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. (<i) Justices of the Peace are authorised to issue all 
 ordinary original writs in civil causes, both in law and equi- 
 ty, and warrants in criminal cases. Writs in civil ac- 
 tions are either a summons or an attachment, having the offi- 
 cial signature of a Justice. The latter cannot be granted 
 without the plaintiff or some other person enters into a re- 
 cognizance before the authority issuing the same, condition- 
 ed that he prosecute his action to effect. A certificate or re- 
 cord ofsuch recognizance must be made on the writ. If in 
 the opinion of the Justice the plaintiff is unable to pay the 
 bill of cost that may be recovered against him, it is his du- 
 ty to require surety in such bond ; and in case of a sum- 
 mons, if the plaintiff is not an inhabitant of this state, r if 
 an inhabitant of the state, and it appears to the authority 
 signing the writ, that he is unable to pay the cost that might 
 be recovered against him, some responsible person be- 
 ta) St. p. 34.
 
 10 
 
 longing to this state must recognize as surety to the plain- 
 tiff for the prosecution of such suit, and to answer all dama- 
 ges in case he make not his plea good. 
 
 (6) Writs, whether attachment or summons, are ordina- 
 rily to be directed to, and served by, the sheriff or his 
 deputy, of the county where the defendant resides, or a 
 constable of the town. When, however, there are more 
 than one defendant in the writ, who are described to be of 
 different counties, it may be directed to an indifferent per- 
 son by name ; the process, whether a summons or attach- 
 ment, must previously be filled up and completed in all 
 other respects. Writs of attachment also may be directed 
 to an indifferent person, when the plaintiffs, or one of 
 them, if there are more than one, or his or their agent or 
 attorney shall make the following affidavit : " You solemn- 
 ly swear (or affirm) that you verily believe the plaintiff 
 (or plaintiffs, as the case may be) is in danger of losing the 
 debt (damage, or other thing, a? the case may be) in this 
 writ, unless an indifferent person be deputed for the imme- 
 diate service of the same So help yowGoof." Which oath 
 the Justice signing the writ is to administer and certify the 
 same literally on the back thereof. He is entitled to 
 twelve cents for administering the oath, which is not to be 
 taxed in the bill of cost. He need not certify, as was for- 
 merly required, the reason of the writ's being directed to 
 an indifferent person. 
 
 (c) Sheriffs aie authorised to make special deputations, 
 which must be entered on the back of the writ, the person 
 
 'being named, who, after having served the process, must 
 make oath that he served the same according to his en- 
 dorsement thereon, and that he did not fill up said writ, nor 
 give directions to any other person to fill up the same ; 
 and the administration of said oath is to be certified by the 
 Justice on the back of said writ. 
 
 (d) Formerly Justices could not issue a writ to be served 
 \out of the county where they resided ; but now they issue 
 
 process to be served in any part of the State, and returna- 
 ble before any court within the State. All writs returna- 
 ble to the Superior, County, or City Courts, are subject 
 
 (6) St. p,35. (c) St. p. 36. (<J] St. p. 146
 
 ii 
 
 to a duty, in the first case, of one-dollar, and in the two 
 last, of thirty-four cents ; the payment of which, the 
 Justice must certify on the writ, and thereupon becomes 
 chargeable for the same to the State. Writs to the Superi- 
 or or County Court, must be made returnable to the next 
 term, unless issued after the expiration of the time of ser- 
 vice ; but if there is a wrong date, so as to appear to have 
 overleaped a term, it may be shewn by parol testimony 
 that there is a mistake in the date, and that the writ was 
 issued since the last term (e). 
 
 Subprenas for witnesses may in all cases be directed 
 to an indifferent person. 
 
 Issuing a writ, being a ministerial act only, it may be 
 done in favour or against the town where the Justice re- 
 sides, also against or in favour of persons standing in those 
 relations in which a Justice is prohibited by law from acting 
 judicially, and it has been claimed that a Justice might sign 
 a writ in his own name, but this would not be advisable nor 
 proper. A writ against a town, where there is sufficient 
 cause, may be directed to an inhabitant of such town as an 
 indifferent person. (/) A writ directed to a sheriff or an in- 
 different person would abate ; but to a sheriff or other pro- 
 per officer and an indifferent person is good. 
 
 Writs may also be signed by the governor, lieutenant 
 governor, a senator, any judge of the superior or county 
 courts, and writs returnable to the superior, county or city 
 courts by the clerks of those courts, respectively. 
 
 2d. (g) Justices are authorised to issue and sign warrants 
 in all criminal cases, to be served and returned before any 
 court in the state. Ordinarily a Justice cannot issue a 
 warrant, but upon a complaint made to him by an in- 
 forming officer, or an individual who has been injured, 
 or a common informer. The informing officers are the state 
 attornies, the grand-jurors, and constables, and tithing-men 
 in particular cases. Private individuals may also in certain 
 cases make complaint to a justice in their own name and 
 that of the state ; and in one or two instances an individual 
 may make complaint in the name of the state only, but 
 this must be under oath. 
 
 (e] 4th Day, 436. (/) 2 Swf. Sys. 108. (g) St. p. 146.
 
 (/i) A Justice may, ex officio, as a peace officer, arrest 
 without a warrant, all who violate the peace in his pre- 
 sence, and may commit them to prison, if necessary to pre- 
 serve the peace, (t) He may arrest not only those who 
 break the peace by actual violence of beating or striking 
 any person, but such as contend with hot and angry words, 
 tending to provoke actual violence in his presence ; and 
 those who in his presence threaten to kill, wound, or inflict 
 some bodily injury, and likewise those who go about arm- 
 ed with dangerous or offensive weapons, to the terror and 
 disquiet of the people. In such cases a justice might at 
 common law, ex qfficio, grant a warrant, without complaint 
 of an informing officer, to cause the offender to be ar- 
 rested and brought before him, and on inquiry he might 
 convict and pass sentence against him ; but this power 
 seems now to be taken away by statute (&). 
 
 3d. (/) It is made the duty of Justices by statute, on their 
 own knowledge, or a verbal or written complaint of any 
 grand juror, constable, select-man, or any substantial house- 
 holder, to issue a warrant and bring before him all idlers, 
 sturdy beggars, vagrants and vagabonds, who roam about 
 from place to place, and have no lawful business nor visible 
 means of support ; all night-walkers, jugglers, and fortune- 
 tellers ; all who run away and leave their wives and chil- 
 dren to be supported by the town ; all who mispend what 
 they earn and do not provide for the support of themselves 
 and families ; all lewd and dissolute persons, who frequent 
 houses of ill-fame ; all common prostitutes and common 
 drunkards, and on conviction, to sentence them to the 
 work-house, not exceeding forty days. 
 
 When any Justice shall have plain view, or personal 
 knowledge of any person's being guilty of drunkenness, 
 profane swearing, or sabbath breaking, he may, with or 
 without warrant, cause such offender to be brought before 
 him, and upon such evidence make up judgment against 
 him. This statute provides that no judgment shall be ren- 
 dered for any other offence, whether on confession or oth- 
 erwise, without a previous complaint and warrant. This 
 provision was introduced at the late revision ; it takes 
 
 (h) 1 Hawk. P. C. 25. (i) Dal. Just. 37. (k) St. 481-2. 
 (1) St. p. 172.
 
 13 
 
 away the common law authority of a Justice to order a 
 person to become bound to keep the peace who breaks it 
 in his presence, or where a person is brought before him 
 by a constable without warrant, for a breach of the peace 
 in his presence. A Justice now has only the authority to 
 interfere in case of an affray, or other breach of the peace, 
 in his presence, to arrest the offender, to order him con- 
 fined, and if necessary to preserve the peace, imprisoned, 
 until he can safely be permitted to go at large, but he can 
 pronounce no sentence or judgment, without a previous 
 complaint and warrant. But although this provision may 
 be considered as having restricted the common law author- 
 ity of Justices, it cannot be regarded as taking away the 
 special authority granted in particular statutes, enacted at 
 the same time, and of equal validity. It cannot be suppos- 
 ed that the legislature intended by a general restriction to 
 take away or limit the authority specifically given in dif- 
 ferent statutes. The itatute relating to idlers, vagabonds, 
 4-c. already noticed, is inconsistent with this general provi- 
 sion, as that authorises and makes it the duty of Justices, 
 on their own knowledge, or a verbal complaint, and that 
 too of a householder, to arrest such offenders, and pass 
 sentence against them. There are other statutes contain- 
 ing similar provisions. 
 
 4 (A) When any Justice sees or has knowledge of any 
 counterfeit bill or bills, it is his duty to seize and deface the 
 same, and enter on the buck the name of the person of 
 whom he received it, and to retain it ; and it is the duty 
 of all persons having counterfeit bills to deliver them to 
 some justice of the peace ; in both of which cases the jus- 
 tice may at his discretion cause the person from whom said 
 bill was seized or delivered, to come before him, and to 
 examine him on oath, respecting the person of whom he 
 received such bill ; and he may make such other enquiries 
 as he may deem necessary, to discover the person who 
 counterfeited, or passed said bill knowing it to be counter- 
 feit, and on satisfactory proof, require such person to be- 
 come bound with surety for his appearance before the court 
 iiaving jurisdiction of said crime, and for want of bail com 
 
 (A) St. p 134. 
 2
 
 14 
 
 mit him as in other cases. A person in such cases ought 
 not to be arrested without a warrant ; but this a justice 
 can evidently issue, without any previous complaint being 
 presented to him. 
 
 5. (i) Two justices are authorised, on information in 
 writing, or otherwise of an informing officer, or a majority 
 of the selectmen, that he or they have cause to suspect that 
 any biliard table or E O table, is concealed or kept in any 
 building which must be described, to issue a warrant to 
 any proper officer or indifferent person, directing him to 
 search for, and if found, to seize and carry away such ta- 
 bles, and make return of his doings to such justices. A 
 warrant in pursuance of this statute might be issued without 
 being accompanied with any regular complaint ; althongh 
 it would be most safe and proper that a written complaint 
 be made and signed, either by an informing officer, or by 
 the major part of the select-men. 
 
 6. In case of sudden, untimely or unnatural death, the 
 cause or manner of which is unknown, any justice of the 
 peace of the county may issue a venire or writ to summon a 
 jury of twelve judicious men, who being sworn by such 
 Justice, shall proceed to inquire into the cause or manner 
 of the death of such person, and present a true verdict 
 thereof, signed by each of them, to the same or some other 
 Justice of the Peace of the county, who shall return the 
 same to the next superior court in the county. If there is 
 no Justice in the town, a constable may summon and swear 
 the jury of inquest (&). 
 
 Venire, or Summons for Jurors. 
 
 To any Constable of the town of in the county 
 
 of Greeting : By authority of the state of Con- 
 
 necticut, you are hereby commanded forthwith to summon 
 twelve judicious and discrete men of said town of 
 to appear before me at in said town of on 
 
 the day of at o'clock, then and there to form 
 
 a Jury of inquest, to inquire of the cause and manner of the 
 death of A. B. there lying dead, the cause and manner of 
 whose death is unknown. Hereof fail not, but due return 
 make Dated, &c. 
 
 (i) St. 249. (fr)St. 177.
 
 Juror's Oath. 
 
 You swear that you will diligently inquire of the cause 
 mid manner of the death of A. B. here lying dead, the cause 
 of whose death is unknown, and deliver up a true verdict 
 thereof, according to the evidence that may be given you, 
 and your best judgment So help you God. 
 
 Verdict. 
 
 county ss. The undersigned jurors be- 
 ing duly impannelled and sworn to inquire of the cause and 
 manner of the death of A. B., whose death was sudden and 
 untimely, and the cause aud manner of which was unknown, 
 having viewed the body of said deceased, and considered 
 the evidence given to us, do on our oaths say, that said A. 
 B. came to his death by accident and mischance, by falling 
 from a certain bridge, at a place called in said town 
 of (or do on our oaths find and say that the cause 
 and manner of the death of said deceased is to said jurors 
 unknown) ; whereof we subscribe our names. 
 
 Signed by all the Jurors. 
 
 The verdict may be delivered to any justice of the peace 
 in the county, who must return the same to the next supe- 
 rior court. Any person summoned as a juror, forfeits two 
 dollars for not attending ; and neither the justice, jurors, 
 or constable, are entitled to any fees for their services. 
 
 7. (/) In all cases where any person has executed a bail 
 bond, or entered into a recognizance for the personal ap- 
 pearance of another, before any court, and such bail or 
 surety shall afterwards believe that his principal intends to 
 abscond, such bail or surety may apply to any Justice 
 of the Peace in the county in which such principal resides, 
 and on producing his bail-bond, or evidence of his being bail 
 or surety, and verifying the reason of his application by 
 oath or otherwise, it is the duty of the Justice to grant a 
 mittimus forthwith, directed to any proper officer, or an in- 
 different person, commanding him to arrest such princi- 
 pal and commit him to the keeper of the gaol of the coun- 
 ty, and also authorise and command said keeper to receive 
 
 (I) St. 63.
 
 such person and him detain in gaol, until he is discharged by 
 due course of law. The bail may, without any warrant or 
 mittimus, arrest his principal, to surrender him in court 
 where he was bound to appear, or to deliver him to the 
 officer who has the execution issued on the judgment re- 
 covered in the action in which the bail was given (?n). On 
 application to a Justice, he ought to require the bail bond 
 to be produced, or some other evidence of the person ap- 
 plying being bail, and that he make oath as to the reason or 
 cause of his applying for a mittimus : which facts should be 
 recited therein. 
 
 8. Justices have power, and it is their duty to issue war- 
 rants to collect all taxes which may be lawfully granted by 
 towns, societies, or other communities. It is the duty of the 
 select-men of towns, and the committee of societies or oth- 
 er communities, to make out the rate bills for all taxes un- 
 der their hands, containing the proportion each individual 
 is to pay according to his list, and then to apply to a Jus- 
 tice of the Peace for a warrant, who is bound to grant the 
 same, which should be directed to the collector or collect- 
 ors of such tax. 
 
 CHAPTER II. 
 Of the ministerial powers and duties of Justices of the Peace. 
 
 1st. Justices are conservators of the Peace throughout the 
 county, and may, ex officio, arrest, and if necessary confine any 
 person who violates the peace in his presence, and at common 
 law might order such offender to procure bonds to keep the 
 peace, and for his good behaviour, without complaint or 
 warrant, but this authority is now taken away by statute. 
 As a peace officer, it is made the duty of Justices to suppress 
 riots (n). If three or more persons shall come together 
 with an intention to do an unlawful act with force or vio- 
 lence against the peace, or to the manifest terror of the 
 people, any Justice of the county, the sheriff or any of his 
 
 (TO) Swf. Dig. 597. (n) St. 384
 
 17 
 
 deputies, or any constable or select-man of the town is au- 
 thorised and required on notice or knowledge of any such 
 unlawful and riotous assembly, to resort to the place, and 
 among, or as near as he can safely come to such rioters, 
 with an audible voice cnmmand silence, or cause it to be 
 done, whilst proclamation is making ; and thereupon make, 
 or cause to be made, proclamation, in these words, or 
 words to the like effect : " In the name and by author- 
 ity 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." 
 And if such persons, or any three or more of them, after 
 proclamation has been made, shall not disperse, any Jus- 
 tice ofthe Peace, the sheriff, or any of his deputies of the 
 county, and any select man, or constable of the town, is 
 authorised and empowered to call assistance and apprehend 
 such person or persons continuing together after proclama- 
 tion has been made as aforesaid, and forthwith to carry 
 them before some Justice of the Peace, that they may be 
 proceeded against according to law. And if any person so 
 unlawfully and riotously assembled, shall be killed, or 
 maimed, or hurt, in the dispersing or apprehending or 
 endeavouring to disperse, or apprehend him or (hem, 
 such Justice or other officer, and all persons aiding or as- 
 sisting them, shall be discharged and indemnified, as well 
 against the public, as the person injured. 
 
 2. Justices of the Peace are authorised to administer 
 oaths, not only in judicial proceedings, but in all cases 
 where they are by law required, unless there is an express 
 provision that in particular cases they be administered by 
 certain officers. The form of administering oaths in this 
 State is extremely simple. In England, and in most ofthe 
 other states, it is done by resting the hand on the New Tes- 
 tament, and then kissing the Book, (o) Here it is provi- 
 ded by statute that no other ceremony shall be used by 
 persons to whom an oath is administered, than holding up 
 the right hand, as has been accustomed ; but when by rea- 
 son of scruples of conscience any person shall object to 
 
 (o) St. 369.
 
 18 
 
 such ceremony, he shall be permitted to use any proper 
 ceremony to which he has been accustomed in such cases, 
 or such as the court or authority by whom the oath is to 
 be administered shall direct. 
 
 There seems to be no express general provision by stat- 
 ute as to the administration of oaths ; but they may be ad- 
 ministered not only by Justices of the Peace, but by the 
 governor and the judges of the superior and county courts. 
 It is a power incident to all courts to administer judicial 
 oaths in proceedings before them ; and the clerks of the 
 superior, county, and city courts, as officers of such courts 
 possess the same authority. The clerk of the senate, the 
 clerks of the house of representatives, and the chairman of 
 committees of either house of the general assembly, are 
 authorised to administer oaths during the session of the 
 general assembly (/>). 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<tried before 
 a justice who is a stockholder or member, or any other 
 way interested in such corporation. 
 
 Any justice of the county may be called on to the coun 
 ty court, when it shall s"o happen, by reason of the absence 
 or legal exception of any two of the judges, that there 
 shall be. but one judge present qualified to try any cause pend- 
 ing before such court. And when all the judges of the 
 county court are disqualified to sit in any cause pending 
 before them which is not appealable, the clerk shall draw- 
 by lot from the names of all the justices of the peace 
 qualified to act in such cause, in the town where the court 
 is sitting, the names of three justices of the peace, who 
 shall have power to try said cause. And if such town is 
 interested, three names shall be drawn in like manner 
 from the justices of an adjoining town. 
 
 (o) St. 148.
 
 CHAPTER V. 
 
 Of proceedings before a Justice in eases of Default*, .You 
 suits and Trials, 
 
 I. Of Defaults and Won-suits By a late statute all wnU 
 returnable before a Justice of the Peace, are required to 
 be returned twenty-four hours at least, before the day of 
 trial ; and those returnable to the Superior, County or 
 City Courts, forty-eight hours before the session of the 
 court (/>). 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 
 
 '<!) I Swf. Dig. 8.4.
 
 01 
 
 judgment is founded upon that, and is a consequence of it 
 [n all cases therefore, where it does not appear from the 
 record that all the issues joined, have been decided, the 
 judgment will be erroneous ; likewise where the judgment 
 entered up, is not consistent with the finding of the issue or 
 issues, as when there is one or more issues found for the 
 plaintiff, and one found for the defendant, and judgment giv- 
 en for the plaintiff. The superior court are more indul- 
 gent and less critical with respect to judgments of justices 
 of the peace, now than formerly, and will not set them 
 aside for any informality ; but where it does not appeal- 
 that any issue has been joined, or what the issue is, or how 
 it has been found, or whether it has been found at all or not ; 
 where all the issues have not been decided, or where 
 judgment has not been rendered according to the finding ot 
 the iasue ; in these cases the judgment will be reversed, 
 
 Of appeals. 
 
 Where the sum demanded by the plaintiff shall exceed 
 seven dollars, except in action on notes or bonds, vouched 
 by two witnesses and given for money only, either party 
 may appeal from the decision of a justice of the peace to 
 the next county court. In actions of book debt where the 
 defendant demands more than seven dollars as due to him 
 from the plaintiff, the party aggrieved by the judgment, in 
 such case shall have the same right of appeal as he would 
 have had if the action had been brought by the plaintiff 
 demanding more than seven dollars. If however the de- 
 fendant in his plea demands more than thirty-five dollars, 
 the justice cannot try the cause ; but such plea shall not 
 be received unless the defendant shall pay a duty of thirty- 
 four cents, and enter into a recognizance with sufficient 
 surety to the adverse party, to remove said cause to, and 
 pursue his plea before the next county court, and to an- 
 swei all damages in case he fail to make his plea good. 
 The justice must take, and record such recognizance, and 
 also record the payment of the duty of thirty-four cents 1 . 
 If the defendant in his plea demands more than thirty-five 
 dollars, as a balance due to him, but refuses to enter into 
 such recognizance or to pay the duty, yet persists in his 
 
 lea, the justice must give judgment against him on nikil 
 
 ' rit his refusing to plead. 
 6
 
 In actions demanding not more than seven dollars, charg- 
 ing the defendant with obstructing any stream, river, creek 
 or arm of the sea, wherein the defendant shall justify the 
 same by a special plea alleging a right ; and also in actions 
 charging the defendant with an injury done to land, where- 
 in the defendant shall justify the same by a special plea al- 
 leging a right of way, although less than seven dollars are 
 demanded, an appeal is allowable. Where in an action of 
 trespass the defendant puts in a plea of title to the land, 
 he must enter into a recognizance to the adverse party, 
 and the cause must be removed to the next county court. 
 If the defendant puts in a plea of title to the land, in an 
 action of Irespass, but refuses to enter into a recogniz- 
 ance, the court must give judgment against him on nihil 
 (licit. 
 
 In all eases which are appealable, either party may ap- 
 peal from the decision of the justice as a matter of right ; 
 there is no discretion to be exercised on the subject. But 
 in doubtful cases the court must decide whether the ac- 
 tion is appealable or not. If a justice refuses to allow an 
 appeal where a cause is appealable, the superior court will 
 compel him to do it, by a writ of mandamus. In all cases 
 where an appeal is allowed the party appealing must give 
 bond with surety to the adverse party to prosecute his ap- 
 peal to effect, and pay all damages in case he make not his 
 plea good. He must also in all cases pay a duty of fifty 
 cents on his appeal, and if he refuse or is unable to give 
 bond with surety, or to pay the duty, the appeal must be 
 disallowed and the court may issue execution and enforce 
 the judgment. Where, in case of a plea of title to land, 
 or in actions of book debt, the defendant in his plea demands 
 more than thirty-five dollars, and the action is remov- 
 ed to the county court, the duty of fifty cents is not paya- 
 ble as on an appeal ; for in such case there has been no 
 trial before the justice, and the proceeding is not an ap- 
 peal, but a removal of the action. 
 
 Where an action is appealed, the record of the judgment 
 should be made as in other cases, and then add : And the 
 plaintiff or defendant (as the case may be) appeals trom 
 this judgment to the next county court, to be holden &c. 
 and paid me a duty on his said appeal of fifty cents, and 
 the plaintiff as principal and A. B. as surety recognized to
 
 03 
 
 Uie adverse party, in the sum of dollars, to prosecute his 
 s^aid appeal to effect, and answer all damages in case he 
 make not his plea good. The recognizance must be en- 
 tered in full, and form a part of the record. It is the duty 
 of the justice to furnish copies of the record to the party 
 appealing, for which he is entitled to receive twenty-five 
 cents a page. When an appeal is taken and the action is 
 not appealable, the county court will erase such cause from 
 their docket ; but they cannot remand it to the justice to be 
 proceeded in & finally disposed of, as the superior court can 
 do where a cause is appealed to that court from the county 
 ;ourt, which is not appealable. In such case, a writ of 
 error must be brought, and the judgment of the justice 
 reversed, as allowing the appeal is a part of the judgment. 
 When the party appealing does not procure copies and en- 
 ter his action in the docket of the county court, by the 
 second day of the court, the other party may procure the 
 cause to be entered at any time during the term, and have 
 the judgment of the justice affirmed. But if neither par- 
 ty enter the cause during the term to which it is appealed, 
 it cannot afterwards be entered ; but the judgment of the 
 justice is dead. The surety on the bond is holden for the 
 bifl of cost only, the adverse party may recover and not for 
 the damages. 
 
 Of Execution. 
 
 The last thing is the issuing of an execution to enforce 
 the judgment. The execution must agree with the judg- 
 ment, and is ordinarily issued against the goods, lands and 
 body of the debtor ; but where the judgment is against 
 an executor or administrator for the debt of the deceased 
 the execution should issue only against the estate of the 
 deceased in their hands. So when the debtor has been 
 liberated from arrest by the superior court under the in- 
 solvent law, the execution should issue against the goods 
 and estate of the debtor only; and likewise where a judg- 
 ment is rendered against a corporation, the execution should 
 be granted against the goods and estate of such corporation 
 only ; but when judgment is obtained against a town or so- 
 ciety, the law is, that the execution issue against the goods 
 and estate of the legal inhabitants of such town, or society, 
 and not against the property of such corporation ; and if
 
 the estates of individuals are taken and sold they will have 
 a remedy against such town or society. 
 
 Executions issued from the higher courts may be made 
 returnable to the next term of the court, or in sixty days ; 
 but justices of the peace must make their executions re- 
 turnable in sixty days from their date. After the expira- 
 tion of the sixty days, and return of the first execution, an 
 alias or second execution may be issued if the judgment 
 has not been satisfied. When the first execution has been 
 satisfied in part, the endorsement on the first execution 
 should be copied on to the second, and certified by the jus- 
 tice to be a true copy of the original. When an execution 
 has been discharged by a mistake, or by a void levy, or 
 endorsement made through mistake, the justice rendering 
 the judgment may grant a new execution (e). Where the 
 execution is levied by mistake on the goods of another 
 person which are sold, and the execution endorsed satisfi- 
 ed, a new execution may be granted. Where land be- 
 longing to the debtor, as tenant in common or joint tenant, 
 is set off, as though he was sole owner, or where the debt- 
 or has only an equity of redemption in land, and it is set 
 off by metes and bounds, the levy will be void, and a new 
 execution may be granted. Where a new execution is 
 granted, in consequence of a void levy, or of the first's hav- 
 ing been discharged or endorsed satisfied, by a mistake, 
 the ground and reasons of granting the new execution, 
 ought to be entered on the file and form a part of the re- 
 cord. Where the debtor is arrested on the execution, and 
 voluntarily discharged by the officer, with or without the 
 consent of the creditor, a new execution cannot be gran- 
 ted, nor can the debtor be arrested again on the same exe- 
 cution ; and it has recently been decided by the court of er- 
 rors, that the judgment in the former case is discharged ; and 
 where the debtor is committed to gaol and he is discharg- 
 ed on the poor debtors' oath, a new execution cannot is- 
 sue, but an action must be brought on the judgment. So 
 if either of the parties die, a scire facias, or other action 
 must be commenced on the judgment, as an execution ( "'' 
 not be issued. 
 
 l}\ Swf. Dip. 7%
 
 It was formerly doubted whether executions issued 
 on the judgment of a justice of the peace, could be levied 
 on land, but it is now provided that they may in all re- 
 spects be executed in the same manner as executions issu- 
 ing on the judgments of the higher courts. They must be 
 directed to some proper officer to serve, and the party 
 cannot alter the direction. When an execution is return- 
 ed, it becomes a part of the records ofthe case, and should 
 be kept on file, and an entry made of the time of it.-' being 
 returned, for if it is not returned wtfhin the life of it, the 
 officer becomes liable to the creditor. 
 
 CHAPTER VII. 
 
 Of the powers of Justices of the Peace to preserve order, <$*c. 
 
 It is important to the purposes of justice, as well as to 
 the authority ofthe laws, and to maintain respect even to- 
 wards the lowest tribunals of justice, that order be main- 
 tained during trials before Justices ofthe Peace. They are 
 clothed with the same authority to preserve order as oth- 
 er courts, although their power is more limited in degree. 
 
 If a witness refuses to be sworn, unless in case of scru- 
 ples of conscience, or refuses to testify after being sworn, 
 he may be committed for contempt. 
 
 Form of Mittimus. 
 To A. B. Sheriff of, &c. Greeting 
 
 Whereas, at a court holden this day before me, an action 
 wherein John Doe is plaintiff, and Richard Roe is defend- 
 ant, being on trial, Peter Brown having been summoned b} 
 the said plaintiff as a witness in said cause, and having ap- 
 peared before said court, and being required by me to take 
 the witnesses oath, obstinately and contemptuously refused 
 so to do, and has no scruples of conscience as to taking said 
 oath or, (if he has been sworn and refuse? to testify,) and 
 having appeared before said court, and been duly sworn to 
 testify therein, on being required and demanded, wilfully 
 and contemptuously neglects and refuses to testify in said 
 cause, Wherefore, you are hereby commanded to take . iir.
 
 66 
 
 iaid Peter Brown, and him commit to the keeper of the 
 gaol, in and for the county of who Is hereby re- 
 
 quired to receive the said Peter into his custody, and him 
 safely keep within said gaol, until he shall consent to give 
 his testimony in said cause, and be legally discharged. 
 Hereof you are not to fail, but due service make, and leave 
 with said keeper this mittimus. 
 
 In criminal cases, where a witness has been summoned, 
 and refuses to appear or attend before the justice, as well as- 
 where he refuses to be sworn or to testify, he may be ap- 
 prehended and committed to gaol, there to remain at his 
 own cost, until he shall give evidence. The mittimus in 
 such cases would be the same, except that it must be sta- 
 ted that the cause on trial was a public prosecution and oi 
 a criminal nature, and that the witness having been sum- 
 moned, wilfully and contemptuously refused to appear be- 
 fore said court, and the officer must be directed to appre- 
 hend and arrest the person and him commit, &c. But it is 
 most common in such cases to issue a capias, to bring the 
 witness before the court. In civil cases too, where the 
 witness has been summoned and received, or had tendered 
 to him his fees, and refuses to attend, the Justice is empow- 
 ered to issue a capias and bring him before the court. We 
 have given a form of a capias in treating of depositions, to 
 which we must refer. See page 24. 
 
 The power of punishing by fine and imprisonment for 
 contempt, is incident at common law, to any court of re- 
 cord, without which they could scarcely exist, for every 
 tribunal must be able to prevent its authority, and the au- 
 thority of the laws, from being trampled upon, and to pro- 
 tect itself from insult. It is provided by statute, that if any 
 person in the presence of any court, shall either by words 
 or actions behave contemptuously or disorderly, it shall be 
 in the power of the court to inflict such punishment upon 
 him by fine or imprisonment, as shall be judged reasona- 
 ble ; provided, that no single minister of justice shall inflict 
 a greater fine than seven dollars, or a longer term of im- 
 prisonment than one month, and no other court shall inflict 
 a greater fine than one hundred dollars, nor a longer term 
 of imprisonment than six months (/). The imprisonment 
 
 (/*)St. 174.
 
 67 
 
 must be in the common gaol of the county, and the Justice 
 must issue a mittimus for the commitment of the offender. 
 The offence must be committed in open court, and if com- 
 mitted immediately before or after a trial, the case will 
 not be within the statute. The court may impose a fine 
 on the offender, and commit him for refusing to pay the 
 same ; or it may sentence him to imprisonment directly ; 
 in either case a record must be made of the sentence 
 or or4er, stating what the person did, or that he behaved 
 contemptuously or disorderly in open court : 
 
 " At a court holden before me, this day of 
 A. D. at my office in a cause then and there 
 
 being on trial, wherein A. B. is plaintiff, and C. D. is de- 
 fendant, one J. S. of then and there being present, 
 with intent to disturb and interrupt said court, and to insult 
 the same, did in open court, and during said trial, behave 
 in a contemptuous aod disorderly manner towards said 
 court, by talking loud and offensively, which he persisted 
 in, after being commanded to be silent ; whereupon it is con- 
 sidered and ordered by me that the said J. S. pay a fine to 
 the treasury of the said town of of five dollars, 
 and that on failure thereof, he be committed ; or, it is con- 
 sidered that the said J. S. be punished by imprisonment in 
 the common gaol of said county seven days ; and having 
 issued a mittimus, the said J. S. was committed according- 
 ly." 
 
 Form of Mittimus. 
 
 To the Sheriff, &.c. Greeting : Whereas, at a court hold- 
 en this day of A. D. before me, at my 
 office in in the county of a cause then be- 
 ing on trial, wherein A. B. is plaintiff, and C. D. defend- 
 ant, J. S. of was fined by me for contemptuous 
 and disorderly conduct in open court during said trial, in 
 the sum of seven dollars, for the use of the treasury of the 
 said town of and the said J. S. having neglected and 
 refused to pay said fine ; (or, the said J. S. was sentenced 
 by me to he punished by imprisonment in the common gaol 
 of said county for the term of seven days from the date 
 hereof). Wherefore, you are hereby commanded to take 
 the said J. S. and him commit to the keeper of the gaol in 
 and for said county ; who is hereby commanded to receive
 
 68 
 
 him, the said J. S. into said prisou, and him safely keep 
 therein until he pay -tid fine, or be legally discharged ; or, 
 (where he is sentenced to be imprisoned) and him safely 
 keep therein during said term, or until he is duly discharg- 
 ed. Hereof you are not to fail, but make legal service, 
 and leave this mittimus with gaid keeper, which shall be 
 his authority for the safe keeping and imprisonment of the 
 said J. S. 
 
 A. B. Justice of the Peajce. 
 
 CHAPTER VIII. 
 
 Forms in Civil Actions. 
 
 Of Assumpsit. 
 
 Actions of assumpsit are either special or general : where 
 a particular contract is declared upon and set out, they 
 are special. 
 
 1. Declarations on notes. In actions brought by the ori- 
 ginal promisee against the promisor, the form is the same, 
 whether the note is negotiable or not. 
 
 To the Sheriff of the county of his deputy, or ei- 
 
 ther Constable of the town of within said coun- 
 
 ty, Greeting 
 
 By authority of the state of Connecticut, you are here- 
 by commanded to summon John Stiles, of in the 
 county aforesaid, to appear before A. B. Esquire. Justice 
 of the Peace for the county of at his office in 
 in said county, on the day of A. D. at 9 
 o'clock, A. M. then and there to answer unto Joseph Crafts, 
 of aforesaid, in an action or plea of the case, where- 
 upon the plaintiff declares and says, that the defendant, in 
 and by a certain writing or note under his hand, by him 
 well executed, and dated the day of A. D. 
 promised the plaintiff to pay to him on demand, thirty-five 
 dollars with the interest : as by said writing or note ready 
 in court to be shewn, appears. Now the plaintiff further- 
 says, that the defendant, his promise aforesaid not regard- 
 ing, hath never performed the same, (although often re
 
 69 
 
 quested and demanded,) which is to the damage of the 
 plaintiff the sum of thirty-five dollars, and for the recovery 
 thereof, with just costs, the plaintiff brings this suit. Here- 
 ef fail not, and of this writ make lawful service, and re- 
 turn. 
 
 Dated at the day of A. D. 
 
 A. B. Justice of the Peace. 
 
 Where the note is executed by, or to, partners in business, 
 having a company name, it is to be varied as follows : To 
 summon A. B. and C. D. both of merchants and 
 
 traders in company, and carrying on business under the 
 name and firm of A. B. and Company. And stating the 
 promise, say : The defendants, in and by a certain writing 
 or note by them executed, and signed by their said compa- 
 ny name, promised the plaintiff. Where the plaintiff's are 
 partners, and the note is made to thtm by their company name, 
 say : To answer unto A. B. and C. D. both of 
 merchants and traders in company, and carrying on busi- 
 ness under the name and firm of A. B.&Co. Instating 
 the promise : promised the plaintiffs to pay to them by their 
 said company name. Where the suit is brought by an exec- 
 utor : then and there to answer unto A. B. executor of 
 the last will and testament of C. D. deceased, late of 
 . In a plea of the case, whereupon the 
 plaintiff declares and says that the defendant, in and by his 
 certain writing or note by him executed, his own hand be- 
 ing thereunto subscribed, promised the said C. D. he then 
 being in life, to pay to him, &c. In alleging the breach : 
 his promise aforesaid disregarding, hath never performed 
 the same, either in the life time of the said C. D. or since 
 his decease. Where the plaintiff" is administrator : there 
 and then to answer unto A. B. administrator of the goods 
 and estate of C. D. late of deceased. The prom- 
 
 ise will be stated the same as in case of executor. Where an 
 executor or administrator issued: to summon A. B. of 
 executor of the last will and testament of C. D. deceased, 
 late of : or, administrator of the goods and estate 
 
 of C. D. deceased. In alleging the promise : that the said 
 C. D. in his life time, in and by a certain writing or note, 
 under his hand and by him well executed, promised the 
 plaintiff. In alleging the breach ; and which said prom
 
 70 
 
 jse the said C. D. never performed in his lifetime, nor hath 
 the same heen performed by the defendant since the de- 
 cease of the said C. D. 
 
 Form of Judgment and Execution, where an executor or an 
 
 minislrcitor is sued, 
 H county, ss. H 
 
 At a court holden before me, on the day of 
 A. D. A. B. against J. S. executor of the last will and 
 
 testament of C. D. late of deceased, in an action 
 
 on the case for that, the said C. D. in his life time, in and 
 by a certain note by him executed, promised the said A. B. 
 the sum of dollars on demand and interest ; and 
 
 which said promise the said C. D. never performed in hi? 
 life time, nor the defendant since his death, to the damage 
 of the plaintiff the sum of thirty-five dollars ; and the de- 
 fendant pleads and says thot the said C. D. did not in hi* 
 life time assume and promise in manner and form the plain- 
 tiff hath alleged, and hereof for trial puts himself on the 
 court, and the plaintiff does the same, as by the pleadings 
 more fully appears : -<>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 ih<?i by- 
 reason of the premises, the defendant became liable to p.iy 
 the plaintiff the debt and costs in said execution, and the 
 said officer's fees thereon, and in consideration thereof, af- 
 terwards, viz. on the day of A- D. at said 
 as* imed upon himself and faithtuliy promised the 
 plaintiff to pay him said several sums contained in said ex- 
 ecution, and the officer's fees thereon, amounting to the sum 
 of and the interest thereon, when requested ; yef 
 the plaintiff says, that the defendant his promise aforesaid 
 not regarding, hath never performed the same, although of- 
 ten requested and demanded, to the damage of the plaintiff 
 the sum of dollars, &c. 
 
 [Where the debtor in the assigned note was notoriously 
 insolvent, at the time the note was assigned, the endorser 
 may be sued without bringing a suit on the note. In such 
 case the declaration will be the same to the allegation of 
 the assignment of the note to the plaintiff, and then a< fol- 
 lows :] 
 
 And the plaintiff presented said note with the endoi>r- 
 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;<ve they at ony time since deliv- 
 ered said horse to the plaintiff, although often requested
 
 and demanded. And the plaintiff says that said judgment 
 hath not been reversed or set aside, and that said execution 
 hath not heen satisfied otherwise, than by the aforesaid 
 levy, but that the same is now justly due to the plaintiff, 
 together with the interest, and his lawful fees thereon, 
 amounting to dollars and cents, which 
 
 several sums, the defendants have neglected and refused to 
 pay, although often requested and demanded. And the 
 plaintiff says, that by means of the premises he has been 
 injured and damaged the sum of dollars, to re- 
 
 cover which, with costs, this suit is brought &.c. 
 
 5. DECLARATION by the Payee against the Acceptor of an 
 Order. 
 
 In a plea for that, on the da}' of A. D. 
 
 one A. B. of drew his certain order in writing:, his 
 
 own hand being thereto subscribed, dated the day and year 
 last aforesaid, directed to the defendant, therein requesting 
 him to pay to the plaintiff or his order dollars on 
 
 demand ; and the said A. B. then delivered the said order 
 to the plaintiff, for value received of him ; and the plain- 
 tiff afterwards (viz.) on the day of presented said 
 order to the defendant for his payment or acceptance, and 
 the defendant then neglected to pay said order, but accep- 
 ted the same, whereby he became liable and in consider- 
 tion thereof afterwards (viz.) on the same day and year last 
 aforesaid, assumed and faithfully promised the plaintiff to pay 
 to him the said sum mentioned in said order and the lawful in- 
 terest thereon when requested ; yet the defendant his said 
 promise disregarding, hath never performed the same, al- 
 though often requested, to the damage &c. 
 
 Against the Drawer on an order not accepted. 
 
 In a plea for that, on the day of A. D. 
 
 the defendant for value received of the plaintiff, drew his 
 certain writing or order, of the date last aforesaid, his own 
 hand being thereto subscribed, directed to A. B. therein 
 requesting the said A. B. to pay to the plaintiff or his or- 
 der, the sum of dollars on demand ; and the plain- 
 tiff afterwards (viz.) on the day of A. D. pre- 
 sented said writing or order to the said A. B. for his accep- 
 tance and payment ; and the said A. B. then and there re- 
 fused to pay or accept said order, of which the defendant
 
 GO 
 
 afterwards, (viz.) on the day of A. D. 
 
 h;-.d due notice from the plaintiff, whereby the defendant 
 became liable to pay to the plaintiff the contents ot said 
 order, and in consideration thereof, assumed and promis- 
 ed kc. 
 
 6. DECLARATION on Account stated. 
 
 In a plea of the case for that, on the day of 
 
 A. D. the plaintiff and defendant reckoned and ac- 
 counted together of sundry sums of money and dealings 
 which before that time had passed between them ; and the 
 defendant was found in arrear to the plaintiff in the sum of 
 dollars, and being so in nrrear, the defendant in 
 consideration thereof, assumed and promised to pay said sum 
 when requested &c. 
 
 7. DECLARATION of assumpsit on Due Bill. 
 In a plea of the case for that, on the day of 
 
 A. D. the defendant being indebted to the 
 plaintiff in the sum of executed under his lv ml, 
 
 and of the date last aforesaid, his certain writing or due- 
 bill, wherein he acknowledged himself to owe and be in- 
 debted to the plaintiff in the said sum of dollars, 
 whereby he became liable to pay to the plaintiff said sum 
 of dollars on demand, and in consideration thereof, 
 afterwards (viz.) on the day of assumed 
 and promised the plaintiff to pay to him said sum, when 
 thereto requested : yet his promise disregarding, he hath 
 never performed the same, although often requested, to 
 the plaintiff's damage &c. 
 
 8. General count or declaration for money had and received. 
 In a plea of the cae, whereupon the plaintiff declares 
 and says that on the day of A. D. the de- 
 
 fendant was indebted to the plaintiff in the sum of one hun- 
 dred dollars, for money before that time lent by plaintiff to 
 the defendant at his request, and by him received of the 
 plaintiff for the plaintiff's use ; and being so indebted, and 
 in consideration thereof, afterwards, on the day of 
 A. D. assumed upon himself and faithfully promised 
 
 the plaintiff to pay to him said sum of one hundred dollars 
 when requested ; yet his said promise not regarding, tin-
 
 81 
 
 defendant hath never performed the same, although oi'teu 
 requested, &c. 
 
 9. General count, for goods sold and delivered. 
 
 In a plea of the case whereupon the plaintiff declares and 
 says, that on the day of A. D. the defend- 
 
 ant was indebted to the plaintiff in the sum of one hundred 
 dollars for goods, wares and merchandize, before that time 
 sold and delivered by the plaintiff to the defendant, at his 
 special instance and request ; and being so indebted, and 
 in consideration thereof, afterwards, viz. on the day of 
 A. D. the defendant assumed upon himself 
 
 and faithfully promised the plaintiff to pay him said sum of 
 one hundred dollars and the interest thereof, when request- 
 ed ; yet his promise not regarding, he hath never perform 
 ed the same, although often requested, &c. 
 
 Or, where the price in not agreed on. 
 
 In a plea of the case for that, on the day of 
 A. D. in consideration that the plaintiff before that 
 
 time, at the special request of the defendant, had sold and 
 delivered to the defendant divers goods, wares and mer- 
 chandize, then and there undertook and promised the 
 plaintiff to pay to him for the said goods, wares and mer- 
 chandize, so much money as the same were reasonably 
 worth at the time of their sale and delivery as aforesaid, 
 when requested. And the plaintiff says that said goods, 
 wares and merchandize were reasonably worth the sum of 
 dollars, of which the defendant afterwards, viz. on 
 the day of had notice, yet his promise disre- 
 
 garding, he hath never performed the same, &,c. 
 
 10. Declaration for labour and services performed, ;r/ie/-e 
 
 no price is agreed on. 
 
 In a plea of the case for that on the day of 
 A. D. in consideration that before that time, the plain- 
 tiff had performed for the defendant divers services and 
 days labour upon his farm, at his special request, the de- 
 fendant undertook and promised the plaintiff to pay to him 
 so much money as said services and labour were reasona- 
 bly worth at the time they were performed for the defend- 
 ant as aforesaid, when thereto requested. And the plain- 
 tiff says that said services and labour were reasonably
 
 82 
 
 Worth the ?um of dollars, of which the defendant af- 
 
 terwards, yiz. on the day of had notice, yet his 
 
 promise and undertaking disregarding, he hath never per- 
 formed the same, &c. 
 
 11. Declaration for use and occupation of real estate, when 
 the rent is agreed on. 
 
 In a plea of the case, whereupon the plaintiff declares 
 and says that on the day of A. D. the de- 
 
 fendant was indebted to the plaintiff in the sum of 
 for the use and occupation of a certain piece or parcel of 
 land belonging to the plaintiff, and bounded and described 
 as follows, viz. [here describe the land] by the permission 
 and consent of the plaintiff, and at the request of the de- 
 fendant, for months and days, viz. from the day 
 of A. D. to the day of A. D. ; and in consid- 
 eration thereof afterwards, viz. on the day of A. D. 
 undertook and faithfully promised the plaintiff to pay to him, 
 the same sum when requested ; and although often request- 
 ed, 4-c. 
 
 12. Where the rent is not agreed upon. 
 
 Whereupon the plaintiff declares and says that on the 
 day of A. D. the defendant, in consideration that 
 
 before that time, at his own special request, and by the 
 permission and consent of the plaintiff, had used and occu- 
 pied a certain messuage, consisting of a dwelling house and 
 other buildings, and the garden and yard belonging thereto, 
 situated in and bounded and described as follows. 
 
 viz. for the sp;C of months and days, viz. 
 
 from the day of A. D. to the day of 
 
 A. D. undertook and faithfully promised the plaintiff 
 
 to pay to him so much money as the use and occupation of 
 said messuage during the period aforesaid, was reasonably 
 worth, when thereto requested. And the plaintiff says 
 that the use and occupation of said messuage during said 
 time was worth dollars, of which the defendant after- 
 
 wards had notice, viz. on the day of A. D. 
 
 yet disregarding his said promise and undertaking, he hath 
 never performed the same, although often requested, &c. 
 
 13. Writ and Declaration by and against a town for support- 
 ing a Pauper. 
 To the Sheriff. &c. Summon A. B. and C. D. two of
 
 83 
 
 the principal inhabitants, and the rest of the inhabitants of 
 the town of W in the county aforesaid, by leaving a 
 true and attested copy of this writ with the said A. B. one 
 of the select men of the said town of W or with the said 
 C. D. clerk of said town, to appear before J. M. Justice of 
 the Peace within and for the county of on the 
 
 day of A. D. at 9 o'clock, forenoon, then and 
 
 there to answer unto O. P. one of the principal inhabitants, 
 and the rest of the inhabitants of the town of H in the 
 
 county of in a plea of the case for that, the plaintiffs 
 
 declare and say, on the day of A. D. the 
 
 defendants were indebted to plaintiffs in the sum of 
 dollars for monies before that time laid out, paid and ex- 
 pended by the plaintiffs in support of one S. T. a pauper, 
 of and belonging to said town of W and then and ever 
 
 since having a legal settlement therein, the said S. T. be- 
 ing, when said money was so expended for his support with- 
 in the said town of H and wholly nnable to provide for 
 or support himself, entirely destitute of property, and in a 
 distressed and suffering condition, of all which the defend- 
 ants afterwards viz. on the day of A. D. at 
 the said town of had notice, and thereupon became 
 liable to pay to the plaintiffs the aforesaid sum of dol- 
 lars, and in consideration thereof, assumed upon themselves 
 and faithfully promised the plaintiffs to pay to them the 
 same sum of money when thereto requested ; yet the de- 
 fendants their promise and undertaking aforesaid not re- 
 garding, have never performed the same, although often re- 
 quested and demanded, and particularly on the day of 
 A. D. at said town of W to the damage of 
 the plaintiffs, &,c. 
 
 CHAPTER IX. 
 
 ACTION OF ACCOUNT. 
 
 1 . Declaration. 
 
 In a plea that to the plaintiff, the defendant render his 
 reasonable account, during the time in which he was the 
 plaintiff's bailiff and receiver, whereupon the plaintiff de-
 
 84 
 
 clares and says, that from the day of till the day 
 
 of the defendant was the bailiff and receiver of the 
 
 plaintiff, and did during that time, receive of the plaintiff di- 
 vers goods and merchandize, , '\z. to sell and dispose 
 of, to merchandize with, and make profit thereof, and to 
 render his reasonable account thereof to the plaintiff when 
 he should afterwards be thereto requested : yet the plain- 
 tiff says, that the defendant has hitherto refused and still does 
 refuse to render his reasonable account thereof, though of- 
 ten requested, which is to the damage of the plaintiff the 
 sum of and to recover the same, and that the defend- 
 ant render his reasonable account, during the time he was 
 bailiff and receiver as aforesaid, the plaintiff brings this 
 suit. 
 
 Plea. 
 
 The defendant pleads and says that he is not bailiff and 
 receiver of the plaintiff's said goods, fyc. to account, in man- 
 ner and form the plaintiff hath alleged, and hereof for trial 
 puts himself on the court. 
 
 Plaintiff for himself. 
 And the defendant does likewise. Defendant for himself. 
 
 Record. 
 H county, ss. H , day of A. D. 
 
 At a court holden before me, A. B. against C. D. in an 
 action of account, wherein the said A. B. declares and say 
 that from the day of A. D. to the day of 
 the said defendant was bailiff and receiver of the plaintiff, 
 and during that time received of the plaintiff divers goods, 
 &c. viz. to sell and dispose of, and to render his reason- 
 able account thereof when requested ; yet that he hath 
 neglected and refused so to do, although often requested, 
 to the dama.e of the plaintiff the sum of dollars ; to 
 
 whic'i the defendant pleads that he is not bailiff and receiv- 
 er of the plaintiff, to account as the plaintiff hath alleged, 
 a ,.-! i ereof puts himself on the court for trial, and the plain- 
 tiff d t likewise; having fully heard the parties with their 
 evidences, this court do find that the defendant is bailiff and 
 receiver --.- liieged, and consider and give judgment that he 
 do nccoun. ; wbarenpon I proceeded to take and examine 
 the said accounts of the said parties, and having fully heard 
 them under oath, with {heir witnesses and exhibits, do find 

 
 lhat the defendant is in arrear to the plaintiff the sum of 
 dollars, whereupon it is considered that the plaintiff recov- 
 er of the defendant the said sum of dollars damages 
 and his costs, taxed at making in the whole the sum of 
 dollars and cents, and that execution issue, &.c. 
 J. B. Justice of the Peace. 
 
 ACTION OF BOOK DEBT. 
 
 i*. Writ and declaration, husband and ~sife against the sam. 
 
 To the Sheriff, &tc. Summon A. B. and C. B. his wife, 
 of in said county, to appear before J. P. Justice of 
 
 the Peace, at &c. then and there to answer unto E. F. 
 and G. F. his wife, of said in a plea that to the plain- 
 
 tiffs the defendants render the sum of dollars, which 
 
 the said C. B. when sole and unmarried, owed to the said 
 G. F. when sole and unmarried, on book as by the plain- 
 tiff's book ready in court to be produced, may appear ; 
 which said debt the said C. B. never paid whilst she was 
 single, and before her intermarriage with the said A. B. nor 
 hath the said A. B. her husband paid the same, since said 
 marriage, although often requested and demanded, to the 
 damage of the plaintiffs the sum of dollars, to recover 
 
 which, &c. 
 
 Plea. 
 
 The defendants defend, plead and say that the said C. B. 
 when sole and unmarried, did not owe the said G. F. on 
 book, when sole and unmarried, in manner and form a.s the 
 plaintiffs have alleged, and hereof for trial put themselves 
 on the court. 
 
 ,3. Plea in an action of book debt, -where the defendant doin^ 
 a balance. 
 
 The defendant defends, pleads and says, that he does not 
 owe the plaintiff on book in manner and form he hath alleg- 
 ed, and further pleads and say.-; that the defendant is indebt- 
 ed and in arrear to him to balance book account dollars, 
 and hereof for trial puts himself on the court. 
 
 And the plaintiff does likewise. 
 
 [If there is a balance found to be due the plaintiff, judg- 
 ment must be given therefor and costs of suit.] 
 
 Where the defendant in his plea claims a balance of more 
 than thirty-five dollars, such plea is not to be received, un-
 
 less the defendant will pay a duty of thirty-four cents, and 
 enter into a recognizance with surety to the adverse party 
 to remove said cause to the county court, and pursue his 
 plea before such court. If the defendant does this, the jus- 
 tice cannot try the cause, but must make a record of the 
 proceedings, and on request of the defendant, and at his 
 charge, a copy thereof, to be delivered to the clerk of the 
 county court. 
 
 [Plea, same as above, except that the defendant demands 
 a balance of more than thirty-five dollars.] 
 
 4. Record and recognizance. 
 At a court holden before me this day of at 
 in the county of A. B. against C. D. in an action of 
 
 book debt, wherein the said A. B. demands of the said C. 
 D. the sum of dollars to balance book accounts ; the 
 
 defendant pleads and says that he does not owe the plain- 
 tiff on book as he hath alleged, and further pleads and says 
 that the plaintiff is indebted and in arrear to him on hook to 
 balance book accounts the sum of fifty dollars, and move 
 to have said plea received and recorded ; and thereupon 
 paid to me for the use of this state a duty of thirty-four 
 cents, and the defendant, aa principal, and J. H. of in 
 
 said county as surety, recognized in the sum of seventy dol- 
 lars to the said A. B. the adverse party, to remove said 
 cause, to, and pursue his said plea before, the next county 
 court, to be holden at within and for the county of 
 
 and to answer all damages in case he fail to make 
 his plea good ; whereupon the aforesaid plea of the defend- 
 ant was received and recorded. 
 
 J. P. Justice of the Peace. 
 
 Recognizance. 
 
 Appeared before me at in said county, on the 
 
 day and year above written, the aforesaid C. D. and J. H. 
 and acknowledged themselves the said C. D. HS principal, 
 and the said J. 11. as surety holden, 4c bound jointly andsev- 
 erallv, in a recognizance unto the aforesaid A. B. in the 
 sum of seventy dollars, to be made and levied from their 
 goods, estate and lands, or the goods, estate and lands of 
 either of them, and for want thereof, upon their bodies, 
 in ca?e the said C. D. shall fail to remove the afore-
 
 87 
 
 cause to, and pursue his aforesaid plea before', the 
 jnty court next to be holden at in and for the coun- 
 
 ty of and answer all damages, in case he shall fail to 
 
 make his said plea good. 
 
 J. P. Justice of the Peace. 
 
 [Where the defendant in an action of book debt neglects 
 to exhibit his account on trial, and shall afterwards bring 
 an action against such plaintiff for the recovery of his book 
 account, which might have been settled and adjusted in the 
 former action, he shall not be allowed his cost, unless he 
 make it appear, to the satisfaction of the court, that he had 
 no knowledge of the former suit, or was inevitably hinder- 
 ed from appearing and exhibiting his account.] 
 
 ACTION OF DEBT. 
 
 5. Declaration on Bond. 
 
 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 
 A. D. the defendant, in and by his certain writing, obli- 
 gatory of the date last aforesaid, signed with his hand and 
 sealed with his seal, acknowledged himself to be holden and 
 firmly bound and obliged to the plaintiff in the sum of 
 dollars, to be paid to the plaintiff on demand ; as by said 
 writing obligatory, ready in court to be produced, may ap- 
 pear ; yet the defendant hath not paid said sum, but un- 
 justly detains the same, though often requested and demand- 
 ed, to the damage, &c. 
 
 6. Debt on Judgment. 
 
 For that at a court holden before A. B. Justice of the 
 Peace for the county of at in said county, on the day 
 of A. D. the plaintiff, by the consideration of said court, 
 recovered judgment against the defendant for the sum of 
 damages, and the sum of costs of suit, as by the records of 
 said justice, or an authenticated copy thereof, ready in court 
 to be produced, appears ; which said judgment hath never 
 been satisfied, reversed or annulled, but is now in full force, 
 whereby an action hath accrued to the plaintiff to demand 
 and rer >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<ay grant a warrant, as in criminal cases, to ar- 
 rest the person charged and bring him before him, and if 
 on enquiry he finds probable cause he may order such per- 
 son to become bound with surety to appear before the next 
 county court, to abide the order of said court, and on his 
 failure to procure surety, he is to be committed as in crim- 
 inal cases. The woman in such cases is admitted a witness ; 
 but she must have been examined on oath, and put to the 
 discovery in the time of her travail, and have continued 
 constant and uniform in her accusation. 
 
 If the mother of a bastard child neglect or refuse to proceed 
 against the reputed father of such child, the town interested 
 in the support of such child, when security shall not be of- 
 fered to indemnify such town against the support of such 
 child, may by their select-men institute a suit against the 
 person accused ; or the select-men may take up and pursue 
 in the name of the town, any suit commenced by the moth- 
 er, in case she fails to prosecute the same to final judgment. 
 Where the mother fails to prosecute, or having commenc- 
 ed a suit neglects to pursue it. thereby giving the town a 
 right to prosecute, whether the select-men commence an 
 original suit, or take up and pursue one commenced by the 
 mother, they must do it in the name of the town, not in the 
 name of the select-men, and they are to pursue such suit as 
 the agents of the town (6). When a suit has been com- 
 menced by the mother, and a bond taken to the adverse 
 party, and she afterwards fails to prosecute such suit, and 
 it is pursued by the select-men, a suit on such bond or re- 
 cognizance must be in the name of the town, not in the 
 name of the select-men (c). It has been decided that th<; 
 proceeding under this statute is a civil suit, and if the plain- 
 tiff is an infant, she must sue by guardian, or if she has no 
 parent or guardian, by her next friend, which is any person 
 who will permit the suit to be brought forward in his name 
 and become responsible for the cost, in case of failure. 
 
 Complaint during Pregnancy. 
 
 To J. P. Justice of the Peace for the county of 
 
 comes A. B. of and complaint makes, that she is, and 
 
 for more than ten months last past hath been, a single 
 
 and unmarried woman ; that she is pregnant and with child. 
 
 (6) 2 Con. Eep. 338. (c) ih.
 
 116 
 
 oegotteu upon her body by C. D. of a single rnau, on or 
 about the day of at and which child when born wili 
 be a bastard ; and the. complainant says that said C. D. is 
 the father of said child, with which she is now pregnant ; 
 and she prays process against the said C. D. that he may 
 be arrested and brought before your worship, or some oth- 
 er justice of the peace of the town of proper to hear 
 the same, that he may be examined in the premises and 
 dealt with agreeably to the statute in such case provided. 
 Dated, &c. A. B. 
 
 [The complainant must make oath to the liruth of the 
 complaint, which the justice must certify on the same.] 
 
 H county, ss. H , day of A. D. 
 
 Personally appeared before me the aforesaid A. B. and 
 made oath to the truth of the foregoing complaint by her 
 subscribed, and to the matters therein contained. 
 
 J. P. Justice of the Peace. 
 
 Warrant. 
 
 To the Sheriff, &c. By authority of the State of Con- 
 necticut, you are hereby commanded without to delay to 
 arrest the body of C. D. of mentioned in the afore- 
 
 said complaint, and him forthwith have before the under- 
 signed authority or some other justice of the peace of said 
 town of to answer to the foregoing complaint, a&d be 
 
 dealt with therein, agreeably to the statute in such-case 
 provided. Dated, &c. 
 
 State duty of thirty-four cents is paid hereon, and E. F. 
 recognized in the sum of dollars for prosecution. 
 
 Signed. 
 Plea. 
 
 The said C. D. defends, pleads and say?, that he is nol 
 guilty in manner and form as is alleged in said complaint, 
 and hereof for trial puts himself on the court. 
 
 Defendant for himself. 
 And the said complainant doth likewise. A. B. 
 
 H county, ss. H 
 
 At a court holden before me, on this day, A. B. against 
 C. D. the latter having been arrested by virtue of a war- 
 rant issued upon the complaint of the said A. B. and brought
 
 11(3 
 
 before me to answer to said complaint, wherein the said A. B. 
 allegeth that she is, and for more than months hath been 
 a single woman, that she is pregnant and with child, begotten 
 upon her body on or about the day of by the said 
 C. D. which child when born will be a bastard, and that the 
 said C. D. is the father of said child ; and the said C. D. being 
 required to answer to said complaint says he is not guilty, 
 and puts himself on the court for trial ; and the said com- 
 plainant doth the same ; and having fully heard the parties 
 with their witnesses, and examined the said complainant on 
 oath, I am of opinion that the said C. D. is guilty, as charg- 
 ed in said complaint, and it is thereupon considered, that 
 the said C. D. become bound in a recognizance with suffi- 
 cient surety unto the said A. B. in the sum of 
 dollars, conditioned that he appear before the next county 
 court to be holden at within and for the county of 
 
 on the Tuesday of then and there to 
 
 answer to the charges contained in said complaint, and 
 abide the decision of said court thereon, and stand commit- 
 ted until sentence be complied with. 
 
 Recognizance. 
 
 You C. D of named in the aforesaid complaint 
 
 as principal and E. F. as surety, acknowledge yourselves 
 jointly and severally bound to A. B. of named in 
 
 the foregoing complaint, in a recognizance of 
 dollars, that the said C. D. shall appear before the county 
 court to be holden at in and for said county on 
 
 the Tuesday of A. D. and then and 
 
 there answer to the charges contained in the aforesaid com- 
 plaint, and abide the decision of said court thereon. 
 
 Taken and acknowledged in H this 
 
 day of A. D. before me. 
 
 J. P. justice of the peace. 
 
 If the party neglects or refuses to recognize he must be 
 committed. 
 
 Mittimus. 
 
 To the she riff &,c. Greeting. 
 
 Whereas C. D. of was this day brought before- 
 
 me by virtue of a warrant issued on the complaint of A. B. 
 of wherein the said A. B. complains that on or
 
 117 
 
 about the day of she was begotten witf. 
 
 child by the said C. D. with which she is now pregnant, 
 th.it she was at that time and still is a single woman ; that 
 rtie said C. D. is the father of said child, which when born 
 will be a bastard ; and the said C. D. being required to 
 answer to said complaint, said he was not guilty, and put 
 himself on the court for trial : and the complainant like- 
 wise ; and having heard the parties with their evidence, 
 and examined the said A. B. on oath, did find that the 
 said C. D. was guilty, as alleged in said complaint : 
 whereupon it was considered that he become bound with 
 sufficient surety, in a recognizance to the adverse party 
 the said A. B. in the sum of dollars, that he appear 
 
 before the county court to be holden at H in and 
 
 for the county of H on the day of 
 
 then and there to answer to said complaint, and abide the 
 decision of said court thereon ; and the said C. D. having 
 neglected and failed to recognize with surety as required : 
 These are therefore by authority of the state of Con- 
 necticut, to command you forthwith to convey the said 
 C. D. and him commit into the custody of the keeper of 
 the eaol, in and for said county of who is hereby 
 
 commanded to receive the said C. D. and him safely keep 
 in said gaol, until delivered by due course of law ; and you 
 are also to leave with said keeper this mittimus. Hereof 
 fail not, but due service make. 
 
 Dated &c. J. P. Justice of the Peace. 
 
 Complaint after delivery. 
 
 To J. P. Esq. of the town of justice of the 
 
 peace for H county, comes A. B. af in said 
 
 county, and complaint makes, that on the day of 
 
 she was delivered of a female child, which is a 
 bastard and begotten upon her body as she saith by C. D. 
 of on or about the day of ; 
 
 that when said child was begotten she wa^j and ever since 
 hath been a single woman ; and she further saith that dur- 
 ing her travail with said child, she was put to the discov 
 ery of the truth as to who was the father thereof, and that 
 she then accused the said C. D. of having begotten said 
 child of her body, on or about the said day of 
 
 and that she hath ever since continued constant and ani
 
 us 
 
 form in her accusation against the said C. D. and that she 
 hath at all times charged him with being the father of said 
 child. And the complainant saith that said child is now 
 living and that she is subjected to great expense for its 
 maintenance ; and the complainant prays process against 
 the said C. D. that he may be arrested and examined touch- 
 ing the charges herein, and be dealt with agreeably to the 
 statute in such cases provided. 
 
 Dated at &c. A. B. 
 
 The oath, warrant, state duty and bond, the same as the 
 preceding. The judgment or record will vary from the 
 foregoing only in reciting the complaint, which must be 
 set out as it is alleged. The recognizance and mittimus 
 will be the same. 
 
 Complaint by Select-men. 
 
 To. J. P. Esq. of H justice of the peace for the 
 
 county of comes A. B., C. D. and E. F. a major- 
 
 ity of the select-men for said town of H in said 
 
 county of H and in the name and behalf of said 
 
 town of II complain that G. H. of said town of 
 
 H on the day of at said H 
 
 was delivered ofa malechild, born of her body, and that the 
 said G. H. now is and for more than ten months before the 
 birth of said child was a single woman. And they further 
 complain that said child was begotten upon the body of 
 the said G. H. by J. N. of on 
 
 or about the day of at H , 
 
 that said child is now living and a bastard, and chargeable 
 (or likely to. be chargeable) to said town of H , 
 
 that said G. H. hath neglected and doth still neglect and 
 decline to bring forward a complaint or suit to recover 
 maintenance for said child, and that the said G. H. and the 
 said J. N. have neglected and declined to give bond to in- 
 demnify said town against the maintenance of said child ; 
 wherefore said complainants in the name and behalf of 
 said town, pray that process may issue against the said J. 
 N., that he may be arrested and examined touching the 
 premises, and be dealt with therein, agreeably to the 
 statute in such case provided. 
 
 [To be signed by the Select-men.)
 
 NUMMARY PROCESS TO RECOVER POSSESSION O#* HOUSES 
 OR LANDS. 
 
 To J. P. Esq. justice of the peace for the county of 
 H , comes A. B. of H , in said county, and 
 
 makes complaint, that he is owner of certain messuage, 
 consisting of a dwelling-house, out buildings, and the yard 
 and garden appurtenant thereto, situated in said 
 and bounded and described as follows, viz (describe the 
 premises) : that on the day of he leased 
 
 the same by poral lease to C. D. of said H for the 
 
 term ot months, next following, and the said C. 
 
 D. entered into the possession of the same ; that after- 
 wards viz. on the day of the complainant 
 drew a written notice in the words and figures following, 
 viz. I hereby give you notice that you are to quit pos- 
 session of the house, (land or apartment as the case may 
 be) now occupied by you, on or before the day of 
 
 A. D. Dated at H the 
 
 day of A. B. 
 
 [The time in the notice must be thirty days or more.] 
 And the complainant saith that he made duplicate cop- 
 ies of said notice, one of which he left on the day of the 
 date thereof, at the said residence of the said C. D. (or de- 
 livered to him) in the presence of one credible witness ; 
 and the other he hath in possession, ready to be produced 
 in court ; and the complainant farther informs that said C. 
 D. hath not quit said dwelling house, although the time on 
 or before which, he was, so as aforesaid notified to quit the 
 same, hath elapsed, and although he has been often re- 
 quested, and demanded so to do ; but he doth neglect and 
 refuse to quit said premises ; whereupon the complainant 
 prays that the said C. D. may be summoned to appear be- 
 fore your worship to answer to this complaint, and show 
 reasons, if any he hath, why he should not quit said prem- 
 ises ; and also prays that six disinterested freeholders of 
 said town of H may be summoned to appear before 
 
 your worship at the time and place the said C. D. may 
 be summoned to appear and answer to said complaint, t 
 enquire whether the said C. D. is the lessee of the com- 
 plainant and holds over the term of his lease, and also 
 whether notice has been given to the l said lessee to quit 
 said premises as aforesaid, agreeably to the provisions of
 
 120 
 
 the statute in such case provided, and whether said C. D. 
 has held possession of said premises since the expiration 
 of said term, as stated herein. 
 
 Dated at &c. A. B. 
 
 To the sheriff of H 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 me the undersigned 
 authority, at my office in said town of H on the 
 
 day of at o'clock, P. M. then and there 
 
 lo answer to the foregoing complaint of A. B. and shew 
 reason, if any he hath, why he should not quit the posses- 
 sion of the premises described in said complaint, and leas- 
 ed to him by the said complainant. Hereof you are not to 
 fail, but make due service and return. Dated &c. 
 
 1 he said A. B. as principal, and E. F. as surety, recog- 
 nize jointly and severally in the sum of dollars for 
 prosecution, before me. 
 
 J. P. justice of the peace. 
 Plea, not guilty. 
 
 Venire, or summons for Jury. 
 
 To the sheriff of &c. Greeting : 
 
 By authority of the state of Connecticut you are hereby 
 commanded to summon or cause to appear before me the 
 undersigned authority on the day of A. D. 
 
 at my office in H in said county at o'clock, P. M. 
 
 of said day, six disinterested freeholders of said town of 
 
 then and there to enquire whether C. D. of 
 is lessee of A. B. of of a certain messuage, con- 
 
 sisting of a dwelling house, out buildings, &c. situated in 
 said H and bounded and described as follows, 
 
 and whether the said C. D. holds over his 
 lease, and also whether said C. D. has been notified to 
 quit the possession of said premises agreeably to the re- 
 quirements of the statute in such case provided ; and like- 
 wise whether the said C. D. hath held possession of said 
 premises, after the time at or before which, he was noti- 
 fied to quit the possession thereof. Hereof fail not &.c. 
 Dated &c. J. P. justice of the peace."
 
 isn 
 
 Officer's return. 
 H county, ss. H 
 
 By virtue hereof I summoned the six freeholders whose 
 names are hereunto annexed, all of said H and dis- 
 
 interested between the parties, and in the matter mentioned 
 herein, to appear at the time and place named within. 
 [Here annex their names.] 
 
 C. P. constable. 
 [Oath to the Jurors same as in civil cases.] 
 
 Verdict. 
 H county, ss H 
 
 A. B. against C. D. complaint for holding over term of 
 lease. In this case the jury find that the said C. D. is the 
 lessee of the complainant, that notice in writing agreeably 
 to the statute has been given him to quit, that he holds over 
 his lease, and also, that he holds possession since the time 
 at or before which, he was notified to quit, as the com- 
 plainant hath alleged. 
 
 [Signed by all the Jurors, one signing as Foreman.] 
 
 Record of Judgment. 
 II county ss. II 
 
 At a court holden before J. P. Esq. of aforesaid. 
 
 one of the justices of the peace of said county, on thi> 
 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 <jjf 
 
 (a) St. 132.
 
 189 
 
 the statutes, it was a part of the constable's oath, copied 
 from that used in Eng[and, that he would " preserve the 
 public peace of the place for which- he was appointed, and 
 of this state, and to the best of his endeavours, see all 
 watches and wards executed and duly attended." Sheriffs 
 are constituted by statute, conservators of the peace within 
 their counties, and are expressly authorised with force and 
 a strong hand when necessary, to suppress all tumults, ri- 
 ots, routs, and unlawful assemblies, and to apprehend with- 
 out warrant, those who are in the disturbance of the peace, 
 and to carry them before any justice of the peace of the 
 county, that they may be proceeded against according to 
 law, and as the nature of the offence may require (e). For- 
 merly, the statute giving these powers to Sheriffs, contain- 
 ed an express provision, giving to Constables the same au 
 thority and powers within their towns, as were conferred on 
 Sheriffs within their counties ; but this provision was omit- 
 ted^it the revision. In the act relating to Constables, novr 
 in force, it is provided that they shall have the same pow- 
 er within their own towns, to serve and execute all lawful 
 writs, precepts and warrants, directed to them, as sheriffs 
 hare within their counties, and shall be liable in the same 
 manner for any neglect, default or misconduct in their of- 
 fice. This provision, givingto Constables the same authority 
 within their towns as Sheriffs have within their counties, 
 extends only to the service of writs, and the execution of 
 process ; but as they possess at common law the same pow- 
 er as conservators of the peace within their precincts, as 
 Sheriffs do within their's, and as the same authority was 
 expressly given to them by statute until the revision, and 
 is not now expressly restrained, it is hardly to be supposed 
 that the legislature intended to take away or restrict the ' 
 authority they possess at common law as conservators of 
 the peace. 
 
 (/) At common law, Constables not only have the pow- 
 er, but it is their duty, to arrest all persons who break the 
 peace in their presence, and to endeavour to part all per- 
 sons engaged in affrays, and arrest them when necessary, 
 for which purpose they may command the assistance of 
 others, and all persons refusing to obey, are liable to be pun- 
 ished by fine and imprisonment. They may arrest all pet' 
 
 (e) St. 15. (/)4Blac. Com. 292,
 
 190 
 
 sons who contend with hot and angry words, and threaten 
 to beat, kill, or offer bodily harm to another, and detain 
 them until their heat be over, or carry them before a jus- 
 tice of the peace, that they may be proceeded against ac- 
 cording to law ; hut such justice cannot fine them, or order 
 then; under bonds to keep the peace, without a complaint 
 in writing is presented against them, and a warrant, by 
 which they must be arrested. If an affray occur in a 
 house, Constables may break open the doors to sup- 
 press it, and preserve the peace ; and if the affrayers 
 fle? into another house, and they are followed by the 
 Constables in fresh pursuit, they may break open the doors 
 of tho house to which they retreat, to take them (g). 
 
 Such persons as go armed with offensive and dangerous 
 weapon:-:, or accompanied with unusual attendants, to the 
 terror of the people, may be arrested by a Constable or 
 Sheriff, and taken before a justice of the peace. Consta- 
 bles, as well as justices ofthe peace, and Sheriffs, are au- 
 thorized and required to suppress riots, and when three or 
 more persons come together to do an unlawful act with 
 force and violence, against the peace, or to the manifest 
 terror ofthe people, it is their duty to resort to the place, 
 or as near as they can safely come to such rioters, and with 
 an audible voice command, or cause to be commanded, si- 
 lence, while proclamation is making, and thereupon make 
 proclamation in these words, or to the like effect : " In 
 the name and by authority ofthe State of Connecticut, I 
 charge and command all persons assembled immediately to 
 disperse themselves, and peaceably to depart to their habit- 
 ations, or to their lawful business, upon the pains and pen- 
 alties ofthe law." And if, after such proclamation has been 
 made, the persons so unlawfully and riotously assembled, 
 shall not disperse, the Constable or other officer making 
 such proclamation, is authorized to command assistance, and 
 to seize and apprehend such persons so unlawfully contin- 
 uing together, and forthwith carry them before a justice of 
 peace, that they may be proceeded against according to law. 
 And if in dispersing or apprehending such rioters, or in at- 
 tempting to do the same, any of them shall be killed, maim- 
 ed or hurt, by reason of their resistance, such Constable or 
 other officer, and all persons aiding him, shall be discharg- 
 
 (/?) 1 Root, 66.
 
 <! and indemnified for such killing or injuring, as well 
 against the public as against all persons whatsoever (6). 
 
 2. May arrest felons without warrant. 
 
 A Constable may arrest felons and criminals without a 
 warrant ; and also persons charged, where a felony has ac- 
 tually been committed, and there are probable grounds of 
 suspicion against them, although they do not turn out to be 
 guilty (c). When a felony has been committed, a Consta- 
 ble may arrest and imprison the felon if necessary, until he 
 can be carried before a justice of the peace, and complaint 
 be made against him ; and after demand of entrance and re- 
 fusal, he may break open doors to arrest the felon ; and if 
 in attempting to make such arrest, the Constable or any 
 person coming to his assistance, notice of the cause of his 
 coming having been given, is killed, it is murder ; and if 
 the felon make resistance, so that he cannot be taken, and 
 he be killed by the Constable or other person coming to 
 his assistance, it is justifiable homicide (d}. A private per- 
 son, likewise, who is present when any felony is commit- 
 ted, can not only be justified in arresting the felon, but if 
 he escape through his negligence, he subjects himself to 
 fine and imprisonment ; and he may justify breaking open 
 doors to arrest such felon ; and if the felon cannot be oth- 
 erwise taken, and he be killed, it is justifiable ; but if the 
 felon kill the person attempting to arrest him, it is mur- 
 der (e). A private person may also make an arrest on prob- 
 able suspicion, but cannot justify breaking open doors to 
 do it ; and if no felony has been committed, or the person 
 arrested on suspicion is notguilty, he cannot be justified (Vi). 
 
 Constables are empowered and required, without war- 
 rant, to apprehend all persons who are guilty of a violation 
 of the Sabbath, provided they are taken on sight or imme- 
 diate information of others, and to carry them before a justice 
 of the peace ; and for this purpose, they may command all ne- 
 cessary assistance, and any person refusing to afford assist- 
 ance, incurs the same penalties as for refusing to assist 
 Sheriffs and Constables in the execution of their office. It 
 is also their duty to apprehend without a warrant, upon per- 
 sonal view, all persons who sell or expose for sale any spir- 
 
 . (b) Stat. 384. (c) 4 Blac. Com. 292. (d) 5 Co. 91,4 Blac. Com. 292. 
 (e) 2 Hal. P. C. 77. (h] 4 Blac. Com. 293.
 
 195 
 
 itous or other liquors, or articles of prorision, in a tent, 
 waggon, or any other way, except persons regularly li- 
 censed at their store or dwelling house, within two miles of 
 an assembly of people convened for religious worship in 
 the field ; and to carry them before the next justice of the 
 peace, that they may be dealt with according to law ; 
 whereupon such Justice, on the oath of the officer appre- 
 hending such offenders, sh .11 issue a warrant, and cause 
 them to be arrested, and proceed to a hearing and trial of 
 such matter of complaint according to the due course of 
 law (g-). 
 
 3. It is the duty of Constables to assist the moderator in 
 preserving order, on being requesting by him, in ail town 
 and society meetings. Where any person or persons dis- 
 turb any electors', town or society meeting, or the meet- 
 ings of any other communties in which a moderator is cho- 
 sen, and presides, by making or causing any noise, tumult, 
 or quarreling, whereby such meeting is prevented from 
 proceeding in a peaceable and orderly manner to the choice 
 of a moderator ; or if after such choice, any person shall 
 abuse or interrupt the moderator in the discharge of his 
 duty ; or after the moderator has commanded silence, shall 
 speak in such meeting without liberty from the moderator, 
 except to ask permission so to do, each person so offending 
 incurs a forfeiture of not less than one, nor more than sev- 
 en dollars ; and in all such cases, it is the duty of any Con- 
 stable, Sheriff, or deputy Sheriff, on being ordered or re- 
 quested by the moderator or presiding officer in such meet- 
 ing, and in case such offenders refuse to submit to the au- 
 thority of the moderator, to take them into custody, and if 
 necessary, to remove them out of such meeting, and to detain 
 them until they conform to order ; and if need be, until the 
 meeting is closed. Such Constable, or other officer, has 
 power to command all necessary assistance, as in cases of 
 preserving the peace and suppressing riots, and any person 
 refusing to assist when so commanded, shall be liable to the 
 same penalties as for refusing to assist sheriffs and consta- 
 bles in the execution of their office ; provided that no per- 
 son commanded to assist shall be deprived of his right to 
 vote in such meeting, nor such offenders, any longer than 
 they refuse to conform to order (t). 
 
 (g) Stat. 327. (t) Stat. 326.
 
 193 
 
 4. -Uf their authority as informing officers. 
 Constables" are authorized to act as informing officers in 
 certain cases, especially provided for by different statutes, 
 but their seems now to be no general provision giving them 
 this authority. Previously to the revised statutes, they 
 were required to make diligent search after tiplers, retail- 
 ers of strong drink without license, and such as^frequent 
 taverns and spend their time idly, and to warn them to for- 
 bear, and to warn such persons as keep such houses not to 
 suffer any such individuals to frequent them ; and were al- 
 so directed to make due presentment of all breaches of 
 law coming to their knowledge, to some proper authority, 
 once in every month. Under this authority, which ap- 
 pears to be somewhat restricted, Constables made present- 
 ment of all crimes and offences which occurred within 
 their towns ; but there is now no general law directing or 
 authorising Constables to make presentment of crimes ; 
 they cannot therefore possess the authority to act as in- 
 forming officers, except in particular cases, where they are 
 expressly empowered. And if they do not possess this 
 authority by statute, it certainly cannot be claimed as per- 
 taining to their office at common law, as in England, consta- 
 bles have no power whatsoever as prosecuting officers, nor 
 is there any such officer known to their laws ; a present- 
 ment can only be made by a grand-jury, and the only infor- 
 mations known, are those filed ex-ojjicio by the attorney 
 general, in the name of the king, those in which the king 
 is only a nominal prosecutor, being filed by the master of 
 the crown office, at the relation or complaint of some pri- 
 vate individual or common informer, or informations qui- 
 tam in the name of the king, and a subject, similar to qui- 
 tam informations here. Moreover, the act relating to grand- 
 jurors, provides that for all crimes, except capital offences, 
 and those punishable with imprisonment in Newgate prison 
 for life, in which cases a bill of indictment must be found by 
 a grand-jury, presentment may be made by grand-jurors, 
 or information may be exhibited by the attorney for the 
 State, in the county where the crime was committed. This 
 provision seems negatively to take away the authority of 
 Constables to act as informing officers, by directing that all 
 crimes where an indictment is not required, may be prose- 
 17
 
 194 
 
 cuted by presentment or complaint of a grand juror, or in- 
 formation by the attorney for the State. 
 
 Constables may act as informing officers for all breaches 
 of the Sabbath, for all offences against the act. relating to 
 licensing and regulating taverns, and suppressing unlicens- 
 ed houses, for disturbing any religious meeting, whether on 
 the Sabbath or any other da}', for selling spiritous or other 
 liquors, within two miles of any assembly of people in the 
 field for religious worship, and for the prosecution of com- 
 mon drunkards, common idlers, common prostitutes, vaga- 
 bonds, and other offenders who are liable to be sentenced 
 to the work-house and house of correction, and perhaps in 
 some other cases, especially provided for. 
 
 CHAPTER II. 
 
 Of the powers and duties of Constables ascollcctors of lazes, fyc. 
 
 I . The State taxes must be collected by a Constable, as 
 the law requires that one Constable shall be appointed in 
 each town to collect the State taxes ; town, society and oth- 
 er taxes may be collected by any person who may be cho- 
 sen a collector, but it is customary to appoint constables to 
 collect all town taxes. The practice is, to appoint one of 
 the constables of each town, collector of the State taxes, 
 and one or more collector of the town taxes. It is the du- 
 ty of the town clerk in each town, annually, in the month 
 of May, to return to the treasurer of the state the name of 
 the constable appointed to collect the state taxes ; and for 
 neglect, he forfeits four dollars. It is the duty of the treas- 
 urer to make out and send his warrants, directed to the 
 collector of any tax granted by the general assembly, in each 
 town, at least three months before the time of payment of 
 such tax, commanding him to levy, collect, and pay the same 
 into the treasury of the state by the time appointed ; where 
 no time is fixed for payment, the tax must be paid before 
 the last day of August in each year. The collectors of 
 town taxes must collect and pay them to the treasurer of 
 the town by the time limited. 
 
 When a town tax is voted, it i? the duty of the select-
 
 men to make out rate-bills for the same, under their hands, 
 specifying the proportion each individual is to pay accord- 
 ing to the list, and to apply to a justice of the peace, whose 
 duty it is to issue a warrant for the collection of such tax, 
 directed to the collector appointed for that purpose. The 
 form of a warrant for the collection of taxes, is given in the 
 statutes, page 245, which renders it unnecessary to give one 
 in this work. A tax-warrant gives a collector the same 
 power to levy and collect the tax, as an execution does to 
 an officer to levy and collect the amount of a judgment ; 
 he can, if necessary, command the assistance of others in 
 the same manner, and any person refuging to assist him in- 
 curs the same forfeiture as for refusing to assist a sheriff or 
 constable in the execution of his office, provided the col- 
 lector shall shew and read his warrant to the persons whose 
 assistance is commanded. A collector must also proceed 
 in nearly the same manner in the collection of taxes, as an 
 officer does in the collection of an execution. Before an 
 officer can levy an execution, he must make demand of the 
 debtor of payment of the same ; and a collector, before he 
 can levy for a tax, must appoint a time and place for receiv- 
 ing the tax, and give to every person against whom a tax is 
 made, reasonable warning and opportunity to pay the same- 
 A question may arise under this provision, as to what is a 
 reasonable warning and opportunity, or whether a general 
 warning of the time and place, by advertisement in the pub- 
 lic papers, or notice posted upon the signposts and at pub- 
 lic houses, in the town, would be sufficient to justify a col- 
 lector in making a levy. As it i provided that the collect- 
 or must give to every person, reasonable warning and oppor- 
 tunity, it would seem that they must have actual notice of 
 the tax in the hands of the collector, and reasonable op- 
 portunity to pay the same. It is evident that a general no- 
 tice in either of the ways mentioned, or any other, might 
 not convey notice to many individuals whose names were 
 in a tax bill, who consequently would have no warning or 
 opportunity afforded them to pay their taxes. The clause 
 " on failure of payment," taken in connection with the pre- 
 ceding part of the sentence, means, failure of payment after 
 reasonable warning and opportunity have been given. 
 There must be some neglect or default therefore, on tke 
 part of the person against whom the tax is made, before his
 
 property can be taken. Actual notice and demand, with a 
 reasonable time allowed to pay the tax, it would seem 
 would justify the collector in making a levy, without an\ 
 appointment of a time and place of receiving the taxes gen- 
 erally, as the object of the appointment of a time and place, 
 is to give the persons warning, and an opportunit}' to pay 
 their taxes, and actual notice and demand is answering this 
 object more effectually ; besides "iuch notice and demand, 
 with a reasonable opportunity, is appointing a time and 
 place to each individual. No levy or distress can be made 
 for any state tax, until within two months of the time the 
 tax is payable. 
 
 When it becomes lawful for the collector to levy his war- 
 rant, he must take goods or chattels if they can be found, 
 and proceed with them in the same manner as where per- 
 sonal property is taken on execution. If no goods or chat- 
 tels are tendered, or can be found, the collector may levy 
 his warrant on the real estate, or the body of any person 
 against whom a tax is made, and commit him to gaol, where 
 he must remain until the tax and costs are paid, or he is 
 discharged by due course of law. The person committed 
 to gaol may give notice, or cite one or more of the select- 
 men of the town, and take the benefit of the oath provided 
 for poor debtors, in which case the town becomes respon- 
 sible for the tax, and the costs occasioned by the commit- 
 ment, and if such town neglect or refuse to pay the same, 
 the collector has a right of action to recover the amount of 
 the tax and cost, of such town, provided the commitment be 
 made within eight months after such tax becomes due and 
 payable. But demand must be made of the town before an 
 action can be brought. And the collector is entitled to the 
 same fees as is allowed to sheriffs for the levy of executions. 
 When a collector levies his warrant on real estate, he must 
 advertise the time and place of sale, three weeks in a news 
 paper printed in the same county or an adjoining county, 
 six weeks before the time of sale ; and at the time and place- 
 he must sell at public auction, sufficient estate to pay the 
 tax, costs and charges, and give to the purchaser a warran- 
 tee deed thereof, to be lodged in the office of the town 
 clerk, where the land lies, but to remain unrecorded twelve 
 months ; during which period, the owner, a creditor of the 
 owner, a mortgagee of such land, a purchaser, or any other
 
 197 
 
 person claiming any interest therein, has a right to tender 
 to such purchaser the amount of the purchase money, with 
 twelve per cent interest, whereby such deed becomes void, 
 and must be delivered up to the person tendering or paying 
 the money. But if the purchase money and interest is not 
 paid within the year, the deed is to be recorded, the title 
 is confirmed and complete. Where the person against 
 whom the tax is, possesses only the interest of a mortgagor, 
 or an equity of redemption in land, a sale cannot be made by 
 metes and bounds, for any tax arising upon a list made up 
 after the execution of such mortgage, btjt the collector 
 must sell such proportion of the interest of the mortgagor 
 against whom the tax is made, as the amount of the tax and 
 charges bears to his whole interest in the mortgage premi- 
 ses. But for a tax arising upon a list made before the ex- 
 ecution of a mortgage, the land may be sold by metes and 
 bounds, the same as in other cases, provided the person has 
 no other estate or lands, whereby the tax may be satisfied. 
 An estate less than a fee simple, either for life or a term of 
 years, may be sold for taxes, whilst it belongs to the person 
 against whom the tax is made, but any estate in land, less 
 than a fee, is not liable to be sold for taxes, after it has been 
 transferred, or attached ; neither is the interest which a 
 person has in the right of his wife. But the real estate of 
 which any person is seized and possessed in his own right 
 in fee, stands charged with his lawful taxes, and may be 
 sold for the same within one year after the taxes become 
 due, notwithstanding any transfer thereof, or attachment 
 thereon, provided such tax arose upon a list made up before 
 the transfer or attachment, or other lien upon the land took 
 place, and provided no other real estate, or personal, of such 
 person, can be found sufficient to satisfy such taxes and the 
 legal costs. In such cases the land transferred or attached, 
 is liable not only for the amount of any tax which arose 
 upon that part of the person's list arising from the assess- 
 ment of the same land, but for the whole of his taxes arising 
 upon a list made before the transfer of the land. No prop- 
 erty which is by law exempted from being taken on execu- 
 tion for debt, can be distrained by a warrant for taxes. 
 
 Collectors have the same authority in other towns, as in 
 that for which they are chosen, to collect taxes of non-res- 
 idents, or persons residing in such towns, against whom 
 17*
 
 198 
 
 they have taxes in their rate-bills, and may at anytime col 
 lect such taxes after the expiration of the year for which 
 they are appointed. 
 
 The civil authority and select men of each town are au- 
 thorised to abate the one eighth part of all State taxes, and 
 to apply the same for the relief of the indigent or the unfor- 
 tunate in the abatement in whole or in part of their partic- 
 ular rates, and a certificate of such abatement being made 
 by the civil authority and select-men, the treasurer must 
 allow the same to the credit of the collector of such tax. 
 But such eighth part must actually be abated, and not in 
 whole or in part collected and retained in the town treasu- 
 ry, as this would defeat the object of the law, which is to 
 relieve the indigent and unfortunate, and if such abatement 
 was not actually made, the certificate would be untrue. A 
 further abatement may be made, but the town will become 
 responsible for the amount thereof. 
 
 When the collector of any State tax shall neglect and fail 
 to pay and settle the same with the treasurer by the time 
 appointed, the select-men may bring a suit against him, in 
 the name of the town, and attach his whole estate, or his 
 person, and the whole estate of which he is possessed, 
 whether attached or not, shall be liable to answer the judg- 
 ment that may recovered against him, notwithstanding anj 
 subsequent disposition thereof by such collector, or any 
 subsequent demand or attachment by a creditor ; or the 
 State treasurer within four months, may issue an execution 
 against such collector. And if the collector of any town or 
 society tax shall fail to collect and pay the same by the 
 time limited, the select men of the town, or committee of 
 the society, may demand the arrearages due from any such 
 negligent collector, and on failure of payment, may apply to 
 a justice of the peace for an execution against him. And 
 such justice is authorised to issue an execution for the 
 amount of such arrearage against the goods and person of 
 such collector, to be levied in the same manner as execu- 
 tions issued on judgments. 
 
 Collectors of state taxes are entitled to three and a hall 
 per cent on all the monies they may collect and pay into the 
 treasury, and seven cents per mile for travel, provided 
 they make a full settlement with the treasurer within twen- 
 days after the time limited in their warrant for the collec-
 
 iion of any tax ; but if a settlement is not made within the 
 twenty days, the collector is not entitled to any compensa- 
 tion (a). 
 
 2. It is the duty of the Constables, in their respective 
 towns, to warn all the electors thereof, to meet on the first 
 Monday of April of each year, at the usual place of holding 
 elections, at nine o'clock in the morning. At least five 
 days warning previous to the meeting must be given ; which 
 may be done by posting up notice of such meeting on the 
 several sign-posts of the town, and at such other places as 
 they may deem necessary (6). 
 
 3. The Constables of each town, together with the civil 
 authority, select-men and grand-jurors, on the first Monday 
 of January, nominate the taverners for the town, and at the 
 same time choose by ballot such number of judicious free- 
 holders as is prescribed by law, to serve as jurors in the su- 
 perior and county courts the year ensuing. No person 
 can be a juror who has not a freehold estate set in the list 
 at nine dollars or more (c). 
 
 4. It is the duty of every Constable, on receiving a war- 
 rant from the clerk of the superior or county court, author- 
 ising and commanding him so to do, to summon such number 
 of the freeholders chosen for that purpose, as is specified 
 in such warrant, to attend and serve as jurors at any ses- 
 sion of such court. He must proceed to the office of the 
 town clerk, and in the presence of such clerk, or if he is 
 absent, in that of one of the select-men, or a justice of the 
 peace, draw out of a box containing the names of the seve- 
 ral jurors chosen for such town, written on separate pieces 
 of paper, the number of jurors he is directed to summon, 
 without seeing the names he draws before he draws them, 
 ;ind thereupon he must summon the persons whose names 
 are so drawn, to attend and serve as jurors If any of the 
 persons whose names are drawn, are dead, he must draw 
 others in their room, aad summon them. He must return 
 his warrant to the clerk of the couft, with his endorsement, 
 certifying whom he has summoned, on pain of forfeiting to 
 the treasury of the county, a sum not exceeding five dollars, 
 at the discretion of of the judges of the court, unless he 
 shall make reasonable excuse to the acceptance of such 
 court (rf). 
 
 (n) Stat. 45! . (6) Stat. 185. (r) Stat. 45. (d) Stat. 45.
 
 Form of Return on a Warrant of the Clerk. 
 
 Fl count}' , ss. H day of A. U. then by virtue 
 
 hereof I proceeded to the office of the town clerk of the town 
 of H and in the presence of A. B. clerk of said town 
 of H , [or, he being absent, in the presence of C. D. 
 one of the select-men of said town, or justice of the peace] 
 and drew out of the box containing the names of the free- 
 holders chosen to serve as jurors for said town, the names 
 of the following freeholders, not having seen the same be- 
 fore they were drawn, viz. F. F., G. H., L. M., and O. P. ; 
 whereupon I summoned the said persons, so drawn from 
 said box, to attend on the day of the court then 
 to be in session at H , in and for the county of H 
 to serve as jurors in said court. 
 
 5th. Constables are authorized to sell creatures im- 
 pounded, in certain cases, when no owner appears. When 
 creatures are impounded, the owner of which is unknown, 
 it is the duty of the person impounding them to advertise 
 them, by setting upon the sign-post, in the town where they 
 are impounded, and in two adjoining towns, a description 
 of such creatures, with their natural and artificial marks, 
 and the place where taken ; and if a newspaper i printed 
 in the same or an adjoining town, by publishing such de- 
 scription in such newspaper, and if no owner shall appear 
 within five days after such creatures have been so adver- 
 tised, the pound-keeper may remove them from the pound 
 and procure them kept elsewhere, in such safe, and con- 
 venient manner, as he may think proper, without being 
 liable for their safe keeping ; and if no owner shall appear 
 within sixty days thereafter, the impounder shall call two 
 fence-viewers to view the fence of the enclosure where 
 the creatures were taken, and if they adjudge it not to be 
 a lawful fence, then such creatures shall be released, and 
 the person impounding them shall pay the expense ; but if 
 such fence is adjudged to be sufficient and lawful, the fence- 
 viewers shall estimate the damage done in such enclosure 
 by such creatures, and either constable of the town may 
 sell so may of them as will be sufficient to pay the dama- 
 ges, the poundage, and the reasonable expense of support- 
 ing and advertising them. TheViatural and artificial marks 
 of the creatures so sold shall be entered in the town clerk's 
 office, with an account of the charges, and the price for
 
 201 
 
 which they were sold, and the overplus, if any, after the 
 town clerk shall be paid for the entry, shall be delivered 
 to the town treasurer, to be kept for the owner, if he ap- 
 pears within one year, otherwise it shall belong to the 
 town (/i). 
 
 6th. In cases of sudden and untimely death, or where a 
 person is found dead, the manner of whose death is un- 
 known, if there be no justice of the peace in the town, any 
 constable thereof, may, of his own authority, summon a 
 jury of twelve judicious men, to inquire of the cause and 
 manner of the death of such person, and present a verdict 
 thereof to any justice of the peace of the county. Such 
 constable may administer an oath to the jury and direct 
 their proceeding in the same manner as a justice of thf 
 peace, when an inquest is instituted by his authority. 
 
 CHAPTER 111. 
 
 Of their Ferrer and Duty In Serving Civil Process. 
 
 The most important branch of the authority and duties 
 of Constables remains to be considered, and co sist of the 
 execution of process in civil and criminal cases. Con- 
 stables, as we have already stated, have the same authori- 
 ty for the service of process within their towns, as sheriffs 
 have within their counties. We will first examine the 
 ervice of civil process, commencing with original writs. 
 I. Of the Service rf Summojis. 
 
 This is a form of process, the most simple imaginable, 
 and the duty of the officer is equally plain and simple. A 
 summon may be legally served, either by reading the 
 same to the defendant named therein, or by leaving a true 
 copy thereof, with an indorsement or certificate to that 
 effect thereon made and attested, with the defendant or at 
 hi usual place of abode. Wherp there are two or more 
 defendants named in the writ, whether they are described 
 as partners having a company name or not, it must be 
 read or a copy left with each of them, where they are all 
 
 (h) St. 378.
 
 202 
 
 in this state, and the indorsement thereon made accord- 
 ingly- 
 All writs returnable to the supreme court of errors, the 
 superiour court, the county courts, and the city courts, 
 where the defendant resides out of the limits of the city, 
 must be served at least twelve days before the setting of 
 the court, the day of service being included, and the day 
 of the court being excluded ; and all writs returnable be- 
 fore justices of the peace or the city courts, where the 
 defendant lives within the city, must be served at least six 
 days inclusive before the setting of the court (*). In ac- 
 tions against a sheriff or constable for any default in his of- 
 fice, or on a receipt for an execution, the writ must be serv- 
 ed at least fourteen days inclusive as aforesaid, before the 
 day of the court. When any community or corporation is 
 sued before a justice of the peace, twelve days notice must 
 be given, the same as other writs returnable to the superi- 
 or or county courts. In actions against towns, societies, 
 or other communities, the service is to be made by leaving 
 a true and attested copy of the. w^rit with the clerk of the 
 same, or with either of the select-men of the town, or 
 either of the committee of societies ; and when other cor- 
 porations are sued service is to be made by leaving a like 
 copy with the clerk, secretary, or cashier of the same ; 
 and when any community or corporation incorporated by 
 authority of this st^te, transact their business in the same, 
 and have no clerk, secretary, cashier, or other officer, 
 residing therein, the writ is to be served by leaving a copy 
 with the agent of such corpoiwtion, residing in the state, 
 or if there be none, at the house or place where such 
 corporation transact their business and exercise their cor- 
 porate powers (Jk). 
 
 In actions on joint contract or securities where all the 
 defendants are not inhabitants of the state, the service of 
 the process on such of them as are, is sufficient to main- 
 tain the suit against all, and if any are aggrieved by the 
 judgment, they may be relieved by a new tri;d. 
 
 Where the defendant on being informed of the writ ac- 
 cepts service, it is not necessary to read it, but the en- 
 dorsement must be the same as though it was actually read 
 
 (i) St. 36. (fc)St. 131.
 
 203 
 
 ;o him. The copy left with the defendant must be cor- 
 rect, and if there is any essential variance from the original 
 it will abate. It is difficult to prescribe any precise rule 
 as to what shall be deemed a material variance ; but no 
 verbal variance between the copy and the original, will 
 render the service bad, and where the court, the time of 
 the session thereof, and the cause of action can b^yightly 
 understood, from the copy, the service will be good, not- 
 withstanding any errors therein, which do not effect the 
 merits of the cause (/). If the copy was defective, yet if 
 'be writ was also read to the defendant, the service will be 
 good, and the officer will be permitted to come into court 
 and amend or alter his endorsement, and certify that ser- 
 vice was made by reading. 
 
 A writ may be served on the last day of service at any time 
 before twelve o'clock at night: no writ can be served between 
 the setting of the sun on Saturday and twelve o'clock at 
 night on Sunday evening. The defendant can acknowledge 
 the service of a writ without the legal notice, before, or 
 during the session of the court, the same being entered on 
 the back thereof and subscribed by him ; but one defend- 
 ant, where there are two or more, cannot acknowledge 
 for his co-defendants, although they are partners and he 
 makes use of the company name ; neither can an attorney 
 make such acknowledgement unless specially authorized 
 for that purpose. 
 
 Where there are two or more defendants in a writ, part 
 belonging to one town and part in another, it may be ser- 
 ved by any constable on such of the defendants as reside 
 within the same, and then deliver to a constable in the 
 other town, and served on those of the defendants residing 
 therein. But the writ must be directed to any constable 
 of both, not to either constable of one such town or the 
 other ; and each officer must make an endorsement there- 
 on of his doings, and one of them return the writ. When 
 a writ is lawfully directed to an indifferent person he must 
 serve it in the same manner as a proper officer, and make 
 the like return. 
 
 2. Of the Service of Attachments. 
 
 It is the duty of an officer serving an attachment, to 
 
 (/) Swf. Dig. 611.
 
 204 
 
 make diligent inquiry and search within his precincts, loi 
 goods and chattels of the defendant, and if any can be found, 
 or are tendered to him by the defendant, to attach the 
 same to the amount specified in the writ, and take the same 
 into his possession. If with due diligence personal estate 
 could have been found and attached, and the officer neg- 
 lects to do it, but attaches the body of the defendant, and 
 afterwards such estate is disposed of, or attached by some 
 other creditor, and the execution issued upon the judg- 
 ment recovered in such action, is returned non est inven- 
 tus, or the body taken thereon and discharged from gaol 
 by taking the poor debtor's oath, the officer will be liable 
 to pay the debt and all the costs. But an officer is not 
 bound nor can he safely take personal estate where there 
 is not sufficient to satisfy the debt, unless authorized and 
 directed by the creditor, and would, without such direction, 
 become personally liable for the deficiency (in). But if he 
 takes the property in pursuance of the direction of the 
 creditor, he will be justified, whether it is sufficient or not. 
 He cannot take personal estate for part of the debt, and 
 then take the body of the defendant, and if he should so 
 do, it would be false imprisonment. But where the body 
 cannot be found, it is the duty of the officer to attach per- 
 sonal property, if there is not sufficient to satisfy the 
 judgment that may be recovered ; he must in such cases 
 take all the estate he can find ; if he neglects to do it, he 
 becomes personally liable (n). Where there is ground for 
 doubt as to the sufficiency of personal property , or whether it 
 belongs to the defendant, it would be advisable for the offi- 
 cer to call on the creditor to turn the property out to him 
 to be attached, so that if it proves insufficient, or not to be 
 the property of the defendant, he would be indemnified, 
 although the body might have been taken, and after judg- 
 ment, cannot be found on the execution ; for whatever the 
 officer may do by the special direction of the creditor, he 
 will be safe as respects any liability to him, & the creditor will 
 also be holden to indemnify him against any claims from a 
 third person's being the owner of any property taken by his 
 direction. But if the plaintiff refuses to turn out the prop- 
 erty or give any direction, it would seem that the officer 
 
 (m) 4th Day 438 (n) Swif. Dig. 590.
 
 205 
 
 must decide, at his peril, whether the property is suffi- 
 cient, or belongs to the defendant, and that if he mis-judges 
 and takes insufficient estate or property not belonging to 
 the defendant, when the body might have been taken, and 
 cannot be found on the execution, that he will be person- 
 ally liable in the one case to make up the deficiency, and 
 in the other, for the whole debt. Where an attachment 
 issues against two or more defendants, who are partners, 
 for a partnership debt, not the company property only, but 
 the separate property of each defendant is liable to be at- 
 tached, to satisfy the judgment, and if there was either part- 
 nership property or individual estate, of any one of the de- 
 fendants, which could have been taken, and the officer 
 neglects to do it, he makes himself liable in case the debt 
 is lost. But in a special partnership, formed in pursuance 
 of the late statute, the individual property of the special 
 partners is not liable to be taken on a partnership debt ; 
 the company property or the individual estate of the gen- 
 eral partners of such company must be attached, if suffi- 
 cient can be found. Where an attachment is issued against 
 a person for an individual debt, who is a member of a part- 
 nership, the partnership property cannot be attached and 
 held to be sold on the execution, as in other cases, but the 
 officer must attach the interest of the defendant, as one of 
 the partners, in the partnership property, subject to the 
 debts of the partnership, and a settlement of the partner- 
 ship account between the members thereof (o). It would 
 seem that the whole visible partnership property ought to 
 be attached, and such attachment will be a lien on the de- 
 fendant's interest in the partnership on a final adjustment 
 of the company concerns. If a second creditor attaches 
 the partnership interest of the defendant, he will have the 
 same lien thereon subject to the settlement of the part- 
 nership accounts, and the debt of the first attaching cred- 
 itor. 
 
 The stock or shares of any person in any bank, insur- 
 ance company, turnpike company, or other corporation, 
 may be attached, by leaving a true and attested copy of 
 the writ of attachment, with an indorsement thereon, that 
 such shares or stock have been attached, as in other cases, 
 
 (o) 2 Con. Rep. 514. 
 18
 
 ,-Ot; 
 
 with the defendant, or at his usual place of abode, if with- 
 in this State, and a like copy with the cashier of such bank, 
 or the secretary or clerk of such company, or corporation ; 
 and s He'll attachment will hold not only such shares or stock, 
 but all the interest, rents, or profits, which may have ac- 
 crued thereon, or may accrue previously to the sale of the 
 same on execution (p). 
 
 When visible personal property is attached it is the duty 
 of the officer to take it into his possession, and to remove 
 it out of the possession of the defendant ; and if he suffer 
 it to remain in the possession of the latter, it may be attach- 
 ed and held by other creditors, and the officer become per- 
 sonally responsible. He may, however, take a receipt for 
 the property, and let it remain in the defendant's posses- 
 sion ; the usual mode is for the defendant, with some other re- 
 sponsible person, to execute a receipt, acknowledging their 
 having received the property of the officer, and promising 
 to re-deliver the same to him on demand, at any time with- 
 in sixty days after the judgmept which may be recovered 
 in the suit. The attachment in such case 'has no effect to 
 prevent the same property's being attached by any other 
 creditor, or being sold to a bonajide purchaser, unless the 
 person who becomes receipt's-man for the defendant takes 
 the same into his possession. If the property is not re- 
 delivered the officer must look to the receipt, upon which 
 he can maintain a suit when he has been obliged to satisfy 
 the judgment recovered in the action, or is liable so to do ; 
 or is accountable for the property to the debtor. The 
 property whether "in the hands of the officer or the re- 
 ceipt's-man, is not holden to respond the judgment, but 
 sixty days after the same is rendered. And if the plaintiff 
 neglects to take out execution and make demand of the 
 property within that period, the officer and the receipt's- 
 man, where a receipt is taken and he has delivered the 
 property over to the debtor, will be discharged and the 
 property realized. And if the creditor lets the sixty days 
 expire without taking out execution or making any demand 
 on the officer for the property, the latter being himself dis- 
 charged from his accountability for the property, cannot 
 maintain an action against the receipt's-man for not deliv- 
 
 (p) St. 36.
 
 t-ring the property on a subsequent demand, if it iuis bcc.u 
 .lelivered over to the debtor (p). It" the execution issued 
 upon the judgment recovered in the action, is otherwise 
 ^atisfied, the officer may maintain an action on the receipt 
 on the ground of his liability to the debtor (</) ; and when 
 judgment is not rendered for the plaintiff, the officer may 
 recover against the receipt's-man if he is accountable for 
 the property to the debtor. In an action by an officer 
 against a receipt's-man it is a good defence for the defend- 
 ant to shew that the property did not belong to the debt- 
 or (r). Where property has been attached by one creditor 
 and taken into possession by the officer, or by the receipt V 
 ma-i, it may, notwithstanding, be attached by another cred- 
 itor, although the possession cannot be taken from the of- 
 ficer tirs t attaching it, or his receipt's-man ; yet it will bt 
 liable in their hands to satisfy the judgment that may he 
 i -red on the second suit ; and after the first has been 
 -atistied out of the estate, the residue is liable to be taken 
 - ild on the second execution (i). It is however 
 .ost convenient in such cases, to deliver the subse- 
 altachmente to the same officer. A contrary prin- 
 ciple has been adopted in Massachusetts, it having been 
 decided there that property which has been attached and 
 is in the hand? of an officer cannot be attached by another 
 creditor, because the second officer cannot obtain actual 
 possession of it. 
 
 If for want of goods of the debtor his body is attached, 
 and afterwards, before the expiration of the time of serv- 
 ing the writ, goods are discovered, the creditor may di- 
 rect the officer to release the body and attach the goods, 
 and if they are not within the precincts of such officer 
 the plaintiff may take the attachment out of his hands and 
 deliver it to another officer to attach such estate (f). In 
 such c/.ises it would be most proper and safe for the officer 
 to make an endorsement of his having attached the body 
 for the want of goods, and afterwards discovering personal 
 property, or the same being tendered to him, that he re- 
 leased the body and attached the estate. If after the body 
 of the defendant has been taken, goods sufficient to satisfy 
 
 (p)Kir. 40. (7) I Root 381. (r)3Con. Rep. 1 4 M. T. R. 224. 
 
 (*) 2 Con. Rep. 203. (t) I Con. Rep. 255.
 
 208 
 
 the debt are tendered, the officer is bound to take them 
 and release the body. When the defendant requests the 
 officer to attend him to the place where bis personal prop- 
 erty is, it is his duty to go, and if he refuses and takes and 
 imprisons the body he makes himself liable. When 
 personal property is taken, although insufficient and the 
 plaintiff directs the officer to attach the body, he will be 
 liable for false imprisonment (u). 
 
 Wherever personal property is attached, a copy of the 
 writ with an endorsement thereon, describing the property 
 attached, must be left with the defendant, or at his usual 
 place of abode, if within this state. If the defendant is 
 not an inhabitant or resident of this state, and has property 
 within the same which is attached, a copy must be left with 
 the agent or attorney of the defendant, if he has any in 
 this state. The attachment of visible property within this 
 state, where the defendant does not belong to the state, 
 gives our courts jurisdiction, and is sufficient service. 
 
 Where no personal estate can be found, the creditor 
 may direct the officer to attach the real estate of the de- 
 fendant if he chooses ; but unless so directed, it is the du- 
 ty of the officer to take the body. The defendant cannot 
 tender real estate to avoid the attachment of his body. 
 The plaintiff has his option to attach the land or take the 
 body of the defendant, or he may direct the officer to take 
 part personal estate and part real, but the officer cannot 
 be justified in doing this unless directed. Where land is 
 taken the officer must enter on to the same, to levy his 
 attachment, and without this the attachment would not hold. 
 When real estate is attached, a copy of the attachment, 
 with an attested endorsement made thereon, containing; a 
 description of the land attached, must be left with the de- 
 fendant or at his usual place of abode, if he belongs to 
 this state ; but if he is not a resident of this state, a copy 
 is to be left with his agent or attorney within this state ; 
 and in all cases a like copy must be left at the office of the 
 town clerk of the town where the land lies, which copies 
 must be left within seven days after the land i* attached, 
 and before the time expires for the service of the writ. 
 Where the defendant does not belong to this state and ha* 
 
 (w)Swf. Dig. 591.
 
 
 uo agent or attorney within the state, a copy must be left 
 with him who has the charge or possession of the estate 
 attached (TO). 
 
 Personal property is held by the attachment sixty days 
 after final judgment is recovered in the action, to respond 
 suchjudgment; and real estate attached, is held four months 
 after final judgment shall be obtained : and unless execution 
 is levied on the same within these periods, the property is 
 discharged from the attachment, unless the property attach- 
 ed was incumbered by a prior attachment, in which case 
 the creditor has the same period to levy his execution, af- 
 ter such prior incumbrance is removed If the execution 
 is levied on goods within sixty days after the judgment, it 
 will be sufficient, although they are not sold until after that 
 period ; but in case of real estate, the execution must be 
 levied, the land appraised, and the whole proceedings com- 
 pleted and recorded, or left for record within the four 
 months ; and where there are subsequent attachments, if 
 the execution on the prior judgment is levied within four 
 months, but the proceedings are not completed, and 
 recorded within that time, a title will not be obtained, 
 and the land may be held by the subsequent attaching 
 creditor. 
 
 When no goods or chattels can be found, and the creditor 
 does not direct the officer to levy on real estate, he must 
 take the bpdy of the defendant, if he can be found within his 
 precincts. If there are several defendants, they must all 
 be arrested. To constitute an arrest, there must regular- 
 ly be an actual touching of the body ; yet if the officer in- 
 forms the defendant that he has an attachment against him, 
 and says to him "you are my prisoner," and he submits 
 to his authority, it will be an arrest ; but words alone are 
 not vsufficient to constitute an arrest, unless the person sub- 
 mits, and recognises the authority of the officer over him, 
 A sheriff said to a person against whom he had a writ, meet- 
 ing him on horseback, "you are my prisoner," upon 
 which he turned back and submitted. This was held a good 
 arrest, although he did not touch him ; but if he had fled, 
 it would have been no arrest (a;). Where a person wa in 
 a room, and an officer having a writ against him, said to him 
 
 (w] Stat. 37. (*) Salk. 79. 
 18*
 
 210 
 
 " you are my prisoner," and he submitted, and the officer 
 had him under his command and in his power, it was held a 
 good arrest, although he did not actually touch him (A). It 
 is however, the safest and most advisable, in all cases, for 
 the officer to touch the person, as this furnishes conclusive 
 and indisputable evidence of the arrest. If an officer, ha- 
 ing a writ against a person, says to him, you are my prison- 
 er, or that he arrests him, yet the person does not submit, 
 but flees, or having a weapon in hi hand, keeps the officer 
 from touching him, and retreats into his house, this would 
 be no arrest, and the officer could not break the house to 
 take him. When an officer calls assistance, any person as- 
 sisting him may make an arrest as well a the officer, and 
 their touching the person to arrest him will be sufficient (i). 
 It is an ancient principle of the common law, that a man's 
 house is his castle, and that it cannot be broken, nor be en- 
 tered without leave, unless a door be open, to execute civ- 
 il process, whether to arrest his body or attach proper- 
 ty (fc). This legal inviolability, however, is confined to 
 the outer doors, and after an officer has legally entered a 
 house, he may, first making demand of entrance, break 
 open any inner door, or any trunk or chest, having demand- 
 ed them to be opened, to discover goods to attach. Con- 
 trary to the decisions in England, it has been decided by 
 the superior court in this State, that the door of the apart- 
 ment of each separate occupant in the same building is the 
 outer door as to such occupant and apartment, and cannot 
 be broken open (m^). This principle of sanctuary, or pro- 
 tection from arrest, is confined to dwelling-houses and their 
 apartments; barns, shops, stores, manufactories, and all 
 other buildings, unless so connected with the house as to 
 form an apartment thereto, may be broken open to arrest 
 the body or attach property. Neither does a dwelling- 
 house afford this protection, except to the occupant and the 
 members of his family. Not only a man's children and do- 
 mestic servants, but regular boarders, and those who have 
 made the house their home, are considered as members of 
 the family, and entitled to protection. But a stranger, or 
 a mere visitor, cannot claim protection ; neither can the. 
 
 (h) Bull, N. P. 62. (t) Swift's Dig. 592. (fc) 5 Co. 92. 
 (m) Swift's Dig. 593.
 
 goods of one person be secreted and protected in the house 
 of another ; and after first demanding entrance, and stating 
 the object of it, an officer can be justified in breaking down 
 the door, if necessary, to arrest a stranger, or to attach the 
 goods of any other person, except members of the family, 
 secreted or remaining in the house. Where a person has 
 been legally arrested, and escapes into his house, the offi- 
 cer may break open the doors to retake him. The bail, or 
 an officer or other person having authority from him, after 
 demand of entrance, may break open the door to take his 
 principal. 
 
 To constitute a breaking, it is not necessary that there 
 should be actual violence ; if the door is closed and 
 latched, although not made fast by locks or bars, and an of- 
 ficer opens it without consent, the entry is unlawful, and an 
 arrest void. If an officer rap on the door, and the owner 
 opens it to see who is there, and he forcibly rush in, with a 
 weapon, and make an arrest, the entry and arrest are un- 
 lawful. If an officer enters by stratagem and fraud, it will 
 be illegal. It has been decided by the superior court, that 
 where another person in connection with the officer, pro- 
 cured admission, by holding out false pretences, and dis- 
 guising his object, and who, when the officer came up and 
 rapped, opened the door, whereby he rushed in, that the en- 
 try was unlawful, and all concerned, trespassers. An officer 
 who entered a house down the chimney, has been adjudged 
 by the superior court to be a trespasser, and subjected to 
 heavy damages. If an officer raps at the door, and the usu- 
 al assent to enter is given by the owner, or any member of 
 the family, this is sufficient consent for him to open the 
 door and enter. 
 
 It has been considered that if a sheriff make an unlawful 
 entry, or break a house, to execute a writ, he may be sued 
 as a trespasser ; but that the service of the writ, notwith- 
 standing, will be good (a). This principle would seem al- 
 most entirely to render the protection nugatory. A differ- 
 ent doctrine has been adopted in this state ; it has been de- 
 cided by the superior court, that an officer, for taking goods 
 in pursuance of an unlawful entry, was liable in trespass 
 for the yalue of the goods (6). A person previously ar- 
 
 (a) 5 Co. 93. (b) Swift's Dig. 593.
 
 212 
 
 rested, and who hath escaped, may be retaken on Sunday, 
 or on Saturday or Sunday nisht, within the period in which 
 civil process may not be executed, and hail make, take his 
 principal and confine him until the next day, to surrender 
 him. 
 
 When a Constable or other officer takes the body of a 
 defendant on an attachment, it is his duty in all cases to 
 take sufficient bail if offered by the person arrested, and 
 if he neglects or refuses to do it, and commits the body to 
 gaol, it will be false imprisonment. He is not, however, 
 obliged to take bail, unless it is sufficient, which must be 
 one or more substantial inhabitants of this State, of sufficient 
 ability to respond the judgment that may be recovered in 
 the action. The bail must become bound to the officer in 
 a sufficient sum, conditioned that the person arrested ap- 
 pear before the court to which the writ is returnable, and 
 thereupon the person must be discharged from such arrest ; 
 and if he is detained in custody after bail has heen given, it 
 is false imprisonment (c). 
 
 It is the duty of an officer who has taken bail, to assign 
 the bail bond to the plaintiff on his request ; and no action 
 can be maintained against him, unless he refuse to assign 
 the bail-bond, or has taken insufficient bail (rf). 
 
 If the person arrested neglects, refuses, or is unable to 
 procure bail, he must be committed to gaol ; for which pur- 
 pose the officer must apply to any justice of the peace of 
 the county, and obtain a mittimus, stating the cause of his 
 commitment, by authority of which, he is to be kept in pri- 
 son until five days after the final judgment is rendered, and 
 if execution is not levied on him within that time, he is dis- 
 charged. A person committed to gaol on mesne process or 
 attachment, is entitled to the privilege of bail, at any time 
 previous to the session of the court, and it is'the duty of 
 the sheriff, having charge ofthe gaol, to take a bail ifoffer- 
 ed. and sufficient, and discharge the prisoner, and if he re- 
 fuses or neglects to do it, the detention is false imprison- 
 ment (e). 
 
 On an attachment against husband and wife, both must be 
 arrested ; but the wife may be discharged until the husband 
 procure bail for both. A minor, also, where he is lawful- 
 
 (c) Statutes, 62. (d) ib. 63. (e) ib. 62-
 
 213 
 
 ly sued as for torts or necessaries, is liable to arrest the 
 same as any other person. 
 
 Senators and representatives of the general assembly, are 
 by the constitution privileged from arrest on civil process, 
 during the session thereof, and for four days before and af- 
 ter any session. At all elections of officers of the State, or 
 members of the general assembly, the electors are privileg- 
 ed from arrest during their attendance upon, and going to, 
 and returning from the same, on any civil process (/t). No 
 member of congress, whether belonging to this state or any 
 other, can be arrested, except for treason, felony, or breach 
 of the peace, whilst going to or returning from any session 
 thereof. Jurors, parties, and witnesses, attending upon 
 any court, are privileged from arrest during their attend- 
 ance, and going thereto, and if arrested, may be discharged, 
 by motion to such court ; but the officer making such ar- 
 rest, is not liable for false imprisonment ; for the privilege 
 is considered as pertaining to the court and not to the per- 
 son in attendance ; and the court may at their discretion 
 punish '":.e officer or party procuring the arrest, for aeon- 
 tern* I (i). But the arrest of a member of congress, ot 
 t v .e legislature of this state, or an elector, in the cases sta- 
 ted, would be false imprisonment in the officer and the par- 
 ty procuring the arrest. 
 
 The law has extended its protection, also, to certain arti- 
 cles of personal propert\', which are protected from being 
 taken and sold to satisfy debts, arid which cannot lawfully 
 be attached. These consist of apparel, bedding, and house- 
 hold furniture, necessary for upholding life ; arms, milita- 
 ry equipments, implements of the debtor's trade ; one cow, 
 any number of sheep not exceeding ten, and two swine, 
 being the property of one person. And any person having 
 a wife or family, there is ih addition to these articles, an 
 exemption of any quantity of wood not exceeding two cords, 
 any quantity of hay not exceeding two tons, any quantity of 
 beef or pork not exceeding two hundred weight, any quan- 
 tity offish, not exceeding two hundred pounds, any quantity 
 of potatoes or turnips, not exceeding five bushels of each, 
 any quantity of Indian corn orrys not exceeding ten bushels 
 f each, or the meal or flour manufactured therefrom ; any 
 
 (A) Stat. 99. (i) Swift's Dig. 497.
 
 214 
 
 quantity of wool or flax, not exceeding twenty pounds of 
 each, or the yarn or cloth made therefrom, and one stove 
 and the pipe belonging thereto ; and also the horse, saddle 
 and bridle, of any practising physician or surgeon (a). One 
 pew in any meeting-house, being the property of one per- 
 son, is exempted from being taken and disposed of for debt 
 or taxes. All the aforesaid property, exempted from be- 
 ing taken for debt, is likewise protectdd from distress for 
 taxes. 
 
 The same notice must be given to the defendant on an at- 
 tachment as a summons, and all writs returnable to the su- 
 perior or county courts, must be returned forty-eight hour? 
 before the session of the court ; and those returnable be- 
 fore a justice ofthe peace, twenty-four hours. The supe- 
 rior and county courts may at their discretion receive writs, 
 although not returned until after that time, by disallowing 
 the officer's fees in the bill of cost. Where property is at- 
 tached, if the writ should not be returned in season, where- 
 by the suit should fail, and the same property had been 
 subsequently attached by other creditors, so that the debt 
 should be lost, the officer would be personally liable. 
 Where two or more attachments against the same defend- 
 ant, on the same or different days, that ought to be levied 
 first which is first received (6). 
 
 Where a person has been arrested on mesne process or 
 attachment, if, whilst the officer is conducting him to pris- 
 on, he is rescued or taken by force out of his custody, 
 he is not liable, and may return the rescue on the writ ; 
 for as he is bound to arrest the person whenever he can 
 find him, and as he cannot be supposed to apprehend re- 
 sistance, or be justified in always taking the posse comitatus, 
 or power of the county with him, it would be unreasonable 
 to make him liable (c). But on final process or execution, a 
 rescue is no justification to an officer, as he has an opportu- 
 nity to take with him the power of the county ; -inri on 
 me. s ne process, after the prisonei is within the wall ofthe 
 gaol, a rescue is no justification to the sheriff. Where 
 goods t;:ken on mesne process are rescued, the officer 
 is not liable, and may make return of the rescue ; but 
 if he takes goods on an execution and returns a rescue, 
 
 (a) Stat. 56. (b) I Ld. Raym. 252. (c) Cro. Jac. 419,
 
 he becomes liable to the amount of the goods (d). In case 
 of rescue on mesne process, the plaintiff has his remedy 
 against the rescuers only, whether the rescue is of the bo- 
 dy or goods ; but in a rescue on execution, he has a reme- 
 dy against the rescuers or the officer, and the officer can 
 also maintain an action against the rescuers. 
 
 3. Of service of foreign attachment. 
 Foreign attachment, or what is commonly called a factor- 
 ising suit, is the same as any other writ of attachment, ex- 
 cept that the defendant is described as belonging out of the 
 State, and as being an absent or absconding debtor, and 
 that there is a direction to the officer, to leave a copy of the 
 writ with a certain person who is the agent, debtor, factor, 
 trustee and attorney of the defendant, and has of the moneys 
 and goods of the defendant in his hands. If A is an absent 
 and absconding debtor, and B has goods of his in his posses- 
 sion, concealed, so that they cannot be attached, or is ow- 
 ing A., any creditor of A., may bring an action of foreign 
 attachment. It is not necessary that the defendant should 
 actually have absconded ; any person who is out of (he 
 State, or a person of any other State, and who hath never 
 resided in this State, who has property within this State 
 secreted in the hands of another person, or if any person 
 within this state is indebted to such debtor, a suit of foreign 
 attachment may be brought against him, and service made 
 by leaving a copy of the writ with such debtor of the ab- 
 sent debtor, or the person having his property. 
 
 It is the duty of the officer having a writ of foreign attach- 
 ment, to leave a true and attested copy thereof, at least 
 fourteen days before the session of the court to which it is 
 returnable /with the person who is described in the writ as 
 the absent and absconding debtor's attorney, factor, trus- 
 tee, agent or debtor, or at his or their usual place of abode, 
 agreeably to the direction of the writ ; and such service is 
 sufficient to give our courts jurisdiction. Where there are 
 two or more persons, whether partners or not, who are de- 
 scribed as the debtors, &c. of the defendant, a copy must 
 be left with each. 
 
 (d) Cro. Eliz. 639.
 
 4. Of service of Petitions. 
 
 All petitions or memorials to the general assembly, of an 
 adversary nature, or where any other person or persons 
 are concerned in the estate, matter or thing in controversy, 
 must have a citation annexed to such petition, signed by 
 any justice of the peace, with a certificate of two dollars 
 duty paid thereon, giving notice to the adverse party to ap- 
 pear and be heard, if he see cause ; and must be served by 
 leaving a copy of the petition and citation with the adverse 
 party, or at his or their usual place of abode, at least twelve 
 days before the same is returnable. And all petitions of 
 an adversary nature, to the general assembly, must be made 
 returnable on Tuesday next after the opening of the session, 
 and must be returned to the Secretary on or before the day 
 next preceding the day of return. 
 
 All petitions to the superior, county or city courts, must 
 be signed by the party, and a citation or summons annexed 
 thereto, signed by a justice of the peace, with a certificate 
 of duty the same as on other writs, notifying the defendant 
 to appear before the court ; and must be served by reading 
 or leaving a copy of the petition and citation with the re- 
 spondant, or at his usual place of abode, at least twelve 
 days before the sitting of the court. And where the re- 
 spondant or defendant lives out of the State, the court to 
 which it is preferred, or hath cognizance thereof, or either 
 judge of such court in vacation, have power to make such 
 orders relative to the notice that shall be given, as they 
 may deem reasonable ; and notice having been given in 
 pursuance of, and agreeably to the mode presented by such 
 court or judge, and proof thereof made, shall be deemed 
 sufficient service. 
 
 5. Of service of Writs of Error. 
 
 Writs of error must be signed by a judge of the court te 
 which they are returnable, who must take good and suffi- 
 cient bond with surety that thp plaintiff in error shall pros- 
 ecute his suit to effect, and answer all damages in case he 
 fail to make his plea good, and certify a duty on all writs of 
 error returnable to the superior court of one dollar, and of 
 two dollars on those returnable to the supreme court of er- 
 rors. Service is to be made by leaving a copy with the de- 
 fendant in error, or at his usual place of abode, with the
 
 217 
 
 usual notice ; and if the defendant be not a resident of this 
 State, then the copy is to be left with the attorney who ap- 
 peared for the defendant in error in the original action. 
 Whenever a writ of error is brought on a petition for a high 
 way, it may be served by reading the same, or leaving a co- 
 py thereof with any three of the first signers of the peti- 
 tion, or at their usual place of abode. 
 
 Whenever a writ of error, or petition for new trial, is 
 brought in any criminal case, service must be made by leav- 
 ing a copy with the attorney for the State, in the county 
 where such writ of error or petition for a new trial may be 
 brought, or by reading the same in the hearing of such at- 
 torney. 
 
 6. Of the service of Writs of Replevin. 
 Writs of replevin are either to replevy creatures dis- 
 trained or impounded, or goods attached. A suit wherein 
 goods attached are replevied, is either by the defendant in 
 the original suit, or another person who claims to be the 
 owner of the goods. In an action of replevin, where cattle 
 are impounded, or by any other person than the defendant 
 in the original suit, where goods are attached, it is the duty 
 of the officer to replevy to the plaintiff, the cattle or goods 
 described in the writ ; that is, to take them and deliver them 
 into the possession of the plaintiff ; and for this purpose 
 he may if necessary command the power of the county, and 
 afler having demanded entrance, break open gates or doors 
 to take the cattle or goods described in the writ. He must 
 also read the writ or leave a copy thereof with the defend- 
 ant, and return the same as in other cases. In an action of 
 replevin by any person whose goods have been attached in 
 a suit against himself, the only object of the suit is to put 
 him in possession of the goods, by substituting the bond 
 which must be given, in lieu thereof, as security to the 
 plaintiff in the original action ; and the writ does not con- 
 tain a declaration of trespass, or charge the defendant in 
 the action of replevin, (the plaintiff in the original action,) 
 of having taken the goods wrongfully, as in the other two 
 cases. The officer must replevy the goods to the plaintiff 
 in suit of replevin, read the writ to the plaintiff in original 
 suit, or leave witli him a copy, and return the same with 
 an endorsement of his doings thereon to the same court to 
 19
 
 218 
 
 which the writ on which the estate attached and replevied, 
 is returnable. A writ of replevin of this kind, must be 
 made returnable to the same court as the original writ, and 
 it is usual to deliver them to the same officer to be served, 
 that they may be returned with the first writ ; they may, 
 however, be served by any other officer ; but if the officer 
 serving such writ, fails to return it to the court to which 
 the writ of attachment is returnable, he is liable to pay to 
 the plaintiff in such writ of attachment, double damages, to 
 be recovered in an action brought against him for such neg- 
 lect. It would seem from the statute, that if the wril should 
 be made returnable to a different court from that to which 
 the writ on which the goods were attached, is returnable, 
 and the officer should return it according to the direction 
 in the writ of replevin, he would be liable. It is important, 
 therefore, that before he serves the writ, he satisfy himself 
 that it is made returnable according to law, that is, to the 
 same court, and if before a justice of the peace at the same 
 time as the writ of attachment. 
 
 7. Of the service of Writs of Habeas Cor pus. 
 Writs of habeas corpus may be issued by any judge of the 
 superior court, or any judge of the county court, during 
 the session thereof, or the chief judge, during vacation, on 
 application being made, accompanied with an affidavit of the 
 person in whose behalf the application is made, or of any 
 other person, alleging that ho verily believes the person on 
 whoe account the writ prayed for, is illegally confined, and 
 deprived of his liberty. Such writ is to be directed to any 
 p r i>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 rx<Tution is issued, di- 
 recting the officer to levy the amount f the judgment and
 
 228 
 
 pay the same to the party in whose favour it was rendered s 
 or in an action of ejectment, to put the plaintiff into pos- 
 session of the land, or to do whatever may be necessary to 
 enforce and enter into effect the judgment. We will con- 
 sider first the duty of an officer in serving or executing an 
 ordinary writ of execution. 
 
 1. Of the Service of Writs of Execution in Ordinary Form. 
 
 All executions issued upon any judgment of the superi- 
 or or county courts, must be returnable to the next term 
 of the court, or within sixty days from the date ; and 
 those issued by a justice of the peace, must in all cases, 
 be made returnable in sixty days from their date : if gran- 
 ted for any shorter or longer time, they would be illegal 
 and void. An execution may be directed by the superior 
 or county courts, or the clerks of those courts, or by a 
 justice of the peace, on any judgment recovered before 
 him, to the sheriff of any county in the State, and the con- 
 stables of any town thereof; but it cannot be altered by 
 any other person and directed to any other officer, and 
 where this was done, and the debtor arrested by such offi- 
 cer, the arrest was adjudged illegal, and the debtor dis- 
 charged therefrom by writ of habeas corpus. Neither 
 can the party or any other person, except the authority 
 granting the same, alter the date of an execution to extend 
 the life of it, and if this should be done, the execution 
 would be void, and the acts done in pursuance of it illegal, 
 and the officer a trespasser. 
 
 An execution mny be renewed or an alias or second 
 execution granted by the authority from whom the same 
 issued ; but this cannot be done until the first is re- 
 turned, nor until after the expiration of the sixty days. 
 
 The alias execution may be ante-dated when issued, 
 but must not be dated back so as to bear date within 
 the first sixtv days. I. is a common practice with justices 
 of the peace to renew the 6^ : execution, by altering the 
 date, and there can be no < jrotion to this, when it has 
 not been in the hand* of an officer or any proceedings had 
 therein ; but if any thing h is been done on the execution, 
 or any return is made thereon, it should be kept on file as 
 a pfcrt of t v >e 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;,:>. <jive a bill of sale of it, and if the owner of the land 
 should prevent the purchaser from harvesting it, an action 
 nf trespass will lie against him (o). This is according to 
 the English decisions, and those in the State of New-York 
 and Massachusetts ; the principle has not been sanctioned 
 by our courts, but there can be little doubt it will be re- 
 cognized as law in this State. Where the debtor owns 
 half, or a certain part of growing crops, his share or part 
 may be levied on and sold in the field standing, or harvest- 
 ed, and divided, and his share only sold. The whole of a 
 debtor's growing corn or rye cannot be sold unless he has 
 ten bushels which has been harvested, that quantity being 
 protected from being taken. We apprehend that growing 
 crops cannot be taken where the debtor owns the land al- 
 so ; but if there is no personal estate the execution must 
 be levied on the land, and the same appraised, including 
 the crops, and then if the debtor should remove the crops 
 before the creditor could obtain possession, he might after 
 obtaining possession, maintain an action of trespass against 
 the debtor for the damage. 
 
 Whatever belongs to the freehold and is a part of the 
 realty, cannot be levied on, and separated from the realty 
 and sold as personal estate. The common law principle is, 
 that whatever goes to the heir is a part of the realty, and 
 whatever is assets in the hands of the executor is personal 
 estate. This rule is of little use, as it must still be de- 
 termined what articles descend to the heir, and what go to 
 
 !n\ Swf. Dig. 796. () 9 John, 10P-
 
 233 
 
 the executor. Manure in heaps, or where it can be sepa- 
 rated from the soil, is personal property, and may be levi- 
 ed on. Cider-mills and barns erected by tenants for their 
 own convenience, may be removed by them, and may 
 doubtless be levied on by their creditors and sold as a per- 
 sonal chattel, and then removed by the creditor, during the 
 term of the tenant (e) It is said that leases or terms for 
 years, being chattels, may be levied on and sold for person- 
 al estate (g). It is true that a term for years is, at com- 
 mon law, considered a chattel ; it is not however a person- 
 al chattel, but a chattel real, and is a part of the realty. 
 If the interest a debtor has in a term for years, may be 
 taken and sold as personal estate, the principal must ex- 
 tend to all leases, for however long a period, and it is evi- 
 dent that long terms comprise the principal value of the 
 estate ; and if they are taken and sold as personal proper- 
 ty, it will be violating the spirit of the law, which requires 
 that real estate shall not be sold on eKecution, but apprais- 
 ed off ; and it would be an equal violation of our register- 
 ing act, (which forms a great principle in the laws of this 
 state,) requiring that all transfers of land shall be recorded 
 in the town where the lands lie. When real estate is lev- 
 ied on, and set off, on execution, the proceedings must be 
 recorded in the records of lands of the town where the 
 estate lies, without which the title is not acquired ; but if 
 a term, which may comprise the principal interest, is sold 
 as a personal chattel, there will be no evidence of the trans- 
 fer and conveyance in the records of lands in the town, as 
 the officer is not required to leave a copy of his execution 
 and doings thereon, and if he should, it would be of no 
 avail. But how can an officer convey a term for years by 
 a bill of sale, when it is expressly provided by statute that 
 no lease for a longer period than one year, shall be valid, 
 unless acknowledged and recorded, the same as a deed. 
 If the debtor cannot himself sell a term for a greater pe- 
 riod than one year, otherwise than as real estate, can a 
 creditor by levying on it, acquire a right that the owner 
 did not himself possess ? Is the officer to give a deed or 
 lease executed with the requisite form and solemnities ? 
 What law is there for this ? The statute has placed term* 
 
 {) Swf. Dig. 796. (g) Swf. Dig. 7S9. 
 
 20*
 
 234 
 
 for more than one year on the same ground, as it respects 
 their conveyance, as freehold estates. Of what validity 
 then will be a deed executed by an officer, of a term of 
 years, more than of fee simple ? The conveyance execu- 
 ted by an officer is of no importance in any case in itself ; 
 the title of the purchaser does not rest upon that, but up- 
 on the act of sale ; if that is illegal, the conveyance, let 
 it be what it may, will not help the title. We believe it 
 has always been the practice to levy on terms for years, 
 as real estate, and have it set off as such, and this we think 
 the only safe way. It has received the sanction of the 
 superior court, who also express an opinion that a term 
 for years can be sold as personal property (a). 
 
 Where property is taken, which from the nature of it 
 will perish, before the expiration of twenty days, it is usu- 
 al to make sale of the same immediately, giving such pub- 
 lic notice thereof as can reasonably be done ; and where 
 an officer acts faithfully and reasonably, for the interest of 
 the debtor, as well as the creditor, he will be justified. 
 
 When a debtor has fraudulently conveyed away goods, 
 they may be levied on and sold, by virtue of an execution 
 against such debtor. If the goods turn out not to have 
 been conveyed fraudulently, and consequently not to be 
 the property of the debtor, the officer will be liable to the 
 owner : and it is believed that the purchaser would not 
 get a legal title to them, provided the owner was under the 
 necessity of looking to him ; but as the officer is liable 
 the owner makes his claim on him, and having obtained 
 satisfaction from the officer or creditor, he can have no 
 claim upon the purchaser. If however a public sale of 
 property, taken on execution has the same character here 
 as a sale in a market overt, in England, the title of the pur- 
 chaser will be complete, and indefeasible, and so it is gener- 
 ally regarded, there being no occasion to look to the pur- 
 chaser, as the sheriff and his deputies are always respon- 
 sible, having given bonds ; but constables are not always re- 
 sponsible and give no such security. If the creditor di- 
 rect the officer to take the property, he will be liable-to 
 indemnify the officer, but if he gave no direction the office-- 
 has no claim upon him, for indemnity. 
 
 () Root 15.
 
 235 
 
 Where property lias been faaudulently conveyed, and in 
 all cases where there is doubt as to its belonging to the 
 debtor, it is most safe for the officer to obtain the direction 
 of the creditor, and it is certainly reasonable he should give 
 it, yet if he refuse, the officer must act at his own rik ; if 
 he take the property, and it prove to belong to another 
 person, he will be liable to the owner for the same, and 
 will have no claim on the creditor for indemnity ; and on 
 the other hand, if he neglects to take the property, and it 
 afterwards appears to have been the property of the debt- 
 or, and that he might have levied on the same, and satisfied 
 the execution, he becomes liable to the creditor (ft). He 
 is not obliged to levy, unless there is property sufficient 
 to satisfy the execution ; yet, here too, he must decide at 
 his peril, unless the creditor will direct him, for if he takes 
 the goods, and they prove insufficient, he becomes liable to 
 the creditor for the deficiency, unless he can find other 
 property, or takes the body within the life of the execution ; 
 and if he neglects to take the property, on the ground of 
 there not being a sufficiency, and it afterwards can be prov- 
 ed that the same was sufficient, he becomes liable for the full 
 amount of the execution. Where there is doubt as to the 
 sufficiency of the estate, unless the creditor will turn it out 
 or give directions to levy on it, it is the safest for the officer 
 to levy on the property at an early period of the execution, 
 so that, after the sale thereof, he may be able to levy on 
 the body within the life of the execution. He must 
 execute the writ, and make a legal return within the 
 life of the execution, and this requires that he either 
 take goods sufficient to satisfy the same, take and com- 
 mit the body, or return that he can find neither goods 
 or the body. li there are not goods sufficient to satisfy the 
 execution, he is not bound to take them, but must take the 
 body. If, however, he levy on the goods, and sell them, 
 in part satisfaction, and then within the life of the execution, 
 levy on more goods, enough to satisfy the execution, or take 
 the body and make return accordingly, he will be justified. 
 Where he takes goods partly enough to satisfy the execution, 
 being all that can be found, in case the defendant has not 
 been within his precinct? whilst he has had the execution 
 in his hands, so that he might have been taken, he is justi- 
 
 (h) Swf. Dig. 797.
 
 tied ; and where the body cannot be found, it is the duty of 
 the officer to take goods, although insufficient, as he must 
 dt> 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