T ^^ THE CONNECTICUT CIVIL OFFICER, IN THREE PARTS. PART I. CONTAINING THE POWERS AND DUTIES OP JUSTICES OF THE PEACE. PART II. CONTAINING THE POWERS AND DUTIES OF CONSTABLES. PART III. CONTAINING THE POWERS AND DUTIES O> SELECT MEN ; WITH SUITABLE AND APPROVED FORMS FOR EACH. TOGETHER WITH NUMEROUS LEGAL FORMS, OF COMMON USE, AND GENERAL CONVENIENCE. BY JOHN M. NILES, ESQ. Atsotiate Judge of the County Court for Hartford County. HARTFORD, HUNTINGTON & HOPKINS. 1823. DISTRICT OF CONNECTICUT, ss. BE IT REMEMBERED, That on the second day of January, L. S. in the forty-seventh year of the Independence of the Uni- ted States of America, HUNTING-TON & HOPKINS, of the said district, have deposited in this office the title of a book, the right whereof they claim as proprietors, in the words following to wit : " The Connecticut Civil Officer, in three parts Part I. ' containing the powers and duties of Justices of the Peace Part ' II. containing the powers and duties of Constables Part III. ' containing the powers and duties of Select-men ; with suitable ' and approved forms for each. Together with numerous legal ' forms, of common use, and general convenience. By JOH> M: ' NILES, Esq. Associate Judge of the county court for Hartford ' county." In conformity to the Act of the Congress of the Uni- ted States, entitled "An Act for the encouragement of learning, by securing the copies of Maps, Charts, and Books, to the au- thors and proprietors of such copies, during the times therein mentioned." CHARLES A. INGERSOLL, Clerk of the District of Connecticut. A H. copy of Recara, Clerk of the District of Connecticut. PREFACE. THE delay in the publication of this work has been occa- sioned by a partial relinquishment of the undertaking, on the part of the publishers, soon after the original proposals were issued, which was the result of circumstances, not necessa- ry to be disclosed ; and in consequence of which, the work was not commenced until a few months since, within which period it has been prepared for the press, in the time that the author could spare from other avocations. This fact is mentioned to shew the cause of the delay, which may have occasioned disappointment to subscribers, and seem to re- quire some explanation, and not to claim indulgence towards the work for any deficiences or errors it may contain, as the haste with which it has been compiled can afford no excuse for its faults. I have been fully sensible that accuracy and simplicity constitute the principal value of a publication of this de- scription, and have bestowed upon it that degree ofcare and attention, which I trust will render it a safe guide to those officers for whose use and convenience it is intended. Whilst I have endeavoured to supply all forms, deemed necessary, in the discharge of the official duties, both of Justices of the Peace and Constables, these constitute but a small part of the work. To give forms without directions as to the use of them, would be in some measure like put- ting the tools of a mechanic into the hands of a person wholly unacquainted with the art or trade in which they are to be used. It has been my intention to make this work a directory and manual, to Justices of the Peace and Constables, in the discharge of their various and often important duties : how far I have succeeded in this, I submit to the public. With respect to Justices of the Peace, I have aimed to specify their numerous official acts, both of a ministerial and judicial nature, and to give directions for their proceedings in both civil and criminal matters, connected with suitable forms, and to present such an abstract or general view of 2< & iv PREFACE. the law as appeared to be necessary for these objects. A? to Constables, their duties lying within a narrower compass. I have endeavoured to present a complete view of them, and to give a digester summary of the law relating thereto. I have given only a very general view of the duties of Select-men. With a view to perspicuity, and to prevent misapprehen- sion, I have been particular to separate matters belong- ing to the same general subject, and to treat of them with as much distinctness as possible, bearing in mind that I was writing for those who in general are unacquainted with the elements of legal science. There is a disagreeable responsibility attending a publi- cation of this description ; as from its humble character, Success will afford no credit, whilst a failure must subject the compiler to deserved animadversion. If it contains errors, its being designed for common use, and by those who in general will not be capable of detecting the same, must render them the more dangerous. And that no er- rors should have intervened, is hardly to be expected ; but I trust they will not be found so numerous or essential as to impairits usefulness. INTRODUCTION. THE first section of the fifth article of the Constitution of this State, provides that the judicial power shall be vested in a Su- preme Court of Errors, a Superior Court, and such inferior courts as the General Assembly may establish. The second sec- tion provides, that there shall be appointed in each county a suf- ficient number of Justices of Peace, with such jurisdiction in civil and criminal matters as the General Assembly may pre- scribe. The third section directs that the judges of the supreme court of errors, of the superior and inferior courts, and justices of the peace, shall be appointed in such a manner as may be prescri- bed by law. Since the adoption of the constitution, this is the basis of the judicial department in Connecticut, although the constitution made no alteration in the system. It is provided by statute, (a) that the judges of the supreme court of errors, of the superior and county courts, judges of pro- bate and justices of the peace, shall be appointed by the concur- rent vote of the Senate and House of Representatives ; the judg- es of the court of errors and the superior court, are required to be chosen by ballot in each house, and hold their offices during good behaviour, removable by impeachment, or by the govern- or, on the address of two thirds of the members of each house of the assembly. The judges of the county courts, of probate, and justices of the peace, are chosen annually, and continue in office until the 20th of June, in the year next following their appoint- ment, unless sooner removed or suspended by the general assem- bly. The mode of proceeding is by bill, as in the case of other bills for public acts; it may originate in either house. A nomination of the judicial officers of each county, is usually made in county meetings, consisting of the representatives of the seve ral towns in the county. These nominations are introduced into the house of representatives in the form of bills ; the judge of the county court, the associate judges, and judges of probate, in sep- arate bills, but the justices of the peace of each county all in one bill. These bills can be amended by erasing, adding, or substituting names, in either house ; but both houses must concur as to each name, or the person is not appointed. After the county bills, as they are called, are passed, other bills are usually introduced by members of either house, for the ap- pointment of additional justices of the peace. The judges of the superior and county courts, and judges 01 probate, receive separate commissions ; but the justices of each county are commissioned jointly, in one commission, consti- (a) St. p. 149, 1 VI INTRODUCTION. tuting them justices of the peace within and for the county, for which they are appointed, to which their authority is confined. No judge or justice of the peace, is capable of holding his office after he arrives to the age of seventy years (c). No justice of the peace can hold the office of sheriff, deputy sheriff or constable, or be a taverner (d). All judges and justices of the peace are to be sworn before en- tering upon the duties of their office, and without which their acts are void. Before the adoption of the constitution, there were specific oaths for judges of the courts and justices of the peace; but since the adoption of the constitution, the general oath pre- scribed therein, which is both an oath of allegiance and of office, is administered to the members of the assembly, and to all state and judicial officers. This oath which is now to be administered t.o justices of the peace, is as follows : " You do solemnly swear ' "or affirm, as the case may be) that you will support the constitu- tion of the United States, and the constitution of the state of Con- necticut, so long as you continue a citizen thereof, and that you will faithfully discharge, according to law, the duties of the office of to the best of your abilities. So help you God." The office of justice of the peace is very ancient, and like most other human institutions, has in the progress of civilization and improvements gradually experienced important changes. It was derived to us from England, the land of our fathers, with the fun- damental principles of our jurisprudence and civil law. In that country it appears to have originated from the office of conserva- tor of the peace, which was a mere executive office, held in some instances by prescription, or as incident to the tenure of fiefs or freholds, and in others by appointment of the freeholders of the county. In the first year of Edward III. commissioners of the peace were appointed by statute, which superseded the office of conservators of the peace. They, however, continued only con- servators, or keepers of the peace, until the 34th year of the same reign, when the power of trying felonies was conferred up- on them by act of parliament ; and being invested with judicial authority, they soon acquired the more dignified and honourable appellation of justices. This appears to have been the origin of the judicial power of justices of the peace, or indeed of the office itself, for previously, the office of conservator and commiss : oner of the peace, had in its duties much more resemblance to that of constable than to that of justice of the peace at the present day. From that period the authority, duties, and jurisdiction of jus- tices of (he peace, have been enlarged and extended from time io time by numerous statutes. In tl.e 'colony of Connecticut, the office appears to hare been adopted without the authority of any express statute, and its ex- istence is probably coeval with the colony. They were, botif [<) COT?. .trt.Sth. (d}Sl.p. 148. INTRODUCTION. Vll the revision oi 1702, called commissioners, but possessed judicial authority, and in the oldest statutes of the colony, commissioners were associated with magistrates and select-men in the adminis- tration of justice. The assistants, as they were afterwards call- ed, were then denominated magistrates, and originally their pri- mary powers and duties were of a judicial nature. (e) The compact formed by the towns of Hartford, Windsor and Wethersfield, in 1639, provided for establishing a general court to be holden in April and September, to consist of the ^overnor, at least four magistrates, and a majority of the deputies which were to be chosen by the towns. This body united all the powers of government, executive, legislative & judicial. The par- ticular courts, which had previously been constituted, consisting of a certain number of mag ; strates, still continued to be held, from which appeals were made to the general court. In October the same year, the several towns were authorised to establish a town court, to consist of three, five, or seven of their principal inhabit- ants, one to be chosen moderator. This court was to be holden once in two months, and had jurisdiction as to persons over the inhabitants of the town only, and as to cases, of matters of tres- pass, and contract, not exceeding forty shillings. An appeal might betaken from its decisions to the particular court. This is evidently the origin of justices' courts, and of the civil jurisdic- tion of justices of the peace in this state. In 1647, a question arose as to what number of the magistrates formed a quorum, to hold a particular court ; and it was finally decided that the governor or deputy governor, and two magistrates, had power to hold such court, and that in case the governor or deputy governor should not be present, three magistrates, one to be chosen moderator, were competent to hold the court (f ). This court was attended by a jury, but all causes under forty shillings could be tried by the court. In 1665, after the union of the two colonies of Connecticut and New-Haven, by the charter of Charles II. the court of assistants was established, consisting of at least seven assistants, the name of magistrate having at this time been changed to that of assist- ant. The next year the colony was divided into the counties of Hartford, New-Haven, New-London and Fairfield, and a county court established in each, consisting of one assistant, and three or more commissioners. These courts superseded the particular courts. In 1669, the town courts were re-organised, and were to consist of an assistant, or a commissioner, and at least two of the select-men (#.) By subsequent acts, any one assistant was authori- sed to try all causes arising in his county without a jury, wherein the matter in demand did not exceed forty shillings ; and in those towns where no assistant resided, the same power was given to a (e} Pref. 1st, Conn. Rep. (/} Pref. 1, Con. Rep. Vlll INTRODUCTION. commissioner and two select-men. From these courts an appeal was allowed to the county-court, and from the decisions of that court to the court of assistants, and from thence to the general assembly, which was the dernier resort in all matters of law and equity. In 1698, it was provided that in each county, at least four justi- ces of the peace should be appointed, three of whom were to be justices of the quorum, who, with a judge to be appointed for that purpose, were to hold county courts ; and subsequently, three justices of the quorum, were authorised to hold the court in the absence of the judge. The judge and justices of the quorum, were at first appointed during the pleasure of the general assem- bly ; but afterwards were appointed annually. The judicial pow- er of justices of the peace, appears at this period to have been es- tablished, and to have superseded the inferior courts held by an assistant, and by a commissioner and two select men. By nu- merous statutes, their jurisdiction was extended to various sub- jects, enlarged, and the right of appeal in certain cases taken away. Their jurisdiction in civil matters was finally fixed at fif- teen dollars, with the right of appeal, ordinarily in cases exceeding seven, and so continued until the year 1821, when it was extended to thirty-five dollars, with the right of appeal in causes exceeding seven dollars, as before. The constitutionality of this law has been doubted, on the ground of its interfering with the right of trial by jury, and it is understood that a cause from Fairfield county is now pending before the court of errors, in which this question is to be discussed and decided. It is, however, hardly to be expected that the court will declare the law void ; it would be a subject of regret if thev should, as so far as we are enabled to judge from experience, it is promotive of convenience and economy. The criminal jurisdiction of justices remains the same as before the statute last referred to; it embraces a great : variety of matters, and comprises a considerable part of their duties. In addition to their judicial authority, both civil and criminal, they are by dif- ferent statutes entrusted with various powers,, and required to discharge various duties of a ministerial nature. PART J. CHAPTER I. Of the ministerial porcers and ditties of Jit slices of the Peace. THE powers and duties of Justices of the Peace, may be divided into those which are judicial, and those which are ministerial ; although in many cases they partake of both. The latter consist of the authority which they possess at common law, and which is in general recognized by Statute, as conservators of the Peace, and the various pow- ers and duties which have been entrusted to them by dif- ferent statutes, of an executive or ministerial nature. This and several succeeding chapters are devoted to a consid- eration of their ministerial duties, or rather to a notice of them, as neither our limits nor the object of this work will admit of their being examined at length. 1st. (). This power is undoubtedly to be confined to proceedings before the general assembly. Spe- cific forme of oaths are prescribed for town and other sub- ordinate officers, and also for judicial proceedings. The governor, lieutenant governor, members of both houses of the legislature, sheriffs and judges of the courts, and of pro- bate, and justices, take the oath prescribed in the constitution as an oath of office. Where a person, from scruples of con- science, declines to take the witnesses oath in the usual form, it may be administered to him as follows : " You, A. B. do solemnly and sincerely affirm and declare, that the evidence you shall give to this court, concerning the case now in question, shall be the truth, the whole truth, and nothing but the truth, upon the pains and penalties of perjury ." 3d. The poor debtor's oath, as it is called, is adminis- tered to poor debtors in gaol on civil process for debt only. It has been decided that this is so far a ministerial act, that it may be administered by any justice in the county, al- though not residing in the town in which either of the par- ties belong (9). The oath to be administered to the debt- ors is as follows : " You, A. B., solemnly swear, that you have not any estate, real or personal, in possession, rever- sion, or remainder, of the value of seventeen dollars in the whole, or sufficient to pay the debt or demand for which (p) St. May Ses. 1822. (?) 3 Con. Rep. jou are imprisoned, (except what is by law exempt from being taken on execution) and that you have not directly or indirectly sold or otherwise disposed of all or any part of your estate, thereby to secure the same, to receive or expect any profit or advantage thereof, or to defraud or de- ceive your creditors So help you God." Notice must be given by citation to the creditor, or to his attorney if he is out of the state, four days, inclusive, before the day on which the oath is to be administered, to appear and shew reasons, if any he has, why the oath shall not be adminis- tered to such debtor. The citation may be directed to any proper officer, or an indifferent person, and must be served by copy ; when served by an indifferent person, he must make affidavit to his endorsement, before any Jus- tice of the county, who must certify the same on the back of the citation. It is usual to notify the adverse party to appear at the gaol of the county on a certain day and hour, to shew reasons why the oath shall not be administered, without mentioning any Justice before whom to appear, as it might not be convenient to obtain the same. This prac- tice has grown up from considerations of convenience, but the statute evidently contemplates that the adverse party should be notified to appear before some particular Justice, to whom the notification should be made returnable. It would be more correct that he be cited to appear before any proper authority. In case the adverse party appear, it is the duty of the Justice who is called on to admin- ister the oath, to enquire into the matter, and if no sufficient reasons are shewn to the contrary, to administer the oath. The creditor may shew that the debtor is possessed of property to a greater amount than seventeen dollars, or the debt for which he is imprisoned, or that he has fraudulent- ly conveyed away property to defraud his creditors and qualify himself to take the oath ; in either of which cases it is the duty of the Justice to refuse him the oath. When the oath is administered, the debtor is discharged, unless the creditor shall lodge with the keeper of the gaol such sum for the weekly maintenance of the debtor as the county court have established ; and in case the debtor im- mediately adopts the legal steps to take said oath, the cred- itor must also leave rnoney for the support of such debtor 20 from the time of his application to the time of administering the oath, provided it does not exceed seven days, or the gaoler will not stand charged with the prisoner. It is the duty of the keeper, when a debtor immediately applies for the oath, to furnish such debtor with necessaries, and if the creditor does not pay for the support of such debtor ante- cedent to his taking the oath, the keeper may recover the same by suit against such creditor ; and if he is unable to pay the same, the gaoler may recover it of the town to which such pris6ner belongs ; and if he is not an inhabit- ant of any town in this state, then the same shall be paid by the state. The prisoner is entitled to his weekly mainten- ance of the gaoler in money if he demands it. If the oath is refused by the Justice, the prisoner cannot make application except to two judges of the county court, or one judge and a justice of the peace, who may adminis- ter or refuse said oath ; and if the oath shall be administer- ed by the Justice on the first application, the creditor has a right to apply to two judges of the county court, or one judge and ajustice, to review said cause, giving reasonable notice to the prisoner, and if on a full hearing, it shall ap- pear to the satisfaction of such court that the prisoner is not entitled to the benefit of the poor debtor's oath, it is their duty to order his support to cease, and he shall thence- forward be holden in prison, in the same manner as though said oath had not been administered. It was long consid- ered as doubtful whether the decision of a court of review was final and conclusive or not ; and a practice has pre- vailed when the oath was refused by such court, for the debtor to commence de, novo, and cite the creditor again to appear before a Justice ; and it has been decided by the superior court that this might be done (r). But in the re- vision of the statutes there was a provision added, that if the circumstances of the prisoner subsequent to the refusal of the oath by such court of review, shall become changed, so that he may lawfully be entitled to take said oath, he may make application therefor, as in the first instance. This provision is confined to the case where the oath is refused by the Justice, and his decision confirmed by the court of review ; but as the reason is the same, it is un- (r) Hart. Co. Sept. term, 1821. Phelps. Shff. vs. Soper, et al. 21 doubtedly equally applicable to the case where the oath j- administered by the Justice on the first application, and re- fused, and the support of the prisoner ordered to cease, by the court of review. This provison may be considered as making the decision of the court of review final, except in cases where there is a change in the circumstances of the prisoner after the oath has been refused, if the oath is refused to a debtor on the ground of his possessing more than seventeen dollars in property, he may subsequently assign his property in payment of bona fide debts, and thereby entitle himself to the oath ; but this must be done in good faith, for if such assignment is made even to actual creditors only as a cover, and the debtor intends to reclaim the property, he cannot be entitled to the oath. If the oath was refused on the ground of the debtor's having made a fraudulent conveyance, it would seem that the fraud might be purged and the fraudulent debtor entitled to the benefit of the oath, by his afterwards assigning such property in good faith in payment of bona fide debts. It has been de- cided by the court of errors that a fraudulent debtor is en- titled to the benefit of the insolvent act, after having purged the fraud by the assignment or transfer of the property which had been fraudulently conveyed to his creditors in payment of bona fide debts. The same rule would be ap- plicable to a debtor, thus situated, applying for the poor debtor's oath. Form of citation to Creditor : To the sheriff of the county of or his deputy, or either of the constables of the tovyn of within said county, Greeting or if directed to an indifferent person. To A. B. of the town of in the county of an indifferent person, Greeting By authority of the state of Connecticut, you are hereby commanded to summon or give notice to C. D. of in the county of the creditor, on an execution in whose favour E. G. is now confined in the gaol of said county, to appear on the day of at o'clock, noon, at the common gaol in in said county, before A. B. Justice of the Peace for said county, or other proper authority, then and there to shew reason if any he hath, why the oath provided 22 by law for the relief of poor debtors in prison, shall not be administered to the said E. G. a poor prisoner, confined in said gaol for debt only (as it is said.) Hereof fail not, but make service by leaving a true and attested copy of this citation with the said C. D. or at his usual place of abode, and make return according to law. Dated at the day of A. D. A. B. Justice Peace. Form of certificate where the service is made by an indifferent person. County of ss. day of A. D. Personally appeared before me, C. D. and was sworn to the truth of the above endoisement, by him subscribed and attested. A. B. Justice Peace. 4. Justices of the Peace are authorized to take deposi- tions, swear the deponents, make the certificate, and direct them to the court wherein they are to be used, in all cases in which depositions are allowed by law. Depositions are authorized by statute, not being evidence at common law. (s) When any witness in a civil cause, lives out of the state, or more than twenty miles from the place of trial ; is going to sea, or out of the state, or by age, sickness, or bodily in- firmity, is unable to travel to court, or is confined in gaol on legal process, his deposition may be taken. If the ad- verse party lives within twenty miles of the place of cap- tion, or he has an agent or attorney within that distance, notice must be given to him or to such agent or attorney, to be present at the time and place of taking such deposition. The statute doe? not prescribe any mode of notice ; but it is most safe that it be in writing, and delivered to the party or left at his usual place of abode. A citation is often issued and served on the party, and returned before the magis- trate ; which affords him the best evidence that notice has been given ; no time of notice is required, but it should be reasonable. Depositions may be taken in any other state or country by a magistrate having power by the laws thereof to administer oaths. Where, depositions may be taken, a (*) St. 47. justice is authorized to issue a subpoena for the appearance of the witness before him, to give his deposition ; and if he refused to appear, the subpoena having been served and returned, the justice may issue a capias, and cause him to be brought before him ; and if he shall refuse to give his deposition, and in any case if a witness shall refuse to de- pose, the justice may commit him to prison until he shall comply. Neither the party, his attorney, or any person interested, can write, draw up or dictate a deposition ; and they should regularly be written by the witness or the ma- gistrate. The deposition must be signed by the witness, and the justice should caution him to speak the whole truth before he administers to him the oath. The justice must certify that he administered the oath to the witness, the reason of taking the deposition, that the adverse party, or his agent, if either live within twenty miles, was notified and present, or notified and not present, (as the case may be,) or that he lives more than twenty miles, and was not notified or present. He must seal it up and direct it to the court, or he may himself return it to the court unsealed ; but if delivered open by any other person, it will be rejec- ted. A justice cannot take a deposition except in the coun- ty in which he belongs, nor in any other case administer an oath out of his county. A justice may take depositions here to be used in any other state where they are allowed. Form of certificate. County of ss. day of A. D. Be it remembered that on the day aforesaid,, C. D. who hath sub- scribed the foregoing deposition, appeared before me, and after being examined and cautioned to speak the whole truth, made solemn oath to the same deposition ; which is taken at the request of J. S. to be used in an action now- pending before the court to be holden at within and for the county of on the Tuesday of (or now in session at within and for the county of as the case may be) wherein the said J. S. is plain- tiff, (or defendant as the case may be,) and G. H. is defen- dant, (or plaintiff.) The reason of taking said deposition is, that the said deponent resides more than twenty miles from the place of trial ; (or is going to sea, or out of the state, or from sickness is unable to travel to court, as tke .M case may 6e) the adverse party was notified and present, or living more than twenty miles from the place of caption, and having no known agent or attorney within that distance, was not notified or present. Said deposition drawn up and certified by A. B. Justice Peace. DIRECTION. To the honourable court, to be holden at within and for the county of on the Tuesday of A. D. The deposition of C. D., taken, seal- ed up, and directed at in the county of this day of A. D. by me. A. B. Justice Peace. If the deposition is to be used before a Justice, vary the direction as follows : To A. B. Esquire, Justice of the Peace, for the county of The deposition of, &c. The subpoena, when it is necessary to issue one for the appear- ance of the witness is in common form, summoning him to appear at a specified time and place, before a justice, then and there to testify his knowledge in a certain cause pend- ing before a certain court, the cause and court being des- cribed. CAPIAS when the -witness refuses to obey the subpoena. To the sheriff of the county of his deputy, or either constable of the town of within said county, Greeting : Whereas C. D. of in said county, hav- ing been summoned to appear before me at my office in on the day of A. D. at the hour of then and there to testify his knowledge in a cer- tain action pending before (describe the court and cause) and has neglected and refused to appear. Where- fore, by authority of the state of Connecticut, you are hereby commanded to take the said C. D. if he shall be found within your precincts and him cause to be safely kept, so that you him have forthwith, (or at a certain day and hour) before me at my office in then and there to testify his knowledge in the cause aforesaid. Hereof you are not to fail, but have you there this writ, and how you shall have served the same, make known by your endorse- ment thereon. Dated &c. A. B. Justice Peace. Mittimus in case he refuses to testify. To the sheriff, &c, Greeting : Whereas C. D. of in the county of having been brought before me by a Capias to testify his knowledge in a certain cause (describe the cause and the court before which it is ponding) and the said C. D. wilfully and contemptuously refuses to U^ufy and depose what he knows concerning said cause : \\ fore By authority of the state of Connecticut, you are hereby commanded to take the said C. D. and him commit into the custody of the keeper of the gaol of said cou,-.;y, and to leave with said keeper this mittimus ; and said keep- er is hereby commanded to receive the said C. D. and him safely keep in the common gaol of said county, until he consent to testify his knowledge in the aforesaid cause, and be discharged by due course of law. Hereof you arc not to fail. Dated, &c. A. B. Justice Peace. 5. Justices of the Peace are authorized to take the ac- knowledgment of deeds, and all other instruments which are- required to be acknowledged, to give them validity. All grants, deeds and mortgages of lands and buildings must be acknowledged by the grantor to be his free act and deed before, a justice of the peace, or any judge of the superior or county courts ; and if executed out of the state, the acknowledgment may be taken by a judge of the supreme or district court of the United States, a judge of the su- pnu^ or superior court, or of the court of common pleas, or county court ; before a commissioner or other officer having power by the laws of such state to take acknow- ledgment of deeds (<.) All leases of lands or houses for more than one year mnst be acknowledged, witnessed and recorded, the same as When a deed is executed by an attorney, it must be ac- knowledged by him ; but it should be executed and acknow- 1<'<1_ M' in the name of the principal : the power of attorney mast ;ilso be acknowledged. No sale or lease for a longer term than one year of any pew in any meeting house or (0 St. 302. 3 church shall be effectual in law, except against the grantor or leasor and their heirs, unless it is in writing, subscribed, witnessed and acknowledged in the same manner as deeds of land, and recorded by the clerk of the society in a book to be kept for that purpose. One pew, the property of any person having a family, who ordinarily occupy the same, is exempt from being taken by execution for debt or taxes. When any grantor having executed a deed shall, on being required by the grantee, his heirs or assigns, refuse to acknowledge the same, the grantee, his heirs or assigns may enter a caveat, or caution, upon the lands and houses granted in such deed, with the town clerk or register, where they are situated, by leaving with him a copy of the deed, with a claim of title by virtue thereof; which caution shall secure the interest of the grantee, until a legal trial can be had ; and an attested copy of the judgment of the court delivered to the register shall be his warrant to re- cord such deed, although the grantor refuse to acknowledge the same, and such deed shall have the same effect as if acknowledged. The party need only leave the deed with the register, and a written statement that he claims title by virtue thereof, and intends to try the validity of the same. 6. Where all the persons interested in an estate of a de- ceased person, being legally capable to act, mutually agree on a division of the same, it must be by writing, signed, sealed, witnessed and acknowledged before a justice or the judge of Probate, and when returned to said judge and recorded it will be effectual in law. CHAPTER III. Of the ministerial powers *nd duties of Justices of th Peace. 1. Justices of the Peace are authorised to join persons in marriage ; but this must be done within their county. Marriage may also be solemnized by ordained ministers, so long as they continue in the work of the ministry, and by the j<> Iges of the superior and county courts. No form of raveuant or contract is required, and every denomination 27 oi Christians, and almost every individual who officiates pursues a form of his own. If any Justice of the Peace or other person authorized, shall join persons in marriage, before the intention of the parties has been published in some public meeting or con- gregation on the Lord's-day, or some public fast, thanks- giving or lecture-day in the parish or society where the parties, or either of them ordinarily reside, or by setting up such intention or purpose in fair writing upon some post or door of their meeting-house, or near the same, in pub- lic view, there to stand so that it may be read for eight days before such marriage, they shall forfeit and pay the sum of sixty-seven dollars for every such offence : one moiety 10 him who shall complain and prosecute, and the other to the Treasury of the county where the offence is committed. And where such publication has been made, if the parties or either of them are minors, the justice or minister forfeits the same sum for joining them in marriage, without previously being certified of the consent of their parents or guardians, if any they have, whose care and con- troul they are under. If any person shall deface or take down any notice in writing set up as aforesaid before the expiration of eight days, he shall be fined three dollars. It is the duty of every person who celebrates the mar- riage contract, within thirty days after, to lodge a certifi- cate of the same with the clerk of the town in which such marriage is performed, and to pay such clerk twelve and a half cents for recording the same, which it is his duty to do, in a book to be kept for that purpose, and for every neg- lect to lodge such certificate, he forfeits the sum of fifteen dollars to the treasury of the town wherein such marriage was performed (M). 2. When any person under an overseer does not sub- mit to his authority, two or more Justices of the same town, on application of the select-men, may issue a warrant to bring him before them, or grant a summons or other writ- ten notice, for him to appear at a certain time and place, or if he abscond, leave such notice at his usual place of abode. On his appearing, or without, after notice, and refusal, said (w) St. 316. Justices may inquire into the matter, and if they find such person refuses to submit to the authority of his overseer, or that by his misconduct he is wasting his estate, and like- ly to be reduced to want, they may authorize the overseer or any other person they may appoint, to take such person, his family and estate under their care. The power and duty of a person thus appointed will be the same or simi- lar to that of a conservator appointed by the county court. An overseer thus appointed, may for misconduct be remov- ed by the select-men and two justices of the town, and .mother appointed ; so also in the case of his death ; and in case of vacancy of an overseer, the disability of the per- son is to continue nine days, to give the select-men time to appoint another. If such person reforms, said Justices may revoke the appointment of the overseer, and order his estate restored to him. An appeal lies from the doings of the select-men, or the two Justices, to the next county court (t>). The two Justices must record the appoint- ment of an overseer and all their doings. 3. The children of those persons who receive reliefer supplies from the town, and who suffer their children to live in idleness ; and also those children who have no pa- rents, or others to take care of them, and are exposed to want and distress, and who live in idleness, the select-men, with the consent of one Justice of the Peace, are empow- ered to bind out to proper masters, to be instructed in some trade, calling, or profession ; males until the age of twenty- one, and females until that of eighteen, or the time of their marriage within that age (x). 4. If any apprentice, bound by indenture, shall refuse to serve as an apprentice, according to the terms ot the in- denture, or shall disobey the lawful commands, or resist the authority of his master, or shall waste or destroy his property, or be guilty of any gross misbehaviour and wil- ful neglect of duty, on complaint of the master to any two Justices of the Peace of the same town, the said Justices may issue a warrant and cause such apprentice to be brought before them, and inquire into the truth of the com- plaint, and if they find such apprentice guilty, they may (w) St. 276, (,r) St. 319. 29 commit him to the house of correction, and if there is none, to the common gaol in the county, there to be confined at hard labour for such term of time as they may think pro- per, not exceeding thirty days ; and if he reform, said Jus- tices may release him from prison before his term expires. Said Justices are also empowered, if they judge it best, to discharge said master from the contract of apprenticeship, and cancel the indenture (^). In case an apprentice, bound by an indenture, departs from the service of his master, any Justice, on complaint of his master, may issue a warrant to^the sheriff or consta- ble, commanding them to press men, if necessary, to pur- sue said apprentice and bring him back by force, at the re- quest and expense of his master. Where the master is guilty of personal cruelty or abuse, or refuses to provide for him necessary food or clothing, or neglects to instruct him in his trade or business, or if an apprentice shall flee from the tyranny of his master, to the house of any inhabitant in the same town, on complaint of the parent or guardian of such apprentice, or the select- men, to any Justice of the town, such Justice may cause such master and apprentice to appear before him, and re- concile them if he can, and if he cannot, he may at his dis- cretion bind the master and the apprentice to the next county court, or give order for the apprentice's custody in the mean time, and for his appearance at court. Complaint to two Justices. To A. B. and C. D. Esquires, Justices of the Peace for the county of and residing in the town of in said county, comes O. P. an inhabitant of said twn of and complains and informs said Justices of the Peace, that he is by profession and occupation a blacksmith, and carries on said business in said town, and that for more than one year last past, Q, R. has been, and now is, an in- dented apprentice to your complainant, and duly bound by indenture to the complainant by S. T. his father, (or guar- dian) with the written consent of said apprentice, express- ed by bis subscribing said indenture, to learn the trade of a (y) St. 319. 30 blacksmith ; and he further informs that at divers times, and particularly on the day of A. D. in the town aforesaid, the said apprentice did wilfully and con- temptuously disobey the lawful commands, and resist the. authority (or, did grossly misbehave and wilfully neglect his duty, as the case may be) of the complainant, to the great interruption and detriment of his business ; and which said doings of said apprentice are contrary to the statute in such case provided, and of evil example. And the com- plainant prays that you will issue a warrant, and cause said apprentice to be brought before you, to answer unto this complaint, and that ytm will inquire into the truth of the matters herein alledged. O. P. Warrant. To the Sheriff, &c. You are hereby commanded forthwith to arrest the aforesaid Q, R. of the town of in the county of apprentice to the aforesaid O. P. and him forthwith have (or at a certain day and hour) be- fore us, the undersigned, Justices of the Peace, at the office of A. B. in said town, that he may be examined, touching the foregoing complaint, and be dealt with according to law. Hereof you are not to fail, &c. A. B. Justice Peace. C. D. Justice Peace. Record. county, ss. H day of A. D. Be it remembered, that on this day, Q. R. of was brought before us by virtue of a warrant by us issued, on the complaint of O. P. of representing that the said Q,. R. being an indented apprentice to the complainant, bound to him by indenture, by his father, and with his own written consent expressed in said indenture, at divers times, and particularly on the day of A. D. at said did wilfully disobey the lawful commands, and resist the authority of the complainant, to the injury and detriment of his business, and contrary to the statute in such case provided; and having appointed L. M. guardi- an, to defend the said Q. R., he being required to an % swer to said complaint,says he i not guilty, whereupon we proceeded to inquire into said matters, and having fully 31 considered the evidence, do find that said Q,. K. is guilty in manner and form complained of, by the said O. F. and there- upon it is considered by us, that the said Q. R. be confined in the common gaol of said county, as a house of correction, there being no house of correction in said town of to be kept at hard labour, for a period of time not exceed- ing twenty days, and that in case he reform before that time, he be released by our order. A. B. Justice Peace. C. D. Justice. Peace. Mittimus. To the Sheriff, &c. Greeting. Whereas Q. R. of was on the day of A. D. found guilty before as of disobeying the lawful commands, and resisting the authority of O. P. his master, the said Q. R. being an indented apprentice to the said O. P. and by us sentenced to confinement in the common gaol of sad county, as a house of correction, and there to be kept at hard labour, a period of time not exceeding twenty days, and to be discharged on his reformation, before that time, by our order. Wherefore you are hereby command- ed to take the said Q, R. and him commit to the keeper of said gaol, and to leave with him this mittimus ; and said keeper is hereby commanded to receive said Q,. R. and him safely keep within said gaol at hard labour during said term of twenty days from the date hereof, unless sooner discharged by us. Hereof you are not to fail, c. A. B. Justice Peace. C. D. Justice Peace. Minor children, who are stubborn arid rebellious, and re- fuse to obey their parents or those who have the care of them, may be proceeded with and sentenced in the same way as apprentices, on complaint of their parents, or those who have the charge of them, or an informing officer, to two Justices of the Peace of the town where the parties Jive (*). 4.. Two or more Justices of any town, on application (*) St. 107. of the select-men, may issue a warrant to remove any per- son who has become chargeable to such town, not being an inhabitant thereof, to any other town in this state to which such pauper may belong. Also in case any inhabit- ant of any other state come to reside in any town in this state, not having a settlement in this state, any two or more Justices of such town may, on application of the select- men, grant a warrant to convey such person out of the state, from whence he came. We shall consider this sub- ject more fully in treating of the duties of select-men (a). Form of Warrant. To either Constable of the town of within the county of Greeting Whereas, E. F., G. H., and I. K. a major part of the select-men of said town of have made application to the undersigned Justices of the Peace for said county, and residents in said town of representing that U. V. and his family, on or about the day of A. D. removed into the said town of that he has become chargeable to said town, and is a pauper ; that he belongs to, and is an inhabitant of the town of in the county of [or that he is not an inhabitant of this state, and came from in the state of New-York.] Wherefore, Bj r authority of the state of Connecticut, and agreeably to the statute in such case provided, you are hereby required and commanded to take the said U. V. and his family forthwith, or as soon as they can safely be re- moved, and them convey into said town of where they belong and have a legal settlement, [or them convey out of this state into the said state of New-York, whence they came.] Hereof you are not to fail, &c. A. B., Justice of the Peace. C. D., Justice ofthe Peace. E. F., Justice ofthe Peace. There are various duties and powers, of a ministerial na- ture, confered by numerous statutes upon Justices of the Peace, either individually, or upon two or more, or upon (n) St. 281. 33 one or more Justices and the select men, or upon the civil authority, consisting of the board of Justices of the town, or the civil authority and the select-men ; but as these services are not of frequent occurrence, or of much importance individually to magistrates, and as in general they present but little difficulty, we shall merely notice them; our limits not admitting of more. Those cases, too, where one or more of the civil authority are to act in con- junction with the select-men, we may have occasion to no- tice when considering the duties of select-men. 5. The civil authority and select-men of those towns where manufacturing establishments exist, are constituted a board of visitors, and it is their duty in the 'month of Jan- uary annually, and at such other times as they may think proper, to visit such factories, and examine and ascertain whether the requisitions of the statute relating to the instruc- tion and preservation of the morals of the children employ- ed in such factories have been complied with, and if they find any neglect, to leport the same to the next county court. They may delegate their power, and appoint a committee of visitors if they please (6). 6. The civil authority and select-men of the several towns in the state are constituted a board of health, and may organize themselves and act as such when occasion may require ; appoint a president and clerk, and such health officers or health committees, as they may deem expedient, and exercise all the power and authority neces- sary for the prevention, or to stop the diffusion and spread of malignant or contagious diseases (c). 7. It is the duty of the civil authority on the first Mon- day of January in each year in their respective towns, to appoint, or to approve of proper persons to be retailers of wines and spiritous liquors, for the year ensuing. They are to appoint a clerk who must be sworn, and they mut lodge with the clerk a list of the persons approbated, certi- fied by the chairman, designating the place where, as well as the name or firm under which such persons desire to re- tail. A license will then be issued to each person or firm in the name of the civil authority, attested by the clerk. (6) St. 320. (c) St. 419. A duty at the rate of five dollars per annum is to be paid for each licence, and twenty five eents to the clerk for the licence (rf). Oath of the Clerk. " You, A. B. being chosen and ap" pointed Clerk of the civil authority of the town of do swear that you will truly and faithfully execute the office to which you are chosen and appointed, make true entries of the proceedings of the civil authority at any of their meetings, account for, and pay over all monies belonging to this state received by virtue of your office, and perform all other duties incident to your appointment according to your best skill. So help you God." Form of License. " Whereas the civil authority of the town of in the county of in the state of Con- necticut, reposing special confidence in the integrity and faithfulness of to support the laws of this state for the suppression of an improper use of spiritous liquors, and having approved of the said according to law to be a retailer of the same : We therefore do give license to the said to be a retailer of wines and distilled spiritous liquors, according to the laws of this state at in said town of until the second Monday of January next. Given under my hand this day of Per order, C. D., Clerk." Special meetings of the civil authority may be called if necessary. The civil authority also grant licenses to auc- tioneers, which are necessary to enable them to sell for- eign goods or produce. They are required to pay a duty of two per cnt. on all foreign goods they may sell, to the clerk of the civil authority, and to give a bond with surety io secure a compliance with the law (e). 8. The civil authority, select-men, constables, and grand jurors of the several towns in the state, are constitu- ted an electoral body for the appointment or nomination of taverners, which must be done sometime in the month of January annually. They are required to nominate by their major vote such person or persons as they shall judge fit and suitable to keep houses of public entertainment in (d)St. 436. (c)St. 61. such town the ensuing year, which nomination certified under the hand of a majority of the civil authority and se- lect-men, shall be transmitted to the next county court, which can reject or approve such nominations, and grant licenses to such as are approved. Each taverner must give a bond of seventy dollars to the treasurer of the county for the due observance of the laws relating to houses of public entertainment (/). It is the duty of the civil authority and select-men to in- spect the conduct of tavern-keepers in their towns, and if they are satisfied they do not observe the laws to admonish them ; and if such taverner disregard such admonition, and persist in his disobedience to the law, a major part of the civil authority and select-men may revoke and set aside his license ; and on their causing a copy of such revocation to be left with such taverner, and another posted on the sign- post of the town, his right to keep a public house ceases, and determines. 8. The civil authority, select-men, grand jurors and con- stables of the several towns on the first Monday of January, choose by ballot, the number of jurors, to which such town is entitled, to serve in the superior and county courts in the county the ensuing year. They must be freehold- ers, having a freehold estate set in the list at nine dollars or more (^). Land under mortgage is not a legal freehold, even if the mortgage debt has been paid, after it became forfeited. 10. The civil authority and selectmen of any town are empowered to authorize any person to enter on the land of any other person, within the town at any season of the year, on which barbary bushes are growing, and to dig up and destroy the same, and such person shall not be liable to an action therefor. The same authority may be given by vote of the town in legal town meeting (ft). 11. The civil authority and select-men of the respect- ive towns, are empowered to abate the one eighth part of all taxes which may be granted by the General Assembly, and for which the treasurer may issue his warrant, arising upon the lists of the inhabitants of such town, and apply (/) St. 442. (g) St. 45. (h) St. 91. 30 the same tor the relief of the indigent or unfortunate in the abatement of their particular rates, in whole or in parl, in such a manner as they may judge most just and reasonable. And which abatements the civil authority and select- men must certify under their hands to the Treasurer of the State, who thereupon must allow the same to the credit of the collector of such tax. They are authorized to make a fur- ther abatement of the taxes of the poor, but all abatements above one eighth must be made up by the town (z). CHAPTER IV. Of the Judicial Powers and Duties of Justices of the Peace. Although the office of Justice of the Peace was origin- ally ministerial, at the present time their judicial powers and duties are far the most important. This branch of their authority and duties, is naturally divided into those which are of a civil and those which are of a criminal nature. We propose first to consider the civil branch of their judi- cial powers, and shall devote this chapter to an examina- tion of their CIVIL JURISDICTION. The general civil jurisdiction of Justices of the Peac, as it respects the subject matter is now fixed at thirty-five doll'U's. All causes wherein the title of land is not con- i. and wherein the debt, trespass, damage, or other nr-itter in dem i-id, does not exceed thirty-five dollars, must be beared and determined by a Justice of the Peace ; pro- vi-!- 1 ! that in all cases where the sum demanded shall ex- -?ven dollars, except in actions on notes or bonds v i hf.d bv two witnesses and given for money only, an a ! -hill be allowed to the next county court (A-). I'i'is of tresp is* qu f tre chiusum fregit must be brought '-ounty where the land lies. When in such actions, lins; not more than seven dollars damages, the de- fendant shall justify by a plea of title to the land, a record (i) St. 453. (fc)St. 41. shall IK; made thereof and the matter of fact shall be taken to be confessed and the defendant shall become bound to the adverse party before the justice with surety, in a re- cognizance in a sum not exceeding seventy- dollars, that he will prosecute his plea and enter his cause in the next countv court where the land lies and prosecute the same to eflect'and pay all damages and costs if he fail to make his plea good. If he neglect to give such bond his plea shall be rejected and the action proceed. When such bond is given it determines the jurisdiction of the Justice, as a Justice of the Peace has no jurisdiction as to the title of land in any case where it appears from the record that the title is in issue ; but when in an action of trespass upon land the defendant does not plead title, but gives his title in evidence under the general issue, the Justice can pro- ceed with the case and incidentally try the title, for if the defendant wishes to take away the jurisdiction of the Jus- tice he must pie ul his title. Where the defendant pleads his title and enters into a recognizance, it is his duty to procure copies of the proceedings before the justice, cer- tified bv him, and have the cause entered in the docket of the county court ; which must be left with the clerk on the first or at the opening of the court on the second day of the court, and if he neglect so to do, he becomes liable on his recognizance, to the plaintiff' for all the damage he has sus- tained. And if on a trial before the county court, he fail to make out .a title to the land, paramount to that of the phintiff, lie is liable to pay treble damages and costs (/). He will not be permitted before the county court, to alter his plea, but the action must be tried on the plea put in before the jdltire. In all actions brought before a Justice of the Peace, de- manding not more than seven dollars damages, charging the defendant with raising or obstructing the waters of any stream, river, creek or arm of the sea, by the erection of any mill, dim, or other obstruction, in which the defend- ant shall justify the same by a special plea, stating or al- leging a lawful right ; and in all actions demanding not more than seven dollars damages, charging the defendant (/) St. 53. 4 H with an injury done to land, in which the defendant sliali justify the same, stating or alleging a right of way ; the party who shall be aggrieved by the judgment of such Jus- tice of the Peace, shall be allowed to 'appeal to the next county court in the same county, on his giving bond with surety to prosecute his appeal to effect. A justice is authorized to take the acknowledgment of a debt from a debtor to his creditor for any sum not ex- ceeding seventy dollars and the costs of such confession. The confession must be made by the debtor himself, not by any other person for him ; it can only be for the debt and the cost of the confession which is twenty-five cents. Before the revision, a confession might be for costs which had previously accrued by suit, as well as the costs of con- fession ; but now, in such cases, a new note must be given including such costs and a confession taken thereon. The Justice must make a record thereof and issue execution as in other cases (.) The civil jurisdiction of justices as to persons is, in a qualified sense, confined to the town in which they reside. All actions betore a justice of the peace must be brought and tried in the town in which the plaintiff or defendant dwells ; but where there is no justice of the peace who can lawfully try the cause in either town, it may be brought before any justice of the town next adjoining to that where the plaintiff belongs (?). But where neither of the par- ties belong in this state, the action must be brought in the town where the defendant is at the time the suit is commenc- rnenced ; or if the service is made by attaching the property of the defendant, or factorising his debtor, the plaintiff and defendant neither being inhabitants of the st*e, the action must be brought where the property is attached or the debtor of the defendant resides. If a suit is brought by a corporation having no location, it should be brought where the. defend- ant resides. If the plaintiff is not an inhabitant of this rtate. the action should be brought in the town where the de- fendant is when the writ is served upon him, or if service is made by attaching property, the defendant not residing in the state at the time, in the town where the property (m) St. 146. (n) St. 41. 9* is attached. Where the plaintift' is an inhabitant 01 tins state, and the defendant is not, the action cannot be brought where the defendant may be found and a writ served upon him in the state, but it must be brought where the plain- tiff belongs. Actions of trespass quare clausumfregit, need not be brought in the town where the land lies but where either of the parties belong, in the same county. Where there is so near a relationship between a judge or justice of the peace, and either of the parties in any civil action, as father and son, by nature or marriage, brother and broth- er, uncle and nephew, or landlord and tenant, such judge or justice is disqualified to act. And where he is interes- ted in the suit, and may receive any direct benefit or loss or is liable for the cost, or has engaged to pay the wholt- or any part of the expences of carrying on such suit, he i* likewise disqualified (o). An interest in the question or principle on which the case depends, not connected with any interest in the suit, is not a legal disqualification ; but in such cases a magistrate from considerations of delicacy at least, ought to excuse himself. An action in which a corporation is a party or interested, cannot be). It is provided by a subsequent statute that where writs have not been returned forty-eight hours be- fore the session, they may be received at the discretion of the court, the officer's fees to be disallowed. This law does not extend to suits before justices, although the rea- son is the same. As the statute requiring writs to be re- turned before a justice twenty-four hours before the day of trial, does not expressly say that where they are not so returned, the justice cannot proceed in the case, it is the most reasonable construction of the statute, that where no objection is made on account of the writ's not being re- turned in season, the justice -can try the case, as the de- fendant may waive the objection. In case of defaults where the defendant does not appear, if the writ has not been re- turned in season, the justice may enter upon judgment by default, as the defendant may be considered as waiving the exception by not appearing. (9.) In an action brought before a justice wherein the defendant is an inhabitant of the state, but out of the state when the suit was commenced and does not return before the trial, such action must be adjourned a reasonable time, not less than one month, nor more than nine, to give the defendant an opportunity to return, or for notice to be giv- en to him. And where in an action before a justice, the defendant is not an inhabitant or resident of this state, and actual notice is not given to him, the action must be ad- journed for a term not less than three, nor more than nine months (r). If judgment is given on default, without ar< (p) St. 37. (?) St. 39. (r] St. 40. 41 appearance by any other person for the defendant, and without the cause being adjourned, in either of the afore- said cases, it will be erroneous ; and on application to the county court a new trial will be granted. In actions on joint securities, where all the defendants are not inhabitants of this state, service on those that are inhabitants of this state, is sufficient to maintain the action against all the defendants ; and in such cases it is not ne- cessary to continue the suit on account of some of the de- fendants not being iiihabitants of this state. A justice of the peace has in no case the power of granting new trials ; but in either of the aforesaid cases if judgment is rendered against a defendant who was out of the state at the service of the writ, who continued absent until after the time of trial, and who had no actual notice, he may apply to the county court of the same county, which, on his making it ap- pear, that such judgment was obtaiaed wrongfully, and that he has a good ground of defence, may grant him a new trial, and proceed to final judgment therein. The case is not to be returned to the justice to be tried again by him. Petition must be brought to the county court, within six months after such absent defendant returns or comes in- to this state, and within three years from the rendering of the judgment (s). Where judgment was rendered against an absent debtor after adjourment of the cause, formerly the form of the judgment was that execution issue on the Plain- tiff's, giving bond, with surety in double the amount of the judgment to refund the money in case the judgment should be set aside. But since the revision of the statutes this is not necessary. When the defendant does not ap- pear, or if he appears and does not answer to the case on its being called, the plaintiff is entitled to judgment on default, and it is the duty of the justice to enter up judgment accordingly, and issue execution. Form of Record on Default. County of ss day of A. D. At a court holden before the undersigned authority, at the time and place aforesaid, John Brown against Peter (*) St. 40. 4* 42 Smith, action on the case demanding thirty-five dollars damages ; the plaintiff appeared, but the defendant being called made default of appearance, whereupon it is consid- ered that the plaintiff recover of the defendant the sum of damages, and his costs of suit, taxed and al- lowed at making in the whole the sum of dollars and cents ; and that execution issue therefor, with seventeen cents more for the same, and returnable according to law. Dated &c. A. B. Justice of the Peace. It is.- not however, necessary to make out a record in full ; it' is sufficient to make an entry or memorandum on the file, that the case was defaulted on such a day, and to enter the amount of the damages and costs ; items of the costs being specified. Such an entry on the file is not a record of the judgment ; but no inconvenience can arise from the practice, as a justice is authorised at any time afterwards to fill up and complete the record, not only during his continuance in office, but after he is out of office, except he is removed or left out in consequence of some crime of which he has been convicted, by impeachment or otherwise (<). When a justice shall die or removes out of the state, or is removed from office on account of some crime, his files shall be by himself or his heirs, ex- ecutors, or administrators, lodged in the office of the town clerk of the town where he last resided. And such town clerk is required to demand and receive such files and re- cords, and safely to keep the same to give, when requir- ed, true copies, which shall be legal evidence. And if such person who has exercised the office of justice of the peace, and is removed as aforesaid, or the executor or ad- ministrator of a justice in case of his death, shall refuse to deliver to the town clerk his files and records within ten days after they are demanded, he shall forfeit for each week he so refuses, the sum of five dollars, to be recover- ed in an action in the name of the county treasurer (). 2. If on calling the action the Plaintiff does not appear, and the defendant does, the defendant is entitled to judg- (<) St. 381. (M) St. 381. nient on non-suit. It is usual to give one hour of grace be- fore the action is called. Form of Judgment. At a court, &c. (name the partie? and cause as in default,) the defendant appeared and an- swered to the action, but the plaintiff being three times publicly called, did not answer or appear ; whereupon it is considered that the defendant recover of the plaintiff his costs, taxed and allowed at and that execution issue therefor, with seventeen cents more for the same, and re- turnable according to law. A. B. Justice of the Peace. CHAPTER VI. //. Of Proceedings in Trials. When the parties appear before a Justice for trial, vari- ous motions and interlocutory questions may arise. If the writ has not been returned in season, an exception may be taken, either on motion or by plea in abatement. Of Special Bail. 1. Where the body of the defendant has been attached, the plaintiff is entitled to special bail. When it is required by the plaintiff, no defendant, whose person has been at- tached, and let to bail, shall be admitted to plead or defend in such action until he hath in court given special bail, with sufficient sureties for his abiding final judgment in the cause. If the defendant was attached and imprisoned, and so re- mained at the time of trial, he cannot be required to give bail (a). Special bail is to be ordered on motion ; where the defendant is taken by surprise, it is proper to give him reasonable time to procure bail, and it may sometimes be necessary to adjourn the cause for that purpose. The lia- bility of special, is the same as common bail, or the bail on the attachment ; he is liable to satisfy thejudgment in case of the avoidance of the principal and return of non est in- (n) Stat. 62. 44 ventus that the principal cannot be found on the execu- tion. When bail is taken on mesne process or attachment, the bail or surety may at any time during the trial, before entering up final judgment, surrender the principal up in court, and move to be discharged. He must thereupon, if he wishes it, move to have him taken into custody, which the court will order and grant a mittimus to commit him to the keeper of the gaol, that his body may be taken on the execution. If the plaintiff does not move to have him taken into custody, he will be discharged (6). He is to be kept in custody live days after final judgment ; when if execu- tion is not levied on him, he may be discharged (c). Form of J^Iittimus, To the Sheriff, &c. Whereas A. B. of was at- tached by C. D., deputy to the sheriff of by a writ of attachment in favour ofE. F. of against the said A. B., demandingthe sum of damages issued by G. H., Justice of the Peace, returnable before me this day ; and the said A. B. having been let to bail, and his said bail or surety having brought him into court and surrendered him during the trial, and before entering up final judgment, and moved to be discharged : Wherefore, you are hereby commanded to take the said A. B., &c. If a defendant does not obtain bail in the first instance, but is committed to gaol, and is bailed whilst confined, as he may legally be by the sheriff having the charge of the gaol, the plaintiff has the same right to special bail, as though he had been let to bail at first. Where the plaintiff is entitled to special bail, he must move for it before tbe defendant has been permitted to plead in the case ; for after a plea has been received it is too late, and as the law requiring spe- cial bail has an apparent rigour in it, the plaintiff ought to be held to the strict rule, and his motion rejected, unless made in season. Where special bail is ordered, and the defendant neglects, refuses, or is unable to give bond with surety, if he will not agree to suffer a default, judgment must be given against him on nihil dicit the defendant's (&) St. 63. (c} Swf. Dig. 596. refusing to plead or answer, for if he neglects or refut-e.- to comply with the legal orders of the court, where' plea can be received, he is considered as refusing to plead or answer in the case ; whereupon judgment may be enter- ed up against him on the ground of such neglect or refu- sal. Form of Judgment. At a court, &c. (same as in default,) the action being called, the parties appeared, and the defendant bavin;:; been attached on the mcsne process and let to hail, the plaintiff moved for special bail, which was ordered by the co'irt, but the defendant neglected and refused to give special bail, agreeably to the order of the court, and so the defendant neglected and refused to answer, plead, or defend in s -iid cause ; whereupon it is considered that the plaintiff is entitled to judgment against the defendant, and that he re- cover of him the sum of damages, .c. Of Bonds for Prosecution. 2. Where a bond was not given at the praying out of the writ, or where the bond taken is insufficient, the Jus- tice, on motion of the defendant, and on satisfactory proof that the plaintiff or his surety is not able to satisfy the bill of cost that may be recovered in the suit, must order the plaintiff to give a bond with surety to prosecute his action to effect, and pay all d images in case he fail in his suit (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 (nd having heard the parties with their witnesses and exhibits, I do find that the said C. D. did assume and promise, in manner and form the plaintiff in his declaration hath alleged, and thereupon it is consid- ered by me that the plaintiff recover of the goods and es- tate of the said C. D. in the hands of the defendant, as ex- ecutor of his said last will, the sum of dollars dama- ges and his costs, taxed at and that execution issue against the goods and estate of said deceased in the hands of the defendant, to recover the same, with seventeen cents more for said execution, and returnable according to law. Dated, &c. Execution. To the Sheriff, &c. Greeting Whereas A. B. of recovered judgment against the estate of C D. late of deceased, in the hands of J. S. executor of the last will of the said C. D. before me, a Justice of the Peace, for the county of on the day of A. D. for the sum of dollars damages, and for the sum of dollars costs of suit, "as appears on record : whereof execution remains to be done. These are therefore to command you, that of the 71 money*, goods and chattels of the said C. D. deceased, in the hands of the said J.. S. to be by him shown unto you, within your precincts, you cause to be levied, paid and sat- isfied unto the said A. B. the aforesaid sums, being dollars and cents in the whole, with seventeen cents more for this writ, together with your own fees. Hereof fail not and make due return of this writ, with your doings, within sixty days next coming. Dated, &c. Q,. R. Justice of the Peace. NOTE. If the executor does not pay the execution, and he has not represented the estate of the deceased insolvent, after return of the execution, a scire faeias may issue against him and judgment be obtained, upon which, execu- tion will issue in common form against him and his estate. An executor or administrator is not liable to be sued until the time .for settling the estate has expired ; and then if the estate was represented insolvent, he is liable for such sum or proportion of each debt, or dividend, as the credit- ors are entitled to receive, where, the estate is not suffi- cient to pay the whole of the debts. In such cases he may be sued directly for the dividend, or on the original claim, ns executor, and judgment given only for the amount of the dividend, or portion of his claim, to which the plaintiff may be entitled. 2. DECLARATION by the holder of a note not negotiable against the endorser. In case of a general or blank endorsement, the contract or legal liability of the endorser is not an absolute one, but conditional. It is an undertaking to pay the note in case it ( cannot be collected of the maker, with (Inf. tlill^e.nce un the part of the endorsee or holder. In ordinary cases he must sue the maker, and can only come upon the endorser, after failure of collecting the debt by suit. In it plea of the case, for that, on the day of A. D. the defendant had in his possession a certain writing or note, made and executed by A. B. whereby and wherein the said A. B. promised for value received, to pay to the defendant the sum of twenty dollars on demand and interest ; and that afterwards, viz. on the day and year l.jst aforesaid, fora valuable consideration, the defendant iy lii-i 72 endorsement on the back of said note, assigned and trans- ferred said note to the plaintiff, and authorised him to col- lect and receive the contents of said note to his own use and benefit. And afterwards, viz. on the day of A. D. the plaintiff caused said note to be put in suit, by a writ of attachment issued by Q,. R. justice of the peace, and directed to a proper officer to serve, of the date last aforesaid, and returnable before said Q,. R. justice of the peace for the county of on the day of A. D. at in said county ; and which said writ of attachment the plaintiff delivered to O. P. constable of said town of who thereupon made diligent search for goods or estate of the said A. B. but finding none, he at- tached the body of the said A. B. and took bail for his ap- pearance at court, and returned said writ to said Justice more than twenty-four hours before the time the same was made returnable. And on the said day of the plain- tiff obtained judgment in the name of the defendant, before said Justice, Q,. R. in said suit against the said A. B. for the sum of dollars damages, and the sum of dol- lars costs of suit ; for which said sums execution was duly issued, and for seventeen cents more, the price thereof, by the said Justice, Q, R. and directed to a proper officer to serve, returnable within sixty days from the date there- of, and bearing date the day of A. D. ; and the plaintiff delivered said execution into the hands of said O. P. then a lawful constable of the said town of who thereupon, and by virtue thereof made diligent search for goods and estate of the said A. B. whereon to levy to satisfy said execution, and his fees thereon, but could find none, and none were shewn unto him by the said A. B. whereupon the said constable levied said execution on the body of the said A. B. and him committed to the keeper of the gaol in and for said county of to be confined in said prison on said execution. And the plaintiff further says, that afterwards, viz. on or about the day of in the year aforesaid, the said A. B. had legally administer- ed to him, by C. D. Justice of the Peace for said county, the oath by law provided for poor debtors in prison, and the said A. B. was thereupon discharged from confinement in said gaol on said execution ; and which said execution, with the said constable's doings endorsed thereon, was re- turned to said Justice, Q,. R. during the life thereof. And the plaintiffs-ays that said execution hath not in any other- wise been satisfied than by the aforesaid levy, and that tho same with the said constable's fees thereon, amounting; to dollars cents, is now justly due unto tl,r< p] tiff, and that said judgment hath not been reversed or set aside, but is now in force And the plaintiff says ihr- ment thereon, to the said A. B. at and requested pay- ment of the same ; but the said A. B. then and there neg- lected and refused iv pay said note or any part thereof And the plaintiff snys, that the said A. B. was at the time said note was assigned to him .i plaintiff to pay to him on request, the contents of the same note ; 7 but his promise not regarding, hath not performed the same although often requested, &c. [If the debtor absconds before the note becomes due or before demand, say :] And the said A. B. before said note became due, (or im- mediately after the assignment of said note if then due) absconded out of this state to parts to the plaintiff unknown ; ;ind at the time of the assignment of said note, and when the said A. B. absconded as aforesaid, he was not in the possession of any goods or estate liable to be taken for debt ; but was totally insolvent and wholly unable to pay said note, and known by the defendant so to be, when he assigned said note. And the plaintiff says, that by means of the premises the defendant became liable to pay the contents of said note, and being so liable &:c. [Where the endorser interferes with the collection of the note or discharges the same, the declaration will be the same until vou state the interference of the defendant :] And the defendant appeared before said justice Q,. R. on the said day of A. D., and then and there withdrew said suit and prevented the plaintiff from obtain- ing judgment on said note and collecting the same ; and which said note hath never been paid by the said A. B. to the plaintiff, but is now justly due to him. And the plain- tiff says, that by means of the premises the defendant be- came liable &c. [Or where the defendant gives a discharge of the note, say :] And the said A. B. appeared before said justice at the time and place aforesaid and'answered to said action ; and then and there as a defence to the same, plead or gave in evidence, a discharge from the defendant to the said A. B. of all claims and demands, executed after the date and assignment of said note, and before the said A. B. had had notice of said assignment; and the said justice did then and there give judgment for the said A. P>. to re- cover hi.- costs : and by means of the defendant's giving said discharge the plaintiff was def'.-ntcd in the collection of-iid note, and put to great cost and charge (viz.) the sum of -f, 'dollars, and the said note hath never been paid to the }=l iintiiV. but i* m>\v justly due to him, together with his said cost and charges. And the plaintiff say;, that by means .-.f the- premises the defendant became liable to pay the contents of said note and his said costs and charges, arising from said suit &c. [Where there has been a discharge, or payment, and no suit commenced on the note, say :] And after the assignment of said note (viz.) on the day of A. D. the defendant settled with the said A. R. and received from him the contents of said note in full, and the said A. B. then and there paid to the defendant said note, the said A. B. not having been notified by the plain- tiff of said assignment ; or, And after the assignment of said note and before the said A. B. had been notified of such assignment (viz.) on or about the day of A. D. the defendant executed to the said A. B. for a valua- ble consideration, a discharge of all claims ancf demands, whereby said note was cut off, and discharged, and the plaintiff prevented from the collection of the same ; and which said note hath not been collected or paid to the plaintiff, but is now justly due to him. And by means of the premises the defendant became liable &c. 3. DECLARATIONS on Negotiable Notes. Justices of the peace have now jurisdiction of negotia- ble notes, where they are for the sum of thirty-five dol- lars, and expressed not to be on interest. A note less than thirty-five dollars, cannot be negotiable, and unless expressed not to be on interest, all notes now draw inter- est, consequently the accruing interest will immediately take away the jurisdiction of the justice. But it some- times happens that justices have occasion to make writs returnable to the county court. A negotiable note must be for thirty-five dollars or more, payable in money only, to any person or his order or bearer. The only difference whether a note is payable to order or bearer, is, that the latter pass by delivery, and the former by endorsement. A negotiable note when assigned or negotiated, is complete- ly transferred, so that the assignee can sue it in his own name, and the original promisee cannot discharge or con-- troul it. It is the duty of the holder of a negotiable note in order to charge the indorser, to make demand of the maker of payment of the note on the third day after the note falls due, being the last day of grace as it is called, if the maker neglects or refuses to pay the note, the hold- er must immediately give notice to the endorser of the failure of payment. If the endorser lives in the same town he must have actual notice ; b\:i if he lives out of town he may be notified by a letter put into the post-office. When tiie note is over due at the time it is negotiated, still a demand must be made of the maker with due diligence, and notice immediately given to the endorser as in other cases (a). The Indorser against the Maker. In a plea of the case for that, the defendant in and by a certain note or writing under his hand, and by him well executed, promised, for value received, to pay to one A. B. of or order, the sum of with the interest, in ninety-five days from the date of said note, and which was dated the day of A. D. ; and the said A. B. afterwards (viz.) on the day of A. D. by his endorsement of the same note in writing un- der his hand, ordered the contents thereof to be paid to the plaintiff or his order, according to the tenor of said note, of which the defendant then and there had notice, and thereby became liable, and in consideration thereof, then and there promised the plaintiff to pay to him, the con- tents of the same note, according to the tenor thereof, yet, although often requested and demanded, the defendant had never paid said sum or any part thereof, but wholly neglects & refuses so to do, to the damage of the plaintiff, &c. Indorsee against the Indorser. In a plea of the case for that, one A. B. f on the day of A. D., made his certain writing or promissory note, his own proper hand being thereunto subscribed, dated the same day & year last afore- said, thereby and therein promised the defendant to pay to him or order, for value received, the sum of dollars with interest, in ninety-five days from the date thereof. And afterwards (viz.) on the day of A. D. by his endorsement of the same note in wri- .ting under his hand, the defendant ordered the contents of the same note to be paid to the plaintiff or his order, ac- cording to the tenor thereof. And the plaintiff says that afterwards, 9n the day said note became due and payable (viz.) on the day of A. D. at (a) 2 Conn. Rp. 419. 77 he presented said note with the said endorsement thereon, unto the said A. B. and requested him to pay the contents of the same note, according to the tenor thereof, and of gaid endorsement ; but the said A. B. then and there neg- lected and refused to pay the sum of money contained in said note, nor hath he yet paid the same oT any part there- of; of which the plaintiff afterwards (viz.) on the day and year last aforesaid, gave notice to the defendant. And the plaintiff says, that by means of the premises, the defendant became liable to pay to the plaintiff the sum of money mentioned in the same note, and being so liable and in con- sideration thereof, afterwards (viz.) on the day and year last aforesaid, assumed and promised &,c. [Where the note has passed through several hands say :] One A. B. made and executed his certain promissory note, dated &,c. wherein he promised to pay to C, D. or order, the sum of and the interest, in ninety-five days from the date thereof; and that afterwards (viz.) on the day of A. D. the said C. D. by his en- dorsement in writing made on said note, his own hand be- ing thereto subscribed, ordered the contents of said note to be paid to J. S. or order, for value received ; and- -after- wards the said J. S. (viz.) on the day of \. D., the said sum contained in said note being unpaid, by his endorsement made on said note, under his hand, and for value received, ordered the contents of said note to be paid to the plaintiff &,c. [Or if you please, you may declare against a prior en- dorser in the same manner as though there were no sub- -equent endorsers, alleging the note to have been directly endorsed by the prior endorser to the holder, taking no notice of the intermediate endorsements ; but in such cases you must strike out the subsequent endorsements.] 4. DECLARATION on a Receipt taken by tfn Officer for the safe keeping and delivery of property taken on Execution. In a plea of the case for that, the plaintiff says, on the day of A. D., he was and ever since hath been a constable of the town of in said county ; and that af- terwards (viz.) on the day and year last aforesaid, there was delivered into his hands to levy a writ of execution issued by .'. P. justice of the peace for the county of 78 upon a judgment recovered before said justice, by A. B, against C. D., and of the sum of dollars damages, and dollars costs including seventeen cents for said writ of Execution, and which was directed to the sheriff of said county of his deputy or ei- onstable of said town of and was in due form of law. And the 'plaintiff afterwards repaired with said execution to the usual place of abode of the said C. D. in and then and there made demand of the debt, or sum due on said execution, and his fees for executing the same, which the said C. D. then and there neglected and refused to pay ; whereupon the plaintiff afterwards (viz.) on the day of A. D. at said said execution being in full life, levied the same on a cer- tain horse, the proper goods of said C. D., took the same into bis possession, and thereupon drew a description of said horse, and posted up the same on the public sign-post in the society of in said town, within which socie- ty said property was taken ; and with said description of said property, the plaintiff also set up a declaration that the same would be disposed of at public vendue at the place where posted, at the end of twenty days from the day of that day having been previously named at the hour of o'clock in the afternoon. And the plaintiff says that afterwards (viz.) on the day of A. P., whilst he held said property to satisfy said execu- tion , ud hie fi'os thereon, at their special request, he de- livered said horse into their hands for safe keeping and re-delivery ; and thereupon and in consideration thereof the defendants executed and delivered to the plaintiff a certain writing or receipt, dated the day and year last aforesaid, their hands being thereunto subscribed, where- in they acknowledged the receipt of said property, and promised the plaintiff safely to keep said horse, and to re- deliver the same at said sign-post, on the day and hour mentioned aforesaid, for the disposal of the same accord- ing to law. And the plaintiff says that the defendants did not re-deliver said horse to the plaintiff at paid sign-post on said day of although he was then and there ready to receive the same ; nor h;ver of the defendant the aforesaid several sums, and seventeen cents more for the execution which issued 88 on said judgment, together with the interest thereon ; yet the defendant, although often requested and demanded, hath not rendered and paid the said several .sums and the inter- est thereon, nor either of them, nor any part thereof, but unjustly detains the same, to the damage of the plaintiff, &c. 7. Declaration of Debt on an Award. In a plea that to the plaintiff, the defendant render the sum of which he justly owes to him, and from him un- justly detains : Whereupon the plaintiff declares and saySj that on the day of A. D. the plaintiff and de- fendant mutually and amicably agreed to, and did submit, certain matters then in controversy and dispute between them, to the arbitrement and determination of A. B. and C. D. to hear and determine the same, and make their award thereon, on or before the day of A. D. ; and the said A. B. andC. D having agreed to act as arbitrators, and to examine and decide said matters, afterwards, viz. on the day of A. D. the plaintiff and defendant ap- peared before them, and were fully heard with their wit- nesses and exhibits in the premises whereupon the said arbitrators did adjudge, decide, and make and publish their award of and upon the said matters in controversy submit- ted to them as aforesaid, that to terminate and put an end to said controversies, the defendant should pay to the plain- tiff the sum of dollars, in a reasonable time ; yet the defendant hath never paid said sum nor any part thereof, although often requested and demanded, and although a reasonable time hath long since elapsed ; but refuses so to do, and unjustly detains the same to the damage of the plaintiff, &c. 8. Debt on Recognizance. Whereupon the plaintiff declares and says, that the said defendant, A. B. brought his action of the ease against the plaintiff by process, returnable before J. P. Justice of the Peace for the county of on the day of A. D. and during the trial of said cause, on the same day the defendants appeared before said justice and acknowledged themselves holden and bound, in a recognizance to the plaintiff, the said A. B. as principal, and the snid C. D. as surety, in the sum of dollars, to be paid to him incase the said A. B. should fail to prosecute his said action to ef- fect, and pay all damages in case he fail to make his plea good; and the plaintiff says that afterwards, viz. on the same day said justice J. P. gave judgment in said cause for the plaintiff to recover of the defendant A. B. his costs ot suit taxed at the sum of dollars ; and thereupon the said Justice issued an execution on said judgment for the said sum of and seventeen cents more for said execu- tion, and afterwards, viz. on the day of A. D. the plaintiff delivered said execution to O. P. then and ev- er since a constable of the town of to levy and collect, and afterwards, viz. on the day of said constable made return of said execution into the office of said Justice, J. P. with an endorsement made thereon, that he could find neither goods, chattels, or the body of the said A. B. where- on to levy the same, and to his said endorsement he annex- ed his fees amounting to dollars cents, all of which may more fully appear, from the files and records of said cause, ready in court to be produced. And the plaintiff says that said judgment hath not been reversed, or satisfi- ed, and that said recognizance hath not been cancelled or vacated ; and that A. B. did fail to prosecute his said action to effect, and that he hath also failed to satisfy the dama- ges and costs sustained by the plaintiff thereby, to the dam- age of the plaintiff the sum of to recover which, &c. [Where a recognizance is given on an attachment, say :} For that on the day of A. D. A. B. applied to J. P. Justice of the Peace for the county of for a writ of attachment in his own favour and name, against the plain- tiff, and the said Justice, J. P. then and there filled up a writ of attachment in the name and behalf of the said A. B. against the plaintiff, dated the day and year laet aforesaid, and returnable before the said Justice, J. P. on the day of A. D. and thereupon the defendant appeared before said Justice J. P. and acknowledged himself holder, bound and obliged unto the plaintiff in the sum of dollars, to be paid to him in case the said A. B. should fail to .pros- ecute his said suit to effect, and answer all damages and costs the plaintiff might sustain if he did not make his plea good ; and thereupon said Justice J. P. issued said writ of attachment in due form of law. And the plaintiff further says, that afterwards, viz. on the day of A. D, 8* 90 the plaintiff recovered judgment in said action before said justice J. P. for his costs of taxed and allowed by said Justice, at dollars and cents. [The remainder of the declaration the same as the last.] 9. Of Scire Facias. A writ of scire facias may be brought upon a recognizance taken before a Justice of the Peace, or upon a judgment when the Justice dies, or is removed from office, or where either the plaintiff or defendant dies, or against a garnishee in case of foreign attachment, or factorising suit. Where a scire facias is brought upon a recognizance or judgment of a Justice of the Peace, it should be signed by the Justice rendering the judgment, and made returnable before him if the demand does not exceed thirty-five dollars. If the de- mand exceed thirty-five dollars, the writ must be signed by the justice, and returnable to the county court. If the Justice rendering the judgment is dead, the writ may be signed. and made returnable before any other Justice. On recognizance?, however, i> i? now most common to bring an action of debt, of which we have already given a form of declaration. Of Scire Facias against Garnishee. [A foreign attachment or factoi ising suit, is a suit in com- mon form, at the bottom of which there is a direction to the officer to leave a copy with the debtor, agent, or factor of the defendant. At the bottom of the writ say as follows :] And the officer to whom this writ is directed, and who may serve the same, is also commanded to leave a true and attested copy of this writ, with C. D. of or at his usual place of abode, at least fourteen days before the day the t>ame is made returnable, who is the agent, trustee, factor and debtor of the defendant in this writ, and has of the monies and goods of the said defendant, in his hands ; and you are likewise to leave a like copy at the last usual place of abode of the defendant, if he hath had any in this state Plaintiff recognized in the sum of to prosecute, &c. J. P. Justice of the Peace. As we have elsewhere stated, the cause must be adjourn- ed if the defendant is not an inhabitant of this state, not less ban three, nor more than nine., months. On judgment be- 91 fore the county court in such cases execution cannot issue until a bond with surety is given to refund the amount of the judgment, if on a petition for a new trial, the court should so determine ; but this is not necessary in judg- ments before Justices of the Peace, no bond being required by the statute, but the defendant within six months after his return to this state, may bring a petition to the county court for a new trial. The return of the execution unsat- :ind also that demand of the same was made of the garnishee or the person f ictorised, and of his refusal to pay the execution, or expose the property in his hands, lays the foundation for a scire facias, against the garnishee. 10. Declaration of Scire Facias against Garnishee. To the Sheriff, &c. Greeting. Whereas A. B. of brought his action of the case on a note against C. D. an ab- sent and absconding debtor,, by writ of attachment dated the day of demanding thirty-five dollars, and return- ahle before J. P. Justice of the Peace for the county of on the day of A. D. ; and which said writ was duly served on the said C. D. by leaving a true and an at- tested copy thereof at his last usual place of abode in this state, and also, agreeably to the direction therein, a like copy with the officer's doings thereon endorsed, was left with E. F. of attorney, agent, trustee and debtor to the said C. D. more than fourteen days before the day said writ was made returnable, and which said writ was duly returned to the office of said Justice ; and on the said day of A. D. the C. D. not appearing to answer to said action, the same w.is adjourned to the day of being more than three months from the day said action was made answerable, when the said A. B. recovered judgment against the said C. D. before said Justice, for the sum of doll.irs damages, and costs of suit, and thereupon said Justice issued execution for said sums, with seventeen cents more for said execution, dated the same day ;md year, di- rected to the sheriff of the county of his deputy, or either constable of the town of and returnable in six- ty <> .y* from its date, and which said execution the said A. B. put into the hands of O. P. then and ever since constate of the said town of who on the day of made return of the same into the office of said Justice, J. P. with his endorsement thereon, that he had made diligent search for goods of the said C. D. and for his body, whereon to levy, but could find neither, and that on the day of he made demand of the said E. F. agent, trustee and debt- or to the said C. D. of the sums contained in said execution, and of the monies and goods of the said C. D. in his hands to satisfy said execution and his fees thereon, but the said E. F. refused to pay said execution, or to tuin out or ex- pose any goods or estate of the said C. D. whereon to levy to satisfy the same ; and to his said endorsement said con- stable annexed his fees, charged at ; ass by the files and records of said justice, J. P., in said cause may more fully appear. And now the plaintiff says that the said C. D. at the time of the service of said writ, was an absent and absconding debtor, and thatE. F. at the time the copy of said writ was left with him, was agent, trustee, debtor and attorney to the said C. D. and justly indebted to him in a greater sum th-m the amount of said execution and the officer's fees thereon ; yet the defendant would not pay the same, nor expose or discover any estate, whereon the said execution might be levied and satisfied, whereby the de- fendant hath become liable to satisfy the paid execution and the officer's fees thereon, out of his own estate ; and the plaintiff says that said judgment hath never been reversed or satisfied, but the same, with the officer's fees on said ex- ecution are now justly due to him, with the interest there- on. Wherefore, by authority of the state of Connecticut, you are hereby commanded to attach (or summon) the goods, &c. of the said E. F. to the value of &c. and for want thereof attach his body, and him have to appear before J. P. justice of the peace for said county of on the day of then and there to shew reasons, if any he have, why judgment should not be rendered against him in favour of the plaintiff, for the amount of said sums contained in said execution, and the officer's fees thereon .and costs of this suit. Hereof fail not, but due service and return make. The plaintiff recognized in the sum of to prosecute. &c. Dated at, &c. J. P. Justice of the Peace, Plea. The defendant defend-, pleads, and says, that at the time of the issue of the writ mentioned in the plaintiff's decla- 9.J ration, he was not agent, trustee or debtor of the said C D. and that he had not any monies, goods or estate of the said C. D. in his hands and was not indebted to him in any sum whatsoever, and hereof for trial puts himself on the court and prays to be examined on oath, as is by statute in such cases provided. E. F. And the plaintiff does likewise. A. B. 1 1. Scire facias on judgment of a justice who is deceased. To the sheriff &c. Whereas A, B. of on the day of recovered judgment against C. D. before J. P. then justice of the peace for the county of for the sum of dollars damages, and the sum of costs of suit, upon which said judg- ment execution was issued by said justice, which has nev- er been levied, and was returned unsatisfied, as by the files and records of said justice in said cause will appear. And whereas since the return of said execution, the said J. P. is deceased, and no execution can be issued on said judgment, which hath never been reversed or in any oth- er way satisfied. Wherefore by authority of the State of Connecticut, you are hereby commanded to make the said C. D. to know that he appear before Q,. R. justice of the peace for the county of on the day of then and there to show cause, if any he hath, why the said judgment of said justice J. P. deceased, should not be affirmed and judgment rendered, against the said C. D. in favour of the said A. B for the several sums, damages and costs, of the aforesaid judgment, the interest thereon, and costs of this suit. Hereof fail not &c. [Where the justice is left out of office, or has removed out of the State, allege that fact instead of his being dead.] 12. Scire facites against Administrator or Executor. To the sheriff &c. Whereas A. B. of on the day of recovered judgment against C. D. of before J. P. justice of the peace for said county of for the sum of damages, and the sum of costs, and took out execution for said sums, and seventeen cents more for said execution, which was dated the same day of A. D. ; and whereas since the rendering of said judgment, and granting of said exe- 94 cution the said A. B. died ; and whereas E. F. of is administrator (or executor of the last will,) of the goods and estate of the said C. D. deceased, and has taken upon him the burden of said trust. And the plaintiff says that said judgment hath not been reversed, and the same, and said execution have never been in any way satisfied, but are now justly due. Wherefore you are required to cause the said E. F. as administrator of the estate of the said C. D. deceased to know that he appear before J. P. jus* tice of the peace for the county of on the day of at then and there to show cause, if any he hath, why judgment shall not be rendered against the goods and estate of the said C. D. deceased, delivered into the hands of the saidE. F. as administrator as aforesaid, Hereof fail not &c. J. P. Justice of the Peace. 13. Scire facias by an Administrator or Executor. To the sheriff &c. Whereas A. B. of on the day of recovered judgment against C. D. before J. P. justice of the peace for the county of for the sum of damages and the sum of costs of suit, and took out execution therefor, dated the,, day and year last aforesaid ; and where- as afterwards (viz.) on the day of the said A. B. died ; and E. F. of is executor of the last will and testament of the said A. B. and hath taken upon him the execution of the said trust. And the said E. F. a*, ex- ecutor as aforesaid saith that said judgment hath never been reversed, and that the same and said execution have never been paid or satisfied, and thereupon prays remedy in the premises. Wherefore, you are hereby commanded to causo the said C. D. to know that he appear before the said justice J. P. at &c. on the day of &c. then and there to shew reason why judgment shall not be rendered against him in favour of the said E. F. executor of the last will of the said A. B. deceased, for the several sums aforesaid, amounting to , the interest there- on, and the costs of this suit. Hereof &c. J. P. Justice of the Peace. 14. DECLARATION of Covenant. A covenant differs from other agreements only from its being under seal. Actions of covenant are now seldom brought except upon the covenants in deeds, which as they relate to lands are called covenants real, and go with the title. Although an action for the breach of covenants in a deed cannot be brought before a justice of the peace, as the title is directly brought in question, yet we give a form of the declaration. In a plea of covenant broken, whereupon the plaintiff declares, and says, that on the day of for the consideration of he purchased of the defend- ant a certain tract of land, lying described as fol- lows : and that the defendant on the day aforesaid, made, executed, and delivered to the plaintiff a deed of conveyance of said lands, in which, among other things, the defendant covenanted with the plaintiff, that at, and until the ensealing of said deed, he the defendant was well seized of the premises, as a good indefeasible estate in fee as by said deed ready in court to be shewn, ap- pears. Now the plaintiff says, that at the time of ""execu- ting said deed, the defendant was not well seized of the premises, as an estate in fee, and that he was not owner of said land, but the same belonged to C. D. and thereupon the plaintiff says that the defendant his said covenant not regarding has wholly failed to keep, and perform the same, though often requested, but has broken the same, and re- fused, and still does refuse to keep the same, to the damage of the plaintiff. CHAPTER X. OF THE ACTION OF TRESPASS. Actions of trespass are either for injuries done to things real, to things personal, or to persons. A parent or master may maintain trespass for an injury to /us child or servant, on the Around of loss of service. The first is commonly c :' 1 trespass quare clansum fregit, and the last assault ittery. Minors, and persons non compos are li-ible f ii-espasso5,;md when they are sued, their parents/guar- dians, conservators or overseers should be notified, if they - have any, but if they are not, the court must stay the pro- ceedings and cause them to be notified. Where a minor has no parent or guardian, the court will appoint a guardi- an to defend him in the suit, otherwise the judgment will be erroneous. 1. Declaration of Trespass quare clttusumfregit. In an action of trespass, whereupon the plaintiff de- clares, and says, that on the day of he was and ever since has been possessed of a certain tract of land, lying in butted, and bounded, and described as follows and the plaintiff says that on the day of the defendant with force, and arms did break, and enter into, and upon said described tract of land of the plaintiff, and did tread down, consume and destroy the herbage then and there growing, and did cut down one hundred trees, then, and there standing, and growing, to the damage of the plaintiff. Where the damage is done by cattle, the declaration must charge the defendant with breaking into, and entering upon the land of the plaintiff, and treading down, and de- stroying the grass, and herbage with his cattle, viz. horses, oxen, sheep, kc. Plea. The defendant defends, pleads and says, that of having &. maintaining his said action the plaintiff ought to be barred, because he says that although true it is, he entered on the said land, described in the plaintiff's declaration, yet he says he had a good right so to do ; that he is the owner of said land, and at the time of the acts complained of, the title of said land was in the defendant, and that ever since the title to said land hath been and is still in the defendant, which he is ready to verify, and hereof prays judgment. Defendant for himself. Record. At a court holden &c. A. B. against C. D. action of trespass, whereupon the plaintiff declares and says that on the 'i-y of he was seized and possessed of a certain piece of land, bounded and that afterwards (viz ) on the day of the defendant 9? with force and arms entered into and upfi said piece of land, trod down the herbage and cut and carried away one hundred trees, then and there standing &c. ; to which, the defendant pleads and says that true it is, he entered upon aid land and cut said trees, but he further says that at that time and ever since he was owner of said land and that the title thereof was then and is still in the defendant, which he is ready to verify ; and thereupon the defendant with surety entered into a recognizance in the sum of dollars to the plaintiif conditioned that he would enter said cause and prosecute his said plea to effect in the next county court of the county of within which the said land lies, and pay all damages and costs, if he fail to make bis plea good. J. P. Justice of the Peace. Recognizance. H county, ss. II , Appeared before me on the day and year above written, C. D. and E. F. and acknowledged themselves jointly and severally, the said A. B. as principal and the said E. F. u.~ surety to be indebted and bound and holden unto the afore- said C. D. in the sum of dollars to be paid, in case the said A. B. shall neglect and fail tu enter the afore- said cause in the docket of the county court to be holden at within and for the county of and prosecute his aforesaid plea to effect, and pay all the damages and costs, the said A. B. plaintiff in said action, may sustain in case he fail to make his said plea good. J. P. Justice of the Peace. If the defendant after pleading title, refuses to recognize with surety, the action must proceed, and his plea be rejec- ted by the court ; yet if he refused to plead anv other, judgment may be given against him on nih.il dicit. 2. Declaration of Trespass to personal property. In an action of trespass, whereupon the plaintiff declare;- and says, that on the day of he was the lawful owner of a certain bay horse, six years old, of ' the price and value of one hundred dollars, and the. defendant on said day, did with force, and arms, take and <-arry au-uv said horse out of the possession of the plain- i7 tiff, to some place unknown, whereby the plaintiff has whol- ly lost the same, to his damage. In an action of trespass, whereupon the plaintiff declares and says, that the defendant, on the day of at did with force and arms, break into the dwelling house of the ^plaintiff, and did him assault and beat, and unlawfully imprison for the space of twenty-four hours, and did with force take, and carry away his goods and chat- tels, viz. one thousand hats of the price, & value of one thou- sand dollars, &,c. whereby the plantiff lost the same, to his damage. Plea. And the defendant defends, pleads and says, that he is not guilty in manner and form the plaintiff hath alleged, and hereof for trial puts himself on the court. A. B. And the plaintiff does likewise. C. D. 3. Declaration of Assault and Bo.ttery. In a plea of trespass, whereupon the plaintiff declares and says, that on the day of at he then and there being in the peace of this State, the defend- ant with force and arms. viz. with fists and clubs, and with great violence, did an assault make upon the body of the plaintiff and him beat and strike many blows, whereby he was greatly injured, and other injuries and enormities the defendant then and there did and committed upon the per- son of the plaintiff, against the peace, and to his damage dollars &c. 4. Declaration of False Imprisonment. In an action of trespass, whereupon the plaintiff declares and says, that the defendant on the at did with force and arms an assault make upon the body of the plaintiff, and him did beat and wound, and unlawfully im- prison, and detained and confined him in prison for the space of twenty-four hours, and then and there did to him many other injuries, against the peace and to his damage 5. Declaration Trespass for Debauching the Plaintiff's Daughter. In an action of trespass, whereupon the plaintiff declares rind nvs. that the defendant on the day of und at divers other times since, did with force and arms, break and enter into the house of the plaintiff, and assaults make upon the body of A. B. the plaintiff's servant and daughter, under the age of twenty-one years ; and the de- fendant did then and there seduce and debauch the said A. B. and carnally know her, and get her with child. By which the plaintiff lost the company and service of his said servant and child for a long time, viz. from and was put to great labour and trouble, and was forced to ex- pend one hundred pounds in maintaining and taking care of her lying in of said child, to his damage. ACTION OF TROVER. T roverjis brought for the recovery of the value of person al property, which was either unlawfully taken, or is unlaw- fully detained by the defendant. Where property ha* been found or loaned, and demand made of the same by the owner and a refusal to deliver it up, trover may b? brought. 6. Declaration Trover. In a plea of the case, whereupon the plaintiff declares, and says, that on the day of he .was pos- sessed of ten yards of broadcloth, of the value of ten pounds lawful money, which was his own proper estate, and being so thereof possessed, he afterwards on the day of lost said broadcloth, out of his hands and possession, which afterwards on the day of came into the hands and possession of the defendant, by finding : and the plaintiff says, that the defendant well knew that the said cloth belonged to the plaintiff, but con- triving, and intending to deceive, and defraud him, he the defendant has at all times neglected and refused to deliver said cloth to the plaintiff, though often requested, particu- larly on the day of and the defendant af- terwards on the day of converted, and dis-' posed of the same, to his own use, to the damage of the plaintiff. 7. Declaration in the action of Slander. In a plea of the case, whereupon the plaintiff declares and says, that from his youth to the present time, he hae ever sustained a good character, and has never been guil- 100 ty of the crime of^theft, yet the defendant minding and intending to injure and destroy the character of the plain- tiff, did on at maliciously, falsely, and openly, utter and publish in the hearing of sundry citizens of this state, the following false, and scandalous words of and con- cerning the plaintiff viz. A. B. (meaning the plaintiff) is a thief and has stolen my horse (meaning the defendant's horse) and the plaintiff says that by reason of the defend- ant's speaking said words, he has been greatly injured in his good name and reputation, has been put to great trouble and expense and exposed to a 'criminal prosecution for the crime of theft, which is to his damage. 8. Declaration Malicious Prosecution. In a plea of the case, whereupon the plaintiff declares and says, that he has from his youth to the present time, sustained a good character, has never been guilty of perjury, of which the defendant was not ignorant, but con- triving and maliciously intending to injure the character of the plaintiff, and bring him to public scandal and disgrace, did falsely and maliciously and without any reasonable, or probable cause whatever, on the day of cause and procure the plaintiff to be informed against, and indicted for the crime of perjury, in the following manner (recite the information or indictment -with the whole proceed- ings and the acquitat). And the plaintiffsays that he was in- nocent of said crime of perjury charged in said information, yet the defendant well-knowing the innocence of the plain- tiff, but intending to injure him did falsely, and maliciously and without any reasonable or probable cause whatever, cause, and procure the plaintiff to be informed against, indicted and prosecuted for the crime of perjury as afore- said, whereby the plaintiff has been greatly injured in his reputation, and has been put to great trouble and cost in his netessary defence ; to his damage. OF TRESPASS ON THE CASE. This action is brought either for misfeasance or a non- feasance ; a wrongful act not immediately and directly in- jurious, for if so, trespass is the proper action, but only injurious in its consequences ; and for any omission or of what the law requires a person to do. This action is a ^uost extensive remedy, and is brought against all officers* 101 agents, trustees, &c. whether public or private, for neglect of duties ; and is the usual remedy in cases of warranties, &c. The doctrine of implied warranty in the sale of per- sonal property, has been adopted in this State. So that if a person sells a horse or other article of personal property, for a fair price, and as for a sound horse, the law implies a warranty that it is sound. In such case it is not necessa- ry to prove any deeeit, or that the vendor knew the horse was unsound, for he is liable if he did not know it. iWhere a person knows a horse to ba unsound, and sells it, rep- resenting it to be sound, or without such representation, if he neglects to inform the purchaser of its defects, he is liable on the ground of deceit or fraud. In an action on an implied warranty the declaration will be the same as if it was an express warranty. In all cases when a person sells an article of personal property the law implies a war- ranty that he is owner of it. 9. Declaration of Trespass on the case for Warranty. In a plea of the case whereupon the plaintiff declares and says, that on the day of he purchased of the defendant, a certain horse and paid him therefor, the valuable consideration of one hundred dallars, and the plaintiff says, that at the time of the sale and delivery of said horse, the defendant did affirm, declare and warant to the plaintiff that the same was sound, wind and limb, and free from any defect or disease what- ever, and the plaintiff saj'S that at the time of said sale, de- livery and warranty of said horse, the same was disorder- ed and defective, and for a long time before, and then had a certain incurable disease, called whereby said horse was rendered of no value, and the plaintiff has wholly lost the same : and the plaintiff says that the defendant has not kept his said warranty, but has broken the same, to his damage, &c. 10. Declaration on the case for Fraud. In a plea of the case, whereupon (he plaintiff declares and says, that on the day of he purchased of the defendant a certain horse and paid him therefor, the valuable consideration of one hundred dollars, and the plaintiff .-ays, that he purchased said hor.-e as, and for a sound horse, and that the defendant at the time of said 102 sale and delivery, did affirm and declare to the plaintiff, that said horse, was sound wind and limb, and free from any defect or disease whate?er. And the plaintiff further says, that at the time of said sale and delivery, said horse was unsound, and then and for a long time before, had an incurable disease, called which was then well known to the defendant, but wholly unknown to the plaintiff : and that the said disease has rendered said horse of no value, and that the plaintiff has wholly lost the same, to his dam- age, &c. 1 1. Declaration against an officer for neglecting to levy or return an Execution. To the sheriff &c. To summon O. P. of by reading this writ in his hearing or leaving a copy with him or at his usual place of abode at least fourteen days before the same is made returnable, to appear &.c. &c. In a plea of the case for that, the plaintiff declares and savs. thnt on the day of he recovered judg- ment before J. P. justice of the peace for said county of in his own name and favour against A. B. of for the sum of damages, and the sum of costs of suit, and thereupon took out an execution for said sums, with seventeen cents more for the same, and which said execu- tion was dated the day and year last aforesaid, directed to the sheriff of the county of his deputy or either constable of the town of in the county last aforesaid, to serve, and return, and was returnable within sixty davs next coming from the date thereof; arid was all in due form of law signed by the said justice J. P., as by the files and records of said justice may appear ; and afterwards, viz. on the said day of the plaintiff delivered said execution into the hands of the defendant then and ever since constable of said town of to levy and collect, and return the same execution according to law ; yet the plaintiff says that the defendant neglecting and disregarding his duty did not serve, levy or collect said execution or return the same into the office of said justice J. P. withiu the life of the same execution. And the plaintiff says that said judgment hath not been reversed, and that the same and said execution are wholly unsatisfied, and now justly due, pnd that by means of the premises he has been injur- ed and damaged the sum of dollars,, to recover which with costs &c. 103 ; :. Where the officer makes a false return within the sixty days. [The same as the above until alleging the delivery of the execution into the hands of the defendant, then say :] And afterwards viz. on the day of the de- fendant returned said execution into the office of said jus- tice J. P. with his endorsement thereon made that he had demanded said execution and his fees of the said A. B. who had neglected and refused to pay the same, and that he had made diligent inquiry and search for goods and es- tate of the said A. B. whereon to levy to satisfy said exe- cution but could find none within his precincts ; and also that he had made like search for the body of the said A. B. wheron to levy, but could not find the same ; as by the files &- records of said justice J. P. in said cause may appear. And the plaintiff says that the said return and endorsement of the defendant are false and untrue, and that during the life of said execution and whilst the same was in the defendant's hands to levy and collect as aforesaid, the said A. B. was in possession of goods and estate liable to be taken on ex- ecution, within the said precincts of the defendant, of greater value than the damages and costs of said execution and sufficient to have satisfied the same, which might have been found, taken and levied on, with due diligence. And the plaintiff says that said judgment hath not been revers- ed or satisfied, or said execution satisfied or paid, and that by the aforesaid wrong doings of the defendant, he hath lost his remedy for the collection of said execution and judgment to his damage, &c. 13. For not taking property on attachment. In a plea of the case for that, on the day of the defendant prayed out a writ of attachment in his own name and behalf, against C. D. dated the day and year last aforesaid, signed by J. P. justice of the peace for the county of and directed to the sheriff or his deputy or either constable of the town of them command- ing to attach to the value of thirty-five dollars of the goods or estate of said C. D. and for want thereof attach his body ; and returnable before said justice J. P. on the day of at in said county, and demanding thirty five dollars damages ; and afterwards, viz. on the said day of the plaintiff delivered said writ of attachment into the hands of the defendant then and ever 104 since a constable of said town of to serve and return acccording to law. And the plaintiff says that afterwards, viz. on the day of the defendant returned said writ into the office of said justice J. P. with his endorse- ment thereon made, that he could not find any goods or estate of the said C. D. whereof to attach, he having made diligent search within his precincts, and that for want thereof he attached the body of the said C. D. and took sufficient bail for his appearance at court. And the plain- tiff says that said return and endorsement were false and untrue, and that the said C. D. was at the time of the ser- vice and return of said attachment, possessed of goods and estate to a greater value than thirty-five dollars, liable to have been attached and taken for debt, within the pre- cincts of the defendant, which might have been found and attached, with due diligence and enquiry. And the plaintiff says that afterwards on the day of he recov- ered judgment against the said C. D. in said action before said justice J. P. for the sum of damages and the sum of costs for which sums execution was then and there issued in due form, and for seventeen cents more, which afterwards, viz. on the day of was put into the hands of the defendant to levy and collect, who after.vards and whilst said execution was in life and after having made demand of the same, for want of goods and estate of the said C. D. levy the same on his body and him committed to the keeper of the gaol in the county of and returned said execution with an endorse- ment of his said doings thereon ; and afterwards, on the day of the said C. D. had duly administerd to him the oath by law provided for poor debtors in pris- on and was thereupon discharged from confinement in said gaol on said execution. And the plaintiff says that said judgment hath never been reversed or satisfied, and that said execution hath never been paid or otherwise satisfi- ed, than by the aforesaid levy, and that by the said wrong doings of the defendant, he hath wholly lost said judgment, and the officer's fees on said execution,"charged at to his damage the sum of [In case of the default of a deputy sheriff a suit may br brought against him or the sheriff.] J4. Declaration in case for injuries arising froia negligence, In a plea of the case whereupon the plaintiff declares and says, that the defendant on the day of instant, long before, and ever since was, and hath been an inn-keeper or licensed public taverner in said and as such hath been used and wont to enter- tain guests and their horses for certain hire : whereupon the plaintiff declares and says, that the plaintiff on the day aforesaid, at aforesaid, being a guest at the defendant's house, by him the defendant entertained as taverner aforesaid, he the plaintiff then and there deliver- ed to the defendant to feed and keep his the plaintiff's cer- tain horse, of the price of thirty-five dollars lawful mon- ey, and also a good saddle and bridle to the value of three dollars lawful money, which the defendant received and for his certain reasonable hire to be paid, undertook safe- ly to keep and re-deliver to the plaintiff whenever thereto requested. Yet nevertheless, the defendant so carelessly and negligently looked after said horse, saddle and bridle, as that by the defendant's so negligently and carelessly keeping as aforesaid, the plaintiff's said horse, soon after the said day, strayed away out of the defendant's keeping and custody, and awavfrom the plaintiff and out of his reach and knowledge ; and the said saddle and bridle were also lost, contrary to the defendant's undertaking and trust as aforesaid. And thereby the plain- tiff is damnified and made worse as he saith, the sum of lawful money, and therefor and for costs he brings this suit. Fail not, dated, &c. OF THE ACTION' OF REPLEVIN. Replevin is a remedy to regain the possession of goods which have been wrongfully distrained or taken, and is the proper action to regain the possession of beasts which have been impounded, and property attached. In replev- in of cattle the plaintiff alleges them to have been wrong- fully taken, and summons the defendant to appear before the court and answer to a plea of trespass for wrongfully taking and unjustly impounding his beasts. The defendant if he admits and justifies the taking by a claim of title to the land is said to make avowry, which is in substance, a declaration, setting forth his right or title, and the trespass f the plaintiff's beasts, and claiming damage. *i 106 1 o. Writ and Declaration of replevin of beasts impounded. To the sheriff of F. &c. Greeting. By authority of the state of Connecticut, you are here- by commanded, justly and without delay, to cause to be replevied to T. C., of S. his beasts, to wit, now dis- trained or impounded by S. H. of N., and by him unjustly detained, as it is said : and you are to summon the said S. H. to appear before J. P. justice of the peace for the county of on the day of A. D. then and there to answer unto the said T. C., in a plea oi' trespass, wherein the said T. C. complains, that the said S. H., on the day of, &c. at M., in a certain place, called "&c. took the said beasts, that is to say, and them unjustly impounded and detained as aforesaid, until this time ; which is to the damage of the said T. C., as he saith, the sum of dollars, and therefor brings this suit, &c. (the said T. C. having given bond according to law.) Hereof fail not, and make due return of this writ, with your doings thereon, &c. Dated &,c. J. P. Justice of the Peace. The justice who issues a writ of replevin should take a bond of the plaintiff with surety, or he will be liable him- self, which should be annexed to the writ. Bond, or'Recognizance. You, A. B. and C. D. of acknowledge yourselves, jointly and severally, bound to E. F. of in a recog- nizance of dollars, that G. H. of shall prosecute the writ of replevin, he hath now taken out against the said E. F. at the next county court, to be holden at on the Tuesday of next, (or, before the justice of the peace to whom the same is returnable,) to full effect ; and in case he make not his plea good, satisfy such demands and dues as the said E. F. shall recover against him. Avowry. And the said C. D. comes into court and defends the force and inquiry, &c. and avows the taking the said beasts in the place alleged in the plaintiff's declaration, and avers that said place where said beasts were taken is in and a part of a certain parcel of land situated at W containing acres, and bounded which said parcel of land iui .ras at the time said beasts were taken, the soil and free- hold, and in the possession and occupation of the said C. D. ; and he further says that said beasts at the time they were taken at the place aforesaid, were depasturing the grass, and doing damage on the avo want's said soil and freehold, and for the doing which said damage, the said C. D. avow? the taking said beasts, which he is ready to verify, and prays judgment for the damage done to his said land by the plaintiff's said beasts, in manner aforesaid, which he says i? dollars, together with costs and charges. C. D. Plea in bur of the dvowry. And the said A. B. says that the said C. D. ought not to avow the taking of said beasts, as he has alleged, because he says that said beasts entered into & upon said piece of land de- scribed by the avowant, from an adjoining lot of land belong- ing to the plaintiff, through and over that part of the fence dividing the said lot of the plaintiff from the said lot of the avowant, belonging to, and which is the fence of, the said C. D. and his duty to keep and maintain the same ; and that the said fence of the avowant through which said beasts broke and entered, was not at the time said beasts broke and entered through the same, a good and substantial fence, five rails high, or a stone wall four feet high, well erected, or equivalent to such five rail fence, or stone wall ; but said fence was weak and defective, from which cause the plaintift's beasts broke through the same, and entered 4ipon the avowant's said land, from whence they were unjustly taken, impounded and detained, until delivered and repla- ced by the plaintiff's said writ ; all which he is ready to verify, and he prays that damages for the unjust taking and detention of his said beasts, and costs may be adjudged to him. A. B. Replication'. And the said avowant replies to the said plea in bar of the s:\id A. B. and says that the part of the division fence between the said lot of the plaintiff and that of the avowant, whereon said beasts were taken, belonging to the said A. B. is not a five rail fence, or a stone wall four feet high, or equivalent thereto, and that the said beasts broke and tered on the said land of the said C. D. through his the A. B.'s part of said fence, in consequence of its defect- 108 iveness, without that, that the said part of said division fence belonging to the avowant at the time said beasts entered on said land and were taken, was not a five rail fence, or a Jtone wall four feet high, or equivalent thereto, and with- out that, the said beasts broke and entered into and upon the said land of the avowant where they were taken, through and over the said C. D.'s part of said division fence, be- tween said lots of land, and hereof puts himself on the court. C. D. And the plaintiff does likewise. A. B. Record. H county, ss. H , day of A. D. At a court holden before me, A. B. against C. D. in au action of Replevin of certain beasts of the said A. B. alleged by him to have been unlawfully taken and impounded by the said C. D. who avows the taking of said beasts damage feasant on a certain parcel of land situated in the soil and freehold belonging to him the Sfiid C. D. as he avers, and to which avowry the said A. B. pleads in bar that said beasts broke and entered on the said land of the avowant, through and over a part of the fence dividing and separa- ting the said lot of the avowant from an adjoining lot of the plaintiff, belonging to the said C. D. and that the same was noi a five r ul fence or a stone wall four feet high or equiv- alent thereto ; and the said avowant replies to the plaintiffs pica in bar, and traverses the facts or allegations therein, of the insufficiency of the avowant's said fence, and of said ' having entered through the same, and puts himself on the court for trial ; and the plaintiff doth likewise, as by the pleadings of said parties on file more fully appears ; and having fully heard the parties with their evidences, I do find that the facts and allegations contained in the plaintiff's said olea in b;tr are true, whereupon it is considered that the said A. B. recover of the said C. D. the cum of damage.?, for the unlawful taking and detention ofthe plain- tiit" - ^-idbeasis, and his costs taxed at 4'C. [If the issue is found for the avowant, say :] I do find that the facts and allegations contained in the plaintiff's said plea in bar are not true, whereupon it is <-v>;i-ir!ered th;it the saidC. D. recover of the said A. B. the sum of damages, for the injury done by^ln: .-.!.; A. B.'s beasts eu his said land, and his costs, taxed at and that execution issue in due form. J. P. Justice of the Peace. [If the avowant demands more than thirty-five dollars damages, or an issue is joined as to the title to the laud whereon the beasts were taken, the cause must be remov- ed to the county court, in the same manner as where the defendant pleads title in an action of trespass on land.] 16. Writ and declaration to replery goods attached. To the Sheriff of the county of, &c. By authority of the State of Connecticut, you are herein commanded justly and without delay, to cause to be replevied unto C. D. of his goods, viz. [here describe them] now attached and detained by A. B. of by virtue of a writ of attachment in his favour against the said C. D. issued in due form, and returnable before J. P. justice of the peace for said county, on the day of And you are to return this writ with the said writ of attachment, into the office of the said justice J. P. twenty-four hours at least be- fore the said writ of attachment is made returnable, and to give notice of the same and of your doings hereon to the said A. B. (the said C. D. having given bond with sufficient surety according to law). Hereof fail not, but due service and return make. Dated, &.c. J. P. Justice of the Peace. The same bond must betaken as in the preceding 1 case. and the writ, when it can be done, should be delivered to be served by the samp officer who attached the property. The bond should be sumcient to indemnify the attaching party, and equal to the value of the goods attached. The bond must be annexed to the writ, and kept on file by the Jus- tice, as surety to the attaching creditor. 17. Declaration in Replevin, where property is attached be- longing to a third person. To the Sheriff, &c. By authority of the State of Connecticut, you are hereby commanded justly and without delay, to cause to he repte- vied to C. D. his goods, viz. [here describe them] wrong- fully attached or taken by A. B. of by a writ of at- 10 no tachment in his name and favour, against . F. of and by him unjustly detained in the custody of O. P. the officer who served said writ of attachment, and you are hereby commanded to summon the said A. B. to appear before J. P. justice of the peace within and for the county of at his office in in said county, on the day of then and there to answer unto said C. D. in a complaint or plea of trespass, wherein the said C. D. complains that the said A. B. on the day of at wrongfully took the aforesaid goods, then, ever since, and still the property of the said C. D. from and out of the possession of ; the same having been so wrongfully taken on a writ of attachment duly issued in favour of the said C. D. against E. F. returnable before J. P. justice of the peace, for said county, on the day of at as and for the property of the said E. F. and to respond the judg- ment that might be recovered against him the said E. F. in said action ; but the said C. D. says that said goods were tiot the property of said E. F. when so attached or taken, but were then and still are the property of the said C. D. and which said goods so wrongfully taken, have ever since been and still are unjustly detained from the said C. D. un- til this time, which is to the damage of the said C. D. as he aaith, the sum of dollars, and therefore he brings this suit (the said C. D. having given bond, with sufficient surety according to law). Hereof fail not and make due return of this writ, with your doings thereon endorsed. Dated at J. P. Justice of the Peace. The following bond must be taken by the justice issuing the writ, and annexed thereto : You A. B. and C. D. of acknowledge yourselves, jointly and severally, bound to E F. of in a recogni- /ance of dollars, that G. H. of shall prosecute the writ of replevin, that he hath now taken out against the Haid E. F. at the next county court, to be holden at on the Tuesday of next, (or, before the justice of the peace 1 efore whom the same is made returnable,) and in case he fail to make his plea good, to return and deliver the goods directed to be replevied to J. K., the officer, who attached the same, in a suit in favour of said E. F. against J.. M. of so that they may be forthcoming to be taken Ill on the execution that may be recovered by said E. F. m said suit ; and on failure thereof, to pay the debt, damage? and costs, that may be recovered in said suit. The defendant if he intends to justify, must make avowry, oi\he may plead the general issue, and by giving notice, may under that plea set up a justification. Cases of this kind will usually depend on the right of property in the goods attached. If the court is of opinion that the goods belonged to the plaintiff in replevin, the judgment should be for him to retain the goods, and also to recover damages for the unlawful taking and detention of them, and his costs ; but if the plaintiff fail to make out a title to the property, judgment should be rendered against the plaintiff, that he return the goods to the officer who attached them, and that on failure thereof, he pay the value of such goods, when they do not exceed the amount of the debt or damages and costs that might be recovered in the suit on which they were attached, and where they do .exceed it, that he pay the amount of the judgment, damages and costs that may be recovered in the attaching suit (a). The judgment must be according to the statute, and the execution must follow the judgment. Record of judgment for the Plaintiff. At a court, &c. [state the action, the avowry, or justifica- tion, the reply to it, and the issue joined by the parties, as in the first case] and having heard the parties with their witnesses, I find the issue for the plaintiff ; whereupon it is considered that the plaintiff retain the said goods describ- ed in his said declaration, and that he recover his costs of suit taxed at and that execution issue for said costs, and seventeen cents more for the same, returnable accord- ing to law. Judgment for the Defendant. And having heard the parties, I find the issue for the defendant, and am of opinion that the plaintiff has failed to make out a title to the goods described in his said declara- tion, and do find said goods to be of the value of dol- lars, and less than the judgment that may be recovered in the action in which they were attached'; whereupon it is considered that he return the said goods to O. P. of he officer who attached the same at the suit of the defend- (a) St. 383. ant against E. F. that they may be held to respond the judg- ment that may be recovered in said suit, and that on failure of the plaintiff to return said goods, or deliver the same to the officer who may execute this judgment, that the defend- ant recover of the plaintiff the sum of dollars dama- ges, being the value of said goods and his costs of suit tax- ed at and that execution issue therelbr. Execution. To the Sheriff, &c. Whereas A. B. of recover- ed judgment before me, .1. P. justice of the peace for the county of on the day of against C. D. of in an action of replevin, brought on a certain statute law of this state, by the saidC. D. against the said A. B., that the said A. B. return the goods replevied to him in said suit, viz. [here describe the goods] to O P. of the officer who attached the same at the suit of the said A. B. against E. F. that the same may be held by said officer to respond the judgment that may be recovered by the said A. B. against the said E. F. in said action ; and that on failure of the said C. D. to return said goods, the said A. B. recover of the said C. D. the sum of dollars damages, being the value of said goods, the same being of less value than the judgment that may be recovered by the said A. B. against the said E. F. in said action, and the sum of costs of suit ; whereof execution remains to be done : These are therefore by authority of the State of Connecti- cut to command you to demand the said goods of the said C. D., &on the same being delivered to you, or found by you with in your precincts, you are to take said goods &. return and deliver the same unto the said O. P. to be held by him for the purposes aforesaid, and on failure of said C. D. to de- liver said goods to you, to be returned as aforesaid, and in case you cannot find the same so as to return them, you are further commanded that of the goods, chattels or lands of the said C. D within your precincts, you cause to be le- vied, and the same being disposed of or appraised as the law directs, paid and satisfied unto the said A. B. the afore- said sum of dollars damages, and the sum of costs, &,c. [as in common cases.] [Where the goods are of greater value than the judg- ment that may be recovered in the original suit at which the goods were attached, the rule of damages is not the va- 113 hie of the goods, but the amount of such judgment, which it would seem the court must inquire into. There seeme to be great difficulty in rendering judgment in conformi- ty to the statute where the plaintiff faik of making out a title to the goods, and it would have been better to have given judgment only for the costs in such cases, and left the defendant to his remedy on the bond ; and as the law now is, he has a remedy on the bond, if the judgment in the re- plevin is in his favour, and is not so rendered as to afford him redress, or is not enforced, or cannot be enforced from the inability of the plaintiff.] Where several persons in distinct suits attach the same pro- perty, all must be joined in the action of replevin ; the decla- ration must state each attachment or taking of the property severally, and all of the attaching creditors must be cited to appear and defend in the suit. This could not be done ac- cording to the principles of the common law, applicable to actions of trespass, as the attachment of the goods by each creditor would be a distinct trespass, and the defendants could not be joined ; but the joining of all of the attaching creditors in one suit, seems to be the only mode in which the statute can be carried into effect, as there can be but one judgment rendered. The statute is attended with great difficulty. CHAPTER XI. OF ACTIONS ON STATWTES. Bastardy. The form of proceeding upon the statute, providing foi the support of bastard children, is of a criminal nature, al- though in its consequences it is only a civil action, (o) Any single woman who is pregnant with a bastard child, or after her delivery may exhibit her complaint to a justice ot the town where she resides, against the person she charges with being the father of such child ; to the truth of which (a) Stat. 91. 10* 114 cuinplaiut, she must make oath before said justice, who thereupon n day of A. B. of said H . com- plainant against C. D. of wherein the said complain- ant snith that the said C. D. is his lessee of a certain mes- suage situated in H and described in his said com- plaint, th;it he has been notified agreeably to the statute in such case provided, to quit said premises ; that he holds over his leasft and continues in possession after the time, at or before which, he was notified to quit ; and the said C. D. being required to answer to said complaint, says he is not guilty, and for trial puts himself on the country agreeably to the statute in such case provided : and the said complainant does likewise ; and the parties having been fully heard, with their witnesses, the cause w; s duly committed to a jury summoned for the trinl of the same, agreeably to the statute in such c^se provided, and du!y sworn, who on their oaths say, that the said C. D. is lessee if the said A. B, of the premises described in his saidcoov 11 122 plaint, and holds over the term of his lease, that notice has been given him to quit, and that he holds possession after the time, at or before which he was notified to quit said premises, as is alleged in the complaint of the said A. B. ; and thereupon it is considered by this court, that the said A. B. recover the possession of his? said premises, and his costs taxed at dollars and cents, and that ex- ecution issue accordingly. Execution. To the sheriff &c. Greeting, Whereas A. B. of recovered judgment before J. P. Esq. of H , justice of the peace for said county, in pursuance of the statute in such case provided, on the day of for the possession of a certain messuage consisting of a dwelling house, out houses, and the garden and yard thereunto appertaining, situated in H , and bounded and described as follows : (here describe the premises) against C. D. of who un- justly holds over his lease, and continues in the possession thereof, after the expiration of the time, at or before which he was notified to quit the ?ame ; and also for his costs of suit, taxed at dollars, whereof execution remains to be done. These are therefore by authority of the state of Connecticut to command you without delay to cause the said A. B. to have possession of and in the premises afore- said, situated in said H consistingof a dwelling-house, out-houses, ihe land whereon they stand, and the yard and garden thereunto appertaining ; and also, that of the monies, goods and chattels of the said C. D. you cause to be levied (and the same being disposed of as the law di- rects) paid and satisfied unto the said A. B. the aforesaid sum of with seventeen cents more for this writ, together with your own fees : and for want of such mon- ies, goods and chattels of the said C. D. to be by him shewn unto you or found within your precincts, for satis- fying the aforesaid sums, you are commanded to take the body of the said C. D. and him commit to the keeper of the gaol in H in the county of H who is hereby commanded to receive the said C. D. and him safely keep until he pay to the said A. B. the aforesaid sum, and be by him released, and also satisfy your fees. Hereof faiJ ,ot, but make due return of this writ, with your doings thereon, within sixty days next coming. Dated at the day of A. D. J. P. Justice of the Peace. FORCIBLE ENTRY AND DETAINER. Complaint. To L. W. Esq. judge of the county court for the county <)f H and J. P. justice of the peace for said county comes A. B. of H in said county of H and complaint make?, that on the day of he was well seized and possessed of a certain parcel of land and the dwelling house thereon standing, situated IH s-riid H and bounded as follows, viz. and that afterwards on the day of C. D of ?;iid H the said A. B. then being so possessed of said premises, did with a strong hand make forcible en try into and upon the aforesaid premises, and with like force disseize and dispossess the said A. B. ef the same premises, and with a strong hand and great force doth con- tinue unto this time to hold possession of said premise? and to deforce and keep the said A. B. out of the posses- sion of the same, against the peace and contrary to the form of the statute entitled " An act directing proceedings against forcible entry and detainer." And the said com- plainant prays process against the said C. D. that he may be summoned to appear before said judge and justice to answer to this complaint, and be dealt with herein agree- ably to the statute aforesaid. And also that you cause to be summoned twelve freeholders of said county qualified to act as jurors, to appear before said justice of the peace and said judge, at the time and place the said C. D. may be summoned to appear, to fill a pannel to inquire into the matters alleged herein. Dated at H day of A. B. Summons. To the sheriff of the county of H A:c. Greeting : By authority of the state of Connecticut you are hereby commanded to summon C. D. of mentioned in the foregoing complaint to appear before us, L. W. judge f the county court for said county and J. P. justice of 124 the peace for said county at the office of said J. P. in said H on the day of at o'clock in the forenoon, [there must be six days notice given as in othr cases and not more than eight] then and there to answer to the mat- ters contained in said complaint, and be dealt with therein as to law and justice appertaineth. Dated &c. L. W., Judge. J. P., Justice of the Peace. Venire Facias. To the sheriff &c. Greeting : Whereas A. B. of hath exhibited his complaint t* us, in pursuance of the statute in such case provided, wherein he saith that C. D. of on the day of made forcible entry into a certain dwelling-house situated in said H of which the said complainant was then in peaceable possession, and disseized the said A. B. and with a strong hand detains the same and forcibly holds the said complainant out of the possession thereof. Wherefore you are hereby commanded to cause to appear before us at the office of J. P. justice of the pence for said county, in H on the day of at o'clock in the forenoon, twelve freeholders of said county, qualified to act in the matter aforesaid, to form a \>. nnel, and inquire on their oaths into the allegations and matters set forth in said complaint of said A. B. Dated at H day of L. W., Judge. J. P., Justice of the Peace. Plea Not guilty. Verdict. A. B. against C. D. complaint, for forcible entry and de- tainer. In this case the jury find that the said C. D. is guilty in manner and form the said A. B. hath alleged in his said complaint, and that he have restitution of his said premises, and recover his costs. [Signed by the Jurors.] Record of Judgment. [State the cause and recite the complaint as in the case of holding over the term of a lease.] And the said C. D. pleads not guilty to said complaint and puts himself on the country ; and the said A. B. does the same ; and the parties being fully heard, with their witnesses, the cause was committed to a jury summoned *nd irnpanneled agreeably to the .^tutute in such case pro vided, and duly sworn, who return a verdict that the said C. D. is guilty as alleged in said complaint ; and thereupon it is considered that the said A. B. be restored to and re- seized of the said premises described in the said A. B's complaint, and that the said A. B. recover of the said C. D. his costs of suit, taxed at and that execution issue there- for accordingly. Execution. To the sheriff &c. Greeting : Whereas A. B. of recovered judgment against C. D. of both in the county of H before us, L. W. judge of the county court for said county of H and J. P. justice of the peace for said county, on the day of holding a court of inquiry of forcible entry and detainer, that he the said A. B. be restored to, and re-seized of a cer- tain parcel of land, and the dwelling-house thereon stand- ing, situated in said H and bounded as follows, (here describe the premises,) and also for his costs of suit, tax- ed at dollars, whereof execution remains to be done. These are therefore by authority of the state of Connec- ticut to command you to cause the said C. D. (taking with you the power of said county of H if necessary) to be immediately removed from said premises, and the said A. B. restored to, and re-seized of the same premises ; and also that you cnuse to be levied of the goods and chat- tels of the said C. D. to be shewn unto you or found with- in your precints (and the same being disposed of agreeably to law) paid and satisfied unto the aforesaid A. B. thn said sum of and seventeen cents more for this writ, together with your fees hereon ; and for want of such goods and chattels of the said C. D. to satisfy the aforesaid sums, and your fees, you are commanded to take the body of the said C. D. and him commit to the keeper of the gaol in and for said county of H , who is hereby likewise com- manded to receive the said C. D. and him safely keep with- in said prison, until he pay to the said A. B. the sum afore- said, and be by him released, and nlso to satisfy your fees. Hereof fail not but make due return of this writ within sixty days next coming, with your doings thereon endorsed, Dated &c. L. W., Judge. J. P., Justice of the Peace. 11* 126 [If the defendant shall neglect to appear, the court must proceed and inquire into the facts and render judgment in the same manner as though he was present. The court must be held in the town where the land lies. If the de- fendant is found not guilty, judgment is to be rendered for him to recover his costs.] ACTION ON THE STATUTE FOR CUTTING TIMBER. Declaration. In a plea of trespass with force and arms, whereupon the plaintiff declares and says, that on the day of he was well seized and possessed of a certain parcel of land situated in W , in said county, and bounded as fol- lows, viz. ; and that afterwards on the said day of the plaintiff being then seized of said land as ^ aforesaid, the defendant wilfully and with intention to injure the plaintiff, entered into and upon said piece of land, and with force and arms, then and there cut, fell, and carried away twenty trees of greater dimensions than one foot di- ameter, and forty poles or trees of less dimensions than one foot diameter, then and there standing and growing on said premises. And the plaintiff says that said trees of greater dimensions than one foot diameter, were worth, when so eut and carried away, three dollars each ; and that the aforesaid wrong doings of the defendant are contrary to the form of the statute, entitled " An act for detecting and pun- ishing trespasses in divers cases, and directing proceedings therein ;" and that by means of the premises and by force of said statute the defendant hath forfeited and become lia- ble to pay to the plaintiff for said trees of greater dimen- sions than one foot diameter, one dollar and sixty-seven cents for each tree, and also three times the value thereof; and for each tree or pole under the dimensions of one foot diameter cut and carried away by the defendant as afore- said, he hath forfeited the sum of eighty-four cents, amount- ing in the whole to the sum of dollars, which sum the defendant hath never paid, although often requested, but unjustly refuses so to do. And the plaintiff says that by means of the premises and by force of said statute he hath been injured and damaged the sum cf dollars, to re- I'over which &c. ACTIONS OX THE STATUTE TO RECOVER THE VALtL Of COUNTERFEIT BILLS. When a person receives a counterfeit bank bill, it is hit duty to deliver it to some justice of the peace, who, if he is satisfied the bill is counterfeit, must deface it, enter the name of the person of whom he received it on the back of it, and retain it in his possession. The person so de- livering up a counterfeit bill must give notice to the person of whom he took the bill with whom it is left, and demand payment, and on neglect or refusal, may bring an action for the recovery of the amount thereof on the statute. He must not offer to return the bill to the person of whom he received it, and if he does, it will bar him of his remedy on the statute, but he could maintain an action at common law, if he has common law testimony. The object of this provision is to stop the circulation of bad bills. A suit may be brought without notice and demand of payment, where the plaintiff can make oath before the justice issuing the writ that he verily believes it necessary in order to secure the demand. In an action on this statute the parties may be examined, on oath. The action need not be brought before the same justice with whom the bill is left. Declaration. In an action brought on a certain statute entitled " An act to prevent the passing of counterfeit bills or coins," whereupon the plaintiff declares and says, that on the day of at the defendant uttered and put off, and the plaintiff then and there took and received of the defend- ant for a valuable consideration, a certain false, forged and counterfeit bank bill or note purporting to have been issued by the president, directors & Co. of the Pho?nix Bank, a bank incorporated by the laws of this state ; and which is of the denomination and sum of five dollars, payable to or bearer on demand, and purporting to have been signed by C. S., president, and countersigned by G. B.. cashier, and numbered ; and which said counterfeit bill the plaintiff received as for a true bill, he then believ- ing the same so to be, and paid the defendant the full amount thereof. And the plaintiff says, that afterwards on the day of discovering said bill to be false and forged, he in pursuance of said statute lodged the same bill with J. P. Esq. justice of the peace for the county of H , and thereupon viz. on the said day of at gave notice to the defendant that said bill was coun- terfeit, that he had lodged the same with said the J. P. and at the same time and place demanded of the defendant payment of the same bill or note, which the defendant then and there neglected and refused to pay, and hath ever since neglected and refused to pay the plaintiff the amount of said counterfeit bill, although often requested and de- manded. And the plaintiff says that by means of the prem- ises, and by force of said statute, an action hath accru- ed to the plaintiff to recover of the defendant his just dam- ages in the premises, which he says are seven dollars, which the defendant hath never paid, nor any part thereof, although often requested and demanded, and to recover which and his costs, his suit is brought, &c. Action on statute to prevent gaming. Any person losing any money or other property not less than one dollar in gaming or by betting on any game played by others, may recover the same back at any time within three months ; and after three months if the loser has not brought an action to recover the same, any other person may sne for it and recover treble the value thereof. Where the loser brings this suit he may call on the defend- ant to disclose under onth. Declaration by the loser. In a plea that to the plaintiff the defendant render the sum of dollars which to the plaintiff the defendant justly owes and from him unjustly detains, whereupon the plaintiff declares and says, that on the day of the defendant won from the plaintiff the said sum of dollars by playing at cards with him, and the plaintiff then and there lost said sum by gaming with the defendant as aforesaid, contrary to the statute entitled " An act to prevent gaming." And the plaintiff says that by means of the prem- ises and by force of said statute, an action hath accrued to him to recover of the defendant the aforsaid sum, yet the de- fendant hath never paid the same nor any part thereof, al- though often requested and demanded, to the damage oi' the plaintiff the sum of to recover which and costs he brings this suit. 1*3 Action on statutes for preventing mischief by dogs. Every person is responsible not only for the mischief or Jamage done to the person or property of another, by his ivn dog, but also for that done by the dog of his minor ':hild or servant. Declaration where the dog of the defendants son injures the son of the plaintiff. Then and there to answer unto A. B. of in an action brought on a certain statute, entitled " An act for preventing mischief by dogs," whereupon the plaintiff declares and says, that C. D. of is and for more than one year last past has been the owner and keeper of a dog called and -that said C. D. is a son of the defendant and a minor under the age of twenty-one years ; and the plaintiff says, that on the day of at the s.-id dog of the defendant's said son, being a mischievous and ferocious dog, attacked E. F. a child of the plaintiff of about ten years of age, and did bite and wound him severely, whereby the plaintiff was put to great trouble and expense for surgical assistance, nursing and taking care of his said child. And the plaintiff says that by means of the premises and by force of said statute, an action hath accrued to him to re- cover of the defendant the damage he hath sustained in the premises, which he says is the sum of dollars, which sum the defendant hath never paid, although often request- ed and demanded, and to recover which with costs this suit is brought. Declaration where the defendant's dog killed the plaintiff" 's sheep. In an action brought on a statute entitled " An act for preventing mischief by dogs," whereupon the plaintiff says, that on the day of a certain dog, of which the de- fendant was then and ever since hath been the owner and keeper, called tiger, killed two of the plaintiff's sheep in his pasture at H of the value of three dollars each. And the plaintiff says, that by means of the premises, and by force of said statute an action hath accrued to him to recover of the defendant his damages in the premises, which he says are seven dollars, which the defendant hath neg- lected and refused to pay, although often requested, and t recover which &c. 130 .-iciion oa, statute regulating Drivers of Stages and other Carriages. In an action brought on a statute entitled " An act for the i-egulation of drivers of stages & other carriages ;" where- apon the plaintiff declares and says, that on the day of he was travelling on the road leading from S to H in a pleasure waggon of four wheels drawn by one horse, when he was met by the defendant at W travelling in an opposite direction on said road in a large four wheel carriage or waggon, drawn by two horses, of which the de- fendant was the driver, the plaintiff turned to the right hand, leaving ample room for the defendant to pass, \\ith- out injury to his own or the plaintiffs carriage, and leav- ing him more than half of the travelled path, and afford- ing him fair and equal advantage to pass, but the defend- ant then and there drove his said carriage or wasrgon so carelessly and negligently, that he run the same forcibly against the carriage of the plaintiff, whereby the same was over-set and much injured and broken, and himself greatly exposed. And the plaintiff says that the aforesaid wrong doings of the defendant are contrary to the form of the aforesaid statute, and to his damage five dollars ; and that by means thereof and by force of said statute, the defend- ant hath forfeited and become liable to pay to the plaintiff the sum of fifteen dollars, being treble the said damages sustained by the plaintiff, and that an action hath accrued to the plaintiff to demand and recover the same ; which the defendant hath neglected and refused to pay, although often requested and demanded, and for the recovery of which &c. CHAPTER XII. OF QUI-TAM ACTIONS ON STATUTES. This is a mixed action, brought in the name of a common informer, or the person injured, where by a breach of some statute, a penalty or forfeiture is incurred, a part of which is given to the public, and a part to the party injur- ed, or a common informer ; or where a fine or other pun- ishment is incurred for a breach of a statute, and damages 131 given to the party injured. In the former case, where there is a forfeiture or penalty incurred, part to the pub- lic, either a town, county, or the state, and a part to the person injured, or some common informer, a qui-tam action nriy be brought in the name of the state and the common informer, to recover the whole penalty. This is a mere civil suit, and the same notice must be given as in other cases, and it is entirely under the control of the person who commences it. Where a part of the penalty is given to a town or county, the action should be brought in the name of the state and the common informer. In cases of a forfeiture, part to the public and part to the person who prosecutes for the offence, a public prosecution may be brought for the whole penalty previous to the commence- ment of a suit by a common informer. Information qui-tam on statute, is different from an action qui-tam ; this is a criminal proceeding brought forward and prosecuted by a common informer, or the person injured, in his own name and that of the state. An information qui-tam can only be brought where the statute expressly provides that remedy, in case of a forfeiture, part to the public & part to the party injured or a common informer ; or where an offence is prohibited by statute and a fine or other punishment in- flicted, and also damages to the party injured, and the stat- ute makes no provision as to the remedy. This is a prac- tice which has grown up in this state, but ought not to be extended. An infoimation qui tain is essentially a criminal proceeding, and the form is much the same as a public prosecution ; it is however under the control of the pic.in- tiff and can be withdrawn by him (a). Qui-tam for Pound Breach. To answer unto A. B. of who sues in his own name and behalf, as well as in the name and behalf of the state of Connecticut, in an action brought on a certain statute entitled " An act to provide pounds and to regulate the impounding of creatures," whereupon the plaintiff declares and says, that on the day of he found the cattle of the de- fendant, consisting of (describe them) doing damage on his hind, situated in said town of and which said land is en- (a) Swf. Dig. 686-7. tag closed by a sufficient fence, and then and there took the same and proceeded with the said beasts and caused them to be confined arid lawfully impounded in a pound kept by C. D. in said town of and which said pound is nearest the place where said beasts were taken ; and thereupon the plaintiff gave notice to the defendant of his having so taken and impounded his beasts, damage feasant. And tbe plaintiff says that afterwards, viz. on the said day of in the night season at said the defendant broke the said pound, and conveyed from and out of the same, his said beasts, whereby the plaintiff hath wholly lost his poundage and damage. And the plaintiff says, ihA by means of the premises and force of the statute aforesaid, the de- fendant hath forfeited, and that an action hath accrued to the plaintiff to recover of the defendant the sum of seven dollars, the one half to and for the use of the treasury of ?aid town of and the other half for his own use, and also the damages sustained by the plaintiff by said pound- breach, which the plaintiff says is seven dollars ; which sums the defendant hath never paid, although often re- quested and demanded, and to recover said several sums, for the uses herein specified, and his costs, this action is brought, hereof tail not, &c. Qui-tam for gaming against the winner. To answer unto A. B. of who sues as well in the name and behalf of the state of Connecticut as in his own name and beh-ilf, in an action brought on a certain statute entitled " An act to prevent gaming," whereupon the plain- tiff declares and says, that on or about the day of at the defendant and one J. S. played divers games ot cards together, for the space of more than one hour, and that in and by said games the defendant won of the said 3. S. the sum of ten dollars, and that the said J. S. lo=t in plaving said games at cards the said sum of ten dollars, which was won by the defendant and then and there paid and satisfied to him by the said J. S. contrary to the form of the statute aforesaid. And the plaintiff snys, that the said J. S. has not brought his action on this statute against the defendant to recover said money so won from him by the defendant, although three months from the time the ^ame was so won, has long since elapsed. And the plain 133 tiff say=, that by means of the premises and by force of said statute, the defendant hath forfeited and become liable to pay, and that an action hath accrued to the plaintiff to recover of him the sum of thirty dollars, being treble the value of ten dollars, so won by the defendant, of said J. S. at said games, one half thereof to and for his own use, and the other half for the use of the said county of H , which said sum the defendant hath never paid, nor any part thereof, although often requested and demanded ; and to recover which, for the uses aforesaid, with costs, this suit is brought, &c. Information qui-tam for Breach of Peace. To J. P. of Esq. justice of the peace for the county of comes A. B. of said and complains as well in the name and behalf of the State of Connecticut, as in his own, that on the day of at in said county, C. D. of said with force and arms, did assault, beat and wound the complainant, then and there in the peace of this state being, and about his lawful business, whereby he was great- ly injured in his person, suffered much bodily pain, and for a long time was unable to attend to his business ; and which said wrong doings of the said C. D. are against the peace and contrary to the form of the fifty -ninth section of the statute, entitled " An act concerning crimes and punish- ments," and of evil example. And the complainant prays process against the said C. D. that he may be arrested and examined touching this complaint, and be dealt with there- in, agreeably to said statute. Dated &c. A. B. [Warrant, the same as in criminal cases, as the delin- quent is to be arrested forthwith.] Record of Judgment. At a court holden at this day of C. D. was brought before me by virtue of a warrant issued on the complaint of A. B. for that on the day &c. [recite the allegations in the complaint] and the said C. D. being re- quired to answer to said complaint says that he is not guilty, and puts himself on the court for trial ; and having fully heard the parties, T do find that he is guilty in manner and form as alleged in said complaint ; whereupon it i 134 ered that the said C. D pay a fine of seven dollars to the treasury of the said town of [and that he be impris- oned ten days in the common gaol of said county,] and it is further considered that he pay to the said A. B. the sum of five dollars damages, and the costs ot this prosecution, and stand committed until judgment be complied with. [If the offence is of a very aggravated nature, and requires greater punishment than a fine of seven dollars and one month's imprisonment, the justice may bind the offender over to the next county court.] Qui-tam for trespasses committed in the night season. To J. P. of Esq. justice of the peace for the county of comes A. B. of said and complains as well in the name and behalf of the state of Connecticut as in his own name, that one C. D. of on the day of at said in the night season of said day, viz. about the hour of o'clock, in a secret and clandestine manner, with force and arms, did wantonly, wilfully and maliciously, shear and cut off the mane and tail of a certain bay horse, the property of the plaintiff, whereby the same was great- ly injured and rendered unfit for use for a long time ; and which said wrongdoings of the plaintiff are contrary to the statute entitled " An act to detect and punish trespasses committed in the night season ;" and the said complainant prays process against the said C. D. whereby he may be arrested and brought before your worship, that he may be examined touching said offence in the manner provided in said statute, and be dealt with in the premises as to said statute, and to justice appertaineth. A. B. [Warrant, same as in criminal cases, except that the of- fender must be brought before the same justice to whom the complaint is presented, and who issues the warrant. If the complainant produces proof o as to render it probable the accused did the acts complained of, he must be ad- judged guilty unless he shall offer to be examined on oath. If he offers to be sworn the justice must admit him to his oath, and if from his testi irony he can satisfy the court that he did not commit the injury complained of, or was not aiding therein, he must be acquitted and recover his costs. If he is found guilty, judgment is to be rendered against 135 him for the damages and the costs, but he is not to be fined as was the case before the revision of the statutes.] Record of Judgment. At a court holden &c. was brought before me, C. D. by virtue of a warrant issued on the complaint of A. B. for that &c. [recite the charges] and being required to answer thereto, the said C. D. says he is not guilty and puts him- self on the court for trial ; and having heard the testimo- ny introduced by the plaintiff, and the said C. D. refusing to be examined on oath, touching said trespass, I do find that the said C. D. is guilty in manner alleged in said com- plaint, whereupon it is considered that he pay to the said A. B. the sum of twenty dollars damages for said injury, and the costs of the prosecution, taxed at , and stand committed until judgment be performed. Qin-tam for theft. To J. P. Esq. of justice of the peace for the county of comes A. B. of and complains as well in the name and behalf of the State of Connecticut as in his own, that on the day of A. D. at , one C. D. of with force and arms, feloniously did take, steal and carry away one ox-chain, of the value of three dollars, of the property of the said A. B. then and there being, against the peace, contrary to the form of the statute in such case provided, and of evil example : and said complainant prays process against the said C. D. that he may be arrested and examined touching this complaint, and be dealt with there- in as to law and justice appertaineth. A. B. [Warrant same as in criminal cases. The judgment will be the same as in a public prosecution far theft, except that damages are also to be given to the complainant ; the justice must expressly find the value of the property, and give judgment that the offender pay treble the amount to the complainant, in addition to a fine, and whipping, when the latter is required by the statute.] 136 CHAPTER XIII. Pleas in abatement. 1. To the jurisdiction of the court. A. B. vs. C. D. action of assumpsit on note : the de- iendant comes into court and pleads and prays the opinion of the court, whether it will take cognizance of the plain- tiff's said action ; for that he says the note in and by which it is alleged the defendant assumed and promised, including the interest which has accrued thereon, is of greater amount than thirty-five dollars, and the promise set up and alleged in the plaintiff's said declaration, is to pay a greater sum than thirty five dollars, which he is ready to verify, and hereof prays judgment, &c. C. D. 2. Abatement for defect in writ. The defendant defends, pleads and says, that the plain- tiff's said writ and process ought to abate, and the defend- ant be no longer held to answer thereto, for that, the defend- ant says the plaintiff's said writ was filled up on the day of by M. S. then and ever since a lawful constable of the town of and that said writ was in no otherwise drawn and filled up, than by snid constable, who served the same, which he is ready to verify ; and he prays judgment of the plaintiffs said writ and process, that the same may abate and be dismissed. C. D. General issue to an action of Assumpsit, with notice that special matter will be given in evidence. The defendant defends, pleads and says, that he did not assume and promise, in manner and form the plaintiff hath alleged, and hereof for trial puts himself on the court. A. B. The plaintiff will take notice that on trial of the above action, under said plea, the defendant intends to give in ev- idence the payment of said note, wherein the plaintiff de- clares the defendant assumed and promised &c. : (or that he intends to give in evidence the following special matter,) viz. That on or about the day of the plaintiff caus- ed the defendant to be falsely arrested and taken into cus- 137 tody, on a pretended writ of attachment, and demanded in said writ the sum of five hundred dollars, under the false pretence that the defendant had slandered the character of the plaintiff ; and that the said pretended writ of attach- ment was not signed by any proper authority, and that his pretended arrest was illegal, and his detention thereon false imprisonment ; and he was so falsely arrested, detained and threatened with imprisonment to oppress him, and extort money from him, and that whilst so falsely arrested and detained, and to obtain his releasement and liberty, he ex- ecuted said note, on which &c., which the defendant saith was obtained by duress of imprisonment. A. B. A general notice is not sufficient, but it must set out the particular matter which the defendant proposes to give in evidence. In such state of pleadings, if the court is of opinion that the defendant did assume and promise, but finds the special matter contained in the notice to be true, as claimed by the defendant, the judgment however must be that the defendant did not assume and promise, as that is the only issue formed. Of Several pleas in pursuance of the statute. The defendant pleads, defends and says, that he did not assume and promise, in manner and form as the plaintiff has alleged, and hereof for trial puts himself on the court. And for further plea in this behalf, leave of court having been obtained, he pleads and says, that of having and main- taining his said action, the plaintiff ought to be barred, be- cause he says that the note on which &c. is corrupt and usurious, for that he says, that on or about the day of it was corruptly and usuriously agreed by and between the plaintiff and defendant, that the plaintiff should loan to the defendant the sum of dollars for the peri- od of ninety-five days, and that the defendant should give him for the use and forbearance of said sum for said time, more than at the rate of six dollars, for the use and for- bearance of one hundred dollars for one year, to wit, the sum of five dollars, which said sum of five dollars was and is included in said note ; and that these was and is included in said note the sum of dollars and cents over and above the rate of six dollars, for the forbearance of one hundred dollars for one year, usuriously and corruptly, and 12* 138 that said note was executed in pursuance of said usurious and corrupt agreement, and to carry the same into effect ; and that the same is usurious and corrupt, which he is ready to verify ; prays judgment &.c. And for further plea in this behalf he pleads and says, that on the day of A. D. and since the said prom- ise alleged in the plaintiff's said declaration is declared to have been made, the plaintiff in and by a certain receipt or release of that date, for the consideration of dollars discharged and released the defendant from all demands whatsoever, as by said release or writing ready in court to be produced, may appear ; and which he is ready to ver- ify ; judgment &c. C. D. Replication. And now the plaintiff replies to the defendant's said sev- eral pleas, by him pleaded, and says, that as to the defend- ant's said first plea he joins issue thereon ; and as to the defendant's second plea, the plaintiff says that, on the day of the defendant borrowed of the plaintiff the sum of dollars, for the period of ninety-five days, when it was agreed by said parties, that the defendant was to pay the plaintiff for the use and forbearance of said money, af- ter the rate of six dollars for the forbearance of one hun- dred dollars, for one year, and no more ; and that in pur- suance of said agreement the defendant executed a note for said sum of , payable in ninety-five days from- the said day of , and which is the same note on which &c. without that, that the said note on which &c. was given in pursuance of a corrupt and usurious contract, and upon a corrupt and usurious consideration, and that there is included in the same, corruptly and usuriously, the sum of dollars and cents, for the use and forbear- ance thereof, more than at the rate of six dollars for the forbearance of one hundred dollars for one year, and this he is ready to verify : prays judgment. And as to the third plea, by the defendant pleaded, the plaintiff says he ought not to be barred any thing alleged therein notwith- standing, because he says that previously to the date and execution of said discharge, pleaded by the defendant, viz. on or about the day of , the note on which kc. had been assigned and transferred by the plaintiff, to one E. F. for a valuable consideration, and notice of such as- signment given to the defendant previous to the execution of said discharge, viz. on or. about the day of at , and the plaintiff says that the defendant obtained said discharge, with a full knowledge of the fact, that said note had been assigned as aforesaid, for a valuable consideration, and with intent to defeat the collection cf said note and defraud the said E. F. of the same, which he is ready to verify : judgment &c. A. B. Rejoinder. And now the defendant rejoins to the replication of the plain- tiff and says, that as to the second plea, by him pleaded, the note on which &x. is usurious and corrupt, that it was cor- ruptly agreed between the plaintiff and the defendant on the day of that the defendant should pay the plain- tiff for the use and forbearance of the sum of dollars ninety-five days, the sum of five dollars, and that the note on which &x. was executed in pursuance of said corrupt agreement and upon said usurious consideration, and that there is contained in said note usuriously and corruptly the sum of dollars and cents, and hereof puts him- self on the court. And as to the replication of the plain- tiff so far as relates to the third plea by the defendant pleaded, he says that the plaintiff ought to be barred, with- out that, that previous to the execution of said discharge, on or about the day of the note on which &,c. was assigned, bonafide^ and for a valuable consideration by the plaintiff to the said E.F. and without that, that at the time, or previous to the executions of said discharge the plaintiff had notified the defendant of said assignment which he is ready to ver- ify : judgment &c. C. D. Sur -rejoinder. And the plaintiff sur-rejoins to the rejoinder of the de- fendant and joins in the issue tendered as to the second plea of the defendant ; and as to the defendant's rejoinder relating to the third plea, the plaintiff says, that previous to the date and execution of said discharge, the note on which &c. had been assigned by the plaintiff to the said E. F. bona fide, and for a valuable consideration, and also that previous to the execution of said discharge, the said E. F. notified the defendant of the assignment of said note, 140 and that the same was his property, and hereof for trial puts himself on the court. A. B. And the defendant does likewise. C. D. Record of Judgment. At a court &c. A. B. against C. D. action of assunopsit on note, demanding thirty five dollars damages ; the par- ties appeared and the defendant pleads, first, that he did not assume and promise, as alleged ; and with 'leave of court further pleads, that the note on which &c. was a corrupt and usurious note give in pursuance of a usurious agreement, and that there is usuriously included therein, the sum of dollars and cents, more than at the rate of six dollars for the forbearance of one hundred dollars, for one year, and further pleads a general release and dis- charge of all demands executed subsequently to said note ; the plaintiff replies to the plea of the defendant and joins in the issue tendered in the first plea ; and as to the second traverses the facts alleged therein ; and as to the third plea, he says, that previous to the execution of said discharge, the note on which &c. had been assigned to E. F. and no- tice there* f given to the defendant prior to the execution of said discharge ; and the defendant rejoins to the repli- cation of the plaintiff and affirms over his second plea and puts himself on the court ; and as to the replication of the plaintiff so far as relates to the third plea, the defendant traverses the facts alleged therein of the assignment of said note and notice thereof, and prays judgment ; the plaintiff sur-rejoins to the rejoinder of the defendant, and joins in the issue tendered as to the second plea ; and as to the third plea, he affirms over the facts alleged in his said re- plication as to the assignment of said note and notice, and puts himself on the court ; and the defendant does likewise, as by the pleadings on file may more fully appear ; and having heard the parties I find the first issue for the plain- tiff, that the defendant did assume and promise, and I also find the second and third issues for the plaintiff, whereupon it is considered &:c. or I find the first and second issues for the plaintiff, but find the third issue for the defendant, that at or previous to the execution of said discharge, he had not been notified of the assignment of said note, and there- upon it is considered that the. defendant recover his costs Stc. 141 General issue and notice of set-off' to action on note. The defendant defends, pleads and says, that he did not assume and promise in manner and form the plaintiff hath alleged. C. D. The plaintiff will please to take notice, that on the trial of this action it is proposed under the above plea to give in evidence a set off ; for that the defendant says, that at the date and issuing of the plaintiff's said writ, the plainliff was and now is indebted to the defendant on book, in a greater sum than the amount due on the note on which &c. viz. the sum of sixty dollars, and that the plaintiff's said debt secured by said note and the defendant's claim on book are mutual debts, that the plaintiff is wholly insolvent, and that he has always been willing and ready, and is now ready and offers to set-off his said debt or claim on book, against the said note of the plaintiff; and the defendant says that the sum due him on book exceeds the sum due from him to the plaintiff' on said note the sum of thirty dollars, which he claims to recover and his costs. C. D. General issue in an action of Trespass against several. The defendants in court severally defend, plead and say, that they are not guilty in manner and form as the plaintiff hath alleged, and hereof severally put themselves for trial on the court. A. B. C. D. Judgment. At a court holden &c. J. S. against A. B. and C. D. in an action of trespass for taking and carrying away the plain- tiff's goods ; the defendants severally plead not guilty, and put themselves on the court for trial, and the plaintiff does likewise, as may more fully appear by the pleadings on file ; and having fully heard the said parties, I do find that the said A. B. is not guilty of the wrong alleged against him in the plaintiff's declaration, and do further find that said C. D. is guilty in manner and form, as is alleged in the plaintiff's declaration, and also find that the plaintiff is dam- aged by the said trespass and wrong of the said C. D. tin- sum of dollars ; whereupon it is considered that the plaintiff recover of the said C. D. the sum of dollars damages, and his costs of suit, taxed at , and that exe- 142 cution issue therefor ; and it is further considered, that the said A. B. recover of the pi u'ntiff his costs, taxed at and that execution issue therefor accordingly. Demurrer. And the plaintiff says, that the defendant's said plea, and the matters therein contained, are insufficient in the law, judgment &c. A. B. And the defendant says his said plea, and the matters therein contained, are sufficient in the law. judgment, &,c. C. D. Special Demurrer. And the plaintiff says that the said plea of the defendant, and the matters therein contained, are insufficient in the law, and for causes of demurrer the plaintiff says, that said plea is informal, and double, and that it amounts to the gen- eral issue and nothing more : and prays judgment ice. A. B. Judgment by confession. A justice may take a confession of judgment to the a- aiount of seventy dollars On Book. H county ss. H day of A. D. You A. B. of confess and acknowledge yourself to owe and be indebted unto C. D. in the sum of dollar? en book, to balance book accounts, and hereby acknowl- edge a judgment against yourself in favour of the said C. D. for that sum, and for twenty-five cents costs, before me ; whereupon it is considered that the said C. D. recov- er of the said A. B. the sum of dollars damages, and the sum of twenty-five cents costs, and that execution issue therefor accordingly. J. P. Justice of the Peace. On Note. You A. B. of , confess and acknowledge that you are justly indebted on the within note, [where the judgment is made on the back thereof] in the sum of seventy dol- lar?, [or, if the record is not made on the note, say in a certain note, dated Sic. describe the note,] and hereby ac- knowledge a- judgment against yourself in favour of said C. D. for that sum, and for tweniy-five cents costs, before me : whereupon it is considered that the said C. D. re- i43 cover of the said A. B. the sum of seventy dollars dama- ges and the sura of twenty-five cents costs, and that execu- tion issue therefor &.c. Execution, same as in other cases, except that it should be stated that A. B. of recovered judgment against C. D. of upon his acknowledgment and confession, before J. P. Esq. &c. ; so that it may appear upon what authority a justice of the peace rendered a judgment and issues an execution for a greater sum in damages than thirty-five dol- lars. CHAPTER XIV. Of the judicial powers and duties of Justices of the Peace of a criminal nature, ' The power of Justices of the Peace in criminal matters consists of authority to cause arrests in all cases, to try and sentence for certain crimes of which they have jurisdiction, and to examing and recognize to the higher courts for of- fences where they have not jurisdiction, and also in certain cases to order offenders to give bonds to keep the peace, and for their good behaviour. In examining the executive du- ties of Justices we noticed their power of granting war- rants, and need only add here, that a Justice of the Peace is authorized to grant a warrant to arrest and bring b :fore himself or any other justice of the county, all persons charged with the commission of a crime, of however high a nature, that he may be examined and dealt with accord- ing to law. All officers of the government, whether of the state or the nation, in the militia, army or navy, must sub- mit to the authority of a Justice's warrant, legally issued upon the complaint of an informing officer, stating the cause of the arrest. A justice may direct his warrant to an in- different person to be served in any part of this state, or to a proper officer, to be served within his precincts (a). In criminal cases there is no limitation of the authority of a Justice, as to persons ; it is of no consequence who the offender is, or where he belongs ; the only limitation is from the location of the crime. It is a gre it principle of the common law, which has been adopted in this State, (a) St. seas. 1822. 144 and every where else, where the common law of England has been introduced, that crimes must be punished where they are committed. This principle is founded primarily upon the consideration that the offender must be punished by the laws of that community which have been violated, and part from considerations of humanity, as it is thought but reasonable that persons accused of crimes, should be tried where they were committed, and where they may be supposed to be best known. In this State all crimes must be punished in the county where they were committed, except theft, which may be punished either where the crime was committed or in any county where the criminal may carry the stolen property, and the crime of bigamy, which may be tried where the parties are apprehended. If a person is maliciously stricken or poisoned in one county and dies in another within a year, he must be tried in the county where the stroke or poison was given. A Justice can only grant a warrant to arrest within his county, for crimes committed therein, but his warrant is sufficient au- thority to arrest in such cases in any part of the state, if the criminal flees out of the county (6). A justice has no more authority to grant a warrant to arrest a person for a crime committed out of his county, triable by the county or superior court, and to bind such offender over for trial, than he has for crimes of which he has jurisdiction. A Justice has jurisdiction of all offences committed with- in his county, punishable by fine or forfeiture, not exceed- ing seven dollars. This is the general extent of his crim- inal jurisdiction, but by particular statutes it is extended ; in case of theft he has jurisdiction, where the property stolen is of the value of thirty dollars, and may inflict a fine of seven dollars, order the offender to be whipped, and sentence him to pay treble the value of the property stol- en, to the party injured, where he brings forward a suit in his own name, and that of the state ; in a prosecution for breach of the peace, the offender may be fined seven dol- lars and sentenced to be imprisoned in the count}' gaol not exceeding one month. In all cases of qui-tam informations where there is a fine to the public, damages are also to be giv- en to the party injured. The jurisdiction of a Justice is not final and conclusive in criminal matters, except for the crimes of drunkenness, profane swearing and cursing, and (6) St. 171. breach of sabbath ; in all other cases an appeal lies to the county court, and the right of appeal is the same whether the process is a complaint of an informing officer, or qui- tam information. A writ of error may also be brought upon the judgment of a justice in all criminal cases, to the superior court, for any error apparent upon the record, the same as in civil cases. In all cases where a justice has not cognizance of the offence, and can not proceed to pass sentence upon the offender, he must bind him over as it is called, to the court having jurisdiction of the of- fence. This is an important branch of the authority of Justices of the Peace and should be exercised with much discretion. They are not to decide upon the guilt of the accused, this belongs to the court and jury having final jurisdiction of the offence. The statute provides that in such cases, the Justice shall inquire into the facts charg- ed, and if he shall be of opinion that probable ground ex- ists to support the complaint he may order the accused to enter into a recognizance with surety for his appearance before the court having jurisdiction of the crime. If he acquits a person against whom there exists probable grounds of his guilt, he takes the case away from the court having jurisdiction, and from a jury, which is the proper tribunal in all matters of fact, particularly those of a crim- inal nature, and decides upon the guilt of the accused himself, although he has no jurisdiction of the offence ; and on the other hand, if he binds over persons where the evidence is slight, and where no probable cause exists, he often does a serious injury to the accused and subjects the public to unnecessary expense. The duty of a magistrate in such cases has been considered as analogous to that of a grand-jury ; he is not to try the accused, but to inquire into the matter, and decide whether there is probable grounds of his guilt, so that he ought to be held for trial. It is provided by statute that any Justice of the Peace, from his personal knowledge may ex officio require sureties of the peace and good behaviour of any person, who threat- ens to beat or kill another, or contends with hot and an- gry words, or by threats, turblence and violence, or any other unlawful act, terrifies and disturbs the good people of the state (a). This authority to order bonds to keep (a) St. 147. 13 146 the peace by a justice ex-officio does not seem consistent with another statute (6), which provides that no judgment shall be rendered for any offence except for drunkenness, profane swearing, and hreach of sabbath, without a previ- ous complaint and warrant, not even on personal view or confession. It would be safest in such cases for the ma- gistrate to cause a complaint to be made and signed. When any individual shall complain on oath to a Justice of the Peace against any person that he has just cause to fear that he will imprison, beat or kill him, or procure others to do so, and that he is under fear of death or bodily harm, such justice may require sureties of the peace and good behaviour of the person complained of, and on his failure to procure the same, may commit him to gaol, there to remain till the next county court, or until he is otherwise legally discharged (c). The provisions of this statute are on- ly in confirmation of the common law. Surety of the peace may be demanded by all persons having legal dis- cretion ; by a wife against her husband, who may threaten to beat or kill her ; and even by a husband against his wife, for like causes (d). Surety of the peace may be granted against all persons of legal discretion, against mi- nors and femes covert, or married women ; but in such cases they can not become bound themselves, but must be ordered to become bound by surety, and in case of failure. >rocure the same, must be committed. It can not be lercd against an idiot or a person non compos mentis. All persons who actually break the peace by assaulting or beating another, or by threatening to kill or beat another, or who go armed offensively, or appear with an unusual number of attendants, to the terror of the people, may be required to give sureties of the peace, on complaint of a proper intorming officer. Challenging to fight or quarrel, is a cause for binding to keep the peace, and to good be- haviour ; and threatening to burn or destroy the property of another, as well as threatening to injure their persons ; persons guilty of an affray, may also be bound to keep the peace. If any person shall break the peace by assaulting or beat- ing another, or by tumultuous and offensive carriage, threat- ?&) St. 172. (c) St. 14B. (d) Hawk. P. C. 253. to pr orde 147 turns, traducing, quarrelling, or challenging any person, n the presence of a constable, he mny arrest him, and bring him before a Justice of the Peace, but the Justice can not order him to procure sureties of the peace, without a complaint and warrant, charging him with the offence. Surety for good behaviour may be required of common drunkards, idlers, common cheats, common thieves and gamblers, prostitutes, and common whore-mongers, such a.- raise the hue and cry, without cause, or lie in wait to rob (e). Justices of the Peace have authority on complaint or in- formation of the District Attorney for the district of Con- necticut, to inquire into offences against the laws of the United States, committed within the district or upon the high seas, by any person coming into the district, and to bind them to the circuit court for trial. CHAPTER XV. OF. PROCESS AND TRIAL. fn criminal cases the process consists of a complaint or information and warrant. Grand-jurors are the proper in- form ing officers, but constables and tything-men, may act as such, in case of offences against the laws relating to the sabbath and disturbing public worship. Grand-jurors are town officers, and can only make complaint of offences committed within their respective towns ; if a person commits a crime in pne town and goes into another in the same county, he can not be informed against by a grand- juror of the latter town. The complaint too of a grand- juror can only be presented to a Justice of the town where the grand-juror belongs. Constables, if they act as inform- ing officers, are also confined to their town. If any grand- juror refuses to make complaint of any crime committed within the town, that comes to his knowledge, he forfeits two dollars. The several grand-jurors of each town of which there can not be less than two, nor more than swr, (0 Burns' Just. 243, 4. Statutes 250. may meet when they think proper to advise concerning breaches of the peace, and 'inquire after offences, and make complaint of the same. They are authorized to summon persons to appear before them as witnesses ; and if they refuse, to procure a capias and compel them. The attorneys for the State may also act as informing of- licers before justices, andean make complaint of all crimes committed in any town in the county, and to an}' justice of the peace of the county. A complaint may also be made by a private person for sureties of the peace and good behaviour, where he has just cause to fear that another will imprison, beat or kill him, or procure others to do it, or where he is under fear of death or bodily harm ; but'in such cases he must make oath to the truth of the complaint, which must be certified thereon by the justice. The complaint contains a statement of the crime, charg- ed in proper, legal language, the time and place of its com- mission, and concludes with praying that the offender may be arrested and examined, and must be signed by the grand- juror. A warrant is issued by the justice annexed to the complaint, directed to a proper officer, commanding the arrest of the person accused, and that he be brought be- fore himself, or some other justice of the peace of the county, that he may be examined touching the crime charg- ed in the complaint, and be dealt with according to law. For the crimes of drunkenness, profane swearing and cursing, and breach of sabbath, of which a justice of the peace or constable has personal view, the offenders may be arrested and fined without any complaint or process, but for no other offence can a justice pass sentence, or ren- der a judgment without a complaint and warrant. There are qui-tam complaints or informations or which we have already spoken. 2. Of Trial in Criminal Cases. Trials in criminal cases are essentially the same as in civ- il. The prisoner must be arraigned, or the complaint pub- licly read to him, and he then required to plead or answer to the same ; and in all cases he must either plead guilty or not guilty. If he pleads guilty the justice proceeds to pass sentence, or orders bonds for his appearance before 149 the court having jurisdiction, as the case may require ; if he pleads not guilty the court proceeds to inquire into the charges alleged in the complaint. If the prisoner is a min- or the justice must appoint a guardian to defend him, in the prosecution, and advise him how to plead. This must be done before he pleads, and an entry of the appointment made on the file. In criminal cases, the rules of evidence are the same as in civil, except that depositions are not admissible ; nor can they be admitted in qui-tam informa- tions, where corporeal or other punishment is inflicted (e) j and that in capital offences the testimony of at least two witnesses is required, or that which is equivalent thereto. When a case is adjourned, a practice has prevailed of re- turning the process to the officer, by virtue of which, to hold the prisoner ; but this is incorrect, for after the pris- oner has been brought before the court and the officer made his indorsement, the warrant has been executed and can give no authority to detain the prisoner. The regu- lar mode is to order him to enter into recognizance ; and if he refuses or is unable to procure surety, he must be committed, or the justice may give a written or verbal order to an officer to take him into his custody, and have him forthcoming ; but he should retain the process in his hands as the grounds of his own authority ; but in cases not bailable, no recognizance can be taken. Judgment. Where the court have jurisdiction they must, as in civil cases, find the issue either that the prisoner is, or is not guilty, and in the latter case proceed to render judgment, according to law. A warrant must then be issued to carry the judgment into execution, containing a command to a proper officer, to inflict the punishment, levy the fine and costs, or to commit to prison, the offender. In cases of in- quiry where the justice has not jurisdiction, if he finds that the prisoner is guilty, or rather that there is probable groands to support the complaint, he must order him to become bo'ynd i n a recognizance, with sufficient surety, that he appear before the court having cognizance of the crime, at it*! next term. Where the superior court has fe) Swift's Ev. 144. 13* 140 cognizance of the offence, and the prisoner is bound to ap- pear before that court, the recognizance should be taken to the treasurer of the State ; when he is bound to the county court, il must be taken to the treasurer of the county. There can be no fixed rules as to the amount of bonds ; this must depend upon circumstances ; the natura of the crime, the situation and pecuniary circumstances of the. prisoner, the certainty or doubtfulness of his guilt ; but the sum ought to be reasonable having reference to the circumstances of the case, as the constitution provides that excessive bail shall not be required. The object of bail is to favour personal liberty, and whilst on the one hand proper regard is to be paid to this object, on the oth- er it must not be forgotten, that the security of the pub- lic is the primary object of all punishment, and if such bonds were not required as would be likely to hold the prisoner to trial, the object of the law would be defeated, rogues after they were within the reach of justice be suf- fered to escape, and society exposed to their depredations. Of Commitment. If the prisoner refuses or is unable to procure bonds, or in cases hot bailable, he must be committed to gaol to await his trial. This is done by authority of a mittimus or warrant of commitment, which contains a recital of the cause of commitment, and a command to the officer to con- vey and deliver the prisoner into the custody of the keep- er of the gaol of the county, and also a command to such keeper to receive him into such gaol, to be kept therein, until discharged by due course of law. Of Fines and Costs. All fines, penalties, and forfeitures, not otherwise dis- posed of by law, imposed on any person by a justice of the peace, belong to the treasury of the town wherein the offence was committed. When a part of a fine or pen- alty is given to a common informer, or to the person in- jured, and part to some public treasury, unless a qui-tam suit has been commenced, a prosecution may be brought by an informing officer, in which case the r vhole fine or penalty will belong to such public treasury. The treas- urers of towns have power to receive all moneys belong- ing to towns for fines, forfeitures and penalties. 151 In criminal prosecutions, costs are not taxed against tin public, when the prisoner is acquitted, in his favour ; but the costs on the part of the prosecution are taxed against the public. Where the prisoner is convicted, costs are al- ways taxed against him, and are to be paid before he is discharged ; but if the same can not be obtained of him or out of his estate they are to be paid out of the treasury of the town wherein the prosecution is had ; and if the same shall afterwards be recovered of the person convic- ted, they shall be paid into the treasury of the same town. The justice can immediately draw an order for thp amount of the bill of costs, and it is his duty to pay it out to those who are entitled to receive it. in all cases where a justice of the peace has juris- diction and renders final judgment, the prisoner can not be discharged until the judgment has been complied with, in- cluding payment of the costs, and this is a part of the sentence. CHAPTER XV. FORMS IN CRIMINAL CASES. We shall not in general define the different crimes, as our limits would not admit ; neither would it be of any par- ticular use in a work of this kind, as questions of law, as to whether a crime charged has been committed can sel- dom arise, and xvhen they do, if attended with doubt or dif- ficulty, and in cases of inquiry, it is most proper the justice should send the cause to the court having jurisdiction. We will however make a few observations as to crimes in general. There is one important distinction between crimes arid civil injuiries ; the former require the concurrence of the will, and the intent with which the act is done, is the char- acteristic feature of a crime ; there must be a criminal in- tention as well as an unlawful act. No person therefore, who does not possess a sound mind, or legal discretion can be guilty of a crime, nor can a crime be committed where the act is done by mistake, accident or compulsion. Idiots. lunatics, and persons non compos mentis, being without un- derstanding cannot commit crimes. A lunatic, however, during his lucid intervals, may commit and be punished for crimes. As to infants, the law is, that under the age of seven years, they are incapable of committing crimes : at fourteen, which is the period of legal discretion, they are as much responsible for their criminal acts as any other persons ; but between these two ages is a doubtful period, yet the law presumes that they are incapable, and in order to make them responsible and punishable for criminal acts, it must be proved that they have understanding and capa- , city to distinguish between good and evil. A boy of ten years and another of nine, have been executed for killing their companions, it being considered that they showed a consciousness of guilt, one by hiding the body of him he had killed, and the other, by secreting himself. When a person is compelled by threats which give just and well- grounded apprehension of death or bodily harm, he is in some instances deemed innocent of a crime. A wife is considered as so much under the subjection and correction of her husband, thai her acts of a criminal nature, done in the company of her husband, are supposed to have been committed by his command and authority, and she is ex- cused from guilt. But in case of crimes against the law of nature, which are morally wrong, she is respon- sible for her criminal conduct. Intoxication, although it deprive a man of his reason, being a voluntary and a crim- inal act, forms no legal excuse for the commission of a crime, and a man 7nust be punished nhen he is sober, for his deeds when in a state of inebriety. We shall begin with crimes of the highest nature and follow the order of the statute. 1. Of crimes against the lives and persons of individuals. Form of complaint for murder. To A. B. of Esq justice of the peace for the coun- ty of H comes C. D. of in said county, grand- juror of said town of and complains that a transient person, calling himself J. S. on the day of at in the night season, with force and arms, wilfully, and of malice aforethought, did feloniously kill and murder E. F. J S3 of by discharging at him a pistol, the ball of which passed through his body, near the heart, of which wound he immediately expired, against the peace, contrary to the form o.C the statute, and of evil example. And the said C. D. prays process against the said J. S. that he may be arrested and examined. Dated &c. C. D. grand-juror. [In case of man-slaughter, the words of malice afore- thought, may be omitted.] Perjury n-ith intent to take the life of a person. To A. B. &c. comes C. D. of grand-juror of and complains, that on the day of at H in said county, before the honourable superiour court, then and there in session, then and there being on trial before said court O. P. of on an indictment charging the said O. P. of having wilfully arid maliciously burned the dwelling- house of R. S. and thereby caused the death of the said R. S. ; and during the trial of said O. P. for said crime of arson, one Y. Z. of having been duly sworn to tes- tify in said case, by Z. H., clerk of said court, did wickedly, wilfully, corruptly, and falsely, and with malice afore- thought, and with intention to take away the life of the said O. P. then on trial as aforesaid, and to cause him to be convicted of said crime of arson, testify and swear [here set out the words] which said wicked, corrupt, and false testimony of said Y. Z. was material to the determin- ation of the issue then on trial, and intended to take away the life of the said O. P. and cause his conviction ; and which said acts and doings of the said Y. Z. are against the peace, contrary to the form of the statute, and of evil ex- ample. Dated &c. Arson, causing the death, or endangering the life of a person. To A. B. &c. comes C. D. of grand-juror of the town of and complains, that E. F. of being an evil minded person, did on the day of with force and arms, wilfully, maliciously and feloniously set fire to and burn the store of G. H. of situated in said thereby causing the death of J. S. then in said store asleep, he be- ing burnt and consumed in said building, against the peace, contrary to the statute, and of evil example. 154 (Jotnpluint for Rape. To A. B. 6cc. comes C. D. &.c. and complains that or: itn- day of at E. F. of with force and arms, did make ,m assault on the bodv of E. M. of a single woman of the age of twenty years, then and there in the peace of this State being, and with like force and arms, and with actual violence, did then and there forcibly and feloniously, and against the will of the said E. M. have carnal copulation with the said E. M. and did her ravish, force and know, against her will, and without her consent, against the peace, and contrary to the form of the statute in such case pro- vided, and of evil example. The warrant in these cases will be in common form. The record of judgment will recite all the material allega- tions contained in the complaint, and then say : And the prisoner being required to answer to said complaint, pleads, and says that he is not guilty, and having heard the testi- mony, as well in behalf of the prisoner as of the State, I am of opinion that there are probable grounds to support said complaint, whereupon it is corx-idered, that the said E. F. be committed to the keeper of the gaol in and for said county of H therein safely to be kept until he shall be delivered and discharged according to law. Mittimus* To the sheriff &c. Greeting : Whereas E. F. of on the day of was brought before me by virtue of a warrant issued upon tho com- plaint of C. D. grand-juror of the town of complaining of the said E. F. that on the day of at with force and arms [recite the allegations charging the crime] ; to which said complaint the said E. F. plead not guilty, and having heard the evidence and inquired into facts al- leged in said complaint, I was of opinion that there were probable grounds to support said complaint, whereupon it was considered that the said E. F. be committed, (the said crime not being bailable,) to the keeper of the gaol in and for the county of H therein to be kept until deliv- ered by due course of law. These are therefore to command you to take an.l con- vey the said E. F. to said gaol, and him deliver into the cus- tody of the keeper thereof, and lr;:\e with him this ua: rant of commitment ; and said keeper is hereby command- ed to receive the said E. F. and him safely keep within -iid :;;iol until delivered and discharged hy due course of law. Dated &c. The preceding crimes are capital offences, and punished by death. Complaint for having carnal knowledge of a female under the age of ten years. and complains that A. B of on the - day of at , with force and arms, did commit an assault on the body of C. D. a female child of the age of nine years and six months, and with like force did then and there feloniously copulate with said child, and her carnally know and abuse, against the peace, contrary to the form of the statute, and of evil example.. Complaint for an attempt to commit a rape. complains that A. B. of on the day of at with force and arms, feloniously an assault made on the body of C. D. of , a female of the age of fifteen years, with the intention to ravish, carnally know, and com- mit a rape on the body of the said C. D. against the peace, and contrary to the form of the statute. Complaint against a woman for concealing her pregnancy. complains that E. F. of was on the day of at , intentionally and feloniously de- livered in secret, and by herself, of an issue of her body, being a male child, which child is by law a bastard, and that for nine months previous to the delivery of said child, the said E. F. had intentionally and feloniously concealed f her said pregnancy : all of which is against the peace and \ contrary to the form of the statute in such case provided. Complaint for administering poison to a woman to procure . an abortion. J complain? that on the day of at A. B^i of , with force and arms, did wilfully, maliciously and feloniously administer a certain poisonous medicine and noxious and destructive substance called to C. D. of a female and unmarried, the said C. D. then being pregnant and quick with child, with intention thereby to cause the miscarriage of the said C. D. of the said child of which she was then pregnant, and by means whereof the said C. D. did miscarry of the child of which she was then pregnant, against the peace &c. When poison is administered to any person to cause their death, say : did wilfully, maliciously and feloniously and with malice aforethought, administer and cause to be administered to C. D. of a certain deadly poison and noxious and destructive substance, called with an in- tention him the said C. D. thereby to kill, cause the death of, and murder, against the peace &c. Complaint for an assault rcith intention to kill or rob. - complains that on the day of at , A. B. of , being an evil disposed person, with force and arms, and with actual violence, and with the intention him to kill and murder, (or with intention him to rob,) an as- sault made on the body of C. D. of then and there in the peace of this State being, against the peace, and con- trary to the form of the statute in such case provided. Complaint for the concealment of the death of a bastard child. complains that on the day of at A. B. of , then and ever since a single woman, was secretly delivered of an issue of her body, the same being still- born and without life, and which issue, if born alive, would have been a bastard, and that the said C. D. hath intention- ally and feloniously, by herself, and the procurement of others, concealed the death of said issue of her body, against the peace &.c. Complaint for kidnapping. complains that on the day of A. B. of with force and arms, did deceitfully and feloniously kidnap, and forcibly and fraudulently carry off and decoy out of this state, C. D. of a free person of colour, and did then and there with like force and fraud, arrest and imprison the said C D. and him convey and carry off out of this State, he the said A. B. then and there well-know- ing the said C. D. to be free, against the peace. complains that on the day of at A. B. of with force and arms, deceitfully, fraudulently ,iud feloniously, did forcibly arrest C. D. of , a free person of colour, and him with like force imprison and confine in a certain vessel, called the , lying in the har- bour of , with the intention him the said C. D. to con- vey and carry out of this State, he the said A. B. then and there well knowing that the said C. D. was free, against the peace &c. [The last eight offences are punishable by imprisonment during life, or such other term as the superior court, which has recognizance of the crimes may determine. They are consequently bailable. The record of judgment will be the same until the finding of the issue :] And having in- quired into the facts and allegations contained in said com- plaint, I do find and am of opinion that there are probable grounds for supporting said complaint, whereupon it is considered that the said become bound with sufficient surety, in a recognizance of five hundred dollars, to the Treasurer of the State, that the said appear before the honourable superior court next to be holden at H , on the Tuesday of A. D. for said county of H , then and there to answer to said complaint, and abide the decision of said court thereon, and the said , and G. H. as his surety, became bound accordingly. Recognizance. H county, ss. H , the day of A. D. You C. D. of as principal, and G. H. of as surety, acknowledge yourselves jointly and several bound to the Treasurer of the State of Connecticut in a recognizance in the sum of five hundred dollars, that the said C. D. shall appear before the next superior court to be holden at H on the Tuesday of A. D. in and for said county of H , then and there to answer to the foregoing com- plaint of E. F. grand-juror, charging the said C D. with the crime of and abide the decision of said court there- on. Taken and acknowledged in H , the day and year above written, before me. J. P. justice of the peace. [If the prisoner cannot procure bail, he must- be com- mitted, in which case the conclusion of the record will be as follows :] And the said C. D. neglecting and refusing to become bound with surety as aforesaid, he was ordered to be com- 14 158 initted into the custody of the keeper of the gaol lor said county of H , and by virtue of a warrant of commit- ment by me issued, was committed accordingly. Mitiimut, To the sheriff &c. Greeting : Whereas C. D. of , on the day of , was brought before me by virtue of a warrant issued on the complaint of E. F. grand-juror of , for that on the day of at the said C. D. with force and arms, did &c. [here recite the allegations in the complaint charging the crime] and to said complaint the said C. D. plead not guilty, and having inquired into the facts, I did find that there were probable grounds to support said complaint, and thereup- on it was considered that the said C. D. become bound with sufficient surety to the Treasurer of this State, in the sum of five hundred dollars, that the said C. D. appear be- fore the superior court, to be holden at H on the Tuesday of A. D. for said county, then and there to answer to said complaint, and abide the decision of said court thereon ; and the said C. D. having neglected and refused to become bound as aforesaid. Wherefore, by au- thority of the State of Connecticut you are hereby com- manded to take and convey the said C. D. to the gaol of said county of H , and him to deliver into the custody of the keeper thereof, and to leave with him this warrant of commitment ; and said keeper is also commanded to re- ceive and safely to keep the said C. D. within said prison, until he may be delivered and discharged by due course of law. OF CRIMES AGAINST PUBLIC PROPERTY'. Complaint for Burning a Magazine. complains that on the day of A. D. at H , C. D. of , with force and arms, did wilfully, maliciously and feloniously burn and destroy a magazine of military stores then and there being, belonging to the State of Connecticut, against the peace and, contrary to the iorm of the statute in such case provided, and of evil example. Complaint for burning public buildings. complains that on the day of at A. B. of with force and arms, did wilfully, maliciously and 159 feloniously set fire to, and burn a school house, situated in said , used for the purposes of education, and belong, ing to the school-district in the society of , in said town of . and said house was wholly consumed and destroy- ed, against the peace &c. Complaint for forging public sureties. complains that on the day of at in the county of E. F. of , with force and arms, wil- fully, fraudulently and feloniously, did falsely make, forge and counterfeit a certain writing or order, purporting to have been made by A. B., C. D and G. H. select-men of the said town of , and purporting to be directed to and requesting J. S., treasurer of said town of , to pay to the said E. F. the sum of twenty dollars, and which said false, forged and counterfeit order is of the following tenor viz. [here copy the order literally] as by the same order ready in court to be produced may appear. And the said grand-juror avers that the said J. S. was on the day of the date of said order, and when the same was so falsely made, treasurer of said town of , and that the same was so false- ly made, forged and counterfeited by the said E. F. with the intention to defraud the said town of , being a cor- poration, against the peace &c. CRIMES AGAINST PRIVATE PROPERTY. Complaint for robbery. complains that on the day of at one G. H. of , being an evil minded person, with force and arms, did wickedly, wilfully and feloniously make an assault on the body of A. B of , he then and there be- ing, and did by feloniously putting him the said A. B. in fear of losing his life, or of bodily harm, from him feloni- ously take and rob three bank bills or notes, one, of the denomination and value of five dollars, issued by the pres- ident, directors &. co. of the Phoenix Bank incorporated by the laws of this state, of the number of dated , and signed by C. S. president, and countersigned by G. B. cashier of said bank [describe all the bills, or if property is taken, and not money, describe the property] ; and which said wrong acts and doings of the said G. H. are 160 agaiast the peace, contrary to the form of the statute i: such case provided, and of evil example. Complaint for burglary. complains that on the day of at , in the county of a transient person of the name of John Brown, otherwise Peter Foster, then at said . being, in the night season of said day about the hour of o'clock in the night, with force and arms, feloniously and burglariously, did break and enter the dwelling-house of A. B. situated in said , with the intention to steal or commit some other felony, and did then and there feloni- ously take, steal and carry away [here describe the prop- erty stolen] of the proper goods and chattels of the said \. B. and of the value of fifty dollars, against the peace, &c. Complaint for breaking a dwelling-house in day time and putting any person in fear. complains that on the day of at , in said county of , A. B. otherwise called C. D. a transient person, about the hour of twelve o'clock at noon, with force and arms, felonionsly did break and enter the dwelling-house of J. S. situated in said town of , with the intention to steal therein, and E. S. the wife of the said J. S. then and there being alone in said house, he the said A. B. did feloniously and with the like intent, put her the said E. S. in dread and fear of her life, or bodily in- jury, against the peace &c. Complaint for arson. complains that on the day of at , E. F. of , being an evil disposed person, with force and arms, did wilfully, maliciously and feloniously, set on fire and burn a certain dwelling-house, situated in said , the prop- erty of , against the peace and contrary to the statute n such case provided, and of evil example. Complaint for burning a house, store, or manufactory by the owner, to defraud insurers. complains that on the day of A. B. of was the owner of a certain manufactory, for the manufac- ture of cotton goods, situated in , that afterwards, 161 viz. on the said of the said A. B. procured and ob- tained a policy of insurance of the ./Etna Insurance Com- pany, a body politic and corporate, incorporated by the le- gislature of this State, underwritten by said corporation, on said factory and the machinery, and stock therein con- tained, to the amount of five thousand dollars, and which said policy was signed by T. K. president &c. [here de- scribe the policy] as by said policy of insurance ready to be produced appears. And said grand-juror further complains, that afterwards, on the day of at said , the said A. B. then owner of said factory, with force and arms, did wilfully, maliciously, fraudulently and felon- iously set on fire and burn said factory, the machinery and stock therein contained, with the intention to defraud said corporation and body politic, and the underwriters of said policy, against the peace &c. Complaint for Forgery. complains, that on the day of at in said county of , A. B. of , with force and arms, did wil- fully, fraudulently and feloniously, f Isely make forge, and counterfeit, a certain writing, commonly called a prom- issory note, the same purporting to be a true and genuine note, made and signed by J. S. wherein he promised to pay O. P. or order, the sum of one hundred dollars at the Phoe- nix bank, an incorporated bank, and which said false note is in the words and figures following viz. [here copy the note or instrument forged] as by the same note ready in court to be produced appears : and which said forged note was so by the said A. B. falsely made, forged and counter- feited, with the intention to defraud the said Phoenix Bank, being a body corporate, incorporated by the Inws of this State, and with the intention to defraud the said J. S., against the peace and contrary to the form of the statute &c. Where the endorsement is forged. complains that on the day of A. B. of , had in his possession a certain writing, commonly called a promissory note, his own name being thereto subscribed, therein promising to pay to J. S. or order, at the Phrenix Bank, an incorporated bank, incorporated by an act of the legislature of this State, the sum of one hundred dollars 14* that afterwards, on the said day of at said . the said A. B. with force and arms, did wilfully, fraudulently and feloniously, falsely make, forge and counterfeit a cer- tain writing or endorsement on the back of said note, pur- porting to be a true and genuine writing and endorsement of the said J. S. and purporting that the said J. S. thereby ordered the 'contents of said note to be paid to the said Phoenix Bank ; and which said note is in the words and figures following viz. [here copy the note] ; and which said falsely made, forged, and counterfeit writing or en- dorsement thereon is of the tenor following, viz. " J S ;" and which said false, forged and counterfeit en- dorsement was so as aforesaid falsely made, forged and counterfeited by the said A. B. with the intention to de- fraud the said J. S. and with the intention to defraud the said Phoenix Bank, against the peace &c. Complaint for publishing a forged instrument. complains that on the day of , at , A. B. of . had in his possession a certain falsely made, forged and coun- terfeit writing or note, purporting to be the true and genuine note of J. S., wherein the said J. S. promised to pay C. D. or order, one hundred dollars on demand, and which said false notewas of the tenor following, viz. [here copy the note] as by said note ready to be produced may fully appear. And said grand-juror further complains, that afterwards on the said day of at , the said A. B. with force and arms, did wilfully, fraudulently and feloniously, utter and publish as true, to O. P. said false, forged and counterfeit note, well knowing the same note to be falsely madf , forg- ed and counterfeited, with the intention to defraud the said J. S. and with intention to defraud the said O. P., against the peace &c. Complaint for Counterfeiting Coin. complains that A. B. of at on the day of , with force and arms, did wilfully, fraudulently and feloniously counterfeit and falsely make, a certain false and counterfeit silver coin, current in this State, called a Span- ish milled dollar, in likeness and similitude of the true and genuine silver coin, called a Spanish milled dollar, of cer- tain base and corrupt metals, with intention to defraud the s;ood people of this state, against the peace &c. 163 Complaint Jor pulling off' Counterfeit Coin. complains that on the day of * , A. B. of had in his possession a certain falsely made and counter- feited coin, in likeness and similitude of a genuine gold coin, called a half eagle, a coin current in this state ; that afterwards on the same day of at said , with force and arms he did fraudulently and feloniously offer to pass and give in payment, and did utter, put off, pass and give in payment, to O. P. as and for a true coin, and for the consideration of five dollars, said false and counterfeit coin, he the said A. B. well-knowing said falsely made and coun- terfeit coin was spurious, false and counterfeit, with the intention to defraud the said O. P. and other citizens of this state, against the peace &c. Complaint for making or procuring to be made any plate for counterfeiting. complains that on the day of at , A. B. of , with force and arms, wilfully, feloniously and fraud- ulently, made, caused, and procured to be made and en- graved, a certain plate for falsely making and counterfeit- in"; of bills or notes, for the payment of money in the name of the president, directors and company of the Phoe- nix bank, an incorporated bank, incorporated by an act of the legislature of this state, wi'th intent to defraud said bank, and the good people ofthis state, against the peace &c. Complaint for possessing -with intent to pass counterfeit bills. complains that on the day of , at , A. B. otherwise called C. D. a transient person, with force and arms, wilfully, fraudulently and feloniously had in his pos- session, sundry false and counterfeit bank bills or notes, for the payment of money, viz. one of five dollars, pur- porting to have been issued by the president, directors and company of the Phoenix bank, an incorporated bank [de- scribe the bills] ; that the said A. B. had in his possession said false and counterfeit notes, well knowing the same to be falsely made and counterfeit, and with the intention to utter and pass the same, or to cause and procure the same to be uttered and passed, and with the intention to de- fraud the several banks aforesaid, and the good people of this state, against the peace &c. 164 Complaint for selling 4'C. counterfeit bills with the intent to have the same passed. complains that on the day of at , A. B. of , with force and arms, did wilfully, fraudulently and feloniously sell, exchange, and give in payment to C. D. of , a certain false, forged, and counterfeit bill, pur- portine to be a true and genuine bill, issued by the pres- ident, directors and company of the Phoenix bank, incor- porated by an act of the legislature of this state, and which said bill is of description following, viz. [describe the bill] ; he the said A. B. well knowing the same to be falsely made, forged and counterfeited, with the intention 1o have the same bill uttered and passed, and with the intention to de- fraud the said Phoenix bank and the good people of this state, against the peace &c. [In the preceding cases the prisoner must be bound to the superior court.] Complaint for Horse Stealing. complains, that on the day of at A. B. a transient person, with force and arms, did wickedly and fe- loniously take, steal, and convey away, from and out of, the possession of J. G. of said a certain bay horse, the pro- perty of the said J. G. then and there being, and of the va- lue of dollars, against the peace, contrary to the form of the statute, and of evil example. [A qui-tam information lies in favour of the owner of the horse, who is entitled to treble the value thereof.] For stealing from a Person. complains, that on the day of at A. B. of with force and arms, did wilfully and feloniously take, steal, and carry away, from the person of C. D. of said by picking his pocket, sundry bank bills or notes, amount- ing in all to the sum of dollars, and which said bills were of the following description, viz. [here describe the bills, mentioning the banks by which they were issued] ; of the proper moneys and chattels of the said C. D. and of the value of fifty dollars ; [or, did take, steal, and carry away from the person of the said C. D. a certain gold watch and chain, of the goods of the said C. D. then and there in his possession being, and of the value of thirty dollars, against the peace,] &c. 165 [If the property stolen is not of the value of twenty dol- lar?, it is only simple theft. If the theft was committed at afire, say:] did feloniously take, steal, and carry away from the person of C. D. of at at and during an as- semblage of people collected for the purpose of extinguish- ing a fire, &c. Complaint for breaking and stealing from a building in the day time, complains, that on the day of at R. E. a transient person, with force and arms, feloniously did un- lawfully break and enter, about the hour of noon of said day, into the shop, or store, of C. D. of situated in said and therein did feloniously take, steal, and carry away four yards of blue broadcloth, then and there being, of the proper goods of the said C. D. and of the value of twenty dollars, against the peace, &c. [If the property stolen is not of the value of one dollar, it is only simple theft. In the last five cases the prisoner may be bound either to the next superior or county court.] Complaint for Simple Theft. complains, that on the day of at A. B. of with force and arms, one silver mounted watch, with a gold seal, of the property of C. D. of and of the value of thirty dollars, feloniously did then and there take, steal, and carry away from and out of the possession of the said C. D. against the peace, contrary to the form of the statute, and of evil example, &c. Warrant same as in other criminal cases. Record of Judgment. H county H , day of A. D. Be it remembered, that on this day of A. B. of was brought before me by virtue of a warrant issued on the complaint of G. H. grand juror of said town of H for that, on the day of at in said county of H with force and arms the said A. B. feloniously did take, steal, and carry away a certain silver mounted watch and gold seal, of the property of C. D. of and of the value of thirty dollars, against the peace, &c. and being required to answer to said complaint, the said A. B. pleads that he 166 is not guilty ; and having inquired into the facts, and fully heard the parties with their witnesses, I do find that the said A. B. is guilty in manner and form alleged in said com- plaint, and do further find that said watch is of the value of ten dollars ; whereupon it is considered that the said A. B. pay a fine of seven dollars to the treasury of the town of where said crime was committed, and that he be further punished, by being whipped on his body ten stripes, and that he pay the costs of this prosecution, taxed at dol- lars cents, and stand committed until this judgment be performed. [If the goods stolen are found to be of less value than four dollars, and greater than one, the judgment will be as follows :] I do find that the said A. B. is guilty as charged, and further find that the said goods are of the value of three dollars, and thereupon it is considered that the said A. B. pay a fine to the treasury of of five dollar* [not to exceed seven] and the costs of this prosecution, taxed at ; and the said A B. having neglected and refused to pay said fine and costs, or secure the payment of the same, a reasonable time having been allowed him so to do. it is thereupon fur- ther considered that the said A. B. be punched by whipping seven stripes on his body, and that he stand com- mitted until the same is performed, and the costs of this prosecution paid. [Where the value of the jroods is found to exceed thirty dollars, the person is to be bound to the county court .is in other cases ; and where the value is less than one dollar, he can only be fined and subjected to pay the costs.] A qui-tam information may be brought for theft, for which see page 133, in which case damages are also to be given to the owner of the goods, to the amount of treble the value thereof. Warrant of Execution. To the Sheriff of, &c. Greeting. Whereas, A. B. of was on the day of convict- ed before me, of having stolen a silver watch and gold seal of C. D. of and the same was found to be of the value of ten dollars ; and thereupon it was considered that the said A. B. pay a fine to the treasury of the town of of sev- 167 en dollars, aod the costs of prosecution, taxed ut and that he be further punished, by whipping seven stripes on his body, whereof execution remains to be done. These are therefore to command you without delay to convey the said A. D. to some suitable place, and there inflict on his body seven stripes ; and that of the moneys, goods and chat- tels, of the said A. B. to be found within your precincts, you cause to be levied the aforesaid fine and costs, and pay the same to me, to be disposed of according to law, and fif- ty cents more for this warrant, and also to satisfy your fees ; and for want of goods and chattels of the said A. B. to satis- fy said several sums, you are to levy on his body, and him commit into the custody of the keeper of the gaol for said county of who is hereby commanded to receive the said A. B. within said gaol, and him safely keep therein, until he is delivered and discharged by due course of law ; and you are to leave a copy of this warrant with said keep- er.* Hereof fail not, but make return within sixty days next coming. Dated^ &c. J. P. Justice of the Peace. [Where the goods are more than one dollar, and less than four, the warrant will be the same as the preceding, until you state the conviction] : was convicted before me of having stolen a watch, of the proper goods of C. D. and the same was found by me to be of the value of three dol- lars, whereupon it was considered that the said A. B. pay a fine to the treasury of of five dollars, and the costs of prosecution, taxed at and the said A. B. having neglect- ed and refused to pay said fine and costs, or secure the pay- ment of the same, a reasonable time having been allowed him so to do, it was thereupon further considered that he be punished by whipping ten stripes on his body, and that he pay the aforesaid costs of prosecution, whereof execu- tion remains to be doue. These are therefore, by author- ity of the state of Connecticut, to command you to convey the said A. B. to some suitable place, and there inflict up- on his body ten stripes ; and that of the goods and chattels of the said A. B. to be found within your precincts, you cause to be levied the aforesaid sum of the costs of said prosecution, with fifty cents more for this warrant, and al- so for your fees ; and for want of goods and chattels of the 168 said A. B. to satisfy said sums, you are to levy on his bod) . and him commit into the custody of the keeper of the gaol for ?aid county of and leave with him a copy of this warrant ; and said keeper is hereby commanded to receive the said A. B. and him safely keep within said gaol, until he be delivered and discharged by due course of law. Hereof fail not, but of this warrant, with your doings there- on, make return within sixty days next coming. Dated, &c. J. P. Justice of the Peace. [When the goods stolen are of less value than one dollar, the warrant will command the officer to levy the fine and costs, and for want oCgoods to satify the same, to take and Commit the body of the prisoner, to gaol, as in the preceding Quitam Process for theft and Search- War rant. To A. B. of Justice of the Peace for the county of conies C. D. of and complains as well in the name of the state of Connecticut, as in his own name, that one E. F. of on the day of at said one certain piece of woollen cloth, three fourths of a yard wide, con- taining ten yards, of the proper goods of the said A. B. and of the value of dollars, then and there being, with force and arms, feloniously did take, steal, and carry away, from, and out of the possession of the said complainant, who fur- ther complains and informs, that he hath good grounds to suspect, and doth suspect, that the said E. F. hath feloni- ously secreted and concealed said stolen goods, in his dwelling house, situated in said and that said goods are now so feloniously concealed and secreted by the said E. F. in his said dwelling-house, against the peace, and con- trary to the statute in such case provided, and to the dam- age of the complainant the sum of ten dollars ; and the complainant prays that process may issue to search for said stolen goods, and to arrest the said E. F. that he may be examined and dealt with according to law. Dated, &c. A. B. County of H ss. H , day of A. D. Personally appeared before me, A. B. who hath subscri- bed the foregoing complaint, and made oath to the truth of ihc saiue, and that he hath just grounds to suspect, and doth suspect, that said goods were stolen by the said E. F. and that they are secreted and concealed by him in his said dwelling-house as mentioned in said complaint. J. P. Justice of the Peace. Warrant. To the Sheriff, &c. Greeting Whereas the foregoing complaint hath been made to me, and the said complainant hath made oath to the truth of the same ; these are therefore, by thf authority of the State of Connecticut, to command you forthwith to proceed with the said A. B., taking assistance, if necessary, and in the day time enter into the dwelling-house of the said E. F. de- scribed in said complaint, and diligently make search there- in for the said stolen goods mentioned in said complaint, and if found, to seize the same, and forthwith bring the same before me or some other justice of the peace of said county ; and you are also commanded to arrest the body of the said E. F. if he can be found within your precincts, and him forthwith have before the same justice of the peace, that he may be examined, touching the matters contained in said complaint, and be dealt with according to law. 1 Dated, &c. J. P. Justice of the Peace. If the prisoner is found guilty, and the property found to be of the value of four dollars or more, the judgment must be that he be fined not exceeding seven dollars, and whipped not exceeding ten stripes, and also that he pay treble the value of said goods to the said A. B. the party injured. For form of Record, see page 165. Complaint for receiving and concealing stolen goods. complains, that on the day of at some person to the said grand-juror unknown, feloniously took, stole, and carried away from the possession of C. D. of a certain timber chain, of the length of feet, of the pro- per goods of the said C. D. and of the value of three dol- lars, and that afterwards, on the same day of at said E, F, of with force and arms, did feloniously receive the said goods, well knowing the same to have been stolen, and did then and there fraudulently and feloniously conceal 15 170 nui secrete the same goods, against the peace, and contra ry to the form of the statute, fcc. OF CRIMES AGAINST PUBLIC JUSTICE. Complaint for Perjury. complains that on the day of at in the county of H before the superior court then in session at H for said county, a certain cause then being on trial before said court, wherein A. B. was plaintiff, and C. D. defendant, O. P. of was then and there before said court duly sworn to testify in said cause, and had administered to him by f. C. the clerk of said court, and duly authoriz- ed to swear witnesses, to testify before said court, the oath provided by law for witnesses ; and that afterwards, on said day of and during the trial of said cause, the said O. P. did wickedly, corruptly and feloniously, falsely testi- fy and swear, that [here set out the words] he, the said O. P. then well knowing that said testimony was untrue and false, and the same was material to the issue joined and on trial between said parties in said cause, against the peace, contrary to the form of the statute in such case provided, and of evil example. Complaint for Subornation of Perjury. complains that on the day of at A. B. did wickedly, corruptly, and feloniously suborn and procure E. F. of to appear before the superior court, on the day of at the said court then and there being in ses- sion for said county of H and then and there corruptly and falsely to testify in a cause then on trial before said court, wherein the said A. B. was plaintiff, and the said C. D. defendant, that [here recite the false testimony] ; and the said E. F. was then and there by T. C. clerk of said court, duly sworn to testify in said cause, and did, during the trial thereof, testify the aforesaid false and corrupt words and facts, and which false testimony so falsely and wickedly procured by the said A, B. to be testified, he well knew to be false and corrupt, and the same was material to the issue then on trial between said parties ; which wrong and corrupt acts and doings of the said A. B. are again=! the peace, &c. 171 Complaint for Bribery. complains, that on the day of at A. B. oi did wickedly, corruptly and feloniously offer to J. P. then justice of the peace for the county of H and con- cerned in the administration of justice, the sum of dol- lars in money, with the intention to bribe the said J. P. and influence his behaviour in his said office, in relation to a cause then pending before said Justice, wherein the said A. B. was plaintiff, and C. D. of defendant; and which >aid wrong and corrupt acts and doings of the said A. B. are against the peace, &c. [The criminal must be bound to the superior court for bribery.] Complaint for Embezzling any Record. complains, that on the day of at C. D. oi with force and arms did wilfully, corruptly and feloni- ously embezzle, eloine, and take away from the office of J. P. justice of the peace for the county of H and author- ized to hold courts of record, a certain writ and process returned before said justice, wherein A. B. was plaintiff and the said C. D. defendant, and which was issued by [here describe the same] and which said writ and process was a part of the riles, proceedings and records of said Justice in said cause, and the same writ and process were so embez- zled, eloined, and taken away from and out of the office of said Justice, by the said C. D. with the intention to defeat said suit and cause, and to prejudice the rights of the said A. B., against the peace, and contrary to the form of the statute, &c. Complaint for Resistance to Officers. complains, that on the day of at A. B. of with force and arms did make an assault on M. S. then constable of the said town of while the said M. S. was in the execution of his said office, and attempting to ar- rest O. P. of said by virtue of a writ of attachment in favour of Q, R. against the said O. P. issued in due form of law by J. P. justice of the peace, and the said A. B. did then and there, whilst the said M. S. was attempting to ar- rest the said O. P. in obedience to the command in said writ, with like force and actual violence, abuse and resist the said M. S. in the execution of his said office, against the peace, and contrary to the form of the statute, &c. [For resisting an officer, the offender must be bound to the county court, and punished by fine and imprisonment.] OF CRIMES AGAINST THE PUBLIC PEACE. Complaint for a Riot. complains, that on the day of at A. B., C. D. and E. F. all of and several other persons to said grand juror unknown, with force and arms, riotously and tumultuously assembled together with an intention to do an unlawful act, against the peace, or to the manifest ter- ror of the people, and with force and violence, and against the peace, to pull down and demolish the dwelling-house of O. P. situated in said ; and being so riotously and unlawfully assembled, J. P. justice of the peace for said county, obtaining knowledge thereof, resorted to the place where the said A. B., C. D.&c. were so unlawfully assem- bled, and then and there, after commanding silence, in their hearing, made proclamation, with an audible voice, as fol- lows, viz. " In the name and by authority of the State of Connecticut, I charge and command all persons assembled, immediately to disperse themselves, and peaceably to depart to their habitations, or to their lawful business, upon the pains and penalties of the law ;" that the said A. B., C. D. and E. F. and divers other persons to said grand juror un- known, did not disperse themselves after said proclamation. but continued so unlawfully and riotously assembled togeth- er, to the great terror of the good people of this state, against the peace, and contrary to the form ol the statute, &c. Another. complains, that on the day of A. B., C. D. and E. F. and divers other persons, to the said gnmd juror unknown, with force and arms, and riotously and tumultu- ously assembled at in said county, to do an unlawful , act, and with force and violence, and against the peace, to pull down, demolish, and destroy the dwelling-house of situated in said and being so riotously, tumultuous- ly, and unlawfully assembled togetfef.r, with force and arms, and with actual violence, and to the manifest terror 173 ofsundry of the good people ofthis state, did then and there pull do\vn, demolish and destroy the said dwelling-house of the said against the peace, and contrary to the form of the statute in such case provided, and of evil example. [For this crime the offenders must be bound, either to the next superior or county court, for trial. The record of judgment, recognizance, and mittimus, if necessary, the same as in other cases.] Complaint for breaking Windows, fyc. in the night season. romplains, that on the day of at about the hour of twelve o'clock at night, A. B. of with force and arms, did wilfully and maliciously break a window, by forcibly throwing a large stone against the same, in the dwelling-house of C. D. of said , the family of the said C. D. then and there being, and residing in said dwelling-house, against the peace and contrary to statute, &.c. [For this crime the justice may give judgment, and fine the offender seven dollars, or bind him to the county court, where he may be fined, not exceeding one hundred dollars, and imprisoned in the county gaol not exceedingsix months.] Complaint for Breach of the Peace. To A. B. Esq. of justice of the peace for the coun- ty of cornes C. D. of grand juror of the town of and complains, that on the day of at E. F, of said with force and arms, did make an assault on the body of G. H. of said and with great force and violence did him then and there strike and beat many severe blows, whereby the said C. D. was greatly injured, against the peace, and contrary to the form of the statute in such-case provided, and of evil example. And the said grand juror prays process against the said E. F. that he may be arrest- ed and examined touching this complaint, and be dealt with according to law. C. D. Grand-Juror. Warrant, in common form. Record of Judgment. H county, ss. H , day of A. D. Be it remembered, that on this day of A. D. E. F. of was brought before me, by virtue of a warrant 15* 174 issued upon the complaint of C. D. grand-juror of for that on the day of at the said E. F. with force and arms did an assault make on the body of G. H. and with like force did then and there him strike and beat many se- vere blows, whereby he was greatly injured, against the peace, and contrary to statute : and being required to an swer to said complaint, the said E. F. pleads and says he is not guilty, and puts himself on thecourtfor trial ; and hav- ing heard the evidence introduced by said grand-ju- ror in support of said complaint, and that in behalf of the said E. F. I do find that the said E. F. is guilty as charged against him in said complaint, and thereupon it is consider- ed that he pay a fine to the treasury of the town of of seven dollars, and also that he be imprisoned in the common gaol of said county of H for the period of one month from the date hereof, and pay the costs of this prosecution, taxed at dollars and. cents, and stand committed un- til judgment be performed. Warrant of Execution. To the Sheriff, fee. Greeting. Whei'ca?E. F. of \vas, on the day of before me convicted of having on the day of at with force and arms made an assault on the body ofG. H. of and of having then and there, with like force, him, the said G. H., beaten and stricken many severe blows, whereby he was greatly injured, against the peace and contrary to statute ; whereupon it was considered by me that the said E. F. pay a fine of seven dollars to the treasury of and also that he be imprisoned in the common gaol of said county for one month from the day of the date of said judgment, and that he pay the costs of said prosecution, taxed at : whereof execution remains to be done. These are there- fore, by the authority of the State of Connecticut, to com- mand you to convey the said E. F. to the gaol of said county of H and him deliver to the keeper thereof, and to leave with him a copy of this warrant ; and said keeper is also hereby commanded to receive the said E. F. within said gaol, and him confine and imprison within the same, during the period of one month from the aforesaid date of said judg- ment, when he is to be discharged on his paying said fine and costs ; but if he neglects or refuses so to do, he is to I 175 be safely kept in said gaol until he pay the same, and the legal costs and charges, or until he is delivered and dis- charged by due course of law. Dated, &.c. [The justice may impose a fine only, when on the pris- oner's failing to pay the same, and cost?, a mittimus must be granted in common form. If the offence be of an aggrava- ted nature, it is the duty of the justice to require bonds for his appearance to the next county court, and take a recog- nizance in common form, or if he fails to procure bonds, to issue a mittimus and commit him to gaol, as in other cases. Or he may be ordered to procure bonds for his' appearance to the next county court, and in the mean time to keep the peace and be of good behaviour. In which case the judg- ment will be as follows :] I do find that the said E. F. is guilty, &c. whereupon it is considered that he become bound in a recognizance, with sufficient surety, in the sum of dollars, to the treasurer of the county of conditioned that he appear before the county court next to be holden at H for the county of H then and there to answer to the foregoing complaint, and abide the decision of said court thereon, and that in the mean time he keep the peace and be of good behaviour. Recognizance. You, E. F. as principal, John Doe as surety, jointly and severally acknowledge yourselves bound in a recognizance of dollars to the treasurer of the county of H condi- tioned that the said E. F. appear before the county court next tobe holden at H for the county ol H then and there to answer to the foregoing complaint, and abide the decision of said court thereon, and that in the mean time he keep the peace and be of good behaviour. 1'aken and acknowledged before me this day of \. D. . J. P. Justice of the Peace. [In a qui-tam information for breach of the peace, for which see page , the court mustgive damages to the par- ty injured, besides imposing a fine, and sentencing the of- fender to be imprisoned, if he thinks the case requires it. And the prisoner cannot be discharged without paying the damages, as well as the fine and costs, and must be commit' ted on his failure so to do.] 17G Complaint by private individuals for surety of the peace and good behaviour. To J. P. of justice of the peace for the county of comes A. B. of and complains in the name and in behalf of the state of Connecticut, that on the day of at in said county, C. D. of with force and arms did threat- en, that he would, before long, beat, wound, or kill him, the complainant, or do him some great bodily harm ; and the said A. B. further complains, that he has just cause to fear, and that he doth fear, that the said C. D. will beat, kill, or wound the complainant, or do him some great bodi- ly harm, or procure others to do the same, and that he is under fear of death, or bodily injury from the said C. D, whereupon he requires surety of the peace and good behav- iour against the said C, D. and prays that process may issue that he may be arrested and examined touching this com- plaint, and be dealt with according to law. A. B. Oath. H county ss. H , day of A. D. Personally\appeared before me, A. B. who hath present- ed and subscribed the foregoing complaint, and made oath to the truth of the same. J. P. Justice of the Peace^ / [The warrant to be in the same form as in other crimin- al prosecutions, to arrest the accused forthwith. If the > prisoner is found guilty, the judgment will be] that he be- come bound in a recognizance of dollars, with surety, to the treasurer of the county, conditioned that he appear before the next county court, then and there to answer to said complaint, and abide and submit to the order and deci- sion of said court thereon ; and that in the mean time he keep the peace and be of good behaviour to all the citizens of this State, and especially towards the said A. B. and that he stand committed until sentence be complied with. The recognizance will be taken to the treasurer of the county, and be the same as the preceding, only adding the words after good behaviour, " especially to A. B. the com- plainant." If the delinquent fails to produce bonds, he must be committed. 177 Complaint by a Wife against her Husband. To J. P. justice of the peace, &.c. comes Mary Smith, wife of John Smith, hoth of and complains, in the name and behalf of the state of Connecticut, that, &c. [ The pro- cess in all respects the same as the preceding, the only dif- ference is that the fact appear in the complaint, and the judgment that the complainant is the wife of the delinquent. She must sign the complaint and make oath to the *ame,&c.] Complaint for Secret Assault. To J. P. of H , justice of the peace for the county of H comes A. B. of , in said county, and complains as vvell in the name and behalf of the state of Connecticut, as in his own name and behalf, that on the day of at , about the hour of eleven o'clock at night of said day, C. D. of , with force and arms, assaulted the said A. B. and then and there with like force and like secrecy, with fists, clubs and stones, and other dangerous weapons, did beat, bruise and wound him the said \. B. whereby he was greatly injured in his body and limbs, and many other injuries and enormities, the said C. D. then and there did and committed, secretly and forcibly, against the peace and contrary to the form of the statute in such case provided, and to the damage of the complainant the sum of one hun- dred dollars ; whereupon the said A. B. prays process against the said C. D. that he m-iy be arrested and exam- ined touching this complaint, and be dealt with as to law and justice appeflaineth. Dated &c. A. B. Oath. H county, ss. H day of A. D. appeared be- fore me A. B. who hath made and subscribed the foregoing complaint, and made solemn oath to the truth of the same. J. P. justice of the peace. Warrant. To the sheriff &c. Whereas A. B. of , hath pre- sented to me the aforesaid complaint, and made oath to the truth of the same ; and likewise m-ide application to me and exhibited the wounds and bodily injuries he had re- ceived by the secret assault mentioned in said complaint , WherofiM'e. bv minority of the state of Connecticut you are hereby commanded without delay, to arrest the body 178 of C. D. of , mentioned in said complaint, and forth- with bring him before me [he must be brought before the same justice to whom complaint is made, and his wounds shewn] at my office, in , in said county, that he may be examined touching the facts alleged in the aforesaid complaint, and be dealt with therein, as to law and justice may be found to appertain. Dated &,c. J. P. justice of the peace. [In prosecutions on this statute the complainant is ad- mitted as a witness, and upon his testimony and the exhi- bition of his wounds and injuries, it is the duty of the jus- tice to bind over to the county court, unless the tes- timony of the complainant should be contradicted by other witnesses. From the terms of the statute it would seem that the accused was not to be admitted to testify before the court of inquiry, yet as he is expressly admitted to tes- tify before the county court, it is difficult to conceive why he should not be admitted as a witness before the justice on the inquiry.] The record of judgment will be the same as in other cases of binding over to the county court, except that it is proper to state that the complainant was examined under oath. The recognizance^ must be taken to the adverse party. Recognizance. H county, ss. H day of A. D. You C. D. of , as principal, and O. P. of , as surety, jointly and severally acknowledge yourselves bound in a recognizance of dollars to A. B, of , that the said C. D. appear before the county court next to be hold- en at , in and for the county of H , then and there to answer unto the foregoing complaint of the said A. B. and submit to the decision of said court thereon. Taken and acknowledged before me the day and year above writ- ten. J. P. justice of the peace. If the delinquent neglects or refuses to recognize with surety, he must be committed to gaol, and a mittimus issued in common form. OF CRIMES AGAINST CHASTITY. Complaint for Adultery. complains that on the d;:y of A. B. of a single man, at . in aid county, with force and arms, 179 did commit the crime of adultery with E. M. of' , a married woman, and the lawful wife of S. M. and did then and there, her the said E. M. carnally know, against the peace, contrary to the form of the statute, and of evil ex- ample. Complaint for Bigamy, complains that on the day of A. B. of , then being a married man, and having a lawful wife named C. B. to whom he was married on or about the day of living, with force and arms, did feloniously and deceitfqlly, marry N. S. of , a single woman, and hath ever since continu- ed to cohabit and live with the said N. S. as his wife, against the peace, contrary to the form of the statute, and of evil example. Complaint for Fornication. complains that on the day of at , A. B. of , with force and arms, did commit the crime of fornication with L. M. of , a single woman, and did then and there, her the said L. M copulate with, and car- nally know, against the peace, contrary to the form of the statute, and of evil example. OF CRIMES AGAINST MORALITY AND DECENCY. Complaint for Profane Swearing, complains that on the day of , at , A. B. of , did swear rashly, vainly and profanely ; and did then and there utter and repeat in the hearing of sundry good people of this state, rashly and vainly, the following profane oaths and words [here recite the words used] ; or did then and there sinfully, wickedly and profanely curse C. D. of , and say of and concerning him the said C. D. the following wicked and profane words, yiz. [here state the words], against the peace, contrary to the statute in such case provided, and of evil example. Complaint for distributing Obscene Books. complains that Q, P. of , on the day of at , in said county of with force and arms, did fel- oniously sell and distribute to A. B. and C. D. both of said and sundry other good people of this state, a certain vicious and obscene book, or pamphlet, containing obscene language, prints and descriptions, called , and did 180 then and there receive of the said A. B. and C. D. and sundry other persons, sundry sums of money for the sale of said obscene book or pamphlet, against the peace &,c. [For this offence the delinquent must be bound to ap- pear before the county court for trial.] Complaint for Drunkenness. complains that on the day of at , Q, R. by drinking excessively of spiritous liquors, became and was intoxicated and drunk, whereby he was disabled and bereaved in the use and exercise of his reason and under- standing, against the peace & contrary to the statute in such case provided, and of eril example. [The crime of drunkenness is distinct from that of being a common drunkard ; the former is punished by a forfeit- ure of two dollars only : but in the latter case, the offend- er may be bound to his good behaviour, or sentenced t< the work-house.] Complaint for breach of the Sabbath. complains that L. M. of , on the day of being the Sabbath or Lord's day, about the hour of of said day, with divers other persons, to said grand-juroi unknown, at , in said county, engaged in vain sport and recreation, and then and there with the said persons unknown to said grand-juror, used and played the game of , to the great disturbance of the good people of this state, against the peace and contrary to the statute in such case provided. Complaint for Disturbing a Religious Meeting. complains that on the day of at , a uum- ber of the good people of this state being then and there met and assembled together, for the public worship of God, and whilst engaged in such worship, Q,. R. of did wilfully interrupt and disturb said assembly, and the worship thereof, by speaking with a loud and audible voice in said assembly, and during the religious worship of the same, sundry words, with the intention to interrupt and disturb said assembly, and the worship thereof, against the peace, and contrary to the statute in such case provided, and of evil example. 181 [For this ollence the magistrate may impose a fine not exceeding seven dollars, nor less than one, or .bind the of- fender over to the county court, where he may be fined not exceeding thirty-four dollars. The crime is the same, whether the religious meeting is on the sabbath or any ether day.] OF CRIMES AGAINST PUBLIC POMCY. Complaint for Selling unauthorized Lottery Tickets. complains' that on the day of at , in said county of , T. H. of , did dispose of and sell to A. B. of , a lottery ticket in a lottery called , authorized by the authority of the state of New-York, and which said ticket was duly issued by the managers of said lottery under the authority of said state of New- York, and of the number of and signed by [describe the ticket] ; and for the sale and disposal of said ticket the said T. H received of the said A. B. the sum of dollars ; all of which doings of the said T. H., are against the peace, and contrary to the form of the statute in such case provided. Complaint for Betting upop a Horse Race. complains that on the day of at , J. B. of , did unlawfully wager and bet with J. S. the sum of dollars, upon ahorse race, to be run between a cer- tain horse of the said J. B. and a certain horse of the said J. S. at , on the day of , and which said money so waged and bet, was lodged and staked in the hands 'of R. R. and a like sum loged in his hands by the said J. 8. both of which sums were by said wager, to be delivered by the said R. R. to the said J. B. in case his said horse- beat the horse of the said J. S. in said race ; and which' said doings of the said J. B. are against the peace, and con- trary to the statute in such .case provided. Complaint for the forfeiture of a Horse used in a horse race. To J. P. justice &.c. comes G. H. grand-juror of and complains that on the day of at in said coun- ty, a certain bay horse supposed to belong to O. P. of was used and employed in a horse race with another cer- tain horse belonging to R. R. of , on which said race sundry bets and wagers were made of sundry sums of money, 182 and particularly a bet between A. B. and C. D. of the sum of dollars, whereby, by the force of the statute in such case provided, the said horse hath become forfeited to this state. And the said grand-juror prays process against the said horse, that he may seize the same, and safely keep said horse, that he may be informed against, before the next county court for said county of , and be by said court disposed of according to law. G. H. grand-juror. Warrant. To any constable &c. Whereas the aforesaid complaint hath been made to me : Wherefore you are hereby com- manded forthwith to seize the said horse, and take the same into your custody, and the same keep that it may be informed against, before the next county court for said coun- ty, and disposed of according to law. And you are hereby required to give notice to O. P. the supposed owner of said horse, to appear, if he see cause, before the county court next to be holden at , in and for the county of and there shew reasons, if any he hath, why said horse shall not be adjudged forfeited to this state, and disposed of ac- cording to law. Hereof fail not, but of this process, with your doings thereon, make due return to the said county court. [The officer's return will be that he seized the hor? -. and has it in hi< custody, and that he notified the party.] Complaint for Playing Cards for Money. complains that on the day of at , R. R. of , did play divers games at cards with A. B., C. D. and E. F. for monev, and in and by said games at cards. the said R. R. won the sum of dollars of the said A. B. and C. D., which doings of the said R. R. are against the peace, and contrary to the form of the statute &,c. Complaint for Keeping a Billiard Table, complains that on the day of at L. M. of had and kept, and still has and keeps in his custody and possession, and at or near his dwelling-house, in said , a billiard table, for the purposes of gaming, against the peace and contrary to the statute in such case provided. 183 Complaint against a Taverner for Pertniting Gaming. complains that on the day of , at R. K. of , was a taverner, and previously to that period had been duly and legally appointed and licensed to keep a house of public entertainment in said town of , and that on said day of , sundry persons, viz. A. B., C. D. and E. F. and several others, to said grand-juror un- known, played sundry games at cards, for money, within the house and tavern of the said R. R. and on which said games the said A. B., C. D. and E. F. bet and hazarded sundry sums of money, and divers sums were won and lost by the said A. B , C. D. and E. F. the amount of which is unknown to said grand-juror, and which said gambling, playing and hazarding, was practised with the knowledge, consent arid permission of the said R. R. within his said house and tavern, against the peace and contrary to the form of the statute in such case provided. [The offenders against the statute must be bound to the county court for trial.] Complaint against Mountebanks. complains that on the day of at , J. K. a transient person, being a mountebank, tumbler and rope- dancer, did exhibit and cause to be exhibited, on a public stage, fitted and prepared for that purpose, in the tavern and public house of entertainment in said , divers games, tricks, shows, tumbling, rope-dancing, and feats of uncommon dexterity and agility of body, to divers good people of this State, then and there collected, to witness the same, and for which the said persons each paid to the said J. K. the sum of twenty-five cents, against the peace and contrary to the statute in such case provided. [The offender against this statute must, if there is prob- able grounds of his guilt, be bound to the county court for trial.] In all criminal prosecutions where a Justice of the Peace has jurisdiction, and renders judgment, except for drunk- enness, profane swearing, breach of sabbath, selling unau- thorized lottery tickets, and perhaps some other cases specially provided for by statute, an appeal lies from such judgment to the county court, in favour of the prisoner, where judgment has been rendered against him ; but when J84 the judgment is rendered in his favour, the prosecuting officer has no right to appeal in behalf of the state. The party appealing must enter into a recognizance, with sure- ty, for his appearance, and to prosecute his appeal, and pay a duty of fifty cents, as in civil cases. In qui-tam prosecutions for crimes, the same right of appeal exists. Form of Appeal. [After recording the judgment say ] : From which judg- ment the said A. B. moves to appeal to the county court to be holden at H , in and for the county of H , on the Tuesday of A. D. which said motion is allowed : whereupon the said A. B. pays a duty to this state of fifty cents on his said appeal, and himself as prin- cipal, and C. D. as surety, recognize before me in the sum of dollars, to the treasurer of said county of H , for his appearance before said county court, to prosecute his said appeal to effect, and that he abide and submit to the decision and order of said court thereon. J. P. justice of the peace. Recognizance in case of Appeal. H county ss. H day of A. D. appeared before me, A. B. of , as principal, and C. D. of , as surety, and jointly and severally acknowledged themselves bound in a recognizance of dollars to the treasurer of said county of H , conditioned that the said A. B. ap- pear before the county court next to be holden at H , in and for the county of H , and then and there pursue and prosecute to effect his said appeal, and abide the judg- ment that may be rendered by said court thereon. Taken and acknowledged before me the day and year above writ- ten. J. P. justice of the peace. In case of any error apparent on the record in any crim- inal prosecution before a justice of the peace, a writ of error may be brought to the superior court the same as in civil cases. Petitions for new trials may also be brought by the prisoner, and in both cases service is to be made by leaving a copy with the attorney for the State, in the same county. Accessaries, or any person who snail aid, abet, assist, fcire, or command any other person, to commit any of the J85 albresaid crimes, is equally guilty, and on conviction, must suffer the same punishment as the principal offender. Previously to the revision there was a statute abolishing whipping in all cases as it respects females, which provis- ion as we are informed was unintentionally omitted by thr j committee of revision, so that females are now liable to be whipped as well as males : but as the legislature has not intentionally repealed this provision, it may be considered as virtually in force, and as there is something revolting in corporeal punishment, especially as applicable to females, it would seem most proper that whipping should not be in- flicted on females, until the legislature act upon the subject, when it will be known, whether they will restore the law, or make a retrograde movement in legislation, and revive a punishment which belongs to a barbarous age. IS o suit or action can be brought on any penal statute, for the recovery of a forfeiture by jmv person who may law- fully sue for the same, after tl e expiration of one year from the commission of the offence. No person can be prosecuted for any crime punishable by imprisonment in New Gate prison, unless the complaint shall be exhibited within three years next after the crime shall have been committed ; and no person shall be prosecuted for any other crime or misdemeanor, except those punishable with death, unless complaint or information be exhibited within one year after the offence was committed. All fines, penalties and forfeitures received by justices of the peace in pursuance of any judgment rendered by them, which are not otherwise expressly appropriated, are to be paid to the treasurer of the town where they reside, and it is the duty of the town treasurer, at least within one year after the judgment is rendered, to call on the justices of the town to account for the fines, forfeitures, and penalties they may have received, in pursuance of such judgment. When for any offence it is provided by statute that the offender be sent to a work-house or house of correction, and there is no work-house in the town, they must be sent to the county gaol, which is the common work-house and house of correction for the whole county They must be sentenced and ordered to be confined there, as a work- house and house of correction. 16* 186 A Justice of the Peace is not personally liable for any act done by him, of a judicial nature, whether in civil or criminal proceedings, unless he act corruptly or intentionally transcend his jurisdiction ; when he may become liable to the party injured, although he professed to act in his judicial character. But as it respects his ministerial acts and du- ties, such as signing writs, issuing warrants, administering oaths, taking depositions, and the acknowledgment of deeds, &c. if a justice refuses to act, or is guilty of gross negli- gence, he makes himself liable to the party injured. Where his authority is discretionary, he does not make himself liable for refusing to do any official act. Taking bonds on issuing writs is a discretionary act, as it respects the suffi- ciency of them ; but where the law expressly require? surety, if the justice neglects to take it, he becomes per- sonally liable to the party injured ; but if he takes bonds with surety, where that is required, or without, where surety is not required, which are apparently good, but prove to be insufficient, he is not personally responsible (a). (a) Swf. Dig. 546 i 1 Root 165 PART II. THE POWERS AND DUTIES OF CONSTABLES. THE Office of Constable is of great antiquity in England, the knowledge of it extending beyond the .period of any known statute relating to it. This office, like that of justice of the peace, and most others, has undergone a gradual but important change, since its first institution, which was for the conservation of the peace. The office of Constable was brought by our ancestors from England, and has existed here since the settlement of the colony. It is provided by statute that every town shall, at their annual meeting appoint one Constable, to collect the state taxes, and such additional number, as they may think ex- pedient, not exceeding seven. They must take the oath prescribed in the constitution for executive officers, on or before the first Monday in January in each year, and hold their office until the next annual meeting of the town, or until others are chosen and sworn (a). No Constable can be legally chosen but at annual town meeting, except in cases where there is a vacancy by the death, refusal to serve, or removal, of any Constable thus appointed, when such vacancy may be filled at any legal town meeting, whether it be the annual meeting or not. This provision extends to all town officers (6). It is the duty qf the se- lect-men to cause Constables, and all other town officers, of whom oath is required, immediately after their appoint- ment, to be summoned to appear before some justice of the peace, and to take the oath prescribed by law ; and if any such officer refuses to be sworn and execute the duties of his office, he incurs a forfeiture of five dollars to the town, unless he can make it appear to the court, before which he may b sued for the recovery of such forfeiture, that he is oppressed by such appointment, or that others are (a) St. 132. (b) St. 458 188 unduly exempted. If he accepts the office, or does not declare his refusal to accept, yet neglects and refuses to perform the duties thereof, he forfeits three dollars to the town ; and in such cases too, would be liable to the per- son injured by his neglecting or refusing to perform his official duties. For convenience we copy the Oath : " You do solemnly swear (or affirm as the case may be) that you will support the Constitution of the United States, and the Constitution of the State of Connecticut, so long as you continue a cit- izen thereof; and that you will faithfully discharge, ac- cording to law, the duties of the office of [Constable for the town of H ,] to the best of your abilities. .So help you Gocf." CHAPTER I. Of the Powers and Duties of Constables, as Peace Officers, #c. It is provided by statute, that Constables shall receive all hue-and-cries, and the same diligently pursue to full effect ; and that when no justice of the peace is near at hand, they may put forth pursuits, or hue-and-cries, after murderers, peace-breakers, thieves, robbers, burglarians, and all cap- ital or criminal offenders : and that without a warrant they may apprehend such as are guilty of profane swearing, drunkenness, or Sabbath-breaking, if taken in the act, or on present information of others, and carry them before the next justice of the peace, to be dealt with according to law (a). This statute would seem by implication, to take away the authority of Constables, to make arrests without a warrant, except by putting forth pursuit, by hue-and-cry, where no Justice is at hand to do it, or for the three offences men- tioned ; but as their authority as conservators of the peace is more extensive at common law, the exercise of which is important to the preservation of the peace, and the appre- hension of criminals, it cannot be considered as taken away by mere implication. Previously to the late revision rer officer, who is to serve the same, by putting into the hands of the person who has the custody of him, who is di- rec'e! to be brought up, on such writ, a true and attested copy of said writ ; and he must make immediate return of the same, with his doings thereon endorsed, to the judge is- suinc such writ, on pain of forfeiting fifty dollars to the per- son so held in custody. This writ, which is considered as one of the great bulwarks of English liberty, is very sel- dom Applied for, or issued in this country, so extremely rarp are encroachments upon personal liberty. Where thf>' * is no power exercised, except what is. derived from the people, and where oppression is aaknown, the writ of 219 habeas corpus possesses much less importance than in oth- er countries, as a barrier of civil liberty. Writs ofscire-facias, may be either a summons or attach- ment, and are to be served and returned in the same man- ner as any other writ. CHAPTER IV. 6F FORMS OF RETURNS ON MESNE PROCESS. 1 . Endorsement on summons served by reading. H county ss. H , day of A.D. ; then I read this writ, in the hearing of the within named defendant. Test. A. B. Constable. To travel to serve and return, 10 m. 50 Reading, - 9 $69 JVtiere served by copy. H county ss. H , day of A. D. ; then I left a true and attested copy of this writ, with the within named defendant. [Or, at his usual place of abode.] Test. A. B. Constable. On writ against corporation. H county ss. H , day of A. D. ; then I left a true and attested copy of this writ with C. D. town clerk, [or select-man] of the within named town of H Test. A. B. Constable. Endorsement on the Copy. This is a true copy of the original writ. A. B. Constable. On Subpoena. H county ss. H day of A. D. ; Then I read ihis writ, in the hearing of the several persons within named. Where service cannot be made for want of time. This writ came so late into my hands, that I had not time to make service of the same. 220 Where on joint contracts part of the defendants are not resi- dents of this State. Then I read this writ in the hearing of the defendant, A. B., the defendants, C. D. and E. F. not being inhabitants of this State. 2. FORMS IN SERVICE OF ATTACHMENTS. Where goods are Attached. H county ss. H , &c. Then, by virtue hereof, and by the direction of the creditor [if the fact is so] I at- tached a certain bay horse, the property of the within named defendant, and on the seme day left with him (or at his usual place of abode) a true and attested copy of this writ, with my said doings thereon endorsed. [If the defend- ant is not a resident of this state, the endorsement will be :] and on the same day I left an attested copy of this writ with J. S. of the agent of the defendant, he not being an inhabitant or resident of this State. Where goods are attached and rescued. Then, by virtue hereof, I attached, as the property of the within named defendant, a certain bay horse, and took the same into my possession, and on the same day deliver- ed to the said defendant a true and attested copy of this writ, and my said doings thereon endorsed ; and afterwards, whilst I had said horse in my custody, viz. on the day of at A. B., C. D. and E. F. and sundry other per- sons, to me unknown, with force and arms, and with dan- gerous weapons, made an assault upon me, and with like force and actual violence, did forcibly seize and rescue said horse out of my custody ; and t have not, on diligent search, been able to find or retake said horse, and whereby I can- not have the said horse, to answer the demand in this writ ; and I can find no other goods of the said defendant within my precincts, whereof to attach. Where the goods are destroyed, and without default of the of- ficer. Then, by virtue hereof, I attached, as the property of the defendant, a certain bay horse, and took the same into ray custody, to have the same to aaswer the demand iu this 221 writ, and on the same day left a true and attested copy hereof, and of my said doings thereon endorsed, with the said defendant ; and afterwards, viz. on the day of the said horse died of a disorder called the hotts, and the said defendant hath no other goods or chattels within my precincts, whereof to attach. Where bank or other stock is attached. Then, by virtue hereof, 1 attached five shares of the stock of the Phoenix Bank, as the property of the defend- ant herein, by leaving a true and attested copy of this writ, and of my doings hereon endorsed, with G. B. cashier of said bank, and on the same day I left a true and attested copy hereof, with my said doings endorsed thereon, with the said defendant. Endorsement on the copies. [The copy must not only be a copy of the writ, but of ttoe endorsement on the same, excepting that part of the en- dorsement stating the leaving of the copy, and including the attestation and signing.] This is a true copy of the ori- ginal writ, and my endorsement thereon. Wliere partnership property is attached for the individual debt of one of the partners. Then by virtue hereof, and by direction of the creditor [in all cases where the plaintiff gives direction, it is most safe to state it] I attached all the following property, and all the right and interest the within defendant hath therein, the same belonging to him in partnership, with A. B. and C. D., partners in company, under the name and firm of A. B. &, Co. and thereupon, on the same day, left a true and attested copy of this writ, with my doings thereon endorsed, with the said defendant herein. Where neither goods nor the body can be found. Then, by virtue hereof, I made diligent search forgoodfi and chattels of the defendant herein, throughout my pre- cincts, whereof to attach, and could find none ; I also made diligent search for the defendant, to attach his body, but could not find the said defendant within my precincts ; whereupon I left a copy hereof at his usual place of abode. 19* 222 [The copy of an attachment left at the defendant's usual place of abode, is good service as a summons, and to hold the party to trial.] Where the body is arrested and bail taken. Then 1 made diligent search throughout my precincts, for goods or estate of the within named defendant, whereol .to attach, but could find none, and for want thereof 1 attach- ed the body of the said defendant, read this writ in his hear- ing, and took sufficient bail for his appearance at court. Bail Bond. Know all to whom these presents may come, that we. A. B. and C. D., both of H in the county of H arc jointly and severally bound and obliged to E. F. of said H Constable of said town of H in the sum of dollars, to be paid to him, the said E. F. his certain attorney, exec- utors, administrators or assigns : to which payment well and truly to be made and done, we bind ourselves jointly and severally, and each of our heirs, executors and admin- istrators, firmly by these presents. Signed and sealed by us, this day of A. D. . The condition of the above obligation is such, that where as the above bounden A. B. is arrested at the suit ofG. H by writ duly issued, dated the day of demanding the sum of damages, returnable before the county court tc be holden at H within and for the county of H on the Tuesday of A. D. ; now if the said A. B. shall ap- pear before said court and answer to said action, then this obligation to be void, otherwise to be in force. A. B. and seal. Signed, sealed, and deliv- ) C. D. and seal. ered, in presence of $ [Where the writ is returnable before a justice of the peace, the condition will be as follows :] The condition of the above obligation is such, that whereas the above bound- en A. B. is attached at the suit of G. H. of by writ da- ted the day of A. D. , demanding the sum of dol- lars, and returnable before J. P. justice of the peace for the counfy of H at his dwelling-house in H in said Bounty, on the day of A. D. at the hour of o'clock : iiow if the said A. B. shall appear before said justice, J. P. at the time and place above written, and answer to said ac- tion, then the above obligation to be void, otherwise to be in force. Assignment of Bail Bond. I hereby, at the request of the within named plaintiff, and in pursuance of the statute in such case provided, as- sign to him the within bail bond. A. B. Constable. Where the defendant is arrested and committed to gaol. Then, by virtue hereof, and for want of goods and chattels of the within named defendant, whereof to attach, I arrested his body, and he having neglected and refused to find sufficient bail for his appearance at court, and by virtue of a mittimus duly issued for that purpose, I committed the said defend- ant into the custody of the keeper of the gaol in and for said county, therein to be kept until delivered by due course of law. Mittimus. To A. B. keeper of the gaol in and forthe county of H Greeting Whereas O. P. of was this day arrested by A.. B. constable of the town of H in the county of H by virtue of a writ of attachment duly issued by J. P. jus- tice of the peace for said county of H in favour of C. D. against the said O. P. demanding dollars, and return- able to the county court next to be holden at H in and forthe county of H on the Tuesday of A. D. ; and the said O. P. having neglected and refused to procure bail for his appearance before said court, to answer to said cause : These are therefore, by authority of the State of Connecti- cut to command you to receive the said O. P. into your cus- tody, and him safely keep within said gaol, until delivered by due course of law. J. M. Justice of the Peace. Where there is an arrest and rescue. Then, by virtue hereof, and for want of goods and chat- tels of the within named defendant, whereof to attach 1 ar- rested his body, and he neglecting to find bail, was proceed- ing with him to the gaol of said connty, to commit him to prison, when, at in said county, A. B., C D. and E. F. and sundry other persons t me unknown, with force 224 and arms, and with offensive and dangerous weapons, made an assault upon me, and then and there, with like force and actual violence, rescued and took the said defendant out of my hands and custody, whereby I cannot have him forthcoming, to answer the demand in this writ ; and after diligent search, the said defendant hath not since beea found by me within my precincts. Where from sickness the defendant cannot be removed, Then, by virtue hereof, and for want of goods and estate of the within defendant, whereof to attach, I arrested his body, who then was, and hath since remained until the last day of the return of this writ, so sick that he could not be taken into custody without imminent danger to his life, wherefore I cannot have him to appear before said court as commanded herein. Where the body is arrested, released, and goods attached. Then, by virtue hereof, and for want of goods of the within defendant, there found by me, within my precincts, whereof to attach, I arrested his body, and he neglecting to find bail, I was proceeding with him to commit him into the custody of the keeper of the gaol of said county, when the said defendant tendered and offered to me to be attach- ed on said writ, in satisfaction of the demand therein, and in discharge of his body, a certain gold watch, the property of the defendant, whereupon I released the body of the said defendant from my custody on said writ, and by virtue thereof, attached the said watch, and on the same day left with the said defendant an attested copy of this writ, and of my doings endorsed thereon. Where real estate is attached. H county, ss. H , day of A. D. Then, by virtue hereof, for want of goods and chattels, and by the direction of.the plaintiff, 1 attached all the right, title, and interest of the within named defendant, in a certain parcel of land situated in said H and bounded and de- scribed as follows : [here bound and describe the land ;] and on the " day of I left with the said defendant, (or at his usual place of abode) a true and attested copy of this writ, and of my endorsement of said doings made thereon ; 226 and on the same day I left a like copy, containing a descrip- tion of said land, in the office of the town clerk of said town of H within which said land is situated. [If the defendant is not a resident of this State, and has an agent or attorney within the State, the endorsement will be, after describing the land :] and on the day of A. D. the said defendant, not being a resident of this State, 1 left a true and attested copy of this writ, and of the en- dorsement of my said doings made thereon, with S. T. of the agent of the defendant, and on the same day alike copy in the office of the town clerk, &c. [If the defendant has no agent or attorney in this State, then a copy is to be left with the person who has posses- sion or charge ofthe estate attached, and the endorsement will be as follows, after the description ofthe land attached :] and on the day of A. D. I left a true and attested co- py of this writ, and ofthe endorsement of my said doings thereon, with R. R. of who has the charge and posses- sion of said estate, the said defendant not being a resident in this State, nor having any known agent or attorney in the same ; and on the same day left a like copy in the office of the town clerk, &c. Endorsement on the copies. [The copies must contain not only a copy of the writ, feut a copy of the endorsement made thereon, except that part of the endorsement which states the leaving of the copies, with the attestation or signing of the officer, and must contain the following certificate :] The above and within is a true copy ofthe original writ, and of my endorsement of my doings thereon. A. B., Constable. 3. OF RETURN ON FOREIGN ATTACHMENT. Where the defendant is an inhabitant of this State, or has resided herein. H county ss. H day of A. D. ; then by vir- tue hereof, I attached all the goods and effect* ofthe with- in named defendant, in the hands of J. S. described herein, as the agent, debtor, factor, trustee and attorney of the said defendant, by leaving with him (or at his usual place of abode) a true and attested copy of this writ, more than fourteen daye before the day the same is returnable ; and 226 on the same day I left a copy hereof, duly attested, at the last usual place of abode of the within named defendant, in this State. Where the defendant has never resided in this State. Then by virtue hereof I attached all the goods and ef- fects of the within named defendant in the hands of J. S. of , described herein as the agent, debtor, factor, trus- tee and attorney of the said defendant, by leaving a true and attested copy of this writ at the usual place of abode of the said J. S. more than fourteen days before the day of return of the same. 4. OF RETURN ON PETITIONS. H county ss. H day of A. D. ; I then read this petition and citation in the hearing of C. D. the within named respondant. Where served by copy. 1 then left a true and attested copy of this petition and citation, at the usual place of abode of C. D. the with- in named respondant. 5. OF RETURN ON WRIT OF ERROR. H county ss. H day of A. D. ; I then made service of this writ by leaving 'a true and attested copy hereof with C. D. the within named defendant in error. In a criminal case. I then made service of this writ by leaving a true and attested copy hereof with J. S. attorney for the State, with- in and for the county of H In case of Petition for Highway. I then made service of this writ by leaving a true and attested copy hereof with R. R. of one of the three first signers of the petition for the laying out of said high- way. 6. OF RETURN ON REPLEVIN. Where Cattle are Impounded. Then by virtue hereof I replevied to A. B. the within named plaintiff his beasts described herein, unlawfully dis- trained and impounded as herein t^ted by C. D., and on the same day left a true and attested copy of this writ, and 227 ef my doings endorsed thereon, at the usual place of abodt of the said C. D. the within named defendant. [On a writ to replevy goods attached in favour of any person not the defendant in the original action, and who claims to own the goods, the return will be the same, as where cattle impounded, are replevied.] Where the beasts or goods cannot be found. Then by virtue hereof I made diligent search within my precincts for the goods, [or beast, as the case may be,] described herein, whereof to replevy, but c'ould not find the said goods, the same having been eloined by the with- in named A. B. to places to me unknown, so that I could not replevy to the plaintiff the said goods as herein com- manded ; and on the same day 1 left a copy of this writ, duly attested, at the usuJ place of abode of the said A. B. the within defendant. Where goods attached are replevied by the defendant in the original suit. Then by virtue hereof I replevied to the within named C. D. the goods described herein, attached at the suit of A. B. against the said C. D. and read this writ in the hear- ing of the said A. B. 7. OF ACTION ON WRIT OF HABEAS CORPUS. Then agreeably to the direction herein, I made service of this writ by putting into the hands of the within named A. B., who hath the custody of C. D. mentioned herein, a true copy of the same duly attested. CHAPTER V. OF THE SERVICE OF FINAL PROCESS IN CIVIL CASES. When final judgment is rendered in any cause, the last and most important thing remains to be done, which is to execute the judgment, or give the p^rty who is entitled to it, the benefit and enjoyment of the same. And for this purpose, fi"al pvoross o; i \\vit of rxe record* of the cause, and a new execution granted, which should contain a copy of the endorsement 229 ..ti the first. If the plaintiff or defendant be dead, or where the execution has been levied on the body of the defendant and he has been discharged from gaol by taking the poor debtor's oath, an alias execution cannot be issued ; but an action of scire facias or debt on the judgment, must be brought and a new judgment obtained. But where an execution has been endorsed satisfied, by mistake, or is ap- parently satisfied by a mistaken levy, as when goods are levied on and sold, that were the property of another per- son, or where land supposed to belong to the defendant, but which in fact belonged to another person, is set ofi' thereon, or where land belonging to the defendant as tenant in com- mon, or his interest in mortgaged estate is set off by metes and bound*, whereby the plaintiff gets no title, the county and superior courts grant an alias execution on motion. The motion must be in writing stating the grounds of the application. A justice of the peace under the same cir- cumstances, may issue a second execution, but he should require a motion or statement in writing, containing the reasons and grounds of the application ; ;md should require proof of the truths of the facts contained in such motion, and certify thereon that the same were found to be true, and preserve the same on file ; otherwise it would appear from his records that a second execution had been issued after the judgment had been satisfied. An execution in common cases contains a recital of the judgment, and a command to the officer to levy of the goods, chattels and lands of the debtor, and the sane cause to be disposed of according to 1-uv, to satisfy the judgment, and his fees ; and for want thereof, to take the body of the debtor, and him commit to the keeper of the gaol in the same county. It is the duty of an officer having an execution in his hands to execute, to make 1 demand of the debtor of the sums contained in the execution ; the demand must be made within his precincts, and regul-irl\ he should repair to the debtor's usual place of abode and nuke the dem.iii.l there ; but a demand any where within his presence is sufficient. If on demand of the sum due on the execution and of his fees, the debtor ne-j;l o cts or refuses to pay the same, the officer must endorse on the execution, the time and place of his making such demand, and thereupon must lvy the 20 230 execution on the personal estate of the debtor, excepting such articles as are exempted by law from being taken for debt, and on those when turned out by the debtor. We noticed the articles exempted in treating of the service of attachments, page 213. A description of the property taken must be set up on the sign-post in the society where the same was seized, and accompanying the same a notice that the property will be sold at the place where posted, at public ve.ndue, at the end of twenty days, specifying the day when the sale is to take place. And in those societies from parts of two or more towns, the constables of such towns shall have the same power and authority where the sign-post shall be without the limits of the town to which they belong, as other constables have within their respec- tive districts. J here appears to be a mistake in this par- agraph in the statute ; the word society is evidently used instead of that of town. If the debtor does not pay the execution and charges within the twenty days, the officer, on the day of sale, at the beat of the drum, must dispose of so much of the property posted, to the highest bidder, as is necessary to pay the execution, and the lawful fees and expenses, which have accrued, and the overplus, if any, he may return to the debtor (a). When he levies on goods the officer must t;ike them into his possession, and remove them out of the possession of the debtor, or they may be attached or taken by any other creditor, in which case he will become liable for the debt. He must also produce the goods taken, at the post, for sale, when the articles can be removed ; but when, from their nature or bulk, this Cannot he reasonably done, they may be sold by samples or description. An execution may be levied on money and the sime applied to the payment thereof: bank bills are considered as money forming the currency of the country, and may be taken and applied as such. Not only the articles of property exempt, but any personal property may be so situated that it cannot be taken and soH on -xecution. Goods p.uvned for debts, or let for hire, for a period of time, or distrained or attached by a prior attachment, and h >ve been previously taken on exe- cution, and in all cases, where the owner has not the right (a) St. 56. 231 ful possession, cannot be taken and sold on execution. If however, the creditor purchase or procure the right of the person having an interest therein, they may be taken ; and where goods are pawned for debt, it would seem that if the creditor would pay or tender to the pawnee the amount of his debt, for which the goods are pawned, he might be justified in taking them. Where goods are attached by a subsequent attachment, they are held subject to the claim of the prior attachment, and if the prior creditor does not take out execution and levy on the goods within sixt}' days after the final judgment, they may be taken and sold on the execution issued upon the judgment obtained in the subsequent suit. If the pri- or attaching creditor has the goods taken on his execution within the sixty days and sold, what there is left, after pay- ing his debt and charges, are held for the subsequent cred- itor, and must be levied on by him within sixty days after the sale on the first execution. It is equally reasonable and necessary, that a creditor should have the right of levy- ing his execution on goods which had previously been lev- ied on, and hold the same, subject to the prior claim as it is that goods may be taken and held by subsequent attach- ment. It is believed there can be no objection to this, and that the levy of an execution on goods previously levied upon, which give the creditor a lien thereon subject to the rights of the prior creditor ; and that the same might be posted, with a notice that such part thereof would be sold, as might remain after the first execution had been satisfied therefrom, & as might be necessary to satisfy the subsequent execution and charges. But in such a case, and in all the ca- ses stated where a third person has a lien upon goods, and the debtor has not the legal possession of them, it is not the duty of the officer to take them unless directed by the creditor. In case the property consists of an entire and indivisible article, as a jhorse, a subsequent levy may be made upon it, and the same posted for sale, as in other cases, and notice thereof given to the officer who had levied the prior exe- cution thereon, and it would seem that he would be obliged, after satisfying his execution and costs, to pay the over- plus, to the officer making such subsequent levy ; instead of paying the same to the debtor. Where a subsequent attachment is levied on a horse the avails thereof, after satisfying the first judgment, must be 232 applied to the judgment recovered in the subsequent at- taching suit, and the reason is the same where the prop- erty is taken on executions. Choses in action, notes, bonds, and accounts, cannot be levied on ; but it is believed, that a negotiable note or bill of exchange, payable to bearer ; or if payable to order indorsed in blank, by the payee, so as to be transferable by delivery, might be levied on and sold like other personal property (n). Corn, or other crops, growing, where the debtor has no interest in the soils, is a chattel, and may be taken and sold on execution, standing in the field, or if it is in a sit- uation to harvest, within the twenty days after the levy, it mr.y be harvested and sold. If sold growing, the officer c;,:>. all he can to execute the writ ; but where the body can Betaken, he cannot safely levy on goods, unless they are sufficient. But if the debtor has personal property suffi- cient to satisfy the execution and charges, which might be found and taken by due diligence, and the officer neglects to do it, and levies on the body, he is liable to the debtor for false imprisonment, and to the creditor for the debt if it is lost. He cannot require the creditor or debtor to turn out goods, but it is his duty to search for them, and levy thereon. If an officer take estate greatly more than sufficient, and sell the same, so that the debtor sustain an unnecessary sac- rifice, he will be liable ; yet, as respects many kinds of property, it is extremely uncertain what it will sell fur at auction, if an officer act fairly and in good faith, although he take more property than was necessary, lie will be justifi- ed ; but if he do it with a view to oppress the debtor, he will be subjected to heavy damages. So if an officer de- cline to take goods apparently insufficient, and levy on the bod3 r , and it should afterwards appear that the goods were sufficient, if he acted honestly and only misjudged, courts would not be rigid towards him (i). If sufficient personal property cannot be found, and the creditor does not direct the execution to be levied on real estate, it is the duty of the officer to take the body of the debtor ; and if he neglect to do this, in case the body might have been taken with proper diligence, he becomes liable. Whether an officer, having in his hands an execution, actu- ally sees the debtor or not, yet ifhe might have been taken by due diligence, and the officer fails to do it, and makes a return of non esl inventus, he will be liable. As to what constitutes an arrest, and the law relating to that subject, we must refer to our remarks on the service of attachments, the same principles being applicable to arrests, whetheron attachment or execution. After having arrested the body for want of goods, if personal property is found or tendered, the body may be released and the goods taken. But the officer, after having legally arrested the body, is not obliged to take goods on their being tendered by the debtor and (i) Swf. Dig. 797, 237 discharge the body, for the debtor having refused to pro- duce estate, whereby his body has been legally taken, it would be unreasonable that the officer should be obliged to risk the sufficiency or the title to the estate after he has once made a legal levy of the execution. But if the cred- itor should direct the bod}' released and goods taken, it is believed the officer would not be justified as respects him in declining to do it. But if the debtor pay the money on the execution, or tender the same, the officer could not be justified in committing him to gaol. When the body of the debtor is taken, he must, according to the principles of the common law, be kept in the actual custody of the officer, and conveyed to gaol as soon as convenient, anil in the most direct manner (a). If after arresting the body ofthe debt- or, the officer permit him to go at large, out of his custody, it is a voluntary escape, and the retaking and committing him to prison, within the life ofthe execution, will not save him harmless, but he will be liable for the debt. In this State, however, it has been decided by the superior court, that an officer, after an arrest, might permit the debtor to go at large until the last day ofthe execution, and then com- mit him, without being liable for an escape (c). As the principle of this decision has not received the sanction ofthe supreme court of errors, it is not advisable for an officer to permit a person arrested on execution, to go at large, even where he may feel no anxiety as to being able to retake him during the life of the execution. On mesne process, an officer may permit a prisoner to go at large, provided he has him at the return of the writ (i). But in case of voluntary escape, on final process, the officer is not permitted to retake the prisoner, and if he do, it is false imprisonment (fc). If the court of errors should over- rule the decision ofthe superior court, and recognize the common law principle, that permitting a prisoner to go at large after arrest on execution, is a voluntary escape, the officer would not be permitted to retake him during the life ofthe execution, and if he should, it would not save him from his liability to the creditor, and at the same time, he would be liable to the debtor for f-ilse imprisonment. Where an officer does not intend to commit a debtor imme- 'a) I Bos. and Pul. 27. (c) 2 Root, 133. (?) 2 T. R. 172. (fc)2T. R. 177. diately to gaol, he ought not to arrest him, for if he does not actually arrest him, he may take him at any time during the life of the execution, which will be sufficient. The only risk, if he sees him and does not make an arrest, will be as to his being able to take him during the life of the ex- ecution ; but if he is arrested, and permitted to go at large, it may be a question, whether retaking and committing him to gaol within the life of the execution, will justify the offi- cer. It has been decided in the state of New- York, that where a debtor who had been arrested on execution was permitted to have his liberty on the promise of another per- son to pay the debt if he iail to deliver him by a certain day, was a voluntary escape in the officer, and the promise to deliver him, void (o). In case of voluntary escape, as well as of negligent escape, the creditor has a claim on the officer, and still holds his claim on the debtor ; but in a vol- untary escape, the officer has no claim on the debtor. It is a clear principle of the common law, that it the plaintiff discharge the debtor from arrest on an execution, or if the officer permit him to go at large with the consent of the plaintiff, the debtor not only cannot be retaken on the ex- ecution, but is entirely discharged from the judgment. And although the party is discharged on an agreement to pay the debt which is not complied with, or to surrender him- self by a given day, if he did not in the mean time pay the debt, the law is the same (p}. So where the plaintiff con- sents to discharge one of several defendants, this is a dis- charge of all, being a discharge of the judgment, and the others cannot afterwards be taken. Where the defendant agreed on being discharged out of custody by the consent of the plaintiff, that the judgment should stand revived for twelve months, it was held to be void. So a bond taken for the surrender of a prisoner on a certain day that he miijht be retaken, who had been discharged out of custody of ex- ecution, by the consent of the plaintiff, was held to be void. The discharge of the prisoner by the creditor, or by the officer with his consent, is considered as a discharge of the judgment, and the plaintiff is thereby deprived of ereri; rem- edy, against the debtor. It is understood to h; cently decided by the court of errors in this State, that the ((>} 13 John. 366. (p) 6 T. R. 525. J.j-J discharge of the debtor by the plaintiff from arrest on execu- tion, was a discharge or satisfaction of the judgment. When a debtor is committed to gaol, the officer must leave with the gaoler a copy of his execution and of the en- dorsement of hi? doings thereon, which is a sufficient war' rant for the gaoler. Where a debtor is committed to gaol on attachment for want of bail, the execution must be levied on him within five days after final judgment. When an of- ficer has levied on goods during the life of an execution, he may sell them, after the sixty days have elapsed ; and so if his term of office expire after the levy, either before or after the execution is run out, he may complete the sale. But he cannot make a levy, after either the execution or his office has expired. Where partnership property is taken on an execution against one of the partners for his individual debt, it must be posted, and the right or interest of such partner therein sold only, and not the goods. The interest of each part- ner in partnership property is altogether uncertain, and depends upon the demands upon the partnership and the accounts of the partners (a). The creditor can only take the interest the debtor has in the partnership effects, after a settlement of the partnership accounts, and this interest being extremely uncertain, the officer would be justified in taking a large amount of property, perhaps the whole part- nership effects, \vhere there was reason to believe that such p irtner possessed hut little if any interest in the property of the partnership. The If vy on partnership property mint be o u-ice r t:iin, that the officer ought always, if he can, to obtain the direction of the creditor. On an execu- tion a^unst -several, as partners, the officer may take either partnership property or the individual property of any one of the defendants, and if there were individual and company good' sufficient to sati-fy the execution, and he neglects to take them, he will be liable. So on an execution against several who are not partners : the officer may take the property of nther, or part of one or p irt of the other, and the proportion in whi.;h the debt should be paid is a matter which concerns the debtors only. Where goods are taken n attachment, they must be levied on within sixty days af (a) 2 Conn. Rep. 514. 240 ter final judgment, and if receipted", demand must be made of the receiptsman within that time. If the demand is made out of his precincts it is sufficient (6). Where goods have been attached, they cannot be levied on by the execution, without a previous demand of pay- ment thereof of the debtor, as in other cases. Where an execution has been levied by one officer on goods which are disposed of, and the execution partly satisfied, it may be taken out of his hand and delivered to another officer, if di- rected to him, to levy for the residue thereof, the same be- ing returned with each of their doings thereon endorsed. But the first officer could not safely deliver the execution to another, without the direction of the creditor. If the execution is returned partly satisfied, a new one may be prayed out and directed to a different officer. Where an execution is issned by the State Treasurer against the inhabitants of any town for the arrears of taxes, the judg- es of the county court of the same county, may, at the request of the sheriff, depute some suitable indifferent per- son to leave the same, who shall have the same power as sheriffs, und such sheriff shall be responsible for his con- duct. When an execution is levied on the stock or shares of the debtor in any bank, insurance company, turnpike com- pany, or of other corporation, the officer must leave a copy duly attested, with the cashier, secretary or clerk, with an endorsement that he levies upon and takes such stock or shares on such execution. It is the duty of the cashier, or secretary, or clerk of any corporation, on enquiry by an officer to inform him by a written certificate, with his official .signature, of the number of shares of stock any person po?sesses, against whom such officer holds au execution or attachment. After snrh levy, the shares ta- ken are to >>e posted and sold like otlu-r personal property ; and thereupon the officer must give the purchaser a proper instrumer 1 in writing, conveying uch shares, and leave a copy, wit's am endorsement of his doings thereon, with such cashier, secr-Tiary, or clerk, before he returns the execu- tion, and nr.nke return due thereof. The purchaser obtain* a title not mly to the stock, hut to all dividends, profits and interests which may have accrued thereon. (6) I Con. Rep. 255. 241 Vv here no personal estate can be found, and if the credit- or gives direction, it is the duty of the officer to levy the execution on the real estate of the debtor, holden in his own right. The creditor has his election to take the body, or levy on the land of the debtor ; but the officer cannot safely levy on real estate without the direction of the cred- itor, nor can the del-tor tender real estate on the execution, to avoid the imprisonment of his body. The direction of the attorney of the creditor is the same as that of the plain- tiff himself. To constitute a levy, he must actually enter upon the land. The officer must cause the land levied on to be appraised by three indifferent freeholders, of the town where the land lies, or if that town be a party, then of the ni-xt adjoining town, one of whom to be appointed by the creditor, the other by the debtor, and if they cannot agree in appointing a third, or if either party neglect or refuse to appoint, the officer must apply to any justice of the peace in the town, who by law may judge between the parties, who shall appoint one or more appraisers as the case may require : which appraisers being sworn according to law, must make an estimate of such real estate according to its true value, in writing, under tfeeir hands, or either two of them, and the same deliver to such officer, who must set out to the creditor by metes and bounds, so much of the land as may be sufficient at the appraisal, to pay the execu- tion and the lawful charges, if there is sufficient ; if not, so much as there may be, to be endorsed on the execution, in part or in whole satisfaction thereof. And the officer must cause such execution, with a proper endorsement of his do- ings thereon, to be recorded :\i length in the records of lands of the town where the estate lies, and must return the execution, with an endorsement of all his said doings thereon, unto the officer of the court whence it issued, there to be kept on file, which shall vest in the creditor and his heirs all the title and interest the debtor had in the land (e). The appraisers must be indifferent freeholders, and of the same town where the land lies, unless such town is a party, or interested, then of an adjnii inir town. It has been decided by the superior court, that where the parties agree (e) t. r,7-8. 21 242 on freeholders belonging to another town, or any one ot' them, it will be bad, because the parties cannot alter the law (g). Any relationship between an appraiser and one of the parties, whether by blood or marriage, calculated to produce a bias, will render the proceeding illegal. The relationship to either of the parties, which disqualifies a judge from acting in civil cases, is considered as a reasona- ble rule in case of appraisers (A). A nephew, by marriage, to one of the parties has been adjudged not to be an indif- ferent person within the statute (z). If the^principle ap- plicable to judges is to apply to appraisers, no person be- tween whom and either of the parties there is so near a re- lationship, as father and son, by nature, or marriage, brother and brother, uncle and nephew, or landlord and tenant, can be an indifferent freeholder within the meaning of the stat- ute. A person who has directly or indirectly any pecunia- ary interest in the matter, cannot be an appraiser. The appointment of an appraiser by a justice of the peace, is a ministerial act, and not a judicial act, and if an appraiser ap- pointed by a justice is not an indifferent freeholder, the fact m iy be proved to impeach the title (a). To be a free- holder, requires an estate in lands in fee simple or for life, either during the grantee's own life, or that of any other person. An estate under mortgage is not a le^al freehold in the mortgagor. Where an execution is issued in an ac- tion offoieign attachment, without bonds being given to re- fund, as required by statute, and the execution is levied on lands, it has br>en decided that the levy is good as to other crCiKt'rs of the debtor, the law requiring bonds, being con- d a^ intended for the benefit ofthe debtor, not of cred- ito s (A). It has been decided that where a woman marries after judgment, and an execution in her name is levied on land, the appointment of an appraiser by her is legal (-). It would seem, however, that it should be done with the con- sent of her husband, as a woman after marriage can do no legal act, besides after marriage, the judgment was entire- ly "subject to the control of the husband, and could be dis- charged by him. It would be the safest in such cases, that fe\ i Foot, 196. (h) I Con. Rep. 295. (i) ib. (a) 1 COB. Rep. 20ft (k ) 1 Rot, 176. (n) 2 Root, 15. the appointment should be made jointly by the husband and wife. Where husband and wife are plaintiffs or defendants, the appointment may be made by the husband only ; but in other cases, where there are two or more plaintiffs or de- fendants, it would seem the appraiser should be appointed by them jointly, and if a part only agree to make an ap- pointment, that it would be necessary to decline such ap- pointment, and apply to a justice. If one of several plain- tiffs or defendants.be authorized to act for the rest, an ap- pointment by him would be good. In case of partners, one plaintiff, it would seem, might act for all : and likewise one defendant of partners, where the execution was levied on land belonging to the partnership, but if levied on the land of an individual partner, the appraiser, it would appear, ought to be appointed by him, and if appointed by any oth- er of the defendants without his concurrence, it is doubtful whether the levy would be valid. Land which the debtor owns as tenant in common with others, cannot be set off by metes and bounds, so as to take an undivided moiety or part f a certain quantity of land ; but the whole tract belonging in common must be levied on, and the whole of the debtor's share or interest therein ap- praised, and such part or proportion set off as the debt bears to the debtor's whole interest, where the debt is less than the debtor's share or interest in the land. If the execution and charges equal or exceed what the debtor's share in the land is appraised at, the whole must be set off, when the cre- ditor will take the place of the debtor, and be tenant in com- mon with the owners of the other shares of the land ; but if the debt is less, he will be tenant in common with the debtor and the other tenants in common, according to the proportion he has acquired. If A and B are tenants in com- mon, in equal shares, and an execution is levied on A's share, of the amount of one hundred dollars, and his share is appraised at two hundred dollars, one half of A's interest must be set off to the creditor, so that the creditor will pos- sess one undivided fourth part of the land, A one undivided fourth part, and B one undivided half part ; and the credit- or or any one of the tenants in common, can procure a divi- sion accordingly. In the ruse supposed, the mode would bo, to *ot off such proportion of A's share or interest, the whole being estimated at two hundred dollars, as the one 844 hundred dollars, the; amount of the execution and costs, ieaves two hundred dollars, which would give him one half of A's share. If instead of one undivided half of the inter- est of A in the whole tract, his entire interest should be set off in one half of the lot, B, the other tenant in common, would be subjected to have his share partitioned and apart- ed in two separate pieces, whereas he has a right to have his interest as tenant in common in the whole tract, parti- tioned and aoarted to him in one piece (a). Where the debtor is tenant in common with others, in unequal shares, owning more or less than an equal share. his interest, or share, must be appraised, and such propor- ereofset off as the debt bears to his whole interest, me as when he is tenant in common in equal shares. icn there are two or more separate tracts of land ,ed by the debtor as tenant in common with others, each :' Id by a distinct title, an execution cannot be levied on ne whole, and a part or proportion of the debtor's interest ;n each set off, but the whole of the debtor's right must be taken in one tract, before any portion of his interest can be taken in another (6). Where an execution is levied on land, encumbered with a mortgage, it cannot be set off by metes and bounds, but the whole or such proportion of the debtor's interest therein, as the execution and charges bear to his whole interest, must be set off in satisfaction of the execution. The ap- praisers must estimate the value of the debtor's interest or equity of redemption, which can be done by estimating the value of the land, and deducting therefrom the amount of the mortgage debt ; and the officer must s< toff such pro- portion thereof as the execution and charges bears to the whole of the debtor's interest, in the same manner as where the debtor owns land as tenant in common (c). Terms for years may be levied on and appraised off as real estate, the whole or a part being set off to the credit- or by metes and bounds as in other cases, for the term own- ed by the debtor (d). So, also, must the interest a man has in the lands of his wife. The estate of the debtor, whether for life or years, should be set off as such, yet if set off as a fee simple, it will give the creditor all the title (a) 2 Con. Rep, 243. (6) ib. (c) 2 Day, 317. (d] 2 Root, 16 245 the debtor had therein (ft). Where two creditors attached the same land at the same instant, and had their executions levied in due time, it was held that they took uioities of the land 0). When lands have been attached, the execution must be levied, the proceedings completed, returned and recorded within the four months after final judgment. If the levy is made within that time, but the proceedings not comple- ted, the title will not be good in case there was a subse- quent attachment on the land. But if the lands were encum- bered by a prior attachment, the execution must be levied in four months after such encumbrance is removed. The officer ought to state in his endorsement, that he made de- mand of the debtor of the execution, and that he cquld find no personal estate whereon to levy ; but it has been deci- ded that this was not absolutely necessary, where il ap- peared that the debtor appointed one of the appraisers, from which it might be presumed the demand had been made or waived by the debtor, and that no personal estate was tendered, or could be found (g). An officer ought to serve executions in the order of time in which they are received, and if two are put into his hands on the same day, he should levy that first which he received first ; but if he levy the one he received last, first, the proceedings will be legal, but he will be liable to the creditor in the first execution, in case the same is not satisfied, to the amount of the goods taken on the second execution, and which ought to have been taken on his (a). If an execution is legal on the face of it, the officer is bound to execute it (c). An officer is bound to serve and return an execution within the sixty days, yet if he collect and pay over the money to the creditor, he is not liable if he does not return the writ. So if by the direction of the cred- itor, he levy on land, and return the execution before an action is brought against him, so that the title become com- plete, he is not liable, although the return was not m.ide until after the expiration of the sixty days (d). But if the land should be levied or attached by any other creditor, and the title of the first creditor defeated in consequence of {h} 1 Con. Rep. 470. (e\ 13 Mass. T. R. 527. (g) 1 Root, 241. fa) 1 Ld. Raym. 252. (e) Kirby, 180. (d) Swf. Dig. 795. 246 the officer's not making return in season, he would be lia- ble to the creditor notwithstanding he had returned the ex- execution before an action was brought against him. An officer cannot return a rescue, or, that he cannot do execution on final process, on a writ of execution, as he is bound to bike with him the power of the county if requir- ed. The officer must endorse his fees on the execution, specifying the items, and must deliver to the debtor, on de- mand, and without reward, a bill of his fees, under his hand, specifying the items, with the name of the creditor, the date and amount of the execution, and the court from whence it issued ; and on his neglect or refusal so to do, he forfeits three-fold the amount of his fees. If he charges or receives more than lawful fees, he forfeits three-fold the amount of such excess, to be recovered by an action on the statute. No officer is entitled to any more fees for travel on an execution, than the actual travel to serve and return the same. If an officer, for the security of the p : ;\ment of an execution, take more than one bond, note, receipt, or other instrument, directly to himself, or to any other person for his use, every such instrument so taken, is void. Where an officer delivers goods, taken on execu- tion, into the bauds oi* r.ny person, and takes his receipt for the re-delivery of the same, and such person fails to perform, in an action brought by the officer on such re- ceipt there can be no appeal. Where a sheriff has recov- ered money on an execution and neglects to pay the same on demand, he is liable to pay to the person entitled to the money, two per cent a month from the time of such de- mand until the same be paid. If any person shall refuse to assist a sheriff, or other offi- cer, when necessary, in the execution of his office, on being commanded by such officer, he forfeits a sum not exceed- ing thirty-four dollars to the treasury of the county. 1. Of the Service of Executions issued in Actions of Foreign Attachment. The judgment rendered in an action of foreign attach- ment, is a judgment against the goods and effects of the defendant in the hands of his attorney, agent, factor or trustee, or the debt of his debtor ; and the judgment is a Hen thereon, the same being liable and holden to satisfy such judgment, or such part thereof, as they may be sutl, to pay. Before taking out executions, except on ju. la- ments before justices of the peace, the plaintiff mi:-- ecute a bond, with surety in double the amount of the judgment, to refund the same, or such part thereof, as on a petition for a new trial or writ of error, it may be de- cided the plaintiff ought not to recover. The duty of the officer in serving an execution issued on a judgment rendered in an action of foreign attachment, is not different from what it is in any other case, unl< the plaintiff gives directions. But if the plaintiff gives him such directions,he must make demand of the attoVnoy, agent, factor, or trustee, with whom a copy of tne attachment was left, of the goods and effects of the defendant in his hand?, whose duty it is to expose the same to be taken on the ex- ecution ; and where a copy of the attachment WHS left with a debtor of the defendant, to make demand of him of the debt or debts due from him to the defendant, and it is the duty of such trustee or agent to expose such goods, and of such debtor to pay such debt to the officer, or such part thereof, as will satisfy the execution and costs, if the said goods or debt exceed the same. The trustee or debtor, with whom the copy was left, is called the garnishee. If he expose goods or effects of the defendant, the officer must levy his execution on them and dispose of them, as in other cases ; if the debtor of the defendant pay the offi- cer the debt he owes the defendant, he must endorse the same on the execution, and make return. If the trustee or debtor of the defendant, on *uch demand, 'refuse to ex- pose the effects of the defendant in his hands or pay the debt he owes him, the officer inust make a special return of such demand and refusal of the garnishee, and must al- so make a return of non est invent is as to the defendant. This enables the plaintiff to bring a srire fmias against the garnishee, upon which he will be subjected to pay the plaintiff's judgment himself, if the plaintiff can prove, he had effects of, or was indebted to the original defendant, or such part thereof, as is equal to the value of the property in his hands. The garnishee is entitled to his oath to dis- ch irse himself; or to testify that he had no effects of the defendant in his possession, or was not indebted to him. The demand upon the garnishee, must be made within sixty 248 days after judgment, and return made within that time, or the garnishee will be discharged. If the garnishee does not expose goods or effects of the defendant or pay the ex- ecution, it is the duty of the officer to take other goods of the defendant, il he can find any, or the body of the de- fendant, if it can be found, unless directed otherwise by the plaintiff. So if the effects exposed hy the garnishee are sufficient to satisfy part of the execution only, the offi- cer must take other goods of the defendant, or his body, if he can find either, and if not, must return the execution non est inventus as to the part unsatisfied. If there are sev- eral garnishees, demand must be made of each. 3. Of Serving Executions where an Executor or Adminis- trator is Sued, 4'C. A judgment against an administrator is only against the goods and effects of the deceased in his hands. Tie officer must make demand of the administrator or executor of payment of the execution, and of goods and effects 6f the deceased to satisfy the same ; and if he neglect to pay the same or turn out goods, he must make return that he could find no goods of the deceased, and of the demand made upon the administrator, and of his refusal to pay the execution or expose goods of the deceased, whereby the same is returned unsatisfied. If goods of the deceased are turned out by the administrator, or found, t^ev may be taken and sold as in other cases, but the ;id mni*trator's own property cannot be taken. When a judgment is rendered against a corporation, the execution is issued against the goods and estate of such corporation only, and the officer must make search for, and if he finds estate, levy upon, and dispose of the same, as in other cases. If he can find no estate he will return the execution non est inventus as to goods and estate of such corporation. Where the estate of a corporation is not vis- ible or tangible, so that it can be levied on, application may be made to a court of chancery, to enforce payment of the judgment ; but if there is no visible or tangible property, that can be taken, the officer will be justified in his return, that he can find no goods. In judgment against towns and societies, the execution issues against the goods and estate of the individual mem- bers thereof, and not against the property of such corpo- rations. The officer may make demand of the select-men or the committee of societies, and then, or probably without such demand, may levy the execution on the property of any inhabitant of such town or society, and the person whose property is taken has his redress against such cor- poration. 4. In an action of ejectment or disseisin, the judgment is that the plaintiff recover the seisin and possession of the premises, and his costs, and execution is granted accord- ingly. It is the duty of the officer to turn the defendant out of the possession of the premises described in the writ, and put the plaintiff" into actual possession of the same, and make return accordingly. He may, if necessary, break down doors, and turn the party out of possession by actual force. Where, in disposing of goods taken on execution, the person who bids the highest is unable to pay, the officer may offer them to the next highest bidder, and if he de- clines to receive them, or is also unable to pay, he may put them up for sale again. It is his duty to sell for money, and if he gives a credit, he will be liable to the creditor, for the amount of the sale, although the snine may never be paid. Where there are a number of articles, they should be sold separately, where they are distinct in their nature and use, and not in gross or by the lump, as that might occasion a greater sacrifice to the debtor (a). But when the officer acts honestly and fairly, and sells the property in the way that appears most advantageous, he will generally be justified. He is the agent of the, debtor as well as the creditor, and must Discharge his trust in good faith to both. If an officer take a bond of the debt- or, or other security, to the amount of an execution it i- a payment thereof, and such execution cannot afterwards be lawfully enforced against such debtor (6). It has been decided, that if an officer, holding an execution, pay the amount thereof to the creditor from his own money, that it is a satisfaction of the execution, and that such officer Can- not reimburse himself by enforcing it against the defend- ant (c). It is a good return on an execution, for an officer (a) I Bin. 61. (6) 7 John. 429. (c) ib. 12'). 250 to state that he arrested the body of the debtor, and that he died, whereby he could not commit him to prison ; or that from sickness he could not be committed to gaol. It has been decided in the State of New-York, that an officer cannot justify an escape, by shewing that the attorney of the plaintiff permitted the debtor to go at large or be dis- charged ; that an attorney has no authority to discharge the debtor from arrest on execution, without payment of the debt, he being only authorized to receive payment and dis- charge the execution in consideration thereof (/i). An of- ficer cannot be permitted to falsify his return, although he may be permitted to correct a mistake or omission. If he return that he has collected on an execution, the whole or a part thereof, he will be liable to the creditor for the amount, and will not be allowed to falsify his return by proving that he did not in fact receive the money accord- ing to his endorsement. But the creditor, or other per- son entrusted may disprove an officer's return ; it is only prima facie evidence of the facts contained thereon. An officer ought in all cases, in order to be justified, make a return which is both sufficient and true, and if it is either insufficient or false, he will be liable. He must fol- low the direction of the writ and execute it according to law. An officer may justify under an execution which he never returned (t). Recaption on fresh pursuit, or before action brought, will justify an escape on execution as well as on mesne process ; but not if the escape is voluntary on the part of the officer. Where good* seized by an officer on execution or attach- ment, are unlawfully taken out of his possession, he may maintain trespass or trover for the injury. No action can be brought against a constable, ,-heriff, or deputy sheriff, for any neglect or default in his office and duty, but within two years next after the right of action shall accrue. But an action of assumpsit maybe maintain- ed against such officer, for money collected on an execu- tion, and not paid to the creditor ; or where goods are sold and there is an overplus, which is not refunded to the debtor, at any time within six years after the receipt of the money. (h) 8 John 361. (t) ib. 52. 251 CHAPTER VI. FORMS ON FINAL PROCESS, OR EXECUTIONS. 1. Of Retitrns on Executions in Common Form. Where the execution is paid by the debtor. H county ss. H day of A. D. ; then I re- ceived of A. B. the within debtor, the sum of dollars, in full for the damages and costs of this execution, and the sum of for my fees thereon. [Items of fees.] C. D., constable. Where goods are levied on and sold. H county ss. H day of A. D. ; By virtue hereof on the day of , I made demand of the with- in named A. B. at his usual place of abode, [or at a place called , in said town of ] ofthr several sums contained in this execution, and of my fers thereon, which he then and there neglected to pay ; and afterwards on the day of , at said , 1 levied this execution en one bay horse, and one pair of working oxen, the property of the within debt- or, and took the same into my possession ; and thereupon drew an account of the particulars of said propertv, and posted up the same on the sign-post, in the society of in said town of , within which society said property WHS taken, and with the same I also set up a notice that said property would be sold at the plac^ where posted, at the end of twenty days, at public vendue, specifying the day when the sale would take place, and the hour thereof; and the s.iid A. B. having failed to pay said execution and charges, on the said specified day I sold, after causing: a dium to be beat at said sign post, at public vendue, said horse, the same having been conveyed to said post, to J. S. for the sum of fifty dollars, he being the highest bidder therefor ; and I also sold said oxen to O. P. for sixty dol- lars, he being the highest bidder thfri'for, making in the whole, the sum of one hundred and ten dollars, from which I deducted the expenses and my fees, amounting to ten dollars, and of the residue applied in satisfaction of this execution the sum of ninety dollars, being the amount doe thereon, and the remaining ten dollars I returned to the 25:2 within debtor, and also paid to the creditor the contents ot this execution received by me as aforesaid. [Items of fees.] C. D., Constable. [If the property is turned out by the creditor it is al- ways safest for the officer so to sUtte in his return ; and where property is taken which is exempt by law, the same being turned out by the debtor, its being so turned out should be stated in the return.] Where a second levy and sale of goods are made. By virtue hereof on the day of A. D. at , I made demand of A. B. the within dtbior of the debt or sum due hereon, which he neglecting to pay, I made dil- igent search for goods of the said debtor, and on the day of , 1 found and levied on a piece of flannel cloth containing twenty yards, the said debtor then having left in his posspssion wool and cloth made therefrom, of a quan- tity exceeding twenty pound?, the said piece of cloth he- in all the property of the said debtor 1 could then find, li >ble to be taken ; and thereupon I drew an account of sa.d properly and posted the same &c. [the same as the preceding] and at the time and place specified 1 sold said property, at vendue, having first caused a drum to be b -a en, to R. R. for fifty cents a yard, amounting to ten dol- lars. :md applied six dollars thereof in part satisfaction of this execution, two being required to pay iny fees and expenses, leaving then due on said execution the sum of ten dollars ; and ;ifterw:irds on the day of said execution then being in life, I levied the same on ten bushels of rye, and ten bushels of Indian corn, the oropertv of the debtor herein, he then having in his possession more than ten bushels of each, which I did not take, and thereupon I drew an account of the property Vist taken, and posted up the same on the si^n post k.c. [the same as in the first] and on the said sprr.fk'd day, 1 .-old it public vendue, at said sign post, hiving first caused a drum to be beaten, said rve to L. M. for seventy cents per bushel, he being the highest bidder therefor, and said corn to J. S. for fif'y cents per bushel, he being the highest bidder there- for : the whole amounting to the sum of twelve doll.ir->, of whirh I applied tPn do'l.irs to satisfy the sum remr-ining due on said execution, and my fees and charges were onr 253 viollar and fifty cents, leaving an overplus of fifty cents, which I returned to the said creditor, and paid the con tents of said execution, due the creditor herein. Where goods in part satisfaction are taken and the body arrested and committed. By virtue hereof &c. [state the taking and sale of the goods the same as the preceding] and I continued to make diligent search for more goods of the said debtor, whereon to levy to satisfy the residue of this execution until the day of , but I could find none within my precincts, and for want thereof, I by virtue of this writ, arrested the body of the within debtor, and him committed into the cus- tody of the keeper of the gaol in H , in the county of H , to be kept by him within said prison, and there- upon delivered to said keeper a copy of this execution, and of my proceedings thereon endorsed, and duly attested the same. Where the debtor is out of the precincts of the officer and insufficient property only can be found. By virtue hereof I made search for A. B. the within debtor to make demand of the debt or sum due hereon, but could not find him in my precincts. I then made search for goods of the said debtor whereon to levy, and continu- ed my inquiry until the day of , when I found and levied this execution on a one-horse waggon, the prop- erty of the within debtor, being all the goods or estate I could find within my precincts, and thereupon drew an ac- count &,c. [the same as in the first form] and on the spe- cified day I sold at said sign-post, at public veiidue, having first caused the drum to be beaten, said waggon to J. S. for 20 dollars, he being the highest bidder therefor, of which I applied eighteen dollars in part payment of this execution, the charges and my fees being two dollars, leaving due on said execution twenty dollars ; and I continued to search for more goods of the said debtor, to satisfy the residue of said execution, until the day of , but could find none ; neither could find the body of the debtor, he being out of my precincts when said execution was put into my hands, and has not come into the same, whereby he could 22 254 be taken, and on the said day of , I returned said execution, partly unsatisfied, as aforesaid. [An officer cannot be justified in taking insufficient prop- erty, except where the body could not be taken, during the life of the execution, then it is his duty to do it.] Where bank or other stock is taken and sold. By virtue hereof I made demand of A. B. the within debtor, at his usual place of abode of the sum due hereon, and my fees, on the day of which he neglected to pay, and afterwards on the day of , I levied this execution on four shares of stock in the Phoenix bank, be- ing a body corporate, the property of said debtor, by leav- ing with G. B. cashier of said bank, an attested copy here- of, and of the endorsement of my doings hereon, and on the same day I drew an account of said property, and posted up the same on the sign-post in the society of within which the said levy was made &c. and on the spe- cified day I sold at public vendue, at said sign-post, having first caused a drum to be beat, two of said shares of stock, with the dividends and profits thereon accrued, to L. M. for one hundred and ten dollars each, and the other two of said shares to R. R. at the same sum, the said L. M. and R. R. being the highest bidders therefor, and said .shares having been offered for sale severally, and thereupon I executed to the said L. M. and R. R. proper instruments in writing, conveying to them said bank shares ; and of the ~nm received for said shares of stock, being four hundred and forty dollars, I deducted five dollars the amount of my foes and charges, and applied four hundred in satisfaction of said execution being the amount due thereon, & the over- plus thirty-five dollars I returned to the said debtor, and I also paid the contents of said execution, received as afore- said, to said creditor ; and I also left with the cashier of said bank a true and attested copy of this execution . and of my endorsement thereon. The endorsement on the copy. H county ss. H day of A. D. ; then by virtue hereof 1 levied on four shares of stock in the PhiE- nix bank, belonging to the within debtor, to satisfy this ex- pcution, and my foes thereon. A. B., Constable. 255 The above and within is a true copy of the original ex- ecution, and of the endorsement of my doings thereon. Attest. A. B., Constable. [The copy to be left with the cashier after the sale, must contain a copy of the execution and a copy of the en- dorsement made thereon, stating the sale of the property, and must be duly attested.] Where corn or grain growing is levied on. By virtue hereof on the day ef at ,1 made demand of the within debtor of the debt or sum due here- on, and of my fees, which he then and there neglected to pay, whereupon by direction of the creditor, I levied said execution on a certain quantity of growing corn, and all the right, title and interest of the defendant had therein, standing and growing on a certain piece of land, situated in and bounded as follows : containing about ten acres of land, the same belonging to O. P., the said debtor having leased or rented the said piece of land, and owned the said grain standing thereon, [or the said debtor having cultivated said land on shares, and being entitled to the one half part of said crop] and thereupon I drew an ac- count in writing, of the particulars of said corn, and post- ed up the same on the sign-post in the society of , with- in which the same was taken, and with such account I set up a notice that said corn would be sold at the place where posted, at the expiration of twenty days, the day of sale being specified, at public vendue as the law directs ; and on said specified day, the said debtor not having paid said execution, I sold said corn, by description, according to said notice, having first caused a drum to be beaten, as follows, viz. the part thereof growing on four acres of said land, to R. R. for twenty dollars, together with all the right and privilege of the said debtor to cultivate and grow the same on said land, he being the highest bidder there- for ; and the proportion thereof standing on six acres of said land to J. S. for thirty-six dollars, he being the high- est bidder therefor, and all the right of the said debtor to grow the same on said land, [or where the debtor owned but a share of the grain :] I sold all the right and interest of the said debtor in said corn, being the one half part there-' of, to R. R., for the sum of , he being the highest bid- 256 Jer therefor] and thereupon I gave said purchasers a bill of sale of said corn ; and of the said money received therefor, amounting to the sum of fifty-six dollars, I de- ducted five dollars for the fees and charges, and the resi- due applied &c. (same as in other cases.) Where the grain after (he levy is harvested and sold. [State the levy by posting &c. as in the last, then say :] tnd the said creditor neglecting to pay said debt, and for the more advantageous sale of said grain, I caused the same to be harvested and removed from said land ; and on said specified day said execution being unsatisfied, I sold said strain at said sign-post, having caused the same to be con- veyed there, at public vendue, after the beat of a drum, to R. R. for the sum of he being the highest bidder : [or in case of rye or other grain, which is too bulky and expensive to be removed to the post ] I caused said rye or grain to be harvested and removed from said land for the security and better sale of the same, and on said spe- cified day, I sold the same, at said sign- post, at public ven- due, by description and sample, said grain being then in sheaf, and so bulky that it could not be removed without great and unnecessary expense, a part thereof, consisting of twenty shocks to A. B. for twelve dollars, he being the highest bidder, and the residue thereof, containing fifteen shocks, to C. D. for eight dollars, he being the highest bidder therefor &c. Where partnersJtip goods are taken for the separate debt of one of the partners, [State the demand as in other cases :] and afterwards on the day of , by virtue hereof and by the direction of the creditor I levied upon all the right and interest of the within debtor in certain goods [describe them] owned by the said debtor in partnership with A. B. and C. D. under the firm of A. B. &, Co. the same being partnership property of said company, and I forthwith drew an account of the particulars of said property, and posted up the same on the sign-post, in the society of , within which the same was taken, and with such account I also posted up a notice that all the right, title and interest of said debtor in said property, as one of the partners of said partnership, would be sold at public vendue, at the end of twenty days, from the date of said notice, the day of sale being specifi- ed, and on said day 1 did accordingly sell at said sign-post, all the right and interest the said debtor had in said pro- perty, as one of the partners of said firm, to L. M., for dollars, he being the highest bidder therefor &c. Where the body is taken and committed, By virtue hereof I made demand of the within debtor of the debt due hereon, and my fees, on the day of at the dwelling-house of the said debtor, in said , who then and there neglected to pay the same, whereupon I made search for goods and estate of said debtor, and con- tinued diligently to enquire therefor through my precincts, until the day of , but could find none, whereon to levy to satisfy said execution, {or if some estate is found, but not sufficient, but I could not find goods or estate of said debtor, sufficient to satisfy said execution, and my fees thereon] and for want thereof, on said day of , I levied said execution on the body of said debtor, and forth- with conveyed and delivered him into the custody of the keeper of the gaol of said county of H , by him to be safely kept within said prison, and left with s-aid keeper an attested copy of this execution, and of my doings thereon endorsed. Where the defendant is arrested and dies. The within debtor having neglected and failed to satisfy this execution, although I demanded the same of him at his usual place of abode, on the day of , afterwards I made search for goods and estate whereof to levy, but could find none within my precincts, whereupon I levied this execution on the body of the defendant on the day of , he then being sick, whereby I could not con- vey him to gaol, and he continued sick until the day of , when he died of a disease called , while in my custody. Non est inventus, or -where neither goods or the body can be found. By virtue hereof I made diligent search for goods and estate of the within debtor, whereof to levy, to satisfy this execution, but could find none within my precincts, neither 22* could i find the body of the said debtor, wherefore, on the day of I returned this execution wholly unsatisfied. Where the debtor's body is arrested, released, and goods taken. Having by virtue hereof, made demand of the within debtor, at his usual place of abode, on the day of of the sum due on this execution, and of my fees, which he neglected to pay, and being unable to find any goods whereon to levy to satisfy the same, I arrested the body of said debtor, and was proceeding with him to the gaol of said county of , when said debtor, to procure the re- lease of his body and to satisfy said execution, turned out to me a silver watch, with a gold chain, seal and key, where- upon I released the body of said debtor from said arrest, and levied this execution on said watch, seal, and key, and forthwith drew an account of the same &c. [same as io the preceding.] Where real estate is levied on and set off. By virtue hereof on the day of , I made demand of the within A. B. at his usual place of abode, of the sev- eral sums due on this execution, and of my fees thereon, which he neglected to pay, and not being able to find any personal estate of the said debtor within my precincts, and none being shewn me by him, whereon to levy, by virtue hereof and by direction of the creditor herein, (or of R. S. attorney to said creditor) I levied this execution on a certain piece of land, whereof the said debtor was seised and possessed in fee, (or of an estate for life or years) sit- uated in said town of , and bounded and described as follows, viz. (describe the land), containing by estin acres, and thereupon I applied to C. D. the within named creditor, who appointed R. R., and I also applied to A. B. the within named debtor, who appointed L L., and the said creditor and debtor agreed upon and appointed O. P., all indifferent freeholder? of said town of , to ap- praise and value said land ; [or the debtor neglecting and refusing to appoint or agree on one or more appraisers, I applied to J. P. justice of the peace for said county of residing in said town of , and by law qualified to judge between said parties, who designated L. L. and O. P., all indifferent freeholders of said town of , appraisers, to appraise and value said land : and the said J. P. justice of the peace administered to the said R. R., L. L. and O. P. the oath by kw in such case provided ; and said apprais- ers, after viewing said land, did then and there apraise and estimate said land, at the sum of dollars, as the true and just value of the same, of which valuation they made a certificate under their hands, in writing, and on the same day 1 set off to said C. D. the whole of said described piece of land, in satisfaction of this execution, and of my fees and charges thereon ; (or they appraised and estimated said land at thirty dollars per acre, as its true and just value : whereupon I set off to the said creditor eleven acres there- of, bounded and described as follows : (here describe the part of the land set off) in full satisfaction of this execution, & of my fees and the charges thereon ; ;uid on the day of I caused this execution to be recorded in the records of lands of the town of , within which said land lies. Attest. M. S., Constable. [Although not absolutely necessary, it is most safe and correct, that the T o*tice should make a certificate of the administration of the oath and of the appointment when mude by him, on the execution ; find also that the ;i]' ers should make a certificate of their valuation therein.] H county, ss. H , day of A. D. Then 1 administered to R. R.. L. L. and O. P. the above named appraisers, the oath by law provided for appraisers of 1 md on execution ; [or where the justice makes an ap- pointment also :] Then, on application of M. S. constable, I appoint L. L. and O. P. both indifferent freeholders of sr.irl +own of appraisers, to appraise and estimate, with R. R. appointed by the above named creditor, the land above described, and then and there administered to the said L. L., O. P. and R. R. the oath by law provided for appraisers of land on execution. J. P. Justice of the Peace. We, the subsbribers, freeholders, of the town of hav- ing bee<- -iprointfd and sworn as above specified, to rip- praise the above described piece of land, to be set off on 260 said execution, did appraise the same at the sum of per acre, as the true and just value thereof. R. R. L. L. O. P. Received the day of A. D. and recorded in the book of the records of lands of the town of Items of fees. C. C. Register. Where lands belong to the debtor as tenant in common. By virtue hereof, on the day of at his usual place of abode, I made demand of the within debtor of the debt due hereon, and of my fees, which he neglected to pay, and afterwards 1 made diligent search for goods and estate of the said debtor whereon to levy, to satisfy this execution, but could find none within my precincts ; for want where- of, and by the direction of the creditor, I levied this execu- tion, on all the right, title and interest the said debtor had in a certain piece of land situated in said town of con- taining by estimation acres, and bounded and described as follows : [here describe and bound the premises] the same belonging to the said debtor as tenant in common with J. S. and R. N. in equal shares, and thereupon the said creditor appointed A. B. and the said debtor appointed C. D. both indifferent freeholders, of said town of to ap- praise and estimate the right and interest of said debtor in said land, and the said creditor and debtor being unable to agree on, or appoint another appraiser, I applied to J. P. one of the justices of the peace of said town of qualified to judge between said parties, who appointed E. F. an in- different freeholder, of said town of another appraiser of the right of said debtor in said land ; and thereupon the said justice, J. P. administered to the said A. B., C. D. and E. F. the oath by law provided for the appraisers of land on execution, and having viewed said land, said appraisers did then and there appraise and estimate the right, share and interest of the said debtor, being the undivided third part thereof, at the sum of five hundred dollars, as the just and true value thereof, and did certify the same under their hands in writing ; and this execution, costs and charges, amounting to the sum of two hundred thirty dollars and fif- 261 ly cents, I thereupon set off to the creditor herein, such part or proportion of the said debtor's share, right and in- terest, as two hundred thirty dollars fifty cents bear to five hundred dollars, the amount of his whole interest as valued by said appraisers, in full satisfaction of this execution, and of all charges and fees thereon. And on the day of I caused this execution, and the endorsement of ray said do- ings thereon, to be recorded in the records of land of the town of within which the said land lies. Attest. M. S. Constable. Items of fees. The certificate of the justice of administering the oath, will be the same as the preceding ; and the certificate of the appraisers the same, except that instead of stating they ap- praised and estimated the land, at such a sum, they should state that they appraised and valued the right and title and interest of said debtor in said land, being an undivided third part or share thereof, owned by said debtor in common with J. S. and R. N. as tenants in common, at the sum of five hundred dollars, as its just and true value. Where a levy is made on mortgaged premises , State the demand, &,c. the same as the preceding: and for want of goods, whereof to satisfy this execution, and by direction of the creditor, I levied the same on all the right, title and interest the said debtor had in and to a certain piece of land situated in said and bounded as follows : and containing by estimation acres, being a right or equi- ty of redemption in said premises, the same having been mortgaged by said debtor to R. S. by deed, bearing date the day of for the security of the sum of three hun- dred dollars and the interest, amounting at the time of said levy to the sum of three hundred fifty-five dollars and fifty cents, and thereupon the said creditor appointed A. B. and the said debtor refusing to appoint or agree on one or more appraisers, I applied to J. P. justice of the peace for the county of H in said town of and qualified to judge between said parties who designated and appointed C. D. and E. F. all indifferent freeholders of said town of ap- praisers, to appraise and value the equity of redemption in said premises, or his right and interest therein, subject to 262 said mortgage, and the said justice J. P. then and there adr ministered to the said A. B., C. D. and E. F. the oath by law provided for appraisers of land on execution, and hay- ing viewed said premises and ascertained the amount of said mortgage debt, said appraisers did appraise and estimate said equity of redemption, or the right and interest of said debtor in said premises, subject to said mortgage, at the sum of two hundred dollars, and said execution, the charges and fees thereon, amounted to the sum of one hundred twenty- five dollars and twenty-five cents, whereupon I set off to said creditor such part or proportion of the said equity of redemption, or said debtor's right and interest in said de- scribed premises, as one hundred twenty-five dollars and twenty-five cents bear to two hundred dollars, the amount ofhis whole interest therein, as valued by said appraisers, in full satisfaction of this execution and of all charges and costs thereon. And on the day of 1 caused this exe- cution, and the endorsement of my doings thereon, to be re- corded in the records of lands in the town of within which said land lies. Certificate of Justice, same as in other cases. Certificate of Appraisers. We, the underwritten freeholders of the town of having been appointed and sworn as aforesaid to appraise and estimate the equity of redemption or right and interest of the above named debtor in the mortgaged premises above described, subject to said mortgage debt, amounting to three hundred fifty-five dollars fifty cents, did estimate and ap- praise the same at two hundred dollars, as its just and true value. Where there has been a previous levy of an execution, the debtor's equity of redemption, or right and interest in the mortgaged premises must be appraised, not only subject to the mortgage debt, but also subject to the amount of the prior execution levied thereon, and the same stated in the officer's endorsement and the certificate of the appraisers. 2. Of return on execution issued on foreign attachment. H county, ss. H , day of A. D. Then, by virtue hereof, and by the direction of the cred- 263 itor, I made demand of A. B. described in the original writ as the agent, factor, trustee, attorney and debtor of the within named debtor, and with whom a copy of said writ was leit in service, of goods and effects of the debtor herein, in his hands, whereon to levy, to satisfy this execution and the fees thereon, and also of the moneys and debt or debts due from him to the within debtor, but the said A. B. neglected and refused to expose the goods or effects of said debtor in his hands, and to pay to me, to apply hereon, the moneys or debt due from him to the within debtor ; and I also made diligent search for goods and estate of the within named debtor throughout my precincts, whereof to satisfy this ex- ecution, and also for his body, but could find neither, wherefore I return this same execution wholly unsatisfied. If there are more garnishees than one, demand must be made of each, and so stated in the return ; and if any goods are turned out or exposed, it is the duty of the officer to take them, although insufficient, when the debtor is not within his precincts. If goods are levied on, they will be sold the same as in other cases, and return made accord- ingly. 3. Return onexecution against an executor or administrator. By virtue hereof, I made diligent search for goods and estate of the deceased mentioned within, throughout my precincts, whereon to levy, to satisfy this execution, but could find none ; I also made demand of A. B. the within named executor of the last will of said deceased, of the con- tents of this execution, which he neglected to pay, and also to expose goods of the deceased, in his hands, which he re- fused to do ; wherefore I return this execution wholly un- satisfied. On an execution against a corporation, the officer will state in his return that he levied on the goods of the within named corporation, &c. except executions against towns and societies, when he will say that he levied on the goods, naming them, of A. B. a legal inhabitant, and resident ofthe within named town of &c. 4. Of return on execution in ejectment. By virtue hereof, I have caused A. B. within named, te 2G4 have seisin and possession of the within described premis- es ; and have received of the within named C. D. the sum of dollars, the amount of damages and costs of this exe- cution, and also the amount of my fees. If the damages and costs are not paid, he must collect the same as in other ex- ecutions. Another. 1 hereby certify that no one on the part of the within named A. B. came to shew me the within described premis- es, and therefore I could not cause the said A. B.to be put into possession and seisin of the same as herein commanded, 5. Of Supersedeas. I hereby certify that after this writ was delivered to me to execute, and before I had commenced the execution of the same, 1 was duly notified that a writ of error in due form had been issued for the reversal of the judgment on which this execution was issued, by a copy of said writ of error being left with me by C. D. deputy of the sheriff of with his proper endorsement or certificate thereon made and attested ; by reason whereof I could not execute this writ as herein commanded. CHAPTER VII. ttF RETURNS ON WARRANTS FOR THE COLLECTION OV TAXES. When a warrant for the collection of taxes is levied on goods or the body, the return is the same as on execu- tions, but where land is levied on, the proceedings, and consequently the return is entirely different. IVJicrc /a or/ is levied on by a tax warrant. By virtue of this warrant. I notified A. B. one of the in- habitants of the town of H named in the schedule or rate bill hereunto annexed, that I would receive his said tax at in said town of on the day of and gave him reasonable warning and opportunity to pay his said tax, contained in said rate bill ; and said A. B. having neglected and failedto pay the same, and finding no goods or chattels Ml afthe said A. B. within said town of on the day of J levied this warrant on two acres of land of the said A. B. situated in said and thereupon advertised and gave no- tice in a newspaper printed in hi called the ' Times,' within the same county where said land lies, that so much thereof would be sold at the public inn of C. D. in said H at public auction, as would pay the said tax of A. B. and all costs and charges, on the day of at o'clock ; and which said notice was published in said newspaper three weeks successively, at least six weeks before said time of gale ; and on said day of I accordingly sold at the place aforesaid, at public auction, to R. S. one half of an acre of said land, for the sum of dollars and cents, he being the highest bidder therefor, said sum being the amount of the "said A. B.'s said tax, and the costs and charg- es, and then and there 1 set out to said R. S. the land so sold by metes and bounds, which are as follows : [here bound the land sold] and thereupon I executed to the said R. S. a deed of warranty of said half acre of land, containing the boundaries thereof as aforesaid, in conformity to the statute in such case provided. Items of fees. M. S. Constable. Where land is levied on which has been transferred. State the notice of time and place, &c. same as the pre- ceding : and being unable to find any goods, chattels, lands, or any estate whatsoever, liable to be taken of the said A. B. I levied this warrant on a certain piece of land situated in containing about four acres, and which belonged to the said A. B. when the list was made up, on which said tax arose, and said tax was payable on the day of less than one year preceding said levy ; and thereupon I advertised and gave notice in a newspaper called the printed in H within the county wherein said land lies, that so much thereof would be sold, &c., the same as the preceding, A levy for a state tax cannot in any case be made more than two months previous to the time the tax is payable ; and a levy cannot be made on land which has been sold, transfer- red or attached by a creditor, but within one year after the tax becomes payable ; but lartd which has not been trans- ferred, may be taken and sold at any time. 23 56G Deed of Land sold for town Taxes. To all people to whom these presents may come, Greeting : Know ye, that whereas, on the day of A. D. a tax of cents on the dollar, was voted and granted by the in habitants of the town of then regularly assembled, oa all the inhabitants of said town liable by law to pay taxes, on the list made up for the year and thereupon the se- lect-men of said town made out a rate bill, containing the names of the said inhabitants, and the proportion each was to pay of said tax, which said rate-bill with a warrant there- to annexed, duly issued and signed by J. P. justice of the peace for said county, and in due form of law, was put into my hands to levy and collect, agreeably to the direction in said warrant, 1 having previously been appointed collector (or one of the collectors) of said tax ; and A. B. one of the persons named in the rate bill or list annexed te said war- rant, having failed to pay his proportion of said tax, al- though notified of a time and place for the payment of the same, and proper warning and opportunity given him there- for, and for want of personal estate of said A. B. whereof to levy said tax, on the day of I levied this warrant on a certain piece of land of the said A. B. situated in said town of containing about four acres, and thereupon ad- vertised and gave notice in a newspaper printed at H called the Times, within the county where said land lies, that so much of said land would be sold at auction on the day of in said town of at the tavern of as would be sufficient to pay said tax and the costs and charges ; and which notice was published in said paper three weeks suc- cessively, at least six weeks before said day of sale ; and on said day of sale, by virtue of said warrant, and in pursuance of said notice, I sold at public auction, to C. D. one half acre of said land, for the sum of dollars and cents, be- ing the amount of said A. B.'s said tax, and the costs and charges thereon, and bounded and described as follows, viz. [here bound the land.] Wherefore, by authority of said warrant, and by means of the premises, I, M. S. collect- or of the tax aforesaid, in consideration of said sum of received by me of said C. D. do by these presents give, grant, sell and confirm unto him, the said C. D. and his heirs and assigns forever, the above described half acre of land, with all the privileges ad appurtenances thereof. .0 have and to hold the said sold and granted premises, uu- to his and their proper use and behoof forever ; and 1, the said collector, do by these presents bind myself and my heirs forever, to warrant and defend the above sold and granted premises unto the said C. D. his heirs and assigns, against all claims and demands whatsoever. In witness whereof, I have hereunto subscribed my name and office, this day of A. D. M. S. collector of the town tax of the town of made on Signed, sealed, and deliv- ) the list of the year of ered in presence of $ H county, ss. H , day of A. D. Personally appeared, M. S. collector of the above descri- bed tax, and signer and sealer of the foregoing instrument, and acknowledged the same to be his free act and deed be- fore me. J. P. Justice of the Peace. Deed in case of sale on state Tax. To all people, &c. Know ye that, whereas I, M. S. constable, of the town of on or about the day of was appointed in and for said town, collector of a tax granted by the general assembly of this state, at their session in May, A. D. , on the list of , being cents on the dollar, on said list ; and on or about the day of 1 received from I. S. treasurer of said state, a warrant, by him signed, dated the day of and in due form of law directed to me, commanding me to levy and collect said tax of cents on the dollar on said list, of all the inhabitants of said town of H amounting in the whole to the sum of dollars, and pay the same into the treasury of said state by the day of A. D. ; and A. B. one of the inhabitants of said town, having neglected and failed to pay his proportion of said tax, although he was du- ly notified of a time and place to pay the same, and had proper warning and opportunity so to do, and for want of personal estate of the said A. B. whereof to satisfy said tax, I levied this warrant on a certain piece of land, containing about acres, and thereupon advertised the same, &c. fthe same as the preceding). Where the land has been transferred. State the levy as follows : and for want of any estate, per- sonal or real, of the said A. B. whereof to satisfy said tax. n the day of A. D. ,1 levied this warrant on fi certain piece of land situated in and containing about acres, belonging to the said A. B. at the time said list wafe made up, and which said levy was made within one year af- ter said tax became due and payable, and thereupon, &c. General return on Tax Warrant. By virtue of this warrant I have levied and collected oi the several inhabants of the town of whose names are contained in the list hereunto annexed, the amount of the tax specified herein, and such part or proportion thereof oi "nch. as is specified in said list. CHAPTER VIII. F THE SERVICE OF CRIMINAL PROCESS. A Constable is the proper officer to execute the warrants of justices of peace in criminal cases ; but a justice can di- rect a warrant issued by him, to the sheriff, or either of his deputies, of any county in the state, who can serve and re- turn the same, or the Constables of any town in the state, or to an indifferent person by name, who may serve the same in any part of the state (a). But a justice can only grant a warrant for crimes committed within his county ; nor can he issue a warrant, directing the person arrested (o be brought before a justice of the peace of any other county, or to bring him before the same justice, at a place out of his county ; and a Constable cannot safely execute a warrant of that description ; nor any warrant where it appears upon the face of it, the justice has no jurisdiction to order the person brought before him for trial, or encfuiry, as the case may be ; as where the crime is charged as hav- ing been committed out of the county or state. A warrant directed to a particular Constable by name, may be served (a) St. May se. 1822. in any part of the state, being the same as though directed to him as an indifferent person ; but if directed generally to any Constable in the state, no one could serve it out of his precincts. If a Constable refusess to execute a lawful war- rant directed to him, it is a criminal offence. A general warrant to apprehend all persons suspected of having com- mitted a particular crime is void ; and a warrant command- ing the officer to search all suspected houses or places for stolen goods, is also illegal, and any act done under either, would subject an officer to be sued as a trespasser. War- rants are either issued upon complaint of an informing offi- cer, to arrest a person charged with a crime, search war- rants to search for stolen goods and arrest the person charg- ed, or warrants to carry into effect a sentence, or for com- mitment after judgment. 1. An arrest on a warrant is made in the same manner as on civil process, an actual touching of the person being ne- cessary to constitute an arrest, unless he submits to the au- thority of the officer without. There is one important dis- tinction, however, between criminal and civil process as to arrests, as an officer cannot break open doors to take a per- son on civil process ; but when a warrant is granted on a complaint for a crime, the officer has power to break open doors if necessary, to arrest th criminal, after having signi- fied the cause of his coming and requested admittance. If that is refused, he is justified, and it is his duty to break open doors to make an arrest. An officer is not bound to show the person his warrant, although he demand a sight of it ; but he ought to inform him that he arrests him by vir- tue of a warrant, and acquaint him with the substance of it (d). Where an arrest is made without a warrant, which is unlawful, a warrant being granted afterwards will not make it lawful. Strictly, an officer cannot permit a person arrested on a warrant to go at large on his promise to re- turn, and by the common law he could not be arrested again by authority of the same warrant, as it is considered a voluntary escape ; but it has been decided in this state, that where a person is arrested on an execution, and permitted to go at large by the officer, this is not a voluntary escape, and that he may be retaken and committed during the life (d) 6 Co. 54, 23* 270 of the execution, which will justify the officer. The prin- ciple of {his decision has not been sanctioned by the court of errors, but if it is considered as settled law, in this^tate, it would seem by parity of reason, that the permitting a person arrested on criminal process to go at large, on his promise to return, would not be a voluntary escape, and that the officer might be justified in retaking him. If a person arrested on criminal process, and permitted to be at large, voluntarily return, according to the common law the officer may detain him on the same warrant and bring him before the court, agreeably to the command in the writ. A Con- stable may command all necessary assistance to execute a warrant ; if he is assaulted, he need not retreat as a private person should do ; and if in striving together he kill the as- sailant, it is no felony, but if the Constable be killed, it is murder (e). And those who come to the assistance of a Constable, who is assaulted or resisted in the execution of his office, whether commanded or not, are entitled to the same protection of the law as such officer. 2. Search warrants must contain a description of the goods alleged to have been stolen, and of the place to be searched. The constable must search the place or places described, and seize the goods, if they can be found, and also arrest the person charged with having stolen and se- creted the goods, and have the same and the person, forthwith before the justice named in the warrant. After stating the object of his coming and requesting entrance at the building where he is commanded to make search, the officer may break open doors if he is refused admit- tance ; and after entering he may break the locks of chests or trunks, to examine them, if they are refused to be open- ed on request ; but if he commit any unnecessary violence, or any act of indecency towards any person belonging to the house, he will not be justified. The officer is to take the complainant with him to point out the place and goods, and assist in making search. Where it does not appear from the warrant and the complaint that the goods had been stolen, and the complainant suspected they were concealed at a particular place and stolen by a par- ticular person, it will be void, and the officer executing it () 10 Co. 68. 271 will be guilty of a trespass (rf). If it states that the com- plainant suspects a particular person of having stolen the goods, and sundry other persons, or that he suspects that they are concealed at a certain place in a particular town, or some other house in the same town, and commands the officer to search the place described, and all other sus- pected places, and to arrest the persons suspected ; the proceeding is corurrt non jvdice, and not only the officer who executes the warrant, but the justice who issued it is liable in trespass to the party injured (e). 3. Warrants issued after judgment, are either for the commitment of the prisoner in consequence of his non- compliance with the judgment, or inability to procure bail in case of binding over, or to carry the sentence into effect. A warrant of commitment, commonly called a mittimus, is either directed to an officer commanding him to convey and deliver the person named, to the keeper of the gaof, and leave with such keeper a copy thereof, and also command- ing such keeper to receive -and detain such prisoner with- in the prison ; or it is directed to the keeper commanding him to receive into his custody and safely to keep the prisoner until discharged by due course of law. In the latter case the officer delivers the prisoner to the keeper, and also the mittimus ; but in the former case, he mu?t leave a copy of the warrant or mittimus with the keeper and of the endorsement on the original, which strictly should be returned to the justice like other writs ; but this is not usually done. Warrants to enforce the sentence of a justice are either to distrain or levy a fine and costs, to inflict a corporeal punishment, or to commit the prisoner to gaol, where that is a part of the sentence, as it now may be in a few cases. A warrant of distress commands the officer to distrain and levy of the goods, chattels and lands of the prisoner, to satisfy the fine and costs mentioned therein, and for want thereof to take his body and commit the same to prison. If he can find goods he must take them and dispose of them in the same manner as on execution, and service is to be made in the same way. A warrant for the infliction of cor- (d) 1 Conn. Rep. 40. (e) id. 272 poreal punishment should be executed forthwith. All war rants for carrying into effect a sentence of a court should he duly returned, with a regular endorsement of the do- ings of the officer thereon, that it may appear from the re- cords and files of the court that the sentence had been per- formed, and also for the safety of the officer. When how- ever, there is a legal judgment and a proper warrant issu- ed, in pursuance thereof, an officer would probably be justified in any act done in obedience to the direction of such warrant, although no return had been made ; but it is most safe and proper that a regular return and endorse- ment should be made, as on other process. A mittimus must contain a recital shewing the cause of the commit- ment, and warrants to enforce the sentence of a court, must recite the judgment on which they are founded. CHAPTER IX. OF RETURNS ON CRIMINAL PROCESS. On complaint and warrant. H county ss. H " day of A. D. ; then by vir- tue hereof I arrested the body of the withiu named A. B. read this process in his hearing, (or acquainted him with the substance of this process) and him have herein court. M. S. Constable. Where the delinquent cannot be found. By virtue hereof I made diligent search for the within named A. B., but he has not been found within my pre- cincts. On search warrant. Then by virtue hereof, accompanied by the within nam- ed complainant I repaired in the day time to the house de- scribed in this warrant, and therein made search for the within described goods, I found the same concealed in said building and seized the said goods, and thereupon I arrest- ed the said A. B., acquainted him with the substance of this process, and have him, and also said goods, here in court. 273 Although' the goods are not discovered the officer must arrest the person charged, if he can be found ; and if the goods are seized and the person accused cannot he found, or escapes out of the officer's precincts, so that he cannot be arrested, the officer must return the process and the goods to the justice, to whom the same was made returna hie, and make his endorsement acccordingly. Where the goods cannot be found, fyc. Then by virtue hereof, accompanied by the within nam ed complainant, in the day time, I made diligent search in the building mentioned herein, for the goods described in this warrant, but could not find said goods ; and by virtue hereof, I arrested the body of the within named C. D., acquainted him with the substance of this process, and kim have here in court. On a mittimus. Then by virtue hereof I conveyed the within named A. B. to the gaol in , in said county, and delivered him into the custody of the keeper of said gaol, and left with said keeper a true and attested copy of this mittimus, and of my endorsement thereon. On warrant of distress. By virtue hereof I distrained and seized a silver watch, the property of the within named A. B., and disposed of the same at public auction, at the sign-post in , on the day of , according to law, legal notice of said sale having been previously given, by posting up the same on said sign-post, and for which property I received the sum of dollars, and the within fine and costs, including my fees and charges, amount to the sum of , leaving an overplus of , which 1 returned to the said A. B., and I paid the said fine and costs to the within justice J. P. to be disposed of according to law. Another, Then by virtue hereof and for want of goods and estate of the within named A. B. whereof to make distress, \ took his body and him conveyed to the gaol in , in and 274 for said county, and him delivered into the custody of the keeper of said gaol, within said prison, to be kept until delivered by due course of law, and left with said keeper a copy of this warrant and of my endorsement hereon. On a warrant for inflicting corporeal punishment, fyc. Then by virtue hereof I conveyed the within named A. B. to a suitable place in said , (or to the public sign-post) and then and there inflicted upon his naked body ten stripes, and thereupon for want of goods and estate of the said A. B., whereof to distrain for the within fine and costs, (or within costs where there is no fine) I conveyed the said A. B. to the gaol in in and for said county, and de- livered him into the custody of the keeper of said gaol within said prison, and left with said keeper a copy of this warrant, and of my endorsement thereon. EX-OFFICIO RETURNS. For breach of Sabbath. H county ss. H day of A. D. ; I A. B. constable of said town of , appear before J. P. justice of the peace for the county of , and inform and return on my oath of office, that on the day of , being sab- bath or Lord's day, E. F. and G. H. both of said , and sundry other persons to me unknown, in profanation of the Lord's day were engaged in divers amusements, in ;;id town of , and then and there in my presence and view, the said E. F. and G. H. with the said persons to me un- known, were playing ball, contrary to the form of the statute in such case provided and of evil example ; where- upon by authority of said statute I arrested the said E. F. and G. H. and them detained until said snbbath had expired, and them now have before your worship to be dealt with according to law. For drunkenness. County &c. I A B. constable of the town of appear- ed before C. D. justice of the peace, of , for the coun- ty of , and present and inform that E. F. of said town of , was this day found by me at said in a state of drunkenness and intoxication, whereby he was bereft of his 276 understanding which was apparent in his speech and be- haviour ; and which is contrary to the statute in such case provided and of evil example ; whereupon by virtue of said statute I arrested ihe said A. B. and him now have be- fore said justice C. D. to be dealt with as to law and jus- tice shall be found appertaining. For profane swearing. County of &c. I A. B. constable of said town of come before C. D. one of the justices assigned to keep the peace in said county of and present and inform that on this day at one E. F. of in my presence and hear- ing, did wickedly and profanely swear by the name of God, and did utter and repeat the following profane oath and words : (recite the words) contrary to the statute in such case provided, and of evil example ; whereupon by virtue of said statute 1 then and there arrested the said A. B. and him now have before your worship that he may be dealt with agreeably to law. For a riot. County of &c. I A. B. constable of the town of come before J. P. justice of the peace for said county of and inform and return that on the day of at in said county, C. D., E. F. and G. H. and sundry other persons to me unknown, riotously and unlawfully assem- bled themselves together, with the intention 'against the peace and to the manifest terror of sundry good citizens of this state, and with force and arms to pull down and demol- ish, a certain building, then and there standing, the prop- erty of O. P. of said ; and being informed of said ri- otous and unlawful assembly, I repaired to the place, and then and there, in the presence and hearing of said C. D. E. F. and G. H., and other rioters, commanded silence, and then made proclamation in these words : " In the name and by the authority of the State of Connecticut, I charge and command all persons assembled immediately to disperse themselves and peaceably to depart to their habitations on their lawful business, on the pains and penalties of the law ;" and the said C. D., E. F. and G. H., and others, not regarding said proclamation, did not disperse themselves, but continued so riotously ^and unlawfully together after such proclamation had been made, contrary to the form of the statute in such case provided and against the peace : whereupon by authority of the statute entitled, " An act for the suppression of riots," I commanded assistance and arpested the said C. D., E. F. and G. H., and them held and now have before said justice J. P. that they may be dealt with agreeably to law. PART III. THE POWERS AND DUTIES OF SELECT-MEN, TOGETHER WITH FORMS, &c. CHAPTER I. Of the powers and duties of Select-Men. As all the duties of Select-men are pointed out by statute, and are in general very plain, and as there have been few decisions of our courts in any way affecting them ; and as they afford little occasion for legal forms, it was not our intention originally to have devoted but a small proportion of this work to a consideration thereof; and the two first parts of it having been extended to greater length than was expected, we shall be obliged to confine ourselves to a concise examination of some of the most important du- ties of Select-men. Each town in the State is required at theirannual town meeting each year, to appoint a convenient number, not exceeding seven Select-men, to take charge of the pruden- tial concerns of such town. Annual town meetings are to be holden in the months of October, November, or December, and it is the duty of the Select-men to cause such meet- ings to be warned by a notification in writing, signed by them or a majority of them, specifying the objects of such meeting, which must be posted upon the several sign-posts of the town. The statute provides that this shall be suffi- cient warning, but it is not the only mode of warning ; and if a town meeting is warned by the constables, as the inhab- itants would have actual notice, the warning would be le- gal ; and a vote of the town designating a time when their town meetings shall be held would probably be sufficient warning. At any annual town meeting the inhabitants may determine on any other place or places, at which warnings shall be posted up, in addition to the public sign-posts. 24 Any town meeting may adjourn from time to time, as may be necessary. Special town meetings may be called when- ever the Select-men deem it necessary, or on the applica- tion of twenty inhabitants qualified to vote in town meet- ings. The voters in town meetings are the electors or freemen, and persons of twenty-one years of age, posses- sing a freehold not subject to a mortgage, rated in the com- mon list at nine dollars, or personal estate rated in the list at one hundred and thirty-four dollars, exclusive of their polls, and who have statedly resided in the town one year. If any person not qualified, votes or intermeddles in any town meeting, he incurs a forfeiture of seventeen dollars to the treasury of the county. No town officer can be chosen at a special meeting except in case of vacancy by death, removal, or refusal to accept of some person appoint- ed at an annual meeting. The office of Select-men is peculiar to New England, and i* probably as ancient as the first settlement of the country. They were originally called Townsmen, or the Town's - men, as appears from ancient records ; and their duties were formerly much more extensive than at present, as in addition to taking care of the general concerns of the town, they ex- ercised a minute inspection and superintendance of the morals, manners, and private affairs of the inhabitants there- of. No specific qualifications are required for the appoint- ment, and any inhabitant or resident, may be a Select man. They take no oath of office, neither is there any oath re- quired or administered to voters in town meetings. 1. The general powers and duties of Select-men relate to the management and superintendance of the ordinary interests and affairs of the town. It is provided by statute that they shall superintend the concerns of the town, and adjust and settle all accounts against the same, and draw order? on the treasurer thereof for payment, and that they shall keep a true and regular account of all the expendi- tures of the town, and exhibit the same at the annual meeting next following their appointment (a). Their general authority however, as Select-men, does not ena- ble them to act as agents of the town, either to commence or defend in a suit in behalf of .the town, or to employ an (a) St. 458. 279 titorney, but for this purpose the town must appoint an igent to appear for it, or to engage counsel (6). It is their duty immediately after the annual town meet- ing to cause all persons who have been appointed to town bffieea to be summoned to appear before some justice of the peace of the town, and take the oaths prescribed by law for their respective offices. This is necessary that it m, iy be known whether the persons chosen accept or not, so that if they refuse, others may be appointed to supply the vacancies. 2. They superintend the collection of taxes, and in cer- tain cases may assess the inhabitants. When any tax is voted or granted by the town, it is the duty of < the Select- men to make out a rate bill, containing the proportion which each inhabitant of the town and non-residents having taxa- ble property in the town, is (o pay according to his list. AH town taxes are to be granted upon the last assessment list, which has been completed according to law. If any town refuses or neglects to grant a tax sufficient to defray the necessary expenditure of such town, after being in- formed by the Select-men of the necessity and want of such supply, the Select-men are empowered to assess the inhab- itants, and make out rate bills on their lists in the same man- ner as where a tax is granted by the town. But they cannot assess the inhabitants in any other way, or on any other principle, than according to the general assessment list. Whether the tax is granted by the town, or an assessment made by the Select-men, their rate bills must be signed by them, or a majority of them ; and in either case, they must apply to a justice of the peace of the county and obtain a warrant annexed to such rate bills, and deliver the same into the hands of the collectors to collect such tax and pay the same into the town treasury by the time appointed, All taxes whether imposed by the town or Select-men, must be granted upon all the inhabitants of the town accord- ingto their assessment lists, and afterwards the Select-men and civil authority may abate the proportion of such tax belonging to the indigent and unfortunate ; they are also authorized to abate the particular rates of poor and unfor- tunate individuals in case of state taxes, but if such abate (6) St. 132. ments exceed one eighth of the proportion ol't-uch tax, be longing to the town, the excess must be made up by the town. If -any collector of a town or state tax die, or refuse tc receive his rate bill, or shall before he has completed the collection of any tax, deliver up his rate bill, into the hands of the Select- men, they are empowered to depute some proper person to collect the whole, or what remains un- collected of such tax, and such collector shall have the. same powers as other collectors, and be responsible for what there was due on said tax when such rate bill was de- livered to him. In such case the Select-men ought to as- n the amount due and uncollected on said tax bill r.ch person is deputed, otherwise they will not know Miuch he is to account for: they must also obtain a arrant, or procure the justice who issued the first . r the direction, and direct it to the person deputed ; Select-men. The Select-men are to see that all uid state taxes are collected and paid into the treas- :ry according to law. If the collector of any town tax ,hall neglect or fail to collect and pay the same by the time limited, it is the duty of the Select-men to demand the ar- rearages of such collector, and on failure of payment, thev must apply to a justice of the peace for an execution against him for the amount of such arrearage, and such justice is empowered to grant the same. If the collector of am r state tax shall fail to collect and settle with the state treas- urer for the same by the time appointed, the Select-men are authorized to commence a suit against such collector in the name of the town to recover what remains unpaid of such tax ; and the whole estate of such collector at the time of the commencement of such suit is holden for thf same. Form of Execution against a Collector. To the sheriff &.c. Whereas on the day of the town of in lawful town meeting assembled, granted a tax of cents on the dollar on the list of the y^ar on all the inhabitants of said town, payable on the day- of A. D. ; and whereas A. B. was at said meeting appointed a collector (or one of the collectors) of said tax ; and the Select-men having made out a rate bill, or bills under their hands, specifying the proportion each in- 281 habitant of said town was to pay of said tax, and obtained a warrant in due form of law directed to said A. B. annex- ed to said rate bill (or one of said rate bills where there is more than one collector) him commanding to levy and collect of the several persons named in said rate bill, their proportion of said tax, as specified in such rate bill, and pay the same to the treasurer of said town, on or before the said day of A. D. ; and the said collector hav- ing neglected and failed to collect and pay over said tax, (or such part thereof as was contained in said rate bill) by the day the same was payable, the Select-men of said town on the day of made demand of said negligent collector for the arrearages of said tax amounting to the sum of dollars and cents, which he neglected and refused to pay, whereupon the said Select-men made ap- plication to J. P. justice of the peace for the county of for an execution against said collector for said arrear- age of said tax : Wherefore, by virtue of the statute in such case provided, and by the authority of the State of Connecticut, you are hereby commanded, that of the goods, chattels or lands of the said A. B within your precincts, you cause to be levied, and the same being disposed of or appraised, as the law directs, paid and satisfied unto the treasurer of said town of , the aforesaid sum of dollars and cents, with seventeen cents more for this writ, and also for your fees. And for want of such goods &,c. (the same as in other executions.) 3. The Select-men are overseers of the poor, and it is their duty to provide necessary food, clothing, firewood, and other articles necessary to their subsistence, for all paupers belonging to the town, and to draw orders on the treasurer therefor ; and to exhibit to the town an account of such expenditure when required (c). This is the most important branch of the duties of Select-men, and should be discharged with a proper regard to economy or the in- terests of the town, and the claims of humanity in behalf of the indigent, the distressed, and the wretched ; of whom, if many are the victims of intemperance, idleness, and vice, some at least are the subjects of misfortune, sickness and adversity. The paupers of a town are subject to the (c) St. 370. 24* 282 orders and authority of the Select-men, who may remove them to such places in or out of the town, and provide for them as they please, subject to the direction of the town. The paupers are entirely dependent on the Select-men, for no person is entitled to pay, for any supply furnished to a pauper contrary to the express direction of the Select-men ; nor in any case for any thing furnished to a pauper before notice is given to one or more of the Select-men, where such pauper resides, of his condition ; but after such no- tice, if the Select-men neglect to take care and provide for such pauper, such person may furnish him with ne- eessaries, which must be paid for by the town where such pauper resides, unless the Select-men gave such person express orders not to furnish such necessaries. The Select-men are not only to oversee and provide for the paupers of the town, but likewise for paupers, or per- sons residing within the town who are so poor as to be un- able to support themselves, although not inhabitants of such town. If the Select-men of any town have knowledge of any person residing in such town not being an inhabitant thereof, who is unable to support himself, and is in want of supplies for his subsistence, and shall neglecf to furnish the same, for every such offence, each Select-man forfeits the sum of seven dollars to the person who may prosecute for the same. It is singular that there should be a for- feiture for not providing for paupers not belonging to the town and none for neglecting to provide for those that do belong to the town, although if they decline furnishing sup- plies and forbid others doing it, a pauper must starve, un- less subsisted by charity. Where a pauper belonging to one town, is in another town and becomes chargeable, the Select-men of the latter town must give notice to the town to which such pauper belongs, of his condition, within five days after they ascer- tain the town to which he belongs, if such town is within twenty miles, and in other cases in fifteen days ; and where the Select-men have knowledge of the town to which such pauper belongs, and shall neglect to give notice within the periods aforesaid, such {own shall not be liable for any expense for the time of such neglect ; and such town shall not be liable to pay at a greater rate than one dollar per week for the support of a pauper in lieu of all expense 6 283 Notice may be given by putting a letter, signed by one or more of the Select-men of the town where the pauper i-. into the mail, directed to the Select-men of the town where such pauper belongs, if there is a poet-office in such toxvn, otherwise directed to be left at the post-office nearest to such town ; such notice shall be considered a? having been given at the time the letter would be received by the or- dinary course of the mail (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 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