bounds, so as to take
an undivided moiety or part f a certain quantity of land ;
but the whole tract belonging in common must be levied on,
and the whole of the debtor's share or interest therein ap-
praised, and such part or proportion set off as the debt bears
to the debtor's whole interest, where the debt is less than
the debtor's share or interest in the land. If the execution
and charges equal or exceed what the debtor's share in the
land is appraised at, the whole must be set off, when the cre-
ditor will take the place of the debtor, and be tenant in com-
mon with the owners of the other shares of the land ; but
if the debt is less, he will be tenant in common with the
debtor and the other tenants in common, according to the
proportion he has acquired. If A and B are tenants in com-
mon, in equal shares, and an execution is levied on A's
share, of the amount of one hundred dollars, and his share
is appraised at two hundred dollars, one half of A's interest
must be set off to the creditor, so that the creditor will pos-
sess one undivided fourth part of the land, A one undivided
fourth part, and B one undivided half part ; and the credit-
or or any one of the tenants in common, can procure a divi-
sion accordingly. In the ruse supposed, the mode would
bo, to *ot off such proportion of A's share or interest, the
whole being estimated at two hundred dollars, as the one
844
hundred dollars, the; amount of the execution and costs,
ieaves two hundred dollars, which would give him one half
of A's share. If instead of one undivided half of the inter-
est of A in the whole tract, his entire interest should be set
off in one half of the lot, B, the other tenant in common,
would be subjected to have his share partitioned and apart-
ed in two separate pieces, whereas he has a right to have
his interest as tenant in common in the whole tract, parti-
tioned and aoarted to him in one piece (a).
Where the debtor is tenant in common with others, in
unequal shares, owning more or less than an equal share.
his interest, or share, must be appraised, and such propor-
ereofset off as the debt bears to his whole interest,
me as when he is tenant in common in equal shares.
icn there are two or more separate tracts of land
,ed by the debtor as tenant in common with others, each
:' Id by a distinct title, an execution cannot be levied on
ne whole, and a part or proportion of the debtor's interest
;n each set off, but the whole of the debtor's right must be
taken in one tract, before any portion of his interest can be
taken in another (6).
Where an execution is levied on land, encumbered with a
mortgage, it cannot be set off by metes and bounds, but the
whole or such proportion of the debtor's interest therein,
as the execution and charges bear to his whole interest,
must be set off in satisfaction of the execution. The ap-
praisers must estimate the value of the debtor's interest
or equity of redemption, which can be done by estimating
the value of the land, and deducting therefrom the amount
of the mortgage debt ; and the officer must s< toff such pro-
portion thereof as the execution and charges bears to the
whole of the debtor's interest, in the same manner as where
the debtor owns land as tenant in common (c).
Terms for years may be levied on and appraised off as
real estate, the whole or a part being set off to the credit-
or by metes and bounds as in other cases, for the term own-
ed by the debtor (d). So, also, must the interest a man
has in the lands of his wife. The estate of the debtor,
whether for life or years, should be set off as such, yet if
set off as a fee simple, it will give the creditor all the title
(a) 2 Con. Rep, 243. (6) ib. (c) 2 Day, 317. (d] 2 Root, 16
245
the debtor had therein (ft). Where two creditors attached
the same land at the same instant, and had their executions
levied in due time, it was held that they took uioities of the
land 0).
When lands have been attached, the execution must be
levied, the proceedings completed, returned and recorded
within the four months after final judgment. If the levy
is made within that time, but the proceedings not comple-
ted, the title will not be good in case there was a subse-
quent attachment on the land. But if the lands were encum-
bered by a prior attachment, the execution must be levied
in four months after such encumbrance is removed. The
officer ought to state in his endorsement, that he made de-
mand of the debtor of the execution, and that he cquld find
no personal estate whereon to levy ; but it has been deci-
ded that this was not absolutely necessary, where il ap-
peared that the debtor appointed one of the appraisers,
from which it might be presumed the demand had been
made or waived by the debtor, and that no personal estate was
tendered, or could be found (g). An officer ought to serve
executions in the order of time in which they are received,
and if two are put into his hands on the same day, he should
levy that first which he received first ; but if he levy the
one he received last, first, the proceedings will be legal, but
he will be liable to the creditor in the first execution, in
case the same is not satisfied, to the amount of the goods
taken on the second execution, and which ought to have
been taken on his (a).
If an execution is legal on the face of it, the officer is
bound to execute it (c). An officer is bound to serve and
return an execution within the sixty days, yet if he collect
and pay over the money to the creditor, he is not liable if
he does not return the writ. So if by the direction of the cred-
itor, he levy on land, and return the execution before an
action is brought against him, so that the title become com-
plete, he is not liable, although the return was not m.ide
until after the expiration of the sixty days (d). But if the
land should be levied or attached by any other creditor,
and the title of the first creditor defeated in consequence of
{h} 1 Con. Rep. 470. (e\ 13 Mass. T. R. 527. (g) 1 Root, 241.
fa) 1 Ld. Raym. 252. (e) Kirby, 180. (d) Swf. Dig. 795.
246
the officer's not making return in season, he would be lia-
ble to the creditor notwithstanding he had returned the ex-
execution before an action was brought against him.
An officer cannot return a rescue, or, that he cannot do
execution on final process, on a writ of execution, as he is
bound to bike with him the power of the county if requir-
ed. The officer must endorse his fees on the execution,
specifying the items, and must deliver to the debtor, on de-
mand, and without reward, a bill of his fees, under his
hand, specifying the items, with the name of the creditor,
the date and amount of the execution, and the court from
whence it issued ; and on his neglect or refusal so to do,
he forfeits three-fold the amount of his fees. If he charges
or receives more than lawful fees, he forfeits three-fold
the amount of such excess, to be recovered by an action
on the statute. No officer is entitled to any more fees
for travel on an execution, than the actual travel to serve
and return the same. If an officer, for the security of the
p : ;\ment of an execution, take more than one bond, note,
receipt, or other instrument, directly to himself, or to any
other person for his use, every such instrument so taken,
is void. Where an officer delivers goods, taken on execu-
tion, into the bauds oi* r.ny person, and takes his receipt
for the re-delivery of the same, and such person fails to
perform, in an action brought by the officer on such re-
ceipt there can be no appeal. Where a sheriff has recov-
ered money on an execution and neglects to pay the same
on demand, he is liable to pay to the person entitled to the
money, two per cent a month from the time of such de-
mand until the same be paid.
If any person shall refuse to assist a sheriff, or other offi-
cer, when necessary, in the execution of his office, on being
commanded by such officer, he forfeits a sum not exceed-
ing thirty-four dollars to the treasury of the county.
1. Of the Service of Executions issued in Actions of Foreign
Attachment.
The judgment rendered in an action of foreign attach-
ment, is a judgment against the goods and effects of the
defendant in the hands of his attorney, agent, factor or
trustee, or the debt of his debtor ; and the judgment is a
Hen thereon, the same being liable and holden to satisfy
such judgment, or such part thereof, as they may be sutl,
to pay. Before taking out executions, except on ju. la-
ments before justices of the peace, the plaintiff mi:--
ecute a bond, with surety in double the amount of the
judgment, to refund the same, or such part thereof, as on
a petition for a new trial or writ of error, it may be de-
cided the plaintiff ought not to recover.
The duty of the officer in serving an execution issued
on a judgment rendered in an action of foreign attachment,
is not different from what it is in any other case, unl<
the plaintiff gives directions. But if the plaintiff gives him
such directions,he must make demand of the attoVnoy, agent,
factor, or trustee, with whom a copy of tne attachment was
left, of the goods and effects of the defendant in his hand?,
whose duty it is to expose the same to be taken on the ex-
ecution ; and where a copy of the attachment WHS left with
a debtor of the defendant, to make demand of him of the
debt or debts due from him to the defendant, and it is the
duty of such trustee or agent to expose such goods, and of
such debtor to pay such debt to the officer, or such part
thereof, as will satisfy the execution and costs, if the said
goods or debt exceed the same. The trustee or debtor,
with whom the copy was left, is called the garnishee. If
he expose goods or effects of the defendant, the officer
must levy his execution on them and dispose of them, as
in other cases ; if the debtor of the defendant pay the offi-
cer the debt he owes the defendant, he must endorse the
same on the execution, and make return. If the trustee
or debtor of the defendant, on *uch demand, 'refuse to ex-
pose the effects of the defendant in his hands or pay the
debt he owes him, the officer inust make a special return
of such demand and refusal of the garnishee, and must al-
so make a return of non est invent is as to the defendant.
This enables the plaintiff to bring a srire fmias against the
garnishee, upon which he will be subjected to pay the
plaintiff's judgment himself, if the plaintiff can prove, he
had effects of, or was indebted to the original defendant, or
such part thereof, as is equal to the value of the property
in his hands. The garnishee is entitled to his oath to dis-
ch irse himself; or to testify that he had no effects of the
defendant in his possession, or was not indebted to him.
The demand upon the garnishee, must be made within sixty
248
days after judgment, and return made within that time, or
the garnishee will be discharged. If the garnishee does
not expose goods or effects of the defendant or pay the ex-
ecution, it is the duty of the officer to take other goods of
the defendant, il he can find any, or the body of the de-
fendant, if it can be found, unless directed otherwise by
the plaintiff. So if the effects exposed hy the garnishee
are sufficient to satisfy part of the execution only, the offi-
cer must take other goods of the defendant, or his body,
if he can find either, and if not, must return the execution
non est inventus as to the part unsatisfied. If there are sev-
eral garnishees, demand must be made of each.
3. Of Serving Executions where an Executor or Adminis-
trator is Sued, 4'C.
A judgment against an administrator is only against the
goods and effects of the deceased in his hands. Tie
officer must make demand of the administrator or executor
of payment of the execution, and of goods and effects 6f
the deceased to satisfy the same ; and if he neglect to pay
the same or turn out goods, he must make return that he
could find no goods of the deceased, and of the demand
made upon the administrator, and of his refusal to pay the
execution or expose goods of the deceased, whereby the
same is returned unsatisfied. If goods of the deceased are
turned out by the administrator, or found, t^ev may be
taken and sold as in other cases, but the ;id mni*trator's
own property cannot be taken.
When a judgment is rendered against a corporation, the
execution is issued against the goods and estate of such
corporation only, and the officer must make search for, and
if he finds estate, levy upon, and dispose of the same, as
in other cases. If he can find no estate he will return the
execution non est inventus as to goods and estate of such
corporation. Where the estate of a corporation is not vis-
ible or tangible, so that it can be levied on, application may
be made to a court of chancery, to enforce payment of the
judgment ; but if there is no visible or tangible property,
that can be taken, the officer will be justified in his return,
that he can find no goods.
In judgment against towns and societies, the execution
issues against the goods and estate of the individual mem-
bers thereof, and not against the property of such corpo-
rations. The officer may make demand of the select-men or
the committee of societies, and then, or probably without
such demand, may levy the execution on the property of
any inhabitant of such town or society, and the person
whose property is taken has his redress against such cor-
poration.
4. In an action of ejectment or disseisin, the judgment
is that the plaintiff recover the seisin and possession of the
premises, and his costs, and execution is granted accord-
ingly. It is the duty of the officer to turn the defendant
out of the possession of the premises described in the
writ, and put the plaintiff" into actual possession of the same,
and make return accordingly. He may, if necessary, break
down doors, and turn the party out of possession by actual
force.
Where, in disposing of goods taken on execution, the
person who bids the highest is unable to pay, the officer
may offer them to the next highest bidder, and if he de-
clines to receive them, or is also unable to pay, he may put
them up for sale again. It is his duty to sell for money,
and if he gives a credit, he will be liable to the creditor,
for the amount of the sale, although the snine may never
be paid. Where there are a number of articles, they
should be sold separately, where they are distinct in their
nature and use, and not in gross or by the lump, as that
might occasion a greater sacrifice to the debtor (a). But
when the officer acts honestly and fairly, and sells the
property in the way that appears most advantageous, he
will generally be justified. He is the agent of the, debtor
as well as the creditor, and must Discharge his trust in
good faith to both. If an officer take a bond of the debt-
or, or other security, to the amount of an execution it i-
a payment thereof, and such execution cannot afterwards
be lawfully enforced against such debtor (6). It has been
decided, that if an officer, holding an execution, pay the
amount thereof to the creditor from his own money, that it
is a satisfaction of the execution, and that such officer Can-
not reimburse himself by enforcing it against the defend-
ant (c). It is a good return on an execution, for an officer
(a) I Bin. 61. (6) 7 John. 429. (c) ib. 12').
250
to state that he arrested the body of the debtor, and that
he died, whereby he could not commit him to prison ; or
that from sickness he could not be committed to gaol. It
has been decided in the State of New-York, that an officer
cannot justify an escape, by shewing that the attorney of
the plaintiff permitted the debtor to go at large or be dis-
charged ; that an attorney has no authority to discharge the
debtor from arrest on execution, without payment of the
debt, he being only authorized to receive payment and dis-
charge the execution in consideration thereof (/i). An of-
ficer cannot be permitted to falsify his return, although he
may be permitted to correct a mistake or omission. If he
return that he has collected on an execution, the whole or
a part thereof, he will be liable to the creditor for the
amount, and will not be allowed to falsify his return by
proving that he did not in fact receive the money accord-
ing to his endorsement. But the creditor, or other per-
son entrusted may disprove an officer's return ; it is only
prima facie evidence of the facts contained thereon.
An officer ought in all cases, in order to be justified,
make a return which is both sufficient and true, and if it is
either insufficient or false, he will be liable. He must fol-
low the direction of the writ and execute it according to
law. An officer may justify under an execution which he
never returned (t). Recaption on fresh pursuit, or before
action brought, will justify an escape on execution as well
as on mesne process ; but not if the escape is voluntary
on the part of the officer.
Where good* seized by an officer on execution or attach-
ment, are unlawfully taken out of his possession, he may
maintain trespass or trover for the injury.
No action can be brought against a constable, ,-heriff, or
deputy sheriff, for any neglect or default in his office and
duty, but within two years next after the right of action
shall accrue. But an action of assumpsit maybe maintain-
ed against such officer, for money collected on an execu-
tion, and not paid to the creditor ; or where goods are
sold and there is an overplus, which is not refunded to the
debtor, at any time within six years after the receipt of
the money.
(h) 8 John 361. (t) ib. 52.
251
CHAPTER VI.
FORMS ON FINAL PROCESS, OR EXECUTIONS.
1. Of Retitrns on Executions in Common Form.
Where the execution is paid by the debtor.
H county ss. H day of A. D. ; then I re-
ceived of A. B. the within debtor, the sum of dollars,
in full for the damages and costs of this execution, and the
sum of for my fees thereon.
[Items of fees.] C. D., constable.
Where goods are levied on and sold.
H county ss. H day of A. D. ; By virtue
hereof on the day of , I made demand of the with-
in named A. B. at his usual place of abode, [or at a place
called , in said town of ] ofthr several sums contained
in this execution, and of my fers thereon, which he then and
there neglected to pay ; and afterwards on the day of ,
at said , 1 levied this execution en one bay horse, and
one pair of working oxen, the property of the within debt-
or, and took the same into my possession ; and thereupon
drew an account of the particulars of said propertv, and
posted up the same on the sign-post, in the society of
in said town of , within which society said property
WHS taken, and with the same I also set up a notice that
said property would be sold at the plac^ where posted, at
the end of twenty days, at public vendue, specifying the
day when the sale would take place, and the hour thereof;
and the s.iid A. B. having failed to pay said execution and
charges, on the said specified day I sold, after causing: a
dium to be beat at said sign post, at public vendue, said
horse, the same having been conveyed to said post, to J. S.
for the sum of fifty dollars, he being the highest bidder
therefor ; and I also sold said oxen to O. P. for sixty dol-
lars, he being the highest bidder thfri'for, making in the
whole, the sum of one hundred and ten dollars, from which
I deducted the expenses and my fees, amounting to ten
dollars, and of the residue applied in satisfaction of this
execution the sum of ninety dollars, being the amount doe
thereon, and the remaining ten dollars I returned to the
25:2
within debtor, and also paid to the creditor the contents ot
this execution received by me as aforesaid.
[Items of fees.] C. D., Constable.
[If the property is turned out by the creditor it is al-
ways safest for the officer so to sUtte in his return ; and
where property is taken which is exempt by law, the same
being turned out by the debtor, its being so turned out
should be stated in the return.]
Where a second levy and sale of goods are made.
By virtue hereof on the day of A. D. at ,
I made demand of A. B. the within dtbior of the debt or
sum due hereon, which he neglecting to pay, I made dil-
igent search for goods of the said debtor, and on the
day of , 1 found and levied on a piece of flannel cloth
containing twenty yards, the said debtor then having left
in his posspssion wool and cloth made therefrom, of a quan-
tity exceeding twenty pound?, the said piece of cloth he-
in all the property of the said debtor 1 could then find,
li >ble to be taken ; and thereupon I drew an account of
sa.d properly and posted the same &c. [the same as the
preceding] and at the time and place specified 1 sold said
property, at vendue, having first caused a drum to be
b -a en, to R. R. for fifty cents a yard, amounting to ten dol-
lars. :md applied six dollars thereof in part satisfaction of this
execution, two being required to pay iny fees and expenses,
leaving then due on said execution the sum of ten dollars ;
and ;ifterw:irds on the day of said execution then
being in life, I levied the same on ten bushels of rye, and
ten bushels of Indian corn, the oropertv of the debtor
herein, he then having in his possession more than ten
bushels of each, which I did not take, and thereupon I
drew an account of the property Vist taken, and posted up
the same on the si^n post k.c. [the same as in the first]
and on the said sprr.fk'd day, 1 .-old it public vendue, at
said sign post, hiving first caused a drum to be beaten,
said rve to L. M. for seventy cents per bushel, he being
the highest bidder therefor, and said corn to J. S. for
fif'y cents per bushel, he being the highest bidder there-
for : the whole amounting to the sum of twelve doll.ir->,
of whirh I applied tPn do'l.irs to satisfy the sum remr-ining
due on said execution, and my fees and charges were onr
253
viollar and fifty cents, leaving an overplus of fifty cents,
which I returned to the said creditor, and paid the con
tents of said execution, due the creditor herein.
Where goods in part satisfaction are taken and the body
arrested and committed.
By virtue hereof &c. [state the taking and sale of the
goods the same as the preceding] and I continued to make
diligent search for more goods of the said debtor, whereon
to levy to satisfy the residue of this execution until the
day of , but I could find none within my precincts,
and for want thereof, I by virtue of this writ, arrested the
body of the within debtor, and him committed into the cus-
tody of the keeper of the gaol in H , in the county of
H , to be kept by him within said prison, and there-
upon delivered to said keeper a copy of this execution,
and of my proceedings thereon endorsed, and duly attested
the same.
Where the debtor is out of the precincts of the officer and
insufficient property only can be found.
By virtue hereof I made search for A. B. the within
debtor to make demand of the debt or sum due hereon,
but could not find him in my precincts. I then made search
for goods of the said debtor whereon to levy, and continu-
ed my inquiry until the day of , when I found and
levied this execution on a one-horse waggon, the prop-
erty of the within debtor, being all the goods or estate I
could find within my precincts, and thereupon drew an ac-
count &,c. [the same as in the first form] and on the spe-
cified day I sold at said sign-post, at public veiidue, having
first caused the drum to be beaten, said waggon to J. S. for
20 dollars, he being the highest bidder therefor, of which I
applied eighteen dollars in part payment of this execution,
the charges and my fees being two dollars, leaving due on
said execution twenty dollars ; and I continued to search
for more goods of the said debtor, to satisfy the residue
of said execution, until the day of , but could find
none ; neither could find the body of the debtor, he being
out of my precincts when said execution was put into my
hands, and has not come into the same, whereby he could
22
254
be taken, and on the said day of , I returned said
execution, partly unsatisfied, as aforesaid.
[An officer cannot be justified in taking insufficient prop-
erty, except where the body could not be taken, during
the life of the execution, then it is his duty to do it.]
Where bank or other stock is taken and sold.
By virtue hereof I made demand of A. B. the within
debtor, at his usual place of abode of the sum due hereon,
and my fees, on the day of which he neglected to
pay, and afterwards on the day of , I levied this
execution on four shares of stock in the Phoenix bank, be-
ing a body corporate, the property of said debtor, by leav-
ing with G. B. cashier of said bank, an attested copy here-
of, and of the endorsement of my doings hereon, and on
the same day I drew an account of said property, and
posted up the same on the sign-post in the society of
within which the said levy was made &c. and on the spe-
cified day I sold at public vendue, at said sign-post, having
first caused a drum to be beat, two of said shares of stock,
with the dividends and profits thereon accrued, to L. M.
for one hundred and ten dollars each, and the other two
of said shares to R. R. at the same sum, the said L. M.
and R. R. being the highest bidders therefor, and said
.shares having been offered for sale severally, and thereupon
I executed to the said L. M. and R. R. proper instruments
in writing, conveying to them said bank shares ; and of the
~nm received for said shares of stock, being four hundred
and forty dollars, I deducted five dollars the amount of my
foes and charges, and applied four hundred in satisfaction
of said execution being the amount due thereon, & the over-
plus thirty-five dollars I returned to the said debtor, and
I also paid the contents of said execution, received as afore-
said, to said creditor ; and I also left with the cashier of
said bank a true and attested copy of this execution . and
of my endorsement thereon.
The endorsement on the copy.
H county ss. H day of A. D. ; then by
virtue hereof 1 levied on four shares of stock in the PhiE-
nix bank, belonging to the within debtor, to satisfy this ex-
pcution, and my foes thereon.
A. B., Constable.
255
The above and within is a true copy of the original ex-
ecution, and of the endorsement of my doings thereon.
Attest. A. B., Constable.
[The copy to be left with the cashier after the sale,
must contain a copy of the execution and a copy of the en-
dorsement made thereon, stating the sale of the property,
and must be duly attested.]
Where corn or grain growing is levied on.
By virtue hereof on the day ef at ,1 made
demand of the within debtor of the debt or sum due here-
on, and of my fees, which he then and there neglected to
pay, whereupon by direction of the creditor, I levied said
execution on a certain quantity of growing corn, and all
the right, title and interest of the defendant had therein,
standing and growing on a certain piece of land, situated
in and bounded as follows : containing about ten
acres of land, the same belonging to O. P., the said debtor
having leased or rented the said piece of land, and owned
the said grain standing thereon, [or the said debtor having
cultivated said land on shares, and being entitled to the
one half part of said crop] and thereupon I drew an ac-
count in writing, of the particulars of said corn, and post-
ed up the same on the sign-post in the society of , with-
in which the same was taken, and with such account I set
up a notice that said corn would be sold at the place where
posted, at the expiration of twenty days, the day of sale
being specified, at public vendue as the law directs ; and
on said specified day, the said debtor not having paid said
execution, I sold said corn, by description, according to
said notice, having first caused a drum to be beaten, as
follows, viz. the part thereof growing on four acres of
said land, to R. R. for twenty dollars, together with all the
right and privilege of the said debtor to cultivate and grow
the same on said land, he being the highest bidder there-
for ; and the proportion thereof standing on six acres of
said land to J. S. for thirty-six dollars, he being the high-
est bidder therefor, and all the right of the said debtor to
grow the same on said land, [or where the debtor owned
but a share of the grain :] I sold all the right and interest
of the said debtor in said corn, being the one half part there-'
of, to R. R., for the sum of , he being the highest bid-
256
Jer therefor] and thereupon I gave said purchasers a bill
of sale of said corn ; and of the said money received
therefor, amounting to the sum of fifty-six dollars, I de-
ducted five dollars for the fees and charges, and the resi-
due applied &c. (same as in other cases.)
Where the grain after (he levy is harvested and sold.
[State the levy by posting &c. as in the last, then say :]
tnd the said creditor neglecting to pay said debt, and for
the more advantageous sale of said grain, I caused the same
to be harvested and removed from said land ; and on said
specified day said execution being unsatisfied, I sold said
strain at said sign-post, having caused the same to be con-
veyed there, at public vendue, after the beat of a drum,
to R. R. for the sum of he being the highest bidder :
[or in case of rye or other grain, which is too bulky and
expensive to be removed to the post ] I caused said rye
or grain to be harvested and removed from said land for
the security and better sale of the same, and on said spe-
cified day, I sold the same, at said sign- post, at public ven-
due, by description and sample, said grain being then in
sheaf, and so bulky that it could not be removed without
great and unnecessary expense, a part thereof, consisting
of twenty shocks to A. B. for twelve dollars, he being the
highest bidder, and the residue thereof, containing fifteen
shocks, to C. D. for eight dollars, he being the highest
bidder therefor &c.
Where partnersJtip goods are taken for the separate debt
of one of the partners,
[State the demand as in other cases :] and afterwards on
the day of , by virtue hereof and by the direction
of the creditor I levied upon all the right and interest of
the within debtor in certain goods [describe them] owned
by the said debtor in partnership with A. B. and C. D.
under the firm of A. B. &, Co. the same being partnership
property of said company, and I forthwith drew an account
of the particulars of said property, and posted up the same
on the sign-post, in the society of , within which the
same was taken, and with such account I also posted up a
notice that all the right, title and interest of said debtor in
said property, as one of the partners of said partnership,
would be sold at public vendue, at the end of twenty days,
from the date of said notice, the day of sale being specifi-
ed, and on said day 1 did accordingly sell at said sign-post,
all the right and interest the said debtor had in said pro-
perty, as one of the partners of said firm, to L. M., for
dollars, he being the highest bidder therefor &c.
Where the body is taken and committed,
By virtue hereof I made demand of the within debtor
of the debt due hereon, and my fees, on the day of
at the dwelling-house of the said debtor, in said , who
then and there neglected to pay the same, whereupon I
made search for goods and estate of said debtor, and con-
tinued diligently to enquire therefor through my precincts,
until the day of , but could find none, whereon to
levy to satisfy said execution, {or if some estate is found,
but not sufficient, but I could not find goods or estate of
said debtor, sufficient to satisfy said execution, and my fees
thereon] and for want thereof, on said day of , I
levied said execution on the body of said debtor, and forth-
with conveyed and delivered him into the custody of the
keeper of the gaol of said county of H , by him to be
safely kept within said prison, and left with s-aid keeper an
attested copy of this execution, and of my doings thereon
endorsed.
Where the defendant is arrested and dies.
The within debtor having neglected and failed to satisfy
this execution, although I demanded the same of him at his
usual place of abode, on the day of , afterwards I
made search for goods and estate whereof to levy, but
could find none within my precincts, whereupon I levied
this execution on the body of the defendant on the
day of , he then being sick, whereby I could not con-
vey him to gaol, and he continued sick until the day
of , when he died of a disease called , while in
my custody.
Non est inventus, or -where neither goods or the body can
be found.
By virtue hereof I made diligent search for goods and
estate of the within debtor, whereof to levy, to satisfy this
execution, but could find none within my precincts, neither
22*
could i find the body of the said debtor, wherefore, on the
day of I returned this execution wholly unsatisfied.
Where the debtor's body is arrested, released, and goods
taken.
Having by virtue hereof, made demand of the within
debtor, at his usual place of abode, on the day of
of the sum due on this execution, and of my fees, which
he neglected to pay, and being unable to find any goods
whereon to levy to satisfy the same, I arrested the body of
said debtor, and was proceeding with him to the gaol of
said county of , when said debtor, to procure the re-
lease of his body and to satisfy said execution, turned out
to me a silver watch, with a gold chain, seal and key, where-
upon I released the body of said debtor from said arrest,
and levied this execution on said watch, seal, and key, and
forthwith drew an account of the same &c. [same as io the
preceding.]
Where real estate is levied on and set off.
By virtue hereof on the day of , I made demand
of the within A. B. at his usual place of abode, of the sev-
eral sums due on this execution, and of my fees thereon,
which he neglected to pay, and not being able to find any
personal estate of the said debtor within my precincts, and
none being shewn me by him, whereon to levy, by virtue
hereof and by direction of the creditor herein, (or of R.
S. attorney to said creditor) I levied this execution on a
certain piece of land, whereof the said debtor was seised
and possessed in fee, (or of an estate for life or years) sit-
uated in said town of , and bounded and described as
follows, viz. (describe the land), containing by estin
acres, and thereupon I applied to C. D. the within
named creditor, who appointed R. R., and I also applied to
A. B. the within named debtor, who appointed L L., and
the said creditor and debtor agreed upon and appointed O.
P., all indifferent freeholder? of said town of , to ap-
praise and value said land ; [or the debtor neglecting and
refusing to appoint or agree on one or more appraisers, I
applied to J. P. justice of the peace for said county of
residing in said town of , and by law qualified to judge
between said parties, who designated L. L. and O. P., all
indifferent freeholders of said town of , appraisers,
to appraise and value said land : and the said J. P. justice
of the peace administered to the said R. R., L. L. and O. P.
the oath by kw in such case provided ; and said apprais-
ers, after viewing said land, did then and there apraise and
estimate said land, at the sum of dollars, as the true
and just value of the same, of which valuation they made
a certificate under their hands, in writing, and on the same
day 1 set off to said C. D. the whole of said described piece
of land, in satisfaction of this execution, and of my fees
and charges thereon ; (or they appraised and estimated said
land at thirty dollars per acre, as its true and just value :
whereupon I set off to the said creditor eleven acres there-
of, bounded and described as follows : (here describe the
part of the land set off) in full satisfaction of this execution,
& of my fees and the charges thereon ; ;uid on the day of
I caused this execution to be recorded in the records of
lands of the town of , within which said land lies.
Attest. M. S., Constable.
[Although not absolutely necessary, it is most safe and
correct, that the T o*tice should make a certificate of the
administration of the oath and of the appointment when
mude by him, on the execution ; find also that the ;i]'
ers should make a certificate of their valuation therein.]
H county, ss. H , day of A. D.
Then 1 administered to R. R.. L. L. and O. P. the above
named appraisers, the oath by law provided for appraisers
of 1 md on execution ; [or where the justice makes an ap-
pointment also :] Then, on application of M. S. constable,
I appoint L. L. and O. P. both indifferent freeholders of
sr.irl +own of appraisers, to appraise and estimate, with
R. R. appointed by the above named creditor, the land
above described, and then and there administered to the
said L. L., O. P. and R. R. the oath by law provided for
appraisers of land on execution.
J. P. Justice of the Peace.
We, the subsbribers, freeholders, of the town of hav-
ing bee<- -iprointfd and sworn as above specified, to rip-
praise the above described piece of land, to be set off on
260
said execution, did appraise the same at the sum of per
acre, as the true and just value thereof.
R. R.
L. L.
O. P.
Received the day of A. D. and recorded in
the book of the records of lands of the town of
Items of fees. C. C. Register.
Where lands belong to the debtor as tenant in common.
By virtue hereof, on the day of at his usual place
of abode, I made demand of the within debtor of the debt
due hereon, and of my fees, which he neglected to pay, and
afterwards 1 made diligent search for goods and estate of
the said debtor whereon to levy, to satisfy this execution,
but could find none within my precincts ; for want where-
of, and by the direction of the creditor, I levied this execu-
tion, on all the right, title and interest the said debtor had
in a certain piece of land situated in said town of con-
taining by estimation acres, and bounded and described
as follows : [here describe and bound the premises] the
same belonging to the said debtor as tenant in common with
J. S. and R. N. in equal shares, and thereupon the said
creditor appointed A. B. and the said debtor appointed C.
D. both indifferent freeholders, of said town of to ap-
praise and estimate the right and interest of said debtor in
said land, and the said creditor and debtor being unable to
agree on, or appoint another appraiser, I applied to J. P.
one of the justices of the peace of said town of qualified
to judge between said parties, who appointed E. F. an in-
different freeholder, of said town of another appraiser
of the right of said debtor in said land ; and thereupon the
said justice, J. P. administered to the said A. B., C. D. and
E. F. the oath by law provided for the appraisers of land
on execution, and having viewed said land, said appraisers
did then and there appraise and estimate the right, share
and interest of the said debtor, being the undivided third
part thereof, at the sum of five hundred dollars, as the just
and true value thereof, and did certify the same under their
hands in writing ; and this execution, costs and charges,
amounting to the sum of two hundred thirty dollars and fif-
261
ly cents, I thereupon set off to the creditor herein, such
part or proportion of the said debtor's share, right and in-
terest, as two hundred thirty dollars fifty cents bear to five
hundred dollars, the amount of his whole interest as valued
by said appraisers, in full satisfaction of this execution, and
of all charges and fees thereon. And on the day of
I caused this execution, and the endorsement of ray said do-
ings thereon, to be recorded in the records of land of the
town of within which the said land lies.
Attest. M. S. Constable.
Items of fees.
The certificate of the justice of administering the oath,
will be the same as the preceding ; and the certificate of the
appraisers the same, except that instead of stating they ap-
praised and estimated the land, at such a sum, they should
state that they appraised and valued the right and title and
interest of said debtor in said land, being an undivided third
part or share thereof, owned by said debtor in common
with J. S. and R. N. as tenants in common, at the sum of
five hundred dollars, as its just and true value.
Where a levy is made on mortgaged premises ,
State the demand, &,c. the same as the preceding: and
for want of goods, whereof to satisfy this execution, and by
direction of the creditor, I levied the same on all the right,
title and interest the said debtor had in and to a certain piece
of land situated in said and bounded as follows :
and containing by estimation acres, being a right or equi-
ty of redemption in said premises, the same having been
mortgaged by said debtor to R. S. by deed, bearing date
the day of for the security of the sum of three hun-
dred dollars and the interest, amounting at the time of said
levy to the sum of three hundred fifty-five dollars and fifty
cents, and thereupon the said creditor appointed A. B. and
the said debtor refusing to appoint or agree on one or more
appraisers, I applied to J. P. justice of the peace for the
county of H in said town of and qualified to judge
between said parties who designated and appointed C. D.
and E. F. all indifferent freeholders of said town of ap-
praisers, to appraise and value the equity of redemption in
said premises, or his right and interest therein, subject to
262
said mortgage, and the said justice J. P. then and there adr
ministered to the said A. B., C. D. and E. F. the oath by
law provided for appraisers of land on execution, and hay-
ing viewed said premises and ascertained the amount of said
mortgage debt, said appraisers did appraise and estimate
said equity of redemption, or the right and interest of said
debtor in said premises, subject to said mortgage, at the sum
of two hundred dollars, and said execution, the charges and
fees thereon, amounted to the sum of one hundred twenty-
five dollars and twenty-five cents, whereupon I set off to
said creditor such part or proportion of the said equity of
redemption, or said debtor's right and interest in said de-
scribed premises, as one hundred twenty-five dollars and
twenty-five cents bear to two hundred dollars, the amount
ofhis whole interest therein, as valued by said appraisers,
in full satisfaction of this execution and of all charges and
costs thereon. And on the day of 1 caused this exe-
cution, and the endorsement of my doings thereon, to be re-
corded in the records of lands in the town of within
which said land lies.
Certificate of Justice, same as in other cases.
Certificate of Appraisers.
We, the underwritten freeholders of the town of
having been appointed and sworn as aforesaid to appraise
and estimate the equity of redemption or right and interest
of the above named debtor in the mortgaged premises above
described, subject to said mortgage debt, amounting to three
hundred fifty-five dollars fifty cents, did estimate and ap-
praise the same at two hundred dollars, as its just and true
value.
Where there has been a previous levy of an execution,
the debtor's equity of redemption, or right and interest in
the mortgaged premises must be appraised, not only subject
to the mortgage debt, but also subject to the amount of the
prior execution levied thereon, and the same stated in the
officer's endorsement and the certificate of the appraisers.
2. Of return on execution issued on foreign attachment.
H county, ss. H , day of A. D.
Then, by virtue hereof, and by the direction of the cred-
263
itor, I made demand of A. B. described in the original writ
as the agent, factor, trustee, attorney and debtor of the within
named debtor, and with whom a copy of said writ was leit in
service, of goods and effects of the debtor herein, in his
hands, whereon to levy, to satisfy this execution and the
fees thereon, and also of the moneys and debt or debts due
from him to the within debtor, but the said A. B. neglected
and refused to expose the goods or effects of said debtor in
his hands, and to pay to me, to apply hereon, the moneys
or debt due from him to the within debtor ; and I also made
diligent search for goods and estate of the within named
debtor throughout my precincts, whereof to satisfy this ex-
ecution, and also for his body, but could find neither,
wherefore I return this same execution wholly unsatisfied.
If there are more garnishees than one, demand must be
made of each, and so stated in the return ; and if any goods
are turned out or exposed, it is the duty of the officer to
take them, although insufficient, when the debtor is not
within his precincts. If goods are levied on, they will be
sold the same as in other cases, and return made accord-
ingly.
3. Return onexecution against an executor or administrator.
By virtue hereof, I made diligent search for goods and
estate of the deceased mentioned within, throughout my
precincts, whereon to levy, to satisfy this execution, but
could find none ; I also made demand of A. B. the within
named executor of the last will of said deceased, of the con-
tents of this execution, which he neglected to pay, and also
to expose goods of the deceased, in his hands, which he re-
fused to do ; wherefore I return this execution wholly un-
satisfied.
On an execution against a corporation, the officer will
state in his return that he levied on the goods of the within
named corporation, &c. except executions against towns
and societies, when he will say that he levied on the goods,
naming them, of A. B. a legal inhabitant, and resident ofthe
within named town of &c.
4. Of return on execution in ejectment.
By virtue hereof, I have caused A. B. within named, te
2G4
have seisin and possession of the within described premis-
es ; and have received of the within named C. D. the sum
of dollars, the amount of damages and costs of this exe-
cution, and also the amount of my fees. If the damages and
costs are not paid, he must collect the same as in other ex-
ecutions.
Another.
1 hereby certify that no one on the part of the within
named A. B. came to shew me the within described premis-
es, and therefore I could not cause the said A. B.to be put
into possession and seisin of the same as herein commanded,
5. Of Supersedeas.
I hereby certify that after this writ was delivered to me
to execute, and before I had commenced the execution of
the same, 1 was duly notified that a writ of error in due
form had been issued for the reversal of the judgment on
which this execution was issued, by a copy of said writ
of error being left with me by C. D. deputy of the
sheriff of with his proper endorsement or certificate
thereon made and attested ; by reason whereof I could
not execute this writ as herein commanded.
CHAPTER VII.
ttF RETURNS ON WARRANTS FOR THE COLLECTION OV TAXES.
When a warrant for the collection of taxes is levied on
goods or the body, the return is the same as on execu-
tions, but where land is levied on, the proceedings, and
consequently the return is entirely different.
IVJicrc /a or/ is levied on by a tax warrant.
By virtue of this warrant. I notified A. B. one of the in-
habitants of the town of H named in the schedule or
rate bill hereunto annexed, that I would receive his said
tax at in said town of on the day of and gave
him reasonable warning and opportunity to pay his said tax,
contained in said rate bill ; and said A. B. having neglected
and failedto pay the same, and finding no goods or chattels
Ml
afthe said A. B. within said town of on the day of
J levied this warrant on two acres of land of the said A. B.
situated in said and thereupon advertised and gave no-
tice in a newspaper printed in hi called the ' Times,'
within the same county where said land lies, that so much
thereof would be sold at the public inn of C. D. in said H
at public auction, as would pay the said tax of A. B. and all
costs and charges, on the day of at o'clock ; and
which said notice was published in said newspaper three
weeks successively, at least six weeks before said time of
gale ; and on said day of I accordingly sold at the
place aforesaid, at public auction, to R. S. one half of an
acre of said land, for the sum of dollars and cents, he
being the highest bidder therefor, said sum being the
amount of the "said A. B.'s said tax, and the costs and charg-
es, and then and there 1 set out to said R. S. the land so
sold by metes and bounds, which are as follows : [here
bound the land sold] and thereupon I executed to the said
R. S. a deed of warranty of said half acre of land, containing
the boundaries thereof as aforesaid, in conformity to the
statute in such case provided.
Items of fees. M. S. Constable.
Where land is levied on which has been transferred.
State the notice of time and place, &c. same as the pre-
ceding : and being unable to find any goods, chattels, lands,
or any estate whatsoever, liable to be taken of the said A.
B. I levied this warrant on a certain piece of land situated
in containing about four acres, and which belonged to
the said A. B. when the list was made up, on which said tax
arose, and said tax was payable on the day of less than
one year preceding said levy ; and thereupon I advertised
and gave notice in a newspaper called the printed in
H within the county wherein said land lies, that so
much thereof would be sold, &c., the same as the preceding,
A levy for a state tax cannot in any case be made more than
two months previous to the time the tax is payable ; and a
levy cannot be made on land which has been sold, transfer-
red or attached by a creditor, but within one year after the
tax becomes payable ; but lartd which has not been trans-
ferred, may be taken and sold at any time.
23
56G
Deed of Land sold for town Taxes.
To all people to whom these presents may come, Greeting :
Know ye, that whereas, on the day of A. D. a tax
of cents on the dollar, was voted and granted by the in
habitants of the town of then regularly assembled, oa
all the inhabitants of said town liable by law to pay taxes,
on the list made up for the year and thereupon the se-
lect-men of said town made out a rate bill, containing the
names of the said inhabitants, and the proportion each was
to pay of said tax, which said rate-bill with a warrant there-
to annexed, duly issued and signed by J. P. justice of the
peace for said county, and in due form of law, was put into
my hands to levy and collect, agreeably to the direction in
said warrant, 1 having previously been appointed collector
(or one of the collectors) of said tax ; and A. B. one of the
persons named in the rate bill or list annexed te said war-
rant, having failed to pay his proportion of said tax, al-
though notified of a time and place for the payment of the
same, and proper warning and opportunity given him there-
for, and for want of personal estate of said A. B. whereof to
levy said tax, on the day of I levied this warrant on
a certain piece of land of the said A. B. situated in said
town of containing about four acres, and thereupon ad-
vertised and gave notice in a newspaper printed at H
called the Times, within the county where said land lies,
that so much of said land would be sold at auction on the
day of in said town of at the tavern of as would
be sufficient to pay said tax and the costs and charges ; and
which notice was published in said paper three weeks suc-
cessively, at least six weeks before said day of sale ; and on
said day of sale, by virtue of said warrant, and in pursuance
of said notice, I sold at public auction, to C. D. one half
acre of said land, for the sum of dollars and cents, be-
ing the amount of said A. B.'s said tax, and the costs and
charges thereon, and bounded and described as follows, viz.
[here bound the land.] Wherefore, by authority of said
warrant, and by means of the premises, I, M. S. collect-
or of the tax aforesaid, in consideration of said sum of
received by me of said C. D. do by these presents
give, grant, sell and confirm unto him, the said C. D. and
his heirs and assigns forever, the above described half acre
of land, with all the privileges ad appurtenances thereof.
.0 have and to hold the said sold and granted premises, uu-
to his and their proper use and behoof forever ; and 1, the
said collector, do by these presents bind myself and my
heirs forever, to warrant and defend the above sold and
granted premises unto the said C. D. his heirs and assigns,
against all claims and demands whatsoever.
In witness whereof, I have hereunto subscribed my name
and office, this day of A. D.
M. S. collector of the town
tax of the town of made on
Signed, sealed, and deliv- ) the list of the year of
ered in presence of $
H county, ss. H , day of A. D.
Personally appeared, M. S. collector of the above descri-
bed tax, and signer and sealer of the foregoing instrument,
and acknowledged the same to be his free act and deed be-
fore me. J. P. Justice of the Peace.
Deed in case of sale on state Tax.
To all people, &c.
Know ye that, whereas I, M. S. constable, of the town of
on or about the day of was appointed in and for
said town, collector of a tax granted by the general assembly
of this state, at their session in May, A. D. , on the list of
, being cents on the dollar, on said list ; and on or
about the day of 1 received from I. S. treasurer of
said state, a warrant, by him signed, dated the day of
and in due form of law directed to me, commanding me to
levy and collect said tax of cents on the dollar on said list,
of all the inhabitants of said town of H amounting in the
whole to the sum of dollars, and pay the same into the
treasury of said state by the day of A. D. ; and A.
B. one of the inhabitants of said town, having neglected and
failed to pay his proportion of said tax, although he was du-
ly notified of a time and place to pay the same, and had
proper warning and opportunity so to do, and for want of
personal estate of the said A. B. whereof to satisfy said tax,
I levied this warrant on a certain piece of land, containing
about acres, and thereupon advertised the same, &c.
fthe same as the preceding).
Where the land has been transferred.
State the levy as follows : and for want of any estate, per-
sonal or real, of the said A. B. whereof to satisfy said tax.
n the day of A. D. ,1 levied this warrant on fi
certain piece of land situated in and containing about
acres, belonging to the said A. B. at the time said list wafe
made up, and which said levy was made within one year af-
ter said tax became due and payable, and thereupon, &c.
General return on Tax Warrant.
By virtue of this warrant I have levied and collected oi
the several inhabants of the town of whose names are
contained in the list hereunto annexed, the amount of the
tax specified herein, and such part or proportion thereof oi
"nch. as is specified in said list.
CHAPTER VIII.
F THE SERVICE OF CRIMINAL PROCESS.
A Constable is the proper officer to execute the warrants
of justices of peace in criminal cases ; but a justice can di-
rect a warrant issued by him, to the sheriff, or either of his
deputies, of any county in the state, who can serve and re-
turn the same, or the Constables of any town in the state,
or to an indifferent person by name, who may serve the
same in any part of the state (a). But a justice can only
grant a warrant for crimes committed within his county ;
nor can he issue a warrant, directing the person arrested
(o be brought before a justice of the peace of any other
county, or to bring him before the same justice, at a place
out of his county ; and a Constable cannot safely execute
a warrant of that description ; nor any warrant where it
appears upon the face of it, the justice has no jurisdiction
to order the person brought before him for trial, or encfuiry,
as the case may be ; as where the crime is charged as hav-
ing been committed out of the county or state. A warrant
directed to a particular Constable by name, may be served
(a) St. May se. 1822.
in any part of the state, being the same as though directed
to him as an indifferent person ; but if directed generally to
any Constable in the state, no one could serve it out of his
precincts. If a Constable refusess to execute a lawful war-
rant directed to him, it is a criminal offence. A general
warrant to apprehend all persons suspected of having com-
mitted a particular crime is void ; and a warrant command-
ing the officer to search all suspected houses or places for
stolen goods, is also illegal, and any act done under either,
would subject an officer to be sued as a trespasser. War-
rants are either issued upon complaint of an informing offi-
cer, to arrest a person charged with a crime, search war-
rants to search for stolen goods and arrest the person charg-
ed, or warrants to carry into effect a sentence, or for com-
mitment after judgment.
1. An arrest on a warrant is made in the same manner as
on civil process, an actual touching of the person being ne-
cessary to constitute an arrest, unless he submits to the au-
thority of the officer without. There is one important dis-
tinction, however, between criminal and civil process as to
arrests, as an officer cannot break open doors to take a per-
son on civil process ; but when a warrant is granted on a
complaint for a crime, the officer has power to break open
doors if necessary, to arrest th criminal, after having signi-
fied the cause of his coming and requested admittance. If
that is refused, he is justified, and it is his duty to break
open doors to make an arrest. An officer is not bound to
show the person his warrant, although he demand a sight of
it ; but he ought to inform him that he arrests him by vir-
tue of a warrant, and acquaint him with the substance of
it (d). Where an arrest is made without a warrant, which
is unlawful, a warrant being granted afterwards will not
make it lawful. Strictly, an officer cannot permit a person
arrested on a warrant to go at large on his promise to re-
turn, and by the common law he could not be arrested
again by authority of the same warrant, as it is considered a
voluntary escape ; but it has been decided in this state, that
where a person is arrested on an execution, and permitted
to go at large by the officer, this is not a voluntary escape,
and that he may be retaken and committed during the life
(d) 6 Co. 54,
23*
270
of the execution, which will justify the officer. The prin-
ciple of {his decision has not been sanctioned by the court
of errors, but if it is considered as settled law, in this^tate,
it would seem by parity of reason, that the permitting a
person arrested on criminal process to go at large, on his
promise to return, would not be a voluntary escape, and that
the officer might be justified in retaking him. If a person
arrested on criminal process, and permitted to be at large,
voluntarily return, according to the common law the officer
may detain him on the same warrant and bring him before
the court, agreeably to the command in the writ. A Con-
stable may command all necessary assistance to execute a
warrant ; if he is assaulted, he need not retreat as a private
person should do ; and if in striving together he kill the as-
sailant, it is no felony, but if the Constable be killed, it is
murder (e). And those who come to the assistance of a
Constable, who is assaulted or resisted in the execution of
his office, whether commanded or not, are entitled to the
same protection of the law as such officer.
2. Search warrants must contain a description of the
goods alleged to have been stolen, and of the place to be
searched. The constable must search the place or places
described, and seize the goods, if they can be found, and
also arrest the person charged with having stolen and se-
creted the goods, and have the same and the person,
forthwith before the justice named in the warrant. After
stating the object of his coming and requesting entrance
at the building where he is commanded to make search,
the officer may break open doors if he is refused admit-
tance ; and after entering he may break the locks of chests
or trunks, to examine them, if they are refused to be open-
ed on request ; but if he commit any unnecessary violence,
or any act of indecency towards any person belonging to
the house, he will not be justified. The officer is to take
the complainant with him to point out the place and
goods, and assist in making search. Where it does not
appear from the warrant and the complaint that the goods
had been stolen, and the complainant suspected they
were concealed at a particular place and stolen by a par-
ticular person, it will be void, and the officer executing it
() 10 Co. 68.
271
will be guilty of a trespass (rf). If it states that the com-
plainant suspects a particular person of having stolen the
goods, and sundry other persons, or that he suspects that
they are concealed at a certain place in a particular town,
or some other house in the same town, and commands the
officer to search the place described, and all other sus-
pected places, and to arrest the persons suspected ; the
proceeding is corurrt non jvdice, and not only the officer
who executes the warrant, but the justice who issued it
is liable in trespass to the party injured (e).
3. Warrants issued after judgment, are either for the
commitment of the prisoner in consequence of his non-
compliance with the judgment, or inability to procure bail
in case of binding over, or to carry the sentence into effect.
A warrant of commitment, commonly called a mittimus, is
either directed to an officer commanding him to convey and
deliver the person named, to the keeper of the gaof, and
leave with such keeper a copy thereof, and also command-
ing such keeper to receive -and detain such prisoner with-
in the prison ; or it is directed to the keeper commanding
him to receive into his custody and safely to keep the
prisoner until discharged by due course of law. In the
latter case the officer delivers the prisoner to the keeper,
and also the mittimus ; but in the former case, he mu?t
leave a copy of the warrant or mittimus with the keeper
and of the endorsement on the original, which strictly
should be returned to the justice like other writs ; but this
is not usually done.
Warrants to enforce the sentence of a justice are either
to distrain or levy a fine and costs, to inflict a corporeal
punishment, or to commit the prisoner to gaol, where that
is a part of the sentence, as it now may be in a few cases.
A warrant of distress commands the officer to distrain and
levy of the goods, chattels and lands of the prisoner, to
satisfy the fine and costs mentioned therein, and for want
thereof to take his body and commit the same to prison.
If he can find goods he must take them and dispose of them
in the same manner as on execution, and service is to be
made in the same way. A warrant for the infliction of cor-
(d) 1 Conn. Rep. 40. (e) id.
272
poreal punishment should be executed forthwith. All war
rants for carrying into effect a sentence of a court should
he duly returned, with a regular endorsement of the do-
ings of the officer thereon, that it may appear from the re-
cords and files of the court that the sentence had been per-
formed, and also for the safety of the officer. When how-
ever, there is a legal judgment and a proper warrant issu-
ed, in pursuance thereof, an officer would probably be
justified in any act done in obedience to the direction of
such warrant, although no return had been made ; but it
is most safe and proper that a regular return and endorse-
ment should be made, as on other process. A mittimus
must contain a recital shewing the cause of the commit-
ment, and warrants to enforce the sentence of a court,
must recite the judgment on which they are founded.
CHAPTER IX.
OF RETURNS ON CRIMINAL PROCESS.
On complaint and warrant.
H county ss. H " day of A. D. ; then by vir-
tue hereof I arrested the body of the withiu named A. B.
read this process in his hearing, (or acquainted him with
the substance of this process) and him have herein court.
M. S. Constable.
Where the delinquent cannot be found.
By virtue hereof I made diligent search for the within
named A. B., but he has not been found within my pre-
cincts.
On search warrant.
Then by virtue hereof, accompanied by the within nam-
ed complainant I repaired in the day time to the house de-
scribed in this warrant, and therein made search for the
within described goods, I found the same concealed in said
building and seized the said goods, and thereupon I arrest-
ed the said A. B., acquainted him with the substance of this
process, and have him, and also said goods, here in court.
273
Although' the goods are not discovered the officer must
arrest the person charged, if he can be found ; and if the
goods are seized and the person accused cannot he found,
or escapes out of the officer's precincts, so that he cannot
be arrested, the officer must return the process and the
goods to the justice, to whom the same was made returna
hie, and make his endorsement acccordingly.
Where the goods cannot be found, fyc.
Then by virtue hereof, accompanied by the within nam
ed complainant, in the day time, I made diligent search in
the building mentioned herein, for the goods described in
this warrant, but could not find said goods ; and by virtue
hereof, I arrested the body of the within named C. D.,
acquainted him with the substance of this process, and kim
have here in court.
On a mittimus.
Then by virtue hereof I conveyed the within named A.
B. to the gaol in , in said county, and delivered him
into the custody of the keeper of said gaol, and left with
said keeper a true and attested copy of this mittimus, and
of my endorsement thereon.
On warrant of distress.
By virtue hereof I distrained and seized a silver watch,
the property of the within named A. B., and disposed of
the same at public auction, at the sign-post in , on the
day of , according to law, legal notice of said sale
having been previously given, by posting up the same on
said sign-post, and for which property I received the sum
of dollars, and the within fine and costs, including my
fees and charges, amount to the sum of , leaving an
overplus of , which 1 returned to the said A. B., and
I paid the said fine and costs to the within justice J. P.
to be disposed of according to law.
Another,
Then by virtue hereof and for want of goods and estate
of the within named A. B. whereof to make distress, \
took his body and him conveyed to the gaol in , in and
274
for said county, and him delivered into the custody of the
keeper of said gaol, within said prison, to be kept until
delivered by due course of law, and left with said keeper
a copy of this warrant and of my endorsement hereon.
On a warrant for inflicting corporeal punishment, fyc.
Then by virtue hereof I conveyed the within named A. B.
to a suitable place in said , (or to the public sign-post)
and then and there inflicted upon his naked body ten
stripes, and thereupon for want of goods and estate of the
said A. B., whereof to distrain for the within fine and costs,
(or within costs where there is no fine) I conveyed the
said A. B. to the gaol in in and for said county, and de-
livered him into the custody of the keeper of said gaol
within said prison, and left with said keeper a copy of this
warrant, and of my endorsement thereon.
EX-OFFICIO RETURNS.
For breach of Sabbath.
H county ss. H day of A. D. ; I A. B.
constable of said town of , appear before J. P. justice
of the peace for the county of , and inform and return
on my oath of office, that on the day of , being sab-
bath or Lord's day, E. F. and G. H. both of said , and
sundry other persons to me unknown, in profanation of the
Lord's day were engaged in divers amusements, in ;;id
town of , and then and there in my presence and view,
the said E. F. and G. H. with the said persons to me un-
known, were playing ball, contrary to the form of the
statute in such case provided and of evil example ; where-
upon by authority of said statute I arrested the said E. F.
and G. H. and them detained until said snbbath had expired,
and them now have before your worship to be dealt with
according to law.
For drunkenness.
County &c. I A B. constable of the town of appear-
ed before C. D. justice of the peace, of , for the coun-
ty of , and present and inform that E. F. of said town
of , was this day found by me at said in a state of
drunkenness and intoxication, whereby he was bereft of his
276
understanding which was apparent in his speech and be-
haviour ; and which is contrary to the statute in such case
provided and of evil example ; whereupon by virtue of
said statute I arrested ihe said A. B. and him now have be-
fore said justice C. D. to be dealt with as to law and jus-
tice shall be found appertaining.
For profane swearing.
County of &c. I A. B. constable of said town of
come before C. D. one of the justices assigned to keep the
peace in said county of and present and inform that on
this day at one E. F. of in my presence and hear-
ing, did wickedly and profanely swear by the name of
God, and did utter and repeat the following profane oath
and words : (recite the words) contrary to the statute in
such case provided, and of evil example ; whereupon by
virtue of said statute 1 then and there arrested the said A.
B. and him now have before your worship that he may be
dealt with agreeably to law.
For a riot.
County of &c. I A. B. constable of the town of
come before J. P. justice of the peace for said county of
and inform and return that on the day of at
in said county, C. D., E. F. and G. H. and sundry other
persons to me unknown, riotously and unlawfully assem-
bled themselves together, with the intention 'against the
peace and to the manifest terror of sundry good citizens of
this state, and with force and arms to pull down and demol-
ish, a certain building, then and there standing, the prop-
erty of O. P. of said ; and being informed of said ri-
otous and unlawful assembly, I repaired to the place, and
then and there, in the presence and hearing of said C. D.
E. F. and G. H., and other rioters, commanded silence, and
then made proclamation in these words : " In the name
and by the authority of the State of Connecticut, I charge
and command all persons assembled immediately to disperse
themselves and peaceably to depart to their habitations on
their lawful business, on the pains and penalties of the
law ;" and the said C. D., E. F. and G. H., and others, not
regarding said proclamation, did not disperse themselves,
but continued so riotously ^and unlawfully together after
such proclamation had been made, contrary to the form of
the statute in such case provided and against the peace :
whereupon by authority of the statute entitled, " An act
for the suppression of riots," I commanded assistance and
arpested the said C. D., E. F. and G. H., and them held
and now have before said justice J. P. that they may be
dealt with agreeably to law.
PART III.
THE POWERS AND DUTIES OF SELECT-MEN,
TOGETHER WITH FORMS, &c.
CHAPTER I.
Of the powers and duties of Select-Men.
As all the duties of Select-men are pointed out by statute,
and are in general very plain, and as there have been few
decisions of our courts in any way affecting them ; and as
they afford little occasion for legal forms, it was not our
intention originally to have devoted but a small proportion
of this work to a consideration thereof; and the two first
parts of it having been extended to greater length than
was expected, we shall be obliged to confine ourselves to
a concise examination of some of the most important du-
ties of Select-men.
Each town in the State is required at theirannual town
meeting each year, to appoint a convenient number, not
exceeding seven Select-men, to take charge of the pruden-
tial concerns of such town. Annual town meetings are to be
holden in the months of October, November, or December,
and it is the duty of the Select-men to cause such meet-
ings to be warned by a notification in writing, signed by
them or a majority of them, specifying the objects of such
meeting, which must be posted upon the several sign-posts
of the town. The statute provides that this shall be suffi-
cient warning, but it is not the only mode of warning ; and
if a town meeting is warned by the constables, as the inhab-
itants would have actual notice, the warning would be le-
gal ; and a vote of the town designating a time when their
town meetings shall be held would probably be sufficient
warning. At any annual town meeting the inhabitants may
determine on any other place or places, at which warnings
shall be posted up, in addition to the public sign-posts.
24
Any town meeting may adjourn from time to time, as may
be necessary. Special town meetings may be called when-
ever the Select-men deem it necessary, or on the applica-
tion of twenty inhabitants qualified to vote in town meet-
ings. The voters in town meetings are the electors or
freemen, and persons of twenty-one years of age, posses-
sing a freehold not subject to a mortgage, rated in the com-
mon list at nine dollars, or personal estate rated in the list
at one hundred and thirty-four dollars, exclusive of their
polls, and who have statedly resided in the town one year.
If any person not qualified, votes or intermeddles in any
town meeting, he incurs a forfeiture of seventeen dollars
to the treasury of the county. No town officer can be
chosen at a special meeting except in case of vacancy by
death, removal, or refusal to accept of some person appoint-
ed at an annual meeting.
The office of Select-men is peculiar to New England, and i*
probably as ancient as the first settlement of the country.
They were originally called Townsmen, or the Town's -
men, as appears from ancient records ; and their duties were
formerly much more extensive than at present, as in addition
to taking care of the general concerns of the town, they ex-
ercised a minute inspection and superintendance of the
morals, manners, and private affairs of the inhabitants there-
of. No specific qualifications are required for the appoint-
ment, and any inhabitant or resident, may be a Select man.
They take no oath of office, neither is there any oath re-
quired or administered to voters in town meetings.
1. The general powers and duties of Select-men relate
to the management and superintendance of the ordinary
interests and affairs of the town. It is provided by statute
that they shall superintend the concerns of the town, and
adjust and settle all accounts against the same, and draw
order? on the treasurer thereof for payment, and that they
shall keep a true and regular account of all the expendi-
tures of the town, and exhibit the same at the annual
meeting next following their appointment (a). Their
general authority however, as Select-men, does not ena-
ble them to act as agents of the town, either to commence
or defend in a suit in behalf of .the town, or to employ an
(a) St. 458.
279
titorney, but for this purpose the town must appoint an
igent to appear for it, or to engage counsel (6).
It is their duty immediately after the annual town meet-
ing to cause all persons who have been appointed to town
bffieea to be summoned to appear before some justice of
the peace of the town, and take the oaths prescribed by
law for their respective offices. This is necessary that it
m, iy be known whether the persons chosen accept or not,
so that if they refuse, others may be appointed to supply
the vacancies.
2. They superintend the collection of taxes, and in cer-
tain cases may assess the inhabitants. When any tax is
voted or granted by the town, it is the duty of < the Select-
men to make out a rate bill, containing the proportion which
each inhabitant of the town and non-residents having taxa-
ble property in the town, is (o pay according to his list.
AH town taxes are to be granted upon the last assessment
list, which has been completed according to law. If any
town refuses or neglects to grant a tax sufficient to defray
the necessary expenditure of such town, after being in-
formed by the Select-men of the necessity and want of such
supply, the Select-men are empowered to assess the inhab-
itants, and make out rate bills on their lists in the same man-
ner as where a tax is granted by the town. But they cannot
assess the inhabitants in any other way, or on any other
principle, than according to the general assessment list.
Whether the tax is granted by the town, or an assessment
made by the Select-men, their rate bills must be signed by
them, or a majority of them ; and in either case, they must
apply to a justice of the peace of the county and obtain a
warrant annexed to such rate bills, and deliver the same
into the hands of the collectors to collect such tax and pay
the same into the town treasury by the time appointed,
All taxes whether imposed by the town or Select-men,
must be granted upon all the inhabitants of the town accord-
ingto their assessment lists, and afterwards the Select-men
and civil authority may abate the proportion of such tax
belonging to the indigent and unfortunate ; they are also
authorized to abate the particular rates of poor and unfor-
tunate individuals in case of state taxes, but if such abate
(6) St. 132.
ments exceed one eighth of the proportion ol't-uch tax, be
longing to the town, the excess must be made up by the
town.
If -any collector of a town or state tax die, or refuse tc
receive his rate bill, or shall before he has completed the
collection of any tax, deliver up his rate bill, into the hands
of the Select- men, they are empowered to depute some
proper person to collect the whole, or what remains un-
collected of such tax, and such collector shall have the.
same powers as other collectors, and be responsible for
what there was due on said tax when such rate bill was de-
livered to him. In such case the Select-men ought to as-
n the amount due and uncollected on said tax bill
r.ch person is deputed, otherwise they will not know
Miuch he is to account for: they must also obtain a
arrant, or procure the justice who issued the first
. r the direction, and direct it to the person deputed
; Select-men. The Select-men are to see that all
uid state taxes are collected and paid into the treas-
:ry according to law. If the collector of any town tax
,hall neglect or fail to collect and pay the same by the time
limited, it is the duty of the Select-men to demand the ar-
rearages of such collector, and on failure of payment, thev
must apply to a justice of the peace for an execution against
him for the amount of such arrearage, and such justice is
empowered to grant the same. If the collector of am r
state tax shall fail to collect and settle with the state treas-
urer for the same by the time appointed, the Select-men
are authorized to commence a suit against such collector
in the name of the town to recover what remains unpaid
of such tax ; and the whole estate of such collector at the
time of the commencement of such suit is holden for thf
same.
Form of Execution against a Collector.
To the sheriff &.c. Whereas on the day of the
town of in lawful town meeting assembled, granted a
tax of cents on the dollar on the list of the y^ar
on all the inhabitants of said town, payable on the day-
of A. D. ; and whereas A. B. was at said meeting
appointed a collector (or one of the collectors) of said
tax ; and the Select-men having made out a rate bill, or
bills under their hands, specifying the proportion each in-
281
habitant of said town was to pay of said tax, and obtained
a warrant in due form of law directed to said A. B. annex-
ed to said rate bill (or one of said rate bills where there
is more than one collector) him commanding to levy and
collect of the several persons named in said rate bill, their
proportion of said tax, as specified in such rate bill, and pay
the same to the treasurer of said town, on or before the
said day of A. D. ; and the said collector hav-
ing neglected and failed to collect and pay over said tax,
(or such part thereof as was contained in said rate bill) by
the day the same was payable, the Select-men of said
town on the day of made demand of said negligent
collector for the arrearages of said tax amounting to the
sum of dollars and cents, which he neglected and
refused to pay, whereupon the said Select-men made ap-
plication to J. P. justice of the peace for the county of
for an execution against said collector for said arrear-
age of said tax : Wherefore, by virtue of the statute in
such case provided, and by the authority of the State of
Connecticut, you are hereby commanded, that of the goods,
chattels or lands of the said A. B within your precincts,
you cause to be levied, and the same being disposed of or
appraised, as the law directs, paid and satisfied unto the
treasurer of said town of , the aforesaid sum of
dollars and cents, with seventeen cents more for this
writ, and also for your fees. And for want of such goods
&,c. (the same as in other executions.)
3. The Select-men are overseers of the poor, and it is
their duty to provide necessary food, clothing, firewood,
and other articles necessary to their subsistence, for all
paupers belonging to the town, and to draw orders on the
treasurer therefor ; and to exhibit to the town an account
of such expenditure when required (c). This is the most
important branch of the duties of Select-men, and should
be discharged with a proper regard to economy or the in-
terests of the town, and the claims of humanity in behalf
of the indigent, the distressed, and the wretched ; of whom,
if many are the victims of intemperance, idleness, and
vice, some at least are the subjects of misfortune, sickness
and adversity. The paupers of a town are subject to the
(c) St. 370.
24*
282
orders and authority of the Select-men, who may remove
them to such places in or out of the town, and provide for
them as they please, subject to the direction of the town.
The paupers are entirely dependent on the Select-men, for
no person is entitled to pay, for any supply furnished to a
pauper contrary to the express direction of the Select-men ;
nor in any case for any thing furnished to a pauper before
notice is given to one or more of the Select-men, where
such pauper resides, of his condition ; but after such no-
tice, if the Select-men neglect to take care and provide for
such pauper, such person may furnish him with ne-
eessaries, which must be paid for by the town where such
pauper resides, unless the Select-men gave such person
express orders not to furnish such necessaries.
The Select-men are not only to oversee and provide for
the paupers of the town, but likewise for paupers, or per-
sons residing within the town who are so poor as to be un-
able to support themselves, although not inhabitants of such
town. If the Select-men of any town have knowledge of
any person residing in such town not being an inhabitant
thereof, who is unable to support himself, and is in want
of supplies for his subsistence, and shall neglecf to furnish
the same, for every such offence, each Select-man forfeits
the sum of seven dollars to the person who may prosecute
for the same. It is singular that there should be a for-
feiture for not providing for paupers not belonging to the
town and none for neglecting to provide for those that do
belong to the town, although if they decline furnishing sup-
plies and forbid others doing it, a pauper must starve, un-
less subsisted by charity.
Where a pauper belonging to one town, is in another
town and becomes chargeable, the Select-men of the latter
town must give notice to the town to which such pauper
belongs, of his condition, within five days after they ascer-
tain the town to which he belongs, if such town is within
twenty miles, and in other cases in fifteen days ; and where
the Select-men have knowledge of the town to which such
pauper belongs, and shall neglect to give notice within the
periods aforesaid, such {own shall not be liable for any
expense for the time of such neglect ; and such town shall
not be liable to pay at a greater rate than one dollar per
week for the support of a pauper in lieu of all expense 6
283
Notice may be given by putting a letter, signed by one or
more of the Select-men of the town where the pauper i-.
into the mail, directed to the Select-men of the town where
such pauper belongs, if there is a poet-office in such toxvn,
otherwise directed to be left at the post-office nearest to
such town ; such notice shall be considered a? having been
given at the time the letter would be received by the or-
dinary course of the mail (). Actual notice in writing,
conveyed in any other way, is sufficient. The notice must
state the name of the pauper, and that he is chargeable :
if he has a family it is not necessary to state the names of
the members of his family, but generally that the pauper
and his family are chargeable for their support. The ex-
penses incurred by one town for the support of .1 pauper
belonging to another, where the aforesaid provisions of the
law have been complied with, may be recovered by a pro-
per action at common law.
When any person having a legal settlement in any town
in this state shall remove out of the same and gain a settle-
ment in any other state, and shall afterwards return to this
state, and become chargeable for his support, the town
where he had his last settlement in this state shall be lia-
ble to support him.
The principal difficulty concerning paupers, has arisen
from questions as to their right of inhabitancy or settlement ;
but the laws relating to this subject now, are more intelligi-
ble and simple than they were formerly ; yet there can be
no general principles but which in their application may in
some instances occasion doubts and difficulties. The law
relative to the acquiring of a right of inhabitancy, or a leg;il
settlement, in any town in this state, makes a distinction be-
tween foreigners, persons who are inhabitants of any other
state, and such as have a settlement in a different town in
this state. Foreigners, or persons who are not inhabitants
of this, or any of the other states, cannot acquire a settle-
ment in any town in this state, unless admitted by a vote of
the inhabitants of such town, or by consent of the Select-
men and civil authority of such town, or by being appointed
to, and the execution of, some public office. It would
seem that the appointment to an office would not be suffi-
(d) St. 370.
284
cient ; but that the person must execute the duties of the
office to which he may be appointed ; yet whether the ap-
pointment is made by the town, the general assembly, or
the people, does not appear to be material. A person who
is an inhabitant of any of the United States, except this,
may gain a settlement by any of the requisites, whereby a
foreigner may acquire a settlement, and also by the posses-
sion in his own right in fee, of real estate situated in this
state, of the value of three hundred and thirty-four dollars,
free from encumbrance, and by one year's residence in the
town next preceding the time, he may claim to be admitted
an inhabitant. If his title to real estate is by deed, it must
have been recorded in the proper office, at full length, at
least one year before he can be admitted. A person being
an inhabitant of any town in this state, may gain a settlement
in any other town, by any of the requisites whereby a for-
eigner may acquire a settlement ; and likewise by posses-
sing for the term of one year, real estate in his own right in
fee, situated in the town where he may claim to have a set-
tlement, of the value of one hundred dollars, free from en-
cumbrance ; or by a residence in a town for six years, he
supporting himself and family, if any he has, during that pe-
riod, and also paying all taxes for which he is legally liable,
and which may be demanded of him by the collectors there-
of. The settlement of a married woman is the same as that
of her husband, and the settlement of minor children fol-
lows that of their father. Neither a married woman nor
minor children can acquire a settlement in their own right
by residence, as they are not persons sui juris, and posses-
sing the legal capacity of doing the acts required to be done ;
but a feme covert may obtain a settlement by the residence
of her husband, and minor children by the residence of their
father, although they do not reside themselves in the same
town. A person who resides in a town apart of six years,
whilst a minor, and the residue after he is of full age, does
not gain a settlement (a). A ward residing with his guar-
dian does not gain a settlement in the right of his guardian
by such residence (6.) It has been decided by the supe-
rior court, that an idiot, although of age, did not acquire a
settlement in her own right, but in the right of her mother
(a) 4 Day, 1 89. (fc) 1 Root, 1 31 .
285
by residence (c). By authority of this decision, and from
the express terms of the statute, there can be no doubt
that minor children, having no father living, may gain a set-
tlement in right of their mother by residence with her in
a town six years ; and a bastard child may gain a settlement
in right of its mother by her residence.
All persons born in this state, whose parents have a
settlement in any town in the state, become inhabitants of
the state ; the settlement of an illegitimate child follows
that of its mother, if she has a settlement in any town in
this statCj if not, its settlement is to be in the town of its
birth (d).
A married woman cannot gain a settlement by residence
in her own right, but where the marriage is \oitl she may
gain a settlement. Where a woman having a settlement in
a (own in this state married an inhabitant of another state,
and they removed into another town, and cohabited togeth-
er as husband and wife, the marriage being void, she gained
a settlement in her own right by such residence (e) A
lunatic, needing support, may be removed to the town
where she has a settlement, notwithstanding she has a re-
versionary interest in fee in the town where she resides (/).
Where the parents of a pauper who was a minor, were di-
vorced by an act of the legislature, and the mother appoint-
ed guardian to such minor, it was held that such pauper's
settlement acquired in her father's right was not affected
thereby (g). Where "all the inhabitants" living within
certain limits, were incorporated' into a distincttown, it was
held that an infant pauper, residing within those limits,
having a settlement elsewhere in right of her father, was
not included (/i). The settlement of a child of a female
slave, born after the first of March, 1784, is in the place of
its birth, as it could derive no right of settlement from its
mother, owing to her being a slave, nor is her settlement
changed by her mother's gaining a new settlement in anoth-
er town, as a slave cannot communicate the right of settle-
ment to her children (z). It has been decided that a per-
son having a settlement in one town in this state, acquired
a settlement in another, by purchasing therein an estate in
fee, of greater value than one hundred dollars, notwith-
(c) 1 Hoot, 196. (<7) 2 Con. Rep. 18. (*) 1 Day, 212. (/) ib.
(g) 2 Con. Rep. 20. (A) ib. (i] ib. 355.
286
standing the execution at the same time of a mortgage deed
to the grantor, to secure the principal part of the purchase
money ( f) ; but this decision has been overruled by the
legislature, as it is now expressly provided by the statute,
that theest ite must be free from encumbrance, to enable a
person to acquire a residence thereby.
Persons born in this state, of parents who are foreigners,
it would seem acquire a settlement in the town where they
are born, but that those born in this state of parents having
a settlement in any other state, would not acquire a settle-
ment in the town where they are born, but that their set-
tlement would follow that of their parents. But no person
born in this state, can become chargeable to the state, and
if a person born in this state, of parents who are inhabitant*
of another state, becomes chargeable to any town in this
state, such town cannot be reimbursed from the treasury of
the state, nor can they have a claim upon the town where
such pauper was born ; but he may be removed to the state
where his parents belonged at the time of hi- birth, he ha-
ving acquired a settlement there in their risjht.
A woman having a settlement in any town in this state,
who marries, and her husband having a settlement in a dif-
ferent town, she loses her settlement and acquires one in
his right; if her husband has no settlement in this state,
but is an an inhabitant of any of the other states, she loses
her setttement in this state during the marriage, and ac-
quires a settlement in the right of her husband in the state
where he belongs, and may be conveyed there with him
and if her husband be a foreigner, she loses her settlement,
without acquiring any in the risihtof her husband. But in
either case, it would seem that on the death of her husband,
if she return to, or has not left, this state, her former set-
tlement will revive, and she will become chargeable to the
town where she belonged at the time of her marriage ; as it
is provided that in all cases where a person once had a set-
tlement in any town in this state, and shall have removed
into another state, and have gnined a settlement therein,
and shall return to this state and become chargeable, he
must be supported by the town to which he formerly belong-
ed (c). And the reason is the same, where a woman hav-
(/) 2 Con. Rep. 600. (e) Stat. 371.
287
ing a settlement in any town in this state, loses the saiui.
and gains a settlement in another state l>y marriage, without
having removed out of this state, that on the death of her
husband her settlement should revive.
In order to acquire a settlement by residence, a person
must reside six years in succession, and support himself md
family, pay all taxes which may lawfully accnre against him
and be demanded of him. A temporar.- absence, or an ab-
sence on business for a length of time, if his family is in the
town, and he intends t return there, will not prevent his
acquiring a settlement. So if a person without a family is
absent from a town at different periods for several months
at a time, on business, without intending to remove from
such town, and still considering the same as the place of his
residence, his absence will not prevent his acquiring a set-
tlement.
Mariners, who make their home in a sea pert town, and
sail from, and return to the same, are considered as re-
siding in such town, so as to acquire a settlement.
There are a class of paupers who have not acquired a
settlement in any town in the state, and who, nevertheless,
are not chargeable to the state; the town where such pau-
pers may become chargeable, although they h;ive no settle-
ment in the same, have no claim for the supplies furnished,
as the state is not liable to reimburse the moneys expend-
ed, nor is any other town, as such paupers have no settle-
ment in any town in the state. It is provided by statute
that no person born in this state or in an adjoining state,
and that no person who at any time previously had a settle-
ment in any town in this state, shall be chargeable to the
state, and that no town shall be reimbursed from the state
treasury any expenses incurred for such paupers (a). Per-
sons born in this state, of parents who are inhabitants of
another state, acquire no settlement in the town where
they were born, but they have a settlement in right of their
parents, in the state where they belong; yet if they become
chargeable to any town, such town cannot be reimbursed
by the state. And a person born in this state, of parents
who are foreigners, cannot be chargeable to the state,
whether they acquire a settlement in the town where they
(a) St. 371
28$
were born or not. A person born in any adjoining state,
and who becomes chargeable to any town in this state, such
town cannot be reimbursed from the state treasury, and
will have no claim for the support of such person, unless
he has by residence acquired a settlement in some other
town in this state. The expression "adjoining state,"
must not be construed to mean any of the other states, but
a state actually adjoining this, as the reason of the law is.
that it is the duty of the town where such persons may re-
side, aud who may be likely to become chargeable, to cause
them to be removed to the state where they belong, but
this reason does not apply to distant states, as the same fa-
cility of removing persons to them does not exist. Persons
who have once had a settlement in any town in this state,
and have lost the same, without acquiring a settlement in
any other town, if they become chargeable, the expense
must be home by the town where the same is incurred,
and such town cannot be reimbursed from the state treasu-
ry. If a woman, having a settlement in this state, marries
a foreigner, or an inhabitant of another state, whereby she
loses her settlement, if they become chargeable, he will
belong to the state poor, but she will not, and her support
must be borne by the town where they reside, and which
may furnish the same. It is also provided that if any per-
son not an inhabitant of this state, shall reside six years in-
clusive in any town in the state, without becoming chargea-
ble to the state, any expense which may be incurred by-
such town for the support of such person, he still residing
therein, must be borne by such town (r). But if such per-
son, duringsaid term of six years, has received aid from the
town, he will not have acquired a settlement therein, yet
if he continues to reside there, the town will be liable for
his support ; but if he should remove from such town and
become chargeable to another town, the latter town would
have no claim upon the first, and such town might be reimi
bursed their expenses from the state.
The differeuce between a person's having a settlement ia
a town, and the town being liable for his support whilst he
may reside therein without his havingacqcired a settlement,
is this : that where a pauper has a settlement in a town.
(c) Stat. 372.
289
charged with his maintenance, whether he re-
side within the town or not, and may be sued for expenses
incurred by any other town for the support of such
person ; but in the latter case, the town is only liable
for his support whilst residing in the same, or in other
words, is only deprived of its claim upon the state, to have
its expenses refunded ; but if such person removes out of
such town, it is not liable for any expense incurred by any
other town for the support of such pauper. Where a per-
son born in an adjoining state, or in this state, of parents
who are inhabitants of another state, or where o married
woman, or other person who has once had a settlement in
some town in this state, and has lost the same, without ac-
quiring a settlement in any other town in the state, if they
become chargeable to any town, where they may reside,
such town will be liable for their support, although they
have acquired no settlement therein, during their residence
in the same. But such persons, and all other persons not
inhabitants of any town in this state, may be removed either
into the state where they belong, or if they have resided in
any other town in this state they may be removed to the
town where they last resided and made it their home in
this state. And such persons may be removed either to
another town in which they have resided in this state, or
into any other state, at any time within six years after their
coming into any town in this state, whether they have be-
come chargeable to such town or not. But if a person who
has a settlement in any town in this state, removes into any
other town, he cannot be removed from such town, to the
town where he belongs, unless he becomes chargeable
within six years next after hi* coming into the town ; nei-
ther is he liable to be warned to depart such town.
Where a person is chargeable in any town in this state,
who has a settlement in any other town in the same, he
may be removed on application of the Select-meji of the
town where he is chargeable, to the civil authority, or any
two of them, of such town, who are authorised to grant
a warrant directed to any constable of the town, command-
ing them to transport such pauper to the town where he be-
longs. A person who is an inhabitant of any other state,
may be removed out of this state, by a warrant issued by
the civil authority, or a majority of them, .of the town
25
290
where he resides, on application of the Seclect-men of such
town. 1 he civil authority are not in either case to grant a
warrant as a matter of course, on application of the Select-
men ; but they are to exercise their discretion and judg-
ment on the subject, and may refuse it ifthey think proper.
A form of warrant in these two cases has been given at
page 32.
Form of Warrant for removing a person who is an inhabitant
of another Stale to a town in this State, -where he has prev-
iously resided.
To A. B. of in the county of Constable of said town
Greeting.
Whereas C. D., E. F. and G. H. Select-men of the said
town of this day made application to the undersigned
justices of the peace, being a majority of the civil authority
of said town, stating that O. P. is now residing in said town
with his family, and has resided in said town since the
day of and that the said O. P. is an inhabitant of the
state of and not an inhabitant of any town in this state,
and that heretofore and immediately preceding his coming
into said town of he resided and made his home in the
town of in this state : Wherefore, by authority of the
state of Connecticut, and by virtue of the statute in such
case provided, you are commanded to take the said O. P.
and his family, consisting of his wife and children, and
forthwith (or as soon as they can conveniently be removed)
convey and transport them into said town of in the coun-
ty of in thi* ?tate, where they last resided, previously
to their removing into the said town of . Hereof you
are not to fail, but due service and return make.
Dated, &c. Signed by a majority of the justices of
the peace of the town.
A person not an inhabitant of this state, residing in any
town therein, is liable to be warned to depart the same.
This may be done by the Select-men, on their own author-
ity, or by a wai rant granted by a justice of the peace. The
warning, if by the Select-men, may be in writing or verbal.
Warrant.
To either Constable, &c.
Whereas A. B. now residing in the town of in the
291
county of is not an inhabitant of this state, and the said
A. B. has become chargeable, or is likely to become charge-
able, to said town of . Wherefore, you are hereby
commanded forthwith to give notice, and warn the said A.
B. to depart forthwith from, and leave said town of
with his family, on penalty of the law in such case provi-
ded. Hereof, &c.
A person who has been warned out of a town, forfeits one
dollar and sixty-seven cents for every week he continues
in such town after such warning ; and if convicted and lined,
and he has no estate to satisfy the same, he is liable to be
whipped ten stripes on the naked body, unless he depart
from the town within ten days after sentence, and reside no
more therein, without leave of the Select-men. But ap-
prentices, and servants bought for a time, are not liable to
be warned to depart from a town, or^to be fined or whipped
for refusing so to do. And if any person, not an inhabit-
ant of this state, is conveyed out of the same as aforesaid,
and returns into the town from where he was sent, to abide
therein, he may be warned to depart, and if he fails so to
do, he may be whipped on the naked body not exceeding
ten stripes, and again sent away, and so dealt with as often
as he may return to said town.
There is a severity and harshness in the statute relative
to inhabitants of other states, who come to reside in this
state, which is little consistent with feelings of humanity, or
with that spirit of comity, which ought to characterize the
conduct and the laws of different states, with relation to each
other. And it is the more extraordinary that these provi-
sions should be general, and not restricted or qualified, so
as to be applicable only to persons who have become charge-
able, or who are liable to become chargeable to the
town where they may reside. As the law now is, any
inhabitant of another state, however wealthy or respect-
able, who removes into any town in this state, unless he
acquires a settlement therein, is exposed to be warned
to depart from such town, and liable to a fine of one dollar
and sixty-seven cents a week, if he continues to remain
therein after such warning ; and moreover, is also liable
even without any warning or notice, to be f rcibly seized
by a constable and conveyed out of the state. It is no ex-
tenuation of the barbarity of this statute, to say that it m
never applied, except to persons who have or are likely to
become chargeable ; but this is rather an evidence of the
injustice and inexpediency of the law. It is ; however,
some excuse, that most of the other states have similar
statutes.
If any individual hire any person who is not an inhabit-
ant of this state, who comes to reside in any town therein.
Or let any house or land to such person, such individual, un-
less he gives security to the acceptance of the Select-men
and civil authority of such town, to save the same harmless,
from all expense that may be occasioned thereby, forfeits
to the treasury of such town, one dollar and sixty-seven
cents per week, for every week he may hire or harbour
such person, or let an estate as aforesaid. A separate ac-
tion cannot be brought on this statute for the each week's
forfeiture, but an action must be brought for the whole sum
which has become forfeited and accrued when the same is
instituted. A bond or note in common form, may be taken
as security, with a condition annexed, that the obligor will
indemnify such town from all expense on account of such
person or his family. Any individual who may bring any
person who is poor and indigent into any town in this state
of which such person is not an inhabitant, and leave them
therein, incurs a forfeiture for every person so brought and
left, of sixty-seven dollars, to the use of such town.
No person who is unable to support himself and family,
can become chargeable to the public, that has relation-
standing in ihe degree or line of father or mother, grand-
father and grand mother, children and grand children, who
are of sufficient ability to provide for and support such poor
relations. If they neglect or refuse to provide such sup-
port, application may be made to the county court of the
county where such indigent person resides, by the Select-
men of the town, wherein he is resident, or by one or more
of such relations, where a part of those standing in the
same relation, refuse to contribute towards the support of
such indigent relation. Where a person dies, leaving a
widow, and no children, his estate, both real and personal.
is liable for the support of such widow during her widow-
hood, in case she become impotent and unable to support
herself, and there is no person liable by law to support her.
293
of sufficient ability (i). Where there are chiMren <>r pa-
rents who are of sufficient ability, grand children or grand
parents cannot be called upon. Where there are several
children or grand children, who are able, they must contri-
bute in equal, or in such proportions as may be reasona-
ble, with reference to their relative ability and circumstan-
ces, and if any of them refuse, one or more of the others
m;iy make application to the county court, which may order
them to pay towards the support of such indigent relation,
such sum as they think reasonable, and may issue execu-
tion quarterly therefor. Sons and grand sons, in law or by
marriage, are not liable from their own estates to support
their wives' parents, or grand parents.
Form of application or petition to the county court by Select-
men.
To the honourable County Court, &c.
The application or memorial of A. B., C. D. and E. F.,
Select-men of the town of in the county of respect-
fully sheweth, that L. M. is an inhabitant of said town of
and that by reason of sickness, he has become poor and im-
potent, and wholly unable to provide for himself and fami-
ly ; and they would further inform your honours, that O. M.
of the town of and P. M. of the town of both in said
county, are grand children of the said L. M. and of sufficient
ability to support and maintain the said L. M. their grand
father, but that the said O. M. and P. M. and each of them,
wholly neglect and refuse to provide for the support and
maintainance of the said L. M. although informed of his in-
digence and want of support, and requested by us to furnish
the same, whereby the said L. M. has become chargeable,
(or is likely to become chargeable) to the said town of
And your memorialists pray your honors to inquire into the
facts herein stated, and if found true, to order and decree
that O. M. and P. M. pay and contribute such sum for the
support of the said L. M., as your honours may deem rea-
sonable, or that in some other way your honours would
grant relief. Signed by the Select-men.
Application by a Relation.
The memorial of A. B. of respectfully shewing that
ft) St. 278.
25*
294
L. B. of by age and infirmities has become poor, and
unable to support himself, and that C. B. and E. B. both of
said town of and the memorialist are children of the
said A. B. and all the children the said A. B. hath now living,
and that the said C. B. and E. B. are each of them of suffi-
cient ability to support the said A. B. as well as the memo-
rialist ; but that they have neglected and refused, and do
still neglect and refuse to pay or contribute towards the
support of the said L. B., although informed of his destitute
condition, and often requested so to do, whereby the me-
morialist has had to bear the whole burden and expense of
supporting his said father i Wherefore he prays your hon-
ours to inquire into the facts herein stated, and if found true,
order and decree that the said C. B. and E. B. pay and con-
tribute such sum for the support of their said father, L. B.,
as your honours may deem reasonable.
Citation.
To either Constable of, &c.
By authority of the state of Connecticut, you are hereby
commanded to summons C. B. and E. B. of the town of
in the county of to appear, if they see cause, before the
county court, to be holden at, &c. then and there to shew
reasons, if any they have, why they shall not contribute
and pay a reasonable sum towards the support of A. B. their
said father, agreeably to the prayer of the foregoing memo-
rial : Hereof you are not to fail. State duty of thirty-four
cents is paid hereon. J. P. Justice of the Peace.
The several towns in the state are authorized to estab-
lish work-houses and houses of correction ; to erect and
provide suitable buildings, with cells or apartments for con-
fining offenders sentenced thereto ; to furnish the materials
for those who are ordered to labour, to direct the kind of
labour, and to make all necessary regulations, not inconsist-
ent with the laws of the state .
The Select-men of the town are constituted overseers of
the work-house established therein ; and it is their duty to
appoint a master or keeper of the same, to superintend
such house, as to the management, labour and food of the
prisoners, to see that the laws are duly executed, that the
prisoners are suitably provided for, and not exposed to
abuse or oppression, and at least once in three months to
visit such workhouse. If the master is guilty of any mis-
conduct, they may remove him and appoint another in his
place ().
The towns are also authorized to establish asylums or poor-
houses, for the admission and accommodation of the poor
of such town, and to establish by-laws relative to the per-
sons to be admitted into such houses, and for ordering and
governing the same ; but such by-laws must not be contra-
ry to the laws of the state, and they may be repealed by the
superior court, if by said court they are deemed unreason-
able or unjust. The Select-men are not empowered to
establish or superintend poor-houses, but the town must
appoint agenls for the express purpose ; but the Select-
men may be appointed agents. Two or more towns may unite
in establishing poor-houses (A). Houses of correction and
poor-houses may be connected together in one establishm< nt,
and this will generally be done when either are erected.
The importance of such establishments, for the comfort and
better regulation of the poor, for economy, and for the pun-
ishment and correction of Ihe idle, the profligate, the
vicious, and the intemperate, is beginning to be duly appre-
ciated. Confinement and labour are the only means that
afford any hope of correcting such offenders.
CHAPTER II.
1. The Select-men, or the major part of them, of any
town, are authorized to lay out public highways, or private
ways, within the limits of such town. They must give no-
tice to all the owners of land through which the road is
proposed to be layed out, to be present, if they see cause,
at the laying out of such road. A notice in writing must be
left at the usual place of abode of each of the owner? of the
land through which the road is to pass. The Select-men
and the persons interested, may agree on the damage done
by laying out said way ; an.d in case they cannot, the Select-
men must apply to any justice of the county, in case of a
(a) St. 480. (6) St. 371.
296
private way, and to any justice of any other town in the
county, incase of a public highway, and such justice may
appoint three judicious and disinterested freeholders, who
being sworn for that purpose, must estimate and assess to
each person injured, the damage sustained by him by the
laving out of such way. Where the Select-men lay out a
public highway, the expense must be borne by the town ;
but in case of a private way, it must be paid by the persons
applying for such way, if the same is for their use only.
A survey in writing must be made, or caused to be made,
by the Select men, and signed by them, containing a partic-
ular description of such way, which must be submitted to a
lawful town meeting, and if accepted by such town, it must
be recorded in the records of lands of the same, and the
damages being paid according to the agreement or estimate
as aforesaid, to the persons injured, or the amount thereof
deposited in the treasury of the town for their use, such
way becomes legally layed out and established, if a public
highway, and may immediately be opened. But in case of
a private way layed out as aforesaid, if any person through
whose land the same passes, declares himself aggrieved, the
way cannot be opened or occupied until the expiration of
twelve months after the way was layed out, that such per-
son may have opportunity to apply to the county court for
relief, and also time to secure his enclosure (a).
In case of a public or private way layed out by Select-
men, any person aggrieved either by laying out the way,
or the assessment of the damages, may within eight months,
apply to the county court for relief. The Select-men for
the time being of such town, must be cited to appear and
shew reason, if any they have, why the relief should not
be granted. The county court, if they are of opinion that
the way is not of common convenience and necessity, may
set aside the same and revoke the doings of the Select-
men, or if they consider the damages assessed too low, they
may, on application therefor, order out a jury to re-assess
the same (d).
The Select-men may, with the approbation of the town,
discontinue any public or private way, which may have
been layed out by them or their predecessors, and any per-
<) St. 268. (d) St. 271.
297
son so aggrieved by their doings, may make application to
the county court for relief, in the same manner and within
the same time, as where application is made by persons
aggrieved by the doings of Select-men in laying out ways ;
and the Select-men must also be cited in the same man-
ner (e).
Form of Notice.
To A. B. of . You are hereby notified to
appear at in said town, on the day of at
o'clock, then and there to be present and to shew
cause, if any they have, why a public highway (or private
way) shall not be layed out by the subscribers, Select-men
of said town of , within said town, as follows, viz. com-
mencing &c. (describe the proposed way.)
g' p' ? Select-men.
Form of the survey and laying out of a high zvay.
Be it remembered that on the day of A. D.
the subscribers, Select- men of the town of in the coun-
ty of , having given notice, in writing, by leaving the
same at their places of abode, to A. R., C. D. and E. F.,
all of said town of , and G. H. of the town of ,
in the county of , owners of land over which the high-
way hereinafter described is layed out, to be present at the
laying out of the said way, and shew reasons, if any they
have, against the laying out of the said highway, and the
said A. B., C. D. and E. F. having been present and their
objections fully heard, and on personal view, we have laid
out and established, and do hereby lay out and establish a
public highway, (or private way, as the case may be,) with-
in said town of , as follows, that is to say, (here de-
scribe the highway from actual survey, giving the bounda-
ries, lines and courses.) And the subscribers and the s;iid
A. B. and C. D. owners of hind, over which said highway
is laid, agreed and estimated the damage done to the land
of the said A. B. by the laying out of said highway at
dollars, and that done to the land of the said C. D. at
dollars ; and being unable to ngree with said E. F. and G.
H. as to the damage done to their land, by laying out of
said way, the subscribers applied to J. P. justice of the
peace for said county, and qualified to act in said matter,
(e) St. 27.?.
298
who thereupon appointed L. M., O. P., and R. R., all ju-
dicious and disinterested freeholders of the town of ,
in said county [they must not belong to the same town in
case of ;i public highway] to estimate and assess the dam-
ages sustained by the said E. F. and G. H. by the laying
out of said highway, and said freeholders being duly sworn,
by said justice, and having notified the said E. F. and G. H.
to be present, and having personally viewed said land and
said way, as laid over the same, did estimate and assess
the damage of the said E. F. at dollars, and the damage
of the said G. H. at dollars ; and all ot which said
damages have been paid by us, from the treasury of said
town of
[Signed by the Select-men.]
Certificate of the Justice which should accompany the Survey.
H county ss. day of A. D. : then on appli-
cation of the aforesaid , Select-men of the town of
I appointed L. M., O. P. and K. R., all judicious and
disinterested freeholders of the town of in said county,
to estimate and assess the damage done to the lands of E. F.
and G. H. by laying out the above described highway ; and
at the same time they were duly sworn by me to make a
just and impartial estimate of such damages.
J. P. justice of the peace.
Certificate of ihe Freeholders.
The subscribers, freeholders of the town of in the
county of hereby certify, that having been appointed,
and duly sworn to estimate the damages sustained by the
abovenarned E. F. and G. H. by the laying out of the above
described highway, they being owners of land over wnirh.
the same is laid, and having viewed said highway and said
land, and they in pursuance of notice, being present, did
estimate and assess the damage of the said E. F. at
dollars, and the damage of the said G. IT. at dollars,
arising from the laying out of said highway as aforesaid.
[Signed.]
Receipt of Damages.
The subscribers, owners of land over which the fore-
going highway is 1-ud out, hereby acknowledge to have
received of the Select-mpn of said town of thelJama-
ges agreed upon, or assessed to them respectively, as afore-
said.
299
Certificate of Town Clerk.
I hereby certify, that at a legal town meeting, holden ou
the day of said town of accepted and approved
of the laying out of the foregoing highway, by the Select-
men of said town ; and on the day of the afore-
said survey and description of said highway, under the
hands of said Select-men, was by me recorded in the re-
.cords of lands of said town.
The Select-men are authorized to remove encroachments
made on public highways. If any person include any part
of a highway in his field or inclosure, or erect his fence
on the same, whereby the highway is made narrower, the
Select-men, or a committee of the town appointed for that
purpose, may notify and warn such person to remove his
fence within one month ; and if he does not remove the
same within that time, the Select-men, or such committee,
are authorized to remove the same, and have a right by any
proper action to recover the expense thereof, of the per-
son making such encroachment. And if after such remov-
al, such person shall again erect his fence, so as to inclose
the same, or a less part of the highway, he incurs a pen-
alty of seven dollars for every such offence, as often as re-
peated, one half to the Select-men who gave the warning
and removed the fence, and who may prosecute such offend-
er, and the other half to the treasury of the county where-
in the offence is committed (e). But where the Select-
men brought an action on this statute to recover the ex-
penses of giving notice and removing encroachments upon
a highway, it ;vas decided that they did not act as the agents
of the town and that the town was not interested in the
event of the suit (/.)
2. The Select- men are authorized to appoint overseers.
They are required from time to time to inspect the man-
agement and conduct of all persons residing within their
respective towns, and if they find any person by idleness,
gaming, intemperance, debauchery, mismanagement, or bad
husbandry, who is likely to spend and waste his estate, and
bcome chargeable to the town, they may Appoint some
proper person to be his overseer to advise, direct and or-
(t> St. 362 (/) 2 Conn. Rep. 292.
der him in his business. Such appointment must be in
writing, subscribed by the Select-men, specifying the cause
thereof, and must be for a definite period of time not ex-
ceeding three years. A copy of such appointment must
be logded with the town clerk of the town ; and a like
copy or other notice of such appointment must be set up
on the sign-post in the town ; and if there are several so-
cieties it should be on Ihe sign-post where such person
resides, although perhaps this is not indispensable to the
validity of the appointment. Such Select-men, or their
successors, may remove such overseer for neglect of duty
or mismanagement in his trust, and appoint another in his
place (g). Where no time is limited in the appointment of
an overseer, the appointment is void (A). If the appoint-
ment is for more than three years, it is also void. In ca.se
of a void appointment of an overseer to a person within
the jurisdiction of the Select-men, owing to its not being
in conformity to the statute, the Select-men are not liable,
although such appointment was made without probable
cause and from malice, except special damages arise from
such appointment, which must be alleged and proved, as
the appointment imposes no restraint, and the law will not
imply any damage (i). The Select-men cannot appoint an
overseer except to persons residing in the town, and if they
appoint one over a person who is an inhabitant of the town,
or has a settlement there, but does not reside within the
town, the appointment is void and the Select-men are lia-
ble to the party, where actual damage arises from such ap-
pointment, the same being specifically alleged and proved.
But where the Select-men make an appointment of an
overseer to a person within their jurisdiction, without
probable cause, the appointment is valid ; but the Select-
men are liable to the party without alleging or proving
special damage, as the law implies damage, the person be-
ing deprived of the power of making contracts and trans-
acting business. But the law will not presume that the Se-
lect-men have acted wrongfully, or that they have appoin-
ted an overseer to a person who was not a proper subject
of such appointment, and the proof lies on the plaintiff,
where he claims that the Select-men have made an appoint-
() Stat. 276. (h] i Con. Rep. 79. (i) id. 313.
301
vuent from malice, and without probable cause, and the
failure of the defendants to prove any facts to shew that
they acted fairly, or that the appointment was made accord-
ing to the Statute, will not warrant an inference of malice
against them (i).
If the person over whom the Select-men have appointed
an overseer reforms, they may revoke the appointment ;
but if such measures do not produce a reformation, or if
such person refuses to submit to the authority of his over-
seer, the Select-men may apply to two or more justices of
the peace of the town, who may issue a warrant, and cause
such person to be brought before them, or may notify him
to appear at a proper time and place ; or if he absconds,
a notice may be left at his usual place of abode. And
thereupon such justices may proceed to make inquiry, and
if they find that such person is by intemperance, or any of
the kinds of misconduct which authorize the appointment
of an overseer, wasting his property, and likely to be re-
duced to want, or that he refuses to submit to the authority
of his overseer, they may direct and authorize the over-
seer, or appoint any other person to take such person an<
his estate under his care.
The duties and authority of an overseer, thus appointed,
are substantially the same as those of a conservator ap-
pointed by the county court ; he has the sole charge and
control of such person and his estate. He must make an
inventory of the estate of such person, and lodge a copy
of the same with the town clerk, and must annually, and
oftener if required, render his account to the Select-men,
of the discharge of his trust. He may be removed by
the Select-men, with the advice and consent of two justices
of the town, for misconduct in his office, and another per-
son appointed in his place ; and in case of death or resig-
nation, another person may in like manner be appointed.
When a vacancy occurs by death or resignation, the disa-
bility of the person continues for nine days, to give the
Select-men an opportunity to supply such vacancy, by the
appointment of another overseer. Such overseer may
apply to the county court and obtain an order to sell the
real estate of such person, if that is necessary, to pay his
(i] 1 Conn. Rep. 313.
26
debts. Whenever such person reforms, the justices of the
peace making such appointment, may revoke the same, and
order his estate to be restored to him. If any person is
aggrieved by the doings of the Select-men, or justices of
the peace, he may appeal to the county court, which is
authorized to grant relief (fe).
Form of appointment of Overseer.
The subscribers, Select-men of the town of having
inspected and examined the conduct and management of his
business of A. B. an inhabitant of said town, and residing
therein, and finding, that by intemperance and gaming,
(or idleness, mismanagement and bad husbandry,) he is
spending his estate, and likely to be reduced to want, and
himself and family become chargeable to said town, we do
hereby, this day of , constitute and appoint C. D.
of said town, overseer to said A. B. to advise, direct and
order him in the management ot his business.
[Signed by a majority of the Select-men.]
Citation by two Justices of the Peace.
To any constable of the town of &c.
Whereas C., D. and G., Select-men of said town have
applied to us, representing that A. B. a resident of said
town of , being in practices of intemperance and idle-
ness, whereby he was wasting his estate, and liable to be-
come chargeable to said town of , on the day of
they appointed L. M. overseer to the said A. B. to
advise and direct him in his business, and the said L. M.
thereupon took upon him said trust ; and further repre-
senting that the measure and proceedings aforesaid have
not produced a reformation in the said A. B. [or ; but that
the said A. B. hath refused and still refuses to submit to
the authority of his said overseer]. Wherefore you are
hereby commanded to summon the said A. B. to appear
before us at , on the day of , then and there
to shew cause, if any he has, why we shall not authorize
and direct said overseer, or appoint some other suitable
person, to take his family and estate under his care, agree-
ably to the statute in such case provided. Hereof &c.
[Signed by the two Justices.]
ffc) St. 277.
303
Appointment by the Justices.
Be it remembered that on this day of A. D.
A. B. a resident of the town of , appeared before us m
pursuance of a citation issued by us on the application of
C, D and G, Select-men of said town of representing
that the said A. B. being in habits of gaming and intemper-
ance, whereby he was wasting his estate, they on the
day of appointed L. M. overseer to the said A. B. to
advise and direct him in his business, and that said L. M.
thereupon took upon him the discharge of said trust ; and
further representing that said measures did not produce a
reformation in the said A. B. (or that the said A. B. refus-
ed to submit to the authority of his said overseer) ; and
having inquired into the facts, we do find that the said rep-
resentations of said Select-men are true, and that the ap-
pointment of said overseer has not produced a reformation
in the said A. B. (or that he refuses to submit to the au-
thority of said overseer) and that he is likely to waste his
estate by gaming and intemperance, and to become charge-
able to said town : Whereupon, in virtue of the statute in
such cases provided, we do hereby authorize and direct
the said L. M. to take the family of the said A. B. and his
estate under his care and charge, agreeably to the provis-
ions of the statute, in such case made and provided.
3. It is provided by statute, that parents and those who
have the charge of children, shall bring them up to some
honest calling and employment ; and that they shall cause
them to be instructed and taught to read, write, and cypher,
as far as the first four rules of arithmetic ; and it is made
the duty of the Select-men to inspect the conduct of heads
of familes, and if they find they neglect the education of
their children, to admonish them to attend to their duty,
and if they continue to be negligent, whereby their chil-
dren grow rude, stubborn and unruly, the Select-men, with
the advice of a justice of the peace of the town, may take
such children from their parents, or those who have the
charge of them, and bind them out to some proper mas-
ter, males until twenty-one, and females until eighteen
years of age, that they may be properly educated and
brought up in some lawful calling and employment (/).
(I) St. 107.
The right of the Select-men to interfere, does not depend
upon the parents, or those who have the charge of children,
being chargeable, or likely to become chargeable to the
town, but wholly on the fact of their neglecting the educa-
tion and employment of their children, and suffering them
to grow up in idleness and ignorance. If the Select-men
interfere without probable cause and from malice, they
would be liable, the same as in case of the appointment of
overseers ; or if they were to bind out children without
previously admonishing their parents, or those who have
the care of them ; they must R!SO provide in binding them
out, that they be properly educated and brought up to some
proper calling and employment, as it is on the ground of a
neglect of this, that the Select-men are justified in inter-
pc-ing th-ir authority.
It is further provided, that when those persons who have
iief or supplies from any town, suffer their children
; ppd their time, and live in idleness, and neglect to
;hem up to some honest calling ; and when the head
>f any family does not provide for his children, whereby
: 'v are exposed to want, and where there are any poor chil-
iren in any town that are exposed to want, and live in idle-
ness, having no person to take care of them, the Select-
men of the town are authorized, and it is their duty, with
'!;< L.rsont of a justice of the peace of the town, to bind out
such poor children to be apprentices to some proper mas-
ter, to be instructed in some suitable trade, calling, or pro-
fession, males until the age of twenty-one, and females un-
til the age of eighteen, or to the time of their marriage
within that age (n). The principle of this statute is en-
tirely different from the other, here the Select-men inter-
pose their authority and superintendence solely on the
ground of the parents being in indigence, and of their hav-
ing actually received assistance from the town, or of their
not providing competently for their children, and their suf-
fering them to grow up in idleness without being employed
in any honest business, whereby they may earn their liv-
ing, and be qualified for useful citizens. The object of the
statute, relating to children, is to guard against the children
of the poor .and th ose who are insensible of the advantages
(d) St. 318.
of education, being suffered to grow up in ignorance ; and the
object of the act relating to masters and servants is to prevent
the children of indigent and negligent persons being brought
up in idleness, without acquiring either habits of industry,
or a knowledge of any imployment whereby they may pro-
cure a livelihood, and become useful members of society.
From the importance of the education and employment of
youth, they are very properly considered by our laws, as
objects of public as well as private concern, and as proper
subjects to which the aid and vigilance of legislation should
be extended, where from indigence or ignorance those
whose duty it is, neglect these important objects, upon
which the well being of individuals, and the morals and
prosperity of communities, essentially depend.
From the terms of the statute it would seem that the
Select-men would not be authorized to bind out children,
except as apprentices to some trade or profession ; but
practically at least, a more extended construction has been
given to this provision, and the Select-men bind out chil-
dren to any useful employment or business. They could
not be justified in binding them out merely to be servants,
where they are not te be employed in any useful business
or occupation. If the Select-men bind out the children of
those who have not received assistance from the town, and
do not suffer their children to live in idleness, and neglect
to employ them in some honest calling, or children which
are not exposed to want, they will be liaMp to the p >.rty
injured, if they have acted from malice and without proba-
ble cause. Neither can the Select-men bind out children,
unless they belong to the town, and are within their juris-
diction ; but where they can lawfully interfere, a binding
out by them, is valid and effectual, although against the
consent of the child and its parents.
Form of Indenture where the head of a family neglects the
Education of his or her children.
This indenture, made this day of between A, B
and C, Select-men of the town of , with the advice and
assent of J. P. one of the justices of the peace of said
town on the one part, and L' M. of , on the other part,
witnesseth, that, whereas S. R., the mother of a minor
; hild named R. R. both inhabitants and residents of said
26*
306
town of , the said S. R. the mother of said child, and
having the charge of the same, he having no father living^
has neglected the care and education of said child, and al-
though often admonished by said Select-men, she continued
to neglect the education of said child, whereby he grew
rude, stubborn and unruly, said Select-men have deemed
it proper to remove said child from the care of S. R. his
said mother, and to bind out the same, and with the advice
and consent of J. P. justice of the peace in said town of
for the county of , do hereby bind the said R. R.
unto the said L. M. to live with him, and by him to be ed-
ucated, and brought up and instructed in some honest and
lawful employment, from the date hereof until the said R.
R. arrives at the age of years, which, as said Select-
men are informed, will happen on the day of A. D.
And said Select-men, by virtue of the statute in such
case provided, do hereby give to the said L. M. all ne-
cessary authority over the said R. R. and the full right of
his time and services during said period And in consid-
eration thereof, the said L. M. on his part, does hereby
covenant and agree to, and with said town, to take the care
and charge of said R. R. to cause him to be taught and in-
structed to read, write, and cypher as far as the four first
pules of arithmetic, and to cause him to attend school
months in each year of said term, to bring him up and in-
struct him in the employment and business of , and to
provide for him suitable food and apparrel, washing and
lodging, medical assistance in case of sickness, and all
necessaries proper and suitable in sickness, or in health,
for said R. R. during said term ; and at the expiration
thereof, give him clothing.
In witness whereof we have hereunto interchangeably
set our hands and seals. A, }
B, } Select-men.
C. )
L. M.
County ss. H day of A. D.
I certify that I advised and do hereby advise and assent
to the binding; out of the above named R. R. to the said
L. M. agreeably to the foregoing inderture.
J. P. justice of the peace
30?
In case of binding out of a female it must be until she
arrives to a certain nge (not exceeding eighteen) or until
her marriage within the age of eighteen.
Indenture by Select-men where a child is in want, or his pa-
rents receive relief from (lie town fyc.
This Indenture, m;ide this day of . between A,
B and C, Selectmen of the town of , with the assent
of J. P. justice of the peace for the county of , re-
siding within said town, of the one part, and L. M. of
of the other part, witnesseth, that J. S. an inhabitant of
said town, and having received supplies from the same,
and permitting R. S. a minor child of his to live in idle-
ness, and neglecting to bring him up to any honest employ-
ment, said Select-men have deemed it their duty, and do
hereby bind out the said R. S. [or, that J. S. an inhabitant
of said town, not providing competent!} for his family,
whereby they are exposed to want, said Select-men have
deemed it proper, and do hereby, with the consent of J. P.
justice of the peace of the county of , and residing in
said town of , bind out R. S.] a minor child of said J. S.
residing in said town, unto said L. M. to live with and
serve him the said L. M. as an apprentice, from the date
hereof, until he attains to the age of twenty-one years.
which, as said Select-men are informed, will be on the
day of A. D. if he lives to that age. And the said
Select-men do by these presents, and by virtue of the stat-
ute in such case provided, give to the said L. M. all the
right to the time and services, and the same power and au-
thority over the said R. S. during said term, as a master
lawfully has to and over an apprentice in other cases.
And the said L. M. on his part, in consideration of the
premises, does agree and covenant with said town of
and the said R. S. to teach and instruct him the said R. S.
in reading, writing and arithmetic, to permit him to attend
school months in each of the four first years of his
said term, to provide for and furnish him with suitable food,
clothing, washing and lodging, to furnish him medicine and
medical assistance in sickness, and all the necessaries pro-
per and suitable for the said R. S. in sickness and health,
and to teach and instruct, or cause him to be taught and
instructed in the trade and occupation of , according
to the most approved method and practice ; and during
said term to teach the said R. S. said trade and make him
skilled therein, so far as his abilities and ingenuity will
admit ; to oversee and guard his morals, and train him to
habits of obedience, subordination, industry and economy ;
and at the expiration of said term of apprenticeship, to
give him clothing.
In testimony whereof, said parties have &c.
We have examined the leading and most important duties
of Select-men ; but there are various other specific acts
and duties, which, by different statutes they are required
to perform, either of their own authority, or in connex-
ion with one or more justice of the peace, or the civil au-
thority of the town, many of which we have briefly noticed,
in treating of the powers and duties of justices of the
peace ; and others are so clearly pointed out by statute,
that there would be little use in considering them ; be-
sides, the prescribed limits of this work oblige us to close
this part of ;t, which has already been extended to greater
length than was expected at the time we entered upon it.
FORMS, OF COMMON USE AND GENERAL CON
VENIENCE.
1 . A JVeirntiabJe Note.
Sixty days from the date I promise to pay to A. B. or or-
der, tifty dollars, for value received.
H , January 30th, 1823. C. D.
$50.
payable at Bank.
Ninety-five days from the date I promise to pay A. B.
or order, at the Phoenix Bank, one hundred dollars, for va-
lue received. H , 30th day of Jan. 1823.
$100. C. D.
2, An Order.
Sir
Please to pay to A. B. or order. dollars, and charge
the sametOjtne, it being for value received. Dated, &c.
To E. F". A. B.
3. Inland Bill of Exchange.
$100. Hartford, 30th January, 1823.
At days after date, [or at sight, or on demand, or
days after sight] pay to A. B. or order, one hundred dollar?,
for value received.
To E. F. merchant at New-Haven. C. D.
Endorsement.
Pay the contents of the within to L. M. or order.
A. B.
Protest
Know all men, that I, S. B. on this day of 1823,
at the usual place of abode of Mr. J. C. have demanded
payment of the bill (of which the above is a copy,) which
the said J. C. did not pay, wherefore I the said S. B. do
hereby protest the said bill ; dated at H this day of
1823.
Foreign Bill.
No. New- York, 30th Jan. 1823.
Exchange for 5000 sterling.
At two usances [or at days after sight, or at days af-
310
ter date,] pay this my first bill of exchange (second and third
of the same tenor and date not paid) to Mr. or order, [or
bearer] five thousand pounds sterling, value received of
him, and place the same to account, as per advice from
To Mr. at London. James Oatl-md.
4. A single Bill for the payment of Money.
Know all men by these presents, that I, A. B. of do
owe and am indebted unto J. A. of the sum of twenty -
five dollars. \\ hich said sum 1 promise to pay unto the
*:iid J. A. hi? executor?, administrators or assigns, on orbe-
fore the day of next ensuing the date hereof. Wit-
ness my hand and seal this day of A. D. 1823.
A penal bill for the payment of Money.
Know all men by these presents, that I, A. B. of do
owe unto J. I. of one hundred dollars, to be paid unto
ti. > said J. I. his executors, administrators or assigns, on or
brforethe day of next ensuing the date hereof ; for
which payment well and truly to be m-ide, 1 bind myself,
my heirs, executors and administrators, to the said J. I. his
executors, administrators or a*=ians, in the penal sum of
two hundred dollar?, firmly by these presents. In witness
whereof i have hereunto set my hand and seal 5 thi=
Signed, sealed and deliv- )
ered iu the presence of $
5. FORM OF DL;
Deed by Executor or Administrator of Land sold by order of
the Court of Probate.
Know all men by these presents, that I, A. B. of in
the county of executor of the last will and testament of
C. D. late of deceased, (or, administrator of the estate
ofC. D. late of deceased, intestate,) by virtue of an or-
der of court of probate, for the district of me directing
to sell, at public or private sale, so much of the real estate
of the said C. D. deceased, as shall be sufficient to raise
the sum of dollars and cents, (being the amount
of debts and demands against the said estate, exceeding the
personal estate,) with incidental charges ; and in consider-
ation of the sum of dollars and cents, received to my
full satisfaction of E. F. of in said county, do grant, bar-
311
gam, sell, and confirm, unto the said E. F. all the right, ti
tie, interest, claim, and demand, which the said C. D. had
at the time of his decease, in and to [here describe the es-
tate sold, as well buildings, as land]. To have and to hold
the snid granted and bargained preini-es, with the appur-
tenances thereof, unto him the said E. F. his heirs and as-
signs, to his and their own proper use and benefit, forever.
And I, the said A. B. as executor, (or administrator,) afore-
said, do hereby covenant with him the said E. F. his heirs
and assigns, that I have full power and authority, as execu-
tor, (or administrator,) aforesaid, to grant and convey the
described premises, in manner and form aforesaid, rind
for myself, my heirs, executors, and administrrtors, do fur-
ther covenant to warrant and defend the same to him the
said E. F. his heirs and assigns, against the claims of any
person or persons whomsoever, claiming by, from, or un-
der me, as executor, (or administrator) aforesaid. In wit-
ness whereof, 1 have hereunto set my hand and seal, this
day of A. D.
A. B. Administrator of the estate
of C. D. deceased.
Signed, sealed, and deliv-
ered, in presence of
H county, ss. H , day of A. D.
Personally appeared A. B. signer and sealer of the abore
instrument, and acknowledged the same to be his free act
and deed before me. J. P. Justice of the Peace.
Deed by guardian of minor's land, sold by order of the Court
of Probate.
Know all men by these presents, that I, A. B. of in
the county of guardian to C. D. a minor, under the age
of twenty-one years, by virtue of license and authority to
me granted by the court of probate, for the district of
(I having given bond with surety to him as the law directs,)
to sell the real estate of said E. F. situated in and con-
sisting of [here describe the estate sold,] and for the con-
sideration of dollars received to my full satisfaction of
L. B. of do grant, bargain, sell, and confirm unto the
said L. B. the above described estate of the said C. D. a
minor, as aforesaid. To have and to hold the said granted
312
and bargained premises, with the appurtenances thereof, to
the s-ud L. B. his heirs and assigns, and to his and their on-
ly use and behoof, forever. And I the said A. B. as guar-
dian aforesaid, do covenant with the said L. B. his heirs and
assigns, that I have full power and authority in said capaci-
ty, to grant and convey the described premises, in manner
and form aforesaid. And 1 for myself, my heirs, executors,
and administrators, do further covenant to warrant the same
to him the said L. B. his heirs and assigns, against the
claims of any person or persons whatsoever, claiming- by,
from, or under me, as guardian aforesaid. In witness
whereof, 1 have hereunto set my hand and seal, this
day of A. D. . A. B., Guardian to C. D.
a minor.
Signed, sealed and delivered >
in presence of $
H county, ss. H , day of A. D.
Personally appeared A. B. signer and sealer ofthe above
instrument, and acknowledged the same to be his free act
and deed, before me. J. P. Justice ofthe Peace.
Mortgage Deed.
Know all men by these presents, that I, A. B. of in
the county of for the consideration of received to
my full satisfaction of C. D. of do give, grant, bargain,
sell, and confirm, unto the said C. D. [here describe the es-
tate mortgaged,] to have and to hold the premises aforesaid,
'with all their appurtenances, unto him the said C. D. his
heirs and assigns, to his, and their own proper use and ben-
efit, for ever. And I, the said A. B. do, for myself, my
heirs, executors, and administrators, covenant with the said
C. D. his heirs and assigns, that until the ensealing of these
presents, I am well seized of the premises as a good inde-
feasable estate, in fee simple, and have good right to bargain
and sell the same, in manner and form as is above written ;
and that the same is free of all encumbrances whatsoever,
and do hereby bind myself and my heirs, for ever, tp war-
rant and defend the same premises to him the said C. D.,
his heirs and assigns, against all lawful claims and demands
whatsoever ; provided always, and upon condition, (hat if
the said A. B. his heirs or assigns, do well and truly pay,
313
or cause to be paid to the saidC. D. his executors, admin-
istrators, or assigns, the amount which shall be due on a
certain note ofhand, for the sum of bearing date on the
day of A. D. signed by the said A. B. and paya-
ble on demand [or any other time,] with interest, to the
said C. D. according to the tenor thereof, then the above
deed is to be null and void, otherwise to be and remain in
full force and virtue, in the law. In witness whereof, I
have hereunto set my hand and seal, this day of A. D.
Signed, sealed and deliver- ? A. B. (SEAL.)
ered in presence of $
H county, ss. H , day of A. D.
Personally appeared A. B. signer and sealer of the above
instrument, and acknowledged the same to be his free act
and deed before me. J. P. Justice of the Peace.
A mortgage deed may be executed in common form, and
an endorsement entered on the back, subscribed by the
grantee. A deed of land belonging to a married woman,
must be executed in the names, and signed and acknowledg-
ed by both of them, the same as any other joint deed by
two persons.
A Deed executed by Attorney.
Know all men, that I, A. B. of by J. S. of my at-
torney, he being fully authorized to act in this behalf, by
a power dated the day of and a copy of which is here-
unto annexed, for the consideration, &c. [The rest of the
deed is in common-foren, except the signing and acknowledg-
ment. The attorne^toust sign the name of his principal,
as follows :] A. B. (SEAL.)
By his attorney, J. S,
Acknowledgment.
H county, ss. H , day of A. D.
Personally appeared, by his said attorney, J. S., A. B.
signer and sealer of the foregoing instrument, and acknow-
ledged the same to be his free act and deed before me.
J. P. Justice of the Peace.
Or the deed may be in cornjj^^rm, efjpfejjt the signing
and acknowledgment ; but ^H ^fc^exec\ite(f in tbe name
314
of the principal, and not in that of the attorney. It is
safest to annex a copy of the power of attorney, and have
it recorded with the deed, but this is not necessary to the
validity of the title.
Power of Attorney to sell Land.
Know all men by these presents, that 1, C. D. of have
made, constituted and appointed, and by these presents do
make, constitute and appoint A. B. of my lawful and
proper attorney, and do hereby fully authorize and empow-
er the said A. B. in my name and behalf, to bargain, grant,
sell and convey a certain piece or parcel of land, of whirh I
am well seized and possessed in fee, situated in and
bounded and described as follows, viz. [here bound the land]
[or, to bargain, grant, sell and convey all the lands 1 own
and possess, lying and being in the county of whether
in severally or as joint tenant, or tenant in common with
others ;] and in my name and behalf, to execute and deliv-
er a proper deed or deeds, with the usual covenants of
warranty and seisin ; and all and singular the acts and do-
ings of the said A. B. authorized herein, are hereby ratifi-
ed and confirmed, and the same are to be as binding and ef-
fectual in law as if done by me in my own proper person,
the said A. B. being accountable to me for his doings, au-
thorized in the premises. In witness whereof, &c.
Signed, sealed and deliv- > C. D. (Seal.)
ered, in presence of $
E. F.
G. H.
The power of attorney must be attested by two witnesses
and acknowledged.
H county, ss. H , day of A. D.
Personally appeared C. D. signer and sealer of the with-
in power of attorney, and acknowledged the same to be his
free act and deed for the uses and purposes therein express-
ed before me.
J. P. Justice of the Peace.
6. Form of Lease of Land for one year.
This indenture, made this day of by and between
A. B. of on one paoMM^. D. of on the other part,
vritnesseth, that the a^^HUVfor the consideration hereaf-
315
ter mentioned, hath demised, granted, and to farm let, and
doth hereby demise, grant, and to farm let, unto the said C.
D. his heirs, executors, administrators and assigns, [here
des.-ribe the premises,] with all the privileges and appur-
tenances thereunto belonging. To have and to hold the
said demised premises with their appurtenances for and du-
ring the term of one year from the day of fully to be
complete and ended. And the said C. D. for himself, his
heirs, executors and administrators, doth covenant and agree
to pay, Also, &c. [here insert the particular agreement
on the part of the lessee] And the parties aforesaid for
themselves respectively, each with the other, and their re-
spective heirs, executors and administrators, do further
covenant and agree as follows, viz. that the said A. !'
shall quietly permit, &c. And the said C D. shall at the
end of said term relinquish, &c. [as their agreement ma\
be.] In witness, &c.
Lease of a House for more than one year.
Know all men by these presents, that I, A. B. of H. in
H. county, for and in consideration of the sum of one hun-
dred dollars, received to my full satisfaction of C. D. ofsaid
H. this day of A. D. 1823, have demised, and
to farm let, and do by these presents demise, and to
rarm let, unto the said C. D. his heirs, executors, adminis-
trators and assigns, one certain piece of land, lying and be-
ing situated in said H. bounded northerly on a highway,
easterly, southerly and westerly on lands of E. F. with a
dwelling-house thereon, standing for the term of two years
from this date, to have and to hold to him the said C. D. his
heirs, executors, administrators and assigns, for said term,
excepting the front chamber in said house for him the
said C. D. to use and occupy, as to him shall seem meet and
proper ; and the said A. B. doth further covenant with the
said C. D. that he hath good right to let and demise the
said letten and demised premises in manner aforesaid, and
that he the said A. B. during said time will suffer the said
C. D. quietly to have and to hold, use and occupy and enjoy
said demised premises, and that said C. shall have, hold,
use, occupy, possess and enjoy the same, free and clear of
all encumbrances, claims, rights and titles whatsoever, in
318
witness whereof, I, the said A. B have hereunto set my
hand and seal, this d;ry of 1823. A. B.
Signed, sealed, and deliv-
ered in presence of \
E. F.
G. H.
H county, ss. II 30th day of January, A. D. 1823.
Personally appeared A. B. signer and sealer of the fore-
going instrument, and acknowledged the same to be his free
act and deed before rne. J. P. Justice of the Peace.
7. Indenture of Apprenticeship.
This indenture, made this day of A. D. be-
tween A. B. of father of C. B., a minor, under
the age of twenty-one years, of the one part, and E. F. of
of the other part, witnesseth, that the said A. B. hath
placed and bound his said son C. B. an apprentice to the
said E. F. to be instructed in the art, mystery, trade, and
occupation of which the said E. F. now uses, and to
live with, and serve him as an apprentice, from the date
hereof, until he, the said C. B. shall arrive at and be of the
age of twenty-one years, which will happen on the day of
A. D. if the said C. B. so long lives ; all which time
ihe said C. B. as an apprentice, shall faithfully serve, and
be just and true unto him, the said E. F. as his master, and
his secrets keep, and his lawful commands everywhere wil-
lingly obey : he shall do no injury to his said master, in hie
person, family, property, or otherwise ; nor suffer it to be
done by others : he shall not embezzle, nor waste the
goods of his sakl master, nor lend them, without his consent :
he shall not play at cards, or other unlawful games, nor
frequent taverns, or tipling houses, or shops, except about,
his master's business, there to be done : he shall not con-
tract marriage, nor at any time, by day or night, absent him-
self from, or leave his said master's service, without his
consent ; but in all things, as a good and faithful apprentice,
shall and will behave, and demean himself to his said mas-
ter, faithfully during the time aforesaid. And the said E.
F. on his part, for the consideration of the premises, doth
covenant, and agree, to, and with the said father and son..
each by himself, respectively and jointly, to teach and in-
struct the said C. B. as his apprentice, or otherwise cause
317
him to be well and sufficiently instructed and taught, in the
art, mystery, trade, and occupation of after the bst
way and manner that he can ; and to teach and instruct him
the said apprentice, or cause him to be taught and instruct-
ed, to read and to write, and to cypher, as far as the four
first rules of arithmetic, to guard his morals, and to train him
to habits of faithfulness, industry and economy. And that
the said master will provide for, and allow to his said ap-
prentice, meat, drink, washing, lodging, and apparel, for
summer and winter, on common and on holy days, and
all other necessaries, in sickness and in health, proper and
convenient for such an apprentice, during th6 time of his
apprenticeship ; and at the expiration thereof, shall and
will give to said apprentice [here insert such other things,
as is agreed upon between the parties.] In witness where-
of, the said parties have hereunto interchangeably set their
hands and seals, the day of A. D.
Signed, sealed, and deliv- > A. B. (Seal.)
ered, in presence of $ E. F. (Seal.)
An indenture by guardian may be the same as the prece-
ding, substituting "guardian" for father, and " ward'' for
son ; but unless the minor has property to indemnify the
guardian, it will not be safe for him to ent^r into any cove-
nants, in which case he may merely bind his ward, and give
hi? master the benefit of his services, and the usual right
and authority over him. The form of indenture will be es-
sentially the same as to the contract or binding, as that by
select men, for which see page 307.
8. A Bond without condition, from two persons to one.
Know all men by these presents, that we, A. B. of
in the county of and C. D of in said county, are
held and firmly bound unto G. H. of in said county, in
the sum of five hundred dollars, to be paid to the said G.
H. or his certain attorney, executors, administrators or as-
signs ; to which payment well and truly to be made, we
bind ovrselves and each of us, our and each of our heirs,
executors and administrators, firmly by these presents, sign-
ed with our hands and sealed with our seals. Dated at
this 30th day of January, A. D. 1823.
In drawing bonds, you must observe this rule : If there
27*
318
be more obligors than one, instead of saying I bind myself.
my heirs, executors and administrators ; write it thus-^we
bind ourselves and each of us, our and each of our heirs,
executors and administrators.
If more obligees than one, instead of, to be paid to the
said G. H. or his certain attorney, executors or administra-
tors, say, to be paid to the said G. H. I. K. (naming all the
obligees) or either of them, or their or either of their cer-
tain attorneys, executors, or administrators.
Penal Bond : or Bond with a Condition.
Know all men by these presents, that I, John Doe of
Hartford, in the county of Hartford, am held and firmly
bound to Richard Roe of said Hartford, in the penal sum of
sixty dollars, to be paid to the said Richard, his certain at-
torney, executors, administrators or aligns ; to which pay-
ment well and truly to be made and done, I bind myself,
my heirs, executors and administrators firmly by these pre-
sents, signed with my hand and sealed with my seal, dated
at Hartford, this 30th day of January, A. D. H;23.
The condition of this obligation is such that if the above
bounderi John Doe, his heirs, executors or administrators,
hall well and truly pay, or cause to be paid, unto the above
named Richard Roe, his executors, administrators or assigns.
the full sum of thirty dollars, with the lawful interest for
the same, on the 15th day of June next ensuing the date
hereof; then this obligation to be void, and of none effect
or else to be and remain in foil force and virtue.
Digued, sealed and delivered )
in the presence of $
Conditions of every description may be annexed to bonds,
according to the object of them, and the contract of the
parties.
Condition of a Bond of Indemnity, where one person is bound
for another.
The condition of this bond is ~uch, that whereas the above
named A. B. at the reque-t :-vd for the only proper debt and
duty of the above bound C. D. with him the said C. D. i,
in and by one bond and obligation, bearing equal date with
>he obligation above written, held and firmly bound unto E.
319
F. of, &c. in the penal sum of five hundred dollars, current
money of the United States, conditioned, for tin- payment of
two hundred and fifty dollars, with legal interest on the same,
on, &c. next ensuing the day of the date of the said recited
obligation, as in .ind by the said obligation and condition
thereof, may more fully and at large appear. If, therefore,
the said C. D. his heirs, executors, or administrators, do.
and shall well and tn;ly pay, or cause to he paid, unto the
said E. F. his executors, administrators, or assigns, the said
sum of two hundred and fifty dollars, with legal interest
on said day, .c. next ensuing the date of said recited ob-
ligation, according to the true intent and meaning, and in
full discharge and satisfaction of the said recited obligation ,
then, &ic. or else, &.c.
Condition to pay an Annuity during life.
The condition of tliis oblig.ilion is such, that if the above
bound A. B. his heirs, executors, administrators, or assigns,
do, and shall yearly, and every year, during the n-itural
life of the said C. D. well and truly pay, or cause to be paid,
unto the above named C. D. his, &,c. one annuity, or year-
ly sum of, &,c. at, or upon the first days of June, Septem-
ber, December, and March, in each year, by even and
equal parts and portions ; the first payment thereof to be-
gin and be made on the first day of, &,-. next ensuint;,
then this obligation to be void. But if default shall be made,
of, or in the payment of the said annuity, or yearly sum of,
&c. on any of the said first days, on which the same
ought to be paid, then, &c.
Condition to save a town harmless against a Mustard Child .
The bond should be given to the town, and not to the
select-men, by the father ofthe child, with surety.
The condition of the above obligation is such, that
whereas, A. B. an inhabitant of said town of is with
child, begotten on her body by C. D. and which when hi n
will be a bastard, and is likely to become chargeable to said
town : Therefore if the above bounden C. D. the father of
said child, or the above bounden E. F. his surety, their,
or either, or any of their heirs, executor? or administrators,
do and sh:;ll, from time to time, and at all times hereafter,
fully and clearly acquit and discharge, or well and sufficient-
320
ly save and keep harmless and indemnified the said town of,
&c. as also all the inhabitants of the said town of, &.c. which
now are, or hereafter shall be for the time being ; and eve-
ry of them, of, and from all manner of expenses, damages,
costs and charges whatsoever, which shall or may at any
time hereafter, arise, happen, for, or by reason or means
of the said A. B.'s being pregnant with child as aforesaid ;
or for, or by reason of the birth, maintenance, education,
and bringing up of such child or children of which she the
said A. B. is now pregnant, and shall be delivered of; and
of, and from all other actions, suits, troubles, charges, dam-
ages, and demands, whatsoever, touching and concerning
the same ; then, &c.
9. OF ARBITRATION'.
A submission may be in writing, or by parol agreement,
or by rule of court. The parties may bind themselves by
bond, or by arbitration notes, or may rely upon their reme-
dy on the award. Where the submission is by parol, the
award may be by parol.
A general submission in writing.
Whereas various differences, disputes and controversies
have and do exist between A. B. and C. D. and divers suits
have been commenced and are now pending between said
parties. Wherefore, for the amicaHe determination ofthe
same, we, the said A. B. and C. D. do hereby agree to sub-
mit and refer all controversies, suits, quarrels, and matters
of dispute, now existing between us, to the arbitriment, de-
termination and award, J. S. and L. 31. to be heard by them,
on the day of A. D. the said arbitrators being au-
thorized to adjourn such hearing to any time afterwards, as
they may deem necessary and reasonable. And the said
parties do hereby mutually agree arid promise, and bind
themselves to perform and execute such award as said ar-
bitrators may make and publish in and upon the premises,
and that the same shall be final and conclusive on the par-
ties, as to all suits, controversies, and matters of dispute
now existing between said parties as aforesaid. In witness
whereof, &c. A. B.
C. D.
To be duplicates, and one delivered to each party.
321
,i submission to arbitration to be made a rule of Court.
Be it remembei-td, that A. ','-. .ml L). (:. of, &c. being
desirous to end and determine divers controversies, -
and quarrels, that have lately arisen Ix-nveou them, did on,
&c. agree to submit and rotor all the said controversies,
suits, and quarrels, to the award of E. F. and G. H. of, &c.
to be made in writing under their hands and soals, vVc. And
the said parties did mutually promise, and oblige themselves,
that they would perform and execute such award as the
said arbitrators should make in the premises. Now tho
said parties do further agree that the said submission shall
be made a rule in the court, &c. and that they will
be finally concluded by the arbitration which shall be made
in the premises by the said arbitrators, pursuant to such
submission. In witness, &c.
Arbitration Bond.
Know all men by these presents, that I, A. B. of am
holden and firmly obliged toC. D. of in the sum of one
hundred dollars, &c. to be paid to the said C. D. his attor-
ney, executors or administrators, which payment, well and
faithfully to be made and done, I bind myself, my heirs, ex-
ecutors and administrators, firmly by these presents ; seal-
ed with my seal, and dated this day of A. D. 1823.
The condition of this obligation is such, that if the above
bounden A. B. his hens, executors and administrators for
his and their parts and behalf, do in all things well and truly
stand to, obey, abide by, perform, fulfil and keep the award,
order, arbitrament, final end and determination of G. and F.
arbitrators, indifferently named, elected and chosen as well
on the part and behalf of the above bounden A. B. as of the
above named C. D. to arbitrate, award, order, judge and
determine of and concerning all, and all manner of action
and actions, cause and causes of actions, suits, bills, bonds,
specialties, judgments, executions, quarrels, controversies,
trespasses, damages and demands whatsoever, at any time
heretofore had, made, moved, brought, commenced, sued,
prosecuted, done, suffered, committed or depending, by, or
between the said parties so as the said award, be made and
given up in writing under the hands and seals of said arbi-
trators, ready to be delivered to the said parties on or before
the day of A. D. 1823, then this obligation to be void, &c.
Where the parties choose an umpire to decide, in case the
arbitrators cannot agree, the following paragraph is to be
added : fP*-
But if the said arbitrators do not mali-? such their award
of and concerning the premises by the II:K J .iforesaid, and
ifiu that case, the said A. B his heirs, execrtors and ad-
ministrators, for his and their p,rt and beb.ilf -h,;Il in all
thing? well and truly stand to, obey, abide by, perform, ful-
fil and keep the award, orBer, arbitrament j umpirage, final
determination ofC. R. umpire indiiferen'.ly chosen between
the said- parties, of and concerning the premises so as the
said umpire do make hi: award, or umpirage of and con-
cerning the premises, and deliver th same in writing, un-
der his hand and seal to the said parties on or before the
day of A. D. 18^3. Ti^n this ' li.ttiun to be void,
otherwise to remain in full force and virtue. A. B.
Signed, sealed and delivered
in the presence of
An Award in Writing.
To all people to whom these presents shall come, we A.
B. of C. D. of and E. F. of send greeting.
Whereas G. H. of and 1. K. of did enter into mutual
bonds or obligations to each other, bearing date respective-
ly on or about the 20th day of February last past, in the penal
sum of five hundred dollars respectively, conditioned for
their respective submitting to the award of us the said A. B.
C. D. and E. F. or any two of us, of and concerning all ac-
tions, suits, quarrels, controversies, damages & demands be-
tween them, so as such award were made by us or any two of
us, in writing under our hands and seals, on or before the
20th day of March instant, as by the said respective bonds
and conditions, relation unto them respectively being had
may more fully appear : Now know ye, that we the said A. B.
C. D.. E. F. having examined the accounts and heard the
testimony of both the said parties in difference, and duly
weighed and considered the same, do make, and publish this
our award and final determination, between the said parties ;
and do hereby adjudge, award and order, that the said G.
H. do and shall pay or cause to be paid to the said I. K.
his executors or administrators, the sum of one hundred
dollars, on or before the 10th day of April next, at the
dwelling-house of I. K. in and upon payment thereof
323
the said J. H. and I. K. shall duly execute and deliver to
each other mutual general releases of all actio..
counts, damages, and demands whatsoever, from tin-
ning of the world to the day of the d.ite of the said ).
obligations. In witness whereof, we have hereunto set our
hands and seals, the 10th day of Feb A. D. l;,.
Signed, sealed, published and delivered i
by the said aibitraton, as their tin -1 \
award and arbitrament, in presence 01")
But the most common and simple mode is to make a p;i-
rol submission and execute arbitration notes, which are in
common form, each party, with or without surety, execu-
ting a note ; which are delivered to the arbitrators, who
will deliver up to the party in whose favour they decide
his note to be cancelled, and also deliver to him the note of
the other party, endorsed down to such sum as they award
against him.
Endorsement on an arbitration note.
This note having been executed and delivered to us by
the within named A. B. to enforce the award we might
make and publish in and upon certain matters of dispute
and controversy, existing between him, and the within nam-
ed C. D. by said parties submitted to our arbitrament and
determination ; and having this day of , fully heard
said parties in all the matters submitted as aforesaid, we
have, and do hereby award that the said A. B. pay the said
C. D. the sum of , and the costs of this arbitration,
amounting to dollars, making in the whole the sum of
dollars, and do hereby endorse said note down to said
sum of dollars. E. F.
G.H.
10. A bill of sale.
Know all men by these presents, that I, A. B. of , for
the consideration of one hundred dollars, received to my
full satisfaction, of C. D. of , have bargained and sold,
and do by these presents bargain and sell unto the said
C. D. the several articles of furniture or household goods,
,/contained in the schedule hereunto annexed. And I do,
for myself and executors, agree to warrant and defend to
the said C. D., his executors, fldnii)iirat.>rs and ai
all and singular the same goods, in consideration aforesaid,
by these presents ; of which said goods I have given the
said C. D. possession before the execution hereof, [or
which said goods are now at in the possession of L. M.]
In witness whereof &c.
Where the conveyance is as security only, add the fol-
lowing provision : Provided however, and it is hereby
agreed, that whereas, the said A. B. is indebted to the said
C. D. in the following sums, viz. one note dated &,c. ot'
$50 one dated &.c. of $^0, both on interest, and payable
to the said C. D ; and also on book $i>0. Now, if the said
A. B. shall pay or cause to be paid said several sums, on
or before the day of ~ A. D. then this bill of sale,
conveyance and agreement to be void, otherwise to be ef-
fectual in law.
11. An assignment of goods to trustees for the benefit of
creditors.
Know all men by these presents, that, Whereas I. A. B.
of , being indebted to the several persons named in
the schedule hereunto annexed, in the sums affixed to their
names respectively or thereabouts, and being, from various
misfortunes and losses in business, wholly unable to meet said
contracts, and pay said debts according to the terms there-
of, do by these presents, assign, transfer and convey all
and singular, the goods and articles of personal property
specified and contained in the annexed list or schedule un-
to C. D., E. F. and G. H. all of , as trustees for and in
behalf of the said A. B. on one part, and the said creditors
hereinafter named in the schedule annexed, on the other
part, to be by them taken into possession, and the same to
sell and dispose of, in the manner they may deem most
for the interest of said parties, and receive the avails there-
of, & the same to apply in payment of the claims of said cred-
itors, named in said schedule, &. if the avails of said property
shall not be sufficient for the payment of the whole of said
claims, the same are to be paid and satisfied in just and
equal proportions, according to the amount of said prop-
erty and their respective debts ; (or, and the said avails
to apply in the payment of the debts of the creditors nam-
ed in said schedule as follows, viz. the debts of L, M, and
O, which are for endorsing for me at the Bank, and
are deemed honorary debts, are in the first place to be paid
in full, and if there is not a sufficiency, then in equal pro-
portions, according to the amount of said property, and their
respective debts ; and the residue of the avails of said
property is to be applied in satisfaction of the debts of the
other creditors named in said schedule, and if it is not suf-
ficient to pay the same in full, then their said debts are to
be paid in equal proportions, according to their respective
claims as aforesaid ; and if any thing remains it is to be
applied by said trustees among all the creditors of said A.
B. not named in said schedule, in proportion to their re-
spective claims. And it is provided, that if either of said
trustees shall refuse to accept said trust, or shall die be-
fore completing the execution of the same, the other two,
or in case of the refusal or death of two, the other one
shall have and possess the same power and authority to
perform and execute said trust, as is herein given to the
whole of said trustees.
In witness whereof &c. Dated &,c. A. B.
A schedule of the property, and of the creditors, speci-
fying the amount of their respective debts, must be annexed.
12. Jl common letter of licence.
To all people to whom these presents shall come, w>
whose names are underwritten, creditors of J. W. late of
H send greeting. Whereas the said J. W. is indebted
to us his said creditors, severally, in divers urns of mon-
ey, and hath not wherewithal to satisfy us at present, and
we and every one of us minding to grant unto him favour
and time for the payment of the same. Know ye, that we
the said creditors, and every one ot us being fully satisfied
of the good will and desire which the said J. W. hath tu
see the several debts and sums of money satisfied and paid,
have given and granted, and every one of us for himself
and for his own proper debt and duty, part and portion on-
ly, doth by these presents give and grant unto the said J.
W. sure, full and free liberty, licence and safe conduct, as
much as in us severally is, that the said J. W. with all lii>
goods and chattels, debts, duties and other things whatso-
ever, freely, peaceably and quietly, at his own free choice,
election and pleasure, shall and may, go, come, abide, pass
and repass at all and every time and times from the day of
28
326 ,
the date hereof unto the full end and term of four years
now next ensuing, and fully to be completed and ended :
And we the said creditors and every one of us severally
for himself, his executors, administrators, partners and as-
signs, do, and doth by these presents severally covenant,
promise, grant and agree to and with the said J. VV. that
neither we the said creditors nor any of us,nor any other per-
son or persons for us, or any of us, or by our authority, assent,
consent, or procurement, the said J. VV. or any of his goods,
chattels, debts, duties and other things whatsoever, shall
or will sue, arrest, prosecute, molest, attach, trouble orjen-
cumber during the time aforesaid ,,but suffer him and them,
so that he and they freely, peaceably and quietly at his own
free choice, election and pleasure shall and may, go, come,
abide, pass and repass, at all and every time and times, from
the day of the date hereof, unto the full end and term of
four years, nor compel him the said J. W. during the term
aforsaid, to find or provide any surety or security, for the
satisfaction or payment of the said several debts, or any of
them, or any part or parcel thereof, other than all and
every one of us now severally have and hath for the same.
And further, we and all and every of us creditors afore-
said, are agreed and contented, and do hereby severally
for ourselves, and our several executors, administrators,
partners and assigns, covenant and agree to and with the
s;iid J. W. that if it shall happen at any time or times here-
after, during the term aferesaid, that he the said J. W. is
or shall be by his body, goods or chattels by us or any of
us, or by our or any of our authority, assent, consent or
procurement, contrary to the true meaning hereof, arrested,
prosecuted, molested, attached or otherwise charged,
troubled or encumbered, that then he the said J. W. his
heirs, executors or administrators, is or shall be, and is and
are for ever more by these^ presents be clearly acquitted,
exonerated, and discharged, of and from him and them of
us, by whom the said J. W. shall, contrary and against the
lenor, form and true effect of these presents, be arrested,
molested, prosecuted or otherwise charged, troubled or en-
cumbered, of and from all, and all manner of actions, suit?;.
..'tuims, debt?, judgments, statutes and demands whatsover.
In witness whereof we the said creditors of the said
327
J. W. have hereunto set our hands and seals the day
of A. D.
Signed, sealed and delivered
in the presence of
13. General letter of credit.
Hartford, Jan. 30, 1823.
Sir
The bearer Mr. T. H. being on his travels, may have
occasion for money ; please to furnish him as his occasion-
require, taking his receipts, and your draughts for the
value shall receive due honour from
Sir, your humble servant,
C. D.
To Mr. J. S. merchant, London.
14. A general letter of attorney.
Know all men by these presents, that I, A. B. of If
have made, ordained, constituted and appointed, and by
these presents do make, ordain, constitute and appoint ('.
D. of W , my true and lawful attorney, for me and in
my name and for my use, to ask, demand, sue for, recover
and receive of and from all person and persons whatsoever,
all sum and sums of money, debts, dues, claims and demands
whatsoever, now due, owing or accruing tome, and to give
good and sufficient discharges for the same, and to adjust,
settle or compound all debts or demands due to me, and to
accept such security or satisfaction for the same, as }x>
shall think fit. And I do hereby give and grant to my said
attorney my full and whole power in and concerning t!i<-
premises, and will ratify and confirm whatsoever he shall
lawfully act or do therein. In witness whereof I have
hereunto set my hand and seal the day of A. D.
Signed, sealed, and delivered }
in the presence of $
Another with the power of substitution.
1 A. B. of P in the county of B and common-
wealth of Massachusetts, do hereby constitute and appoint
H. S. Esq. of B in the county of S , my sittonr \ .
in all cases moved or to be moved, forme or against me, in
this, or any other of the United States of America, in mi
328
name to appear, plead and pursue to final judgment and
execution, with the right and power of substitution : wit-
ness my hand and seal this day of A. D.
B S ) A.B.( S ea.)
D R i Witnesses.
Boston, Jan. 30, 1823.
Suffolk county ss.
A. B. acknowledged this instrument to be his free act
and deed. J. p. justice of the peace.
I R. S. within named, do hereby substitute and appoint
S. S. Esq. of H in the county of H in the state of
Connecticut, attorney to the within named A. B. by virtue
of, and according to the power to me within given, as wit-
ness my hand and seal this day of A. D.
R. S.
Signed, sealed, and delivered
in the presence of
1 5. A letter of attorney irrevocable to receive money due
on a bond.
Know all men, &c. that I, A. B. of, &c. have made, or-
Jained, and in my stead and place, put, and constituted C.
D. of &c. my true and lawful attorney, irrevocable, for
me and in my name, but to the use of him the said C. D.
to demand, recover, and receive, of E. F. and G. H. of .
&c. the sum of one hundred dollars, due unto me; ifnd
by one bond or obligation, bearing date, &c. Giving 5nd
by these presents granting, unto my said attorney, my full
power and authority, in my name, to do all and every fyd
and acts, thing and things, device and devices, in the law,
whatsoever, for the recovery of said debt, as fully to all
intents as 1 myself might or could do, and upon receipt
thereof, acquittances, or other discharges, for me and in my
name, to make, seal, and execute, hereby ratifying and al-
lowing all and whatsoever my said attorney shall lawfully
do. or cause to be done, in and about the premises, by
virtue of these presents. In witness, &c.
1G. A will of real and personal estate.
In the name of God, amen. I P. B. of H , in the
county of M , being of sound and disposing mind and
memory, do make and ordain this my last will and testament.
in manner and form following : that is to say, imprimis, I
will that all my debts and funeral charges be paid and di*
charged by my executrix, hereinafter named : Item, I give
and demise unto my son A, his heirs, and assigns forever,
the house and land situated and lying in the town of W
Item, I do give and demise unto S. B. my brother's son, all
that cottage or tenement situated in the town of \\ in
the county of H , now in the occupation of J. L. to
to the said S. B. his heirs and assigns forever. Iron, I do
give unto my loving wife B. S. all the rest of my goods
and chattels, and personal estates whatsoever. Also I do
give and demise unto B. my said wife, her heirs and assigns
forever, all rny land and tenements lying in the town oi
W in the county of H , and now in several occupa
tions of D. J. and B. P. or their under tenants, and also
the messuage or tenement situated in the town of W
and now in my occupation, together with the orchard and
all other appurtenances thereunto belonging. Lastly, I do
make and constitute B. my wife, executrix of this my last
will and testament. In witness whereof I have set my
hand and seal this day of in the year of our Lord
1823. P. B.
Signed, sealed, and published (and pronounced) by tho
said P. B. as his last will and testament, who in his pres-
ence, and the presence of each other, have hereunto sub-
scribed our names.
R. P. >
M. O. } Witnesses.
A. R. )
Form of certificate w/ien proved before a Justice.
H county, s&. H day of A. D.
Personally appeared before me R. P. and made solemn
oath, that he attested the within will of P. B. and Fubf-ci i-
bed the same in the presence of the testator, and in t'le
presence of the other two subscribing witnesses to said
will, and that they also subscribed and attested paid
the presence of the deponent and in the presence
testator, and that said testator at the time of the
of said will, was of sound mind and memory,
28*
330
and published said will in the presence of said deponent
and the other subscribing witnesses thereto.
J. P. justice of the peace.
v4 Ziill of personal estate only.
1, A. B. of &,c. do make and ordain this my last will
and testament, in mannerand form following, viz. I give and
bequeath to my dear brother the sum of thirty dollars to
buy him mourning. I give and bequeath to my son J. A.
the sum of six hundred dollars. 1 give and bequeath to
my daughter E. A. the sum of three hundred dollars, and
to my daughter A. A. the like sum of three hundred dollars.
All the rest and residue of my estate, goods and chattels, I
give and bequeath to my dear beloved wife E. R. whom I
nominate, constitute and appoint sole executrix of this my
last will and testament, hereby revoking all other and for-
mer wills by me at any time heretofore made. In witness
whereof I have hereunto set my hand and seal the
day of in the year of our Lord
Signed and published
in the presence of
The law does not require that a will of personal prop-
erty only should be witnessed, but it is prudent that it
should be ; but no devise of real estate is valid unless at-
tested by three witnesses, all signing in the presence of the
testator. The executor must procure the will to be prov-
ed and recorded in the probate office within thirty days
after the death of the testator, and he incurs a forfeiture
of seventeen dollars for every month's neglect. No non
cupitive or unwritten will now is valid, but all wills wheth-
er of personal or real estate must be in writing, and sub-
scribed by the testator, and the only difference between
a will of personal and real estate is, that the former is not
to be attested by subscribing witnesses.
331
OMISSION.
The following having been omitted in its place, is inserted
here.
Process and Sentence to the Workhouse.
To A. B. Esq. of justice of the peace for the county
of , comes C. D. of said , one of the Select-men
(or a grand juror, or any house holder), and complains and
informs, that G. H. of said town is, and for a long time
hath been, a common drunkard, (or is a common idler and
mis-spends his time, and does not provide for the support
of himself and family,) he the said G. H. having a family
consisting of who are exposed to want from the idleness
and neglect of the said G. H. ; and the said C. D. prays that
process may issue against the said G. H. that he may by ex-
amined and dealt with according to the statute in such case
provided.
Warrant same as in other criminal cases.
Record.
Be it remembered that at a court holden this day of
A. D. ; at in the county of , G. H. of ,
was brought before me by virtue of a warrant issued on
the complaint of C. D. of Select-man of said
charging the said G. H. with being a common drunkard, (or
a common idler, who mis-spends his time, and does not pro-
vide for the support of himself and family) ; and the said
G. H. being required to answer to said complaint, says he
is not guilty ; and having inquired into the facts, 1 do find,
that the said G. H. is a common drunkard, as charged in
said complaint, whereupon it is considered that he be pun-
ished by confinement in the workhouse and house of cor-
rection, in said town of , for the period of thirty dnys,
(the time cannot exceed forty days,) and to be kept at hard
labour therein. J. P. justice of the peace.
Warrant of commitment,
To any constable of the town of in the county of
, Greeting :
Whereas G. H. of was brought before rne on the
day of on the complaint of C. D., Sdechn.n of
said town of charged with being a common drunkard ;
and having inquired into the facts set forth in the complaint.
I found that they were true, and that said G. H. was a com-
mon drunkard, as charged therein ; whereupon it was con-
sidered that he be punished by confinement in the work-
house and house of correction, in and for said town of
for the term of thirty days from said day of to be
kept at hard labour therein. Wherefore, by authority of
the State of Connecticut, and by virtue of the statute in
such case provided, you are hereby commanded to take
and convey the said G. H. to said workhouse and house of
correction, in said , and him deliver to the master or
keeper of the same, who is hereby required to receive the
said G. H. and him keep within said workhouse, at hard
labour, for and during the term of thirty days from the
aforesaid day of A. D. , and then to discharge
the said G. H. ; and you are to leave with said master or
keeper this warrant, which shall be his authority for
receiving and detaining said G. H. as required herein.
Hereof you are not to fail, but make due service of thi*
warrant.
INDEX.
PAGE.
Attachment, recognizance on,
when surety is required in same, 9
when several defendants in different counties, how
directed, 10
how directed to indifferent person,
Special deputations by sheriffs,
may be served in any part of the State, 10
service of, 203
must take personal property if it can be found, 204
partnership property, how taken,
bank shares, how attached, 205
property taken must be removed, 206
property not holden but sixty days, 206
of the attachment of property which has been
previously attached,
when the body is taken, and goods are afterwards
discovered, may be released, and the goods
taken, 207
copy to be left, 208
when land is Attached, copy to be left at the town
clerk's office, P
of attachment of the body,
of breaking doors,
of property exempted,
of rescue on mesne process,
returns on,
where real estate is attached,
of attachment of husband and wife,
persons exempted from arrest,
drrests., ex-officio by Justices at commom law,
for breach of Sabbath, &c. without warrant by
statute,
12
of felons without warrant,
on warrant,
2(50
Apprentices, when committed to the house of correction, 21
C f ! ?f 4
form of proceedings.
334
when justified in fleeing from his master 29
Adjournment, where the defendant is out of the State, 40
on motion, 46
Amendments, when allowable, 47
Abatement, pleas of, when to be made, 48
causes of, 49, 50
form of pleading, 50
Auditors, when to be appointed, 58
Appeals, when allowable and how to proceed, 61, 63
Assumpsit, declarations in, 68
on notes, promisee against promisor, 68
riote executed by partners, 69
for or against executor or administrator, 60
Form of judgment and execution against executor
or adminstrator, 70
Declaration by the holder of a nole not negotiable
against the endorser, 71
Of negotiable notes, 75
Declaration against the maker, 76
Endorser against the holder, 76, 77
on a receipt of property taken by an officer, 77
on an order, payee against the acceptor, 79
against the drawer of an order not accepted 79
on account stated, 80
on due bill, 80
General count, or declaration for money had
and received, 80
for goods sold and delivered, 81
same where the price is agreed on, 81
For labour and services performed where the
price is agreed on, 81
For the use and occupation of real estate,
where the rent is agreed on, 82
where the rent is not agreed upon, 82
Declaration against a town for supporting a pauper, 83
Account, action of, declaration, 83
Plea and record ofjudgment, 84
Assault and Battery, declaration,
Actions on Statutes, 113
Arson, causing the death, or endangering the life of a
person, complaint for, 153
Burning magazine, complaint, 158
For burning public buildings, 158
complaint for, 160
burning house, &c. to defraud insurers, 160
Abortion, administering poison to procure, " 155
Assault, with intent to kill or rob, complaint for, 156
secret, complaint for, 177
Adultery, complaint for, 1 78
Appeal in criminal cases, 183
recognizance, 184
"Accessories, 184
Attorney, power of, to sell land, 314
Arbitration, 320
general submission in writing. 320
submission to be made a rule of court, 321
award in writing, 322
note, endorsement on, 323
Assignment, to trustees for benefit of creditors, 324
Bail-bond, the principal may apply to a justice, for war-
rant to arrest his bail, 15
Bail, special, when required, 43
surrender of his principal in court, 44
mittimus, when he is to be committed, 44
bonds for prosecution, 45
Book-debt, action of, 85
declaration, husband and wife, same, 85
plea where the defendant claims a balance, 85
record and recognizance, 86
Bastardy, proceedings in, 113
complaint, during pregnancy, 114
plea and record of judgment, 115
recognizance and mittimus, 116
complaint after delivery, 1 17
by Select-men, 118
Binding over, in criminal cases, 145
Bastard-child, complaint for concealing
the death of, 150
Bond, without condition, 317
penal, or with condition, 318
with condition of indemnity, where one person is
bound for another, 3 1 8
336
to pay an annuity during life, 319
To save a town harmless against a bastard child, 319
arbitration bond, 321
Bribery, complaint for, 171
Bigamy, complaint, 179
Bills of exchange, form of, and protest, 309
ofsale, 323
for the payment of money, form of, 310
Betting, on a horse race, complaint for, 181
- Crimes, of, in general, 151
must be prosecuted in the county where committed, 1 44
the capacity for, 152
Complaint, by whom made, 147
Criminal cases, trials in, 148
judgment in, 148
process, service of, 268
search warrant, service of, 270
returns on criminal process, 272
on search warrant, 272
on warrant of distress, 273
for inflicting corporal punishment, 274
ex officio returns, for breach of sabbath s 274
for drunkenness, 274
for profane swearing, 275
for riot, 275
complaint for murder, 152
for manslaughter, 152
for perjury, with intent to take the life of a person, 153
Counterfeiting, coin, complaint for, 162
for uttering, 163
for making plate for counterfeiting, 163
for possessing, with intent to pass counterfeit bills, 163
for selling with intent to have them passed, 164
Constables, appointment of, 1 87
oath of office, 188
to raise hues-and-cries, 188
their powers to serve process, 1 89
to make arrests ex-qflicio, 1 90
to suppress riots, 190
Collectors of taxes, 194
when appointed by Select-men, 280
337
Collectors, execution against, 280
Children, when bound out by Select-men, 28, 302
form of indenture, 302
when sentenced to house of correction, 31
Creatures impounded, when no owner appears, ho\v
proceeded with, 200
Civil process, how served, 201
Counterfeit bills, justice to seize and deface the same, J3
may issue a warrant to bring the person be-
fore him, 13
action to recover value of same 127
Gourts, how to preserve order in, 65
Contempt, punishment for, 66
Form of record and mittimus for same 67
Covenant, declaration of, 95
Carriages, action for injuries by, J30
Confession, judgment by, on book, 142
on note, 142
Commitment, in criminal cases, 150
costs and fines, 160, 184
Death, sudden and untimely, proceedings in such case, 14
form thereof, 14
Depositions, taken by justices, 22
cause of taking same, notice to the adverse party, 22
when necessary, 03
form of certificate and direction, 23
form of capias and mittimus, when witness refu-
ses to attend or testify, 24
Deeds, acknowledged before justice, 25
executed by executors or administrators, 310
by guardians, for sale of minor's land, 311
mortgage, 312
executed by attorney, 313
when executed out of the state, 25
when executed by an attorney, how acknowledged, 25
Defaults, 40
record of, 42
Debt, action of, 87
declaration, on bond, 87
onjudgment, 87
on award, 88
29
338
Debt, on recognizance, 88
Dogs, action for mischief done by, 129
Demurrer, 142
Drunkenness, complaint for, 180
Execution, concerning, in general, 63
alias, when issued, 128
levied on goods which had been previously levied
on, 131
of sale of goods, on 249
how levied on growing crops, 232
how levied on a term for years, 233
when the body is levied on, 23o
when partnership property is taken, 25g
when bank stock is levied on, 34 9
when land is levied on, 241
of fees on same, 246
how served in common cases, 228
how levied against executors or administrators, 248
in an action of ejectment, how served, 249
Return, or endorsement where land is levied on, 257
where a second levy and sale of goods is made, 252
where the debtor is out of the precincts of the
officer, and insufficient property can be found, 253
where bank, or other stock, is taken and sold, 254
where grain growing is levied on, 255
where partnership property is levied on for the
separate debt of one of the partners, 256
where the body is taken and committed, 257
non est inventus, 257
where the debtor's body is arrested, released,
and goods taken, 258
where real estate is levied on, and set off, 258
where land is levied on belonging to tenants in
common, 269
where mortgaged premises, 261
of return on execution on foreign attachment, 26$
on do. against executor or administrator, 263
on ejectment, 163
Error, writ of, in criminal cases, 145, 184
writs of, how served, 216
return on, 226
Electors' meetings, how warned, 199
339
Embezzling record, 1 7 1
Factories, to be visited by civil authority and select-men, 33
Factorising suit, form of writ, 90
False imprisonment, declaration, 98
Forcible entry and detainer, complaint, 123
verdict, judgment and execution, 1 2\
Fine and costs in criminal cases, 150
Form* in criminal cases, 152
Forgery, complaint for, of public securities, 1 59
complaint for forging note, 161
for endorsement on, 161
for publishing forged instrument,
Fornication, complaint, 179
Females, whether liable to be whipped, 1 85
Fines and Forfeitures, how disposed of, 185
Foreign attachment, service of, 2 1 5
return on, 225
Final process, service of,
Service of executions in common cases,
Foreign attachment, service of execution on, 2 l(>
Gambling, two justices may issue a warrant to seixe E.
O. table, 14
action to recover money lost at, K'8
playing at cards, complaint,
for keeping a billiard table,
taverners permitting gaming,
complaint against mountebanks,
Health, civil authority and select-men, a board of,
Houses, summary process to recover the possession of, 1 1 9
Venire for jurors, 120
Verdict and record ofjudgthent, 121
Execution, 122
Horse, used in a race, forfeited, 181
Habeas Corpus, writ of, how served, 218
return on, 1'27
Highways, how laid out by select-men, 295
form of notice, 297
form of survey, and laying out of highway, L'!7
Encroachment on highways, how removed, 'J!0
Informing officers, constables not to act as such, 193
Indenture of apprenticeship, 316
furors, by whom appointed,
340
Jurors, qualifications, -&&
how summoned, 199
Jurisdiction of justices of the peace in civil matters, 36
Right of appeal where title is plead, 37
where right of way is plead, 37
Justices may take acknowledgment of a debt, 38
jurisdiction as to persons, 38
when personally liable for their official acts, 186
may be called on to the county courts, 39
Jurisdiction in criminal matters, 143
Judgment, on nihil dicit, 44
form of, 44
concerning which in general, 59,61
Kidnapping, complaint for, 156
record of judgment and recognizance, 1 57
mittimus, 158
Lands, summary process to recover the possession of, 119
Venire for jury, 120
Verdict and record of judgment, 121
Leases, when acknowledgment required, 25
when caveat, or caution to be entered, 26
of land for one year, 314
of a house for do., 315
Lottery tickets, of unauthorized lotteries, sale of, 181
Letter of license, 325
general of attorney, 327
do. with the power of substitution. 327
do. irrevokable, 328
Limitation, in criminal cases, 185
Marriage, by whom solemnized, 27
publication and record of same. 27
Malicious prosecution, action of, 100
Murder, complaint for, 152
Mountebanks, complaint against, 183
Nonsuits, 42
form of, 43
Notes, negotiable, form of, 309
Oaths, by whom administered, 17, 18
form of, 1 8
witness', to persons having scruples of consci-
ence, 18
341
Oaths, in proceedings before the assembly, 18
poor debtor's, proceedings therein, 19
form ot citation, 19
Overseer, where a person refuses to submit to the au-
thority of.irj overseer, two justices may bring him
before them, 27, 28
appointment by Select-men, 299
appointment by Select-men and two justices, 301
form of appointment and citation, 302
may authorise an overseer to take such per-
son, his family and estate, under his care, 29
Oyer, motion for, 48
Officers, resistance of, complaint for, 171
Obscene books, complaint for distributing, 179
Paupers, 282
when removable, 30
form of warrant for, 31
Pleas to the action, 53, 56
in abatement, to the jurisdiction of the court, 136
for defect in writ, 136
general issue, in an action of assumpsit, with no-
tice, 136
several, in pursuance of the statute, 137
replication, 138
rejoinder, 130
sur-rejoinder, 139
record of judgment, 1 10
general issue, & notice of set-off to action on note, 1 4 1
in an action of trespass against several, 1 4 I
demurrer, 142
special, 142
Process, in criminal cases, 147
complaint, by whom made, 148
Perjury, with intent to take the life of a person, com-
plaint for, 1 ".*)
without such intent, 170
subornation of, 170
Peace, breach of, complaint for, 17.;
warrant of execution and recognizance, 1 74
qui tam^rocess, l.<
surety of, complaint by an individual,
wife against her husband,
29*
Peace, complaint and warrant for secret assault, 177
Profane swearing, complaint for, 179
Petitions, service of, 216
return on, 226
Poor, overseers of, 28 1
houses, how established, 295
Qiu tarn, action of 130
information of, 131
Declaration for pound breach, 131
for gaming, against the winner, 132
information of, for breach of peace, 133
record of judgment, 133
for trespasses committed in the night season, 134
for theft, 135
Riots, suppression of, 17, 190
complaint for, 172
Retailers, how licensed, 33
oath of clerk, and form of license, 34
Records, how to be disposed of, in case of the death or
removal of a justice ofthe peace, 42
Replevin, action of, 105
Declaration, where beasts are impounded, 106
Pleadings and record of judgment, 107
where goods attached are replevied, 109
where property is attached belonging to a
third person, 109
Record of judgment, on execution, 111
Rape, complaint for, 154
for attempt, 155
For having carnal knowledge of a female under
ten years of age, 155
For concealing pregnancy. 155
Resistance to officers, complaint for,
Religious meeting, complaint for disturbing. 180
Replevin, writs of, how served,
return on, 226
Summons, when bond is required, 9
service of, -01
Subpoena for witnesses, how directed,
Sctrc Facias, 90
writ of, against garnishee,
on judgment of a justice deceased.
34J
Scire Facias, against administrator or executor, 93
by administrator or executor, 94
Slander, action of, 99
Stages, action for injuries by, J3Q
Surety of the peace, when required, 145
Sabbath, breach of, complaint, J80
Taxes, justices issue warrants to collect, 16
select-men and civil authority may abate, 35
Taverners, how appointed, 35
may be admonished and their license revoked, 35
Trials, proceedings in, 43
Testimony, objections to, 57
Trespass, action of, 95
Declaration, quare clausum fre^it, 96
Record and recognizance, where the same is re-
moved to the county court, 97
To personal property, 97
For debauching plaintiff's daughter, 98
For cutting timber, 126
Trover, action of, 99
declaration in, 99
trespass on the case, action of, 100
declaration in, for warranty, 101
for fraud, 101
against an officer for neglecting to levy or re-
turn an execution, 102
for a false return, 103
for not taking property on attachment, 103
to injuries arising from negligence, 105
judgment in, 148
Theft, complaint for stealing from a person, 164
for horse stealing, H,4
for breaking and stealing from a building in the
daytime, ]C5
for simple theft, 1;5
recordand warrant of e'xecution, _ 166
qui tarn process for theft and search warrant, 168
for receiving stolen goods, 169
Taxes, 194
warrants for, how levied, 2G4
return, where land is sold, 264
344
Taxes, where land is sold which had b^en transferred, 265
deed of laud sold for taxes, 266
another, 267
United States, offence? against the laws of, 147
Writs, by whom issued, 9, 11
Writs, return of, 2<-2
of error, how served, 216
returns, or endorsements on, 219
on summon*, 219
on attachments, 220
where the body is arrested and bail taken, 222
bail bond, 2'c'2
where the defendant is committed, mittimus, 223
Warrants issued after judgment, 271
Witness to be committed for refusing to testify, and mit-
timus for same, 65
Windows, complaint for breaking, 173
Workhouses, erection of,
and house of correction, - 185
process and sentence to the same, 331
Will of real and personal estate, 328
form of certificate when proved before a justice, 329
of personal estate, 330
ERRATA.
Page 73, after the sentence ending " now in force," in the 7th
line, insert the following : And. on the day of at the (hf end-
ant was notified of the premises, and demand of him made of the
amount of said execution, and the costs and charges thereon, which
the defendant neglected and refused to pay. The same is to be
added to the other forms of declarations by the holder of a note
not negotiable, against the endorser.
. Page 176, last line, for ' produce,' read procure.
192, line 13 from top, for ' requesting,' read requested.
212, line 3 from top, for ' make,' read
do. line 7 from bottom, for ' a bail,' read bail.
228, line 4 from top, for ' enter,' read carry.
do. line 5 from bottom, for ' presents,' read precincts.
240, line 20 from top, for ' leave,' read levy.
241, line 8 from bottom, for ' unto the officer of the court,"
read, into the office of the court.
244, line 2 from top, for ' leaves hvo hundred dollars/
read, bears to two hundred dollars.
246, line 5 from top, for ' on,' read or.
250, line 21 from top, for ' entrusted,' read interested.
353, line 3 from top, for ' due,' read to.
000020177 2