REPORTS O F ADJUDGED IN THE SUPERIOR COURT O I T State of Connecticut . FROM THE YE A R 1 785, TO MAY 1788; Vv" I T H SO M E DETERMINATIONS IN THE SUPREME COURT OF ERRORS. BY EPHRAIM KIRBY, ESQUIRE. LITCHFIELD: PRINTED BY COLLIER ^ ADANi M,DCC,LXXXJX, zttohc, ')\\ Sa t mVw\nM ^ai ,\ tavis PREFACE. H E uncertainty and contradiction attending the ju~ / dicial decijiuns in thisjlate, have long been fubjecls of complaint. The Jource of this complaint is cafily difcovered- When our ancestors emigrated hete, they brought with them the notions of jurisprudence which prevailed in the county from whtnce they came. The riches, luxury, and ex- tenjive commerce of that country, contra/led with the equal distribution of property, Jimplicity of manners, and agricuU tural habits and employments of this, rendered a deviation from the Englifli laws, in many inftances t highly necejjary. This was ob/erved and the intricate and prolix practice of the Englifh courts was rejected, and a mode of practice more Jimple, and better accommodated to an eajy andfpeedy admi- nijlratijn of jujlice, adopted. Our courts werejtill in a Jiate of embarraj/ment, fenfible that the common law of Eng~ land, " though a highly improved fyjlem," was not fully op~ plicable to our Jituation ; but no provifion being made to preferve and publijh proper hi/lories of their adjudications^ every attempt of the Judges, to run the line of dijlinclion t between what was applicable and what not, proved abortive : For the principles of their decifions were foon forgot, or mif- under/hod, or erroneovjly reported from memory. Hence aro/e a confujion in the determinations of cur courts ; the rules of property became uncertain, and litigation propor- tionably encreafed. In this fituation, fome legiflative exertion was found ne- c.effary ; and in the year 1785 an acl paj/ed, requiring the Judges of the Superior Court, to render written reafcnsfor their decijions, in cafes where the pleadings clofed in an iffite at law. This was a great advance toward improvement ; Jlill it left the bujinefi of reformation but half performed : For the arguments of the Judges, without a hijlory of the whole cafe, would not always be intelligible ; and they would become 2012307 iv PREFACE. become known to but few perfons ; and being written on loofe papers, wtre expo fid to be mi/laid, and / 0071 fink into total oblivion. Befides, very many important matters are deter- mined on motio-iis of various -kinds; where no written reafons are rendered, and fo are. liable to be forever lojl. Hence it became obvious to every one, that, ftioull hijlorits of important caufes be carefully taken and published, in which .the -whole proce/s fhoidd appear, Jhowing the true grounds and principles of the dtcijion, it -would in time produce a permanent fyjlem of common law. But the court being Am- bulatory through thejlate, the undertaking would be atiend- wth conjiderable expencc and interruption of other bufi- , without any profpefl of private advantage, ; therefore, no gentleman of the profejfionjeemcd willing to makefo great a facrijice. / had entered upon this bufinefs in a partial manner, for private ufe ; which came to the knowledge offe- veral gentlemen of dijlinclion. / zua? urged to pur/ue it more extenfively ; and being perfuaded that an attempt of the kind (hozoever imperfcB) might be made in. feme, degree Jubfervient to the great object, I compiled the Volume of Reports which is now prefcnted to the public. -Could any {ffort of mine induce government to provide for the prc/tcit- tion^of fo nccejfary a work by a more, able hand, my zui/kes would be gratified, and my labour in accompli/fling this, amply repaid. In thefe Reports, I have endeavoured to throw the matter into as fmall a tcmpafs a? was confident with a right under- Jlanding of the cafe : Therefore, I have notjlated the plead" ings or arguments of caunfcl further than zuas necejfary to bring up the. points relied on, except fomefew injlances which feemed to require a more lengthy detail of argument. As the work is designed for general ufe in this jtate, I have avoided technical terms and phrofa as much as p^jjibl-f* that it might be intelligible to all clajjes of men. Some cafes are reported which are merely local, and have reference to the peculiar practice of this ftatc thefe may appear unimpor- tant to readers in other jlatcs ; but they were neccj/ary to the great object of the work. I am PREFACE. \ I am fenfible that this production is introduced to the. world under circum/lances very unfavourable to its reputa- lion, Q u t however diffident I might be t under other cir- cumjtantesy I fed an honeft confidence in this attempt to ad- vance the common intereji of my fellow-citizens ; and'thai t fo obvious are the difficulties -which miijl occur in almojl every jldge of the bu]incf$> that to detail them in a preface would be offering an infult to the under/landing of my rtadcrs. The candid and generous, if they read theft Report,^ will doubtlefs find frequent occajion to draw into exercifc thofe excellent virtues ; and as to readers of an oppojitt difycjition, I have neither wjhts or fears concerning them. Jf anyone Jhould experience difagreeable fenfations, from the inelegance of this performance, let him reft ajfured he cannot more Jititerely regret its faults than I dv< HAVING perufed Mr. KIRBY'S " Reports of " Cafes adjudged in the Superior Court, from " the Year 1785 to May, 1788," it appears to us that the Cafes are truly reported. RICHARD LAV/, EL1PHALET DYBR, ROGER SHERMAN, WILLIAM PiTKIN, OLIVER ELLSWORTH. AN ALPHABETICAL TABLE OF THE f NAMES OF THE CASES. A- Pagt L DAMS v. Cleaveland 30' \ Adams v. Kellogg 195 and 43# Ainfworth, &c v. Allen 145 Allen, Sec. v. Hoyt 22 Anonimous 89 Apthrop v. Backus 407 Avery v. Wetmore 4$ Avery v. Kinfman 354 B. Babcock v. Janes 361 Backus v. Cleaveland 36 Backus, &c* v. Dennifon 421 Bacon v. Fitch 373 Bacon v. Taylor 368 Barker, &c. v. Wilford 232 Barnard v. Norton 193 Beach v. Adminiitrators of Hall 235 Beekman, &c. v c Tomlinfon 291 Beebe v.'TrafFord 215 Beers v. Strong 12 Beers, &c. v. .Strong and Wife 19 Benedict v. Brownfon 70 Bill v. Scotc 62 Bellows v. Williams, &c,. 166 B'iftlop v. Drake, &c. 37 8. Bpftwick v. Hawley 290 Boftwick v. Nickelion 65 Bradley, &c. v. Camp ' 77 Bradley v Hitchcock ' 23- Bradley, &c. v. Blodget 22 Brinley v. Avery , 25 Broom, ^c, v, Jennings, S^c. 392, Frown v.' Lord ;. ?9 fiael v. Me teal f 40, ffutkley v. Efderkin & BifiVl i 88 Bulfcley v. Richards 203 Bioniee v. Bunce 137 Burrows v. Fitch 113 Bugler v, Scoye! 352 C. Pagg Garter v. Bellamy " 7.91 Cak v. Caie Champion v. Mudrfbrd, &c. Chapman v. Alien Chapman & Griggs v. Wclli 133 CfiappeJ, fee. v. Brewtter Church ^.Bellamy Church v. the inhabitants of Nor wich i ^.o Church v. Thomfon 98 Clap v. Xitjckwood, &c. 100 Clark v. County of" Litchfieldjig Clark v. Mofej 143 Clark v. Bray 237' Cove v. Buii 1^.9 Coit v. Fitch 254. Coit v. Geer 269 Comes v. Prior 39^ Cooley v. Sanford 103 D. Dauchy v. Smith, &c. Deming v. Norton Deming v. IVlaifh Dennilon v. Raymond Dorr v. Chapman , Eidridge v. Lane, &c. | Eno v Cornifh Eno v. Roberts 'Fanning, Fellows v ico 397 424 274; 20: 75 296 393 Fitch v. Hall c. v. t.each Mack v, Parfons, ^c, MS 273 7 2 5S Marks v. Johnfon Page 228 Marith v SiCele 454 May and Wife v. Webfe 286 Mead v. Cogglhall 17 Merrils v. Adams 247 Mills y. fiifhop 89 Mills v.^ifliup'& "V^etmore 4 Minor v. Cook 157 Minor v. ErviogV Execgtors 158 Mortimer v. Catdwel!, &c. .5.3 Mouhhrop v. Bennet 351 Mumford v. Ayery i6j Msmicrd v. Wright, &c, i\. Nichols v. Hi.'her Nrcole v. Mumford Nofthrop v. Brufh, &C. Nott v. V/eUes Noyce v. Hunti-ngtoa i on A 219 276. 12 ; Olcfatt, O v. Graham, & P. Page v. Camp ! Palmer v. Seymour 11 i Paiker v. A very Parker v. Avery Parks v, Morgan Peck v. Goodwin Peck v. Jones Penis, &c. v. Warren Petus v. Dixon Phe!p>. y. Sanford *? t Phelps v. Phelps Phelps v. Swan, &c. Phenix v. Prindle Place v. Lvon r'owerf V- Liliie Punier ion v. Saaw r 1> Randall, Sec. v. York, 8?C. | Richards v. Way . rs v. H .mlT.-d ; &c. & Rufft 1 v Brown Rulfv. Wilion j 35 353" 353 '&? 426 179- 3*3 3 4 478 207 . 404 160 150 269 44 36* . Scott and Wife, in Error 36: NAMES OF THE GASES. Pagt 270 563 Scott v. Scott Scott v. Scripture Sholes v. Stoddard 163 Snow, &c. v. Antrim 174 South-Farms v. Beckwith 91 State v. Enos 21 State v. Stutfpn 52 State v. Green 87 State v. Lockwood 106 State v. Burrows 209 State v. Phelps 28.? State v. Thomfon 345- Sternr v. Spalding I 7 Stoddard v. Bird 65 Storer v. Hinkley, &C. 147 Storrs v. Wetmore 203 Strong's Cafe 34. Strong v. Barlow 3 6 Suffrein, &c. v. Prindle 112 Sumner v. Lymaa 241 Swan v. Butler 276 Symfbury Cafe 444 T. Taylor, &c. v. -Geary, &c. 313 Thomfon v. Church 212 Thomfon v. Wales, &c. Page 35 Tweedy v. Brufh 13 Tyler v. Cook 301 W. Waddell v. Shaw, &c. Waldo v. Mumford Wadfworth v. Sanford Webb v. May and Wife Welles and Wife, v. Olcott Welles v. Fowkr Wetmore v. Woodbridge Whiting & Frifbie v. Jewell Wickham v. Wateimuti Wight v. Mott, &c. Wilford, &c. v. Grant Williams v. Whit more Williams v. Leeds Wi liarns v. Miller & Joyce Wilfon, &c. v. Hinkley, cvc. Witter v. Brewiler Woodbridge v. Ray: Woodruff v. Whittle fey Woofter, &c. v. Pr-j-fons Woofter v. Parfons Woofter v. Simons 280 311 456 151 118 236 164 12 249 2~8 189 jf 9 27 no 89 C A S S ARGUED AND DETERMINED IN THE SUPERIOR COURT COUNTY O/LITCHFIELD, Feb. Term, 1786. RICHARD LAW, Efq. Chief Jujlicc> ELIPHALET DYER, Efq, ~ ROGER SHERMAN,'/fi'. WlLLIAMPlI,JE/f. OLIVER ELLSWORTH, Efq. WHITING and FRISBIE againft JEWEL." IN this cafe depofitions were offered by the defendant, which were taken in the com- taken* ouT of monwealth of Maffachufetts, more than twenty Jj 115 f ! ate ', n P" miles diftant from the plaintiffs' refidence, but JJ C nio the within ten miles of their known agent and at- adverfe p-- . , r i i -r i ty, or to hi* torney, neither 01 them being notified or pre- known a g ce fent at the caption. "SSK. It was objetled, that thefe depofitions were miles of the not fo taken as to come within the fpirit of the if p [ n ' pa a "^ itatute allowing affidavits to be made out of himfeif ' court; which is, that, " Forafmuch as it is * ( neceffary that witneffes in civil caufes be cc fworn out of court, when by reafon of their Sing to fea, living more than twenty miles he ?]? a ' lbs t/j-n. notified. " diftant a COUNTY OF LITCHFIELD, FEB. TERM. ^Tggf " diftant from the place where the caufe is to *= r< be tried, age, ficknefs or bodily infirmity, Whiting " they are rendered incapable of travet, and of F^fb' " a PP car i n at court. To the intent, there- avainlt " f re > tn at all witneffcs may impartially and jewel. '* indifferently teftify their certain knowledge, " and the whole truth in the caufe they are to * fpeak to; therefore, " Be it enatfed, &c. That for either of the cf reafons aforefaid, and not otherwife, every " Afliftant or Juftice of the Peace may take ' affidavits out of court; fo as a notification, " with reafonable time, be firft made out and " delivered to the adverfe party, (if within,;, <{ twenty miles of the place) or .left at the place *' of his dwelling, or ufual abode, to be prefent " at the time of- taking fuch affidavit,. "if he " think fit." BY THE COURT. In taking depofitions within this ftate, the ftatute requires notice to the adverfe party, if within twenty miles : As to thofe taken out of the ftate, which the ftatute in ftri6lnefs does not extend to, and. which can only be admitted on the ground of their being fo taken as to come fully within the equity of the ftatute; there ought to be notice to the adverfe party or to his known agent or attorney, if ei- . ther are within twenty miles of the place of caption; which not having been given in this cafe the depolition is not admiflible. jfudge SHERMAN, dijfknting. The adverfe party in this cafe lived more than twenty miles from the place of caption, and the ftatute does not in any cafe require notice to be given to an agent or attorney. COUNTY OF-LITCHMELD, FEB. TERM.- rfsi: HORSFORD and AGARD again/I WRIGHT. /Mien on the covenant of [elfin in a deed of bargain mi Vi^CT / / ** *>b j ^ ' '?m /#/ places it on the fame footing as if expreffed in the body of the declaration, be- caufe it becomes equally a part of the record, and makes the whole procefs confident. The replication adjudged inefficient and The j , , r . . * r , . . the lame pro- amend the deicnptive part of her writ, Baying ccfs as often coil. And, the P lan - i> r> * r r ' i, tia " amends, jbY THE COURT -Motion for amend- andth ci .ia>.- ment is unnecetiary: For the ftatutc, v;hich ^JS'^ enacts, " That when any plea, fliall be made in ienashcw:ii " abatement of any writ or procefs, before the pay thccolt * * iupenor or county court, or before any Af- f fittant or Juftice of the Peace, that if it be "ruled COUKTY OF LlTCttFlELD, FEB. TERM. ruled in favour of the defendant/ the plaintiff fhall have liberty to amend that dived oaUis Mills ' paying down to the defendant his cofts to y.y*J l " that time; and then .to proceed as he might a S P " have done if no fucb ^ efeft had been i" al - Wetraore. l ws tne plaintiff always to- amend his writ on paying coft : And if he doth not cure the defect by amendment, the defendant may again plead in abatement. LAWRENCE againjl KIKGMAN. Sc "a jlir- HPHE writ was direfted to an indifferent per- tice vho^if- A fon to.ferve and return, ad the authority d^ftedTo'an ^ nm ' li nac * infcrtcd'the common reafon, 'that indifferent no proper officer could be % had without great F*e,Bentfe expence." The defendant pleaded in abate- rio proper of- rnent, that the writ w T as dated a fufficient length feet cnn be " i r i r r i had without or tlmc before the time or iervice expired, to greatexpenfe have been ferved by a proper officer, with the andmconvc- ^ i j i r i nience, is ordinary expence only ; ana therefore the certi- onciufive; ficate of the Tuftice was manifellly a miftake. and the court jf ,-, - J r r , win not en- BYTHCOURT The ccrtihcate of the T /rc ' u as ^ fisnins authority is conclufive, and the Court the truth of s> o / ' ftich certifi- will never enquire into the truth of Inch certi- cate * ficate.* This point has been frequently ad- judged. * The ftatute which empowrs the figning authority te direft a writ to an indifferent perfon, is as follows *' And " all writs and proceffes fhall be directed to the Sheriff, " his deputy, or fome conftable, if ftch officer can be had " without great charge or inconvenience: And in every " cafe wherein the authority figning a writ fhall find it ne-^ ft ceffary to dircft the fame to an indifferent perfon, fuch *' authority fhall infert the name of fuch indifferent perion ' in the direction of the writ, and the reafon of fuch di- " reftion ; and if any writ be other wife directed it fhall " abate." . COUNTY OF LITCHFIELD, FEB. TERM. judged. The laft term the cafe of Allen vs. Jones came up by appeal on pleas of abatement It was the fame queftion ; and the Court then ex- Mills, fcfc. preffed their furprife that the lower courts were unacquainted with this point in practice, which had been fo fully fettled. The writ eftablifhed* PAGE againft CAMP. Error from the judgement of a Juftice of the Peace. CAMP, .the defendant in error, brought his Anaaionfor aclion againft Page, the plaintiff in error, C ftS"te c before Juftice 0. P. ftating in his declaration, before a jirfi " That faid Page commenced an a&ion of* "Book-debt againft him before fuftice D. W. in their verdift.t Motion over-ruled. BY f N.B. It is the cuftom of 'the courts in the ftate of ConneSicut, to admit motions in arreft, which are comer- fant about facts, dehors the record: And likewife, by the cullum of courts, the adverfe party is not obliged to make any arnwer either by way of traverfe or demur, cr ; but the court proceed to enquire the truth of iuch tatts, unlefs the oppofite party chooles to COUNTY OF LITCHFIELD, FEB. TERM, n BY THE COURT. On examination of two ^Tgg^ of the jurors, it appears that the jury found the =4=== fum of 4O/. credited to the defendant, which Hinman was equal to the fum charged for the land, and and others which by agreement of the parties was to be in ' payment for the land ; and that the fmall fums of intereft included in the verdift, were not, on trial, objefted to by the defendant: And one witnefs teftified, that they were charged by con- fent of the defendant. There were other pro- per book-debt articles in the account, to a large amount, to which there was no objection ;- and the balance would have been the fame, if the land, and fum credited for it, had not been entered on the book : Therefore the motion in arreft is infufficient. Judge DYER, fliffenting. ~He faid that the admiflion of fuch charges on book, fupported by the parties' oath, would tend to introduce the greateft imaginable confufion. The nature of the thing rendered the idea of fuch a charge on book abfurd; becaufe, when a deed of land is made out, the grantor acknowledges the con- fideration to be paid to his full fatisfaftion at the time of the grant ; and it is both dan- gerous and abfurd, that fo high an evidence mould be fet afide by the parties' own oath, NOTT 12 COUNTY or FAIKFIELDJ FEB. TERM. NOTT again/I WELLES. H*cogni- A CTION of debt on a recognizance for zances for / \ p i v -i -rii fpeciai bail * * ipecial bail. The recognizance was ta- may b? ta- k en to the adverfe party and not to the county- ken to the r J J party for treafurer. where bene- Q n demurrer to the declaration, the only ex- fir they are . , intended. ception was, that the recognizance was impro- perly taken, for that it ought to have been ta- ken to the county treafurer and not to the ad- verfe party. Declaration adjudged fufficient. BY THE COURT. The recognizance on which this aclion is brought was well taken, though before the ftatute directing that in cer- tain cafes recognizances mail be taken to the adverfe party. -There does not appear any fufficient reafon why bonds of recognizance might not ever have been taken to the perfon for whofe benefit they were intended, as well as other bonds; though a different mode of ta- king them has been praclifed, and may yet alib be good, in cafes where there is no ftatute direction. BEERS againji STRONG. CTION on the cafe for thefe words : not o t ta- ^ M Ken in the J j r> t milder f-r.fc " was through the mitigation 01 Beers ana Booth, ^Tcj'S " her fons. - My wife has taken a falfe oath n.-m " fhe is a poor creature and if it had not been " for Andrew Beers and David Booth, fhe never " would have done it ; they are the foundation " of the quarrel. - My wife's children have " taken her before 'fguire Hinman, and have " made COUNTY OF FAIRFIELD, FEB. TERM. " made her take a falfe oath, and I have been " and taken a copy of it. David Booth and " Andrew Beers took my wife before 'fquire " Hinman y and there perfuaded her to take a " falfe oath, and I don't blame her fo much as " I do Booth and Beers, for they were the very " means of it, and fhe never would have done " it but for them." General iffue pleaded, and verdici for the plaintiff. Mr. Edwards moved in arreft, on the ground that the words were not aelionable. Motion over-ruled. BY THE COURT. The words laid, natu- rally import that the defendant's wife had been guilty of perjury, and that the plaintiff, by procuring her to commit the crime, had been guilty of fubornation of perjury, and fo are actionable. Words are not to be taken in a milder fenfe than they have in common accept- ation ; efpecially after verdift, which afcertains that they were fpoken malicioufly, and with in- tent to defame. TWEEDY again/I BRUSH, A CTION of trover, general iffue pleaded, Tf aj U rcrhe- \. and verdia for the defendant. The g^r" plaintiff moved in arreft ; and for caufe ailed- opinion in a ged, that two of the jurors who tried faid caufe, Sfbewl and were in favour of faid verdici;, before they k " wn b r were fworn and impannelled to try the fame, aeafnft^ "had given their opinion in favour of the defen- who the j A j i r- f opinion ope- dant: Ana that one ot laid jurors, after the rates; u is caufe was committed to them for their confi- J^r'r"^. i i i r* t cauic ior a** aeration, and before they had delivered their arreft. faid COUNTY OF FAIRTIELD, FEB. TERM. ~i~86. faid verdict to the Court, gave and publifhed === his opinion in faid caufe to other perfons, not Tweedy of the jury, and oonverfed with them refpeft- ing faid caufe. , . . . . r . Motion in arreil fumcient. BY THE COURT (Judge SHERMAN abjent) On enquiry, it appears, that before the jury were impannelled, two of them had formed and declared opinions in favour of the defendant, which was not known by the plaintiff: There- .fo-re, this, cafe has not had a fair and impar- tial trial. rnemoran- HOBBY againjl FINCH and KNAP p. SfcmencJwt 'T 1 HE declaration ftates, that the Defendants lands are to JL were adminiftrators on the eftate of Caleb public fuc- Finch, deceafed ; and had obtained an order with from the court of probate to fell at public ven- due a tracl: of land belonging to faid eftate, arid tn at by a number of advertifements, they gave . ' r . . . . r r . _/ , notice or the time and place or iale. That the ting within p] a i nt iff attended at the time and place appoint- theftatuteot * . fr frauds, to ed by the defendants m their advertilements, 5eJd*toa wnere tne conditions of the fale of faid land performance were publifhed and made known to the plaintiff -me h a" a8rCI " ^7 l ^ e defendants; which were, that the land fo fet up for fale, mould be ftruck off to the higheft bidder, and a deed figned and executed by the defendants to the perfon that mould pay to them the greateft price, or become obligated to them in the largeft fum of money, (with fure- ty if required) for faid land And that the plaintiff, according to the conditions fo made known, did bid the higheft price for faid land, and became obligated with furety to the defen- dants in the greateft fum of money of any perfon prefent COUNTY OF FAUITIELD, FEB. TERM. prefent at the time where faid land was offered for fale as aforefaid; but that the defendants have never executed faid deed according to the Hobby tenor of their promife, &c. Mr, Sturgefs, for the defendants, pleaded in * bar, that the agreement mentioned in the de- claration*, was never reduced to writing, nor was there any memorandum or note thereof ever made in writing and figned by the defen- dants, or any other perfon by them thereunto lawfully authorized, which is made neceffary by the ftatute " for prevention of frauds and pe-y -juries." Mr. Davenport and Mr*- Thompfon> for the plaintiff, replied, particularly describing the advertifements and conditions of fale, figned by the defendants, and that the plaintiff had fully complied with the terms therein expreffed; and that therefore there was a memorandum, or note made in writing, of the agreement men- tioned in the declaration* On demurrer to the replication, the only queftion was, whether the advertifements and conditions of fale, defcribed in the pleadings, were firch a memorandum of the agreement as would fave this cafe out of the ftatute of frauds : By which it is ena6led, " That no fuit in law " or equity fhall be brought or maintained upon " any contract, or fale of lands, tenements, or " hereditaments, or any intereft in or concern- " ing them ; unlefs the agreement upon which " fuch aftion ihall be brought, orfome .memo- " randum or note thereof mall be made in y;ri- " ting, and figned by the party ta> be charged tc therewith, or fome other perfon thereunto by " him lawfully authorized." Replication adjudged fufficient. BY THE COURT. The advertifements and .conditions of lale let forth in the reply of. the plaintiff, ID Hobby figainjl Finch, &c. 1 Black- ftone's Re- ports 599, fcimon vs. Metivier. 3. Burr. 1921.8.0. I. Wilfon, n8~Wel- Jord vs. Ecezlcy and others. \ i Str. 426, Sea- gocd vs. Neale. COUNTY OF FAIRFIEI.!), FEB. TERM. plaintiff, are a fufiicient evidence, within the meaning of the ftatute, of an agreement in wri- ting figned by the defendants, to fell the land to the higheft bidder;^ and as the plaintiff was the higheft bidder, and tendered fecurity for pay- ment, purfuant to the written agreement of the defendants, he has a right of acUon againft them, for refilling a deed, which, by their a- grecment, they had promifed to any perfon, complying with their terms. If an action in fuch caie could not be fuilained, it would dif- courage people from bidding at public auction, and render ineffe6tual the laws directing fuch difpofition of eftates. Judge E L L s w o R T H, difftnting. 1 ft . Becaufe the declaration is ill. It doth not ap- pear that the plaintiff paid or offered to pay, or fee ure the fum he bid for the land, nor that he bid any fum that could have juftified the admi- niflrators in palling a deed: Nor is there any averment of the value of the land, or any rule of damages given. 2d. The advertifement is no evidence or memorandum of the agree- ment on which the aftion is grounded^. The agreement was made at the time the land was bid off, and was made and exprelfed on the one part by the bid made for the land, and on the other part by ftriking it off. Here the minds of the parties met, and the fubftance of the a- grecmcnt, as thus exprelfed, was, that the plain- tiff mould have the land for the fum he had then bid for it, and that a deed mould be exe- cuted accordingly. The advertifement doth not exprefs this agreement, nor either part of it; nor was any reference had to the advertifement in forming this agreement, farther, than as to the mode of payment. That this fale was at public auftion, makes no difference. It is as requifite by the ftatute that public fales of land mould COUNTY OF FAIRFIELD, FEB. TERM. 17 fhould be guarded as private ones ; and it is as eafy to be done. A memorandum of the fale might be taken in writing from the vendor, and Hobby, &c. would hardly be refufed, if required at the time of the fale or agreement. I think the ftatute extends to this cafe, and that it has not been complied with. MEAD again/I COGGSHALL. THIS cafe was defaulted and heard in da- Appeal lies mages at the Court of Common Pleas. after <*efr"tt After damages were affefled, the plaintiff mo- ved for an appeal, which was allowed. At this Court the defendant pleaded in abatement of the appeal, on the ground that no appeal can be taken after a default. But it was held by the Court, that the appeal will lay, becaufe there was a hearing in the cafe, which brought it within the ftatute. C F iTCIi i8 COUNTY OF NEW-HAVEN, FIB. TERM, 1786. TITCH againjl HALL. ACTION by the Sheriff on a bail bond. ,. e The defendant pleaded, that on the firft ba?"io*l da y f April, A. D. 1779, while the aciion was proved only pending in court, and before final judgement corcfs/cln- vv ^ s ren dered, the defendant did tender his prin- not regularly cipal to the plaintiff (he then being Sheriff, &c.) ^ma"er1n to ^ e ta ^ en ^ nto cuftody in difcharge of his pai*. bond; but the Sheriff refufed to receive him. . And that afterwards (to wit) on the firit Tuefday of April, 1779, while the aciion was ftill pending againft his principal, the defendant did deliver him up in open court in difcharge of his bond, and requefted to be difcharged therefrom ; but the Court neglefted to make any record thereof, or to receive him into -cuftody. The plaintiff demurred fpecially. ift. Be- -caufe t>f duplicity 2d. For that the feveral matters pleaded were infufficient. BY THE COURT. The plea in bar is in- fufficient, not on the ground of duplicity ; for though two matters are plead, they are not fuf- ficient matters : Averments immaterial require j| Croke no traverfe, and are mere furplufage. But Ja. 402. the fault is in pleading a furrender of the prin- 3. Buls. cipal in court as a matter in pais, and not a i9z,Auftm matter O f re cord. I -Every tranfaclion in a vs. Monk r . . } re Hobart court oi record, pertaining to a procels, or cio which the furrender of the principal in dif- i. Levinz charge of bail is one, -regularly becomes a mat- ^ ay " ter of record, and muft be fliewn by record anond 50-- ' . ' \ia. A. P. only> and plead accordingly. S. A. 492, Judge DYER, diffcnting* It is agreed, pi. 8. il-tf/t the producing the body of the principal, fgF^Keb' aiK ^ delivering him up in court, is a legal fulfil-* ~6i t 8.0,' mcnt COUNTY OP NEW-HAVEN. FEB. TERM. ment of the condition of the bail bond, and is all the bail- can be obliged to- do.-r-It is highly proper that the court caufe an entry to be made thereof, but it is what is not in the power of the bail to enjoin or enforce. There is no pofitive law which requires it, or decidedly determines fuch entry to be the only evidence. The ad- mitting proof of the fat by verbal and other teftimony, does not contradiclt or oppofe any pofitive record, but goes only to prove a ma- terial fat where the record is wholly filent. The bail exprefsly avers in his plea, that the principal was delivered up to the court in dif- charge of his bond ; and the law makes the ftrongeft conftru&ion in favour of the bail. I am therefore of opinion the plea in bar is fuf- ficient. When the bail has done all >in his power, and what the law requires, ought he to- be fubjefted to pay over what was only the jujl debt of the principal, meerly through the neg- Ie6l of a clerk? Note. This judgement was afterwards affirm- ed in the Supreme Court of Errors. 19 Fitch againj} Hall. BEERS and Others again/I STRONG and Wife. In Chancery. THIS was a petition againft tenants in dower, to compel repairs to be made, agreeably to ftatute. The heirs and widow of Abel Gunn, deceafed, made partition of his eftate, by mu- tual agreement, under their hands and feals ; by which, a certain traft of land and buildings, C 2 were Statute pro- vilions for compelling tenants in dower to re- pair, extends only, to dow- er afligned in the man' ner the tta- tute pre- fer; bes. 2O COUNTY or NEW-HAVEN, FEB. TERM. apportioned to the widow as dower ; and ===4 the buildings had not been kept in tenantable Beers, &c. repair. Ifron^ On demurrer THE WHOLE COURT HELD That the Statute provi/ion for compelling tenants in dower to re- pair, extends only to dower ajfigned in the manner the Statute prefcribes* Here has been no fuch affignraent; nor is there any dower. The wife of {aid Strong, if flie has any thing in the lands in queftion, has it by PURCHASE, and without other limitations or conditions than fuch as are fpecially provided in the grant t or fettlement of the heirs under which me holds. Note. This judgement was afterwards affirm- ed in the Supreme Court of Errors. - * < STATE < f COUNTY OF HARTFORD, MARCH TERM. 21 STAT O/"CONNECTICUT againft ELISHAN T OS. INFORMATION at common law for utter- The fta-u ing and putting off a counterfeit note, in ons'ext""^ imitation of the notes iffued by the hon. Robert < offences Morris, Efq. fuperintendant of finance. The be punched crime alledged to have been committed more b >' ," ne or than one year before the filing of the infoim- the dflcmi- ation. on of the Mr. Edwards, counfel for the prifoner, plead- ed the Statute of limitations ; by which it is enafted; " That no perfon mail be indi&ed, foie'to'an profecuted, informed againft, complained of, a/'^mi or compelled to anfwer before any Court, Af- law for fiftantor Juftice of the Peace within this ftate, " for the breach of any penal law, or for other made in tt - r j i r i r imitation ot 1 crime or miidemeanor, by reafon whereof a the notes iffu. "forfeiture belongs to any public treafury, un- cd D y hef- i r i i-r> . r Jy . perinendnnc lels the indictment, preientment, information, of finance. " or complaint be made and exhibited within " one year after the offence is committed. " And every fuch indictment, prefentment, cc information and complaint, that is not made " and exhibited, as aforefaid, within the time " limitted for the fame as aforefaid mail be *' void and of none effect. " Provided always, That this aft fhall not ex- " tend to any capital offence ; nor to any crime " that may concern lofs of member, or banifti- " ment, or any treachery againft this ftate, &c." Mr. Root, attorney for the ftate, demurred. And on argument, the plea was adjudged fuffi- cient ; for, BY THE COURT. The offence is within the ftatute of limitations, being punifhable by fine, or without, at the difcretion of the Court. The conftruftion of this ftatute has been liberal, extending 22 COUNTY OF HARTFORD, FEB. TERM. 17 85. extending it to offences which might be punifh- ed by fine, or without, at the difcretion of the State of Court ; as fornication, riots, &c. The excep- ^ n //?' ^ ons * n t ^ ie a ^ ^ not exten d to thi 5 cafe; for, Enos. by ftatute, no kind of forgery is punifhed with fuch feverity as lofs of limb; and at common law, punifhments are never more fevere than by ftatute. Judge DYER, dijjenting ift. Becaufe there is no precedent, extending the ftatute of limita- tion, to cafes of this defcription, but the contrary. 2d. The ftatute referred to, which requires the information to be within one year, is, " for " the breach of any penal law, or for other " crime or mifdemeanor, by reafon whereof a " forfeiture belongs to any public treafury, &c.' On this information, there is no forfeiture to any public treafury enjoined by any pofitive l,aw ; therefore the cafe is not within the ftatute. 3d. Crimes, which may be punifhed by lofs of member, banifhment, &c. as well as theft of more than ten millings value, are exprefsly ex- cepted by the ftatute. If the perfon mould be convi&ed on this information, the law admits of a punifhment, which concerns lofs of member or banifhment ; therefore, this cafe was not within the ftatute. BRADLEY and Others againjl BLODGET. fold, A CTION on the cafe, ftating that the plain- ed d bydeed,~ -f\- tiffs purchafed of the defendant a certain dcfcnbing ' tract of land fuppofed to contain fixty acres, de- the metes, bounds, lines and fuppofed quantity j a verbal promife at the fame time, to pay the grante for all that it shall fall ihgit on ra6iifrcion, adjudged to bs within the ftatute ef fuuds and perjury. COUNTY OF HARTFORD, MARCH TERM. 23 fcribed by certain metes, bounds and lines. That, at the time of fale and delivery of the - '-. deed, the defendant promifed, if on aftual men- Bradly, &c furation faid trad of land Ihould fall fhort of ' fixty acres, he would fatisfy the plaintiffs for the deficiency ; and afterwards, by an accurate fur- vey and menfuration, there proved to be but forty acres. The defendant demurred fpecially, and for caufe affigned 1. That the plaintiffs might have their reme- dy on the covenants contained in the deed. 2. That it appears from the declaration, the plaintiffs took a deed of faid land, defcribing the quantity and bounds, and no parole contract or agreement, beyond that contained in the deed, is admiffible in law. 3. The declaration mows, that the plaintiffs faw faid land and received a deed, giving a rule to find the quantity ; of confequence, there was no deception. 4. That the promife declared upon, is a parole promife, concerning the fale of lands, and there- fore within the ftatute of frauds and perjuries. The plaintiffs joined in demurrer, and the declaration was adjudged infufficient. By LAW, Chief Jujlice, DYER and P i T K i NT, Judges. This declaration is infufficient on two grounds : i. Becaufe the plaintiffs might have known the quantity of land before they paki the mo- ney, it being particularly defcribed by metes and bounds ; and no pretence but that the title well paffcd, or that the lines therein defcribed fell fhort, or that the angles are mifdefcribed. And as the deed contained in it demonftrative evidence of its contents, any parole contracl, contradicting the fame, or relative thereto, is admiffible. 2. Becaufe 24 COUNTY OF HARTFORD, MARCH TERM. 17867 2 - Becaufe it does not appear that the agree- merit was reduced to writing, and therefore void by the ftatute of frauds and perjuries; as the de- - Blodgei. tenant in his fpecial demurrer, points out the contract, as coming within the ftatute, on the ground of being a parole contract, and the plain- tiffs not replying over and alledging it to be otherwife, it muft be prefumed, the promife was not committed to writing. Judge SHERMAN, diffenting. - The agree- ment is not within the ftatute of frauds and per- juries, it being a promife only to pay back a fum of money, overpaid for the land, if, upon aclual menfuration, it fell fhort of its fuppofed con- tents. And the agreement appears to be legal and reafonable, for the price of the land was, by agreement of the parties, to be in proportion to the contents which could not be known, but by its being furveyed by fome flulful furveyor, which the parties might well poftpone to fome convenient time ; and if, when afcertained, it appeared that more than the price agreed on had been paid, the furplus ought to be refund- ed. And if the promife had been within the ftatute of frauds and perjuries, and in writing, it need not have been fet forth in the declaration, but might have been given in evidence on the general iffue ; and no advantage can be taken of the omiflion on a general or fpecial demurrer. . - Raym. 450, 451 2 Jones t 158. S. C. i Bat. Abr. 75 Buller** Nifi Prius> 275. An a&ion is not mair.- COUNT? or HARTFORD, MARCH TEAM. 25 BRINLEY againjl AVERY. THIS was an action on the cafe, brought by George Brinley, Efq. Commiffary General tajnabie in of the Britifh province of Nova Scotia, founded [^0.3 on a written agreement. made in a fo- The defendant pleaded in abatement, that the [^between plaintiff is an alien, born in the dominions of the ^ t z c e ^ nt r f king of Great-Britain, an inhabitant of Halifax, an d to be in faid dominions, a fubject within the allegi- **" ance of faid king, and without the allegiance of the ftate of Connecticut, and of the United States of America j and banimed and profcribed by the commonwealth of Maffachufetts, and at the time of the date of faid contract and fuppo- fed breach thereof, both the plaintiff and de- fendant were inhabitants of faid Halifax, fubjects of faid king of Great-Britain ; both under the: allegiance of faid king, and owing no allegiance to this ftate, or to faid United States. And the defendant at faid date, and for more than twenty five years before the fame was, and had been, an inhabitant of faid Nova-Scotia, and fubject of faid king. And that faid Halifax, at the time of the date of faid contract was, and ever had been, governed by the laws and ftatutes of the kingdom of Great-Britain, and not by the laws and ftatutes of the ftate of Connecticut ; and faid contra6t, and all tranfactions between the plain- tiff and defendant, ought to be tried and deter- mined in and by the courts of faid king of Great- Britain, according to the laws, ftatutes and ufa- ges of faid kingdom, and not in and by any court in the ftate of Connecticut, or according to the laws and ufages of faid ftate. And faid contract was made at faid Halifax, and to have been there performed, during faid time when D the COUNTY OF HARTFORD, MARCH TERM. Plaintiff and defendant were inhabitants of faid Halifax. 2. That by the law of nations, no fuch aftion A very. can ^ e Supported, nor can the fubjects of this ftate, by the laws of England, or of other na- tions, maintain any action againft each other on any contract made, or for any injury done, with- in the jurifdi&ion of faid ftate, in any court in the Britifh dominions, or in any other foreign court. 3. That the final judgement given by this court, in the prefent action, would be no bar to the plaintiff in commencing and profecuting a fecond aclion for the fame caufe, matter and thing, in any of the courts in faid province of Nova-Scotia, or faid kingdom of Great-Britain, nor prevent the plaintiff from recovering a fe- cond judgement thereon againft the defendant, his goods and eftate yet remaining in faid Ha- lifax. Replication. - That faid king and king- '. dom of Great-Britain, to whom the plaintiff was, and is a fubjeft, and owed his allegiance, are, and were at the time of faid contraft, at amity, and in league with this ftate, and the United States of America; and their fubjefts have right, by the treaty of peace between faid king cf Great-Britain and the United States, and by the laws of nations, and of this ftate, to main- tain aflions in the courts of common law in this flate, for the recovery of their dues, againft the citizens of this ftate, or others that are fubjefts of the king and kingdom of Great-Britain, who may come to refide here, and take up their abode in this ftate with their property and effects, in any ation that is perfonal and tranfitory. And that the defendant was an inhabitant born, and refided a long time in this ftate, and after many years abfence therefrom, at faid Halifax, he COUNTY OF HARTFORD, MARCH TERM. 27 he returned into faid ftate in the year 1785, with ^JTg^ his property and effecls, and ever fince has here ===^ refided, and taken up his abode in this ftate. and Brinley * both his perfon and eftate are amenable to the laws and courts of the fame. To this there was a demurrer and joinder ia demurrer; and the. plea in abatement ruled fufficient. WOOSTER and WOOSTER again/I PARSONS.- ERROR from the city court in Middle-, b , town. The defendant in error brought before aiy C his a&ion on a promilfory note, dated at New-* " >u . rt of ] . rl r T o L r i tenor and Haven the yth day or June, 1784, before the iim red \\\- city court in Middletown, and obtained judge- th^dtciara- ment.by default. Errors affigned,.' 1. That it appears by the records, that faid note was executed before the city of Middle- caVe town was incorporated, and before the granting the charter incorporating the fame ; faid char- ter of incorporation being granted by the Ge- neral AflTembly, holden at Hartford on the fe- cond Thurfday of May, 1784 ; which Affembly was fitting at the time when faid note was exe- cuted. 2. That faid note was not executed within the limits of faid city of Middletown, but in the town of New-Haven : And the caufe of aftion did not arife within the limits of the city of Mid- dletown. 3. That it doth not appear by faid record, , that faid note was executed in faid city of Mid- dletown, but that the fame was executed with- out the limits of laid city. D 2 The 28 Wcoft.&c. againft Parfons. COUNTY or HARTTOS.O, MARCH The defendant in error demurred fpecially, and for caufe affigned, that f'aid writ contains an alignment of errors both in law and in facl:, which cannot be joined in one writ of error: For, it is affigned for error, that faid note was executed before the incorporation of faid city of Middletown ; and alfo that faid note was not executed within the limits of faid city, but in the town of New-Haven : Both which are align- ments of errors in fat, not appearing on the re- cord, and triable only by itfues in fad.' And the plaintiffs further affign, that it does not ap- pear by the record, that faid note was executed in faid city of Middletown, but that the fame was executed out of the limits of faid city. Which is an affignment of error in law, and triable only by ifTue in law. N Second, The defendant in error, by protefta- tion that faid faCts, by the plaintiffs in error af- figned, are not true, faith, that faid errors in faci contain only the fubftance of a plea to the jurifdi6tion of laid city court, which the plain- tiffs in error ought by law to have pleaded and excepted againft before faid city court, and ha- ving then waved the fame, they cannot by law affign faid matters in error ; and that faid er- rors affigned are in contradiction of the record. Third, That faid affignment of error in law, alledging that it does not appear by faid record that faid note was executed in faid city of Mid- dletown, but that the fame was executed out of the limits of faid city, is an allegation contrary to faid record, and cannot by law be affigned in error. Fourth, That no matter or thing, in faid writ of error affigned, is fufficient to warrant the re- verfal of faid judgement. On argument of this cafe, by Mr. Parfons and Mr. Trumbull, for the defendant in error, and by COUNTY OF HARTFOIID, MARCH TERM. by Mr. Ingerfoll and Mr. Chauncey for the plain- tiS, judgement was reverfed By D Y E R , S H E R M A N and P I T K I N , JudgCS. i. When an a&ion is brought before any court of limited and inferior jurifdi&ion, the declaration ought to aver exprefsly, that the caufe of aclion arofe within the jurifdiction of the court ; and the place fhould be particular- ly alledged: Neither of which was done with fufficient certainty in the prefent cafe. The note on which, c. is alledged to have been executed in the city aforefaid ; the city of Nezu- Haven> and the city of Middleto"wn> having been both before mentioned therefore uncertain to whiffi the reference was intended. (See Coke on Littleton^ 20, a.} " If a leafe for life is made " to A. remainder in tail to B. remainder to C. " informa prceditta, the remainder to C. is void " for uncertainty."t - This author makes a fzLd. diftin&ion between praditta, and fome other re- ^*y nd> lative terms, which he fuppofes commonly refer judgment* to the 1 aft antecedent; but that the rule admits arreftedfor of many exceptions.* If fuch an uncertain re- a like UB- ference would render a grant void, which would certaint X be fupported, if by any reafonable conftruclion t 3 Salk. it could be made certain, it muft a fortiori be {99- fatal to a declaration, which is to be conftrued * moft ftrongly againft the declarant. If the note had been executed in the city of Middletown, the allegation ought to have been " in the city of Middletown qforefaid y within the jurifdiftion of the f aid court." 2. The 7 ~' * The reafon of the diftinflion is, that aforefaid, may with propriety relate to any term, that has been before ufed in the fame inftrument or writing, however remote ; but the other relative terms there mentioned, can only relate to fome word in the fame fentnce. 3 COUNTY OF HARTFORD, MARCH TERM. 2. The note on which, &c. is dated the yth of June, 1784, and the feflion of the legiflature at w ki c h l ^ e ^ aw was en a&ed, for incorporating Pzrfons. l ^ e c ^y f Middletown, ended the nth of the fame June, as appears of record : And, there- fore, the caufe of action arofe before the jurif- diction of the city of Middletown commenced ; for laws in this ftate are not in force till the end of the feflion in which they are pafled, unlefs by fpecial provifion in the ftatute ; for during the whole of the feflion, they are fubject to altera- tion, or to be totally negatived and not entered on record ; whereas after the end of the feflion, they become matters of record, and cannot be altered or repealed, but by a new aft pafled and recorded : Nor would it be reafonable that peo- ple mould be affected by laws before they are publifhed, which is not done (except in fpecial inftances) before the rifing of the legiflature. 3. As to the exception in the defendants plea, that errors in law and errors in faff are joined in the writ ; the plaintiffs have afligned no facts in error, upon which they rely, but fuch as appear of record : And an aflignment of errors in /#<#, not properly aflignable, together with fufficient errors in law, will not vitiate the writ. Therefore, the judgement of the city court was reverfed. LAW, Chief Jujlice y and ELLSWORTH, dijfent- ing. - As to the firft exception in error, " that " the plaintiff, in the original fuit, has not al- " ledged, with fufficient certainty, that the caufe *' of action arofe within the city of Middletown." The averment is, that " the note was execu- " ted within the city qforcfaid." And the city of Middletown was the next antecedent. And the rule in pleadings, as in grammar, is, that relation muft always be to the next antecedent, unlefs the fenfe hinders ; which in this inftance cannot COUNTY OF HARTFORD, MARCH TERM. t 31 cannot be pretended. Hardrefs, 773. Sal- fold, 199. It has formerly been held by fome that prcedittum was of lefs certain relation than Wooft. &c. idem ; but there appears n'o reafon for the dif- tinftion, and it hath not been kept up. And in Rhodes and Coles cafe, 2. Lord Raymond, 886, which turned upon the reference of fradtSwto or ajorefaidy Chief Jujlice Holt held it muft be to the next antecedent j and the cafe was final- ly adjudged according to his opinion. Cer- tainty, to common intendment, is fufficient in fupport of a judgement; for femper frejumiter pro fententia. And, though formerly the courts of Weftminfter-hall would prefume nothing in favour of inferior jurifdiftions, or the regularity of their proceedings, of late years they have prefumed liberally in fupport of them. i. Ld. Raymond^ 80 and Cowper 18. With regard to the fecond exception, " that " the caufe of aftion arofe before the city of " Middletown was incorporated." The at of incorporation, as appears from the journals of the Houfe of AfTembly, paffed and was compleated the 24th day of May, fourteen days preceding the date of the note : And it was afterwards revocable only as every ftatute is, by a concurrence of both branches of the Legi- flature. And altho' had it been a penal or man- datory aft, it would not have fo had effeft as to become obligatory on the citizens of the ftate at large, until they had had means of the know- ledge of it, which ordinarily would not have been till the rifing of the Aflembly, and the re- turn of their reprefentatives ; yet being in na- ture of a grant, and there being no time men- tioned therein when it fhould begin to take ef- fect, it took effecl: immediately; and the jurif- diclion it gave of fuits, where the caufe of ac- tion "Jliould arife," &c. has relation to the time of 32 COUNTY OF HARTFORD, MARCH TERM. unlefs, according to the Britifh rule of conftruing ftatutes in fuch cafes, "Wooft.&c. jt fhall, in^mplification of the grant or autho- rity, have relation to the firft day of the feffion .'*... rr , _ .. .1 n in which it palled. i Roll. Abr. 465 4 Injt. 25, 27 Hob. 309. As to the obje6tion to this conftruftion of the aft, that it may fubjecl caufes to the decifion of a forum which the parties, at the time the caufe of aftion arofe, did not con- template it is of very little weight ; as it does not afFeft the rule or principles of the de- cifion : And it has been always difregarded by the legiflature in the inftitution of new courts ; even where they have gone fo far as to change the mode of trial from a jury to a lingle minifter, as in the late enlargement of the jurifdiciion of juftices of the peace. It appears, therefore, to us from the record, that the caufe of aclion arofe within the jurif- di&ion of the city-court ; both in point of time and locality ; and that, that court did not err in taking cognizance of the caufe. HUKTJNOTON 33 HUNTINGTON againft JONZS. ERROR from the court of common pleas. ^ The cafe was, Jones recovered judge- %ned in . n rr '-'. c\- f yicc in dii- ment agamlt Huntington y in an action or trover, cha:geofhis had execution, and committed him to goal. ***** fhe af - . ( , fignmeac Huntmgton was a poor priloner,. and unable to muft limit difcharge the debt. Jones preferred his peti- the^JbJof tion to the court of common pleas, that Hun- the imfter tington might be affigned in fervice a fufficient JJ"ei5S length of time to fatisfy faid execution, and to his heirs additional coft. The petition was founded on and affi s ns " that part of the ftatute concerning arr efts and im- prifonment t whicfy enacls, ct That, if no other " means can be found to pay the debt for which declaring for a debt debt aaon, of 2O/. and demanding in damage 24!. The jfjefumai- general iifue was plead, and judgement for the det^ doe's defendant. The plaintiff moved for an appeal, noexcec d i . , , i r rr > tw enty which was denied. pounds, ai- The error affigned was, that the fum demand- S"ffiiJ n . ed being more than 2O/. the plaintiff was enti- ded in da- tied to an appeal ; for the court could not de- "^Sat termine that the jury would not find more than lum 2ol. or even the whole fum demanded, in da- mage. Judgement affirmed. BY THE COURT. No appeal lies. The words of the ftatute granting appeals, are, " in " which the value of the debt, damage, or mat- " ter in difpute, doth exceed the value of 2ol. " &c." In this cafe the debt demanded, which is laid at 2O/. only, is the matter in difpute ; E 2 And ex- COUNTY or WINDHAM, MARCH TE*M. and the conclufion in damages but a matter of form. And if intereft is to be challenged in an Thomfon aftion of book-debt, it is regularly to be char- ged, and made parcel of the debt ailed ged, that the adverfe party may haV notice of it upon oyet; and we have no practice of entering a judgement for a fum in debt, and a further fum for intereft or damages, Tor the detention of the debt. The 2O/. the fum alledged as debt in this cafe, is all that judgement could have been given for, and was the whdle matter in difpute. Judge DYER. dijjentingn The ftatute li- mits to a final decifion of the court of common pleas, fuch actions wherein the matter in de- mand does not exceed the value of 2O/. The magnitude of the demand, is to be afcertained by the jury, and not by the court, unlefs by ^rcement of parties ; and fince the plaintiff, in this action, has demanded a fum for intereft or damage, exceeding the ftated debt, the quef- tion, whether he mall recover more than the . debt fo ftated, he has a right to have determi- ned by jury; and until that ivs determined, the court cannot legally deprive the party of an ap- peal. BACKUS again/I CLEAVELAND. An exifting ^T^HIS was a fcire facias, for the affirmance galftthc A of a judgement againft the defendant, as eft^te of a adminiftrator on -the eftate of Aron Cleaveland. pSSTw- The defendant pleaded, that the court of derfuc'hcir- p roDate iflued an order, that within a limited "- time all claims againft faid eftate mould be ex- mount can not be afcer- not DC alcer- _ , _ . .. . . , , . < tained vith'n the time limited by the court of probate For exhibiting the claw creditors to fuch eltate ; fuch claim is not foreclofoi, but may be exhi recovered afterwards, if the adminiftravor have ciUtc in his hands. COUNTY OF WINDHAM, MARCH TXRM. 37 hiblted to the defendant, or be forever barred ; and that due notice thereof had been given to the plaintiff, but he did not exhibit his claim Backus within the term limited. cSand The plaintiff replied, that he brought his writ of error againft the inteftate to the 'fuperior court, in March 1785, and obtained a reverfal of an erroneous judgement of the court of common pleas. That the inteftate then being in full life, entered his aclion in the docket of faid fuperior court, which was continued till September 1785. In April 1785, the laid Aron died; and at faid September term, the defendant appeared and moved for leave to profecute faid action on the part of faid deceafed, which was allowed. Said caufe was adjourned till December 1785, when final judgement was rendered in favour of faid Aron, deceafed, for forty-nine pounds and fix-pence lefs than the fum of the former judge- ment rendered by the court of common pleas, which had been reverfed. Which fum was re- ftored to the plaintiff as his damage by reafon of faid erroneous judgement, and which is the demand in queftion. That this demand could not have been exhibited within the time limit- ed, becaufe it was then pending in court j all which the defendant well knew. And that the defendant now holds in his hands eftate of faid deceafed, much more than fufficient to difcharge the prefent debt. To this there was a demurrer, and joinder in .,/. i 11 T i- i i 3 Willoftj demurrer and the replication was adjudged , 3 . fufficient : For, Chilton vs BY THE WHOLE COURT. The amount of Whlffii: - the plaintiff's claim againft the dilate of the de- ^Strange, ceafed, could not be ascertained until the final Tuily vs judgement in the caufe then pending before the Sparkes. fuperior court, as mentioned in the plaintiff's * Lor(i reply; which judgement was not rendered un- til 38 Backus againft Cleavland 2. Strange, 1043. Hock ley vs Merry. 3. Wilfon, 262. Goddard \3 Van- ucihevden. COUNTY OF WINDHAM, MARCH TERM. til after the expiration of the term limited by the court of probate, for exhibiting the claims of the creditors to faid eftate. It appears by the pleadings, that the defend- ant well knew the demand that the plaintiff had againft the eftate, and the circumftances attend- ing the fame, and that he has fufficient eftate of the deceafed in his hands to difcharge it: There- fore the plaintiff is not by law foreclofed from re- covering his debt according to the true intent of the ftatute in that cafe provided. N- B. This judgement was afterwards affirm- ed in the fupreme court of errors. ADAMS again/I CLEAVELAND. IN this cafe the fame point was determined as in the cafe of Backus againft Chavdand, on fimilar pleadings. After the a- verage is ftruck on an infolvent ef- tate, no future intereft can a rife on fuch average, as relative to the eftate j but if the ad- miniftrator fo conduit as to fubjeci hjmfcif per- fonally to the payment of interelt, the aftion mult be brought accordingly. FITCH againjl HUNTINGTON In Error. HUNTINGTON brought his aaion to the court of common pleas, on a promiffory note, againft Fitch, adminiftrator on the eftate of Azel Fitch, deceafed. Fitch pleaded in abatement, that the eftate of faid deceafed was duly reprefented infolvent (and in fat proved unable to pay more than one fhilling and fix- pence on the pound.) That commiflioners were duly appointed to receive and examine the claims upon faid eftate, who gave notice of their appointment and powers, according to law; and that fro plaintiff neglefted to exhibit his demand, until the expiration of faid com- miffion. COUNTY OF WINDHAM, MARCH TERM. miffion, and a final fettlement and 'quietus was granted upon faid administration. The plaintiff replied, that in January 1770, Fitch he exhibited his faid claim to the commiflioners againfi on faid eftate, in the life of their commiffion, who allowed the fame, and made return there- of to the court of probate ; which return was accepted by the faid court. Upon the fafts ftated in the replication, iffue was joined ; and a verdicl for the plaintiff. Mr. Larrabec and Mr. Eiffel moved in arreft, and for caufe alledged 1. That the jury, in their affeffment of da- mages, had allowed to the plaintiff the intereft on the average fum of his debt, from the time it was prefented to the commiflioners ; which was illegal. 2. That the original note on which, &c. ha- ving been exhibited to the commiffioners, and by them allowed and afcertained againft the eftate of faid deceafed, no aftion is now fuftain- able on faid original note. And that there can be no foundation in law, for a recovery of da- mages by the plaintiff, but upon a neglect of payment by the defendant, as adminiftrator. Mr. Swift and Mr. Spalding replied, that the demand againft the eftate of faid Azel decea- fed, was a note of hand on intereft, and that faid average ought to have been paid in the month of January 1770, but the defendant, regardlefs of his duty as adminiftrator, took all the eftate into his poffeffion, and had ever fmce had the ufe and benefit thereof, and had always refufed to difcharge faid debt ; and that the jury allow- ed no more than the lawful intereft of the plain- tiff's average from the time it ought to havr been paid. The court of common pleas eftablifhed this verdift, and rendered judgement thereon. Judgement was reverfed. BY Fitch ' lnt COUNTY OF WINDHAM, MARCH TERM. BY THE WHOLE COUHT. Intereft, the plaintiff's average, was allowed out of the eftate of the deceafed. This would work injuf- tice to the other creditors, who would thereby be cut fhort of their average. If an admini- flrator upon an infolvent eitate, after the ave- rage is (truck, makes himfelf liable for intereft, it is his own ejlate he fubjeds, and not that of the deceafed ; and the a&ion and judgement mould accord witn the circumftance of the adminiftra- tor's pcrfonal liablenefs. Cood are taken / at- tachment and deliver- ed to B. he promifes to re-deliver them on de- mand ; if they t>e not demanded v.-ithin fixtjr days after fi- nal judgment in the auion on which they are at- tached, B. may re I', ore them to the riginal wner, and shall not be liable on his promife to the officer. BUEL againft METCALF. In Error. METCALF brought his a&ion againft Euel, to the court of common picas, on a re- ceipt executed by the defendant to the plaintiff, as conftable, for goods taken by attachment, containing a promife to re-deliver laid goods on demand, for the purpofe of responding the judg- ment on the writ of attachment. The defendant pleaded, that he held faid goods, and was ready to re-deliver them to the plaintiff at all times, until the expiration of more than fixty days after final judgement on faid writ of attachment; that no demand was made for faid goods, and in confequence of the premifes, he reilored them to the original owner. On demurrer to this plea, judgement was rendered for the plaintiff. , The plaintiff in error tookTtwo exceptions to this judgement i. That the declaration was infufficient, as it appeared from the face of it, that execution was not E KIMBALL again/I CADY. RROR, from a decree of the court of com- mon pleas, on a petition for a new trial, - Kimball brought his aclion againft Cady on a promiffary note to the court of common pleas in Auguft 1781. The defendant pleaded a ten- der made in April 1779. The plaintiff replied, that the money tendered, arid now offered, con- fifted of continental bills of credit, which were not at the time of tender, and have never fince been, at the value of one thirtieth part of the debt contracted and promifed in faid note. To this there was a demurrer, and judgement for the defendant. Kimbally the plaintiff, petitioned for a new trial. He relied on the ftatute pafled in Otlo- F ber COUNTY OF WINDHAM, MARCH TERM. 41 not i flue d till more than fixty days after final judgement was rendered, and therefore the ef- tate taken was discharged, and the defendant Buel not holden to deliver it. 2. That the plea contained ample matter to difcharge the defendant from his liability to faid fuit. The judgement was reverfed. BY THE WHOLE COURT. The execution was not taken out till more than fixty days after the judgement, beyond the expiration of -which time the attachment could not bold the proper- ty, and it became thereupon the duty of the of- ficer, or of whoever held the property under him, to reftore it to the debtor (as the receipt- man has done) and he would have been liable in trover had he refufed. 42 COUNTY OF WINDHAM, MARCH TERM. "jTggy her 1782, which enacls, " That in all aft ions = --= " brought before any of the fuperior or county Kimball " courts in this ftate, (either by original \tfrit, againft " appeal, or writ of error) for the recovery of y ' " any debt due by bond, note, or book account, *' contracled before or on the feventh day of " v{ January^ 1780, and where the defendant in " iuch aclion has, between the firft day of Stp- fc tember y 1777, and the i8th day of Marc'i > " 1780, made a tender of a fain in ccntinental ' to the creditor or creditors, in " fatisfaclion of the debt demanded, and the " creditor refufed the fame ; then, and in every v > ' that a replcader ought to be granted; for that he had miftook his plea, in that he did not traverfe the defendant's plea in bar, and thereby open the fubjecl of enquiry at large, to the court. That the ftatute enables the court, in fuch cafe, to give the caufe an equitable con- fideration, and adjudge to the plaintiff what was equitable COUNTY OF WINDHAM, MARCH TERM. 43 equitable and juft, notwithftanding the tender. ^yS^ Three exceptions were taken to this petition, - -- = at the court of common pleas, by way of abate- 1. That the petitioner had not laid a profett of the legal proceedings mentioned in his* peti- tion. 2. That nothing appeared by the petition, but that compleat juftice had taken place. 3. That the ftatute mentioned in the petition did not exift until long after the final trial ; therefore not applicable to this cafe. The exceptions were adjudged fufficient, and the petition difmifled : And the decree of the court of common pleas being examined on this writ of error, was affirmed. BY THE WHOLE COURT. - There are two grounds for affirming the decifion of the court of common pleas : 1. If the petition was for a new trial, it was matter of difcretion with the court, to which.it was prefered, to grant or negative, and error cannot be predicated upon fuch decifion. 2. The petition cannot be fuftained on the ftatute for the equitable decifion of tenders in certain cafes, as there had been a judgement at law: For the provifion of the ftatute- extends not to cafes adjudged and jclbfed at law, but to cafes open and profecuting at law, and is ex- prefsly limited to actions pending by original -writ, appeal, or writ of error. An extenfion of the ftatute retrofpeclively to overthrow judge^- ments that have been rendered and acquiefced in at law, would be very inconvenient, and the words of the aci will not admit of fuch a con- ftru&ion. F2 1766. In cafe < F a joint ami fe- vcraldebt, a dif charge to one of the debroisfur Cordon of che debt, is only a d'i- charge of fuch pare as is described, and the per- fon difchar- ged, aswell as the other debtors, are ft ill liable for the re- mainder. COUNTY OF NEW-LONDON, MARCH TERM. ROGERS again/I HEMSTED and Others. THIS was an aftion on a written agreement between the plaintiff and defendants, fta- ting, " That whereas they were jointly con- " cerned in the capture of a fmall boat and fe- " veral cattle, in April, 1783, which were li- " beled and condemned to the ufe of the cap- " tors, and diftribution made accordingly : " They therefore, jointly and feverally engaged " to pay the plaintiff (in whofe name faid con- " demnation was had) their refpeciive propor- " tions of any future expence that might arife in " the premifes." Subfequent to this agree- ment, one Randal claimed the property of the boat and cattle mentioned in the writing; for which he inftituted a fuit againft the plaintiff, and recovered about fixty pounds. This ac- tion was brought to recover of the defendants their refpeciive proportions of faid expenditure* The defendants pleaded a difcharge from the plaintiff, which was recited in thefe words !< Received of Daniel Harris twenty eight filver " dollars, on account of a boat and cattle taken 11 from Randal the 4th of April, 1783, and con- " demned to faid Rogers, and fince faid Randal " has got an execution againft faid Rogers for " fixty feven pounds; and this is Daniel Har- *' ris's receipt for his part of faid execution.'* To this plea the plaintiff demurred general- ly. And, BY THE WHOLE COURT. This plea is inefficient. This receipt was not in full of the execution, but only of fuch part or propor- tion of it as Harris had received of the proper- ty condemned. He, with the reft of the de- fendants, as they were jointly and feverally bound f>r each others like proportions, remain- ed holden for the refidue of the execution. COUNTY or NEW-LONDON, MARCH TERM. 45 HUNTINGTON and Others againft CARPENTER^ THIS was an action of difleifm, brought by the inhabitants of the town of Norwich, againft the defendant, as leflee of the firft eccle- fiaftical fociety in faid town. On fpecial plead- ings, the cafe was thus dated for the decifion of court : The town of Norwich, before the year 1695; constituted but one parifh or ecclefiaftical fo- ciety ; and the inhabitants tranfa6led their town and parochial bufmefs at the fame meetings. In June, 1765, they appointed a committee to pur- chafe lands for the ufe and accommodation of a gofpel minifter amongft them: The commit- tee purchafed of Stephen Gif&rd the lands in queftion, and took a deed of bargain and fale, expreffed to be, <{ to the inhabitants of the tow n " of Norwich, their heirs, fucceffors arid af- " figns." In December, 1697, the inhabitants of the town, by a vote, levied a tax on them- felves, for the purpofes of difcharging the mi- nifter's falary, paying for the land purchafed of Gifford, and defraying other parifh charges. The lands in queftion were immediately ap- plied to the ufe for which they were purchafed, and have ever fince been applied to the ufe of the -miniftry in the firft fociety in Norwich. The inhabitants of the town, by vote, in De- cember, 1701, fequeftered for the ufe of the mi- niftry, other lands adjoining the lands in quef- tion, and gave the whole the name of the Par- fonage Lot. In 1716, by aft of affembly, two other ecclefiaftical focieties were incorporated from the town of Norwich, called the Eafi- Farms and the Weft-Farms; after which (to wit) in July, 1717, Mr. Benjamin Lord was fettled in the miniftry in the old or firft fociety in faid town ; 4 6 Ifl?!: t Hunting- ton, ugalnj} Carpenter. COUNTY OF N.EW- LONDON, MARCH TERM. town; and in Auguft, 1717, the faid fociety, by vote, granted to him the lands in queftion, for the term of his miniftry ; which he held until the time of his death, which happened in April, 1784. The proprietors of the. tow.nfhip of Norwich, in fundry legal meetings, did grant, lay out, and fequefter, fundry tracts of land in the focietie:> of the Eaft and Weft Farms, for the fupport of the miniftry in thofe two parifhes. That the defendant holds the demanded pre- mifes by force of a leafe from the rirft ecclefi- aftical fociety in Norwich, for term of years, not yet expired, and bearing date before the plaintiffs' writ. There was a demurrer to the replication, and joinder in,demurrcr >and judgement for the de- fendant. BY THE COURT. -The inhabitants of each town in this ftate (not divided into focieties) are by law a corporation for the purpofe of fup- porting public worfhip, and the gofpel miniftry, as well as for civil purpofes; and in their cor- porate capacity, have power to receive and hold eftates real and perfonal, for (aid ufes, and to call and fettle minifters, build meeting, houfes, &c. 2. The name and defcription by which they receive eftates, and tranfacVbulinefs in their ec- clefiaftical and civil capacity, is the fame (to wit) the inhabitant* of the town of, &c. 3. When part of the inhabitants of fuch town are conftrtuted a new. and diftincl fociety, the remaining inhabitants are by law confidered, for eccleh'aftical purpofes, as the fame corpora- tion, having continuance and fucceflion, by the name of the fir/I fociety, which before exifted by the name of the inhabitants of the town, and as holding the meeting houfe, and all other eftates that the inhabitants of fuch town received, ac- quired COUNTY OF NEW-LONDOV, MARCH T.M -i; quired and held, for any of the ufes for which ^86~ focieties are conftituted, and as bound to per- form all the contracts and agreements made by Hunting- the inhabitants of fuch town,' with the minifter,' ">n, &c for his fupport, or refpefting any other matter c ^5f ( proper to a fociety. This opinion is fupported by former adjudications, and univerial cuftom.- 4. In the prefent cafe, it appears from the re- cords of the votes and proceedings of the town of Norwich, recited in the pleadings, that the land in queftion was purchafed when there was but one ecclefiaftical fociety in the town, with exprefs intention to be applied in fupporting the gofpei miniftry. That the purchafe money was collected in the fame tax with the minister's fa- lary : And although the deed from Gijford doe> not mention the ufe for which faid land was pur- chafed, and contains limply a fale and transfer, for a valuable conlideratiori, as it was out of his power, as grantor, to direft the ufe; yet it ap- pears, that the grantees a6ting in the fame capa- city as when calling and fettling a minifter, ap- plied the ufe of faid land toward the fupport of ieveral fucceffrve minifters of the gofpei, in that part of the town of Norwich which is now call- ed the firft fociety, for a term of more than eighty years: That it was early called the par- fonage land, and has never been applied to any other ufe : And therefore ought to be confi- dered as purchafed and held by the fame corpo- ration that is now called the rirft fociety in the town of Norwich. 5. As it clearly appears, that it was the in- tention of the inhabitants of the town of Nor- wich (in whatever capacity they afted) to ap- propriate faid land for the ufe and fupport of the miniftry in that part of the town now called the firft fociety; and the fame having been fo appropriated and applied in manner aforefaid, it COUNTY o? NEW-LONDON, MARCH TERM. ~i786\ ' l ou g nt to be confidered as an appropriation or -== fequeftration to that ufe, according to the an- Hunting- rient ufage and practice, and Co is confirmed book, 159.) So judgement was for the defen- dant, as he held by leafe from the firft fociety in faid Norwich ; and faid firft fociety were ad- judged to hold the lands in excluiion of the town at large. The Chief Juflice faid, he was doubtful whe- ther all the reafons affigned by the court were conclufive; but on the 3d there could be no doubt, it being a point fully fettled by former adjudications. Note. Judge Dyer did not fit in this cafe, being uncle to one of the plaintiffs ; and Judge Ellfworth excufed himfelf, having at a former trial been of counfcl for the defendant. A v E R Y again/I W T M o R E (Sheriff. ) if a theriff Hpms aftion was inftituted againft the fhe- bc attached I . o . in a civil JL nit, for the default or one ot his deputies, cefs tl c al r " ^7 writ ^ attachment, and the fheriff's body arrefted. He pleaded in abatement^ that du- ring his continuance in the office of fherifF, his perfon was not liable to arreft or imprifonment, by civil procefs ; and for caufe alledged, that as the fheriff is ex officio keeper of the prifon, an imprifonment of his perfon would operate as a -releafe to the prifoners of the county. On the plea of abatement, the cafe was appealed to the fuperior court and for the reafon alledged in the plea the procefs abated. It was then contended on the part of the plain- tiff, that ihefuit ought to proceed as afummon, and COUNTY OF NEW-LONDON, MARCH TERM. and to ceafe only in its operation againft the perfon of the fheriff. But the Court faid, that the mode of procefs being improper, it muft abate, in toto. Wetmore. Note The fubftance of this Report was given me by Mr. Huntington. N. B. It is the practice of all courts in the Jlate of Connecticut, to try pitas in abatement -with- . out any anfwer. If the plaintiff choofes, he may demur on traverfe, but if he does not choofe, he in- forms the court, ore tenus, what parts of the plea he denies, and the court direct an enquiry; but othtrwife, itjlands demurred to, and the record, is, "flea in abatement fujficient, or infufficient." Note. In this county, March term, 1784, the court eftablifhed a Handing rule for computing intereft on obliga- tions, where one or more payments have been made Which follows Compute the intereft to the time of the firft payment ; if that be one year or more front the time the intereft commenced ; add it to the principal, and de- dul the payment from the fum total. If there be after pay- ments made, compute the intereft on the balance due to the next payment, and then deducl the payment as above ; and in like manner from one payment ttf another, till all the payments arc abforbed ; provided the time between one pay. mer.t and another be one year or more. But if any pay- ment be made before one year's intereft hath accrued, then compute the intereft on the principal fum due on the obli- gation for one year, add it to the principal, and compute the intereft on the fum paid, from the time it was paid, up to the end of the year ; add it to the fum paid, and deduft that fum from the principal and intereft added as above. If any payments be made of a lefs fum than the intereft ari- fen at the time of luch payment, no intereft is to be com- puted but only on the principal fum for any period. HENSHAW 5 > ora note. can have no right of ac- tion againu the affignor, time of aC- bylomcaft cin'a PC adir charge; &if . pan e f the COUNTY OF MIDDLESEX, JULY TERM. HENSHAW againjl CURTIS COE and JOSEPH COE, Executors oj JosEPirCo*,, dcccafcd. ERROR from the court of common pleas, - Hen/Jia-w brought his aftion on die r n i i r \ -^-,1 cale againit the defendants. The declaration contained two counts . i. I hat in November, 1 769, one JLlijha Clark ( fince dead ) . executed a promiffoiy note to ihe tejlator for eighteen pounds ten millings. And in Auguft, 1771, for the confideration of twen- ty pounds eight millings and nine pence (being tne principal and intereft then due") the tejlator affigned it to the plaintiff. That the plaintiff had demanded payment of Clark, who refufed, o f w hich he had sivcn notice to the teflotor\ , i i i- 11 rr j o whereupon he became liable, allumed, &c. ^ ount ^ or money had and received. he accepts 2l The defendants pleaded to the firfl count, That having prayed oyeroi" the note, there ap- peared to be ciidorfed on the back thereof by t ^ lc plaintiff, fix pounds twelve millings and fix- pence, received of faid Clark, in January, 1779 ; an( i m April, 1780, judgement was rendered for jh e remainder. That at the time of the aflign- ment of faid note to the plaintiff, and for leve- ral years after, faid Clark was abundantly able to difcharge the debt. That the plaintiff did not profecute faid note in the law, until more than eight years after he received it; nor did he within that time give any notice to the tejla- tor, or the defendants, that faid Clark had re- fufed payment ; but held the fame in his own cuftody, without offering to return it; that faid Clark is now dead, infolvent, and the contents of faid note loft. That the fecond count is for the fame matter, caufe and thing alledged in the firft count. The plaintiff demurred generally and judge- ment was rendered for the defendants. COUNTY OF MIDDLESEX, JULY TERM. 5 1 The error affigned was, that the plea in bar ~~{j$6l was in fubftance the general iffue, and contain- = ed only a denial of the fads ftated in the decla- Henfhaw ration ; therefore could not be pleaded in bar, c ^' s but if true, ought to have been given in evi- dence under the general iffue. Mr. Dana and Mr. Woodruff, for the defen- dants in error, pleaded in abatement, that the plaintiff appealed from the judgement of the court of common pleas during the fitting of the court, and entered bonds therefor, ^according to law; therefore final judgement was not yet rendered in laid caufe. Mr. Miller, for the plaintiff in error, demur- red, becaufe no duty had been paid on the ap- peal and the plea was adjudged inftifficient. BY THE WHOLE COURT. The appeal was void, the ftate duty not having been paid and certified as the law directs ; therefore no pro- cefs was pending thereon. The defendants then pleaded in nullo eft erratum and the judg- ment of the court of common pleas was affirmed. BY THE wnaLE COURT. By the align- ment of the note declared upon, the plaintiff was fully empowered to recover and receive the money due thereon, of Elijlia Clark, who exe- cuted the note : And therefore the defendants could not be liable to any aftion thereon, unlefs the plaintiff mould fliow that the money could not be recovered or obtained from Clark, either on account of its not being due,. or the promijjor being injolvent at the time of the ajjignment, or fome acl of the affignor to discharge it after- wards : Neither of which is alledged in the pre- fent cafe. And Clark, years after the affign- ment, became and is infolvent. And the plain- tiff, by receiving part of the money due on the note of the promiffor, is considered in law as ac- cepting him payor for the whole. G 2 The 52 COUNTY OF MIDDLESEX, JULY TERM. The STATE again/I LUTHER STUTSON. Q TUTSON was indiaed on the ftatute againft counterfeit- O counterfeiting, and a verdift found againft The indiament charged, that he did fe- lett and lonioufly aid and ajfift Bazaled P helps, in ma- SS ce7L kin and counterfeiting fifteen French guineas, much as af- one hundred Spani/Ji milled dollars, and one hun- dred piftareens, of falfe and bafe metal, in like- . nefs and imitation of the true guineas, &c.- - . The words of the ftatute are, " That whofoever " mail ftamp, or any other ways counterfeit ar-y " of the coins of gold or filver currently paffirg " in this ftate, or that fhall utter and put off any r * fuch counterfeit coins, knowing the fame to " be bafe, falfe and counterfeit, or that fhall " make any inftrument or inftruments, for the u counterfeiting any of the coins aforefaid, or " fliall be aiding and aflifting therein," &c. Mr. Root, of counfel for the prifoner, moved in arreft, and for caufe alledged, that the offence charged is not provided againft by ftatute. The motion was over-ruled - For, BY THE WHOLE COURT. - The exception under the motion is, that the aiding and cjjijling in the ftatute, is limited to that of making the implements for counterfeiting, and extends not to tHat of counterfeiting itfelf, which is the aid- ing and afnfting laid in the indiament. Both the letter and the reafon of the ftatute extend to aiding and aflifting in the latter cafe, as well as the former : And befides, whoever does in faa affift in the counterfeiting, does a part of it, and is as truly the counterfeiter as any one can be who does not execute the whole alone; and it is immaterial whether he be char- ged as a fole or joint agent in the matter. So that the allegation that he did aj/fijl in the coun- terfeiting, COUNTY OF MIDDLESEX, JULY TERM. 53 terfeiting, is fubftantially the fame as that he did ^YplT. counterfeit, &c. and brjngs him fully within the ==--- ftatute as a principal. PHILIP MORTIMER, Efq. againftCuAKLEsand GEORGE CALDWELL. foived, and all company ACTION on book debt. - The defendants f^ t a o f ; ne pleaded, that the book of the plaintiff, on partner^ oyer, is found to confift of articles and fervices , h me b s e ~ done and furnifhed for the defendants, as co- bound to pay partners and traders in company, between the jbts > Hc iy ' years 1761 and 1766. That on the 1 5th day becomes a of December, 1768, the defendants, by a wri- r pe ci..iafto ting under their hands, diffolved the co-part- f'-foivency n c L r m i J r< is pafled in nerthip ot the company ot Charles and George his favour, CaldwelL And by the fame writing, the faid " em P| in s yi7 7 rr i j j r 1 his bod y Charles alligned over and conveyed to laid fromimpri- George, all the company concerns, intereft and ^nhiTaf- 1 " credits, for faid George, to receive and convert fignm.j his to his own ufe. And George, in consideration ^PeTfo? thereof, took upon himfelf, covenanted and en- the uf eo this gaged, to pay all the company debts then due : And thereby, all the company intereft and ere- dits, became the property of laid George. > and it became his duty to pay and difcharge all the fi s ns company debts. That the book on which, &c. is one of faid company debts, which it was the T & duty of faid George to pay and fatisfy. That exhibitc4*to faid Charles being diverted of all property or hi sftees, ... . y ,. andavera- right to the company dues, intereit and credits, gc d among and faid George being reduced by lofles and mif- j ls , private . f r i i i debts i the fortunes, preierred his petition to tne General other psrc- Aflembly in May, 1771, representing his loifes, *" misfortunes, and inability to pay all laid debts, derdueon company- debts. 54 COUNTY OF MIDDLESEX, JULY TERM. TTgg* The Gen. Affembly inquired into the matter, =::4:= and found that his debts, including faid compa- Mortimer ny debts, which it was his duty to pay, amounted againft to 5,788/. 95. ^d. and that his eftate and credits Caid.vell. amOLm ted to 3.049/. os. y^d. including faid company interefts and credits. That the Ge- neral AfiTembly paffed a fpecial aft of infolven- cy, exempting the perfon of faid George from imprifonment from any debt then due, upon af- figning over all his property as before ftated, to truftees therein mentioned, for the ufe of his creditors. (Which off is recited at large in the plea. ) That faid George did, in purfuance and com- pliance with faid a6l of Affembly, make over and affign to faid truftees all his eftate, both real and perfonal, with all the eftate, dues, and credits of faid company of Charles and George Caldwell, to and for the ufe and benefit of his creditors. And that they ever have been fince, at the fole difpofal and direction of faid credi- tors, ,one of whom was the plaintiff, who was privy to, and acquiefced in faid tranfa&ion. That in May, 1772, upon application of faid truftees, the General Affembly, by a fpecial acl, empowered them to fue for, and recover all the debts, credits and monies due to faid George t and the late company of Charles and George t and when recovered, to divide and diftribute the fame amongft his creditors. (Which aft is reci- ted at large in the plea.) And that thereupon all the eftate, interefts, fecurities, papers, vouchers, and receipts, rela- ting to faid company debts and credits, were delivered over into the hands of faid truftees to fettle and adjuft with the feveral creditors, and faid Charles and George are wholly diverted of them, and have no means in their power to evince any payments that have been made ; and COUNTY OF MIDDLESEX, JULY TERM. 55 and thereupon faid George Caldwell, and faid ""ySST company of Charles and George Caldwdl, be- "^ came exonerated and difcharged from all fuits Mortimer and demands againft them, for any debts due and owing from faid company, until a final ave- rage fhould be made out by faid truftees, purfu- ant to faid ad of infolvency ; and then only for the refiduum of faid debts that mould be found due after fuch average mould be made. And that no average hath been made out by faid truftees, but the fame is ftill depending in the hands of faid truftees, fubjeft, as it ever has been, to the order and direction of faid cre- ditors, of whom the faid Philip Mortimer was, and is one. To this there was a demurrer, and joinder in demurrer. BY THE COURT. The plea is infufficient. The fpecial aft of infolvency fet forth in the plea, goes to the exemption of the perfon of George, one of the defendants (leaving his eftate liable, which he may afterwards acquire.) But it extends not to Charles, the other defendant. He is not named in it. Nor is it grounded on any fuppofed inability of his, to pay the com- pany debts. Nor does it operate to difcharge him on the ground of the fuppofed hardfhip there would be in his remaining liable, after the perfon of the other joint debtor is libera- ted, and the company effects and papers are gone into the hands of truftees and out of his controul. If he is in fat more expofed and defencelefs to his creditors, fince the pafling the aft of infolvency, than he was before, it does not follow that it has difcharged him. But he ever was liable to be levied upon, folely, for all , the company debts, and all their contracts were, in their nature, joint and fcveral. Nor is it owing to the patting of the aft of infolvency, that 56 COUNTY OF MIDDLESEX, JULY TERM. that he has not right to controul the company ef- fefts ; he having fold and relinquished his mare Mortimer in them years before, at the diifolution of the 2$ ain ft partnerfhip; and the att provides for no other " ' alignment than of that which -is confidered as George's eftate. Nor need there be any diffi- culty about the company books and papers. Free accefs may be had to them, and an order of court, if neceffary, might be obtained for their being brought into court when requifite in the trial of a caufe. If the trultees have paid the plaintiff any part of his debt, out of the avails of the effects af- figned to them, it can be mown and applied when damages come to be aifcffed. A balance, it is clear, there muft be-due to him, even if the alignment to the truftees be considered a* an aftual payment to the creditors, and to the no- minal amount of the credits and eiie6ts align- ed. And no reafon appears why judgement fhould not be rendered in the prefent action, for the afcertaining and recovering what ftill remain sdue. Judge DYER, dijjenting. C. and G. Cald- wcll, when they entered into contract with the plaintiff, were known to be in company; and every contract they made muft be confidered and governed by the true legal intention of the parties, and the laws of the ftate then in being and force ; and if altered by any foji faBo law, or private acl of the legiflature, will operate to deftroy or render void the original contract. Bacon's Abr. tit. ftatute c. Salkeld igSBrew- Jler vs. Kitchd. But it cannot operate to fub- jel the obligors, their perfons or eftate, in a different manner from what they were obli- ged at the time of the contract. On a bond, A and B- are joint obligors ; if the name or feal ^of one is taken off, it is deftroy ed as to the other. Charles COUNTY OF MIDDLESEX, JULY TERM. 57 Charles and George, and each of them, at the time of contracting with the plaintiff, knew and confidered that the body and eftate of each were Mortimer pledged for the fatisfaftion, or to compel the ^ payment of the debt : And Charles muft confi- der, that the body of his brother George was liable to be taken and holden to compel him to turn out or produce his eftate (if any) for the fatisfaftion of the debt, as well as his own : This alfo the plaintiff well knew, and was the legal fecurity he depended upon. If the Af- fembly, by a fovereign aft, and of a private na- ture, have undertaken to liberate the perfon of George from being liable to be taken and hol- den to compel him to produce his eftate, (if any) it materially alters the original contract and fe- curity, both as to debtors and creditors. And the creditor, by confenting thereto (without which the aft could not operate to the difad- vantage of Charles, the other partner) does as effectually difcharge the original contract, as if by his own immediate aft, he had difcharged one of the joint debtors. In the prefent cafe, if judgement is rendered in favour of the plam- tiff, he cannot take the body of George George may poffefs large property, which can eafily be kept out of the way of the creditor's execution ; and his body being exempt, there is no way to compel a difcovery : (For that is the only folid ground or reafon of the law fubjefting the body to be taken.) Now the body of George being liberated, it neceffarily cafts the whole upon Charles, effentially different from the original contraft. It is objected, that on the original contraft, the creditor, if he pleafed, might col- left the whole out of the eftate of either, or take the body of either without the other, and com- pel him to produce eftate to pay the whole. True it is foj but then Charles had an equal H chance COUKTY OF MIDDLESEX, JULY TERM, V. '1 > "77867 chance with George, that George might be com- ====== pelled to pay the whole, or at leaft the one half: Mortimer But if the att in favour of George is operative Caldwell in ' tnis caie " exempts Geor^f, and neceffarily calls the whole upon Charles, .contrary to the legal underilanding ami operation of the origi- nal contract. It is further objected, that it appears from the law authorities, that by die operation of the bankrupt laws in .England, where one partner becomes a bankrupt, the other is nottvith Hand- ing fubjected to all intents and purpofes, a* though his partner had taken no benefit there- by. To which I anfwer, that the flatute re- fpecling bankrupts -in England, is a general Tub- filling law of the kingdom, antecedent to all debts or contracts which are afFcfted by it: Therefore, when a contract is madey a. general public law exifling) fuch contract inuft be con fidered by the contracting .parties, and under- flood as fubjeft to fuch law. This is what J contend for The al now pleaded, exempting the body of George, is a private aft, which did not exifl at the time this debt was contracted* but was made long fmce ; therefore could not be had in confideration by the parties contraB- ing : But the laws then exifting, fubjected the bodies of both to be taken, and held to compel a.- fatisfaclion of the debt; one of which is fince liberated by this aft: The plaintiff and the other creditors, have conformed themfelves thereto ; which eflentially alters the original contpacl. Another point of fome weight and confider- auon in the cafe is, that the company debts and interefts were all made over to George, and with the cflate of George, by al of law and the cre- ditors, was made over to commiflioners appoint- ed by the creditors, and the plaintiff in particu- lar : And which commiflioners are appointed and COUNTY OF MIDDLESEX, JULY TERM. and empowered to examine all debts and de- mands againft faid company, and afcertain the fums due, and to apportion out to the feveral creditors their feveral parts, as in cafe of infol- vent eftates, &c. and that the fame ftill lies be- fore the commiffioners unfi nifhed. I am, there- fore, of opinion, the aftion does not at prefent lie before the courts of common law to afcer- tain the debt of any creditor, but before the commiffioners : Neither can any certain judge- ment be rendered by this court in the prefent cafe, as the commiffioners have not determined what is the plaintiff's proportion of the eftate in their hands. Upon the whole, it appears unjuft, and not confonant to reafon or equity, that on a joint or company contract of George and Charles Cald- well, a judgement mould be rendered which will fubjecl the body of Charles to be taken and imprifoned, at the pleafure of a creditor, tho* no eftate in his hands, when at the fame time George may have a plentiful eftate, but his body liberated, and no means left either for Charles himfelf, the plaintiff or any other creditor, to compel George to difcover or produce his eftate for the fatisfaftion of the company debts, or any part thereof, but Charles alone is lubjefted, con- trary to his original contract and undertaking, 1o noiBst 59 Mortimer againft Caldwel! i imn! H2 : ifiJ WOODRUFF 60 COUNTY OF LITCHIIELD, AUGUST TERM. WOODRUFF again/I WHITTLE, f Tbe HP** IS was an aclion of trover for a heifer. -I Plea, Not guilty The plaintiff claim- ed the P ro pc rt y of the heifer, by a transfer from mnsfcrf om Nathaniel Baldwin Woodruff, on the 24th day of B ' October, 1783, in payment of a debt due to the The defend- plaintiff by note. Two witnefles tediiied to the fale : They faid it was in the evening that they fraudu. were only called in to witnefs the bill of fale, this'point ft which was written in another room. They did rcftedhisdc- no t fee any note delivered up, but underilood from the converfation, which then paffed be- tween Baldwin Woodruff and the plaintiff, that a certain debt, due by note, was the confidera- tion of the bill of falc. The only queftion was, whether the transfer from Baldwin Woodruff to the plaintiff, was frau- dulent. The defendant, Whittlefty, was a con- ftable, and at the fuit of one Murray, attached the heifer in queftion, the i8th day of Novem- ber, '83, as the property of Baldwin Woodruff. It was proved by the defendant, that the pofleffion of the heifer, after the pretended transfer to the plaintiff, was not changed, till taken by the de- fendant. That the bill of fale, by which the plaintiff claimed, was dated one day before Baldwin Woodruff- had acquired any property in the heifer; and he. had frequently faid, he ne- ver would pay Murray any thing, but would put his eftate out of his hands to avoid it (though it was: at that time only a right of action.) Thefe circumftances were urged by the de- fendant as fo many indifputable badges of fraud, to which was cited, 2 Wilfon's Reports, 260 3 Coke, 82, Twine's cafe i Burrow, 467, Worfe- ley, &? al vs. De Mattos and Slader 2 Bur- row, 831, Wilfonvs. Day Cowper's Reports, 434- The COUNTY OF LITCHFIELD, AUGUST TERM. 61 The jury found a verdicl; for the defendant, "iTg^ which was accepted by the whole court. The plaintiff's counfel then moved in arreft Woodruff of judgement, and for caufe alledged, wt'^r'r 1. That on trial of faid caufe before the court and jury, the only queftion was, whether the tranfaclion between Solomon Woodruff, the plain- tiff, and Nathaniel B. Woodruff, on the 24th day of O&ober, 1783, relative to the fale of faid heifer, was fraudulent, as it refpecleda demand of one Philemon Murray, upon faid Nathaniel B. Woodruff. And that in evidence, the defen- dant exhibited a writ of attachment, in favour of faid Murray, againft faid Baldwin Woodruff, in an aclion for Jlander, demanding forty mil- lings damages; which writ was dated the yth day of October, and ferved the i8th day of November, 1783 : And that faid writ of attach- ment, and judgement thereon, was the only evi- dence of any debt, on the part of faid Murray, againft faid Baldwin Woodruff, which could not be confidered as a debt, until after faid i8th day of November ; therefore, at the time of faid bargain and fale of faid heifer, from faid Bald- win Woodruff to the plaintiff, there was no cer- tain claim, debt or demand exifting, on the part of faid Murray, againft faid Baldwin Woodruff \ fo as to make faid fale fraudulent. ,slq 2. That one of the jurors who tried faid caufe, had previoufly to faid trial given his opi- nion in faid caiife. The' motion was over-ruled. T sfl3 zid ^'u never BY THE WHOLE COURT. ^The firft ex- refort to th e ception is infufficient; becaufe the court, on ^h^hTve'J- motion in arreft, after a general verdict of the fa& is foun- jury, cannot refort back to, thev evidence on ground* of which the verdict was founded, to fet it afide, *"t fi -> but but muft render judgement according to: the Is eonci!i- Cr 1j> found. five, the faOs . , found by the And COUNTY or LITCKFIELD, AUG-UST TERM. And, upon examination into the fa6h alled- ged in the fecond exception, it does not appear that there was any partiality in the juror, who is faid to have given his opinion in the cafe, be- fore the trial, as he declares he had no remem- brance of it;, and.although it was teitHied by two young men that they had heard him, fome years ago, give his opinion in a tranfient dif- courfe, yet it doth not appear that, that opinion was founded on a full knowledge of the cafe, or tiiat it had any influence on his mind in the trial. And it was further fhown, that the other jurors were very unanimous in giving their verdicl as they did, before they had heard his opinion* lift bnr A party 10 a NOTE. In this cafe, it was moved > on the part c"!v e l yancc, of the defendant, that he might introduce, tejlimony and not a of what Baldwin Woodruff had acknowledged , as iiiit^cannot to the fraud in [aid j ale. But^-ih isdl . i* a yitnrfs, jj Y THE COURT. What a ptrfon hath been he his "aid, heard tofay> who is only inters/led in the event of when the a fa* fa m t a p art/ y to it cannot be given in evi- parcy fucd .* r , , r r r r i r if not P re- deuce ; for though a perfon may conjejsjor mm/elf, he cannot for another. n3ff\ f"U^ fl <\^^^y ^-y^T* t- It was alfo moved to enquire the character of the parties to the fraudulent conveyance, as to honejly -which was over-ruled by the court. ,-r:i - BILL againjl SCOTT. a juf- "C 1 RROR from the judgement of a Juftice of acc ** ds XL* the Peace. Scott brought his action qui good DC- tarn, againft .Bz//, for an affault and battery, de- wibiS*- manding damage four pounds. The Juftice i y tin the next rendered judgement for the plaintiff, which was commfn pleas, leaving it to the difcrction of that court to continue or difeharge the bonds. COUNTY OF LITCHFI-ILLD, AUGUST TERM.' recorded in thefe words : : " Watertown, " January 28th, 1786. At a court for the trial- " of fmall caufes, Thomas Fenn, Efq. Juftice of <( the Peace for Litchfield county, prefem ; " Elijah Bill, of Watertown, was brought by a " fpecialty to anfwer to a complaint figned by " Eliphaz ' Scott, of faid Watertown, for breach " of the peace. The court opened, the delin- " quent, in court, pleaded, Not guilty. The " plaintiff teftified, : under oath, that he was gui!- " ty; and evidence was fworn, examined, and " the cafe heard at large. This court find " damage for the plaintiff 4!. lawful money, " and iO5. fine to the public, and order faid " Elijah Bill to find fufficient bond of ioo/. for " his peaceable behaviour, and to pay coft, tax- "ed at 195. 9^." Errors affigned, i . That it appears from the record, that the teftimony of the plaintiff in the action was admitted on the trial, which -was illegal. 2. That the bond for the good behaviour of the then defendant, Avas illegally taken, for that no time is fet when it may expire, nor any re- ference had to any court where the plaintiff can obtain relief againfl it. And without argument, the judgement of the Juftice was reverfed.- -For, BY THE WHOLE COURT. ' The complain- ant who profecuted, as well.for his_o:wn damages - as for a breach of the peace, was admitted as a witnefs in the cafe which was illegal. And it doth not appear from the record, that the defendant was found guilty, thougrf he wiu adjudged to pay damages and cofls. The.defendant was bound to his good beha- viour, without day, or reference to any court : Whereas, a Jufiice of the Peace! can bind, in fuch cafe, only to the next court of common pleas, I?' I? ill agasr.fi bcott. ' 64 COUNT.X OF JUixcHf ISLD, AUGUST pleas, leaving it to the difcretion of that court to continue or difcharge the bonds. ttOi I 3 A 'sst ?3r* +** - t >> f* '* aM * ta vn ' Jc i * n ** ~\ . > *^f /^ % /V f\f H^^I^R^viHl% * I i"l PECK ffgaiiifl GOODWI:,. 'HIS was an aftion of trefpafs for cutting to aibitra- L timber. The dsfeadant pleaded the.,sc- tors tor their y. i rr TM ' i-,- difpofaias nerai iliae. 1 he principal point in difpute thcy / h vf lla " was > the validity of a quit-claim deed from- the ward the ti- ' r -/ T tie; and up- .plaintm to the deiendant, under which the de- '' ^adant claimed title. The cafe was, in 1784, an action of .trefpaf* ^^ pending bciwcen the fame parti'for dut- ting oh the, lands now in queftipn.; both- .claim- ^Og- The controvcriy was iubmitted to arbitra- k is made. rion. Quit-claim deeds from ea.ch to the othei were executed, acknowledged, and delivered into the hands of the arbitrators, to be by \them difpofed of as they mould aw.ard the title. >T-hc arbitrators, upon hearing, awa*de.d>fl>e t;tk,tl> be in Goodzviit, the defendant, and delivered to him the deeds. There was fome contention at the trial, whether Peck did not forbid the deli- very of the deed after the arbitrators had pub- ,> :.^*A iiiucu their award : But the Court faid it was im- } material, for the publifliing : th-aw^ird was the .'^ . i condition otthe delivery ; that bein^perforjn- ed, the deed became abfolute. And although the fee of lands cannot be transferred by award of arbitrators, yet it may w r ell be done by deed, , D as in this cale. The jury focind a verdicl for the defendant, which was accepted by the whole court. COUKTY OF LlTCHFlXLD, AUGUST TRM BOSTWICK againjl NICKILSON. ACTION on the cafe for words, refpeBing the plaintiff in his nrofeffion, as attorney evidence* shall not be at law. given of fpc- The declaration concluded with thefe words : " That by rcafon of the defendant's uttering " Tt and publiihing the falfe and fcandalous words he dccUn- " afarefaid, thofe who ufed to employ him in "' their cafes and important concerns, daily " withdraw themfelves, their bufinefs," &c. The defendant's council fuggefted to the court, that the plaintiff had alledged fpecial damage; and therefore moved to enquire whe- ther any had been fuftained. Mr. Reeve, counfel for the plaintiff, denied that thofe words in the declaration amounted to an allegation of fpecial damage ; and cited the cafe of Browning Vs. Newman^ i Strange t 666 ; alfo Built T*S Niji Prius, jth page. BY THE COURT. - This declaration is ge- neral ; there are no damages fo particularly fc't forth, as to ground a fpecial enquiry. A6tion for . . falfe Jmpri. STODDARD againjt BI"KD, fonmcmmay be maintain* A CTION of trefpafs for falfe imprifonment. cd ' vhe e i\ T~t- tr r>. one procures ^ J^ 1 he declaration itates, that, " On r roccf s " the 26th day of September, A. D. 1783, in Vlt ? ou ' . c .1 i n f T^ r ' caufeofaAi- tne nortneait precinct, in Dutchefs county, on, &caufe " ttate of New-York,- (vithin the county of Liich- '%$$& "field) with force and arms, a high handed af- defign to ex- ;< fault on the body of the plaintiff the defendant gl " did make, and did then and there, without without '* law or right, in a fpiteful and malicious man- I " ner 6$ COUNTY or LITCHFIELD, AUGUST TERM. TTSifr " ner ta ^ e > Teize, and caufe to be arrefted, fche " body of the plaintiff, and with the fame force ^.dard <( and arms him did unlawfully, \\ rongfuUy, ajul! lh-H ? " falfly imprifon, hold, abide and reftram from; 1C his liberty for the fpace of.tl-.ree days, until he' lt did make, caufe and compel. the plaintiff to' ir pay large fums of mone) , in order i The general iffuc being, pleaded, .the cafe ap- peared to be thus': The plaintiff way ad'.niiii- drator on the cfiatc of J-Ji^h ^ fed: He had made a reprefemaiion of mfvl- vency to the court of probate for the difh ^liaron; .'comniiflioncrs had been appointed, who received and examined the claim:, exhibit- ed againft the eitate, and had reported -the fame .to be infolvent. No average had been made to the creditors, or ordered to be inii.de by \\v, court of probate, but was flill pejadjnpr r ,TO& defendant had exhibited a debt of thirty-fix fhi'l- lings lawful money againft laid cftate, to i commiflioners, previoufly to the imprifonmc complained of, which was .allowed. While 'thefe matters were thus pending before the court of probate, the plaintiff being in the ".dale of New- York, the defendant there applied to a Juflice of the Peace, and prayed out a capias againft the perfon of the plaintiff, for the Tame debt of thirty (hillings, which had been exh^u ted to the comrnilfioners, as a claim againft the eftate of Stodciard> deceafed. -The plaintiff was taken by virtue of this .writ, carried before .the ] lift ice, there held in cuftody till he procured ipecial bail, and was held to a trial ; on .wh.ichj iudeernent w-as rendered againft him for debt J ," '.> 9 TO JJt 3TIJ m- rfj ni \ Tl Ifl r , . It was noV agreed by the, parties, ror did it appear on 'trial, whether the proccfs iffued by the luftice was regular, and coi.fifteiH with the ' , t v ; laws of the ftatc of New- York. r - >. * I COUNTY or LITCHFIELD, AUGUST TERM. Mr. Reeve and Mr. Tracy, for the plaintiff, ""rjJjiS urged that Luther Stoddard, the plaintiff, was not liable, by the laws of Connecticut, to any s ^a*d kind of fuit for the debt which \Bird had exhi- bited to the commiflioners, during its pendency before the court of probate. The procefs imied by the Juftice was illegal, and not warranted by the laws of the ftate of .New- York j for the claufe, at etiam billce, could not legally be in- ferted. The Britifh ftatute of the 13. Car. 2, which prohibits the inferting of that claufe, a- gainft executors and adminiftrators, has been explicitly adopted by the ftate of New- York. But admitting the form of the writ to have beqn regular, Stoddard ought not to have been ar- refted ; the ufual return of common bail ouiy,' mould have been made : Therefore, the fuit being groundlefs in the firft inftance, and ille- gal in the procefs and execution, the defendant who procured it, with a wicked intention, was guilty of a trefpafs, and muft be liable to refpond in damages. P \*J "-' ' Mr. Root and Mr. Canjield, for the defendant/ admitted the laws of this ftate as urged on the other fide, but denied that by the laws of ftate of New- York any other form or proccb: could have been iffued, than the one iflucd by the Juftice. If fpecial bail was not required by law in cafe of an adminiftrator, the officer di wrong not to make return of common I difmifs Stoddard: But this would be the wromi falfe imprifonment can be ' fuftained a^ainft' Bird for the ad of the officer. If there was any informality in the'WrfL?8f if the aftion was not Tuftainable before the fuf- tice, Stoddard has waved all advantages wl he might have derived from that quarter, by not ' "Ta pleading COUNTY OF LITCIIF IILLD, AUGUST TERM. pleading in abatement at that time. As he pleaded to the merits, he acknowledged the ju- rii'diction, and admitted the legality of the pro- C&; and the judgement being rendered againft him on that iffue> it is. to be prefamed that the of aclion was well fupported, according to the laws of that (late. Lord Raymond, 229. Trcfcot vs. C&rptntcr and Mann. The pre- '*i3na v , ... lent aBion is entirely misconceived ; for if -o^nTo^ui Stoddvrd ^as any right of action, it. muft be cdfi? and not trefpafs. The jury found a verdia for the ptaintHf yrrti. on which the court delivered the following opi- nions : Judge ELLS WORT n. Right of action againil an adminiftrator is tranfitory, and the action may be brought whenever he is found. And though he is not to be arrefted according to the mode of procefs in this ftate, he may be, for ought appears in the ftate of New-York. And the prefumption is he may, beca'ufe the autho- rity there iffued a warrant to make the arreft, and held him to trial upon it. As to the fuit there, being without caufe, andi vexatious; this is not to be intended, but the contrary, after a judgement in the plaintiff's fa- vour, on a full trial upon the, merits; but if it fo yet if the arreft and holding was by a vpracetpt, a n action of falfe imprifonment is ewrt rithfe pwroper remedy, but an acYion on the cijfei vOib upon, the ftatute againft vexatious fuits, I-thipk^no trefpafs is here proved; and there- fore that the jury have found wrong- Judge PITS. IN. -As it appears that the ad- nfriniftrator conducted properly, he ought to be pFotefted, otherwife noperfon would be fafe in that fituation. The laws of this ftate undoubt- edly protect adminiftrators from arrefts on ac- count gf the deceafed whom they reprefent: For if COUNTY OF LITCHFIELD, AUGUST TERM. $a if irwas otherwife, and they might be legally ~~^ arrefted in this way, whenever they mould hapl *2* pen to go out of the ftate, they would be liable Stoddard ; to be ruined : Therefore I think the procefs was W- illegal, and the fuit unwarrantable *rdrt --Wg9 SHERM A .- Undoubtedly there are ft infence. where one may make ufe of legal au- 2L"S o< thorny m fuch manner as to become liable to le fi'i ailth - the aaion of falfc imprifonment : As where one) mL? r wUl arreit another by legal authority, without becoi " e l a ' any caufe of aBion, and not return the writ, &c.s Son fo"fi in this cale it does not appear but the fuit im P rifolu was legally inftituted agreeably to the forms of " that ftate; and the prefumption is rather that; way, for the aftion- went to trial, and judgment was rendered by court and jury againft the pmi fent p aintiff. I think that io far jiiftifi^^L traniattion that this kind of remedi i, notJS phcabJe to the fuppofed injury. I am AerdSai of opinion the jury are wrong. >%. DyER._very caufe will have own peculiar complexion and leading ca ft Tte f here are conceded. The action of 1 . always . goes on thu ' the impVifonment compiained of ri wrong.? If i t appeari P (0 on th this cafe - co, w '" "I 1 recover was net bound, tended i I ,h- lr . *''icli l iOetfro -Ithinkhe hadnorigtu to do h- 70 COUNTY or- LITCHFI ELD, AUGUST TERM. 786? ^'^ ^ere was a -writ taken out to arreft the body _=:= qf Stoddard. Did he mean to have fuch a writ ? Scoddard He undoubtedly did, for no other would an- ^ wer k* s purppfe. The intention and defign, then, was wrongful, and the aft injurious ; fo that I cannot fee but the jury have done right. LAW, Chief JuJlice.~ So far feems to be agreed, that the defendant has done wrong: The only queftion is, whether the plaintiff has chofen his proper and legal remedy. There are many cafes where a man may have two re- medies for the fame injury : He may then make his election which he will -pin-fae; The law means that a remedy mail be provided for every wrong, that will do equal juftice to both the par- ties. Will this aftion do compleat juftice ? 1 am not certain but it will do as ample juftice as any other. - There is no evidence but that the defendant applied for jufl fuch a writ as was if*. fued ' and ir is nioft reafonable to fiippofe that he did, and that the officer conducted rightly, and agreeably to the precept. The plaintiff has confequently been injured by the procurement and wrong aft of the defendant. I am there- fore of opinion the verdift is right, It was accordingly eftabliffied. orfj lo gaiJnw ion bluoD bns nr W' BENEDICT againfl BROWNSON. A W itnefs ;. TN this cafe the plaintiff offered a witnefs, who not admiffi- |_ h d en g a ged to pay his, the plaintiff's, at- torney SSRfc* the fuit'fthe plaintiff oi,ie to re- bei a 'p O( >r man), and had a promife from the XTSffirf plaintiff that part of the avails of the iuit, if a ou f "h 'if recovery was had, foould be applied to the pay- the party .. , was indebted to him, and had no vifiblc means of payment but by recovery, that alone would not exclude him. GOU-KTTY OF Ll'TCHFlELD, AUGUST TERM. oient of a;debt tben'due ttf the witnefs from the pl^iatiff.-^TTT-^ttfi * n i}.,* ,, CLmH^-rr*^ -* P> it irvt^rH-i^rl and m- ht- . , THE Coy*T.-T-^~He i* interefted and in- 16 fhare the be-. neCoCjIferesp^r^if^fc JS-'fead : TOofofffj if Ju: ~Oi^ ,,^^+f^^ r&>w*n*A5*W4*yniH;}+ thc^ r* i>laiHiiJrV^f:ii^eUd4ehim; and had no vilrble means of payment;! excepting by a reccwerv, it would not e-x G-ljo.de him,- Thai; pomi. lias i. long decide^ v;3T Ifigsi bnB isqoiq * Sri! vs^sH ^"Ifl* 1 SL ? 5i>tJfT ! HT ..u.riiuT^" \Qadminijlrator on the eftate of fcfi.o-, lilL'^ABW BAfbgairifi PH E LPS. THIS was an aBion of book debt. The. man adion ''account exhibited confifted of one article only, '(to tuit) twenty half-jo hannes. The char.ge an was not in the hand writing of the deceafed. : Ivlf. J Adam$ t for the defendant, moved that the plaintiff be compelled to produce the origi- nal entries of the deceafed, or fuffer u non+fuit^ty neeefla Mr. Hitman, for the plaintiff, ftated x that by ^ "' accident, the original entries, which were in the hand writing of the deceafed, were totally loft, and could not be producedThat the account exhibited was made by the attorney, in confe- quence of directions received from the decea- fed, in his life time That the^plaji^t^ could .prove there had been a charge in the Hand wri- ting of the deceafed-, exaftly ccirre(jk>ridh>j* Ui\fl the one exhibited on trial, and that the deceafed- had declared the fame to be a juft charge. Mr. Adams, in reply, faid, that if adminiRra- tors were permitted to iuftain actions on accoun, made by them in favour of the decesrfed, fron 71 COUNTY or LITCHFIELD, AUGUST TZRM. ^iT??* ^ u k i n f ormat i n as they might be able to col- ===== left, their would be no guarding againft unjufl Leavenfw. demands of this kind : For if the original papers ag*i*ft were produced, it might appear from them that P 5 ' the account had been fettled, or that the articles were delivered in difcharge of fome antecedent demand ; or much other light might be reflect- ed on the fubjecl. That an original entry was a fpecies of evidence indifpenfibly necefiary to fupport a demand of this kind. BY THE COURT.- The aftion may pro- ceed without thofe entries ; for if the demand, under all the circumftances of it, mould not be fufficiently fupported by evidence, the aftion muft fail. The charge in the hand writing of the deceafed, can only be evidential of a right of recovery, which may be fupplied by other evidence, of as great or greater weight. M'DONALD and Others again/I LEACH. dc'i r- A CTION of diffeifin : The general iflue wn C cie b rk a **** pleaded. The cafe was, that in the 10 be recor- year 1775, Daniel Bojlwick was negociating a d ^ of d tha" loan of money of M< Donald, of the ftate of New- kind made York. In order to obtain the money, he made ffilfccwea a mortgage deed to M'Dcnald, of the land in lid an! l ? e m ^ ue ^ on > carried it to the regiftcr in New-Mil- -fhed'ay iT" 1 ford, where the land lay, who received the deed. re ~ anc * made an entry on the back, " received for t an y recording." At the fame time, the rcgifter teme 5 in vte a certificate direttcd to M* Donald, that rhichthc Bojlwick had lodged fuch a deed in his office, lorfcdV 6 ' -which was entered on record. Bcjiwick alfo told the remitter not to record the deed at that 'time. The recifter, accordingly wrote on the deed COUNTY OF LLTCHUIJ.D, AUGUST Tsy . ^ deed below the entry firft made, record," : r~~ atnd placed the deed in a bundle of the fame, =W kind, where it remained till about the year 1783-^ M both ot wnicb deeds were recorded at full &gj^9i^fpS^y?ss Vexed that his-,deed hnd n^r^t- li^- -i :. j- > _ . at diti v- v^.u^c, iuu/iu ic |^^^,^f-f ecc)i:de ^ <-and then broughi Tl-? C H/^Tl^IKi r >rt> 41tarva.s.LtyiO ' j i ' n a JL*^ nnRrt rf r *,^ .- -r- M7iUWMdlS id Mr. J?^ir, for the plaintiff. .^ H r . M e , ed havil ^g been lodged with the regifter, , entry made, that it was recei- ved for recording; the regifter was bound to >erfed the record; and no orders to the con- trary either from grantororgrantee, could go- vern him -By the (latute refpecling deedsf it H enaaed That no grant or deed, of bar- .. ^?ffl>AxJf' or Mortgage, made of any houfes ands within this flate, mall ; b'e' accounted ood andeffeaual in law to hold fucli .bouies and lands againft any otl>F-perf( ff r > >rf*">bti And the town clerk, or t^^ T ^^r m ^^y >wn jn-this ftate, /hall, on the mcetet of arrv - T 9oi'/y 4j^tj .,-. ,...._ 74 1786. The l atter claufe of this ftatute is in fome de- *==== gree explanatory of the firft, and mows that the M'Donald entry of the regifter on the deed, and the lodging agamft j t j n fae office, is in judgement of law a record- ing, fo far as to fecure the title ; and when com- pleated, the title by relation becomes perfeft from the execution of the deed. See Cowpcr's Reports, 705, Doe vs. Routkdge i Burrow, 474, Sir Edward Worjley, vs. Demattos and Slader. Mr. Ca-nfieldand Mr. Everitt, for the defen- dant, faid, that the conduci with regard to McDonald's deed had been fuch, that if it mould be eftablilhed, it would operate as a fraud upon the prcfent defendant. He pur- chafed when no incumbrance on Bo/lwick's ti- tle could be faund on record j therefore he had the faireft grounds to prefume none exilled. He had purfued every legal method to authenticate his title, and ought to be fecured in the enjoy- ment of it. If the fame care and attention had been practiced by M*Donald t no injuftice could have taken place. That McDonald's deed, appeared not to have been delivered to- the grantee at the time it was lodged in the office of the regifter ; neither had the confideration been received : Therefore the. deed was not valid, and the entries of the regif- ter were of no more confequence than thofe of any other perfon. No fubfequent a6l of M'Do- nald could, by the do6lrine -of relations, reftore a title which was defective in its origin. It was obferved from the Bench, that the Ju- tice who took the acknowledgement, had figned himfelf as a witnefs to the delivery, which was an evidence of that fat, of too high a nature to be doubted. The jury found a verdi6l for the plaintiff, which was accepted by the whole court. ELDRIDCI COUNTY o* LITCHFIELD, AUGUST TERM. ELDRIDGE again/I LANE and ROSEVZLT. In Chancery. THE cafe was, That on the loth of March, A.D. 1783, the petitioner, together with one Jojlma Wells and Samuel Doud, became ob- ligated to Jared Lane, one. of the refpondents, in the fum of 167 /. 165. lawful money. Welh and Doud, in confideration that the petitioner had become bound for them, on the fame day executed to him an indemnifying bond, of fur- ficient amount to fave him harmlefs. In March 1784, Lane put the faid obligation in fuit, and recovered a judgement for i8o/. 45. nd. The execution was levied on the petitioner's lands, and the whole contents fatisfied with his proper- ty.r In September, 1784, the petitioner reco- vered judgement againft Welh and Doud, on the indemnifying bond,, for 2Og/. 35. 4 " likewi/e 250/. of the principal of fa,. " ceived this day, &c. The petitioner fuppofcd at tl K 76 COUNTY OF LirchTi^Ln, AUGUST TERM. his executions, there was no greater lien upon the land than ioo/. and the intereft there- Eldridge of from the 26th of June, 1 779. This land was ' apprailed to the petitioner at the fum of his two Lane, &c. executions, un der the fuppofed incumbrance of ioo/. only. After the petitioner had ctim- pleated his levy on the land, Doud, with a de- fign to defraud the petitioner, carne to an agree- ment with Lane- to adrriit there was dill due on the mortgage about 400?. and to relinquish all right and title to the equity of redemption, and furrender the mortgaged land to Lane t in fatis- faclion of what was then due. This agree rrrent was carried into execution by the parties, ac- cording to the forms of law. That at the time the petitioner levied his exe- cutions on this land there was not, nor had there been at any time afterwards, any other eftate of Doud or Wells, which he could obtain : And that, in all thefe tranfaftions, Lane a6ted for Jfaac Rofevdty of the city of New-York ; to whom he bad conveyed, by deed of rebate, all his title to faid lands. It alfo appeared, that the payment made on the bond, and acknowledged by the receipt as lawful money, was in facl: continental money, about feven eighths depreciated. The prayer of the petition was, that Lane and Rofevelt be competed, under a fuitable penalty, to quit-claim faid land to the petitioner, on pay- ment of the fum of ioo/. atid the intereft there- of from the 2Oth of June, 1779. The court decreed, that the petitioner might redeem upon paying the amount of the mortgage monies due, deducting the payment made by Doud, at the nominal fum. BRADJLP. v COUNTY OF LITCHFIELB, AUGUST TERM. 77 k^EZ; BRAOLEY nrf 02A*rs again/I CAMP, . ERROR from the court of common pleas, on a bill of exceptions. The plaintiffs being truftees to the infolvent eftate of Reynold Marvin^ Efq. brought their aclion of book-debt i aw , nabie againft the defendant, Joel Camp. The gene- ral iflue was pleaded and joined to the court ; and a judgement rendered for the defendant. ietlueilulwl _ The cafe, as it appeared on, trial, was then fta- thcr partner, ted in a bill of exceptions, and certified by the JJe a "j. Judge.* Some time iri the year 1759, the de- nership bfi- iendan-t entered into a copartnerfhip trade with p^^ol Silas Bingham, which extended only to the pur- tice i* giv- chafing goods from a certain Mrs. Webb, at f n lu : j . a nd \Veathersfield, as occafion fhould require, to on a joint r i n o i 1 1 -i f contract, n fupply a itore in Sahibury,. in the county . ot 011C onl y be Litchfield, for the purpofes of retailing. This fted, his n- i-rr i i ^ x r \ matter of a- partnerlhip was diliolved in iviay 1762, by mu- batement, tual agreement. The diffolution was publifh- buc no ad " ed, by a declaration in the hearing of feveral be tai perfons who were called as witaefles ; and ne- ver piiblilhed in any other manner, but was, however, generally known in the town of Sa- lifbury. By the dilfolution, all debts due the company * Note. The propriety of introducing Bills ofexcep- titns in this manner, has been queftioned by fome. There are, however, in Engliih books, many precedents for this practice (vid.) Douglafs* Reports, 363, Blaqnier\s. Haivkins. i Blaekjlone 1 i Reports, 555, Money vs. Leach. Cowper, t6i, Moftyn vs. Fabrigas. And there may, perhaps, be much more reafon for adopting fuch a praftice here, where many queftions of law are fubmitred to the ju- ry ; and if a fpecial verdict be found, no other relief can be had againft an erroneous judgment-: Bat , ; in- -this cafe the mode of bringing it up, was not contended, and no opinion of court taken upon the fqbjecl. Since the trial of this caufe, the mode of bringing up a caufe by bill of exceptions, nnder like circumftances, has been adjudged illegal. See the cafe) Fleming againft Fijbfr and a/ for the plaintiffs in error. It is an eftablifhed principle, that in mercan- tile companies, the contraQ of one partner, re- fpeQing the partnerfhip, is binding on the whole, 292 until notice of a diflblution be given.* What 2 Black, is proper notice, and whether it has been given tone's Re in this cafe, is a queftion Tire ordinary way F? rts > 993 r f i f r*. . . ' . ' vjrace ot announcing fuch tranfactions is by advertife- a g*inji ment in a public gazette. As each individual Smith, of the company acquire* a joint credit with his copartners COUN'TY OF LlTCHFlELD, AuGUST TlRM* copartners when that connexion is formed, no- thing can be more reafonable, than, that the Bracley difTolution of that connexion mould be made again/I known wherever the company's dealings ex- ja ^' tend, before either can claim an exemption, from the contracts of the other. In the cafe of Fox againft Hanbury % Cowper> 449, it is ad- judged by the court of King's Bench, that, " if " partners diffolve their partnerfhip, they who at Hartford, in which this point had been adjudged. """ The cafe was, that an action was " brought againft William Imlay t on a contract * " made by a partner of a company, (to which " Imlay had belonged) after the diifolution. " It appeared that the diffolution had not been " properly publifhed, and Imlay was holden to Cl difcharge the debt." The cafe of Bloxham and Fourdrinier againft zBlack- 1 " Pell **d Brooke, before Lord Mansfield, corn- tone's Re- pares very exa6tly with the prefent cafe.t ports, 999. " There was a partnership for feven years be- " tween Brooke and Pell; but at the end of one " year agreed to be diffolved, but no exprefs <( diifolution was had. The agreement recited, " that Brooke being delirous to have the profits " of the trade to himfelf, and Pell being defi- s R e ~- againft one, to (how that another is alfo indebu ports 697, ed, and might have been joined in the fuit : Nor Rlcc doth the law require the fame circumftantiality c , v , -r j i r v Shute. and preciiion in declaring upon ipecialities, or 5 Burrow, other writings of which there is a profit, as on 2611. S.C. a fpecial afTumpfit, where the defendant has no 2 Black- means of identifying the contract but from the ^^j.* 7 * declaration ; and a fmall variation between the vs allegations and the proofs may be fatal. Smith. Therefore, the judgement of the court of com- mon pleas was reverfed. The STATE again/I WILLIAM GREEN. The jury art THIS was an indidment for adultery. A r T/-> ' ~- After verditt, Mr. Reeve and Mr. Tracy, evidence, counfel for the prifoner, moved in arreft. They ^cSri 1 - mowed for caufe, That the teftimony produ- ti< , every ced againft the prifoner, on trial, was, that fome a^cT^f .he perfons fufpecling faid Green to be with Tryphc- caf ei theic- na t wife of Saviutl Rojfetar, at 9 o'clock in the SonV^fcb evening of the loth day of May 1786 ; and that is thought they fet out to go to the houfe of Ro/etar, and -They returned again to Rojfetar's houfe, and having heard fome perfon nailing a window, they looked in and found Green in bed with faid Trypkend, a little after 10 o'clock in the even- ing; and fhe was feen to turn from Green while in bed undreflcd : Which f d was not conteft- cd by the counfel afligned f the prifoner ; but the whole matter in difpute vvas, whether that iatl was fufficient to convi6l upon the ftatute againil adultery: And that the verdict was found againft law. For the prifoner they urged, that this was not proof of the crime of adultery ; though it was undoubted proof of a different crime of a lower - nature, for which the legiflature have exprefsly provided a punimment, by ftatute ; which is " That if any man be found in bed with another " man's wife, the man and woman fo offending, " being thereof convi&ed, mall be feverely an - titt, he ottered his whole colt to be taxed ; rece<'e'tro but it was ruled by the whole court, that the lm ' plaintiff fliould recover no coft antecedent to the abatement, excepting writ, duty, and offi- cers fees. fees. The de r e n d- an: c. nnoc WOOSTER agamfl SiMONS. d.mnrto the dcchra- 'HIS cafe was tried at the court of common jj^jf et pleas, on the general HFue, and a verdict r leaded to >r the plaintiff. The defendant moved in * flue ' M __i7_86. Woofler againft Simons. COUNTY OP LITCMPIKID, AUGUST TERM. arreft, becaufe of the infufficiency of the decla- ration; which was over ruled. The defendant then appealed ; and before this court, moved for leave to demur to the declaration; which was denied by the. court : Becaufe, by ftatute, the defendant having pleaded to ifTue, and judge- ment thereon been rendered, mall not demur. GRANT againjl JACKSON. DccU r ation, '*' that the defendant received of the pldintiff a?l. 6s. Sd. in o:d rs on the one shilling (tax, which he promifed to return or account for i*" ad- jiidg^d in- fufticient for uncertainty. A SSUMPSIT.- -The declaration is, JL\ " That on the 23d day of Sept. 1784, the " defendant received of the plaintiff 29?. 65. Sd. " in orders on the one milling tax ; which orders " the defendant then and there promifed to re- rt turn to the plaintiff by the firft day of July " then next, or to account with the plaintiff for " faid orders in fome other way, by faid time; " as appears by a writing under the defendant's " hand, of the date above, ready in court to be "produced." To this declaration the defendant demurred generally. Mr. Strong, for the defendant, took two ex- ceptions: 1. The declaration is fo vague and uncertain, that no legal judgement can be founded there- on. It does not point out the kind of orders .with that certainly that the value can be afcer- tained. 2. The action is mifconceived, for by the plaintiff's own mewing the defendant was to ac- count ; the aftion therefore ought to have been account and not ajffumpjit. Mr. Tracy for the plaintiff. The declara- tion counts truly on the writing, and ftates the whole COUNTY or LITCHFIELD, AUGUST TERM. 91 whole of it ; it could not with propriety go == ^Q = f any further. The defendant fuffers no difad- - -^ vantage ; for he is fufficiently notified of the Grant nature and kind of the demand. If there be again ff any uncertainty refpe6ling the damage to be J a< affeffed, it may be aided by evidence. As to the fecond exception, afTumpfit will lie in all .cafes where there is an exprefs under- taking to account. i. Salkeld, 9. Wilkin vs. Wilkin. i. Bacon's Abr. tit. ajjumpfit. (A.) BY THE WHOLE COURT. The declara- tion is inefficient it gives no rule of damages; The orders which the defendant is challenged to account for being no otherwife dcfcribed than as drawn on the one (hilling tax ; and as it doth not appear by whom or by what autho- rity they were drawn, or on which of the one {hilling taxes, as divers have been granted and were of different values, there is no rule given to the court by which to afcertain their value, or affefs damages for not re-delivering or other- wife accounting for < them. The Ecclefiaflical Society of South-Farms, in Litchfield, againft GEORGE BKCKWITK. ACTION for breach of covenant. The declaration was, that the plaintiffs having called the defendant, in the cuftomary way of calling candidates for the miniftry, to fettle with them as a gofpel minilter; and he having cove- nanted and agreed to the fame ; for the better underftanding and mutual advantage of the parties, at Litchfield, on the 2zd day of Oftobqr 1772, the plaintiffs and defendant covenanted M 2 and COUNTY-OF LiTcirrizLD, AUGUST TERM. and agreed, among other things, as follows South- I'arms agaiajt Beck with, viz. The church vx&focicty (meaning the church "firmed in faid fociety, and the inhabitants of "faid fociely) engage to fupport Mr. Beck. " during his natural life, and to give him 135^ " on the day of his inftallation ; and if not paid " at that time, to pay him the intereft thereof " till paid. Alfo to pay him 6$l. more, with. " in two years from faid time, and if not then " paid, to pay him the intereft thereof till " paid. All this, the faid church, and focietp " agree to pay Mr. Bcckwith as a fettlement. " And the faid Mr. Beckwith y on his part doth " hereby agree to accept the above offer, and en- " gage to become the minifter and paftor of faid " church upon their prefent eftablilhment ; and *' to ferve faid church and fociety in the gofpel " miniftry, as God fhall give him ability, during cr his natural life ; and not to vary or go oif f( from faid eftablifhment, without a majority Cf of faid church and fociety colleftively, except *' he forfeit (if it be immediately) his whole fet- ct tlement; if after but one year from the time " of his fettlement, then 190!. thereof; if after " two years, then i8ol. and fo on in the fame '* proportion, according to the number of years c * he continues to be their paftor, till twenty " years are expired, if God pleafe to fpare his " life, and continue faid near relation till after " that time, when after that there mail be no " forfeiture of fettlement." Which covenant was w.ell executed under the hands and feals of a committee lawfully authorifed by faid church and fociety, and by the defendant, dated ihe 22d day ofOftober 1772 ; as appears by faid cove- nant ready in court to be mown. And the plaintiffs fay, the eftablithment which the defendant in faid covenant agrees and promifes not to vary or go off from, without the majority 93 South- Farms againft COUNTY OF LITCHFIELD, AUGUST TERM. majority of faid church smdfociety, under the pe- nalty of forfeiting, as ismentioned in faid cove- nant, was underflood and meant by the parties at faid time, to be the eftablifhment or mode of church difcipline, then practifed by faid Beckwhh. church and fociety ; which was, as the defendant very well knew, the fame eftablifhment adopted in general by prefbyterians, and congregational churches in the ftate of Connecticut, commonly called Say brook- Platform cftabliftiment, or form of church difcipline. And that faid 135!. and faid 65!. promifed to the defendant in faid cove- nant, was meant lawful money, and in lawful money was actually paid to the defendant by the plaintiffs, agreeably to the covenant aforefaid. Yet, the defendant, not ignorant of the premif- es, and difregarding his covenant and agree- ment, on the 5th day of January 1773, know- ing he was liable to cenfure for fome of his con- duct, and being called upon by the affociation for Litchfield county, to anfwer for his faid conduct. To obey which requeft of the affoci- ation, the defendant was obliged by the known conftitution, and eftablifhment of faid church, and all the churches adopting Saybrook- Plat- form, for a mode of difcipline, And for the purpofe of avoiding afcrutiny of his conduct, by faid affociation, privately convened the mem- bers of faid church, and without the knowledge, or confent of the inhabitants of faidyoa^jy, the defendant and majority of faid church, paffed a number of votes, or proportions, reflecting the mode of church difcipline, for their future prac- tice ; which they attempted to fupport and coun- tenance by many fcripture proofs, totally fub- verfive, and directly contrary to the plan of church difcipline, formerly adopted by faid church ; and direclly contrary to the plan or mode of church-government, which was meant and 94 COUNTY or LITCHFIELD, AUGUST TERM. and intended by the parties in faid covenant, not to be varied or altered by the defendant, South- without his incurring the forfeitures mentioned Farms i n fad covenant. Particularly, the plaintiffs Beckwith. ^* '^ ma j or ^y f feid church, under the in- fluence and inftigation of the defendant, and to avoid a fcrutiny of his conduct as aforefaid voted in, agreed to, and have ever fince acted upon, until the defendants difmiffion from laid fodety> among many proportions, the following, viz. " That all powers, authorities, capacities, and " privileges, which in the holy fcriptures are " faid to belong, or appertain to the church of " Chrift, do belong to every particular church ; " and that every fuch particular church is ref- " ponfible to Jefus Chrift for the exercife of " fuch powers, abilities and privileges, to them *' by him annexed; "and consequently by divine " conftitution are inherent and eflential, and fo " can never be transfered or affigned over to " Others. And therefore it is the intereft and ft effential right of every particular church, to " choofe its own paftor, and all means requi- " fite and neceffary to render fuch a choice ef- " feftual. Alfo to exercife difcipline over its " own members, according to the will of Chrift ; " and that no other church, consociation of church- ft cs, or ecclejiaftical council whatever, has, or can " have, any right authoritatively to intermeddle " with matters of this kind. And that therefore, " the claims made by the affbciation of Litchfield " county\ to examine all licenfed candidates for " the miniftry before they may give an anfwer " to an invitation, or accept an invitation to the " paftoral office in faid county ; alfo the late " claim of the confociation of laid county, to " exercife an exclufive right of ordaining to the " paftoral office j and authoritatively and deci- lively COUNTY OF LlTCHFlBLD, AUGUST TERM. 95 " fively determine matters eccleiiaftical within ~T^867 for the plaintiffs. In anfwer to the firft exception, the declara- tion exprefsly avers, that the conilitution of church-difcipline, meant and underftood by the contra&ing parties, and which the defendant co- venanted not to deviate from, was the Saybrook- Platform. That is a fyflem of church-govern- ment, which has become a part of the laws of the land, and therefore can need no further de- finition. 2. This cannot be considered as an ecclcfiaf- tical matter ; the contract and covenant is whol- ly civil, and it is as eafy to determine, whether the defendant has acted in conformity to the principles of the church-conftitution, as to de- termine any other fact. - 3. The votes ftated by the plaintiffs, amount to a direl declaration of independance. It is averred that the defendant procured the church t to pafs thofe votes which contain a fyftem total- ly repugnant to the Saybrook-Platform. The activity of the defendant to procure thofe votes, is a fingle at alledged againft him capable of being traverfed. And it is further averred that he immediately went on, and has ever fmce praBifed on thofe principles. 4. The COUNTY OF LITCHFIELD, AUGUST TERM. 97 4. The breach of the covenant muft have re- ference to the making of it. The iriftant the = covenant was compleatcd, they became bound South- to pay him fo much money, he became their mi- nifter, and was obliged to praclice by the rules and principles pointed out by the contra&ing parties. Any deviation from thofe rules, after that, was a breach of the covenant. BY THE WHOLE COURT The declaration is infufficient. -Becaufe, ift, The rule of dama- ges is uncertain. The claim is, that the defend- ant mould repay, as a forfeiture, a part of his fettlement, proportioned to the time from his inftallation, to a certain fubfequent period, when he is fuppofed to have broken his covenant ; but when his inftallation took place, doth not appear from the declaration. 2. It doth not appear that the covenant hath been broken. The covenant was, on the part of the defendant, that he mould be the minifter of faid church, as then eftablifhed, (which is faid to have been upon the Saybrook-Platform) and " not vary or go off from laid eftablifhment, without a major part of the church and fociety." They might, if they faw fit, releafe him or al- ter their eftablifhment ; but otherwife he was bound by this covenant to continue their minit- ter, and to conform to the rules and difcipline of faid church, as then practiced and eftablifhed, under certain penalties. This was the extent 'of his covenant ; and of this, it doth not appear that he has, in any point failed. It was no breach, on his part, that the church, for whofe conduct he had not ftipulated, and whofe pro- ceedings he had not power to direft or ne- gate, pafled certain votes, and declared certain claims of the confodated churches in Litchfield :ounly, unfcriptural. How far thofe claims were .rranted by the Saybrock-Platform, or how N far South- Farms againjl Beckwuh. COUNTY OF LITCHFJELD, AUGITST TERM*. far the ckurch> by declaring againft them, has affected its conftitution, is not material ; fmce it doth not appear that the defendant has ever refufed to fubmit to, or adminifter difcipline in faid church y or to perform the other duties of a paftor thereof, according to the rules e- ftablithed and practiced therein, at the time of his fettlement. The averment, that ever (ince the aforefaid declaration, he has practiced a- vTeeably thereto, is too general. It is not tra- verfable. Nor can it appear to the covirt, un- lefs the facts, or fome of them, are fpecially fet forth, that the conduct of the defendant, has a~ mounted to a breach of his covenant. Working unff -led Ic ' h r inco fadclles and liarncf., is h Id, bv three judges agamlt ~ro, m> to he vi:hin the ft.i ii'C, rc- gulaiing tanners- CHURCH againjl THOMSON. INFORMATION qui tarn, on the ftatutc for working unfealed leather. By the ftatute, it is enacted, " That no perfon or pcr- " fons whatfoever fhall caufe or fufFer any lea- " ther by him or them tanned, to be wrought " up by any fhoemaker, employed either by " himfelf, or by any other perfon or perform (t for him ; nor fliall he work up the fame him- " felf, before fuch leather be viewed and fealed, (t as aforefaid, on penalty of forfeiting the fum " of Jive pounds for every hide or {kin fo as " aforefaid by him or them wrought, caufed " or fuffered to be wrought up, before fealing " as aforefaid." The defendant was a tanner, and had worked unfealed leather into faddles and harnefs : It was not clearly proved that he had worked any into fhoes, though the circumftances rendered it very probable. The COUNTY OF LITCHFIELD, AUGUST TERM. The jury found a verdict for the plaintiff, on which the Court delivered the following opinions : LAW, Chief Jujlice y SHERMAN and ELLS- WORTH, Suppofed that claufe of the ftatute to have reference to fhoes and boots only ; and that it could not be extended beyond the letter, fo as to include faddles and harnefs j it being a penal ftatute, ought to be conltrued ftri&ly, otherwife it might operate as a thare to mankind. DYER arid PITKIN, faid they confidered the law to be every where pointedly againft ma- nufacluring or vending bad leather : That the great objecl of the ftatute is to prevent that public injury. The working of bad leather into faddles and other wares, is as expreisly within the mifchief the law intended to pre- vent, as the working of it into fhoes ; therefore within the fpirit and meaning Nam aid Jurrti in litera y haret in cortic-c. 99 Church againft Thomfon. N2 CLAP 1OO COUNTY OF FAIRFIELD, AUGUST TERM. _i_786,. When num- beri arc irined in a Wit ; depo- '. can- Jiot be im- proved a- ^nintt fuch of them as a e not no- tified of the taking ; but each pe'fon snuft have no:ice ; if within :hc diftance, theft mre prcfcribes. CLAP again/I LOCKWOOD and Others. THIS was an aclion of trover againft feve- ral defendants. Mr. Davenport, for the plaintiff, offered to read a depofition taken out of court ; but it appeared that one of the de- fendants was neither notified or prefent at the taking thereof, although he lived within four miles of the place of caption. And, BY THE COURT, It was rejected, as it re+ fpecled the defendant not . notified ; becaufe the defendants have a right to plead feverally, and they may have different defences; and the queftions put by thofe who were prefent may- be inapplicable to the defence of the one not prcfent, and he might thereby be defeated, of the benefit of crofs-examination. A Judge of Probate ought not to icjeft an in- vcn.ory, thatcontains P'opc'.rj; ihe title to vriiich vdif- pi.ted : for n.sdecifion c and fliould make a good conveyance of faid lands in fee fimple to the defendant, then the defendant engaged to become obligated to the plaintiff in the fum of 2O9/. payable in a reafonable time ; which agreement was in writing, with a penal claufe. The cafe was, that the plaintiff ferved his writ of attachment upon the land mentioned, on the 15111 day of May, 1783, in the after- noon ; andonthc22d, in the forenoon, acopy vas left with the town-clerk, which was not attefted 104 COUNTY OF FAIRMELD, AUGUST TERM. attefted to be a true copy ; and there were fe- veral variations between that and the one left Cooley in fervice, and alfo between the return on that *S ai fl and on the original writ : The boundary on oanlord. r i i r -i i i-- * one hcle was delcnbed in a different manner. After the fervice of this attachment on the lands, and before the copy was left with the town-clerk, the defendant, Sanford, knowing thereof, purchafcd the land of Guyer, the debtor, and received a deed of bargain and fale, dated the 2 id day of May, 1783, and recorded the fame day. On the nth day of Anguil, 1783, the agree- ment was made between the plaintiff and de- fendant. The plaintiff afterwards recovered judgement againft Guyer, had execution, and levied on the land in legal form. The plain- tiff then tendered to the defendant an ample deed of the land, and demanded the obligation for 2Og/. but the defendant refufed. This aclion being brought, and iffue joined to the court, the only queftion was, whether Cooley, under all the circumftances, had ac- quired a good title to the land, fo as to be able to convey, agreeably to the tenor of the agree- ment. Mr. Benedift, and Mr. Ingerfol, for the de- fendant. There ought to have been the fame -kind of atteftation to the copy left with the town-clerk, as to the copy left with the party in fervice ; and if not the fame literal exacineis throughout, yet there ought to be the moft cri- tical exa&nefs in the defcription of the lands taken, otherwife they are not identified, and the copy fo left can anfwer no purpofe but to miflead : In the prefent cafe, there being no attefted copy left with the town-clerk, and the pretended copy fo left, being effemially vari- ant from the original, and from the one left in fervice COUKTY OF ^AIRFIELD, AUGUST fervice with the party, it could create no liert on tne land ; therefore, the fubfequent pur- chafe by Sanford has given him an ample title* Mr. 'Chancey and Mr. Sillifiian, for the plain- tiff. The law requires no more than a certi- ficate, or defcription of the eftate taken, to be left with the town-clerk. The words of the flatute are, " When any real eftate is taken, c< the officer ferving the writ fhall lei:ve a true " and attefted copy thereof, and a defcription " of the eftate taken, at the town-clerk's office, " in the town where the eftate lies ; and until ** the fervice is completed, the eftate fo at- " tached fhall not be held by fuch attachment, " againft any other creditor or bona-fidc pur- " chafer.'* The objcd of the law can be no more than to give notice to the world of the Utn that is on the land: This purpofe was ful- ly anfwered in the prefent cafe, by the copy that was left ; and the land was fo far defcribed, that no miftake eould have happened in regard to it ; the officer, therefore, has fubftantially performed his fervice. The deed from Guycr to Sanford, was ob- tained under fuch circumftances, that the tranf- aftion contains in it a fraud : Sanford was ac- quainted with the circumftances ; he undoubt- edly defigned to defeat Cooky of his hold upon the land ; he therefore took it in his own wrong, which cannot legally operate to his be- nefit. Judgement was rendered for the plaintiff, 40 Cooley San ford, o The io5 COUNTY OF FAIRFIZLD, Aueusx TERM. 1786. crime of pc jiry and forgery. The STATE againjl SAMUEL LOCKWOOD, 3^. INFORMATION for perjury. Mr. Daven- port^ of counfel for the priioner, objected to the jurisdiction : He urged, that the court of common pleas is the only court - "which by law can take cognizance of the crime of per- jury : That by high crimes and mifdemeanors, mentioned in the flatute, is intended only fuch high offences as have no exprefs punifhment by law annexed ; and as the ftatute has afcertained punifhment for perjury, which does not extend to life, limb, or baniihment, it cannot be cognizable by the fuperior court. Judge ELLSWORTH o.bferved, That in a cafe of forgery at Windham, the fame exception was taken,, and over-ruled by the court : And, THE COURT held, that they might take cog- uizancc of the crime of perjury. Ademnrrcr to a dccl i ra- tion, con- ta : ning a re- cital of the obligation on which the fuicis found- ed, is ill, for any allega- tion of vari- ance j the advantage should be taken by <> oycr, or demur er to evidence. DAUCHY again/I SMITH and OLMSTED. THIS was an action of debt on bond ; the declaration in common form. Mr. Ingerfol prayed oyer of the bond, which he recited at large in his plea, and concluded by demurring to the declaration. The bond appeared to have been taken to the plaintiff, in the capacity of conjlablc of the town of Ridgefield. It was conditioned that Smith , one of the obligors, fliould appear be- fore the court of common pleas, at Fairfield, on the third Tuefday of April, 1784, anfwer to an action, in favour of Jama Sturgcs, againft him COUNTY OF FAIRFIEJ.D, AUGUST TERM. 107 him, plead in cuftody of the court, and not depart without licence. Mr. Ingerfol took two exceptions under the Dauchy demurrer :- 1. That the bond being taken by an officer in his official capacity, the condition ought to have been exprefled in the declaration ; for otherwife it does not appear but that it was taken for eafe and favour, which would be il- legal. Although it does not appear upon the face of the declaration that the bond was taken to an officer, yet, by inferting it in the plea, the whole becomes parcel of the record; and the advantage may in this manner be as well taken under a demurrer as by pleading a vari- ance. 2. The condition of the bond is unwarrant- able : For it is, that Smith fhall appear and plead in cuftody : That he mall fuffer imprifon- ment at all events; which defeats the very de- fign of bail. BY THE WHOLE COURT. For ought thav appears from the declaration, a good and fuffi- cient bond is declared upon, and well defcribed ; and if the defendants would avail themfelves of any variance between the bond declared upon and that mown upon oyer, they mould have taken advantage of it by plea in abatement, or demurrer to the evidence j the declaration, therefore, adjudged fufficient. Note, This adjudication is oppofed to the Eng- lifJi practice vide 2. Wilfon's- Reports, 339, Turner vs. Vaughan. O 2 NORTHROP io8 COUNTY of Nsw-HAViN, AUGUST TERM. NORTHROP againft BRUSH and ISAACS. iF*juftice ""'HIS "was an a&ion on the ftatute againft 3, f p s e * cc t X fecret affaults, wherein it is enafted, eenify in a " That if any perfon mall break the peace, by emetine o- (e r * ff , . . * / verforafe- lecretly aliaulting, beating, maiming, wound- i n g or hurting another, the perfon fo af- thuthe u r i i- complain- laulted and injured, making application and ant showed complaining to the next affiftant or iuftice of his wounds, r , J and made the peace, mowing him what hurt or wounds flairY^* " ^ ie ^ as rece ^ vec ^ thereby; fuch affiftant or j uf- anat erof " tice fliall forthwith grant out a writ to the ihe- r< riff of the county, or his deputy, or conaable " of the town where fuch affault (hall be made, " -commanding them, or either of them, to { arreft and bring before him fuch perfon fo ." affaulting, to anfwer fuch complaint; who, vre v e be'oin- " u P on oatn Dem g made againft him of fuch TiL the " aflault, and of the wounds or bruifes there- " ^ received by the perfon fo alfaulted and " beaten, fliall be bound in a fufficient bond, " &c. J> The complaint was, that the defendant, Bru/h> invited Northrop to the coffee-houfe, in New-Haven, into a private room, under the pretence of bufmefs, and did there aflault the plaintiff with loaded piftols, &c. That the other defendant, Ifaacs> came into the room, and did combine with JSrii/h; and that they did further aflault and beat the plaintiff, no other perfon being prefent. The juftice who bound over the defendants did not certify that the plaintiff was admitted to his oath, or had difcovered his wounds. And under a general demurrer two excep- tions were taken : i. That it did not appear from the procefs that the plaintiff ever charged the defendants under COUNTY or NEW-HAVEN, AUGUST TERM. finder oath, with the facts complained of, or that he (hewed his wounds to the juftice, which the ftatute makes neceffary to fupport this kind Northrop of adion. 2. That the affault complained of was not 3ruih J & in its nature fuch as is intended by the ftatute ; it was committed in a public place, and by a plurality of perfons ; the plaintiff, therefore, may have his remedy at common law : But, BY THE WHOLE COURT, The complaint is fufficient. As to the firft exception, that the complainant did not mow his wounds, and make oath before the juftice ; fuch oath and exhibition were proper evidence for the juftice to proceed upon, and the prefumption is, they were had, unlefs there was an admiffion of tlu- facts to render them unneceflary : It was not neceffary for the juftice to fot forth the evi- dence he proceeded upon ; or if it was, his o- miflion to do it fhould have been pleaded in abatement. The demurrer goes not to the certainty or regularity of the proccfs, but to the fufficiency of the complaint. As to the fecond exception, that it was not a fecret aflault, becaufe committed by two per- fons : Two perfons may commit an affault jointly ; and if it is out of the prefence or view of others, it is a fecret affault; and although the perfon affaulted may proceed againft one of them in a common action of trefpafs, and take the other for a witnefs, yet he is not obliged to purfue that method : One of them alone may be inefficient to repair the damages; and it may alfo be unfafe for him to reft on the teftimony of a perfon whofe malignity had induced him to join in a fecret attack upon his perfon ; and it is for the public peace and fafety, that both the affailants fhould be com- plained of, that they may be punilhed crimi- naliter. no COUNTY OF NEW-HAVEN, AUGUST TERM. ~~7y^67 naliter. This affault, though made by twp = perfons, is within the ftatute againfl fecret af- Northrop fault. BuST'&c N te - This judgement was afterwards affirm- cd in the Juprcme court of errors. In an fi&'on fo-falfe im- pr.-fo ment tlic defen- dant uiftifies usder ihc author ry of an in c cri:.'r court. Re- plication, th.it the cour: had no jariflict on, y adjudged m- Jufhwient ; bee 'life ;he v n- of ju- rifrl.ft-O'i do.-s not p- pcar u on the face of the procefs, ai d i; is 1 10 la;e to s'lew it by ma r r deh rs the WOOSTER againfl PARSONS. THIS was an aQion of trefpafs for falfe im- prifonment. The defendant pleaded that he instituted a fuit againft the plaintiff, on a promiflbry note, before the city court, in the city of Middletown, and obtained judgement thereon, by default : That execution was duly granted upon faid judgement, by virtue of which the plaintiff was taken and imprifoned ; which is the fame and only imprifonment com- plained of. Replication. That faid note was given, ex- ecuted and delivered without the city of Mid- dletown : That the caufe of aclion, which was the foundation of faid judgement, did not arife within the limits of faid city; therefore, faid court had not jurildition of faid caufe, and ought not to have rendered judgement and if- fued execution thereon. On demurrer to this replication, judgement was rendered for the defendant, by the whole court : And by DYER, SHERMAN and PITKIN, Judges. The plaintiff's reply is infufricient ; becaufe it is not therein alledged, that the defendant knew that the caufe of action arofr mt of the jurif- diclion of the cii\ c^urt : For if tl:e plaintiff, in the action Lefurt the city court, had averred in his COUNTY OF NEW-HAVEN, AUGUST TERM. 111 Ms declaration, that the caufe of aftion arofe = \mhin the jurifdi&ion of the court, \vhen he == knew it did not; it would, as to him, have been Woofter a procefs unduly obtained, and aftion of falfe agair.jt imprifonmcnt would lie againft him, though not againft the officer (Lilly's Abrid. 6g$.) If it had appeared on the face of the procefs that the caufe of aftion did arife out of the jurif- diclion of the city court, all the proceedings would have been coram non judice, and void, and could have been no juftification or ex- cufe for any thing done under them; nor would any negle6t to plead it, or any conceffion of the parties make it good. 2. Modern Reports^ 29. In the prefent cafe it was not alledged, that the caufe of adion did arife within the jurif- diclion of the city court, and for that and other reafons, the judgement has been re- verfed ; '* but the prefent defendant might have * Ante %%. been ignorant, or miftaken as to the place where the caufe of aftion did arife ; and in that cafe he would not be liable to this aclion. 2. Wilfon's Reports^ from 302 to 308. LAW, Chief Jujlicey and ELLSWORTH, Judge. The defendant juftifies under an execution from a city court : The reply is, that the caufe of aftion arofe without the jurifdiclion of that court; but this doth not appear from the face of the proceedings, and it is now too late to mew it by matter dehors the record. The plaintiff in that aclion might be ignorant of the fal, or the matter in its nature doubtful ; and if the de- fendant would fuffer the procefs to go on, and not plead the matter in abatement, he mould be confidered as having waved the matter of jurif- ditlion entirely, and not allowed afterwards to draw it in queftion by an aftion of falfe im- ifonment. And fo was Trufcott's cafe, i. Ld. laymond, 229, .in which the former decifions -ere brought up, and this point fettled. rtr ins COUNTY OF NIW-HAVEN, AUGUST "17867 SUFFREIN and COLEY againft PRINDLE, Diflinaion HIS aftion was brought upon the follow- iriiet.eitjs -L ing written promile (viz.) "This ba- the duty or (( , r i t i i i the defend- lance ot \L 45. is agreed to be paid in good to give c Weft-India rum, delivered in New-Haven, no'ice, or f T , , . .\ the plaintiff nave any come to hand ; or if to make de- " none mould come, to procure it at the cur- mand. C( . -ill- ~ , rent market price, and deliver it to John " Suffrfin or William CoUy y or order. Mr. rt Helmns or capt. Sloan to judge of the quality c< and price of the rum." It was averred in (he declaration, that the defendant, on the firft day of January 1783, had good Weft-India rum come to hand, fuffi- cient to pay faid fum, but had not paid it. The defendant pleaded, that he did not re- ceive any rum until the loth day of February 1783, and then only forty-nine gallons, which he delivered to the plain tiffs, together with fome other articles, to the amount of 2.1. js. which they received in part payment of faid fum of 44/. 45. That the refidue of faid rum did not come to hand before the ith day of Auguft, 1783, at which time, and at all times fince, he hath ftood ready to deliver faid rum to the plaintiffs, or their order, in New-Haven; and that he could not find the 1 plaintiffs, or any perfon by them authorifed to receive faid rum, to whom he could make legal tender; and that the plaintiffs had never demanded the fame : And concluded by traverfing, that on the firft day of January, 1783, the defendant had good Weft-India rum come to hand fufficient to pay faid debt. To this there was a demurrer, and judge- ment for the plaintiffs : For, BY THE WHOLE COURT. The plea amounts only to a traverfe of the defendant's having rum COUNTY or NEW-HAVEN, AUGUST TERM. rum come to hand in January, 1783, fufficient to pay the debt, which is an immaterial fact; if his own did not feafonably arrive, he was, by the terms of the contract, to procure other rum : So that the plea is ill, and judgement muft be for the plaintiffs, if the declaration is good: To which only it is objected, that the plaintiffs alledged no demand; but this was not neceflary ; they had right of aclion with- out any demand, after waiting a reafonable time for the defendant's rum to arrive, or other rum to be procured, and not being no- tified that it was ready; it was the defendant's duty to give notice, and there was no lien on the plaintiffs to make demand. 113 SuftVein, &c. agaixjt Prindle. BURROWS again/I FITCH. THIS action was againft the fheriff of New- Haven county, for the neglect of his de- puty in'not levying and returning an execution which iflued on a judgement of the fuperior court, holden in the county of Fairfield The action was upon the ftatute regulating fheriffs, in which it is enacted, " That if fuch fheriff or " conftable mall not execute the writ, or mail " neglect to make return thereof, or mall make " falfe or undue return ; on complaint thereof " made to the court or juftice to which it was " made returnable, the court or juftice may K enquire thereof, by the evidence produced, '* and if he be found in default, the court or " juftice may fet a fuitable fine upon him, and " award damages to the party aggrieved." On demurrer, judgement was for the plain- 'j^l. da- mages; and judgement was rendered againft all the defendants. The defendants then brought this writ of error de recordo quod coram nobis rcjidet, align- ing the following errors in faft: i. That Timothy and John Black/lone were, - at the time of bringing the fuit, and at the time of rendering judgement, minors under the age of twenty-one years, and totally incapable of appearing, COUNTY OF NEW-.HAVEM, AUGUST TERM. 115 appearing, anfwering or defending in faid fuit "j^gg^ in any other way than by guardians ; and that ===== the plaintiffs did not cite any perfon to appear Wilford, as guardian 'to faid minors, nor was any perfon ever appointed by the court. 2. That the court did proceed to render one entire judgement againft all the defendants in faid fuit for entire damages ; whereas faid Ti~ motky-and John have never had a day in court, or an opportunity, to put in any plea, or to be heard on faid matters ; and no damages ought to have been given or affeffed againft them. The defendant in error pleaded in abatement to the writ ; that faid judgement was recovered againft the plaintiffs, in error for a trefpafs committed on faid Eleanor, who has fmce de- ceafed, me then being wife of the defendant in error; therefore, the prefent defendant cannot be confidered as party or privy to faid aftion; fo as to be heard on the merits thereof, if faid judgement mould be reverled ; and that exe- cution hath been taken out on faid judgement, and duly levied on land, and faid lands duly appraifed and fet off. The plaintiffs in error replied, That there is not any executor or adminiftrator of the faid Eleanor deceafed; but that the faid Eleanor' left fundry heirs, each of whom are minors un- der the age of twenty-one years ; and that the defendant in error is the father and natural guardian to each and every of the heirs of the faid deceafed, and has been duly fummorsed and notified to appear and defend in this cafe. The replication was adjudged fumcient, and the aftion ordered to proceed j and then on the plea, in nullo ejl erratum, judgement was re- verfed in part only. BY THE WHOLE COURT. The judgement complained of is againft minors and adults, as P2 joint n6 COUNTY or NZW-HAVIN, AUGUST TJRRM> ' 1786! J * n * trefpaflers ; minors are prefumed wanting 55=== i n difcretion to manage their own caufes, or to Wilford, appoint and inftruft attornics; guardians are a &c ' there&re to be afligned, who {hall take care for cfrnt. them > an( * be accountable: In this cafe none were affigned, ajid judgement went againft the minors by default, through the negleft of the then plaintiff to inform the court of their mi- nority, which he ought to have done before he took judgement againft them by default or oth- erwife. But the principal queftion is, can the judgement be reverfed as to them, and Hand good againft the reft ? No reafon appears rerum natZ ura, why it mould be reverfed as to the adults alfo : They were fairly tried and convi&ed, and they might have been taken alone at firft, or .the plaintiff might have entered a nolle profequi as to the others ; and as this recovery was for a torf, no contribution could have been compelled, if one had been obliged to pay the contents of the execution. If a judgement muft be re- verfed as to all, merely to give relief to one who may be entitled to it, there will be unne- cefTary expence and delay of juftice, and in cafes circumftanced like the prefent, a failure of it : For the right of aftion being merely perfonal, and the original plaintiff dead, the aftion cannot be commenced again de novo. The common law rules of England are indeed againft a reverfal in part only, in a cafe like this, though it is admitted in others without any apparent diverfity of reafon : As if an in- fant and one of full age join in a fine, there mall be a reverfal quoad the infant only ; fo- . where judgement is erroneous only with regard to cofts, it may be reverfed as to them, and ftand good as to the debt or damages; but it doth not appear that this rule has been adopt- ed in practice here, fo as to become authorita- tive. COUNTY OF NEW-HAVEN, AUGUST TERM. tive. The common'' law of England we are to pay great deference to, as being a general fyf- : tem of improved reafon, and a fource from Wilfbrd, whence our principles of jurifprudence have been moftly drawn : The rule, however, which *g ain J* i i i i Grant. have not been made our own by adoption, we are to examine, and fo far vary from them as they may appear contrary to reafon or unadapt- ed to our local circumftances, the policy of our law, or fimplicity of our practice ; which, for the reafons above fuggefted, we do in this cafe, and reverfc the judgment as to the minors only. This judgement was afterwards affirmed in the fuprcme court of errors. 1786. We'.lf s & his wife agaivjl Olcott. COUNTY or HARTFORD, SEPT. TERM. WILLIS and his Wife againjl OLCOTT. ACTION of diffeifin, On fpecial plead- ings the cafe was That John Knowles, by his laft will, dated the 301!! day of Novem- ber, 1753, among other things, deviled the, lands in queftion to his c< daughter .Mary, " Kno-wles t and the heirs of her body forever." Mary Kno-wles was married in June, 1762, to Alexander Chalker, and had iflue a daughter, Bridget (wife of the plaintiff) born September, 1764. The faid Mary having heirs born of her body, did alien the lands on the 6th day; of June, 1765, by a deed of bargain and fale, executed by herfelf and hufband; and by feve- ral mefne conveyances it came regularly to the defendant. On demurrer, It was contended that this was a limited eftate, and no more than a life eftate in Mary Knowks ; therefore fhe could not alien the fee, but that it defcended to Bridget Chalker, the plaintiff's wife, On the other fide it was urged, that this de- vife created a conditional fee, and that the condition was performed when Mary had mar- ried and had heirs of her body ; and that the eftate then vefted in her, as a fee fimple : That the Englifh ftatute of Wejlminjler, zd, \%th Edward i. entitled the Statute de donis Condi- tionalibus, did never extend to this country, and hath never been adopted here ; therefore, fuch tenures ought not to be conftrued to be eftates tail in this ftate. BY THE COURT. Uniformity of decifion is to be preferved. The point in this cafe hath been twice recently adjudged, in the cafes of Allen vs. Bunce, and Devey vs. Foot ; and on the COUNTY OP HARTFORD, SIPT. TERM. 119 Welles & bis wife againft Okott. the following principles: That- the intent of 17 86. the teftator was to be purfued, where it did not ==- interfere with the policy of law : That the in- tent in the prefent cafe obvioufly was to create an eftate tail, and not a conditional fee. A li- mitation in tail, fo far as related to the firft donee in tail, might be for very good reafons ; and it does not interfere with the policy of law, like perpetuities, or more than any life eftate : And that the late ftatute, admitting limitations in tail, as relative to the firft donee, might well be confidered as in affirmance of the common law. Judgement was therefore for the plaintiffs. N. B. Judge PITKIN excufed himfelf from judging in this cafe, bring related to one of the parties. KIBBE again/I KIBBE. THIS was an alion of debt, on a judgement rendered by the court of common pleas in the county of Berk/hire, and commonwealth of Maflachufetts. The defendant pleaded in abatement, " That " at the time of bringing the aftion to the court " of common pleas, upon which the judgement " referred to in the plaintiff's declaration was ," rendered, he, the defendant, was an inhabi- r< tant of the town, of Somers, in the county " of Hartford ; and that the plaintiff, in faid " original alion, prayed out a certain pretend- " cd writ againft the defendant, in the words " following, to wit : " Berkfhirc 12O Kibbee again/I Kibbee. COUNTY OF HARTFORD, SEPT. TZRM. " Berkfhire, ff. of Somers, in the county " of Hartford, and ftate of Connecticut, " hufbandman, Greeting : " W E command you that you appear at our " next court of common pleas, to be holden at " Great-Barrington, within and for our faid " county of Berkfhire, on the third Tucfday " of November next ; then and there to an- " fwer unto Stephen Kibbe, of Loudon, in the " county aforefaid, yeoman, in a plea of co- " venant broken, which is at large fet forth in " the original writ; which plea the faid Stephen " hath commenced againfl you, to be heard and " tried at the faid court ; and your goods and " eftate are attached, to the value of two hun- " dred pounds, being for fecurity to fatisfy the "judgement which the faid Stephen may reco- Cf ver upon the aforefaid trial. Fail not of ap- " pearance, at your peril. Witnefs, WILLI- " AM WHITJNG, Efq. at Great-Barrington, " the 28th day of October, in the year of our s< Lord 1784. "HNRY WMS. DWIGHT, Clerk." That the plaintiff having prayed out faid pre- tended writ, he caufed the fame to be left, or a copy thereof, at the dwelling-houfe of him, the defendant, in faid Somers, by fome perfon unknown to the defendant: That the aforefaid writ, or copy thereof, was the only notice or fummon ever given or made to the defendant, to appear and anfwer ; and faid judgement was proceeded to, and rendered againft the defen- dant, upon the ground and authority of faid writ, iflued and left at the defendant's houfe, in faid Somers, as aforefaid, and in no other way or manner whatever. Whereupon COUNTY OF HARTFOED, SEPT. TERM. 121 Whereupon the defendant fays, That he had "7^867 not legal notice, nor had faid court of common = pleas any authority to iSue any procefs againft the defendant, or proceed to render judgement & thereon, upon fuch pretended writ, left at the defendant's houfe, in faid Somers, as aforefaid; nor was the defendant holden by law to make any anfwer thereto; and faid judgement is ill founded and void, and no fuit or aftion can or ought to be maintained thereon j all which the defendant is ready to verify, &c. The plaintiff replied, That he brought his aclion againft the defendant before faid court of common pleas, in the words following, to wit : " Berkfhire ff. " Commonwealth of Maffachufetts, " To the fheriff of our county of Berkfhire, " his under fheriff or deputy, Greeting : " W E command you to attach the goods or " eftate of James Kibbee, of Somers, in the " county of Hartford, and ftate of ConneU- " cut, hufbandman, to the value of 2OO/. and " for want thereof take the body of the faid " jfames y if he may be found in your precinct, * c and him fafely keep, fo that you have him ** before our jullices of our court of common " pleas, next to be holden at Great-Barring- cc ton, within and for our faid county of Berk- w mire, on the third Tuefday of November f< next ; then and there in our faid court to an- c< fwer to Stephen Kibbee, of Loudon, in our *' faid county, yeoman, in a plea of covenant " broken ; and whereupon the faid Stephen c<< complains for this (to -wit:) That whereas the " faid James> at Somers aforefaid (to wit) at " Great-Barrington aforefaid, on the 23d day " of February, in the year of our Lord, 1763, " by his deed pole, the date whereof was the Q day 122 1786. COUN-TY or HARTFORD, SEPT. TERM. " day and year laft aforcfaid ; which deed was :r well executed by the faid James, fealed with " his feal, ready in court to be produced, .for " and in confideration of the fum of 64!. law- " ful money, by the laid Stephen well and tru- r< ly paid to the faid James, did give, grant, " fell, and confirm to the faid Stephen, his -heirs " and afligns forever, a certain piece or lot of " land, lying and being in Tyringham, in our *' faid county of Berkfhire, containing fcventy " acres, be the fame more or lefs, which was IC laid out on Samuel Levemore's -right, and is nber 194, and bounds, Sec. Alfo, one " other tract or lot of land, in faid Tyringham, " containing iixty-two and an half acres, be " the fame more or lefs, which was laid out on " William White's right, and is number 142. " Alfo, a right in place of commonancy,- which " is known by the name of the Equivalent Land. " Said right did belong to Samuel Levemcre, a- " forefaid, and faid lots were not then laid out. " To have and to hold to the faid Stephen, his Cf heirs and afligns forever: And the faid James " by his deed aforefaid, did covenant with faid " Stephen, his heirs and affigns, that at and un- " til the enfealing thereof, he was well feized