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 THE 
 
 NEW-YORK JUSTICE; 
 
 OR, A 
 
 OF THE LAW 
 
 RELATIVE TO 
 
 JUSTICES OF THE PEACE 
 
 IN THE 
 
 STATE OF NEW-YORK. 
 
 BY JOHN A. DUNLAP, ESQ. 
 
 COUNSELLOR AT LAW. 
 
 PRINTED AND PUBLISHED BY ISAAC RtLET. 
 
 JVeic-Fert 1315.
 
 T 
 
 . 
 
 P E' IT RK ' i EM BERET). That on tlie second day of Sfptember, in the forti- 
 es of America, Itaae Rilfy. of the said d 
 the title of a book, dit ri. -.? proprietor, 
 
 .vi- : 
 
 . Digest of tlie Law relative to Justices of the Peace ia 
 " tb'- - ov JMIH A. Dun!ii|,, Esq. Counielloi at Law." 
 
 liicoafon:. irtbe 
 
 /u-nt or L'-ai:; 
 
 . durin? the times therein r 
 
 ntitled, an < . 
 - 
 
 : ."% tiitrtin w ' 
 
 THER^N UrDP.
 
 PREFACE. 
 
 A COMPILATION of the law relating to the duties 
 of justices, within this state, appears to have been 
 long wanted, and it is matter of surprise that a work 
 of such evident utility has not yet been executed 
 and made public. The modern English works, 
 upon the office of a justice of the peace, are not 
 only voluminous, and of course expensive, and fre- 
 quently difficult to obtain, but also at least one half 
 of them consists of matter totally inapplicable in 
 this state. A compendium of Burns* has been in 
 use among us to a certain extent; but it labours un- 
 der the defect of being formed solely upon an En- 
 glish basis, without being adapted to the particulars 
 in which our own law varies from that of England. 
 
 The common law, it is true, forms the most im- 
 portant branch of our judicial system. Many of 
 the English acts of parliament have, without altera- 
 tion, or with merely verbal changes, been transfer- 
 red to our statute book, and others have been adopt- 
 ed, in part, or with modifications; and wherever the 
 statutes of the two countries are similar, the deci- 
 sions of the courts of Westminster Hall are regarded 
 as authoritative guides to the construction of them. 
 Hence no inconsiderable part of ^e information 
 required by a magistrate must be <jr^ wn from En- 
 glish sources, and by consulting Burns' Justice, (a 
 work deservedly of high reputation,) or the com- 
 pend above mentioned, he will be able to act with 
 sajety and certainty in a variety of cases. 
 
 But as there is occasionally a diversity between 
 
 * The Conductor Gencralh.
 
 vi PREFACE. 
 
 the statute law of England and of this state ; as in 
 some, and those, too, important, cases our legislature 
 has imposed new duties upon, and enlarged the 
 authority of justices of the peace, and as the deci- 
 sions of the courts of this state, not only on questions 
 of common law, of which they are the highest ev i- 
 dence, but also on the construction of various acts 
 of the legislature, have now become numerous, and 
 are constantly increasing, an acquaintance with 
 what is exclusively our own law becomes indis- 
 pensable. 
 
 It has been the endeavour of the compiler of the 
 present work to combine the peculiar law of this 
 state with so much of the English law as is material 
 and applicable. The object of this Digest is, to 
 furnish, in as small a compass as possible, the most 
 useful information to magistrates. Matters merely 
 local in their nature, and such as would not proba- 
 bly be of practical utility, have been omitted. It 
 was not intended to make a digest of the law in 
 general, or of any entire branch of it, civil or cri- 
 minal, but merely to collect the most important 
 particulars relative to the duties of justices of the 
 peace: nor is it pretended that this work, limited as 
 the design of it is, is perfect even to the extent that 
 it undertakes to go. The compiler, fully sensible 
 of his inability to do justice to the subject, must 
 throw himself upon the clemency of the reader for 
 many deficiencies, and, he fears, some inaccuracies. 
 
 The law of ^ivil actions has been discussed no 
 farther than th e twenty-five dollar act, and the cases 
 decided undo- it. The proposed limits of the book 
 required this restriction ; and it was thought neces- 
 sary, that the work should be circu-mscribed in its 
 extent, thereby to aiford a better chance for the 
 success of the experiment. For the same reason, 
 the law of evidence, w r hich, if handled in the 
 briefest manner, would have made a title of np 
 inconsiderable magnitude, has been left untouched.
 
 PREFACE. Vii 
 
 The duties of a justice, as a conservator of the 
 jjcacej and an administrator of criminal law, have 
 been a principal object of attention in forming this 
 Disre.4. That branch of the law, which, while it 
 provides for the apprehension of offenders, the pun- 
 ishment of crimes, the prevention of violence, and 
 the preservation of the quiet of the community, 
 regards the liberty of the citizen with the utmost 
 tenderness, and prohibits the infraction of it, except 
 for the most urgent causes, is of primary importance 
 to the magistrate. He may frequently be obliged 
 to act without much time for deliberation, and in 
 many cases an error will be fatal : the consequence 
 of his mistake may be an injury, either to the party, 
 by putting his life, his liberty, or his reputation in 
 jeopardy ; or to the community, by letting an of- 
 fender escape. The indispensable necessity, there- 
 fore, of a guide, in cases of doubt or difficulty of this 
 kind, is obvious, and it has been the object of the 
 compiler to collect every thing that appeared mate- 
 rial to this part of the subject. 
 
 All the statutory provisions, not merely local, by 
 which the jurisdiction of justices is enlarged, have 
 been collected under their proper titles ; such are 
 the various laws imposing penalties of or under the 
 sum of twenty-five dollars ; and those by which 
 they are invested with authority in relation to the 
 government arid police of their respective towns : 
 for instance, the acts respecting highways, and for 
 the relief of the poor. 
 
 It may not be improper to state the materials from 
 which this work has been compiled. The acts of 
 the legislature are the first in importance and au- 
 thority, and the reported decisions of the supreme 
 court are entitled to the next place. Great use has 
 been made of Burns' Justice, the arrangement of 
 which has been generally followed : in the criminal 
 division, East's Pleas of the Crown, an unfinished 
 work, has been found of singular advantage ; and,
 
 PREFACE. 
 
 where East has failed, Hawkins and Burns have 
 been adopted as guides. Blackstone's Commen- 
 taries have been freely used, as also the American 
 edition of Bacon's Abridgment. These are the 
 principal treatises to which recourse has been had. 
 The English books of reports have been consulted, 
 and are frequently cited. 
 
 A few precedents have been subjoined in an ap- 
 pendix. The size to which the work had already 
 increased precluded the admission of a larger 
 number; and it was deemed the less necessary, 
 inasmuch as printed blanks of most, if not all, the 
 proceedings under the twenty-five dollar act, are in 
 common use, and as books containing a variety of 
 precedents may easily be obtained.* 
 
 * "The Clerk's Assistant," published at Poughkeepsie, in 1814, con- 
 tains a number of useful forms for justices of the peace, collected princi- 
 pally from Burn-:.
 
 THE 
 
 NEW- YORK JUSTICE. 
 
 ACCESSORY. 
 
 - I. Of accessories in general. 
 
 II. Of accessories before the fact. 
 
 III. Of accessories after the fact. 
 
 IV. How they are to be proceeded against. 
 
 I. Of accessories in general. 
 
 An accessory is he who is not the chief actor in the offence, * Black. Com. 35, 
 nor present at its performance, but is some way concerned 
 therein, either before or after the fact committed. 
 
 In high treason there are no accessories, but all are princi- 4 Black. Com. 35, 
 pals ; the same acts that make a man accessory in felony, f^p P< c ais 
 making him a principal in high treason. In murder and felo- 6 3 5 - 61t >- 3 imt. 
 ies there may be accessories, except only in those offences 
 which, by judgment of law, are sudden and unpremeditated, as 
 manslaughter, or the like ; which, therefore, cannot have any 
 accessories before the fact. So in petit larceny, and in assault, 
 and all crimes under the degree of felony, there are no accesso- 
 ries, either before or after the fact ; but all persons concerned 
 therein, if guilty at all, are principals.* An accessory cannot 
 be guilty of a higher crime than his principal, being only 
 punished as a partaker of his guilt. 
 
 II. Of accessories before the fact. 
 
 An accessory before the fact is one who, being absent at the 4 Black, com. 35. 
 time of the crime committed, doth yet procure, persuade, Fmter,' 121^' "' 
 counsel or command another to commit a crime, or procures it 
 to be done through the intervention of a third person. 
 
 If such procurer or the like be present, he is guilty of the* Foiter 3X7> 
 
 * But it seems that, from principles of natural justice, the person 
 who did the act ought, in some respects, to be considered the principal, 
 and the others in the nature of accessories ; so that the accessorial agent 
 ought not to be tried until the principal, whp did the act, had been coa- 
 victed. 2 Hank, c. 29. s. 1. n. (1) 
 
 ' t I ]
 
 J ACCESSORY. 
 
 crime as principal, not as principal in the first degree, that is, as 
 having with his own hand committed the fact, hut as princi- 
 pal in the second degree, as having been present, aiding and 
 abetting at the commission of it. 
 
 Foiter, 349. Yet it is not to he understood, that in order to constitute a 
 
 principal, it is in every case necessary that he should be pre- 
 sent : as if A., with intention to destroy B., lays poison properly 
 disguised in his way, and B. takes it and dies ; A., though ab- 
 sent when the poison was taken, is a principal. The law is the 
 same in the case of inciting a madman, or a child, not at years 
 of discretion, to commit murder, or other felony, in the absence 
 of the person inciting him. 
 
 4 Biaek. Com. 37. ^ > s likewise a rule, that ifc who in anywise commands or 
 F U <T, 369. 370. 2 counsels another to commit an unlawful act, is accessory to all 
 
 Hwk. C.2. J.18, , 
 
 19, 20,21. that ensues upon that unlawful act, though the principal varies 
 
 in circumstance of time or place, or in the manner of exe- 
 cution, from the command ; for the substantial part is com- 
 plied with : as if A. command B. to poison C., and he kills him 
 with a sword, A. is accessory. So, if the execution of the fact 
 exceed the command, as if the command be to commit a rob- 
 bery, and the robber kills the person robbed. But where the 
 fact varies in the substance and nature of the crime from the 
 command, as when the principal being solicited to commit a 
 felony of one kind, wilfully and knowingly commits a felony of 
 another kind, he will stand single in that offence, and the person 
 soliciting will not be involved in his guilt.* 
 
 III. Of accessories after the fact. 
 
 * Black. Com. 39. An accessory after the fact is one who, knowing a felony to 
 
 t Hate, P. C. ei.. j, ave been committed, receives, relieves, comforts, or assists the 
 
 male, p. C.622. felon, or who receives one whom he knows to be accessory to a 
 
 felony. Therefore, to make an accessory ex post facto, it is, in 
 
 2Hawk.P.c.si9. the first place, requisite that he know of the felony committed. 
 
 In the next place, he must receive, relieve, comfort, or assist 
 
 him. And, generally, any assistance whatever, given to a felon, 
 
 to hinder his being apprehended, tried, or suffering punishment, 
 
 makes the assistor an accessory : as furnishing him with a horse, 
 
 to escape his pursuers ; money or victuals to support him ; a 
 
 house, or other shelter, to conceal him; or open force or vio 
 
 * So if a man command another to commit a felony on a particular 
 
 person or thing, and he do it on another ; as to kill A., and he kill B., or 
 
 to burn the house of A., and he burn the house of B., or to steal an ox. 
 
 itrid he steal a horse, or to steal such an horse, and he steal another, the 
 
 person who gives the command is not an accessory. (2 Hawk. c. 29. 
 
 If the person commanding, before the fact be committed, repent 
 
 r.nd countermand his consent or order, be will not be an accessorv 
 
 P. C. 618. 2 Haick. c. 29. s. 16.
 
 3 Hawk. c. 29. s. 
 
 26, 27, 128. 
 
 1 Hale, P. C. 619. 
 
 1 Hale, P. C. 020, 
 Ml. 2 Hawk. i'. 
 29. s. 30. 
 
 1 Hale, P. C. (519. 
 
 IHale, P.C. 619, 
 620. 
 
 Sess. 36. c. 8. 1 R. 
 L. 496. et >jdc 
 post, IV. 
 
 4 Black. Com. 38. 
 2 Hawk. c. 29. s. 
 35. 
 
 ACCESSORY. 
 
 lence to rescue or protect him ; or voluntarily suffering him to 
 escape after he has been arrested ; or taking money from him 
 to permit him to escape. 
 
 So, if a felon be in gaol, to convey instruments to him to 
 break prison to make an escape, or to bribe the gaoler to let him 
 escape, makes the party an accessory ; but to relieve him with 
 necessary meat, drink, or clothes, for the sustentation of life, if 
 he be in prison, or to relieve and sustain him if he be bailed, will 
 not make the person so doing an accessory. 
 
 Neither will a bare omission or neglect to take the proper 
 means to arrest a felon arid bring him to justice, although 
 punishable, make the party an accessory ; for, until he be ar- 
 rested, nothing short of an active co-operation in his escape 
 will be sufficient. 
 
 If the owner receives his goods again from the felon, simply 
 without any contract to favour him in his prosecution, or to for- 
 bear prosecution, it is lawful ; but to receive them upon agree- 
 ment not to prosecute, or to prosecute faintly, is theft bote, but 
 does not make him an accessory ; neither does the bare receiv- 
 ing the goods, although knoAving them to be stolen ; yet the party 
 is punishable as for a misdemeanour. 
 
 In order to make a receiver or assistant an accessory, it h 
 necessary that the felony should be complete at the time of the 
 receipt, or of the assistance given. As if one wounds another 
 mortally, and after the wound given, but before death ensues, 
 a person assists or receives the delinquent, this does not make 
 him an accessory to the homicide ; for till death ensue there is 
 no felony committed. 
 
 As to how far the relationship between the felon and receiver 
 purges the latter from the guilt of an accessory, the law is very 
 strict, and admits of but one exception to the general rule, that 
 the nearest relations shall not aid or receive one another. A 
 parent receiving a child, a child a parent, a brother a brother, a 
 master a servant, a servant a master, are all accessories. But 
 a feme covert does not become an accessory by receiving or 
 concealing her husband, for she is presumed to act under his 
 coercion, and therefore she is not bound, neither ought she to 
 discover her lord : the law, however, does not extend this ex- 
 emption to the case of the wife committing felony ; if her hus- 
 band relieve her, he is still an accessory. 
 
 IV. How they are to be proceeded against. 
 
 If the principal be acquitted of a felony, in such manner that 2 Hawk. c. 2r>. . 
 he may plead such acquittal in bar of any subsequent prosecu- ^4Bhck.Cmn. 
 tion for the same felony, the accessory shall not be arraigned, 
 but shall be discharged.* The accessory, however, may be 
 
 * If the principal havo broi convicted, it is, notwithstanding, com- 
 petent for the accessory. n hi* trial, to provr tlir principal innocent. 
 
 4 Black. Cora. 38, 
 
 39. 
 
 2 Kawk. c. 2P. s. 
 
 24. 3 Iii, u 106. 
 
 1 Kale, P. C, o2 1 .
 
 4 ACCESSORY. 
 
 arraigned before ttm principal is attainted, yet fcc cannot be 
 tried as long as the principal remains liable to be tried. And 
 by the old common law, if the principal had never been indict- 
 ed at all, and stood mute, had challenged above thirty-five ju- 
 rors peremptorily, had claimed the benefit of clergy, had ob- 
 tained a pardon, or had died before attainder, the accessory, in 
 any of these cases, coyld not be arraigned. 
 
 ?'A' L* % 8 ' *' '" '^ ^ v ' a ^ e th' 3 defect* it is enacted, "That if any principal 
 felon shall be convicted of any felony, it shall be lawful to pro- 
 ceed against any accessory, either before or after the fact, in 
 the same manner as if such principal felon, had been attainted 
 thereof, notwithstanding any such principal felon shall be par- 
 doned, or otherwise delivered before attainder ; and every such 
 accessory shall suffer the same punishment, if he be convicted, 
 as he should have suffered if the principal had been attainted. 
 And further, That it shall be lawful to prosecute and punish 
 every person buying or receiving any stolen goods, knowing the 
 same to be[stolen, as for a misdemeanour, although the principal 
 felon be not convicted of the said felony, which shall exempt 
 the offender from being punished as accessory to such felony 
 after the fact, if the principal shall be afterwards convicted." 
 
 2-Hawk. c.29.5.48. It was doubtful at common law, when a felony was commit- 
 ted in one county, and a person was accessory to it in another 
 county, whether the accessory could be indicted at all : that 
 there might not be a failure of justice in such cases, it is now 
 provided by the legislature, in imitation of an English statute to 
 the same effect, "That when any murder or felony shall be 
 committed in one county, and any other person shall be acces- 
 sory in any manner to any such murder or felony in any other 
 county, then an indictment found against such accessory for the 
 same, at any court of oyer and terminer and gaol delivery, or 
 general sessions of the peace in the county where such offence 
 of accessory shall be committed, shall be as good and effectual 
 as if the said principal offence had been committed within thn 
 same county where the same indictment against such accessory 
 shall be found ; and the courts of oyer and terminer and gao! 
 delivery in the county where the offence of any such accessory 
 so indicted shall be committed, shall, upon a certificate that the 
 principal is attainted, convicted, or otherwise discharged of the 
 principal felony, to be given under the hand and seal of the 
 cleric who has the custody of the records of the same, and 
 which certificate such clerk is hereby required to give, on ap- 
 plication in writing from either of the judges of the said courts, 
 proceed to try every such accessory in the county where the 
 offence of such accessory was committed, in like manner as if 
 the principal offence and accessory had been committed in such 
 county, and thereupon to give judgment, and award execution, 
 according to law." Sess. 26. c. 8. s. 5. 1 R. L. -IP. 5. 
 
 4 Qiafx.Com. so, Tj ie ru ] e o f ; ie common law was. that accessories should n;f
 
 ACTIONS QUI TAM. 
 
 ter the same punishment as their principals : with respect to 
 accessories before the fact, no alteration has been made by th* 
 legislature of this state ; but accessories to any felony whatso- 
 tver after the fact, are punishable with fine and imprisonment ; 
 or instead of, or in addition to a fine, may, in the discretion of 
 the court, be adjudged to imprisonment in the state prison for 
 the term of three years. Seas. 36. c. 29. B. *3. 1 R. L. 410. 
 
 ACTIONS QUI TAM. 
 
 Actions qui tarn are such as are given by statutes which im- 
 pose a penalty, and create a forfeiture for the neglect of some 
 duty, or commission of some crime, to be recovered by action 
 or information, at the suit of him who prosecutes, as well in the 
 name of the people of the state as in his own. And they are 
 sometimes called popular actions, when the penalty, or part of it, 
 is given to any one who will sue for the same. 
 
 There are a number of penalties of the amount of twenty- 
 five dollars and under, dispersed through a variety of statutes, 
 which are required to be sued for in a justice's court. The pro-- 
 ceedings in such cases must, in general, conform to the course 
 pointed out by the twenty-five dollar act, which is foreign from 
 the subject of this compilation ; yet as much of these pages 
 will be taken up with the consideration of these penalties, it 
 may not be improper to introduce a few observations as to some 
 particulars which are peculiar to this form of action. 
 
 A penalty cannot be raised by implication, but must be ex- 
 pressly created and imposed. 
 
 If a person has a right to sue at common law, and a remedy 
 13 likewise given in the affirmative by statute, without a negative 
 express or implied of the action at common law, he may avail 
 himself of either remedy ; but if he have no other right than 
 what is derived from the statute, his remedy also must be under 
 the statute. 
 
 The person who first commences a quitam action, attaches a 
 right in himself to the penalty, which cannot be devested by a 
 subsequent suit, brought by any other common informer, though 
 judgment has been first recovered in such subsequent suit, and 
 though the act declare that a recovery for the penalty shall be a 
 bar to all prosecutions for the same offence ; for this is to be 
 construed in regard to a recovery in the suit first commenced. 
 
 An act Avhich gives a remedy only to the party grieved, is not 
 to be considered as a penal act. 
 
 An action or information on a public statute need not recite 
 the statute on which it is grounded, whether the offence be such 
 only because prohibited, or be an evil in its own nature, and 
 whether it be prohibited by more than one statute, or by one 
 
 H.e. Afcr. 1. 
 
 2 Johns. Rep. 
 380. 
 
 Almyv. Harrw, 
 5 Johns. Rep. 175. 
 Cora. Dig. Ac- 
 tion upon itatuie, 
 (C.) 
 
 Beadleston T. 
 Sprague, 6 Johns. 
 Rep. 101. 
 
 1 Bao. Abr. fl2. 
 1 Bac. Abr, 62.
 
 6 ACTIONS QJJI TAM. 
 
 only. But. if the prosecutor take upon him to recite the statute. 
 and materially vary from a substantial part thereof, this is fatal, 
 because it does not judicially appear to the court that there is 
 such a foundation for the prosecution as that whereon it is ex- 
 pressly grounded. 
 
 Com. Dip. Action y e t jf an action lay at common law, as well as by the statute, 
 the statute ought to be recited, that it may appear whether the 
 action he upon the statute or by common law. 
 
 R Caines' Rep. The act to redress disorders by common informers, and to prevent 
 malicious informations, (sess. 11. c. 9. 1 R. L. 99.) does not ap- 
 ply to actions before a justice. 
 
 pay T. \viib*r. 2 If the process be in the name of the plaintiff only, nnd the 
 ea.mv Rep. 134. Declaration state that he sues as well, fcc. the variance is not 
 material ; but at all events, if the defendant has pleaded in 
 chief, he cannot take advantage of the objection on cerliorari. 
 Habron<-k v. j n a g u i tam action in a justice's court, the summons stated 
 Rep. 247. that the defendant was to answer to the complaint of the plain- 
 
 tiff, in behalf of himself and of the people ; but it also added, 
 "in a plea of debt, to his damage twenty -five dollars ;" and the 
 declaration, though it stated preliminarily that the plaintiff com- 
 plained as well for himself as for the people, yet it was of a 
 plea that the defendant render to the plaintiff twenty-five dol- 
 lar?, which from him he unjustly detained ; and that the action 
 had accrued to the plaintiff, &c. On certiorari, the court held 
 that the formal proceedings were substantially correct. 
 
 s J cainM' a ' < Be' ^ ' s ' n g enera ' to De observed, that in penal, as well as other 
 
 152. 174. 187. 3 actions, the proceedings in justices' courts, as far as respects re- 
 
 io ht johm e . P 'Rti>.' gularity and form, will be reviewed with liberality, and technical 
 
 104. 240. nicety or legal precision are not required in the pleadings, hut. 
 
 it will be sufficient if there appear a good ground of action 
 
 within the justice's jurisdiction, and that the merits of the cause 
 
 have been tried. 
 
 i Bac. Abr. 67. J n a qui tarn action, the proper plea is nil dclet, that the dc- 
 
 i Johns.' 'case/, fendant owes nothing to the plaintiff or to the people : but it 
 
 R 3 174 Caine *' seems that a plea of not guilty is a good pica. However, it has 
 
 been decided that the joining of a formal issue in a justice's 
 
 court is not material. 
 
 o!e v. Smith, If the statute gives no general form of declaring to a com- 
 
 4 Johns. Rep.193. . . 
 
 mon informer, the plaintiff must state the special matter upon 
 which his cause of action arises. 
 
 i jnhm.Rrp. sis. If an exception or proviso in a penal statute forms no part of 
 4Joi.m.'Rep.304i the plaintiff's title, but merely matter of excuse for the de- 
 s Joiins. Rtp. 40. fendanf, it is not necessary for the plaintiff in his declaration to 
 
 negati/e the exception or proviso. 
 
 i Rac. Abr. 69. An informer on a popular statute shall in no case whatsoever 
 have his costs, unless they be expressly given him by such sta- 
 tute, for the common law gives costs in no cases ; but wherever 
 a statute gives a certain penalty to a party grieved, there he is 
 entitled to costs.
 
 AFFIDAVIT. 7 
 
 The parties to a quitam action may lawfully agree, the plain- fiaskmi v. New- 
 tiff to discontinue the suit, and the defendant to pay the costs ; R^ b ' 40 f. JyUns ' 
 for discontinuing is not compromising or compounding a popu- 
 lar action, and is not an offence ; neither is the payment of coats 
 by the defendant a composition. 
 
 Where a statute inflicts a penalty, the one. moiety whereof, f,?*^ 6 ', 1 v * A , 1 , !eD ' 
 
 Y * '10 Johns. Ke[i. 
 
 when recovered, to be disposed of in a particular way, and the us. Bradway*. 
 other moiety to go to the benefit of the person prosecuting the j^hn^tteu'/aii! 
 same to effect, a payment of the penalty to the person prose- 
 cuting will discharge the defendant; but the plaintiff has no 
 right to discharge the judgment without payment, or compound 
 with the defendant without leave of the court,* 
 
 AFFIDAVIT. 
 
 " It shall be lawful fora judge of the supreme court, or any 
 magistrate of any city or county within this state, upon appli- 
 cation by or in behalf of either of the parties to a suit depend- 
 ing in a court of judicature in any other of the United States, 
 and information that any person residing within the county 
 where such application is made, is a material witness in the suit, 
 to issue a summons to such person, requiring him or her to ap- 
 pear and make affidavit of all such matters and things as he or 
 she may know concerning the same, and to transmit the affida- 
 vit to the court where the cause is depending, in such manner 
 as the practice of such court may require to render such affida- 
 vit legal testimony." Sess. 7. c. 26. s. 1. 1 R. L. 49. 
 
 ' ; Every witness who shall be summoned to give evidence in 
 manner aforesaid, shall be entitled to receive from the party at 
 whose instance he is summoned, four shillings for every day of his 
 attendance ; and no witness shall be bound to appear except 
 only before one of the judges or magistrates who shall be 
 nearest to the place of residence of such witness." (s. 2.) 
 
 " Whenever any person shall refuse to appear and make affi- 
 davit in pursuance of such summons, a warrant shall issue from 
 such judge or magistrate to compel his appearance, and if on his 
 appearance he shall refuse to make affidavit, or affirmation, if a. 
 quaker, of the fact which may be within his knowledge, touch- 
 ing the matters in question, he shall be committed to the con:- 
 
 * The plaintiff cannot discharge the judgment as to the people's 
 moiety without payment ; and if the defendant in a qui tarn action 
 have hcen taken in execution, and be discharged by the plaintiff with- 
 out satisfaction, such discharge is no bar to an action for uu escape. 
 M-n!:t v. IVoudii'orth and Ftrt'.s, 11 Ji/ltns. Rfp. 474.
 
 AFFRAY. 
 
 mon gaol of the county, there to remain, without bailor maiu- 
 prize, for the term of six calendar months." (s. 3.) 
 
 AFFRAY. 
 
 I. What is an affray. 
 II. How far it may be suppressed by a private person. 
 
 III. How far by a constable. 
 
 IV. How far by a justice of the peace. 
 
 I. Jfliat is an affray. 
 
 4 Black. Com. An affray is the fighting of two or more persons in some pub- 
 . i. 2. 3 lint.' lie place to the terror of the people ; for if the fighting be in 
 private it is not an affray, but an assault ; neither will threatening 
 words amount to an affray, although it seems that the constable 
 may, at the request of the party threatened, carry the person 
 using the threats before a justice of the peace, in order that he 
 may find sureties. 
 
 5 B1 i e H wk m ' e P ums hment of common affrays is by fine and imprison- 
 
 3. i. 21. 3 liut. rnent, the measure of which inust be regulated by the circum- 
 ls3 ' stances of the case ; for where there is any material aggravation, 
 
 the punishment proportionably increases. As where two per- 
 sons coolly and deliberately engage in a duel ; this being attend- 
 ed with an apparent intention and danger of murder, and being 
 a high contempt of justice, is a strong aggravation of the affray, 
 though no mischief has actually ensued. 
 
 Hawk. e. 63. jj j s likewise said to be an affray, at common law, for a man te 
 arm himself with dangerous and unusual weapons, in such man- 
 ner as will naturally cause terror to the people. 
 
 II. Hotcfar it may be suppressed by a private person. 
 
 i Hawk. c. 63. Any one who sees others fighting may lawfully part them, 
 and also stay them till their heat be over, and then deliver them 
 to the constable, who may carry them before a justice of th 
 peace, in order to their finding sureties of the peace : also it is 
 said that any private person may stop those whom he shall sc' 
 coming to join either party. If the person endeavouring to 
 suppress an affray, receive an injury from either party, he may- 
 have his action against him ; but should he, unavoidably, happeu 
 to hurt either party, he may justify it. 
 
 i Hawk. c. 63. So if either party be dangerously wounded in such an affray, 
 and a stander-by, endeavouring to arrest the other, be not able 
 to take him without hurting, or even wounding him, yet he is no 
 way liable to be punished for the same, inasmuch as he is bound, 
 under pain ef fine and imprisonment, to arrest such an eff
 
 AFFRAY. 9 
 
 ither. detain him till it appear whether the party will live PhilKoi T. Trull, 
 or <lie, or carry him before i justice of the peace, by whom he 43 6- Jums ' Rei> ' 
 
 to be bailed or committed. But no private person 
 can of his own authority arrest another for a breach of the peace 
 after it is over. 
 
 A private person interposing in the case of sudden affrays, to i Eaf, P. c. 
 part the combatants or prevent mischief, must give express no- 3li ' t 
 tice of his friendly intent, and should he be assaulted by them or 
 either of them, arid in the struggle should happen to kill, this 
 will be justifiable homicide ; for it is the duty of every man to 
 interpose in such cases, for preserving the public peace, and pre- 
 venting mischief. On the other hand, if the party so interpos- 
 ing, giving such notice, should be killed by either of the comba- 
 tants, it will be murder in the person so killing. 
 
 But it is not murder in both, unless both struck him that i Hale, P. c. 
 came to part them. 442 ' 
 
 When, however, the third person does not show his intention i Hawk.e. 31. 
 not to take part in the quarrel, or to appease it, he who kills him 
 is guilty of manslaughter only, for he might suspect that he 
 came to side with his adversary. 
 
 II. How far by a constable. 
 
 A constable is not only empowered, as all private persons are, i Hawk. c. 63. 
 to part an afFray which happens in his presence, but is also *' 
 bound at his peril to use his best endeavours to this purpose, 
 and not orHy to do his utmost himself, but also to demand the 
 assistance of others, which if they refuse to give hirn they are 
 punishable with fine and imprisonment. And if an affray be in 
 a house, the constable may break open the doors to preserve 
 the peace ; and if the affrayers fly to a house, and he follow 
 with fresh suit, he may break open the doors to take them. 
 
 It is said that if a constable see persons either actually en- i Hawk, c, 03. 
 gaged in an affray, as by striking, or offering to strike, or draw- *' u * 
 ing their weapons, or upon the very point of entering upon an 
 affray, as where one shall threaten to kill, wound, or beat 
 another, he may either carry the offender before a justice of 
 the peace that he may be compelled to find sureties of the 
 peace, or he may imprison him of his own authority for a rea- 
 sonable time, until his heat shall be over ; but whether he can 
 make him find sureties of the peace appears to be doubtful: 4 Black. Com, 
 but it seems that he has no power to imprison such an offender c^aos! Kast)l> ' 
 in any other manner, or for any other purpose ; for he cannot 
 justify the committing an affrayer to gaol till he shall be punish- 
 ed for his offence : and it is said that he ought not to lay hands 
 on those who barely contend with hot words, without any 
 threats of personal hurt, and that all he can do in such case, 
 is to command them under pain of imprisonment to aroid 
 fight irij. 
 
 t 2] 

 
 10 AFFRAY. 
 
 i Ha\vk.c.63.j. But he is so far intrusted with a power over all actual affrays, 
 that though he himself is a sufferer by them, and therefore lia- 
 ble to be objected against, as likely to be partial in his own 
 cause, yet he may suppress them; and therefore if an assault 
 be made upon him, he may not only defend himself, but also 
 imprison the offender, in the same manner as if he were no way 
 a party. 
 
 1 East,p. c.305, The better opinion seems to be, that a constable or other 
 63 6 "* 1 //** 1 * C P eace officer is not warranted in arresting one upon a charge 
 
 2 Hawk.c. i3.i. by another of a mere breach of the. peace after the affray is 
 
 ended and the peace restored, without a special warrant from a 
 magistrate; for it is his business to preserve the peace and not 
 to punish the breach of it, so that he can neither imprison the 
 party, or compel him to find sureties, admitting that he might 
 do so in the case in his own presence. Yet Lord Hale, '2 P. 
 C. 90. and some later authorities, have holden that he may 
 arrest the party upon the charge of another, though the affray 
 be over, for the purpose of bringing him before a justice to find 
 sureties, or for appearance. But where time and circumstances 
 will admit of it, the better way is to apply to a magistrate for a 
 warrant. 
 
 i Hale, p. c. It seems clear, however, that if one menace another to kill 
 
 c! 9 3oe! ^ ' him, u pon complaint thereof to the constable forthwith, he may, 
 in order to avoid the present danger, arrest the party, and detain 
 him till he can conveniently bring him to a justice of the peace. 
 
 2Esp. 540. So if a dangerous wound has been given which is likely to 
 
 ensue in felony, a constable may take the person giving it into 
 custody. 
 
 i Hawk. c. 63. s. A constable may, however, carry those before a justice of 
 the peace, who were arrested by such as were present at an 
 affray, and delivered by them into his hands. 
 
 i F.ast.p.c.3P3. |f t ne constable, or any of his associates, whether commanded 
 or not, be killed, it will be murder. But in order to aggravate 
 the offence to this degree, the parties concerned must have 
 had some notice with what intent he interposed : otherwise the 
 parties engaged may in the heat and bustle of an affray imagine 
 that he came to take a part in it. But in these cases a small 
 matter will amount to a due notification. It is sufficient if the 
 peace be commanded, or the officer in any other manner declare 
 with what intent he interposes. Or if the officer he within his 
 proper district, and known,* or but generally acknowledged to 
 bear the office he assumes, the law will presume, that the party 
 killing had due notice of his intent, especially if it be in the dny 
 
 * In the case of all peace officers, justices of the peace, constable*. 
 &:c. it is sufficient to prove that they acted in those characters, without 
 producing their appointments, and thai even iu the case of murder, i 
 Term Rep. S66. 3 Jdms. Rep. 431.
 
 APPEAL. 
 
 11 
 
 time. In the night some farther notification is necessary, and 
 commanding the peace, or using words of the like import, noti- 
 fying his business, will be bullicient. 
 
 Killing the officer will, in such case, be murder, not only in i East, P.O. 315. 
 the person committing the act, Fmt in all the other persons en- 
 gaged in the affray, who had the notice just spoken of, and 
 abetted him in the fact; but where they have not notice, it will 
 only be manslaughter, and where they neither have notice nor 
 abet, they will not even be guilty of manslaughter. But if the 
 affray had been deliberately engaged in, if the parties had 
 engaged to a common cause and to maintain it by force, and the 
 constable or any other person opposing them in it had beeu 
 killed, it would have been murder in all. 
 
 IV. How far by a justice of the peace. 
 
 A justice of the peace may and must do all such things for the ' Hawk. c. 63.*. 
 purpose of suppressing an affray, which a private man or con- 
 stable are either enabled or required by law to do : but it is said 
 that he cannot, without a warrant, authorize the arrest of any 
 person for any affray out of his view ; yet in such case he may 
 make his warrant to bring the offender before him, in order to 
 compel him to find sureties of the peace. 
 
 Where one person has dangerously wounded another in an 1 Hawk. c. 6-3. . 
 affray, the justice has a discretionary power either to commit 
 him or bail him till the year and day be passed ; but it is said, 
 that he ought to be very cautious how he takes bail if the wound 
 be dangerous ; for if the party die and the offender appear not, he 
 is in danger of being severely fined, if he shall appear, upon the 
 whole circumstances of the case, to have been too favourable. 
 
 APPEAL. 
 
 An appeal is the removal of a cause from an inferior court or i Bum's Just.ss. 
 judge to a superior ; as from one or more justices to the quarter 
 sessions. 
 
 It also signifies an accusation by a private subject against 4BLCom.3i2- 
 another for some heinous crime; demanding punishment on 
 account of the particular injury suffered, rather than for the 
 offence against the public. This mode of prosecution has 
 become obsolete in England, and, in this state, has been ex- 
 pressly abolished. Under this title appeals will be considered 
 only as far as they relate to the removal of un order of justices 
 to the sessions. 
 
 'Upon appeals to the courts of general sessions of the peace 
 against any judgment or order of any justice of the peace, the 
 said courts shall cause all defects of form to bo found in such
 
 12 APPEAL. 
 
 judgment or order, to he: amc-mlcd without any costs to thr par, 
 ties concerned and after such amendment made, shall proceed 
 to hear the merits of such judgment or order, upon due proof, 
 by witiieshrs or otherwise, and to determine upon the same aa 
 if no &ucli defect of form had existed." Sess. 3tJ. c. Ib. s. 5. '2 
 Jl. L. 151.* 
 
 Swi-ct v. Over- This cause came before the court on a return to a ccrtiorari 
 sj'oLiw ( Kep. " 1 from tnc - court of general sessions in Dutchess county. An appeal 
 J3. had been made to the sessions, from an order of bastardy made 
 
 by two justices of the peace. Upon the traverse to the appeal, 
 U r as contended on the part of the appellant, that the overseers 
 ought to proceed to establish the order by proof; that the sub- 
 ject ought to be examined in the same manner as it had been 
 before the justices who granted the order. The court of ses- 
 sions determined that the order was prima facie evidence of the 
 facts contained therein ; and that it was incumbent on the appel- 
 lant to prove that the facts set forth in the order were not true. 
 The sessions having confirmed the order of the justices, the ap- 
 pellant tendered a bill of exceptions which was seated by the 
 justices of the sessions, and returned with the order and other 
 proceedings, annexed to the certiorqri, to this court. 
 
 THOMPSON, J. delivered the opinion of the court. This case 
 is brought up by certiorari from the court of sessions in Dutchess 
 county. It came before the sessions by appeal, on an order of 
 bastardy, made by two justices of the peace, and the question 
 presented to this court is, whether, on such appeal, the order 
 of the justices ought to have been received by the sessions as 
 prima facie evidence, and to be impeached by the appellant, or 
 whether the sessions are to take up the examination de novo, as 
 if no order had been made. We have not been able, from an 
 examination of the cases cited on the argument, to find that the 
 question has ever received any judicial determination, or to 
 ascertain what the practice has been. We are inclined, how- 
 ever, on general principles, to think that the order ought to be 
 received .is prima facie evidence, and the onus of impeaching it 
 thrown on the appellant. This order was the judgment of 
 magistrates, having jurisdiction of the subject matter. It is final 
 and conclusive upon the party, unless reversed upon appeal, and 
 no appeal lies to take the case from the magistrates, until they 
 have passed judgment upon it. The appeal is for the purpose 
 of revising and correcting the errors of the magistrates, and their 
 judgment ought to be deemed valid, until some ground for re- 
 
 * The court will in general, in cases of orders, presume in their 
 favour, that omnia rile acta ; ami herein they differ from convic- 
 
 tions, i Str.i. 9 6. 1 m-:. &M:;U!. :il3. n. 1. Every intendzucnt shall 
 1)0 made in their favour. 3 Eat!, 53.
 
 APPRENTICES. 13 
 
 v,criing it be shown. A question was also made on the argument, 
 whether a bill of exceptions would lie to a court of sessions. It 
 appears to be pretty well settled, by the cases in the books, that 
 it will not. in those summary proceedings, the sessions are 
 judges both of law and fact, and it would seem to be the inten- 
 tion of the statutes, instituting these proceedings, that what the 
 justices do shall be final as to facts, and every thing but the law 
 arising therefrom. If the sessions do not return to the certiorari 
 all the- facts which were before them, and which are necessary to 
 appear in order to judge of the law applicable to the case, the 
 practice I apprehend to be, for this court to order the session* 
 to return such facts. The order of the sessions must be 
 affirmed. 
 
 But it is now settled by an act of the legislature, that in th 
 particular case of an appeal from an order of bastardy, the ses- 
 sions must take up the examination de novo, and require the 
 party in whose favour the order was made to substantiate it, 
 except in the case of the death of the mother of the bastard. 
 Bastard, IV. 
 
 But in other instances of appeals, the above case may be con- 
 sidered as an authority. 
 
 The sesions is alias one day, so that if the justices have made 3 Salk. 494. f,c*. 
 an order on an appeal to them, they may, during the same ses- 
 sions, vacate it and make another order. 
 
 With respect to the proceedings on appeals in particlar cases, 
 I must refer to the several titles of this digest under which they 
 *re considered. 
 
 APPRENTICES. 
 
 Apprentices are a species of servants who are usually bound 1 El. Com.42e. 
 fi>r a term of years, by deed indented, or indentures, to serve 
 their masters, and to be maintained and instructed by them. 
 
 I. How apprentices are to be bound. 
 
 II. Binding of poor apprentices. 
 
 III. Differences betiveen master and apprentice. 
 
 IV. Hoic an apprenticeship is determined. 
 V. Other particulars relating to apprentices. 
 
 I. Hoiv apprentices are to be bound. 
 
 " Every person bound by indenture of his or her own free will, 
 nd with the consent of his or her father, or if he be dead, of 
 the mother or guardian, and to be expressed in such indenture, 
 and signified by such parent or guardian sealing and signing the 
 same indenture, and not otherwise, or by the justices and over-
 
 |4 APPRENTICES. 
 
 seers or' the poor, as herein after directed, to serve as clerk 
 apprentice, or servant, in any profession, trade, or employment,, 
 unli! the ago of twenty-one years, or fon any shorter tin:e. 
 although such clerk, apprentice, or servant, shall be within the 
 age of twenty-one years at the making of such indenture, shall- 
 be botmden to serve for the term in the indenture specified, as 
 i'liUy as if the same clerk, apprentice, or servant, was of full age 
 at the making of the same. Provided always, that any child of 
 any Indian woman shall not be so bound except in the presence 
 and with the consent of a justice of the peace, a certificate of 
 such consent being also signed by the justice, and filed with the 
 clerk of the town in which such indenture shall be executed. 
 Jtnd provided further, that it shall be lawful for any male infant^ 
 under the age of twenty-one years, or any female infant, under 
 the- age of eighteen years, and who shall have no parent living, 
 nor any guardian, by and with the approbation of the overseers 
 ef tb_e poor of the town, or of any two justices of the peace, or 
 ot'any judge of the court of common pleas of the county where 
 Sruch infant shall reside, to bind himself or herself an apprentice 
 as, aforesaid, until such infant, if a male, shall arrive to the age of 
 twenty-one years, and if a female, to the age of eighteen years ; 
 which approbation shall be indorsed on the indenture, and every 
 suueh indenture shall be valid and binding." Sess. 21-. c. M. s.. 
 2. 1 R. L. 13o. 
 
 "When the father of any child is not in legal capacity to give 
 the consent aforesaid, the mother of such child shall have the 
 same power to give such consent as if the father was dead." 
 s. 2. 
 
 "The executor or executors, who are or shall be by the last 
 tvitt and testament of a father directed to bring up his child or 
 children to some trade or calling, such executor or executors are 
 hereby empowered to bind such child or children by indenture, 
 in like manner as the father might by law have done, if living, 
 any thing in this act to the contrary in anywise notwithstand- 
 ing." s. 14. 
 
 4a,ai&,6. An. apprentice cannot be bound without deed, and by the pro- 
 
 viso in the seventh section of the act concerning apprentices 
 and servants, no deed or contract for binding any person as 
 clevk, apprentice, or servant, shall be void for not being indented 
 only. 
 
 Writs of habeas corpus hud been awarded to JVizwan Spier to 
 bring up the body of Hugh M'Dou-lc, ;u.d to .\"athan Slosaon to 
 bring up the body of John M'Doxle. The return by Mtihan Spies 
 stated, that on the 3d of Mai/, 1 80S, .Matthew M-Doitie, father 
 of the infant, sealed and delivered to him an indenture, which 
 wns set forth, by which he bound his son Hugh, then six years 
 of age, to Spier, a member of the society called shakers, to be 
 by him fed, &tc. taught, Jk.c. until the age of twenty-one. If the 
 Uoy inclined to depart, before, the father agreed to take him
 
 APPRENTICES. 15 
 
 awny, on being duly notified, Jcc. The indentures were f-\r- 
 r.uN-d by Spier, and the father of the infant. The return furllx.-r 
 stated, that the infant has never manifested any desire to -depart, 
 but an inclination to stay, though on the 2Uth of Derrmber lasl, 
 the father of James M'Dotcle had fraudulently and forcibly taken 
 away the hoy and kept him six weeks; that he, Spier, had per- 
 formed the covenants in the indenture on his part, and was 
 willing to perform, &c. The return to the other writ was simi- 
 lar. A petition Avas also presented, signed hy the infants, otie 
 being 1 1 and the. other 8 years old, praying that they might, 
 now he permitted to execute the indentures. 
 
 Per Curiam. Two objections are taken to the validity of the. 
 indenture stated in the return; 1. That it is not executed by 
 the infant; 2. That the word "apprentice" is not inserted in 
 the deed. The first objection is founded on the words of lh*. 
 statute which evidently requires the deed to be executed by 
 the infant, as well as by his parent or guardian. At common 
 law, a parent may bind his infant an apprentice, but the statat" 
 must be considered as controlling the common law in thi-~ 
 respect, and as requiring the infant to be a party to the dee<l. 
 The infant in the present case is not therefore hound, and th 
 question is as to the r-.-lief which ought to be granted upon th 
 present writ. The father who, on his part, executed the inden- 
 ture with the master, sues out the writ. There is nothing before 
 the court to show any improper treatment of the infant, nor that. 
 the party to whom the father intended to bind him has not 
 hitherto faithfully performed the stipulations in the indenture. 
 This is not a case then, in which the father has any equity, or 
 any right to complain. He may be bound still by ihe covenants 
 in the indenture, though the infant is not. It is for the infant 
 alone to take advantage of the defect, and if he does not choose 
 to do it, he may waive the defect, and avail himself of the bene- 
 fit of the apprenticeship. All that the court are required to do 
 under the present writ, is to see that the infant is not restrained 
 against his will. In the present case, then, the court can only 
 declare, that the infants are at liberty to go where they plea?e. 
 They may go and put themselves under the care and protection 
 of their father, or they may return to the service of their master. 
 
 The words in the second section of the statute, viz. that the 4 Bac. Abr. 565, 
 apprentice, although withint he age of twenty-one years, shall 
 be bounden to serve for the term specified, as fully as if he was 
 of full age at the making of the same, do not extend to making 
 the infant liable to an action of covenant or other action for 
 departing from the service of his master, as for other breaches of 
 his indentures. The act merely takes away from the infant the 
 power of vacating the indenture, which he had at common law. 
 
 The act speaks only of a binding until the age of twenty-one 5 T<<rm Rep . 
 years, or fur any shorter time ; consequently, if tLe binding is J * 4 - c iJetit
 
 1C APPRENTICES. 
 
 for a longer period, the infant on coming of ago may elect <. 
 avoid the indentures ; with this exception, however, that when 
 he is before a magistrate, charged with any misbehaviour undef 
 the indenture, that is not the time to avoid it. 
 
 M<-;uiv. Killings, Where, in an indenture of apprenticeship, it was stated that 
 10 Jolnw. Hep. t ne apprentice bound himself with the consent of his father, and 
 the father actually signed and sealed the indenture with the 
 son, though the father was not named in the indenture as a 
 party, it was held that the father was bound for the son, and 
 responsible to the master in case the apprentice left his service, 
 before the expiration of the term fixed by the indenture. 
 Term Uep. An indenture of apprenticeship may be formed without using 
 s*n,208. * ne word apprentice. It is enough if the purpose of the con- 
 tract be, that the one shall teach and the other learn the trade. 
 No technical words are necessary to constitute the relation of 
 master and apprentice, nor is it necessary that there should be 
 any premium given to the master. 
 
 But when a premium is paid, or agreed to be paid, or agreed 
 for, with or in relation to every clerk or apprentice so to be 
 bound out as aforesaid, to learn ay profession, trade, or employ- 
 ment, the sum shall be inserted in the indentures to be executed 
 as aforesaid; and every indenture or contract for taking of any 
 clerk or apprentice, other than is by this act regulated, shall be 
 void as against such clerk or apprentice only. Sess. 24-. c. II. 
 s. 7. 1 R. L. 137. 
 
 "No deed or contract for binding any person as cierk, fcc. 
 shall be void for not being indented only." Ibid. 
 
 "To the end that the time of the continuance of the service 
 of such apprentice or servant may the more plainly and cer- 
 tainly appear, the age of such infant so to be bound apprentice 
 or servant, shall be inserted ia his or her indentures." s. 6. 
 
 " And the age of such infant so inserted in the said inden- 
 tures, (in relation to the continuance of his or her service,) shall 
 he taken to be his or her true age, without any further proof 
 thereof." Ibid. 
 
 -, Burn's Just. Though the indentures are not executed by the master, it 
 76 ' 77 - makes no difference if the apprentice himself be bound. So, a 
 
 counterpart seems unnecessary to the validity of the indenture. 
 4 Bao. Abr. 5si. An agreement to execute indentures of apprenticeship will not 
 277. 230. constitute a sufficient binding ; and of course, where there is nei- 
 
 ther indenture or agreement, but only a binding by parol, there 
 can be no apprenticeship. An indenture, however, though lost, 
 shall be sufficient on proof being made that it was duly executed ; 
 but a declaration of the mother, that she heard the apprentice's 
 father say he w as bound by indenture, is not sufficient evidence 
 of the fact. 
 
 j 95 reri " Rel>> An indenture of apprenticeship to an infant is not void, but 
 only voidable.
 
 APPRENTICES. 17 
 
 II. Binding of poor apprentices. 
 
 " It shall be lawful for the overseers of the poor of any city 
 ov town within this state, by and with the consent of the justices 
 of the peace of the same county, or any two of them, residing 
 in or near such town, or in the cities of New-York, fee. by and 
 with the consent of the mayor, &tc. to bind out any child who ia 
 or shall be chargeable, or whose parents are or shall become 
 chargeable, to the city or town wherein they respectively in- 
 habit, or who shall beg for alms, to be apprentices or servants, 
 according to their degree and ability, where tkey shall see con- 
 venient, until such child or children, if male, shall respectively 
 arrive or come to the age of twenty-one years, and if female, to 
 the age of eighteen years ; and the indentures or articles of 
 agreement for binding any such infant shall be as effectual, to 
 all intents and purposes, as if such infant were of full age, and 
 by indenture of covenant bound him or herself: And the coun- 
 terpart of such indenture or articles for the benefit of the person 
 so bound, shall be deposited with the clerk of the city or town 
 in which such binding shall take place, for safe keeping." Sess. 
 24. c. 11. s. 5. 1 R.L. 136. 
 
 When an act which is to be done by the consent of two jus- R. v. Hamai! 4 
 tices s merely ministerial, they may give their consent sepa- 3go, erm 
 rately ; but when it is judicial, they must confer together, and 
 form a joint opinion. The act to be done by two magistrates 
 in this case is purely of a judicial nature. Per KENTOW, Ch. J. 
 The legislature intended that the magistrates should have a 
 check and controul over the parish officers (the overseers) in 
 this instance ; and, in my mind, they are calledjupon to examine, 
 with the most minute and anxious attention, the situations of the 
 masters to whom the apprentices are to be bound, and to ex- 
 ercise their judgment solemnly and soberly before they allow 
 or disallow the act of the parish officers ; for which purpose it 
 is necessary that they should confer together. ASHHURST, J. 
 The act of the justices in this case is in its nature an act of judg- 
 ment. They are the guardians of the morals of the people, 
 and ought to take care that the apprentices are not placed with 
 masters who may corrupt their morals. The justices, therefore, 
 should inquire particularly whether or not they ought to allow 
 the binding by the parish officers ; and I think they would be 
 guilty of a breach of duty, if they implicitly gave their assent 
 without examining into the circumstances of the case. 
 
 The assent of two magistrates to an indenture is sufficiently 
 signified by one of them signing it alone, and being afterwards 
 present when the other signs it. 
 
 " In all indentures and contracts to be made by any overseers 
 of the poor of any city or town, by and with the consent of the 
 justices of the peace of the county, yr any two of them, or by 
 
 [ 3 }
 
 jtf APPRENTICES. 
 
 and with the couseat of the mayor, kc. for binding or pi;' 
 out any child as rai apprentice or servant, shall, among the cove- 
 nants in such indentures or contracts to be made and agreed 
 upon between the parties, always be inserted a clause to the 
 following efiect : That every master or mistress to whom such 
 child shall be bound as aforesaid, shall cause such child to be 
 taught and instructed to read and write, and shall also give unt< 
 such child a new bible, at the expiration of his or her term ol" 
 service." p. 24-. c. 1 1. s. 5. 1 R. L,. 136. 
 
 ' ; The overseers of the poor of each respective city and town 
 khall be the guardians of every such child so put and bound eut 
 as aforesaid, to take care that the terms of the indentures or 
 contract, and the agreements therein contained, be fulfilled, and, 
 that such child be not 111 used ; and the said overseers of the 
 poor are hereby directed to inquire into the saiae, and to re- 
 dress any grievance in such manner as is prescribed by law." 
 Ibid. 
 
 " If any person, who shall be bound as aforesaid, shall refuse to 
 serve as an apprentice or servant, according to the terms of the 
 indenture made as aforesaid, then, upon complaint of the mas- 
 ter or mistress to whom such apprentice, kc. shall be so bound, 
 to any justice of the peace of the county wherein the said re- 
 fusal shall be made, or to the mayor, kc. they and each of them 
 shall have full power and authority by this act, by warrant un- 
 der hand and seal, or otherwise, to send for the same person so 
 refusing, and if the said person refuse to serve .15 an apprentice 
 or servant, to commit him or her untoward in the bridewell or 
 house of correction, if any there be, or if there be nobriJeweil 
 or house of correction, in the gaol of the city or county wherein 
 such refusal shall take place, there to remain until he or she be 
 contented, and will serve as an apprentice or servant, according 
 to the intent and meaning of this act." s. 6. 
 
 "The same justices, kc. shall, as fully as they can, inform 
 themselves of such infant's age, and from such information shall 
 insert the same in the said indentures ; and the age of such in- 
 fant so inserted (in relation to the continuance of his or hr-r 
 vice) shall be taken to be his or her true age, without any fur- 
 ther proof thereof." Hid. 
 
 III. Difertncts between master and apprentice. 
 
 . j. "j ffl , 423. A master may by la\v correct his apprentice for negligence or 
 other misbehaviour, so it be done with moderation. 
 
 When differences arise between master and apprentice, tw* 
 different modes of proceeding are pointed out by the act : 1 . 
 By application to a single magistrate. 2. By application to three 
 magistrates ; each of which I shall consider in order. 
 
 First: by application to a single magistrate. It is enacted. 
 "\*.\. ' ; M any master o: iclitzess shall be guilty of any mis--
 
 APPRENTICES. 10 
 
 refusal of necessary provisions or cloathing, cruelty, or other ill 
 treatment, so that his or her clerk, apprentice, or servant, shall 
 have any just cause to complain, or the said clerk, apprentice, 
 or servant be guilty of any misdemeanour, miscarriage, or ill be- 
 haviour, or do not perform his or her duty to his or her master 
 or mistress, then the said master or mistress, or the said clerk, 
 apprentice, or servant, being aggrieved, and having just cause of 
 complaint, shall repair to any justice of the peace within the 
 county, or to the mayor, fee. where the said master or mistress, 
 dwelleth, who shall take such order and direction between the 
 said master or mistress, and his or her clerk, apprentice, or ser- 
 vant, as the equity of the case shall require. And if the said 
 justice of the peace, or mayor, recorder, or alderman, cannot 
 compound or agree the matter between such master or mistress 
 and his or her clerk, apprentice, or servant, then the said justice, 
 or the said mayor, recorder, or alderman, shall take a recogni- 
 zance of the said master or mistress, in such sum as he shall 
 think proper, to appear at the next general sessions of the peace, 
 to be, holden in the said city or county, and upon his or her appear- 
 ance and hearing of the matter befwe-the said court of general 
 sessions of the peace, the said court may, in their discretion, by 
 rule or order, discharge the said clerk, apprentice, or servant, of 
 his or her clerkship, apprenticeship, or service, and order all such 
 part of such sum and sums of money as shall have been paid or 
 agreed for, with or in relation to every such clerk, apprentice, 
 or servant, as they shall judge proper, to be refunded to the per- 
 son who paid the same, his or her executors or administrators. 
 And such order, so entered in the minutes of the said court, 
 shall be a sufficient discharge for the said clerk, apprentice, or 
 servant from his or her indentures : and if the default shall be 
 found to be in the clerk, apprentice, or servant, then the said jus- 
 tices shall cause such punishment, by fine or imprisonment, or 
 both, as for a misdemeanour, to be inflicted upon him or her, as 
 by them shall be thought meet." Sess. 24. c. 1 1 . s. 9. I R. L. 
 138. 
 
 An apprentice to a surgeon was sent by his master to the East Rrowni. er. 
 Indies: it was adjudged that the master cannot compel his ap- 
 prentice to go beyond the sea, except the master fto with him ; 
 but he may send him to any part of England. But otherwise, 
 jf it be expressly agreed, or the nature of the apprenticeship 
 import it, as if the master be a merchant, adventurer, or sailor. 
 
 Neglect on the part of the master to instruct him in the mys- i n tt. 5-6. 
 tcries of that trade which he was bound to him to learn, is a 
 sufficient cause of discharge. 
 
 An order reciting that J. H. was bound out by indenture, as R. ami i r : 
 ihe statute requires, to J. P. and being lame and having the Owc "' * Slr< '-"' 
 king':; evil, and in the opinion of surgeons incurable, therefore 
 the justices discharged the master from his apprentice. It v. as 
 moved to confirm the order, because the. muster cannot now
 
 20 APPRENTICES. 
 
 have the end of the binding, which was the service of his ap T 
 prentice. But it was answered, that the statute only empowers 
 the justices to discharge for misbehaviour, and not for sickness 
 And quashed by the court ; for the limit M- takes the apprentice 
 for better and worse, and is to provide for him in sickness and 
 in health. 
 
 i Bott.* 571. However, where a boy was put apprentice, and after three 
 
 year's service he plainly appeared to be an ideot, incapable of 
 learning his trade, this defect was held to be a good cause of 
 discharge. 
 
 HawkeswortU OH the act of the .5 Eliz. c. 4. s. 35, which is substantially 
 
 c^'i'^un.]. ^e same as our act , and on the construction of which the cases 
 si?. S.P.I Mod. cited in this part of the present title have been decided, it was 
 held, that it was the intention of the act that an apprentice 
 should be discharged of a bad master, as well as that the mas- 
 ter should be discharged of a bad apprentice. And the clause 
 which gives power to administer punishment to a bad appren- 
 tice, does not restrain, but enlarge the power of the magistrate* 
 beyond what it had given them concerning masters ; for they 
 cannot administer punishment to masters for their faults, but 
 only discharge their apprentices ; but for the faults of the ap- 
 prentices they may inflict corporeal punishment upon them, or 
 discharge them at their discretion. In this case, the sessions 
 had ordered the apprentice to be discharged, and part of the 
 money the master had with him to be refunded, and the appren- 
 tice to stand committed till he find good security for his good 
 behaviour. The application to quash the order was made on 
 the part of the master, but the court confirmed it. 
 
 4Bc. Abr. 56r. Under the same act it has been held that the application may 
 be made in the first instance to the sessions, and that the pre- 
 vious application to a justice is only discretionary. 
 
 z Burns', us. The justice to whom the application is at first made, if he 
 
 sees cause, may, by consent of the master, discharge the ap- 
 prentice from his apprenticeship ; but this must not be by a 
 verbal discharge ; for the apprentice being by deed, cannot be 
 discharged but by deed ; that is, by order underline hand and 
 seal of the justice. 
 
 i saik. 67. 2 If the master, being bound; o answer at the sessions, does 
 not appear, it is a forfeiture of his recognisance ; but yet at the 
 same time the justices may proceed to make an order against 
 him, for though the statute says the discharge mu&t be made on 
 the appearance of the master, yet it must have a reasonable 
 construction, so as not to permit the master to take advantage 
 of his own obstinacy. 
 
 i MO*, ass. i But the master must be summoned, and it must appear on 
 $13 'p?.'?^" "' the face f tlie rder that he cither appeared or was sum- 
 moned. 
 
 v. Aimes, i An order on the master to return money is good, though it is 
 t, is?, pi. not averrc< i that he had any with the apprentice, for the order 
 
 4Bac. Abr.
 
 APPRENTICES. gl* 
 
 Ireing to return money, is as necessary a proof of the receipt of 
 it as if it had been expressly alleged. 
 
 The course of proceeding prescribed in this section of th* 
 act is not restricted Jo any specirs of apprentices, but that which 
 we are now to consider is confined to those upon whose binding 
 out no sum of money was paid. 
 
 Second. With respect to the proceeding before three ma- 
 gistrates, it is enacted : " That it shall be lawful for any three or 
 more justices, in any county, or for the mayor, recorder, and 
 aldermen of any city, or any three or more of them, upon any 
 complaint or application, by any apprentice or servant, upon 
 whose binding out no sum of money was paid, touching or con- 
 cerning any misusage, refusal of necessary provisions or death- 
 ing, cruelty, or other ill treatment, of or toward such apprentice 
 or servant, by his or her master or mistress, by precept, under 
 their hands and seals, to summon such master or mistress to ap- 
 pear before such justices, fcc. er any two or more of them, at a 
 reasonable time and place to be named in such summons ; and 
 such justices, fcc. shall and may examine into the matter of such 
 complaint ; and upon proof thereof, made upon oath, to their 
 satisfaction, (whether the master or mistress be present or not, 
 if service of the summons be also upon oath proved,) the said 
 justices, &c. may discharge such apprentice or servant, by war- 
 rant or certificate under their hands and seals, for which war- 
 rant or certificate no fee shall be paid." Sess. 24. c. 1 1. s. 10. 
 IR. L. 138. 
 
 " It shall be lawful for such justices, fee. or any two or more 
 of them, upon application or complaint made upon oath, by any 
 master or mistress,- against such apprentice or servant, touching 
 or concerning any misdemeanour, miscarriage, or ill behaviour in 
 his or her service, to hear, examine, and determine the same, 
 and to punish the offender by commitment to the house of cor- 
 rection, (if any ther-i be,) or to the common gaol of the county 
 or city, there to remain at hard labour for a reasonable time, not 
 exceeding one calendar month, or otherwise, by discharging 
 such apprentice or servant, in manner and form before men- 
 tioned." s. 11. 
 
 If an apprentice runs away, and is employed by a stranger James r.Le Roy, 
 without the consent or knowledge of his master, the master is | 74 * uhn " ' Kcl " 
 entitled to his earnings, whether the third person did or did not 
 know that he was an apprentice. In case of a hired servant, 
 the employer must have notice to make himself answerable. 
 
 * On the same words in the stat, 20 G. 2. c. 19. s. 4. it has been held 
 that tho complaint must be by the. master or mistress, but it may be 
 verified by the oath of another person. Finley v. Jowlt, 12JE*f. 

 
 ''22 APPRENTICES. 
 
 " If any apprentice or servant shall absent himself from liie 
 service of his master or mistress, before the term of his appren- 
 ticeship or service shall be expired, every such apprentice or 
 servant shall, at any time thereafter, \vherever he shall be found, 
 be compelled to serve his said master or mistress for double the 
 time he shall so have absented himself from such service, un- 
 less he shall make satisfaction to his master or mistress fur the 
 loss he may have sustained by such absence from his service. 
 And so from time to time, as often as any such apprentice or 
 servant shall, without leave of his master or mistress, absent 
 himself from his service before the term of his contract shall be 
 fulfilled. Provided always, that nothing in the present sectiort 
 of this act shall extend to an apprentice whose master or mis- 
 tress shall have received with such apprentice any sum or sums 
 of money to learn such profession, trade, or employment. 
 And also, that no apprentice or servant shall be compelled to 
 serve for any time or term, or to make any satisfaction to any 
 master or mistress after the expiration of three years next after 
 the end of the term for which such apprentice or servant shall 
 have contracted to serve." s. 12. 
 
 " If any person shall think himself aggrieved by such deter- 
 mination, order, or warrant of such justice or justices, mayor, 
 recorder, or aldermen aforesaid, except an order of commit- 
 ment, such person may appeal to the next general sessions of the 
 peace, to be holden in and for the city or county where such 
 determination or order shall be made, such person giving sis 
 days notice of his intention of bringing such appeal, and of the 
 cause and matter thereof, to such justice or justices of the 
 peace, mayor, recorder, or aldermen, and the parties concern- 
 ed, and entering into a recognisance within three days after 
 such notice, before some justice of the peace, or the mayor or 
 recorder, or one of the aldermen for such city or county, with 
 sufficient surety, conditi6ned to try such appeal at, and abide 
 the order and judgment of, and pay such costs as shall be 
 awarded by the justices, at such general sessions; which said 
 justices, at their said session, upon due proof upon oath of such 
 notice being given, and of entering into such recognisances as 
 aforesaid, shall, and are hereby directed to proceed in, and 
 hear, and finally determine the causes and matters of all such 
 appeals, and to give and award such costs, to any of the re- 
 spective parties, as they in their discretion shall judge proper 
 and reasonable, not exceeding ten dollars : the same to be levied 
 by distress and sale of the goods and chattels of such pen-on 
 against whom such determination shall be made ; and that their 
 judgments and orders therein shall be final and conclusive to all 
 parties concerned." s. 13. 
 
 Proceedings under this act cannot be remove'! in'o the su- 
 preme court, until after a final determination and }nd<;.
 
 APPRENTICES. 23 
 
 ihereon by the court of sessions. Sess. 24. c. 13. s. 5. 1 R. 
 L. 142. 
 
 IV. How an apprentiseship may be determined. 
 Besides the expiration of the time limited in the indentures, * Burr. s. c. 
 
 ' 562. Rex V. 
 
 or the apprentice s arriving at the age of twenty-one, when, as waddington, a 
 we have seen before, he may elect to avoid the contract, an ap- j^"'vf'j^sUoM 
 prenticeship may be determined by the consent of all the par- of DeTonsMre, 
 ties concerned, that is, the master, the infant, and the father, Burns' "! 2 6 
 guardian, or overseers. Where no consideration is given to the Mod. 70. 
 master for liberating the apprentice, it seems that the indenture 
 should be both given up and cancelled ; for if it remain uncan- 
 celled, it continues in force until the term expires, and should it 
 ome into the master's possession, he may sue on the covenants. 
 But when lie receives money of an apprentice of full age t* 
 vacate his indentures, the relation is dissolved though the in- 
 dentures remain uncancelled. So, if he license his apprentice 
 to leave him, he cannot afterwards recall that license ; and it 
 may be pleaded to an action of covenant by the master. 
 
 An indenture of apprenticeship is assignable neither in law * Bac. Abr. 577. 
 or equity. 
 
 It hath been held that though justices have a jurisdiction f IKd - 
 discharging apprentices, and may bind them to other masters, 
 that they cannot turn them over ; and, therefore, an order that 
 an apprentice, whose master was dead, should serve the remain- 
 der of his time with his master's widow's second husband, was 
 quashed ; because the justices have nothing to do about turning 
 over an apprentice; and that though he applied to them, that 
 rould not give them'a jurisdiction. 
 
 Justices cannot judge of an assignment, for they cannot try Rue v. Barnes, 
 the validity of a deed. 
 
 It seems agreed that if a man be bound to instruct an ap- 4Ba. Atr.*?*, 
 prentice in a trade for seven years, and the master die, that the 
 condition is dispensed with, being a thing personal ; but if he 
 be bound further, that in the meantime he will find him with 
 meat, drink, cloathing, and other necessaries, here the death of 
 the master doth not dispense with the condition, but his execu- 
 tors shall be bound to perform it, as far as they have assets. 
 For there is a great difference between a covenant to maintain, 
 and a covenant to instruct ; tfae first is a lien upon the exscu- 
 -tor, though not named, in right of the testator's assets being 
 come to his hands ; but the other is a trust annexed to the per- 
 son of the master. 
 
 But if a person is bound apprentice by justices of the peace, nrid. 
 and the master happens to die before the term expires, the 
 justices have no power to oblige his executor by their orderU. 
 receive such apprentice and maintain him, 
 
 '
 
 jj .LAIUNMENT. 
 
 V. 1 Other particulars relating to apprcnt: 
 
 The act making it felony in servants to embezzie th< /,: 
 ters goods, does not extend to apprentices within the age ol 
 eighteen years, but they shall stand and be in like case as if the 
 act had not been made. 1 JR.. L. 412. 
 
 RV. Panic), e To intice an apprentice to depart from his master, is not an 
 offence of a public nature for which an indictment will lie ; but 
 the party's remedy is by an action on the case. 
 
 By the first section of the act concerning apprentices and 
 servants, it is provided, "that no person whatsoever shall cause 
 any apprentice or journeyman to be bound by oath, bond, or 
 otherwise, that after his or her apprenticeship, or term expired, 
 such apprentice or journeyman shall not set up or occupy any 
 shop, house, or cellar, and therein use his profession, trade, or 
 employment ; nor by any means exact or take of any such ap- 
 prentice or any journeyman, nor of any other person setting 
 up, occupying, or using for him or them, after his or their ap- 
 prenticeship or term expired, any money, or other thing, for 
 using the same, upon pain to forfeit for every offence one hun- 
 dred dollars, the one half thereof to the people of this state, 
 find the other half to any person who will sue for the same, to 
 be recovered with costs, fcc. And every bond, or other secu- 
 rity, given contrary to this act, shall be void." I R. L. 135. 
 
 ARRAIGNMENT. 
 
 VL. 
 
 4^ Black. Com. Arraignment is the calling the prisoner to answer the mat- 
 ter charged against him in the indictment. 
 
 2 Hawk. c. 28. There is no necessity that a prisoner at the time of his con- 
 finement hold up his hand at the bar, or be commanded so to 
 do ; for this is only a ceremony for making known the person 
 of the offender to the court ; and if he answers that he is the 
 same person, it is all one. 
 
 It is no longer necessary, on the arraignment or trial of any 
 person for treason or felony, to ask the prisoner how he wiil be 
 tried, nor to charge the jury to inquire whether the prisoner fieri 
 or not, or what goods or chattels, lands and tenements, the pri- 
 soner at any time had. Sess. 33. c. 8. s. 2. 1 R. L. 495. 
 
 In all cases of treason or felony, if the party indicted shall, 
 on his arraignment, obstinately stand mute, or refuse to plead 
 and be tried, it shall be adjudged to be a denial of the facts 
 charged on the indictment; and the trial shall thereupon pro 
 ceed in like manner, and the record shall be in the same form, 
 and the same judgment shall be given agaiutt the party, iV
 
 ARREST. 
 
 found guilty, as if such party, on being arraigned, had pleaded 
 not guilty. S. I. p. 4-9 4. 
 
 ARREST. 
 
 An arrest is the apprehending or restraining of one's person, 2 E iack * C m ' 
 n order to be forth coming to answer an alleged or suspected 
 crime. To this arrest all persons whatsoever, without distinc- 
 tion, are equally liable in all criminal cases ; but no man is to be 
 arrested unless charged with such a crime as will, at least, jus- 
 tify holding him to bail, when taken. 
 
 I. For what causes of suspicion an arrest may Ic made. 
 II. By whom the arrest shall be made. 
 
 III. Tlie manner of an arrest. 
 
 IV. Hue and cry. 
 
 V. JPhat is to be done after the arrest. 
 
 I. For what causes of suspicion an arrest may be made. 
 If a felony has actually been committed, any man, upon rea- jiamiui v. 
 
 , J . J . Vayne, 1 Doug. 
 
 aooable probable grounds of suspicion, may justify apprehend- 359. Uiiwhii - 
 jng the suspected person, to carry him before a magistrate ; but |j'* l !|i| l . p0 29i 
 il' no felony should afterwards appear to have been committed, 
 an officer, but not a private person, may justify an arrest made 
 on a reasonable charge of felony without a warrant. 
 
 The following are some of the principal causes of suspicion 2 "*>> ' r 
 which are generally agreed to justify the arrest of an innocent 
 person for felony. 
 
 1. The common fame of the country : but it seems that it 
 ought to appear upon evidence, in an action brought for such 
 an arrest, that such fame had some probable ground. 
 
 '2. The living a vagrant, idle, and disorder!}' life, without having 
 ny means to support it. 
 
 '.). The being in company with one known to be an offender, 
 id the time of the offence; or generally at other times keeping 
 company with persons of scandalous reputations. 
 
 4-. The being found in such circumstances as induce a strong 
 presumption of guilt ; as coming out of a house wherein mur- 
 der has been committed, with a bloody knife in one's hand ; o. 
 being found in possession of any part of goods stolen, without 
 being able to give a probable account of coming honestly by 
 them. 
 
 5. The behaving one's seif'in such a manner as betrays a 
 consciousness of guilt ; as where a man being charged with 
 treason or felony, says nothing to it, but seems by his silence to 
 own himself piilf".' ; or where a man, accused of any such 
 
 r * i
 
 ,'(j ARREST. 
 
 n-mie, upon hearing that a warrant is taken out against bin.. 
 
 absconds. 
 '. ir.!v.u. c. 12. Q. The being pursued by hue and cry. But generally no 
 
 such cause of suspicion, as any of the abovementioned, will 
 justify an arrest, where, in truth, no such crime hath been com- 
 mitted, unless it be in tlie case of hne and cry. 
 
 II. By whom ike arrest shall be made. 
 
 i Burn's Just. 
 Ml. 
 
 In criminal cases, a person may be apprehended and restrain- 
 ed of his liberty, not only by process out of some court, or 
 warrant from a magistrate, but frequently by a constable, watch- 
 man, or private person, without any warrant or precept. 
 ? r H ?! e> S6 ' z If <a justice see a felony or other breach of the peace com- 
 7. SL-O- further' mitted in his presence, he may in his own person apprehend the 
 pnUKiw "' UI ' offender. And he may also, byword of mouth, command any 
 Truii, u Johns, one to arrest another who shall be guilty of any felony, or actual 
 breach of the peace in his presence, and such command is a 
 good warrant without writing. And all persons Avhatsoevpr 
 Avho are present when a felony is committed, or a dangerous 
 wound given, are bound to apprehend the offender, on pain of 
 being fined and imprisoned for their neglect, unless they were 
 under age at the time : and they are likewise bound to assist an 
 officer demanding their help for the taking of a felon, suppress- 
 ing an affray, apprehending the affrayers, and the like. So any 
 pcrsoa whatever, if an affray be made to the breach of the peace, 
 may, without a warrant from a magistrate, restrain any of the of- 
 fenders, in order to preserve the peace ; but after there is an end 
 of the affray, they cannot be arrested without a warrant. 
 ccjitsv. iiui-tin Assault and battery and false imprisonment. The defendant 
 ^ John*. Rep. wag <.\i eT \S of tne count y o f Orange, and had a warrant from a 
 justice of the peace to arrest five persons on a charge of a 
 breach of the peace. The persons against whom the warrant 
 had issued were in the plaintiff's house, and refused to be taken : 
 the sheriff, not having sufficient force with him to take them, 
 returned to tioslien for a greater force, and commanded the 
 plaintiff and others in the mean time to guard the house and 
 prevent the escape of the men : they however did escape, and 
 on the return of the defendant, some persons who were then 
 present charged the plaintiff with having assisted the men i 
 making their escape, upon which the defendant arrested the 
 plaintiff and carried him before a justice. The judge stated tr. 
 the jury, that the mere refusal of the plaintiff to aid the sheriff 
 would not justify the latter in arresting him without a warrant, 
 even for the purpose of taking him before a magistrate. That 
 lhc sheriff could not delegate to the persons left at the plaintiff's 
 house the power of arresting, during his absence, the men against 
 whom the warrant had been issued. The plaintiff, thereto .
 
 ARREST. 
 
 far from being bound to prevent the men from escaping, 
 have rendered himself liable to an action if he had attempted 
 to stop them ; and that, in his opinion, the plaintiff was clearly 
 entitled to recover. The jury accordingly found a verdict for 
 the plaintiff, which the defendant now moved to set aside, for 
 the misdirection of the judge, and as against law and evidence. 
 KENT, Ch. J. delivered the opinion of the court. The ques- 
 tion of justification turned upon this fact: whether the plain- 
 tiff, contrary to his duty, aided or assisted the rioters in their 
 resistance to the execution of the warrant, or in. their escape. 
 There were several, and some of them strong circumstances, 
 from which the jury might have inferred that fact against him : 
 and if so, the defendant was justified in arresting him. The 
 sheriff is, ex ojjicio, a conservator of the peace ; and it is not 
 only his right, but his duty to arrest all persons, with their abet- 
 tors, who oppose the execution of process. And, as Sir Mat- 
 thew Hale has observed, (2 Hale, 85.) these ministers of public 
 justice have the greatest protection and encouragement in the 
 due execution of their office. When the jury were told that 
 the defendant could not authorise the persons left in the house 
 in his absence to arrest the rioters, and that it would have been, 
 unlawful to have opposed their escape, I think there was a mi- 
 direction in point of law, and one which very probably deter 
 mined the verdict. The defendant had come to the place tt> 
 execute the process, and meeting with a resistance in the plain- 
 tiff's house, w r hich he had not strength to subdue, he went back 
 to Goshen for assistance, and directed the plaintiff and others 
 to aid and assist in preventing, in the mean time, the escape of 
 the rioters. He must be deemed in this case to have been con- 
 structively present, so as to justify an arrest of the rioters. 
 during his temporary absence,. provided he was absent on tlia! 
 business, and this was a matter of fact for the jury. The slu' 
 riff may take the power of the county, if necessary, after resist- 
 ance, to execute process. Every man is bound to bo aiding 
 and assisting, upon order or summons, in preserving the peace, 
 and apprehending offenders, and is punishable if he refuses. 
 
 The question in these cases does not turn upon the fact of 
 distance, so long as the sheriff is within his county, and is lona 
 fide and strictly engaged in the business of the arrest. In the 
 execution of civil process, where there was no resistance, it was 
 held by Lord Mansfield, in Blotch v. Jrclicr, (Cou-p. 63.) that 
 the officer must be the authority to arrest, but he need not be 
 the hand, nor present, nor in sight ; nor is any exact distance pre- 
 scribed. The necessity of the doctrine of constructive pre- 
 sence applies with much more force, and oug-ht to be received 
 with much more liberality when the officer is serving criminal 
 process, and meets with resistance. Ho is present in judgmon* 
 of law by IMS authority, nnO C.VTV person vh " : ''~ him. in r >- "
 
 28 ARREST. 
 
 suance of his summon?, acts under the same protection, ami 
 the same responsibility, as if the sheriff stood in his view. This 
 we consider to be a sound and essential principle, and if it had 
 been stated to the jury, we cannot say that they would not have 
 acquitted the defendant, on the ground that the plaintiff had, 
 contrary to his duty, aided or countenanced the escape of the 
 rioters during the absence of the sheriff. New trial granted. 
 
 >Hak.c. 12. s. Any one may lawfully lay hold of another when he shall seo 
 him upon (he point of committing a treason or felony, or doing 
 any act which would manifestly endanger the life of another, 
 and may detain him until it may reasonably be presumed that he 
 has changed his purpose.* 
 
 1 Hale. m. AS to arrest with a warrant ; the warrant is ordinarily directed 
 
 152. to the sheriff or constable, and they are indictable, and subject 
 
 thereon to a fine and imprisonment, if they neglect or refuse it. 
 When directed to the sheriff, he may command his under she- 
 riff, or other sworn and known officer, to serve it, without writing 
 any precept. But if he will command a man, that is not his of- 
 ficer, to serve it, ho must give him a written precept, otherwise 
 false imprisonment will lie. 
 
 3 Hawk. c. is .s. Every other person, however, to whom it is directed, must 
 personally execute it ; yet it seems that any one may lawfully 
 assist him. 
 
 : Hale, 53i. The justice may direct his warrant to a private person, and it 
 
 is good, but he is not compellable to execute it ; and a warrant 
 directed to two or more jointly may be executed by any one of 
 them alone. 
 
 III. The manner of an arrest. 
 
 i Bum's Just. The officer to whom the warrant is directed and delivered 
 
 wUkaiiies Case, ought, with all speed and secrecy, to find out the party, and then 
 9Co.es. execute it, which he may do as well at night as in the day time, 
 
 and on Sunday as well as any other day of the week. 
 Meyiiew r. Par- ^ warrant to arrest the party to the end that he may become 
 
 ker, 8 Term * J 
 
 lu-p. no. bound to appear at the next sessions, means the next sessions 
 
 after the arrest, and not after the date of the warrant. If any 
 person misconduct himself by keeping back warrants of arrest 
 to be afterwards made use of for vexatious or improper pur- 
 poses, he subjects himself to an action for a malicious prosecu- 
 tion at the suit of the party grieved : but the warrant is a suffi- 
 cient justification, in trespass, to the officer charged with the 
 execution of it. 
 
 * Tf, when a man is apprehended and in the custody of officers of 
 justice, some other person undertake to interfere, the officers may ar- 
 rest him. Peake, 8?.
 
 .(REST. i\j 
 
 Any justice or sheriff*, but not a piivr.tc person, on just cause, i Barn's Jan. 
 may take (he power of the county, and command the aid and l 
 attendance of as many persons as they see fit, to pursue, arrest 
 and imprison traitors, murderers, robbr rs, and other felons and 
 breakers of the peace ; and every person, being required, must 
 aid and assist them on pain of fine and imprisonment. 
 
 As to the cases in which it is lawful to break open doors in 2 Hawk. c. u. 
 order to apprehend offenders, it is to be observed that the law 
 never allows of such extremities except in cases of necessity : 
 and therefore that no one can justify the breaking open another 
 man's doors to make an arrest, unless he first signify to those in 
 the house the cause of his coming, and request them to give him 
 admittance. But where a person, who is authorized to arrest 
 another who is sheltered in a house, is denied quietly to enter 
 into it in order to take him, it seems generally to be agreed, 
 that he may justify breaking open the doors in th following in- 
 stances : 
 
 I. Upon a capias grounded on an indictment for any crime 
 whatsoever, or upon a capias to compel a man to find sureties 
 for the peace or for his good behaviour, or even upon a warrant 
 from a justice of the peace for such purpose. 
 
 '2. Upon a capias uilngatum, or capias pro fine, in any action 
 whatsoever. 
 
 .3. Upon the warrant of a justice of the peace for the levying 
 a forfeiture in execution of a judgment or conviction. 
 
 '!. Where a forcible entry and detainer is either found by 
 inquisition before justices of the peace, or appears upon their 
 view. 
 
 5. Where one known to have committed a treason or felony, 
 or to have given another a dangerous wound, is pursued either 4 
 
 with or without a warrant, by a constable or private person : 
 but where one lies under a probable suspicion only, and is not 
 indicted, it seems to be the better opinion at this day, (accord- 
 ing to Hawkins,) that no one can justify the breaking open of 
 doorSj in order to apprehend him. 
 
 But Lord Hale ('2 Hist. P. C. 11 7.) says, that upon a warrant 
 for probable cause of suspicion of felony, the person to whom 
 such warrant is directed may break open doors to take the per- 
 son suspected, if upon demand he will not surrender himself, as 
 well as if there .had been an express and positive charge .igainst 
 him ; and so hath the common practice prevailed, notwithstand- 
 ing the contrary opinion of Lord Coke. 
 
 There can be no doubt, however, but that he may break 2 Ha ],,, m. i 
 open the house of another person to take him, for the sheriff Haie.fz 2iiuk, 
 may do the same upon civil process ; yet he should assure him- 
 -cif that the felon is there, otherwise he will be a trespasser. 
 But he who arrests as a private man, (i. e. without warrant,) 
 barely upon suspicion, does it at the further peril, that if Un- 
 person prove N be ''i^nppn^. although su c p<Ttpd on reason
 
 30 1RREST. 
 
 cause, it is not justifiable ; but a constable in a similar case way 
 justify. The reason of which distinction is this ; because in the 
 case of a private person, he is merely permitted to arrest OB 
 suspicion, and is not punishable if he omit ; but a constable i 
 punishable for neglecting it upon complaint. 
 
 2 Hnrk. c. 14. Q^ "Where an affray is made in a house in the view or hearing 
 of a constable ; or where those who have made an affray in his 
 presence fly to a house, and are immediately pursued by him, 
 and he is not suffered to enter; he may break open the doors 
 in order to suppress the affray in the first case, or to apprehend 
 the affrayers in either case. 
 
 7. Wherever a person is lawfully arrested in any cause, and 
 afterwards escapes and shelters himself in a house. 
 
 8. If an officer enter into a house to serve any process, civil 
 or criminal, and the doors are locked upon him whilst he is in 
 the house, he may justify breaking them open in order to re- 
 gain his liberty. 
 
 2 Hwk. e. is. s. Officers sworn, and commonly known to be such, when act- 
 ' ing within their own precincts, need not show their warrant to 
 
 the party, notwithstanding he demand the sight of it : still they, 
 and all other persons making an arrest, ought to acquaint the 
 party with the substance of it : and all private persons to whom 
 such warrants are directed, and even officers, if they are not 
 sworn and commonly known, and though they arc, yet if 
 they are acting out of their own precincts, must show their 
 warrants if demanded. But if the constable have no warrant, 
 but apprehends the party by virtue of his office, it is sufficient 
 to notify to him that he is constable, and that he arrests him. 
 
 1 sik. 79. s Bare words do not constitute an arrest, without laying hold 
 i. cases temp! f the person, or otherwise confining him. As, if a constable 
 "*^ w - 3D1 - 6 come to the party and require him to go before the justice, this 
 
 is no arrest. But if an officer comes into a room, and tells the 
 party he arrests him, and locks the door, this is an arrest, for he 
 is in the custody of the officer. 
 
 2 Hawk. e. K. . It has been holden that if a constable, having arrested the 
 
 party by force of a warrant, suffer him to go at large upon his 
 promise to come again at such a time and find sureties, he can- 
 not afterwards arrest him by force of the same warrant : how- 
 ever, if the party return and put himself again under the custody 
 of the constable, it seems probable that he may lawfully detain 
 him, and bring him before the justice in pursuance of the warrant. 
 But Mr. Hawkins adds, as the law seems not to be settled ia 
 relation to such an escape after an arrest by virtue of civil pro- 
 cess ;* so neither doth it seem to be clear in relation to an 
 
 * But it is now settled, that the voluntary return of a prisoner in a 
 civil suit, before action brought, is equal to a retakins upon fresh pur- 
 suit. 1 Bae. Abr. 523.
 
 ARREST. SI 
 
 escape after an arrest by force of such a warrant from a juUce 
 
 ut' the peace. But if the party escape (without permission of J3 1 "*' 1 Just ' 
 
 the officer) he may, upon fresh suit, take him again and again, as 
 
 often as he escapes, although he were out of view, or fled into 
 
 another town or county. 
 
 An unlawful arrest, without a justice's warrant, cannot be made I Bac - Ahr - M0 
 good by u warrant taken out afterwards. 
 
 IV. Has and cry. 
 
 Hue and cry is the old common law process of pursuing, ;j g , B '* ek> c * m> 
 with horn and with voice, all felons, and such as have dan- 
 gerously wounded another; which all who are present when a sHawk.c. i. s. 
 felony is committed, or a dangerous wound given, are bound to 5i 
 do, under pain of fine and imprisonment, and a man may law- 
 fully raise it against one who sets upon him in the highway to 
 rob him. 
 
 " When any felony shall be committed, public notice thereof 
 shall be immediately given in all public places near where the 
 name was committed, and fresh pursuit shall be forthwith made 
 after every such felon by sheriffs, coroners, constables, marshalls, 
 and all other persons who shall be by them commanded or 
 summoned for that purpose ; and every competent person who 
 will not do '-o, and be thereof convicted, shall be punished by 
 fine according to the discretion of the court having cognizance 
 f the offence ; and every such officer who shall conceal or pro- 
 cure to be concealed any felony, or who shall not do his duty 
 in the premises, and be thereof convicted, shall be punished by 
 fine and imprisonment, in the like discretion of any court having 
 cognizance of the offence." Sess. 24. c. 31.s. 1. 1 R. L. 149. 
 
 Hue and cry may be raised either by warrant of a justice of * BI. Com.2<)< 
 the. peace, or by a peace officer, or by any private man who 101 . 2\n^'. ii$J 
 knows of a felony having been committed, or of the other causes 8B e ' Ahr - '"* 
 for raising it before mentioned, without warrant. The party 
 raising it may resort to the constable of the town ; and, J. Gire 
 him such reasonable assurance thereof as the nature of the case 
 will admit. 2. If he knows the name of the person who did it. 
 he must inform the constable of it. 3. If he does not know him, 
 but can describe him, he must describe hisperson, or his dress, or 
 his horse, or whatever circumstances are within his knowledge, 
 which may condilce to his discovery. 4. If the offence be com- 
 mitted in the night, so that he can know none of these circum- 
 stances, he must mention the number of the persons, or the way 
 they took. 5. If none of all these can be discovered, as where 
 a robbery, or burglary, or felony, is committed in the night, yet 
 he is to acquaint the constable with the fact, and desire him to 
 search in his town for suspected persons, and to make hue anrl 
 cry after such as may be probably suspected, as being persons 
 TOgnuat in x&* same night; frwany rircuMVta'i^"- nay. /
 
 ARREST. 
 
 o, be useful for discovering a malefacloi, \vu:ch cannot 
 first known. Still it is not absolutely m-cr^ary that the con- 
 stable should be called in, it may be raised without him, but the 
 most regular method is to go to the constable. 
 
 2 Hale, ioj. 3 jj then becomes the duty of the consi.iMr. whether the 
 
 Hawk. c. it. *. offender is certain or uncertain, or can be described or not, to 
 i BUtk.i om. ra jj e tne power of the town, as well at night as by day, and give 
 notice to the constables of all the neighbouring towns, who ougLl 
 ia like manner to search for the offender, and also send the likf 
 i.otice until he is found. The constable may search suspected 
 places within his town, for the purpose of apprehending him. 
 But his entry must be by the doors being open : for he cannot 
 break open doors barely to search, unless the person a,. 
 whom the hue and cry is levied actually be there ; if he be not 
 there, the breaking open the doors is not justifiable. But as has 
 been observed before, no one can justify the breaking open 
 another's doors, unless he first signify to those in the house the 
 cause of his coming, and request them to gire him admittance. 
 In general, the constable and his attendants, in the prosecution 
 of such hue and cry, have the same powers, protection, and in- 
 demnification, as if acting under the warrant of a justice of the 
 peace. The person who wantonly and maliciously raised the 
 hue and cry shall be punished, and not those who pursued it. 
 
 7 Hale, 102, los. So, if hue and cry be rai-ed against a person certain, for felony, 
 though he may possibly be innocent: or against a person merely 
 by description of his stature, clothes, horse, and the like : or on 
 supposition of a felony committed, though in truth there had 
 been no felony committed, yet those who follow the hue anc 
 -ry may proceed a? if tin-re was absolute and arrest 
 
 and imprison the person in the common jraol, or carry him to a 
 justice of the peace, to be examined whore Le v. .i- at i 
 iVlony committed, &,c. 
 
 ? i ;:,!. ioi. 102. Therefore, the justinYsitiosj of an imprisonment by a j 
 upon suspicion, and by a pei>on o?pi riaily a constable' 
 'cue and cry kvu>d. are extremely uirterent: for. in the formtt 
 
 --, then' must be a felony averred to b*: done, \\hifh is : 
 hie ; but, in the latter, tlie hue and cry levied upon informal' 
 a fil.iny i- itself sufficient, although the information sJ 
 
 to be false. The reasons of the distinction are thes> 
 Because the constable cannot examin- 
 or falsehood of th m made to him ; and ii 
 
 !'H-ln>rir his pursuit until it ne examined by a 
 the lY-lon mi^hr t i tiie pursuit would be f i ; 
 
 Because the constable is com>>r!l,tble by stutute to pursut 
 and !< \< punishable, and so ;.r< l;i.--ie uhoui he 
 jaand? to accompany him, if they do not. 3. Because he that 
 
 ' raises a hue md cry where no felony is co; 
 he v J,le.
 
 ARSON, 33 
 
 V. Wk'j.l is to be done afitr the arrest. 
 
 Where a private person has arrested a felon, or one suspected 1 Hal*-, S39, 
 of fduny, he may either deliver him to the constable to carry to 
 a justice of the peace, or he may himself carry him immedi- 
 ately to a justice. 
 
 " ShwitFs and gaolers shall receive from any constable or other 
 officer, without taking any thing therefor, and safely keep in 
 prison all felons, indicted or taken in the fact, who shall be ta- 
 ken by any constable or other officer." Sess. 36. c. 68. s. 12. 
 1 R. L. 4. 23. 
 
 If the arrest has been made by virtue of a warrant, the officer Jj^^' M " 3 3 ' 9 . " 
 is forthwith to bring the party according to the direction of the 
 warrant. If the warrant is to bring the party before the justice 
 who granted it, the officer is bound to bring him before the 
 srame'justice ; but if the direction be to bring him before any 
 justice of the county, it is then in the election of the officer to 
 bring him before what justice he thinks fit, and not in the elec- 
 tion of the prisoner. But if he cannot bring him before the 
 justice at a seasonable time, as if it is near or during the night 
 that he made the arrest, or if there is danger of an immediate 
 rescue, or if the party is sick, the constable may secure him until 
 the next day, or until such time as it may be proper to bring 
 him before the justice : and the, law considers the prisoner in 
 his custody, even after he is brought before the justice, until the 
 justice discharge, bail, or commit him. 
 
 A constable is not obliged to return the warrant itself to the Per Holt. CK..I. 
 justice, but may keep it for his own justification, in case he should ju-'gimTl! w>. 
 be questioned for what he had done, and need only give the -su.Ryni, 
 justice an account of what he had done upon it. 
 
 ARSON. 
 
 Arson is the malicious and wilful burning of the house or out- * Black. Com. 
 house of another man. 
 
 The wilful burning of any inhabited dwelling-house is punish- 
 able with death. Sess. 36. c. 29. s. 1.5. 1 R. L. 407. 40D. 
 
 The wilful burning any dwelling-housR uninhabited, or any 
 house of public worship, or other public building, or any barn, 
 or any grist-mill, is punishable with imprisonment in the state 
 prison for a term not more than 14- years. Ibid. 
 
 It must be a malicious and voluntary burning, otherwise it is 2 East, P. c. 
 not felony, but only a trespass, and therefore no negligence or jg^J. " a ^; {> 
 mischance amounts to it. As if a man shooting at the poultry 67. 
 of another, happen to set fire to the thatch of a house. In this 
 -is-": h'Mvrvrr. it ?hon'-i 'joem to be findt'vstond tnat be did not
 
 34- ARSON. 
 
 intend to steal the poultry, but merely to commit, a trr pa.-.? , 
 for otherwise the first intent being felonious, the party must 
 abide all the consequences. 
 
 a Eat, P. c. If A. have a malicious intent to burn the house of B., and in 
 
 io. 3 Just. e fi7. setting tire to it burn the house of C. as well as of 13., or the house 
 
 \ 'p'iuw'/lrs'*' ^ ^' esca P e ty some accident, and the fire burn the house of 
 
 C., though A. did not intend to burn C.'s house, yet in law it 
 
 shall be said to be a malicious and wilful burning of the house 
 
 of C. And so, says Plou-den, if one command another to burn 
 
 the house of J. S., and he do so, and the fire thereof burn 
 
 another house, the commander is accessory to the burning such 
 
 other house. 
 
 2 Eait, P. c. To constitute arson there must be an actual burning of 
 
 J6s i FUw'k's *^ e house, or of some part of it ; though it be not necessary that 
 
 39. . 4. BUck. any part be wholly consumed, or that the fire should have any 
 
 continuance, but be put out, or go out of itself. But merely 
 
 putting fire into or towards a house, however maliciously, if 
 
 either by accident or timely prevention the fire do not take, and 
 
 no part be burned, does not amount to arson. 
 
 a East, P. c. The term house, at common law, extends not only to the 
 467?*s7o. 3\at. dwelling- house, but to all out-houses which are parcel thereof, 
 07.69. miwk. though not adjoining thereto, nor under the same roof. And 
 
 o, ->y. s. 1, 2. 4 " 
 
 B!. Com. 221. yet the indictment need not charge the burning to be of a man- 
 sion house, but only of a house As to what constitutes an out- 
 house to be parcel of the dwelling-house, see title BURGLARY. 
 The burning of a barn, though no part of the mansion, if it have 
 corn or hay in it, is felony at common law. 
 
 4 ni. Com. 221. The offence of arson may be committed by wilfully setting 
 
 cro. cnr. 377. i g re to one's own house, provided one's neighbour's house is 
 
 thereby also burnt; but if no mischief is done but to one's own, 
 
 it does not amount to felony, though the ike was kindled with 
 
 intent to burn another's. 
 
 4 Bl. Com. 221. If a landlord or reversioner sets fire to his own house, of 
 
 tester, us. which another is in possession, under a lease from himself, or 
 
 from those whose estate he hath, it shall be accounted arson; 
 
 for, during the lease, the house is the property of the tenant. 
 
 2 Eat. iocs. 2 If a tenant set fire to the house of his landlord, before the 
 
 SUit, P. c. loss, tenancy expires, he is not guilty of arson. Nor a mortgagor 
 
 in possession, who burns his own house. 
 
 2 Kast, p. c. But a mere residence in the house, without having any inte- 
 rest therein, is not sufficient, as where a pauper was put by the 
 parish officers to reside in a house hired by them, in which, at 
 the time of his burning it, he wns resident with his family, and 
 had the sole possession and occupation of it, without payment 
 of any rent: on his being found guilty, the conviction was held 
 to be proper. 
 
 Hi- i'ev v - ^ one I)C '"dieted f r burning the dwelling-house of another, 
 
 y.m Hiuri-.nii, j t i s su ff; C i cn t if it be, in fact, the dwelling-house of such other 
 
 person. The court will not inquire into the tenure or interest
 
 ASSAULT AND BATTEJiY. ,;5 
 
 such person has in the house burnt. It is enough it' it 
 was his actual dwelling at the time. 
 
 Uut though arson can only be committed by burning the house * F -**- r - c - 
 
 * . , J . 1027. 1028. 4 
 
 oJ another, yet even the burning ot a man s own nouse in a town, BI. cum. 221. 
 .or so near to other houses as to create danger to them, is a great j *o a4t ' l> " 
 misdemeanour, and may be punished with fine and imprisonment, 
 and finding sureties. In some cases, the indictment has laid the 
 fact to be with intent to burn such other houses : but however 
 such an intent may aggravate the offence, it is clearly not neces- 
 sary to be laid or proved : such an act must, in its nature, create 
 great terror and danger to the neighbourhood, be the intent what 
 it may. It i also a great aggravation if one burn his own house, 
 in any situation, with intent to defraud insurers : but Mr. East 
 observes, that he can find no instance of an indictment sustaiued 
 on that ground alone as the gist of the offence. 
 
 ASSAULT AND BATTERY. 
 
 I. What is an assault. 
 II. What a battery. 
 
 III. When they may be justified. 
 
 IV. How punished. 
 
 V. Assault with felonious intent. 
 VI. Mayhem. 
 
 I. What is an assault. 
 
 An assault is an attempt or offer, with force and violence, to do i 'a-'t. 
 a corporal hurt to another, whether from malice or wantonness ; as c. gj. , 
 by striking at him with or without a weapon, or even by holding 
 up one's fist at him in a threatening or insulting manner, or with 
 such other circumstances as denote at the time an intention, 
 coupled with a present ability, of using violence against his person ; 
 as by presenting a gun at him, within the distance which it will 
 carry, or pointing a pitch fork at him while standing within the 
 reach of it. But no words, however provoking, can amount to 
 an assault. 
 
 II. What a battery. 
 
 Where the injury is actually inflicted it amounts to a battery ; \ v.w. r 
 
 and this, however small it may be, as by spitting in a man's face, * * - 2 l f** 
 or any way touching him without any lawful occasion, in an angry, 
 revengeful, rude, or insolent manner. 
 
 One charged with an assault and battery, may be found guilty l Hawk, 
 
 of the assault, and yet acquitted of the battery : but every battery 6 -*- * 
 includes an assault ; and therefore, on an indictment of assault and
 
 36 ASSAULT AND BATTERY. 
 
 hatterj, in which the assault is ill laid, if the defendant be i'uunu 
 guilty of the battery, it is sufficient. 
 
 III. When they may le justified. 
 
 i Bac. Abr. All matter of excuse or justification may, on an indictment for 
 assault and battery, be given in evidence under the general issue, 
 " not guilty ;" whereas, in a civil action for trespass, matter of jus- 
 tification must be pleaded. 
 
 ; 45/2^16. | ^ an officer has arrested a man, who then makes resistance, or 
 H ' k ' c ' 63< endeavours to rescue himself, and is compelled to beat him, he 
 may justify it. So if a parent in a reasonable manner chastise 
 his child, or a master his apprentice, or a schoolmaster his scholar ; 
 or if one confine a friend who is mad, and bind and beat him, in 
 such a manner as is proper in his circumstances ; or if a man 
 forces a sword from one who offers to kill another ; or if a man 
 gently lay his hands on another, and thereby stay him from inti- 
 cing a dog against a third person ; or if a man beat or even wound 
 or maim one who makes an assault upon his person, or that of his 
 wife, child, parent, or master, especially if it appear that he did all 
 he could to avoid fighting before he gave the wound; or if a man 
 fight with or beat one who attempts to kill a stranger; or restrain 
 those whom he sees fighting until their heat is over: in all these 
 cases he may justify the assault and battery. 
 
 * er ' ^ ^ a man > w ith ut - authority, attempt to arrest another illegally, 
 it is a breach of .the peace, and any other person may lawfully 
 interfere to prevent, doing no more than is necessary for that 
 purpose : and these circumstances Avill furnish a justification for 
 an assault. 
 
 mawk.c.ei. g jf a man en deavQur with violence to dispossess me of my 
 vy, aver v. poods, or the goods of another, delivered to me to be kept for 
 p.'u.Vs. crm him: or where a man with actual violence enters upon the land 
 of another, he may resist him by force. 
 
 IV. How punished. 
 
 uiwk.c. 62. .Every person guilty of an assaulter battery, is subject both to an 
 
 i Bac. Abr. action at the. suit of the party, and also to an indictment at the suit 
 
 ;'' . Jon g s of the people, wherein he shall be fined according to the h.einous- 
 
 : M>I. ness of the offence ; and the party may proceed at the same time 
 
 both civilly and criminally, nor will he be compelled to make his 
 
 election to pursue either the one or the other. 
 
 A method has been pointed out by the legislature, by which the 
 prosecutor, in assault and battery, and certain other cases, may put 
 a stop to the public prosecution on receiving satisfaction : it is 
 enacted, " That in all cases where a person shall, on the complaint 
 of another, be bound Uy recognisance to appear, or shull for want
 
 ASSAULT AND BATTERY. 37 
 
 of surety be committed, or shall he indicted for a assault and 
 battery, or other misdemeanour, to the injury and damage of the 
 party complaining, and riot charged to have been done riotously, or 
 with intent to commit a felony, or not heing an infamous crime, 
 and for which there shall also he a remedy by civil action, if the 
 party complaining shall appear before the magistrate, who may have 
 taken the recognisance or made the commitment, or before the 
 court in which the indictment shall be, and acknowledge to have 
 received satisfaction for such injury and damage, it shall be law- 
 ful for the magistrate, in his discretion, to discharge the recogni- 
 sance, or supersede the commitment, and also to discharge the 
 renognisance which may have been taken for the appearance of 
 witnesses in such case, or for the court also in their discretion to 
 order a noli prosequi to be entered on the indictment, as the case 
 may require, upon payment of costs; Provided alivays, that thi* 
 act shall not extend to any assault and battery, or other misde- 
 meanour, committed by or on any officer or minister of justice." 
 Sess. So. c. 8. s. 19. 1 R. L. 4-99. 
 
 " No justice of the peace shall be obliged to issue any warrant 
 on any complaint for a trespass or assault and battery, or either of 
 them, unless the person m.'iking such complaint, and requiring such 
 warrant, and everj r person recognised as principal, before any 
 such justice for said offences, shall pay the fees to the justice for 
 taking such recognisance." Sess. j6. c. 104. s. 7. 2 R. L. 508. 
 
 " No board of supervisors shall credit and allow any account in 
 favour of any justice of the peace, for any process or proceedings 
 on any such complaint as is mentioned in the preceding section 
 ef this act." s. 8. 
 
 V. Assault with felonious intent. 
 
 Every person who shall be convicted of any assault, with intent 
 to rob, murder, or commit a rape, and accessories before the fact, 
 shall, on conviction, be punished by fine or imprisonment, or both ; 
 or the court may, in their discretion, instead of, or in addition to, 
 a line, adjudge the person convicted, to imprisonment in the slate 
 prison, for any term of time not exceeding 7 years; and any per- 
 son who shall be a second time, or oftener, convicted of any of the 
 said offences, shall in like manner be adjudged to imprisonment 
 in the said prison, for any time not exceeding H years. Sess. 3C. 
 :. 29. s. 9. 1 R. L. 4(W. 
 
 VI. Mayhem* 
 
 Mayhem is properly defined to be the violently depriving 4 Bl. Com. 
 another of the use of such of his members as may render him the j^ 2 p 6 - c l 
 less able in fighting, either to defend himself or to annoy his adver- *. i Hai'. 
 
 c. 44.5.1,2,3.
 
 38 ASSAULT AND BATTERY. 
 
 sar,y. And therefore the cutting off, or disabling, 01 weakening a 
 man's hand, or linger, or striking out his eye or fore-tooth, or 
 castrating him, arc held to be mayhems. But the cutting off his 
 car, or nose, or the like, are not held to be mayhems at common 
 law ; because they do not weaken, but only disfigure him. At com- 
 mon law this offence is considered as an aggravated trespass, and 
 is punishable by fine and imprisonment. 
 
 b.i liuH.',4u! A Inan Claiming himself is punishable at common law ; as where 
 a person, to have more colour to beg, caused his companion to 
 strike off his left hand, they were indicted and fined. 
 
 "If any person shall on purpose, and of malice aforethought, 
 Cut out the tongue, or put out the eyes of any other person ; or if 
 any person shall on purpose, and of malice aforethought, and by 
 lying in wait, unlawfully cut out, or disable the tongue, put out an 
 eye, slit the nose or lip, or cut ofTor disable any limb or member of 
 any other person, with intention in so doing to murder or kill, or to 
 maim or disfigure, in any the manners aforesaid, such other per- 
 son, every such offence shall be deemed and adjudged felony; 
 and every person so offending, and every person who shall aid, &tc. 
 beJLg thereof convicted or attainted, shall be, and hereby are, 
 declared to be felons." Sess- 24. e. 53. 1 R. L. 108. 
 
 Offenders under this act are punishable with imprisonment for 
 life in the state prison. Sesa. 36'. c. 2y. s. 3. I R. L. 4-08. 
 
 ^"'"ifi' a' ^ does not seem necessary that the malicious intention should 
 
 *'a't, P. c. be directed against any particular individual. If it be conceived 
 against all persons who may happen to fall within the scope of the 
 perpetrator's design, the particular mischief done to any one shall 
 be connected with the general malignant intent, so as for the 
 statute to attach upon the offenders. So if a blow be intended to 
 maim one, and by accident maim another, the party is equally 
 liable to be indicted for such maim. 
 
 V" n '!-' P ' C ' Although a person h maimed or disfigured maliciously, y*tthe 
 rase will not fall within the second branch of the statute, or if any 
 person shall, Sfc. by lying in wait, Sfc. unless the offender lie in 
 wv.il for that purpose ; where, however, there is no express evi- 
 dence of the intent, it may be inferred from circumstances. But 
 where the injury arises out of a sudden attack made by the de- 
 fendant, but unconnected with any premeditated design upon the 
 person, it is not within the statute. 
 
 A.,;, i.p.-ioi. It no where appears, says Mr. East, that there can be accesso- 
 ries after the fact in mayhem. 
 
 i Ea. P. r. j t seems that son assault demesne is a good defence. Yet it is 
 
 m. 2 Hawk. ...... f . , . 
 
 r js.s. 23. i not every trifling assault that will justify a grievous and immediate 
 
 ;'-'r. d uM^d". ma )' nem ' sucn as cutting off a leg or hand, or biting off a joint of 
 
 * ' a man's finger, unless it happened accidentally, without any cruel 
 
 and malignant intention, or after the blood was heated in the scuffle : 
 
 but it must appear that the assavilt WMS, in some degree, proper-
 
 BAIL. 39 
 
 tionable to the mayhem. But a man cannot justify maiming 
 another in defence of his possessions, but only in defence of his 
 person. This restriction, however, cannot be intended to extend 
 to cases where a man defends himself against a known felony 
 threatened to be committed, with violence against ven his 
 property. 
 
 ATTORNIES. 
 
 If any counsellor, attorney, or solicitor, be guilty of any manner 
 of deceit or collusion, or consenting thereto, whereby tu deceive 
 the court or the party, he shall be punished by fine and impri- 
 sonment ; besides an action to the party grieved, in which he 
 shall recover treble damages and costs. Sets. 36. c. 48. s. 0. 1 R- 
 L. 417. 
 
 If any attorney of the supreme court, OF of any court of com- 
 mon pleas, shall purchase or receive, by way of pledge or security 
 for money lent, any bond, note, or other writing, with intent to 
 commence a suit thereon, and shall commence such suit accord- 
 ingly, every such attorney shall be deemed guilty of a misde- 
 meanour, s. 7. 
 
 An attorney or counsellor may be sued before a justice of the 
 peace for the recovery of a debt or demand to the amount of 25 
 dollars or under, unless it shall appear that the court wherein he 
 shall be attorney or counsellor shall be thes sitting. Sess. 3d. c. 
 96. a. 8. 1 R. L. 345. 
 
 BAIL. 
 
 I. What it is. 
 
 II. When a person may le discharged without iai7. 
 
 III. When and by whom bail may be taken. 
 
 IV. Recognisance and sureties. 
 
 V. Offences in taking or denying 6<w'?. 
 VI. Acknowledging bail in another men's ite'me. 
 
 L What it is. 
 
 Bail is a delivery or bailment of a person to his sureties, upon 4 Biick.com. 
 
 their giving, together with himself, sufficient security for hia ap- ^>. 7 ' B c ^|V r 
 
 pearance : he cither actually, or in supposition of law, continuing eSkrf.?]!. 
 ia thejr friend'y t-iMody. instead oPgoiup: to gao), and they ought
 
 40 BAN,. 
 
 to keep him in sncli manner as to be ready <o appear at a ti; 
 signed, or otherwise, to answer for him ; if they let him go at 
 large, they may, to discharge themselves, restize him and luing: 
 him before a justice to find new bail, or to be committed to pri- 
 son ; nor in such a case does Sunday privilege him from being 
 taken by his bail. 
 
 II. Where a person may be discharged without bail. 
 
 4Bl3ck.Com. When a person is brought before a justice, and it appears upon 
 
 Babcock, /' examination, either that no crime was committed, or that the sus- 
 
 Joh<)s. iup. picion entertained of the prisoner was wholly groundless, in such 
 
 vidi- Commit- cases only, it is lawful totally to discharge him. Otherwise he 
 
 ment,i. must either be committed to prison or give bail. 
 
 III. When and by whom bail may be taken- 
 4 Biaok.Coin. By the ancient common law all felonies were bailable ; and as 
 
 238. 2 Hawk. . ., 
 
 e. 15. . 54. respects those by whom bail may be taken, the general rule ap- 
 pears to be, that so far as any persons are judges of any crime, so 
 far they have the power of bailing any person indicted before them 
 for any such crime. 
 
 Sest. 36. c. A justice of the peace may bail in cases of petty larceny, mis- 
 
 3. R. L. ios! demeanour, breach of the peace, or other ciiminal offence under 
 
 amic.18. s. 7. ti le degree of grand larceny. And courts of general sessions of 
 
 ittmJ. s. 3. ' the peace, or any two justices of the peace jointly, out of sessions-, 
 
 may, by their discretion, let to bail prisoners arrested and in gaol, 
 
 in their respective cities and counties, for suspicion of felony, to 
 
 appear at the next court having cognizance of the offence, ami 
 
 where the prisoner ought to be tried. 
 
 a Hawk. e. u. Those who on their examination own themselves guilty of the 
 felony alleged against them, and are charged in their mittimus 
 with the felony so confessed, arc excluded from bail ; for bail i* 
 only proper where it stands indifferent whether the party be 
 guilty or innocent of the accusation against him, as it often docs 
 before his trial ; but where that indifference is removed, it would, 
 generally speaking, be absurd to bail him. 
 
 2 Hawk. 0.15. A justice of the peace may always, in his discretion, either bail 
 or imprison one who has given another a dangerous wound, ac- 
 cording as it shall appear from the whole circumstances whether- 
 the party wounded will most likely live or die ; for every justice 
 being a principal conservator of the peace, the offence being, be- 
 fore the death of the party, only an enormous breach of it, and 
 no felony, seems properly to come under his cognizance. 
 
 It is hardly necessary to observe, that criminals after conviction, 
 or persons committed for contempt of u superior court, cannot 
 lie bailed by a justice of the peace.
 
 BAIL. 41 
 
 Sheriffs and gaolers cannot baH persons in custody by virtue of 
 any process for treason or felony, or committed by special order 
 of any court or justice, under pain of fine and imprisonment, and 
 answering in damages to the party aggrieved. Sess. 36. c. 6v . s. 
 13. *R. L. 423. 
 
 IV. Of the recognisance and sureties. 
 
 The number of the bail, and the sum in the recognisance, is Com. pig. 
 much in the discretion of hhn who is to take the bail. It must i Bae. Abr. 
 be by recognisance, and that the principal shall appear at the next i2' J2 2 6 Hale 
 s*ssions, or oyer and terminer, and the time for which it is taken 
 must be certain. Where the principal cannot join in the recog- 
 nisance, as when he is an infant, or in prison, the recognisance 
 may be taken of the bail only ; and the justice, or justices, grant a 
 warrant under their hands and seals to discharge the prisoner 
 out of gaol. 
 
 It seems to be agreed that no person ought, in any case, to be 2 Hawk. c. 
 bailed for felony by less than two sureties ; and the justice should 1S> "' *' 
 take care that every one of the bail be of ability sufficient to an- 
 swer the sum in which they are bound, which is to be determined 
 according to the discretion of the magistrate, upon consideration 
 of the ability and quality of the prisoner, and the nature of the 
 offence. And if it shall seem doubtful whether the persons who 
 offer themselves to be sureties be able to answer such sum, it is 
 said that the person who is to take the bail may examine them on 
 their oaths concerning their sufficiency. 
 
 If a person who has power to take bail be so far imposed upon 2 Hawk. c. 
 as to suffer a prisoner to be bailed by insufficient persons, he, or 15<8>4 - 
 any other person who has power to take bail, may require the 
 party to find better sureties, and to enter into a recognisance 
 with them, and may commit him on his refusal, for insufficient 
 sureties are no sureties. But under pretence of taking suffi- 4BJack.Com. 
 cient surety, the justice must not require bail to a greater amount 2y7> 
 than the nature of the case warrants, which may in effect amount 
 to a denial of bail : it is expressly declared, that " excessive bail Amendment* 
 shall not be required ;" though what bail shall be called excessive c> us - art - 8 - 
 must be left to the courts, on considering the circumstances of 
 the case, to determine. 
 
 V. Offences in taking or denying bail. 
 
 If the party bailed by insufficient sureties do not appear accord- 2 Hawk. . 
 ing to the condition of the recognisance, the justice who bailed 15>$ - 6 - 
 him is finable ; but if he do appear, the justice is excused, in- 
 asmuch as the end of the law is answered, and the appearance of 
 the prisoner as effectually procured by such sureties as if they had 
 been ever so sufficient. 
 
 The balling of a person who is not bailable by law, IF ViUnish- 2 Hawk. c. 
 
 r 6 i u.s.:. JZ ,-
 
 42 BANK NOTE*. 
 
 as a negligent escape. It is no excuse (or just 
 peace admitting a person to bail, who was in truth committed for 
 a cause not bailable by law, that they did not know that he was 
 committed for such cause, and that no other cause of his commit- 
 ment was mentioned in hi? mittimus, but the suspicion of felony : 
 for they ought at their peril to inform themselves of the cause for 
 which the party was committed, that they may be satisfied that he 
 is bailable by law. 
 
 2 Hk. c. The denying, delaying, or obstructing bail, when it ought to be 
 is. s. 13, 14. g ran ted, is a misdemeanour, and punishable, not only by action at 
 the suit of the party wrongfully imprisoned, but also by indict- 
 ment. But the justice is not bound to demand sureties of the 
 party, and forbear committing him till he shall refuse to find 
 them, but may justify his commitment unless the party himself 
 shall offer his sureties. 
 
 VI. Acknowledging bail in another mail's name. 
 
 .:! anil every person and persons who shall acknov 
 procure to be acknowledged, any fine or fines, recovery or reco- 
 veries, deed or deeds, recognisance or recognisances, bail or 
 bails, judgment or judgments, in the name or names of any other 
 person or persona not privy or consenting to the same, and all and 
 every person or persons who shall, before any person or persons 
 authorized to take bail or bails, represent or personate any other 
 person or persons, whereby the person or persons so represented 
 or personated may be liable to the payment of any sum or sums 
 of money, for debt or damages, to be recovered in the same suit 
 or action wherein the person or persons are represented or per- 
 sonated, as if he or they had really acknowledged and entered into 
 the same bail or bails, being lawfully convicted or attainted there- 
 of, shall be adjudged guilty of felony." Sess. 1 I.e. 21.3.1. i 
 R. L. in. 
 
 But the act does not extend to judgments acknowledged 
 attorney of record, s. 2. 
 
 2 EMI, P. c. It has been holden that the bare personating bail, or the acknow- 
 Hawk. c. 45. ledging thereof in another name, is no felony unless the bail be 
 filed, but only a misdemeanour. Where bail was put in under 
 feigned names, there being no such persons, it was holden not to 
 be within the ?ct: btili it is a misdemeanour, and subjects the 
 party to punishment. 
 
 BANK NOTEfc. 
 
 - _Vo -i _;...-; ?r persons whomsoever, within this state, shall 
 ^r receive in payment of any debt or demand whatsoever, 
 L-S- in any way attempt or offer to circulate any bank bill or pro- 
 v not': of any banking company within this state, or
 
 BASTARD. 4S 
 
 where, for the payment of money, which shall be for less than the 
 nominal value of ono dollar ; and any person offending against this 
 act, either as giver, receiver, or circulator, of such hank bill or 
 promissory note, shall forfeit and pay the nominal amount and 
 value of such bank bill or promissory note, so given or received, 
 or attempted or offered to be circulated, to be recovered, with 
 costs of suit, in any court within this state having cognizance 
 thereof, by action of debt, by any person who will sue for the 
 same, to his or her own use : Provided, that such suit or action 
 be brought or commenced at any time within thirty days aftc/ 
 the offence be done and committed." Sess. 36. c. 71. s. 1. C 
 R. L. 234-. 
 
 . BASTARD. 
 
 1 . Who shall be. deemed a bastard. 
 II. Of apprehending and taking security from the reputed 
 
 father 
 
 III. Order of filiation and maintenance by the justices. 
 TV. Appeal against the, order. 
 V. Mother or reputed father running away. 
 
 I. Who shall be deemed a bastard. 
 
 All persons born out of lawful matrimony are bastards, although CD. Lut. 244. 
 he parents are afterwards legally married. Also, if a man mar- uamni, <AO 
 ries a second wife during the life of the former, their issue will be ^ l! !y Com ' 
 bastards ; because the second marriage is void. So also if there 
 is an apparent impossibility of procreation on the part of the hus- 
 band, as if he be only eight years old, or the like, there the issue of 
 the wife shall be bastards ; or if the husband is not in the country at 
 such time that the issue can be begotten by him ; or if it is born 
 such a length of time after his death that it cannot be his issue. 
 
 If the husband is in the country, or, according to the technical ^ otn - ^; 
 phrase of the English law, within the four seas, it was formerly str. pzsliOTt .'. 
 held that no proof of non-access to his wife was admissible, but 
 that the child in all cases, except those above mentioned, was legi- 
 timate. A contrary rule is, however, now established, and the 
 fact whether the husband had access to his wife or not, may be 
 given in evidence, as well as every other kind of evidence which 
 tends to show the impossibility, or probability, of the husband's 
 being the father. 
 
 As for instance, in one case, the son's having taken. a different Gom'rigM - 
 name from that of his mother's husband, which he and his de- ?, a "''- erni 
 
 Jl\vp- *Mw 
 
 ecendanta had retained, was considered as a very forcible circum- 
 stance, being a family recognition of his illegitimacy.
 
 44 BASTARD. 
 
 i RUck.com. Access will, in the first instance, be presumed, unless the con* 
 trary can be shown. It was formerly held, that if the husband was 
 present at any time during the pregnancy, the issue was legiti- 
 i Mod. 419. mate : but a more reasonable rule is now adopted ; and if it ap- 
 pear that the husband had no access at such time before the birth 
 that the issue could by any possibility be his, it shall be adjudged 
 
 8 l ast" lasT 1 '* illegitimate; as where he had no access until a fortnight before 
 delivery. 
 
 The evidence of the wife alone, as to the fact of non-access, is not 
 sufficient, but there must be other evidence of it. In the case last 
 
 s EMI, is3. cited, Lord XXlenborough, Ch. J. observes, "that this objection is 
 grounded upon a principle of public policy, which prohibits the wife 
 from being examined against her husband in any matter affecting 
 his interest or character, unless in cases of necessity, where, from 
 the nature of the thing, no other witness can probably have beeo 
 present : but exceptions of that sort have been established, and 
 that it is necessary, and on that account allowable, to examine 
 her as to the fact of her criminal intercourse with another, has 
 been held by various judges at different periods ; for this is a fact, 
 which must probably be within her own knowledge and that of 
 the adulterer only. And by a parity of reasoning it should seem, 
 that if she be admitted as a witness of necessity to speak to the 
 fact of the adulterous intercourse, it might also perhaps be com- 
 petent for her to prove that the adulterer alone had that sort of 
 intercourse with her by which a child might be produced within 
 the limits of time which nature allows for parturition. Certainly, 
 however, it is competent for her to prove the fact of her connex- 
 ion with that person whom she charges as being the real father of 
 her child." 
 
 ilex v. iniia- The husband being found to have gone beyond seas above two 
 
 Makhtone f years before the birth of a child borne by his wife, she remain- 
 
 \i Jtast, i'jo. ing at home ; the conclusion is irresistible, that such child is a 
 bastard. 
 
 As a person guilty of adultery, who is divorced on that account, 
 cannot marry again, his or her children after the divorce must 
 consequently be bastards ; but it does not affect the legitimacy of 
 the previous children of the marriage. Sess. 3d. c. 102. s. 4. 
 L'R. L. 198. 
 
 8 East, 193. Where the parents have married so recently before the birth of 
 the child, that it could not have been begotten during wedlock, 
 the child is notwithstanding legitimate ; for the marriage under 
 such circumstances is the criterion adopted by the law to ascer- 
 tain the actual parentage of the child ; it is an acknowledgment 
 by the husband that the child is his. Still if there appear to 
 be an impossibility that the child could have been begotten by 
 him, it will be a bastard, as in Foxcroffs case, (1 RoL Mr. 339.) 
 an infirm bed ridden man was married to a woman who in twelve 
 weeks after was delivered of a son, and the issue was adjudged 
 a bastavd.
 
 BASTARD. 45 
 
 A posthumous child shall not be a bastard, if bocn within forty Co. Lit*. 123 
 weeks after the death of the husband ; this is agreed to be the ^"' ws?'*" 
 usual period of gestation, but a longer space may be allowed 
 when the circumstances of the case require it; so that a child 
 has been allowed to be legitimate bom nine months and twenty 
 days after the death of the father ; but when the child was born 
 eleven days after the forty weeks, and the husband had no access 
 to his wife for a month before his death, it' was presumed to be 
 illegitimate. Where a woman married a second husband imme- 
 diately after the death of the first, and had issue forty weeks and 
 eleven days after the death of the first husband, it was held to be 
 the issue of the second husband. But where a woman was de- 
 livered of a child forty w r eeks and ten days after the death of her 
 husband, the child was adjudged legitimate. 
 
 If a man dies, and his Avidow soon after marries again, and a Co. Litt. sa. 
 child is born within such time, as that by the course of nature it 
 might have been the child of either, he is said in this case to be 
 more than ordinarily legitimate, and when he arrives at years of 
 discretion, may choose which shall be his father. 
 
 II. Of apprehending and taking security from the reputed father. 
 
 " If any woman shall be delivered of a bastard child, which 
 shall be chargeable, or likely to become chargeable, to any city 
 or town, or shall declare herself to be with child, and that such 
 child is likely to be born a bastard, and to be chargeable as afore- 
 said, and shall in either case, in an examination, to be taken in 
 writing upon oath, before any justice of the peace of any city or 
 of any county wherein such town shall be, charge any person with 
 having gotten her with child, it shall be lawful for such justice, 
 upon application made to him by the overseers of the poor of 
 such city or town, or persons acting as such, or by any one of 
 them, to issue his warrant for the apprehending such person so 
 charged as aforesaid, and for bringing him before such justice, or 
 before any other justice of the peace of such city or county ; and 
 the justice before whom such person shall be brought, is hereby 
 authorized and required to commit such person to the house of 
 correction, or common gaol of such city or county, unless he shall 
 give security to indemnify such city or town, or shall enter into a 
 recognisance with sufficient surety, with condition to appear at the 
 next general sessions of the peace, to be holden for such city or 
 county, and to abide or perform such order as shall be made in 
 pursuance of this act." Sess. 36. c. 12. s. 2. 1 R. L. 306. 
 
 The warrant can only be issued on application of the overseers WaiUwonit 
 of the poor, or either of them ; thu justice, in this car,c, acts minis- J,,',,^';, 1 ' 
 terially, and if he issue the warrant on the suggestion of any other Joims. Ufj. 
 person, he renders himself liable in an action for false imprison- 
 ment ; notwithstanding any subsequent consent of tha overseers 
 that the proceedings against the putative father should go on. 
 
 "If any woman shall be delivered of a bastard. child, whi- h hlin',1
 
 46 BASTARD. 
 
 he chargeable, or likely to become chargeable to any city or town, 
 or shall declare herself to be with child, and that such child is like- 
 ly to be born a bastard, and to become chargeable to any city or 
 town, and ihall upon examination, to be taken in writing upon oath, 
 before any one justice of the peace, of any city, or of any county 
 wherein such town is, charge any person with having gotten her 
 with child in any county or city within this state, and that such 
 person shall reside, or be in any other city or county, it shall be. 
 lawful for such justice, upon application made to him by the over- 
 '/crs of the poor of such city ortow r n, or persons acting as such, 
 or by any one of them, to issue his warrant for the apprehending 
 such person so charged as aforesaid, and for bringing him before 
 such justice, or before any other justice of the peace of such city 
 or county ; and it shall bo the duty of the constable, or other pro- 
 per officer to whom such warrant shall be directed, to carry the 
 same to some one justice; of the peace of such city or county 
 wherein such person resides, or is said to reside, or can be found ; 
 and such justice is hereby required, upon proof being made upon 
 oath of the hand-writing of the justice granting such w arrant, to 
 indorse his n-ame on such warrant, which r-hall be a sufficient au- 
 thority to the person bringing such warrant, and to all other per- 
 sons to whom such warrant was originally directed, to execute 
 such warrant in such other city or county where such warrant 
 was indorsed, and to apprehend and take such person, so charged, 
 as aforesaid, before the justice who indorsed such warrant, or 
 some other justice of the peace of such city or county where such 
 warrant was indorsed ; and in case such person, so apprehended and 
 charged as aforesaid, shall be willing and ready to give security to 
 indemnify such city or town, when such bastard child is chargea- 
 ble, or likely to become chargeable, or enter into recognisance for 
 his appearance at the next general sessions of the peace, to be 
 holden for the city or county wherein such town lies, such justice 
 of such other county or city, before whom such person shall be 
 brought, shall take such security, or such recognisance as afore- 
 said, in the same manner as any justice of the peace of the pro- 
 per city or county might have done ; and the justice so taking 
 such security or recognisance shall deliver the same, together 
 with ail other proceedings had or done by him in the premises, to 
 the constable or other person so bringing such person before him, 
 who are hereby required to receive the same, and to deliver over 
 Fuch recognisance and other proceedings to the justice or justices 
 who originally granted such warrant, or to some other justice of 
 the peace of such county or city where such warrant was granted, 
 and such justice or justices are hereby required to proceed as if 
 the said recognisance and other proceedings were had or taken 
 by themselves; and such recognisance and other proceedings 
 shall be as effectual in law as if the same had been entered into, 
 taken, and acknowledged before a justice of the peace for the 
 jjropnr city or county where the said bastard child is chargeable, 
 ' ' ' come chargeable, and the same proceedings shall
 
 BASTARD. 47 
 
 be had thereon ; and in case such constable, or other person to 
 whom such recognisance and other proceedings shall be so deli- 
 vered, shall refuse or neglect to deliver over the same, as herein* 
 before directed, such constable or other person shall forfeit the sum 
 of one hundred and twenty-five dollars, to be recovered against 
 him by action of debt, or by information in any court of record, 
 by any person who will sue for the same ; and if such person, so 
 apprehended as aforesaid, shall not give such security, or enter 
 into such recognisance, to the satisfaction of the justices before 
 whom such person shall be brought, in such other county or city, 
 then the constable or other person shall take such person, so ap- 
 prehended, before the justice who issued such warrant originally, 
 or before one of the justices of the peace of the city or county 
 where such warrant was issued. And the said justice or justices 
 shall proceed against such person so charged, and so brought: 
 before him or them, as they might or ought to have done if the 
 said person resided in the county or city where such warrant 
 was issued." s. 4.* 
 
 The security required by the statute,} whether a bond or other 2 Dong. 422. 
 security, is merely to indemnify the town ; hence, in a suit by the Col l v i5J? w " 
 overseers, they can recover no more than they have actually been no. wihie > 
 damnified. So when a promissory note was taken which import- f^fi"^ 
 ed and was understood by the parties to be payable at all events, it 
 was held that the plaintiffs were not entitled to recover beyond the 
 injury they had sustained, (a sum exceeding which the defend- 
 ant had paid into court,) whether as considering the contract void 
 upon principles of public policy, or considering it with relation to 
 the individuals with whom it was made, as a contract for gain or 
 loss by persons clothed with a public trust upon the subject-mat- 
 ter of their trust, and giving them an interest in the mal-execu- 
 tion of it; for it would be giving the overseers an interest in the 
 death of a child whom it was their duty to preserve. 
 
 The overseers cannot take a sum in gross from the putative icampb. 
 father, and discharge him from all future liability, for this too 
 would be giving them an interest in the death of the child, and if 
 paid under circumstances of compulsion, the money, or the sur- 
 plus remaining unexpended, may be recovered back. 
 
 The defendants are liable no farther than the penalty of the 2B!. use. 
 bond, or the sum specified in the note, or other security ; and in ciarkjoii.s 
 an action on such a bond, the defendant has been allowed, on >f -R- 3<): 
 payment of the penalty and costs, to have satisfaction entered on 
 the record. 
 
 Where the condition of a bond was, that if the above boundcn Fali and 
 
 Smith v. 
 
 The justice indorsing the warrant, is not liable, cither civilly or cri- 
 minally, but only the justice issuing it. 1 R. L. 303. 
 
 t The overseers have a right to any security which they may deuinnil, 
 however large; for it is at the option oi' thn pnrty either to g 
 terinto a recognisance. Peakt , 234. 
 
 Johns. Hi-p. 
 486.
 
 48 BASTARD. 
 
 T. B. and I. B., or any of them, their, or any of their executor* 
 or administrators, do, and shall from time to time, and at all times 
 hereafter, well and sufficiently save, defend, keep harmless, and 
 indemnify the above named, kc. overseers of the poor, &,c. from 
 the educating and instructing, bringing up, and providing for a 
 male bastard child, Sec. the supreme court held, that the child 
 having arrived to the age of twenty-one years, is not a reason for 
 discharging the defendant from the obligation of this bond, by 
 which he has expressly stipulated to indemnify the town at all 
 times thereafter. The expression bastard-child was merely de- 
 scriptive of the person, and does not import any limitation of the 
 time to which the obligation was to extend. 
 
 *Wd. It is not necessary that there should be any previous order of 
 
 maintenance, to enable the overseers to recover on such bond. In 
 the case last cited, the court said, that the expenditures and main- 
 tenance of the child, which they were to presume were shown to be 
 necessary and reasonable, were as obligatory on the defendant 
 without as with an order from a justice. 
 
 ibid. The section of the act, which requires the previous order of a 
 
 justice, applies to the case only of a voluntary application for re- 
 lief, by the pauper himself, and not to indigent and helpless chil- 
 dren, or other persons incapable of making application to the ma- 
 gistrate. An order, therefore, was not necessary in this case. 
 
 lb;d. The defendant in the abovementioned case having entered into 
 
 a bond to the overseers of one town, and having done certain acts 
 in affirmance thereof, was held to be estopped from alleging that 
 the child's place of settlement was in another town. His obligation 
 alone, it would seem, would be sufficient to preclude him from 
 this defence. 
 
 The place of the last legal settlement of the mother is bound 
 to maintain the bastard. Poor, II. 
 
 " If the woman so charging any person shall die, or be married 
 before she shall be delivered, or if she shall miscarry of such 
 child, or shall appear not to have been with child at the time of 
 her examination, then such person shall, at the next general ses- 
 sions of the peace, to be holden for such city or county, be dis- 
 charged from his recognisance, or immediately released out of 
 custody, by warrant under the hand and seal of any one justice 
 of the peace of such city or county." s. 3. 
 
 " Upon application made by any person who shall be commit- 
 ted to any house of correction or gaol, by virtue of this act, or 
 by ary person in his behalf, to any one justice of such city or of 
 such county, residing in or near such town, such justice is hereby 
 authorized and required to summon the overseers of the poor of 
 such city or town, to appear before liim, at a time and place to bt 
 mentioned in such summons, to show cause why sufh person 
 should not be discharged ; and if no order shall appear to have 
 been made in pursuance of this act, within eight weeks after suth 
 woman shall have been delivered, such justice shall discharge birc 
 from his imprisonment." s. 8.
 
 BASTARD. 49 
 
 It shall not be lawful for any justice of the peace to send for 
 any woman whatsoever, in order to her being examined concern- 
 ing her pregnancy, or supposed pregnancy, until one month after 
 she shall be delivered, or to compel any woman, before she shall 
 be delivered, to answer to any question relating to her pregnan- 
 cy." s. 7. 
 
 To an indictment against C. for secreting a woman who was R. v. chaun- 
 with child by him, to prevent her giving evidence respecting the ^ayro! life's, 
 premises, and to elude the execution of the law for the crime 
 aforesaid ; the defendant demurred, and judgment was given for 
 him, for the child cannot be illegitimate before it is born, there be- 
 ing always a possibility that it may be born in lawful wedlock ; 
 and by this act the woman is not to be compelled. 
 
 If the recognisance taken under this act, to appear at the ses- 
 sions, shall be forfeited, " such recognisance shall not be estreated 
 and sent into the court of exchequer, but the court of sessions of 
 the peace to which such recognisance may be returned, shall di- 
 rect the clerk of the city or county to prosecute a suit upon the 
 said recognisance, in the court of common pleas of the city or coun- 
 ty, where the person or persons who entered into such recogni- 
 sance can be found ; and the money, when recovered, shall, after 
 deducting the charges of such recovery, be paid by such clerk to 
 the overseers of the poor of the city or town, for the indemnifi- 
 cation whereof such recognisance was taken, to be applied to the 
 relief of the poor thereof. And it shall be lawful for the court 
 of sessions, into which such recognisance is or shall be returned, 
 at any time after the forfeiture thereof, to order the clerk of the 
 city or county to compound for the penalty thereof, in such man- 
 ner, and upon such terms, as the said court shall judge proper." 
 s. 5. 
 
 III. Order of filiation and maintenance by the Justices. 
 
 In cases in which no security has been given, another course of 
 proceeding may be taken for the relief of the town. 
 
 By the first section of the act, it is provided, " That any two 
 justices of the peace of any city or county, one whereof residing 
 in or near the town within which any bastard, or child begotten 
 and born out of lawful matrimony, shall be born,, upon examina- 
 tion of the matter, shall, in their discretion, make order for the 
 better relief of every such city or town, and shall likewise, by 
 like discretion, make order for the keeping of any such bastard, 
 child, by charging. such mother or reputed father with the pay- 
 ment of money weekly, or other sustentation, for the support of 
 such child, as they shall think meet : and if, after the same order 
 by them subscribed under their hands, the mother or reputed fa- 
 ther, upon notice thereof, shall not, for his or her part, observe 
 and perform the said order, then every such party, so making de- 
 fault, shall be committed to the house cf correction. r for wsrnt 
 
 [7 ]
 
 50 BASTARD. 
 
 tlicreol', to the common gaol of such city or county, there to re- 
 main without bail, except he or she shall put in sufficient surety to 
 perform the said order, or personally to appear at the next gene- 
 ral sessions of the peace, to he hulden in and for the city or coun- 
 ty vhere such order shall be taken ; and also to abide such order 
 as the said justices of the peace, or the major part of them, in 
 their said sessions, shall make in that behalf, if they then and 
 there shall make any ; and that if, at the said sessions, the said jus- 
 tices shall make no other order, then to abide and perform the 
 order before made." 
 
 cuv ove?' n " The general sessions has no power to make an origins! order in 
 seers of cases of bastardy, but can only act on an appeal. Original juris- 
 .Fo'imi. Rep. diction was given to the sessions in England by the statute of 3 
 -'^ Car. I. c. 4. and that statute has never been re-enacted with us. 
 
 It was resolved by the king's bench, in Slater's Case (CVo. Car. 
 1-70.) that before this statute of Charles, the justices, at their ses- 
 sions, had no authority to meddle in the case of bastardy, until 
 two justices, according to the statute of 1 8 Eliz. c. 3. had made an 
 order therein. Our statute seems to be a transcript of the Bri- 
 tish statute, except the single section relating to this subject in 
 the statute of Charles I. 
 
 oVer'seeMof Sarah Waring was born in the state of Connecticut, where she 
 New-Tort, 3 had a legal settlement, and on the 1st of May, 1801, came to re- 
 ':".'"* side in the city of New-York, where she continued, in the capa- 
 
 city of a servant, ur.til the 19th of January, 1805, when she was 
 delivered of a bastard child. She had not been bound as an ap- 
 prentice or servant to any person by indenture or contract in wri- 
 ting, though there was a verbal agreement, that the person with 
 whom she lived should pay her wages. On the application of the 
 overseers of the poor of the city of New-York, an order was 
 made, charging the appellant, the reputed father of the child, 'with 
 its maintenance, which order, on an appeal to the sessions, was 
 aflirmed: the cause was brought before the supreme court on cer- 
 tiorari. SPENCER, J. The legal settlement of Sarah Waring ap- 
 pears to have been in Stamford, in the state of Connecticut ; and 
 her residence in New-York was not of that kind as to acquire a 
 legal settlement there. This, however, does not touch the ques- 
 tion arising in the case, which ia, whether the justices of New- 
 York, vvhci-e the child was born, can make an order of filiation, 
 when the mother has no legal settlement there : and it is supposed 
 that they cannot, because the settlement of the bastard follows that 
 of the mother. The first section of the act for the relief of cities 
 and towns from the maintenance of bastard children, expressly 
 gives the power to any two justices of the peace of any city or 
 county, upon examination of the matter, to make an order for the 
 relief of the city or county within which any bastard shall be born. 
 The removal of paupers is only an auxiliary remedy ; and it wag 
 competent to the overseers to apply for the order of filiation. In 
 my opinion, the justices had the power to make the order they did,
 
 BASTARD. ij\ 
 
 and it must be affirmed. VAN NESS, J. and THOMPSON, J. were of 
 the same opinion. KENT, Ch. J. I also am of opinion that the 
 order must be affirmed; but for this reason principally, that as the 
 child was born in New-York, and the mother had no settlement 
 within the state, the child must be adjudged to be settled 
 where it was born. The law declaring "that every bastard child 
 follows the settlement of the mother, applies only to cases where 
 the mother has a legal settlement within the state. If she has 
 none, the child must be chargeable to the town where it was born, 
 and it cannot be sent out of the state. It becomes a native citizen 
 by birth, and is entitled to protection, as well as bund to allegi- 
 ance. Order affirmed. 
 
 The statute is not restrictive as to the number of justices, for i i>ae. Air. 
 more than two may make an order, but it requires at least that * 2I< 
 number. 
 
 The mother may be examined upon oath concerning the re- * Bac 2 ' *' 
 putcd father, and of the time, and other circumstances. But such AI&. 2Bific!;! 
 examination must be by both justices together, for it is a judicial 101 " 
 act ; as where the woman was examined severally, at separate 
 times, but in the same day, and in separate places, by two jus- 
 tices, it was held insufficient. It is not enough that one should 
 examine and make report to the other; but if they are both pre- 
 sent, and only one examine, it is sufficient, for that is in fact the 
 examination of both. 
 
 In this, as in all other cases, the party accused should have an i Bac. ALr. 
 opportunity of being heard in his defence; and, therefore, not temp- H. us. 
 only the mother, but likewise the putative father, should be sum- Cal( '- 3C? - 
 raoned to appear; but they may be summoned by a different jus- 
 tice from those who take the examination ; and if the putative 
 father, being summoned, does not appear, the justices may make 
 an order ; but the order need not state the summons. 
 
 An order was quashed because it was made on an affidavit c rab. 103. 
 brought to the justices without any examination of witnesses. 
 
 No time is limited for their proceeding in this respect, so that i Rum's TUSI. 
 the order may be made as well after as before the birth of the "3" pi. j".' 
 child. Thus it was resolved, that if the father run away and re- 
 turn, though fourteen years after, yet an order to fix the child on 
 him is good, for there is no statute of limitation in these cases ; 
 and although by section t>, the father having been committed, 
 may be discharged, if no order has been made within eight weeks 
 after the woman shall have been delivered, yet an order afterwards 
 made will be good. 
 
 Whether the overseers, says Dr. Burns, shall have the sole ap- 
 plication of the money ordered for the sustcntation of the child, 
 and ordering of such child, or the reputed father may take the 
 child from the parish and provide for it himself, hath been doubt- 
 ed, and scemeth not yet to have been fully settled by the unani- 
 mous resolution of the comt; but until seven years of age the 
 child shall stay with the mother for nurture. 
 
 Irv -Vc'c/C7irf and Ormvn.. the nue^ion was, whether a putatire ? ; i. "^'
 
 BASTARD. 
 
 2 Johns. Rep. 
 375. 
 
 1 Bunu'Just. 
 255. 
 
 He* v. Soper, 
 S T. H. 27S. 
 K'-x v. Hip- 
 Mi s. 7 East, 
 573. 
 
 1 Burns' Jost. 
 262. 263. 
 1 Bac. Abr. 
 
 521.3 .IcaSrS 
 
 there cited. 
 
 Ibid. 
 
 father may take a bastard child into his own custody to maintain 
 it, or whether the parish shall have the care of it: three out of 
 four of the judges were clear that the father had a right to take 
 the child and maintain it himself. 
 
 In The People v. Landt, the supreme court went still farther in 
 recognising the right of the mother to the custody of the child. 
 when the question lies between her and the putative father. In 
 the case of illegitimate children, says the court, and especially 
 as to females, the mother appears to us to be the hr.-t entitled to 
 the custody of them : but this right is not of such a nature as to 
 prevent the court from interfering to take the infant from the 
 custody of its mother, under special circumstances of ill treat- 
 ment. 
 
 The current of authority, particularly the modern cases, ap- 
 pears to be in favour of the mother's right to the custody of the 
 child. 
 
 Where the putative father obtained possession of the child by 
 fraud, the court ordered her to be restored to her mother. In 
 Rex \. Jlosely. Lord Kenyan said, where the father has the custo- 
 dy of the child fairly, I do not know that this court would take it 
 away from him. But where he has got possession of the child by 
 force or fraud, we will interfere, to put matters in the same situation 
 as before 
 
 The order must state the sex of the child, and must expressly 
 set forth the town in which it is born, that it may appear that the 
 justices have jurisdiction, and that the child was born in the town 
 which is to be relieved : that it was made on the complaint of 
 that town, and it should appear to have been made on personal 
 examination of witnesses : it must contain an express adjudica- 
 tion.that the person charged is the putative father : to say that it 
 appears to them, or that they believe it his. will be insufficient. 
 For any material defect of this kind an order will be quashed. 
 
 The justices may order a gross sura to be paid for expenses al- 
 ready incurred by the town : but then they must state what the 
 expenses have been: and for the future indemnity of the town, 
 they may order a sum to be paid weekly for and during so long 
 time as the child shall be chargeable. Therefore, if it is to pay 
 so much weekly, without any limitation of time, it is bad: or if 
 the order be to pay a sum weekl}' for the maintenance of the child 
 until it arrives at such an age that it can no longer be intended that 
 it will be chargeable, as at fourteen. But if it be to pay so much 
 weekly until the child is nine years old, the order will be good, 
 for it will be intended that the child would be unable to provide 
 for itself sooner. So an order to pay so much until further order, 
 is bad ; or an order that the reputed father should give such se- 
 curity as the overseers should think fit, because, by such an or- 
 der, the justices delegate their authority to others. The sum or- 
 dered to be paid must not be excessive, or more than adequate 
 for the purpose for which it is intended, nor must it be so small 
 as to be inadequate for that purpose. Whether the justices can
 
 BASTARD. 63 
 
 order a sum to he paid for binding out the child apprentice seems 
 tii in- doubtful. 
 
 An action lies upon the order against the putative father. 
 
 In error on certiorari from a justice's court. Mead and Green, Walhworth 
 as overseers of the poor of the town of Norwich, brought an joht^Kev. 
 action of dobt against Wallsworth, before the justice, to recover s<57 - 
 twenty-five dollars, on an order of bastardy, made by two justices, 
 which required Wallsworth to pay the weekly sum of seventy-five 
 cents to the overseers of the poor for the first year the child 
 should be chargeable to the town, and fifty cents for every week 
 thereafter that the child remained chargeable. The defendant 
 objected that the plaintiff's were not entitled to recover without 
 showing that the child had actually been chargeable. The justice 
 admitted the order as prima facie evidence of the child's being 
 chargeable ; but said the defendant might show payment, or that 
 the child had been maintained without any expense to the town. 
 No such evidence was given, and the justice gave judgment for 
 the plaintiffs for twenty-five dollars. 
 
 Per Curium. The principal objection relied upon in this case 
 is, that no action will lie upon the order in question. The objec- 
 tion is untenable. That order is an adjudication of a court of 
 magistrates of competent authority, and conclusive upon the de- 
 fendant, unless appealed from to the general sessions. Whether 
 such appeal has been made, or can now be made, were questions 
 not properly before the court. It was enough for the justice that 
 such order was in full force, and not reversed or modified by the 
 sessions. It was equivalent to a judgment, that the defendant 
 should pay the weekly sum of seventy-five cents. The order was 
 prime, facie evidence of the demand ; and it rested with the de- 
 fendant to show himself exonerated from the payment, in order 
 to avoid the recovery against him. Judgment affirmed. 
 
 No order of filiation or maintenance can be made unless the g" n ^^ 
 child be born alive ; so if the mother be delivered of a dead born East,277. ' 
 child, the father will not be liable for the expenses of her 
 lying-in. 
 
 IV. Appeal against the order. 
 
 By the first section of the act, before cited, the mother or 
 reputed father refusing to perform the order of the two justices 
 shall be committed, except they shall put in sufficient surety to 
 perform the said order, or else, "personally to appear at the next 
 general sessions of the peace, to be holden in and for the city or 
 county where such order shall be taken ; and also to abide such 
 order as the said justices of the peace, or the major part of them, 
 in their said sessions, shall make in that behalf, if they then and 
 there shall make any, and that if at the said sessions the said 
 justices shall make no other order, then to abide and perform the 
 order before made."
 
 54 BASTARD. 
 
 3 Ld. Rsym. Where an order has once been regularly discharged upon an 
 "fiurni'Juit. a PP ea ' on hearing the merits, the party cannot again be drawn in 
 se. question for the same fact; so that when the sessions discharged 
 
 the order of two justices, and took a recognisance from the party 
 to appear at themext sessions, and made a second order, the se- 
 cond order being removed by certiorari, was quashed. And in a 
 word, the order of the next general sessions, unless reversed by 
 a higher jurisdiction, is final, and no other sessions can either alter 
 or vacate it. 
 
 " Any person who shall think himself aggrieved by any judgment 
 or order of any two justices of the peace, made by virtue of this 
 act, may appeal to the next general sessions of the peace, to be 
 holden in and for such county where such judgment or order shall 
 be made, who are hereby authorized and required to hear and 
 determine such appeal, and to do justice therein accordipg to the 
 merits of the respective cases: and no justice of the peace in 
 any city or town, who shall have been present at, or assisted in 
 giving any judgment, or making out any such order, shall sit in 
 any court upon any such appeal as aforesaid." s.P. 
 
 " No appeal from any judgment or order whatsoever, of any jus- 
 tices of the peace, shall be proceeded upon in any court of gene- 
 ral sessions of the peace, unless reasonable notice in writing be 
 given, by the party appealing, to the overseers of the poor, or one 
 of them, of such city or town as shall be affected by such judg- 
 ment or order, the reasonableness of which notice shall be deter- 
 mined by the justices of such general sessions of the peace to 
 which the appeal shall be made ; and if to them it shall appear 
 that reasonable notice was not given, then they shall adjourn the 
 same to some future day in the then court, or to the next general 
 sessions of the peace, and then and there finally hear and deter- 
 mine the same." s. 10. 
 
 " The said justices, at their general sessions of the peace, to be 
 holden in any city or county within this state, shall award to the 
 party in whose favour any such appeal shall be determined, or in 
 case notice of any such appeal be given, and not afterwards pro- 
 secuted to effect, then to the party to whom the said notice shall 
 appear to have been given, such costs and charges as the said 
 justices in their discretion shall deem reasonable to be paid by the 
 party against whom such appeal shall be determined, or who gave 
 notice of such appeal as aforesaid, and did not prosecute, the 
 same. And further, if in any of the cases aforesaid, the person 
 ordered to pay such costs and charges shall reside in any city or 
 county out of the jurisdiction of such court of general sessions of 
 the peace, it shall be lawful for the party t to w-hom such costs and 
 charges were directed to be paid, to sue for and recover the same 
 of the person against whom such order was made, with costs of 
 suit, in an action for monies had and received to the plaintiff's 
 \ise, in any court in this state having cognisance thereof, in which 
 action a true copy of the order of such court, containing the
 
 BRIBERY. 55 
 
 award of such justices, in their court of general sessions of the 
 peace, signed by the clerk, and sealed with the seal of the same 
 court, when produced, shall be sufficient evidence for the recovery 
 of the monies so awarded." s. 11. 
 
 " On the hearing of appeals under this act, the courts of general 
 sessions shall begin de novo, and shall require the party in whose 
 favour the order appealed against was made, to substantiate the 
 same by evidence, except in case of the death of the mother of 
 such child." s. 12. 
 
 V. Mother or reputed father running away. 
 
 " It shall be lawful for the overseers of the poor of any city or 
 town, where any bastard child shall be born, to apply to any two 
 justices of the peace of the city or county where the estate, real 
 or personal, or any part thereof, of any putative father, or lewd 
 mother, of such child, who shall have run away out of such city 
 or town, shall be, and by warrant under the hands and seals of the 
 said two justices, who are hereby authorized and required to issue 
 the same, to seize and take the goods and chattels, and to let out 
 and receive the annual rents and profits of the lands and tene- 
 ments of such putative father or lewd mother, so absconding as 
 aforesaid, towards the bringing up and providing for such bastard 
 child ; and so soon as the said seizure shall be allowed of and con- 
 firmed by the justices in their general sessions of the peace, it shall 
 be lawful for the overseers of the poor of such city or town, or 
 any two of them, from time to time, and as often as the case may 
 require, to sell so much of said goods and chattels, at public ven- 
 due, to the highest bidder, and to receive the said rents and pro- 
 fits, or so much thereof as shall be ordered by the said sessions, 
 and to apply the money arising therefrom towards the bringing up 
 and providing for such bastard child." s. 8. 
 
 It is further enacted, " That the said overseers of the poor shall 
 be accountable to the justices of the peace, in their said general 
 sessions, for all such monies as shall arise from every such sale, 
 or be received by them for the rents and profits of such lands or 
 tenements." Idem. 
 
 BRIBERY. 
 
 Bribery is when a judge, or other person concerned in the ad- 4 Biaek-.te 
 ministration of justice, takes any undue reward to influence his be- 139 ' 14 * 
 haviour in his office. The offence of taking bribes is punished, 
 hi inferior officers with fine and imprisonment, and those who 
 offer a bribe, though not taken, in the same manner. 
 
 The attempt to bribe a person in a public trust, to procure an Rex v. 
 
 Vaugban, 
 
 Hnr:. 5154
 
 BURGLARY. 
 
 office for the party offering the bribe, is a misdemeanour at com- 
 mon law. 
 
 " If any person shall promise, offer, or give to any member of 
 the council of revision, council of appointment, or any commis- 
 sioner of the land office, or member elect of the senate or assem- 
 bly of this state, or any member who hath been qualified and 
 taken his seat in the said senate or assembly, any money, goods, 
 chattels, chose in action, or other property, with intent to influence 
 his vote on any question brought, or to be brought, before the said 
 councils, &c. such person shall be deemed guilty of a high misde- 
 meanour, and shall, on conviction thereof, be lined in a sum not 
 exceeding five thousand dollars, or imprisoned in the state prison, 
 at hard labour, for a term not exceeding ten years, or both, in the 
 discretion of the court." Sess. 36. c. 5. s. 1. 2 R. L. hH. 
 
 " If any such member, &tc. shall give his vote on any question 
 brought as aforesaid, in consequence of such corrupt promise or 
 promises, offer or offers, gift or gifts, such member shall be deem- 
 ed guilty of a high misdemeanour, and shall, on conviction there- 
 of, be fined and imprisoned as aforesaid, and also be forever dis- 
 qualified from holding a seat in the legislature, or any office of 
 honour, profit, or trust, in this state." Ibid. 
 
 BURGLARY. 
 
 2 East, p.c. Burglary is a felony at common law, and is defined to be, a 
 tfcm. 4 ? Ck ' Breaking and entering the mansion house of another, in the night, 
 i Hale, 5*9. with intent to commit some felony within the same, whether such 
 intent be executed or not. By statute, (sess. 3(3. c. 2v. s. 3.) per- 
 sons committing this offence, and the accessories before the fact, 
 are punishable with imprisonment for life in the state prison. I 
 shall collect the learning on this subject under these four heads : 
 
 I. As to the. time of committing lurglary. 
 II. As to the place. 
 
 III. As to the manner. 
 
 IV. As to the inttnt. 
 
 I. As to the time cf committing burglary. 
 
 4 BUck.Com. To constitute burglar}-, it must be by night, and not by day ; 
 for in the day time there can be no burglary. As to what shall be 
 accounted night, it is agreed, that if either before .v.:n rising or 
 after sunset, there be daylight sufficient to discern a man's fac;- by, 
 it is not burglary ; but this does not extend to moonlight, otherwise 
 many midnight burglaries would go unpunished ; and the malig- 
 nity of the offence does notsc; much consist in its being commit- 
 ted i:i the dark, as in those hours when sleep has thrown men off
 
 BURGLARY. 57 
 
 Iheir guard, and rendered them incapable of providing against 
 and repelling an attempt on their mansions. It is further neces- 
 sary that the two essential parts of the act, the breaking and 
 entry, should both be committed at night; for if the house be 1 Hale, 55 j. 
 broken in the day, and the entry made in the night, or vice versa, 
 it will not be burglary. 
 
 II. As to the place. 
 
 Burglary must be committed in a mansion or dwelling house ; 4 BI. Cow. 
 not in a building which may occasionally be used, or which may 
 be intended for habitation, but one which is usually inhabited, or 
 if abandoned, yet only for a short season, and with an intention in 
 the occupant to return. 
 
 The mansion includes all buildings under one common roof, * 9 ;p* sf> p< c> 
 and in the occupation of one person, as stores, barns, &c. al- i Hale, 553. 
 though there may be no internal communication between them, sg"?!* 
 and although they may not be surrounded by a common inclosure. 
 And if the barn or ware-house be parcel of the mansion-house, 
 and within the same common fence, though not under the same 
 roof, or contiguous, a burglary may be committed therein ; for the 
 capital house protects and privileges all its branches and appur- 
 tenants, if within the curtilage or home-stall ; and this rule has 
 been held to apply, when the. only connexion between the dwell- 
 ing-house and out-house was a pale reaching between them, 
 
 But where a store was broken open, at the distance of twenty TLe PcopSe 
 feet from (he dwelling-house of the owner, but having no common John" e Rep. 
 fence or yard inclosing them, it was held not to be burglary. 424> 
 
 So where a part of a pile of buildings, all under one roof, was ? ex v - E S- 
 used as a manufactory by one person, and the wings were inhabit- ITEast' P. c. 
 d by different persons, there being no internal communication 494 ' 
 between them and the manufactory, breaking into the latter was 
 not considered as burglary. 
 
 Burglary cannot be committed by breaking into any inclosed If^l^wk 
 ground, or into any booth or tent, though the owner lodge therein, c. as. s. n. 
 
 It cannot be committed in a building which may be only occa- ! ^ la \ '' 
 sionally used for habitation ; thus where a servant slept in a barn ssa. 
 to w r atch against thieves for several nights previous, and on the 
 night it was broken open ; or where a porter lay in a warehouse to 
 watch goods, the barn or the warehouse were not considered as 
 being thereby entitled to the privileges of mansion houses. But 
 breaking open a shop in which the shop-keeper, or his servant, 
 often or usually lodges, is burglary. 
 
 Neither is it sufficient that the building should be intended for ***$} t *- c 
 habitation, but it must actually be occupied, and such occupation 
 must not be by third persons, and for a particular occasion, but 
 by the owner or lessee, or by his famil}'. As where the former 
 occupier of a house had removed, :md before another moved into 
 it, it w^s broken open ; this was determined not to be burglary.
 
 oil BURGLAR1. 
 
 Neither will the tenant's having put his furniture in it make any 
 difference ; or persons sleeping in the house to protect it until the 
 tenant move in. Nothing short of the actual residence of him 
 self, or his family or servants, in it, will suffice. 
 
 2 East, P. c. It is necessary in framing indictments of burglary, to ascertain 
 and state with precision to whom the mansion belongs. The rule 
 on this subject is rather complex. If, says Mr. East, the rule by 
 which to ascertain this ownership may be compressed with suffi- 
 cient discrimination into a small compass, I should say generally 
 that where the legal title to the whole mansion remains in the 
 ... same person, there if he inhabit it either by himself, his family, or 
 servants, or even by his guests, the indictment must lay the 
 offence to be committed against his mansion. And so it is though 
 he let out apartments to inmates, who have a separate interest 
 therein, if they have the same outer door, or entrance into the 
 mansion, in common with himself. But if distinct families be in 
 the exclusive occupation of the house, and have their ordinary 
 residence or domicile there, without any interference on the part 
 of the proper owner; or if they be only in possession of parts of 
 the house as inmates to the owner, and have a distinct and separate 
 entrance ; then the offence of breaking, fcc. their separate apart- 
 ments, must be laid to be done against the mansion-house of such 
 occupiers respectively. 
 
 4 Bl. Cora. A. room or lodging in any private house is, for the time being, 
 
 the mansion of the lodger, if the owner do not himself dwell in 
 
 the house, or if he and the lodger enter by different outward 
 
 doors. But if the owner himself lie in the house, and have but 
 
 one outward door at which he and his lodgers enter, such lodgers 
 
 seem only to be inmates, and all their apartments to be parcel of 
 
 s^East, P. c. tne one dwelling house of the owner. Thus, where a house is 
 
 divided between two persons, so that each part is separate and 
 
 distinct from the other, without any communication between them 
 
 2 East, P. c. except by the street, each part is a mansion. So, also, if the 
 
 owner retain and occupy some part of the house, but does not 
 
 inhabit it, burglary may be committed with respect to the tenants 
 
 2 Kast, P. c. or inmates of other parts of the house. But if the chamber of a 
 
 502 * guest at an inn be broken open, it must be laid to have been done 
 
 in the mansion of the inn-keeper. 
 
 2 East, p. c. If a man let out part of his house to inmates, and continue to 
 **" inhabit the rest himself; if he break open the apartments of such 
 
 inmates and steal their goods, it is not burglary, for it cannot be 
 burglary to break open his own house. 
 
 5 East, r. c. If A. have a shop which is parcel of his house, the indictment 
 507 ' must be for breaking the mansion-house of A. ; but if it be 
 
 severed by lease, and have no communication with the dwelling- 
 house, by having a different entrance ; then, unless the lessee or 
 his servant sleep there usually or often, no burglary can be com- 
 mitted in it. For it is not the mansion-house of A., being severed 
 by the lease ; nor can it be said to be the mansion-house of the
 
 BURGLARY. 59 
 
 lessee, if neither he or his family ever dwell there, or if their sleep- 
 ing there be only casual or temporary. 
 
 Burglary in a building belonging to a corporation, and inhabited Fo ? te *,3B. 
 by its officers or servants, must be laid in the indictment to have S oi. ' 
 been done in the mansion house of the corporation. 
 
 III. *2s to the manner. 
 
 To make a burglary complete there must be both a breaking i Hale, P. c. 
 of the mansion and an entry ; but it is not necessary that both 
 should be done the same night : as if a hole be broken into a house 
 one night, and an entry made through the same hole the next 
 night, it is burglary. 
 
 Though every entry by a trespasser Is a breaking in law, yet that 2 East, p. c. 
 is not sufficient in this case. Therefore, if a man leave his doors 
 or windows open, and the thief enter and take away the goods 
 in the night, that will not constitute a burglary. But it is otherwise i Hale, P. c. 
 if he enter by a chimney, because it is as much enclosed as the 558 ' 
 nature of the thing will admit of. To amount to a breaking, the 
 cntran.ce must be obtained either by fraud, conspiracy, threat, or 
 force. 
 
 Thus to knock at a door, and upon opening it to rush in with a * B I. Cm "- 
 felonious intent, or to gain admission under pretence, of business, c. 38. . i. 
 or to take lodgings with a felonious intent, and afterwards rob the 
 landlord, have all been adjudged burglary ; for, although there was 
 no actual breaking, the entrance was gained by fraud. So where 
 thieves raised the hue and cry, and brought the constable, to 
 whom the owner opened the door, and when they came in they 
 bound the constable and robbed the owner ; for to make use of l Hale p - c - 
 
 552 
 
 legal process as a cloak for villany is one of the highest offences 
 to public justice, and therefore the whole act is esteemed tortious 
 ao initio. 
 
 Where the servant of the owner conspires with the thief to let 
 him in to rob the owner, both Hale and Hawkins are of opinion i Hale, sy. 
 that this is burglary in both. For it is clear, observes the latter, ], 9. dW 
 that if the servant were out of the house, the entry of the other 
 would be adjudged to be his also ; and what difference is there 
 when he is in the house? So, too, if different persons come to iHawk. c.3. 
 commit a burglary together, and some stand to watch in adjacent s> 8> 
 places, and the others enter and rob the house, they are all 
 burglars, for the act of one is, in judgment of Jaw, the act of all. 
 
 There may also be a breaking in law, where, in consequence of 2 Eait, r. c. 
 violence commenced or threatened, in order to obtain entrance, <M " 
 the owner, either from apprehension of the force, or w : ith a view 
 more effectually to repel it, opens the door, through which the 
 robber enters. But if the owner only threw his money out of the 
 house to the thieves who assaulted it, this would not be burglar y : 
 though if the money were taken up in the owners presence, it 
 would be robbery. In all other cases, where no fraud or conspi-
 
 UO BLRGLAHi . 
 
 racy is made use of, or violence commenced or threalo, 
 order to obtain an entrance, there must be an actual breach of 
 some part or other of the house ; though it need not be accom- 
 panied with any violence as to the manner of executing it. 
 2 East, p. c. The breaking of a window, taking a pane of glass out by draw- 
 Co 7 m. 4 2i5^ ck i ' in S or bending the nails, or other fastening, the drawing a latch 
 Hale, v. c. where the door is not otherwise fastened, picking open a lock with 
 a false key, putting back the lock ef a door, or fastening of a win- 
 dow, with an instrument turning the key where the door is locked 
 on the inside, or unloosing any other fastening which the owner 
 has provided, are all instances of a breaking. 
 
 4S*j ast ' PJ But though a thief enter a dwelling-house in the night time 
 p. c. 554. i through the outer door being left open, or by an open window, 
 iiawk. c. as. or w jj ere a person is admitted into the house by the owner's 
 consent ; yet if, when within the house, he turn the key of, or 
 unlatch a chamber door, with intent to commit felony, this is 
 burglary. So, also, where a servant in the night drew the latch 
 of a door between the two parts of the house in which he and 
 his master lay, and entered his master's chamber in order to mur- 
 der him, it was held burglary. So where a servant opened his 
 lady's chamber door, which was shut with a spring lock, with 
 design to commit a rape. But where the thief enters by an 
 open door, and, while in the house, breaks a trunk or box which 
 was locked, this is no breaking to constitute burglary ; because 
 such things are no part of the house. 
 
 With regard to cupboards, presses, lockers, and other fixtures 
 p. 103. of the like kind, says Mr. J. Foster, I think we must, in favour of 
 
 life, distinguish between cases relative to mere property, and such 
 wherein life is concerned. In questions between the heir or 
 devisee and the executor, those fixtures may, with propriety 
 enough, be considered as annexed to, and parts of the freehold. 
 But in capital cases,* I am of opinion, that such fixtures, which 
 merely supply the place of chests and other ordinary utensils of 
 household, should be considered in no other light than as mere 
 moveables, partaking of the nature of those utensils, and adapted 
 to the same use. Hence breaking them open would not be 
 burglary. 
 
 4 BI. Com. As for the entry, any the least degree of it, with any part of 
 
 pfc.sls^ 16 ' the body, or with an instrument held in the hand, is sufficient ; as 
 
 to step over the threshold, to put a hand or a hook in at a window 
 
 to draw out jgoods, or a pistol to demand one's money, arc all of 
 
 them burglarious entries. Yet the entry must be for the purpose 
 
 2 East, P. c. of committing a felony: as where thieves had bored a hole 
 
 through the door with a centre bit, and part of the chips were 
 
 found in the inside of the house, by which it was apparent that the 
 
 end of the centre bit had penetrated into the house ; yet as the 
 
 * Burglary is a capital offence by the English law.
 
 CERTIORARI. 61 
 
 instrument had not been introduced for the purpose of taking the 
 property, or committing any other felony, the entry was ruled 
 incomplete. 
 
 IV. As to the intent. 
 
 It is clear, that such breaking and entry must be with a feloni- 4Biack.Com. 
 eus injtent, otherwise it is only a trespass. And it is the same, 227- 
 whether such intention be actually carried into execution, or only 
 demonstrated by some attempt or overt act, of which the jury is 
 to judge. And, therefore, such a breach and entry of a house, as 
 has been before described, by night, with intent to commit a rob- 
 bery, a murder, a rape, or any other felony, is burglary ; whether 
 the thing be actually perpetrated or not. Nor docs it make any 
 difference, whether the offence were felony at common law, or 
 only created so by statute ; since that statute which makes an 
 offence felony, gives it incidentally all the properties of felony 
 at common law. 
 
 CERTIORARI* 
 
 A certiorari is an original writ issuing out of chancery or the i Bac. Afcr. 
 supreme court, directed to the judges or officers of inferior courts, 5- 
 commanding them to return the records of a cause depending 
 before them, to the end that the party may have the more sure 
 and speedy justice.f 
 
 I. In what cases it is grantable. 
 
 II. How to be granted and allowed. 
 
 III. The effect of it. 
 
 IV. The. return of it. 
 V. Costs. 
 
 I. In what cases it is grantable. 
 A certiorari is crantable in all cases to remove an indictment l Bac - ' r - 
 
 ,. . - . . . ,. . . . , ... 5!><}.2Hawk. 
 
 irom an inferior jurisdiction into the supreme court: it is a mat- c . 37. i. 27. 
 ter of right in cases in which the people are plaintiff; but the 
 
 * As to a certiorari to remove the proceedings of a justice's court 
 under the twenty-five dollar act, see APPENDIX. 
 
 t Wherever a new jurisdiction is created, and the court or judge that 
 exercises this jurisdiction acts as a court, or judge ef record, according 
 to the course of the common law, a writ of error lies on their judgments ; 
 but where they art in a summary method, or in a new course different 
 from the coramon law, a writ of error does- not lit*, but a ccvtiorari.
 
 GERTIORARI. 
 
 7 Term Rep. 
 3J3. tHawk. 
 c. 27. s. 31. 
 
 2 Hawk. c.27. 
 s.30. 
 
 1 Burn'sJust 
 
 I Hawk.c.27. 
 '*,33. 
 
 2 Kale, 210, 
 
 1 .aw tun T. 
 i.'om. of high- 
 ways of Cam- 
 triilgr, 
 
 2 Cainei, 179. 
 
 i Saik. 146, 
 ami 1 L<l. 
 Rayra. 580. 
 
 court has a discretionary power in granting or refusing it at the 
 suit of the defendant. 
 
 Where judgment has been given on an indictment, the record 
 must be removed by writ of error. So, it seems agreed, that a 
 certiorari shall never be granted to remove an indictment after a 
 conviction, unless for some special cause ; as where the judge be- 
 low is doubtful what judgment to give. 
 
 Also, it is said to be a good objection against granting a certio- 
 rari, that issue is joined and a venire awarded for the trial in the 
 court below. 
 
 A mere informality in the manner of drawing up a conviction 
 ought not to be the inducement for removing it, but some sub- 
 stantial defect in the justice and legality of the proceeding itself 
 before the magistrate. 
 
 The king's bench has refused to grant a certiorari to remove a 
 recognisance of appearance before justices of oyer and ttrmi- 
 rer, See. because the court below is most proper to judge upon 
 the whole circumstances of the case, which are equitably to be 
 considered, whether it ought to be estreated or not. 
 
 The objects for which certioraris are granted, are, sometimes, 
 to consider and determine the validity of the indictment, and 
 to quash or affirm them as there is cause. Sometimes to have 
 the prisoner or offender tried either at bar or at nisi prius. 
 Sometimes to examine and affirm or reverse proceedings and 
 judgments given by inferior judges. Sometimes to issue process 
 of outlawry against the offender, in those counties where the pro- 
 cess of inferior justices cannot reach him. 
 
 The following case will more fully illustrate the jurisdiction of 
 the supreme court in granting certioraris. 
 
 On certiorari to three of the judges of the common pleas of 
 Washington to return an appeal to them, from the determination 
 of the commissioners of highways for the town of Cambridge ; 
 " and also the decision, judgment, process, and proceedings of the 
 same, with all things touching the same." It will be sufficient, 
 without stating the return and the points arising upon it, to give 
 merely the decision of the court as to the question of jurisdiction. 
 
 Per curiam, delivered by SPEJTCF.R, J. It is made a ques- 
 tion, whether a certiorari is grantable to remove into thfs court 
 these proceedings, the statute having declared the decision of the 
 judges of the common pleas, on an appeal made to them, to be 
 conclusive. It is a position beyond contradiction, that the 
 king's bench in England (and this court is clothed with the same 
 common law authority) has jurisdiction, and may award a certio- 
 rari, not only to inferior courts, but to persons invested by the 
 legislature with power to decide on the property or rights of the 
 citizen, even in cases where they are authorized by statute, fnal- 
 i-j, to hear and determine. A certiorari has been held to lie to 
 commissioners of sewers. In the case of CardiflTe bridge, a cer- 
 tiorari was granted to remove certain orders of justices of the
 
 CERTIORARI. 63 
 
 peace, made pursuant to a private act of the parliament, for re- 
 pairing the bridge ; and it was then decided, that wherever new 
 jurisdictions are erected, be it by private or public act, they ar 
 subject to the inspection of the king's bench, by writ of error, 
 eertiorari, and mandamus. The authorities to this point are so 
 numerous and uniform, that it cannot be necessary to enlarge. 
 The necessity of a superintending power to restrain and correct 
 partialities and irregularities which may be committed by inferior 
 officers, is so obvious and indispensable, that the court ought by 
 no means to deny themselves a jurisdiction of such salutary influ- 
 ence. Though the general power of the court is indisputable, 
 there are cases where they will not interfere. In tlie case of a 
 poor rate, they will refuse the writ; as also in the assessment of 
 the land tax, from a regard to the public inconvenience. In cases 
 too, depending wholly on the discretion of persons authorized to 
 do an act, this court hath refused to interfere ; I allude to the ap- 
 plication made for a mandamus to the commissioners of high- 
 ways of Rhynebeck. There the court perceived that its inter- 
 ference wcvuld be nugatory, because the commissioners had a dis- 
 cretion to lay out or refuse to lay out the road applied for. The 
 present is a different case ; the regularity of the proceedings is 
 questioned, and most certainly the court cannot want jurisdiction 
 to inquire into it, when a freeholder shall apply to them not to be 
 disturbed in his freehold, but by proceedings conformable to law. 
 
 In the crae of summary proceedings, orders and convictions i nac. Akr. 
 before magistrates, the proceedings may be removed by certio- 5T3> 
 rari after judgment, because such proceedings can be removed 
 only by eertiorari : but where a judgment has been given on an 
 indictment, the record must be removed by writ of error. And 
 though the eertiorari be issued before judgment, if it is not ser- 
 ved till after, it will be quashed. 
 
 A eertiorari will not be granted to remove a conviction before R.V. Ba^, 
 justices of the peace, where they see that the justices have drawn | 5 y ermRe P- 
 the proper conclusion from presumptive evidence. 
 
 It will not be granted where an appeal is given, if the objection oug. 549. 
 be not to the want of jurisdiction, but to the merits, for that is 55J ' 
 more properly the subject of appeal ; a fortiori, they will not grant 
 it pending an appeal. 
 
 With respect to appeals, there is this distinction; if one party 2 Term Rep. 
 only has a right of appeal, or no time is. limited for bringing the } 6 Bac. "Abr. 
 appeal, the certiorari shall be immediately granted ; for, in the 5 ^''.*"f lc ^' es 
 one case, the party having the right may waive it; and in the 
 other, if the objection were to be allowed, the certiorari might 
 never issue ; but if both parties have a right to appeal, and the 
 time is fixed, in that case ijt shall not be granted until after the ap- 
 peal hath been made, or the time for making it hath elapsed. 
 But notwithstanding an appeal depending, if the order must be 
 obeyed before th.? validity of it can be determiner!, a certiorari
 
 CERTIORAIU 
 
 will lie. Advantage must be taken of this rule, in tuo case of an 
 order, before the order is filed. 
 
 II. How to be granted and allowed. 
 
 No certiorari shall issue out of any Court to remove " any in- 
 dictment, presentment, inquisition, judgment, order, record, recog- 
 nisance, or other proceeding, out of any other court, or from 
 before any justice or justices of the peace, unless the same be 
 allowed and signed by one of the justices of the court out of 
 which the same shall issue." Sess. 24. c. 13. s. 1. ] R. L. 140. 
 
 "No certiorari, at the instance of any party indicted for any 
 misdemeanour, in any court of general sessions of the peace, 
 shall issue during any term of the supreme court to remove such 
 indictment before the trial thereof, unless the same be granted on 
 motion made in open court, and by a rule of the said supreme 
 court; and every certiorari, directed to any court of general ses- 
 sions of the peace, shall be delivered in open court." Ibid. 
 
 "Every person indicted for any misdemeanour in any court of 
 general sessions of the peace, or against whom any judgment OF 
 order of such court, or of any justice or justices of the peace, 
 other than judgments in actions for debts or demands between 
 party and party, shall have been given or made by \irtue of any 
 law of this state, for the benefit of any other person, shall, on 
 prosecuting such certiorari, and before the allowance thereof, 
 enter into recognisance with two sufficient sureties to the people 
 of this state, before one of the justices of the supreme court, or 
 before such court of general sessions of the peace, or any one 
 of the justices thereof, in the sum of one hundred and twenty- 
 five dollars ; conditioned in the case of such indictment, that the 
 person indicted and prosecuting such certiorari shall, at the re- 
 turn thereof, appear and plead to the same indictment in the su- 
 preme court, and at his or her proper costs and charges, cause the 
 issue, which shall be joined thereon, or on any plea relating there 
 to, to be tried at the circuit court to be held in such county, next 
 after such certiorari shall be returnable ; if it be not in the coun- 
 ty where the supreme court shall sit, and if in such county, then 
 at the next term of the said court, or at such other time as the 
 said supreme court shall appoint, and shall give due notice of such 
 trial to the prosecutor or his attorney, and to the attorney gene- 
 ral or district attorney, as the case may require, and shall appear 
 from day to day in the said supreme couit, and not depart from 
 the same without being discharged by the said court, and shall 
 pay to the prosecutor the costs, if any, which shall be ordered by 
 the supreme court in pursuance of this act; and conditioned, in 
 the case of any such judgment or order, that such person shall, 
 at his or her proper costs and charge?, prosecute such certiorari 
 to effect, without any wilful delay, and perform such judgment or 
 r :>- the. a ic court shall ' .-.-rsise*, and
 
 CERTIORARI. G5 
 
 p;iy the party for whose benefit the judgment or order ?o removed 
 uas made, such costs and charges as shall be directed by the said 
 court." s. t-. 
 
 ' Kvery 'such recognisance shall be delivered, together with 
 the writ of ccrtiorari, to the justice, justices, or court to whom 
 the said writ shall be directed, and he certified, together with such 
 writ, into the supreme court, and there filed ; and in case of such 
 indictment, the name of the prosecutor, if a civil officer, or the 
 party grieved, shall be endorsed thereon ; and if the person in- 
 dicted shall be convicted of the offence charged in such indict- 
 ment, and the prosecutor be a civil olficer, prosecuting on account 
 of any matter relating to his office, or the party grieved, the su- 
 preme court shall give to such prosecutor, and also to any party 
 in whose favour or for whose benefit any such judgment or 
 order shall be confirmed, reasonable costs, to he taxed according 
 to the course of the said court, and to be recovered by attach - 
 ment against the person so convicted, or against whom such judg- 
 ment or order shall be made, at any time after the expiration of 
 ten days after demand, and refusal to pay the same, proof of such 
 refusal being first made ; and no such recognisance shall be dis- 
 charged until such costs be paid, nor in case of such judgment, 
 until the same be performed." Ibid. 
 
 " No writ of certiorari, or other process, shall issue, to remove 
 into the supreme court any proceedings had before any justice 
 or justices of the peace, mayor, recorder, or alderman, or any of 
 them, or before any court of general sessions of the peace, in pur- 
 suance of the act, entitled, Jin act concerning apprentices and 
 servants, until after a final determination and judgment thereon 
 by such court of general sessions of the peace." s. 5. 
 
 If any certiorari "shall issue in any of the cases above men- 
 tioned, contrary to, or without the party prosecuting such writ 
 complying with the provisions contained io this act, the justice, 
 justices, or courts, to whom the same be directed, shall and may 
 proceed as if the same had not been issued." s. 6. 
 
 * The proceedings under the 4-th section of this act, to remove an * Hawk. c. 
 indictment, extends only to cerlioraris procured by persons in- 
 dicted ; from whence it follows, that those which are procured 
 by the prosecutor of an indictment, remain as they were at com- 
 mon law. 
 
 Notwithstanding, by the express words, the justices may pro- Mf- *' 
 ceed notwithstanding the certiorari, if a proper recognisance be 
 not given : yet they will be in contempt to the court that awarded 
 the certiorari, if they make no return to it ; for all writs must 
 be obeyed unless good cause be shown to the contrary ; and the 
 proper way of showing it, is to return it. 
 
 If the persons offering to be sureties appear to be worth the Uem.t.st. 
 sum required, the justice cannot refuse them. 
 
 If there be several defendants, and some find sureties, and idrm.i. 5?, 
 others not. the indictment shall be removed a's to those at lea--* 
 
 r o i
 
 Cti 
 
 (k.C.27. 
 
 1 Str. 470. 
 
 4 Term Rep. 
 
 493. 
 
 DraUe v. 
 
 Drake. 
 
 lUulius.Hcp. 
 
 CERTIOKAKf. 
 
 who fmd sureties, because they shall not be prejudiced by the 
 fault of others ; and, as some say, it shall be removed as to all. 
 
 Regularly it ought to be directed to the judge of the inferior 
 court ; yet, in some cases, it may be directed to the proper officer 
 known to have the custody of the record to be removed, and in 
 some other cases to others, as shall be most agreeable to the 
 usual course of approved precedents, which seems to be the best 
 guide whereby to judge of this matter. 
 
 If the person who ought to certify a record, as a justice of 
 peace, &c. who hath taken a recognisance, &c. or a judge of nisi 
 ]M-ius who hath taken a verdict, or a coroner who hath taken an 
 inquest, fee. happen to die, having such a record in his custody, it 
 seems, that a certiorari may be directed to his executor or admin- 
 istrator to certify it. 
 
 A certiorari to remove an order of two justices may be directed 
 to* the sessions, and returned by them. 
 
 If a certiorari be misdirected, no third person can object to it, 
 if the proper officer, in whose keeping the record was, waives 
 the objection, and returns the record upon the writ. 
 
 So where a cerliorari is entitled wrong, and the justice returns 
 a cause, which was in fact tried before him according to its true 
 title, after joinder in error, it will be too late to object that the 
 cause was wrong entitled in the writ. 
 
 2 Ld. Kiiyin. 
 836. 1305. 
 2 Hak. c. 
 1!7. s. f,2. 
 
 2 T.d. Rayrn. 
 
 ) Ric. Abr. 
 AT I. 2 Hwv.-k 
 c. 17. S. 64. 
 
 fi Term Rep. 
 
 ;..<5. 8 Term 
 Utp. 5-S2. 
 
 III. The effect of it. 
 
 The effect of the writ is to remove all proceedings of the na- 
 ture described therein, which have taken place between the test? 
 and return, although the proceedings originated after the teste. 
 The magistrates below are bound to obey the writ after pro- 
 duction of it, and notice to them in fact of such production when 
 pitting in their judicial capacity ; and after that, all further pro- 
 ceedings before them on the matter are erroneous. 
 
 It hath been adjudged, that if a certiorari for the removal of 
 an indictment before justices of the peace be notdelivered before 
 the jury be sworn for the trial of it, the justices may proceed. 
 Also it hath been holden, that a certiorari is of no effect, unless it 
 be delivered before its return is expired. 
 
 And the justices may set a fine to complete their judgment, 
 after a certiorari delivered. 
 
 A certiorari for the removal of a recognisance for the good be- 
 haviour, or for an appearance at the sessions, will not supersede its 
 obligation ; because it would be highly inconvenient that the par- 
 ty, against whom there may be very just matter of complaint, 
 should be let loose upon the bare bringing of a writ. 
 
 When a conviction is removed by certiorari, the facts canr:ot 
 be made the subject of inquiry, although the justices state evi- 
 dence which prima facie would have been sufficient for them to 
 have given a different judgment, and no contradictory or explana- 
 tory evidence : for the evidence is entirely and exclusively for the
 
 CERTIORARI. tjj 
 
 nsideration of the justices, who are placed in the situation of a 
 I-. The court can only look to the form of the conviction, and 
 that the party, if convicted, had been convicted by legal 
 
 IV. The return of it. 
 
 The return ought to be under the seal of the inferior court, or * Hawk. <. 
 of the justice or justices to whom it is directed ; and if such 
 court have no proper seal, it seems that the return may bo well 
 made under any other. 
 
 It must be made by the very same person to whom the cer- idem.s. ri. 
 tinrtiri is directed. 
 
 The person to whom a certiorari is directed may make what Wem. s. 74. 
 roturn to it he pleases ; and the court will not stop the filing of it 
 on affidavits of its falsity, except only where the public good re- 
 quires it, or for some other special reason ; but, regularly, the only 
 remedy against such a false return, is an action on the case at the 
 suit of the party injured by it, or an information. 
 
 Whatsoever matters are put into the return of a certiorari, by 2 Hawk. < 
 way of explanation or otherwise, besides those which are ex- ca'iut.Mu^ 
 ]>ressly ordered to be certified, are put in without any warrant i<y. 
 or authority, and consequently shall be no more regarded, by the 
 court above, than if thejr had been wholly omitted. 
 
 The certiorari may be sometimes to remove and send up the Wera. s. ?s. 
 record itself, and sometimes but only the tenor of the record, 
 as the words therein be, and it must be obeyed accordingly. 
 
 If the sessions do not return all the facts which were before 3 Johns.Rep. 
 them, and which are necessary to appear, in order to judge of 
 the law applicable to the same, the practice is to order the ses- 
 sions to return such facts. 
 
 If the person to whom a certiorari is directed do not make a i Bums' Just, 
 return, then an alias, that is, a second writ ; then a pluries, that is, 
 a third writ, or caiisam nolis significes, shall be awarded, and then, 
 an attachment. 
 
 V. Costs. 
 
 In what cases costs are given by the statute, vide supra, II. 
 
 An inquisition had been found before a justice of the peace for Low r - Ro- 
 an encroachment on the highway, by Low, the appellant, and others, 8 " 
 which was removed to this court by certiorari, and quashed. And ^ T h is. R^. 
 the question now raised for the consideration of the court was, 
 whether the party was entitled to costs. 
 
 Ptr curium. The inquisition below was not a judgment or 
 order, made for the benefit of another person, within the act re- 
 ; itive to suing out writs of certiorari. It seems to be a casus s P'' a - 
 nmissus in our statute book as, to costs. There is no provision 
 
 * It is otherwise in the case of a certiorari brought to remove proceed- 
 ings under the twenty-five d-jllar act- 2 Johns. iCep. 19^. 3 Johns. Re*. 
 , G:;V/' AVu.187.
 
 03 CHEATS: 
 
 giving costs or damages, cither one way or the ol her, v. hen such 
 a proceeding as that below is removed into this court by certiurarl. 
 The act regulating the suing out writs of certiorari is the only one 
 making provision for costs in cases analogous to this, and that is 
 clone by requiring the party suing out the writ to enter into a re- 
 cognisance to pay cosls. There is a p'.-nilar proceeding in seve- 
 ral British statutes relative to proceedings by cerliorari. Costs 
 denied. 
 
 CHEATS. 
 
 2 P. C. 816. The distinction between cheats and larceny, says Mr. Last, 
 turns principally upon the consideration whether or not the own- 
 er, deceived by appearances, intended to part with the absolute 
 property, and not barely with the possession or temporary use of 
 the thing at the time of the delivery, rather than upon any actual 
 difference in the degree of fraud meditated by the taker; the in- 
 tent, in both instances, being dishonestly to acquire and convert to 
 his own use the property of auother, without any or an adequate 
 consideration. If the absolute property were intended to be 
 passed by the delivery, but such delivery were obtained by means 
 of a false token or pretence, the case can only be reached by a 
 prosecution for a cheat at common law, or in the instance of a 
 false pretence by the statute. Sess- 30. c. 2<j. s. 1 3. Where, in- 
 deed, the possession is honestly obtained, upo a contract or trust, 
 in the first instance, the subsequent dishonest conversion of it 
 (except in cases where the privity of contract ' determined,) is 
 no other than a breach of trust, for w hich the party has a civil 
 remedy. 
 
 I. Of cheats at common law, 
 11. By the statute. 
 
 I. Of cheats at common law. 
 
 2 East, P. c. It is not every species of fraud or dishonesty in transactions 
 
 between individuals which is the subject-matter of a criminal 
 
 prosecution at common lav." ; but in order to constitute it such, it 
 
 must be such as affects the public ; such as is public in its nature, 
 
 calculated to defraud numbers, to deceive the people in general. 
 
 2 East. P. e. A cheat at common law consists in the fraudulent obtaining the 
 
 ii27 2B property of another, by any deceitful and illegal practice i short 
 
 so-T'Ti^R'' ^ fe ' on y) which affects or may affect the public ; as if a man use 
 
 fulsi- weights and measures, and bfl.'s ! y tii^.tn to all or many, or 
 
 even one of h : ,- uses them in ttiL- -er;cnil course of 
 
 his dealing; so if a man defraud a?- Jther, n'V< i false tokens. 
 
 For these are deceptions that common care and prudence arc not 
 
 . '>. c. sufficient to guard against. So, if there be a conspiracy to cheat: 
 
 for ordinary care and caption is no guard -.gi-.iiisi th,-. So also 
 
 playing with fal=e dice is indictable at common law.
 
 CHEATS. 69 
 
 But to deliver a Ir.ss quantity of merchandise llian was agreed 
 tor, as the quantity agreed, though knowing it was not the due 
 quantity, and with an intent to defraud the vendee, is not indicta- 
 ble; as whore sixteen gallons of beer were sold as eighteen gallons, R'jx v. 
 and ttie price of it received as for eighteen gallons : nor even 2 uurr. 1125. 
 where vessels of ale containing loss than the true measure were J, 1 ^ *j Wurrl 
 marked as containing the true measure, and were sold as such, nso.' 
 Nor where one commodity is fraudulently sold as another. So, a ** s> ^ tc(] 
 where the defendant pretending that he wanted to purchase some o^'' 1 ? 2 ?; 
 lottery tickets, the property of A,, delivered him a fictitious order siv-. 
 on a banker for the amount, which he knew he had no authority to ^-p. K.Vs" 8 ' 
 draw, and that it would not be paid, by which means he obtained 
 possession of the tickets : this was held not to be indictable. 
 
 So where A. had a judgment against B. and B. on pretence that Th? people 
 he would immediately pay part of the amount of the judgment ^^^p. 
 in cash, and give his note for the residue, and under pretence that 201. 
 he had the money in his pocket, obtained a discharge of the judg- 
 ment from A., which he carried oft* without paying the money or 
 giving the note ; for which he was indicted, but the judgment was 
 arrested. 
 
 Per curiam. In the present case we search in vain for the 
 false token. There was nothing beyond the defendant's false as- 
 sertion that he was ready to pay the judgment. Then} was not 
 evun the production of either note or money, and common pru- 
 dence would have dictated the withholding of the receipt until 
 the money was paid and the note drawn. To support thi* in- 
 dictment would be to overset established principles. 
 
 II. By statute. 
 
 From the preceding observations, it, ia obvious that a great 2Fjs*. v. c. 
 number of the frauds which may be committed on the ignorant 8SI M * 
 and unwary, are not punishable at common law, as it is confined 
 lo those cases merely where the deceit is of a kind calculated to 
 injure the public in general, and does not reach those frauds, the 
 operation of which can extend no farther than the individuals 
 affected by them. This defect is, however, amply supplied by 
 statute, sess. 2*. c. 58. s. 3. embracing a class of cases in which 
 the common law is silent. It must, however, be remembered, that 
 it does not include cheats at common law ; in which cases it 
 would be improper to proceed by indictment under the statute. 
 
 Every person who "shall knowingly and designedly, by false 
 pretence, obtain from any utbcr person any money, goods, or 
 chattels, or other effects whatsoever, with intent to cheat or de- 
 fraud any person or body politic or corporate," shall be punished 
 by fine and imprisonment, or either. Sess. 36. c. 2<). s. 13. 1 11. 
 L. 410. 
 
 Mr. East, speaking of tho stit. 30 Gen. 2. c. 24. which is similar 2 e. c. 42*. 
 to our act, observes, that the term "/a/ae pretences" is of great
 
 70 
 
 latitude, and was used to protect the weaker part of mankind, 
 because all were not equally prudent ; itseems difficult, therefore, 
 to restrain the interpretation of it to such false pretences only, 
 against which ordinary prudencR cannot he supposed sufficient to 
 guard. But still it may he a question whether the statute in- 
 tends to every false pretence, either absurd or irrational upon the 
 face of it, or such as the party has at the very time the means of 
 detecting at hand : or whether the words, which are general, shall 
 he construed co-extensively with the cheat actually effected by 
 means of the false pretence used. These may perhaps be mat- 
 ters proper for the consideration of the jury, with the advice of 
 the court, and I will not attempt to draw any precise line on the 
 subject. 
 
 Yv " T1 v. T - riiv - T' le defendants were indicted for obtaining money, under pre- 
 ss. ' ' ' tence of a bet having been made on a race to be run the next day, 
 from K. and contributed by him as a part of the bet, which 
 was pretended to have been made up by the defendants. They 
 were found guilty, and the judgment was affirmed on error in the 
 king's bench. Per BULLER, J. The ingredients of this office 
 are the obtaining money by false pretences, and with an intent to 
 defraud. Barely asking another for a sum of money is not suiB- 
 cient ; but some pretence must be used, and that pretence false ; 
 and the intent is necessary to constitute the crime. If the intent 
 be made out, and the false pretence used in order to effect it, it 
 brings the case within this statute. 
 
 Wtcli-irs So where a workman, being employed to keep an account of 
 
 p'/c. 33<\ S ' the number of men employed in a certain business, and of the 
 amount of their earning, which he delivered weekly, and was paid 
 the amount, delivered an account of men who had not been em- 
 ployed, as having earned different sums of money, and false ac- 
 counts of the work of those who were employed, whereby he ob- 
 tained a larger sum than was due, 
 
 e.xv. Airey, So where a common carrier, on pretence of having delivered 
 a^East, Rep. goo( j s to the bailee, and taken a receipt from him, which he had lost 
 or mislaid, obtained money from the person, of whom he had re 
 ceived the goods, for the carriage. 
 
 COIN. 
 
 <: If any person shall counterfeit, or cause or procure to be 
 counterfeited, or aid or assist in counterfeiting any of the species 
 of gold or silver coins now current, or hereafter to be current in 
 this state, or shall pass or give in payment, or offer to pass or give 
 in payment the same, knowing the same to be counterfeited, then 
 every such person, being thereof convicted according to the due 
 course of law, shall he defined guilty of felony." Scss. 36. c. 
 44. s.5. : R. L. 405.
 
 COMMITMENT. 
 
 ' : If any person shall have in his possession, or receive from 
 any other person, any counterfeit gold or silver coins now current, 
 or hereafter to he current in this state, with intention to utter or 
 pass the same, or to permit, cause, or procure the same to he ut- 
 tered or passed, with intention to defraud any person or body 
 politic or corporate whatever, knowing the same to he counter- 
 feited, then every such person, being thereof convicted, shall be 
 deemed guilty of felony." s. (j. 
 
 Offenders under the 5th section of this act are punishable with 
 imprisonment for life in the state prison ; and under the next sec- 
 tion, with r imprisonment in the state prison for a term not ex- 
 ceeding seven years. Seas. 36. c. 29. s. 3. 8. I R. L. 408. f). 
 
 COMMITMENT. 
 
 I. Wlto may le committed. 
 
 II. To what place. 
 
 III. Form of ike commitment, 
 
 IV. Charges of the commitment. 
 V. Commitment discharged. 
 
 I. W ho may be committed. 
 
 There is no doubt but that persons apprebended for offences 2I * a " 
 which are not bailable, and also all persons who neglect to offer 
 bail for offences which are bailable, must be committed. And it 
 is said, that wheresoever a justice of the peace is empowered by 
 any statute to bind a person over, or to cause him to do a certain 
 thing, ai>d such person, being in his presence, shall refuse to bf, 
 bound, or to do such thing, the justice may commit him to the 
 gaol, to remain there till he shall comply. 
 
 The justice has power, on examination of a charge of suspicion Srcorv. T 
 of felony, or of having stolen goods, to dismiss the party, if he be K^P.' 2<?. h 
 satisfied that there is no ground for the suspicion; or if the fact aH i< - . P. 
 charged as a felony be in truth no felony in point of law, the jus- 
 lice may discharge him ; as if a man be charged with felony for 
 stealing what, is parcel of the freehold, or for carrying away what, 
 was delivered him, and such like, for which, though there may 
 be cause to bind him over as for a trespass, the justice may dis- 
 charge him as to felony, because it is not felony. But if a man 
 kill another by misadventure, or in self defence, or if a man be 
 killed in making an assault upon a minister of justice, none of 
 which are felony, yet the person who has committed the homi- 
 cide ought not to be discharged, for he must undergo his trial for 
 it ; and, therefore, he must be committed, or at least bailed. And 
 if a prisoner be brought before a justice of the peace, expressly 
 charged with felony on oath, he cannot discharge him, but must
 
 72 COMMITMENT. 
 
 hail him, or commit him, if the case he one in which the law 
 not allow hail, or docs not permit it to he taken !>y a justice. 
 Palt.c. 170. Commitment by justices of the peace in almo.-t all cases (ex- 
 cept for the peace, good behaviour, felony, or higher offences) is 
 but to retain the party until he has paid a fine; and iherefore, ii' 
 he offer to pay it, or find sureties by recognisance to pay it, he 
 ought not to be committed, but should be discharged immedi- 
 ately. 
 
 II. To u-Jt at place. 
 
 Felons are to be committed to gaol until trial, except in the 
 city and county of New-York, where they are to be committed 
 to the city prison, or bridewell. 
 
 Se<=t. 11 <?..-]. Disorderly persons are to be committed to the bridewell, or 
 ??..-. iR.L. nousc of correction ; and in those counties in which there is no 
 bridewell or house of correction, the gaol shall be considered and 
 used as such. 
 
 Halt. c. 170. Generally', if a man commit felony in one county, and be ar- 
 rested for the same in another county, he shall be committed to 
 gaol in the county where he is taken. But if a man, having beeu 
 arrested, escape, and is taken on fresh suit in another county, 
 he may be carried back to the county where he was first taken. 
 Se. 24 c. 3i. Where a person is taken on an endorsed warrant, if his offence 
 no. " he not bailable, or he shall not give satisfactory bail, he is to be 
 
 conveyed to a justice of the peace of the county where the offence 
 w r as committed. 
 
 III. Form of the commitment. 
 
 sHawk.c.is. It must be in writing, under the hand and seal of the person by 
 i2* 3 f ill-' w ' ioin it is made, and expressing his office or authority, though 
 47?. this is not always necessary, for the seal and subscription of the 
 
 justice to the mittimus is sufficient direction to the gaoler, and 
 the time and place at which it is made, and must be directed to 
 the gaoler or the keeper of the prison. It should likewise con- 
 tain the name and surname of the party committed, if known; if 
 not known, then it may be sufficient to describe the person by 
 his age, stature, complexion, colour of his hair, and the like, and 
 to add, that he refuses to teli his name. 
 
 7 East, 536. But by the commitments here spoken of, are meant commitments 
 to the custody of sheriffs, gaolers, fee. For it cannot be doubt- 
 ed but that a magistrate might, by parol, order an offender to be 
 detained in custody until he could make out his warrant of com- 
 mitment. So a magistrate, in the case of a breach of the peace 
 within his view, might instantly order the offender to be taken in 
 to custody. 
 
 * Y*'*2 Ha\' ^' ie comm ' tment ought to set forth the crime alleged against 
 U2. ' the party with certainty ; otherwise the officer is not punishable
 
 COMMITMENT. 7$ 
 
 by reason of such mittimus, for suffering the party to escape, and 
 the court before whom he is removed by habeas corpus, will dis- 
 t; or bail him : and this holds not only \v here no cause at all 
 is expressed hi the commitment, but ;dso \viiV.re it is so loosely 
 set forth tiiatthe court cannot judge whether it weie < reasonable 
 ground of imprisonment. Thus, the i-uir.mitment ought not to 
 fce /or /dony generally, but it. must brirlly se.t forth the special 
 nature . ' ny, &a, for felongjbr the dcnili of J. S. t or f r >r bur- 
 
 g!'" , ; c- itf J. <S*. 
 
 i.icularit} does not make the commit- 1 Hale, 534. 
 merit ,i>.sol;n>iy void, so as to subject the gaoler to false iuiprison- 
 if an action should be brought against him, he may ex- 
 '.''r-y .-uvrri.jg that the commitment was for felony. 
 
 :;try that the act should be charged in the warrant ^"-rVm iu^' 
 i nitriient to have been done feloniously ; it is sufficient if, 235. 
 on the facts stated, ii clearly appear that the act was feloniously 
 committed. 
 
 A commitment in execution must be preceded by a conviction, ^o^T'rlrm 
 and the mi'tinns must state that the defendant was convicted of Rep. sog. 
 
 io him ; merely to state that he was charged 
 with it is insuiiicient, and the party may be discharged on habeas 
 cor: 
 
 Where a party is committed in execution after conviction be- ^e\ v. York, 
 fore a justice, the warrant of commitment must show before 
 whom the conviction was, and the authority to convict : as where 
 the commitment was in these words : " Receive into your custody 
 the bodies of, fcc. brought before me by W. M. and other consta- 
 bles, and convicted upon the oath of W. H. for being loose, idle, 
 disorderly persons, fee.;" which was returned to a habeas cor- 
 pus, it was adjudged insufficient, and the prisoners were dis- 
 charged. 
 
 A commitment, setting out the. character in which the prisoner Rex v. Ever- 
 is committed in the disjunctive, is bad: as where an apprentice ^> Caldecott i 
 was committed for running away from his master, and the com- 
 mitment ran thus : " As an apprentice or servant, for disobeying 
 his indentures or articles." 
 
 It is safe to set forth that the party is charged upon oath ; yet 2 Hawk. c.i6., 
 this is not necessary. Abr 7 6ii Ba io 
 
 But by the fourth article of the amendments to the constitution Johns. Rep. 
 of the United States, it is declared, that no warrant shall issue, 
 but upon probable cause, supported by oath or affirmation. And 
 the supreme court of the United States, in the case ex parte Bur- 3 cran.448, 
 ford, decided that a warrant of commitment is illegal if it does 
 not state some good cause certain, supported by oath. 
 
 Every such mittimus ought to have a lawful conclusion, viz. if 2Hawk.c.ie. 
 he be committed as a criminal, until he be delivered by due course s> 18 ' 
 of law ; if he be committed for contumacy, it should be until he 
 comply; and if the party be committed only for want of bail, it 
 seems to be a good conclusion of the commitment, that ha be kept 
 
 [ 10]
 
 *. 
 
 COMMITMENT. 
 
 till he find bail : but a commitment till the person who makes it 
 shall take further order, seems not to be good ; and it seems that 
 the party committed by such, or any other irregular mittimus, 
 may be bailed. See further, I R. L. 1 15. and infra. 
 
 A commitment generally, to prison, not specifying what gaol, 
 or directed to any particular gaoler, is bad. 
 
 earth. 152. A commitment grounded on a statute ought to be conformable 
 to the method prescribed in it; as where the churchwardens of 
 Northampton were committed on the 43 Eliz. c. '2. and the war- 
 rant concluded in the common form, viz. until they be duly dis- 
 charged according to law ; but the statute appointed that the 
 party should there remain until he should account ; for want of 
 such conclusion they were discharged. 
 
 3 Burr. 1636. A commitment of a man as a rogue and a vagabond, under 17 
 Geo. II. c. 5. s. 7. (see sess. 1 I.e. 3J.s. 1. 1 R. L. 114.) for run- 
 ning away and leaving his wife and children to be maintained by the 
 parish, there to remain until he shall be discharge*! according to 
 the laws and customs of this realm, was holden to be bad, because 
 it did not contain a direct allegation that the wife and children 
 were chargeable, and because the commitment directed by the 
 statute is for a limited time, whereas this was indefinite. 
 
 i Trrm Rep. ^he legislature having given magistrates a power of examin-' 
 
 653. ing a pauper touching his settlement, it seems that they must ne- 
 
 cessarily have, as incidental to such power, a power of committing 
 to prison, in case ,of his refusal to answer their questions ; if so, 
 a commitment, until he shall ansicer, is good. 
 
 i Hale, 534. An omission to specify the kind of felony in the warrant seems 
 not to render it absolutely void, so as to subject the gaoler to an 
 action of false imprisonment ; but he need not receive a prisoner 
 on such warrant. Yet if he do receive him, and is acquainted what 
 the crime is, and suffer the prisoner to escape, it is felony. 
 
 Though the warrant of commitment be informal, yet if upon 
 the depositions returned with the habeas corpus, the court see that 
 a felony has been committed, and that there is a reasonable 
 ground of charge against the prisoner, they will not bail, but re- 
 mand him. 
 
 Where an offender is committed to the bridewell, or house of 
 correction, by any justice or justices, for offences cognisable be- 
 fore them, out of the general sessions of the peace, and where 
 tin; time and manner of their punishment is not directed or li- 
 mited by law, it is enacted, " that where any offenders shall be 
 committed, as aforesaid, by virtue of any law now in being, or 
 hereafter to be made, other than in cases of petit larceny, and 
 the time and mannerof their punishment is not expressly limited, 
 directed, and apppointed, the said justice or justices shall com- 
 mit such offender to the bridewell, or house of correction, there 
 fn bo. kept to hard labour until the next general sessions of the 
 peace, or until discharged by a dut course of law ; and it shall 
 3*ind may b lawful for two juvijes, of whom the justice wha
 
 COMMITMENT. 75 
 
 committed such offender to he one, to discharge such offender 
 before the said general sessions of the peace, if they shall see 
 cause ; find if he or she shall not be, so discharged, the said gene- 
 ral sessions of the peace may either discharge him or her, or 
 continue him or her in custody, for such time as they shall see fit, 
 not exceeding six months." Sess. IJ.c. 31. s. 2. 1 H. L. 111. 
 
 IV. Charges of the commitment. 
 
 " Every person who shall he lawfully committed to the com- 
 mon gaol in any city or county of this state, for any crime or 
 misdemeanour, having means thereto, shall hear his or her own 
 reasonable charges for conveying him or her to the said gaol, and 
 the charges also of such as shall be appointed to guard him or 
 her to the said gaol, and shall guard him or her thither. And if 
 any such person, so to be committed as aforesaid, shall refuse at 
 the time of his or her commitment, and sending to the said gaol, 
 to defray the said charges, or shall not then pay or bear the same, 
 then any justice of the peace of the county shall, by writing 
 under his hand and seal, after conviction of the person so com- 
 mitted, give warrant to any constable of the town where such 
 person so committed shall inhabit, or where he shall have any 
 goods within the same city or county, to levy, by distress and sale 
 of the goods and chattels of the said person so to be committed, 
 so much money as, by the discretion of the said justice, shall pay 
 the charges of his or her conveying and sending to gaol; and 
 when any person, not having goods or money within the city or 
 county where he or she shall be taken, sufficient to bear the 
 charges of himself or herself, and of those who convey him or 
 hut, is lawfully committed to gaol, then on application by any 
 constable or other officer, who conveyed him or her to gaol as 
 aforesaid, to any justice of the peace for the same city or county, 
 the justice shall, upon oath, examine into and ascertain the rea- 
 sonable allowances to be made to such constable or other officer, 
 both for his expenses and trouble ; the said allowance for trouble 
 not to exceed six cents for each mile that he shall travel to con- 
 vey the said offender to gaol as aforesaid ; and the said justice 
 shall forthwith, without fee or reward, by warrant under his hand 
 and seal, order the treasurer of the city or county to pay the same, 
 which the said treasurer is hereby required to do as soon as he 
 receives such warrant, and shall have monies in his hands." Sess. 
 30. c. 8. s. 15. 1 ILL. 497. 
 
 V. Commitment discharged. 
 
 person legally committed fora crime, certainly appearing to 2 iia ,-;.. 
 
 been done by some one or other, cannot be lawfully dis- l6 - '' 
 e&arged til! ho be acquitted on his trial, or have an ignoramus 
 found by the grand jury, or none to prosecute him nn a prorla- 
 
 A 
 
 have
 
 76 CONSPIRACY. 
 
 mation for that purpose by the justices of gaol delivery. Cut it a 
 person be committed on a bare suspicion, without any indictment, 
 for a supposed crime, where afterwards it appears that there w as 
 none, as for the murder of a person thought to be dead, who af- 
 terwards is found to be alive; it has been holden that he may 
 safely be dismissed without any farther proceeding, for that he 
 who suffers him to escape is properly punishable only as an ac- 
 cessory to his supposed offence ; and it is impossible that there, 
 should be an accessory where there can be no principal ; and it 
 would be hard to punish one for a contempt in disregarding a 
 commitment founded on a suspicion, appearing in so uncontested 
 a manner to be groundless. 
 
 CONSPIRACY. 
 
 i Hawk. c. All confederacies whatsoever, wrongfully to prejudice a third 
 
 iz. s. 2. person, or the community, are highly criminal at common law; as 
 where divers persons confederate together by indirect mean- to 
 
 The People impoverish a third person, to defraud him of his money, fal-ely 
 
 Johm^c'ases^ ant ^ maliciously to charge him with being the reputed father of a 
 
 3io- bastard child, or to maintain one another in any matter, whether 
 
 itcxv.R-.spai it he true or false, or to injure a man by charging him with, a 
 
 ' crime, or where several persons, in order to obtain the r. 
 
 case, Foster, un der an English act of parliament for apprehending highway- 
 
 men, agree that one of them shall procure a man to rob ;> 
 3 Burr. 1321. of them, which is accordingly done : and every conspiracy is a 
 TCI* 13 East trespass, and tends to a breach of the peace. But a mere, agree- 
 22s! ' mt'nt to commit a civil trespass, as to go on the lands of ne- 
 
 ther, does not amount to a conspiracy. 
 
 By statute, sess. 24. c. 87. s. 3. " all persons who confederate 
 
 by oath, agreement, or other alliance, falsely and maliciously to 
 
 indict, or cause to be indicted, any person, or falsely to move 
 
 and maintain any plea or suit, shall be adjudged conspirators." 
 
 1 R. L. 173. 
 
 i Hawk. c. Not less than two persons can be guilty of a conspiracy ; but 
 ".Johns l ^ e conv i c tion of two persons is not requisite to constitute the 
 Cases, 318. crime of conspiracy, for if one conspirator die before conviction, 
 
 or indictment, the other may be convicted. 
 i Str. 144. Persons acting with one intent, and for a common purpose, 
 
 although not more than one be present at any single act, may be 
 
 guilty of a conspiracy. 
 4_ BI. Com. Conspirators are punishable by fine and imprisonment, and the 
 
 party injured is likewise entitled to an action for damages.
 
 CONSTABLE. 77 
 
 CONSTABLE. 
 
 I. How chosen and sworn. 
 II. His duties and power. 
 If!. His indemnity and protection in Iris cjjlce. 
 IV. HisftGs. 
 
 I. How chosen and sicorn. 
 
 The constitution of the state of Wew-York, s. 29. declares, 
 : tha' rn'.v.i clerks, supervisors, assessors, constables, and collec- 
 tors and all oilier officers heretofore eligible by the people, shall 
 always continue to be so eligible, in the manner directed by the 
 present or future acts of the legislature." 
 
 As many constables as shall seem necessary and convenient to 
 
 the inhabitants of each town, or the major part of them, shall be 
 
 chosen at the amuuu town meeting ; and in case of a constable's 
 
 refusing to serve, or death, or removing from the town, or becom- 
 
 apable of serving, the vacancy may be supplied by a spe- 
 
 lei'ting. If within fifteen (lays next after such refusal, 
 
 .!. or incapacity, no other shall be chosen by the 
 
 any three justices of the peace of the county, residing in or 
 
 he town, may supply the vacancy. 
 
 .;st be inhabitants of the towns for which they are 
 3o. c. 35. s. 1.5. 1 R. L. J'_>5. 
 
 Every constable must take and sui.-scrihe the following oath, 
 
 he enters on the execution of his office, within fifteen days 
 
 after his appointment, before a justice of the peace: "/ dn 
 
 . :;>d sincerely swear, or affirm, that I will in all things, to 
 
 'ge, understanding, and ability, well andfailh- 
 
 '?. and perform the trust reposed in me, as a constable of 
 
 the (here insert the name of the place,) in the county of (here in- 
 
 seri flit-, name of the county.)" The justice is then to deliver 
 
 t!ie riui, and a certificate of the time when taken, to the con- 
 
 sta '!.', who, within eight day r s thereafter, must transmit or deliver 
 
 the same to the clerk of the town. s. 7. 
 
 Every constable, "shall, before he enters upon the duties of 
 his office, and within ten days after his election, or appointment, 
 to be approved of by the town clerk, or by the supervisor of the 
 town or ward, execute under their hands and seals, before such 
 supervisor or town clerk, and cause to be filed in the office of the 
 clerk of such town, an instrument in writing-, by which such con- 
 stable, and his sureties, shall jointly and severally agree to pay to 
 each and every person, such sum of money as the said constable 
 shall become liable to pay, for, or on account of any execution 
 which shall be delivered to such constable for collection; and on 
 which instrument the said town clerk, or supervisor, of such town 
 or ward, shall endorse, that he approves of the sureties therein
 
 78 CONSTABLE. 
 
 named ; and every such constable, and his sureties, shall joint! j 
 and severally be responsible to each and every person to whom 
 such constable shall become liable, to pay any sum of uioney for, 
 or on account of, any execution which shall be delivered to such 
 constable for collection, in the same manner as such constable 
 would have been responsible had this act not been passed ; and a 
 copy of such instrument certified by the clerk of such town, 
 shall be prima facie evidence, in all courts, of the execution of 
 such instrument by such constable and his sureties." Sess. 30. 
 c. 3*. s. 1. 2 R. L" 126. 
 
 If any person elected constable shall refuse to take upon him 
 or to serve in such office, and if he shall not take and subscribe 
 the oath appointed, and deliver it to the town clerk within the 
 time limited, or shall not give the security required within the 
 time limited, it shall be deemed a refusal to serve, in which cases, 
 as also for proceeding in the execution of his office without giving 
 the security required, he shall forfeit the sum of sixty-two dollars 
 and fifty cents, s. 9. 
 
 All suits or actions, on any bond executed by any constable 
 nnd his sureties, for the faithful performance of the duty of his 
 office, shall be prosecuted within two years after the expiration 
 of the year for which such constable shall be elected. Sess. 
 .36. c, 203. s. 23. 2 R. L. 137. 
 
 II. His duties and power. 
 
 Every constable is, by common law, a conservator of the peace 
 within his limits. See more particularly on this subject, AF- 
 FRAY, III. 
 
 Kac. AW. As the constable h the proper officer to a justice of the peace, 
 he is bound to execute his warrants. Hence it has been resolved, 
 that where a statute authorizes a justice of the peace to convict a 
 man of a crime", and to levy the penalty by warrant of distress, 
 without saying to whom such warrant shall be directed, or by 
 whom it shall be executed, the constable is the proper officer to 
 serve such warrant, and is indictable for disobeying it. 
 
 ibid. Yet inasmuch as the office of constable is wholly ministerial, 
 
 and no ways judicial, it seems that he may appoint a deputy to 
 execute a warrant directed to him, where, by reason of sickness, 
 absence, or otherwise, he cannot do it himself : but without some 
 such special cause a constable cannot make a deputy. 
 
 4 El. Com. A constable may, without warrant, arrest any one for a breach 
 292. 2Es?. of the peace committed in his view, and carry him before a jus- 
 tice of the peace. And in case of felony actually committed, or 
 a dangerous wounding whereby felony is like to ensue, he may, 
 upon probable suspicion, arrest the felon ; and for that purpose is 
 authorized (as upon a justice's warrant) to break open doors, and 
 even to kill the felon if lie cannot otherwise be taken ; and if he 
 or his assistants be killed in attempting such arrests, it ismunVr 
 in all concerned.
 
 CONSTABLE. 7<J 
 
 If a constable has notice that a burglary has been committed, cro.Eiiz.652 
 it is his duty to pursue the felon immediately, though in the. 
 night. 
 
 If a constable or a private person see a person expose an infant s Hawk. c. 
 in the street, who refuses to take it away, he may lawfully detain Bac. S Abi 9 .688* 
 and apprehend such person till he or she shall consent to take 
 care of it. 
 
 Constables are required to aid and obey inspectors of elections 2R. L. zse. 
 ia committing disorderly persons. 
 
 III. His indemnity arid protection in his office, 
 
 Constables are justifiable in arresting persons directly charged Doug. 359. 
 with felony, although it should appear that no felony had been 
 committed. And where a felony hath actually been committed, Cald. 291. 
 they are justified in making an arrest, provided they act bona 
 fde, and in pursuit of the offender, upon such information as 
 amounts to a reasonable and probable ground of suspicion. In 
 this case, indeed, a private person may arrest, ihoughjiot in the 
 former. 
 
 A constable cannot justify any arrest by force of a warrant 2 Hawk. c. 
 from a justice of peace, which expressly appears on the face of 
 it to be for an offence whereof a justice of the peace has no 
 jurisdiction, or to bring the party before him at a place out 
 of the county for which he is. a justice. But any constable to 
 whom a warrant shall be directed from a justice of the peace, 
 to arrest a particular person for felony, or any other misde- 
 meanour within his jurisdiction, may lawfully execute it, whe- 
 ther the person mentioned in it be in truth guilty or innocent, and 
 whether any felony were in truth committed or not ;* for, however 
 the justice may himself be punishable for granting such a warrant 
 without sufficient grounds, it is reasonable that he alone be an- 
 swerable for it, and not the officer, who is not to examine or 
 dispute the reasonableness of his proceeding. 
 
 So if a constable seize goods in obedience to a warrant, he is 2 BOS. fcrni. 
 protected, whether the warrant be legal or not ; or if he direct 153- 
 the seizure of stolen goods, and the goods seized turn out 
 not to be stolen. 
 
 A constable appointed by three justices may justify under 
 the appointment for acts done by him as constable, although the 
 appointment may have been improperly made ; and its validity 
 cannot be questioned in an action against the constable. In 
 Wood v. Peake, the court said, this appointment is a judicial act, s j Uns.R*j. 
 
 * So a constable may execute a mittimus, from a special sessions, 
 stating the conviction ta have been in a case in which they Lave jurisdic- 
 tion, and the warrant being regular, although the? cwuvi' 'li>;u \v-i- 
 neous. 10 Johns. Ref. 138.
 
 SO CONSTABLE. 
 
 for the justices must first determine and adjudge that there is a 
 vacancy in the office, and that the town neglected to till it uj>. 
 It is not traversable in such a collateral action. The appoint- 
 ment remains valid until it be set aside or quashed in the regular 
 course upon certiorari. It is certainly sufficient to justify the 
 countable. He comes to the office by an appointment, regular 
 according to the forms of law, and made by a tribunal I 
 jurisdiction in the case, and he is bound to accept under a 
 penalty. He is not to inquire, at his perH, into the validity of 
 the act. It is sufficient that three justices have authority to make 
 such an appointment in the given case. It would be intole- 
 rably oppressive to place the constable in the dilemma of sub- 
 jecting himself to a grievous penalty if he refuses, or cf being 
 prosecuted for trespass it' he accepts. If two j'jstk'c-s only 
 should appoint him, it would then be a case in which no jurisdic- 
 tion existed, and the appointment would be null and void. The 
 distinction in the books is between cases where the authority 
 proceeds from a source possessing jurisdiction over the subject 
 matter, and from one that does not. The ministerial officer can 
 justify in one case and not in the other. 
 
 If a constable be sued for any thing done in the execution of 
 his ol'ice, he and all who assist him may plead the genen'l issue 
 not guilty, and give the special matter in evidence ; and on a 
 verdict for the defendant, or on the plaintiff's becoming n 
 or discontinuing, he shall have double costs. And the action ran 
 be laid only in the county where the fact was cpmmitted ; for if 
 the plaintiff shall not prove the cause of action in the county 
 where laid, the jury shall find the defendant not guilty. Sess. 24. 
 c. 47. s. 1. 1 R. L. 155. 
 
 i Bae. Abr. Where the constable is not acting in the execution of his office, 
 1742. s fcast or does not pursue the directions of the warrant, this act docs 
 p. t. 233. no t protect him. 
 
 Hogmv. \Vhere a constable executes a warrant in an unreasonable 
 
 Brewtter, 
 
 s Johns. Uep. and oppressive manner, and with the avowed and malicious de- 
 sign to vex and oppress the party, an action will lie against him. 
 As where a constable had a warrant to levy a fine, and refused 
 to take the property which the plaintiff" tendered him, but took 
 his horse, with the avowed intent of hurting his feelings, it was 
 held that an actiort on the case might be maintained. 
 
 4 H.p. so. S if the constable make himself a party in oppressing a per- 
 
 son committed to his custody, he will be liable. 
 
 IV. His fees. 
 
 By the act regulating fees, (sess. 36. c. 83. 2 R. I.. 27.) the 
 following fees are allowed a constable : 
 For serving a warrant, nineteen cents. 
 Serving a summons, twelve and a half cents.
 
 CONVICTION. 81 
 
 . m;: ;i warrant of distress for rent, one dollar and fifty cents j 
 making an inveniory on such distress, -md draft of notice, and as 
 many copies as m.-iy I'e necessary, one dollar; travelling fees, per 
 mile, six cents; fees for levying and selling, for each dollar, two 
 cents, or levying only, for each dollar, one cent ; provided that this 
 shall nut extend tu the city of A*e?/'- York. 
 
 Mileage for every mile, going only, eight cents. 
 
 Levying a fine or penalty, to the amount of two dollars and 
 fifty cents, or under, twelve and a half cents, and on all sums 
 above two dollars and fifty cents, at the rate of twelve and a 
 half cents on every two dollars and fifty cents. 
 
 Taking a defendant into custody on a mittimus, twelve and a 
 half cents. 
 
 Conveying a person to gaol, twelve and a half cents, if within 
 one mile, and for every mile more, going only, six cents. 
 
 CONVICTION. 
 
 The power of a justice of the peace to convict an offender in a i Burns' Just, 
 summary way, without a trial by jury, is in restraint of the com- 604> 50i< 
 mon law, and nothing shall he presumed in favour of this branch 
 of the office of a justice of the peace ; but the intendment will be 
 against it. For which reason, where this special power is given 
 to a justice of the peace by statute, it must appear that he has 
 strictly pursued it, otherwise the common law will break in upon 
 him, and level all his proceedings. So that where a trial by 
 jury is dispensed with, he must nevertheless proceed according 
 to the course of the common law in trials by jury, and consider 
 himself only as constituted in the place both of judge and jury. 
 Therefore there must be an information or charge against a 
 person ; then he must be summoned, or have notice of such 
 charge, and have an opportunity to make his defence ; and the 
 evidence against him must be such as the common law approves 
 of, unless the statute specially direct otherwise ; then if the person 
 be found guilty, there must be a conviction, judgment, and execu- 
 tion, all according to the course of the common law, directed 
 and influenced by the special authority given by statute ; and in 
 the conclusion, there must be a record of the whole proceedings, 
 \\hereinthe justice must set forth the particular manner and cir- 
 cumstances, so that if he should be called to account for the 
 same by thn supreme court, it may appear that he has conformed 
 to the law, and not exceeded the bounds prescribed to his juris- 
 diction. 
 
 A conviction (in the sense in which it is here used) is a record 
 of the, summary proceedings upon any penal statute, before one 
 or more justices of the peace, or other persons duly authorized, 
 in a case where the offender has been convicted and sentenced. 
 
 [ U 1
 
 ;,J CONVICTION. 
 
 The following observations on the form of a record nf ronvu'tim.' 
 are principally intended for those cases in which no directions art; 
 . by the statute, authorizing this mode of proceeding, in the 
 {/articular instance. 
 
 ust. Where the conviction proceeds on the information of some per- 
 
 s Mud. 309. son, and not on the justice's own knowledge, that information should 
 
 ^lia^t, 195. b e se t forth, stating the day when it was taken, that it may appear 
 
 to have been given within the time limited by law; the* place 
 
 where it was taken, that it may appear that the justice was acting 
 
 within the limits of his jurisdiction ; the name of the justice or 
 
 justices to whom it was given ; and if directed to be taken on oath, 
 
 it should be stated to be so taken. 
 
 1 Ld. Raym. The facts by which the information is supported must have 
 5ii. s Mod. arisen before the information was given ; for if they appear to bo 
 'Is s'lli^ssl subsequent to the information, the conviction will be quashed. 
 -.73.2Str.90o. The time of committing the offence must likewise be stated, for 
 
 the same reason as the time of giving the information, that from 
 the day of the offence, and the day of commencing the prose- 
 cution, it may appear that it w^as commenced in due time, and 
 also, that the party may be enabled to defend himself against a 
 second charge. But the offence need not be proved to have been 
 committed precisely on the day alleged : and it has been held, 
 that it was sufficient to state that it was done between such and 
 such a time. 
 
 2 i.d. Ksym. The information must state the place where the offence was 
 mo. i I.R. committee!, that it may appear to have arisen within the jurisdic- 
 tion of the justice : and it must be proved to have been commit- 
 ted in the place laid in the information, for wherever the jurisdic- 
 tion of the magistrates, who try the offence, is local, the offence 
 must be proved to have been committed within their jurisdiction. 
 
 i Ld. R.iym. The particular manner in which the offence was committed 
 SRI. 2 Ld. 1Tlus t be set forth and described in the manner directed by the 
 
 Kaym. 13o3. .... 
 
 i sw. 497. act creating it an offence, that it may appear to come within its 
 
 080. 
 
 provisions. 
 
 1AV Whenever a statute inflicts a penalty for an offence created by 
 
 Saund. 262. it upon conviction before one or more justices of the peace, (but 
 
 497.* 2 Ld^ there is an exception in the enacting clause of persons under par- 
 
 Raym. 13B6. ticular circumstances,) it is necessary to state, in the information, 
 
 that the defendant is not within any of the exceptions. And it 
 
 seems immaterial, whether tiie exception be in the same section, 
 
 1 stress' or a preceding section, or in a preceding act, referred to by the 
 
 2Str. noi. enacting clause. 
 
 3f Tjohnil But where the exemption is contained under a proviso, it is 
 Rep. 306. matter of defence, and, therefore, it is not necessary to state in the 
 Saum!'.* '2*2. conviction that the defendant is not within such proviso. 
 i- i- i Bums' n ; B a fundamental rule, that the party should be summoned 
 '/s'lik. iVr. before ,hc is convicted. But the defendant's appearance will, in 
 'Jo's, "sn"' t ' 1 ' is rnr "': ;ls '" other cases of process, cure not ouly all u< 
 f.:c. lEast, ai ;'j ; thf summons, but also the want of a
 
 CONVICTION. 83 
 
 if the party, on being summoned, do not appear, proof having 
 made on oath of the service of the summons, the justice 
 may proceed to convict him, for ho will not be allowed by his 
 own default to escape the penalty of the law. 
 
 The information should be. read to the defendant, and he should 2Term Rep. 
 !>e put to plead thereto, that is, either to confess or deny it, before 22 * 
 the justice proceeds to hear evidence in its support. 
 
 The defendant's confession of the charge before the justice is 
 the strongest evidence of the offence. For though a statute saunT.^i. 
 should direct a conviction to be " upon the oath of one or two credi- n - l - 
 ble witnesses," without adding, " or by confession of the offend- 
 er," yet conviction, upon his confession before the justice, has 
 been held sufficient ; and, what is still stronger, it has been held, 
 that a confession made to others, and not to the justice, if proved i Term Rep. 
 by such persons to his satisfaction, in the presence of the defend- 
 ant, will be sufficient evidence to convict. Where the defendant 
 confesses Ihe charge, it seems to be sufficient only to state in the 
 conviction the information, the defendant's appearance, the con- 
 fession, and adjudication. 
 
 But a confession will extend no further than to the facts charg- iBurr. eon. 
 ed in the information ; therefore, if the offence be not brought by 
 the information within the act upon which the conviction is found- 
 ed, the defendant's confession will not make the conviction good. 
 
 The informer, where he receives part of the penalty, cannot be i Wms. 
 a witness. For Avhich reason it is requisite to name the witness in n^"!"^ Ld~. 
 the conviction, that it may appear that he is not the same person Raym. 1545. 
 w ifli the informer. Andr. 18.240. 
 
 It is essential that the evidence should be given in the presence 2Bi;rr 1103. 
 of the defendant, that he may have an opportunity of cross ex- n 5 " m 
 amining the witnesses ; and it must appear, on the face of the 2 Term Rep< 
 conviction, that the evidence was so given. But if it appear on ' 2 ^ erm R 
 the conviction that the evidence was given on the same day that 18 - 
 the defendant appeared and pleaded, the court will presume that i4s. enr 
 it was given in his presence. 
 
 The evidence should be set forth particularly in the conviction, 2 Burr. nes. 
 that the court may judge whether the justice has convicted on 2Dong.*48oV 
 proper evidence. 
 
 The conviction should state not merely the result of the evi- 7 Term Rep. 
 dence, but the whole evidence itself. It is not sufficient that the Dig. "'mticei 
 witness swear generally that the defendant was guilty of the pre- " r |, lle Peacc - 
 mises ; particular facts must be proved and stated. 
 
 The magistrate is the sole judge of the weight of the evidence ; s Term RPJ>. 
 and it is entirely and exclusively for his consideration, and he is nil). S'TJ."" 
 placed in the situation of a Jury, and the court before whom the 
 conviction is brought, on appeal, will not substitute themselves in 
 Ihe place of the justices acting as jurymen ; they cannot judge of 
 the credit due to witnesses whom they did not hear examined, 
 and can only look to the form of the conviction, and see that. thr 
 ty, if convicted, has been convicted by I^jral
 
 84 
 
 1 1 ! urn's Jut. 
 5i3, 524. 
 
 1 East, 189. 
 
 3 Burr. 1730. 
 2 Term Rep. 
 285. 
 
 Goss v. Jack- 
 ion. 3 Esp. 
 i98. 
 
 1 Term Rep. 
 
 520. 
 
 8 Ld. Raytn. 
 
 1376. 
 
 Rex v. Listen, 
 2 Kast, 195. 
 
 7 East, W6. 
 
 CORONERS. 
 
 There must be a judgment in the conviction, stating not only 
 that the defendant was guilty, but likewise adjudging the fine, or 
 forfeiture to which the party is subjected. So where an act 
 power to a magistrate, on a summary conviction, to award the 
 reasonable charges of taking a distress, he must ascertain the. 
 amount in the conviction, and an adjudication that the defendant 
 shall pay the reasonable charges of the levy, is bad. 
 
 The. justice ought to give the defendant a copy of the convic- 
 tion, if he demand it; and the justice ought, in every instance, to 
 return the conviction to the sessions, whether the defendant ap- 
 peals or not, or whether an appeal is or is not given. 
 
 The form of conviction given by statute must be strictly adhered 
 to. "Where a conviction was drawn up in another form, and a 
 warrant granted on it, it was held illegal, and that an action of 
 trespass lay against the justice, and those acting under it. 
 
 The judgment should be stated in the present tense ; but the. 
 previous parts of the record of conviction may 6e in the 
 time; although it has been held that the whole of the record 
 should be in the present tense, which is, perhaps, the safest rule 
 to pursue. 
 
 If the convicting magistrate give a proper date to the time of the 
 conviction upon the face of it, and afterwards add an impossible 
 date to the time when he set his hand and seal to the conviction, 
 (being before the offence committed,) the latter may be rt ; 
 as surplusage. It is enough that the conviction sets forth that the 
 witness was examined on oath, without stating that the magis- 
 trate had authority to administer the oath. Where a penalty is 
 to be sued for before justices of the peace, within a certain time 
 after the offence committed, upon a conviction for such offence, 
 it ought to appear on the face of the evidence stated in such con- 
 viction, that the prosecution was in time ; and if the witness be 
 only stated to have mentioned the month in which the offence 
 was committed, omitting the year, and there be no word of refer- 
 ence to connect it with the true date, the omission cannot be sup- 
 plied, either by reference to the offence charged in the informa- 
 tion, or by presumption arising from the justice having convicted 
 the defendant. 
 
 CORONERS. 
 
 " In every county of this state, competent men shall be appoint- 
 ed as coroners, and it shall be the duty of every coroner to go to 
 the places where any persons be slain, or suddenly dead, or w ound- 
 cd, or where houses are broken open, or treasure is said to be 
 found, and forthwith to command twenty-four good and lawful 
 men of his county to appear before him, at such places therein 
 as he shall appoint, and upon their oaths, or the oaths of any
 
 DEAD BODIES. 85 
 
 twelve or more of them, and upon view of the body of any jn:r- 
 
 tin, or suddenly dead, and the proof of witnesses, to inquire 
 
 how. and in what manner, and when, and where, such person was 
 
 slain or died, and who such person WDS, and of all the circumstan- 
 
 . and who were guilty thereof, cither ; .; 
 
 principal or accessory, and in what manner ; and to take and com- 
 mit every one so found guilty, and also any one suspected of the 
 _ of any person, or of doing hurt to any person, so as to en- 
 ; life, to the gaol of such county; arid to make the like in- 
 quiry of persons who shall die in prison, or he killed of misfortune; 
 and also of treasure found, and who were the finders, or suspected 
 thereof, and to attach such finders, and hind them, with at least 
 two suilicient sureties, to appear before the next justices of oyer 
 and tenniner and gaol delivery in such county, to answer the pre- 
 mises ; all which matters shall be enrolled by the coroners, and 
 all coroners shall deliver their inquisitions and rolls to such jus- 
 tices in the respective counties, who shall proceed thereon against 
 the offenders, if they be in gaol, and if not, such justices shall 
 deliver the same into the supreme court, there to be proceeded 
 upon according to law. Sess. '24. c. 43. s. 1. 1 11. L. 150. 
 
 coroner, upon any inquisition found before him, where- 
 by any person shall be indicted of murder or manslaughter, or as 
 accessory thereto before the fact, shall put in writing the effect of 
 the evidence given to the jury before him, and bind the witnesses 
 to appear and testify against such person, at the next court of 
 oyer and tcr;nin-;r and gaol delivery, to be holden in the same 
 'county, and S':HI| certify the recognisances taken by him for that 
 purpose, together with the said inquisition and evidence, to such 
 court ; and in case any coroner shall neglect to perform any duty 
 required of him by this act, and be thereof convicted before any 
 justices of oyer and tenniner and gaol delivery in such county, 
 he shall he fined, at the discretion of such justices." s. '2. 
 
 Every coroner is a principal conservator of the peace within his 2 Hawk. c. s. 
 county, and may certainly bind any person to the peace who s<5> 
 makes an affray in his presence ; but it seems the better opinion, 
 that he has no authority to grant process for the peace ; and it 
 seems clear, that the security taken by him for the keeping of the 
 peace, (except only where it is taken by him as judge of his own 
 court, for an affray done in such court,) is not to be looked on as 
 a recognisance, but as an obligation. 
 
 DEAD BODIES. 
 
 " If any person shall, with intent to dissect, dig up or remove, 
 or be aiding or assisting in digging up or removing any dead hu- 
 man body, which shall have been interred in any cemetery or bu- 
 'ce within this state, or shall dissect, or aid, abet, or assist in 

 
 DEBTORS. 
 
 :cting such human body, every such person shall be deemed 
 guilty of a public offence, and being thereof convicted in the su- 
 preme court, or in any court of oyer and terminer and g;iol de- 
 livery, or general sessions of the peace, shall suffer such punish- 
 ment, by fine or imprisonment, or both, as the court before horn 
 such conviction shall be had shall in their discretion think pro- 
 per." Sess. 24. c. J24-. s. 1. 1 R. L. 175. 
 
 DEBTORS. 
 
 The trustees of the estate of an absent or absconding debtor, 
 or their survivors, " may apply to any justice of the peace, who in 
 such case is required to grant a warrant, commanding the said ab- 
 sconding or concealed debtor, his wife, and every other person 
 known or suspected to detain any part of his estate, or to be in- 
 debted to it, or to know any thing concerning the concealment or 
 embezzlement thereof, to be brought before him, at such place as 
 he and the trustees shall appoint, where the said justice, or in his 
 absence any other justice to be requested by the said trustees, 
 shall be present, at which meeting either the said justice or the 
 said trustees, or both, may examine on oath, to be administered by 
 the justice, ever}' person so brought before them on the said war- 
 rant, touching all matters relative to the said debtor, his dealings, 
 and his estate, and reduce the examination to writing, which the 
 said person is hereby required to sign ; and if the said person shall 
 refuse to be sworn or to answer, or shall not answer to the satisfac- 
 tion of the said justice, all lawful questions to be put by the said 
 justice and trustees, or the major part of them present, as well by 
 word of mouth as by interrogatories in writing, or shall refuse to 
 Hgn the examination, not having any reasonable objection, either 
 to the wording thereof, or otherwise, to be allowed by the said 
 justice, the said justice shall then, by warrant, commit such person 
 to prison, there to remain, without bail, until he shall submit to do 
 what shall be required of him as aforesaid : Provided ahcays, that 
 the said warrant of commitment shall specify the particular de- 
 fault of such person, and if it be in not answering any question, 
 such question shall be specified in the warrant." Sess. 24. c. 49. 
 s. 12. 1 R. L. 160. 
 
 " If any person, so to be examined, shall wilfully and knowingly 
 swear or affirm falsely, he shall be liable to the pains and penalties 
 of wilful and corrupt perjury." s. 1 3. 
 
 " Every person, not being a freeholder, who sh?ll be confined in 
 gaol upon any execution or other process, or by virtue of any 
 judgment or order of any court of justice, or by warrant from any 
 judge or justice for any debt or sum of money, fine, or forfeiture, 
 not exceeding twenty-five dollars, exclusive of costs, and shall 
 have remained in gaol for thirty days, if not detained for any
 
 DEER. 
 
 ether caus.e, shall be discharged from such imprisonment by the 
 keeper of the gaol, on application to him. by the person so con- 
 fined." Sess. 36. c. 81. s. 1. 1 R. L. 34-8. 
 
 "jNothing herein contained shall extend to cases of imprisonment 
 under the act, entitled, Jin act for the speedy recovery of debts to the. 
 value of tiventy-ftve dollars." Ibid. 
 
 DEER. 
 
 " If any person or persons shall kill or destroy any wild buck, 
 doe, or fawn, or any other sort of deer whatsoever, at any time in 
 the months of January, February, March, April, May, June, or 
 July, every such person shall, for every buck, doe, or fawn, or 
 other deer, so killed or destroyed as aforesaid, contrary to the 
 true intent and meaning of this act, forfeit and pay the sum of 
 twelve dollars and fifty cents, to be recovered, with costs of suit, 
 in any court having cognisance thereof, by any person or per- 
 sons who will sue and prosecute for the same ; the one moiety of 
 which foifeiture, when recovered, to be paid to the overseers of the 
 poor of the town or place where the offence shall be committed, 
 for the use of the poor thereof ; and the other moiety to such person 
 or persons as shall sue and prosecute for the same, as aforesaid." 
 Sess. 36. c. 1 1 . s. 1 . 2 R. L. 233. 
 
 " Every person in whose custody shall be found, or who shall 
 expose to sale, any green deer skin, fresh venison, or deer's flesh, 
 at any time in any of the months before mentioned, and shall bo 
 thereof convicted before any justice of the peace, by the oath 
 of one credible witness, or by the confession of the part)', shall, 
 unless such party shall prove that some other person killed such 
 buck, doe, fawn, or other deer, be deemed and adjudged guilty of 
 the said offence." s. 2. 
 
 And in order the more easily to convict offenders against this 
 act, it is enacted, " That it shall be lawful for any justice of the 
 peace, in any county of this state, and every such justice is here- 
 by required, upon demand made by any person, assigning a rea- 
 sonable cause of suspicion, upon oath, of the sufficiency of whicli 
 the said justice is to judge, at any time in any of the months 
 before mentioned, to issue his warrant under his hand and seal, to 
 any constable of any town or place within the same county, for 
 searching in the day time in any house, store, out-house, or other 
 place whatsoever, where any green deer skin, fresh venison, or 
 deer's flesh, is suspected to be concealed; and in case any green 
 (ieer skin, fresh venison, or deer's flesh, shall, upon such search, 
 be found, the person in whose custody the same shall be found, 
 or wiio concealed the same, shall forfeit the sum of twelve dol- 
 lars and fifty cents, to be recovered and applied 
 said." 3. 3.
 
 38 
 
 - -:n or persons shall at any lime L f, or 
 
 ties'. Id buck, doe, or fawn, or other deer, with an\ 
 
 hound, or bluod hounds, beagle, or b* 
 
 shall, for every such offence, forfeit and pay the sum of twelve 
 .rs and fiftv cents, to be recovered and applied as afon 
 t is provided, " that nothing in this clause of this act 
 
 .ill be construed to prevent any person or persons from 
 making use of any blood hounds or beanies, in the hunting, pur- 
 suing, or destroying of v - other destructive wild ani- 
 mals.'' s. +. 
 
 If any person or persons shall set any trap or traps, or set up 
 any sharp stick or sticks, or spear or spears, made of iron, out of 
 or in any pit or pits, for the purpose of catching deer, or shall in 
 the night time watch for the purpose of shooting deer, within the 
 space or distance of thirty rods from any road or hig' 
 person or persons shail, for every such olTence, forfeit the sum of 
 twenty-live dollars, to l>e recovered and applied in manner afore- 
 
 DISEA^ 
 
 The greater part of the act to proridt at~ 
 niial dista3(s relates to the city o >\ specially 
 
 appoints and empowers certain officers to attend to the ; 
 of it, it will be unm insert it here ; the two following 
 
 ins are, however, applicable to any part of the state. 
 A:i vc f r ;s having on board any person infected with any rna- 
 t or pestilential fever, or coming from any phce w! 
 Infected therewith, shall not come into any other of the 
 or harbours of this state uniil they shall have performed 
 quarantine, for such time, and in such manner as the person? 
 
 i after mentioned shall think proper to direct, to wit : 
 the cities of .Albany and Hvdson, and upon II er. oppo- 
 
 ' the said cities, and within one mile above or below the 
 . the person administering the government of this state, and 
 in his absence from the said cities respectively, the mayor, and in 
 his absence the recorder of the said cities respec 
 
 !i this state, bordering or lyins: upon sny part or har- 
 
 e.and upon the waters opposite to the same t 
 more justices of the peace ;nd if 
 
 any j ct to quarantine as a for violate r~ 
 
 meeting the same a? 
 v of a misdemeanour, and shall be 
 fined .ereof. in a sr. 
 
 c. 57. s. _
 
 DISORDERLY PERSONS. 
 
 Ft shall he lawful for the said persons hereby authorized, to 
 execute this act in the said cities of dlbmiy and Hudson, and for 
 any two <>r more justices of the peace in any town in this state, 
 r.i take effectual measures to prevent the introduction and spread- 
 any infectious distemper into any part of this state, and for 
 (hat purpose to stop, detain, and examine, any person coining 
 from any place infected with any such malignant or pestilential 
 fever, and if there shall he good cause to suspect any person to 
 be infected therewith, it shall be lawful for the several persons 
 aforesaid, to cause every such person, not being an inhabitant 
 thereof, to be sent out of this state, or kept in such place as will 
 not expose the inhabitants of the same to take such distemper. 
 And further, to appoint and authorize such and so many persons to 
 aid in the execution of their powers aforesaid, as they shall re- 
 spectively deem proper." s. 33. 
 
 DISORDERLY PERSONS. 
 
 The following persons are to be deemed disorderly persons. 
 ''' All persons who threaten to run away and leave their wives or 
 children to the city or town, and all persons who shall unlawfully 
 return to the city or town from whence they shall respectively 
 have been legally removed by order of two justices of the peace, 
 without bringing a certificate from the city or town whereto they 
 respectively belong ; and also all persons, who not having where- 
 with to maintain themselves, live idle without employment, and 
 also all persons who go about from door to door, or place them- 
 selves in the streets, highways, or passages, to beg in the cities or 
 towns where they respectively dwell, and all jugglers, and all per- 
 sons pretending to have skill in physiognomy, palmistry, or like 
 crafty science, or pretending to tell fortunes, or to discover where 
 lost goods may be found ; and all persons who run away and 
 leave their wives or children, whereby they respectively become 
 chargeable to any city or town ; and all persons wandering abroad, 
 and lodging in taverns, beer-houses, out-houses, market places, 
 or barns, or in the open air, and not giving a good account of 
 themselves ; and all persons wandering abroad and begging, and all 
 idle persons not having visible means of livelihood, and all com- 
 mon prostitutes, shall be deemed and adjudged disorderly per- 
 sons ; and it shall and may be lawful for any justice of the peace 
 to commit such disorderly persons, (being thereof convicted he- 
 fare him, by his own view, or by the confession of such offenders, 
 respectively, or by the oath of one or more credible witness or 
 witnesses,) to the bridewell or house of correction of such city or 
 town, there to be kept at hard labour for any time not exceeding 
 sixty days, cr until tbe next general sessions of fhe peace, to be
 
 DISORDERLY PERSONS. 
 
 holtlen in and for the city or county in which such offence shall 
 Lappen." Sess 1 1 . c. 3 I . s. 1 . 1 R. L. 114. 
 
 Where any offender shall be committed as aforesaid, until the 
 next general sessions, and the justices at such sessions shall adjudge 
 him to be a disorderly person, they may, if they think convenient, 
 order him to be kept in the bridewell, or house of correction, to 
 hard labour, for any further time, not exceeding six months ; and 
 during that time to be whipped in such manner and at such times 
 and places as they shall think fit. s. 3. 
 
 If, where offenders have been committed until the next sessions, 
 their last legal place of settlement cannot be found, the sessions 
 may order them to be detained and employed in the bridewell, 
 or house of correction, until they can provide for themselves, or 
 Until the justices, at their next general sessions of the peace, can. 
 place them out as servants, apprentices, mariners, or otherwise ; 
 which this act empowers them to do, in such manner as they shall 
 think fit. s. 4. 
 
 " Whereas, it often happens that disorderly persens wander from 
 the places of their legal settlement, and are in circumstances 
 sufficient to pay for thejr passage or journey home ;" it is there- 
 fore enacted, " that it shall be lawful for any justice or justices of 
 the peace, before whom any such disorderly person shall be 
 brought, to order such disorderly person to be searched, and his 
 or her bundle to be inspected by a constable, or overseer of the 
 poor of such city or town, in the presence of such justice ; and 
 if it shall appear that any such disorderly person hath sufficient 
 wherewithall to pay his or her passage or journey, either in the 
 whole or in part, to the city or town to which he or she shall be- 
 long;, then the said justice or justices shall order so much of the 
 money, eo found, to be paid, or other effects found with and upon 
 such disorderly person, to be sold and employed for and towards 
 the expense of taking up and passing such disorderly person to his 
 or her last legal place of settlement ; returning the overplus, if any 
 there be, after deducting the charges of such sale, to such disor- 
 derly person." s. 7. 
 
 " Whereas, there are sometimes persons, who by lunacy, or 
 otherwise, are furiously mad, or are so far disordered in their 
 senses that they maybe dangerous to be permitted to go abroad ;'' 
 it is therefore enacted, " that it shall and may be lawful for any 
 fwoormore justices of the peaee, where such lunatic or mad 
 person shall be found, by warrant under their hands and seals, 
 directed to the constables and overseers of the poor of the city 
 or town, or some of them, to cause such person to be appre- 
 hended and kept safely locked up in some secure place withiu 
 such city, or within the county in w liich such towu shall lie, as 
 such justices shall, under their hands and seals, direct and appoint; 
 and if such justices shall find it necessary, to be there chained, it 
 the last legal place of settlement shall be in such city, or in 
 any town within such county ; and if the last legal place of 
 settlement of suqh person shall not be in such city or county,
 
 DISTRESS. 
 
 then su*h person shall be sent to the place of his er her last set- 
 tlement, in the manner directed in and by the laws relating to the 
 poor, and shall be locked up or chained, by warrant from two jus- 
 tines of tne city or county to -which such person shall be so sent in 
 manner aforesaid; and ttie reasonable charges of apprehending, 
 maintaining, keeping and removing such person, shall be satisfied 
 and paid by the overseers of the poor of the city or town in which 
 such person shall be legally settled as aforesaid, in the manner 
 in and by the said laws directed. Provided always, that this 
 act, or any thing therein contained, shall not extend or be con- 
 strued to extend to or abridge the power or authority of the 
 chancellor of this state, for the time being, touching or con- 
 cerning such lunatics ; or to restrain or prevent any friend or 
 relation of such lunatic from taking them under their own care 
 and protection." s. 6. 
 
 In counties in which there is no bridewell or house of correc- 
 tion, the gaol shall be used for the purposes of this act. s. 4. 
 
 DISTRESS. 
 
 A distress is the taking of a personal chattel out of the pos- sBl.Cam.4 
 session of the wrong doer into the custody of the party injured, 
 to procure a satisfaction for the wrong committed. The only 
 cases in which a distress is allowed by law are, ] . For arrear- 
 ages of rent. 2. For beasts trespassing on the lands of another, 
 or as it is generally expressed, damage feasant ; and, 3. For fines 
 and assessments under particular statutes. 
 
 I. Of distress for rent. 
 II. Distress damage feasant. 
 III. Of distress by warrant of justices of the pcctft-. 
 
 I. Of distress for rent. 
 
 Where the lessee shall carry off" from the demised premises 
 his goods or chattels, leaving the rent unpaid, the landlord or his 
 bailiff may, within thirty days next after such carrying off, seize 
 such goods or chattels wherever they may be found, and sell 
 them for the arrears. Provided the said goods shall not have been 
 sold lona fide, and for a valuable consideration, before such 
 seizure made, to any person not privy to such fraud. Sess. 36. 
 c. 63. s. 13. 1 R. L. 437. 
 
 " Where any goods or chattels shall be conveyed or carried 
 away as aforesaid, by any tenant or lessee, or bis servant, agent, or 
 other person aiding or assisting therein, and shall be put, placed, 
 or kept in any house, barn, stable, out-house, yard, close, or 
 place, locked up, fastened, or otherwise secured, so as to pre-
 
 92 DISTRESS. 
 
 vent such goods or chattels from being taken and seized as a 
 distress for arrears of rent, it shall and may he lawful for the 
 landlord or lessor, or his heirs or assigns, or his steward, bailiff, 
 receiver, or other person empowered, to take and seize, as a dis- 
 tress for rent, such good, and chattels, first calling to his assist- 
 ance the constable or other peace officer of the town or place 
 where the same shall be suspected to be concealed, who are 
 hereby required to aid and assist therein ; and in case of a dwell- 
 ing house, oath being also first made before some justice of the 
 peace, of a reasonable ground to suspect that such goods or chat- 
 tels are therein, in the day time to break open and enter into 
 such house, barn, stable, out-house, yard, close, or place, and to 
 take and seize such goods and chattels for the said arrears of rent, 
 as he might have done by virtue of this act, if such goods and 
 chattels had been put in any open field or place." s. 15. 
 
 " Where any goods or chattels shall be distrained for any rent 
 reserved and due upon any demise, lease, or contract whatsoever, 
 and the tenant or owner of the goods so distrained shall not, 
 within five days next after such distress taken, and notice thereof 
 (with the cause, of taking) left at the chief mansion house, or other 
 most notorious place on the premises, charged with the rent dis- 
 trained for, replevy the same, with sufficient security to be givea 
 to the sheriff according to law ; that then, in such case, after such 
 distress and notice as aforesaid, and expiration of the said five 
 days, the person distraining shall and may, with the sheriff or 
 under sheriff of the county, or with the constable, or other officer 
 of the town or place where such distress shall be taken (who are 
 hereby required to be aiding and assisting therein) cause the 
 goods and chattels so distrained to be appraised by two sworn 
 appraisers, whom such sheriff, under-sheriiT, constable, or other 
 officer as aforesaid, are hereby empowered to summon for that 
 service, and to swear well and truly to appraise the same ac- 
 cording to the best of their understanding, and after such ap- 
 praisement, shall and may lawfully sell at public vendue the 
 goods and chattels so distrained, for the. best price that can be 
 gotten for the same, (giving three days public notice) towards 
 satisfaction of the rent for which the said goods and chattels shall 
 be distrained, and of the charges of such distress, appraise- 
 ment and sale ; leaving the overplus (if any) in the hands of the 
 said sheriff, under sheriff, constable, or officer, for the owner's 
 use." s. 5. 
 
 \H. BI.IS. The five days allowed before the sale of a distress are inclu- 
 sive of the day of sale, so that the three days previous public 
 notice of sale must expire the same day that the distress is sold. 
 
 All dis-resses made or taken for any rause whatsoever, shall 
 be resiso-- iMe, and not too great: and whosoever shali take j:rr;it 
 and unre onable distresses, shali be purished by fine for the ex- 
 cess of such distresses, and shall answer in damages to the party 
 grieved, s. 1.
 
 DISTRESS. 93 
 
 ' .Vo person shall take any distress wrongfully, or distrain in the 
 highway or common street, or cau.se any distress that he shall 
 take to be driven out of the county where it shall be taken ; and 
 every person who shall so do, of his own authority, and without 
 judgment, shall be punished by fine, as for a thing done against 
 the pt;ace, and shall answer to the party aggrieved." s. 2. 
 
 "No person shall be distrained for any cause whatsoever, by his 
 beast of the plough, or sheep, or by the implements of his trade, 
 until other distress or chattels, whereof the debt may he levied. 
 or sufficient for the demand, cannot be found, (except the distrain- 
 ing and impounding beasts found on the ground of any person da- 
 mage feasant,) according to the custom of this state." s. 3. 
 
 " When any beasts are distrained, for any cause whatsoever, 
 they shall be put in open pound, in the same county where they 
 shall be taken ; and they to whom the beasts do belong may give 
 them their feeding, without disturbance, so long as they shall be 
 impounded." s. 4. 
 
 II. Distress damage feasant. 
 
 <' When any distress shall be made of any beasts doing damage, 
 the person distraining shall, as soon as conveniently may be, and 
 within twenty-four hours thereafter, ualess the distress be made 
 on Saturday, in which case he shall, before Tuesday morning 
 thereafter, make application to the two nearest fence-viewers in 
 the same town, to appraise and ascertain the damage, who shall 
 immediately thereupon go to the place where such damage shall 
 be committed, and view the damage done, and appraise, ascertain, 
 and certify, under their hands, the amount thereof, with their fees 
 for the same ; and if any dispute shall arise concerning the suffi- 
 ciency of the fence, it shall be determined by the same fence- 
 viewers, whose decision shall be conclusive, and the person mak- 
 ing the distress shall, as soon as he shall think proper, and within 
 forty-eight hours after making such distress, unless the damage 
 shall be sooner paid, cause the beasts, so distrained, to be put in 
 the nearest pound in the same county, where they shall remain 
 until the sum so certified by the fence-viewers, with the fees of 
 the pound-master, shall be paid, or the beasts so impounded be 
 replevied." Sess. 36. c. 35. s. 19. 2 R. L. 134-. 
 
 Beasts taken damage feasant cannot be impounded until the Pratt v. Pe- 
 damage has been ascertained and appraised by two fence-viewers, j^l. m 1IJS 
 and if the party distraining; do not pursue the directions of the act, SacknUer v. 
 
 * J * . . . M'Donald, 10 
 
 ne renders hunselt a trespasser ab initio. Johns. R.-n, 
 
 263. 
 
 III. Of distress by icarrant of justices of the peace. 
 
 The act concerning distresses, &c. sess. 36. c. 63, does not i Burr. JTS. 
 extend to those cases in which a distress is made for a tax, as- ^ ns 
 sessment or fine, because, although called a distress, it is in reality
 
 94 
 
 an execution ; and therefore it is, in such, lawful to levy en '> 
 of the plough, !s:c. although there may be other poods sufficient, 
 o Mod. 83. Where power is given to levy a penally by distress by any 
 
 act, without specifying that the distress may be sold, a power to 
 ^ell is, notwithstanding, necessarily implied. 
 
 " Xo replevin shall lie in any case of distress for any tax, as- 
 sessment, or fine, to be collected or levied i -. pursuance of any 
 law of this state ; and if any person or persons shall hereafter 
 sue out or prosecute a replevin in any such case, he, she, or they 
 shall forfeit the sum of fifty pounds, to be recovered, with costs 
 of suit, in any court of record within this state, by action of 
 debt, bill, plaint, or information ; the one moiety to any person 
 who shall sue for the same, and the other moiety to the people of 
 this state." Sjess. 11. o. 5. s. 12. 1 R. L. y5. 
 
 DOG,S. 
 
 " If any dog shall kill or wound any sheep or lamb, the o 
 or possessor of such dog shall pay to the owner of such sheep qr 
 lamb the value thereof, to be recovered with costs of suit before 
 any justice 1 of the peace of the county where such offence shall be 
 committed ; and if the owner or possessor of such dog, or of any 
 dog which shall chase or worry any sheep or lamb, shall not, within 
 forty-eight hours after notice of any such act, cause such dog to be 
 killed, ho shall forfeit the sum of two dollars and fifty cents, and 
 the further sum of one dollar and twenty-five cents for every 
 forty-eight hours thereafter, until such dog shall be killed, which 
 forfeitures shall be for the use of any person who shall sue for the 
 same, to be recovered with costs of suit in manner aforesaid, 
 unless it shall appear to the satisfaction of the justice, before 
 whom any suit for the recovery thereof shall be brought, that it 
 \vas not in the power of the owner or possessor of such dog to 
 kill the same. And further, it shall be lawful for any person who 
 shall see any dog chase, worry, or wound any sheep or lamb, to 
 kill such dog. Provided, however, that nothing herein contained 
 shall be construed to prevent any shepherd or other person from 
 making use of dogs to drive sheep under his care, or owned by 
 him." Sess. 24-. c 62. s. 1. i R. L. 139. 
 
 Where the dog of A. is on the land of B. chasing fowls, and in 
 WiUtinn,9 the act of destroying one, B. may lawfully shoot at the dog, in the 
 J.*u$. Rep. same manner a if the dog were chasing and killing sheep, or other 
 reclaimed and useful animals. It is enough that the fowl is on 
 the land of B., without showing property in the fowl ; and the jury 
 are to decide whether the killing of the dog is justified by the ne- 
 cessity of the case, and as requisite to preserve the fowl. 
 
 " If any dog shall attack any person peaceably traveller .. 
 any highway, or shall attack any horse in any carriage, or en
 
 DUELLING. 
 
 which any person is mounted, and complaint thereof be made to 
 any justice of the peace, if it shall appear to the justice that such 
 complaint is well founded, and that such dog is dangerous, it shall 
 then be the duty of such justice to order the owner or possessor 
 of such dog to kill him, and if he shall not, within forty-eight hours 
 after having received such order, cause such dog to be killed, he 
 shall forfeit the sum of two dollars and fifty cents, and the further 
 sum of one dollar and twenty-five cents for every forty-Right 
 Lours thereafter until such dog be killed, to be recovered and, 
 applied in manner aforesaid." s. 2. 
 
 " If any person shall see any dog chase, worry, or wound, any 
 sheep, it shall be lawful for him to kill every such dog, unless the. 
 same bo done by permission of the owaer of suck sheep." s. 7. 
 
 DUELLING. 
 
 Not only he who kills another in a deliberate duel, let the. pro- i East, P. C. 
 vocation have been what it may, but his second also, is guilty of 3a *' 
 murder : and it has been doubted whether this does not extend 
 even to the second of him who was killed, because the death hap- 
 pened upon a compact in which all were engaged. 
 
 Any citizen of this state who shall hereafter give er accept a 
 challenge to fight a duel, or shall actually fight a duel, although no 
 death ensue, and the second or seconds of every person offending 
 in the premises, shall be deemed guilty of a high misdemeanour, 
 and on conviction before a court of oyer and terminer, shall be 
 disqualified from holding any office of honour, profit or trust, and 
 voting at any election within this state, for the term of twenty 
 years. SPSS. 36. c. 45. s. 1. 2R. L. 192. 
 
 Any citizen of this state who shall, by word, writing, or other- 
 wise, request or invite any person to meet him, with intent to fight 
 a duel, and every citizen of this state who shall meet, with intent 
 to fight a duel, and every person knowingly being the bearer of any 
 challenge or message, sent with the intent aforesaid, shall be 
 deemed guilty of the said offence, and subjected to the said pur 
 nishment. 
 
 Every offence against this act, committed without the limits of 
 this state, by a citizen thereof, are cognisable in the oyer and ter- 
 iiiiner in any county, s. 3. 
 
 Any person offending against this act shall be a competent wit- 
 aess against any other offender, and may be compelled to appear 
 and give evidence in said court, touching the premises, but shall 
 not thereby be criminated himself, s. 4. 
 
 It shall be the duty of the justices of the oyer and terminer 
 and sessions, to give in charge to the. grand jury, to inquire of all 
 against tkis act. s, .?..
 
 ESCAfE. 
 
 If any person, not being a citizen of this state-, shall he eonvirt- 
 ed in any of the said courts of the aforesaid oilem-u against t hit- 
 act, he shall he fined and imprisoned at the discretion of tin: court 
 having cognisance, not exceeding five hundred dollars, as a 
 fine, and seven years imprisonment in the state prison at hard 
 labour, s. 6. 
 
 The fighting a duel, although death do not ensue, is also a mis- 
 demeanour, and punishable as such at common law ; and < 
 quently the sending a challenge, as its necessary tendency is to 
 produce a breach oi'ihe peace, is likewise punishable, as a misde- 
 meanour, at common law. See AFFRAY, I. 
 
 ESCAPE. 
 
 An escape is, where one who is arrested gains his liberty be- 
 fore hi- is delivered by course of law. Under this head we 
 shall only consider escapes in criminal cases. 
 
 I. Of an escape, by a person who has the offender in his 
 
 custody. 
 II. Of rescue. 
 
 III. Of escape by the party himself, and prison breaking. 
 
 IV. Of retaking after an escape. 
 
 V. Of aiding in attempting to escape. 
 
 I. Of escape by a per son who has the offender in his custody. 
 
 2 Hawk. c. Wherever any person has another lawfully in his custody, whe- 
 ther upon an arrest made by himself or another, he is guilty of 
 an escape if he suffer him to go at large before he has discharged 
 himself of him, by delivering him over to some other who by law 
 ought to have the custody of him. 
 
 2 Hawk. c. To constitute an escape, there must have been an actual arrest; 
 for if an officer, having a warrant to arrest a man, see him shut 
 up in a house, and challenge him as his prisoner, without ever 
 having him actually in his custody, and the party gets free, the 
 officer is not chargeable for an escape. The arrest must also be 
 justifiable, for if it ;.ie either for a supposed crime, where no such 
 crime was committed, and the party not indicted, or for such a 
 slight suspicion of an actual crime, and by such an irregular mitti- 
 mus as will neither justify the arrest or imprisonment, the officer 
 is not guilty of an escape by suffering the prisoner to go at large ; 
 and it seerosto be a good general rule, that wherever an impri- 
 sonment is so far irregular, that it will be no offence in the prisoner 
 to break from it by force, it can be no offence in the officer to 
 let him escape : and to make the escape criminal, the offence 
 also must be criminal,
 
 ESCAPE. 97 
 
 IjL'i-i an escape, in some cases, to suffer a prisoner to 'Live S ITawk. c..i9. 
 
 r lil>ertj r than bylaw he ought to have, as to admit a person s ' 5 ' 
 to hail who is not legally bailable ; or to permit a prisoner to go 
 oiitofthe limits of. the prison. 
 
 If the gaoler so closely pursue the prisoner who flies from Mem. s. 6. 
 him, that he retakes him without, losing sight of him, the law 
 looks upon the prisoner as being so far in his power all the time 
 as not to adjudge such a flight to amount to an escape ; but if the 
 gaoler once lose sight of the prisoner, and afterwards retake him, 
 he seems in strictness to he guilty of an escape : and a fortiori 
 therefore, if he kill him in the pursuit, he is in like manner guilty, 
 though he never lost sight of him, and could not otherwise take 
 him, because public justice is not satisfied by the killing him in 
 such an extrajudicial manner. 
 
 If a prisoner be rescued by the enemies of the country, the 2 Hawk, c. 
 gaoler is not guilty of an escape, as he would have been if he 20>s ' 9 ' 
 had been rescued by subjects, because against the latter there is 
 a legal remedy. 
 
 Although the warrant of commitment be not strictly formal, 2 Hawk. r. 
 yet if it be good in substance ? the gaoler may be made liable for 
 an escape. 
 
 Wherever an officer who has the custody of a prisoner, charged 2 Hawk. c. 
 with and guilty of a capital offence, knowingly gives him his li- Dait.'c. 'i'53. 
 beity with an intent to save him, either from his trial or execu- 
 tion, he is guilty of a voluntary escape. So if a constable or 
 other officer shall voluntarily suffer a thief, being in his custody, 
 to go into the water to drown himself, this is a voluntary escape. 
 A voluntary escape is punishable in the same degree as the offence 4 Bl. Com. 
 of which the prisoner is guilty arid for which he is in custody; 130 ' 
 hut the officer cannot be punished until the original delinquent has 
 actually received judgment or been attainted : otherwise it might 
 happen that the officer might be punished, and the person escaping 
 might turn out to be an innocent man. 
 
 A negligent escape is, when the party arrested or imprisoned Dale, c. 150. 
 escapes against, the will of him that arrested or imprisoned him, 2Hawk.c.i9. 
 and is not freshl}' pursued, and taken again, before he has lost 
 sight of him. So it is a negligent escape, if a thief shall, sud- 
 denly, without the assent of the officer, kill, hang, or drown him- 
 self. So if a person who has power to bail, bail one who is not 
 bailable. A negligent escape is punishable as a misdemeanour. 4 BI. Com. 
 
 1,30. 
 
 II. Of rescue. 
 
 Rescue is the forcibly and knowingly freeing another from an 4 BI. Com, 
 arrest or imprisonment ; and it is generally the same offence in 131< 
 the stranger so rescuing, as it would have been in a gaoler to have 
 voluntarily permitted an escape. 
 
 It is immaterial whether the party be in the custody of a pri- i Kaic, p.c*. 
 vate person or of nn officer ; if in the custody of a private per- 6cr>- 
 
 '.; is i
 
 ESCAPE. 
 
 the party rescuing should have knowledge that lie waS ar- 
 n ..it-il fur felony ; hut if in the custody of an oiiicer, he must take 
 notice, of it at his peril. 
 
 -, r.i loin. A rescue of one apprehended for felony ; is felony, for treason, 
 
 i-! l 'c.' Swrf 1 treason : and for a misdemeanour, a misdemeanour also. But 
 
 nu. n. here likewise, as upon voluntary escapes, the principal must 
 
 r..s. s. ' " first he attainted or receive judgment before the rescuer can be 
 
 punished ; and for the same reason ; because, perhaps, in fact it 
 
 may turn out that there has been no offence committed. The 
 
 rescuer is, notwithstanding, guilty of a misdemeanour. 
 
 III. Of escape by the party himself, and prison break i< 
 
 2 Hawk. c. As all persons are bound to submit themselves to the judgment 
 of the law, and to he ready to be justified by it, whoever in any 
 case refuses to undergo that imprisonment which the law thinks 
 fit to put upon him, and frees himself from it by any artifice, 
 before such time as he is delivered by due course of law, is 
 guilty of a high contempt, punishable with fine and imprisonment. 
 
 A breach of prison by a person in gaol on a charge of felony, 
 is itself a felony above the degree of petit larceny, and punishable 
 by imprisonment in the state prison, for a period not exceeding 
 fourteen years. 
 
 " In case any person hath been, or shall be sentenced to : m- 
 prisonment in the state prison for any term of years, and shall 
 break the said prison, and escape from thence, and be retaken, such 
 person being thereof convicted, shall be deemed guilty of felony, 
 and shall be adjudged to imprisonment in the said prison for 
 double the term of time specified in the original judgment against 
 such person, to commence from the period of the last conviction, 
 notwithstanding the term for which such person was to have been 
 imprisoned may, when such person shall be retaken, have ex- 
 pired." Sess. '36. c. 29. s. 15. 1 R. L. 41 1. 
 
 " If any person adjudged to be imprisoned in the said prison, 
 otherwise than for life, shall escape from the same, then, as often 
 as such person shall so escape and be retaken, and again impri- 
 soned in the said prison, the period for" which such person was 
 adjudged to be imprisoned in the said prison shall always be 
 deemed to commence anew from the day when such person shall, 
 after having escaped, be retaken and imprisoned again in the said 
 prison, which day shall be ascertained by the inspectors of the 
 said prison ; and every such person may be so retaken and im- 
 prisoned again, notwithstanding the term for which such person 
 was to have been imprisoned may, when such person shall be 
 retaken, have expired." s. 16. 
 
 ' ; If any person imprisoned in the said prison, otherwise than 
 for life, shall attempt to escape, or shall aid any other person, im- 
 prisoned in the said prison, rn escaping, or attempting to escape 
 from the same, such person shall be deemed guilty of a misde- 
 meanour, and shall, on conviction, be adjudged to be imprisoned
 
 ESCAPE. (< 
 
 in the said prison, for such further timo, not for life, after the de- 
 termination of the term for which such person had, at the time 
 when the said misdemeanour was committed, been adjudged to 
 be imprisoned, as the court shall in their discretion deem pro- 
 per." *. 18. 
 
 IV. Of retaking after an escape. 
 
 An officer making a fresh pursuit after a prisoner who had es- 2 "' k 
 caped through his negligence 1 , may retake him at any time after, 
 whether he find him in the same or in a different county. And 
 it is said, generally, in some books, that an officer who has neg- 
 ligently suffered a prisoner to escape, may retake him wherever 
 he finds him, without mentioning any fresh pursuit ; and, indeed, 
 adds Hawkins, since the liberty gained by the prisoner is wholly 
 owing to his own wrong, there seems to be no reason he should 
 take any manner of advantage from it. 
 
 It is, perhaps, the better opinion, that wherever a prisoner, by 2 Hawh. 
 the negligence of his keeper, gets so far out of his power that the 19 ' s ' 
 keeper loses sight of him, the keeper is finable at the discretion 
 of the court, notwithstanding he took him immediately after, 
 which, though a good excuse for a gaoler in a civil action for an 
 escape, will not serve for the negligent escape of a criminal, 
 which is an offence against the public. It is also clear that he 
 cannot excuse himself by killing a prisoner in the pursuit, though 
 he could not possibly retake him ; but must, in such case, be 
 content to submit to such fine as his negligence shall appear to 
 deserve. 
 
 V. Of aiding in attempting to escape. 
 
 <As to prisoners aiding other prisoners to escape, vide anlc, III. 
 
 " If any person shall, in any manner howsoever, aid or assist 
 ^ny person confined in the said [slate] prison, in escaping, or at- 
 tempting to escape from the same, such person shall be deemed 
 guilty of a misdemeanour, and shall, on conviction thereof in due 
 form of law, be adjudged to be imprisoned in the said prison, 
 for such term of time as the court in which such conviction may 
 be had, shall in their discretion deem proper, not exceeding ten 
 years." Sess. 3(3. c. 29. s. 1 9. 1 R. L. 4 1 1 . 
 
 " Any person who shall be duly convicted of, fee. or of aiding 
 or assisting any prisoner lawfully committed to, or detained in any 
 gaol, for any felony whatsoever, in escaping, or attemptin 
 escape from such gaol, though no escape be made ; or of convey- 
 ing any disguise, instrument, or arms, into any gaol, to and for the 
 use of any such prisoner so committed, or detained as aforesaid, 
 with intention to facilitate his or her escape, though no e.. 
 be made, or attempted to be made, shall be punished with impri- 
 sonment in the said prison ; and the court before whom such con- 
 Diction slip;!! be had, shall, upon consideration of all Ac en
 
 100 
 
 EXAMINATION. 
 
 stances of the case, adjudge such person, so convicted, to ii 
 sonnvjnt in tin- said prison for any term not exceeding ten years, 
 aurording to the nature and aggravation of the offence." s. 20. 
 
 ! '-'i'- If the party is not in gaol on a charge of felony, the assisting 
 him to escape will not be felonious. 
 
 ,,p| e A lying in wait near a gaol by agreement with a person in cus- 
 
 v. T.in,|>kiii<, tody 0! > a charge of felony, and convevin;r him away, is not a:i 
 
 -><> . i 
 
 TO. one nee within the statute. The court said, the aso!?tance must 
 
 appear to have been rendered towards escaping from within the 
 gaol, and not merely in assisting the person "who had got without 
 the gaol to elude pursuit. If this is not the construction of the 
 statute, then lying in wait, ten or twenty miles from the gaol, to 
 receive the person and carry him further oC', would come within 
 the statute ; the offence is much more dangerous, and requires a 
 hardy and deliberate purpose, to assist a prisoner who is 
 within a gaol in escaping from the gaol, than to assist a prisoner 
 vvho iv without to escape pursuit. 
 
 EXAMINATION. 
 
 <: Every justice of the peace before wham any person shall he 
 brought for any treason or felony, or for suspicion thereof, b-'-forc 
 he commit such person to gaol, shall take the examination of 
 such prisoner, and the information of those who bring him, 
 relative to the fact; and the same, or so much thereof, as shall be 
 material to prove the offence, shall be put in writing by the said 
 justice within two days after the said examination, and he shall 
 bind by recognisance, all the material witnesses against such 
 prisoner to appear and testify at the next court having cognisance 
 of the offence, and where the prisoner ought to be tried, and shall 
 certify the recognisances, together with the said examinations so 
 reduced to writing, under his hand, into the said court where 
 such witnesses are bound to appear on the first day of the sitting 
 thereof: and if any justice of the peace shall refuse or neglect to 
 the examinations and recognisances, or to certify the same 
 as aforesaid, the said court into which the same ought to have 
 been so certified shall, upon due proof by examination before 
 them, impose such fine upon every justice so refusing or ne- 
 'n% as to the said court shall seem meet." Sess. 3t. c. 10-k 
 s.2. 2R. L. 507. 
 
 Male,s?5. If by some reasonable occasion, the justice cannot at the re- 
 turn of the warrant take the examination, he may by word of 
 mouth command the constable, or any other person, to detain in 
 custody the prisoner "till the next day, and then to bring him 
 before the justice for further examination. And this detainer is 
 :';abie by the constable or any other person, without showing 
 particular cause for which he was to be examined, or any 
 . -.?nt in vrritinir.
 
 EXTORTION. 101 
 
 Although the person accused ought not to be examined upon i Hale, sss, 
 
 
 oath, yet it' in his examination he shall voluntarily confess the "* Dalt * c ' 
 matter, the examination may, when sworn to by the person taking 
 It, lie given in evidence against the prisoner, hut not against others. 
 I'ut the information of witnesses, whom the j. (slice may hy his 
 warrant have brought before him, must he upon oath. 
 
 The justice who takes the information against the prisoner, Dait. c. i6j. 
 should take and certify as well such information, proof, and evi- 
 dence, as goes to the acquittal or clearing of the prisoner, as such 
 as makes against him. 
 
 If a witness refuse to be hound, the justice may commit him. ^ llal f ^ 6 
 And the parties grieved ought to be bound, not only to give 
 evidence, hut also to prefer a bill of indictment against the pri- 
 soner. 
 
 The party's confession must be proved to have been obtained 2 Hale, 285. 
 "without any promise of favour, menace, or undue terror ; for if 
 it is obtained under such impressions, it cannot be received in 
 evidence against the party. 
 
 And the identity of these examinations must be proved at the Saund. 263. 
 trial, before they can be read in evidence. 
 
 And whenever a person's confession is made use of against him, z , IJ 5 Wk * c 
 it must all be taken together, and not by parcels. 
 
 EXTORTION. 
 
 Extortion consists in any officer's unlawfully taking, by colour 4 B1< Co[ - 
 <>f his office, from ap.y man, any money or thing of value that 
 is not due to him, or more than is due, or before it is due ; and 
 a promise to pay money, in such case, is without consideration, 
 and void. 
 
 whetc a man agreed to pay an officer a sum of money if 2 Bun-. ?<-*-. 
 lie would accept him as bail for a person whom he had arrested ; 
 it was held that no action would lie by the officer, as it was his 
 duty, when sufficient bail was offered him, to accept it without 
 any reward. 
 
 There can be no doubt but that all officers, whether such by 5 Bae. Abi. 
 the common law, or made pursuant to statute, are punishable for 21 *' 
 corruption and oppressive proceedings, according to the nature 
 and heinousness of the offence, either by indictment, attachment, 
 action at the suit of the party injured, loss of their offices, fcc. 
 Besides which, all courts of record have a discretionary power 
 over their own officers, and are to see that no abuses are com 
 mitted by them, which may bring disgrace on the courts them- 
 selves. 
 
 In order to prevent and punish extortion, it is enacted, " That 
 no judge, justice, sheriff, or other officer whatsoever, ministerial 
 or judicial, shall receive, or ta>- 1. any fee or reward to do his office, 
 but snc,h an h or shall be allowed by the laws of this state ; and
 
 FELONY. 
 
 if any doth, he shall restore to the parly gricTed double damages. 
 And further, that if any judge, justice, sheriff, or other officer 
 aforesaid, hath received or taken, or shall receive or take, hy 
 colour of his office, any fee or reward whatsoever, not allowed 
 l>y the laws of this state, for doing his office, and be thereof con- 
 victed, either at the suit of the party grieved, in any court of re- 
 cord, or at the suit of the people of this state, in the supreme 
 court, or before justices of gaol delivery, or before justices as- 
 signed to hear and determine, or in any court of general sessions 
 of the peace, he shall be punished by fine or imprisonment, or 
 both, according to the discretion of the court in which such con- 
 viction shall be had." Sess. 1 1. c. 19. 1 R. L. 1 11. 
 
 Sheriffs or other officers are forbidden to ask, demand, or re- 
 ceive any greater fees than are allowed by law, on pain of forfeit- 
 ing treble damages, with costs of suit to the party grieved; and 
 also two hundred ~and fifty dollars, to be recovered in a qui tarn 
 action, or information, by any person who shall sue for the same. 
 Sess. 30. c. 67. s. 9. 1 R. L. 422. 
 
 s Sac. Abr. Extortion is punishable at common law by fine and imprison*- 
 raent, and loss, of office. 
 
 FELONY. 
 
 I. Felony. 
 
 II. Misprision f>f Felony. 
 III. Theftbote. 
 
 I. Felony. 
 
 For the various kinds of felony, I must refer to the titles of this 
 digest, under which they are respectively considered. I shall, in 
 this place, merely collect some few particulars, which, at the 
 same time that they have relation to all the kinds of felony, are 
 yet too minute to demand a separate discussion. 
 
 " If any felon do rob or take away any money, goods, or chat- 
 tels from any person, and the said felon be thereof indicted and 
 found guilty, or otherwise attainted by reason of evidence given 
 by the owner of the said money, goods, or chattels, bills of ex- 
 change, bills or promissory notes for the payment of money, so 
 robbed or taken away, or by any other by his procurement, then 
 such owner shall be restored to his money, goods, or chattels, bills 
 of exchange, bills or promissory notes for the payment of money, 
 and the court, before whom the felon shall be so convicted, may 
 award writs of restitution for the said money, goods, or chattels." 
 Sess. 36. c. 8. s. 14. 1 R. L. 497. 
 
 " In all cases of felony heretofore committed, or which may 
 hereafter be committed, it shall and may be lawful for any person
 
 FELONY. 103 
 
 or persons injured or aggrieved by such felony, to have and main- 
 tain his, her, or their action, against the person or persons guilty 
 of such felony, in like manner as if the offence committed had 
 not been felonious ; and in no case whatever shall the right of ac- 
 tion of the party injured be deemed, taken, or adjudged to be. 
 merged in the felony, or in any manner affected thereby." s. '20. 
 
 " No conviction or attainder of any person, for any offence 
 specified in the act, entitled, l jlnact declaring the punishment of 
 ctrutin crimes,' except treason, shall hereafter work a forfeiture of 
 goods, chattels, lands, tenements, or hereditaments, or of any 
 right therein ; and all forfeitures to the people of this state 
 in the nature of deodands, and in cases of suicide, and where 
 any person shall flee from justice, shall be and hereby are abo- 
 lished." s. 3. 
 
 " The privilege or benefit of clergy, formerly allowed in cri- 
 minal cases, shall be forever abolished." s. 4. 
 
 "All appeals of felony shall be and hereby are abolished." s. 21. 
 
 "The justices of the supreme court shall have full power by 
 their discretion to remand and send down, as well the bodies of all 
 felons brought or removed into the supreme court, as the indict* 
 ments against such felons, into the said counties where the same 
 felonies were or shall have been committed, and to command all 
 justices of gaol delivery, justices of the peace, and all other jus- 
 tices and commissioners, having authority to hear and determine 
 the same felonies, to proceed and determine upon all the aforesaid, 
 felons and indictments so removed according to law, in such man- 
 ner as the same justices of gaol delivery, justices of the peace, 
 or commissioners, or any of them, might have done if the said 
 prisoners or indictments had never been brought in the suprenfe 
 court." s. 7. 
 
 Charges of Commitment; vide COMMITMENT, IV. 
 
 " It shall be in the power of the cgurt before whom any per^- 
 sen shall have been tried and convicted of any larceny or ottfer 
 felony, at the prayer of the prosecutor, and on consideration of 
 his circumstances, in open court to order the treasurer of the city 
 or county in which the offence shall have been committed, to 
 pay unto such prosecutor such sum of money as to the same 
 court shall seem reasonable, not exceeding the expenses which 
 it shall appear to the court the prosecutor was put unto in carry- 
 ing on such prosecution, and making him a reasonable allowance, 
 for his time and trouble therein. When any person from a foreign 
 state shall, at the request of the public prosecutor, attend as a wit- 
 ness to give evidence in any public prosecution, it shall be the duty 
 of the court, at which such witness shall attend, to order the treasurer 
 of the city or county in which the offence shall have been commit- 
 ted, to pay such sum of money as to the said court shall seem rea- 
 sonable, for his time, trouble and expense. When any poor person 
 shall appear on recognisance in any court to give evidence against 
 another accused of any larceny or othei- felony, it shall bp ;
 
 104 FfcLONV. 
 
 power of the court", at tlu> prayer, and on the oath of such person, 
 and on consideration of his circumstances, in open court, to order 
 (he treasurer of the city or county in which the offence shall have 
 been committed, to pay such sum of money as to the said court. 
 shall seem reasonable, for his time, trouble and expense ; which 
 order, in cither case, the clerk of such court is hereby directed 
 forthwith to make out and deliver to such prosecutor, upon bein/v 
 paid for the same the sum of twelve and an half cents, and no more, 
 and to such poor witness without fee or reward ; and the treasurer 
 of such city or county is hereby required, upon sight of any such 
 order, or as soon after as he shall have monies sufficient in his 
 hands, forthwith to pay to such prosecutor or witness, or other 
 person authorized to receive the same, such sum of money so or- 
 dered to be paid as aforesaid." s. 16. 
 
 " When any person shall be convicted of and fined for any crime 
 or misdemeanour, the court may, in their discretion, allow such 
 expenses to witnesses and prosecutors out of the same fine, as 
 such court shall judge reasonable, not exceeding the sum of twen- 
 ty-five dollars, and shall cause an entry thereof to be made in 
 the minutes of the court; and the clerk, in the estreat thereof, shall 
 mention the same, in order that the court of exchequer may know 
 how much of the said fine is to be answered to the people of thi 
 state ; and when such fine is paid to the sheriff or other officer, he 
 Khali pay such expenses, so allowed, out of the same." s. 1 8. 
 
 II. Misprision of Felony. 
 
 4 nt Com. Misprision of felony is the concealment of a felony which a man 
 
 3 Hale, 37.1. knows, but never assented to; for if he assented, this makes him 
 
 either principal or accessory. To save one's self from the crime of 
 
 misprision, it is necessary to discover the offence to a magistrate 
 
 with all possible speed. 
 
 Every sheriff, coroner, constable, or marshal, who shall con- 
 ceal, or procure to be concealed, any felony, shall be punished by 
 fine and imprisonment, in the discretion of any court having cog- 
 nisance of the offence. Sess. 24-. c. 3 I . s. 1 . 1 R. L. 1 4L>. 
 Li!'*" 8 ' Misprision, in a larger sense, is used to signify every considera- 
 ble misdemeanour, which hath not a certain name given to it in th? 
 law. 
 
 III. Theflloit-. 
 
 Theftbotc is where one not oniy knows of a felon}-, but faker. 
 his goods again, or other amends, not to prosecute. It is punisha- 
 ble by fine and imprisonment, unless it were accompanied with 
 some degree of maintenance or assistance given to the felon, which 
 makes the party an accessory after the fact. But the bare taking 
 of one's own goods again, which have been stolen, is no offence at 
 att, unless some favour be shown to the thief.
 
 FERRIES. 105 
 
 FERRIES. 
 
 Licenses for keeping ferries in the respective counties, are li> 
 be granted by the courts of common pleas for one year ; and every 
 person applying shall, before the license is granted, enter into a 
 recognisance in open court, in the sum of one hundred dollars, 
 faithfully to keep and attend such ferry, with a sufficient and safe 
 boat, or with such and so many sufficient and safe boats, and so 
 many men to work the same, as shall be deemed necessary, to- 
 gether with sufficient implements for said ferry, during the several 
 hours in each day, and at such rates as the common pleas shall 
 from time to time order, which recognisance shall be filed with 
 the clerk of the county : 
 
 And every person who shall offend herein, may be indicted for 
 the same before any court of record in this state proper to hear 
 the same, and shall be subject to such fine or penalty as such court 
 may order and adjudge : but it shall not exceed the sum of 
 twenty-five dollars for each offence ; and on proof of such con- 
 viction, the court of general sessions shall direct his recognisance 
 to be estreated. 
 
 If the waters over which a ferry may be erected divide two 
 counties, a license obtained in either will be sufficient. 
 
 No license shall be granted to any person other than the owner 
 or occupant of the land through which the highway adjoining to 
 any ferry shall run, unless such owner shall neglect to apply for 
 such license in manner by this act directed. Sess. 36. c. 64-. 8. 2. 
 iR. L. 210. . 
 
 " No person (except within the southern district of this state, 
 the counties of Orange, Essex and Clinton, and except as is 
 otherwise provided for by this act,) shall use any ferry, for trans- 
 porting across any river, stream or lake, Within this state, any 
 person, or any goods, chattels or effects, for profit or hire, unless 
 in the manner directed by this act, under the penalty of five dol- 
 lars for each offence, recoverable by action of debt, with costs, by 
 and in the name of any person who shall sue for the same before 
 any justice of the peace of the county where such offence shall 
 happen ; or if the same be committed on waters dividing two 
 counties, then in either of such counties ; which penalty, when 
 recovered, shall be paid, one half to the overseers of the poor of 
 the town where the offence shalljiappen, for the use of the pool- 
 thereof, and the other half to the use Sf the plaintiff in such suit ; 
 and if the offence shall happen on waters dividing two towns, 
 then one quarter of the penalty shall be paid to the overseers 
 of the poor of stich towns respectively, for the use of the poor 
 thereof." s. 1. 
 
 On certiorari from a justice's court. Harris sued Almy in the Aimyv. HaV 
 court below in an action on the case, for disturbing him in the R^J,. 175." 
 enjoyment of a ferry across the Cayuga lake, afc the tilla^* ? 
 
 ' M
 
 106 FIRING. 
 
 Ciuyuga, granted fo Harris by the courts of common pleas for 
 the counties of Cayuga and Seneca. A judgment for damages 
 was given in favour of Harris, on which the certiorari was brought 
 to (his court. Several errors were assigned ; but it will be suffi- 
 cient to state the opinion of the court. 
 
 Per curiam. There is one/errfir which we consider fatal, 
 and for that we think tnere must be a judgment of reversal. 
 The act to regulate ferries within this state prohibits any person, 
 except within the southern district, &cc. from keeping or using a 
 ferry, for transporting across any river, stream or lake, any per- 
 son or persons, or any goods or merchandise, for profit or hire, 
 unless licensed in the manner directed by that act, under a pen- 
 alty of five dollars. 
 
 If Harris had possessed a right, at the common law, to the 
 exclusive enjoyment of this ferry, then, the statute giving a 
 remedy in the affirmative, without a negative expressed or implied, 
 for a matter authorized by the common 'aw, he might, notwith- 
 standing the statute, have his remedy by action at the common 
 law. But Harris had no exclusive right at the common law, nor 
 any right but what he derived from the statute. Consequently, 
 he can have no right, since the statute, but those it gives ; anil 
 his remedy, therefore, must be under the statute, and the penalty 
 only can be recovered. Judgment reversed. 
 
 The act saves all rights granted to corporations or individuals 
 t'o establish and maintain ferries. 3. 1.5. 
 
 FIRING. 
 
 To prevent the firing of guns, pistols, rockets, squibs, and other 
 fire works, on the eve of the last day of December, and first and 
 second days of January, it is enacted, " That if any person or per- 
 sons whomsoever shall fire or discharge any gun, pistol, rocket, 
 squib, or other fire work, within a quarter of a mile of any building, 
 on the said eve or days before mentioned, every such person or 
 persona so offending, and being thereof convicted before any jus- 
 tice of the peace of the. city or county where such offence shall 
 be committed, either by the confession of the party or parties so 
 offending, or the oath of any one credible witness, shall for every 
 such offence forfeit the sum of forty shillings, with costs of suit, to 
 be levied by distress and sale of the offender's goods and chattels, 
 b j warrant under the hand and seal of the said justice before whom 
 such conviction or convictions shall be had as aforesaid ; the onr. 
 moiety of which forfeiture to be applied to the use of the poor of 
 the town or place wherein such offender shall be convicted, and 
 the other moiety to the use of the person or persons who shall pro- 
 secute for the same ; and for want of sufficient distress whereon 
 to levy {he suraej every such justice is hereby empowered &n/[
 
 FORCIBLE ENTRY AND DETAINER. 107 
 
 itquired, by warrant undur his hand and seal, to commit every 
 such pci'Hon or persons, so as aforesaid offending, to the common 
 gaol of the county wherein the said forfeiture shall arise, there to 
 remain, without bail or mainprize, for the space of one month, un- 
 less such forfeiture or forfeitures be sooner paid." Sess- 8. e. 81. 
 1R. L. 49. 
 
 FORCIBLE ENTRY AND DETAINER. 
 
 A forcible entry and detainer is committed by violently taking 4 B.l. Com. 
 or keeping possession of lands and tenements, with menaces, 
 force and arms, and without the authority of law. This was 
 formerly allowable to every person disseised, or turned out of 
 possession, unless his entry was taken a\vay or barred by his own 
 neglect, or other circumstances. But this being found very pre- 
 judicial to the public peace, it was thought necessary to restrain 
 all persons from the use of such violent methods, even of doing 
 themselves justice ; and much more if they have no justice in 
 their claim. So that the entry now allowed by law is u peacea- 
 ble one ; that forbidden is such as is carried on and maintained 
 with force, with violence, and unusual weapons. 
 
 J. JFhat is a forcible entry and detainer. 
 II. How remedied by statute. 
 
 III. Of conviction upon view. 
 
 IV. Of the proceedings to obtain restitution. 
 
 V. How restitution may be superseded or set aside. 
 VI. How remedied at common law. 
 
 I. What is a forcible entry and detainer, 
 
 " No person or persons shall hereafter make any entry into 
 any lands, tenements, or other possessions, but in cases where 
 entry is given by the law ; and in such case, not with strong hand, 
 nor with multitude of people, but only in peaceable and easy' 
 manner." Sess. 1 1. c. 6. s. 1. I R. L. 96. 
 
 To constitute a forcible entry and detainer, an actual force is Co. Lit. 257. 
 requisite; the force which the law implies in every trespass is s'uac. AU-. 
 insufficient for this purpose : it must he done with a strong hand, 25 *- 
 with unusual weapons, or with menace of life or limb; as where- s. 37. 
 ver a man, either by his behaviour or speech at the time of his 
 entry, gives those who are in possession of the tenements which 
 he claims, just cause to fuarHhat he will do them some bodily 
 hurt if they will not give way to him, his entry is to be deemed 
 forcible, whether he causes terror by carrying with him an 
 Unusual number of people, or by arming himself in such a man- 
 nes aj plainly intimates a design to back his pretensions by
 
 103 FORCIBLE ENTRY AND DETAINER. 
 
 force, or by threatening to kill, maim, or beat, those who shal T . 
 continue in possession, or by giving out such speeches as plainly 
 imply a purpose of using force against those who shall make any 
 resistance. 
 
 i"if wk'cuin A." entr }" ma y be forcible not only in respect to an actual 
 
 Dig forcible violence done to the person, as by beating a man if he refuse to 
 
 3 ''BM % Abr. relinquish his possession, but also in respect to any other kind 
 
 25*. of violence in the manner of the entry, as by breaking open the. 
 
 doors of a house, whether any person be in it at the same time 
 
 or not, especially if it be a dwelling house; and perhaps also by 
 
 any act of outrage after the entry, as, for instance, by carrying 
 
 a\\ay the party's goods. So if a man attempt to enter by force,. 
 
 although he afterwards gain an entry by entreaty, or if he enter 
 
 by force without ejecting the owner or continuing in possession, 
 
 it is a forcible entry ; and, in a word, every violent ejection of the 
 
 possessor comes under this head, although the previous entry 
 
 may have been peaceable. 
 
 "5^253 Abf ^' a raan cn ^ ors to distrain for rent in arrear with force, it is a 
 forcible entry, because, though he does not claim the land itself, 
 yet he claims a right and title out of it, which the statute forbids 
 him to exert by force. 
 
 oi/s^sel* C " H one find a man out of his house, and forcibly withhold him 
 from returning to it, and send persons to take peaceable posses- 
 sion of it in the party's absence, this, by some opinions, says 
 Hawkins, is no forcible entry, inasmuch as he did no violence to 
 the house, but only to the person of the other : hut he himself is 
 of a contrary opinion : for though the force be not actually done 
 upon the land, nor in the very act of entry, yet since it is used 
 with an immediate intent to make FU< h an entry, and the man- 
 ner of doing only prevents the opposition, it cannot be said to be 
 without force, which, whether it be upon or off the land, seems 
 equally within the statute. And if a man enter into lands where 
 any person's wife, children or servants are upon the lands to pre- 
 serve the possession, it is a forcible entry ; because whatsoever a 
 man does by his agents is his own act ; but his cattle being upon 
 the ground do uot preserve his possession, because they are not 
 capable of being substituted as agents; and therefore their resid- 
 ing upon the land continues no possession. 
 
 Forcible^""' ^ there be not an actual entry, or if it be not done forcibly or 
 r A. 3.; with a semblance of force, as if a man open the door with a key, 
 V r k. or come in through a window, it is not a forcible entry ; and for 
 r. 01. s. 26. the same reason, to draw up a latch, or pull back the bolt of a. 
 door, would not make an entry forcible, although there are op'r- 
 nions to the contrary ; but surely, Hawkins observes, such incon- 
 siderable circumstances as these, which commonly pass between 
 neighbour and neighbour, without any offence at all, can never 
 bring a man within the meaning of these statutes, which speak 
 of entries with strong hand or multitude of people. So if a man 
 IT-IP, in a peaceable manner, and entice the owner out of M'-
 
 FORCIBLE ENTRY AND DETAINER, 
 
 possession, or even exclude him by shutting the door, without using 
 further force, the entry is not forcible. So if it amount to no 
 more than a civil trespass, as if after entry he cuts the corn ov 
 grass ; or if the object of his entry bo not wrongful, as if a man 
 go across the land with force or a great company to church 01- 
 market : so if he enter to execute process of law, as to appre- 
 hend a felon, or to levy an execution : in none of these cases will 
 a forcible entry lie. Nor if he threaten to spoil the tenant's 
 goods, or to destroy his cattle, or to do him any injury which is 
 merely personal. 
 
 The same circumstances of violence or terror which will make Com. Dig. 
 an entry forcible, will make a detainer forcible also ; whence it u, {a i.) 
 follows, that whoever keeps in his house an unusual number of H g V J k ' c ' " 4 " 
 people, or unusual weapons, or threatens to do some bodily hurt 
 to the former possessor if he dare return, shall be adjudged guil- 
 ty of a forcible detainer, though no attempt be made to re-enter; 
 and it has been said that he also shall come under the like con- 
 struction, who places men at. a distance from the house, in order 
 to assault any one who shall attempt to make an entry into it ; 
 ;uid that he also is in like manner guilty who shuts his doors 
 against a justice of the peace coming to view the force, and obsti- - 
 nately refuses to let him come in. So if a lessee at will detain, 
 with force, after the will is determined, or a mortgagor after the 
 mortgage is forfeited ; but merely denying possession to the 
 lessor, or shutting the door against him, is 'not a forcible detainer. 
 
 If a man hold the possession by force, though his entry was ^ Bac - Abl> - 
 peaceable, the justices may remove him, if he had no right to 
 enter. 
 
 If several persons come in company where their entry is not 3 Ba ^- A l jf - 
 .lawful, and all of them, except one, enter in a peaceable manner, 257'. b. ' 
 and that one only, use force, it is a forcible entry in them all, 
 because they come in company to do an unlawful act : and there- 
 fore the act of the one is the act of them a!i, and he is presumed 
 .to be only the instrument of the rest; but it is otherwise where 
 one had a right of entry, for there they only come to do a lawful 
 act, and therefore it is the force of him only that used it. 
 
 It seems clear, says Hawkins, that no one can come within the * 4 ^J^' r ' 
 intention of the statute by any force whatsoever done by. him in 
 entering into a tenement, whereof he himself had the sole and 
 lawful possession, both at and before the time of such -entry ; as 
 by breaking open the doors of his own dwelling house, or of a 
 castle which is his own inheritance, but forcibly detained from 
 him by one who claims the bare custody of it. But lord Kenyon, 
 in the case of The King v. Wilson, observes, that perhaps some g^f*^ *(: 
 doubt may hereafter arise respecting what Mr. Sergeant Haw- 4 Bl. Com- 
 kins says, that, at common law the party may enter with force 
 into that to which he has a legal title ; but he gave no opinion 
 concerning that dictum, but leaving it to be proved or disproved 
 whenever the question aro<re.
 
 i 10 FORCIBLE ENTRY AND DETAINER. 
 
 t Ha j3 k ' *' ^ joint-tenant, or tenant in common, may offend against the sta- 
 tute, either by forcibly ejecting or forcibly holding out his cdm- 
 panion; for though the entry of such tenant is lawful, so that he 
 cannot be punished by an action of trespass, yet the lawfulness 
 of his entry no way excuses the violence, or lessens the 
 done to his companion, and consequently an indictment of forci- 
 3 Bme Ahr ^' e ent T ' nto ^ le m i pt >' ^ a manor, &c. is good, 
 is*. ' But if two are in possession of a house, and the one enters by 
 
 one title and the other by another, he that has right shall be sup- 
 posed to be in the possession; but the justices ought not to inter- 
 meddle, because there U no appearance of any force in either: and 
 therefore the party who thinks himself injured must have recourse 
 to an action at law for redre 
 
 4.,34.' If a man has been in possession ef land forever so lorg a time 
 
 by a defeasible title, and one who has a right of i- ; ,:r} makes a 
 claim to the land, and the wrongful possessor s . -s his 
 
 occupation with force and arms, he is pur*; rc-ible 
 
 entry and detainer, because all the estate of which he was seized, 
 before such claim, was wholly defeated by it, and hi? continuance 
 in possession afterwards, amounted in judgment of law to a new 
 entry. 
 
 He who barely agree? to a forcible entry made to his use, with- 
 out his knowledge or privity, shall not be adjudged to make an 
 entry within the statute, because he no way concurred in, or 
 promoted the force. 
 
 ' f ' It is said, that an Infant, or feme covert, may be guilty of a for- 
 cible entry and detainer, in respect to such violence as shall be done 
 by them in porson, but not in respect to what shall be done by 
 others at their command, because all such commands of theirs are 
 : also it is ?iid, th.it a feme covert may be imprisoned for such 
 oe, but not an infant, because he shall not be subject to cor- 
 poral punishment, by force of the general words of any statute 
 
 i he is not expreas'y named. 
 
 Not only such as have estates of freehold, but tenants for years, 
 ruaidians may avail themselves of this remedy. Sess. II. 
 c. 6. s. 0. 
 
 e ' An indictment lies for a forcible entry into an incorporeal here- 
 ditament, as for rent ; which might be committed either by the les- 
 see, or a stranger, violently resisting the landlord in making distress : 
 but a violence offered to another with respect to a way, or other 
 casement, does not come within the statute. 
 
 Rmfkei. V ' ^ l' es ^' r an entr j" into a church; and may be brought at the in- 
 t-Johns. R*P. stance of the trustees of the church, who have a constructive pos- 
 3 Johnt. Hep. session, by reason of their having the right of possession. 
 
 The trustees of the German Reformed Church in New-York, hav- 
 147. m " Rep * ing locked up the church, and fastened the windows, and taken 
 ' away the keys, the minister of the church, and the other defen- 
 dants, by direction of a large majority of the congregation, broke 
 o the church. The court held that an indicUueat against
 
 FORCIBLE ENTRY AND DETAINER. 1 1 1 
 
 Jay. Per curiam. The trustees have the possession and custody 
 of the temporalities belonging to the church, whether the same 
 consist of real or personal estate. They must therefore be consi- 
 dered as being, virtute oflicii, entitled to tho possession, and m 
 lawfully seised of the ground, and of the buildings belonging to the 
 church, and the merit or demerit of their conduct, in closing the 
 doors of the church against the defendant, cannot bo taken into 
 consideration in this case. Though the trustees hold the church- 
 property in trust for the church and congregation, still it is their 
 possession ; and the courts are bound to protect them against every 
 irregular and unlawful intrusion made against their will, whether 
 by members of the congregation or by strangers. 
 
 II. How rtmtdied by Statute, 
 
 The proceedings under the statute to prevent forcible entry and 9 J^ns. Rep, 
 detainer, are of a peculiar and anomalous kind. They are loose 4 Johns. Rep. 
 and of a mixed nature, being in substance a civil, and in form 198 ' 
 criminal prosecution. The statute apparently contains provisions 
 inconsistent with each other, or superfluous, the reason of which 
 is, that the statutes of the 5 R. II. the 15 R. II. the 8 H. VI. and 
 the 31 Eliz. on this subject, are all literally copied, in succession,^ 
 into our statute, though the latter English statutes enlarged ancj 
 improved upon the more imperfect remedy given by the two first 
 statutes. 
 
 " No person or persons shall hereafter make any entry into any 
 lands, tenements, or other possessions, but in cases where entry is 
 given by the law, and in such case, not with strong .hand nor with 
 multitude of people, but only in peaceable and easy manner ; and if 
 any person from henceforth do to the contrary, and thereof be 
 duly convicted, he shall be punished by fine and imprisonment. 
 ^nd further, nt all times when such forcible entry shall be made,, 
 nnd complaint (hereof cometh to the justices of the peace of the 
 same county, or to any of them, the same justices or justice shall 
 take sufficient power of the county, and go to the place where 
 such force is made, and if they find any that hold such place forci- 
 bly, after such entry made, the same justices or justice shall re- 
 cord such force, and set and impose a fine, not exceeding five 
 pounds, upon every of the said offenders,'to be paid by them, for 
 their said offences, to the people of this state, and cause every ol 
 theiii, so holding by force, to be taken and put into the next gaol, 
 there to abide convict, by the record of the same justices or jus- 
 tice, until they shall have respectively paid such fine to the people 
 of this state. Jind further, all the people of the county, as well the 
 sheriffs as others, shall be attendant upon the justices, to go and 
 assist the same justices to arrest such offenders, upon pain of fine 
 and imprisonment." Ser,s. 1 1. c. tS.s. I. 1 R. L. y(j. 
 
 "An 1 to the end that the party aggrieved, where any person 
 shall make auy su<*h entry by fo.rco, or stall er\t?r In
 
 j 12 FORCIBLE ENTRY AND DETAINER. 
 
 mumier,' and after hold by force, may have restitution. It is mad'-- 
 cd, that where any person doth make any forcible entry into any 
 lands, tenements, or other possessions, or them hold forcibly after 
 complaint thereof made, within the said county where such entry 
 is made, to the justices of the peace of the same county, or to any 
 one of them, by the party grieved ; the. same justices or justice, 
 so warned, within a convenient time, shall go to the place where 
 such force is made, taking the power of the county with him, or 
 them, if need be, and remove such force, if any there be; and 
 shall, at the cost of the party grieved, cause this act to be dul j 
 executed ; and whether the persons making such entries be pre- 
 sent, or departed before the coming of the same justices or justice, 
 the same justices or justice, in some good town in the same coun- 
 ty, next to the tenements so entered, or in some other convenient 
 place, according to their discretion, shall have, and either of them 
 shall have, authority and power to inquire, by the people of th 
 same county, as well of them that make such forcible entries into 
 lands or tenements, as of them which the same hold with force ; 
 and if it be found before any of them, that any doth contrary to 
 this statute, then the said justices or justice shall cause the lands 
 and tenements, so entered or holden as aforesaid, to be re-seized, 
 and shall put the party, so put out, in full possession of the same 
 lands or tenements, so entered or holden as aforesaid." And the 
 statute makes void feoffments and discontinuances made after 
 such entry to defraud the lawful possessor of his recovery, s. 2. 
 " When the said justices or justice make such inquiries as 
 aforesaid, they, or one of them, shall make a warrant or precept, 
 to be directed to the sheriffof the same county, commanding him, 
 in the name of the people of the state of New-York, to cause 
 to come before the same justices or justice, at a certain time 
 and place, therein to be specified, not less than two days from 
 the time of issuing thereof, twenty-four good and lawful men 
 of the same county, duly qualified to serve as jurors in such coun- 
 ty, on trials in the supreme court, to inquire of such entries; and 
 shall, at the time of making such warrant or precept, cause a no- 
 tice in writing, of the issuing thereof, and of the time and place of 
 the return thereof, to be afiixed up in some public and suitable 
 place, upon the lands or tenements so entered or holden, or de- 
 livered to the party against whom such complaint is made, if such 
 party be on the premises. .2/irf further, the sheriff shall return 
 issues upon every one of the jurors, at the day .of the return of the 
 lirst precept, twenty shillings, and at every day after, the double. 
 And if any person, who shall be indicted upon this act, before such 
 justices or justice, shall immediately traverse such indictment, 
 then the same justices or justice shall make a warrant or precept, 
 to be directed to the sheriff of the same county, commanding him. 
 in the name of the people of the state of New-York, to cause to 
 ',ome before such justices or justice, at a certain day, not less 
 than four, nor more than eight days from the time of issuing such
 
 FORCIBLE ENTRY AND DETAINER. 1 13 
 
 precept, and at a certain place therein to be specified, twelve good 
 and lawful men, of the same county, who shall be such as are, <r 
 shall be, qualified to serve as jurors as aforesaid, to try the same 
 traverse ; and the sheriff shall return issues upon every of them iti 
 Che manner aforesaid. And if any sheriff be siack, and make no 
 execution duly of such precept to him directed, to make such en- 
 quiries or try such traverse, he shall forfeit twenty pounds, for 
 every default, to the party grieved; to be recovered, with costs df 
 Suit, in any court of record in the same county where the offence 
 shallbe committed, by action of debt, bill, plaint, or information, s.3. 
 
 " It is enacted, that no restitution upon any indictment of forci- 
 ble entry, or holding with force, be made to any person or per- 
 sons, if the person or persons so indicted, or his or their an- 
 cestors, or those whose estate they have in such lands and tene- 
 ments, hath or have had the occupation, or hath or have been in 
 <juiet possession, by the space of three whole years together, 
 next before the day of such indictment so found, and his, her, or 
 their estate or estates therein not ended or determined, which the 
 party indicted shall and may allege for stay of restitution, and res- 
 titution to stay until that be tried, if the party complaining will 
 deny or traverse the same ; and then the justices or justice, be- 
 fore whom such indictment shall be found, shall proceed to try 
 the same, in the manner herein before directed, s. 4. 
 
 " If the allegation or traverse taken and made by the person 
 or persons, be tried against the person or persons so indicted, 
 either before the same justices or justice, or before the justices of 
 the supreme court, or either of them, in case the proceedings be 
 xemoved into the supreme court before such trinJ, then, and in 
 every such case, restitution shall be awarded by the justices or 
 justice before whom the same shall be tried, or by the supremp 
 aourt, in the same manner as if no plea or traverse had been made 
 or put in by such persons so indicted ; and the person or persons 
 so convicted, shall pay such costs and damages to the party com- 
 plaining, as shall be assessed by the justices or justice before whom 
 the same is tried, or by the supreme court, if the proceedings 
 shall be removed into the supreme court before such trial as 
 aforesaid ; the same costs and damages to be levied and recover- 
 ed in the same manner as costs and damages upon judgments in 
 other actions are recovered, s. 5. 
 
 " This act shall extend as well to tenants for years and guardians, 
 as to such as have estates of freehold." s. (5. 
 
 By s. 7. a remedy by assise of novel disseisin, or writ of trespass, 
 is given ; and if an entry or a holding with force be found by ver- 
 dict or other due course of law, the plaintiff shall recover treble 
 damages, with costs of suit. 
 
 By s. 8. mayors, recorders, justices of the peace, aldermen, and 
 sheriffs of cities, are empowered to execute this act, io !i)ce Ban- 
 BPJ- 3-: <!;?t;c^ of *ho rcacs and sheriffs of con^tirs.
 
 FORCIBLE ENTRY AND DETAINER, 
 
 III. Of conviction vpon view. 
 
 ?nurm.2i. It is not necessary, in order for the justice to proceed under 
 
 bait. c. 44. tj le f irst soc tioa of the act, that complaint should be made to him 
 by the party grieved, but he ought to proceed upon any knowledge 
 or information whatsoever. The act requires all people of the 
 county to be attendant upon the justices. The justice must go to 
 the place when the force is made, and if upon coming to a house 
 to remove the force, the doors are found shut, and those within 
 the house shall deny the justice to enter, it seems he may break 
 open the house to remove the force. 
 
 Mathc-v v. One justice is competent to record the force and to convict ; 
 
 1*"??' T and his record is a sufficient conviction of the offender, and is not 
 
 a Johns. Kep. 
 
 44. traversahle, because the justice, in making it, acts not as a minister, 
 
 but as a judge. It is as strong and effectual as if the offender had 
 confessed the force. When the record shows that the justice 
 had jurisdiction, and that he proceeded regularly, it is conclu- 
 sive. It cannot be brought in question in an action against the 
 magistrate, and is a full and complete bar to any suit against 
 him. 
 
 icaines,i29. , It is then the duty of the justice to impose a fine ; and a con- 
 SL 1 ^g7 k ' c " viction where the party is committed till a fine be paid, without 
 2 Burn. 263. imposing one, is bad ; and if there are several offenders, the fine 
 must be severally assessed. It has been adjudged that the jus- 
 tice may assess the fine either before the conviction or after ; 
 but it is said that the justice has no power to commit the offender 
 to gaol, unless he do it immediately upon the fact, or unless the 
 offender shall afterwards refuse to find sureties for his good, 
 behaviour. It has also been holder), that if a person against 
 whom a complaint shall be made, as having been guilty of a for- 
 cible entry, shall either traverse the entry or the force, or plead 
 that he lias been three years in possession, the justice may sum- 
 mon n jury for the trial of such traverse, for it h impossible to 
 determine it upon view ; and if the justice have no power to try 
 it, it would be easy for any one to elude the statute by the tender 
 of such a traverse, and therefore, by a necessary construction, the 
 justice must needs have this power, as incidental to what is ex- 
 pressly given him. 
 
 2 Bum. :ej. If the offenders, at the coming of the justice, make no resistance, 
 nor make show of any force, the justice: cannot arrest nor remove 
 them at all upon such view. 
 
 L' 9 !a " k - In the proceedings under this section of the act, it need not be 
 n who had the freehold at the time of the force, because it 
 equally punishes all force of this kind, without regarding what 
 cbtafc the party had on whom it was made ; yet it seems that It 
 ought to show that it was made on the possession of some person 
 who had some estate in the tenements, cither as a \ 
 lessee for year?, or otherwise.
 
 FORCIBLE ENTRY AXD DKTAINMLl. 
 
 This section of the act, which is copied from the 5 and 1-R. li. i } . 
 does not give any remedy against those who were guilty of a 6 ' 
 forcible detainer after a peaceful entry, nor against those who 
 were guilty both of a forcible entry and forcible detainer, if they 
 were removed before the coming of a justice of the peace, and 
 does not give the justice any power to restore the party injured 
 to his possession. These deficiencies are however supplied by 
 the subsequent sections of the act, in which another and more 
 tflicacious mode of proceeding is pointed out. 
 
 IV. Of the proceedings to obtain restitution. 
 
 The third sec! ion of the act contains the provisions under which ^: "'-;n,c : 
 
 J. People \. 
 
 modern proceedings by indictment are generally conducted. Anthony, 4. 
 This section supersedes the uecessity of the justice previously ^ lil3 - ile P' 
 going in person to view and record the force. Both proceedings 
 cannot be necessary at the same time ; and though the third sec- 
 tion says, that " when the justice makes such inquiries," he shall 
 issue his precept, this is not to be construed as imperative upon 
 him to have a previous view and record of the force, so as to ren- 
 der the proceedings erroneous without such previous view. 
 
 The tenement in which the force was committed, must be 1 Hawk, r, 
 described with a convenient certainty, for otherwise the defendant 
 will neither know the special charge to which he is to make his 
 defence, neither will the justices or sheriff' know how to restore 
 the injured party to his possession; and from hence it follows 
 that an indictment of a forcible entry into a tenement, or into a 
 house or tenement, or into certain lands belonging to such a house, 
 without showing in what town it lies, is not good. The indict- 
 ment may he void only as to such part as is uncertain, and good 
 for so much as is certain, and therefore an indictment i|tf a forci- 
 ble entry into a house, and certain acres of land thereto belong- 
 ing, may he quashed as to the land, and stand good as to the house. 
 
 The indictment must show that the place wherein the force j n au i.-. ... 
 was committed was the freehold of the party grieved at the time , 6 ; 1 - s - ) 38 - 
 of such force, and unless this is stated, restitution cannot be award- Shaw,*" 1 
 ed ; yet the delect may be supplied by such words as necessarily j^'^^J 1 * 
 imply that the party was seised at the time of the force. And if v. Kinc, 
 it appear either expressly or by implication, that the party injured ~ ^"^'^P- 
 had the freehold of the land at the time of the force, it is not 
 necessary to show farther what estate he had therein, or by what 
 title he claims the same ; for it is not the title, but the possession, 
 which is in question. And upon the like ground it has been ad- 
 judged, that an indictment for entering on my farmer, and forcibly 
 expelling him and disseising me, is good, without showing v/ha!: 
 estate such farmer had ; for it is sufficient to show that, he hail 
 the possession, and the injury complained of is the forcible 
 disseisin done to me, which being the main point of the indict- 
 jneut, if it he sufficiently set forth in substance, the indictment &
 
 FORCIBLE ENTRY AND DETAINER. 
 
 good ; yet in this very case, the want of showing that such farmer 
 was ousted, would be an incurable fault ; because, his possession 
 being ray possession, unless he were ousted I could not be 
 disseised. 
 
 v J Luirmi le Peaceable possession is evidence of seisin to support the allega- 
 
 ujohufcRep- lion in the indictment, that the complainant was seized. And the 
 
 title to the premises does not come in question ; but it is sufficient 
 
 for the complainant to recover, if he show himself to have been in 
 
 peaceable possession before the defendant's entry. 
 
 i n>u- c. i n an indictment on the sixth section of the act, it must be 
 s Bac. Abr. shown that the party injured was possessed of such an estate as 
 would bring him within the provision ; therefore, if the indictment 
 set forth in general that the party was possessed, or that he was 
 possessed for a certain term, without adding that it was for years, 
 is not good. And, generally, an indictment under any of the 
 branches of the act should show what estate the party expelled 
 had in the premises, that it may appear that he came within its 
 provisions. 
 
 Hawk. c. ^ repugnancy in setting forth the offence is an incurable fault ; 
 as if the indictment set forth that the party injured was possessed 
 of a term for years, and that the defendants, with strong hand, 
 ousted and disseised, is void, because it is absurd and contradic- 
 tory to set forth a disseisen of such an estate, whereof it is im- 
 possible that any man can be disseised. 
 
 i Hawk. c. An indictment of a forcible detainer, without showing that the 
 
 The People defendant made an entry, either forcible or peaceable, into the 
 
 v. siiaw. lands, is not good, because the statute does not prohibit one who 
 
 125. has always been in possession to maintain the same by force. 
 
 i Hawk. c. jj nas Deen resolved that no indictment can warrant an award 
 
 of restitution, unless it find that the wrong doer both ousted the 
 
 party griaKed, and also continues his possession at the time of 
 
 finding tn^ indictment; for it is a repugnancy to award restitution 
 
 of possession to one who never was in possession, and it is vain 
 
 to award it to one who does not appear to have lost it. 
 
 i Hawk. c. The time, and place of the disseisin are sufficiently set forth in 
 an indictment, alleging that, the defendant on such a day entered, 
 Sfc. and him the said Jl* 73. ivith strong hand disseised, without 
 adding the words then and there ; for inasmuch as the entry and 
 disseisin are both of them of the same nature, and the one of 
 them naturally tends to cause the other, it is implied that they 
 both happened at the same time. 
 
 } Hawk. c. An indictment alleging the entry to have been made with strong 
 kex v. v/ii- hand, need not expressly say that it was made with force and arms* 
 R"P S s57 C1 " l )( ' eausc those words are implied in the former. Likewise an in- 
 dictment may be good without mentioning any complaint, for if 
 a justice of the peace have by any means whatsoever notice of a 
 forcible entry or detainer, he may and ought to proceed against 
 the same according to the statute, as being a disturbance of tKc 
 public peace.
 
 FORCIBLE ENTRY AND DETAINER. 117 
 
 If a bill both for a forcible entry and forcible detainer be pre- i Hawk. c. 
 xerred to a grand jury, and found ignoramus as to the entry, and 64 - s<4 2 
 billa vera as to the detainer, it is void, because a grand jury can- 
 not find a bill true for part and false for part, as a petit jury may. 
 
 If the grand jury, having been summoned according to the 
 provisions of the act, s. '3. find the indictment, the defendant must 
 be admitted to traverse it by pleading not guilty to the force, or 
 to plead his three years possession in bar under the fourth sec- 
 tion of the act, which if denied by the party complaining, the 
 justice is, in all these cases, required to summon a petit jury to 
 try the traverse. 
 
 That the continuance of a possession for three years may be a i Hawk, i . 
 bar to restitution, such possession must have continued without 
 interruption during three whole years next before the indictment ; 
 and therefore, if one, who has been in possession of land for '.. 
 
 three years or more, be forcibly ousted, and then restored, he can- 
 not justify a forcible detainer till he have been in possession 
 again for three years after such restitution ; and also for the 
 same reason it has been said, that he who, under a defeasible title, 
 has been ever so long in possession of land to which another has 
 a right of entry, cannot justify a detainer at any time within three 
 years after a claim made, by him who has such right, because 
 all defeasible estates in the land are wholly defeated by such a 
 claim, and the subsequent continuance in possession amounted to 
 a new entry. 
 
 It had been held by some that the three years possession must 1 Hawk. c. 
 be of a lawful estate, but Hawkins is of opinion that three 
 years continuance of a defeasible possession would justify a de- 
 tainer by fo ,e against a stranger, inasmuch as he cannot take ad- 
 vantage of an ther's right, and bare possession is a good title against; 
 all persons except him who has the right, and cannot be lawfully de- 
 feated by any other. Also, that if one who has the mere right to 
 lands, neglect to recover the possession, 'till in judgment of law he 
 has no more right to such possession, until he recover it by action, 
 than a mere stranger, there does not seem to be any reason that 
 he should have more advantage against a forcible detainer than if 
 he were a mere stranger. 
 
 Holding over by force, where the tenant's title was under a Cro.Jac. is?. 
 lease then expired, is said to be a forcible detainer. 
 
 It has been held that a peaceable continuance in possession for i Hawk. c. 
 tbree years after a forcible entry, under any title whatsoever, will 
 not justify a forcible detainer, inasmuch as the possession was at 
 first gained by force ; but, says Hawkins, I cannot think this 
 a reasonable construction, for the force in the detainer being after 
 three years quiet possession, seems justifiable by the express words 
 of the statute : and where the force used in gaining a possession is 
 afterwards wholly laid aside, there seems to be no colour to say, 
 that it makes the subsequent possession less quiet or peaceable 
 than it would have been if there had been no force at all used at 
 ihe ftrst.
 
 118 
 
 1 Hawk. c. 
 64. I. 56. 
 
 n Bac. Abr. 
 259. 1 Hawk, 
 c. 64. 1. 57. 
 
 1 Bac. Abr. 
 
 250. 1 Hawk. 
 
 c. 64. s. 57, 
 
 53. 
 
 The People 
 
 T. Aiitlicny, 
 
 cited infra. 
 
 Hawk. 
 i. I. 4-5. 
 
 : Hawk. 
 
 54. s. 40. 
 
 S Baa. Abr. 
 
 233. 
 
 1 Hawk. c. 
 
 64. s. 49, SO, 
 
 51. 
 
 1 Hawk. c. 
 64.5. 52. 
 
 1 Caines'Rcp. 
 1 15. 4 Johns. 
 Rep. 198. 
 The People 
 v. King, 
 
 2 Caines' 
 Rep. 93. 
 
 * FORCIBLE ENTRY AND DETAINER. 
 
 The plea of possession is good, without showing under what 
 title, or of what estate such possession was, because, it is not the 
 title, but the possession only, which is material in this case. 
 
 If one who has been three years in possession be afterwards 
 ousted, and the same day re-enter with force, and be also indict-, d 
 on the same day ; yet it seems that by the plain manning and 
 reason of the statute, he can no more bar the restitution of the 
 party forcibly entered upon, than if he had been inuictc 
 another day. 
 
 If the defendant tender a traverse of the force, no restitution 
 ought to be awarded till such traverse be tried, in order to which, 
 the justice before whom the indictment is found ought to award 
 a venire for a jury ; but if such jury find so much of the indict- 
 ment to be true as will warrant a restitution, it will be sufficient, 
 though they find the other part of it to be false ; as if they find 
 that the entry was peaceable, and the detainer only forcible. 
 
 When tlie jury finds for the prosecutor, if he become entitled 
 to judgment by the confession of the defendant, or in any other 
 manner, the justice must award restitution to the party injured. 
 
 Restitution ought only to be awarded for the possession of such 
 tenements as ;uv visible and corporeal : for all the remedy that 
 can bedesir.-d n.T."iii';t a force offered to a man in respect to such 
 as are incorporeal, is to have the actual force removed, and the 
 offender punished, which may be done by virtue of the first sec- 
 tion of the act alone. 
 
 I-Vstitution shall only be given to him who is found by the in- 
 dictment to have been put out of an actual possession, and conse- 
 quently it h>lKll not be awarded to one who was only seised in. 
 law, as to an ht-ir upon whom a stranger abates, on the death of 
 Mo HI c.etn.nr, before any actual entry made by such heir; and 
 from the same ground it follows, that it shall not be granted to an 
 licir upon an indictment finding a forcible entry made upon his 
 ancestor. 
 
 The same justice or justices, before whom the indictment is 
 found, may award restitution, but no other justices, unless the in- 
 dictment be removed by certiorari, in which case the court above 
 may restore the party. And the justice may execute the same in 
 person, or make his precept to the sheriff to do it. 
 
 The sheriff, if need be, may raise the power of the county to 
 assist him in the execution of a precept of restitution. 
 
 The statute gives damages and costs only, when the party in- 
 dicted traverses the indictment, and is convicted. 
 
 On certiorari. It was moved to quash the conviction, and that 
 a re-restitution issue ; six objections were raised : the following 
 arc those which were taken notice of by the court. The 2d. 
 Twenty-four persons were sworn upon the grand jury, who found 
 the bill, so that more than twelve were necessary to the finding. 
 5th. Because, when the defendant voluntarily appeared and of- 
 fered to traverse, he was refused. 6th. Because it is not alleged
 
 FORCIBLE ENTRY AND DETAINER. 119 
 
 that the complainant was seised or possessed of the premises. 
 KENT, Ch. J. held all these objections fatal. 
 
 On certiorari, brought by the defendant, who had been found J h ^^!* 
 guilty, and restitution awarded. KENT, Ch. J. delivered the 4 John*. Hep. 
 opinion of the court. One objection to the proceedings in this 198- 
 case is, that there was no legal traverse, because it is not shown to 
 have been in writing. The record states, that " the indictment 
 being read to the defendant by the justice, he pleaded thereto, 
 that he was not guilty of the premises in the said indictment by 
 the said jurors found." The words of the statute are, " that if 
 any immediately traverse such indictment, then the justice shall 
 make a precept," fee. There is nothing in the statute requiring 
 this traverse of the force to be in writing ; and though Hawkins 
 says, that it must be done in writing, and not by a bare denial of 
 the force by parol, yet none of the authorities to which he refers 
 appear to support this position, and it is against all the rules of 
 pleading in criminal cases. 
 
 Another objection is, that the conviction is not warranted by the 
 indictment, as the latter is for a forcible entry and detainer, and 
 the former of a detainer only. There is no weight in this objec- 
 tion. On an indictment for a forcible entry and detainer, the 
 petit jury may find the defendant guilty of the detainer only, for. 
 a writ of restitution will equally go, as if the conviction had reach- 
 ed to the whole indictment, and the assessment of the damages 
 will be in proportion to the degree of guilt or injury. On an in- 
 dictment for grand larceny, the defendant may be found guilty of 
 petit larceny only ; or on an indictment for robbery or burglary, 
 he may be found guilty of simple larceny ; and on an indictment 
 for murder, the verdict may be for manslaughter, and these seve- 
 ral convictions will be good. The same reason applies to the pre- 
 sent case. 
 
 The last objection which I shall notice is, that the justice ought, 
 to have set a fine upon view of the force. The record states, 
 that after the verdict and award of restitution, the justice did 
 " adjudge that the said A. pay to the said C., for his damages, 
 which he had sustained in the premises, twenty-four dollars." 
 The statute says, that the party convicted upon the traverse, 
 "shall pay such costs and damages to the party complaining, a* 
 shall bo assessed by the justice before whom the same is tried.'' 
 It appears then, that the assessment in this case was strictly in 
 conformity with the statute. The fim: spoken of in the books, is 
 when the justice convicts one of a forcible detainer upon view, 
 according to the provision in the first section of the statute ; bul: 
 in a proceeding by indictment and traverse, under the third sec- 
 tion, as this was, the assessment, as in the present case, must be 
 correct. 
 
 An indictment fora forcible entry and detainer was removed T '' People 
 "hy a d , -iio.-dri, and a ddault having been entered against the d:>- 
 co'.ut above, it was now moved tr set as; '
 
 FORCIBLE ENTRY AND DETAINER. 
 
 proceedings, on the ground of irregularity, that J. F. was land 
 lord of the tenant in possession of the premises ; and that thr 
 defendant had a good defence on the merits. 
 
 Per curiam. On the merits we are of opinion the proceeding* 
 ought to be set aside. Here is colour for the suggestion, that the 
 defendant was tenant to J. F. ; at least the fact is litigated, and 
 ought to be otherwise determined. This is an application to the 
 equitable discretion of the court ; and those who stand behind 
 the tenant, may here, as in ejectment at common law, and inde- 
 pendent of the statute, be received to defend the right. J*F. 
 claiming the premises as landlord of the defendant, and the latter 
 disclaiming his title, and attorning to another, are facts which may 
 be tried in the present action, and ought to arrest any collusive, 
 proceedings between the prosecutor and the defendant. It is 
 unnecessary here to say in what form the landlord may be ad- 
 mitted to defend ; but his right to make a defence, we think, 
 is undoubted. 
 
 V. How restitution ,nay be superseded or set aside. 
 
 i Hawk. c. The same justices by whom a restitution is awarded, upon au 
 64. $.60, 6i. indictment of forcible entry or detainer found before them, may 
 also, afterwards, upon an insufficiency of the indictment appear- 
 ing unto them, supersede the same before it is executed : and it 
 has also been said, that if such an indictment be taken, and resti- 
 tution awarded by four or five justices, that two, or even one, of 
 the same justices may supersede the execution thereof, as well 
 as more or all of them. But no other justices have such power. 
 However, it is certain that a ctrliorari is a supersedeas to such 
 restitution, and avoids any restitution which is executed after the. 
 teste, but does not bring the justices into a contempt, unless they 
 proceed after it has been delivered to them. 
 
 T h R Pe t P | le ^ was sa '^ ky th e supreme court, that the granting the ccrtio- 
 f> Johns. Rep. rari to remove the proceedings, is as much a matter of course, 
 j54 ' as the granting of a habeas corpus. Where the right to the pos- 
 
 session of land is in question, the party has a right to have it 
 tried ia this court. 
 
 The People From the general discretionary power the supreme court haF 
 H^ne^Rep. in these cases, they may set a restitution aside, and award a rc- 
 1:5. Per restitution, (whenever it shall annear that restitution hath been 
 
 I'ttvis Ch. J 
 
 illegally awarded,) either for insuificiency, or defect in the indict- 
 ment, or other cause. It was decided in this court in the case of 
 Beebe and others ads. The People, (January term, 1802,) that if 
 the indictment be bad, re-restitution must follow of course : and 
 in that case the indictment was quashed and re-restitution 
 awarded. But this is not within any of the statute provisions for 
 costs, and none are recoverable. 
 
 ^ h< Ki^ p:e On a mot i n for re-restitution, the court will not decide bj 
 caincJ' affidavit on the title er rights of the partv. The complninair 
 
 '3.
 
 FORGERY. 
 
 below must give up the possession irregularly obtained, put Ae 
 defendant in statu quo, and then proceed legally to the question 
 of title. 
 
 Where the indictment is removed before conviction, the tra- s Johns. Rep. 
 verse may be tried at the sittings or circuit. Rep.447, 
 
 If the supreme court affirm the conviction, and if restitution 4 Johns. Rep. 
 Las not already been had, the court will award the same, with, 1OT * 
 process of execution (if the case comes within the provision of 
 the act giving damages and costs) for the damages assessed, to- 
 gether with the costs in this court to be taxed against the de- 
 fendant. 
 
 VI. How remedied at common law. 
 
 An indictment for a forcible entry will lie at common law, by R es v. sfti-r, 
 which the party may be punished for a breach of the peace. The R^ " y r> g^' 
 indictment ought to show, upon the face of it, an indictable of- sBurr, 173*! 
 fence, as that the entry was made " with a strong hand ;" but the wuson. 
 words, " with force and arms," are insufficient to support the in- L T ''j? J ^ 
 dictment, for they are no more than are used in every action of 045. 
 trespass. It does not appear to be necessary to state the interest of 
 the prosecutor in the lands or tenements ; but the safest and most 
 usual way is to proceed upon the statute, above set forth and 
 Commented upon. 
 
 FORGERY. 
 
 Forgery is the fraudulent making or alteration of a writing, to 4 BJ. Com, 
 the prejudice of another man's right; and, at common law, was ** 7 ' 
 punishable by fine and imprisonment. 
 
 I. What is necessary to constitute forgery. 
 
 II. As to what writings it may be committed, 
 
 III. Publishing or uttering. 
 
 IV. Punishment. 
 
 I. What is necessary to constitute forgery. 
 
 A. deceitful and fraudulent intent is of the essence of this offence. aEiut, P. c 
 Therefore, if one alter an instrument, without the appearance of 8i *' 
 a fraudulent design to cheat another, as by erasing, in a bond made 
 to himself, the greater sum, and inserting a less, it is not forgery. 
 But it is said that it would be forgery, if it any way appeared to be 
 done with a view of gaining an advantage to the party himself, or 
 of prejudicing a third person ; and in all cases of forgery, proj.rrly 
 so called, it is immaterial whether any person be actually injured 
 or no^. provided any may be prejudiced by it.
 
 FORGERY. 
 
 . c. .The very making, with such fraudulent intent, and without law- 
 ful authority, of any instrument which by common law, or by sta- 
 tute, is the subject of forgery, is of itself a sufficient completion of, 
 the offence, even before publication, and of consequence before 
 any actual injury sustained : for though publication be the medium 
 ly which the intent is usually made manifest, yet it may be proved 
 as plainly by other evidence. And by the statute law, the publica- 
 tion, with knowledge of the fact, is for the most part made a sub- 
 stantive offence. 
 
 2 Kast.p. c. If a bill of exchange, payable to A. or order, get into the hands 
 of another person of the same name with the payee, and such 
 person, knowing that he is not the real payee in whose favour it 
 was drawn, indorse it for the purpose of fraudulently possessing 
 himself of the money, he rs guilty of forgery. So if one put off a 
 note, subscribed w ith his own name, as the note of another, it is a 
 false uttering and publishing within the statute. 
 
 ; c. 3Iakirg a fraudulent insertion, alteration, or erasure, In any ma- 
 terial part of a true instrument, although but in a letter, and even 
 if it be afterwards executed by another person, he not knowing of 
 the deceit ; or the fraudulent application of a true signature to a 
 fr.lse instrument, for which it was not intended, or vice versa, are 
 as much forgeries as if the whole instrument had been fabricated ; 
 for any such alteration gives it a new operation : as by altering the 
 date of a bill of exchange, after acceptance, whereby the payment 
 was accelerated. 
 
 2 East, r. c. In all cases, the thing made must be false ; for certainly a man 
 
 836> cannot be guilty of forgery, merely by passing himself off for the 
 
 person whose real signature appears, although for the purpose of 
 
 fraud, and in concert with such real person ; for there is no false 
 
 making. But this appears to be a false pretence within the act. 
 
 2 East, r. c. Where the forgery consists in counterfeiting any other known 
 
 is8. MS. instrument, it is not necessary that the resemblance should be an 
 
 exact one ; if it be so like as to be calculated to deceive, where 
 
 ordinary and usual observation is given, it seems to be sufficient. 
 
 But it is necessary that the forged instrument should, in all essen- 
 
 tial pruts, have upon the face of it the similitude of a true one : so 
 
 that it be not radically defective and illegal in the %ery frame of it. 
 
 2 East, P. c. Where the forged instrument appears on the face of it to be in- 
 
 9i& valid, it will not support the indictment ; as if a man forge a will of 
 
 freehold lands, which is attested but by two witnesses, it is not 
 
 felony, because the statute of frauds requires the attestation of 
 
 three witnesses ; it is, however, otherwise, where the want of vali- 
 
 dity in the instrument must be collected from extrinsic circum- 
 
 stances ; as if a man publish a forged will, and it appear that the 
 
 person by whom it is purported to have been made is living. 
 
 r. The prisoner was comicted of uttering a forged note, purport- 
 
 Ilcp ing to be a bank note of the Vermont state bank, for seven; 
 
 cents, with intent to defraud one I. W. and also, with feloniously 
 having. the same note iu his possession, with intent to pass it and
 
 FORGERY. i i 
 
 defraud some person or body politic unknown. Per curium. The 
 act of the 21st of March, 1801, (sess. 24. c. 54.) makes it felony 
 to forge, or utter and publish any promissory note for the payment 
 of money. This was undoubtedly a promissory note on the face 
 of it, and purported to be good and valid. Notes of this descrip- 
 tion are not absolutely void, for they may be collected of the bank 
 of Vermont. But for the purposes of circulation they are void in 
 this state; for the act (sess. 30. c. 173.) declares, that " no person 
 shall give or receive, in payment of any debt or demand whatso- 
 ever, or in any way offer or attempt to circulate any bank bill, 
 or promissory note of any banking company, within this state or 
 elsewhere, for the payment of money, which shall be for less 
 than the nominal value of one dollar; and every person oifend- 
 ing against the act, shall forfeit and pay the amount or value ol' 
 such bank bill or note, with the costs of suit." 
 
 It cannot, therefore, be a felony, to utter and publish in this 
 state such a forged bill; because no person can be defrauded, as 
 every person is bound to know that it is unlawful to accept in 
 payment, or circulate, such a bill. The fraudulent intent is the 
 gist of the charge, and that intent cannot be inferred from utter- 
 ing the bill, when every person knows that it is unlawful to re 
 eeive it, and that it is void as to the purposes of payment and circu- 
 lation. The opinion of all the judges in England, in Moffat's case, 
 (Leoc/i, 337,) was, that the forging a bill of exchange, which if 
 real could not have been valid or negotiable, but void under thi- 
 statute, was not a capital offence. We do not mean to say, that it 
 would not be felony to forge such a bill, or larceny to steal it, but 
 only, that offering it for circulation is not felony ; because it i* 
 (It-flared to be incapable of any such use. 
 
 The prisoner has been convicted of possessing the forged bill, 
 with intent to pass it, under the 7th section of the act of the 8th 
 of April, 1808. (Sess. 31. c. 153.) But if it is not felony to utter 
 it, it cannot be felony to possess it with intent to utter it. The 
 prisoner was discharged. 
 
 A man may be guilty of forgery by making an instrument, which 2 East, i'. c. 
 is the subject of forgery, with a fraudulent intent, in the name of a 9i7 ' 969 ' 
 non-existing person, as by drawing a bill of exchange with ficti- 
 tious names, or by endorsing it in the name of a fictitious person, 
 with intent to defraud : as where a man, having stolen a bill of ex- 
 change, in order to get it discounted and avoid detection, wrote 
 the name of a fictitious endorser upon it, it was adjudged forgery. 
 
 He who writes a deed in another's name, and seals it in his prc- i Hawk.c.ro. 
 utnce, and by his command, is not guilty of forgery, because the s>3> 
 law looks on this as the other's own sealing. 
 
 II. Jls to what writings it may be committed. 
 
 The counterfeiting of any writing with a fraudulent intent, sKasi.P. c. 
 whereby another may le prejudiced, is forgery at common law. 8
 
 124 FORGEhi. 
 
 Henee, case's not coming within any statute provision may, noi- 
 withstanding, hr proceeded against by an indictment at common 
 law ; but as the greater number of instances in which forgery may 
 be committed are embraced by the act, and as the heinousness 
 of the offence is thereby aggravated from a simple misdemeanour 
 to a felony, it is to that alone that the attention of the reader will 
 be directed. 
 
 "If any person shall falsely make, alter, forge, or counterfeit, 
 or cause or procure to be falsely made, altered, forged or coun- 
 terfeited, or willingly act or assist in the false making, altering, 
 forging or counterfeiting any record, charter, deed or writing seal* 
 ed, will, testament, bond, writing obligatory, bill of exchange, pro- 
 missory note for payment of money, or any note or specialty for 
 the payment of money, and expressed to be payable in any goods, 
 wares, or merchandises, endorsement or assignment of any bill of 
 exchange or promissory note for payment of money, or any ac- 
 quittance or receipt, either for money or goods, or any acceptance 
 of any bill of exchange, or the number or principal sum of any ac- 
 countable receipt for any note, bill, or other security for payment 
 of money, or any warrant or order for payment of money or deli- 
 very of goods, whether such order purports to be the order of the 
 owner of the goods or money specified therein, or of some per- 
 son who claims an interest in the same, or of any other person, 
 with intention to defraud any person, or body politic or corporate 
 whatsoever, or shall utter or publish, as true, any false, altered, 
 forged, or counterfeited record, charter, deed or writing sealed, 
 will, testament, bond, writing obligatory, bill of exchange, promis- 
 sory note for payment of money, or any note or specialty for the. 
 payment of money, and expressed to be payable in any goods, 
 wares or merchandises, endorsement or assignment of any bill of 
 exchange or promissory note for payment of money, acquittance 
 or receipt either for money or goods, or any acceptance of any bill 
 of exchange, or the number or principal sum of any accountable 
 receipt for any note, bill, or other security for the payment of mo- 
 ney, 01 any warrant or order for the payment of money or delivery 
 of goods, whether such order purports to be the order of the own- 
 er of the goods or money specified therein, or of some person 
 who claims an interest in the same, or of any other person, with 
 intention to defraud any person or body politic or corporate what- 
 soever, knowing the same to be false, altered, forged, or counter- 
 feited, then every such person, being thereof convicted according 
 to the due course of law. shall be deemed guilty of felony. Stss. 
 36. c. 44. s. 1 . I R. L. 404-. 
 
 "If any person shall forge or counterfeit, or be aiding or assist- 
 ing in forging or counterfeiting, any certificate or endorsement of 
 the acknowledgment or proof of any deed or writing made by any 
 officer or other person duly authorized to make such certificate 
 or endorsement, by any law of this state now or hereafter to be 
 made, or the certificate or endorsement of the recording of any
 
 FORGERY. 
 
 3ced or writing made by the secretary of thisstate, er hy the 
 clerk of any county, duly authorized to make such certificate or 
 endorsement, hy any law of this state now or hereafter to he 
 made, or shall knowingly utter any such forged or counterfeited 
 certificate or endorsement as true, and he thereof convicted by 
 due course of law, shall be deemed guilty of felony, s. '2, 
 
 ' : If any person shall counterfeit, or cause or procure to be 
 counterfeited, or aid or assist in counterfeiting any certificate or 
 other public security issued or to be issued by the authority of 
 this state for payment of money, or acknowledging the receipt of 
 money or goods, or any bill of credit heretofore issued by or un- 
 der the authority of the legislature of this state, or shall alter any 
 such certificate or bill of credit, so that the same shall appear to 
 be of greater value than the same was or shall be issued for, or 
 intended to pass for, hy the act in pursuance of which the same 
 was or shall be issued, or shall utter, pass, or give in payment, or 
 offer to pass or give in payment, or procure to be uttered, passed, 
 or given in payment, any such counterfeited or altered rertiii- 
 oate or bill of credit, knowing the same to be counterfeited or al- 
 tered, then every such person being thereof convicted by duo 
 course of law, shall be deemed guilty of felony, s. o. 
 
 " In all cases v, here any such certificate or bill of credit shall 
 be charged to have been altered, and it shall appear to have been 
 altered, the same shall be presumed to have been altered from a 
 less to a greater value, sum, or denomination, and the burden of 
 proving that the certificate or bill of credit charged to have been 
 altered was not altered from a less to a greater sum, shall bo on 
 the defendant charged with altering the same." s. 4-. 
 
 " If any person shall sell or exchange, or oiler for sale or ex- 
 change, or wittingly receive any forged or counterfeited promis- 
 sory note, with intention to have the same uttered or passed to 
 defraud any person or body politic or corporate, thtn every such 
 person, being thereof convicted by due course of law, shall br 
 deemed guilty of felony, s. 7. 
 
 "If any person shall make or engrave, or cause or procure to 
 be made or engraved, any plate for forging or counterfeiting any 
 promissory note for the payment of money, in the name of any 
 person or body politic or corporate, then every such person, facing 
 thereof convicted by due course of law, shall be deemed guilty of 
 felony, s. 8. 
 
 " If any person shall have in his possession, or receive from any 
 olher person, any forged or counterfeited promissory note for the 
 payment of money, with intention to utter or pass the same, or 
 to permit, cause or procure the same to be uttered or passed, with 
 intention to defraud any person or body politic or corporate what- 
 soever, knowing the same to be forged or counterfeited, then 
 every such person, being thereof cdnvicted according to the due 
 course of law, shall be deemed guilty of felony, s. y. 
 
 " If any person shall have or keep in his custody or possession, 
 aoy blank er unfioished nof.e, made In the form or similitude of
 
 FORGERY. 
 
 
 
 any promissory note for the payment of money, made to be issued 
 by any incorporated bank in this state, or any other of the United 
 States, with intention to fill up and complete such blank and un- 
 finished note, or to permit, cause, or procure the same to be filled 
 up and completed, in order to utter or pass the same, or to per- 
 mit, cause, or procure the same to be uttered or passed, to de- 
 fraud any person or body politic or corporate whatsoever, the 
 person in whose custody or possession such blank or unfinished 
 note shall be found, being thereof convicted according to the due 
 course of law, shall be deemed-guilty of felony, s. 10. 
 
 " If any person shall have or keep in his custody or possession, 
 any plate for forging or counterfeiting any promissory note for 
 llie payment of money, in the form and similitude of any pro- 
 missory note issued by any of the banks aforesaid, with intention 
 to forge or counterfeit, or assist in forging or counterfeiting, or to 
 permit, cause, or procure to be counterfeited, any promissory note, 
 issued by any of the aforesaid banks, the person in whose posses- 
 sion or custody such plate shall be found, being thereof convicted 
 according to the due course of law, shall be deemed guilty of 
 felony." s. 1 1. 
 
 Forging the licence of a hawker or pedlar, is felony, by the 
 act. sess. 27. c. 90. s. 4. Vide HAWKERS and PEDLARS. 
 
 Counterfeiting a certificate or permit to practice physic, and 
 being thereof convicted in the supreme court, circuit, or court of 
 genera! sessions of the peace, is punishable by fine not exceeding 
 me hundred dollars, and imprisonment; and the offender, if a 
 practising physician or surgeon, shall never thereafter practise 
 within the state. Sess. 24-. c. 137. s. 6. 
 
 The following cases on the act to prevent forgery have been 
 decided in the supreme court^of this state : 
 
 The People The prisoner was indicted and convicted for forging the follow- 
 
 5Joh'us?kcp. iS order: ~\Ir. S. sir, let the bearer trade thirteen dollars and 
 
 twenty-five cents, and you will much oblige, &c. S. L. The 
 
 court held this to be an order for the delivery of goods within 
 
 the statute. 
 
 The People The prisoner was indicted and convicted for forging the fol- 
 5 John^kep. l wn g note ; Due J. F. one dollar on settlement this day, D. K. 
 Per curiam. This is a note for payment of money within the sta- 
 tute. A similar question arose in the case of Mathew Mackcy, 
 before this court, in August term, 1 806. He was convicted for 
 forging a paper in the following words : " Due from B. S. to M. 
 M. the sum of one pound, on the first day of the month called 
 April, 1801. B. S." and the court decided that it was a note 
 
 within the statute. 
 The People A check on a bank is not a mil of exchange within the act, but 
 
 r. Howcll, . 
 
 < Johns. Rep. is an order Jor me payment of money. 
 
 286. 
 
 III. Publishing or uttering. 
 /.' ' To pronounce or publish, says Lord Coke, is when one by
 
 GAMING AND HORSE RACING. ];V/ 
 
 words or writing pronounceth or publisheth the instrument to ziwt. in. 
 any other as true. It extends, no doubt, to every other manner of 
 exhibiting it as a true instrument. But in order to constitute such 
 an offence, it must be done with knowledge of the forgery ; 
 which knowledge may come by the relation of another as well as by 
 the party's own observation. If, says Lord Coke, A. inform B. that 
 such a deed is forged, and yet B. will publish it ; if the deed be 
 false, this is within the words, " knowing the same to be forged/' 
 
 IV. Punishment. 
 
 The offences specified in the second and third sections of the 
 act " to prevent forgery and counterfeiting," (see ante II.) and ac- 
 cessories before the fact, are punishable with imprisonment for 
 life in the state prison. Sess. 36. c. 29. s. 3. I R. L. 408. 
 
 Every person convicted of forging, or of willingly acting or as- 
 sisting in forging any record or charter, or any deed or will, affect- 
 ing the title to real estate, or any promissory negotiable note, or 
 bill of exchange, or endorsement or assignment thereof, with inten- 
 tion to defraud any person, or body politic or corporate, or oi' 
 uttering and publishing as true, any forged record, fee. knowing; 
 the same to be forged, and the accessories before the fact, shall 
 be punished with imprisonment for life in the state prison, or for 
 such term as. the court having cognisance of the offence may i" 
 their discretion deem proper, s. 4. 
 
 Offences against the first section of the act to prevent forgery,- 
 fcc. the punishment whereof is not provided for in^the last pre- 
 ceding section, and accessories before the fact, are punishable 
 with imprisonment in the state prison for any term not more thau 
 fourteen years, s. 5. 
 
 Offences specified in the seventh, eighth, ninth, tenth and ele- 
 venth sections of the said act, are punishable with imprisonment in 
 the state prison for life, or for such term (not less than seven 
 years) as the court having cognisance of the offence shall in their 
 discretion deem proper, s. 6. 
 
 GAMING AND HORSE RACING. 
 
 Persons playing at any game, and winning by fraud in playing, cr 
 in betting on such as do play, at one sitting of one or more per- 
 sons, more than twenty-five dollars in money or other valuable 
 things, shall forfeit five times the value of the same, be deemed 
 infamous, and be imprisoned for six calendar months ; the one 
 moiety of which penalty shall be paid to the overseers of the 
 poor of the town in which the offence was committed, and the 
 other to the plaintiff. Sess. 24-. c. 49. s, 5. 1 R. L. 153. 
 
 Any person winning or losing at play, or by betting at any time,
 
 UAMINU AND HORSE RACING. 
 
 the sum or value of twenty-live dollars, or upwards, or of fifty dollars 
 within twenty-four hours, may he indicted within a year after the 
 offence committed, and on conviction shall be fined five times the 
 value of the sum so lost or won ; which sum, after allowing reason- 
 able charges to the prosecutors and witnesses, shall be paid to the 
 overseers of the poor of the town in which the offence was com- 
 mitted, s. 6. 
 
 If any offender shall discover another person offending, so that 
 he be convicted, he shall be discharged from the penalties of his 
 offence, if he has not been before convicted thereof, and shall be 
 admitted as an evidence to prove the same. s. 7. 
 
 All persons not parties in the cause may be witnesses touching 
 any offence against this act. s. 8. 
 
 " It shall be lawful for any two or more justices of the peace, 
 in any city or county within this state, to cause to come before 
 them every person within their respective cities or counties, 
 whom they shall have just cause to suspect to have no visible 
 estate, profession, or calling, to maintain themselves by, but who 
 do, for the most part, support themselves by gaining ; and if every 
 such person shall not make it appear to such justices, that the 
 principal part of his expenses are not maintained by gaming, then 
 such justices shall require of him sufficient sureties for his good 
 behaviour for the space of twelve months ; and in default of his 
 finding such sureties, to commit him to the common gaol of the city 
 or county, there to remain until he shall find such sureties." s. 9. 
 
 " If any such person so linding such sureties, shall during the 
 time for which he shall be so bound to good behaviour, at any 
 one time, or sitting, play or bet for any money or other thing, 
 exceeding in the whole the sura or value of two dollars and fifty 
 cents, then such playing shall be deemed to be a breach of his 
 good behaviour, and a forfeiture of the recognisance given for the 
 same." 1 * s. 10. 
 
 " AH racing and running, pacing and trotting of horses, mares, 
 or geldings, for any bet or stakes, in money, goods, or chattels, or 
 other valuable thing, shall be and hereby are declared to be com- 
 mon and public nuisances, and offences against this state ; and 
 the authors, betters, stakers, stakeholders, parties, contrivers, and 
 abettors thereof, shall be proceeded against, and punished by fine 
 or imprisonment, at the discretion of any court having cognisance 
 thereof; and all public officers concerned in the administration 
 of justice, are hereby strictly enjoined to cause this act to be 
 faithfully executed." , Sess. 25. c. 44. s. I. 1 R. L. 222. 
 
 The owner of every horse used in racing:, on which any bet is 
 laid or depending, shall forfeit for every race so run, the value of 
 
 * This act avoids; all securities given for money won by gaming ; and 
 gives an action to a loser to the amount of twenty-fr e dollars, to recorer 
 tack the same, and in hi* default, to a common informer.
 
 HAWKERS AND PEDLARS. 129 
 
 such horse ; and every person betting on a race, shall forfeit the 
 amount of the wager ; which penalties may he recovered by 
 action of debt, bill, plaint, or information ; one half to the informer, 
 the other half to the overseers of the poor of the place where 
 tho race shall be run, or the bet made. s. 2, 3. 
 
 " If any person or persons shall contribute or collect, or solicit 
 any other to contribute or collect, any money, goods, or chattels, 
 to make up a purse, plate, or other thing or things, to be run for 
 by any horse, marc, or gelding, at any place in this state, such 
 person or persons, so offending, shall forfeit the sum of twenty- 
 five dollars for each and every offence, to be recovered and ap- 
 plied as aforesaid." s. 4. 
 
 " All racing or running of horses, mares, or geldings, during 
 the sitting of any court, and within one half mile thereof, whe- 
 ther the same be for any bet or wager or not, shall be deemed 
 and adjudged a misdemeanour, and the parties concerned therein 
 shall be punished accordingly." s. 6. 
 
 " Every person who shall raffle for any sum of money, goods, 
 or chattels, shall for every such offence be liable to pay the sum 
 of two dollars, to be recovered before any court having cogni- 
 sance thereof, with costs of suit; and every person who shall set 
 up any money, goods, or chattels to be raffled for, shall be liable 
 to pay the sum of two dollars to the use of the poor of the 
 town in which any such offence shall be committed ; and it shall be 
 the duty of the overseers of the poor of such town, and they are 
 hereby authorized, to prosecute in their own name therefor." s. 7. 
 
 An innkeeper, permitting gaming in his house, is punishable by 
 fine and imprisonment, his licence may he suppressed, and his 
 recognisance will be forfeited. See INNS and TAVERXS, II. III. 
 
 HAWKERS AND PEDLARS. 
 
 Every hawker, pedlar, and petty chapman, or any other trading 
 person going from place to place, and carrying to sell, or exposing 
 to sale, any goods, wares, or merchandise, of the growth, pro- 
 duce, or manufacture of any foreign country, without the United 
 States, are required annually to pay certain duties, and take a 
 license from the secretary of state, permitting them to travel with 
 their wares for sale, for one year, either on foot, or with one or 
 more horse or horses, or other beasts bearing or drawing bur- 
 thens, or with a carriage drawn by one or more horse or horses, 
 or other beasts, or in a boat or boats, navigating the waters of this 
 state, according to a previous notification, to be delivered to the 
 said secretary. Sens. 3(j. c. 9. s. 1,2. 2 R. L. 223. 
 
 A certified list of the names of persons to whom licenses have 
 boon granted, shall* very year be transmitted to the ?f vrral county 
 
 r n
 
 130 HAWKERS AND PEDLARS. 
 
 clerks, who shall send a transcript thereof to every judge, as- 
 sistant justice, and justice of the peace in the county, s. 3. 
 
 " When, and as often as any hawker, pedlar, and petty chap- 
 man, shall be found trading or disposing of goods as aforesaid, 
 without or contrary to such license, such person shall, for every 
 such offence, forfeit and pay the sum of twenty-five dollars, to be 
 recovered on the complaint of any one who will sue for the same 
 before any justice of the peace within this state, in a summary 
 way. with costs of suit, one moiety whereof, when recovered, 
 shall be paid to the informer, and the other moiety to the over- 
 seers of the poor of the town where such offender shall be pro- 
 secuted, for the use of the poor thereof: And if any offend* r 
 who shall he so trading, on demand made by any justice of the 
 peace, sheriff, constable, or any other person within this state, 
 shall refuse to produce or show his or her license therefor, he or 
 she shall forfeit the sum of ten dollars, to be paid to the overseers 
 of the poor where such demand shall be made, for the use of tin; 
 poor of the towu ; and on neglect or refusal to pay the same, the 
 justice before whom such offender shall be convicted, shall, by 
 warrant under his hand and seal, commit such offender to the 
 gaol of the county where the offence shall be committed, for the 
 term of one month." s. 4. 
 
 " If any person or persons shall forge or counterfeit any such 
 license, or travel with any forged or counterfeited license, for the 
 purpose aforesaid, such person shall be deemed guilty of forgery, 
 and being convicted thereof, shall be punished accordingly." s. 5. 
 
 " It shall be lawful for any person to apprehend and detain 
 any such hawker, pedlar, or petty chapman, or other trading 
 person as aforesaid, who shall be found trading without license, 
 contrary to the true intent and meaning of this act; and him or 
 her, so apprehended, to bring before any justice of the peace of 
 the county or town where such offender shall be, which justice is 
 hereby authorized and directed, either upon the confession of the 
 party offending, or due proof of one or more credible witness or 
 witnesses, upon oath, that the person so brought before him had 
 so traded as aforesaid ; and if no such license shall be produced by 
 such offender, such justice shall, for every such offence, by war- 
 rant under his hand and seal, directed to any constable of the 
 town wherein such conviction shall be had, cause the. sum of 
 twenty-five dollars, with costs, to be forthwith levied by distress 
 and safe, at public vendue, of the offender's goods, wares, and 
 inerchamlise-, which costs, not exceeding five dollars, shall be 
 ascertained and allowed by such justice." s. 7. 
 
 " On ix,'u?a' to produce such lic*ensc to any person demanding 
 t'lf 1 same, and although it be afterwards produced to the justice 
 lefore whom the offender shall be brought, such offender, for such 
 refusal, shall forfeit and pay to the person demanding the same, 
 'ic fiim of five dollars, to be levied anJ collected, with cv 
 manner aforesaid. Provided always, that all suits to be brought
 
 HIGHWAYS. 
 
 for any offence against this act, shall be brought within sixty days 
 after the offence shall be committed. s. 8. 
 
 " In all cases of prosecution for any of the offences herein 
 before mentioned, and wherein the defendant shall refuse to show 
 his license, or to make known his name, to such person as will 
 prosecute, previous to the commencement of such action, th<' 
 plaintiff shall not be liable to pay to such defendant any costs for 
 the misnaming of such defendant ; nor shall the said plaintiff', 
 constable, nor the justice before whom any such offender, aa 
 aforesaid, shall have been tried, be liable to any action for falsely 
 imprisoning such defendant as aforesaid." s. Q. 
 
 Any person sued for putting this act in execution, may plead 
 the general issue, and give the special matter in evidence ; and if 
 the plaintiff become nonsuit, discontinue, or judgment pass against 
 him, the defendant shall recover treble costs, s. 6. 
 
 HIGHWAYS. 
 
 Under this title, the two following heads, as mak' 1 : parts of 
 the same subject matter, will be considered : 
 
 A. HIGHWAYS. 
 
 B. TURNPIKES. 
 
 A. HIGHWAYS. 
 
 I. Whai are highways. 
 II. How laid out and repaired. 
 
 III. Roads through improved land. 
 
 IV. Private roads. 
 V. Appeals. 
 
 VI. Assessment and commutation. 
 
 VII. Penalties for neglect, /c. in persons assessed. 
 
 VIII. Duties of overseers, and penalties for neglect, 
 
 IX. Obstructing and encroaching upon highways. 
 
 X. Gates. 
 
 XI. Mile boards and guide posts. 
 
 XII. Bridges. 
 
 XIII. Carriages meeting. 
 
 XIV. Commissioners, how to account. 
 
 I. What are highways. 
 
 By the " act to regulate highways," sess. 36. c. 33. (2 R. L. 
 ro) s. 24-, it is provided, that " all public highways heretofore
 
 132 HIGHWAYS. 
 
 laid out and allowed by any law of this state, and now in use 
 within the counties subject to this act.' 1 (i. e. ;ill the counties ia 
 the state, except New-York, Suffolk, Queens, Kings and Ilich- 
 mond, see sect. I.) " and of which a record shall have been made 
 in the office of the clerk of the county or town, shall be taken and 
 deemed as public highways, and continue such, unless altered in 
 conformity to the provisions contained in this act." 
 
 But " where any roads have been used as public highways 
 for twenty years, or more, next preceding the twenty-first day of 
 March, one thousand seven hundred and ninety-seven, the same 
 shall be taken and deemed, as public highways, unless they shall 
 be altered" in the manner provided by this act. 
 
 oaiatian v. \ roxd used as a public highway, for twenty-seven years next 
 7Johns.Rep. preceding the 21st March, 1797, becomes a public highway, 
 1061 though not recorded ; and it does not cease to be a public high- 
 
 way, though originally leading to a dock and landing, or ferry, 
 and such ferry has been changed, and though some part of the 
 way has been appropriated, and built upon, if the passage con- 
 tinues open to the same dock and landing. 
 
 Cro. car. 3*6. 1 f passengers have used, timeout of mind, when the roads are 
 bad, to go by outlets on the land adjoining to a highway, in an 
 open field, such outlet are parcels of the highway; and there- 
 fore, if they be sown with corn, and the track is foundrous, pas- 
 sengers may go upon the corn. 
 
 3 Bac. Abr. The fee of a highway is in the owner of the soil, or of the lands 
 2 Johns. Rep. adjacent, and he is entitled to all the profits of it, as trees, fcc. 
 2i7 - Also the. lord or owner of the soil shall have an action of trespass 
 
 for digging the ground. 
 
 " If any public highway, already laid out, or hereafter to be 
 laid out, shall not be opened and worked -within six years after 
 the passing of this act, (viz. March 19, 1813.) or from the time of 
 its being so laid out, the same shall cease to be a public highway, 
 or road, for any use, intent, or purpose whatsoever." s. 2j. 
 
 II. How laid out and repaired. 
 
 " All public roads to be laid out by the commissioners of any 
 town, shall not be less than four rods wide." s. 2'2. 
 
 " It shall be the duty of the commissioners to order the over- 
 seers of highways to open all roads, to the width of two rods at 
 least, which they shall judge to have been used as public high- 
 ways for twenty years preceding the said 21st day of March, 
 1797." s. 24. 
 
 " It shall be the duty, of the commissioners of highways, in 
 the several towns of this state, except in the city and county of 
 New-York, the counties of Suffolk, Queens, Kings, and Rich- 
 mond, to give directions relative to the repairing of the roads 
 and bridges within the towns for which they are respectively ap- 
 pointed, to regulate the roads already laid out, and to alter such
 
 HIGHWAYS. ]33 
 
 ; y, or a majority of them, shall conceive inconvenient; to 
 cause such of the roads, as are notalready described and recorded, 
 to be ascertained, described, and entered of record, in the town 
 .lerk's office, to cause to he kept in repair the highways and 
 bridges erected, or which may be erected, over streams inler- 
 ig highways, to require, the overseers, from time to time, 
 and as often as they shall deem necessary, to warn the people as- 
 sessed to work on highways, to come and work thereon, with such 
 implements, carriages, cattle, and sleds, as the said commissioners, 
 or any one of them, shall direct, and shall have full power and 
 lawful authority, under the restrictions herein after mentioned, 
 to lay out, on actual survey, such new roads in the several towns 
 as they may deem necessary and proper, and to discontinue 
 such old roads and highways as shall appear to them, on the oaths 
 of twelve freeholders of the same town, to have become useless 
 and unnecessary." s. 1. 
 
 Trespass quart clausumfrcgit ; the defence w as, that the locus ^'J^b'ii'r 
 !n quo was a public highway. THOMPSON, J. delivered the opinion iJohni<Bep 
 of the court. The question is, whether the locus in quo was a 424< 
 public highway at the time of the alleged trespass. The pro- 
 ceedings of the commissioners of highways, in the year 1784, in 
 relation to this road, were not entered on the town record until 
 the year 1790, nor does it appear by what authority the record 
 was then made. This, perhaps, ought not to he, considered a 
 record of a road, made conformable to all the directions of the 
 then statute. It appears, however, that in fact this road had been 
 used as a public highway for about twelve years, which is primu 
 facie evidence that it was opened by authority, and to be deemed 
 a public highway, within the cases contemplated in the first sec- 
 tion of the act of 1801, for regulating highways. This section 
 authorizes the commissioners, in their respective towns, to cause 
 such of the roads as are not already described and recorded, to 
 be ascertained, described, and entered of record. This authority 
 necessarily implies and presupposes an omission of some of the 
 requisites to the establishment of a public highway. The roads 
 referred to must be such as were in use, as public highways, at. 
 the time of the passing of the act. And the one now in question 
 falls within that description. The commissioners, in 1805, had 
 therefore authority to ascertain, describe, and enter on record, 
 this road ; and this having been done, before the alleged trespass, 
 the /ocus in quo was duly constituted a public highway, which 
 affords a complete justification for the defendant. 
 
 The commissioners of the respective towns, or the major part 
 of them, shall annually, at least ten days before the annual town 
 meeting, if they shall judge the same necessary, by writing under 
 their hands, to be lodged with the town clerk, and by him to be 
 entered in the town book, divide their respective towns into as 
 many road districts as they shall judge convenient, and assign to 
 each of the said road districts, sv.ch <>i the inhabitants liable to
 
 HIGHWAYS. 
 
 work on highways as they shall think proper, having regard t 
 proximity of residence as much as may be. s. 2. 
 
 When the commissioners of any town shall disagree with the 
 commissioners of any other town in the same county, relating to 
 the laying out of a new road, or the alteration of an old road, ex- 
 tending into both towns; or when the commissioners of a town 
 in one county shall disagree with the commissioners of a town 
 in another county, relative to laying out a new road, or altering 
 an old road, which shall extend into both counties, the commis- 
 sioners of both towns shall meet together, at Ihe request of either 
 disagreeing commissioners, and make their determination upon 
 such subject of disagreement, s. 18. 
 
 Whenever it shall be necessary to have a highway upon the 
 line between two towns, such highway shall be laid out by two or 
 more of the commissioners of highways of each of the said towns, 
 so that such line shall be the centre or middle thereof; and it 
 shall be the duty of the same commissioners, when they lay out 
 such highway, to divide it into two road districts, in such manner 
 that the labour and expense of opening, working, and keeping in 
 repair the road through each of the said districts, may be equal, 
 as near as may be, and to allot one of the said districts to each of 
 the said towns, which shall be considered as wholly belonging to 
 the town to which it shall be so allotted, for the purpose of open- 
 ing and improving the said road, and for keeping it in repair; and 
 the commissioners shall cause the said highway, and the said 
 partition and allotment thereof, to be recorded in the office of the 
 town clerk in each of the respective towns; and all highways, 
 heretofore laid out upon the line between any two towns, shall be 
 divided, allotted, recorded, and kept in repair, in the manner above 
 directed, s. 19. 
 
 All trees, standing or lying on any land over which any public 
 highways shall be laid out, shall be for the proper use of the owner 
 or occupant of such land, except such of them as may be requisite 
 to make or repair the highways or bridges OH the same land. s. 28. 
 
 Every person owning lands adjoining public highways, which 
 shall not be less than three rods wide, may plant trees on 
 the side or sides of such highways contiguous to his said land, 
 which trees shall be set in regular rows, at a distance of at least 
 six feet from each other ; and if any person whatsoever shall cut 
 down, injure, or destroy trees so planted, and set out as aforesaid, 
 or that have been heretofore so planted he shall be liable to an 
 action of trespass, at the suit of the party owning the land conti- 
 guous to such trees, s. 29. 
 
 The town clerk shall, whenever the order of the commissioners 
 for laying out, altering, or discontinuing a road, shall be recorded 
 by him, set up a copy of such order on the door of the house where 
 the town meeting is usually held. s. 40. 
 
 Each commissioner shall be allowed one dollar per day for 
 every day that he is employed in executing the duties of his office,
 
 HIGHWAYS. 
 
 and his accounts shall be audited and paid as other town officers 
 are paid. s. 35. 
 
 III. Roads through improved lands. 
 
 It shall not be lawful for any commissioners of highways to lay 
 out any road through improved or cultivated land, without the 
 consent of the occupant or owner thereof,'* unless upon the appli- 
 cation of twelve respectable freeholders of the town in which such 
 road shall be laid out, certifying upon oath that such road is ne- 
 cessary and proper; nor through any orchard or garden, without 
 the consent of the owner or owners thereof, if such orchard shall 
 be of the growth of at least four years, or such garden shall have 
 Cultivated as such at least four years before such highway or 
 road shall be laid out. 
 
 And if any road shall be laid out through enclosed or improved 
 lands, the owner shull be paid such damages as he may sustain by 
 reason thereof ; which damages shall be determined and assessed 
 by two justices of the peace, and by the oath of twelve reputa- 
 ble freeholders, not having an interest in the land so to be laid out 
 into a highway, or by three commissioners, to be appointed by a 
 judge of the court of common pleas of the county in which such 
 land may be situated, whose duty it shall be to appoint the same 
 when thereunto required. 
 
 And if the said occupant shall elect to have his damages assess- 
 ed by two justices of the peace and a jury as aforesaid, the said 
 freeholders shall be summoned, by virtue of a warrant to be issued 
 by the said two justices, to some constable of the town or county 
 in which such road or highway shall be laid out as aforesaid, who 
 shall neither be interested in the land through which the said road 
 is laid out, nor in anywise akin to the owners thereof. 
 
 And when any road within any town shall be laid out at the re- 
 quest of twelve reputable freeholders, as a public highway, the 
 whole of the damages, together with the charges, of the commis- 
 sioners, justices and freeholders, and summoning the jury, shall be 
 presented to the board of supervisors of the county, who shall cause 
 the same to be levied as a town charge, and, when collected, 
 to be paid to the commissioners, who shall pay the owner the 
 sum assessed to him, and appropriate the residue to satisfy the 
 costs, s. 16. 
 
 Whore any road shall run through the tancls of any person, or 
 along the boundaries thereof, in whole or in part, and the same 
 shall become unnecessary, or be discontinued by reason of some 
 other road to be established and laid out by virtue of this act 
 
 * A special power, granted by statute, affecting the property of indivi- 
 duals, ought to be strictly pm-siied, and appear to be so pursued on the 
 face of the proceeding. Gilbert v, Columbia Ticnzlke Compani;. S 
 Johns. Cases. 107.
 
 through the lands of the same person, the jurors or COL,. 
 making the assessment, shall take into consideration the value of 
 such road so discontinued or hecome unnecessary, and the bene- 
 fit resulting to such person by reason of such discontinuance, and 
 make deduction from the amount of such assessment accordingly, 
 and the balance, and no more, shall be the sum to be assessed to be. 
 paid for the opening and laying out such new road; and thereupon 
 ii shall he lawful for the owner of the land to enclose so much of 
 tiie road so discontinued or become unnecessary, as shall run 
 through his land along the boundaries thereof, s. 17. 
 
 If the owner or occupant shall have appealed' from the deci- 
 sion of the commissioners, and whose doing shall have been con- 
 firmed, or in case no appeal shall have been made within the time 
 limited by law, he shall, within thirty days thereafter, make his 
 election as to the mode or manner in which he will elect to have 
 his damages assessed ; and if he shall elect to have his damages 
 assessed by the commissioners to be appointed by a judge of the 
 common pleas, it shall be his duty to give notice of the lime ol' 
 meeting of such commissioners, to make such assessment, to the 
 supervisor of the town in which such assessment is to be made, 
 whose duty it shall be to attend, and any assessment made by such 
 commissioners, without such notice, shall be absolutely void. s. 38. 
 
 The commissioners of highways, or a majority of them, in al! 
 cases where they, or a majority of them, shall have laid out any 
 public highway through any enclosed lands, after giving the owner 
 or occupant sixty days notice to remove his fences, may direct 
 the road to be opened and worked, and no action of trespass shall 
 lie against any person acting in pursuance of such directions. 
 
 Put if the owner or occupant have appealed, the sixty days no- 
 tice shall be given after the decision of the appeal, s. 39. 
 
 In all cases where cither a public or private road is about to be 
 laid out and it shall appear to the two justices of the peace that 
 all the constables of the town in which such road is about to he 
 laid out, are interested in the land through which the said road is 
 to be laid out, or in any wise akin to the owners thereof, the said jus- 
 tices may issue their warrant, directed to a constable of any other 
 town in the same county, not interested in the said lands, or akin 
 to the owners, commanding him to summon twelve reputable 
 freeholders, not having an interest in the said land, by whose oaths 
 the damages sustained by the owner or owners of the said land 
 shall be determined and assessed, according to the provisions ot" 
 this act. s. 45. 
 
 IV. Private roads. 
 
 . Upon application to the commissioners of any town for a private 
 oad, the commissioners of the town in which such road is de- 
 sired, shall cause the overseer of highways of the district to 
 summon twelve freeholders of the same town, to meet on a day
 
 HIGHWAYS. 137 
 
 through which such road is applied for; and if they shall certify 
 under oath that such road is necessary, the commissioners shall 
 lay out the same, and cause a record thereof to be made in the 
 town clerk's office, and shall cause the damage to be assessed in 
 like manner as if the same was a public highway, which shall be 
 paid by the person or persons applying for such road ; and when 
 laid out, it shall be for the use of the applicant, his heirs and as- 
 signs, but not to be converted to any other use or purpose than 
 that of a road. 
 
 But the owner or occupant of the land, through which the road 
 shall be laid out, shall not be prevented from making use thereof 
 as a road, if he shall signify his intention of making use of the 
 same at the time when the jury or commissioners are to ascer- 
 tain the damages sustained by laying out such road. s. 20. 
 
 Private roads shall not be more than three rods wide. s. 22. 
 
 V. Appeals. 
 
 Whenever any person shall conceive himself aggrieved by the 
 determination of the commissioners of highways, either in laying 
 out, altering, or discontinuing, or in refusing to lay out, alter, or 
 discontinue any road, he may, within forty days thereafter, ap- 
 peal to any three of the judges of the court of common pleas 
 for the county in which such road is situated, whose duty it shall 
 be to convene as soon as may be convenient, and decide such ap- 
 peal, and their decision, or that of any two of them, shall be con- 
 clusive in the premises, for which services each judge shall re- 
 ceive two dollars per day, to be paid by the party appealing, 
 where the determination of the commissioners shall be affirmed ; 
 but where it shall be reversed, the same shall be collected and 
 paid as part of the contingent charges of the county, s. 36. 
 
 No road which has been fixed by the decision of the judges ou 
 an appeal to them from the decision of the commissioners, shall 
 be taken up or altered, but by the order of the same judges, if 
 they continue in commission, or such of them as do continue in, 
 commission, joined with such other judge or judges as will make 
 three, and it shall be in the power of any person who desires to 
 have such road discontinued or altered, with the approbation of 
 the commissioners of highways of the town where such road lies, 
 to call upon the said judges to view the same, and decide upon 
 his petition, he paying the judges the same allowance to which 
 they are entitled on appeals from commissioners, s. 40. 
 
 The time limited for appealing from the commissioners of high- 
 ways to the judges, is to be computed from the time of recording 
 and setting up by the town clerk the order of the commissioner?? 
 for laying out, altering or discontinuing a road. s. -10, 
 
 r is i
 
 HIGHWAYS. 
 
 VI. Assessment and commutation. 
 
 All freeholders, and every free male inhabitant, being above the 
 ago of twenty-one years, shall be assessed to work on the public 
 roads and highways, ministers of the gospel and priests of every 
 denomination excepted. s. 4-. 
 
 The commissioners for each town shall meet within eighteen 
 days after they shall be chosen, at the place of town meeting, on 
 such day as they shall agree upon, and as often afterwards as need 
 shall be, and at such time and place as they shall think meet. 
 
 The respective overseers of the road districts shall deliver a list, 
 subscribed by such overseer, to the clerk of the town for which 
 he is elected, within sixteen days after the day of election, con- 
 taining the names of all the inhabitants in such road district who 
 are liable to work on the highways ; which list the clerk shall deliver 
 to the commissioners, who, or a majority of them, shall, at their 
 next meeting, or as soon as may be thereafter, affix to the name 
 of each person the number of days which he shall be liable to work 
 on the highways in the same year, to be determined by the com- 
 missioners in proportion to the estate and ability of such person ; 
 and the commissioners shall thereupon, after causing the clerk of 
 the town to make a copy of such list, ad after the commissioners, 
 or a majority of them, shall have subscribed the copies of such 
 list, cause the same respectively to be delivered to the overseers 
 of the town who returned the same, or to their successors. 
 
 If the name of any person shall be left out of such list, or there 
 shall be an accession of new inhabitants, such persons, whose 
 names are omitted, or shall move into the town, shall from time 
 to time be added to the said list, and the person* be rated by the 
 commissioners to work on the highways. 
 
 No person shall be assessed more than thirty days, nor less than 
 one day in one year, and the whole number of days assessed in 
 any town shall be at least three times the number of the persons 
 subject to work on the highways in such town. 
 
 Not less than one half of the days so assessed shall be worked 
 out in each road district before the first day of July in every 
 year. s. 5. 
 
 When it shall happen that a greater quantity of Avork is re- 
 quired to keep the roads in repair than has been rated on the in- 
 habitants of any of the said districts, the overseers in each dis- 
 trict are required to make out another assessment in the same 
 proportion, as near as may be, not to exceed one third of the 
 number of days assessed before in the same year. s. 6. 
 
 If any overseer shall require any team, cart, wagon, or plough, 
 with a pair of horses or oxen, and a man to manage the same, 
 from any person assessed and having the same, and who shall not 
 commute for the days he maybe assessed, the person furnishing 
 the same, when warned so to do by any overseer, shall be entitled 
 
 >. credit of three days work for one man, nnd the fine for
 
 
 .leglect or refusal shrill be proportionable, that, is to say, three 
 times the fine to be imposed for the neglect of one person for 
 one day. s. 7. 
 
 Every person assessed, other than an overseer, shall work the 
 whole number of days he shall be assessed, or commute for the 
 same at and after the rate of sixty-two and a half cents for each 
 day, which money shall be paid to the overseer of the highway--. 
 of the district in which the person paying the same shall reside, to 
 be by him applied and expended in the improvement of the roads 
 and bridges in the same district, s. 8. 
 
 The overseers shall give at least twenty-four hours notice to all 
 persons assessed to work on the highway, and residing within the 
 limits of their respective districts, of the time and place when and 
 where they are to appear for that purpose. And no person shall 
 be required to work on any highway out of the district in which 
 he resides, s. 3. 
 
 The commissioners of highways, in the several towns adjoining 
 any neighbouring state or province, are required to assess upon 
 all such farms or parts of farms as lie within the jurisdictional 
 limits of this state, although occupied and possessed by persons 
 residing without the same, a due and equitable proportion of high- 
 way work, according to the rules prescribed by this act, of which 
 assessments, respectively, notice shaH be given in writing, sub- 
 scribed by the owners of the road district in which such farm, or . 
 part of farm, shall lie, and delivered to such occupant or possessor, 
 or left at his or her dwelling house, s. 10. 
 
 The commissioners of highways in every town of this state, 
 whenever they shall think it necessary or useful, may direct and 
 empower any overseer of highways, in their respective towns, to 
 procure a good and sufficient iron or steel shod scraper, for the 
 use of his road district, to be paid for from the monies arising 
 from commutations and fines within such district. 
 
 And in case such monies should he insufficient for the purpose, 
 such deficiency shall, by the said overseers, be assessed upon* the 
 inhabitants of the said district, in the proportion they are respec- 
 tively assessed to work on the said road ; and if any one so as- 
 sessed shall neglect or refuse to pay such assessment, the same 
 may be sued for, and recovered by the said overseer, with costs 
 of suit, before any justice of the peace of the same county, s. 1 ] . 
 
 The commissioners shall allow such persons as live in private 
 roads, so much of their assessment on the highway as they may 
 deem necessary to work such private road, or annex such private 
 roads to some of the highway districts, s. 21. 
 
 VII. Penalties for neglect, fyc. in persons assessed. 
 
 If any person assessed and duly notified, shall neglect or refuse 
 to appear in person, or by an able bodied man as a substitute, or 
 to bring with him such implements, carriages, or cattle, as re- 
 suiredj or shall remain idle or not work faithfully, or hinder others
 
 J40 HIGHWAYS. 
 
 from working, or neglect or refuse to pay the commutation money 
 in lieu of such attendance, such offender shall, for every such of- 
 fence, forfeit the $im of one dollar. 
 
 And such overseer shall, within six days thereafter, in every 
 case in which he shall deem the excuse for such neglect or refusal 
 insufficient, make complaint thereof, in writing under, his hand, to 
 one of the justices of the peace of the town for which he shall be 
 elected, if any there he, and if there be none, then to the next 
 justice of the adjoining town, and the justice to whom such com- 
 plaint shall bo made, shall forthwith issue a warrant, under his 
 hand and seal, directed to any constable of the ward or town 
 where such delinquent shall reside, commanding him to levy such 
 fine on the goods, and chattels of such offender, and the justice, 
 shall be entitled to receive twenty-five cents for issuing such war- 
 rant, and the constable the like fees as are allowed for the like 
 services by the twenty-five dollar act, and shall forthwith pay 
 the fines to the justice who issued the warrant, who shall pay the 
 same to the overseer who entered the complaint, to he by him 
 expended in improving the roads and bridges in the district of 
 which he is overseer. 
 
 But no warrant shall be issued until the offender shall have 
 been duly summoned forthwith to appear before the said justice 
 to show cause why the said fine should not be imposed, and 
 provided that the whole of the costs shall not exceed the sum of 
 three dollars. 
 
 No excuse for refusal or neglect shall exempt the person ex- 
 cused from working the whole number of days he may be 
 assessed, or paying the commutation in lieu of it, during the, 
 year for which he shall be assessed, s. 9. 
 
 Bouton v. From the return to the certiorari, it appeared that the plaintiff in 
 
 s" John".' Rep. error was convicted under the preceding section, on complaint 
 
 47 ->. made in writing, by the overseer, for neglecting to work on the 
 
 highway, according to the warning given him for that purpose, 
 
 upon which the justice issued his warrant to levy the penalty, and 
 
 costs. For the plaintiff in error it was objected, that he had been 
 
 convicted on the mere complaint of the overseer, without being 
 
 heard, or cited to show cause, which the justice ought to have 
 
 done, as in this case he was acting judicially. 
 
 oCnines'Rep. Thompson* J. delivered the opinion of the court.* It has been 
 
 260> decided by this court that proceedings under this section of the 
 
 act are to be in a summary way ; but the question here presented 
 
 is, whether notice is required to be given to the party against whom 
 
 * The decision in thfs case is founded on the act of sess. 24. in the 
 former revision of the laws; but in the act in the late revision, the party 
 must be summoned to appear before the justice, vide supra. As this case, 
 howe. . er, illustrates some general principles, it was thought not improper 
 to insert it.
 
 HIGHWAYS. 141 
 
 the complaint is entered, before the magistrate issues his war- 
 rant to collect the fine. It is a just and reasonable rule, that no 
 person should be punished, without having an opportunity of being 
 heard in his defence. Had the magistrate any thing to try, or 
 any discretion to exercise, with respect to issuing the warrant. I 
 should think it indispensably requisite that the party should he 
 summoned to appear. But I cannot discover, from the provisions 
 in this section of the act, that the magistrate has any judicial 
 powers whatever vested in him. If so, notice to the party would 
 be superfluous. The overseer of the highways is made the 
 judge with respect to the imposition of the fine. He acts under 
 the oath of his office, and it is expressly made his duty, in every 
 case in which he shall deem the excuse for neglect or refusal to 
 work insufficient, to make complaint thereof, in writing, to a ma- 
 gistrate, and the magistrate is directed fortktmth to issue his 
 warrant to collect the fine. No authority is given to the magis- 
 trate to enter into an examination with respect to the sufficiency 
 of the excuse for neglecting to work. The overseer is made the 
 io/c judge of this. If he makes complaint to the magistrate, with- 
 out having duly notified the party to work, he would subject him 
 'self to the penalty given in the fourteenth section of the act. 
 Whether this power has been discreetly vested in the overseers 
 of highways, is not for the court to say. In most cases of sum- 
 mary convictions, some judicial powers are given to the mugis 
 trates, and a summons or notice, to the party complained of is 
 recpaisite ; but where the magistrate acts merely ministerially, and 
 has no discretion on the subject, no notice is required, becai; 
 would be useless. The case before us falls under the latter dis- 
 tinction. The issuing of the warrant is matter of course, upon 
 the complaint of the overseer, without any further investigation. 
 The conviction must, accordingly, be affirmed. 
 
 On certiorari. Sarah Furman, the plaintiiT be\nv, brought an ^. M 'J".^ 
 f.ction of trespass against Beach and Saunders, before the justice, Furraan, 
 for -taking and carrying away a cow belonging to the plaintiff. ^ 9 ohns>R< 'l' 
 Tiie defendants below pleaded not guilty; and Beach pleaded 
 nlso a justification under the act to regulate highways.* 
 
 At the -trial, it appeared that Saunders, one of the defendants, 
 was a constable of the town of Unadilla, and a warrant was issued 
 by the commissioners of the highways of the town, directed to 
 "William Merithew, the overseer of the highways, commanding 
 him to cause the number of days affixed to the respective names 
 of the persons annexed to the warrant, to be worked on the public 
 highway in his district, according to law ; and on which list of 
 names annexed to the warrant, the plaintiff was assessed to work 
 eight days and a half. Saunders also produced a complaint in 
 
 * The note io the preceding case will, in some degree, also apply 
 to this*
 
 HIGHWAYS. 
 
 writing, directed to A. J. Beach, one of the defendants, who was 
 one of the justices of the peace of the county of Otsego, by S. 
 M erithew, overseer of the highways, stating that " he had warned 
 Sarah Furman to work on the highways four days and a half, 
 which she had neglected and refused to do." Saunders also 
 gave in evidence a warrant issued by A. J. Beach, a justice of 
 the peace, under his hand and seal, directed to any constable of 
 ihe county, reciting the above mentioned complaint, and com- 
 manding the constable to levy and make, of the goods and chat- 
 tels of S. Furman, four dollars and a half, being the penalty given 
 >iy the act, and also twenty-five cents costs, Sic. The return to 
 the warrant stated, that Saunders, the constable, had, by virtue 
 thereof, levied on the cow of the said S. Furman, and had made 
 thereof the sum mentioned, kc. There was no evidence against 
 Beach, the other defendant. 
 
 It appeared that Sarah Furman was a freeholder in the town 
 H I nadilla. The justice gave judgment for the plaintiff below, for 
 fifteen dollars, and the costs. 
 
 Per Curiam. "Whether Sarah Furman, being a woman and a 
 rceholder, was liable to be assessed to work on the highway?, is 
 ;i question which does not necessarily arise in this case. Admitting 
 her not to have been liable to be assessed, yet as she was assessed, 
 and a complaint in writing made to the justice by the overseer of 
 highways, of her default, the justice was not to inquire into the lega- 
 lity of the assessment, but was bound by the act forthwith to issue 
 his warrant of distress, and the constable. Avas equally bound to exe- 
 cute it. The act is peremptory, and leaves no judicial or discre- 
 tionary power, either with the justice or constable, and so the 
 statute was understood by this court, in the case of Boiiton v. 
 
 rjolms.Rep. .Vei?soH. That case, however, as well as the case of Lauton v. 
 
 -cainrs'Rep. Commissioners of Highways, proves that the party aggrieved by 
 such a proceeding is not without redress, for these summary pro- 
 ceedings may be removed into this court, and reviewed by a 
 certiorari, to be directed to the justice or overseer, as the case may 
 be. Both the justice and the constable acted ministerially in this 
 case ; and a mere ministerial officer is not responsible for the issuing 
 or the execution of process, so long as the authority under which the 
 process is awarded had jurisdiction over the subject matter. Now 
 the overseer of the highways was the person to designate, in the 
 first instance, and to deliver to the commissioners the names of 
 the persons liable to be assessed ; and he was also the officer to 
 adjudge what persons were in default, and to demand the war- 
 rant. In the exercise of this authority, the, overseer may have 
 returned the names of persons not liable to assessment, and he 
 may have adjudged persons in default who were not in default. 
 The remedy for the party, so aggrieved, cannot be against the 
 justice and constable concerned in issuing and executing the 
 warrant of distress, for they had no alternative but to obey, as 
 the Jaw did not give to either of them the right to inquire into the
 
 HIGHWAYS. l/jf{ 
 
 V of the assessment, or the truth and sufficiency of the alle- 
 gation of the default. The remedy must be either by an action 
 t the overseer, or by removing the assessment, or the pro- 
 o:.;dings under it, into this court, so that the same may be quashed. 
 It would be against the obvious principles of justice and policy, 
 to make the ministerial officers act, in a case like this, at their 
 peril, when they have no right to judge, and are required to act. 
 They are only responsible, as trespassers, when they act under the 
 authority of a person who had no jurisdiction in the case, or 
 when they execute that authority irregularly. Judgment re- 
 versed. 
 
 If owners or occupants of farms adjoining any neighbouring 
 state or province, and who reside without the jurisdictional limitM 
 of this state, shall, after three days notice of the assessment, (vide, * 
 
 anlt) refuse or neglect to work or commute, in like manner as an 
 inhabitant, then it shall be lawful for any justice of the peace oi" 
 any county in this state, on the complaint of the overseers, that 
 any person or persons assessed in his road district, residing with- 
 out the limits of this state, and within the purview of this act, 
 shall have refused to work or commute, after being notified as 
 aforesaid, to issue his warrant under his hand and seal, directed to 
 any constable of the town where such lands shall lie, commanding 
 him to levy the fine prescribed by this act, for such cases of re- 
 fusal or neglect, on the goods and chattels of such delinquent; and 
 the justice and constable shall be entitled to the same fees as arc 
 allowed for like services by the preceding (9th) section of this act, 
 and the said fine, when collected, shall be paid and applied in the 
 manner thereby directed, s. 1 0. 
 
 It is to be observed, that by this section it is not required that 
 the party delinquent should be summoned previously to the issu- 
 ing the warrant. 
 
 Every person warned to work shall, either in person, or by an 
 able bodied man, as a substitute, actually work eight hours in each 
 day, and shall be liable to be fined in the sum of twelve and a 
 half cents for every hour such person or substitute shall be in 
 default, to be recovered and expended in like manner as the 
 penalty for refusing or neglecting to work, when warned, is by 
 this act directed to be recovered or expended, s. 12. 
 
 VIII. Duties of overseers, and penalties for neglect. 
 
 It shall be the duty of the overseers of highways to repair and 
 keep in order the highways within the several districts for which 
 they shall be elected ; to warn all persons assessed to work on the 
 highways in their respective districts to come and work when 
 required so to do by the commissioners, or any one of them ; to 
 collect all fine and commutation money, and to execute all such 
 orders of the commissioners of the town to which they be- 
 long, as shall be given by th.pjn in conformity to law : 8
 
 HIGHWAYS. 
 
 any overseer shall be employed more days in executing (he 
 several duties enjoined on him by this act than he 
 to work on the highway, he shall be paid for the txcess at 
 the rate of one dollar per day, and be allowed to retain th* 
 same out of the monies which may come into bis hands for fines 
 in conformity to this act, but shall not be permitted to commute 
 for the days he is assessed, s. 3. 
 
 Each overseer shall, on the second Tuesday next preceding the 
 time of holding the annual town meeting, within the year for 
 which he is elected, render an account in writing to the commis- 
 sioners of the town, or any two of them, who shall meet together 
 on that day. for the purpose of receiving such return of all per- 
 sons assessed to work on the highways in the district of which he 
 is overseer ; of all those who have actually worked on the road 
 or highways, with the number of days they have so worked ; of 
 all those who have been fined, and the sums in which they have 
 been fined : of all those who have commuted, of the manner in 
 which the monies arising from fines and commutation have been 
 expended, and shall pay to the commissioners all monies remain- 
 ing in his hands unexpended, to be applied in making and im- 
 proving the roads and bridges in said town, in such manner as 
 they shall direct. 
 
 And if any overseer shall neglect or refuse to render such ac- 
 count, or, having rendered such account, shall refuse or neglect 
 to pay any balance which may then be payable by him, he shall 
 forfeit the sum of five dollars, which said penalty and balance so 
 unpaid shall be recovered by the said commissioners, or the survi- 
 vor or survivors of them, in their or his name, by action of debt, 
 in any court having cognizance thereof, with costs of suit ; and 
 the forfeiture so recovered shall, by the said commissioner?, or 
 such survivor or survivors, be applied in making and improving 
 the roads and bridges in such town. s. 13. 
 
 Every overseer who shall neglect or refuse to warn the people 
 assessed to co:ne and work with such implements, carriages, and 
 cattle, as may be necessary, when required so to do by the com- 
 missioners, or eitbe.r of them, or to collect the monies that ma y 
 arist; from fines or commutation, or to perform any of the duties 
 and services required by this act, or which may be enjoined on 
 him by the commissioners of the town of which he is elec'. 
 a majority of them, shall forfeit for every such neglect or refusal 
 the sum of leu dollars, to be recovered by any one of the com- 
 missioners of the same town, in his own name, before any justice 
 of the peace in the same county, with costs He report- 
 
 ed, paid, and employed in the same mauner as the monies to be 
 paid into the hands of the commissioners by the preceding sec- 
 tion of this act are directed to be reportrd. pai>'. and employ 
 
 If any vacancy of overseer shall happen, by death or other- 
 wise, the commissioners of the town in which such vacancy shall 
 happen, shall appoint other or others in his or their stead ; and
 
 HIGHWAYS. 145 
 
 ihe overseer so appointed si. -ill Irive the same power, he subject 
 to llie same orders, and liable to the same fines, forfeitures and 
 penalties, as overseers chosen by this act are liable and subject 
 to. s. 11. 
 
 The overseers shall, once in every month after they are elected, 
 from the first day of April until the u'rst day of December, cause 
 all the loose stones lying on the beaten track of the road, within 
 their respective districts, to be removed, and cause the monu- 
 jnents erected or to be erected, as the boundaries of highway.-), 
 to be kepi up and renewed, so that the extent of such roads may 
 be publicly known, s. 13. 
 
 IX. Obstructing andin crouching ftpon highways. 
 
 It is clearly agreed to he a nunance to dig a ditch, or make r i H.TVV. c. 
 hedge over athwart the highway, or to erect, a new-gate, or to lay ^^/xbr?' 
 logs of timber in it, or generaJly to do any other act which will 4J7. 
 
 i it less commodious ; so, to suffer the boughs of trees grow- 
 ing near the highways to hang over the road, in such a manner 
 :is thereby to incommode the passage, and if the. owner do not 
 top them, any other person may, so as to avoid the nuisance. 
 
 A bridge built by individuals in a highway without public utility, R- v- itjiinn;- 
 is indictable as a nuisance. And so it is, though of public utility, w"stKiclins 
 if they build it at first in a slight and imperfect manner, for the of I 7 mk *' : !. ri ' > 
 purpose of throwing the expense of maintaining it immediately 
 on the county. 
 
 But it is oo nuisance for an inhabitant of a town to unlade 2 Roll. AW. 
 billets, &.c. in the street before his house, by reason of the neces- 
 sity of the case, unless he suffer them to continue there an un- 
 reasonable time. 
 
 Any one may justify pulling down, or otherwise destroying a 3 Bae. Abr. 
 common nuisance, as a new gate or house erected in a highway. 
 Also, bolides that all nuisances are punishable by indictment with 
 fine and imprisonment, it is said, that one convicted of a nuisance 
 to the highway, may be commanded by the judgment to remove 
 it at his own costs, -:.. 
 
 Indictment for erecting a stone wall across the highway : the J*- v- St " ; 
 defendants \& - ere found guilty at the sessions, and fined. On a writ 142. vide 
 of error into the King's bench, it was assigned for error, that the Jagf 1 "****' 
 court below had not ordered by the s<une judgment that the 
 uuisance, whereof the defendants were indicted and convicted, ' 
 should be abated, as hy law is required. 
 
 LORD KF.NYON, Ch. J. When a defendant is indicted for an 
 existing nuisance, it is usual to state the nuisance, and its continu- 
 ance down to the taking the inquisition ; it was so stated in ]t. v. 2Str. ssr. 
 Pdjijnnf.au, " et adhuc existil" and in such cases the judgment 
 should be that the nuisanre bf abated. But in this case it does 
 not appear in the indictment that the nuisance was then in exist- 
 ence, and ?! 'iveuld lv /!>: -\n\\ to give judgment to abate a suppose?! 
 
 I!
 
 HIGHWAYS. 
 
 nuisance Which does not exist. If, however, the nui.-j.uito stiii 
 continue, the defendant may be again indicted for continuing it. 
 The judgment was affirmed. 
 
 " If any person within any of the said towns (i.e. in the coun- 
 ties subject to this act) shall hereafter obstruct any highway or 
 road, or shall fill up or place any obstruction in any ditch con- 
 structed for draining the water from any road, such person 30 
 offending shall forfeit for every such offence the sum of five dol- 
 lars, to be recovered with costs of suit, in the name of any per- 
 son who shall make complaint thereof before any justice of the 
 peace of the county where the offence shall happen, upon the oath 
 of one or more credible witness or witnesses, and levied by dis- 
 tress and sale of the goods and chattels of the offender, by war- 
 rant from the justice, to be directed to any constable of the town 
 where such offender shall reside ; and the said constable is hereby 
 required to pay such penalty into the hands of the commissioners 
 of highways for the town in which the offence was committed, to 
 be by them applied in improving the public roads and bridges 
 in said town." s. 25. 
 
 An action of debt was brought in a justice's court to recover 
 the penalty under the above aection, and judgment was given for 
 359. the plaintiff below, on certiorari into the supreme court. 
 
 KENT, Ch. J. delivered the opinion of the court. The question 
 i'j, whether the above recovery ought to have been in the manner 
 prescribed by the ten pound act, or ought to have beenjn a sum- 
 mary way, as the section under which it was had would seem to 
 prescribe ? The section in question is very defectively drawn. One 
 part of it seems to contemplate a recovery by an action or suit in 
 the ordinary mode ; and the other part of it, so far at least as re- 
 lates to the collection of the money by the constable, uses lan- 
 guage applicable only to cases of summary convictions. And 
 where a statute admits of two constructions, it is advisable to give 
 it that which is consonant to the ordinary mode of proceeding be- 
 fore magistrates, as being the most familiar to them, and because 
 in that the trial by jury is secured. Summary convictions are 
 authorized frequently in the English laws, and they are required 
 in three different cases in the act before us, viz. under the 1 Ith, 
 12th, and 23d sections.* But this mode of proceeding is always 
 construed-EiricUy by the courts, and is not to be adopted but where 
 the language of the law is plain and unequivocal. The judgment 
 below must be alarmed. 
 
 r. On certiorari. The suit below was brought by the defendants 
 
 ufis" nd * recover a penalty for encroaching on the highway. The pro- 
 cess issued in the name of the plaintiff:?, and required the defend- 
 
 , 
 
 ers of high- 
 
 way?, 
 
 I Johns. Rep. 
 
 MA 
 
 * In the act, us it stands in the late revision, the order of the sections "s 
 different from the act of se^s. 2i. which is here referred to.
 
 HIGHWAYS. 147 
 
 ant to show cause way, Sic. and not to answer. On the trial, the 
 justice admitted one ol' the plaintiffs as a witness. 
 
 Per curium. The proceedings were under the 20th section ol 
 the act, (in the revised act the 26th, which see infra) which di- 
 rects that the penalty is to he recovered in the manner directed 
 hy the 10th section, (in the revised act the 25 lh) where it is said 
 that the penalty is to he recovered in the name of the person who 
 makes the complaint. And according to our decision in the case 
 of Btnnel and Ward, the suit should have been prosecuted under 
 the twenty- five dollar act. One of the plaintiff's was sworn as a 
 witness, and though a mere trustee, he was liable fur costs, and 
 so far interested. On both these grounds judgment must he 
 10 versed- 
 
 In error, on ccrliorari from a justice's court. Lansing brought 'owbrr. 
 an action against Fowler before the justice, to recover the penalty 9 John*. Rep. 
 of five dollar:;, for obstructing a highway or road. The road wag J<5 ' 
 not a public highway, but a private road, laid out by the com- 
 missioners. 
 
 The justice, gave judgment, for the penalty. 
 
 Pc.rcurinm. This was an action to recover the penalty under the 
 19th (25th) section of the act to regulate highway?, for obstructing 
 a private road, and the justice gave judgment for th.c penally. The 
 question is, whether the penally given by that section is recoverable 
 for such obstruction. We think the sound and just construction 
 f th.it section to be, that.it. relates only to highways or public 
 roads. It ordains " that if any person- within any of the said 
 lowns shall hereafter obstruct any highway or road, &c. such per- 
 son, so offending, shall forfeit for every such offence the sum of five 
 dollars, to be recovered, &c. In various parts of the act, the 
 lerm road is used synonimously with highway, and when it speaks 
 of a road for individuals only, it is spoken of as a private road. 
 The penalty is given to the commissioners of the town, for .the 
 improvement of the public roads and bridges in the town, and this 
 fortifies the construction to this part of the act ; for an obstruc- 
 tion of a private road is a mere private injury, in which the pub- 
 i>c have no concern ; and it would be quite absurd to suppose 
 that the legislature meant to inflict a penalty, and to appropriate 
 it to the public, for an injury solely of a private nature. On this 
 ground we reverse the judgment. 
 
 In error on certiorari from a justice's court. Barnes brought |,f^ e )j 
 an action against Sage, before the justice, to recover the penalty 9jhnt. Rep 
 fur obstructing the highway. The parties joined issue, hy con- 36S * 
 sent. The defendant {alleged that the road in question was a 
 disputed road ; that the land was claimed by the defendant, and 
 that there were suits pending in a higher court to try the validity 
 of the road ; and contended, therefore, that the justice had no 
 .jurisdiction. No plea of title in writing was interposed by the de- 
 fendant, nor was any evidence given by him that any action was 
 pending ; the justice, therefore, disregarded these allegations ; and 
 tfc? obstruction of the road was proved by several witnesses. The
 
 HIGH \VAYfc. 
 
 plaintiff produced a ropy of tlie record of the road, containing a 
 particular description of it. One witness proved that he had been 
 called to work on the road, and several testified that they had tra- 
 velled on it, as a public road ; and the defendant declared that lie 
 had appealed to the judges of the court of common pleas for the 
 improper establishment of the road, who had refused to grant him 
 any redress. The justice, in his return, stated that it'v as proved 
 satisfactorily, that the road was established as a public highway, 
 and h:id been obstructed by the defendant. The defendant in- 
 terposed no plea of title in writing. He produced the certificate 
 of two attornius, that a suit was pending in the court of common 
 pi. 'as, between the defendant and A. Hotchkiss, in which the va- 
 lidity of the road was called in question ; he also produced a cer- 
 tificate of the clerk of the court to the .same effect. The jus-lice 
 gave judgment for the plaintiff for five dollars. 
 
 Per eurizm. The judgment mu?t be affirmed. Jf a in* plea of 
 title was adraiafcible in this ca*e, no such valid plea was offered. It 
 was necessary that it should have been in writing. The pica, or 
 rather suggestion, that there were other suits pending, in a higher 
 court, to try the validity of the road, was properly rejected. It 
 had neither form nor substance. -But the evidence on the trial 
 shows, that, such suits were between other parties, and would in 
 no way affect the present action. The defendant admitted, on 
 the trial, that he had appealed from the decision of the commis- 
 sioners of highways, to the judges of tjie court of common plea.-::, 
 who had refused to givehim relief. It was unnecessary for the 
 plaintiff to show all the preliminary steps to the laying out of tlie 
 road. It was enough for him to show the record thereof, and 
 that it was opened aiul u:-:uu as a public highway. Judgment af- 
 firmed. 
 
 . In every car-e where a highway has been laid ouf, and th; 
 hath been encroached upon by any present or former occupant 
 of the land through or by which such highway runs, the com- 
 missioners of the town shall, if in their opinion it be deemed ne- 
 cessary, order the fences to be removed, so that such highway 
 may be of the bread.h originally intended ; and if such removal 
 shall not be made in sixty days after such notice given, the occu- 
 pant, to whom the notice shall be given, shall forfeit and pay the 
 sum of fifty cents for every day that such fences shall continue 
 unremoved, after the expiration of* the said sixty days, to be re- 
 covered in the like manner as the penalties in rhe preceding sec- 
 tion, s. 2ti. 
 
 In case of the denial of the encroachment by any occupant, the 
 commissioners shall apply to a justice of the peace of the county 
 for a precept, directed to an overseer of highways of the same 
 town, to summon twelve freeholders thereof, to meet on a cer- 
 tain day, oi' which day notice shall be given by the overseer to 
 one of the commissioner?, and also to the occupant, on which 
 day the jury so summoned, after being duly sworn, shall inquire 
 whether any encroachment hath been made, and by whom : and
 
 HIGHWAYS. 149 
 
 jf they find it to have been made, they shall certify the same, and 
 by whom ; and if made hy the then or any former occupant, the 
 Ihen occupant shall remove his fences \vilhin sixty days thereaf- 
 ter, under the penalty aforesaid, and shall pay all the costs at- 
 tendant on such inquiry, to he recovered by any one of the com- 
 missioners, before any justice of the peace of the county; il,id. 
 
 But if they shall find that no encroachment hath been made, 
 they shall so certify, and ascertain the damages the then occupant 
 hath sustained by such suit, which, together with costs of suit, 
 shall be paid by the commissioner or commissioners out of any 
 monies in Tiis or their hands appropriated to the making and re- 
 pairing highways, ibid. 
 
 No person shall be obliged to remove any fence, except be- 
 tween the first day of April and the. first day of November in any 
 year. ibid. 
 
 In error, on cerliorari from a justice's court. Slade brought an Spim-v. 
 action of debt against Spir.cr in the court below, for the penalty | '"oims. lien 
 of twenty-five dollars. The plaintiff declared that the. defendant 359. 
 was the occupant of a certain piece of land in Pittstown, through 
 or by Vhich a certain highway runs, and that, the commissioners 
 of highways of the town, under the '20th (26th) section of the aet 
 relative to highways, ordered the defendant to remove his fences, 
 being on the same road, for an encroachment, so that the highway 
 might be of the usual breadth: but that the defendant continued 
 the same fence for sixty days after notice of the order of the com- 
 missioners to remove the same, and hath continued the. same fence 
 i'or fifty days since the expiration of the said sixty days, and still 
 continues the same, whereby an action hath accrued to the plain- 
 till' to demand and have of the defendant fifty cents for every day 
 the fence had continued, after the said sixty days, kc. The de- 
 fendant pleaded nil debet. At the trial before a jury, in February. 
 \ SJ ! , it was proved, that on the ! st of July, 1810, application was 
 made to the commissioners of highways in Pittstown, and a jury 
 was summoned to ascertain whether there was any encroachment 
 by the plaintiff on the highway, between the house of the defendant 
 and the Hosick line. The jury met on the 1 1th of July, and found 
 by their verdict, that there was an encroachment on the highway by 
 Slade and Spicer, which report or verdict the commissioners refused 
 to accept, on the ground that the complaint to the commissioners 
 was against Slade (the plaintiff) only. It was also proved, that 
 the commissioners, on the 1 1th of July, 1810, order Spicer, the 
 defendant, to remove his fence, so as not to encroach on the high- 
 way ; and that the encroachment by the defendant continued a 
 long time afterwards, and down to the time of the trial in February, 
 1811. One of the commissioners, a witness for the plaintiff, tes- 
 tified, that he attended with the jury, on the 1 1th of July, and re- 
 fused to receive their verdict ; and that the defendant then con- 
 i'essed that he had encroached on the highway ; and that he, ae 
 oae of the commissioners, ordered the defendant to remove hir
 
 HIGHWAYS. 
 
 i'ence, if iic had encroached ; and it appeared that llie commis- 
 sioner* did, on that day, give the defendant notice of the en- 
 croachment, and ordered him to remove his fence. The jury 
 found a verdict for the plaintiff, for twenty-five dollars, on which 
 the justice gave judgment. 
 
 Per curiam. Several objections have been taken to the re- 
 covery below, which need not be noticed, since we perceive one 
 which goes to the merits -of the case. Before the party can he 
 in default, and liable to the cumulative penalties given by the 20th 
 (26th) section of the act to regulate highways, the commissioners 
 of highways of the town must have given him a previous order or 
 notice of sixty days to remove his fence. We are of opinion that 
 f.he requisite order was not made in this case. The words of the 
 statute are, " when a highway has been laid out, and the same ha* 
 ieen encroached upon by any present or former occupant of the 
 land, through or by which such highway runs, the commissioners 
 of the town shall, if in their opinion it be deemed necessary, or- 
 der the fences to be removed, so that such highway may be of the 
 breadth originajly intended." If the removal be not made in sixty 
 days after sucn notice given, the penalties attach. To perform 
 this duty, the commissioners should all meet and deliberate to- 
 gether on the subject of the alleged encroachment ; and then, if 
 they, or a majority, should deem it necessary, they are to order 
 the fence to be removed, so that such highway may be of the 
 breadth originally intended. In this case, there does not appear 
 to have been any such meeting, deliberation and decision, any fur- 
 ther than what might be inferred from the fact that a witness heard 
 one of the commissioners tell Spicer to remove his fence, that is, 
 if he had encroached on the road or highway ; and another wit- 
 ness heard the commissioners order him to remove his fence, so 
 as not to encroach upon the highway; and a third heard them 
 give him notice of the encroachment, and order him to remove 
 his fence. This order or notice was not sufficiently precise and 
 particular to satisfy the law, and bring the party into default. The 
 breadth of the road originally intended, and the extent of the en- 
 croachment by the party upon that breadth, and the place or 
 places where, ought to have been specially stated, so that he might 
 be able to obey the order, and know when he had performed his 
 duty. The whole proceeding in this case was extremely loose 
 and uncertain ; and the party ought not to be exposed to penal- 
 ties, when the order or notice is stated so vaguely that he can- 
 not ascertain from it, with any reasonable certainty, the situation 
 or extent of his encroachment. Judgment reversed. 
 
 If any tree or trees upon any enclosed land, which hereafter 
 shall fall or be fallen by any person, his agent or servant, into any 
 highway, or into any river now used as a highway, and shall not 
 be removed, but continue in such highway or river for the space 
 of two days after notice given thereof by any person, the person 
 or persons occupying the farm or lot froia which such tree or
 
 HIGHWAYS, 151 
 
 trees shall be fallen, shall forfeit the sum of fifty cents for every 
 tree which shall be so fallen, or suffered to rejmin in such high- 
 way or river, until the third day, and a like sum for every day 
 thereafter, until the same shall be removed, to be recovered and 
 applied in the same manner as penalties for obstructing roads aret 
 directed to be recovered and applied. 
 
 And in case any person shall cut down any tree or trees on 
 land not occupied by him, so that they fall into any highway or 
 river as aforesaid, unless by the order and consent of the occu- 
 pant, the person so offending shall forfeit to such occupant the. 
 sum of one dollar for every tree so fallen, and the like sum for 
 every day the same shall remain therein, to be recovered as afore- 
 said, with costs, s. 27. 
 
 X. Gates. 
 
 " No swinging or other gates shall be allowed on any public 
 highway laid out by virtue of this act, or which has heretofore 
 been laid out, other than such public highways as run through 
 lands liable to be overflowed by the waters of the adjacent rivers 
 or streams, in such manner as to remove the fences thereon ; and 
 all such gates shall be erected and kept in good repair by the 
 overseers of the highway of the town, at the proper cost and 
 charges of the occupant of the land for whose benefit the same 
 shall be erected ; and if more than one gate shall be erected, and 
 the intermediate land between the gates at the extremities of 
 such land shall be in the occupation of more than one person be- 
 nefited by such gates, the whole charge of erecting and keeping 
 the same in repair shall be borne by all the occupants benefited 
 thereby, in proportion to the extent of land each occupies adjoin- 
 ing the highway, between the gates at the extremity aforesaid ; 
 and in case of the neglect or refusal of any occupant to pay his 
 proportion, the same shall be levied, with costs of suit, in like man- 
 ner as fines are by this act directed to be levied for refusing or 
 neglecting to work on the highways, of all which gates an account, 
 shall be filed by the commissioners in the town clerk's office ; and 
 if any person shall open any such gate, and shall not immediately, 
 after having passed the same, close it; or shall wilfully and unne- 
 cessarily ride over any of the grounds adjoining such road on 
 which such gates shall be permitted, to the damage, of the occu- 
 pant or occupants thereof, each offender shall forfeit for every 
 such offence the sum of one dollar, to be recovered by any one of 
 the commissioners of the same town, in the manner prescribed by 
 this act for recovering fines for neglect or refusal to work on the 
 highways : and such penalty shall not be deemed a satisfaction 
 for the damage, but the accnpnat shall, notwithstanding, have ar. 
 action." s. 30.
 
 HIGHWAYS. 
 
 Xf. Mile-Board* avd Guide-Paste. 
 
 " It -hali be the duty of tin: commissioners of h'. . 
 several lott ns of this state, to cause mile-boards or stouts to he 
 erected, where not already erected, on the post roads, :\ni[ such 
 other public county roads, in their respective towns, as they may 
 think proper, at the distance of one mile from each other, with 
 such fair and legible inscriptions or directions as they may think 
 proper ; and if any person shall destroy, remove, injure or deface 
 Mich mile-boards or stones, they shall be liable to pay ten dollars 
 for each mile-board or stone so destroyed, removed, injured or de- 
 faced, to be recovered, with costs of suit, before any justice of the 
 peace of the county where the offence shall be committed ; which 
 penalties, so levied and collected, shall be paid to the commission- 
 ers, or any one of them, in the town where such offence shall be 
 committed; and it shall be the duty of the said commissioners 
 forthwith to repair the mile-boards or stones so injured or remo- 
 ved, out of the monies arising; from such penalties : and, moreover, 
 the offender shall be deemed guilty of a misdemeanuor, and pun- 
 ishable on indictment and conviction by fine not exceeding fifty 
 dollars, or imprisonment not exceeding three months, in the dis- 
 cretion of the court having cognizance thereof." s. 32. 
 
 " The commissioners of each of the towns within this state, 
 shall cause guide-posts, with proper descriptions and devices, to be 
 erected at the intersection of all the post roads in this state, and 
 bnch by-roads as they may deem necessary, leading to or from 
 any town, viikige, or landing ; and it shall be the duty of the over- 
 seers of the highways in the several towns, to maintain and keep 
 in repair such guide-posts as may be directed by order of the com- 
 /nissioners within the limits of the districts for which they are 
 elected or appointed respectively ; and the money to defray tin- 
 expense of erecting and keeping them in repair, shall be levied, 
 collected, and p^vid, in each town, in the same manner as money is 
 raised for the support of the poor thereof. And every person who 
 shall injure or deface any such description, or destroy any of the 
 said guide-pests, shall for every such offence forfeit the sum often 
 'dollars, to be recovered by any one of the commissioners or over- 
 seers of the. highways of the town, before any justice of the peace 
 of the county, in the same manner as penalties for obstructing 
 roads arc directed to be recovered, part of which to be appropri- 
 ated by the person recovering the same, in replacing such posts 
 or repairing such injury, and the remainder to be paid in the snme 
 manner as penalties for obstructing roads are directed to be paid : 
 and the offender shall be subject to the same penaJty as in and by 
 the 3'2d section of this act." s. 31.
 
 HIGHWAYS, 153 
 
 XII. Bridges. 
 
 Whenever it shall appear to the board of supervisors of any of 
 the counties subject to this act, that any one of the towns in such 
 county would be unreasonably burthened by erecting or repair- 
 ing any necessary bridge or bridges in such town, they are au- 
 thorized and required to cause such sum of money to be raised as 
 will be sufficient to defray the expenses of erecting or repairing 
 such bridge or bridges, or such part thereof as they may deem 
 proper, which sum shall be levied, collected and paid, at the 
 same time and in like manner as the contingent charges of the 
 county, and shall be paid to the commissioners of the town in 
 which the same is to be expended, on the order of the supervisor 
 thereof; but not more than 1000 dollars shall be so raised in any 
 one year; and in case the commissioners of the town shall be dis- 
 satisfied with the determination of the supervisors, touching an 
 allowance for any such bridges, such determination shall, on the 
 application of the commissioners, be revised by the court of 
 common pleas for the county, whose order in the premises shall 
 be observed by every such board of supervisors, s. 33. 
 
 XIII. Carriages Meeting* 
 
 In all cases of persons meeting each other on any turnpike 
 road or public highway in this state, travelling with carriages, 
 sleighs, waggons, or carts, the persons so meeting shall turn their 
 carriages, &.c. to the right of the centre of the road, so as to ena- 
 ble such other's carriages, &c. to pass each other without inter- 
 ference or interruption, under the penalty of five dollars for every 
 neglect or offence, to be recovered by the party aggrieved, in an 
 action of debt, in any court having cognizance- thereof, with costs 
 of suit. s. 41. 
 
 XIV. Commissioners, how to account. 
 
 The commissioners, in their respective towns, shall render to 
 the supervisor, town clerk, and justices of the peace, or a majority 
 of them, at their annual meeting for auditing tho accounts of the 
 overseers of the poor, an account of the labour assessed and 
 performed, and of the sums by them received for fines and com- 
 mutation, and all other mpnies received under this act, and the 
 improvements which have been made on the roads and bridges 
 in their respective towns during the year immediately preceding 
 such report, together with an account of the state of such road3 
 and bridges, with a statement of the improvements necessary to 
 be made thereon, and an estimate of the probable expense of 
 making such improvements beyond what the labour to be assessed 
 in that year will arcnmplish ; and said supervisor, town clerk, and 
 
 r 20 1
 
 154 HIGHWAYS. 
 
 justices, at their meeting as aforesaid, shall examine said account, 
 and make out a certificate containing the substance thereof, an* 
 deliver the same certificate to the town cleik of such town, to be 
 by him kept on file for the inspection of any of the inhabitants of 
 said town. The commissioners shall deliver a like statement to 
 the supervisor of the town, who shall lay it before the board of 
 supervisors, who are required to rause the same to be assessed, 
 levied and collected in suchtownj in the same manner as other con- 
 tingent charges ; which sums are to be paid by the collectors out of 
 the first monies coming into their hands, excepting such as shall be 
 raised for the support of the poor, to the town clerk, to be by him 
 paid to the overseers of the highways, or one or more of them, on 
 the order of the commissioners ; but the monies so raised in such 
 town, in any one year, shall not exceed two hundred and fifty dol- 
 lars, s. 31. 
 
 B. TURNPIKES. 
 
 1. Laying out turnpikes. 
 II. Tolls, and misconduct of toll-gatherer in relation thereto. 
 
 III. Mile stones, penalties for defacing, and for other inju- 
 ries to turnpikes. 
 
 IV. Inspectors, and duties ichen turnpikes are out of repair. 
 
 I. Laying out turnpikes. 
 
 ID case of disagreement between the president and directors 
 of turnpike companies hereafter to be erected, and the owners of 
 the land through which the turnpike is to be run, as to the value 
 of the land over which the road is to be run, and the damages 
 sustained by the owner, or if the owner shall be feme covert, in- 
 sane, or out of the county, in either case the damages are to be 
 assessed by three appraisers, appointed by a judge of the common 
 pleas, each of whom shall, before he proceeds to execute the 
 trusts reposed in him, take and subscribe an oath or affirmation in 
 writing, before one of the justices of the peace of the county for 
 which he shall be appointed, that he will, without favour or par- 
 tiality, estimate and assess the damages which may be sustained 
 by the owner or owners of the land or improvements, which the 
 said corporation may deem necessary to take and appropriate for 
 said road. 
 
 Nothing in this act contained shall authorize the president and 
 directors of any turnpike company to take possession of any 
 public highway, until such highway shall have been appraised and 
 paid for in the same manner as is directed by law in cases of 
 taking private property; and the amount of the highway so ap- 
 praised, shall be paid to the commissioners of highways for thf 

 
 rflGHWAYS. 155 
 
 town through which such road runs, to be by them applied in 
 improving the roads in such town. 
 
 The appraisers shall set down the value of the soil, and improve- 
 ments of the old road, and the sums which have been paid by 
 any town for making such improvements, in separate sums ; and 
 the sum for which the soil is appraised shall be paid to the owner 
 or owners of the soil ; and the value of the improvements in 
 making the old roads, and the sums which shall have been so paid 
 by any such town, shall be paid to the commissioners of highways 
 of the town wherein such road shall be. Sess. 30. c. 38. s. 3. 1 
 R. L. 228. 
 
 These are all the provisions of this part of the act relative to 
 turnpike companies, material to be here inserted. Other parts of 
 jt, of more immediate importance to the magistrate, will be found 
 under the remaining divisions of this title. 
 
 II. Toll, and misconduct of toll-gatherer in relation thereto. 
 
 Any toll-gatherer may stop and detain any person, riding, lead- 
 ing, or driving any horses, cattle, sheep or hogs, sulkey, chair, 
 phaeton, chaise, wagon, sleigh, sled, or carriage of burden, or 
 pleasure, from passing through any turnpike gates, until they shall 
 have respectively paid the toll allowed by the act incorporating 
 the company. Sess. 30. c. 38. s. 7. Stewart v. 
 
 On certiorari. The plaintiff was a toll-gatherer at one of the |*caie, 
 gates erected under the act passed the 15th of March, 1799, in- Re l>- l82 - 
 corpora! ing the first company of the great western turnpike road. 
 
 By a clause in the 10th section of the law, it is provided, that no 
 gates or turnpikes (except a turnpike on albftdge before mentioned) 
 shall be erected at a distance less than ten miles from each other. 
 The 1 1 th section enacts, That as soon as the lohole or any part of the 
 said road shall be completed, and permission to erect a gate or gates 
 as aforesaid be granted, the president and directors may appoint 
 toll-gatherers, to collet and receive, of and from all and every person 
 or persons using the said road, the tolls and duties herein after men- 
 tioned, and no more, that is to say, any number of miles not less 
 than ten in length of said road, the following sums of money, and 
 so in proportion for any greater or less distance, to wit : for every 
 score, Bfc. 
 
 Under the 15th section, a penalty of five dollars is imposed on 
 any toll-gatherer who shall. receive more toll than is established by 
 the act, to be sued for before any justice of the peace of the 
 county in which the offence shall be committed, for the use of 
 the party injured. 
 
 Upon this clause seven actions had been instituted below, 
 against the present plaintiff, and recoveries obtained in all, for 
 receiving at his gate full toll from travellers who had not passed 
 ten miles on the road. 
 
 It was now submitted to the court, whether the full toll was 
 rightly taken, or whether there should not have been a deduction
 
 156 HIGHWAYS. 
 
 made from it in proportion to the distance which the travellers 
 had used the road, less than ten miles, according to the arithme- 
 tical rule, if Ifcn miles give so much, what will seven and a half 
 give ? 
 
 If the court should decide in favour of the proportional deduc- 
 tion, the judgment to he affirmed ; if against it, and for the now 
 plaintiff, a reversal to be entered. 
 
 KENT, J. delivered the opinion of the court. The question sub- 
 mitted is, as to the true construction of the 1 1th section of the 
 Kent and act, 2 R. L. p. 393. The gates on that road, except the one upon 
 vlsiou. S B " the Schoharie bridge, are all required to be not less than ten miles 
 from each other; and the 1 1th section gives the toll therein esta- 
 blished for any number of miles not less than ten ia length of said 
 road, and so in proportion for any greater or lesser distance. These 
 last words can be satisfied, by applying them to the greater or 
 lesser distance of the gates above ten miles. The gates may be 
 twelve, or fifteen, or twenty miles apart, and then the toll is to be 
 assessed ratably, according to the distance, which cannot, how- 
 ever, be less than ten miles. This construction is the only one 
 that is reasonable, and it will satisfy the words. The idea that 
 the company must vary the toll at every ten mile gate, on the 
 suggestion that a person has used the road for a less distance than 
 ten miles, is inadmissible, because impracticable. The toll-gatherer 
 has no means of knowing whether the traveller has rode ten miles, 
 or a less distance, previous to his arrival at the gate. If this sug- 
 gestion was allowed to be a ground of reduction of toll, it would 
 open a door to the greatest imposition and fraud upon the com- 
 pany ; and it cannot be^onsidered as within the meaning and spi- 
 rit of the act, especially* 1 as the words can be satisfied by the 
 other construction, which is a natural, just, and practicable con- 
 struction. Judgment of reversal, therefore, must be entered. 
 
 The corporations hereafter to be erected shall not be entitled 
 to demand or receive toll at any gate, of or from any person pass- 
 ing to or from public worship, or a funeral, to* or from a grist-mill 
 for the grinding of grain for his family's use, or to or from a black- 
 smith's shop to which he usually resorts, or from any person resi- 
 ding within one mile of the gate, or from any person or persons 
 who are entitled to vote, when going to or returning from town 
 meeting or election for the purpose of giving a vote, or from any 
 person going for a physician or midwife, or returning, or from a 
 juror or witness going to or returning from court, having been le- 
 gally summoned or subpoenaed, or from any troops in the service 
 of this state or of the United States, or from any person going to 
 or returning from any training, where by the laws of this state 
 they arc required to attend. 
 
 Not more than half toll shall be demanded or received from 
 any wagon or other carriage passing upon the said road, the tire 
 or track of the wheel whereof is six inches wide, nor more than
 
 
 HIGHWAYS. 157 
 
 one fourth from those of nine inches wide, and those of twelve 
 inches v\ide shall pass without paying any toll whatever, s. 7. 
 
 In error on certiorari from a justice's court. Coon sued Chesl- 
 ney before the justice, in debt for five dollars, for exacting toll, as s Johns. Hop. 
 a toll-gatherer, at the toll-gate, on the first great western turnpike, 1; 
 when the plaintiff was going to and returning from a grist-mill. 
 for the purpose of having his grain ground. 
 
 It appeared that Chestney, though told that the plaintiff was 
 going to Watson's grist-mill with grain to be ground, exacted the 
 toll, and after the grain was ground, the defendant obliged the 
 plaintiff to pay toll, though informed by the plaintiff and the mil- 
 ler, that the plaintiff had gone to the mill for no other purpose. 
 It appeared that the plaintiff resided in Carlisle, and Watson's grist* 
 mill is in Schoharie, on or near the turnpike, and that the plain 
 tiff and his neighbours generally went to Watson's mill when there 
 was no grinding in the mill at Carlisle. 
 
 The act (22. sess. c. 30. s. 11.) provides, that no toll shall be 
 received from any person passing to or from public ivorship, or to 
 or from his common business on his farm, or to or from any mill ; and 
 the act passed llth April, 1803, (31 sess. c. 213.) explanatory of 
 the former act, says, persons shall be exempt from toll, going to 
 or returning from any grist-mill, to which such person usually re- 
 sorts,for the sole purpose of grinding for the use of his family, or of 
 those who may employ him, and no other. 
 
 The justice gave judgment for the plaintiff below. 
 
 Per curium. The evidence was sufficient to support the judu 
 ment. The plaintiff below went, as it appears, to Watson's grist- 
 mill to get his grain ground, and for no other purpose ; arid he 
 generally went there when he could not have it ground in his own 
 town. The judgment must be affirmed. 
 
 In error, on certiorari, from a justice's court. Kerrick brought stratum*, 
 an action against Stratton, before the justice, for obstructing the ^John's.' K { >. 
 road leading from the village of Cocksackie, on the 1st of June, 356 - 
 IS 12, in such a manner as to prevent the plaintiff from passing 
 with his wagon and-horses, whereby he was hindered from pur- 
 suing his lawful business, &c. 
 
 Samuel Rockwell, a witness for the plaintiff, testified, that he 
 was a blacksmith, and did work for the plaintiff on the fisrt of June ; 
 and that on that day the plaintiff brought him a load of boards to 
 pay for smith work done for him a year before. On the first of 
 June, the plaintiff came with his wagon to the turnpike gate, and 
 the defendant demanded toll, and the plaintiff claimed to pass free. 
 as he had been to the blacksmith's ; but the defendant shut the 
 gate, and refused to let the plaintiff pass unless he paid the toll. 
 The plaintiff, after waiting about an hour and a half, turned back 
 and w : ent by another road. 
 
 It appeared that the defendant asked the plaintiff what he had 
 done with the load of boards? and the plaintiff refused to inform 
 him. The act of incorporation of the turnpike company was
 
 |58 HIGHWAYS. 
 
 read. It was proved that the plaintiff resided about seven miles 
 from the turnpike gate, and one blacksmith lived within two miles, 
 and another within four miles of the plaintiff's house ; but the 
 blacksmith who testified that he did work for the plaintiff, lived 
 east beyond the turnpike gate, in the village of Cocksackie. The 
 jury found a verdict for the plaintiff for five dollars, on which the 
 justice gave judgment. 
 
 Per curiam. The turnpike act, (sess. 28. c. 22.) under which 
 the toll was demanded, exempts from the payment of toll, any 
 person passing to and from a blacksmith's shop to which he usually 
 resorts. Assuming that the blacksmith's shop of Samuel Rock- 
 well, in the village of Cocksackie, was the one to which. the plain- 
 tiff below usually resorted, yet it must appear that the object of 
 his going to the shop was, for work to be done at the shop. Car- 
 rying a load of boards, or wheat, or going with a drove of cattle 
 to the blacksmith for the purpose of paying a debt, would not en- 
 title the party to exemption from toll, any more than if he was 
 merely going to pay a family or friendly visit to the blacksmith. 
 Any other construction of the act would be unreasonable, and 
 Jead to fraud. Every farmer carrying a load of wheat to market, 
 , might always, upon the construction given to the act by the jury, 
 exempt himself from toll, by calling at the blacksmith's shop, in 
 his way, and getting a horse shoe reset. If the principal object 
 of the travelling be, to have blacksmith's work done, the person 
 is entitled to pass toll free, but not otherwise. Here the object 
 appears to have been to pay a debt. That must have been the 
 principal end, and the verdict was", consequently, against law. 
 Judgment reversed. 
 
 straiten v. In error, on cerliorari, from a justice's court. Hubbel sued 
 o Johns! Rep. Stratton, before the justice, for obstructing the highway leading 
 from the village of Cocksackie, and preventing the plaintiff from 
 proceeding on the road about his lawful business, &.c. It was 
 proved that the plaintiff came to the turnpike gate with his wag- 
 on and horses, and demanded to pass free, because he had been 
 to his usual blacksmith's. The defendant, who was the toll-ga- 
 therer, refused to let him pass until he paid the toll. The plain- 
 tiff confessed that he had been down to Cocksackie landing with 
 a load of boards, and had paid toll on going down. Rockwell, the 
 blacksmith, testified that he had been the plaintiff's usual black- 
 smith for a number of years, and had mended a pot for the plain- 
 tiff about the time that the plaintiff claimed to pass toll free on 
 his return ; but the witness could not remember the exact day. 
 The jury found a verdict for the plaintiff, for five dollars, on which 
 the justice gave judgment. 
 
 Per curiam. There was no just pretence for an exemption 
 from toll. The principal business of Hubbel was to carry a load 
 of boards to market; and if the pot had been mended by the 
 blacksmith on that day, it was not, and could not have been the 
 principal object of the journey. It was merely an incidental busi-
 
 HIGHWAYS. 159 
 
 ness, if not a mere pretext to claim the exemption. He ought to 
 be considered as returning from'market, and not as returning from 
 the blacksmith's shop ; because that shop was not the termina- 
 tion, any more than it was the object, of his travelling on that day 
 from home. The claim of exemption was unjust, and a fraudu- 
 lent abuse of the act. Judgment reversed. 
 
 If any toll-gatherer shall unreasonably delay or hinder any 
 traveller or passenger 'at the gate, or shall demand and receive 
 more than the legal toll, he shall, for every such offence, forfeit 
 and pay five dollars, to be recovered by the person so unreason- . 
 ably detained, for his own use, with costs of suit, in any court hav- 
 ing cognizance thereof. 
 
 Provided, that if no goods or chattels can be found to satisfy 
 the judgment and costs, the corporation shall pay the same ; and 
 in case property of the company cannot be found wherewith to 
 satisfy the judgment, the person recovering the same, may reco- 
 ver and receive the amount from the treasurer of the company, 
 together with all costs of suit, and may give such judgment in 
 evidence on the trial of the cause against the treasurer, s. 9. 
 
 On certiorari. The defendant in error brought an action of ConkKngv. 
 debt against the plaintiff in error, in the court below, to recover ^johus. Rep. 
 the penalty of twenty-five dollars, given by the 18th section of 410 -, 
 the act to establish a turnpike corporation/or improving and making 
 a road from the west line of the town of Salisbury, in the state of 
 Connecticut, to the Susquehannah river, at or near the town of Jericho. 
 The act declares, that if any toll-gatherer shall unreasonably delay- 
 er hinder any traveller, or passenger, at any of the gates, or shall i 
 demand or receive more toll than is by the act established, he shall, 
 for every such offence, forfeit and pay twenty-five dollars, to be reco- 
 vered by, and for the use of the person so unreasonably detained or 
 hindered. L. N. Y. vol. 3. p. 120. The plaintiff, in his declara- 
 tion before the justice, alleged, that the defendant, as toll-gatherer 
 of the said company, incorporated by the said, act, on the 5th of 
 January, 1 807, at the town of Kingston, did unreasonably delay 
 and hinder the plaintiff, at one of the toll-gates on the said road. 
 The defendant pleaded nildebet. The defendant in error was a 
 farmer, residing in the town of Hurley ; and his farm consisted oi' 
 different parcels of land, among which were two wood-lots, at a 
 place called Beaverkill, in the town of Hurley. He had been in . 
 the practice, for many years, of going to his wood-lots to make 
 posts and rails for the use of his farm ; and a road had long been 
 open between his dwelling-house and the same wood-land, part 
 of which road is included in the turnpike. On the 5th of January, 
 1797, he was going to his house from the said wood-land, and on 
 coming to the toll-gate on the turnpike road, he informed the 
 plaintiff in error that he was going to a part of his farm, for the 
 purpose of procuring posts and rails, which was the common busi- 
 ness of his farm, and demanded to pass through the gate free of 
 toll, pursuant to v the provision in the 10th section of the said turn-
 
 160 HIGHWAYS. 
 
 pike act, which declares, that nothing in the said ad shall be con- 
 strued to entitle the said corporation to demand toll of, and from, any 
 person going to, or from, his common business on his farm or saw- 
 mill, &.c. The plaintiff in error refused to let the defendant in 
 error pass until he paid the toll, and actually detained him ten 
 minutes, until the toll was paid. Judgment was given in the court 
 below, in favour of the plaintiff, for the amount of the penalty and 
 the costs. 
 
 THOMPSON, J. delivered the opinion of the court. From the 
 testimony stated in the return to the certiorari, I am inclined to 
 think that the plaintiff below was a person entitled to pass through 
 the gate toll free, but that his case is not within the 13th section 
 of the act, so as to subject the toll-gatherer to the penalty. This 
 section appears to me to relate to the delay or hindrance of per- 
 sons who are bound to pay toll. They are denominated travellers, 
 or passengers ; and the penalty is for unreasonably delaying them. 
 This would seem to imply a right to delay them a reasonable 
 time, and until toll was paid. But if the section applies to per- 
 sons exempted from toll, any hindrance whatever would be illegal. 
 As to them, the road is free, and on the same footing with any 
 common public highway ; and the remedy for any hindrance or 
 interruption in the free use of the road, must be the same as if it 
 had happened on any other public highway. We are of opinion, 
 therefore, that the plaintiff below has mistaken his remedy, and 
 that the judgment must be reversed. 
 
 III. Mile-Stones, penalties for defacing, and for other injuries to 
 Turnpikes. 
 
 The turnpike corporation shall cause, mile-stones or posts to be 
 erected and maintained, one for each mile of the road ; and on 
 each stone, or post, shall be fairly and legibly marked, or inscrib- 
 ed, the distance the said stone or post is from the place of the 
 commencement of the said road, together with a continuation of 
 the distance from any city or town where such road shall com- 
 mence, at the end of any other road or highway which has mile- 
 stones, with such distance marked thereon ; and shall also erect 
 guide-posts at the intersection of all public roads, leading into, or 
 from the turnpike, on which shall be inscribed the name of the 
 town to which such intersecting road leads, in the direction to 
 which the hand on the same points. 
 
 If any person shall wilfully break or cut down, deface or injure, 
 any of the said mile-stones or posts, so to be erected, or shall wil- 
 1'ully break, or throw down any of the said gates or turnpikes, 
 or shall dig up or spoil any part of the said road, or any thing 
 thereunto belonging, or shall forcibly pass either of the said gates 
 without having previously paid the legal toll, such person or per- 
 sons shall, for every such offence or injury, forfeit and pay the 
 sum of twenty-five dollars, to be recovered by the said corpora-
 
 HIGHWAYS. 
 
 chin, l',)r their use, in an action of debt, before any justice of the 
 peace of the county where the offence shall be committed, or 
 where the offender may be found. 
 
 If any person shall, with his team, carriage, or horse, turn out 
 of the said road, or pass either of the said gates on ground adja- 
 cent thereto, and again enter on said road, having passed the said 
 gate or gates, to avoid the payment of the toll due by this act, 
 such person or persons shall forfeit ami pay a fine not exceeding 
 fu'e dollars, to be recovered in like manner by the said corporation, 
 with costs. Sess. 30. c. 38. s. 8. 
 
 IV. Inspectors, and duties when turnpikes are out of repair. 
 
 The commissioners to be appointed in the several counties of 
 this state, in which there is a turnpike road, and no provision inadje. 
 for inspecting it, shall, each one, before he proceeds to execute 
 the trust reposed in him, take and subscribe the following oath, 
 before one of the justices of the peace of the county for which 
 hi- is appointed : 
 
 / do swear, (or affirm,) that I will faithfully, impartially, ant 1 
 
 according to the best of my judgment and understanding, execute 
 and perform the ojfice and duty of commissioner to inspect turnpike 
 roads in the county (here insert the county for which he is ap- 
 pointed) according to lain. Sess. 36. c. 91. s. 1, 2. '2 II. L. 22k 
 
 Whenever complaint is made to any of the commissioners that 
 the turnpike is out of repair, it shall be his duty to examine the 
 road committed to his charge, and if he shall discover it not to be 
 in good repair, or shall find any of the gates placed in situations 
 contrary to law, he shall, by writing under his hand, give notice 
 thereof to the directors, or one of them ; and if the company shall 
 not immediately thereupon repair such defect, remove such gate, 
 or throw open the gate or gates on such road, as such commis- 
 sioner shall by his notice require, until the road is repaired or gate 
 removed, he shall make complaint to the attorney general or dis- 
 trict attorney, who shall cause the president, directors, and com- 
 pany, to be prosecuted, and if they shall be convicted of suffering 
 the road to be out of repair, the court may impose a fine not ex- 
 ceeding two hundred dollars. 
 
 Whenever complaint in writing shall be made to any of the 
 commissioners, that any turnpike road, or any part thereof, is our 
 of repair, such, commissioner shall, after having viewed the road, 
 if the same is, in his opinion, out of repair, give notice in writing to 
 the toll-gatherer, of such defect, and also shall, in his discretion in 
 the said notice order such gate or gates to be thrown open, which 
 shall immediately be opened, and remajn open, and no toll be de- 
 manded until the gate keeper receivr a certificate, under the 
 hand of one of the commissioners in such county, that such 
 voad is in sufficient repair, and granting permission to shut 
 -'!<!) irate : :ml if -nc'i !,<-<-'!MT of the <r;ite ;rs af*re--:fii]. sh.;i!l not;
 
 HOMICIDE. 
 
 immediately after receiving a notice fur that purpose, ;,s aforesfeid, 
 open such gate, and keep the same open until permission to shut 
 the same is obtained as aforesaid, or if he shall hinder or delay 
 any person or persons in passing the said gate or shall take or de- 
 mand toll from any person or persons in passing the same, after 
 the notice to throw open such gate has been given as aforesaid, 
 and before such permission as aforesaid hath been granted to shut 
 the same, the toll-gatherer of such gate shall, for every such of- 
 fence, forfeit and pay to the party aggrieved, the sum often dol- 
 lars, to be recovered by an action of debt, in the name of the 
 party aggrieved, for his own use, before any justice of the peacr 
 of the county in which such gate is situate, in which action it 
 shall be sufficient for the plaintiff to declare that the defendant 
 is indebted to him in the sum often dollars, for demanding and 
 taking toll at such gate as aforesaid, or delaying or hindering such 
 plaintiff* in passing such gate (as the case may be) contrary to 
 this act, and it shall be lawful for the plaintiff in such action, if 
 judgment shall be obtained in his favour, to have execution with- 
 out delay, in the form prescribed by the twenty-five dollar act, 
 on which the defendant may be imprisoned until the amount of 
 the judgment and costs is paid. 
 
 Each commissioner shall be entitled to two dolla/s for every 
 day spent in viewing the road, which, in case the road shall be 
 adjudged out of repair, shall be paid by^the toll-gatherer nearest 
 that part of the road so adjudged out of repair, out of the tolls 
 received or to be received by him, and which the commissioner 
 shall and may, on demand and refusal, recover of the toll-gatherer 
 in an action of debt with costs of suit. 
 
 But if the road shall be adjudged in good order and repair, the 
 complainant shall pay the commissioners their compensation, to 
 lie recovered in like manner, s. 8. and see sess. 30. c. 38. s. 16, 
 1 R. L. 23d. in which part of this provision is adopted. 
 
 HOMICIDE. 
 
 The taking away the life of another, whether it amount to fe- 
 lony or not, is called by the general name of homicide, which may 
 he either felonious, justifiable, or excusable. Felonious homicide 
 may be either murder or manslaughter, according a& the act ia 
 perpetrated with or without a malicious intent. 
 
 I. Murder. 
 II, Manslaughter. 
 III. Homicide not fdonious.
 
 HOMICIDE. 
 
 I. Murder. 
 
 Murder is the voluntarily killing any person (which extends not i East, P. c. 
 to infants iu the womb) lining in the peace of the people, of ma- Fosuasfi. 
 Jice prepense or aforethought, either express or implied by law: 
 the sense of which word malice is not only not confined to a parti- 
 cular ill-will to the deceased, but is intended to denote, as Mr. 
 Justice Foster expresses it, an action flowing from a wicked and 
 corrupt motive, a thing done malo ammo, where the fact has been 
 attended with such circumstances as carry in them the plain indi- 
 cations of a heart, regardless of social duty, and fatally bent upon 
 mischief. And. therefore, malice is implied from any deliberate 
 cruel act against another, however sudden. 
 
 Express malice is, when one, with a sedate, deliberate mind, and 4 Black, 
 
 , Com. 194, 
 
 formed design, doth kill another: which tormed design is evi- 
 denced by external circumstances discovering that in ward intention: 
 as lying in wait, antecedent menaces, former grudges, and con- 
 certed schemes to do him some bodily harm. 
 
 Malice is implied in every instance of homicide amounting, in iKast, P. c. 
 point of law, to murder : and in every charge of murder, the fact 
 of killing being first proved, all the circumstances of accident, 
 necessity or infirmity, are to be satisfactorily proved by the pri- 
 soner, unless they arise out of the evidence produced against 
 him. In all cases where it appears that there was an interval of 
 reflection, or a reasonable time for the blood, if it had been heated, 
 to cool, after which the deadly purpose is effected, however 
 grievous the provocation may have been, the party killing is guilty 
 of murder : and however a provocation received may rebut the im- 
 plication of malice, it will be no answer in alleviation to express 
 malice proved. And, therefore, if upon a provocation received, one 
 party deliberately and advisedly denounce vengeance against an- 
 other, as by declaring that he ivill have his blood, or the like, and after- 
 wards carry his design into execution, he will be guilty of murder ; 
 although the death happened so recently after the provocation as 
 that the law might, apart from such evidence of express malice, have 
 imputed the act to unadvised passion. 
 
 Poisoning is an instance in which the law necessarily implies i_East,P. c. 
 malice, howeve/ great tho provocation, because it is a delibe- 
 rate act. 
 
 If a man kills another suddenly, without any, or without a con- 4 Black. 
 
 . , . . . , . ,. ,- Com. 200. 
 
 sidcrable provocation, the law implies malice. 
 
 The manner of procuring the death of another with malice is, i East, p. c. 
 generally speaking, immaterial in point of law ; with this reservation, 2 ' 
 however, that the malice must be of corporal damage to the party ; 
 and therefore working upon the fancy of another, or treating him 
 harshly, or unkindly, is not such a killing as the law takes notice of. 
 
 If a man, however, does such an act, of which the probable con- ^ R !ack. 
 
 CuiU. 1S7 
 
 sequence may be. and eventually is, 'death : such killing may be
 
 JiOMlCIDi. 
 
 murder, although no stroke be struck l;y hinvseli, ;<nd lio killing 
 may he primarily intended ; as was the case of the unnatural son, 
 who exposed his sick father to t.^e air against his will, hy reason 
 whereof he dii-d ; of the harlot \\lio laid her child under leave- 
 in an orchard, where a kite struck it and killed it ; and of the 
 parish ollicer, who shifted a child from parish to parish till it 
 died for want of care and sustenance. 
 4 filack. Jf upon a sudden provocation, one heats another in a cruel and 
 
 Coin. 19'J. 
 
 uausual manner, so that he dies, though he did not intend his 
 death, yet he is guilty of murder hy express malice ; as when a 
 park-keeper tied a hoy, that was stealing wood, to a horse's tail, 
 and dragged him along the park ; when a master corrected his 
 r-ervant with an iron bar : and a school-master stamped on his 
 scholar's belly ; so that each of the sufferers died ; these were 
 justly held to he murderers, because the correction, being exces- 
 sive, and such as could not proceed hut from a had heart, it was 
 equivalent to a deliberate act of slaughter. 
 
 4 Black. Where two deliberately meet to fight, and one is killed, suffi- 
 
 i Kast,p. c. cient time having Intervened after the provocation given for the 
 Zi2 ' blood to cool, it is murder, not only in the person killing, but in his 
 
 second, and perhaps in the second of the party slain. 
 1 .'"'' p ' c * ^ one persuade another to kill himself, the adviser is guilty of 
 
 murder. The same, if he kill the party by his own command. 
 <t Black. If one kills an ofiicer of justice, either civil or criminal, in the 
 
 execution of hisduty, or any of his assistants, endeavouring to con- 
 serve the peace, or any private person endeavouring to suppress an 
 affray or apprehend a felon, knowing his authority or the intention 
 with which he interposes, the law will imply malice, and the 
 killer shall be guilty of murder. 
 
 With respect to poisoning, it lias been enacted " That all wil- 
 ful killing, by poisoning of any person or persons, done, perpetrated, 
 or committed, or that nt any time hereafter shall be done, perpe- 
 trated, or committed, shall be adjudged, taken, and deemed wilful 
 murder, of malice prepense : and the offenders therein, their 
 aiders, abettors, procurers, and counsellors, shall suffer death, and 
 forfeit in every behalf, as in other cases of wilful murder of ma- 
 lice prepense/' Sess. 10. c. 22. s. I. 1 R. L. (JG. 
 
 The rule of the common law is, that where the death of the 
 party is not immediately consequent upon the act of the person 
 inflicting the wound, or administering the potion, and he lives for a 
 year and a day thereafter, the person committing the act, whether 
 llie other die or not, is in no manner liable to a criminal prosecu- 
 tion for a felony. How far an intent to murder is an aggravation 
 of an assault, is considered under a different title. As to poison- 
 ing with an intent to murder, although it is not declared to be a 
 felony, yet in the degree of punishment it is placed on a level 
 with many felonies of the highest description. It is enacted, "that 
 every person who shall hereafter be convicted of the offence of 
 administering, or causing or procuring to be administered, or wil-
 
 HOMICIDE. 165 
 
 irngly acting or assisting in administering to any other person any 
 poison, with intent to murder such person, and where such person 
 shall not thereof die in one year and a day, then every person, so 
 convicted, shall and may he adjudged, hy the court before whom 
 MIC conviction in either of the said cases is had, to imprisonment 
 in the state prison, for a term not exceeding fourteen years." Sess. 
 .SO. c. 29. s. 7. 
 
 The s'tat. 1 Jac. 1. c. 8. which has been copied into our statute ' E, P. c. 
 
 2)7 2J1 
 
 book, declaring stabbing to be murder, and which lias brought one 4 BI. Com. 
 species of manslaughter within the punishment for murder, has l93 ' 
 in England been construed to be only declaratory of the common 
 law, that to bring a case within it there ought to be malice, and 
 that all circumstances which at common law will serve to justify, 
 excuse, or alleviate, in a charge of murder, must have their due 
 weight in prosecutions upon the statute. 
 
 The words of the act are, " If any person or persons shall stab 
 or thrust any person or person, that hath not then any weapon 
 drawn, or that hath not then first stricken the party who shall so 
 stab or thrust, so as the person or persons so stabbed or thrust 
 shall thereof 'die, within the space of six months then next fol- 
 lowing, although it cannot be proved that the same was done of 
 malice aforethought, every such unlawful killing shall be adjudged, 
 taken ;md deemed wilful murder : and the offenders therein, 
 ilieir aiders, abettors, procurers, and counsellors, shall suffer 
 death, and forfeit, in every behalf, as in other cases of wilful mur- 
 der of malice prepense. But this shall not extend to any person 
 or persons who shall kill any person or persons in his, her, or 
 their own defence, or by misfortune, or in any other manner 
 than as aforesaid : nor to any person or persons who, in keep- 
 ing and preserving the peace, shall chance to kill any person 
 or persons, so as such killing be not done wittingly, willing- 
 ly, and of purpose, under pretext and colour of keeping the 
 jit an- ; nor to any person or persons who, in chastising or 
 correcting his, her. or their child, or servant, shall, contrary to 
 his, her, or their intent and purpose, chance to kill such child or 
 servant." Sess. 10. c. 22. s. '2. 1 II. L. 67. 
 
 Notwithstanding the. exceptions particularly mentioned in the i Fast,.?, c. 
 act. other cases coming within the letter of the act, and not co- 2i0 ' 
 vered by any of those exception?, have been adjudged not to be 
 within the meaning of it. Such is the case of an adulterer stabbed 
 by the husband in the act of adultery : or where a mau kills a 
 thief who assaidts his house ; the one is manslaughter, the other 
 justifiable homicide. 
 
 The law, say s Black slone, has construed the statute so favourably 4 m. Com. 
 in behalf of the subject, and so strictly when against him, that the 193< 194- 
 offence of stabbing now stands almost upon the same footing as 
 it did at the common law. Thus, in the construction of this sta- 
 tute, it hath been doubted, whether, if the deceased had struck at 
 all before the mortal blow given, this does not take it out of the 
 statute, though in the preceding quarrel the stabber had given the,
 
 H031ICIDK. 
 
 iirst blow ; and il seems to be the better opinion, that this is not 
 within the statute. Also, it hath been resolved, that the killing a 
 man by throning a hummer, or other blunt weapon, is not wit!;in 
 the statute : and whether a shot with a pistol be so or not is 
 doubt- d. But if the party slain had a cudgel in his hand, or had 
 thrown a pot, or a bottle, or discharged a pistol at the party stab- 
 bing, this is a sufficient having a weapon drawn on his side within 
 the words of the statute. 
 
 4 ni. Co-n. At common law, the killing of a master by his servant, or of a 
 husband by his wife, is a crime of a blacker dye than the killing a 
 mere stranger, or a person within any other social relation, and was 
 subjected to a severer punishment. But by an act of the legislature 
 of this state, sess. 10. c. '22. s. 3, " when a servant killeth his mas- 
 ter, or a wife her husband, of malice prepense, such offences shall 
 be deemed and adjudged to be, and shall be punished as murder." 
 The malicious intent, necessary to constitute the crime of mur- 
 der, in the instances already alluded to, it will be observed, are 
 cases in which a particular person was designated as the object of 
 that intent, and in which the intent was effectuated by the de- 
 struction of the person against whom it was first conceived. But 
 malice, as has been already stated, is not to be confined to a par- 
 ticular ill will to the deceased ; the criminal may have had no 
 one object in view on which to vent his malevolence ; he may 
 have slain a person whom he did not intend to injure, by inad- 
 vertence, instead of the one whose life he designed to have taken 
 :i\vay ; or he may, accidentally, have killed a person, while seek- 
 ing to do him lesser injury, or while prosecuting some other un- 
 lawful purpose : in all which cases, the law would adjudge the 
 act to have been committed with malice, either express or im- 
 plied. 
 
 Jo''' C m> Thus, where a man discharges a gun among a multitude of peo- 
 ple, coolly and deliberately, although he may have had no one in- 
 dividual in view to injure, yet this will be considered as an indica- 
 tion of a malignant and depraved' disposition to perpetrate mis- 
 chief, fall where it may ; and this is further apparent from the use 
 of an instrument calculated to produce the greatest possible in- 
 jury. So where a man resolves to kill the next person he meets, 
 and does so. this is murder. 
 
 ; Kast, r. c. If a man intending to kill B. strikes at him, but misses him and 
 kills C. who is standing by. this is murder ; for although C. was 
 not the object of his malice, yet his death ensued in consequence 
 of the malicious intent, which two circumstances, malice, anil a 
 killing in consequence thereof, render the crime complete. So, 
 where one gives medicine to a woman for the purpose of procur- 
 ing abortion, by which she is killed, this is murder, although the 
 original intent, had it been alone effectuated, would not have been 
 so, but only a great misdemeanour. 
 
 i East, P. c. If a man, in the prosecution of a felonious intent, accidentally 
 kill another, it will be inurd'jr ; as vrhere A- shoots at the pyultry
 
 HOMICIDE. 167 
 
 oi'B. with a design to steal them, and by Occident kills a man, it 
 will be murder. So, if lie unlawfully, with malice or in cool blood, 
 intend to beat another, not designing to kill him, but still happens 
 to kill him, it is murder. 
 
 So where divers persons confederate to do an unlawful act in ^^M' C 
 breach of the peace, in a violent and Unnultu-jus manner, as to 
 commit a violent disseisin with great numbers, or to oppose the 
 posse commitatus, and a person is killed during the actual strife, it 
 will be murder, not only in the person giving the blow or inflicting 
 the wound, but In all the confederates. 
 
 However, where death ensues, on the doing of an unlawful act, 2 East, p. c. 
 
 OC.T 25" 
 
 not felonious, or not directed to the bodily harm of any person, 
 or not in breach of the peace, it will be manslaughter. But in all 
 such cases the nature of the instrument, and the means used, must 
 be kept in view ; for if they be of a kind evidently calculated to 
 produce great bodily harm, the offence will be aggravated to its 
 highest degree of criminality. This leads to the second division 
 of this title. 
 
 II. Manslaughter. 
 
 If one throws a stone at another's horse, and it happens to hit * E^I p - (: - 
 a man and kill him, this will be manslaughter, for the original 
 intent is unlawful. 
 
 So if a person barely intend to commit a trespass, as where A. i East, P. e, 
 wantonly shoots at the poultry of B. without intending to steal 
 them, and by accident kills a man, it will be manslaughter. 
 
 If a person in breaking an unruly horse, wilfully ride him among *,^ a5t ' p< ' ' 
 a crowd of persons, the probable danger being great and apparent, 
 and death ensue from the viciousness of the animal, it is murder. 
 But yet, if it appear clearly to have been done heedlessly and in- 
 cautiously only, and not'Avith an intent to do mischief, it is only 
 manslaughter. 
 
 These distinctions arise from the definition of manslaughter, 4 com. w;. 
 which, according- to Blackstone, is " the unlawful killing of ano- 
 ther without malice, either express or implied : which may be 
 either voluntarily, upon a sudden heat, or involuntarily, but in the- 
 commission of some unlawful act." 
 
 To the cases already mentioned of homicide arising from the 
 prosecution of an unlawful act, may be added those in which a 
 person is slain in some unlawful sport, as where one of the com- 
 batants in a public boxing match happens to kill another, it wi.l 
 be manslaughter; for here the intention of the parties is not in- 
 nocent, each being careless of what hurt may be given, provided 
 the promised reward or applause be obtained. So, where per- 
 sons wore engaged in the sport of cock-throuing, and one missed 
 his aim, and killed a child who was looking on, Mr. Justice Foster 
 ruled it manslaughter. 
 
 v. hich ir,;)':! iYr(|rtPntly fnruishes an alleviation of thn
 
 168 
 
 4 Black. 
 Com. l-r.. 
 132. 
 
 ! Kast, P. C. 
 
 234,235. 
 
 i East. P. C. 
 
 238, 239. 
 
 4 Blaili. 
 Curu. 18^. 
 
 HOMICIDE. 
 
 guilt of homicide, is when the killing is in consequence of sonic 
 sudden heat on a provocation given !>y the deceased. 
 
 If upon a sudden quarrel two persons fight, and one of them 
 kills the other, this is manslaughter: and so it is, if they, upon 
 such an occasion, gu out and light in a field ; for this is one con- 
 tinued act of passion : and the law pays that regard to human 
 frailty, as not to put a hasty and deliberate act upon the same 
 footing as to guilt. So also if a man he greatly provoked, as Ity 
 pulling his nose, or other great indignity, and immediately kills the 
 aggressor, though this is not excusahle se Jifeiidi'iulo, since then- 
 is no absolute necessity for doing it to preserve'himself, yet nei- 
 ther is it murder, for there is no previous malice ; but it is man- 
 slaughter. But in this, as in every other case of homicide, upon 
 provocation, if. there be a sufficient cooling time for passion to 
 subside, and reason to interpose, and the person so provoked after- 
 wards kills the other, this is deliberate revenge, ami not heat of 
 blood, and accordingly amounts to murder. So, if a man takes 
 another in the act of adultery with his wile, and kills him directly 
 upon the spot, it is manslaughter. 
 
 But not any trivial provocation, which in point of law amouuls 
 to an assault, or even a blow, will of course reduce the crime of 
 the person killing, to manslaughter. For where the punishment 
 inflicted for a slight transgression of any sort is outrageous in in 
 nature, either in the manner or the continuance of it, it is to be con- 
 sidered HS an indication of malico ; and therefore the crime will 
 amount to murder, notwithstanding such provocation. In such 
 cases, if the party intending the chastisement, use an instrument 
 in its nature likely to endanger life, he will be guilty of murder: 
 but if'it be not of a deadly nature, nor urged with brutal violence, 
 in bhort, if the act may fairly bfv attributed to an intention to cor- 
 rect, rather than to a cruel and implacable malice, founded in a 
 Hjiirit of revenge, it will amount only to manslaughter. 
 
 If the provocation be such as the law presumes might in human 
 frailty heat the blood to a proportionable degree of resentment, 
 and keep it boiling to the moment of the fact, this heat will ex- 
 tenuate the guilt of the part}' acting under its adequate influence, 
 even though he made use of a deadly weapon. The same c\ 
 tennation will apply even to lesser provocations, where the in- 
 strument or force, not being in their own nature dangerous, w. M; 
 so applied as to induce a reasonable presumption that correction, 
 and not destruction, was intended to be e flee ted. 
 
 III. Homicide not J'alvnioiis. 
 
 By the common law, a distinction was made between homicide., 
 justifiable, or excusable : if in the former case the jury found the 
 homicide justifiable, the parly was entitled to a general acquittal; 
 in the case oi' excusable homicide, In- was subjected to a forfeiture 
 of his chattel, which however would always be remitted, on
 
 HOMICIDE. 169 
 
 procuring a pardon and writ of restitution, grantable as matter of 
 course and right. But by the laws of this state, (sess. 10. c. 22.) 
 the prisoner is in both cases entitled to a general acquittal. 
 
 The following are the instances recited by the statute, in which 
 the party is to be acquitted, and comprehend nearly all the cases 
 of homicide not felonious. 
 
 Where any evil disposed person or persons shall attempt felo 
 niously to rob or murder any person or persons, in or nigh any 
 highway, or in his or their mansion-house or dwelling place, or 
 shall feloniously attempt to break any dwelling-house in the night, 
 and shall happen, in his or their being in such their felonious at- 
 tempt, to be slain by him, her or them, whom the said evil doers shall 
 so attempt to rob or murder, or by any person or persons being in 
 the dwelling-house, which the same evil doers shall attempt burgla- 
 riously (o break by ni^ht. L. N. Y. sess. 10. c. 22. s. 4. 
 
 Where the party indicted killed the person or persons for whose 
 death he, she, or they, is, are, or shall be indicted, in his, her, or 
 their own defence, or by misfortune, s. 5. 
 
 Where the party indicted happened to kill the person or per- 
 sons for whose death he is indicted, in attempting or endeavouring 
 by any lawful ways or means to apprehend, take, or arrest the 
 same person for any treason or felony, or in the lawful defence of 
 his, her, or their husband, wife, parent, child, master, mistress, or 
 servant, or in the suppressing any riot, or in keeping and preserv- 
 ing the peace, or in lawfully chastising and correcting a child or 
 servant, s. 6. 
 
 Homicide may be justifiable as having been done in pursuance 4 Black, 
 of the express command of the law; as where a judge passes sen- J^'iiiale 
 tence of death upon a convicted criminal, and gives the warrant t- c. 497. 
 for his execution ; or a sheriff causes the warrant to be executed, p. 0.332, &c! 
 or himself puts the malefactor to death. But the law must require ","^'5!^ '" 
 it, otherwise it is not justifiable : therefore, wantonly to kill the 207. 
 greatest of malefactors, a felon, or a traitor, attainted or outlawed, 
 deliberately, uncompelled and extrajudicially, is murder. And 
 further, if judgment of death be given by a judge not authorized 
 by lawful commission, and execution is done accordingly, the 
 judge is guilty of murder. Also, such judgment, when legal, must 
 be executed by the proper officer, or his appointed deputy ; for 
 no one else is required by law to do it, which requisition it is that 
 justifies the homicide. If another person doth it of his own head, 
 it is held to be murder, even though it be the judge himself. 
 
 It is also justifiable when committed for the advancement of J Btoc jio 
 
 . Com. 17V, 
 
 public justice. As, I. Where an officer, in the execution of his 130. i aie. f 
 
 office, either in a civil or criminal case, kills a person that assaults 4 g s ' 4 * 
 
 and resrsts him. 2. If an officer, or any private person, attempts i East, P. c. 
 
 to take a man charged with felony, and is resisted, and in the en- principle* O f 
 
 deavour to take him, kills him. See the 6th sect, of the act, cited ? l taw 
 supra. 3. In case of a riot or rebellious assembly, the officers, in 
 t*ndcavourins to disperse the mob, are justifiable in killing them
 
 170 
 
 4 Black. 
 Cain. 184. 
 
 4 Black. 
 
 Cfcu. 182. 
 
 1 East, P. C. 
 
 298. 
 
 4 Black. 
 
 COiii. 182. 
 
 MLSliAND ANU AV1KE. 
 
 K Vvhivc luc. pi'irioiiors in a gaol, or going to a gaol, assault the 
 gaoler or oflicer, and he in his defence kills any of them, it is jus- 
 tifiable for the sake of preventing an escape. But in all these 
 cases, there must be an apparent necessity on thu officer's side, 
 viz. that the party could not be arrested or apprehended, the 
 riot could not be suppressed, the prisoners could not be kept in 
 hold, unless such homicide were committed : otherwise, without 
 such absolute necessity, it is not justifiable. 
 
 Homicide in self defence, is distinguishable from that spt 
 of homicide which is occasioned by the endeavour to prevent the 
 commission of a crime, as robbery, murder, or burglary, the in- 
 stances mentioned in the act just referred to, in this, that it is tha; 
 kind of self-defence whereby a man may protect himself from an 
 assault, or the like, in the course of a sudden brawl or quarrel, by 
 killing him who assaults him ; but this excuse can only avail in 
 sudden and violent cases, in which it appears that the slayer had 
 no other possible, or at least, probable means of escaping from hi* 
 assailant. 
 
 Homicide by misfortune, is where a man doing a lawful acl. 
 without any intention of hurt, unfortunately kills another : as when- 
 a man is at work with a hatchet, and the head thereof fliee off and 
 kills a slander- by. 
 
 It must however be kept in view, that in all cases in which tin- 
 law justifies a homicide, by reason of its being committed in tin- 
 advancement of justice, as by an officer executing a civil or crimi- 
 nal process, or in preserving the peace, or in chastising a child or 
 servant, the degree of force and violence used, in one instance, 
 must not be excessive, or more than adequate to accomplish tin- 
 purpose intended ; for if a riot can be suppressed, or an escape 
 prevented, by a slight degree of coercion, there can be no excun- 
 for having recourse to violent means. So in the other instance, 
 if the chastisement be in a cruel or unusual mannor, or with au 
 instrument deadly in its nature, and death ensue, the law will no! 
 excuse it, but it will be either murder or manslaughter, according 
 to the circumstances of the case. 
 
 HUSBAND AND WIFE. 
 
 1 Black. 
 Com. 439. 
 Ventou v. 
 Reed, 
 4 John*. 
 Htp. 5i. 
 
 Fenton v 
 K^e.1. 
 4 Julius. 
 iU-p. i j. 
 
 No formal solemnization of marriage is requisite, but u coutraci 
 of marriage per verba deprccsenti, that is, by words of the present 
 tense, amounts to an actual marriage, and is as valid as if made in 
 facie ecclesia:, that is, in the presence of the church, or solemnized 
 with ecclesiastical ceremonies. 
 
 Proof of an actual marriage is, in most instances, unnecessary U 
 be made : it is only requisite in prosecutions for bigamy, and in 
 actions for criminal conversation. A marriage may be proved in 
 other cu3e>3, from cohabitation, reputation, acknowledgment tr
 
 HUSBAND AND WIFE. 1 7 J 
 
 'lie parties, reception in the family, and other circumstances from 
 which a marriage may be inferred. 
 
 In those cases where the debt or cause of action will survive to ' B c- A ' r - 
 
 499. 
 
 the wife, the husband and wife are regular!)' to join in bringing 
 an action ; as in recovering debts due to the wife before mar- 
 riage, in actions relating to her freehold or inheritance, or injuries 
 done to her person. 
 
 Where the wife cannot maintain an action for the same cause, Saiu. 114. 
 if she survive her husband, the action must be brought by the hus- airs 
 baud alone, as in the case of an action of indebitatus assumpsit -J w ^' r * 
 fur the labour, &ic. of the wife, during the coverture ; for in con- 
 templation of law, the wife is considered as the servant of the 
 husband, and he is entitled to her earnings, and such earnings shall 
 not survive to the wife, but go to the personal representative of 
 the husband. But where the wife is the meritorious cause of thr 
 action, as where the defendant has derived profit or advantage from 
 her labour or skill, and an express promise of remuneration is made 
 by the defendant to the wife, in such case, the husband and wife 
 may join in the action. In all cases where, the wife shall not have 
 the thing when it is recovered, either solely to herself, or jointly 
 with her husband, but the husband only shall have it, there the 
 husband shall sue alone. 
 
 In personal actions for the recovery of damages only, (other than 2 Mod. 270. 
 actions in respect of personal wrongs to the wife,) the husband ^g W ' N * p * 
 and wife may join ; or the husband may sue alone, for he alone 
 may release such action. 
 
 If a. feme covert bring an action in her own name, without her hus- i Bac. Ab>. 
 band being joined, the defendant may plead the coverture of the Rep. earT 
 plaintiff in abatement. So, if a writ be brought against a feme 
 covert, as sole, she may plead her coverture in abatement ; but if 
 she neglect to do it, and there be a recovery against her as a feme 
 sole, the husband may avoid it by writ of error. 
 
 If a woman commit theft, burglary, or other civil offences 4 Bl. Com. 
 
 .. *i i < ^ .1 ruiij 28,29. 1 Halt , 
 
 against the laws of society, by the coercion of her husband, or P . c . 45,47. 
 even in his company, which the law construes a coercion, she is i """ k g p j^' 
 not guilty of any crime ; being considered as acting by compul- 11,12,' is. 
 sion, and not of her own will. But this rule admits of an excep- 
 tion in crimes that are mala in se, and prohibited by the law of 
 nature, as murder, and the like : not only because these are of a 
 deeper dye, but also, since in a state of nature no one is in sub- 
 jection to another, it would be unreasonable to screen an offender 
 from the punishment due to natural crimes, by the refinements 
 and subordinations of civil society. In treason also, no plea of 
 coverture shall excuse the wife ; no presumption of the husband's 
 coercion shall extenuate her guilt : and in inferior misdemeanours, 
 we may remark another exception ; that a wife may be indicted 
 with her husband, for keeping a brothel ; for this is an offence 
 touching the domestic economy or government of the house, in 
 which the wifr 1 has a priiripnl share : and 5s also such nn offence
 
 172 HUSBAND AND WIFE. 
 
 as the law presumes to be generally conducted by the intrigues oJ' 
 the female sex. And in all cases where the wife offends alone, 
 without the company or coercion of her husband, she is respon- 
 4Bum'sJust. sible for her offence, as much as any feme sole. If she be guilty 
 of a forcible entry, riot, trespass, &c. the fine shall be set upon 
 her alone, and not be levied on her husband ; but after his death, it 
 may be levied upon the Avife herself, and she alone shall suffer 
 imprisonment, or other corporal pain. 
 
 wever C ) T ' ^e husband is answerable for a forfeiture under a penal 
 Johns. Hep. statute incurred by his wife. 
 
 p 47 ' R 12Q The husband is liable for the debts of his wife contracted by 
 
 121. Angel v! her before the coverture, and the husband and wife may be sued 
 
 johii"'Rep. f r suc h debts during the coverture : but the husband cannot be 
 
 149. s,!r. SU ed alone for the debt of his wife contracted before their inar- 
 
 i bainpb. riage. If these debts are not recovered against the husband and 
 
 ]89> wife, during the life time of the wife, the husband cannot bo 
 
 charged for them, either at law or in equity, after the death of 
 
 the wife. But if the husband die before the wife they will survive 
 
 against her. 
 
 Seiw.N.r. All the personal estate of which the wife is possessed in her 
 o'wn right, is by the marriage vested absolutely in the husband. 
 Notwithstanding the law thus divests the wife of all her personal 
 property, she cannot bind her husband by any contracts, even for 
 necessaries suitable to her degree and estate, without the assent 
 of her husband, either express or implied. 
 
 M'Catehenv. Cohabitation is evidence of the husband's assent to contracts 
 w'ns' 1 if ' / l maa< e by his wife for necessaries, and it can be repeled only by 
 2si. express notice of previous dissent, or notice not to trust her. 
 
 444. i issp! And if the husband causelessly turns away his wife, or deserts 
 441 ' t ] Esp ' ' ier ' O1 com pels her by ill usage or severity to leave him, he gives 
 Raj-m. 1000. her credit wherever she goes, and must pay for necessaries for her, 
 SP!W.' 6 w!'r fr nl which he cannot exempt himself by any notice not to trust 
 293 her. But cohabitation is presumptive evidence only, of such 
 
 assent, and it may be rebutted by contrary evidence. If the 
 wife elope from her husband, whether with or without an adul- 
 terer, though the tradesman has no notice of the elopement, if he 
 give credit to her, even for necessaries, the husband is not liable. 
 Or if the husband turn her away on account of her having com- 
 mitted adultery, then he will not be liable. If, however, the wife 
 elope without an adulterer, and afterwards offer to return, and 
 the husband refuses to receive her, his liability for her contracts 
 for necessaries is revived from that time, notwithstanding a gen- 
 eral notice not to trust her. 
 
 ii'tntchenv. But if the wife, having eloped without an adulterer, do not 
 Johnl^Rt-p! 1 ^ er t return to her husband, he will not be liable : for the duties 
 S5J - of the wife, while cohabiting with the husband, form the considera- 
 
 tion of his liability for her necessaries. Fie is bound to provide 
 for her, in his family ; and while he is guilty of no cruelty 
 towards her, and is willing to provide her a home, and all necessa- 
 ries ifere, he is not bound to furnish them elsewhere. And all
 
 HUSBAND AND WIFE. 173 
 
 Hi, supplying the necessities of a married woman, separate 
 from her husband, are hound to make inquiries as to the cause 
 nnd circumstances of the separation, or they give credit at their 
 peril. 
 
 If a husband and wife part by consent, and the husband secures Baker v. Bar 
 to her a separate maintenance, suitable to his condition in life, R^p.Tj. ' 
 and pays it according to agreement, he is not liable for articles Fenner r. 
 furnished to his wife, not even for necessaries, and the general ioJohn. 
 reputation of the separation will be sufficient. But where the Re P- 38 
 agreement on the part of the husband, to pay a certain sum to his 
 wife, or a separate maintenance, is not reduced to writing, and 
 there is no evidence of any payment having been made by him 
 to her, he, will be liable for goods furnished to his wife during the 
 separation. 
 
 So if he fail in paying the stipulated allowance to his wife, h 2 EOS. ana 
 will ba liable for necessaries furnished her. 148. 
 
 A feme covert cannot bring an action or be impleaded as a feme a Term Rep 
 sole, while the relation of marriage subsists, notwithstanding she 
 lives separately from her husband, and has a separate maintenance 
 secured to her by deed. 
 
 But where the husband is civilly dead, as if he he banished, or co.Litt.i3~ 
 be sentenced to the state prison for life, the wife acquires a sepa- MatterofDr 
 rate character, and may sue or be sued nan feme sole. io"j^'i 
 
 And where the husband of a married woman, a foreigner, had Rep. 232. 
 gone abroad, and not since returned, and his wife had kept house Waifordr. 
 and paid bills for goods furnished on her own account, and in her "* ll ' 
 own name. Lord KENYON ruled, that she was liable for goods 2E?p.5>. 
 sold and delivered to her. His lordship said, the present case, 
 came within the principle of the old common law, where the hus- 
 band had abjured the realm. If the husband had been absent for 
 sometime, and then returned, and paid bills contracted by the wife 
 in his absence, and again left the kingdom, he should hold the 
 wife not liable ; but here was a desertion of the kingdom, and an 
 absence of some years ; he w r as no longer domiciled here, and in 
 the interval his wife was supplied with these articles; if she was 
 not to be held liable for debts contracted under these circumstan- 
 ces, she might be starved. And in another action against the p ran ks v. 
 same defendant, Lord KENYON said, had this been the case of an p"^ ess de '* 
 Englishman, who might be presumed to have the animus rfver- SE*p.M7. 
 tendi, (or, intention to return,) it might be different ; but here is a 
 complete desertion of the country, and she must be liable. 
 
 The contract of marriage may be dissolved by a divorce tivin- Sen. 36. e. 
 culo niatrtmonii, or the bond of marriage, by decree of the. chan- {,?" 2 R " 
 cfillor, on account of adultery in either party. There is also a 
 qualified species of divorce, a divorce a mensa et thoro, from 
 bed and board, which is granted on account of the husband's ill 
 treatment of his wife, and may be cither perpetual, or for a limited 
 time, and during the continuance of which, the wife will be. en- 
 titled to her support and maintenance from the husband, or out of 
 his property, in such manner as shall be- appointed }>y thf chan
 
 J74 HL'&BAMJ AM) VVIKK. 
 
 cellor. But a divorce a mensa et thoro will not justify the 
 riage of either party living, the Cornier husband or wilV. 
 
 Matt*rof The civil death of either party is a dissolution of the contract ; 
 
 icTo'infi. as where husband or wife is sentenced to the state prison for life, 
 
 Rep. 232. an( j lnc a ther party may marry again; which second marriage 
 will not be annulled, or its validity affected, by a subsequent par- 
 don of the offender. 
 
 : Hawk. P. A feme covert cannot be guilty of larceny by taking the gdod? 
 
 c.c.33. s. 19. o f h er husband, neither can a stranger commit larceny by taking 
 the goods of the husband by delivery of his wife. 
 
 i Etc. Abr. If the wife has been taken in execution upon a judgment ob- 
 tained against her and her husband, she cannot be discharged. 
 
 4Bnrm'Just. If a woman who is a servant shall marry, yet she must serve 
 out her time, and the husband cannot take her out of her masters 
 service. Also, if a married man and his wife bind themselves to 
 serve, they shall be compelled to serve according to their cove- 
 nant or agreement. 
 
 : El.Com. Husband and wife cannot be witnesses for or against each other. 
 
 Abr. 57*. But where the offence is directly against the person of the wife, 
 this rule has been usually dispensed with; and therefore, in case a 
 woman be forcibly taken away and married, she may be a wit- 
 ness against such her husband, in order to convict him of felony. 
 And although the wife has been divorced, she is not a witness as 
 to transactions during the existence of the marriage. 
 
 1 Esp.^i42. Where a wife acts for her husband in any business by his au- 
 
 >tnner . thority, he thereby adopts her acts, and must be bound by any ad- 
 
 icJoh'ns mission or acknowledgment made by her respecting that business. 
 
 Rep. 33. A wife may demand surety of the peace against her hus- 
 
 i Hwk. P. c. band, threatening to beat her outrageously, and a husband also 
 
 i Burr! 651. may have it against his wife. 
 
 Where a husband by articles of separation, under a large pen- 
 alty, covenanted never to disturb his wife, or any person with 
 whom she should live ; the court held this agreement to be a for- 
 mal renunciation by the husband of his marital right to seize her, 
 or force her back to live with him. And they said, that any at- 
 tempt of the husband to seize her by force and violence would b" 
 i breach of the peace. 
 
 IMMORALITY. 
 
 I. Immorality at Common Law. 
 II. Blasphemy. 
 
 III. Profaning Sunday, and disturbing religions iff 
 
 IV. Cursing and Swearing. 
 
 V. Prosecution and Conviction. 
 
 I. Immorality at Common Late. 
 All scandalous and open breaches of inoraVity. exhibited in tin-
 
 IMMORALITY. 175 
 
 face of the people, are indictable at common law, and punishable 
 by fine and imprisonment. Such was the case of one who expo- 
 sed himself naked to the public view from a balcony. So, where 3 Burr. 1433. 
 a man assigned over his wife to another man. 
 
 In a late English case, it was held an indictable offence, fora man ius v. Crur. 
 to undress himself on the beach and bathe in the sea near inha- **" . 
 
 2 Caunpo. 39 * 
 
 bited houses, from which he might have been distinctly seen. 
 
 The offence of keeping a bawdy house is indictable as a com- 1 Hawk. c. 
 uion nuisance, not only in respect of its endangering the public 
 peace, by drawing together dissolute and debauched persons, but 
 also in respect of its apparent tendency to corrupt the manners 
 of both sexes by such an open profession of lewdness. 
 
 And upon information given to a constable that a man and wo- s Burnt' Jui;. 
 man are in adultery or fornication together, or that a man and wo- 2 Hawk, p.c, 
 man of evil report are gone lo a suspected house together in the c. io.s. 34. 
 night, the officer may take company with him, and if he find them 
 so, he may carry them before a justice, to find sureties of the good 
 iehaviom-. And a man may be bouod to his good behaviour for i Hawk.P. t 
 many causes of scandal which give him a bad fame, as being con- c - 8liS - - 
 trary to good manners only t as for haunting bawdy houses with 
 -.vomen of bud lame, or for keeping bad women in his own house. 
 
 II. Blasphemy. 
 
 );:,i-|>hemy is an offence at common law, and how far it is to 
 ye deemed so, within this state, will appear from the following 
 case : 
 
 Ruggles was indicted at the sessions in Washington county, for that People Y, 
 te did wickedly, malicioHsly, and blasphemously utter, and with a 8 j<ftf n t!' 
 ioud voice publish, in the presence and hearing of divers good and Rep- 290 
 Christian people, &c. of, and concerning the Christian religion, and 
 of and concerning JESUS CHRIST, the false, scandalous, malicious, 
 and blasphemous words following, to wit: " Jesus Christ was a 
 bastard, and his mother must be a whnre." The indictment was 
 removed into the court of oyer and terminer ; the defendant was 
 found guilty, and sentenced to be imprisoned for three months, 
 and to pay a fine of five hundred dollars. The record was then 
 removed into the supreme court, and the judgment below affirmed. 
 The following extracts from the opinion of the court, delivered by 
 KE.NT, Ch. J. will, I trust, be sufficient to satisfy the reader as to 
 law on the subject, and the grounds on which the court pro- 
 in forming, their decision. 
 
 The language used by the defendant was blasphemous, not only 
 in u popular, but in a legal sense ; for blasphemy, according to 
 the most precise definitions, consists in maliciously reviling God, 
 or religion, and this was reviling Christianity through its author. 
 The authorities show, that blasphemy against God, and contume-
 
 J76 
 
 Hous reproaches aiid profane ridicule of Christ, or the holy scrip- 
 tures, (which are equally treated as blasphemy,) are offences pun- 
 ishable at common law, whether uttered by words or writings. 
 The consequences may be less extensively pernicious in the one 
 ease than in the other, but in both instances, the reviling is still 
 .in offence, because it tends to corrupt the morals of the people, 
 and to destroy good order. Such offences have always been con- 
 sidered independent of any religious establishment, or the right? 
 of the church. They are treated as affecting the essential inte- 
 rests of society. Though the constitution has discarded religious 
 establishments, it does not forbid judicial cognizance of those of- 
 fences against religion and morality which have no reference to 
 any such establishment, or to any particular form of government. 
 but are punishable because they strike at the root of moral obli- 
 gation, and weaken the security of the social ties. The object of 
 the 38th article of the constitution was to " guard against spiritual 
 oppression and intolerance,'' 1 by declaring, that " th' free exercise 
 and enjoyment of religious profession and worship, without discri- 
 mination or preference, should forever thereafter be allowed 
 within this state, to all mankind." This declaration never meant 
 to withdraw religion in general, and with it, the best sanctions of 
 moral and social obligation, from all consideration and notice oi 
 the law. To construe it as breaking down the common law bar- 
 riers against licentious, wanton, and impious attacks upon Chris- 
 tianity itself, would be an enormous perversion of its meaning. 
 The proviso guards the article from such dangerous latitude of 
 construction, when it declares that " the liberty of conscience 
 hereby granted, shall not be so construed as to excuse acts of li- 
 centiousness, or justify practices inconsistent with the peace and 
 safety of this state." The preamble, and tills proviso, are a spe- 
 cies of commentary upon the meaning of the article, and they 
 sufficiently show, that the framers of the constitution intended 
 only to banish test oaths, disabilities, and the burdens, and some- 
 times the oppressions of church establishments ; and to secure to 
 the people of this state, freedom from coercion, and an equality 
 of right on the subject of religion. That this was the meaning 
 of the constitution, is further confirmed by a paragraph in a pre- 
 ceding article, which specially provides, that such parts of the 
 common law as might be construed to establish, or maintain any 
 particular denomination of Christians, or their ministers, was there- 
 by abrogated. The legislative exposition of the constitution is 
 conformable to this view of it. Christianity, in itsenlarged sense, 
 as a religion revealed and taught in the Bible, is not unknown to 
 our law ; being recognized in the acts for preventing immorality, 
 and concerning oaths. Surely, then, we are bound to conclude, that 
 wicked and malicious words, writings, and actions, W 7 hirh go to 
 vilify those gpspels, continue, as at common law, to be an offence 
 '.gainst the public peace and .safety.
 
 IMMORALITY. 177 
 
 fll. Profanation of Sunday, and disturbing Religious Meetings. 
 
 By the act for suppressing immorality, it is provided, " that 
 there shall be no travelling, servile labouring, or working, (works 
 of necessity and charity excepted,) shooting, fishing, sporting, play- 
 ing, horse-racing, hunting, or frequenting of tippling-houses, or any 
 unlawful exercises or pastimes, by any person or persons within 
 this state, on the first day of the week, commonly called Sunday : 
 and that every person, being of the age of fourteen years or up- 
 wards, offending in the premises, shall, for every such offence, 
 forfeit and pay, to the use of the poor of the city or town where 
 such offence shall be committed, the sum of one dollar. And that 
 no person shall expose to sale any wares, merchandise, frujt, herbs, 
 goods or chattels, upon the first day of the week, commonly called 
 Sunday, except small meat, and milk, and fish, before nine of the 
 clock in the morning, upon pain that every person so offending 
 shall forfeit the same goods, so exposed to sale, to the use of the 
 poor of the city or town where such offence shall be committed ; 
 and if any person offending in any of the premises, shall be there- 
 of convicted before any justice of the peace for the county, or 
 any mayor, recorder, or alderman o,f the city where the offence 
 shall be committed, upon the view of the said justice, mayor, re- 
 corder, or alderman, or confession of the party offending, or proof 
 of any witness, or witnesses upon oath, then the said justice, may- 
 or, recorder, or aUJerman, before whom such conviction shall be 
 had, shall direct and send his warrant, under his hand and seal, to 
 some constable of the city or county where the offence shall have 
 been committed, commanding him to seize and take the goods so 
 exposed to sale as aforesaid, and to sell the same, and to levy the 
 said other forfeitures or penalties, by distress and sale oif tho 
 goods and chattels of such offenders, and to pay the money arising 
 by the sale of such goods so seized, and the said other forfeitures 
 and penalties, to the overseers of the poor of the city or town 
 where the said offence or offences shall have been committed, for 
 the use of the poor thereof. And in case no such distress can be 
 had, then every such offender shall, by a warrant under the hand 
 and seal of the said justice, mayor, recorder or alderman, be 
 committed to the common gaol of the county, for a space of time 
 not exceeding twelve hours. And further, that if any person shall 
 be found fishing, sporting, horse-racing, hunting, gunning, or going 
 to, or returning from, any market or landing, with carts, wagons, 
 or sleds, on the first day of the week, called Sunday, it shall be 
 lawful for any constable, or other citizen, to stop every person so 
 offending, and to detain him or her until the next day, and then 
 to carry or convey him or her to some justice of the peace, to be 
 dealt with according to law. Provided always, that no person go- 
 ing to, or returning from, any church or place of worship within 
 4he distance of twenty miles, or going to call a physician, awrgeon, 
 
 r 23]
 
 IMMORALITY; 
 
 or midivil'i*, or carrying a mail to or from any post-office, or go- 
 ing express by order of any public officer, or shall be removing 
 liis familj r or household furniture, if such removal he not commen- 
 ced on such day, shall be considered as travelling within the 
 meaning of this act." Sess. .'36. c. 24. s. I. '2 II. L. 193. 
 
 "If any person charged with having laboured or worked on the 
 first day of the week, called Sunday, shall he brought before a 
 justice of the peace to answer to such charge, and shall then and 
 there prove, to the satisfaction of the said justice, that he or she 
 uniformly keeps the last day of the week as holy time, and does 
 not labour or work on that day, then such defendant shall be dis- 
 charged. Provided always, that the work or labour with which 
 he or she in charged, has not disturbed other persons in the 
 observance of the first day of the week as holy time." s. 2. 
 
 ;; No tavern keeper, ale, or porter-house keeper, inn-keeper, or 
 any person selling strong or spirituous liquors, ale or porter, with- 
 in this state, shall sell or dispose of any such liquors on the first 
 day of the week, commonly called Sunday, to any person whatso- 
 ever, lodgers and travellers, tolerated by law, ost-eptcd ; and that 
 every person offending in the premises, and being thereof duly 
 convicted before any mayor, recorder, alderman, or justice of th& 
 peace, of the city or town where the same shall have been com- 
 mitted, upon the view of tho said mayor, recorder, alderman, or 
 jusiiee of the peace, or on confession of the party so offending, 
 or upon the oath of one or more credible witnesses, shall forfeit 
 and pay, for every such offence, the sum of two dollars and fifty 
 cents." s. 3. 
 
 " If any person or persons whatsoever, either on the first d?y of 
 tlve week, called Sunday, or on any other day or time, shall wil- 
 fully, and of purpose, disquiet, interrupt, or disturb any assembly 
 of people met for religious worship, by making a noise, or by rude 
 and indecent behaviour, or profane discourse, either within their 
 place of worship or out of it, so near as to disturb the order and so- 
 lemnity of the meeting, or exhibit any shows or plays, or promote 
 or aid any horse-racing, or gaming of any description, or expose 
 to sale any ardent or diotilkd liquors whatever, or keep, or open 
 any huckster shop, upon any part of any highway within the dis- 
 tance of one mile from the place where any such religious society 
 Miall be actually assembled for public worship, or shall obstruct the 
 free passage of any highway, within the distance aforesaid of any 
 place of public worship, then every person so offending, and being 
 .'hereof legally convicted before any justice of the peace of the 
 county, or any mayor, recorder or alderman of any city where 
 'he offence shall be committed, shall, for every such offence, forfeit 
 arid pay, to the use of the poor of the town or city where such 
 oft'ence shall be committed, a sum not exceeding twenty-five dol- 
 kirs ; and in case any person convicted of any of the offences afore - 
 I, shall not iaia.ediatcly nay the sain so forfeited, with the
 
 IMMORALITY. ] 79 
 
 .:>.* of such conviction, or give security to the satisfaction of 
 iliu said justice, mayor, recorder or alderman, before whom such 
 conviction shall be had, for the payment thereof within twenty 
 days thereafter, every such offender shall, by warrant under the 
 hand and seal of such justice, mayor, recorder, or alderman, br 
 committed to the common gaol of the said city or county where 
 the offence shall be committed, for a term not exceeding thirty 
 days: and all judges, mayors, recorders, aldermen and justices of the 
 peace, upon the view of any person or persons offending, are hero 
 by authorized to order the said offender or offenders into the cus- 
 tody of any officer hereinafter named, or any official member of the 
 church or society so as aforesaid assembled, for safe keeping, until 
 lie shall be let to bail, or a trial for such offence can be had according 
 to law: And further, it shall be the duty of all sheriffs, coroners, mar- 
 shals, constables and bailiffs, who shall or may be present at the 
 <:;blic worship of any religious society interrupted ordisturbed in 
 manner aforesaid, to apprehend any and every such person or per- 
 sons so offending, and take, him or them, as soon as conveniently 
 may be, before anyjustice of the peace, mayor, recorder, or alder- 
 man, of the city or county wherein such offence shall have been 
 committed, in order that the person or persons so offending may 
 be dealt with according to law." s. 4. 
 
 "No person, upon the first day of the week, commonly called 
 Sunday, shall serve or execute, or cause to be served or executed, 
 any writ, process, warrant, order, judgment or decree, except in 
 cases of treason, felony, or breach of the peace ; but the service 
 thereof shall be void, and any person so serving or executing the 
 same, shall be liable for damages at the suit of the party griav- 
 ed." ' s.j. 
 
 IV. Cursing and Swearing. 
 
 l: If any person shall, at any time hereafter, profanely swear or 
 mrse, and be thereof convicted by the confession of the party of- 
 i'cnding, or on the oath of any one or more witnesses, or in the 
 manner hereinafter mentioned, before any justice of the peace. 
 for any county, or any mayor, recorder or alderman of any city 
 in this state, every person so offending shall, for every such of- 
 fence, forlV.it and pay to the use of the city or town where such 
 offence shall be committed, the sum of thirty-seven and a halt 
 cents." s. 6. 
 
 " In case any person shall profanely swear or curse in the pre- 
 sence and hearing of any justice of the peace for any county, or 
 in the presence and hearing of any mayor, recorder or alderman 
 of any city, while in the execution of his office, every such justice 
 of the peace, mayor, recorder, or alderman shall, and he is hereby 
 authorized and required to, convict every such offender of such 
 >ffence, without any other proof whatsoever." s. 7. 
 
 " In case any person who shall be convicted of prof-mclr cm
 
 180 IMMORALITY. 
 
 or swearing, shall not immediately pay the respective su)us so for- 
 feited, with the charges of such conviction, or give security to the 
 satisfaction of the justice, &c. hefore whom such conviction is had, 
 for the payment thereof within six days, then every such offender, 
 being above the age of sixteen years, shall, by warrant under the 
 hand aid seal of such justice, &c. be confined in the gaol of the 
 county for every oft'cnce, or for any number of offences, whereof 
 any such offender is convicted at one and the same time, for a 
 space of time not less than one day, or exceeding three days ; but 
 if the offender shall not be above the age of sixteen years, and 
 shall not forthwith pay the said forfeitures, or give security for 
 the payment thereof, the parent or master shall pay the same, to 
 be recovered as aforesaid," i. e. by distress, s. 8. See s. 1 . supra. 
 
 V. Prosecution and Conviction. 
 
 " Every justice of the peace, mayor, recorder, or alderman, 
 shall, immediately upon information given upon the oath of any 
 person, cause any offender against this act to appear before him, 
 and upon such information being proved as aforesaid," (i. c. by con- 
 fession of the party, or proof of one or more witnesses on oath,) 
 shall convict such offender, in such manner as in and by this act 
 is prescribed." s. 9. 
 
 " Every justice of the peace, &tc. before whom any person shall 
 be, by virtue of this act, convicted of any of the offences aforesaid, 
 shall cause such conviction to be drawn up in the form following : 
 
 " City of Nciu-York, (or, JFestchester county, or other city or 
 county, as the case may require,) to icit : 
 
 " Be it remembered, that on the day of in the 
 
 year of our Lord, one thousand A. B. was convicted be- 
 fore me, C. D. mayor, (or recorder, or one of the aldermen of 
 the said city, or one of the justices of the peace of the said 
 county) of crying, or showing forth, or exposing to sale, one (or 
 two, or more, specifying the number, quantity and kind of goods) 
 
 on a Sunday, in the said city, (or, the town of in the said 
 
 county) or of travelling, (or doing servile work or labor, or of 
 shooting, finking, sporting, playing, horse-racing, hunting, or fre- 
 quenting tipling-houscs, or using some unlawful exercise or 
 pastime) on Sunday, or of swearing one (or two, or more) pro- 
 fane oath or oaths (or of uttering one or more profane curse or 
 
 curses) in the said city, (or at the town of in the said county, 
 
 as the case may require) or of obstructing, on the day of 
 
 the free passage of the highway in the city, (or town of 
 
 ) within the distance of one mile from a place of public 
 
 worship, or of wilfully disturbing, on the day of , 
 
 an assembly of people met for religious worship in the city or 
 
 town of , by making a noise, or by rude and indecent 
 
 behaviour, or by profane discourse, or by exhibiting shows or 
 plays, or by promoting or aiding horse-racing or gaming, fa
 
 IMPRISONMENT. 
 
 ifae case may be,) or by exposing to sale ardent or distilled 
 
 liquors, or of having, on the day of , kept or 
 
 opened a huckster's shop upon the highway, within the distance 
 of one mile from the place where such religious society were 
 assembled for public worship, (as the case may require.) Given 
 under my hand and seal, the day and year above said." 
 
 " And no conviction, or adjudication by virtue of this act, shall 
 be liable to be removed by certiorari into the supreme court, but 
 shall be deemed and taken to be final." s. JO. 
 
 " In all actions to be brought by virtue of this act, the like fees 
 shall be allowed and taken as in cases of civil suits before justices 
 of the peace, and no more ; and all charges of the information 
 and conviction of any such offenders, shall be paid by the party 
 offending, over and above the penalties inflicted by this act ; which 
 charges shall be ascertained and settled by the mayor, recorder, 
 alderman, or justice, before whom such conviction shall be had, 
 but shall in no case exceed the sum of five dollars ; and all pen- 
 alties which shall be adjudged, levied and collected by virtue of 
 this act, shall be received by the magistrate before whom such 
 conviction and adjudication was had, and shall by him, within 
 thirty days after the receipt thereof, be paid over for the use of 
 the poor in the city or town where the same was so levied and 
 collected ; Provided alivays, That if the offender shall be im- 
 prisoned for the same offence, no charges shall be paid by any 
 person whomsoever, s. 1 1 . 
 
 " No person shall be prosecuted for arty offence against this 
 act, unless the same shall be prosecuted within twenty days 
 next, after the offence committed." s. 12. 
 
 lu any action brought against a person for executing this act, 
 the defendant may plead the general issue, and give the special 
 matter in evidence ; and in case of verdict for the defendant, or 
 if the plaintiff become nonsuit, or discontinue, the defendant 
 have treble costs, s. 13. 
 
 IMPRISONMENT. 
 
 Thefolloivingvjfences are punishable with imprisonment for life, viz. Sess.36.c.2<. 
 
 9. 3. 1 K.L, 
 403. 
 
 Rape. 
 
 The crime against nature, committed with mankind or beast. 
 
 Burglary ; 
 
 Feloniously breaking into, or taking any goods or chattels from 
 any dwelling house, any person being therein, and put in fear. 
 
 Robbing any dwelling house, any person being therein ; or rob- 
 bing any person in any place whatsoever. 
 
 Offences specified in the second, third, and fifth sections of the 
 act to prevent forgery and counterfeiting. J'idc FORGERY, IV.
 
 18 J IMPRISONMENT. 
 
 Any offence, specified in the act to prevent malicious maiming-. 
 Vide ASSAULT anil BATTT.RY, VI. ante, 38. 
 And accessories before the fact in any of the said offences. 
 
 * Jf'Uft imprisonment for life, or a shorter period. 
 
 Forging, or counterfeiting in certain cases. Fide FOHUKRV, IV.- 
 *,!. With imprisonment, not exceeding fourteen yeais. 
 
 Burning any dwelling house uninhabited, or any house of public 
 worship, or any barn, or any grist-mill. 
 
 Offences specified in the first section nf the art lo prevent 
 forgery and counterfeiting, the punishment whereof is not pio- 
 vided lor in the fourth section of this act. Fide. FORGERY, IV. 
 
 Any^felony, other fhau such as are previously enumerated in 
 this act, and directed to be otherwise punished, and above the de- 
 gree of petit larceny. 
 
 And accessories before the fact in the above offences. 
 
 And persons a second time convicted of ofienoes within 
 section may be sentenced to imprisonment for life. 
 
 Poisoning, where death does not ensue within a year antl 
 i- " a d;iy. 
 
 Jf'ith imprisonment not exceeding seven years. 
 
 Offences specified in the sixth section of the act, to pr<" 
 s. s. forgery, Sec. Vide FORGERT, IV. 
 
 Assault with felonious intent, instead of or in addition to a fine, and 
 i. 9. for a second offence, fourteen years. Vide ASSAULT and BATTER ? 
 
 V. o?z/e, 37. 
 
 Jf ithfinc and imprisonment, not exceeding tJiree years. 
 
 Petit Larceny. Vide LARCENY, IV. 
 
 . to. Any felony, the punishment whereof is not before provided for 
 
 . *. by this act. 
 
 Receiving stolen goods. Vide LAHCE-VY, V. 
 Cheats. Vide CHEATS, II. ante, Cf>. 
 Accessories before the fact in any of Ihn said offence?, 
 And accessories after the fact to any fciony whatsoever. 
 If it shall he deemed proper by the court before whom 
 JW4. such person shall be convicted, that instead of, or in a'! 
 
 fine, such person ought to be imprisoned for 
 case he may be adjudged to imprisonment in the state prison for 
 the term of three years. 
 
 Persons a second time convicted of offences within this sectlr-n. 
 Ibid. shall be adjudged to imprisonment not excfrdin;; HYP y< 
 
 As to the punishment of escapes from prison or from 
 
 a gaol, vide ESCAPE, III. V. 1>S, 93 ; 1C
 
 IMPRISONMENT 183 
 
 >f iik imprisonment not Ktc&ding ten years. . 20. 
 
 Perjury and subornation of perjury. 
 
 " In all cases where the punishment, or any part thereof, by this . ri. 
 ur.t ordained for petit larceny, shall be imprisonment, the court 
 before whom the offender shall be convicted, may order and direct 
 fhat the offender be fed on such diet as the said court may 
 think most likely to conduce to the reformation of such offender." 
 
 " Every person who shall hereafter be duly convicted of any *& 
 offence, for which the offender is liable to imprisonment in the 
 gaol of the county, in every such case, the court before whom the 
 conviction is had may sentence the person convicted to imprison- 
 ment in one of the solitary cells of the county, if any such be 
 erected." 
 
 " No person sentenced to imprisonment for any term of time * 14 - 
 lass than three years, shall be liable to be imprisoned in the state 
 imprisoBment, but shall be confined in the gaol of the city or 
 county in which such person may be sentenced." 
 
 " In all cases where any person shall be duly convicted or : - 
 attainted of any felony, committed after tho twenty-ninth diiy of 
 March, 1799, or of aiding;, abetting, hiring, or commanding any 
 person to commit any such felony, and shall be adjudged to im- 
 prisonment for life in the state prison, such person shaJl be 
 deemed and taken to be civilly dead to all intents and purposes 
 in the law." 
 
 Where the defendant in a cause is sentenced to the state prison Graham, \. 
 for life, he is considered as civilly dead, and the suit is abated. 3 juLni. ca, 
 
 A person sentenced t the state prison for life, was pardoned, 3- 
 and on motion for a habeas corpus to bring up his children, who 
 were in the custody of their mother, and her second husband as 
 guardians, the question was, whether the father, by the pardon, wn* 
 restored to his parental rights, and entitled to the custody of his 
 children. The court said, that the effect of the pardon was \n 
 acquit the offender of all the penalties annexed to the conviction, 
 and to give him a new credit and capacity. The limitation t<* 
 the operation of a pardon on his antecedent rights is, that it 
 not devest any person of any right or interest which the law had 
 permitted to b6 acquired and vested in consequence of the judg- 
 ment. It consequently cannot annul or affect the validity of tli? 
 '1 marriage of the wife, nor the sale of any of the property 
 of the convict by the persons who had in the mean time been 
 appointed to administer upon his state, nor his heirs of t!i 
 vested interest acquired in his estate, in consequence of his civil 
 death. But the pardon restores him to the relation of fatlu-r. 
 "and there cannot have occurred aay intervening right to defeat
 
 184 INDICTMENT. 
 
 trustee, without any rested interest, and he cannot be affected in 
 interest by the cessation of the trust. 
 
 The children, on being afterwards brought up on the return of 
 u> John?. the habeas corpus, were ordered to be delivered to their fattier. 
 
 ep. 43. 
 
 INDICTMENT. 
 
 I. Indictment, what is, and by whom, and low to be found 
 II. M r hat offences are indictable, and when. 
 
 III. Form of the indictment. 
 
 IV. Pleas to the indictment. 
 V. Arraignment and trial. 
 
 VI. Judgment. 
 
 I. Indictment, ichal is, and by whom, and how to be found, 
 
 An indictment is a written accusation of one or more person^ 
 4 Black. of a crime or misdemeanour, preferred to, and presented upon 
 s Burn*' oath by, a grand jury. When such accusation is found by a grand 
 Ju$t. 747. j ur y without any bill brought before them, and afterwards reduced 
 u. c. **! .'i. to a form of indictment, it is called a presentment ; and when it it- 
 found by jurors, returned to inquire of that particular offence only 
 which is indicted, it is properly called an inquisition. The 
 sheriff of every county is bound to return to every general ses- 
 sions of the peace, and every court of oyer and ternainer, and 
 general gaol delivery, twenty-four good and lawful men of the 
 county, who are to inquire of the truth of the indictments which 
 shall then be referred to them. As many as appear upon this 
 panel, are sworn upon the grand jury, to the amount of twelve at 
 the least, and not more than twenty-three ; that twelve may be a 
 majority. 
 
 This grand jury are previously instructed in the articles of their 
 4 Black. inquiry, by a charge from the judge, who presides upon the bench. 
 They then withdraw, to sit and receive indictments, which are 
 preferred to them in the name of the people, but at the suit of 
 any private prosecutor ; and they are only to hear evidence ori 
 the part of the prosecution : for the finding of an indictment is 
 only in the nature of an inquiry, or accusation, which is afterwards 
 to be tried and determined ; and the grand jury are only to in- 
 quire upon their oaths whether there be sufficient cause to call 
 upon the party to answer it. A grand jury, however, ought to be 
 thoroughly persuaded of the truth of an indictment, so far as their 
 evidence goes; and not to rest satisfied with remote probabilities; 
 a doctrine that might be applied to very oppressive purposes. 
 
 Every foreman of a grand jury is authorized, from the time of 
 his being appointed until his discharge, to administer the usual 
 oath or affirmation to such witnesses as shall come to give evi-
 
 INDICTMENT. 185 
 
 dence to the grand jury, whereof he is foreman. Sess. 36. c. 56. 
 3. 27. 1 K. L. 525. 
 
 The grand jury are sworn to inquire only foj- the body of the 
 county, and therefore they cannot regularly inquire of a fact done 
 out of that county for which they are sworn, unless particularly 
 enabled by the legislature. As where a party stricken or poi- Seu.ss.c^s. 
 soned in one county, dies in another, the offender could not, at 49^ 
 common law, ha\e been indicted in either; but it is now provided 
 by statute, that he may be indicted in the county where the death 
 takes place. So, treasons committed out of the state may be sets. 24. c. 29. 
 tried in the county in which the supreme court shall sit. iVe*' Se^Vur- 
 
 If larceny be committed in one county, and the goods carried th*r Accent- 
 into another, the offender may be indicted in either ; for the Vijiac'k. 
 offence is complete in both. But for robbery, burglary, and the Com.sos. 
 like, he could at common law only be indicted where the fact was 
 actually committed : for though the carrying away and keeping 
 of the goods is a continuation of the original taking, yet it is not 
 a robbery, or burglary, in that jurisdiction. 
 
 However, it has been enacted, that " if any person shall be 
 indicted of felony, for stealing of any goods or chattels, in any 
 county of this state, and thereof be convicted or attainted, if it 
 shall appear upon evidence, and be found by the jury, that the 
 ftaid goods or chattels were taken by robbery, or burglary, or in 
 any other manner, in any other county, whereof if a person had 
 been convicted by a jury of such other county, such person would, 
 by law, be liable to imprisonment in the state prison for life, at 
 hard labour, or in solitude, or both, then, and in every such case, 
 judgment shall be given that the said offender be imprisoned in 
 the said prison for life, at hard labour, or in solitude, or both." 
 Sess. 36. c. 29. s. 2. 1 R. L. 408. 
 
 The prosecutor is a good witness to prove the indictment, and 2 Hawk. c. 
 except in treason, which requires two witnesses, an indictment ^BunisMust. 
 may be found on the oath of one only. 747 - 752 - 
 
 It seems to be generally agreed, that a grand jury may not find 2 Hawk. p.c. 
 any part of an indictment to be true, and part false; but must c>2 *' i-2< 
 either find a true bill, or ignoramus for the whole, and if they take 
 upon them to find it specially, or conditionally, or to be true for 
 part only, and not for the rest, the whole is void, and the party 
 cannot be tried upon it, but ought to be indicted anew. 
 
 But the above doctrine relates only, to cases where the grand cowper, 325, 
 jury take upon them to find part of the same indictment to be true 
 and part false ; but where there are two distinct counts, the find- 
 ing billa vcra as to one count only, and rejecting the other, leaves 
 the indictment as to the one count, which the jury affirm, just as 
 if there originally had been only that one count. 
 
 When the grand jury have heard the evidence, if they think it 4Blac J - 
 a groundless accusation, they indorse on the bill, " not a true bill ;" 30^' "* 
 or (which is the better way) " not found ;" and then the party is 
 discharged without farther answer. But a fresh bill may af- 
 
 [ 2*]
 
 i#5 INDICTMENT. 
 
 ten-wards be preferred to a subsequent grand jury. If they are 
 satisfied of the truth of the accusation, they then indorse upon it, 
 "a true bill." The indictment is then said to he found, and the 
 party stands indicted. But to find a bill, at least twelve of the 
 grand jury must assent to it, and it will then be a good present- 
 ment, though some of the rest disagree. And the indictment, 
 when so found, is publicly delivered into court. 
 
 II. What offences are indictable, and when. 
 
 2 Hawk. All capital crimes whatsoever, and all kinds of inferior crimes of 
 
 a public nature, as misprisions, and all other contempts, all distur- 
 bances of the peace, ail oppressions, and all other misdemeanours 
 whatsoever of a publicly evil example against the common law, 
 may be indicted ; but no injuries of a private nature. Also, 
 Wherever a statute prohibits a matter of public grievance, or com- 
 mands a matter of public convenience, as the repairing of the 
 common streets of a town, an offender against such statute is pun- 
 ishable, not only at the suit of the party aggrieved, but also by 
 way of indictment for his contempt of the statute, unless such 
 method of proceeding manifestly appear to be excluded by it. 
 And where a statute adds a further penalty to an offence forbid- 
 den t>y the common law, there can be no doubt but that the offender 
 may still be indicted at common law. 
 
 The statute of limitations provides, "That all suits, informations, 
 and indictments, which shall hereafter be brought or exhibited 
 for any crime or misdemeanour, murder excepted, shall be brought 
 or exhibited within three years next after the offence shall have 
 been committed, and not after ; and if brought or exhibited after 
 the time hereby limited, the same shall be void. Provided, hme- 
 cver, That if the person against whom such suit, information, or 
 indictment, shall be brought or exhibited, shall not have been an 
 inhabitant, or usually resident within this state, during the said 
 three years, then the same shall or may be brought, or exhibited 
 against such person at any time within three years, during which 
 He shall be an inhabitant or usually resident within this state, after 
 the offence committed." And it is further provided, that where 
 a lesser time is limited by any statute, the suit, information, or 
 indictment, must be brought within the time so limited. Sess. 24, 
 c. 183. s. 7. I R. L. 187. 
 
 III. Form of the indictment. 
 
 2 Hale, P. c. '^ le ca ptf n o the indictment is no part of the indictment it- 
 i66. S elf, but is the style, or preamble, or return, that is made from 
 
 7i3. ' an inferior court to a superior, from whence a certiorari issues to 
 
 remove, or when the whole record is made up in form ; for where- 
 as the record of the indictment as it stands upon the file in 
 the court where it is taken, is only thus : The jurors for the peo- 
 ple of the piate of New- York, (fc. upon their oaths present ; when
 
 INDICTMENT. ] 87 
 
 this com'cs to be returned upon a certiorari, it is more full and ex- 
 plicit ; as, " At a court of general sessions of the peace, holden 
 
 a t , in and for the county of , the day of 
 
 , before , esquires, and others their associates, jus- 
 tices assigned to keep the peace in the said county, and also to 
 hear and determine divers trespasses, felonies and other misde- 
 meanours in the said county committed, by the oath of , 
 
 good and lawful men of the county aforesaid, sworn and charged 
 to inquire for the said people of the state of New-York, and for 
 the body of the county aforesaid, it is presented, That, &c." 
 
 The name of the county must be in the margin, or repeated in 2iiie, p. t 
 the body of the caption ; and it must name all the jurors who pre- 
 sented the offence. 
 
 The name of the party indicted ought to be inserted, and in- p^,* c ^; f 
 serted truly ; and addition should be made of his estate, degree, or 
 mystery, and of the town and county of which he is, or was con- 
 versant : and if such addition be omitted, any outlawry pronounced 
 on the indictment will be void, and before the outlawry is pro- 
 nounced, the indictment shall be abated by the exception of th$ 
 party. Sess. 24. c. 51. s. 3. 1 R. L. 165. 
 
 If there be several offenders that commit the same offence, * J^i 1 '' e ~ 
 though in law they are several offences in relation to the several 935. astr.' 
 offenders, yet they may be joined in one indictment ; as if several j^w":' 
 commit a robbery, or burglary, or murder. And so it is though 8Et,4i. 
 the offences are of several degrees, but dependent one upon an- 
 other, as the principal in the first degree, and the principal in the 
 second degree, to wit, present, aiding and abetting the principal, 
 and accessory before or after. Also several persons may be in*' 
 dieted in the same indictment for several offences of the same nff- 
 ture, as for keeping disorderly houses ; but the indictment ought 
 to set forth, that they severally did so. And this is only to be un- 
 derstood, where the offences may be joint, as in extortion, main- 
 tenance, receiving stolen goods, and the like, and not where the. 
 offence is a separate act in each ; as in an indictment for per- 
 jury, which is in its nature several, and two cannot be indicted 
 together. 
 
 But in practice it is otherwise ; and in mercy to the prisoner, a Barm' Jus <. 
 that he may not be confused in his defence, or the jury prejudiced 751 ' 
 and bewildered by the consideration of various crimes, depend- 
 ing on various circumstances, at the same time. 
 
 It is no objection in arrest of judgment, that the indictment 3 Term 
 contains several charges of the same nature, (as several mis- ^Burn*jmt 
 demeanours,) in the different counts ; for the judgment is the same. "so. 
 It would be otherwise, indeed, if the legal judgment on each 
 count were different, for that would be like a misjoinder in civil 
 actions. But for the reasons just mentioned, separate bills are 
 generally preferred against the prisoner for offences committed 
 at different times. 
 
 Every indictment must contain a complete description of such 5Bt,:4. 
 facts and circumstances as constitute the crime, without incon-
 
 1 88 INDICTMENT. 
 
 sistency or repugnancy. But except in certain cases, where 
 technical expressions, having grown by long use into law, are re- 
 quired to he used, the same sense is to be put on the words of an 
 indictment which they bear in ordinary acceptation. And if the 
 sense of any word be in ordinary acceptation ambiguous, it shall 
 be construed according as the context and subject matter require 
 it to be, in order to make th whole consistent, and sensible. 
 4 Black. The time and place are necessary to be ascertained, by naming 
 
 2 Hawk! P. c. the day and township in which the fact was committed. Though 
 c. 4, e. i. 32. a mistake in these points is generally not held to be material, and 
 the defendant maybe convicted upon proof of the fact at any other 
 time, whether after or before the day laid, provided it be laid to 
 have beten committed previous to the finding of the indictment. 
 And as to place, where it forms part of the description of the 
 fact charged against the defendant, there the least variance be- 
 tween the evidence and indictment is fatal : but where the place 
 is laid only for a venue, proof of the crime at any other place in 
 the same county maintains the indictment. Where there is any 
 limitation in point of time assigned for the prosecution of offend- 
 ers, the time should be laid in such a manner, that the prosecution 
 may appear, on the face of the proceedings, to have been com- 
 menced within the requisite period after the coumiiosion of tha 
 offence ; and in case of murder, the time of the death must be 
 laid within a year and a day after the mortal stroke was given. 
 jRuroj'jujt. If the county is in the margin, and the indictment sets forth the. 
 7i<s> offence to be done at such a place, in the county aforesaid, it is 
 
 good, for it refers to the county in the margin ; but if there be 
 two counties named, one in the margin, and another in the addi- 
 tion of any party, or in the recital of a statute, the fact laid at 
 such a place in the county aforesaid, vitiates the indictment, be 
 cause two counties are named before, and therefore it is uncer- 
 tain to which it refers. 
 
 4 Black-. The offence itself must be set forth with clearno? anti cer- 
 
 so7' ' tainty, and nothing material shall be taken by intendment or im- 
 plication : and in some crimes, particular words of art must be 
 used, which are so appropriated by the law to express the precise 
 idea which it entertains of the offence, that no other words, how- 
 ever synonimous they may seem, are capable of doing it. Thus, 
 in treason, the facts must be laid to be done, " treasonably and 
 against his allegiance," else the indictment is void. In indict- 
 ments for murder, it is necessary to say that the party indicted, 
 " murdered," not " killed," or " slew," the oth-r. In all indict- 
 ments for felonies, the adverb " feloniously," must be used ; and 
 for burglaries also, " burglariously ;" and all these to ascertain 
 the intent. In rapes, the word " ravished" is necessary, and must 
 not be expressed by any periphrasis, in order to render the crime 
 certain. So, in larcenies also, the words " feloniously took arid 
 carried away," are necessary to every indictment, for these only 
 can express the very offence. Al:-o in indictments for murder, 
 the length and depth of the wound should be generally c.xpres:-r<J.
 
 INDICTMENT. 189 
 
 in order that it may appear to the court to have been of a mortal 
 nature : but if it goes through the body, then its dimensions are 
 immaterial, for that is apparently sufficient to have been the 
 cause of the death. Also, where a limb, or the like, is abso- 
 lutely cut off, there such description is impossible. 
 
 There is no necessity in an indictment on a public statute, to p*{? wk ',,. 
 recite such statute, for the judges are bound, ex ojfficio, to take no- 103,104, 105, 
 tice of all public statutes. Yet, if the prosecutor take upon him i&nind. 135, 
 to recite' it, and materially vary from a substantial part of the pur- 3. 
 view of tiie statute, and conclude against the form of the statute 
 aforesaid, he vitiates the indictment. And it hath been adjudged, 
 that a misrecital of the title of a statute is fat.il. 
 
 An indictment grounded upon an offence made by statute, 9 Hale, r. c. 
 must, by express words, bring the offence within the substantial } 7 ^| und- 13; ; 
 description made in the staiute ; and those circumstances men- -3. 
 tioned to make up the offence, shall not be supplied by the gene- 
 ral conclusion, against the form of the statute. 
 
 Where an evil intent accompanying an act is necessary to con- 6Et,464. 
 stitute such act a crime, the intent must be alleged in the indict- 
 ment, and proved : though it is sufficient to allege it in the pre- 
 fatory part of the indictment. But where the act is in itself un- 
 lawful, the law infers an evil intent, and the allegation of such in- 
 tent is merely matter of form, and need not be proved by extrinsic 
 evidence on the part of the prosecutor. 
 
 In indictments, the value of the thing, which is the subject or 4 BUA. 
 instrument of the offence, must sometimes be expressed. In in- Co- 307 - 
 dictments for larcenies this is necessary, that it may appear whe- 
 ther it be grand or petit larceny : and in homicide of all sorts, it 
 was necessary at common law, and is still always done, notwith- 
 standing the custom of deodand, the only reason for it, has been 
 abolished. Sess. 36. c. 8. s. 3. 1 R L.. 495. 
 
 The words, with force and arms, or any such words, are not 
 necessary to an indictment, and the party cannot except to the 
 omission of them. Ibid. s. 13. 
 
 An indictment without concluding against the peace is insuffi- 2 Hal*-, P. c. 
 cient; and if the offence were created by statute, it should also 188 - 162 - 
 conclude against the form of the statute : so, too, where a statute 
 alters an offence from one cri?Tie fo another, as making a bare mis- 
 demeanour to become a felony, it must conclude against the form 
 of the statute, or otherwise it is insufficient. 
 
 Hut if an indictment for an offence purely at common law, con- i Sarind. 13$. 
 elude against the form of the statute, it is good, notwithstanding, n ' 3 ' 
 if it also conclude against the peace, and the words, against the 
 form of the statute, shall be rejected as surplusage. 
 
 No criminal prosecution is within the benefit of any of the 2 Hawk, 
 statutes of amendments; from whence]! follows, that no amend- j''^ e ' 2S " 
 ment cnn be admitted, in any such prosecution, but such only as 
 is allowed by the common law. 
 
 Regularly, at common law, neither false Latin, the omission of j Bat. Alir. 
 i word, syllable or letter, or other defect or variance from the "*
 
 190 INDICTMENT. 
 
 approved and legal forms were amendable ; excepting that all 
 mistakes are by common law amendable the same term, because 
 it is a roll of that term, and so in the breast of the court during the 
 whole term, and then a new roll might be brought in, in the cause, 
 and consequently the same roll may be amended. 
 
 i Bae. Abr. But it has been adjudged, that the proviso in the statute of 
 amendments and jeofails, which excepts appeals and indictments 
 for felony, &c. and that they shall not extend to any writ, bill, 
 action or information upon any popular or penal statute, does 
 not extend to those cases in which a remedy is given by way of 
 recompense to a party, as upon the statute of waste, forcible 
 entry, &c. 
 
 IV. Pleas to the Indictment. 
 
 333!' C m ' The defendant may on his arraignment plead, 1. To the juris- 
 diction of the court in which he is arraigned ; or, 2. Demur ; or 
 plead either, 3. In abatement, 4. In bar, or, 5. The general issue. 
 
 4Bl. Corn. I. A plea to the jurisdiction, is where an indictment is taken 
 
 before a court that hath no cognisance of the oflence; as if a 
 man be indicted for treason, or murder, at the sessions of the 
 peace, and be brought up there to take his trial : in this or similar 
 cases, he may except to the jurisdiction of the court, without an- 
 swering at all to the crime alleged. 
 
 33? 334* *' ^ demurrer is incident to criminal cases, as well as civil, 
 
 when the fact ai; alleged is allowed to be true, but the prisoner 
 joins issue upon some point of law in the indictment, by which 
 he insists that the fact, as stated, is no felony, treason, or what- 
 ever the crime is alleged to be. But as there has been a doubt 
 whether, if the demurrer should be found against the prisoner, 
 judgment should not pass against him, as if he had been convicted 
 by verdict, which opinion however has been denied by others, 
 demurrers to indictments are seldom used ; since the same ad- 
 vantages may be taken upon a plea of not guilty; or afterwards 
 in arrest of judgment, when the verdict has established the fact. 
 
 3 B1 '3^ om " ^' ^ I^ ea m abatement is principally for a misnomer, a wrong 
 
 name, or a false addition to the prisoner. As, if James Allen is 
 indicted by the name of John Allen, he may plead that his name 
 is James, and not John. And if it be so found by the jury, the 
 indictment shall be abated. But, in the end, there is little advan- 
 tage accruing to the prisoner by means of these dilatory pleas ; 
 because, if the exception be allowed, a new bill of indictment may 
 be framed, according to what the prisoner in his plea avers to 
 be his true name and addition. For it is a rule, upon all pleas in 
 abatement, that he who takes advantage of a flaw must at the 
 same time rhow how it may be amended. 
 
 i70 lale ' P ' C< Although thedefendant.be indicted by a wrong name in addition, 
 or with no addition, yet if he appear, and plead not guilty, without 
 taking advantage of that defect, he shall never allege the misno-
 
 INDICTMENT. 
 
 uier or want of addition to stop his trial or judgment, for by such 
 his appearance and pleading to issue, the indictment is affirmed, 
 and the misnomer or want of addition solved. 
 
 In cases of felonj r , the defendant is allowed to plead in chief sEast, we. __ 
 after a plea in abatement ; but on an indictment for a misde- l"^^'?? 
 meanour, if a plea in an abatement be found against the defend- 
 ant, he cannot plead over, but final judgment will be given against 
 him. 
 
 IV". Special pleas in bar ; which go to the merits of the in- 4Bl.Com. 
 dictment, and give a reason why the prisoner ought not to an- 33S 
 swcr it at atl, nor put himself upon his trial for the crime alleged. 
 These are of four kinds : a former acquittal, a former conviction, 
 a former attainder, or a pardon. 
 
 FIRST, the plea of anterfoits acquit, or a former acquittal, is 3 3 ^' Coin * 
 grounded on this universal maxim of the common law, that no 
 man is to be brought into jeopardy of his life more than once for 
 the same offence. And hence it is allowed as a consequence, 
 that when a man is once fairly found not guilty upon any indict- 
 ment or other prosecution, before any court having competent 
 jurisdiction of the offence, he may plead such acquittal in bar of 
 any subsequent accusation for the same crime. 
 
 But when the first indictment is so far erroneous (either for 3Hwk.c.35. 
 want of substance in setting out the crime, or of authority in the c'we,4Co.44. 
 judge before whom it was taken) that no good judgment could 
 have been given against the defendant, he may be indicted a 
 second time for the same offence after a previous acquittal. 
 
 So, where a person tried and convicted on an indictment, and People 
 afterwards discharged, because a juror had been improperly rJo 
 withdrawn, was again tried on a second indictment for the same 66> 
 offence, and pleaded anterfoits acquit in bar, it was held, that as 
 the first indictment was erroneous, the plea of a former acquittal 
 was no bar to the second. 
 
 SECONDLY, the plea of anterfoits convict, or a former conviction Bi.ca. 
 for the same identical crime, though no judgment was ever given, 2Hawk.c."fc. 
 or perhaps ever will be, is a good plea in bar to an indictment. Wt 
 And this depends upon the same principle as the former, that no 
 man ought to be twice brought in danger of his life for one and 
 the same crime. Hereupon it has been held, that a conviction of 
 manslaughter is a bar, in an indictment of murder ; for the fact 
 prosecuted is the same in both, though the offences differ in co- 
 louring and in degree. It is to be observed, that the pleas of a 
 former acquittal and former conviction, must be upon a prosecu- 
 tion for the same identical act and crime. But the case is other- 
 wise in, 
 
 THIRDLY, the plea of anterfoits attaint, or a former attainder; 481. Com. 
 which is a good plea in bar, whether it be for the same or any 2HawiJc,"t 
 other felony. For wherever a man is attainted of felony, by * !>** 
 judgment upon verdict, or confession, or by outlawry, he may 
 plead such attainder in J>ar to any subsequent indictment for ih<*.
 
 4 El. C v ni. 
 
 192 INDICTMENT. 
 
 same or any otiier ftlor.y. And this because, generally, such 
 proceeding on a second prosecution cannot be to any pu; 
 for the prisoner is dead in law by the first attainder. But to 
 this rule there are some exceptions : as, where the former at- 
 tainder is reversed for error, for then it is the same as if it had 
 never been ; or where, after being attainted of one felony, he is 
 indicted as principal in another, in which there are accessories : 
 because the accessories to such second felony cannot be convicted 
 till after the conviction of the principal. 
 
 LASTLY, a pardon may be pleaded in bar, as at once destroy- 
 ing the end and purpose of the indictment, by remitting that 
 punishment which the prosecution is calculated to inflict. 
 
 It is to be observed, that whenever the defendant pleads matter 
 which does not go to the denial of the charge alleged against 
 him, but only in avoidance of it, as is the case in the pleas just 
 enumerated, it is necessary that the opposite party should reply 
 and deny the fact there stated, in order that there may be an 
 issue, that is, a direct affirmation by one party, and a denial by the 
 other party, of some material circumstance constituting the gist 
 of the charge ; thus, if the defendant plead a former acquittal, or 
 a pardon, such pleas do not deny or put in issue the allegations 
 of the indictment, but do themselves present some new fact, the 
 truth of which must be inquired into, and for that purpose an 
 issue be taken : the new fact here presented by the defendant, is 
 the existence of a certain record, the proceedings of the court in 
 which he was acquitted, convicted or attainted, or the pardon, 
 which is likewise a matter of record: the counsel for the prose- 
 cution must then deny the existence of the record, by replying 
 nul tiel record, or that there is no such record, which puts in issue 
 not only the existence, but the validity of the record, and the de- 
 fendant must verify his plea, not by the testimony of witnesses 
 to the jury, but by presenting the record to the court, who are 
 then to judge of the sufficiency of his plea. 
 
 .4Bi.Com. Though in civil actions, when a man has his election what plea 
 
 in bar to make, he is concluded by that plea, and cannot resort to 
 another if that be determined against him ; yet in criminal prose- 
 cutions, in favorem rt'fce, when a prisoners plea in bar is found 
 against him, he is not to be concluded or convicted thereon, but 
 shall have judgment of respondeai oustfr and may plead over to 
 the felony the general issue. For the law allows many pleas by 
 which a prisoner may escape death, but only one plea in conse- 
 quence whereof it can be inflicted ; viz. the general issue, after 
 un impartial examination and decision of the facts by the unani- 
 mous verdict of a jury. 
 
 -jBi. Com. V. The general issue, or plea of not guilty. In case of an in- 
 
 dictment of felony or treason, there can be no special justification 
 put in by way of plea. As, on an indictment for murder, a man 
 annot plead that it was in his own defence against a robber on 
 '.he highway, or a burglar ; but he must plead the general issue,
 
 INDICTMENT, 
 
 aot guilty, and give this special matter in evidence. For (besides 
 that these pleas do in effect amount to the general issue ; since, if 
 true, the prisoner is most clearly not guilty) as the facts in trea- 
 son are laid to be done prodilorie et contra ligeanticc SUCK debi- 
 tum, and in felony, that the killing was done fdonice ; these 
 charges of a traitorous, or felonious intent, are the points and very 
 gist of the indictment, and must be answered directly, by the 
 general negative, not guilty ; and the jury, upon the evidence, will 
 take notice of any defensive matter, and give their verdict ac- 
 cordingly, as effectually as if it were, or could be specially pleaded. 
 So that this is, upon all accounts, the most advantageous plea 
 for the prisoner. 
 
 Upon his appearance, the defendant either confesses the indict- Cp 
 
 A t TT I e i i clictraent, . 
 
 ment, traverses 1 1, or stands mute. Upon his confession, judgment (L,\ 
 passes against him ; but where the confession proceeds from fear, 
 or ignorance, th judge may refuse to receive it. So, after not 
 guilty pleaded, he may relinquish the verification of his plea, and 
 confess the indictment. Of the traverse or denial of the indict- 
 ment, by pleading not guilty, anterfoits acquit, &LC. notice has 
 been taken above. 
 
 " In all cases of treason or felony, when the party indicted 
 shall, on being arraigned, obstinately stand mute, or refuse to plead 
 and be tried in due course of law, such obstinately standing mute, 
 or refusal to plead and be. tried as aforesaid, shall be adjudged to 
 be a denial of the facts charged in the indictment, and the trial 
 shall thereupon proceed in like manner, and the record shall be 
 in the same form, and the same judgment shall be given against 
 the said party, if found guilty, as if such party, on being arraigned, 
 had pleaded not guilty." Sess. 56. c. 8. s. *1. 1 R. L 494. 
 
 It has been a question much agitated, whether the court could People r.Oj- 
 discharge a jury without their giving in a verdict. It is now, how- cas.'soi. 
 ever, settled by the supreme court of this state, that there are instan- 
 ces in which the court may, in their sound discretion, discharge the 
 jury impannelled to try the offence, and in such case put the pri- 
 soner a second time upon his trial, at least in a trial for a misde- 
 meanour, and perhaps in a case of felony. 
 
 The People v. Den/on, was an indictment for a misdemeanour 2 jphm. Cai- 
 at the general sessions of the peace. Per curiam. This was an 
 indictment for a misdemeanour, and the jury after being sent out 
 several times, and returned to the bar, could not agree on a ver- 
 dict, and were discharged by the court, without the consent of the 
 defendant. The power of discharging a jury in cases of misde- 
 meanours, as in civil cases, rests in sound discretion, and is to be 
 exercised with great caution. When every reasonable endeavour 
 ha been used to obtain a verdict, and it is found that the jury 
 cannot, or will not agree, they must, ex necessitate, be discharged. 
 We think that the. discretion of the court below was duly exer- 
 feised in the present case, and that the discharge was necessary 
 and proper. 
 
 r 25 1
 
 194 INDICTMENT. 
 
 So if a prisoner be found to be insane, or in a fit, or be taken 
 CM. SOL. per in labour, or if a juror escape from bis fellows and go off*, or be 
 Ken:,;. taken in a fit, or be intoxicated; in all ea, it has been 
 
 ruled, that the court miy discharge the jury, and remand the 
 prisoner for another trial. The rule that a jury cannot be dis- 
 charged in capital cases has been questioned, and many exceptions 
 to its universality are conceded to ex 
 
 Ple " f l* w ?5' But where a juror was withdrawn by the public prosecutor. 
 mi without the consent of the prisoner, merely because he was un- 
 rr' prepared with bis evidence, it was held that the defendant could 
 not be tried a second time on the same indictment. The pri- 
 soner was, however, again indicted for the same offence, and the 
 plea of anterfmte acquil, held to be no bar. 
 
 The prisoner was indicted at the sessions for grand larc 
 on several indictments. The jury was sworn and impanoelled. 
 and after giving a verdict on the first indictment, they separated 
 and went to a tavern, and then returned into court, when the pri- 
 soner was tried by the^same jury on the other indictments, and 
 found guilty ; the cause was removed to the supreme court by 
 certiomri, and it was held that the proceedings on the other in- 
 dictments were irregular. The court, however, said that they 
 would give no opinion whether there ought to be a new trial or 
 not, but would recommend the prisoner for a pardon. 
 
 VI. Judgment. 
 
 If the defendant be convicted upon aa indictment by confes- 
 4BLCo*k sion or verdict, there shall be judgment against him. unl- 
 
 can allege something in arrest or stay of the judgment ; as some 
 defect in the indictment : and if the objections be valid, the whole 
 proceedings shall be set aside, but the party may be indicted 
 again. 
 
 I Q a 'l cases of felony and in some misdemeanours, the nature 
 and extent of the punishment which the court is to direct to be 
 inflicted, is prescribed and limited by the various statutes which 
 are referred to in the several parts of this compilation. In most 
 cases of misdemeanours, a d v power of inflicting fine 
 
 and imprisonment is vested in the court, according to th 
 nousness and n of the offence and the situation 
 
 enumerable circum? hich they must 
 
 judge of :t which it is impossible to anticipate. 
 
 defendant was indicted for an assault and batter}-, and was 
 convicted upon his own confession in open court, but the prosecu- 
 tor offered no evidence in aggravation, nor the defendant in exten- 
 rhe offence. Per curium, No circumstances attend- 
 ic offence on either side being shown, the court have no cri- 
 terion by which to regulate their discretion in fixing the punish- 
 ment, We are therefore bound to consider it as a commot 
 offence ; and accordingly impose a fine of one dollar.
 
 INFANT. 
 
 INFANT. 
 
 Infancy, by the common law, continues until the age of twenty- 
 one in both sexes ; but it does not, during the whole of that period, 20,21. 
 furnish an excuse for the commission of a crime. In every cri- 
 minal offence, and in every misdemeanour, the intent with which 
 the act was perpetrated forms an essential ingredient, so that if 
 by reason of the youth of the offender it may be presumed 
 that he was incapable of exercising his will, and could have 
 no choice between good and evil, the law will adjudge the 
 criminal intent to be, wanting. The liability of an infant is divisi- 
 ble into three periods : in the first, the law adjudges him incapa- 
 ble of a crime : in the second, the law will not presume a criminal 
 intent, and he may or may not be guilty, according to circumstances, 
 as well of age as of capacity. In the third, which commences 
 long before his civil incapacity is removed, he stands on no 
 better footing than a defendant of full age, and is regarded as 
 doll capax. 
 
 1. Fourteen is the common standard at which both males and iHale, P. < 
 females are, by our law, obnoxious to punishment, for this is the 
 
 age of discretion at which the law presumes them to be 
 doli capaccs. 
 
 2. Between seven and fourteen an infant shall prima facie be 4 B I- Com 
 adjudged to be doli incapax ; yet if it appear to the court and 
 
 jury, that he was doli capax, and could discern between good and 
 evil, he may he convicted. But in all such cases the evidence of 
 that malice which is to supply the deficiency of years, ought to 
 be strong and clear beyond all doubt and contradiction. 
 
 3. An infant of seven years or under cannot be guilty of felo- * Hale, P. c. 
 ny, whatever circumstances proving discretion may appear; for 
 
 in this case the presumption of his wanting discretion is so strong, 
 that no averment shall be received against it. 
 
 As to common misdemeanours, the law does in some cases 4B1. Com^j. 
 privilege an infant under the age of twenty-one, so as to escape 
 fine and imprisonment : and particularly in cases of omission, for 
 not having the command of his fortune till twenty-one, he wants 
 the capacity to do those things which the law requires. But 
 where there are any notorious breach of the peace, a riot, battery. 
 or the like, for these, an infant above the age of fourteen is 
 equally liable to suffer as a person of the full age of twenty -one. 
 
 "Where a fact is made felony, or treason, by statute, it extends * Hale > p - c - 
 as well to infants above fourteen, as to others. 
 
 The ages of male and female are different for different purposes, i BI. Com. 
 A male at twelve years old may take the oath of allegiance ; at <63> 
 fourteen, is at years of discretion, and therefore may consent or 
 disagree to marriage, may choose his guardian, and if his discre- 
 tion be actually proved, may make his testament of his personal 
 ^state ; at seventeen may be an executor ; and at twenty-one is
 
 196 INFANT. 
 
 at his own disposal, and may aliene his lands, goods, arid chattels 
 A IV:, uilc also, nt seven years of age, may be betrothed or given 
 in marriage ; at nine is entitled to dower ; at twelve is at years 
 of maturity, and therefore may consent or disagree to marriage, 
 and, if proved to have sufficient discretion, may bequeath her 
 personal estate ; at fourteen is at years of legal discretion, and 
 may choose a guardian ; at seventeen may be executrix ; and at 
 twenty-one may dispose of herself and her lands. So that full 
 age in male or female is twenty-one years, which age is comple- 
 ted on the day preceding the anniversary of a person's birth, who 
 till that time is an infant, and so stiled in law. 
 
 Co. Litt. 2 b. An infant is capable of inheriting, for the law presumes him 
 535.' capable of property; also, an infant may purchase, because it is 
 
 intended for his benefit, and the freehold is in him till he disagree 
 thereto ; and if at his full age the infant agrees to the purchase, 
 he cannot afterwards avoid it ; but if he dies during his minority, 
 his heirs may avoid it ; for they shall not be bound by the con- 
 tracts of a person who wanted capacity to contract. 
 
 3Bac. Abr. Generally, contracts made by infants are voidable at his elec- 
 " 53 ' S94 ' S95 ' tion ; but to this there is an exception, that an infant may bind 
 himself to pay for his necessary meat, drink, apparel, medicine, 
 and such other necessaries ; and likewise for his good teaching, 
 and instruction, whereby he may profit himself afterwards : and 
 an action will lie against him on his promise to pay for such 
 necessaries ; but if he enter into an obligation with a penalty for 
 the payment of them, this shall not bind him. 
 
 1 str. 168. As necessaries for an infant's wife are necessaries for him, he is 
 
 W. chargeable for them, unless provided before the marriage, in which 
 
 case he is not chargeable, though she uses them afterwards : an in- 
 fant also is liable to an action for the nursing of his lawful child, 
 3Bae.Abr. As the contract of an infant for wares, for the necessary carry- 
 ing on his trade, whereby he subsists, shall not bind him, so nei- 
 ther shall he be liable for money which he borrows to lay out for 
 necessaries ; and therefore the lender must at his peril lay it out 
 
 BirSr* f r n ' m or see ^ iat ** 1S ' a '^ out ' n necessaries. 
 Uoiim Cas. If an infant, at the time of making a bond, fraudulently allege 
 
 3 2 J3ac. Abr. that he is of full age, the bond is nevertheless voidable : so, if an 
 
 " s -. infant draw a bill of exchange, he is not liable on the custom of 
 
 3 Ctunes'Rep. 
 
 323 merchants ; nor if he carry on trade, can his note be enforced 
 
 Taoderiiey- against him by a payee who was ignorant of his infancy, 
 den's Adm'rs, A negotiable note given by an infant, even for necessaries, is 
 
 jojo'.i Rep. ^.^ _ ne j' tner can h e acct ,pt a bill of exchange for necessaries ; 
 
 iT*?m b R S53< nor can ^ e bind himself by stating an account 
 
 40. ' An infant who lives with, and is maintained by his father, cannot 
 
 Toil " E V ' bind himself for necessaries. 
 
 ojohns. Rep. if an infant keeps an inn, an action on the case upon the cus- 
 
 3 Bac. Abr. torn of inns will not lie against him. 
 
 * 8 p' ai . Abr But an infant is liable for torts and injuries of a private nature ; 
 
 .wz. and if he commit a trespass against the person or possession of 
 
 ; Hawk. P. C, 
 
 c. 1. s. S.
 
 INFORMATION. 197 
 
 Another, lie shall be compelled in a civil action to give satisfaction 
 for the damage. 
 
 An infant cannot sue in proper person or by attorney, but by i TMd, 6, 
 his next friend, (prochein amy) to be assigned by the court for M<x. key v. 
 that purpose, unless where he sues as co-executor with others, Gray, 
 in which case the executors of full age may appoint an attorney 192 . 
 for themselves and the infant; and hence he cannot be an in- p'*' ttT> 
 former upon a penal statute ; and when sued, he must appear and 11 Johns, 
 defend by guardian appointed by the court ad litem, even when i i^u, 72. 
 he is sued as co-executor with others. The power of appointing 
 a guardian and prochein amy, is incident to a justice's as well as 
 to every other court ; and if an infant defendant appear by at- 
 torney, iti s an error for which the judgment will be reversed ; but 
 if an infant plaintiff prosecute by attorney, the error will be cured 
 by the statute of jeofails. An infant plaintiff is not liable to costs, 
 but only his prochein amy ; yet costs are payable by an infant 
 defendant. 
 
 The question of infancy is to be tried by inspection of the court, j 8 ^ ac< Atr * 
 or by the jury. i Johns. Cas. 
 
 In an action before a justice, the defendant pleaded infancy, and jjLersoil v. 
 the justice from inspection was of opinion that he was not an in- ^''{'""j, 
 fant, and did not appoint-a guardian, and the jury found that the 437. M ' 
 defendant was not an infant. On the return to the certiorari } 
 it was held, that the infancy of the defendant could not be as- 
 signed for error, it being against the record and the fact as found 
 by the jury. 
 
 INFORMATION. 
 
 Informations are of two sorts; first, those which are partly at 4 Blade. 
 ihe suit of the people, and partly at that of an individual ; and Com< 50B - 
 secondly, such as are only in the name of the people. The for- 
 mer are usually brought upon penal statutes, which inflict a pe- 
 nalty upon conviction of the offender, one part to the use of the 
 people, and another to the use of the informer, and are a sort of 
 qui law actions, only carried on by a criminal instead of a civil 
 process : the other are filed ex ojficio incases of misdemeanours, 
 and other offences under the degree of felony, by the public pro- 
 secutor ; but an information is not allowable in cases of felony, 
 for the effect of it is, to deprive the defendant of the advantage 
 of having the charge against him passed upon, in the first instance, 
 by a grand jury. If the court permit the information to be filed 
 it must be tried by a petit jury, as in other cases. 
 
 Prosecutions by way of ex officio information are of very rao-e 
 occurrence in this state*
 
 AND TAVERNS. 
 
 INNS AND TAVERNS. 
 
 -TBac.Abr. The dufy of innkeepers extends, chiefly to the entertaining .ind 
 harbouring of travellers, finding them victuals and lodgings, and 
 securing the goods and effects of their guests ; and therefore if 
 one who keeps an inn, refuse either to receive a traveller as a 
 guest into his house, tfr to find him victuals or lodging, upon his 
 tendering him a reasonable price for the same, he is not only liable 
 to render damages for the injury in an action on the case, at the 
 suit of the party grieved, but also may be indicted and fined. 
 For he, who takes upon himself a public employment, must serve 
 the public as far as his employment ; therefore, an innkeeper shall 
 not only answer for his own neglects, but also for the neglects of 
 those who act under him, though he should expressly caution 
 against it. 
 
 3 Bc. Abr. Innkeepers are chargeable for the goods of guests stolen or lost 
 out of their inns, and this without any contract or agreement for 
 that purpose. But if the guest be robbed by his servant, or one 
 who comes with him, he shall have no action against the host. 
 
 L?* **' Innkeepers may detain the person of the guest for what he eats 
 till payment; and so he may detain the horse, for what the horse 
 eats, but not for what is consumed by the guest ; and this with- 
 out any agreement. 
 
 Not every person can keep an inn, but for that purpose it is 
 necessary to obtain a license from the commissioners of excise : 
 the statutory provisions relating to licenses, the regulation of inns, 
 and the retailing of liquors, will occupy the remainder of this 
 title, and will be comprized under the following heads : 
 
 I. Commissioners of excise. 
 II. Licenses, when and how to be granted. 
 
 III. Regulations of Inns. 
 
 IV. Retailing liquors without license. 
 V. Selling to servants, ^-c. 
 
 VI. Selling on credit. 
 VII. Prosecutions under the act. 
 
 I. Commissioners of excise. 
 
 By the act to lay a duty on strong liquors, and for regulating 
 inns and taverns, sect. 1 . a commissioner is to be appointed, by the 
 governor and council of appointment, in the city of New-York, 
 whose compensation is regulated by sect. 5, " for collecting the 
 duty of excise of and from the several retailers of strong and 
 spirituous liquors in the said city." And for the purpose of col- 
 lecting the duty in the several towns of this state, it is provided, 
 that the following persons shall be commissioners: "The supor- 
 i i'jor of each town, and any two justices of the peace resident
 
 INNS AND TAVERNS. . 199 
 
 therein, or in case there shall not be two justices, or they shall be 
 absent, then such neighbouring justice or justices in the same 
 county, as the supervisor of such town shall notify and associate 
 with him for that purpose. Sess. 24. c. 1G4-. s. 1. 1 R. L. 17>. 
 
 "The st-veral commissioners of excise within this state, ex- t.2, 
 repting the cities of New-York, Albany, Hudson, and Schenec- 
 tady, shall annually, and immediately before they grant any license 
 to any person to keep an inn or tavern, or sell or retail strong or 
 spirituous liquors, take and subscribe the following oath before: 
 one of the justices of the peace of the county in which they 
 reside : 
 
 " / , one fthe commissioners of excise for the town of , 
 
 in the county of , do solemnly swear, in the presence of almighty 
 
 Cod, that I will not, on any account or pretence whatsoever, grant any 
 
 license to any person within the said toitm of for the purpose of 
 
 keeping an inn or tavern, except where it shall appear to me to be ab- 
 solutely necessary for the benefit of travellers ; and that I will in all 
 things, while acting as a commissioner of excise, do my duty accord- 
 ing to the best of my judgment and ability, without fear, favour, or 
 partiality, agreeable to law." 
 
 " And the person before whom such oath shall be taken and 
 subscribed, shall certify the day and year in which such oath was 
 taken, and that the same was so taken and subscribed before him 
 on the back of the paper on which the same oath is so subscribed ; 
 and the person taking and subscribing the same, shall, within ten 
 days thereafter, send or deliver the same to the clerk's office of 
 the town for which he so acts as a commissioner of excise, and 
 the clerk of such town shall file the same among the papers in his 
 said office ; and if any person who is hereby directed to take and 
 subscribe such oath, shall presume to act as a commissioner of 
 excise without having taken and subscribed the same, or if any 
 person shall neglect to return the same oath, so subscribed and 
 certified as aforesaid, to the town clerk, to be filed as aforesaid, 
 within the time by this act limited, such person shall, for every 
 such neglect or refusal, forfeit the sum of ten dollars, to be sued 
 for and recovered with full costs of suit by any person who will 
 prosecute for the same, before any justice of the peace of the 
 county where such neglect or refusal shall happen ; the one moiety 
 of which sum, when recovered, shal) be paid by the person so suing 
 and receiving the same, to the overseers of the poor of the town w 
 which such neglect shall happen, for the use of said town, and 
 the other moiety shall be for the use of the person so suing for 
 the same." 
 
 II. Licenses ) ivhcn and how to be granted. 
 
 " It shall be lawful for the commissioners of excise in the se- 
 veral towns of this state, annually, by writing; under their respective 
 hands and seals, and in the several cities aforesaid, annually, in ih* 
 manner directed by their respective cli^.rtpr?. T by ?>iy statute pr- .
 
 200 IXNS AND TAVERNS. 
 
 scribing such manner therein, to grant to the several pcrsens wno 
 shall reside in their respective cities or towns, and apply for thn 
 same, a license to retail strong or spirituous liquors under five p;al- 
 lons, which said respective licenses shall continue in force from 
 the time of granting the same until the first Tuesday of May next 
 ensuing the date thereof, and no longer ; Provided always, that no 
 license shall be granted in any of the said cities to retail stronger 
 spirituous liquors for the purpose of keeping au inn or tavern, un- 
 less it shall appear to the commissioners thereof that an inn or 
 tavern at the place at which such permit is applied for is neces- 
 sary for the accommodation of travellers, and that the person ap- 
 plying for such license is of good character, all of which shall be 
 inserted in every such license ; And provided further, that no 
 license shall be granted in any town of this state, unless three com~ 
 missioners shall be present at the granting thereof, of which three 
 the supervisor of the town shall always be one, nor until they, or 
 a majority of them then so present, have satisfactory evidence 
 that the person who applies for such license is of good moral 
 character, and of sufficient abilities to keep an inn or tavern, and 
 that he has accommodation to entertain travellers, and that an 
 inn or tavern is absolutely necessary, at the place where such per- 
 son resides or proposes to keep such tavern, for the actual accom- 
 modation of travellers as aforesaid ; all of which they, or a ma- 
 jority of them, are hereby directed to put in writing, by way of a 
 resolve of the said board, and severally subscribe the same, and 
 within twenty days thereafter shall return such resolve to the 
 office of the town clerk of the town for which they are commis- 
 sioners : who is hereby directed to file the same, and deposit it 
 among the other papers of such town ; and all licenses obtained, 
 except the aforesaid board of commissioners are so actually pre- 
 sent at the granting of the same, shall be considered as abso- 
 lutely void." Sess. 2-i. c. 64-. s. 3. 1 R. L. 177. 
 
 Orp'rt T. From the return to the certiorari in this cause, it appeared that the 
 
 iuiwm!&c. plaintiff in error was prosecuted by the defendant in error qvitam, 
 i Johu.Rep. gcc. before a justice of the peace, to recover the penalty of twen- 
 ty-five dollars for selling strong liquors by retail without having a 
 license according to the act. The defendant below had been ap- 
 pointed and licensed as a tavern keeper, at a meeting of the su- 
 pervisor and eight justices and commissioners of excise, by a 
 majority of them present, and his license was signed by five of 
 the justices, but not by the supervisor, who was present, and was 
 requested to sign it. Judgment was given for the plaintiff below 
 against the present plaintiff in error. 
 
 Per curiam. The license produced by the plaintiff below was 
 valid. The act of a majority of the commissioners of excise wa 
 sufficient, and it was so considered in the case of Palmer, qui tarn, 
 &tc. v. Downey, decided in this court, in October term, 1801. (vide. 
 S. C. infra.) The supervisor may, in his discretion, associate more 
 than two juticrs with him. as commi^icTicrs of excise. Thenum-
 
 1XNS AND TAVERNS. 201 
 
 ! is not limited by the act to them and no more. Tlie consent 
 of the .tipervisor is not indispensable. If a majority of the com- 
 missioners present si^n the license, it is sufficient. The judgment 
 below must be reversed. 
 
 This was an action of debt for several penalties under the act to Palmer, qi 
 lay a duty, &c. The defendant, on the 8th day of April, 17 9, ap- SJTiJe^"* *' 
 plied to the plaintiff, who was supervisor of the town of Ballstown, ; J >iu.Casc* ; 
 and two justices, While and Waters, then sitting as commissioners, 
 Cor u license to retail spirituous liquors for the purpose of keeping 
 an inn. The defendant, paid White, ene of the justices, five dol- 
 lars, the sum required for such license ; who, without the assent 
 of the other commissioners, received the same, and paid it over 
 to the overseers of the poor of the town. The two justices had 
 given the defendant encouragement to expect a license, but the 
 plaintiff and Waters afterwards refused it. The defendant sold 
 liquors both before and after the 8th day of April. On the third 
 day of May ensuing, the plaintiff, with White and Ball, justices, 
 being met, but not as commissioners, the defendant renewed his 
 application, which was rejected by the plaintiff, on the ground that 
 they were not then assembled as commissioners. But White and 
 Ball retired into another room, and gave the license required. 
 The. judge who tried the cause suffered the license, though ob 
 }ected to, to be given in evidence, and charged the jury that, 
 though irregularly obtained, it was sufficient to protect the de- 
 fendant as a third person ; that it should by relation be considered 
 as having been given on the 8th day of April preceding ; and that 
 as there had been no board of commissioners between the first 
 day of March (on which day all permits expire) and the 8th day 
 of April, the defendant was justified, ex necessitate, in continuing 
 to retail spirituous liquors during such interval. They accord- 
 ingly gave a verdict for the defendant. The plaintiff now moved 
 to set aside this verdict, on the ground of a misdirection. 
 
 LI.UIS, J. delivered the opinion of the court. After adverting 
 to the hardship of the case against the defendant, he proceeds : 
 Two questions arise, 1. Is the license a legal one ? 2. If not, is the 
 defendant nevertheless protected by it ? By the second clause oi 
 the act, the authority is given to the supervisor and any two jus- 
 tices ; and by the proviso to the same clause, no license is to be 
 granted, unless three commissioners shall be present at the granting 
 thereof. Now it is stated in the case, that White and Ball retired 
 from the room where the supervisor was, and signed and delivered 
 the license, &c. Three commissioners then were not present ar 
 this part of the ceremony, and it does not appear that even a ma- 
 jority, when the three were together, granted, or even agreed 
 to grant a license ; so that the act has, in no way, been com 
 plied with. 
 
 Another objection is, that Ball does not appear, from the casr. 
 to have been legally a comni'iHsioner of excise for that year. For 
 the jurisdiction is vested in the supervisor and any two justices ;
 
 202 l-NNS AND TA\ 
 
 and of course, though every justice resident within the town 
 might have perhaps attended the first meeting : yet as White and 
 Witters only did attend with the supervisor, the jurisdiction at- 
 tached exclusively to them. 
 
 One further objection occurs : it is at least a question whether 
 any jurisdiction of excise vests in the justices, until noticed by. 
 und associated with the supervisor. This is certainly the case, 
 where, for default of resident justices, others are to be resorted to. 
 Now it does not appear that Ball resided within the town, or was 
 ever notified by, and associated with the supr id the pre- 
 
 sumption is against it, from his not having attended the first meet- 
 ing. If either of these reasons be sound, the license set up as a 
 justification is illegal, from a want of authority to grant it ; and 
 ihe only remaining question is, whether it was, notwithstanding, a 
 competent defence to the defendant. If the objection to it rested 
 on the ground of irregularity alone, its incompetence might be 
 doubted : but it goes to a want of jurisdiction or power to grant, 
 ia the justices who signed it ; and the defendant is certainly liable 
 io the penalty, if kis license is not derived from the competent 
 authority. lie knew all the circumstances, and.the precise situa- 
 tion ia which the two magistrates who signed his license stood ; 
 and he is bound to know that hi? license is derived from a pure 
 :md legal source, before he acts under it ; at least there o;. 
 be strong colour of right on his side. 
 
 We are, therefore, of opinion, that the verdict must ho set aside, 
 and R new trial awarded : but that on such trial, no testimony of 
 forfeiture, previous to the meeting of the commissioners on 
 the eighth of April, be admitted : for public inns being for the 
 public convenience, a traveller is not to be barred the necessary 
 refreshments they afford, from the neglect of public officers, 
 trial granted. 
 
 By the fourth section of the act, the duty of excise for a lir < 
 to retail strong liquors in the city of New-York, shall not be less than 
 five, or more than fifty dollars, to be determined by the commis- 
 sioners ; and ' ; it shall also be lawful for the commissioners of ex- 
 cise in the city of Hudson, and in the several towns of this state, 
 tn determine the sum which each person applying for a license 
 =hall pay for the same, not beins less than five dollars, nor more 
 than thirty dollars, as a duty of excise, which, together with the 
 sum of seventy-five cents as a fee to the respective commissioners 
 for granting such license, shall be paid to them by the person 
 applying for such license before the same be issued as aforesaid ; 
 and the snid commissioners are required to keen an account of 
 the persons to v* horn licenses shall be granted, and of the sums 
 Iy them paid therefor, and to file the same with the clerk of 
 such city or tc.wn, on or before the first day of M:ncli in 
 year: and shall from time to time, without delay, nay tliv m 
 *o : cd as afo. the overt f
 
 INNS AND TAVERNS. 
 
 poor of the respective cities and towns for which they are coin 
 nii.vsiouf r.i, to be applied to the relief of the poor thereof. 
 
 " No person shall bell by retail any strong or spirituous liquors 
 to be drank in his or her house, out-house, yard, or garden, unless 
 *uch person shall appear before a justice of the peace of the 
 county in whirh he or she shall reside, or if in either of the said 
 cities, before the mayor, or in his sickness or absence, the recorder 
 thereof, and enter into recognisance to the people of the state ot' 
 New-York in the sum of one hundred and twenty-five dollars, con- 
 ditioned that such person will not, during the time that such per- 
 son shall keep an inn or tavern, keep a disorderly inn or tavern, 
 or suffer or permit any cock-fighting, gaming, or playing with 
 cards or dice, or keeping a billiard table, or other gaming table, 
 01 shuflle-board, within the inn or tavern by him or her to be 
 kept, or within any out-house, yard, or garden belonging there- 
 unto; which recognisance, so to be taken, shall be lodged, by the per- 
 son Uefore whom the same shall be taken, with the clerks of the re- 
 spective cities or counties where the same shall be taken ; and if any 
 person shall be convicted of an offence against this act, itsjiall be law- 
 ful for the courts of general sessions of the peace in the respective 
 cities and counties in this state to suppress the license of such 
 offender ; but no person who shall be licensed to retail strong li- 
 quors, not to be drank in his or her house, but carried elsewhere, 
 shall be obliged to enter into recognisance as aforesaid." s. d. 
 
 III. Regulations of inns. 
 
 " Every keeper of any public inn or tavern in this state, ex- 
 cept in the. city of New-York, shall keep in his house at least two 
 qiare beds for guests, with good and sufficient sheeting and co- 
 \ering for such beds respectively, and provide and keep good 
 and sufficient stabling and provender of hay in the winter, and 
 huy or pasturage in thtt summer, and grain, for four horses or other 
 cattle, more than his own stock, for the accommodation of travel- 
 lers, upon pain of forfeiting, for every neglector default of having 
 vither of the articles in this clause before mentioned, the sum of 
 five dollars." s. 9. 
 
 " Every inn-holder or tavern-keeper shall, within thirty days 
 after pbtaining his license, put up a proper sign, on or adjacent 
 to the front of his house, with his name thereon, and keep such 
 .iign up during the time he shall keep an inn or tavern, under the 
 penalty of one dollar and twenty-five cents for every month's 
 neglect thereof ; and if any person who shall not have a license 
 as aforesaid, shall erect or keep up such sign, he shall forfeit the 
 like penalty of one dollar and twenty-five cents for every week 
 such sign shall he so kept up." s. 15. 
 
 ' ; It shall be ' emed an offence against the people of this state, 
 for any person lio shall keep a public inn or tavern, to permit or 
 suffer any co fighting, playing with cards or dire, or to keep 
 any billiard table, or other gaining table, or shuffle-board, withi;i
 
 11 .lo.ins. 
 Rep. 179. 
 
 1NN T 8 AND TAVERN 
 
 hi$ or her house, or within any out-house, yard, or g.irtlon !>< 
 ing thereto, or therein to permit any kind of gaming by lot or 
 chance ; and every person convicted of any offence against this 
 act, shall be punished by fine and imprisonment, or either, at 
 the discretion of the court in which any such conviction shall be 
 had." s. 8. 
 
 IV. Retailing liquors without license. 
 
 " If any person shall aell by retail any strong or spirituous liquors 
 without having such license as aforesaid, or if any person shall 
 ?ell any strong or spirituous liquors to be drank in his or her 
 house, out-house, yard, or garden, without having entered into 
 such recognisance as aforesaid, every person who shall be guilty 
 of either of the offences aforesaid shall, for each offence, forfeit 
 the sum of twenty-five dollars : Provided always, that no person 
 shall be subject to be prosecuted by virtue of this act for selling 
 metheglin, currant wine, cherry wine, or cider, to be by such per- 
 son made, and which shall not be drank in his house, out-house, 
 yard or garden." s. 7. 
 
 ijweueev. I n an action before a justice, to recover the penalty for selling 
 liquors without a license, the defendant justified under a parol 
 license, or permission from the supervisor and justices, and the 
 jury found a verdict for the defendant ; but on the removal of the 
 cause by certiorari, the judgment was reversed. Per curiam. The 
 statute requires the license to be in writing, under the hand 
 and seal of the respective commissioners authorized to grant the 
 same. The license proved by the defendant was not such a one 
 as the act requires. The evidence of a parol license ought not, 
 therefore, to have been received, and could not amount to an 
 authority to sell liquors. The offence having been made out, 
 and no sufficient justification shown, the plaintiff was entitled to 
 recover. 
 
 Motion to set aside a verdict, in an action of debt. The de- 
 claration contained sixteen counts, for retailing, not having a license 
 
 r Johus. Rep. to keep an inn. The cause was tried at the circuit, and the jury 
 found a verdict for the plaintiff for seventy-five dollars. The 
 following was the only ground of objection taken notice of by 
 the court: that several penalties cannot be joined in one declara- 
 tion, and that only one penalty could be recovered. 
 
 Per curiam. The seventh section ordains, if any person shall selj 
 strong or spirituous liquors by retail, without having such lien > 
 if any person shall sell, &ic. to be drank in his house, &c. without 
 having entered into such recognisance, every person who shall be 
 guilty of either of the offences aforesaid, shall, for encA offence, 
 forfeit twenty-five dollars. Adopting the principle which guides 
 in the construction of penal statutes, that they are be construed 
 strictly, the forfeiture of twenty-five dollars is not incurred for 
 every offence against cither of those provisions, but the words-. 
 offence, used in the section, impose the forfeiture of twenty- 
 
 M'ajhburn, 
 q'litam, v. 
 M'luroy,
 
 INNS AND TAVERNS. 205 
 
 !ive dollars upon the offence of selling without a license, and also 
 twenty-five dollars for the offence of selling to lie drank in Hie 
 house, &tc. without having entered into a recognisance. The 
 torms, " for each offence,' 1 ' in other words, subject the offenders, 
 in either of those cases, to one forfeiture for each of the two enu- 
 merated offences. 
 
 The eighteenth section provides, that whenever any suit shall bo 
 commenced, and a recovery had for a penalty, for selling liquor? 
 without a license, such recovery shall be a bar to all prosecutions 
 for offences of the like nature, committed before such recovery. 
 
 This section confirms the construction, and shows that thf 
 legislature intended that there should be a recovery for a single 
 penalty only, not only by the words, " and a recovery had for a 
 penalty," but by declaring that such recovery, that is, a recovery 
 for a penalty, shall be a bar as to offences committed before such 
 recovery. If a multiplicity of offences can be sued for in one 
 suit, the protection afforded by this section of the act against 
 prosecutions for offences, committed before the recovery, is en- 
 tirely defeated and frustrated. 
 
 The court is, accordingly, of opinion, that at all events, but one 
 penalty is recoverable in one action, and that recovery bars all an- 
 tecedent offences. Upon the plaintiff's remitting fifty dollars 
 of his verdict, lie may enter up his judgment for the remain- 
 ing twenty-live dollars. Judgment accordingly. 
 
 " No person shall have a license to sell any strong or spirituous 
 liquors, to be drank in any store or house where merchant's 
 goods are sold, unless, such person shall also take at the same 
 time a license to keep an inn or tavern, and it shall appear neces- 
 sary to the commissioners, that an inn or tavern ought to be kept 
 nt such place, for the actual benefit and accommodation of tra- 
 vellers, as in other cases ; nor unless such person shall actually 
 keep the necessary spare bedding, stabling, hay, and provender 
 for horse?, except in the city of New- York, and shall conform in 
 all things to the rules prescribed by this act, relative to the keep- 
 ers of inns and taverns ; and no strong liquors shall be sold by 
 &uch person, on any pretence, to be drank in the same room 
 v.'here such merchant's goods are sold." s. 10. 
 
 V. Selling to servants, fyc. 
 
 " If any inn-holder or tavern-keeper shall sell any strong CM 
 
 spirituous liquors to any apprentice, servant, or slave, knowing or 
 
 having reason to suspect or believe him or her to be such, without 
 
 !i .<<ent of his or her master or mistress, such inn-holtier or 
 
 hall forfeit and lose every debt which such ap- 
 
 prentice, servant, or slave shall contract for any such liquor, and 
 
 also for every such offence forfeit the sum of five dollar?, to be 
 
 recovered, with costs of suit, by the master or mistress of such 
 
 apprentice, servant, or slave ; And further, the license of every
 
 INNS AND TAVERNS. 
 
 such inn-holder or tavern-keeper shall be, and hereby is declared 
 void, from the time of such ronviclicm ; and such inn-holder or 
 tavern-keeper shall he, and h hereby declared lo be incapable of 
 receiving any further or oilier license for holding any public inn 
 or tavern fur the space of three years from the lime of such 
 conviction." s. II. 
 
 " If any inn-holder, or tavern-keeper, or any other person, shall 
 take or receive, directly or indirectly, from any such apprentice, 
 servant, or slave, any clothing, or any other goody, chattel:;, wares- 
 or merchandise, in payment for any such strong or spirituous 
 liquors, or in pawn or pledge to secure any such payment, and 
 thereof be convicted by the oath of any one credible witness, 
 toich person so offending, besides the payment of the penalty and 
 forfeiture of the debt as aforesaid, shall, within three days after 
 such conviction, restore to the master or mistress of such ap- 
 prentice, servant, or slave, all such clothing, or other property, 
 which such person shall have so taken or received from any such 
 apprentice, servant, or slave, or shall forfeit and pay unto the 
 master or mistress of such apprentice, servant, or slave, double 
 the value of the same, to be recovered by such master or mis- 
 tress, his or her executors or administrators, with costs of suit, in 
 any court having cognizance thereof." s. 12. 
 
 VI. Selling on credit. 
 
 " If any inn-holder or tavern-keeper shall trust any person, 
 other than travellers, above the sum of one dollar and twenty- 
 live cents for any sort of strong or spirituous liquors, or other 
 tavern expenses, he shall lose every such debt, and be incapable 
 of suing for the same, or any part thereof ; and if any inn-holder 
 or tavern-keeper shall sue therefor, the person sued may plead 
 ibis act in bar, or give the same in evidence, under the general 
 issue ; and if the plaintiff in uch suit shall become nonsuit, or a 
 verdict or judgment shall be given for the defendant, every such 
 plaintiff shall pay double costs." s. 13. 
 
 " If any inn-holder or tavern-keeper shall take from any person 
 1 rusted as aforesaid, any note, or other security in writing, for 
 any sum above one dollar and twenty-five cents, for any strong 
 or spirituous liquors sold or drank at his house as aforesaid, under 
 pretence by which to evade this act, every such note, or other 
 writing, shall be void; Jlnd further, every person who shall be 
 convicted of an offence against this clause of this act, shall forfeit 
 double the sum mentioned in, and intended to be secured by such 
 note, or other writing, to be recovered by action of debt, or by 
 information, with costs of suit, in any court having cognizance 
 thereof; Provided, however, that nothing herein contained shall be 
 construed to debar any inn-holder, or tavern-keeper, from taking 
 or recovering any sum of money due to him, from any person 
 who may be a lodger in his house, or from travellers not residing 
 in such city or town." s. 1-i.
 
 INNS AND TAVERN 207 
 
 1 de plaintiff in the court below, declared that the defendant Ehel v.SmUt>, 
 was indebted to him, and delirered to the justice a book account, i^'"";. 
 .'he "-renter part of which was for tavern expMMi The defendant 
 pleaded the thirteenlh section of tlie act: and the jury found 
 fur tlie plaintiff. Tlie cause was removed by certiurari into the 
 supreme court. THOMPSON, J. delivered the opinion of the court. 
 The account delivered must necessarily be taken as the plaintiff's 
 declaration, otherwise he sets forth no specific demand to whicii 
 the defendant could answer. Although a plaintiff in a justice's 
 court ought not to be held to technical niceties in declaring, yet 
 he ought to make it appear that he has a sufficient foundation foi: 
 bringing his action, and not by his own showing disclose that his 
 demand was illegal. By the general terms, "tavern expenses." 
 the court must necessarily intend such charges as are prohibited 
 in the section of the act pleaded in bar. Had he declared gene- 
 rally on a common book account, it might have been incumbent on 
 tlie defendant to show that the account was for tavern expenses, and 
 the court here might intend in favour of the judgment, that he failed, 
 in doing that. But when the declaration states the demand to b; 
 tavern expense?^ it lays with the plaintiff to disclose that the de- 
 fendant was "a traveller or lodger" iu his house, in order to briii 
 bis account within the exceptions in the act, and give him a right: 
 of recovery. Not having done this, his demand, from his own 
 showing, was illegal, and the judgment iu the court below cannot 
 be maintained. 
 
 VII. Prosecutions under the act. 
 
 ' F.vory penalty and forfeiture imposed by this act may be re 
 f/ivered, with costs of suit, in any court having cognisance there- 
 of, by any person who will prosecute for the same to effect, unless- 
 this act has otherwise provided, the one moiety thereof, not !>\ 
 this act otherwise appropriated, shall, when recovered, be paid to 
 the overseers of the poor of the city or town in which such of- 
 fence shall happen, for the use of the poor thereof, and tSie other 
 moiety to the person who shall sue for the same." 3. 16. 
 
 The action given by this section is to be brought in the name B!r.Teii \. 
 of the plaintiff and of the overseers of the poor, and not in th ; . ?v^v 
 name of the plaintiff alone. Ke l : 
 
 " All offences committed against any of the provisions of this 
 act shall be deemed and considered as misdemeanours, punisha- 
 ble by fine and imprisonment, or either of them, at the discretion 
 of the court before which any conviction may be had." s. 17. 
 
 " Whenever any suit shall be commenced, and a recovery had 
 for a penalty incurred for selling strong or spirituous liquors with- 
 out license, such recover}' shall be a bar to ;.ll prosecutions Tor of- 
 - of the like nature committed before such recovery." s. IS. 
 
 An action on the tenth section of this art was commenced on .'i' '.'',' 
 the 17th of August, anil the defendant n! ><'
 
 208 LV\S ANDTAVI-;R\ 
 
 evidence a conviction in a suit commeix. <<! on the 2.3(1 ol Aiiju f ,f 
 A verdict was given Air the defendant, and proceedings removed 
 into the supreme court, b'y ccrtiorari, and the judgment revt 
 on two grounds: !. The evidence of a former conviction was in- 
 sufficient. In the first place, the conviction ought to have been 
 drawn up in the form prescribed by the twenty-five dollar act of 
 lsO. The act prescribes a specific form of conviction, to bu 
 drawn up by the magistrate, in this particular case of offences 
 against the tavern act; and then it adds, that, " every such con- 
 viction may be pleaded in bar to any other prosecution for the 
 same oflc.ice." When the law prescribes a particular form in 
 such cases, it must be pursued, otherwise it does not afford the 
 requisite legal evidence of a conviction. 
 
 2. But if the conviction had been eertified in due form, it would 
 not have availed, because it was founded on a suit commenced 
 subsequent to that of the plaintiff. The person who first com- 
 mences a qui tarn, or popular action, attaches a right in himself, 
 which no other common informer, by a subsequent suit, can de- 
 vest ; and he may demur to a plea of recovery in such subse- 
 quent suit. Though the statute says, that a recovery for a penalty 
 incurred by selling spirituous liquors without license, shall be a bar 
 to all prosecutions for offonces committed before such recovery ; 
 yet this must be understood of a recovery in a suit which had 
 been first commenced. The statute is not to be construed so as 
 to work a destruction of a ri^ht previously attached. 
 
 The following is the form of conviction, which may be pleaded 
 in bar to any other prosecution for the same offence. 
 
 i n. K 330. City of New-York', (or Westchester county, or other city or 
 county, as the case may be,) to wit: Be it remembered, that on 
 
 the day of , in the year of our Lord one thousand 
 
 , A. B. of the city of New-York, (or of Bedford, in the coun- 
 ty of Westchester, or other city, or town, or county, as t! 
 may require, } merchant, (or farmer, or other addition, as th- 
 may require.) (and adding,) being an inn-holder, or tavern-keeper, 
 (if the case be so,) is this day convicted before C. D. mayor, 
 (or recorder, or one of the aldermen, as the case may rt- 
 quire.) of the said city, (or one of the justices of the peace of the 
 
 : aid county, as the case may require,) of having on the day of 
 
 last, (or instant,) at , in the said city, (or county,) sold 
 
 \i\ retail, one quart (or other quantity) of rum, (or other spirituous 
 liquors,) without having such permit, or to be drank in his (or her) 
 house, or out-house, yard, or garden, without having entered into 
 such recognisance as is mentioned in the act, entitled, " an act to 
 i ay a duty on strong liquors, and for regulating inns and taverns," (or) 
 of not having in his (or her) house two spare beds for guests, with 
 good and sufficient sheeting ;tnd covering for such beds respective- 
 ly, for the accommodation of travellers ; (or) of not having good 
 and sufficient stabling and provender of hay and grain, if in winter, 
 and if in summer, of hay or pasturage for four horses, or other 
 cattle, more than his or their own stock, for the accommodation
 
 JURY. 209 
 
 of travellers, according to the form of the act, entitled, "an act to 
 lay a duty on strong liquors, and for regulating inns and taverns," 
 
 or of having, on the day of last, (or instant,) at , in 
 
 ;!i said city, (or county) sold one gill (or other quantity) of rum 
 
 (or other strong liquor) to , an apprentice (or servant or 
 
 slave) of , knowing or having reason to suspect or believe 
 
 him or her to be such, without the consent of his or her master, 
 (or mistress,) against the force of the act, entitled "an act to lay 
 a duty on strong liquors, and for regulating inns and taverns," > 
 or of having, for the space of one month, (or two or more months,) 
 neglected to put up and keep such sign up as is required by the 
 act, entitled, " an act to lay a duty on strong liquors, and for regu- 
 lating inns and taverns." Given under my hand, the day and 
 Tear first abov^ written. Sess. 31. c. 20-i. s. S. 
 
 JURY. 
 
 I. Of the several kinds of juries, the qualifications of jurors, and 
 
 how to bt summoned and returned. 
 IF. Challenges. 
 
 III. Demeanour of the jury in making up their verdict, and how it 
 
 is to be given. 
 
 IV. Corruption in jurors. 
 
 I. Of the several kinds of juries, the qualifications of jurors, and 
 hoiv to be summoned and returned. 
 
 Juries are distinguished into grand and petit juries ; the grand 3 Bac. Abr. 
 jury may consist of thirteen, or any greater number not exceed- "eurr. icss. 
 ing twenty-three ; for these being the grand inquisitors of the The People 
 county, every indictment and presentment by them must be 2Caines' 
 ibund by twelve at least, but it is not necessary that all above ^Ha'wkf'p.c 
 that number should concur in such presentment or indictment, c. as. . is. ' 
 And if it appear by the caption of an indictment, or otherwise, 
 that it was found by less than twelve, the proceedings upon it will 
 be erroneous. 
 
 The grand jurors must every one be of the same county where 2 Hawk. P. c, 
 the crime was committed, and returned by the sheriff or other 3 Bac.'AbV 
 proper officer, without the nomination of any other person what- 72i> 
 soever ; and ought also to be a freeman, and a lawful liege sub- 
 ject ; and, consequently, neither under an attainder of any trea- 
 son or felony, nor an alien, nor outlawed, whether ibr a crimi- 
 nal matter, or as some say, in a personal action. Also it seems 
 that any one who is under a prosecution for any crime what- 
 soever, may, by the common law, before he is indicted, challenge 
 * n y of tho persons returned on the grand i.rv, us Vinjr 
 
 r T:
 
 2tD JURI-. 
 
 C',1 for felony, or returned at the instance of a prosecutor, or nut 
 returned by the proper officer, &ic. 
 
 *Bac. Abr. The petit jury cannot consist of more or less than twelve per- 
 sons, excepting in a justice's court, in which six persons are a 
 sufficient jury. 
 
 " Every venire facias for the trial of any issue in any action, 
 civil < criminal, in any court of record within this state, shall bo 
 awarded of the body of the proper county where such issue h 
 triable, except in cases whore foreign juries shall be deemed 
 necessary, in which case the venire facias shall be awarded of the 
 body of the county from which such foreign jury* shall be direct- 
 ed to come." Sess. 36. c. 4. s. 7. 1 R. L. 326. 
 
 " It shall not be lawful for more than thirty-six, nor less than 
 twenty-four jurors, to be summoned for the trial of issues in lh< 
 supreme court, or in any circuit court, sittings, court of oyerand 
 termincr, and general gaol delivery, Mayor's court, court of com- 
 mon pleas, or general sessions of the peace, to be held in any city or 
 county of this state, unless otherwise directed by one of the judges 
 of such court; and all jurors who shall be returned upon trials of 
 issues in the said courts, other than strangers upon trials per medic- 
 tatem linguae, shall every of themf be above the age of twenty - 
 one, and under the age of sixty years, and shall each of them 
 have in such county in his own name or right, or in trust for him, 
 or in his wife's right in the same county, a freehold in land.s, 
 messuages, or tenements, or of rents in fee or for life, of the value 
 of one hundred and fifty dollars,' free of all reprises, debts, de- 
 mands, or incumbrances whatsoever, and in the cities of New- 
 York, Albany, or Hudson, a freehold of the value aforesaid, or a 
 personal estate of the like value, free from all reprises, debts, de- 
 mands, or incumbrances whatsoever. And if any man not so 
 qualified, shall be returned upon any such jury, or tales in default 
 of such jurors, it shall be good cause of challenge to the juror not 
 so qualified ; and such person so returned shall be discharged 
 upon such challenge, or his o\vn allegation and oath thereof; and 
 to the end that jurors so qualified may be always returned, the 
 Avrits of venire facias juratores, which shall at any time hereafter 
 l.'o. awarded for the impanelling of juries within any of the coun- 
 ties of this state, except the county of New-York, shall have in 
 the body thereof the words following, that is to say : Twelve free 
 and laicful men of your couniy, each of whom shall have in 7u.v own 
 
 * A foreign jury, is a jury summoned out of a county different from 
 that in which the isuuc is tried : it is evident that the power of granting 
 n i'fircign j'iry can reside only in courts of general jurisdiction, as the 
 supreme court. 
 
 r The qualifications of jurors on the trial of the traverse of an indict- 
 ment for a forcible entry, as well ;is the qualification s of the indictors, are 
 <he same as those of jurors for the trial of issues in the supreme court 
 FORCIBLE EJVTUY ANDDETAIKER, II.
 
 JURY. 211 
 
 name or right, or in trust for him, or in his ivif^s right, a frecliold 
 in land, messuages or tenements, or of rents in fee or for life, of 
 the value of one hundred and fifty dollars, free from all reprises, 
 d^bts, demands or incutulrances ivhatsoever" s. 9. 
 
 ' If a sufficient number of jurors do not appear at any of the 
 courts mentioned in this act, (sec sect. 9 supra] or after appear- 
 ance of a full jury, by challenge the jury is like to remain u-itaken 
 lor default of jurors, such court is hereby authorized, upon mo- 
 lion made in behalf of the people of this state, or of any party, 
 to command the sheriff to name and appoint, as. often as shall be 
 requisite, so many of such other persons, of the said county, quali- 
 fied to serve on such juries according to the intent of this act, and 
 to add and annex their names to the former panel, as shall make 
 up a full jury of twelve men for the trial of every such issue ; 
 and the said courts shall proceed to the trial of every such issue 
 with those jurors that were before impanelled and returned, and 
 \vith those newly added and annexed to the said former panel by 
 \ irtue of this act, in such wise as they might or ought to have 
 done, as if all the said jurors had been returned upon the lirst 
 panel." s. Ik 
 
 The jurors thus annexed to the panel are called a tales or tales 3 Eac. Ab 
 dc circumstantibus ; i. e. so many persons selected from the by- 
 standers ; and at common law, in case of a defect of jurors, by 
 their not appearing or being challenged, writs might be awarded 
 Lo summon so many as the jury was deficient. 
 
 The power of awarding a tales is incident to a court of justice, Zedy T. Yan- 
 and essential to its proceedings ; and in a justice's court, in case 2Joims. 
 of a default of the jurors summoned on the venire, the justice l!ci> ' 3W ' 
 may award a tales. 
 
 " Every grand or petit juror, constable, or other officer, whose 
 duty it shall be to attend any of the courts of record in this state, 
 and who shall refuse or neglect to attend accordingly, shall be 
 liable to be fined by such court in a sum not exce-ding twenty- 
 ft\e dollars ; and in every case where such fine shall be imposed 
 by any of the said courts, such court shall immediately cause 
 public proclamation of such fine to be made ; and if such delin- 
 quent juror, constable, or other officer, who shall be fined as afore- 
 said, shall not, during the term or sittings of the said court in which 
 such fine shall be imposed, show a satisfactory reason or excuse 
 to the said court for his default or non-attendance, then such fine 
 so imposed shall be estreated into the court of exchequer, in 
 order that the same may be levied and paid into the treasury for 
 the use of the people of this state." Sess. 36. c. 4. s. 18. 1 II. 
 L. 330. 
 
 " In all cases where the sheriff or other officer dial! not bo 
 able to summon personally any person directed to be summoned 
 as a juror, by ruison of absence from home, a summons in writ- 
 ing, left at tli usual place of abode of such person, within the 
 lime prescribed for that purpose, with some perse;.' of suitable ag?
 
 212 
 
 and discretion, shall be deemed a sufficient notification ; 
 all cases of a summons of a juror in writing as aforesaid, the court 
 shall suspend the imposing a fine for his non-attendance until the 
 next term or session of such court, to the end that such juror may 
 have time to make, it appear to such court, that he was absent 
 from home at the time such summons was left at his place of 
 abode, and did not return in season to attend at the said court : 
 and to the end that such defaulting jurors may have such notice,, 
 the clerks of the several counties shall forthwith transmit to the 
 sheriff of the county a list of the names of such defaulting jurors,, 
 who shall, without delay, notify such jurors of their respective de- 
 faults and liability to a fine on that account." s. 19. 
 
 " All manner of juries and inquests hereafter to he taken be- 
 tween aliens and citizens of any of the United States of America. 
 In any of the said courts, (fide sect 9. supra) and whether thi? 
 state be party, or interested or not, except in cases of treason, 
 the one half of the jury or inquest shall be citizens of this state, 
 and qualified by this act to serve on ?uch juries or inquests, and 
 the other half aliens, if so many aliens be in the city or county 
 where sueh jury or inquest is to be taken, and who shall be indif- 
 ferent between the parties: and if there be not so many aliens 
 or strangers, then there shall he put on such juries or inquests as 
 many aliens and strangers as shall bo found in the same city or 
 county, who shall be indifferc nt as aforesaid, and the remainder 
 of the citizens of this state, qualified by this act to serve on such 
 juries or inquests." s. 24. 
 
 2Hi : l;.r.c. There need not be any aliens on the grand jury, who find an 
 c^43. s. 16 indictment against an alien ; neither is it necessary that the petit 
 s Rac Abr. jury, in actions between aliens, should be half aliens. Process de 
 3 6 jjiack. medietxt: linguce, cannot be prayed after the return of a common 
 Com. 360. venire. 
 
 " Any non-commissioned officer or private of any company of 
 grenadiers, light infantry, artillery, and riflemen, of the militia of 
 this state, and the commissioned officers of artillery in the city 
 of New-York, who shall produce a certificate, dated within three 
 months of the then present time, signed by the commanding offi- 
 cer of such company, or regiment, that he belongs to such com- 
 pany, shall not be compelled to serve on any grand or petit jury 
 within this state, nor shall the firemen, belonging to any compa- 
 ny of firemen, now or hereafter to be established by law, in any 
 city, town, or village within this state; or the inspectors > 
 state prison, or the wardens of the port of New-York, or tilt* 
 commissioners of the health offic. , be compelled to serve on any 
 grand or petit jury, so long as they continue to be firemen, inspec- 
 tors, \cardens. or commissioners as aforesaid: and also the agent-', 
 soperintendants, artificers, and -vorkmen of every kind, employed 
 in and abrnt the Albnny Glass Factory, belonging to the Hamilton 
 ". ! iss M".r,'.i':u;turing Society, shall be exempted from serving as in- 
 juring the time they shall be so employed. And further, no
 
 JURY. 21S 
 
 r, or reputed quaker, shall be compelled to serve as a juror 
 upon the trial of any indictment for treason or murder." s. 28. 
 
 The venire or jury process is directed to the sheriff of the * TWISTS. 
 county; but where the sheriff is a party, or interested in the 
 cause, it is directed to the coronor, and if the coroner as well 
 as the sheriff b; interested, the venire is awarded to two persons 
 appointed by the court, called elisors. 
 
 II. Challenges. 
 
 Challenges are of two sorts, first, to the array, and secondly to 3 Black, 
 the. polls. Challenges to the array, are at once an exception to 
 the whole panel, in which the jury are arrayed, or set in order by 
 the sheriff, in his return ; and they may he made upon account 
 of partiality, or some default in the sheriff, or his under officer, 
 who arrayed the panel. And generally speaking, the same rea- 
 sons that before awarding the venire, were sufficient to have di- 
 rected it to the coroners or elisors, will be also sufficient to quash 
 the array, when made by an officer of whose partiality there is 
 any good ground of suspicion. 
 
 This kind of challenge is two fold ; either a principal cause of Co ^ M ,'^. 
 challenge, or to the favour. A principal challenge is grounded on 743. 
 such a manifest presumption of partiality, that if it be found true, 
 it unquestionably sets aside the array ; but a challenge to the fa- 
 vour leaves it to the discretion of the triors. 
 
 There are many principal causes of challenge to the array ; as Co.'LUt. ine 
 if the officer return any juror at the nomination of the party, or 743. 
 that he may be more favourable to one party than the other, or if 
 ho be. liable to the distress of either party, mediately or immedi- 
 ately, or if he have part of the land depending on the same title ; 
 or if either of them have an action of debt against him ; or if 
 an action of battery or such like, which imply malice, be depend- 
 ing between them. 
 
 It is a principal cause of challenge if the sheriff, who served Woods v. 
 the venire, were a party in the cause ; or that he was attorney or f j^n"! Rep. 
 counsellor for either party ; so, if in a justice's court, the jury 143 - 
 were summoned by a constable, who acts as advocate for the weaver, 
 party, it is a cause of challenge to the array ; but if the other J^p**". 
 party had expressly assented to their being summoned by such Cowp. 112. 
 constable, he cannot afterwards challenge the array on that 
 ground. 
 
 Consanguinity between the sheriff and either of the parties, or 3 ESC. AM-. 
 affinity by marriage of either party himself with the cousin of the 
 sheriff, or e converse, are principal causes of challenge to the array ; 
 but if the marriage be between the son of the one, and the daughter 
 of the other, it is a cause of challenge to the favour only. And 
 if either of the parties be subject to the distress of the sheriff, or 
 if the sheriff have an action of debt against either of the partie;-, 
 these are causes of challenge to the favour only : far the sheriff
 
 JURY. 
 
 thereby is not under the party's influence ; but the party under Uis. 
 ^ ^ ie c ' ia " en o e to tne array be found against the party, he 
 shall have his challenge to the polls; but neither party shall have 
 a challenge to the polls, which they might have had to the array. 
 
 s Black. Challenges to the polls, in capita, are exceptions to particular 
 
 Coin. 361. . , . . .T . . 
 
 jurors; and seems to answer the recusatis judicis in the civil and 
 
 canon laws, by the constitutions of which, a judge might be. 
 refused upon any suspicion of partiality. By the laws of Eng- 
 land also, in the times of Bracton aud Fleta, a judge might be 
 refused for good cause ; but now, the law is otherwise, and 
 it is held that judges and justices cannot be challenged. For 
 the Jaw will not suppose a possibility of bias or favour in a judge, 
 who is already sworn to administer impartial justice, and whose; 
 authority greatly depends upon that presumption and idea. And 
 should the fact at any time prove flagrantly such, as the delicacy 
 of the law will not presume before hand, there is no doubt but 
 such misbehaviour would draw down a heavy censure from those 
 to whom the judge is accountable for his conduct. 
 
 Co. Litt. Challenges to the poll may be reduced to four heads ; first, 
 
 propter honoris respcctum, for respect of honour ; secondly, 
 propter defecium, for want or default : thirdly, propter affectum, 
 for affection or partiality : fourthly, propter delictum, for crime. 
 
 1. Propter honoris respeclum : as where a lord of parliament is 
 impanelled on the jury: a case which, it is unnecessary to ob- 
 serve, can only occur in England, and never in this country. 
 sBae.Abr. It seems to be agreed that all persons whose atteodance is re- 
 quired in the superior courts of justice, such as counsellors, 
 attornies, and other officers of the courts, are so far privileged 
 as not to be summoned on juries. 
 
 3 Black. Com. n Propter defedum, as if a juryman be an alien born, this is a 
 156 b.GUb. defect of birth ; if he bo a slave or bondman, this is a defect of 
 c:. p.9s. liberty, and he cannot be a liber tt legalis homo, a free and law- 
 ful man. Under the word homo also, though a name common to 
 both sexes, the female, however, is excluded, propter defedum 
 scxus. AH incapable persons, as infants, ideots, and people of 
 7iora sane memory, are likewise excluded. But the principal 
 deficiency is defect of estate, sufficient to qualify him to be a juror. 
 As to what are the qualifications of estate, vide ante, I. 
 
 iBtect. 3. Propter affedum: jurors ought to be omni exccptione majores, 
 
 Liu!' is:. a." an d for their bias or partiality, there may be either a principal 
 challenge, or a challenge to the favour. If the juror be of kin to 
 either party within the ninth degree, it is a principal cause of 
 challenge. And if the plaintiff challenge a juror for kindred to 
 the defendant, it is no counterplea to say that he is of kindred 
 also to the plaintiff, though he be in a nearer degree, for the words 
 of the venire facias forbid the juror to be of kindred to either party. 
 So, if in an action by a corporation, the juror be of kin to any mem- 
 ber of it; but a bastard cannot be of kin to any person, and therefore
 
 JURY. 
 
 it 13 not a priiicip.il cause of challenge. Affinity, or alliance by 
 marriage, is i\ priur.ipul challenge, and equivalent to consanguini- 
 ty when it is between either of the parties, as it" the plaintiff or 
 defendant marry the daughter or cousin of the juror, or the 
 juror marry the daughter or cousin of the plaintiff or defendant, 
 anil the same continues, Or issue be had which is still living. 
 
 If the juror have before given a verdict for the same cause, 
 although the judgment may have been reversed, or have been 
 arrested, it is a principal Cause of challenge. So if he have 
 given a former verdict upon the same title or matter, though 
 between other persons. So if he were an arbitrator chosen by 
 either party, and had been informed and treated of the matter, 
 it is a principal challenge. Otherwise, if he were never informed 
 or treated thereof ; and otherwise, if he were indifferently chosen 
 by the parties, though he treated thereof ; so it is a sufficient 
 challenge that the juror was on the grand jury which found the 
 indictment in the cause. Actions brought either by the jtiror 
 against either of the parties, or by either of the parties against 
 him, which imply malice or displeasure, are causes of principal 
 challenge. Other actions which do not imply malice or displea- 
 sure are but to the favour. 
 
 If the juror be the party's master, servant, counsellor, steward, 
 or attorney, or of the same society or corporation with him, 
 these are principal causes of challenge ; so if he has taken money 
 for his verdict, or if after being returned, he has ate and drank at 
 the charge of either party. 
 
 The interest of a juror in a cause is a principal ground of chal- 
 lenge ; any, even the smallest degree of interest in the question 
 depending, is a decisive objection to him, for the lav.- considers him 
 as under an influence which may warp his integrity, or pervert 
 his judgment, and therefore will not trust him. 
 
 So, in an action qui tarn under the act for preventing usury, 
 which gives a moiety of the sum to be recovered to the poor of 
 the town where the offence is committed, and the other moiety to 
 the person prosecuting, it is a good cause of challenge against the 
 jury, that they are inhabitants of the town. 
 
 It is a good cause of ch'allenge to a juror, that he has previously 
 given his opinion on the question in controversy between the par- 
 ties. But where a juror said, "that if the reports of the neigh- 
 bours were correct, the defendant was wrong, and the plaintiff 
 was right," this was held not to be a sufficient objection to his 
 being sworn. 
 
 But when a juror is not under a bias on either side, or if he has not 
 given apparent marks of partiality, yet there may be sufficient 
 reason to suspect he may be more favourable to one side than the 
 other ; and this is a challenge to the favour ; as if the juror's son 
 has married the plaintiff's daughter ; because this is not contained 
 within the words of the writ, therefore no principal cause of 
 challenge, but only to the favour; because such juror is not with- 
 
 Co. Litr. 
 157. b. 
 
 I R. L. 496, 
 
 3 Blatk. 
 Com. 362. 
 Co.Litt. 15'. 
 b. 
 
 s ni. Com. 
 ses. 
 
 3 Burr. 1856 
 
 Wood Y. 
 StoddanJ, 
 
 194. 
 
 Elake r. 
 Milhpaugl/, 
 1 Johns. Htji 
 316. 
 
 Durell T. 
 MoshiT, 
 
 8 Joluii. Rep. 
 
 445. 
 
 Gilb. C.
 
 216 JUR\. 
 
 in the power of the party ; and in these inducements to su , 
 of favour, the question is, whether the juryman is indifferent as In.- 
 st.t'ids unsworn ; for a juryman ought to be perfectly impartial tu 
 either side ; for, otherwise, his ati'ection will give weight to tho 
 evidence of one party ; and an honest, but weak man, may be as 
 much biassed as to think he goes by his evidence, when his aft'cc- 
 tions add weight to the evidence ; now since the writ expects those 
 by whom the truth mny be best known, it excludes all those 
 who are apparently partial, without any trial, because they arc 
 not under the qualifications in the writ, since the truth cannot be 
 kno\vn by them ; but where the partiality is not apparent, but 
 only suspicion*, the juror is to be tried, whether favourable or not, 
 and if the triors think he is, then he is to be excluded. 
 
 :> Black.com. 4^ Challenges propttr delictum are for some crime or misde- 
 usia. ineanour that affects the juror's credit, and renders him infamous ; 
 
 as, for a conviction of treason, felony, perjury, or conspiracy. 
 Co. Liu, 158. After a challenge to the array, the party may challenge the 
 riolls : but after a challenge to the polls, there can be no challenge 
 to the array. 
 
 Hob. ass. It is laid down as a rule, that there can be no challenge, either 
 
 -$f ac ' Abr ' to the array or polls, before a full jury appears ; and, therefore, 
 in a case where the plaintiff, after he had prayed a tales, chal- 
 lenged the array thereof for partiality in the sheriff; though it 
 was objected that this being by his own desire, he was afterwards 
 estopped to take any exceptions to the sheriff; yet the challenge 
 Avas allowed good ; for if he had not prayed a tales, there could 
 not have been a full jury, and then there could be no challenge. 
 3 Bac. Abr. ^ o juror can be challenged without consent, after he hath 
 
 been sworn. 
 <:o. Litt.iss. He who hath several causes of challenge against a juror, must 
 
 take them all at once, 
 ibid. If a juror be challenged by one party and found indifferent, 
 
 the other party may challenge him afterwards. 
 
 12 East. Rep. ]f ? O n a juror being calied, another person answers to his name, 
 and is sworn and serves en tlie jury, it does not appear to be 
 a sufficient ground for setting aside the verdict, even in a capita! 
 case ; but it would have been a good cause of challenge. 
 '. Bac. Abv. A principal cause of challenge is grounded on such a manifest 
 presumption of partiality, that if it be found true, it unquestiona- 
 bly sets aside the array or the juror, without any other trial than 
 its being made out to the satisfaction of the court before which 
 the panel is returned ; but a challenge to the favour, where the 
 partiality is not apparent, must be left to the discretion of the triors. 
 s Bac. Abr. If the array be challenged, and the facts alleged in the chal- 
 ks Hale, p. c. lenge denied, it lies in the discretion of the court, how it shall be 
 avs. tried : sometimes it is done by two attornies, sometimes by two 
 
 Gardner v. 
 
 Turner, coroners, and sometimes by two of the jury ; with tnisdnlerence, 
 
 <Uolms.Hep. that if the challenge be for kindred in the sheriff, it is most fit to 
 
 ';,- fried by two of the jurors returned j if for favour, then by ;;tn
 
 JURY. 217 
 
 other two assigned thereunto by the court. If the triors prorwinee 
 iheriusi; of challenge unfounded, the trial proceeds. If the , ts 
 are admitted, and are deemed insufficient, the court adjudge* ->n 
 them, and either quashes the array, or overrules the challenge. 
 
 Tin- triors of a challenge to the polls, in case the first mau rail- 3 RJ. com. 
 ed be challenged, are two indifferent persons named hy the court; ' J6 *- Co - Li . f 
 and if they try one man, and find him indifferent, he shall he sworn, 
 and then the two triors shall try the next; and when another is 
 found indifferent and sworn, the two triors shall be superseded, 
 and the two first sworn on the jury shall try the rest. 
 
 The trior's oath is, " low shall well and truly try, whether A. B. *S*lk. 142, 
 (the juryman challenged) stand indifferent between the parties to 
 this issue : So help you God." 
 
 A juror may himself be examined on oath of voiredire, with re- 3 ni. "om. 
 gard to such causes of challenge as are not to his dishonour or dis- 14B ' b> ' 
 credit ; but not with regard to any crime, or any thing which 
 ttnds to his disgrace or disadvantage. 
 
 II. Demeanour of the jury in making up their verdict, and 
 hbiv it is to be given. 
 
 The jury, after the proofs are summed up, unless the case be 3 B). Com. 
 very clear, withdraw from the bar to consider of their verdict : 227 ; ^ * 
 and, in order to avoid intemperance and causeless delay, are to 
 he kept without meat, drink, fire, or candle, unless by permis- 
 sion of the judge, till they are unanimously agreed. And they 
 are not to be suffered to speak with any one except the officer 
 who has been sworn to attend them, and not with him until they 
 be agreed. 
 
 If the jury, after the evidence given to them at the bar, do, at Co. lit, 2p. 
 their own charges, eat or drink, -either before or after they be 
 agreed on their verdict, it is fineable ; but it shall not avoid the 
 verdict ; but if before they be agreed on their verdict, they eat 
 or drink at the charge of the plaintiff, if the verdict be given 
 for him, it shall avoid the verdict ; but if it be given for the 
 defendant, it shall not avoid it ; and so on the contrary. But 
 if after thej' be agreed on their verdict, they eat or drink at the 
 charge of him for whom they pass, it shall not avoid th/c verdict. 
 
 But with the assent of the justices they may both eat and Doct. ami 
 drink ; as if any of the jurors fall sick- before they be agreed Stud%158 - 
 on their verdict, then by the assent of the justices he may have 
 meat or drink, and also such other things as be necessary for him 
 and his fellows also, at their own costs, or at the indifferent costs . 
 of the parties, if they so agree : And if they cannot agree, the 
 justices may in such case suffer the jury to have both meat and 
 drink for a time, to see whether they will agree. 
 
 On the return to a certiorari from a justice's court, it appeared Hewitt" 
 that after the evidence was closed, there being no constable pre- 11 Jai>n. 
 
 t, it was agreed by the parties that the jury mi^ht retire to Be *' * 3 *' 
 I 28 ]
 
 218 
 
 Co. Lit. 227. 
 3 Johns. Rep. 
 252. 
 
 jRlackley v. 
 
 bheldon, 
 
 7 Johns. Rep. 
 
 32. 
 
 2 Hale, P. C. 
 
 296. 
 
 Thayer v. 
 Van Vleet, 
 5 Johns. Ken. 
 VI. 
 
 Henlow v. 
 L-onard, 
 ' .lohnj.Kep. 
 ZOfc 
 
 consider of their verdict without a constable to attend them. Af- 
 ter being out some time, the jury applied to the justice to be dis- 
 charged, alleging that they could not agree ; but the justice refused 
 to discharge them. After some further time a second and third 
 application was made by the jury to be discharged, which was 
 refused. The jury then called for spirits, and admitted other 
 persons among them, and after some time spent in drinking, &tc. 
 they found a verdict for the plaintiff. The drink was delivered 
 to the jury with the defendant's consent. Per curiam. The 
 consent of the parties that the jury might retire without any con- 
 stable to attend them, was a waiver of the irregularity complained 
 of in their conduct. The parties by their agreement took from the 
 magistrate the power which he would otherwise have had, of 
 enforcing a private deliberation by the jury, and of preventing 
 their obtaining refreshment. 
 
 If the plaintiff, after the evidence has been given, and the jury 
 are departed from the bar, or any person for him, deliver any 
 letter from the plaintiff to any of the jury, concerning the matter 
 in issue, which was not given in evidence, it shall avoid the ver- 
 dict, if it be found for the plaintiff, but not if it be found for the 
 defendant, and so on the contrary. But if the jury carry away 
 any writing unsealed, which was give-n^in evidence in open court, 
 this shall not avoid their verdict, although they should not have 
 carried it with them. 
 
 When the jury are retired under the charge of the officer 
 they may come back into court to hear the evidence of a Ihing, 
 of which they are in doubt. So, if after they have retired they 
 should desire to propound questions to the court, it shall be grant- 
 ed, so it be in open court. 
 
 On a eertiorari from a justice's court, it appeared that at the 
 trial before a jury, the parties exhibited their proofs, and the de- 
 mand appeared to have been sufficiently supported. After the 
 jury had retired, they sent for the justice, who went to the room 
 where the jury were sitting ; and one of the jury asked him whe- 
 ther they could add any thing to the charge of the plaintiff, and tlu^ 
 justice answered, " no," and left them without any thing further 
 being said. The jury found a verdict for the plaintiff. Per curiam, 
 The evidence was sufficient to justify the verdict ; and the fact of 
 the justice going to the jury, and answering the question of law- 
 put to him, is not an irregularity for which the verdict ought to 
 be set aside. There was in this case no semblance of abuse ; 
 and the cnsent of the parties may be inferred. 
 
 Where a cause before a justice was tried by a jury, and after the 
 jury had retired to deliberate on their verdict, they sent to the 
 justice requesting that a witness who had been previously sworn 
 in the cause might be sent to them, or that they might come into 
 court, in order to ask the witness some questions, and the justice 
 asked the parties if they would go to the jury, that the witness 
 might be examined, and the defendant refused ; and the justio-
 
 JURY. 21 9 
 
 permitted the witness to go into the jury room, and siood at the 
 door while he was examined, and then retired with the witness, 
 and the jury afterwards found a verdict for the plaintiff, this was 
 held on wrtiorari not to be a sufficient irregularity to set aside the 
 verdict. The court said, that as it appeared to have been done 
 openly, after notice to the parties, and as we may fairly pre- 
 sume, in their presence, there was no ground of complaint. 
 
 It was stated in the return to a certiorari, that while the jury *^*' 
 were deliberating on their verdict, the justice was rcqueste-d by 10 Jotjj;- 
 the jury to inform them whether a particular point of evidence 
 had been given, stating it to him. The justice informed the jury 
 that it had been given, and mentioned the witnesses who had testi- 
 fied to the fact. A verdict was found for the plantiff. Per curiam. 
 It cannot fairly be inferred from the return, that the explanation 
 given by the justice to the jury, after they had retired to make 
 up their verdict, was by the consent or in the presence of the par- 
 ties ; if it was not, the allowance of such a practice would be dan- 
 gerous to the rights of parties. The justice's recollection might 
 not be accurate as to what the witnesses had said, and for that reason 
 the testimony might be misstated ; when, if the parties were pre- 
 sent, or the witnesses again called to repeat their testimony, any 
 mistake might be corrected. The judgment must be reversed. 
 
 As to discharging the jury because they cannot agree upon a 
 verdict, see INDICTMENT. 
 
 Where a jury was sworn and empanelled to try a prisoner on The People 
 .several indictments, and after giving a verdict of not guilty on the 4johm!^ej>. 
 first indictment, they separated and went to a tavern, and then 294 - 
 returned into court, when the prisoner was tried by the same jury 
 on the other indictments ; the court held that the proceedings on 
 the other indictments were irregular, and that the jury ought to 
 have been sworn and empanelled again : but they gave no opinion 
 whether the prisoner should be discharged, or a new trial granted. 
 
 If a jury cast lots for their verdict, it shall beset aside, and they 2 Bums' Just. 
 shall be fined for the contempt. 804 ' 
 
 If a jury agree, in order to ascertain the amount of damages, Smith r. 
 that each juror shall set down such sum as he thinks fit, that the 3 cainesT* 
 aggregate shall be divided by twelve, and that the quotient shall be Re P- S1t 
 their verdict, it will be set aside. 
 
 But if it is merely adopted as a means of arriving at. a reasona- Dana v: 
 ble measure of damages, without their binding themselves to abide, 4 Johns. 
 at all events, by the contingent result, the verdict is good. nc P- 487 * 
 
 Where the jury have drawn lots for their verdict, or tossed up i Term 
 for it, the affidavit of none of the jurymen can be admitted in evi- ^j^iin^Rcp. 
 dence of the fact, in all of whom such conduct is a very high 487. 
 misdemeanour ; but in every such case the court must derive their pui^'n. 
 knowledge from some other source, such as from some person 326< 
 having seen the transaction through a window, or by some other 
 means. But the affidavits of the jurors in exculpation of them- 
 selves, and in support of their verdict, arc admissible.
 
 Co. Liu. 227. After the jury are agreed, they may, in causes between paitv 
 and party, if the court be risen, give a private verdict before 
 any of the judges of the court ; and then they may eat and 
 drink ; and the next morning, in open court, they may either af- 
 firm ot alter their private verdict, and that which is given in court 
 shall stand ; but in criminal cases, they can give no private ver- 
 dict; they may vary from their verdict before it is recorded, but 
 afterwards they cannot. 
 
 Bunn v. Where a jury deliver a sealed verdict to the court, and on be- 
 
 "'' s.Htp. in? polled, one of them disagrees to the verdict, thfe judge may 
 
 send the jury out again to agree on their verdict. ,^ 
 
 Kooi^.sher- Where a trial had lasted until late in the evening, after the 
 e JotL. iu-p. charge of the judge, the parties agreed that the jury might seai 
 es - up their verdict. At the opening of the court on the next day, 
 
 the jury appeared, and the foreman delivered the sealed verdict, 
 which was opened and read. On being polled, nine of the jurors 
 dissented from the verdict ; but at the same time stated that they 
 did agree to the. verdict when it was made, and so informed the 
 constable before they separated. Per curiam. The jury, when 
 they came to the bartodeliverin their verdict, had a right to disseir 
 from the verdict to which they had previously agreed. There is 
 no verdict of any force but a public verdict, given openly in court ; 
 until it was received and recorded it was no verdict, and the jury 
 had a right to alter it as they may a private verdict. The pre- 
 vious agreement that the jury might seal up their verdict, did not 
 take away from the parties the right to a public verdict s duly 
 delivered. 
 
 Uiakeiyv. In error on certiorari. The jury having agreed on their vr.r- 
 
 ? Johns! Rep. diet, returned into court and delivered the same in writing lo the 
 32 justice, by which they found for the defendant. The justice, 
 
 without publishing their verdict, or making it known, informed 
 the jury that in his opinion they had mistaken the evidence, and 
 requested them to reconsider their verdict. The jury retired. 
 and soon after requested to have a witness re-examined : and 
 the witness was re-examined in the. presence of both parties, aiu' 
 without objection by either. The jury then brought in a 
 verdict in writing, in favour of the plaintiff, for twenty- four 
 dollars and forty-two cents, on which judgment was given by 
 the justice. Per curiam. The law is well settled, that before a 
 verdict is recorded, the jury may vary from the first offer of their 
 verdict, and the verdict which is recorded shall stand ; arid there 
 are many cases in the books of a jury changing their verdict, im- 
 mediately after they have pronounced it in open court, and be- 
 fore itrwas received and entered. The verdict is not recognised 
 as valid and final, until it be pronounced ant) recorded in open 
 court ; and it is reasonable that the jury should be enabled to 
 avail themselves of the locus pcenitenticE, and correct a verdict 
 -vhich they have mistaken, or about which, upon further reflec-
 
 JURY 
 
 liu.j, tliey have doubt. After the verdict is received, the jury 
 may be examined by the poll, if the court please, and then cither 
 of the jurors may disagree to the verdict. So, when the jury 
 rtre retired under the charge of the officer, they may come back 
 into court to hear the evidence of a thing of which they are in 
 doubt. The law allows the jury all reasonable opportunity be- 
 fore their verdict is put upon torord, and they are discharged, to 
 discover and to declare the truth according to their judgmeu' 
 The court may also, of its own accord, send the jury hack to re- 
 consider their verdict, if it appears to be a mistaken one, and be- 
 fore it is received and recorded. The only question is, whether 
 this law is applicable to the trial by jury in a justice's court. 
 The act says, that " when the jurors have agreed on their ver- 
 dict, they shall deliver the same to the justice in the same court, 
 who is thereby required to give judgment thereupon." This 
 leaves the law precisely the same as before ; for the judgment i:; 
 to be upon the verdict agreed to by the justice, which means 
 their final and definitive agreement : for they have the same right, 
 and ought to have the same opportunity to correct a mistake, or 
 to reconsider, that juries have in other courts, for the verdict i- 
 equally binding upon their consciences, and still more conclusive, 
 upon the parties. If the verdict be delivered in writing, as it was. 
 here, the justice had a right to permit the verdict to be taken by 
 the poll, and the jury had a right to vary from their first finding. 
 They had a right to retire and reconsider; and all that the justice 
 did in this case was, to request the jury to reconsider their ver- 
 dict. They might have refused to reconsider, and have insisted 
 upon adhering to their first verdict ; but they consented to recon- 
 sider. It was their voluntary act, and one which they had a 
 right to do. There was nothing then erroneous in the conduct 
 of the justice. The verdict received and recorded was the only 
 one to be regarded, and consequently the judgment below ought 
 to be affirmed. 
 
 No jury shall be compelled to give a general verdict, so thai 
 they find a special verdict, and show the truth of the fact, and re- 
 quire the aid of the court or justices. Sess. 36. c. 4. s. 27. 1 
 U. L. 335. 
 
 IV. Corruption in jurors. 
 
 If any of the jurors sworn for the trial of any issues, or other 
 inquests, to he taken between the people of the state of New- 
 Vork, and any party, or between party and party, shall have taken 
 ;uiy thing to give their verdict, and thereof be found guilty in any 
 court of record, either at the suit of any party, or any other per- 
 r-on that will sue for himself and the people of the state of New- 
 York, every of the said jurors shall pay ten times as much as he 
 hath taken, with the costs of suit : and he that will sue shall have 
 t.h? onf. half, and thn people of the state of New-York
 
 JUSTICES OF THE PEACE 
 
 other half; and all embraceors that procure such jurors and in- 
 quests to take gain or profit, shall be punished in the same man- 
 ner and form as the jurors ; and if the party to the plea shall 
 bring any such suit or action, and shall recover therein, he shall 
 also recover his damages by the assessment of the inquest ; and 
 if the juror or embraceor so found guilty shall not have whereof 
 to make satisfaction in the manner aforesaid, he shall be impri- 
 soned for one year." Sess. 36. c. 4. s. 26. 1 R. L. 331. 
 
 I Bl. Com. 
 
 i Ul. Com. 
 
 350. 
 
 3 Bac. Abr. 
 
 .3 Bac. Abr. 
 ft?, 783. 
 
 JUSTICES OF THE PEACE. 
 
 I. Origin and authority of justices of Hie peace. 
 II. By what justice, and where jurisdiction may be exercised, 
 
 III. fees of justices of the peace. 
 
 I V. Their indemnity and protection in the right execution of their 
 
 office, and their punishment for the omission of it. 
 
 V. Authority under the laws of the United States. 
 
 I. Origin and authority of justices of the peace. 
 
 The common law, says Biackstone, hath ever had a special 
 care and regard for the conservation of the peace ; for peace is 
 hie very end and foiw-hition of civil society. And therefore, be- 
 fore the present constitution of justices was invented, there were 
 peculiar officers appointed by the common law for the mainte- 
 nance oi the public peace. Of these, some had, and still have, 
 tlvs power annexed to other offices which they hold ; others had 
 !* merely by itself, and were thence named custodes, or conserva- 
 tores pads. Those that were so virtute ojjicii still continue ; but 
 the latter sort are superseded by the modern justices. 
 
 Among other tx ojficio conservators of the peace, by the com- 
 mon law, are the chancellor and the justices of the King's bench, 
 whose respectiv e jurisdiction is by the law of this state vested in 
 the chancellor of the state, and the justices of the supreme court. 
 Their authority extends throughout the whole state, and they 
 may commit all breakers of the peace, or bind them in recog- 
 nisances to keep it. And all courts of record, as such, have pow- 
 er to keep the peace within their own precincts. 
 
 Also, every sheriff is a principal conservator of the peace with- 
 in his county, and may, ex ojjlcio, award process, and take surety 
 for it ; so, a coroner is another principal conservator of the peace, 
 and may bind any one to the peace who shall make an affray in 
 his presence, but he is said to have no authority to grant process 
 for the. peace ; and it seems that the security taken by him 
 for the peace, does not amount to a recognisance, as it is said to 
 Jo when taken by a sheriff, but merely to a common obligation.
 
 JUSTICES OF THE PEACE. 
 
 Also, every constable is a conservator of the peace within hi i 
 limits, see AFFUAY, III. 
 
 Fit and discreet men are to be appointed, in every county, justi- 
 ces to keep the peace ; they are appointed by, and hold their 
 offices during the pleasure of the council of appointment. 2 11. 
 L. 506. Cous. N. Y. Art. XXIII. XXVIII. 
 
 Justices of the peace are empowered, jointly and severally, ir> 
 their respective counties, " to cause to be kept all laws made for 
 the preservation and good of the peace, and to cause to come before 
 them, or any of them, all persons who shall break the peace, and 
 to commit them to gaol, or to bail them, as the case may require ; 
 and also to^ause to come before them, all persons who shall threateu 
 to break the peace, or who be not of good fame, to find sufficient 
 security for the peace, or for their good behaviour, or both, as 
 the case may require ; and if they refuse to find such security, to 
 commit them to prison until they shall find the same. Sess. 35. 
 c. 1 04-. s. 1. 2 R. L. 506. 
 
 For the mode in which the power hereby granted is to be ex- 
 ercised, as well as for the other cases in which justices of the 
 peace have jurisdiction, the reader is referred to the respective 
 titles of this compilation. 
 
 The proceedings before a justice of the peace are generally of 3 Bum 
 record. Thus, a conviction under the act to lay a duty on strong 
 iiquors, is a record, and as long as it continues unreversed, is en- 
 titled to implicit credit, and is conclusive evidence of the truth of 
 the facts stated in it. But where the justice proceeds under the 
 twenty-five dollar act, it is otherwise, although the proceedings 
 may be in a qui tarn action for the recovery of a penalty, at the 
 same time that if the party had chosen to proceed for the same 
 penalty by information, the conviction in consequence of that 
 information would have been a record. 
 
 A justice of the peace shall not, by virtue of his office, be liable 
 to any penalty for not attending any court of oyer and ter- 
 miner, unless the duties of his office require him to attend them. 
 Sess. 35. c. 66. s. 23. 1 R. L. 34-1. 
 
 For the oath to be taken by a justice of the peace, see 
 
 II. By ivhat justice, and where, jurisdiction may be f.rerci*e</. 
 
 Where a thing required to be done by two justices is of a judi- a nc. A)jr. 
 cial ii. y must both be present at the execution of it ; r ' 
 
 as if t\vo jus, . ;t adjudge a person the father of a bastard child, 
 and the exami 'ion is said to be by one of them, this is naught: 
 fo the exainin; ; on, being a judicial act, ought to be by both, and 
 it is not sufficuM I that one of them examined, and made a report 
 to the other : nut if they are both present, and one alone ex,- 
 amines, or asks questions, it is well enough ; so, where two jus- 
 tices are enabled to bail a person, they ought both to be present 
 to. do it, and not one of them first to ei^n the recognisance.
 
 221 
 
 3 Bac. Abr. 
 797. 
 
 3 Bac. Abr. 
 T9I. 
 
 2 Half, P. C. 
 50,51. 
 
 2Hawk.e. 8. 
 t. It. 
 
 2 Hale, P. C. 
 
 i'.. 
 
 Jacknn T. 
 Humphrey, 
 I Johns, liep. 
 
 3 Bac. Abr. 
 tOO, 801. 
 
 1 Bc. Abr. 
 
 801. 
 
 HeiT. 
 
 Brooke, 
 
 3 Term Rep. 
 
 190. 
 
 Corwein T. 
 Hoim-j, 
 
 Eep. :;. 
 
 JUSTICES OF THE PEACE. 
 
 and then send it to another. But where the act to be done is 
 merely ministerial, the concurrence of the justices together is not 
 requisite. 
 
 A single justice cannot bail a person that is committed by 
 ord^r of the sessions ; for he that bails must have as hiph a power 
 as he who commits. But whatsoever power is given to a justice 
 or two justices of the peace, by any statute, is given to the ses- 
 sions of the peace, which consists of a collection of justices. 
 
 It has been holden, that where a statute says the next justice, 
 it must be the next ; but where it says the justices of the peace in 
 or near the place, there any justice of the peace in the county will 
 serve. 
 
 A justice of the peace cannot do a judicial act out of the coun- 
 ty wherein he is a justice, as to take recognisances or, informa- 
 tions, unless offered voluntarily. So he can do no act of a com- 
 pulsory nature, except in his own county. He cannot fetch a 
 person, by his warrant, out of the county in which he is justice, 
 before him in another county. So he cannot make an order of 
 bastardy, and like orders, which are coercive upon the parties, or 
 imprison for not giving a recognisance, or commit for a crime, ex- 
 cept in his own county. 
 
 A justice of the peace may, however, do a ministerial act out of 
 his county : but any act done out of the state, it would appear, 
 from the following case, would be illegal : 
 
 A deed was proved by a subscribing witness, before a judge 
 of one of the courts of common pleas in this state, being at 
 the time of making such proof in Canada. The court held, that 
 the oath administered in Canada was extra judicial, and of no va- 
 lidity; and that the judge had no authority to administer an oath 
 out of the jurisdiction of this state, nor could the witness in such 
 case be indicted for perjury. 
 
 Regularly, a justice of the peace ought not to execute his of- 
 fice in his own case ; but cause the offenders to be convened or 
 carried before some other justice, or desire the aid of some other 
 justice being present. But in some cases, it seem justifiable for 
 him to act in his own cause, as when a justice shall be assaulted, 
 or, (in the execution of his office especially,) shall be abused to 
 his face, and no other justice present with him : then, it seems, 
 he may commit such offender, until he shall find sureties for the 
 peace, or for his good behaviour, as the case may require. 
 
 Justices of the peace, it seems, may supersede their OWH 
 order quiit imvroi'ide emanavit, if it have not been acted upon: 
 but one justice cannot supersede a warrant of commitment by 
 another justice, without a legal inquiry and examination of the 
 matter. 
 
 It is no objection to a justice of the peace who tries an action 
 on a penal statute, that he is an inhabitant of the town, to the 
 overseers of the poor of which, a moiety of the pcnnlty, when 
 recovered, r- directed to be
 
 JUSTICES OP THE PEACE. 
 
 III. Fees of justices of the peace. 
 
 For a precept to summon a jury to inquire of a forcible entry Sen.36 c. 83. 
 pr drtainiT, thirty-seven and a half cents. 
 
 Administering an oath, twelve and a half cents. 
 
 Swearing a jury to inquire of a forcible entry or detainer, 
 twenty-five cents. 
 
 For drawing a conviction of a forcible entry or detainer, one 
 dollar. 
 
 A warrant of restitution, thirty-seven and a half cents. 
 
 A mittimus for a fine or forfeiture, nineteen cents. 
 
 A warrant against any person for a breach of the peace, or a 
 misdemeanour, nineteen cents. 
 
 A bond or recognisance, twenty-five cents. 
 
 A summons upon a penal law, twelve and a half cents. 
 
 Drawing a conviction, thirty-seven and a half cents. 
 
 A warrant to levy a penalty, nineteen cents. 
 
 ffl. Their indemnity and protection in the right execution of their 
 office, and their punishment for the omission of it. 
 
 A justice of the peace is strongly protected by the law in the 3Burn,3?, 
 Just execution of his office. And words spoken of him in the ex- sot.* ' Abr * 
 ecution of his office, if in his absence, are actionable ; if he be 
 present, they are indictable, or the justice may himself imme- 
 diately commit the party. 
 
 A justice is not liable to an action for what he does as judge, 3Bums,32. 
 
 , . , , - , , . '. e ' 2Hawk.c.l3. 
 
 in matters which he has power by law to hear and determine, s .ig. 
 
 without the concurrence of any other, but is only punishable at ^ fi v j. c *j 
 
 the suit of the people ; for regularly, no man is liable to an ac- R. v. Paimsr, 
 
 tion for what he does as judge. But in cases where he pro- Rfv. r j a ck 6 - 2 " 
 
 ceeds ministerially, rather than judicially, if he acts corruptly, he *>n, IT. R. 
 may be proceeded against either civilly or criminally. But he 
 must have acted corruptly to subject himself to punishment by 
 information.* 
 
 A motion for an information, in the King's Bench, against two R-/. Young 
 
 &nd Pitts 1 
 
 justices, for arbitrarily, obstinately, and unreasonably refusing to Burr, jse, 
 grant a license to keep an inn : no partiality or malice being shown, 
 the rule was refused. Lord Mansfield declared, that this court 
 had no power or claim to review the reasons of justices of peace, 
 upon which they form their judgments in granting licenses, by way 
 
 * Tt is a general rule that officers, required by law to exercise their 
 uidgments^are riot answerable for mistakes in law, or mere errors pf 
 judgment, without any fraud or malice. 11 Jr^n*. K^i. 11 A. 
 
 f 2'J 1
 
 Jl^, PEAUE. 
 
 S Burr. 719. 
 
 1 Bat. Abi. 
 89. 
 
 Perc'iTml . 
 
 2 John*. Cas. 
 49. 
 
 3 John I. Cs. 
 
 to 
 
 of appeal from their judgments, or overruling the discretion ih- 
 trustrd to them. But if it clearly appears that the justices have 
 been partially, maliciously, or corruptly influenced in the exercise 
 of their discretion, and have (consequently) abused the trust re- 
 posed in them, they are liable to prosecution by indictment or 
 information : or even, possibly, by action, if the malice be very 
 gross and injurious. If their judgment is wrong, yet their heart 
 nod intention pure, God forbid that they should be punished ! 
 And he declared that he should always lean towards favouring 
 them, unless partiality, corruption, or malice, shall clearly appear. 
 
 The justice shall not be liable to be punished both ways, that 
 is, both criminally and civilly ; but before the court will grant an 
 information, they will require the party to relinquish his civil 
 action, if any such is commenced. And even in the case-of an 
 indictment, and though the indictment is actually found, yet the 
 attorney general (on application made to him) will grant a nolle 
 prostqui upon such indictment, if it appear to him that the prose- 
 cutor is determined to carry on a civil action at the same time. 
 No action lies against a justice for indorsing a warrant issued in 
 another county. 
 
 A justice is liable to an action on the case at the suit of a party 
 who has been damnified by his neglect. 
 
 The following cases have been decided in this state as to the 
 liability of a justice of the peace in a civil action. 
 
 An action of false imprisonment was brought for issuing an 
 execution, under the ten pound act, against the body of a defend- 
 ant, the present plaintiff, who was by law privileged from im- 
 minent, and who claimed his exemption, voluntarily and 
 without the request or authority of the plaintiff below, on which 
 the present plaintiff was taken and imprisoned. The court held 
 that a justice, in issuing: process, acts ministerially, or as clerk of 
 the party, and while acting in such a character, he will be justified 
 iny process, within his jurisdiction, that may be de- 
 manded by the plaintiff. But, in order to charge the plaintiff in 
 the suit, it should appear that it was really his act ; it ought not to 
 depend on the general intendment of the law, that every writ or 
 process is purchased by the party in whose favour it issues. If it 
 appear- to be the officious or voluntary act of the justice, without 
 .irect authority for that purpose, an innocent plaintiff ought 
 not to be implicated. In such a case the justice assumes the res- 
 ponsibility of the measure, and is liable for all its consequences. 
 No authority to the justice, or demand of the plaintiff, is pretended 
 in the present case. The form of the action is proper. The 
 plaintiff has been falsely imprisoned by the immediate and volun- 
 tary act of the justice, and the remedy must he by an action of 
 false imprisonment. 
 
 But where the defendant below, being asked by the justice 
 whether execution should issue, did not claim any exemption 
 from imprisonment, but answered, he cared not how soon it
 
 JUSTICES OF THE PEACE. 227 
 
 issued, the sooner the better, for he had put his property out of 
 his hands ; whereupon an execution against the body was issued, 
 and the defendant imprisoned, without any direction from the 
 plaintiff, who was not present : the court held that this case did 
 not come within the rule of Percival v. Jones, and that the jus- 
 tice was not liable. 
 
 Trespass quart dausum fregit : the plaintiff was indicted before Casev. sh*p- 
 the defendant, a justice of the peace, for a forcible entry and de- 3 Johns. Ca. 
 tainer. The plaintiff pleaded to the indictment; but, before the 27 - 
 trial of the traverse, he obtained a certiorari from the supreme 
 court to remove all the proceedings, which he delivered to the 
 defendant, who, notwithstanding, proceeded to try the issue, on 
 which the present plaintiff was found guilty. The defendant, 
 thereupon, issued a warrant of restitution, in the usual form, to 
 the sheriff of the county, by virtue of which the plaintiff was turned 
 out, and one B. put into possession of the premises. Per curiam. 
 There can be no doubt that the delivery of the certiorari to the 
 justice superseded his powers, and rendered all subsequent pro- 
 ceedings before him corara non judir.e, and void. The act re- 
 quiring bail in certain cases upon certioraris, does not apply to 
 the case of an indictment before a justice, under the statute of 
 forcible entry and detainer ; for it is not a judgment or order 
 within the meaning of the act. As the magistrate holds a court 
 of a special and limited jurisdiction, and proceeded after his power 
 was taken away by the certiorari, he became a trespasser, and is 
 liable as such. 
 
 False imprisonment. The defendant issued a warrant against WniiswortL 
 the putative father of a bastard child, on the application of an ion s h," 
 attorney, who said he was authorized to make the complaint in "> Johns, 
 behalf of the overseers of the poor of the town ; but on the trial 
 it appeared that he had acted without any authority from the 
 overseers. After the arrest of the plaintiff, one of the overseers 
 attended before the justice, and agreed that the proceedings 
 should go on against the plaintiff. Per curiam. The warrant 
 issued without authority, because it was not issued upon the com- 
 plaint of the overseers of the poor, or either of them. The jus- 
 tice, acting ministerially in this case, was responsible for issuing 
 the warrant without the application required by the statute. 
 The subsequent consent of one of the overseers, that the pro- 
 ceedings might go on, would not deprive the plaintiff of his action 
 for the previous arrest upon a warrant irregularly issued. 
 
 In any action on the case, trespass, battery, or false imprison- 
 ment, brought against any sheriff, coroner, justice of the peace, 
 mayor, recorder, or alderman, bailiff, constable, marshal, collec- 
 tor, or overseer of the poor, and their deputies, for any thing 
 done by virtue of their office, or against any person in their aid or 
 assistance, or by their commandment, doing any thing touching 
 their office, the venue shall be laid in the county where the cause 
 of action arose : and the defendant may plead the general issue
 
 JUSTICES OF THE PEACE. 
 
 and give the special matter in evidence. If on the trial the plain- 
 tiff shall not prove the cause of action to have arisen in the coun- 
 ty where the venue is laid, the jury shall find the defendant not 
 guilty, without having regard -to any evidence which the plaintiff 
 jnay give touching the cause of action. And if the defendant has 
 a verdict, or the plaintiff becomes nonsuit, or suffers a discon- 
 tinuance, the defendant shall have double costs. Sess. 24. c. 4-7. 
 s. 1. 1 R. L. 155. 
 
 V. Authority under the laws of the United States. 
 
 " For any crime or offence against the United States, the 
 offender may, by any justice or judge of the United States, or 
 by any justice of the peace, or any magistrate of any of the 
 United States, where he may be found, agreeably to the usual 
 mode of process against offenders in such state, and at the ex- 
 pense of the United States, be arrested, and imprisoned or bailed, 
 as the case may be, for trial before such court of the United 
 States as by this act has cognisance of the offence : and copies 
 of the process shall be returned as speedily as may be into the 
 clerk's office of such court, together with the recognisances of 
 the witnesses for their appearance to testify in the case ; which 
 recognisances the magistrate, before whom the examination shall 
 be, may require on pain of imprisonment. And if such commiti 
 ment of the offender, or the witnesses, shall be in a district other 
 than that in which the offence is to be tried, it shall be the duty of 
 the judge of that district where the delinquent is imprisoned, sea- 
 sonably toissue,and of the marshal of the same district to execute, a 
 warrant for the removal of the offender, and the witnesses, or either 
 of them, as the case may be, to the district in which the trial is to 
 be had. And upon all arrests in criminal cases, bail shall be ad- 
 mitted, except where the punishment may be death, in which 
 cases it shall not be admitted but by the supreme or a circuit 
 court, or by a justice of the supreme court, or a judge of a district 
 court." L. U. S. Jlct of Sept. 24-, 1789. s. 33. 
 
 As the defendant must be committed or bailed for trial in such 
 court as has cognisance of the offence, it is necessary to observe, 
 that under the laws of the United States, there are in each dis- 
 trict two courts of original criminal jurisdiction ; the circuit court 
 and the district court. The district courts have, exclusively of 
 the courts of the several states, cognisance of all crimes and, 
 offences cognisable under the authority of the United States, 
 committed within their respective districts, or upon the high 
 seas ; where no other punishment than whipping, not exceeding 
 thirty stripes, a fine not exceeding one hundred dollars, or a term 
 of imprisonment not exceeding six months, is to be inflicted. 
 The circuit courts have exclusive jurisdiction of all crimes and 
 offences cognisable under the authority of the United States, ex- 
 cept where it is otherwise provided by the laws of the United
 
 JUSTICES COURTS. 229 
 
 States, and concurrent jurisdiction with the district courts of the 
 crimes arid offences cognisable therein. L. U. S, Jict. Sept. '24, 
 
 nay. s. y. n. 
 
 JUSTICES COURTS. 
 
 I. Civil jurisdiction of a justice. 
 II. Process, and how to be served. 
 
 III. Appearance. 
 
 IV. Discontinuance. 
 V. Declaration. 
 
 VI. Plea, issue, and default. 
 VII. Adjournment. 
 VIII. Set-off. 
 
 IX. Plea of a former action. 
 X. Plea of title. 
 
 XI. Conviction under the excise or tavern act. 
 XII. Trial and its incidents* 
 
 XIII. Verdict, and nonsuit. 
 
 XIV. Judgment. 
 XV. Execution. 
 
 XVI. Proceedings against joint debtors. 
 XVII. Certiorari. 
 
 XVIII. Justices excused and excluded from acting. 
 XIX. Justices certificate, when evidence. 
 XX Attachment against absent and absconding debtors, 
 XXI. Costs. 
 XXII. Subpoenaing witnesses before arbitrators. 
 
 I. Civil jurisdiction of a justice. 
 
 " All actions of debt, detinue, covenant, trespass on the case.. 
 and trespass, including trespass on any lands or other real estate, 
 wherein the balance due, or the damages or thing demanded, 
 shall not exceed twenty- five dollars ; and also all penalties 
 not exceeding the said sum, imposed by the act, entitled, ' an 
 act to lay a duty on strong liquors, and for regulating inns and 
 taverns," and also all suras of money not exceeding twenty - 
 five dollars, to be sued for and recovered in any court of re- 
 cord, by virtue of any statute of this state, as well by and in favour 
 of executors and administrators as others, and as well againt 
 attornies and other officers of any court of justice of this state 
 (except during the sittings of such court) as others, shall be cog- 
 nisable before any justice of the peace of any city or county ; (the 
 city and county of New York excepted,) and every such justice 
 is hereby authorised to hold a court for the trial of all such ac- 
 tions, and to hoar, try and determine the same, according to law anri 
 equity, and is hereby vested with all such power, for the purpose.
 
 JUSTICES COURTS. 
 
 aforesaid, as ia usual in courts of record in this state, and shall signal! 
 process to be issued by him : Provided always, That no ju ;tice of 
 the peace shall have cognisance of any action wherein tti! j ^-o- 
 ple of this state shall be concerned, or where the title to land shall 
 in nny wise come in question; (except as aforesaid,) nor of any action 
 of assault, battery, or imprisonment, or of slander, or malicious pro- 
 secution ; nor of matters of account, where the sum total of the 
 accounts of both parties, proved to the satisfaction of the justice, 
 shall, in the whole, amount to two hundred dollars ; nor of any 
 action to be brought against, an executor or administrator, for any 
 debt or demand due from the estate of any testator or intestate." 
 Act for the recovery of debts to the value, of twenty-five dollars. Sess. 
 3(j. c. 53. s. 1. I R. L, 337. 
 
 chaiev.Hale, An action of trespass on the case was brought for enticing away 
 .tii'. ' the wife of the plaintiff, and it was hold, on ccr/torart, that such 
 
 an action would li before a justice. Per curiam. The action 
 is trespass on the case, jurisdiction of which action is expressly 
 given to justices of the peace: and the proviso in the statute, 
 taking away their jurisdiction in certain actions, does not extend 
 to cases like the present. 
 
 Hence it might be inferred, that if the form of action had been 
 trespass for criminal conversation, or seducing away the wife, in 
 which force and an assault are implied, the wife being considered 
 as having no power to consent, the case would have fallen with- 
 in the exception as to actions of assault and battery. 
 
 -Ijnsenr. \ n action of debt, for the escape of a prisoner in execution, 
 
 hu'rgif," was brought in a justice's court against a sheriff. The court said, 
 ajohns.Rep. tne ac ti on f a i| s within the denomination of actions cognisable in 
 justices courts. There is nothing special in the proceedings or 
 judgment to be given which can take away the jurisdiction. The 
 magistrate is competent to afford the sheriff all the relief to which 
 he would be entitled in any other court, relative to staying pro- 
 ceedings against him. And there can be no reason why juris- 
 diction should be denied.* 
 
 Caitillv. A justice has jurisdiction by the act to the amount of two hun- 
 
 i Johns. Cas. dred dollars, provided the balance claimed do not exceed twenty- 
 Bovditchv '* lve dollars. Regularly, the plaintiff ought to state in his declara- 
 saiisbury, tion the credit, to reduce it to that sum ; but if he state a debt or 
 *>hns.Rep. Demand to the amount of two hundred dollars, but concludes to 
 his damage of twenty-five dollars only, it is an objection of form, 
 and not a substantial error, for which the judgment will be re- 
 versed. 
 
 storms v. When A. agreed with B. to remove his fence so as to open a 
 
 10 j'diius. certain road to its original width, and B. promised to pay to A. 
 Rt 'P- 109< therefor ten dollars and fifty cents, and an action was brought by 
 
 * Trespass on the case is the proper form of action for an escape upon 
 mesne process.
 
 JUSTICES COURTS. 231 
 
 A. before a justice to recover the money, it was held that this 
 agreement did not concern the title to land, and that the justice 
 had jurisdiction. 
 
 A corporation cannot be sued before a justice. The pro- ^"'.'(x'ux. 
 visions of the act, both as to the first process and the execution, Si)t uie 
 preclude the construction that a corporation can be sued before a ^'.'lam',' V ' 
 justice of the peace. s Johns. Hep. 
 
 But where a corporation is plaintiff, it has been held that the Hotchkiss v. 
 action is sustainable. The court said: There are insuperable Rciigiom Sn- 
 
 ... . i i cifty ut Ho- 
 
 difficulties in the way of a suit against a corporation, among wuicli mc 
 it is sufficient to mention, that the justice has no process provided Jj 
 by the act to compel a corporation to appear. But when they 
 are plaintiffs, they can constitute an attorney to appear fur them, 
 and conduct the suit. The only objection to the cognisance of 
 a suit by a corporation, is to the form of the execution provided 
 by the statute, which is to issue against the goods and chattels, 
 and in default of the goods and chattels, against the body of the 
 party who may not be specially exempted ; and if the plaintiff fails 
 in the suit, the defendant is entitled to the same process for his 
 costs, and for the balance which, in cases of set-off, may have 
 been found in his favour. The execution, so far as respects the 
 body, could not be executed against the corporation, nor could 
 such an execution issue in any other court. The defendant 
 then would have all the remedy that could be afforded him if lie 
 was sued in a higher court. This objection, therefore, does not 
 seem sufficient to destroy the jurisdiction of the justice. If the 
 judgment then be in favour of the defendant, the execution can 
 issue in the usual form ; and it would be effectual as against the 
 goods and chattels of the corporation, and could only be inopera- 
 tive as to the residue of it. The defendant would still have ade- 
 quate remedy upon his judgment, and all that could be afforded 
 if express jurisdiction were given in the case. 
 
 II. Process, and how to be served. 
 
 " The first process under this act, against freeholders and in- 
 habitants having families, (except as hereafter is otherwise direct- 
 ed,) shall be by summons, directed to any constable in the county 
 where the defendant dwells, commanding him to summon the de- 
 fendant to appear before such justice, at a time and place to be 
 expressed in such summons, not less than six, nor more than 
 twelve days from the time of issuing such summons, to answec 
 the plaintiff of the plea in the same summons to be mentioned, 
 which summons shall be served at least six days before the time 
 of appearance mentioned therein, by reading the same summons 
 to the defendant, and delivering a copy thereof, (if required,) it 
 such defendant shall be found, and if not, by leaving a copy there 
 of at liis or her house or place of abode, in the. presence of some 
 one of the family, of suitable age and dhcreMnn. vrho ?w -
 
 232 JUSTICES COURTS. 
 
 formed of its contents ; and the constable serving such summons 
 shall, upon the oath of his office, return thereupon the time and 
 manner he executed the same, and sign his name thereto ; and in 
 case the defendant does not appear at the time and place ap- 
 pointed in such summons, and it shall appear by the return en- 
 dorsed thereon, that the summons was personally served ; or if the 
 defendant does appear on the return of such summons, the said 
 justice shall then, or at such other reasonable time as he may ap- 
 point, not exceeding six days thereafter, proceed to hear and ex- 
 amine the proofs and allegations of the parties, and within four 
 days thereafter give judgment thereon, agreeable to law and 
 equity, with costs of suit; but if such summons was not served 
 personally, and the defendant does not appear at the time and 
 place appointed in such summons, nor show good cause for not 
 appearing, then the said justice shall issue another summons or 
 warrant, against such defendant, at his option ; but no person 
 shall be proceeded against by summons out of the county in 
 which he or she residt s ; and whenever any parties agree to join 
 an issue without proces?, the justice shall proceed to try the 
 same as if process bad-issued." s. 2. 
 
 " In all cases where a warrant shall issue, the constable shall 
 he commanded to take the defendant, and bring him or her forth- 
 with before such justice, to answer the plaintiff of the plea in the 
 same warrant to be mentioned, and upon the defendant being 
 brought before such justice, he shall proceed to hear and deter- 
 mine the cause in manner aforesaid : and if the justice who issu- 
 ed such warrant shall, on the return thereof, be absent, or unable 
 to hear and try the. cause, the constable serving the same shall 
 take the defendant before the next justice of the city or county, 
 who shall take cognisance of, and hear, try and determine the 
 cause, as if the warrant had been issued by him." s. 3. 
 
 " If any person, or his or her attorney, applying for process, 
 shall prove to the satisfaction of any justice, that the defendant is 
 about to depart from the county, or that the plaintiff will be in 
 danger of losing his or her debt or demand, unless the process 
 against such defendant, being a freeholder or inhabitant, having a 
 family, shall be by warrant, such justice shall thereupon issue a 
 warrant as above directed; and if the person applying for a war- 
 rant be a non-resident, and tenders to any justice security for the 
 payment of any sum which may be adjudged against him. he shall 
 be entitled to have a warrant hi his favour against any person in 
 the county in which such justice may reside ; and on the de- 
 fendant being brought before such justice on such warrant, he 
 .ihall then, or within three days thereafter, unless the parties 
 agree to allow a longer time, proceed to hear, try and deter. ..ine 
 .-such cause in the manner herein before directed ; but in all other 
 < rises on the leturn of a warrant, if either of the parties shall re- 
 quire a longer time to try the cause, and will, if required, give 
 sufficient security to appear and stand trial on such other day as
 
 JUSTICES COURTS. 233 
 
 shall be appointed, then such justice shall adjourn the trial of such 
 cause to sumo future day, not less than three, nor more than 
 twelve days, unless the parties and justice shall otherwise agree; 
 and if the adjournment is required hy the defendant, he shall 
 give sufficient security to appear on the day to which the cause is 
 adjourned, and in default of such appearance, to pay the debt, or 
 damages and costs, if judgment shall be given against him or her; 
 and for want of such security, the justice shall proceed to trial 
 without an adjournment ; and the constable serving such war- 
 rant shall detain the defendant in his custody until discharged 
 by due course of law: Provided, That in all cases where any ap- 
 plication for a warrant shall be made, as provided for in this sec- 
 tion, the person thus applying shall, by affidavit or orally, on oath, 
 state the facts and circumstances within his knowledge, showing 
 the grounds of his, her or their application, whereby the justice, 
 may better judge of the necessity and propriety of issuing such 
 warrant." s. 4. 
 
 The issuing the summons or warrant is the commencement of B ,y er v ~ 
 
 Morgan, 
 
 the action. a CaiiuV 
 
 Process improperly issued, as whore a warrant is issued when Da? v* wi!- 
 the defendant ought only to be summoned, or a defective process, **?!._ 
 is cured, if no objection be made to it at the time, but the defen- Hep'.""*, 
 dant pleads and goes to trial. 
 
 In an action for a false imprisonment it appeared that the plain- Curryy. 
 tiff was a man having a family, and was arrested on a warrant f, 1 j' K h 'f,'.. 
 issued from a justice's court, without oath, and was detained for Bj>.4'. 
 about half an hour. After his arrest, the plaintiff said that he was 
 a man with a family ; upon which the defendant, to avoid the dan- 
 ger of being non-suited in the court below, provided the plaintiff's 
 declaration was true, discharged him from the arrest. The jury 
 found a verdict for the plaintiff" for nominal damages, subject to the 
 opinion of the court, which was delivered by YATES J. IT, ap- 
 pears that the plaintiff was an inhabitant of the town of Milford, 
 in the county of Ot?ego, the same county in which the justice 
 and the defendant resided. The imprisonment in this case was 
 illegal, and the party is entitled to a remuneration for the injury 
 sustained. To authorise, the issuing of a warrant in the first in- 
 stance, the defendant ought to have proved to the satisfaction of 
 the justice, that the plnintiff was about to depart from the county, 
 or that he was in danger of losing his debt. This was not done, 
 and the justice proceeded against the plaintiff as an inhabitant 
 having no family. From the facts in the case it is evident that 
 those proceedings were had on the suggestion and ;.t the instance 
 of the defendant, in whose favour the process issued, which must 
 be deemed to have been done at his peril. H/j ought therefore 
 to be responsible. It might, perhaps, have been otherwise, if l(u- 
 justice, as the agent of the defendant, had voluntarily and officious- 
 ly issued the warrant, without any direct authority for that pur- 
 pose. T!i ; ".-e implicated the fJefcndap.t. an/l tire
 
 JUSTICES COURTS 
 
 justice in sutli case might be considered as having assumed the 
 responsibility of the measure adopted by him, and of course ought 
 to be held liable for the consequences. But the officer who ex- 
 ecuted the warrant declared that he took the plaintiff at the in- 
 stance of the defendant. He therefore was not only acquainted 
 with the issuing of the warrant, but directed the service of it in 
 the manner stated, so that the remedy for the injury sustained is 
 properly sought from him. The rule is strict, that in a court of 
 special and limited jurisdiction, the party becomes a trespasser 
 who extends the power of the court to a case to wliich it cannot 
 lawfully be extended.* 
 
 3Uiis \. Keu- Any constable of the county may serve process in any part ot 
 
 "fohtu. Rep. the county. 
 
 5a3 ' " When any process shall be issued by any justice, by virtue ot 
 
 this act, the constable, to whom such process shall be directed, 
 shall proceed agreeably to this act, and execute such process in 
 his own proper person, unless the justice who issues such process 
 shall, at the request of the plaintiff, judge it expedient to depute 
 some other proper person, who will voluntarily undertake to ex- 
 ecute the same w ithout fee or reward ; but no person shall be so 
 deputed to impannel or summon any jury." 6. 15. 
 
 III. Appearance, 
 
 " No justice of the peace or constable, serring the original or 
 jury process in any cause, shall be permitted to appear and advo- 
 cate for either party in any such cause." s. 27. 
 
 fhuiney v. Where, on the return of the summons, the defendant and his 
 /Johns. Rep. attorney appeared, and the constable, who served the summons, 
 r'itile v Ba said he would appear and answer for the plaintiff, if the defendant 
 k.-r, and his attorney would take no advantage of it, to which they 
 
 S54. ins cp ' agreed, and the constable then presented and declared upon the 
 note : and the defendant pleaded non-assumpsit, and the cause 
 was then adjourned for trial ; it was held that the constable who 
 served the process did not appear and advocate for the plaintiff 
 within the meaning of the act. The statute refers to an appear- 
 ance at the trial of the cause. He merely appeared for him to 
 present the note to the justice, and did not appear at the trial. 
 
 As to the appearance of an infant plaintiff or defendant, see 
 INFANT. 
 
 IV. Discontinuance. 
 
 If the plaintiff does not appear on the return of the process, il 
 ;s a discontinuance ; so, if the justice unreasonably delays to at- 
 tend and open his court. 
 
 * See further on this subject the cases of Ptrcival v. Jcr.es and flier? A 
 Morgan, cited JUSTICES ov THE PEACE, IV.
 
 JUSTICES COURTS. 235 
 
 A suit was commenced on a promissory note, by warrant, on g 1 ^|';" e and 
 ihe return of which neither the plaintiff nor any person in his he- siu-ii, 
 half appeared. The note, on which was indorsed a request by the s^" 1 '' 1 '^ 
 defendants to enter judgment against them, was delivered to the 
 justice, on which the justice gave judgment against the defemkuit.- 
 Per curtain. This judgment cannot be supported. The pro- 
 ceedings were contrary to the established rules of law applicable 
 to justices courts. The plaintiff not appearing himself, nor any 
 person for him, was a discontinuance of his cause, and the justice 
 had no authority to enter judgment Although the case is not 
 precisely within that of Martin v. Moss, (see this case, post, XIV.) 
 here being process issued against the defendants, still it cornea 
 within the principle of that case, because, by the default of the 
 plaintiff in not appearing, his cause was out of court, and of course 
 no suit was depending. 
 
 After issue joined, the justice adjourned the cause until 10 Gro'tlnt 
 o'clock on another day. The defendant appeared at the hour 5J.ihns.Rei> 
 ;tnd place appointed, and being told that the justice could not 353< 
 oome until 12, waited near three hours, and finding the justice did 
 not attend, went away; and afterwards, just before 1 o'clock, P. 
 M. the justice came, and the plaintiff being present, the defendant 
 was exiled, and not appearing, the justice proceeded in the cause, 
 and gave judgment against him by default. Per curiam. The 
 defendant below waited a reasonable time, and the cause became 
 discontinued by the delay of the justice to attend ; for it was an 
 unreasonable delay. The defendant below, during the three 
 hours he waited, was told that the justice had said he could not 
 come until 12 o'clock, and he waited near an hour after that time. 
 The judgment below must be reversed. 
 
 Where the justice did not open his court for more than two jl^ui-Ln 
 hours after the time appointed in the summons, and then ad- iiJuiins. 
 journed the cause to another day, when he heard it cxparte; it was tf ' 4( 
 held that this delay and the subsequent adjournment amounted to 
 a discontinuance of the cause. 
 
 An issue had been joined in a justice's court, on a plea of mis- wilder. 
 
 .. J Dunn, 
 
 nomer, and the cause was adjourned until another day, at two iuoiin. 
 o'clock ; about three o'clock of that day the defendant appeared Re l'' 4 * 9 ' 
 with her attorney, and moved for a nonsuit, because the plaintiff 
 did not appear ; upon which the justice was informed by a witness 
 for the plaintiff, that the plaintiff was near at hand, upon his way 
 to court. The justice waived a decision on the motion for a nou- 
 niit. In a few minutes after the motion was renewed ; the jus- 
 tice told the defendant she must wait a little longer, and she then 
 went out of court, but remained near at hand. The attorney con- 
 tinued with the justice, and about a quarter before four the plain- 
 tiff arrived. The parties were then called ; the attorney for the 
 defendant refused to appear, and the cause was heard ex parte, 
 and judgment given for the plaintiff. The court held, lhat as 
 there was ground -to presume that the defendant had. no bona>
 
 136 OURTS. 
 
 Jide intention of defending the suit, and as her attorney was present 
 during the trial, the delay was not, under all circu: -o un- 
 
 reasonable as to work a discontinuance. 
 
 An irregular adjournment amounts to a discontinuance; as to 
 which, vide post, VII. 
 
 V. Didaration. 
 
 ptlld^als ^ e declaration is a specification, in a methodical and legal 
 
 form, of the circumstances which constitute the plaintiff's cause of 
 action. 
 
 But in a justice's court technical nicety is not required in the 
 pleadings: the declaration should, however. ' rmal, as to 
 
 show the cause of action, or it will be fata! on ctrtiorari. 
 Hangfctan T. So. where the declaration, as appeared from the return to the 
 i CaiSv cerfiorort, stated that the defendant " privily, wilfully, and mali- 
 Rep.48;. ciously. by ctrtain conduct, damaged the plaintiff to the amount of 
 twenty-five dollars." it was held bad. The court said : It ought 
 to have stated not only the injury, but bow it arose. l*nl< 
 cause of action be stated with certainty, it is impossible for us to 
 know whether the justice had jurisdiction or not. This re: 
 may, for aught that appears, have been slander, or for an r. 
 and battery, or for some other matter, not cognisable before a 
 > i^oes it appear by any p^rt of the n ne of 
 
 the testimony being returned,} what kind of action was proved by 
 the witot 
 
 Kintrr. The declaration in the court below stated, that the plaintiff "let 
 
 scaiao 1 the defendant have a certain bay horse and a note of hand l 
 Hey. S3. teen dollars: in consideration of which the defendant let the plain- 
 tiff have a certain sorrel horse, which the defendant warranted to 
 be a sound and good working hor?e, whereas he was totally unfit 
 for all manner of business, to the damage." k<-. The declaration 
 was held sufficient Tl.- 3: It has been obj. 
 
 the word let imports a bailment: and that if so, the unsoundness 
 of the horse was immaterial, and not prejudicial to the plaintiff 
 below. In reviewing the proceedings of magist court 
 
 has decided that they will not require of the parties, who : 
 be presumed unversed in the forms of law, technical nicety or 
 precision. If the matter stated show a good ground of ac- 
 tion, it is all that is requisite. To test pr> 
 
 courts, hy the rules of pleading adopted here, would be produc- 
 tive of the greatest injustice. The act requires of us to pronounce 
 judgment as the very right of the case shall appear, without re- 
 gard to o ;:r. in mere matters of form. In common par- 
 lance, '//," as used here, means exchange, and so the coi;: 
 understand it. With respect to the proceedings of the ' 
 himself, the court will require a compliance on his part with the 
 forms prescribed by the statute. If these have been departed 
 from, and are not waived or cured by the statute 
 proceeding* cannot be supported.
 
 JUSTICES COURTS. 237 
 
 A declaration "for damages, on account of the defendant's not ^^ rtb 
 
 fulfilling a contract for a certain lot of lease land, lying" in a cer- 3 Caiiv 
 
 tain place, is sufficient. Rtp- 219 * 
 
 Where tin- plaintiff declares generally, and at the same time Ei>r' v - 
 
 hands the justice a hook account, the account will be taken as a 3 cuinei 
 
 part of the declaration. ^'tbit'cae, 
 
 That the defendant did sell to A. B. and receive pay for one pint m length, 
 
 qf whiskey, which was drank in the defendant's house, who had no Taverns \i 
 
 license, &.c. is a sufficient charge of the offence.* Piek.-n. 
 
 There must not be a variance between the evidence and the 2 ji.hn.Rep. 
 
 declaration ; neither can judgment be given for more than the J^' 
 
 plaintiff claims by his declaration : either of these errors would be T. Borland, 
 
 fatal on certiorari. Re'l'wj. 
 
 The plaintiff below declared in assumpsit for twenty-five dol- M'NPII v. 
 
 ,. _,* ' Seoffieltl, 
 
 tars, difference agreed to be paid by the defendant, on an exchange 3 Johns. Rep. 
 
 of horses between him and the plaintiff: and also for twenty-five 436% 
 dollars for fraud in the exchange of horses, and concluded to the 
 damage of twenty-five dollars. Per curiam. It is objected that 
 a count on contract, and fraud could not be joined in the same de- 
 claration. This would no doubt be a valid objection, on a motion 
 in arrest of judgment here, where the court are judges of the law, 
 and the jurors decide on the facts: but in proceedings before jus- 
 tices of the peace, the jury may decide both the law and the fact. 
 
 Again, where the paity makes no objection to the pleadings at Ely v. van 
 
 the time, but consents to go to trial upon them, we have repeated- f cahW 
 
 ly decided that he shall not avail himself of any defects in the Re i>- 318 - 
 form of pleading, which may appear on the return to Ihe certiorari. 
 
 After pleading, the defendant cannot take advantage of a DHyv. wil- 
 
 variance between the process and declaration. So, too, if he sTcaimV 
 
 neglect to appear, and judgment goes by default. Kep. 134. 
 
 So, where in an action before a justice, the plaintiff declared by Moreboo'ie, 
 a different name from the one mentioned in the summons, but ;^? hl| s- Rep- 
 ine identity of the person was ascertained ; the defendant did not Ford v. 
 appear, but suffered judgment by default, and it was held, that he fjotnT'cas. 
 should have appeared and taken advantage of the variance before 243< 
 the justice, but could not avail himself of it afterwards. 
 
 A statement of matter not actionable, but for which no damages EI r v - v n 
 
 Bt-iireii, 
 
 appear to have been given, is not error. scain.v 
 
 Where the. plaintiff declared in assumpsit for work and labour, of/.',," 8 ' 
 
 and judgment was given against the defendant, who, on certiorari, Mor<-hontc, 
 
 objected that the declaration wanted an averment that the work ^ J 6 < lins - Re P- 
 was actually performed, it was held that after judgment the aver- 
 ment would be intended to have been supplied by proof. 
 
 In an action before a justice, the plaintiff commenced by sum- ** k ",T' 
 
 mons in trespass on the case, and declared, for that the hogs of the 10 Johns. 
 
 Rip. 240. 
 
 Further as to declarations in qui tam actions, see ACTIONS
 
 233 JUSTICES COURTS 
 
 defendant had broken into the inclosure of the plaintiff on such 
 a day, and destroyed his corn, &tc. and also for that the de- 
 fendant on that day, had broken open the pound, &c. The de- 
 fendant made several objections to the plaintiff's demand and pro- 
 ceedings, which, by consent of the parties, were postponed to 
 the trial, when the justice consented to take into consideration 
 any objections the defendant might urge. It appeared that the 
 summons was against B. and his wife ; but it was not served upon 
 her, nor did she appear, and a nolle prosequi, as to her, was entered 
 by the plaintiff, and she was not named in the subsequent pro- 
 ceedings in the cause. On the trial, the defendant objected to 
 the plaintiff's proceeding against him alone, without his wife, and 
 the objection was overruled. The defendant then objected to 
 the variance between the action stated in the summons and the 
 plaintiff's declaration ; the one being trespass on the case, and 
 the other trespass ; which objection was also overruled by the 
 justice. The jury found a verdict for the plaintiff. Per curiain. 
 There was no well founded objection to joining; a count for the 
 trespass damage feasunt, with the count for the pound breach 
 or rcscous, and it is usual to join them. If the variance between 
 the summons and declaration would have been fatal, (which we 
 do not concede,) because the one was trespass on the case, and 
 the other trespass ; yet the objection was waived by the defen- 
 dant, when he consented to postpone it until the jury were 
 sworn on the trial. The plaintiff also had a right to discontinue 
 the action against the wife, and proceed against the husband alone, 
 The objections made by the defendant were frivolous in their na- 
 ture, and went merely to matters of form, which are always- 
 Liberally regarded in proceedings before a justice. 
 
 VI. Plea, issue, and default, 
 3 Black. Pleas are of two sorts ; dilatory pleas, and pleas to the action. 
 
 Coin 301 
 
 Dilatory pleas, and pleas in abatement, are such as tend merely to 
 delay and put off the suit, by questioning the propriety of the 
 remedy, rather than by denying the injury : pleas to the action 
 are such as dispute the very cause of suit. Pleas in abatement 
 are either to the jurisdiction of the court, or to the disability oi 
 Pteftd/5.2S. tue plaintiff, by reason whereof he is incapable to commence or 
 continue the suit, as that he is an alien-enemy, a fictitious person, 
 Hep. 101. an infant, a feme-covert, fcc. or a misnomer; or that proper par- 
 ajohns. Cas. t j es h a ve not been made plaintiffs or defendants, or that improper 
 i Johns. Rep. parties have been joined in the action; but in actions arising on 
 2 j'oims. Hep, contract, if it appear on the trial that all parties legally interested 
 have not joined in bringing the action, it will be a cause for non- 
 suiting the plaintiff; so too the plaintiff is bound to show a joint 
 liability in all the defendants, or be nonsuited; but in actions for 
 tort'-:, one defendant may be found guilty and auolhc;- i
 
 JUSTICES COURTS. 239 
 
 A plea in abatement cannot be pleaded after a plea to the ac- 1R - * 5<M - 
 lion, and every dilatory plea is required by statute to be verified 
 by affidavit, or some probable matter shown to the court to induce 
 them to believe that the fact of such dilatory plea is true. 
 
 When these dilatory pleas are allowed,* the cause is either dis- - 1 Black, 
 missed from that jurisdiction, or the plaintiff is stayed till his dis- 
 ability be removed ; or he is obliged to sue out a new writ, by 
 leave obtained from the court; or to amend and new frame his 
 declaration. But when, on the other hand, they are overruled 
 as frivolous, the defendant has judgment of respondent ouster, or 
 to answer over in some better manner; it is then incumbent on 
 him to plead to the action. 
 
 Pleas that totally deny the cause of complaint, are either 
 the general issue or a special plea in bar. 
 
 The general issue, or general plea, is what traverses, thwarts 
 and denies at once the whole declaration without offering any spe- 
 cial matter, whereby to evade it. As in trespass either vi ct armis 
 or OK the case, not guilty ; in debt upon contract, nihildcbet, he owes 
 nothing; in debt on bond, non est factum, it is not his deed; in 
 debt on a judgment, nul tiel record, there is no such record ; on 
 an assumpsit, iwn assumpsit, he made no such promise. Tlu:", 
 pleas are called the general issue, because, by importing an abso- 
 lute and general denial of what is alleged in the decl?.rati<>: :. 
 they amount at once to an issue ; by which we mean a fact 
 affirmed on one side and denied on the other. 
 
 There arc certain matters of defence which regularly must be 
 stated at large in the form of a special plea ; such in general arc 
 matters which go in discharge of the action, or in avoidance of it, 
 such as a release, a discharge under the insolvent law, an accord 
 and satisfaction, an award, payment, tender, &tc. So too, a jus- 
 tification must be pleaded, as in trespass, that the land was the de- 
 fendant's freehold, or that he took the goods as a distress for rent, 
 or beasts, damage, feascrnt : the statute of limitations must like- 
 wise be pleaded.f In an action of covenant, there is strictly no 
 general issue, for the plea of non estfactum cnly puts the deed in 
 issue ; and therefore every other defence must be pleaded spe- 
 cially. When the plea of the defendant has been put in, if it: 
 contain any thing more than a general denial of the plaintiff's de- 
 claration, the plaintiff must reply to it, either by alleging some 
 new matter in support of his declaration, or by merely denying 
 the facts stated in it, and tendering an issue. 
 
 But it is unnecessary to enlarge upon the subject of special pleas; 
 for, by the act for th amendment of the law, s. 1. the defendant 
 is permitted to plead the general issue, and to give acy special 
 
 * If the matter of the plea be sufficient in law to abate the suit, the 
 plaintiff is, not withstanding, not bound to admit the truth of it, but may 
 join .in i^sue on the plea, end proceed to trial. If it is insufficient ' 
 he should demur or except to the validity of it. 
 
 t See some (juaUfic&tioas to thi^ rale ia a
 
 240 JUSTICES COURTS 
 
 matter in evicknce, which, if pleaded, would be a bar to the ac 
 lion, giving notice with the plea, of the matter, or several mat- 
 ters so intended to be given in evidence; and particularly be- 
 cause special pleading is in a great measure unnecessary in a jus- 
 perThomi). lice's court. All such pleadings, as was said in the case of KLint 
 3cafii.s' v - Husted^ in justice's courts, ought to be discountenanced, ar 
 iitp-278. being calculated to mislead magistrates, and involve proceedings 
 
 in their courts in all the niceties of special pleading. 
 
 cahiil v. The joining a formal issue before a justice is not material ; 51 
 
 ij.fhns. Cas. is sufficient if it. appear to have been substantially done. When- 
 stilison v. ever the court can intend from the record that the merits were 
 sandforii, fairly tried, they will not examine or test by technical rules the 
 
 3 Cairns' ., .. ,, . . ,. 
 
 Rip. 174. formality of the pleadings. 
 
 Goodenow v. In an action against the defendant, who was a tavern keeper, 
 
 sunn's Re i f r refusing to eritertatn the plaintiff, the defendant pleaded not 
 
 127. ' guilty, and set off a trespass by tlie plaintiff in breaking a door, 
 
 fcc. and that he was a person of bad reputation : the court said 
 
 that the set-off of the trespass, or violence done by the plaintiff 
 
 in the house, and his bad character, was meant only as a reason or 
 
 justification for not entertaining him, and was intended to support 
 
 the plea of not guilty. 
 
 crake^'u ^ n an act ' on of assumpsit before a justice, the plaintiff on the 
 Johns.' Rep. trial proved his demand substantially ; the defendant then offered 
 to prove payment: this was objected to and over-ruled ; and a 
 verdict given for the plaintiff. Per curiam. The evidence of 
 payment offered by the defendant ought to have been received. 
 It was an action of assumpsit, and a direct payment of the demand 
 Avas admissible under the general issue. Had the payment set 
 up been by matter of set-off, it should have been pleaded, or no- 
 tice thereof given at the time of joining the issue. But if the de- 
 fence set up was admissible under the general issue, the defend- 
 ant was not bound to disclosse it until the trial.* 
 
 * In like manner the defendant, in assumjisit, may give in evidence, 
 under the general issue, infancy, lunacy, coverture, duress; that the 
 action was for a gaining or usurious debt, or that the contract ^ as 
 void by the statute of frnuds ; an accord and satisfaction, an arbitrament, 
 a higher security given, i>nd H release : but a tender or set-off and the 
 Statute of limitations must be ; leaded, or notice given \v,tli the general 
 issue that the defendant intended to insist upon them. In trover and tres- 
 pass on the case, almost every, if not every, matter of defence may be 
 given in evidence under the general issue. In trespass it is otherwise, 
 for there the plea of not guii/ii merely puts the facts charged in the plain- 
 tiff's declaration in issue; and if the act be in \a\v,prima facie, a trespass. any 
 matter of excuse or justification must be -'leaded ; but a freehold, or 
 Biere possessory right in the defendant, uiiiy be given in evidence under 
 the general issue. 1 Ckittij Plead. 4G: 1 . 4" :. The remarks above nu$le 
 in the text respecting special j'leas are only applicable in their full ex- 
 tent to actions of covenant, debt, ami trespass. A former action for ilie 
 same cnuse must be pleaded in a justice's court, even in assumpsit. Dex- 
 ter r. ifarwi, 10 Julius. Hep. 2-16.
 
 JUSTICES COURTS. 241 
 
 Where the Court is held at a different place from the one men- Cae v. van 
 lioned in the summons, and the defendant does not appear, judg- *joh ns . c&. 
 raent by default is erroneous. *3. 
 
 The default of the defendant in not appearing and pleading, 
 does not, in a justice's court, amount to an admission of the cause 
 f action stated in the plaintiff's declaration. 
 
 So, where on the return of the summons, the defendant being cudwerT. 
 called, made default, and the plaintiff exhibited his account to the ^Jj"",^, 
 justice, who gave judgment for the plaintiff, without any proof of Hep. we. 
 the plaintiff's demand, the judgment was reversed. Per curiam. 
 It has been frequently decided, that though the defendant makes 
 default before a justice's court, yet the plaintiff must prove his 
 demand in the same manner as if he had appeared and denied it. 
 The act says, that if the defendant does not appear, and the 
 summons is returned personally served, or if he does appear, &c. 
 the justices shall proceed to hear and examine the proofs and al- 
 legations., &tc 
 
 The summons was returned personally served, but the defend- Siwiir. 
 ant did not appear, and his default was entered. The justice then i^johiis. 
 adjourned until two days after, when the defendant appeared by Re &- w - 
 attorney, and tendered a plea of the general issue, and requested 
 a venire ; the justice overruled the plea, and refused the venire, 
 on the ground of its being too late after the defendant had been 
 called and defaulted; but permitted the defendant to give -evi- 
 dence in mitigation of the damages. The justice gave judgment 
 for the plaintiff. The court, held that the decision of the justice 
 was correct, and that the defendant was only entitled to the in- 
 dulgence granted him by the justice, 
 
 By the first section of the act, the parties may join an issue 
 without process, on which the justice shall proceed to try the 
 eausc. 
 
 VII. Adjournment. 
 
 By the first section of the act, the justice is required, on the 
 return of the summons, " or at such other reasonable time as he 
 may appoint, not exceeding six days thereafter," to proceed to 
 trial. These words of the act have been construed to authorize 
 the justice, in a cause commenced by summons, to adjourn the 
 cause not only on his own motion, but also at the request of either Damage ?, 
 party. 2 Luis. Rep. 
 
 A justice cannot on his own motion adjourn a cause more than p^g,. T> 
 once, and that only fora time not exceeding six days after the re- Green, 
 turn of process; otherwise it will amount to a discontinuance of 161" " 
 the suit. But it may be done by consent of the parties. Dunham T. 
 
 A justice cannot adjourn a cause at the instance of the plaintiff "jhn".'Ren. 
 for more than six days. ssi. 
 
 The justice may, on the return of a summons, at the instance u Rk( f ri v ' 
 of the plaintiff, adjourn the cause for six days without requiring o Johu. Rep. 
 ^n oath of t'lp a^rnce nf material witnesses. 
 
 31 1
 
 24'2 JUSTICES COURTS. 
 
 foldenr. f | ie return to a certiorari stated that the defendant below wn = 
 
 3 Caines' sued by summons, which was returnable on the 2<)th July ; that 
 Rep. m.j t j le p a| .ties appeared on that day and pleaded ; that the plaintiff 
 below prayed a day to prove his account, and the justice thereon 
 , adjourned the court to the 2d of August, on which day the 
 
 plaintiff appeared in court, and the defendant was present, but 
 said nothing, whereupon the justice, after hearing the proofs and 
 allegations of the plaintiff, gave judgment for him. KENT, Ch. J 
 Upon this case the justice had no authority to adjourn for more 
 than six days after the day of appearance of the parties on the 
 summons. The act is positive that the justice shall, upon the re- 
 turn of the summons, or at some other time, not exceeding nix 
 days thereafter, proceed to hear the cause, and in the present in- 
 stance, the 2d day of August was the seventh day thereafter. There 
 are other provisions in the act respecting adjournments ; but none 
 of them have any application to the present case, and there i? 
 nothing in the return from which we can presume any consent or 
 acquiescence on the part of the defendant. The return contain 1 
 pretty strong evidence to the contrary. On the day of the re- 
 turn of the summons, the defendant pleaded a special plea, and 
 the plaintiff refused to reply, but called upon the defendant to 
 plead the general issue, which he refused to do, and then the 
 adjournment took place at the prayer of the plaintiff; and on the 
 <iay of adjournment the defendant took no part in the proceed- 
 ings, but remained a silent spectator. On this ground, therefore, 
 of an adjournment beyond the time authorized by the act, the 
 judgment below must be reversed, for where the act is positive in 
 its directions it must be strictly observed. 
 
 nose v. In error on certiorari. Stuyvesant sued Rose before the justice. 
 
 s Yohiis".' ' The first process was a summons, which was returned as person- 
 Rp.426. a jjy ser ved by reading. The plaintiff appeared on the return day. 
 at the time and place appointed, and exhibited his demand. The 
 return to the certiorari stated, that, previous to this, on the morn- 
 ing of the day on which the parties were to appear, Rose applied 
 in writing for an adjournment, on account of his child being dan- 
 gerously sick. That the justice returned an answer that he wish- 
 ed further satisfaction on the subject, and unless it was received, 
 he would proceed at the hour to try the cause. On the same 
 day, and before the parties were called. Rose's father appeared in 
 his behalf to get the trial adjourned. He was sworn to testify to 
 the occasion of Rose's absence, and said that Rose's child was 
 dangerously sick ; but an adjournment was refused. Per curiam. 
 The justice had a discretion, on the non-appearance of the de- 
 fendant below, to put off the hearing of the cause to such reason- 
 able time as he should appoint, not exceeding six days. This 
 discretion is not an arbitrary one : it ought to be soundly and ju- 
 diciously exercised. The situation of Rose's child was such as 
 ought to have induced the justice to put off the trial : we are of 
 opinion, therefore, that the judgment ought to be reversed.
 
 JUSTICES COURTS. 243 
 
 By the 4th section of the act, before recited, on the return of a 
 -.varrant, except a warrant issued at the suit of a non-resident,if either 
 party shall require a longer time, than the time when the defendant 
 was brought before the justice, or the three days thereafter, to try 
 the cause, and will, if required, give sufficient security to appear 
 and stand trial on such other day a* shall be appointed; then the 
 justice shall adjourn the trial of such cause to some future, day, 
 not less than three, nor more than twelve days, unless the par- 
 ties and justice shall otherwise agree ; and if the adjournment is 
 required by the defendant, he shall give sufficient security to ap- 
 pear on the day to which the cause is adjourned, and in default 
 of such appearance, to pay the debt, or damages and costs, if 
 judgment shall be given against him or her; and for want of such 
 security, the justice shall proceed to trial without an adjourn- 
 ment. 
 
 " In cases not provided for by the last section as aforesaid, if 
 the defendant shall make oath that he cannot, for want of some 
 material testimony or witness, safely proceed to trial, the jus- 
 tice shall in such cases postpone the trial for such reasonable time 
 as will enable the defendant to procure such testimony or wit- 
 ness : Provided, That such time shall not exceed three months: 
 And provided also, That such defendant, before he shall be enti- 
 tled to have the trial postponed as aforesaid, shall give security to 
 the said justice to appear and answer the said action, and to pay 
 the debt and damages, and costs, or render himself in execu- 
 tion in case judgment shall be given against him. Provided also, 
 That in any action, to be brought by virtue of this act, by war- 
 rant or otherwise, if either the plaintiff or defendant shall request 
 an adjournment, he shall not be entitled thereto, unless the party 
 requesting an adjournment (after having seen the account or de- 
 mand of the adverse party) shall, if required, exhibit his or her 
 account or demand, or state the nature thereof as far forth as 
 may be in his or her power, to the satisfaction of the justice be- 
 ibre whom the cause is to be tried." s. 5. 
 
 The justice may, on the return of the warrant, adjourn the Bowditcb v. 
 -ause at the request of the defendant for a less time than three Salisbury, 
 days, and is not restricted to that number of days as the least iitp. aw. 
 which he can grant. 
 
 In an action by a non-resident plaintiff suing by warrant, the candee v. 
 justice cannot adjourn the cause for more than three days, with- 2Catws* e ' 
 out his consent. Ke P- 245 - 
 
 Jn an action against the surety of a defendant who had been nnnhamV 
 taken on a warrant, and obtained an adjournment, at the expira- ? John" Key 
 tion of which he appeared by attorney, the question was, whether 3 ' Ut 
 this was a good appearance, and within ttie undertaking of his 
 bail. The court said: We think the appearance mentioned in 
 this section (sect. -1.) must mean personal appearance. Where 
 the act gives the process by warrant, it is where either the de- 
 fendant is without a family or a freehold, or where the plaintiff 1
 
 JUSTICES COURTS. 
 
 Si-bring v. 
 Whfrclon, 
 8 Johns. Rep. 
 458. 
 
 Seers T. 
 
 Grandy, 
 
 1 Jubos. Rep. 
 
 514. 
 
 Hemstract r. 
 
 Youngs, 
 
 Jolms. Rep. 
 
 364. 
 
 Eastonv. 
 
 Coe, 
 
 2 Johns. Hep. 
 
 333. 
 
 is a non-resident ; and in the latter case the trial is to be -within 
 three days, and the. giving security is not required. The war- 
 rant is intended, except in the single, case of a non-resident plain- 
 tiff, as a means to prevent the escape, of the defendant, and as a 
 security for the plaintiff's demand ; if then the defendant, on 
 whose person the plaintiff has a lien, can appear hy attorney, he 
 frustrates the plaintiff's demand. We have a right to consider 
 the. word appearance, in reference to the rights of the plaintiffs, 
 and with a view to give effect to the intention of the legislature, 
 as a personal appearance. 
 
 "Where a defendant was sued by warrant, and asked for an ad- 
 journment, which the justice refused to grant unless he would 
 make oath that he wanted some material witness, it was held 
 that the justice was bound to adjourn, on the security being ten- 
 dered, without requiring an oath of the want of a material 
 witness. 
 
 If an attorney of the defendant offer to make an affidavit of 
 the absence of a material witness, and request an adjournment 
 for that reason, the justice ought to receive it, unless some spe- 
 cial cause to the contrary be shown. 
 
 On the return of the summons, the parties appeared and joined 
 issue, and a venire was issued at the instance of the plaintiff, and 
 the cause adjourned fo'r six days ; at the expiration of that time 
 the parties appeared, and the defendant demanded an adjourn- 
 ment, which the justice refused to grant, unless the defendant 
 would pay the constable's fees on the venire, and the juror's fees, 
 which the defendant refused to do : the cause was tried, and a 
 verdict found for the plaintiff. Per curiam. There is nothing 
 in the return from which we can infer that the first adjournment 
 was at the defendant's request; and when the second adjourn- 
 ment was moved for by the defendant, we are to presume that 
 he offered to comply with the conditions requisite to entitle him 
 to an adjournment under the fifth section of the act, as the jus- 
 tice put his refusal to grant the motion on a different ground, and 
 one which he was not authorized to take. The defendant must 
 have been entitled to the adjournment as of right. There does 
 not appear to have been any delay or want of due diligence on 
 his part which could bring his case within the decision of Powers 
 v. Lockicood, (cited infra.) 
 
 The defendant was sued by warrant : and at the request of the 
 defendant, with the consent of the plaintiff, the cause was ad- 
 journed to another day, when the parties appeared, and the de- 
 fendant requested a second adjournment, on account of the ab- 
 sence of a material witness, and offered to make oath of that 
 fact. The plaintiff (.ejected to the adjournment, on the ground 
 that the defendant's witness lived out of the county, which was 
 admitted. The justice thereupon refused to adjourn the cause a 
 second time. Per curiam. The defendant below applied for an 
 iM.'journraent oa account of the o.bynice of e -Material
 
 JUSTICES COURTS. 245 
 
 Tins is the special case stated in the 8th section* of the act 
 which allows an adjournment for three months. It is not the 
 ruse provided for hy the 7th section, which allows either party, 
 without showing cause, to require an adjournment not exceeding 
 twelve days, on giving security. The time there mentioned can- 
 not be supposed to apply to the case of an absent witness ; for 
 why allow an adjournment of three months in all cases, except 
 when the defendant is taken on a warrant, and then only for 
 twelve days ? The 7th section of the act does not reach the spe- 
 cial case of the absence of a material witness. That the witness 
 lived out of the county could make no difference, for the defend- 
 ant might procure his attendance in season, and was to take his 
 chance for that. As this was the only objection, we are to pre- 
 sume that the defendant was ready to give the requisite secu- 
 rity. The refusal to adjourn the cause was then a denial of 
 right, and the judgment below must be reversed. 
 
 Where the justice has once adjourned the cause at the request J t wniend T> 
 of the defendant, he cannot afterwards grant a second adjourn- 3 Johm.Rep. 
 tnent at the request of the same party. 
 
 Johnson declared against M'Nutt in the court below ; and stated M'Nuttr. 
 
 Johnson, 
 
 in his declaration, that in October, 1807, Nathan Reynolds was 7 Johns. Hep. 
 brought before J. C. a justice of the peace for Montgomery coun- 18 ' 
 ty, on a warrant to answer to the plaintiff below in a plea of tres- 
 pass on the case, to his damage twenty-five dollars; that after 
 joining issue before the justice, Reynolds demanded an adjourn- 
 ment of the cause until the 3d of October, 1807, and offered 
 AI'Nutl as bail, who became bail, and undertook that Reynolds 
 should appear and stand trial, and on default thereof undertook 
 to pay the debt and costs. That Reynolds appeared, but before 
 judgment was rendered, departed from the court, and absconded 
 from the county; that judgment was given in that suit for the plaintiff 
 for seven dollars, besides costs ; that execution was issued and re- 
 turned ; that neither the goods nor the body of Reynolds were to be 
 found ; where upon an action accrued, kc. fee. The judgment 
 against Reynolds, and the execution, and the return thereon, were 
 duly proved. A witness testified that he was present at the trial 
 between the plaintiff below and .V. Reynolds, and heard the de- 
 fendant below say that he was bail for Reynolds', that he should 
 appear and stand trial on the day to which the cause was ad- 
 journed; and that Reynolds did appear, but departed the court 
 before the trial was determined. Upon this evidence a judgment 
 was given for the plaintiff below. Per curiam. The judgment 
 1s erroneous. By the 7th section of the twenty-five dollar act,; 
 
 * This case was decided under the act of 1801, SPSS. .?-'i, c. 165. 
 Kent and Radcliffe's edition, vol. 1 p. 491. In th.s particular, the lan- 
 guage o f this, and the act of 1813, are the same. 
 
 t See preceding note.
 
 246 JUSTICES COURTS. 
 
 (sess. 21, c. 1 05.) to entitle the defendant to an adjournment, 
 under the circumstances existing in the original case, the defen- 
 dant is to give sufficient security to appear on the day, &c. and 
 in default of such appearance, to pay the debt and costs, if 
 judgment should be given against such defendant. The particular 
 kind of security is not designated ; but it must be either a recog- 
 nisance taken by the justice, or at least a written engagement, 
 otherwise it comes directly within the statute of frauds; here there 
 appears to have been neither. 
 
 FinkT.Haii, An application for an adjournment is too late after the jury 
 43r l)ni ' Rt:p ' h ave heen empirnnelled. For the trial of the cause must then be 
 
 deemed to hav commenced. 
 
 rowers r. After issue joined, the cause was adjourned on the motion of 
 
 9 JoiinrKcp. ^ e defendant, and a jury summoned. On the return of the ve- 
 133. nire, the defendant's attorney moved for an adjournment on the 
 
 ground of the absence of two material witnesses, and offered to 
 make the requisite oath, and give the security ; but the motion 
 was denied by the, justice. Per curiam. The only question in 
 this case is, whether the defendant made his application in sea- 
 son. One adjournment had already been made at his request, 
 after issue was joined. It does not appear that, during the period 
 of that adjournment, the defendant took any steps to procure the 
 attendance of the witnesses he afterwards alleged that he 
 wanted. This application must be made in due season. It 
 would clearly be too late, if it was not made until the jury had 
 been sworn and the plaintiff had entered upon his proof. There 
 must be some reasonable limitation to the time of the applica- 
 tion, and of which the court is to judge. After one adjournment 
 at the request of the defendant, to enable him to prepare for trial, 
 it would be vexatious to allow him another, on the usual affidavit, 
 and without showing any diligence in the mean time. The first 
 adjournment prayed for by the defendant was for time to prepare 
 for trial, and was a substitute for an adjournment on affidavit and 
 security. Both the witnesses, whose names were given by the 
 defendant, lived within four miles of the court. The defendant 
 is always entitled, as of right, to one adjournment to procure tes- 
 timony, on making the requisite oath ; but if he neglects to take 
 out subptenas, or make any effort to procure his witnesses after 
 issue joined, and after an adjournment on his own motion, he 
 ought not, in reason and justice, to be entitled to a farther adjourn- 
 ment, without some special cause shown for the non-attendance 
 of his witnesses, or for the adjournment. On the adjourned day, 
 after issue, the. plaintiff is supposed to appear with his proof, and 
 the jury to appear upon the venire ; and it would be an abuse for 
 the defendant to be entitled, as of course, to another adjourn- 
 ment to procure his testimony, without having taken any one 
 step towards it in the mean time, or shown any one reason why 
 he has omitted to do it. The statute could not have been in- 
 landed to help a party in his wilful negligence. In the case of
 
 JUSTICES COURTS. 247 
 
 Easton v. Coe, (supra) it was to be presumed efforts had been 
 made during the first adjournment to procure the witness ; for it 
 appeared on the second application, that the witness lived out of 
 the county. It was assumed in that case, that the application was 
 made without any imputable neglect, for none appeared or was 
 pretended; but here the court cannot avoid seeing that the appli- 
 cation was founded on gross neglect, and it was therefore properly 
 overruled, as too late, without some special cause shown. 
 
 But, in another case, after issue joined, the cause was adjourned, **?' k * d T - 
 on motion of the defendant, for upwards of thirty days. At the njohm. 
 day fixed by the adjournment, the defendant, on proving due dili- ^P- 442 - 
 gence in subpoenaing his witnesses, and making oath that a ma- 
 terial witness, who had been subpoenaed, did not attend, moved 
 for a second adjournment : no objection was made to the affidavit, 
 nor was any negligence imputed to the defendant; but the justice 
 refused to grant the adjournment, unless the defendant would pay 
 all the extra costs, which he refused to do, and left the court, 
 and judgment was given for the plaintiff; and the judgment was 
 reversed on certiorari. The court said : it appears upon giving 
 security, and showing due diligence and special cause, a defendant 
 may be entitled to a second adjournment. Whether a justice's 
 court has a right, in any case, to exact costs upon granting a 
 favour to a party, it is not now necessary to decide : but under 
 the circumstances of this case, the justice had no right to annex 
 such a condition, because the defendant, on good grounds, claimed 
 it as a right. 
 
 An improper adjournment amounts to a discontinuance of the Gamagev. 
 ca^ise : but where a justice has a discretion as to adjourning a p, ai*". 1 '' 
 cause, nothing but an abuse of that discretion will be regarded as S } J''f on ' D 
 
 8 Johus Hep. 
 
 error. 409. 
 
 By the return of a certiorari, it was stated that, on the day ap- c'riuiiiger. 
 pointed to appear, the justice could not attend, and sent a note, but 4Johnj.Rep. 
 without signing it, to the place where the court was to be held, 
 adjourning it. The parties afterwards appeared, and remained 
 some time, but the justice not coming, they went away. Per 
 curiam. An adjournment made by the justice while absent from 
 the place where the court was appointed to be held, and by a 
 note in writing, without, his signature, was clearly not an adjourn- 
 ment of which the parties were bound to take notice. The cause 
 was consequently discontinued and out of court. 
 
 Where a justice adjourned a cause, on the suggestion of the Proudfitr. 
 plaintiff, that the defendant had agreed to an adjournment, and on 
 the affidavit, of the plaintiff of the absence of a material witness, 391 * 
 without showing due diligence to procure his attendance, it was 
 held that the justice had not an unlimited discretion to adjourn at 
 the suggestion of the plaintiff, and that such adjournment was a 
 discontinuance of the cause. 
 
 An adjournment for more than six days cannot be objected to 
 as erroneous by the party at whose instance it was granted. 
 
 Rpp. 166.
 
 248 
 
 Dunham r. 
 
 Heyden. 
 
 7 Johns. Rep. 
 
 381. 
 
 Carleton v. 
 Willonghby, 
 
 9 Johru.Kc'p. 
 
 im 
 
 Hill T. 
 
 Downer, 
 
 11 Johns. 
 Ktp.461. 
 
 Kifmore r. 
 
 Sudam, 
 
 ? Johnj. Rep. 
 
 Ml 
 
 JUSTICES COURTS, 
 
 If the opposite party appear on the day to \vinch the cause 
 adjourned, and go to trial, it is a waiver of any irregularity in the 
 adjournment. 
 
 An adjournment was granted at the request of the defendant, 
 and at the expiration of the time the parties appeared, and tht 
 plaintiff requested an adjournment, on account of the non-attend- 
 ance of a witness who had heen subpoenaed. The defendant 
 objected, but the justice granted the adjournment on the plain- 
 tiff's oath, and giving security. The cause was afterwards tried 
 by jury, and a verdict found for the plaintiff. The court 
 whatever objection there might have been to the second adjourn- 
 ment on the strict construction of the act, the granting it was rea- 
 sonable and just, under the circumstances of the case, and the 
 objection was waived by the appearance of the defendant after- 
 wards on the day of adjournment, and going to trial on the merits. 
 
 If the defendant, on being refused an adjournment, voluntarily 
 confess judgment, he cannot afterwards object to the refusal of 
 the adjournment, but will be deemed to have waived the irregu- 
 larity. 
 
 The right of a justice to adjourn a cause on his own motion, 
 must be claimed and exercised, if at all, at the return of the pro- 
 cess ; and if the first adjournment is made by consent of parties, 
 the justice cannot adjourn the cause a second time on his own mo- 
 tion ; but if the parties consent to the second adjournment ; or if. 
 being present, they make no objection to it, it cannot afterward: 
 be taken advantage of. 
 
 VIII. Stt-off. 
 
 " If the defendant, in any action to be brought by virtue of thtf 
 act, hath any account or demand against the plaintiff, be may 
 plead and set off the same against the debt or demand of the 
 plaintiff ; and if any defendant shall neglect or refuse so to do, 
 such defendant shall forever thereafter be precluded from having 
 any action against the plaintiff to recover the same, or any part 
 thereof : Provided always, That where the balance found to b? 
 due to the defendant shall excerd twenty-live dollars .in such case 
 the justice shall enter judgment against the plaintiff for costs, and 
 the defendant shall not be precluded from recovering the same ac- 
 count or demand against the plaintiff in any court of record having 
 cognisance thereof : And provided, That nothing herein contained 
 shall authorize or require any defendant to set off any damages 
 arising or accruing from any trespass done or committed by the 
 plaintiff to the defendant, or any other demand, except such only 
 as may arise on contract, either expres* or implied by law, but 
 this exception shall not exclude any written evidence of debt, 
 either with or without seal." s. 6. . 
 
 The law relating to set-off in a justic >'s court is in some impor- 
 tant respects different from that established in other courts; there
 
 JUSTICES COURTS 349 
 
 o set-off is permitted, hut not required ; but here the defendant, if it 
 :-xisls, must make it, or submit to losing his demand ; so too in a jus- 
 tice's court, a set-off may be made in an action for unliquidated da- 
 mages, and unliquidated damages may also be set- off, whereas it is 
 otherwise in the superior courts. The distinction being so strongly 
 marked, it will in a great measure be unnecessary, and it may per- 
 haps be unsafe, to go beyond those decisions which have express- 
 ly been made on cases arising in justice's courts. It will, however, 
 he proper to observe, that the defendant, an far as regards his set- 
 off, becomes an actor in the cause, and is bound to support it in 
 the same manner as if he had brought an action, and declared 
 upon it, and the plaintiff likewise may make every defence which 
 he could have done if the action had been against him by the de- 
 fendant for the demand which is the subject of his set-off ; thus 
 i.he plaintiff may give in evidence a release, that the defendant's 
 demand was barred by the statute of limitations, kc. 
 
 In an action before a justice, the defendant pleaded, that the plain- M-Cumber v 
 tiffs ought not to have or maintain their action against him, because I'johi'is Her 
 he had before that time commenced an action against the plain- i0 
 tiffs before another justice, in the investigation of which, the same 
 question then before the jury had been made before the other 
 justice, and that the damages claimed by the plaintiffs, ought to 
 have been set-off by them in the former suit. The plaintiffs re- 
 plied, that their demand was not exhibited before ths other jus- 
 tice, and that heing*for uncertain damages, it could not have been 
 set-off in that action. The justice, after hearing the parties, and 
 their evidence, decided that the plaintiffs ought not to he barred 
 by means of the premises, on which further evidence was introdu- 
 ced. The same pleas were again stated and argued before the 
 jury, who found a verdict for the plaintiffs for the damages demand- 
 ed. KENT, Ch. J. Several objections were raised to the validity of 
 the proceedings below, but it will be sufficient to notice one that 
 goes to the merits of the case. The defendant pleaded a former 
 suit by him against the plaintiffs in bar, and they replied that their 
 demand against him being for uncertain damages, could not be 
 set-off in the former suit, and the justice overruled the plea. 
 The existence of the former suit was not put in issue, but admit- 
 ted by the replication, which also admitted that the demand for 
 which the present suit was brought, had not been pleaded or set- 
 off in the former suit. The simple point, therefore, is, whether it 
 ought not to have been set-off. The words [of the act] are very 
 broad. It is his account or demand that is to be set off. In Eng- 
 land, unliquidated damages cannot be set-off, for the set-nff 
 statutes speak only of mutual debts. Our statute receives a similar 
 construction, for itappiies only to persons dealing together, and in- 
 debted to each other. But I think that the act in question re- 
 quires a more extensive construction, and that the word demand 
 here, must apply .it least to ail matters arising upon contract. 
 ct is very impqralive, and intended to prevent cross suits, 
 
 r si i
 
 v50 JUSTICES COURTS. 
 
 and a course of petty and vexatious litigation, in respect t- 
 mands within the jurisdiction of a justice. If is not necessary at 
 present to say, whether the word demand, in the act, will reach to 
 every matter within the cognisance of a justice, nor do I mean 
 to be understood to that extent. But as to demands- arising upon 
 contract, I am of opinion they ought to be pleaded as a set-off, and 
 consequently that the justice determined erroneously in this case. 
 The return states, that the same pleas were afterwards introduced 
 and argued before the jury, but we are here to understand that 
 the pleadings still included the same admissions of the parties, 
 and that the fact of the existence of <he former suit, and of the 
 mission to set-off, was not controverted. The jury, therefore, by 
 their verdict, confirmed the erroneous decision of the justice, 
 and for this cause I think the judgment below ought to be re- 
 versed. 
 
 3m* k h 7 ' ^' r t ' ie pf amt '8" belowv signed a writing, by which, for value re- 
 
 10 Johns. ceivcd, he promised to paint the house of L., the defendant, in a par- 
 -R.tp.2iO. ticular manner specified in the agreement; and B. indorsed oi> 
 the paper a promise that the agreement should be executed in a 
 workmanlike manner, and S. brought a action of assumpsit 
 against L. for work and labour, &c. in which L. pleaded the 
 agreement by way of set-off, and claimed damages for its non- 
 performance. The defendant offered the agreement in evidence, 
 which was objected to by the plaintiff, on the ground that the 
 agreement did not appear to be between the plaintiff and defen- 
 dant, but that it was between the plaintiff and B. : on ceriiorari, the 
 court held that the agreement or guaranty of B. might be set off 
 in the action between S. and L. 
 
 eobb T. Cur- In assumpsit. The plaintiff declared that the defendant had 
 g'johns. Rep. sometime before sued him before another magistrate, and that 
 *' 6 - before the return day of the summons he settled with him, and 
 
 paid him three dollars in full, and the defendant promised to go 
 to the magistrate and pay the costs ; but that instead of doing so, 
 he appeared at the return of the summons, and obtained a judg- 
 ment for 25 dollars against the plaintiff. The declaration was 
 proved, and judgment was given in favour of the plaintiff for 25 
 dollars. Per curiam. The plaintiff below was not barred oi 
 his action, for not having set off this demand in the suit so carried 
 on against him in defiance of the agreement. The set-off in a suit, 
 before a justice, of any counter demand or account, must mean, as 
 in cases of set-off in other courts, accounts or demands existing 
 nt the commencement of the suit, and the agreement here w r as sub- 
 sequent, and so could not have been a legal set-off. It is a settled 
 rule, that no matter of defence, arising after action brought, can 
 be pleaded in bar, or as a set-off. 
 
 < nrprntei v. So, where a defendant, after a writ issued against him, of which 
 ?johrM. eU> ^ e ua( ^ not i ce anu " before he was actually arrested, purchased a 
 Cas. 145. promissory note made by the plaintiff, which was endorsed to him
 
 JUSTICES COURTS. 251 
 
 50V the avowed purpose of setting it off against tho plaintiff's de- 
 mand ; it was held that the set-off was not admissible. 
 
 A set-off is not admissible in an action for a tort; as in tres- Ketierr. 
 pass on the ase, for not returning and misusing certain chattels, ^aT** 
 eternised or let by the plaintiff to the defendant, or in trespass, or *<-T- < 
 trover, which are actrons for torts ^ consequently, if the defendant Alien v. Hor- 
 be sued in trespass, and afterwards in assumpsit by' the same 7 Joiini. Rep. 
 plaintiff, it is no objection to his making a set-off in the latter ac- ^^ Va 
 tion, that it existed at the lime ofthe former suit ; nor will a plea Davis, 
 of a former action, in which the now plaintiff was defendant, and R^p.'m'. 
 might have set-off his demand, be valid, if that former action 
 were for a tort. 
 
 A cause of action arising from tort, cannot be eet off in an ac- Deanv. AI- 
 tion founded in contract. sTohm. Rep. 
 
 In an action of assumpsit on a promissory note, the defendant 3( '9- 
 admitted ihe note in question, and proved that he had before sued Ea'rie, y 
 one Johnson, before another justice, and recovered against hkn, * J h n s - Rc F' 
 and that Johnson was then rh-e owner and possessor of the same 
 note, and did not set it off pursuant to the statute. The plaintiff 
 proved that in the suit against Johnson, the note was offered as a 
 set-off by him, and the justice rejected it, -on the ground, that 
 previous to the transfer of the note by the plaintiff to Johnson, and 
 before the same was du, the plaintiff had agreed to receive pay- 
 ment of it in ashes. The plaintiff also proved, that before and 
 since the commencement ofthe suit, (he defendant had confess- 
 ed that he justly owed the amount of the note, and requested the 
 plaintiff to take payment in blacksmith's work. Per curiam. 
 The former judgment against Johnson, while holder of the note 
 in question, was no bar to the plaintiff's suit, because, under the 
 special agreement to take payment of the note in ashes, 
 the note was not negotiated after it was due, without being 
 subject to that agreement ; and it was properly rejected 
 when offered as a set-off by Johnson. It was returned therefore 
 to the plaintiff below, and the defendant, after such return, had 
 confessed that he owed it to the plaintiff. Having objected to its 
 admissibility as a set-off by Johnson, he cannot now take advan- 
 tage of that act, (even if *rrorteous,) to defeat a recovery alto- 
 gether on the note. 
 
 If the plaintiff do not object to the set-off at t1* Time of plead- Kii^v. rul- 
 ing or giving notice of it, he cannot afterwards except to it. s'c'aine'i 
 
 In an action of assumpsit, the defendant produced a running ac- *\f.P- 152 - 
 eount against the plaintiff, amounting to 229 dollars and .34 cents, Lai-month, 
 by way of set-off, which the justice -overruled, hei-Huee it was not ^Johus. Hep- 
 fully substantiated. A motion was then made for a nonsuit, on Smitiiv. 
 the ground that the matters exceeded the justice's jurisdiction ; but 
 ihe objection was overruled, and a verdict was found , for the 
 plaintiff. Per cnriam. The defendant was hound to set-off his 
 account, and if h sum total proved to the satisfaction of the jus- 
 tice amounted to 200 dollars, fac had no jurisdiction, and ought to
 
 ,;5S JUSTICES COURTS. 
 
 have nonsuited the plaintiff. He says the account was not fully 
 substantiated, and so he rejected it. If it was substantiated to 
 any sum less than 200 dollars, it ought to have been received and 
 submitted to the jury, so that i!' the balance found for the defen- 
 dant exceeded 25 dollars, judgment mighthave been entered against 
 the plaintiff*. To overrule the whole account would destroy it 
 forever, if this judgment remains in force. Judgment reversed. 
 .prjMut v. The defendant must set-oif the very first opportunity he has for 
 n.iuus |_j lat p,, r p OSei So where two actions were commenced by the 
 
 '.fohiis. Rep. l ' 
 
 8. plaintiff by summons, both returnable at the same hour, and before 
 
 the same justice, in one of which suits the plaintiff declared for 20 
 dollars, to which the defendant made no defence, and judgment 
 was given against him, and the plaintiffimmediately after declar- 
 ed in the second action for ti dollars, to which the defendant plead- 
 ed a set-off, which the justice refused, the judgment below was 
 affirmed ; and the court said, that by omitting to set-off his demand 
 in the first action, the defendant lost his right of set-off, and his 
 demand was forever extinguished, and that the justice was there- 
 fore right in refusing the set-off in the second suit. 
 
 M-Kemsr. Where the defendant, who was sued before a justice on a note, 
 
 littvdlHT 
 
 3 Jobui. Rep. neglected to set-off a demand for damages for the breach of an 
 agreement of the defendant to remove his goods from a store, 
 though he had not then paid or suffered any actual damages, but 
 the agreement was broken ; it was held that he could not after- 
 wards (having been afterwards obliged to pay a certain sum by 
 way of damages to the person to whom he had sold the store, in 
 consequence of the plaintiff's non-performance of his agreement) 
 sue for or recover the damages for the breach of the agreement. 
 uiU'w^/d '^' ie defendant ought either to plead his set-off, or give notice of 
 
 '.ojohm. ' it at the joining of issue, and not keep it in reserve and secrecy 
 Uep. 108. unt jj t | ie tr j a | nas commenced ; fur this is calculated to surprise 
 the plaintiff, and prevent him from being prepared to controvert 
 the account or demand so offered as a set off ; such conduct is calcu- 
 lated to work great injustice, and is contrary to the meaning of the. 
 act. And where the de-fondant delayed his set-off until the trial 
 commenced, which being then objected to, was admitted by the 
 justice, arid judgment given for the defendant, the judgment was 
 reversed. 
 
 IX. Pica of a former action. 
 
 A plea of a former action frequently occurs in a justice's court, 
 and is proper, eillicr where a former action had been brought by 
 the same plaintiff, ngainst the same defendant, for the same cause 
 of action, in which a verdict was found, or a final judgment given 
 for one or the other of the parlies, or where a former action had 
 been brought by the pres;ent defendant against the now plaintiff, 
 in which the latter having an existing demand against the then 
 plaintiff, ueglcc-lcd to sot it off; r.nd such plea is a bar to t! 1
 
 JUSTICES COURTS. 253 
 
 *ion. A pica of a former action is, in the first case, founded on 
 principles of universal justice, and is common to all courts; in 
 the latter case, it is peculiar to a justice's court. 
 
 In personal actions, a recovery upon demurrer, confession, or Com. Dip. 
 verdict, &c. is a bar to every other personal action forever, and Actiot > CK. 3.) 
 therefore the party has no remedy but by reversing the judg- 
 ment in error ; and it makes no difference, that the second action 
 is of a different nature from the former: as a recovery in debt is 
 a bar in assumpsit upon the same contract, and t contra ; or a re- 
 covery in trespass is a bar in trover for the same goods. 
 
 So, a judgment for the defendant in trespass de bonis ajportatis, 
 is a bar to an action of assumpsit to recover the price of the 
 same goods. What is meant by the same cause of action, is where 
 the same evidence will support both the actions, although they 
 happen to be grounded on different writs. 
 
 So, where in trespass quare clausum fre.git, and for cutting and Johmonv. 
 carrying away wheat, before a justice, the defendant proveda former g Jo'tms. Bep 
 suit, by the same plaintiff, for wheat cut and carried away, in which 383> 
 trial there was a verdict and judgment for the plaintiff, and the jus- 
 tice overruled the plea, and judgment was given below for the 
 plaintiff, the judgment was reversed. The court said, the former 
 .-uit was for cutting and carrying away wheat, and was for the 
 same cause of action, and though the former action was denomina- 
 ted by the justice an action of trespass on the case, and this was 
 trespass, it did not alter the application of the rule, which depend- 
 ed not upon the identity of action, but upon the same proof in 
 both cases. 
 
 In an action of trover before a justice for six hundred bushels CurtUv. 
 of coal, it was proved that there had been a former trial in a suit ^j"hDj Rep 
 in trespass for damages, for cutting the timber and making it into " 8 - 
 coal ; and that on such former trial, the value of the timber cut, 
 and a counter demand for the coal, were fully submitted to the 
 jury, and it was held to be a sufficient defence, that the demand 
 for the coal had been once submitted to a jury, when the plaintiff 
 was sued in the former action of trespass for cutting the timber, 
 and that that jury had passed upon the present claim. 
 
 In an action before a justice for work and labour, in burning flroeUway v 
 three hundred bushels of lime, the defendant pleaded non assump- *TJtw.s.ti< 
 sit, and gave notice that he should prove that the plaintiff had - I0 - 
 before sued him for the same matter, and recovered ; and it was 
 proved to the jury that the plaintiff, in the former trial, declared on 
 a promissory note, and also for the same work and labour, and that 
 the jury in that cause, after hearing the allegations and proofs of 
 the parties, found a verdict for the plaintiff for the amount of the 
 note. One of the jurors in the former cause testified, that the 
 jury found a verdict on the note, and had nothing to do with the 
 lime. The jury in the present suit found a verdict for the plain- 
 fill'. Per curiam. The plea was substantially of a former trial 
 for the same cause, and was a good bar. for the plaintiff declared
 
 254 JUSTICES COURTS. 
 
 each time for the same cause of action. It was not shown that the 
 plaintiff* abandoned the charge for burning the lime before or at. 
 tbe trial. That charge, of course, went to the jury on th> 
 trial, and took its chance with them. If they did not allow it, for 
 want of sufficient proof, or for any other cause, it was the plain- 
 tiff's misfortune. The verdict must be considered as conclusive 
 between the same parties in regard to the same matter; other- 
 wise it would he in effect permitting one jury to review the de- 
 cisions of another. If the plaintiff at the first trial had not chosen 
 to hazard a verdict, he should have entered a nolle prosequi on 
 the chargR, or consented to a nonsuit. As it was made a part of 
 the plaintiff's demand, and submitted to the jury, it was their in- 
 dispensable duty to pass upon it. It would be dangerous to per- 
 mit jurors thus to separate the plaintiff's demand, and give a ver- 
 dict for such parr only as they pleased, 
 iiwmv. j n an Action before a justice for the defendant's carelessly 
 
 lvliO\. J * 
 
 n> Johns. leaving salt in the public road, by which his steer was killed ; for 
 KtJI ' 3C5 ' breaking a plough, fee. the defendant pleaded, that all the charges 
 in the plaintiff's declaration, except the last, had been submitted 
 to a former jury, and set up that trial in bar. The plaintiff 
 offered to show that the jury, on the former/trial, did not take the 
 charge, for the loss of the steer, in consideration ; but it appeared, 
 that tho former jury, after retiring to consider on their verdict, 
 talked some time about the steer. A verdict was given for the 
 plaintiff in this suit. Per curiam. The former judgment, as far 
 as it respected the demand for the steer, was a bar to the present, 
 suit, for the same cause. It appears that the plaintiff had ex- 
 hibited that demand to a jury in a former suit, and that jury took 
 it into consideration, but gave no damages on account of that de.- 
 mand. for want of sufficient proof. As the demand was not aban 
 dontd by the plaintiff before or at the trial, but submitted to the 
 jury, the former verdict is a bar. As, then, improper evidence 
 was given to the jury in this suit, and as we cannot say how much 
 of the verdict embraced the demand for the steer, the judgment 
 in this view must be considered erroneous. 
 
 >>u ,. r v A verdict in an action before a justice is a good bar, although 
 
 ',-, the justice has never rendered any judgment upon it; as when: 
 the jury gave a verdict of no cause of aclion, it was held that this, 
 though informal, was substantially a verdict for the defendant, on 
 which the justice was hound to give judgment, and was a bar to 
 another action for the same cause. 
 
 HPSS x-. So, where a cause has been tried before a justice, without a 
 
 ffjoims"' .J |n T am ' fi na J'y submitted to him, it is a good bar, although 
 Hrp. 437. judgment should never be given. 
 
 jnnes v. j n a n action for a deceit in the sale of a certain improvement 
 
 s'.Toht'slp.cp. or patent right, before a justice, the defendant set up in defence, 
 
 4i3> a. former trial and judgment in an action brought by him before a 
 
 justice. again?t the plaintiff, on a promissory note given for the 
 
 I'?. inor^y, in which suit the present phuntiff set upthede-
 
 JUSTICES COURTS Ii55 
 
 n it in the sale as a defence against the note, and the same w;ts 
 considered by the justice, and a judgment given for the plaintiff" 
 for the. amount of the note : it was held that the first trial and 
 judgment were a complete bar to the second suit for the deceit. 
 
 Where a suit was brought on a note to A. or bearer, and the de- Huu-.iiiugs v. 
 feudant pleaded a former suit on the same note brought against 4^1,',,,. Rcp . 
 him by A., and a judgment in favour of the defendant, it was 222. 
 held that, as the former action was not between the same parties as 
 the present suit, it was not a bar ; and that to render the former 
 judgment a bar, it ought at least to have been shown, that the 
 former suit was by the real owner of the note. 
 
 Where to a plea of a former action, commenced by summons wentworth 
 by the defendant against the plaintiff, the plaintiff replied that his ^j*,"" 1 ' 
 (the present) suit was by warrant on oath, and the -justice decided Uep. 238. 
 that as the warrant was issued on oath, and the plaintiff still in- 
 sisted that he was afraid of losing his debt if delay was made, the 
 plaintiff ought not to be nonsuited, and overruled the plea, it was 
 held that the plea was a sufficient bar, and whether the suit was 
 hy warrant or summons could make no difference. 
 
 In an action before a justice, the plaintiff declared in substance riatnerr. 
 that he had sued the defendant in a former suit, and that one of "'John,. 
 the items of his demand, amounting to seven dollars, was confess- Kci>. sso. 
 ed by the defendant, and the other disputed ; and that the justice 
 by mistake, in giving his judgment, omitted to allow the seven 
 dollars. It was to recover this item that the suit was brought. 
 The plaintiff proved his declaration, and the defendant objected 
 to the plaintiff's recovery, on the ground of the former trial. The 
 objection was overruled, and a verdict was found for the plain- 
 tiff; but the judgment was reversed. Per curiam. The cause of 
 action has once been tried, and it would be a dangerous principle 
 to allow a judgment to be. opened, and the cause of action again 
 tried, by another justice, on the ground of a mistake in the for- 
 mer trial. If such mistake was made, it cannot be corrected in 
 this way. 
 
 A nonsuit in a former cause is no bar ; so, where the defendant Youiev. 
 pleaded that the plaintiff had before sued him for the same cause lo^johns?' 1 ' 
 of action, and that the costs of the nonsuit were still unpaid, 1U P' 361 - 
 and the justice for that cause dismissed the action ; the court said, 
 that 'he former nonsuit was no bar to the present action, uor had 
 the justice any right to dismiss the action because the costs of the 
 fmi.-er suit were unpaid. The higher courts will sometimes stay 
 proceedings in a suit until the costs of a former suit for the same 
 matter arc paid ; but this is done on a rule to show cause, and in 
 the exercise of a large and liberal discretion. But no such power 
 or discretion can be assumed by a justice's court. 
 
 The mere pendency of a suit before another justice is a good Douglas v. 
 bar ; as where A. sued B., and 13. immediately after sued A., and fjo^s.^ep. 
 A. in the latter actio-i ph ;iii;v.l that he had brought an action 2S -- 
 against B. before another ju?l;cf. and that thft summons had been
 
 JUSTICES COURTS, 
 
 duly served on B. prior to the otlier, the plea ivao held a sufficient 
 bar. 
 
 It has been stated that it was a good plea in bar, that a former 
 action had been brought by the present defendant against the now 
 plaintiff, in which the latter having an existing demand against 
 the then plaintiff, neglected to set it oft'. This depends on tin; 
 sixth section of the act, which declares, that if any defendant shali 
 neglect or refuse to set off his account or demand, he shall forever 
 thereafter be precluded from having any action against the plain 
 tiff to recover the same, or any part thereof. 
 
 Lawrence v . If the set-off, which is the subject of the present suit, was im 
 /john^Rep. properly rejected in the former suit, that suit is, notwithstanding. 
 I29 - a good bar, as long as it continues unreversed. 
 
 Dcanr. If the subject of the present action could not legally have been 
 
 *Johns.Rep. se * ^ nl tne former one, it will not be a bar, as if the present, 
 39o. action is for a tort, and the former one was on a contract ; so too 
 
 Hopkins. if the justice in the former action rejected the set-off because il 
 violins. Rep. cou ]d no t legally be made, the demand which was offered as a 
 
 set-off not being then actually due, it will not be a bar. 
 
 white v. A. being arrested at the instance of B., on a charge of having 
 
 ^Tohns Rep taken B.'s bridle, to avoid further trouble and expense A., on the 
 I3 *' demand of B., gave him a promissory note for twelve dollars ; 
 
 and B. promised that if A. would ever show that he had not had 
 the bridle, or that he was innocent of the charge, or if the bridle 
 should be found, he would give up the note, and pay A. for his 
 trouble. B. sued A., before a justice, on the note, and recovered 
 judgment for the amount, which was paid by A. A. afterward? 
 brought an action before another justice, against B., to recover 
 back the money, on the ground that he was innocent of the 
 charge, and that B. had got his bridle again, without the know- 
 ledge or assistance of A., and B. pleaded the former action in bar, 
 which was overruled by the justice, but the court held that the 
 neglect of A. to set off his demand was a sufficient bar. The 
 grounds on which he recovered in this suit would have been a 
 good defence in the former suit, and if the ph'mliffs were not in 
 a situation at that time to make out tlvtt defence by pivof, it was 
 their misfortune. The money having been collected under a re- 
 gular judgment, cannot be recovered hack in a new suit, upon the 
 allegation that evidence has since been discovered of a defence 
 which existed before the judgment. 
 
 Dcxmrv. The former trial must be pleaded, or given notice of, at tire 
 
 Mazen, time of joining issue, and it is too late after pleading the general 
 
 30 Johns. 
 
 Hep. 246. issue to set up that defence at the tnaf. 
 
 Fowler v. So, where the defendant pleaded the general issue, and be.ing 
 
 Jonns/Xep. asked if he had any account or demand to set off, answered that 
 m > he had none, but at the trial offered to prove a former action ; 
 
 but the justice rejected the evidence, and a verdict and judg- 
 ment were given for the plaintiff: the judgment was affirmed. 
 The court said, that the defendant having omitted to plead or
 
 JUSTICES COURTS. 057 
 
 give notice of the former tn'al and judgment, was precluded from 
 giving evidence of it at the trial. It would produce surprise on 
 tin 1 , part of the plaintiff, and injustice, if (hi- defendant wore al- 
 lo'ved to set up at the trial special matter in bar, of which no no- 
 tice had been previously given to the plaintiff'. 
 
 As to the evidence requisite to support a plea of a former ac- 
 tion, vide post, XIX. 
 
 X. Plea of title. 
 
 " When in any action of trespass on any land or other real es- 
 tate, any defendant shall justify on a plea of title, the defendant 
 shidl commit such plea of justification to writing, and having 
 signed the same in the presence of such justice, shall deliver tin- 
 plea to the justice, who shall then countersign the same, and de- 
 liver it to the plaintiff; and it shall and may be lawful to and 
 for such plaintiff to commence and prosecute an action for sncli 
 trespass against such defendant, in the court of common pleas of 
 the county in which such trespass shall have been committed; 
 and if such plaintiff shall recover any damages in such action, the 
 defendant shall be liable to pay to such plaintiff double costs; ami 
 on every trial to be had for such trespass, the plea signed by such 
 defendant shall be conclusive evidence that the defendant re- 
 lied on his title to justify such trespass ; and every justice, to 
 whom a plea of justification shall be tendered, shall, before he 
 shall receive such plea, exact from the defendant, together with 
 one sufficient surety, a recognisance in the sum of fifty dollars, 
 conditioned, that if such plaintiff shall commence a suit before 
 the next court of common pleas, for the recovery of damages 
 for such trespass, such defendant shall appear and put in special 
 bail in such court, within twenty days after the first day of 
 the then next term of the said court ; and in every case iu 
 which such plea shall be tendered, and the defendant shall not 
 forthwith enter into such recognisance, the justice shall proceed 
 in the same manner as if such plea had not been tendered : Pro- 
 vided, nevertheless, That it shall be competent to such defendant, 
 notwithstanding the said plea of title, to show on the trial of any 
 such cause, before any court of common pleas, that the plaintiff 
 had not possession of, or title to, the premises at the time sucti 
 supposed trespass was committed." s. 7. 
 
 A plea of title is not valid unless reduced to writing. Suge r 
 
 B:irnei, 
 
 XI. Conviction under the excise or tavern law. 355. '" 
 
 " All convictions to be had before any justice as aforesaid, for 
 offences against the act, entitled, ' an act to lay a duty on strong 
 liquors, and for regulating inns and taverns,' shall be drawn up in 
 the following manner, viz : ' City of New-York, (or Westchester 
 county, or other city or county, as the case may be) to wit: Be 
 it remembered, that on the - day of, in the year of our 
 Lord one thousand eight hund.-ed and - , A. B. of the city of 
 
 [ 33 ] 
 
 355. 
 
 this eaie
 
 JUSTICES COURTS. 
 
 New-York, (or of Bedford in the county of Westchester, or other 
 city, or town, or county, as the case may require) merchant (or 
 farmer, or other addition, as the case may require) (and adding) 
 being an innboldcr or tavern keeper, (if the case be so) is this 
 day convicted before C. D. mayor (or recorder, or one of the 
 aldermen, as the case may require) of the said city, (or one of the 
 justices of the peace of the said county, as the case may require,) 
 
 of having on the day of last, (or instant) at , in the 
 
 said city, (or county) sold by retail one quart (or other quantity) 
 of rum, (or other spirituous liquors,) without having such permit, 
 or to be drank in his (or her) house or out house, yard or garden, 
 without having entered into such recognisance as is mentioned in 
 the act, entitled, ' an act to lay a duty on strong liquors, and for 
 regulating inns and taverns,' or, of not having in his (or her) 
 house, two spare beds for guests, with good and sufficient sheet- 
 ing and covering for such beds respectively, for the accommoda- 
 tion of travellers ; (or) of not having good and sufficient stabling 
 and provender, of hay and grain, if in winter, and if in summer, 
 of hay or pasturage, for four horses, or other cattle, more than 
 his or their own stock, for the accommodation of travellers, ac- 
 cording to the form of the. act, entitled, 'an act to lay a duty on 
 strong liquors, and for regulating inns and taverns,' (or) of having 
 
 on the day of last, (or instant) at , in the said c 
 
 county) sold one gill (or other quantity) of rum (or other strong 
 li ijuor ) to an apprentice (or servant, or slave) of, knowing 
 or having reason to suspect or believe him or her to be such, with- 
 out the consent of his or her master (or mistress) against the 
 form of the act, entitled, ' an act to lay a duty on strong liquors, 
 and for regulating inns and taverns,' (or) of having for the space 
 of one month (or two or more months) neglected to put up and 
 keep such sign up, as is required by the act, entitled, ' an act to 
 lay a duty on strong liquors, and for regulating inns and taverns.* 
 Given under my hand, the day and year first above written.' And 
 every such conviction shall and may be pleaded in bar to any 
 other prosecution for the same offence." s. 8 
 
 XII. Trial and its incidents. 
 
 The trial in a justice's court may be either before the justice 
 alone, or before the justice and a jury. By the second section of 
 the act, the justice is authorized, in case the defendant does not 
 appear at the time and place appointed in the summon?, and it 
 shall appear by the return endorsed thereon, that the summons 
 was personally served, or if the defendant does appear oq the 
 return of the summons, to proceed to trial ; and in like manner, 
 under the fourth section of the act, where the suit has been com- 
 menced by warrant, the justice may try the cause alone, bi^ 
 cither party may, after issue joined, demand a trial by jury. 
 
 " In every action to be brought by virtue of this act, it shall br 
 foreither of the parties to the suit, or the attorney of either
 
 JUSTICES COURTS. 259 
 
 of them, after issue joined, (and before the court shall proceed to 
 inquire into the merits of the cause,) to demand of said court that 
 such action he tried by a jury ; and upon such demand, the said jus- 
 tice, holding such court, it hereby required to issue a venire, direct- 
 ed to any constable of the city or town where the said cause is to be 
 tried, commanding him to summon twelve good and lawful men, 
 being freeholders or freemen of such city, or being freeholders of 
 such town where the said cause is to be tried, and who shall be in 
 r.o wise of kin to the plaintiff or defendant, nor interested in such 
 suit, to be and appear before such justice issuing such venire at 
 such time and place as shall be expressed in such venire, to makt 
 a jury for the trial of the action between the parties mentioned in 
 the said venire ; which constable shall, at the return of the said 
 venire, return a panel of the names of the jurors he shall so 
 summon by virtue thereof; and the name of each person so em- 
 pannelled, shall be written on several and distinct pieces of pa- 
 per as nearly of one size as may be, and shall be delivered t the 
 said justice before whom such action is to be tried, by the con- 
 stable returning such panel, and shall, by the said constable, be 
 rolled up, all as nearly as may be in one and the same manner,, 
 and put together in a box or some convenient thing ; and on the 
 trial of such cause, such justice, or such indifferent person as he 
 shall appoint for that purpose, shall draw out six of the said pa- 
 pers, one after another ; and if any of the persons whose names 
 shall be so drawn shall not appear, or shall be challenged and set 
 astde, then such further number thereof shall be drawn as shall 
 make up the number of six who do appear, after all legal causes of 
 challenge allowed by the said justice, unless the said parties agree 
 that the said constable shall summon six men at his discretion ; 
 and the said six men so first drawn and appearing, and approved 
 by the court as indifferent, shall be the jury who shall try the 
 cause, to each of whom the said justice shall administer the fol- 
 lowing oath : ' You do swear, in the presence of Almighty God, 
 that you will well and truly try the matter in difference between 
 
 plaintiff, and defendant, and a true verdict will 
 
 give according to evidence.' And after the said jury shall have 
 taken the oath aforesaid, they shall sit together, and hear the 
 several proofs and allegations of the parties, which shall be deli- 
 vered in public in their, presence ; and to each of the witnesses on 
 the said trial, the justice shall administer the following oath, viz : 
 
 * You do swear in the presence of Almighty God, that the evi- 
 dence you shall give in this matter in difference between 
 
 plaintiff, and defendant, shall be the truth, the whole truth, 
 
 and nothing but the truth.' After hearing the proofs and 
 allegations, the jury shall be kept together in some convenient 
 place, until they all agre-e upon a verdict; for which purpose 
 a constable shall be sworn, and to whom the said justice shall 
 administer the following oath, viz : ' You do swar, in the pre- 
 sence of Almi-hty God, that you will, to the utmost of your
 
 2GO JUSTICES COURTS 
 
 ability, keep every person sworn on this inquest t ope tbcr, ir 
 private .'md convenient place, without meat or drink, except wa- 
 ter ; von will not suffer any person to spp.'ik to them, nor ppeak 
 to th'-m yourself, unless by order of the justice, unless it he fo 
 ask thorn whether they have agreed on their verdict, until they 
 have agreed on their verdict.' And when the jurors have agrepd 
 on their verdict, they shall deliver the same to the justice in the 
 same court, who is hereby required to give judgment thereupon, 
 and to award execution in manner hereafter directed ; Prm-ided 
 alicnyi, That no oath ofvither party, or ex parte affidavit of any 
 other person, shall he allowed or given in evidence in any such 
 action, unless the parties agree to allow such evidenc- 
 
 " Every person suhpcenaed as a witness, either in the county in 
 which the justice resides, or the next adjoining county, or sum- 
 moned as a juror, who shall not appear, or appearing, shall refuse 
 to serve, or give evidence in such action, shall forfeit and p 
 every such default or refusal, (unless some reasonable cause be 
 proved on oath, to the satisfaction of the said court) such fine or 
 fines, not exceeding the sum of ten dollars, nor less than sixty-two 
 cents, as the said court shall think reasonable to impose ; and the 
 said court is hereby authorized and required to issue a warrant 
 to any constable, to levy the same of the goods and chattels of 
 the offender, and for want thereof, to take and convey him or 
 her to the gnol of the city or county wherein the offence shall 
 have been committed, there to remain until he or she shall pay 
 such fine, together with the costs attending the same ; and the 
 keeper of such gaol is hereby commanded to keep such offender 
 in safe custody in such gaol, until such fine, together wi:h the 
 costs, shall be paid : Provided always. That no such fine or fines 
 shall be Imposed, unless such witness or juror shall be present 
 before such justice at the *ime of imposing such line, and have op- 
 portunity of being heard against the imposing thereof, or shall 
 have been summoned, either in the name of the people, or the 
 overseers of the poor, hereafter mentioned, to appear before a 
 j-.istice of the peace, to show cause against the imposition of any- 
 such fine : all and every of which said fines, when recovered, 
 shall be paid by the said court to the overseers of the poor, for 
 the use of the poor 6f the city or town where the same shall be 
 levied." s. 10. 
 
 Manny r. A venire can be awarded only where an issue has been joined, 
 
 3ainv an ^ not on a judgment by default, or where the defendant does 
 *!' *i3- not plead. 
 
 oineyv. Where the bill on which the action was brought was shown 
 
 ?"(*. Rtp. to thr justice, "ho inspected it. but no proof was called for or 
 142. ' offered, and the defendant demanded a trial by jury, whi< 
 
 justice refused, it was held that the trial had not been commen- 
 ced by merely taking \:p end ir.rp'ctir^ the bill, and that the de- 
 fendant was not too late in his deinauu of a jury, and a 
 4Mfbt to have been awarded.
 
 JUSTICES COURTS. 261 
 
 After n party has prayed a jury, the justice cannot proceed to nay v. 
 trial without one, and if the venire has been lost, or for some tCtiti ^f 
 oilier cause has not been returned, the justice should issue a se- Kep.137. 
 cond one. 
 
 So when the defendant requested a venire, which was issued ^hnnsr. 
 and delivered to him, hut was never returned, and the justice 8 jabn*.He, 
 tried the cause without a jury, without the defendant's assent, 46 - 
 who was absent when the trial commenced, but before the trial 
 was ended came in, and protested to the justice's proceeding, 
 and judgment was given for the plaintiff, the judgment was re- 
 versed. The court said, there is no suggestion that the venire 
 was improperly suppressed by the defendant. After the jury 
 process had been issued, it was not legal for the justice to pro- 
 ceed to try the cause without a jury. It was competent to him 
 to have issued a new venire, although the former one was not re- 
 turned, and this was the course which he ought to have pursued. 
 Nothing was done on the part of the defendant: that could he 
 construed into a waiver of a trial by jury, or assent to a trial by 
 the justice. 
 
 But if the defendant being present does not demand another Wn-'.->ar.f v, 
 renire, but proceeds to trial without it, it is a waiver of the trial 
 by jury. 
 
 If a venire be defective, error in it cannot be alleged by thr ^- 
 party at whose instance it was issued, and if the first venire has not acaimV 
 been returned, and the justice issues a second one, it will be con- 
 sidered as the process of the party at whose instance the first 
 was issued. 
 
 A justice may award a tales de circumstantilus, in case of a de- z-eiy v .Tan- 
 faultof the jurors summoned on the venire. The power of award- f^'p.Vse'""' 
 ing a tales, the court said, is incident to a court of justice, and es- 
 sential to its proceedings. By the first section of the act, every 
 justice is invested with all the power usual in courts of record, for 
 the purpose of hearing and trying causes ; and the power of 
 awarding a tales, incase of a default of the jurors summoned on 
 the venire, is a power usual in courts of record. 
 
 In an action before a justice, when the jurors were called to try Smith T. 
 the cause, several of them did not appear; for want of a sufficient 2John.Rep. 
 number, the justice directed the constable to summon some of the g ' 
 by slanders, hut none were found competent to serve on the jury. 
 The plaintiff then requested that a new venire should issue ; but 
 the justice nonsuited him, alleging that the plaintiff had not ask- 
 ed for an adjournment of the cause : and judgment was given that 
 the defendant should recover his costs of the plaintiff. A certiorari 
 was brought, and the judgment reversed. 
 
 By the lUtli section of the act, above recited, a fine often dol- 
 lars may be imposed upon a witnesss who being subpoenaed does 
 not appear, or refuses to give evidence ; but the party injured is, 
 notwithstanding, entitled to an action against the witness for the 
 damages which he hati sustained by the want of his testimony.
 
 JUSTICES CODRTS. 
 
 "k" actlon was Brought before ajustice to recover damages which 
 the plaintiff had sustained by rensoo of the non-attendance of the 
 defendant as a witness, in a certain cause tried before a justice, in 
 which the plaintiff was defendant, and in which the present defen- 
 dant was regularly subpoenaed a&a witness. The plaintiff offered 
 to prove by a witness, that the defendant had been served with a 
 subpoena, in the cause above mentioned, but the defendant objec- 
 ted to any parol evidence, and insisted that the writ of subpoena 
 ought to be produced ; but the justice over ruled the objection. 
 The witness testified that the defendant admitted in conversation 
 that he had been served with a subpcena on the part of the plain- 
 tiff, but that he was too unwell to attend, and besides, had busi- 
 ness at the time with his congregation, (being a minister.) The 
 plaintiff below admitted that he had the subpoena at the trial, but 
 did not produce if, : or give any reasons why he did not. A verdict 
 rind judgment were given for the plaintiff. Per curiam. The act for 
 the recovery of debts to the value of twenty-five dollars, gives a jus- 
 tice power to impose a fine, not exceeding ten dollars, on a wit- 
 ness who is absent, after being subpoenaed, without reasonable 
 cause. The penalty of fifty dollars, besides a further recompense 
 in damages, given by the act for the amendment of the law, evi- 
 dently applies only to the case of witnesses making default in 
 courts of rf-cord. It is made a question, therefore, whether 
 any remedy, besides the fine of ten dollars, is given against 
 witnesses making default in justices' courts. But when we con- 
 sider that the fine, in such case, does not go to the party aggriev- 
 ed, but to the poor of the town, there must be a remedy to the 
 parly for the injury he sustains, and which ought to be by a spe- 
 cial action on the case for damages. The suit in this case, 
 therefore, was well brought. The case then turns upon the pro- 
 ceedings in the cause. The defendant was not bound to attend, 
 unless regularly subpoenaed as a witness ; and as the plaintiff ad- 
 mitted that he had the subpcena in ,his possession, it ought to 
 have been produced as the highest evidence of the fact. The 
 confession of the party will not, in such a case, supply the omis- 
 sion of such a document The proof produced was very feeble, 
 but here was a fatal error. The judgment must therefore be re- 
 versed. 
 
 One justice may subpcena witnesses to appear before another 
 justice, and the attendance of witnesses may be compelled from 
 an adjoining county. 
 
 " Any justice of the peace may issue subprenas to compel wit- 
 nesses to appear before any other justice and give evidence." s. 
 39. 
 
 " Whenever a subpcena is issued by any justice to compel the 
 attendance of any witness from an adjoining county, it shall be 
 lawful for any constable or other proper person of the county 
 where such subposna is issued, to serve such subpoena on such 
 witness in any adjoining county 5 and if such witness shall mukJe
 
 JUSTICES COURTS. 
 
 default of appearance according to the direction of such subpte- 
 na, such defaulting witness may be proceeded against in (h<; coun- 
 ty where such witness shall reside, or where such subpcena was 
 issued, in the same manner as i directed by the tenth section of 
 this act, any law, usage or custom to the contrary notwithstand- 
 ing." s. 30. 
 
 According to the form of the venire prescribed by the ninth 
 section of the act, the jurors are required to be freeholders or 
 freemen of- the city, or freeholders of the town where (he cause 
 is to be tried, of kin to neither party, nor interested in the suit. 
 
 It is not sufficient that a juror should be a freeholder, but he Bonf. 
 
 Btf'ckt r 
 
 must also be a good and lawful man; an alien, although a free- e .R>hus. Rep, 
 holder, is not a good and lawful man, and therefore not conipe- 332- 
 tent to serve on a jury. 
 
 If the justice overrule a challenge to a juror, and the party p,i a ue v. 
 goes to trial on the merits, it is no waiver of the exception, i^,^ 1 ^*., 
 nor does it preclude him from taking advantage of it in error. 3ie. 
 
 Further and more particularly as to challenges, see JURY. 
 
 The justice before whom the cause is tried must swear the Perry r. 
 witnesses ; and where the justice before whom the cause was ^jo'hm!' 
 tried was sworn by another justice, as witness in the cause, the R*-i- o. 
 judgment was reversed : but if no objection were made to the c . w T - 
 admission of the magistrate as a witness, it will be taken to have s JuiiutRep. 
 been by consent. 470 ' 
 
 In an action before a justice, in a case in which an adjourn- irwin v. 
 ment had been granted at the instance of the defendant, th<-, de- jX!iien, 
 fendant, at the trial, called the security as a witness, and prayed 407. 
 that he might be discharged as security, and another person, 
 then offered, be taken in his stead ; but the motion was denied, 
 and the witness rejected. Ptr curium. The justice ought to 
 have released the bail, by taking the other security offered. It 
 would be unreasonable and unjust to deprive the party of the be- 
 nefit of a material witness, when his interest can be thus dis- 
 charged without injury to the other party. Sound and legal dis- 
 cretion required that it should be done. It is the practice for the 
 court to discharge the bail upon application, when he is wanted 
 as a witness for the defendant. 
 
 "Where, a justice stated in his return, that he admitted one of Harwilv. 
 llie parties as a witness de benc esse, but that he afterwards disre- 
 
 garded the testimony, not considering it as evidence in the cause, Utl>- 128 * 
 the judgment was reversed. 
 
 In an action on a promissory note, the justice returned to the ar ^!\, 
 rtrtiorari that the note was delivered to him by the plaintiff when lojohn*.' 
 the issue was joined ; but that on search he could not find it, and Re P 31 "- 
 that he permitted the plaintiff to give parol evidence of the note, 
 though the defendants objected to it. Per curiam. The justice 
 erred in admitting parol proof of the note, as a lost note, when 
 there was no proof of its being lost. What the justice might 
 h:vp >:<! :t to fbr ' 1 evidence to- the jury. It
 
 264 
 
 Deyer T. 
 
 Burliug;liam, 
 
 2 Jo'im.Ucp. 
 
 185. 
 
 1,., i v. 
 
 Smith 
 
 10 Johns. 
 
 Ri'l>. 2iO. 
 
 Vai Myck 
 
 v. 'lay lor, 
 
 9 Jolms. Hep. 
 
 146. 
 
 Wearsey r. 
 
 Prn>n, 
 
 7 Johns. Rep. 
 
 179. 
 
 House v. 
 
 Low, 
 
 UJohus.Rep. 
 
 378. 
 
 Day v. 
 
 Wilber, 
 
 2 Caines' 
 Hep. 135. 
 
 Van Doren 
 v. Walker, 
 
 3 Caines' 
 Ri p. 37J. 
 
 Kast< nbrooU, 
 ! I Julius. 
 Rep. 533. 
 
 Fink v. Hall, 
 8 Johns. Key. 
 437. 
 
 JUSTICES COURTS. 
 
 was requisite that proof on oath should have been given of (lie 
 loss of the note, In: fore the secondary evidence could he let in. 
 
 A justice cannot act from his own previous knowlt lge of facts, 
 but they must he proved before him ; lie can only decide upon 
 evidence produced in court. 
 
 The admission of improper evidence must be objected to at 
 the trial, afterwards it will come too late ; so, where in an action 
 of debt against a constable for an escape on execution, parol 
 evidence was given of the execution, and no objection was made 
 to it, the defendant below moved for a nonsuit, but on what 
 ground was not stated, and the justice denied the motion. The 
 court said, the objection now raised against the admission of pa- 
 rol evidence of the execution comes too late ; it would have been 
 valid had it been made. on the trial, but no such objection ap- 
 pears to have been made ; and we cannot intend for the purpose 
 of reversing a judgment, that this framed the ground of a mo- 
 tion for a nonsuit. All intendments ought to be in support of the 
 judgment. 
 
 if a plaintiff reads in evidence an act of the legislature from a 
 newspaper, which is admitted by the justice, and the defendant 
 afterwards reads an exemplified copy of the same act, he can- 
 not afterwards, on certiorari, allege for error the admission of the 
 act read by the plaintiff, though not legal evidence: it has fre- 
 quently been ruled that a party may thus commit himself by le- 
 galizing what was before illegal. 
 
 On the return of a certiorari, it was objected that it did not ap- 
 pear that the witnesses were sworn ; but the court said, that as 
 both parties were present, and no objection was made to the 
 witnesses, we shall intend that they were sworn. If they were 
 not sworn, it may be, that the parties agreed to admit their testi- 
 mony without oath. 
 
 If the jury retire to deliberate on their verdict, and a consta- 
 ble be not sworn to attend them, it is error. 
 
 In error on certiorari, it was not stated in the return that a 
 constable was sworn to attend the jury. Per curiam. As no- 
 thing is said about a constable's being sworn, or having charge of 
 the jury, the court cannot supply it by intendment. There are 
 no words in the return to intend by. We might as well intend 
 an issue joined, or a venire, when nothing is stated. The justice 
 must state, as the writ requires it, all his proceedings ; the 
 whole history of the suit. "Where a proceeding so essential is 
 omitted, we cannot consider it as done. 
 
 This objection cannot be surmounted ; it grows out of the po- 
 sitive direction of the statute, that a constable shall be sworn to 
 attend the jury. This is not an omission or misrecital of an oath 
 merely, so as to bring the case within the proviso to the 17th 
 section of the act. 
 
 If the jury do not withdraw from the court, it is unnecessary to 
 swear a constable.
 
 JUSTICES COURTS. 265 
 
 If it appear from the return, that a person, not a constable, was Stic y v.Bar- 
 
 s\vorii to attend the jury, it is a fatal error. 2 cainer 
 
 HI- p. 221. 
 
 XIII. Verdict and nonsuit, 
 
 A verdict of no cause of action is equivalent to a verdict for Feiter v. 
 the defendant, and the justice is bound to give judgment accord- aJohl'iiTuep. 
 ingly. . 
 
 So, if the jury find a verdict for the defendant for damages and Goodenow v. 
 costs, where the defendant was not entitled to damages, by rea- 3 jolml. Hep. 
 son of a set-off, the damages and costs are to be rejected, and the 437> 
 verdict entered as a general verdict for the defendant. 
 
 In an action before a justice, a verdict was found for the de- nurgerv. 
 fendant, for twenty-five cents, with six cents costs : the defendant 4 V jo U l U s. h R C p. 
 remitted the twenty-five cents, and the justice entered the re- 414 - 
 mitti'ur, and gave judgment generally for the defendant, and the 
 judgment was affirmed. SPENCER, J. If a jury in this court 
 should give the plaintiff more damages than he claims by his de- 
 claration, there would be no hesitation in allowing a remillitur of 
 the surplus, beyond the damages laid in the declaration. So, if 
 in an action in which the defendant was not entitled to damages, 
 the jury should give him damages, I see no reason why he should 
 not be allowed to remit them. A remittitur would be permitted 
 in both cases, on the principle, that a party in whose favour a 
 sum is found, has a right immediately to cede it to the other 
 party; and that the mistake of a jury, which can be corrected by 
 the act of the party in whose favour it is made, and which mis- 
 take is not imputable to him, shall work no prejudice. It was ob- 
 viously the intention of the legislature, to take away all right 
 from the justice, to control or set aside the verdict of a jury : it 
 would be an unnatural and violent construction, to say that the 
 legislature meant to oblige the justice to give judgment in favour 
 of a party, nolens volens. 
 
 Before the verdict is delivered, the plaintiff has a right to with- y'*". v ' 
 draw and submit to a nonsuit, and if he does, the verdict ought sjahm. Rep. 
 not to be received. 346 ' 
 
 Where there is a trial without a jury, the plaintiff may elect to ? e " v * 
 become nonsuit at any time before the cause is finally submitted 11 Johns.' 
 to the- justice : but after it is so submitted, the statute is impera- R *P >457 
 live, that after hearing and examining the proofs and allegations, 
 the justice, within four days, shall give judgment thereon. 
 
 The justice may continue his court from one day to the next, Day v. 'Wit- 
 when the exigencies of the case require it. 2 c'ainei' 
 
 XIV. Judgment. 
 
 By the second section of the act, the justice is bound, where the 
 cause is tried before him without a jury, to give his judgment, 
 agreeable to law and equity, within four days thereafter, with costs
 
 JUSTICES COURTS, 
 
 of suit: and we have seen that when the cause has been tried be- 
 fore a jury i the justice is bound to give his judgment according to 
 their verdict. The manner in which the justice must proceed t 
 give judgment by default, in case of the nun-appearance of the 
 defendant, has also been noticed. 
 
 fiwfcingr. The judgment must state that it was given on hearing the 
 rCMme* 1 proofs and allegations of the parties, otherwise it will be erro- 
 iuj>. 96. neons. 
 
 smith r.. In an action, by an administrator, before a justice, for a debt 
 
 w'johns ^ UC h' s "'testate, the defendant pleaded the general issue, and 
 Rni.366, gave notice of a set-off, and the justice gave judgment for the de- 
 fendant for ten dollars, the amount of the set-off. The decision 
 of tin 1 justice was held correct, notwithstanding a judgment for 
 ten dollars, with costs, was rendered absolutely against the plain- 
 tiff, by which L- may be personally chnrged. On examining the 
 act, it appears that jurisdiction is expressly given where an ad- 
 ministrator or executor is plaintiff; and in all cases cognisable nn 
 der the act, the defendant is entitled to his set-off, and the judg 
 ment, when for the defendant, is to be peremptory. The hard- 
 ship to which the plaintiff, as administrator, may be exposed, by 
 being made personally liable for the judgment, results from the 
 provisions of the act, and is not to be avoided when an executor 
 or Administrator sues before a justice. 
 
 T(iT'hi r. Where a defendant appears in person or by attorney, before 
 
 fi toii'ii*. Rep. a justice, '"> court, and confesses judgment, the justice may enter 
 i26< judgment against him. But where the justice, on receiving a pa- 
 
 |M;r, together with a note, purporting to be signed by the defen- 
 dants, authorising him to confess judgment, and the justice, from 
 his knowledge of the hand-writing of the defendants, and without 
 any process or other proof, entered a judgment, by confession, i'or 
 the pfaintiffs, it was reversed. The court said : the justice could 
 not legally enter a judgment, unless the defendant appeared in 
 person or by attorney, before him, in court, and confessed judg- 
 ment, or had been duly summoned, as in ordinary cases, 
 to]? v. Where the defendant indorsed on the warrant a written request 
 
 3 MIHS. Uep. to the justice, to enter up judgment against him, for whatever 
 lt ' f - demand the plaintiff should have against him, to the satisfaction 
 
 of the justice, but afterwards called on the justice and desired 
 him not to enter judgment, as he had discovered that the plain- 
 tiff claimed a greater sum than was due, but the justice, notwith- 
 standing, entered up judgment on the confession, the judgment 
 was reversed. Per curiam. The authority to the justice to en- 
 ter up the judgment must be considered as a parol authority, and 
 revocable by the defendant. What he stated to the justice 
 amounted to a revocation, and a trial ought to have been had, to 
 ascertain the amount due to the plaintiff. 
 
 ;Meie T. Where, on the promissory note upon which the action was 
 Miits. Rcpi brought, a requsst was endorsed by the defendants, to enter 
 1 " 1;> - op judgment against them, on which the justice gave judg-
 
 JUSTICES COURTS. 267 
 
 ment, being, as he said, satisfied, by comparing the hand-writing 
 in the note and the endorsement, that they were the same, it was 
 held that the justice should have required proof of the note, or 
 confession, and could not give judgment on a comparison of the 
 hand-writing of the endorsement with the signatures of the note, 
 especially as he had IK> evidence that the signatures to the note, 
 were in the hand-writing of the defendants. 
 
 By the 1 1th section of the act, " Jf the plaintiff in any swcti ae- 
 tion shall be nonsuited, or discontinue or withdraw his action 
 without the consent of the defendant, then judgment shall In- 
 given against suh plaintiff for the costs accrued ; or if he shall be 
 found to be indebted to the defendant, then judgment shall be 
 given against him for the defendant, or damages and costs, as the 
 case may require." 
 
 Where the plaintiff is nonsuited, judgment for costs must be MonneJU. 
 given against him, otherwise the judgment is incomplete, and in- sjtluulfUy. 
 capable of being either reversed or affirmed. 
 
 XV. Execution, 
 
 And whenever judgment shall be given against either plaintiff 
 or defendant, the said court shall grant execution thereupon, di- 
 rected to any constable within the same county, commanding him 
 to levy the debt, or damages and costs, of the goods and chattels 
 of the person against whom such execution shall be granted, his 
 arms and accoutrements excepted, and to bring the money, at a 
 certain time and place therein to be mentioned, before the justice 
 who issued the execution, to render to the party who recovered 
 the same ; and if no goods or chattels can be found, or not suffi- 
 cient to satisfy such execution, the party recovering the judgment 
 may, from time to time, renew such execution, or have further ex- 
 ecution against the goods and chattels of the party against whom 
 tmch judgment is recovered, or may bring an action of debt there- 
 on, and shall further command the said constable to take the 
 body of the defendant, and convey him to the keeper of the com- 
 mon gaol of the county, there to remain tiH such execution shall 
 be satisfied and paid ; and it shall be the duty of each and every 
 constable to endorse on every execution the time of levying the 
 same: Provided, however, That if the defendant shall, on the hear- 
 ing of the cause, prove by his own oath w otherwise, to the satis- 
 faction of such justice, that he has a fam'rly in this state for which 
 he provides, and is net a freeholder, then the justice shall, at the 
 time of issuing sch execution, endorse such proof thereon, (ex- 
 cept in the case of a trespass proved on the trial to have been 
 wilful or malicious) and such defendant shall not be imprisoned 
 on any execution so endorsed, if within one month after judg- 
 ment, the said defendant shall pay to such constable one doiiav 
 and fifty cents, if so much be due thereon ; and the like sum in 
 and every raonth thereafter, until the executioa and the
 
 268 JUSTICES COURTS. 
 
 constable's fees are fully paid ; but if such defendant shall neglect 
 or refuse to make such monthly payment, it shall be the duty of 
 such constable to proceed in such manner as if no such endorse- 
 ment had been made on such execution : dnd further, That no 
 execution of any judgment given by virtue of this act shall issue 
 against an}' freeholder or inhabitant having a family, and not enti- 
 tled to such exemption, in less than thirty days after giving the said 
 judgment, unless the party in whose favour judgment shall be giv- 
 en, shall make it appear to the satisfaction of the said justice, on 
 his own oath, or the oath of some other person, that such plaintiff 
 will be in danger of losing the 'debt or damages, if such delay be 
 allowed ; in which case the said justice shall issue execution im- 
 mediately, as herein before directed, unless the party against 
 whom such judgment shall be given, shall thereupon give security 
 to the party in whose favour judgment was given, that he will pay 
 the debt, or damages and costs, before, or at the expiration of 
 thirty days." s. 11. 
 
 "The constable, after taking such goods and chattels into his 
 custody by virtue of such execution, shall immediately give pub- 
 lic notice, by advertisement signed by himself, and put up at three 
 public places in such city or town where such goods and chat- 
 tels shall be taken, of the time and place within such city or 
 town, when and where they will be exposed to sale, at least five, 
 days before the time appointed for selling them, and therein de- 
 scribe the goods and chattels so taken ; and at the time and place 
 so appointed, and the said goods and chattels being present, shall 
 expose them to sale at public vendue to the highest bidder, and 
 pay the debt or damages and costs levied to the justice who is- 
 sued the execution, returning the overplus, if any, to the owner; 
 and for want of goods and chattels whereon to levy, the said con- 
 stable shall, according to the tenor of the said execution, take the 
 body of the person against whom the said execution shall be 
 granted, and convey and deliver him to the keeper of the com- 
 mon gaol of the city or county ; and in case the person against 
 whom such execution shall issue, be a freeholder, such keeper is 
 hereby commanded to keep such person in safe custody, in the 
 common gaol aforesaid, until the debt or damages, with costs, 
 shall be fully paid ; and in case any such person, having a family 
 in this state, and not being a freeholder at the time of judgment 
 rendered against him, or at any time thereafter, who now is, or 
 shall be hereafter imprisoned under this act, and shall have re- 
 mained in prison for more than thirty days, and any person not 
 having a family, and not being a freeholder at the time of judg- 
 ment rendered against him, or at any time thereafter, and who 
 now is, or hereafter shall be imprisoned under this act, and shall 
 have so remained in prison for more than sixty days, shall in 
 either case be discharged from prison, on the executions issued 
 under this act : Provided ahoays. That before such person shall be 
 entitled to his discharge, ho shall make affidavit before one of th
 
 JUSTICES COURTS. 2C9 
 
 justices of the supreme court, or a commissioner authorized to 
 take affidavits to be read therein, or any of the judges or assistant 
 justices of any court of common pleas, or any justice of the peace, 
 (who are hereby required to take siu h affidavits,) that he comes 
 within ihe provisions of this act, which affidavit shall be taken in 
 the presence of the sheriff, or any one of his deputies, or gaolers, 
 who are hereby required to attend for that purpose when called 
 on by such prisoner; and on producing and delivering such affida- 
 vit to the sheriff or gaoler of the county where the party shall be 
 imprisoned, such party shall be forthwith discharged from prison ; 
 and in case the sheriff or gaoler shall refuse to discharge such 
 person, in manner aforesaid, such sheriff or gaoler shall be sub- 
 ject to a penalty of twenty- five dollars, to be recovered by the 
 party grieved, for his own use, with costs, in any court having* 
 cognisance thereof ; and it shall be the duty of the sheriff or 
 gaoler to lile such affidavit in the office of the clerk of the county 
 in which such party shall be imprisoned, whose duty it shall be 
 to file the same, without demanding or receiving any fees there- 
 for ; and if any sheriff or gaoler shall be sued or prosecuted for, 
 or by reason of any discharge under this act, he may plead the 
 general issue, and give this act and the special matter in evi- 
 dence in full justification and defence : Provided further, That no 
 discharge of any person under this act shall in any wise affect or 
 prejudice any judgment or execution against the goods and chat- 
 tels of such person: And provided also, That if any person shall 
 wilfully, falsely and corruptly make an oath or affidavit, required 
 by this act, he shall, on conviction thereof, in any court having 
 cognisance thereof, suffer the pains and penalties inflicted ou per- 
 sons guilty of wilful and corrupt perjury, and shall also be subject 
 to be taken in execution at the suit of the party, in like manner as 
 if he never had been discharged under this act." s. 12. 
 
 "In case any constable, to whom any execution shall be de- 
 livered, shall not, within twenty days after receiving such execu- 
 tion, levy the same on the goods and chattels of the person against 
 whom such execution shall be granted, arid in ten days thereafter 
 pay the debt and costs, so levied, into the hands of the justice who 
 issued the same ; or, in case of his death or removal from office. 
 to the person in whose favour the execution was granted ; or if no 
 goods or chattels can be found whereon to levy, then, if the said 
 constable shall not, if such execution require it, take the body of 
 the person against whom such execution was granted, if to be 
 found, and deliver him or her to the keeper of the common gaol 
 of the county, within thirty days from the receipt of such execu- 
 tion as aforesaid ; then, and in every such case, the said constable 
 shall be holden to pay the amount of such execution, to be re- 
 covered by an action of debt, with costs, by the person in whose 
 favour such execution was granted, in which case execution shall 
 issue forthwith against such constable: Provide d, That no con- 
 stable shall be liable, under this clause, for not returning an ex-
 
 270 
 
 TinUom T. 
 PanlT, 
 9 Joans. 
 Rep. 345. 
 
 BIsnchard 
 Myen. 
 9 Johns. 
 Rep. 66. 
 
 Van Sh-tk 
 Tartar, 
 
 9 Johns. 
 Rep. 146. 
 
 9'KTCf T. 
 Hobtard, 
 10 Johns. 
 Hep. 405. 
 
 JUSTICES COURTS. 
 
 ecution on which the defendant's exemption is endorsed, if he col- 
 lects and returns the money payable by instalments, or returns 
 the execution, as to person and property, not found." s. 1 3. 
 
 " No constable shall levy or collect the amount of any execu- 
 tions issued by virtue of this act, unless the same be collected 
 within the time specified by the preceding sections, or unless the 
 said executions. shall be renewed, except in the cases mentioned 
 in the proviso in the preceding section." s. 14-. 
 
 A sale under an execution on a judgment in a justice's court 
 may be. adjourned at the discretion of the officer ; and the comple- 
 tion of the sale at a different time and place will be valid, if there 
 be no fraud er abuse. 
 
 A cfrtiorari allowed after execution, begun to be executed 
 by the constable, is no svptrsedeai to the execution. The same 
 rule applies as to cases arising under justice's judgments and exe- 
 cutions which exists as to other court?, when a regular writ of 
 error is allowed ; and it is weH settled, that the allowance of a 
 \vrit of error, after the sheriff has levied under a Jitri facias, is no 
 svptrsfdcas to it. 
 
 In an action of debt before a justice, against a constable, for an 
 escape of a prisoner in execution, it was proved that while the 
 defendant had the prisoner in his custody, and was conveying him 
 to prison, be met the justice who issued tht execution, and who, 
 after some conversation, required the defendant to deliver him 
 the execution, which was done, and the justice, discharged the 
 prisoner. It was held that this was no defence to the action. 
 The justice had no authority, in his official character, to order the 
 prisoner discharged, and no special power for that purpose ap- 
 pears to have been given by the plaintiff in the execution. It 
 was therefore an act altogether unauthorized, and will not ex- 
 cuse the constable. 
 
 In an action of trespass de bonis asporiatis, before a justice, 
 against the defendant, a constable, the defendant justified the taking 
 under two executions against the goods of the plaintiff, delivered to 
 the defendant to be executed. The executions were produced, and 
 one of them appeared to be altered in its date from the i^oth 
 December, 1810, to the 1st March, 1S1 1 ; and the other from the 
 1 Uh December, 1810, to the 2d March, 1811. The justice who 
 iefued the first execution, testified that he might have authorized the 
 constable to do it, as he frequently gave constables permisiioa to 
 alter the dates of executions at the request of the plaintiffs, con- 
 sidering the alterations as tantamount to a renewal. A verdict 
 w as given for the defendant. Per curiam. The only question in 
 this case is, whether the executions under which the defendant 
 justified were valid. It does not appear that any thing had been 
 done under the executions, until after the alterations in the date 
 of them. And if the alterations were made by the direction 
 of the justice, the process would not thereby be invalidated. 
 Any general authority, however, by justices to constables, to fill 
 irp or alter process, would be void, and highly improper. It is a
 
 JUSTICES COURTS'. 271 
 
 practice which in no case would be prudent or discreet on the 
 part of the magistrate. Whether the alterations in the pre- 
 sent case were made by the authority of the justices or not, 
 were questions of fact for the jury to decide ; and we do not see 
 sufficient grounds for setting aside their verdict. 
 
 The plaintiff in the court below declared upon a promise made Good*!* T. 
 to him by the defendant, who was a constable, that if the plain- 2 Jobmu' 
 tiff, against whom he had several executions issued fnom a justice's 
 court, would deliver property to the defendant as security for the 
 payment of the executions, the defendant would wait thirty days 
 before he sold the property ; but the defendant, in violation of 
 his promise, sold the property before the expiration of thirty days ; 
 the court held that the promise was without consideration and. 
 void, and reversed the judgment for the plaintiff below. 
 
 If a constable suffers the execution to sleep in his hands, and Jones r. 
 then pays the amount of it to the plaintiff, without having made J*",'. 
 any demand on the defendant, and without his request, he cannot Rep. 43*. 
 
 Menderback 
 
 bring an action against the defendant to recover the amount so v . Hopkim, 
 
 8 Johns. 
 Rep. 436. 
 
 A constable took a pair of horses on execution against B. and Brown T- . 
 delivered them to C. who gave a receipt for them, promising to Cork, 
 deliver them to the constable on demand ; no demand was made, R e p. Sei. 
 and after the execution had expired, the constable brought an ac- 
 tion of trover against C. for the horses, and judgment was given 
 for the plaintiff, which was reversed, because the plaintiff had not 
 shown a demand of the horses before suit brought; and because 
 he ought to have demanded them, and levied the amount of the 
 execution, by sale, within the thirty days. He neglected to do 
 this, and suffered the execution to run out, and thereby lost all 
 just claim and title to the possession of the horses. 
 
 By the act for the amendment of the law, sect. 34, it is pro- IR.L.SJT. 
 vided, " That no female person shall be imprisoned upon execu- 
 tion, in any civil action for debt or damages hereafter to be 
 brought in any court whatsoever, in which the debt or damages 
 recovered shall not, exclusive of costs, amount to more than fifty 
 dollars. 1 ' 
 
 The sheriff is bound, of course, to discharge a defendant in 
 execution, on producing the affidavit required by the act. 
 
 Jones sued S. and A. Lohnis in covenant on a bond, in the pe- uni T. 
 nalty of thirty-six dollars, conditioned for the gaol liberties, for A. j^J; 
 Lohnis. It appeared in evidence that A. Lohnis was committed Rep. i?4 
 to prison, under an execution, on the 1 5th of Jtine, and on the 
 1 5th of July was discharged by the sheriff, upon an affidavit made 
 by the prisoner, conformably to the act, that he had a family, was 
 not a freeholder, and that he had been in. prison more than thirty 
 days. The justice, however, gave judgment against the defend- 
 ant, for eighteen dollars and seventy-seven cents, on tbe ground 
 that A. Lohnis had not remained in prison more than thirty days 
 but the judgment was reversed. Per curiam. It is admitted
 
 272 JUSTICES COURTS. 
 
 that the affidavit upon which the prisoner was discharged, was, 
 in point of form, conformable to the directions of the act, though 
 from the evidence, it appeared that he had not been in prison more 
 than thirty days. And the question is, whether the sheriff' was 
 bound to discharge the prisoner upon the production of his affida- 
 vit ; for if it was his duty so to do, the prisoner was discharged 
 by due course of law, within the condition of the bond. The act 
 appears to be imperative upon the sheriff; it declares " that on pro- 
 ducing and delivering such affidavit to the sheriff or gaoler of the 
 county where the party shall be imprisoned, such party shall be 
 forthwith discharged from prison." The statute makes the affidavit 
 the authority upon which the sheriff is to act, and does not leave it 
 open to him to judge whether it is true in point of fact. That 
 this is the construction to be given to the act is evident from the 
 last proviso, which subjects the party to the pains and penalties of 
 perjury for false swearing, and makes him liable to be again taken 
 in execution, as if he had never been discharged. 
 
 " It shall be lawful for any justice of the peace who shall hefe- 
 after render any judgment in any cause, and who shall, before the 
 collection of the money due thereon, be removed from office, to 
 issue an execution thereon, at any time within thirty days after 
 such removal, which execution shall, to all intents and purposes, 
 be .as valid and effectual as if such removal had not been made." 
 s. 22. 
 
 XVI. Proceedings against joint debtors. 
 
 " Every summons or warrant, to be issued by virtue of this act, 
 may issue against any joint debtors, in the same manner as against 
 individual debtors ; and in case the same be duly served, in man- 
 ner herein before directed, upon either of such joint debtors, such 
 joint debtor on whom the same shall be so served, shall answer to 
 the plaintiff, and the judgment shall, in such case, be against the 
 joint debtor or debtors on whom the same was so served, and 
 against the other joint debtor or debtors named in such summons 
 or warrant, in the same manner as if such process had been duly 
 served on all such debtors : Provided, however, that no execution 
 shall issue against the body, or against any goods and chattels, 
 the sole property of any debtor, on whom process was not duly 
 served as aforesaid." s. 16. 
 
 Kutchiusv. Where a justice issued a warrant against two defendants, one 
 J'johns. f w hom was taken, and the other returned not found, and the 
 Rep. 222. defendant taken pleaded to the action, and a venire was issued, 
 which named him alone, without taking notice of the other de- 
 fendant; the venire was held sufficient. The statute merely re- 
 quires that the judgment must be against both joint defendants, 
 "and is silent as to the intermediate proceedings.
 
 JUSTICES COURTS. 
 
 XVII. Ceriiorari. 
 
 ' r No judgment, order, or proceeding whatsoever, to be had or 
 made by virtue of this act, shall be removed by any writ of er- 
 vor or lalse judgment : And further, no justice of the supreme 
 court shall allow any certiorari, or other process, to remove the 
 same, unless the party applying for such certiorari shall, within 
 thirty days after such judgment given, make affidavit, satisfying 
 such justice of the supreme court that there is reasonable cause 
 for granting such certiorari for error in such judgment, which shall be 
 specified in such affidavit, and within ninety days thereafter, cause 
 such affidavit to be presented to such justice of the supreme court, 
 and which affidavit may be made before any person authorised 
 to take affidavits, to be read in the supreme court ; and such afii - 
 davit shall be left with the justice of the supreme court, who may 
 allow such certiorari ; and, if any certiorari, or other writ, shall 
 be granted or issued, otherwise than is above mentioned, the. 
 same shall be void : And further, no execution, upon any judg- 
 ment to be given by virtue of this act, shall be prevented or 
 stayed by any certiorari, or other writ, in case the party in whose 
 favour such judgment shall be given, shall give such security as 
 may be satisfactory to the justice by whom such judgment shall 
 be given, to restore the debt or damages for which such judgment 
 shall be obtained, with the interest and costs, in case the same 
 shall be reversed ; and if any such judgment be removed into 
 the supreme court, and be there confirmed, then the party pro- 
 curing such certiorari shall pay to the adverse party all costs of 
 defending such suit in the supreme court ; and the party entitled 
 to such costs shall and may have execution for the same out of 
 the said supreme court, against the body or goods and chattels of 
 the party who ought to pay the same ; but, if such judgment 
 shall be reversed, then the party procuring such certiorari, 
 shall, in like manner, recover his or her costs : Provided al- 
 wa.ys, that in all cases of judgment, removed by certiorari a3 
 aforesaid, the supreme court shall proceed and give judgment 
 according as the very right of the case shall appear, without re- 
 garding any imperfection, omission, or defect in the proceedings 
 before the court below, in mere matters of form ; and that so 
 much of the act, entitled, 'An act concerning amendments and 
 i>:ofail3,' as may be applicable, shall be deemed at all times to 
 apply as fully to judgments and proceedings under this act, as to 
 judgments and proceedings in any court of record in this state ; 
 Jlnd provided further, that the omission or mis-recital of any oaths 
 prescribed by this act, in the return of any justice to a certiorari, 
 shall not be assigned for error, unless it shall be alledged in the affi 
 davit, on which such certiorari issued, that exception to the form 
 of any such oath, as administered, shall have been taken at thft 
 tffal." s. 17. 
 
 ( 35 ]
 
 274 JUSTICES COURTS. 
 
 " In all cases where the judgment, before any justice of the 
 peace in any city or county in this state, shall be removed by 
 certiorari to the supreme court, the plaintiff in error shall recover 
 ;v sum not exceeding twenty-five dollars for costs, to be taxed on 
 the reversal of any judgment so- removed: as aforesaid ; and the 
 clerks of the supreme court shall, in such case, receive for servi- 
 ces done therein, no more than such fees as are uMowed to clerks 
 of courts of common pleas in atialagous cases." 3. 18. 
 
 " On the service of any ceriiorari, to reverse any judgment ren- 
 dered in pursuance of this act, it shall be the duty of the party 
 serving the same, to deliver at the same tinav to the justice a copy 
 af the affidavit on which the ctrtiorari was procured, and the jus- 
 tice shall make a special return a& to all the facts stated, in such 
 affidavit, with a copy thereof, and a-anx the same to the writ of 
 certiorari." s. '20. 
 
 Smith r. A ccrtiorari will 1m fco reverse- a judgment of nonsuit, when- 
 
 ajob'us. costs are awarded.. 
 
 Ke:>. 9. The party in whose favour the judgment has ben rendered, 
 
 Maraud, may bring a ceriiorari, if the justice, by erroneously rejecting evi- 
 ftJoinu. dence, has diminished the amount which the party would have 
 
 Hep. 10. * 
 
 been otherwise entitled to recover. 
 
 Bickumv Where there appears to be a necessity, or a just cause for the 
 
 ftjjfet. aflidavit being made by the rjJtomey of the party, it will be re- 
 Ui-p. 327. ceived. Though every thing relating to the merits or to the 
 errors in the court below, must be contained in live a-fStia>yit r which 
 the statute, requires to be made within thirty days after the judg- 
 ment, yet a supplementary aflidavit, which is merely explanatory 
 of a collateral fact, maybe made after the thirty days. 
 
 Van Faiu-n v The jiTstiee is bounti to ol>ey the certiorari at his peril. He is 
 V '"!>. ',!"""' ""'? however, bound 1 to return any thing but what can legally be 
 Ca los. required of him,- notwithstanding a command expressed in the writ. 
 Wilson v. 'f' e just'wre- is no4 bound tee stale the evidence in. his return, 
 
 ) ri^r, unless called ifpon to do so. 
 
 u..i. ^9. A justice having signed a retuni to a ccrtiorari, made a supple- 
 
 Rucid v. military return, after which he made another return,, and declared 
 
 fjobM. m ' t' 1 ' 11 - I'^turn, that the supplementary return was drawn in haste, 
 
 Rqi. 548. an ,| W as incorrect, and that the first return was most correct. 
 
 The court said that they had no alternative, but must reject botb 
 
 supplementary returns; but in doing this they express their strong 
 
 disapprobation of the practice of preparing returns for a justice 
 
 without his knowledge and request, and that too by the party 
 
 sucing out the ctrtiorari^ 
 
 clT. P< , nV ' After notice o-f argument of a cause in error on certiorari, the 
 
 5.iotMu.Uep. justice, on affidavit of imposition on him by the attorney, was al- 
 
 Imved' to apply for leave to amend his return, on giving notice of 
 
 the application, &:e. to tho attorney of the plaintiff in- error. 
 
 3Caine's A justice may be required to amend his retuni when defec- 
 
 sJbJm^Reti * fve ' ' <>r w h'"'h purpose, the party must move the supreme court 
 
 on aflidavit (as in other cases of special motions) for an order 
 
 4; . " !t el> r rule on the justice to aiaend his return in the particulars in
 
 JUSTICES COURTS, 275 
 
 it is stated in the affidavit to be erroneous or deficient, and 
 A copy of this rule, cerliiled by one of the clerks of the supreme 
 rourt, having been personally served upon the justice, he is bound 
 to obey it, or be liaWe to attachment for a contempt. 
 
 The supreme court are bound <to give judgment on the return 
 of the certiorari, "according a the very rigiht of the case shall 
 appear, without regarding any Imperfection., omission or defect 
 in the proceedings, before the court -below, in mere .matters of 
 form ;" they will review the evidence stated m the return, and if 2.Tohi.Rop. 
 the demand be illegal, or the evidence insufficieat to support the j^' n ,.R t . p . 
 action, the judgment will be reversed, and the court is .n<*t con- " . 
 eluded as to the facts, by the finding of a jury, (a) K-p'm. 
 
 3 Joins. K?p. 
 140. 
 
 XVIII. Justices excused and excluded from acting. 
 
 " Nothing herein contained shall extend tooWige any justice 
 of the peace, being a member of the senate or assembly, or any 
 judge of any connty court, to take cognisance of any action by 
 virtue of this act ; but that they shall be at liberty, at all tunes, to 
 act therein or not, at their discretion. And no justice of tb>e 
 peace, being an inn or tavern-keeper, or living in a house in 
 which a tavern is kept, and no alderman of the city of Albany, 
 shall try any cause by virtue of this act." s. 10. 
 
 In an action of trespass de bonis asportolis ngtnnst a justice of the Schtnner- 
 peace, a constable, and a plaintiff in a suit before the justice, for 'j 1 ,"," 1 ^ 1 
 taking the goods of tbe defendaBt in an execution on a judgment Tripp, 2 
 rendered by th-e justice, the defendants all joined in a plea of not 103"" 
 guilty. The evidence a-ddtjoed was, that the justice lived in a 
 tavern, where he officiated as the tavern-keeper, made out the 
 bills, and received payment for them, but that the justice did 
 his business in a small out-room, and the license far tt>e 'house was 
 taken out an tfce name of the justices son. Thk, ihowever, it 
 appeared from the justice's own declaration, was -done to avoid 
 the operation of the act. Judgment was given for the plaintifFin 
 the court below, (the common pleas,) and tlie judgment w;ts af- 
 firmed in the 'junreme court, as the justice fead no jurisdiction ; 
 it being conclusively shown that he was in fact a keeper of a ta- 
 vern, or lived in one, and the constable having joined with him 
 and the platn&kfTin pleading the general issue, they were .aM equal- 
 ly trespassers. 
 
 Where the justice who tried the cause, before the trial, moved tow v. H; C P 
 int the house of one M., avho kept a tavern, and occupied one LI" 1 "'* iu '* 1 ' 
 end of the house, but the whole communicated -in the inside by 
 
 (n) As to the statute of amendments ami jeofails referred to in the 
 act, it may be 'fiifncient to observe that it cures all clerical mistakes, 
 erasures, interlineations, addition or subtraction of letters or words, c. 
 and, in general, that it aids all formal defects in case a verdict has been 
 Riven, or judgment bus been entered by confession or default ; but it 
 cioes not extend to actions on pemii .statutes.
 
 276 JUSTICES COURTS. 
 
 a passage, and M. continued keeping tavern at the time of the. 
 trial, the judgment was reversed. Per curiam. To say that, 
 living, as he did, was not living in a house where a tavern was 
 kept, would be to repeal the law, by allowing it to be evaded on 
 the most flimsy pretexts. The justice moved into the house after 
 the suit was commenced, and before the trial. The plaintiff's ap- 
 pearing and going to trial will not give jurisdiction where there 
 was none by law. 
 
 By the ,'jyth article of the constitution of this state, no minis- 
 ter of the gospel, or priest of any denomination whatsoever, is 
 eligible to, or capable of holding any civil or military office or 
 M'instrj-v. place within this state. But on the return to a certiorari, the 
 e .Tolms. court will not admit the objection, that the justice was a priest 
 Hep. 135. or minister of the gospel, and that the proceedings were there- 
 fore coram non judice, but will presume that the justice acted 
 under a regular commission. 
 
 XIX. Justice's certificate, when cindcnce. 
 
 "The official certificate of a justice of the peace, certifying 
 the proceedings and judgment in every case by such justice ren- 
 dered, with a certificate thereon, sealed by the clerk of the 
 county where such justice shall reside, certifying that he whose 
 signature appears on said exemplification was, at the date of said 
 judgment, a justice of the peace, shall be good and legal evi- 
 dence in any court of justice in this state, to prove the facts con- 
 tained in such exemplification, and nothing more." s. 21 
 KelU'ggv. In an action of dr.bt on a judgment before a justice, the plain- 
 
 p'joC'ueii. tiff produced a certificate under the hand and seal of the justice, 
 878 - before whom the judgment was recovered, of the judgment ob- 
 
 tained before him. The defendant made no objection to the cer- 
 tificate, and judgment was given against him, which was aflirm- 
 ed. The certificate of the former judgment, which was pro- 
 duced, and riot, objected to, was prima facie evidence at least of 
 the existence of the judgment ; and as this evidence was not con- 
 tradicted or questioned by the defendant below, ii must be con- 
 sidered as sufficient to support the judgment. 
 
 ri'Cnrty v. But if the objection had been made at the trial, it would have 
 
 l' 1 ""'*"^ been a cause for reversing the judgment. So, in an action of 
 4^. debt on a judgment obtained before another justice, the defend- 
 
 ant pleaded mil tiel record. On the trial, a certificate of the 
 judgment, under the hand and seal of the former justice, was 
 produced, but. was not proved, except by a witness who testified 
 to the hand-writing, and was read in evidence, though objected 
 to by the defendant. The court said, the objection to the certi- 
 ficate of the former justice, as evidence, was well founded. It 
 ought to have been proved by the justice himself who gave the 
 judgment, or a sworn copy of his minutes should have been pro- 
 duced. In the case of Kellogg v. Mauncy, the evidence of the cer-
 
 JUSTICES COURTS. 277 
 
 ft was not objected to, and was therefore considered as ad- 
 mitted. The judgment below must be reversed. 
 
 If where tho defendant pleads a former judgment in bar, the w a '^ v< 
 justice (being the same justice before whom the former trial be- s Johns. Rep. 
 t ween tlit 1 same parties was had) give parol evidence of his own 351 ' 
 record, it is, if objected to, erroneous, and is a sufficient ground 
 for reversing the judgment. 
 
 But it is otherwise if not objected to at the trial :* for although Lami-nce v. 
 the statement of the justice is not competent evidence, yet it ., .?ohns. Rcp, 
 may be made so by consent of the parties ; and that consent will 129> 
 be inferred from the omission of the party to object to it when it 
 is offered and given. 
 
 In an action before a justice, another justice was offered as a p oss onv. 
 witness, to prove that there had been a trial before him, in Br j W "- 
 which judgment had been given against the plaintiff. This Rep. i6o*. 
 evidence was objected to, but admitted by the justice. Per 
 curiam. Though the proceedings and judgment before a jus- 
 tice may not be technically a record, yet the material parts 
 are in writing, and ought to be produced. Parol evidence 
 of such proceedings is not the highest or best evidence in the 
 power of the party, and ought not, therefore, to be admitted. 
 The magistrate should, at least, produce the written evidence of 
 his proceedings, as far as the same is in his possession or poivcr. 
 The statute directing the manner in which the proceedings before 
 justices of the peace arc to be authenticated, seems to regard 
 such proceedings as in the nature of a record. 
 
 XX. Jillachment against absent and absconding debtors. 
 
 " It shall and may be lawful for any justice of the peace in any 
 county within this state, (the city and county of New-York ex- 
 cepted,) on application and satisfactory proof, by at least one dis- 
 interested witness, being offered by any creditor to such justice, 
 that any person against whom he may have a demand, not ex- 
 ceeding twenty-five dollars, hath departed, or is about to depart 
 from such county, or is concealed within the same, with intent 
 fo defraud any of his or her creditors, or to avoid being personal- 
 ly served with any process to be issued by virtue of this act, to 
 issue an attachment, directed to any constable as aforesaid, re- 
 quiring him to attach the goods and chattels of such person, (ex- 
 cept such goods and chattels as are exempt from exe.cution,) and 
 the same safely keep, to satisfy any judgment which may be ren- 
 dered by such justice on such application, and to return the same 
 within the times above limited for the return of a summons : Pro- 
 vided, however, That before any such attachment shall issue, the 
 justice shall take from such applicant a bond to the defendant, 
 with one sufficient surety, in the sum of twenty-live dollars, con- 
 ditioned to pay the defendant all damages and costs he may sus 
 Jain by reason thereof, if no judgment shall be recovered a^' 
 such defendant." s. 23,
 
 278 JUSTICES COURTS. 
 
 <' It shall be the duty of such constable, on the receipt of any 
 such attachment, to attach, take, and safely keep the goods and 
 chattels of the person against whom the same may be issued, to 
 satisfy such judgment as m-ay be rendered in favour of such appli- 
 cant, i'nd also to leave a copy of such attachment at the dwelling- 
 house or other last place of abode of the defendant: Pror'uhd, 
 That such constable shall not remove or convey away any such 
 property, if o'n attaching the same, a bond, with good and suffi- 
 cient security, be given to the plaintiff, in the penalty of fifty dol- 
 lars, conditioned that such goods and chattels shall be produced 
 to satisfy any execution which may be issued on any judgment to 
 be recovered on such application ; and such constable shall, on the 
 rrttirn dny of such attachment, return the same to the justice 
 who issued the same, and the manner of executing the same, to- 
 gether with such bond, whenever he may have taken one.-'' s. 24. 
 "On the return of said attachment, the said justice shall pro- 
 ceed to hear, try and determine the cause between the said par- 
 ties, in the same manner as on summons returned personally 
 served on the defendant as herein before directed: Provided, 
 That no judgment to be rendered therein, in the event of the 
 non-appearance of the defendant, or his not having been person- 
 ally served with a copy of the attachment, shall work a wrong or 
 injury to any claim or demand he may have against such plaintiff, 
 bat he may sue for and recover the same as if no such trial or 
 judgment IKH! been rendered against him." s. 25. 
 
 IM^I' r M'Vickar sued out an attachment before the justice against 
 
 9 Johns. Rep. Field, of Cocksackie, in the county of Green, as a debtor con- 
 . eealed withm the county, with intent to defraud his creditors, and 
 avoid process, &c. The attachment was regularly issued. On 
 its return, both parties appeared, and Field pleaded in abatement, 
 that before and at the time of issuing the attachment, he resided 
 in Cocksackie, and had not departed, nor was he about to depart, 
 from the county, nor did he conceal himself within the same, with 
 intent to defraud his creditors, &c. or to avoid process, &.c. The 
 plaintiff demurred to the plea, which was overruled by the. jus- 
 tice, and Field then left the court, without making any furth-er 
 defence. The plaintiff having proved his demand, the justice gave 
 judgment for him. It was now objected that the pleas in abate- 
 ment were sufficient, but the court held that the objection could 
 not prevail. If the proceedings on the attachment were regular, 
 which is not questioned in this case, '"the justice had no power to 
 supercede the attachment, but must, on the return thereof, pro- 
 ceed to hear the cause, as on any other process. 
 
 vjnioan v. In an action of trover in the supreme court against the defendant, 
 
 TOJohnt. wu " a( l purchased the property in question, on several execu- 
 
 .Rep. 129. tions, issued from a justice's court against one Eaton, one of which 
 
 was issued on a judgment on an attachment, it appeared that on 
 
 the 8th October, 1811, a judgment was entered up by confession, 
 
 and docketed against Eaton, on which an execution was issued
 
 JUSTICES COURTS. 279 
 
 aod delivered to the plaintiff, as sheriff of the county of Green, on 
 the 1 1th October. The plaintiff, on the day he received the ex- 
 ecution, went to the house of Eaton, and found the property in 
 question lucked up in a room, the key of which was in possession 
 of a constable who had attached the goods of Eaton, prior to the 
 delivery of the execution to the plaintiff, by virtue of an attach- 
 ment issued by a justice, and that judgment was entered upon the 
 attachment the (>th October ; and the property was sold by the 
 constable, on execution, subsequent to the delivery of the fieri 
 facias to the sheriff, who forbade the sale by the constable, and 
 claimed the property under the execution held by him. Per 
 curiam. The service of the attachment seems to place the goods 
 in the custody of the law, or at least to create a valid lien, which 
 the subsequent execution in another suit cannot remove. If the 
 attachment has not this effect, what is to become of the security 
 which the constable is to take ? and shall the bond be deemed 
 forfeited, when the law permits an execution in another case, and 
 without any pretension to priority, to seize and appropriate the 
 goods ? If the service of the attachment be not a lien, the pro- 
 ceeding is useless, for it may at any time be defeated by the 
 debtor, by confession of judgment to another creditor ; and it 
 would be the greatest injustice to enforce the forfeiture of the 
 bond, when the laAV permits the property to be seized in the 
 hands of the security. The test of the execution, though prior 
 to the attachment, cannot make the process overreach and defeat 
 the attachment by relation, for a fiction cannot take away a vest- 
 ed right. Nor can the public suffer any inconvenience from the 
 binding effect of the attachment; for the attachment is to be re- 
 turned to the justice as speedily as a summons, and the justice is 
 then to proceed immediately in the cause, in like manner as if a 
 summons had been personally served on the defendant. It ac- 
 cordingly appears to us to be the true construction of the act, that 
 the attachment, if issued at the instance of a bona fide creditor, 
 and in a case warranted by law, creates a lien upon the goods, 
 not only against the acts of the debtor himself, but against the 
 subsequent attachment, or the subsequent execution of any other 
 creditor. This lieu is no doubt temporary, and will expire if the 
 creditor does not prosecute his suit to judgment and execution 
 with all due diligence. 
 
 XXI. Costs. 
 
 " No greater or other costs shall be allowed or taken in actions 
 brought by virtue of tbis act, than the following: Justice's fees ; 
 a summons, nine cents; a warrant, twelve and an half cents; at- 
 tachment, nineteen cents ; judgment, twelve and an half cents ; 
 administering every oath, six cents j subpoena for each witness, 
 six cents ; an adjournment, nine cents ; issuing the venire facias ta 
 summon a jury, n'raeteen cents ; swearing the jury, twelve aod an
 
 JUSTICES COURTS. 
 
 hall" cents; every execution, nineteen cents : evrry foreign witness 
 attending and sworn. tw. :;iy, and every 
 
 witness attending and sworn, t\vrlve and an hall" cents; constable 
 or other proper officer, for serving a warrant or summons, i, 
 ing the plaintiff, or serving an attachment or execution, mileage 
 for one mile or under, twelve and an half cents ; for every mile 
 more, six cents; copy of summons, nine cents ; Provided, Tliat on 
 all precepts to be issued by virtue of this act, the fre for M 
 be computed only from the place of abode of the defendant, or 
 where he shall be found, to the place where the precept is return- 
 able ; serving every execution, for every dollar, five cents ; sum- 
 moning every jury, thirty-seven and an half cents. Juror's ftts : 
 for all causes tried, twelve and an half cents each : when sum- 
 moned and attending, and not trying the cause, six cents each : to 
 the constable or other person serving subpcena, twelve and an half 
 cents for each witness : Provided. That no party shall be entitled 
 to fees for serving any subpoenas upon a greater number of wit- 
 nesses than four in any one cause. And providtd also, That the 
 whole costs to be recovered or allowed in any action, shall not 
 exceed the sum of five dollars, except in the case of the attend- 
 ance of a witness from a foreign county, or in the proceeding by 
 attachment, in which cases the addition of such witnesses' fees, 
 and fifty cents for serving the attachment, may be allowed, and 
 twelve and an half cents to the justice for taking a recognisance 
 incase of attachment." s. 20. 
 . In all suits under the ten pound act, costs are given, of course, 
 
 >CilUpueh, 
 
 iJohui.Rep. when a debt or damages are recovered. 
 
 !^*j d T If costs be allowed for subpeer.aing more than four witnesses, it 
 
 M'Vickr is a fatal error, for which judgment will be reversed. 
 
 130- *" ep ' A justice is not liable to be sued by witnesses for their 
 
 Andrews T. jjjgy mus t look to the party by whom they are subpoenaed. 
 
 5Johr.f.Rep. 
 
 ssl ' XXII. Subpoenaing triinesses before arbitrators. 
 
 (i It shall be lawful for the justices of the peace in this state to 
 issue subpoenas to compel witnesses to attend and give evidence 
 before arbitrators : Provided, The party or parties shall prove to 
 the satisfaction of such justice that a submission to arbitration has 
 been made: and on default of attendance, such witness shall suffer 
 the same penalties as are inflicted by this act, for default in at- 
 tending a justice's court when subpoenaed, to be levied and col- 
 lected in the same marner and for the same purpose, on com- 
 plaint of any person aggrieved by such default." s, ,
 
 LARCENY AND ROBBERY. 281 
 
 KIDNAPPING. 
 
 ' If any person shall, without due process of law, seize and for- 
 cibly confine or inveigle, or kidnap any negro, mulatto, mustee, 
 or other person of colour, not being a slave, with intent to send 
 him out of this state, against his will, or shall conspire with any 
 other person or persons, or aid, abet, assist, hire, command or 
 procure any other person to commit the said offence, and shall 
 be duly convicted of any of the said offences, before any court 
 of oyer and terminer, or general sessions of the peace of any 
 county in or through which such negro, mulatto, or mustee sh.tll 
 have been brought, taken, kidnapped, confined, seized, or in- 
 veigled as aforesaid, shall be fined or imprisoned, or both, in the 
 discretion of the court before which such conviction shall be had, 
 such fine not to exceed one thousand dollars, and such imprison- 
 ment not to exceed fourteen years, at hard labour, in the state 
 prison ; and it shall be lawful for the said court to imprison such 
 offender in the county gaol, provided the term of imprisonment 
 imposed shall not require the offender to be sent to the state 
 prison." Ses. 36'. c. 15. s. I. 2 R. L. 209. 
 
 On a second conviction for any of the offences before speci- 
 fied, the offender shall be adjudged to imprisonment for life. s. 2. 
 
 And in general, the kidnapping, or forcible abduction or steal- *Black.c8p 
 ing away of a man, woman, or child, from their own country. rh 9 ': and & 
 for the purpose of sending them into another, is a misdemean- (; 
 our at common law, and punishable with fine, imprisonment, 
 and pillory. When a child is stolen for the sake of its clothes, 
 it is the same species of felony as if the clothes were stolen 
 without tlie child ; but it cannot be considered a felony, where 
 a child is stolen and not deprived of its clothes. 
 
 LARCENY AND ROBBERY, 
 
 I. Simple larceny. 
 IT. Mixed larceny. 
 
 III. Robbery. 
 
 IV. Punishment of larceny and robbery. 
 
 V. Receivers of stolen goods. 
 VI. Restitution of stolen goods. 
 
 I. Simple larceny. 
 
 Simple larceny is defined by Mr. East to be, the wrongful or 2 B 
 fraudulent taking and carrying away by any person, of the mere 
 personal goods of ituj'hw, from any place, it ilk a felonious i.-:imt 
 to convert them to his (the taker's) own use, and make +htK> 
 
 [ 36 ]
 
 LARCENY AND ROBBERY. 
 
 S East. P. C. 
 
 554. 
 
 J Hawk. c. 
 
 3 1 ?. v . 
 
 S EaM. P.C. 
 
 f63, 66 . 
 
 1 Hale. P. C. 
 
 406, 407. 
 
 f Hawk, c. 
 S3. s. 3. 
 
 i East. P. C. 
 fif 5 93. 
 
 1 l.-ach. CSS. 
 if . 
 
 2 I,tach. 470. 
 3 Bac. Ahr. 
 132. 
 
 * T'.ait. P.C. 
 
 6(i9 
 
 2 Leacb, 693. 
 
 property, without the consent of the owner. The object of thi 
 sent section will be to illustrate the several parts of this definition. 
 
 I. What is a taking. 
 
 As to the taking which is necessary to constitute this of- 
 fence, there must he an actual taking or severance of the thing 
 from the possession of the owner ; for as every larceny includes 
 a tresp-iss, if the party be not guilty of a trespass in taking the 
 goods, he cannot be guilty of felony in carrying them rr. 
 Therefore, one who finds goods which I have lost, and con- 
 verts them to his own u?e, animofurandi, is no felon. How* 
 this must he where the finder really believes the goods to have 
 been lost by the owner, and does not colour a felonious taking 
 under such a pretence. Therefore, where a man's goods are in 
 such a place where ordinarily they are, or may be placed, and a 
 person takes them away with a view to convert them to his own 
 use, the pretence of finding is no excuse. Thus the taking of 
 another man's horse from his own or his neighbour's ground or 
 common, with intent to steal it, is felony. 
 
 One who has the actual possession of my goods by my deli- 
 very. for a special purpose, as a carrier who receives them in 
 order to carry them to a certain place ; or a tailor who has them 
 in order to make me a suit of clothes; or a fViend who is en- 
 trusted with them to keep for my use, cannot be said to steal 
 them, by embezzling them afterwards. 
 
 But if a person obtain the delivery of a thing by fraud or false- 
 hood, and with an intent to steal, though under pretence, of a 
 hiring or even a purchase ; if. in the latter case, no credit were 
 intended to be, given, the. delivery in fact by the owner will not 
 pass the legal possession so as to save the party from the guilt of 
 felony. Thus, where A. intending to go a distant journey, hires 
 a horse, fairly and bonajide for that purpose, and evidences the 
 truth of such intention by actually proceeding on his way, and 
 afterwards rides off with the horse, it is no theft; because the 
 felonious design was hatched subsequent to the delivery, and 
 the delivery being; obtained without fraud or design, the owner 
 parted with his possession as well as his property, and thereby 
 ^ave to A. dominion over the horse, upon trust that he would re- 
 turn him when the journey was performed. But had A. obtained 
 possession of the horse solely with t;is view of appropriating him 
 to his own use, although the owner in this ca?e p.Tts with the 
 thing itself, he still retains, in law, the constructive possessioa 
 of it. And where the delivery of property is made for a certain, 
 special, and particular purpose, the possession, except for such 
 purpose, is still supposed to reside imparted with in the first 
 proprietor. Whether the intent of the prisoner was, at the time 
 of the delivery, felonious, is a question proper for the jury. 
 
 Where, however, a person fraudulently obtains the property of
 
 v 
 
 I 
 
 LARCENY AND ROBBERY. 283 
 
 tv thing, by a delivery from the true owner, the fraudulent intent 
 will not aggravate the ofiVnce to felony ; for there is no trespass 
 in th<>. original taking, and the property being once vested in the 
 other party, it can be divested by no act of his, so as to render 
 him a trespasser: the offender in such case, when punishable at 
 all, can only be proceeded against as a cheat. So, where the R.v.Harrey. 
 prisoner met the prosecutor at a fair with a horse, which he had ****! &* 
 brought there for the purpose of selling, and being known to him, 
 proposed to him to become the purchaser. They walked together 
 in the fair; and, upon a view of the horse, the prosecutor told 
 the prisoner he should have it for eight pounds ; and calling his 
 servant, ordered him to deliver it to the prisoner, who immedi- 
 ately mounted the horse, telling the prosecutor that he would re- 
 turn immediately and pay him : the prosecutor replied very well, 
 and the prisoner rode away with the horse, and never returnud. 
 GOULD, J. ordered an acquittal ; for here was a complete con- 
 tract of sale and delivery ; the property, as well as the posses- 
 sion, was entirely parted. 
 
 So, although the credit was obtained by using the name of zEast,P. C*. 
 another person ; as where a prisoner went to a tradesman's c leman' 
 house, and said she came from a neighbour who would be much ^'' 1 Leach, 
 obliged if he would let her have half a guinea's worth of silver, 
 and that she would send the half guinea presently. The prisoner , 
 obtained the silver, and never returned ; and this was h olden no 
 felony. So too, where the prisoner wrote a letter in the name Atkinson's 
 of a third person, to A., sending it by B., soliciting a loan of some ^ ; ' 2Easf > 
 money, and desiring it to be sent to him immediately ; A. deli- 
 vered the money to B., who gave it to the prisoner ; this was held 
 not to be felony. 
 
 In all such cases, the delivery must be complete; there must 2 East, P. c. 
 be an entire transfer of the legal property ef the goods ; other- ioe 
 wise, if the party take the goods, the sale, for instance, not be- 
 ing complete, it will be larceny. So, where a person fraudulent- 2 Fast p. c. 
 ly procures goods or money to be delivered to him as a pledge, Li7h. 354/2 
 which he converts to his own use, it will be larceny, for the pro- **d) 73 - 
 perty still remaining in the pawnor, the pawnee is precluded 
 Vom excusing himself on the ground of the legal ownership being 
 ested in him ; and as the possession was fraudulently obtained 
 by the pawnee, and for a special purpose, he becomes a tres- 
 passer on the constructive possession still remaining in the pawnor. 
 
 Besides the case in which the possession was obtained with a 
 felonious intent, there are other exceptions to the general rule, 
 that a bailment shall protect the party from answering criminali- 
 ter ; these are either where the privity of contract is determined 
 by the completion of the purpose for which the bailment was 
 made, or where there is a tortious conversion of the goods pend- 
 ing the contrac . Amounting in law to a new taking. 
 
 As, if a man he a horse fora certain time, or to go to a parti- 2 East, p. f 
 eular place, a ;u after the time be expired, or the party arrived at ' ^
 
 284 LARCENY AN 7 D KOBBERY. 
 
 the proper place of re-delivery, he ride away with the hone, and 
 
 convert it to his own use, it will then be felony. For the end 
 and purpose of the hiring, for which the delivery was made, 
 would be then over, and the legal possession following the right 
 of property, as soon as the special property of the holder is de- 
 termined, the legal possession reverts to the original owner, in the 
 same manner as if there never had been any precedent delivery; 
 after which, any new taking by the party for his own use will, in 
 point of law, be a trespass ; and if it be done with a felonious in- 
 tent to steal, of which the jury are to judge, will amount to felony. 
 2Ka?t, P. e. If a man deliver goods to a carrier, to carry to a certain place, 
 i Hair, 504. a "d lie carry them away, it is no felony ; otherwise, if he have u 
 
 1 Hawk. c. na ] f > or trunk with goods delivered to him, and he break the bale 
 4 Black. or trunk, and take and carry away the goods with intent to steal 
 Com. 23o. them ; so if he carry the whole pack to the place appointed, and 
 
 then carry it away with intent to steal it, this is a felonious tak- 
 ing; for the delivery had taken effect, and tUe privity of the 
 bailment was determined. But that must be intended, says Lord 
 Hale, when he carries them to the place, and delivers or lays 
 them down ; for ihere his possession by the first delivery is deter- 
 mined, and the taking afterwards is a new taking. 
 
 aHnuk. c. So where a weaver who has received silk to work, or a miller 
 
 33. s. s. who has corn to jrrind, take out part with an intent to steal it, it 
 will be felony ; for here, by the severance, he wrongfully obtains 
 a distinct possession of a part not delivered to him by the owner. 
 Cnrtwrigiit So where a bureau is delivered to a carpenter to repair, and 
 
 sV Gre j n> 40s ^ e discovers in a secret drawer money, which he takes out and 
 converts to his own use, it is felony. 
 
 2 East, P. c. When one has only the bare charge or custody of the goods 
 564 i Hale, o f another, the legal possession remains in the owner, and the 
 lHawk.e. party may be guilty of trespass and larceny in fraudulently con- 
 verting the same to his own use. Thus, a butler may commit 
 larceny of plate in his custody, or a shepherd of sheep, or a 
 guest in an inn. The same of a servant entrusted to sell goods 
 in a shop. This rule appears to hold universally in the case of 
 servants, whose possession of their master's goods, by their deli- 
 very or permission, is the possession of the master himself. 
 
 2F,mt, T.C. Although there must be a taking in fact from the actual or 
 HjfwiTc'si constructive possession of the owner, yet it need not be by the 
 s. 8. i Kale, very hand of the party accused. For if he fraudulently procure 
 jo! another, who is himself innocent of any felonious intent, to take 
 
 the goods for him, it will be the same as if he had taken them 
 himself, and the. taking must be charged to be by him ; as, if 
 one procure an infant within the age of discretion to steal goods 
 for him. So, if A. having a design to steal B.'s horse, which was 
 impounded on a distress, enters a plaint in replevin for the horse, 
 and thereby getting it delivered to him, runs away with it ; or in- 
 tending to steal the. goods of B. in his house, he delivers an < 
 ment fraudulently, and having obtained judgment against the ca-
 
 LARCENY AND ROBBERY. 285 
 
 sual ejector, he gets possession, and goes oil" with the goods, it is 
 felony in either case. 
 
 2. Carrying away. 
 
 There must, not only be a taking, but a carrying away. A bare * Black. 
 removal from the place in which the thief found tlx pn;i;.-., Co '"' 
 though he does not quite make off with them, is a sufficient aspor- 
 tation or carrying away. 
 
 Upon this ground, the guest who, having taken off the sheets 2 Ka<t r. c. 
 from his bed, with an intent to steal them, carried them it, to t! 1 rim: . 
 hall, and was apprehended before he could get out of the house, w,t? i s H " >K 8 % 
 adjudged guilty of larceny. So also was ho, who hayiug takeaa Hak, io. 
 horse in a close with intent to steal it, was apprehended b( fort- he 
 could get it out of the close. And such was the case of 'aim \VMO, 
 intending to steal plate, took it out of the trunk M-II.T- in ,i \\-is, 
 and laid it on the floor, but was surprised before ii v:ould remove 
 it any further. 
 
 A man was detected in taking a bale of goods in a waggon. It \^'" p C- 
 appeared that the bale lay horizontally, and tliat he had set it < L. .< 
 its end. As it had not been removed from the spot, it was liol )<:. 
 that it was not a sufficient carrying away. But where a n: . 
 with a felonious intention, had removed goods from tli : head to 
 the tail of a waggon, it was adjudged to be a suificit;i. n,,;joval to 
 constitute a carrying away. 
 
 If the thief once take possession of the thing, the offence is 2 East p. c. 
 complete, though he afterwards n:iurn it. As if a robber, find- iHaie>=33. 
 ing little in a purse which he had taken from the owner, restore 
 it to him again, or let it fall in struggling, and never take it up 
 again, having once had possession of it. 
 
 3. Who may be guilty of larceny. 
 
 Joint tenants, or tenants in common of a chattel, cannot be 2 East, p c. 
 guilty of stealing the same from each other, because the, proper- j 5 ;^. ^ 3- 
 ty and possession is in both. But under some circumstances a * H "j-c- 
 man may be guilty of larceny in stealing his own goods, or of 
 robbery in taking his own property from the person of another. 
 As where A. delivers Roods to B. to keep for him, and then 
 steals them, uith intent to charge B. with the value of them : this is 
 felony in A. 
 
 A feme covert cannot commit larceny of her husband's goods, 2 East, p. c. 
 from his own possession, because in law they are considered but iHaie.au. 
 as one person, and she has a kind of interest in his goods, on 
 which account not even a stranger can commit larceny of such, 
 by the delivery of the wife, although he knew they were the hus- 
 band's goods; but, notwithstanding, trespass will lie against the 
 stranger. 
 
 A wife cannot commit larceny in the company of her bus- a East, P. c.
 
 286 LARCENY AND ROBBERY. 
 
 hand; for it is deemed his coercion, and not her own voluntary 
 act. Yet, if she do it in his absence, and by his mere command,, 
 she is then punishable as if she were sole. 
 
 A servant, as has been before mentioned, may be guilty of lar- 
 ceny, in taking away the goods of his master, delivered to his 
 keeping, by the common law : and the provision of the common 
 law is declared and enforced by the following statute: 
 
 " If any servant to whom any money, goods, chattels, or bills 
 of exchange, bonds, orders, warrants, bills, or promissory notes 
 for payment of money, or any public security issued or to be is- 
 sued by authority of the United States, or of this state, for pay- 
 ment of money, heretofore have been, or hereafter shall be, by 
 his or her master or mistress, delivered to be safely kept, hath 
 withdrawn himself or herself from his or her said master or mis- 
 tress, and gone away, or hereafter shall withdraw himself or her- 
 self from his or her said master or mistress, and go away with the 
 said money, goods, chattels, or bills of exchange, bonds, orders, 
 warrants, bills, or promissory notes for payment of money, or any 
 public securities issued, or to be issued, by authority of the United 
 States, or of this state, for payment of money, or any part there- 
 of, to the intent to steal the same, and defraud his or her said 
 master or mistress thereof, contrary to the trust and confidence 
 in him or her reposed, by his or her said master or mistress, or 
 being in the service of his or her said master or mistress, with- 
 out assent or commandment of his or her said master or mistress, 
 hath embezzled, or shall embezzle, the same money, goods, chat- 
 tels, or bills of exchange, bonds, orders, warrants, bills, or pro- 
 missory notes for payment of money, or any public securities is- 
 sued or to be issued by authority of the United States or of this 
 state, for payment of money, or any part thereof, or otherwise 
 hath converted or shall convert the same to his or her own use, 
 with like purpose to steal the same, then, and in every such case, 
 if the said money,'goods, chattels, bills, or promissory notes for 
 payment of money, or any public securities issued or to be issued 
 by authority of the United States, or of this state, for payment of 
 money, that such servant hath gone away with, or shall go away 
 with, or which said servant hath embezzled or shall embezzle, 
 with purpose to steal the same, as aforesaid, be of the value of 
 two dollars and fifty cents, or above, the same false, fraudulent, 
 and untrue act or demeanour, shall be adjudged felony. But this 
 act shall not extend to any apprentice, nor to any person within 
 tluj age of eighteen years, going away with the monies, goods, 
 chattels, or bills of exchange, bonds, orders, warrants, bills, or pro- 
 missory notes for payment of money, or any public securities is- 
 sued or to be issued by authority of the United States, or of this 
 state, for payment of money, of his or her master or mistress, or 
 otherwise converting the same to his or her own use, during the 
 time of his or her apprenticeship, or being within the age of 
 n years ; and every apprentice, and every other person un--
 
 LARCENY AND ROBBERY. 287 
 
 der the age of eighteen years, doing or offending contrary to this 
 act, shall stand and be in like case as if this act had not been 
 made." Sess. 36. c. 20. 1 R. L. 412. 
 
 But, in order to constitute larceny in the servant, it is necessary 2Eit,p. r. 
 that the goods purloined have been in the master's possession be- "' 
 fore the actual taking by the servant; for if the master had no 
 otherwise the possession of them than by the bare receipt of his 
 servant, upon the delivery of another for the master's use, and 
 the servant have done no act to determine his original, lawful and 
 exclusive possession, as by depositing the goods in his master's 
 house, or the like : because there was no tortious taking in the 
 first instance, and consequently no trespass, as there is when a 
 servant converts to his own use property in the virtual possession 
 of his master, whereof he has but the bare charge, for special pur- 
 poses, committed to him by such master. 
 
 Thus, in Bazdy's case, who was indicted for stealing a bank 2East,p.c. 
 note, the property of certain bankers, it appeared that A. who gYcacb 9tv 
 kept cash with the bankers, sent by his servant 122 in bank 
 notes, and 15 in money, and amongst the bank notes was the 
 note in question. That the servant delivered the whole into thr 
 hands of the prisoner, who was a clerk to the bankers, and as suck 
 authorized to receive and give a discharge for the same ; and that: 
 it was his duty to put the money receiv ed into a till, and to place 
 in another drawer the several bank notes which he might receive; 
 during the day. The prisoner gave an acknowledgment to the. 
 servant of having received the full sum of 137, and put the 
 money into the till ; but instead of placing the remaining sum of 
 1 22, which he received in bank notes, into the drawer, according 
 to his duty, he kept back the one of 100, for which he was in- 
 dicted ; and only delivered over those to the amount of <2'2. 
 The jury found the prisoner guilty, subject to the opinion of the 
 .judges, whether such taking were to be considered as felonious, or 
 only a breach of trust? The judges of England agreed that it 
 was not felony, in as much as the note was never in the possession 
 of the bankers, distinct from the possession of the defendant; 
 though it would have been otherwise if the prisoner had de- 
 posited it in the drawer, and had afterwards taken it. 
 
 4. Of what things larceny may be committed. 
 
 It must be of goods personal, and not of chattels real, or such 2 East, p. c. 
 as are annexed to the freehold. For at common law it is surely a 4Biaek.Com. 
 trespass, and not a felony, to take such things : the reason of "^ wk . c> 
 which seems to be, that things annexed to the freehold, being 33.5.21. 
 usually more difficult to remove, are k'S3 liable to be stolen, and 5 i p'. aU ' >< "'' 
 therefore need not be secured by such severe laws as mere per- 
 sonal goods require. Wherefore no larceny can be committed of 
 trees, grass, hedges, stones, or lead of a house, or the like. But, 
 when once they are severed from the freehold, either by the
 
 283 LARCENY AND ROIJBERY. 
 
 owner, or even by the thief himself, if there bo an interval be- 
 tween his severing and taking them away, so that it cannot ). 
 consider :d as one continued -ict, it would then be felony to take 
 them H-.v.iy. Thus, of wood cut, grass in cocks, stones dug out 
 oi' t <]ti , y, larceny may be committed. 
 
 | Kl . sf ',| >- Cl A ; i iiv.eny cannot he committed of things real at common law, 
 "". neither can it be committed of charters or other written assu- 
 rances concerning the realty, because they savour of the same 
 
 iHaie,5io. natnr:. 1 ; or as some writers say, because they are not in them- 
 selves of auv value. Neither were bonds, bills, and other securi- 
 ties, whirl', concern mere rhoses in action, considered as subjects 
 ot'l-'reiiy at common law ; being of no intrinsic value, and not 
 importing any properly or possession of the person from whom 
 they are taken. 
 
 But it is now provided by statute, "That if any person shall 
 steal, or take by i :>'>'). TV, any bill of exchange, bond, order, war- 
 rant, bill, or promissory note for payment of any money, or any 
 certificate or other public security issued or to be issued by the 
 authority of the United States, or by authority of tlie legislature 
 of this state, for payment of money, or eceipt 
 
 of money or goods, being the property of any other person or per- 
 sons, or of any corporation, notwithstanding any of the *]-. 
 ticulars are, or may b<- termed in law a chose in ad ill be 
 
 deemed and construed to be felony, of the same nature an.i 
 same degree, and in the same manner as it. would ' if the 
 
 Sender had stolen or taken bj robbery any cli -f the 
 
 like value with the m->ae.y diie on surh ';'.!, hoed, or-) 
 or note, or certificate, or other public stcurity. >< ^ : ured i; 
 and remaining unsaii>n.-:d, and such al' sm!V;- 
 
 punishment as he or she ouj: 1 " !i oflVnder ;>ad 
 
 stolen or taken by robber;, j ^i uii, imu salue, as afore- 
 
 said." Sess. '^'4. c. 88. i'it. L. 174. 
 
 " Jf any record, or parcel of the same, writ, return, panel, p^o- 
 cess, or other proceeding in the court of chancery, supreme . rt, 
 exchequer, or in any other court of record, or in the office of !e 
 secretary of this state, or in the office of the clerk of any city or 
 county in this state, hath been, or hereafter shall be stolen, or 
 willingly taken away, withdrawn or avoided, by any clerk, or by 
 any other person, by reason whereof any judgment shall be re- 
 versed, then every such stealer, taker -away, withdrawer or avoid- 
 er, their procurers, counsellors and abettors, being convict' .) or 
 attainted thereof, according to the due course of l;<vt shall be .id- 
 judged guilty of felony." Sess. I I. c. '22 s. 1. I R. L. 1 i 2. 
 
 "This act shall not extend to any amendment or entry made, 
 or to be made, by any rule, order, judgment, or decree of any 
 court." s. 2. 
 
 4!noU. Larceny cannot be committed of such nnir.irJs in which there 
 
 ^SA. is no property, either absolute or qua'iiii d . as .if Leasts It. 
 
 "o^6 S H. P 6j7,' fe rK nature: and unreclaimed, such as deer and hares in a forest;
 
 LARCENY AND ROBBERY. 289 
 
 fish in an open river or pond ; or wild fowls at their natural liber- 
 ty. But if they are reclaimed and confined, and may serve for 
 food, it is otherwise, even at common law : for of deer so inclosed 
 in a park that they may be taken at pleasure, fish in a trunk, and 
 pheasants or partridges in a mew, larceny may be committed. But 
 of all valuable domestic animals, as horses and other beasts of 
 draught, and of all animals domitce naturce, which serve for food, 
 as neat or other cattle, swine, poultry, and the like, and of their 
 fruit or produce, taken from them while living, as milk or wool, 
 larceny may be committed ; and also of the flesh of such as are 
 either domitce. offeree naturce, when killed. As to those animals 
 which do not serve for food, and which, therefore, the law holds 
 to have no intrinsic value, as dogs of all sorts, and other creatures 
 kept foK whim and pleasure, though a man may have a bare pro- 
 perty therein, and maintain a civil action for the. loss of them, yet 
 they are not of such estimation, as that the crini.-. of stealing them 
 amounts to felony. 
 
 Larceny can only be of a thing which has some value in itself. 3 IIa "* c ' 
 Where a defendant was tried and convicted before a special ses- Payne v. the 
 aions for stealing a letter, the proceedings having been removed j^ 8 Rep . 
 by certiorari, the conviction was quashed. Per curium. The ii 
 Jetter was of no intrinsic value, nor importing any property in 
 possession of the person from whom it was taken. A bond, bill, 
 or note, was not the subject of larceny, at the common law ; and 
 they certainly had as much worth in themselves as this letter. 
 The carrying away of the letter was, therefore, neither " a petty 
 larceny, misdemeanour, breach of the peace, or other criminal 
 offence," of which the special sessions had cognisance, and the 
 conviction must be quashed. 
 
 5. To whom the property stolen must be charged to belong. 
 
 With respect to things which are the regular subjects of pro- 2 East, P. C v 
 perty, felony may be committed in stealing them, though the miwu.c.33, 
 owner be not known, for the guilt of the thief is the same And * ^ 9 . 
 he may he charged in tho indictment with having stolen the 2Hai,'i8i, 
 goods of a person to the jurors unknown, or with having re- 29 * 
 ceived goods stolen by a person unknown. But if the owner be 
 really known, an indictment, alleging the goods to be the property 
 of a person unknown, would be improper: in that case, the pri- 
 soner must be discharged of that indictr..ent, and tried upon a 
 new one, for stealing the goods of the owner by name. And in 
 prosecutions for stealing the goods of a person unknown, some 
 proofs must be given sufficient to raise a reasonable presumption 
 that the, taking was felonious ; for it is not enough that the. prison- 
 er is unable to give a good account how he came by the goods. 
 
 Any one who has a special property in goods stolen, may lay 2 East, P.O. 
 them to be. his in an indictment for larceny ; as a bailee, pawnee, "* 1 ** 
 lessee for years, Carrier, or th<; like ; a fortiori, they may be laid 
 
 { 37 ]
 
 LARCENY A.VD ROBBERY. 
 
 to he the property of the respective owners, and the indict 
 is good Hither way. But if it appear in evidence that the party, 
 whose goods they are laid to be, had neither the property nor 
 the possession, (and for this purpose the possession of a feme co- 
 vert or servant is, generally speaking, the possession of the hus- 
 hand or master.) the prisoner ought to he acquitted on that in- 
 dictment. The same rule prevails in the case of goods belong- 
 ing to a guest, stolen at an inn ; they may be laid to be the pro- 
 perty either of the inn-keeper or the guest. So goods stolen 
 from a washerwoman, who takes in the linen of other persons 
 to wash, may be laid to be her goods. So where floods are stolen 
 out of a stage coach, although the driver be not the owner of the 
 coach, and be not liable to the proprietors, the property may, not- 
 withstanding, be laid to be in the driver. 
 
 If A. steals the horse of B., and afterwards C. steals the san>e 
 horse from A., in this case C is a felon both as to A. and as to 
 B. ; for by the theft by A., B. lost not the property, nor in law 
 the possession of his horse, and therefore C. may be indicted for 
 taking and carrying away the horse of B. 
 
 0. Of the felonious inle7if. 
 
 The felonious intent is essential to the offence ; and in order to 
 mak-e it felony, the intent to steal ought to be at the time when 
 the party first gets possession of the goods ; such a possession, at 
 least, as is distinct from that of the owner; for a fraudulent intent 
 originating afterwards, to convert the goods to his own use, is not 
 felony ; but the original felonious intent may be collected from 
 the subsequent acts. 
 
 It has been already stated, that a finding of the goods, or a 
 delivery by the owner, (some particular cases excepted, which I 
 have alluded to,) do not constitute such a taking as amounts to 
 felony; it will therefore be necessary, in this place, merely tu 
 mention some other cases, in which one person may take the 
 goods of another, but which are rendered excusable from the 
 want of the criminal intent. 
 
 Where a party retakes his own goods, unless it be done with 
 the design to charge the bailee, it is no felony, nor so much as a 
 trespass. As if A. take away the trees of B.. and rut them into 
 boards ; or if A. take the hay or corn of B. and mingle it with his 
 own heap or cock; or if -A. take the cloth of B. and embroider it 
 with silk or gold, B. may retake the whole heap of corn, or cock 
 of hay, or garment and embroidery also ; so much, at least, I 
 presume,' says Mr. Ea?t, as cannot easily be distinguished from 
 his own. And here, .the same writer observes, that in any case, 
 if there be a .y fair pretence of property or right in the prisoner, 
 or if it be brought into doubt at all. the court will direct an ac- 
 q'rtt;-.! . for i: ; :;:< such di-putes should be settjed in a 
 
 manner to bnug men's lives into jeopardy.
 
 LARCENY AND ROBBERY. 291 
 
 So where the party takes the goods of another by mistake, as maie,507. 
 if the sheep of A. stray from the flock of A. into the flock of 
 B., and B. drives them along with his flock, or by pure mistake 
 shears them, this is not felony; but if he knew them to be ano- 
 ther's, and mark them with his mark, this is an evidence of felony. 
 
 The taking may amount only to a trespass, and the circum- 2 East, p. c. 
 stances in such case must guide the judgment. As when a man i*HJ le 309. 
 takes another's goods openly before him, or before other persons, 
 otherwise than by apparent robbery, or having possessed himself 
 of them, avows the fact before he is questioned. 
 
 So where a man takes another's harrow or plough, and after iwd. 
 ploughing his own land, returns it to the place' whence he took 
 it, or tells the owner of his using it. So, taking a horse off the 
 common, and, after riding, returning it there again, is but a tres- 
 pass ; but if the party had sold it, this would be. declarative of the 
 first taking being felonious, and in doubtful cases, the safest rule 
 is, to incline to acquittal rather than conviction. 
 
 So, where the prisoners entered another man's stable at night, Philips and 
 and took out his horses and rode them thirty-two milts, and left 2Ea"f V. c? 
 them at an inn, and were afterwards found pursuing their journey 662< 
 on foot ; the jury having found that the prisoners took the horses 
 merely with intent to, ride, and afterwards leave them, and not to 
 return or make any farther use of them, it was holden trespass, 
 and not larceny. 
 
 II. Mixed larceny, 
 
 Mixed or compound larceny is such as has all the properties of 4Bia<Oi.Com 
 the former, but is accompanied with the aggravation of taking 240 ' 
 from one's house or person. I shall, in this place, speak only of 
 a taking from the house : larceny from the person, when accom- 
 panied with violence, is usually called robbery, and will be consi- 
 dered in the next section : a secret stealing from the person is 
 with us no more than simple larceny, the statute of 8 Eliz. c. 4., 
 by which the felonious taking from the person of any other privily 
 rvithout his knowledge, is subjected to a higher degree of punish- 
 ment, not having been, under any modification, re-enacted in 
 this state. 
 
 By the act, sess. 36. c. 29. s. 3. the " feloniously breaking into 
 or taking any goods or chattels from any dwelling house, any 
 person being therein and put in fear, or of robbing any dwelling- 
 house, any person being therein," are made punishable with im- 
 prisonment for h'fe. 1 R. L. 408. 
 
 By stat. 1 Ed. 6. c. 12. s. 10. the breaking of any house by day 2 East. p. c, 
 or night, any person being in the house and put in fear, is de- 
 prived of the benefit of clergy. The word breaking in this act, 
 and I presume the same construction will apply to our statute, is 
 understood to be such a breaking as amounts to, or is attended
 
 292 LARCENY AND ROBBERY 
 
 with some felony ; and, therefore, if the house he broken in the 
 daytime, though with a felonious intent, yet if nothing he taken, 
 it is not within the statute; or if done by night, it must be such 
 a breaking as would constitute burglary. But where goods are 
 taken from a dwelling house, no breaking is necessary to render 
 the offence complete. As to what shall be a dwelling-house 
 within the act, the same rules prevail as in the case of burglary, 
 s East, p. c. To constitute a robbery of a dwelling-house within the next 
 clause of the act, a breaking of the house is necessary, (such at 
 least has been the construction of a similar English statute,) but it 
 does not require that any person should be put in fear. 
 
 III. Robbery. 
 
 4Biack.Com. -Open and violent larceny from the person, or robbery, is the 
 ^* 3 - felonious and forcible taking from the person of another, of goods 
 
 or money to any value, by violence or putting him in fear. 
 
 The value of the thing taken makes no difference in the crime ; 
 c a P enn 7' as ut ^' as a pound, forcibly extorted, makes robbery. 
 " But something must be taken ; for an assault, with an intent to 
 
 rob, is an offence of a different and inferior nature. 
 3. As to the taking which is necessary to constitute robbery, it 
 ' is not always necessary that there should be a taking strictly from 
 the person ; but it is sufficient if it be done in his presence, pro- 
 vided it be accompanied with violence or a putting in fear ; as 
 where a carrier drives his pack horses, and the thief takes his, 
 horse, or cuts his pack, and takes away the goods : so if a thief 
 comes into the presence of A., and with violence, and putting A. 
 in fear, drives away his horse, cattle or sheep ; so, if A. throw 
 his purse or cloak in a bush, and B. takes it up and carries it 
 away ; or if while flying from the thief, he lets his hat fall, and 
 the tiiief take it and carry it away. 
 
 . ^ '^ tne 1'obber restore what he has taken ; as if A., without 
 drawing his weapon, requires B. to deliver his purse, who does 
 deliver it, and A. finding but two shillings in it, gives it him again, 
 this is a taking by robbery. 
 
 . ^ thieves come to rob A., and finding little about him, enforce 
 him, by menace of death, to swear upon a book to fetch them a 
 greater sum. which he does accordingly, although not in con- 
 science bound by such compelled oath, yet the fear continued, 
 and made the taking robbery. 
 
 But if the taking be not either directly from his person or in 
 8 'sua/iois. his presence, it is no robbery. , As where thieves struck money 
 2Kast, p.c. out of the owner's hands, and by menace drove him off, so that 
 he could not. take it up, ar^l then they took it up themselves ; it 
 not being found in the special verdict, that they took up the mo- 
 ney, in the sight or presence of the owner, the court would not 
 intend .it.
 
 LARCENY AND ROffBERY. 293 
 
 As to the violence necessary : No sudden taking of a thing un- ^"^'^ 
 awares from the person, as by snatching any. tiling from the hand Ltach, 238. " 
 or head, is sufficient to constitute a robbery* unless some injury 
 he done to the person, or unless there be some previous struggle 
 for the possession of the property. As, where a hat and wig was 
 snatched from the head of a person walking in the street, it was 
 held no robbery ; but where a person took a sword from a gvn- 
 tleman's side, and it appeared that the gentleman perceived him 
 laying hold of his sword, and that he himself laid hold of it at 
 the same time, and struggled for it, this was adjudged robbery. 
 
 Robbery may also be constituted by putting in fear as well as * j^ 85 ^' c> 
 by force; or perhaps in strictness it may be said, that fear will ias > i29. 
 supply the place of force ; yet it is not necessary that actual fear 
 should either be laid in the indictment, or strictly and precisely 
 proved, provided the property be taken with such circumstances 
 of violence or terror, or threatening by word or gesture, as 
 would in common experience induce a man to part with it from 
 an apprehension of personal danger : but it is necessary that it be 
 taken against the will of the party. As if a man be knocked 
 down without any previous warning to awaken his fears and lies 
 totally insensible while the thief rifles his pockets, it is robbery, 
 and yet there is no actual fear. Or if a man makes resistance, 
 but is overpowered, and his property taken from him by dint of 
 superior strength, this is robbery. And in cases where a man 
 delivers his purse without resistance, if the fact be attended 
 with those circumstances of violence or terror which, in common 
 experience, are likely to induce a man to part with his property 
 for the safety of his person, that will amount to a robbery. 
 
 So, where a person, under pretence of :ilms, extorts money from 2Et, P. c. 
 another, if at the time there are indications of a felonious intent, 
 and the other gives it him, through apprehension of violence, it is 
 robbery. So, a man will not be allowed to shelter himself under 
 colour of a sale: as where a person, by force or threats, compel 
 another to give him goods, and by way of coheir, oblige him to 
 take, or if he offer, less than the value. But it is doubted iHawk. c. 
 whether the forcing a higler, or other chapman, to sell his 4 El'a 
 wares, and giving him the full value of them, amounts to so 244. 
 heinous a crime as robbery. 
 
 It does not appear necessary that the fear should be confined 2 East, p. c. 
 to an apprehension of bodily harm ; as where money was ex- L', 4 j c ^ e 'i 64 . 
 torted by the threat of charging a man with the commission of an i u-ach, 229. 
 unnatural crime, or with an attempt to commit such crime, it was 
 holden robbery. And in a similar case, in which the prisoner was 
 convicted, the prosecutor swore that he parted with his money 
 for fear of. losing his character, and that he had no other fear. 
 
 So, where money, extorted hy threats of pulling down the pro- j East, p. c 
 sccutor's house : butinallthe cases of this kind, the danger was ' 2 J 8> i . i( . |i 3|0 
 urgent; the threats were to be accomplished by the agency of a -i East, p. c." 
 mob, which was already raised, and which had committed similar 72y - 73 M32.
 
 294 LARCENY AND ROBBERY. 
 
 acts of violence : they were of immediate, speedy or signal mis- 
 chief, and the execution of them could not have been impeded by 
 any ordinary prudence or firmness, or by any recurrence to the 
 protection of the laws. 
 
 i Hale, 53 1. The putting in fear must be previous to the taking; as if the 
 thief pick another's pocket, and take his purse, and is not disco- 
 vered until afterwards, and then, on its being demanded of him, re- 
 tains it with threats of violence, it is only larceny ; for here the 
 fear is subsequent. 
 
 IV. Punishment of larceny and robbery. 
 
 "Robbing any person in any place whatsoever," is punishable 
 with imprisonment for life. Sess. 3d. c. 2y. s. 3. 1 R. L. 408. 
 
 " If any person shall be indicted of felony, for stealing of any 
 goods or chattels in any county of this state, and thereof be con- 
 victed or attainted, if it shall appear upon evidence, and be found 
 by the jury, that the said goods or chattels were taken by robbery 
 or burglary, or in any other manner, in any other county, whereof 
 if such person had been convicted by a jury of such other county, 
 such person would by law be liable to imprisonment in the state 
 prison for life, at hard labour, or in solitude, or both ; then, and in 
 every such case, judgment shall be given that the said offender be 
 imprisoned in the said prison for life, at hard labour, or in solitude, 
 or both." Sess. 36. c. 29. s. 2. 1 R. L. 408. 
 
 The punishment of simple larceny is regulated by the value of 
 the property taken; and, according to the same rule, simple lar- 
 ceny is itself divided into petty larceny, or the stealing to a small 
 amount, and grand larceny, or the stealing of goods of a greater 
 value. 
 
 "Every person who shall be guilty of the felonious taking and 
 carrying away of the mere personal goods of another, of the va- 
 lue of twelve dollars and fifty cents, or under, if unconnected with 
 any other crime, shall be deemed and adjudged guilty of petit lar- 
 ceny only ; and every person who shall be hereafter duly convict- 
 ed of petit larceny, shall be punished by fine, not exceeding two 
 hundred dollars, or imprisoned in the county gaol or prison, for a 
 term not exceeding three years." Sess. 36. c. 29. s. 10. 1 R. 
 L. 410. 
 
 Grand larceny is punishable with imprisonment, not to exceed 
 fourteen years. Sess. 36. c. 29. s. 5. 1 R. L. 409. 
 
 V. Receivers of stolen goods. 
 
 JcreiM. Receivers of stolen goods are not liable as accessories, but can 
 
 only be punished for a misdemeanour. 
 
 " It shall be lawful to prosecute and punish every person buying 
 or receiving any stolen goods, knowing the same to be stolen, as 
 for a misdemeanour, although the principal felon be not convicted 
 i
 
 LIBEL. 295 
 
 of the said felony, which shall exempt the offender from being 
 punished as accessory to such felony, after the fact, if the princi- 
 pal shall be afterwards convicted." Sess. 36. c. 8. s. 6. 1 R. 
 L. 196. 
 
 ' Where any person shall buy or receive any goods or chattels 
 of any value whatsoever, that shall have been feloniously taken 
 away, or stolen from any other person, knowing the same to be 
 stolen, whather the principal be convicted or not ; and every per- 
 son who shall aid, abet, assist, hire, command, or procure any 
 other person to commit the same, shall, on conviction, be punish- 
 ed by fine and imprisonment, or either; or instead of, or in addi- 
 tion to a fine, may be imprisoned for three years, and for the se- 
 cond offence, shall be adjudged to imprisonment for a time not i 
 exceeding five- years." Sess. 36. c. 29. s. 13. 1 R. L. 4 1 0. 
 
 VII. Restitution of stolen goods. 
 
 *' If any felon do rob. or take away any money, goods or qhat- 
 tels from any person, and the said felon be thereof indicted and 
 found guilty, or otherwise attainted, by reason of evidence given 
 by the owner of the said money, goods, or chattels, bills of ex- 
 change, bills, or promissory notes for the payment of money, so 
 robbed or taken away, or by any other, by his procurement, then 
 such owner shall be restored to his money, goods, or chattels, bills 
 of exchange, bills or promissory notes for the payment of money, 
 and the court before whom the felon shall be convicted, may 
 award writs of restitution for the said money, goods, or chattels." 
 Sess. 36. c. 8. s. 14. 1 R. L. 497. 
 
 It is now usual for the court, upon the conviction of a felon, to 4 Black, 
 order (without any writ) immediate restitution of such goods, as 
 arc brought into court, to be made to the several prosecutors. 
 And if not restored, the party may maintain trover for them, into 
 whosesoever hands they may have come, posterior to the theft ; 
 or he may himself peaceably retake them wherever he may find 
 them, or bring an action against the thief for the trespass or con- 
 version. Sess. 36. c. 8. s. 20. 
 
 LIBEL. 
 
 A libel is a malicious defamation, expressed either in printing * ?* wk j 
 or writing, and tending to blacken the reputation of a person, and 
 to expose him to public hatred, contempt, or ridicule. And the 
 reason why it is punished as a public oilence, is, that it tends to a 
 breach of the peace, by provoking the parties injured, and their 
 friends and families, to acts of revenge. 
 
 , Not only charges of a flagrant nature, and which reflect a moral * *| ac<Abr * 
 turpitude on the 'party, are libellous, but also sricb. as set him in a iHawk.c. 
 
 73. 3. 7.
 
 296 
 
 3 Johui. Cai. 
 191. 
 
 9 Johns. Hep. 
 
 214. 
 
 3 Johns. Cat. 
 
 354. 
 
 Thomas v. 
 Croswell, 
 7 Johns. Rep. 
 264. 
 
 4 Slack. 
 Con-.. 150. 
 1 Caines' 
 Rep. 581, 
 
 LIBEL. 
 
 scurrilous, ignominious light; for tkese equally create ill blood, 
 and provoke the parties to acts of revenge, and breaches of the 
 peace. Hence it hath been'held, that words, though not scanda- 
 lous in themselves, yet if published in writing, and tending in any 
 degree to the discredit of a man, arc libellous, whether such words 
 defame private persons only, or persons employed in a public 
 capacity. 
 
 The following definition of a libel, by Mr. Hamilton, in the case 
 of the People v. Croswell, "is drawn with the utmost precision," 
 and has received the sanction of the supreme court. A libelis a 
 censorious or ridiculing writing, picture, or sign, made with a mali- 
 cious and mischievous intent towards government, magistrates, or in- 
 dividuals. 
 
 Thus, these words, published of a member of congress in a 
 newspaper, are libellous; he is a fawning sycophant, a misrepre- 
 sentatire in congress, and a grovelling office seeker; he has aban- 
 doned his post in congress in pursuit of an office. 
 
 In the same case the court held, that, under the pretence of 
 publishing the proceedings of a court of justice, to discolour and 
 garble the proceedings ty the comments and constructions of the 
 writer, so as to effect the purpose of aspersing the characters of 
 those concerned, is libellous. 
 
 It were easy to collect a great number of cases, in which par- 
 ticular words and expressions have been adjudged libellous ; but 
 the relative importance of this title does not require it to be ex- 
 tended to any length, and the preceding definitions will, I pre- 
 sume, be sufficient to enable the reader, in ordinary cases, to dis- 
 criminate between such matter as is libellous and such as is not. 
 
 To render the offence complete, it is necessary that the libel 
 should not only be written, but should be published. The com- 
 munication of a libel to any one person is a publication of it: and, 
 therefore, the sending an abusive pj-ivate letter to a man, is as 
 much a libel as if it were openly printed. Cor it equally tends to 
 a breach of the peace. 
 
 There having been doubts whether the jury, on the trial of an 
 indictment for a libel, could give their verdict >MI the whole mat- 
 ter in issue, and whether the defendant could justify himself by 
 showing the truth of th^ libel, it was enact< . s. c. 00. s. 
 
 1. 2 R. L. 5,53,) that the jury should determine the law and the 
 fact, under the direction of the court, in like manner as in other 
 criminal cases, and not be required to find the defendant guilty, 
 merely on the proof of the publication by the defend int of the 
 matter charged to be libellous, and of the sense ascribed thereto 
 in such indictment ; reserving, however, to the defendant the right 
 of applying to the court to have judgment arrested 
 
 By sect. 2. in every prosecution for writing any libel, the de- 
 fendant may give in evidence, in his defence, the troth of the mat- 
 ter contained in the publication charged as li l i."!i .MS ; but such, 
 evidence shall not amount unto a justification, unless it be made
 
 LIMITATION OF ACTIONS. 297 
 
 < tovily to appear, Unit the matt PI- charged as libellous, was 
 published with good motives and for justifiable ends. 
 
 Sect. 3. limits the penalty for writing or publishing a libel to 
 imprisonment not exceeding eighteen months, or fine not ex- 
 
 ;ig iive thousand dollars. 
 Sect. 1. abolishes prosecutions by information for a libel. 
 
 LIMITATION OF ACTIQXS. 
 
 I. limitation of personal actions. 
 II. Limitation of penal actions and informations,. 
 Hi. Limitation of criminal prosecutions. 
 
 I. Limitation of personal actions. 
 
 11 All actions upon the case and of account, other than actions for 
 .-lender, and actions which concern the trade of merchandise be- 
 tween iw reliant and merchant, their factors or servants, and all 
 actions of debt for arrearages of rent, or founded upon any con- 
 tract without specialty ; and all actions of trespass, detinue and 
 in for goods or chattels; and actions of trespass quare. 
 clausum fregit, shall be commenced and sued within six years ni-xt 
 after the cause of such actions accrued, and not after ; and all 
 actions for assault, battery, wounding and imprisonment, or any 
 of them, shall be commenced and sued within four years next- 
 after the cause of such actions accrued, and not after; and all ac- 
 tions on the case for words, within two years after the words 
 :--po!-:i>ri, and not after : Provided, however, That if in any of the 
 ;aii| actions judgment shall be given for the plaintiff, and the same 
 be reversed by eiror; or if a verdict pass for the plaintiff,- and 
 upon matter alleged in arrest of judgment, the judgment be given 
 against the plaintiff, that he take nothing by his plaint, writ or 
 bill ; or if any of the said actions shall be brought by original, 
 and the defendant therein be outlawed, and shall after reverse 
 the outlawry, in all such cases the party plaintiff, his heirs, execu- 
 tors or administrators, as the case shall require, may commence 
 a new action, from time to time, within one year next after such 
 judgment reversed, or such judgment given against the plaintiff, 
 or outlawry reversed, and not after: Jlnd provided also, That if 
 any person entitled to any of the said actions shall, at the time 
 the cause of action accrued, be within the age of twenty-one 
 years, fme covert, insane or imprisoned, such per.son shall be at 
 liberty to bring the said actions within the respective times above 
 .1, after such disability removed ; and if any person against 
 whom any cause of action shall accrue, shall be out of this state 
 at tin- time the same shall accrue, the person who shall be enti- 
 tled to .sach action, shall be at liberty to bring the same wilh- 
 
 ['38 ]
 
 '298 LIMITATION OF ACTIONS. 
 
 in the times respectively above limited, after the return of 
 the person so ab-.ent into this state." Sess. 2t. c. 1.83. s. 5. 
 I R. L. I 80. 
 4Bc. Abr. The statute does not extend to debts by specialty, and hence 
 
 47i. i72 an action of debt for the arrearages of rent reserved on a lease by 
 
 1 Saund. 37. . . ' 
 
 aSauud. r>4. indenture, is out of the statute : neither does it extend to an ac- 
 tion of debt for an escape,* the statute speaking only of actions 
 of debt founded upon any contract ; and an action of debt on an 
 award under seal, though the submission were by parol, is not 
 within the statute 
 
 Hiiiiheii v. The statute of limitations is a good plea in an action on a judg- 
 
 sJohns'Rep. merit recovered in another state, or in a foreign country : for 
 ^lialL* such a judgment is not a specialty, but a simple contract debt 
 iiJoiins. only, on which an action of debt or assumpsit will lie. 
 N ^'j ( * ' The limitation of the country or state in which the action is 
 
 Tiipper^ brought, and not that in which the contract was made, or the de- 
 )U'i>"'io2. mand arose, is to be observed. 
 
 KucHiti v. This statute cannot be a bar, unless the six years are expired 
 3 .Toims. Hep. after there hath been a complete cause of action; as if a mai; 
 fiiac. Abr promise to pay [01. to J. S. when he comes from Rome, or when 
 474. cites he marries, -and ten years after J. S. marry, or come from Rome, 
 the right of action accrues from the happening of the contingen- 
 cy, from which time the statute shall be a bar, and not from the 
 time of the promise. 
 
 ibid. So, in an action on the case, wherein the plaintiff declared, that 
 
 in consideration that he would forbear to sue the defendant for 
 some sheep killed by his (the defendant's) dog, the defendant 
 promised to make him satisfaction upon request, and that such a 
 time he requested, tc. the right of action accrued from the re- 
 quest, and not from the time of killing the sheep ; and there- 
 . fore the defendant could not plead the statute of limitations, the 
 request being within six years, though the killing the sheep and 
 promise of satisfaction was long before. 
 
 \vittmiiam On a mere loan of money, the time of limitation commences 
 ]' i ,, 1 ; ailj ' H Cav " from the time of the loan ; yet where the money is lent on a spe- 
 uiae'k. 03i. cial contract for repayment, it is the time of the repayment that 
 ought to fix the period of the limitation. So where a bill of ex- 
 change was drawn payable at a certain future period, for a sum 
 Ic.nt by the payee to the drawer at the time of drawing the 
 bill, the payee was allowed to recover the money in an action for 
 money lent, though nix years had elapsed since the time when 
 the money was advanced. 
 
 s Taunt. 323. No debt accrues on a bill payable a certain number of days 
 after sight, until it is presented for payment; therefore, the sta- 
 
 It is otherwise as to an action on the case for an escape.
 
 LIMITATION OF ACTIONS. 299 
 
 tute of limitations is no bar to such a note, unless it has been pre- 
 sented for payment six years before the action commenced. 
 
 The exception in the statute as to actions which concern the name-hand, r 
 trade of merchandise between merchants, must be confined to 2 John^Ren' 
 actions on -open or current accounts : they do not extend to ac- 200. 
 counts stated. It must be a direct concern of trade ; liquidated 
 demands, or bills and notes, which are only traced up to the 
 trade of merchandise, are too remote to come within this "de- 
 scription. 
 
 But though the exception in the statute is so far limited to 4 nc. AIM-. 
 transactions merely between merchant and merchant, that where j^ Jgj erni 
 there is no item of account at ah 1 within six years before the ac- Bull. N. P. 
 tion brought, the plaintiff will be precluded, unless he can show 
 that the accounts were between merchant and merchant, &LC. ; 
 yet a mutual account of any sort between a plaintiff and defen- 
 dant, though neither of them of the description of merchant, for 
 any item of which credit has been given within six years, is evi- 
 dence of a promise to pay the balance, and will take the case out 
 of the statute of limitations. But where all the items of an open, 
 unliquidated account are on one side, the last item which hap- 
 pens to be within six years, shall not draw after it tfiose that are 
 of longer standing. 
 
 The exception as to defendants out of the 'state extends to fo- Ruggleiv. 
 rcigners, or those who have resided altogether out of the state, 3 V jui,i>s. 
 as well as to citizens of the state who may be absent for a time. Kep. 203. 
 
 The coming from abroad must not be clandestine, and with an jr ow i,r v. 
 
 intent to defraud the creditor by setting the statute in operation, Hunt, 
 
 , * ' lojolms.Rtj>. 
 
 and then departing. It must be so public, and under such cir- -ic-i. 
 
 cumstances, as to give the creditor an opportunity, by the use 
 of ordinary diligence and due means, of arresting the defendant. 
 
 If the debtor departs after the cause of action has accrued, the Pkv. 
 action must be brought within the six years. The general rule is, fjoiu!s.'R-i>. 
 that when the statute of limitations once begins to run, it conti- 1G5> 
 nuesto run, notwithstanding any subsequent disability. 
 
 If the defendant plead the statute of limitations, and the de- cMod.aos. 
 fendant take issue upon it, evidence of a promise by the defen- a.^.''^ 
 dant, within six years before the commencement of the action, 
 to pay the debt, is sufficient to take the case out of the statute. 
 
 And though it be a conditional promise, it is sufficient if the i Lii. nayrr. 
 plaintiff performs the condition ; as where in assumpsit for goods j^^ 2 ^,. 
 sold and delivered, the defendant denied that he bought the 2 saumi. 04, 
 goods, but said, prove it, and I will pay you : this promise, with 
 a proof of the debt, was held to take the case out of the statute. 
 
 An acknowledgment of the debt takes it out of the statute, zsaumi. c-i. 
 even though it be after the commencement of the, action, and 2 jtinr. usa. 
 the slightest acknowledgment has been held sufficient ; as saying, j'^ 1 ': 5 ,' i8 ,; ri 
 " I am ready to account, but nothing is due to you ;" or, " if he has 
 any demand on tn>, if shall be settled," will takn a debt out of the 
 statute,
 
 300 LIMITATION OPs ACTIONS. 
 
 siuby r. If the defendant, on being arrested by the sheriff, promises to 
 
 V'.^',!!''"' settle with the plaintiff if he will give time fur payment, it is a 
 lUp. 401. sufficient acknowledgment to prevent the operation of the sta- 
 tute. 
 
 s^iii? V ' Where to a demand of a debt above aix years standing, the 
 
 4Esp!36. party, on being applied to tor payment, says, " I tiiink lam 
 bound in honour to pay the money, and shall do it wbei. t am 
 able," is a conditional promise only, and not an absolute one to 
 take it out of the statute of limitations. Where a defendant has 
 made a promise to pay a debt when he is able, it nml be 
 shown that he was able at the time when the action was 
 brought. 
 
 ivrnara Where A. offered to pay a debt barred by the statute of liniita- 
 
 sJu!ms.ktp. lions in certain specific articles, it was held that the promise was 
 conditional, and that the plaintiff was bound to show that he of- 
 fered, and was ready to accept the specific articles. 
 
 Pins'*" ^ n an ac *' on on two notes, in which the defendant had pleaded 
 
 lojuims. the statute, it was proved that the defendant, about two years 
 before the suit was brought, was shown the notes, and admitted 
 that they were given for an honest debt, but said that they had been 
 paid, and that he had sent the money to B., and supposed that he 
 had paid the plaintiff; but that if B. had not paid the notes, the 
 defendant said that he would pay them ; that he would not plead 
 the statute of limitations unless the money had been paid, and he 
 thought he could make that appear: it was lit Id that this was 
 sufficient to take the case out of the statute, and to cast upon the 
 defendant the necessity of prosing payment. 
 
 Culver*" ^ n an act ' on on a promissory note, the defendant pleaded the 
 11 Johns. statute of limitations, and the plaintiff proved that within a year 
 p. 145. of the trial, and after the commencement of the suit, the defen- 
 dant, OB being shown the note, admitted that he had executed it, 
 but said it was outlawed, and that he meant to avail himself of 
 th j statute of limitations ; this was held not to be sufficient evi- 
 dence of a promise to pay within six years. An acknowledgment 
 does not revive the old debt ; but is evidence only of a new pro- 
 mise, of which the former debt is the consideration. 
 
 2 Saud. 63. j f the defendant would take advantage of this statute, it is ne- 
 cessary for him to plead it, although the caus-e of action appears 
 on the declaration to have accrued upwards of six years before, 
 and he will not be permitted to give it in evidence on the general 
 issue. 
 
 II. limitation of penal actions and informations. 
 
 " All actions, informations and indictments, which at any time 
 hereafter shall be brought, sued or exhibited for any forfeiture 
 upon any penal statute, made or to be made ; whereby the for- 
 feiture is or fhall be limited to the people of this state only, shall 
 be brought, sued, or exhibited, svithin two years next after the of-
 
 LIMITATION OF ACTIONS. 301 
 
 ft nee committed, or to be committed against such penal act, and 
 not after ; and all actions or iBformations which shall at any time 
 hereafter be brought, sued or exhibited for any forfeiture upon 
 at, v penal statute, made or to be made, the benefit and suit where- 
 of is or shall be by the said statute limited or given to any person 
 Kill prosecute for the same, or to the people of this state, 
 and to ai.y other who shall prosecute in that behalf, shall be 
 brought, sued or exhibited by any person who may lawfully pur- 
 sue- !%r the same, within one year next after the offence commit- 
 ted, or to lie committed against the said statute ; and in default of 
 such pursuit, that then the same shall be sued, brought, or exhi- 
 bited for the people of this state at any time within two years 
 after that year ended ; and all actions or informations which shall 
 at any time hereafter be brought, sued or exhibited for any for- 
 feiture or cause upon any statute, made or to be made, the bene- 
 fit and suit whereof is or shall be given or limited to the party ag- 
 grieved, shall be brought, sued or exhibited within the space of 
 three years next after the offence committed, or to be commit- 
 ted, or cause of action accrued, and not after; and if any action, 
 information or indictment, for any offence against any statute, 
 made or to be made, shall be brought after the time in that behalf 
 above limited, the same shall be void : Provided always, That 
 where any action, information, indictment, or other suit, is or shall 
 be limited by any statute, to be sued, brought or exhibited, within 
 a shorter time than is hereby limited, then the same shall be 
 brought within the time limited by such statute." Sess. 24. c. 
 183. s. t>. 1 R. L. ISO. 
 
 It is unnecessary for the defendant, in a penal action, to plead 2Sauml.cs. 
 the above act, but he may take advantage of it on the general issue ; ^' b " ' 4l3 7 Bac ' 
 for the statute says, the same shall be void, consequently the 
 party does not owe the penalty demanded, the informer, in such 
 case, not having a right to demand the penalty; and the practice 
 is said to be, for the defendant to call upon the plaintiff to prove 
 the commencement of his action within the limited period. The 
 party grieved is not within the restraint of the statute, but may 
 sue in the same manner as before. 
 
 III. Limitation in criminal prosecutions, 
 
 "All suits, informations and indictments which shall hereafter 
 be brought or exhibited for any crime or misdemeanour, murder 
 excepted, shall be brought or exhibited within three years next 
 after the offence shall have been committed, and not after, and if 
 brought or exhibited after the time hereby limited, the same shall 
 be void : Provided, however, that if the person against whom such 
 suit, information or indictment shall be brought or exhibited, shall 
 not have been an inhabitant or usually resident within this state 
 during the said three years, then the same shall or may be brought 
 or exhibited against such person at any time within three years.
 
 302 LOTTERIES. 
 
 during which he shall be an inhabitant or usually resident within 
 this state, after the offence committed: And provided also, that 
 where any suit, information, or indictment, for any crime or mis- 
 demeanour, is limited by any statute to be brought or exhibited 
 within a shorter time than is hereby limited, then the same shall 
 be brought or exhibited within the time limited by such statute." 
 Sess. 24. c. 183. s. 7. 1 R. L. 1ST. 
 
 LOTTERIES. 
 
 The act to prevent private lotteries, and to restrain iti&vrance of 
 lottery tickets, sess. 36. c. 10. s. 1. 2 R. L. 188, declares every lot- 
 tery, other than such as shall be authorized by the legislature, a 
 common and public nuisance ; and such offence is cognizable be- 
 fore the supreme courts, the courts of oyer and terminer, and the 
 courts of general sessions of the peace ; and those courts are re- 
 quired to direct the grand jurors to inquire of, and to present or 
 indict all offences against this act. 
 
 "No person or persons shall, within this state, open, set on 
 foot, carry on, promote, dra*v, or make, publicly or privately, any 
 lottery, game, or device of chance, of any nature or kind what- 
 soever, or by whatever name, denomination or title it may be cal- 
 led, known or distinguished, or. shall, by any such ways or means, 
 expose or set to sale any houses, lands, tenements, or real estate, 
 or any goods, wares, merchandises, cash, or other thing or things 
 whatsoever," and offenders who shall be convicted in either of 
 the courts mentioned in the first section of this act, shall forfeit 
 the amount of the whole sum or value for which such lottery was 
 made, and if such sum or value shall not be satisfactorily ascer- 
 tained to the court at the time of trial, then he shall forfeit one 
 thousand two hundred and fifty dollars, and be committed until 
 tfie forfeiture and costs be paid. s. 3. 
 
 " If any person shall vend, sell or barter, or offer to vend, sell 
 or barter any ticket or tickets of any lottery, other than such as 
 shall be authorized by the legislature of this state, or of any 
 game or device of chance ; or if any person or persons shall pur- 
 chase the same, or in any other way become adventurer or adven- 
 turers therein, or be any ways concerned in such lottery, game or 
 device of chance, either by printing, writing, or any other ways 
 publishing an account thereof, or where tickets may be had or 
 obtained for the same, or be in any wise aiding or assisting in the 
 same," on conviction in any of the before mentioned courts, shall 
 forfeit the sum of fifty dollars, s. 3. 
 
 1 : shall not be lawful fur any person or persons whomsoever, 
 
 to open, set up, exercise, or keep, by himself or herself, or by any 
 
 other person or persons, any office or other .place for registering 
 
 -inker or.uiunbers of any ticket or tickets in any public or
 
 LOTTERIES. 
 
 private lottery, authorized, or not authorized by any law of this 
 state, or of ;uiy other state or country, or lor registering the num- 
 bers or number of any ticket or tickets in any other lotteries, 
 whether public or private, and whether authorized by any law of 
 any other state or country or not, or by writing, printing, or other- 
 wise to publish the setting up, opening or using any such oflice or 
 offices, or other place : ,/lnd further, if any person or persons shall 
 offend against this act in any of the matters last aforesaid, he, she 
 or they shall be deemed guilty of a misdemeanour, and shall, up- 
 on conviction, be fined in a sum not exceeding two hundred and 
 fifty dollars, or be imprisoned for a time not exceeding three 
 months, by any court having cognizance thereof: Provided al- 
 ways, that nothing herein before contained shall be deemed OP 
 taken to prevent any person or persons who shall, have tickets 
 for sale, from keeping a check book, to enable him or her to know 
 what tickets are drawn or undrawn, for the purpose of making 
 sale of tickets during the time of the drawing of any such lottery 
 or lotteries." s. 7. 
 
 " It shall not be lawful for any person or persons whomsoever*, 
 to sell the chance or chances of any ticket in any such lottery as 
 aforesaid," (see last section) " or to insure for or against the draw- 
 ing of any such lottery as aforesaid, or to insure for or against the 
 drawing of any such ticket or tickets, or to receive any money or 
 goods in consideration .of any agreement to repay any sum or 
 sums, or to deliver the same or other goods, if any such ticket or 
 tickets shall prove fortunate or unfortunate, or any other chance 
 or event relative to the drawing of any such ticket or tickets, whe- 
 ther as to their being drawn fortunate or unfortunate, or the time of 
 their being drawn or otherwise howsoever, or under any pretence, 
 device, form, denomination or description whatsoever, to promise 
 or agree to pay any sum or sums, or to deliver any goods, or to 
 do, or forbear doing any thing for the benefit of any person or 
 persons, whether with or without consideration, on any event or 
 contingency relative or applicable to the drawing of any such 
 ticket or tickets, or the number or numbers of any ticket or 
 tickets, or to publish any proposal for any of the purposes afore- 
 said ; and'if any person or persons shall offend against this act in 
 any of the matters last aforesaid, he, she or they shall be deem- 
 ed guilty of a misdemeanour, and shall, upon conviction, be fined 
 in a sum not exceeding two hundred and fifty dollars, or be im- 
 prisoned for a time not exceeding three months, by any court 
 having cognizance thereof." s. 8. 
 
 " It shall not be lawful for any person or persons whomsoever, 
 to sell any share or shares of any ticket in any such lottery as 
 aforesaid," (that is, in any public or private lottery, authorized or 
 not authorized by any law of this state, or of any other state or coun- 
 try,) " nor any whole ticket, without being the owner or owners 
 of such ticket at the time of such sain : and all and every
 
 n 
 .304 LUMBER. 
 
 or persons who shall offend against this act in either of th- 
 spects, shall forfeit and pay the sum of twenty-five do. 
 
 The penally mentioned in the last pr^ct-din^ may 
 
 be recovered by action of debt, with costs of suit, in any court 
 having cognizance thereof, by any person who will prosecute for 
 the same ; the one moiety thereof, when recovered, shall he 
 paid to the overseers of the poor of the city or town wher. 
 offence shall be committed, for the use of the poor thereof, and 
 the other moiety to the person who shall sue for the same." s. 10. 
 
 " The justices of the peace, mayors, sheriffs, bailiffs, con- 
 stables, and other civil officers within their respective jurisdic- 
 tions, are hereby empowered, directed and required, to 
 their utmost endeavours, by all lawful way* and means, to pre- 
 vent the opening, setting on foot, or drawing any such unlawful 
 lotteries, games, or devices of chance, prohi 'itvd by this act." 
 
 B. 11. 
 
 But it is provided in the above section. " That this act. or any 
 clause, matter, or thing therein contained, shall not affect or be 
 deemed, judged or construed to affect any lottery orlotter 
 tablished, or to be established, by or under the authority 
 United States in congress assembled, or any act. m;itter or 
 thing, done or to be done in anywise relating to such lottery or 
 lotteries, by any person whomsoever." 
 Hunt T. A. lottery instituted bv the laws of another state, is within 
 
 K.ucker- - <* 
 
 backer. the act to prevent pnvate, lotteries. 
 5 Johns. Rep. 
 
 3J7. 
 
 LUMBER. 
 
 The first section of the act/or th f inspection of lumber, sess. 30. 
 c. tit). I R. L. 237. provides for the appointment of inspectors. 
 
 " If any person or persons shall ship on board any sfiip or ves- 
 sel for exportation to a foreign market, any lumber that has not 
 been inspected by some of said inspectors, he or they shall for- 
 feit and pay, for every thousand feet superficial measure, the um 
 of two dollars and fifty cents, and for every thousand feet cubic 
 measure, the sum of five dollars, to be recoxrred, wiih cj 
 suit, in any court having cognizance of the same, the one half to 
 the use of the poo'r in the cifv or town in which such suit imy be 
 had, and the other half to the prosecutor : and if any p- 
 than those appointed by law, shall be convicted of practisi; 
 duties of inspectors of lumber, t< the injury of said 
 such offender shall forfeit to tht- inspectors ten dollars for every 
 such offence, to be recovered as aforesaid." s. 5. 

 
 LUNATICS. 305 
 
 LUNATICS. 
 
 The more general description of a person, who from his want * BC. Abr. 
 of reason and understanding comes within the protection of the j n'ale.v.c. 
 !a\v, is that of non compos mentis. Every person of the age of dis- 33 - 
 cretion is, in law, presumed to be of sound mind and memory, 
 unless the contrary appear, and this rule holds as well in civil as 
 in criminal cases. 
 
 Non compos mentis is of four kinds. 1st. Idiots, who are of Co. Lit. MT. ' 
 non-sane memory from their nativity, by a perpetual infirmity. 
 2dly. Those that lose their memory and understanding by the vi- 
 sitation of God, as by sickness or other accident. 3dly. Lunatics 
 who have sometimes their understanding and sometimes not. 
 4thly. Drunkards, who, by their own vitions act, for a time de- 
 prive themselves of their memory and understanding. 
 
 An idiot, or natural fool, is one that hath no understanding from J^' 1 ^' ^" 
 his nativity ; and therefore is by law presumed ne-ver likely to at- 
 tain any. A man is not an idiot if he hath any glimmering of 
 reason, so that he can tell his parents, his age, or the like com- 
 mon matters. But a man who is born deaf, dumb, and blind, is 
 looked upon by the law as in the same State with an idiot ; he be- 
 ing supposed incapable of any understanding, as wanting all those 
 senses which furnish the human mind with ideas. A lunatic is 
 one who hath had understanding, but by disease, grief, or other 
 accident, hath lost the use of his .reason. A lunatic, is indeed 
 properly one that hath lucid intervals; sometimes enjoying his 
 senses, and sometimes not, and that frequently depending upon 
 the change, of the moon. 
 
 It is a general rule that idiots and lunatics, b^ing, by reason of 1 Hawk. P.C. 
 the-ir natural disabilities, incapable of judging between good and 
 cvif, are punishable by no criminal prosecution whatsoever. 
 
 All the several pleas and excuses, which protect the commit- 4 Riaek.^ 
 ting of a forbidden act from the punishment which isotherwi.se 
 annexed thereto, may be reduced to this single consideration, the 
 want or defect of will. An involuntary act, as it has no claim to 
 merit, so neither can it induce any guilt: the concurrence of the 
 will, when it has its choice either to do or to avoid the fact in 
 question,. being the only thing that renders human actions either 
 praiseworthy or culpable. Indeed, to make a complete crime, 
 cognisable by human laws, there must be both a will and an act. 
 For, though in foro conscienti ce, ?. fixed design or will to do an 
 unlawful act is almost as heinous as the commission of it ; yet, as 
 no temporal tribunal can search the heart, or fathom the inten- 
 tions of the mind, otherwise than as they are demonstrated by 
 outward actions, it therefore cannot punish for what it can- 
 Dot know. For which reason, in all temporal jurisdictions, au 
 overt act, or some open evidence of an intended crime is neer - 
 aarv, in order to demonstrate the depravity of the will, before the
 
 306 LUNATICS. 
 
 man is liable to punishment. And, as a vicious will, without a 
 vicious ;ict, is no oivil crrne, so, on the other han-i,^,' '.tiiwarnint- 
 able act, without a vicious will, is no crime at all. So, t'.iat to 
 constitute a crime against human laws, there must be, first, a 
 vicious will, and, secondly, an unlawful act consequent upon such 
 vicious will. 
 
 cou'f'st 22 Now, there are three cases in which the will does not join 
 with the act. 1. Where there is a defect of understanding. For 
 where there is no discernment there is no choice ; and where 
 there is no choice, there can be no act of the will, which is no- 
 thing else but a determination of one's choice to do, or to abstain 
 from a particular action : he, therefore, that has no understanding, 
 can have no will to guide his conduct. 2. Where there is under- 
 standing and will sufficient residing in the party, but not called 
 forth and exerted at the time of the action done ; which is the case 
 of ill offences committed by chance or ignorance. Here the will 
 sits neuter; and neither concurs with the act, nor disagrees to it. 
 3. Where the action is constrained by some outward force and 
 violence. Here the will counteracts the deed, and is so far from 
 concurring with, that it loaths and disagrees to what the man is 
 obliged to perform. 
 
 Of these three cases, the first only is connected with the sub- 
 ject of this title, and includes infancy, idiocy, lunacy, and in- 
 toxication. 
 
 When the infancy or non-age of the party furnishes an excuse 
 for the commission of a crime; or, rather, devests an act of its cri- 
 minality, is considered under the title INFANT. 
 
 4 Black. That case of a deficiency in will, the discussion of which parti- 
 
 cularly belongs to this head, which excuses from the guilt of 
 crimes, arises from a defective or vitiated understanding, viz in 
 an idiot or a lunatic. For the rule of law as to the latter, which 
 may easily be adapted also to the former, is, that furiosus furore 
 solum punitur. A madman is punished by his madness alone. la 
 criminal cases, therefore, idiots and lunatics are not chargeable for 
 their own acts, if committed when under these incapacities: no, 
 not even for treason itself. Also, if a man in his sound memory 
 commits a capital offence, and before arraignment for it, he be- 
 comes mad, he ought not to be arraigned for it; because he is not 
 able to plead to it with that advice and caution that he ought. 
 And if, after he has pleaded, the prisoner becomes mad. he shall 
 not be tried: for how can he make his defence? If after he be 
 tried and found guilty, he loses his senses before judgment, judg- 
 ment shall not be pronounced ; and if, after judgment, he becomes 
 of non-sane memory, execution shall be staid: for, peradventure, 
 f,;iys the humanity of the English law, had the prisoner been of 
 sound memory, he might have alleged something in v stay of 
 judgment or execution. 
 
 * r-lafi.-. If there be any doubt whether the party be compos or not, this 
 
 shall be tried by a jury. And if he be so found, a total idiocy, 01 
 
 *
 
 LUNATICS. 307 
 
 absolute insanity, excuses from the guilt, and of course from the 
 punishment of any criminal action committed under such depri- 
 vation of the senses : but if a lunatic haf.li lurid intervals of under- 
 standing, he shall answer for what he does in those intervals, as if 
 he had no deficiency. 
 
 As to actiticiai, voluntarily contracted madness, by drunkenness 4 Black. 
 er intoxication, which, depriving men of their reason, puts them Com - 25 > 26 - 
 in a temporary frenzy, our law looks upon this as an aggravation 
 of the offence, rather than as. an excise for any criminal misbe- 
 haviour. A drunkard, says sir Edward Coke, who is voluntarius Co. Lit. 247, 
 daemon, hath no privilege thereby ; but what hurt or ill soever he *' 
 doth, his drunkenness doth aggravate it. 
 
 Yet, if by the continued practice of drunkenness, an habitual or i Hale, P. c. 
 fixed phrenzy be caused, though this madness was contracted- by 32 ' 
 the vice and will of the party, yet this habitual and fixed phrenzy 
 thereby caused, puts the man into the same condition, in relation 
 to crimes, as if the same were contracted involuntarily at first. 
 
 If one who wants discretion, commit a trespass against the per- i Hawk. P. 
 son or possession of Another, he shall be compelled in a civil ac- c> c- 1 -*-*' 
 tion to give satisfaction for the damage. 
 
 He who incites a madman to do a murder or other crime, is a iHa*k. p. 
 principal offender, and as much punishable as if he had done it c - c - 1> ' >7 - 
 himself. 
 
 By the act, sess. 24. c. 30. s. 1. "The chancellor shall have the 
 care, and provide for the safe keeping of all. idiots and lunatics, 
 and of their real and personal estates, and for their maintenance, 
 and also for the maintenance of the families of such lunatics, and , 
 the education of their children, out of the personal estate of such 
 idiots and lunatics, and the rents and profits of their real estates 
 respectively, having regard to the amount and value of the same, 
 and shall take care that the same be not wasted or destroyed." 
 
 When an idiot doth sue or defend, he shall not appear by guar- 3 Bac. AUr. 
 dian, prochein amy, or attorney, but he must be ever in proper per- co. Lit. rss, 
 son. But otherwise of him who becomes non compos mentis ; for b< 
 he shall appear by guardian, if within age, or by attorney, if of 
 full age. 
 
 Idiots, lunatics, and madmen are not competent witnesses, and 10 Johns, 
 if offered, testimony may be adduced to show their incompetcncy. e *' 
 
 By the act, st-ss. 1 1. c. 31. s. 6. two justices, by warrant under 
 their hands and seals, may order lunatics, who are dangerous, to 
 be permitted to go abroad, to be apprehended and confined: as 
 *.o which, see DISORDER!^ PERSONS, ante, p. 90.
 
 308 MAINTENANCE. 
 
 MAINTENANCE. 
 
 I. Of maintenance in general. 
 
 II. Champerty. 
 
 III. Embracery. 
 
 IV. Barrttry. 
 
 V. Malicious prosecution. 
 
 I. O/" maintenance in general. 
 
 b3ii9 "'*"'*' Maintenance is an offence both at common law and by statute. 
 i Hawk. c. and in general, signifies an unlawful taking in hand or upholding of 
 4 3 Hac! Abr' q uarre l s j to the disturbance or hindrance of common right. 
 * 8 *r Maintenance is twofold, technically called ruralis and curialis 
 
 1. Ruralis, or in the country; as where one assists another in 
 his pretensions to certain lands, by taking or holding the posses- 
 sion of them for him by force or subtlety >or where one stirs up 
 quarrels and suits in the country, in relation to matters wherein 
 he is no way concerned ; which is punishable by fine and impri- 
 sonment, whether the matter in dispute any way depended in 
 plea or not ; but it is said not to be actionable. 
 
 2. Curialis, or in a court of justice ; where one officiously in- 
 termeddles in a suit depending in any such court, which no ways 
 belongs to him, -by assisting cither party with money, or otherwise, 
 in the prosecution or defence of any such suit. 
 
 Of this second kind of maintenance there are three species: 
 1st. Where one maintains another, without any contract to have 
 part of the thing in suit; which generally goes under the com- 
 mon n;ime of maintenance. 2dly. Where one maintains one 
 bide, to have part of the thing in suit, which is called cham- 
 perty. 3d. Where one labours a jury, which is called embracery. 
 
 The following are the provisions of the statute, sess. 24-. c. 87. 
 with respect to maintenance. 1 11. L. 172. 
 
 "No person, by himself or any other, shrill take upon him to 
 maintain quarrels of others, to the let and disturbance of law, upon 
 pain of being punished by fine or imprisonment, and to lose his 
 - office, if he be an officer." s. 5. 
 
 " All gifts and conveyances made for maintenance shall be 
 void." s. 7. 
 
 "No person shall hereafter unlawfully maintain, or cause or 
 procure any unlawful maintenance in any matter or cause what- 
 soever, in suit and variance, concerning any lands, tenements, or 
 hereditaments, or any goods, chattel^, debts, damages, or offences, 
 in any court in this state, or before any person who shall ha\ u au- 
 thority to h*.r or determine the same," under the penalty for 
 every sn<-h offence of 2.00 dollars, the one moiety to the state, 
 and the oilier moiety to the prosecutor, s. 9.
 
 MAINTENANCE, 509 
 
 Where the party has any interest, rither legal or equitable, in J^}|f m v * 
 the subject matter of the suit, he cannot be made liabU' for main- 8 Johus.kep. 
 t.enance. To constitute maintenance there must be an officious 220 ' 
 intermeddling in the prosecuting of another's right, the person as- 
 sisting having no privity or concern in the subject. 
 
 The act expressly except^ the taking counsel from persons duly s . i. 
 licensed for that purpose, or from parents and next friends ; hence 
 it is not penal to employ a counsellor or attorney to prosecute a 
 suit, or to receive the assistance of a parent or guardian ; but it has i Hawk. c. 
 been held an offence to give money for that purpose. To give 83 - 8 - 20 - 26 
 money to a poor man to enable him to carry on his suit, is said to id.'s.24. 
 be lawful. 
 
 The decisions on the subject of maintenance are principally of 
 an ancient date, and -partake of a degree of strictness and severity 
 which would insure them but little countenance from the more 
 liberal opinions of modern times. '"It is curious," says Mr. J. 4TermRep. 
 Duller, " to see how the doctrine of maintenance has been from 340. 
 time to time received in Westminster hall. At t>ne time not only 
 lie who laid out money to assist another in his cause, but he that 
 by his friendship or interest, saved him an expense which he 
 would otherwise be put to, was held guilty of maintenance. Nay, 
 if he officiously gave evidence, it was maintenance ; so that he 
 itmst have had a subpoena, or suppress the truth. That such doc- 
 trine, repugnant to every honest feeling of the human heart, 
 should be soon laid aside, must be expected. Accordingly, ava- 
 I'iety of exceptions were soon made ; and amongst others, it was 
 held, that if a person has any interest in the thing in dispute, 
 though on contingency only, he may lawfully maintain an action 
 on it." 
 
 II. Champerty. 
 
 By the act to prevent and punish champerty and maintenance, 
 before referred to, s. 1 . it is provided, "That no officer or other 
 person shall take upon him any business that is or may be iu suit 
 in any court, for to have part of the thing in plea or demand ; and 
 no person upon any such agreement shall give up his right to 
 another, and every such conveyance and agreement shall be void. 
 And every person who shall maintain any plea or suit in any court 
 for lands, tenements, or other things, for to have part or profit 
 thereof, shall be punished by fine or imprisonment; but this act 
 shall not prohibit any person to have counsel of persons duly li- 
 censed for that purpose, or to take counsel of his parents and next 
 friends. 1 ' 
 
 By s. -2. "No officer, judicial or ministerial, shall take or re- 
 ccivt; any lands or tenements in fee, by gift or by purchase, or to 
 farm, or by champotry, or otherwise, so long as I he thing is in 
 plea in any court, nor shall take any reward thereof; and he who 
 doth the contrary, either by himself or by any other, or makes
 
 MAINTENANCE. 
 
 pny bargain concerning the same, shall be punished by fine or 
 imprisonment, as well he that purchaseth, as he that shall sell 
 the same." 
 
 Sec. 3. declares, " That all persons who move pleas and suits, 
 
 or cause them to be moved, either by their own procurement, or 
 
 by others, and sue them at their own proper costs, for to have 
 
 part of the land or thing in controversy or demand, or part of the 
 
 1 gains, shall be adjudged chauipertors." 
 
 iHawk. c. The established doctrine under this statute is, that a purchase, 
 Johns. Rep. or ev *->n a gift of the land, while a suit is pending concerning 
 47 "- it, if it be made with knowledge of the suit, and be not the con- 
 
 summation of a previous bargain, nor founded on the ties of blood, 
 is within the purview of the statute. 
 
 The offence of buying or selling a pretended title, can hardly 
 be considered as coming within the scope of this compilation, 
 since it does not afford a ground for a criminal prosecution. 
 
 III. Embracery. 
 
 By the 9th sect, of the same statute, it is enacted, that " ns 
 person shall unlawfully retain for maintenance of any suit or plea, 
 any person, or embrace any freeholders, or jurors, by rewards, 
 promises, or other sinister labour or means, to maintain any mat- 
 ter or cause, or to the hindrance or disturbance of justice, or to 
 the procurement or occasion of any false verdict, in any court 
 within this state," under a penalty of 250 dollars, the one moiety 
 to the people of the state, and the other moiety to the prosecutor. 
 
 IV. Barretry. 
 
 4 Black. Analogous to the offences just mentioned, is that of common 
 
 barretry, which is defined to be the offence of frequently exciting 
 and stirring up quarrels, either at law or otherwise. The pu- 
 nishment for this offence, in a common person, is by fine and im- 
 prisonment : but if the offender belongs to the profession of the 
 law, a barrister, who is thus able, as well as willing to do mischief, 
 ought also to be disabled from prosecuting for the future. With 
 respect to attorneys, it is enacted, (sess. 36. c. 48. s. 7.) "that 
 if any attorney of the supreme court, or of any court of com- 
 mon picas, shall purchase or receive by .way of pledge or securi- 
 ty for money lent, any bond, note, or other writing, with intent 
 to commence a suit thereon, and shall commence such suit ac- 
 cordingly, every such attorney shall be deemed guilty of a mis- 
 demca"our." 
 
 swrns. it j s ], e ]d essential to the validity of an indictment for this of- 
 
 n. i and ' fenpe, that it should charge the defendant with being a common 
 
 cUed. tber8 barn-tor ; but it is unnecessary to show any particular facts, nor 
 
 need there bi>. nny venue laid for the plac-e whore committed ; yet 
 
 it is clearly settled that the prosecutor must give the defendant,
 
 MANDAMUS. $11 
 
 before the trial, H note of the particular acts of barratry which he 
 intends to prove against him ; and if he do not, the court will not 
 suffer the prosecutor to proceed in the trial of the indictment; for 
 otherwise it will be impossible for him to prepare for his defence. 
 
 V. Malicious prosecution. 
 
 By the act to prevent maintenance, (sess. 24. c. 87. s. 6,) an ac- 
 tion on the case, in which the plaintiff shall recover treble dama- 
 ges, is given to every person who shall be maliciously indicted for 
 treason, felony, or trespass, out of the county in which he dwells, 
 against the procurer of such indictment. 
 
 By the 10th section of the same act, if any person shall, by 
 any ways or means, maliciously, or for vexation and trouble, pro- 
 cure another to be arrested or attached to answer in any court at 
 the suit or in the name of any person, where there is nt> such per- 
 son known, or without the consent or agreement of such person, 
 he shall forfeit to the party arrested or attached, treble the costs, 
 damages, and expenses, that the party shall be put to ; to be re- 
 covered by action of debt, or by information in any court of re- 
 cord, with costs of suit ; " and shall also forfeit and pay unto the 
 person in whose name, and at whose suit such arrest or attach- 
 ment was had, if any such person be known, 50 dollars for every 
 such offen.ce, to be recovered as aforesaid, and shall also, upon 
 conviction theVeof, be imprisoned for a time not exceeding six 
 calendar months." 
 
 But an action for a malicious prosecution will not lie before a 
 justice of the peace. Sess. 30. c. 53. s. 1. 
 
 MANDAMUS. 
 
 A mandamus is a writ issuing from the supreme court, directed s Black. 
 to any person, corporation, or inferior court of judicature, requi- 
 ring them to do some particular thing, therein specified, which 
 appertains to their office and duty. It is a high prerogative writ, 
 of a most extensively remedial nature ; and may be issued in some 
 cases where the injured party has also another more tedious 
 method of redress, as in the case of admission or restitution to an 
 office: but it issues in all cases where the party hath a right to 
 have any thing done, and hath no other specific means of compel- 
 ling its performance. 
 
 It issues to the judges of any inferior court, commanding them sBiacfc. 
 to do justice, according to the powers of their office, whenever 
 the same is delayed ; as, to the sessions, to compel them to give 1 Johns. Cas. 
 judgment. 
 
 This writ is grounded on a suggestioft, by the oath of (he party * Bb<*. 
 ftljured, of his own right, and of the denial of justice in the court
 
 312 MILITIA. 
 
 below : whereupon more fully to satisfy the court that there is a 
 probable ground for such interposition, a rule is made (except in 
 some general cases where the probable ground is manifest) direct- 
 ing the party complained of, to show cause why a \\iit of manda- 
 mus should not issue : and if he shows no sufficient cause, the writ 
 itself is issued, at first in the alternative ; either to do thus or sig- 
 nify some reason to the contrary ; to which he is required by 
 statute (sess. II. c. 11. s. J.) to make a return. And if he re- 
 turns an insufficient reason, then there issues in the second place 
 a peremptory mandamus, to do the thing absolutely ; to which no 
 other return will be admitted, but-a certificate of perfect obedience 
 and due execution of the writ. If the inferior judge or other per- 
 son makes no return, or fails in his respect and obedience, he is 
 punishable for his contempt by attachment. 
 
 The relator, or person prosecuting the mandamus, may tra- 
 verse the return, and issue being joined, proceed to trial, and in 
 case of verdict or judgment by demurrer, or otherwise, in his fa- 
 vour, shall have damages and costs, and a peremptory mandamus. 
 Sess. 11. c. 11. s. '2. 
 
 MILITARY STORES. 
 
 2.. L. 550. " If any person or persons shall spike any cannon, or wilfully 
 injure, damage, spoil, or embezzle any of the arms, ammunition, 
 or other military stores, belonging to this state, such person or 
 persons shall be deemed guilty of a high misdemeanour, and shall, 
 upon conviction thereof in any court having cognizance thereof 
 be fined, not exceeding two thousand dollars, or imprisoned in 
 the state prison at hard labour, not exceeding seven years, at the 
 discretion of the court." Sess. 35. c. 139. s. 12. 
 
 MILITIA. 
 
 By the act of Congress, May 8, 1792. s. 1. Every citizen en- 
 rolled in the militia, and providing himself with the arms, ammu- 
 nition, and accoutrements required by that law, shall hold the 
 same exempted from all suits, distresses, executions, or sales for 
 debt, or for the payment of taxes. 
 
 By the militia act of this state, sess. 32. c. 1Q5. s. 19. The 
 horses of troopers which have been enrolled, and are doing duty 
 in any troop, are exempted from all attachments, sriz/ires, dis- 
 tresses, executions, or sales for debt, or for the payment of taxes ; 
 hut such horse shall not be exempted from attachment until j-wh 
 trooper shall -have the equipments required by the laws of the 
 United States.
 
 MILITIA. 313 
 
 Quakers arc exempted from military service, orr paying annu- 
 ally the sum of four dollars each ; " anil it is hereby made the du- , 
 ty of every captain of infantry, within three months after he shall 
 have received his commission, and yearly thereafter, or of the 
 commanding officer of such company of infantry for the time be- 
 ing, on the last Tuesday in May, to make a list of the names of 
 all persons within his beat, being of the people called quakers, 
 subject to military duty as aforesaid, and who shall neglect or re- 
 fuse personally to perform the same, and deliver such list, signed 
 by him, to one of the assessors of the town or Avard where 
 such persons so neglecting or refusing to perform such mili- 
 tary service shall respectively reside ;" which list shall be deli- 
 vr.-i 'I by the assessors to the board of supervisors of the county, 
 who shall direct the same to be levied by the collector of the 
 town or ward, and'the money when received, either on demand, 
 or by being levied by distress, and paid into the treasury of this 
 state, shall become a part of the common school fund; "and the 
 aforesaid captains and commanding officers,on failure of>their duties 
 as aforesaid, shall respectively be subject and liable to a penalty of 
 twenty-five dollars, to be sued for and recovered, with costs, by 
 and in the name of the adjutant, or pe'fson acting as such, of the 
 regiment to which such captain or commanding officer making 
 default belongs, before any court having cognizance thereof; 
 which penalty, when collected, shall be paid to the commandant 
 of the regiment, to be applied by him in the same manner as the 
 other monies mentioned in this section are directed to be ap- , 
 plied." s. 14. 
 
 ',' Every commissioned officer hereafter to be appointed, shall, 
 within thirty days after he receives notice o.f his appointment, re- 
 port his acceptance or non-acceptance to the commandant of his 
 regiment, or be liable to. pay a fine of fifteen dollars, to be reco- 
 vered before any court having cognizance thereof, in the name of 
 the adjutant of the regiment to which he belongs; which, when 
 recovered, shall be paid to the commandant of the regiment, to 
 be by him laid out and accounted for in like manner as other 
 fines for delinquencies in his regiment." s. 36. 
 
 " No person shall be permitted to' sell or expose for sale on 
 any parade, the bounds of which shall be determined by the com- 
 manding officer present, at any such parade, any spirituous liquors 
 whatsoever ; and if any person shall expose for sale any spirituous 
 liquors, contrary to this act, and be thereof convicted before any 
 court having cognizance thereof, he shaH forfeit the sum of twen- 
 ty-five dollars, the one moiety thereof to the person prosecuting 
 for the same, and the other moiety to be paid and applied ,as fines 
 foi delinquencies in the regiment, on whose parade such liquor was 
 exposed to sale as aforesaid, are by this act 'directed to be ap- 
 plied." s. 63. 
 
 " It shall be the duty of the president of each and every courf- 
 martial, (i. e. a regimental court-martial,) within ten days after 
 
 4O
 
 .Jl 1 MILITIA. 
 
 the delinquents returned to him. to report the proceedings of 
 such court martial to t!ie officer ordering the same, and within 
 sixty days thereafter, make a retur.i of -|! :r),>m-* nl!f rt 
 pVid over to him, after deducting the expenses of -such court-mar- 
 tial, on pain of forfeiting twenty-five dollars, to be recovered hy 
 the adjutant of the regiment, on the di-vcti <u of the comaja-id- 
 ant, in any court having cognizance thereof." s. 7d. 
 
 " In case any brigade inspector shall wilfully neglect or omit 
 to perform the duties required of him by law, he shall for evf ry 
 such offence forfeit and pay twenty-five dollars, to be reco-. 
 in the like manner as the other penalties are by this act reco- 
 veraHe." s. 51. 
 
 "Every non-commissioned officer who shall neglect or refuse 
 to warn the men to appear at any rendezvous mentioned i 
 act, when thereunto required by his captain or commanding offi- 
 cer, without sufficient excuse, shall pay a fine not exceeding fif- 
 teen dollars, for every such neglect or refusal." s. .53. 
 
 " It shall not be lawful for any non-commissioned officer or nri- 
 vate to discharge any fire-arms within two miles of the place of 
 parade, on any day that they shall be ordered out for improve- 
 ment or inspection, without an order or permission of a commis- 
 sioned officer; and if any such non-commissioned officer or pri- 
 vate shall so discharge any fire-arms wilho ->t such order or pr- 
 missiop, he shall forfeit the sum of one dollar for 
 offence." s. 61. 
 
 ' ; All fines, penalties and forfeitures created by this act, (un- 
 less otherwise directed) shall, in case the same should be 
 red bv any commissioned officer below the rank of captain, or by 
 any non-commissioned officer or private, or other person. b> 
 for and recovered, with costs of suit, by and in the name 
 adjutant or pay-master, or person acting as such, of the r"_ 
 
 nich such offender belongs, in any court having cognisance 
 thereof; and in case the same shall be'incurred by any c- 
 sioned officer above or of rank of captain, then th same shuM be 
 sued for and recovered, with costs of suit, brand in the name of 
 the brigade inspector, or person acting as stich, or in the tir. 
 the quarter-maf-ter of the brigade to which such eommMSioned 
 officer offending belongs, in any court having cognisance there- 
 of." s. 95. 
 
 "It shall aud may be lawful for each of the commandants of 
 the several regiments of militia in- this state to form and organize 
 a band of musicians it;>in and for his said regiment and trie 
 persons be.loogios to such baad of musicians shall be er.rmpt- d 
 from serving as jurors, during the time they continue in su-.-h. 
 band." - 
 
 u Every captain or commandant of a company, may enroll it 
 least two, and not more than four persons residing; in hi- 
 tvho are desirous and willing to be enr lli j d in sue!' "-impai'y as 
 musicians and shall respectively be exempted from aU
 
 MISDEMEANOUR. 315 
 
 taxes, and serving as jurors during the time they continue to act 
 as musicians for such company." s. 43. 
 
 "In cases of insurrection, the commanding officer of the regi- 
 ment vilhin the limits of -which any such insurrection may 
 happen, shall immediately assemble his regiment under arms, and 
 having transmitted information thereof to the commanding officer 
 I the brigade, and to the commander in chief of this stole, shall 
 proceed to take such measures to suppress such insurrection, as 
 to any three of the judges or justices of the county, in which 
 such insurrection shall happen, shall appear most proper and ef- 
 fectual : Provided always. That if any such judges or justices shall 
 deem a, greater number of militia requisite to quell such insur- 
 rection, they shall, and are hereby required to apply for the same 
 to the commanding officer of ihe division, or any brigade thereof, 
 who are hereby severally required to obey such requisition." s. 70. 
 
 The following oath is required to be taken by the president of 
 every regimental court-martial, before he enters upon the duties 
 of his office : 
 
 " You, , do swear, that you will well and truly try and de- 
 termine, according to evidence, the. matter now depending be- 
 tween the people of the State of New York and the person or per- 
 sons to be tried ; and you do further swear, that you will not, upon 
 any account, at any time whatsoever, disclose or discover the 
 vote or opinion of any particular member of the said court, unless 
 required to give evidence thereof by a court of justice, in a due 
 course of law :" 
 
 " For which purpose he shall appear fiefore one of the justices 
 of the peace of the said county w here he. resides, which justice 
 is hereby required to administer the aforesaid oath to such presi- 
 dent, without receiving any fee or reward for the same." -s. 78. 
 
 MISDEMEANOUR. 
 
 This word, in its usual acceptation, is applied to all those crimes s Bums' 
 and offences for which the law has not provided a particular name ; 
 and they may be punished according to the degrees of the of- 
 fence, by fine or imprisonment, or both. This is the case with 
 respect to acts of omission or commission, which were punish- 
 able at common law ; N bat many offences are, by the statute law, 
 punishable as misdeameanours specifically- 
 
 Misdemeanour is generally used in contradistinction to felony, Biack. 
 and misdemeanours comprehend all indictable offences^vhich do 
 not amount to felon as perjury, battery, libels, conspiracies, at- 
 tempts, and solicitations to commit felouies, Sec.
 
 316 
 
 NUISANCE. 
 
 4 Black. 
 Com. 166, 
 167. 
 
 Co. Lit. 56. a. 
 
 1 hawk. P.C. 
 
 C. 75.5.6. 
 
 
 1 Hiwk. F.C. 
 
 e. 75. s. 7. 
 
 1 Ha-.Tk. P.C. 
 c. 75. s. 11 
 5 Eac. Abr. 
 
 Vuisance;. in 
 obtr<Ji-ting 
 
 WtilV. 
 Vi<lr Hi'-h- 
 
 rvays, IX. 
 
 1 Hawk. P.C. 
 
 C. 75. s. 10. 
 
 NUISANCE. 
 
 I. JfTint U is. 
 
 II. How it in fry be remwed. 
 III. Hoir punished. 
 
 I. What it is. 
 
 Common nuisances are a species of offences, against the public 
 order and economical regimen of the state ; being either the do- 
 ing: of a thing to the annoyance of all persons, or the neglecting 
 to do a tiling which the common good requires. They are such, 
 inconvenient or troublesome offences, as annoy the whole com- 
 munity in general, and not merely some particular person ; and 
 therefore are indictable only, and not actionable; as it would be 
 unreasonable to multiply suits, by giving every man a separate 
 right of action, for what damnifies him in common only with the 
 rest of his fellow-citizens. 
 
 Yet, if irtiy person receive a special damage, as if a ditch be 
 dug across a highway, (which is a public nuisance) whereby he 
 and his horse fall into the ditch and receive an injury, for this 
 special damage, which is not common to others, he may have ( an 
 action on the case. 
 
 There is no doubt but that common bawdy houses are indicta- 
 ble as common nuisances; also, it hath been said, ttet all com- 
 mon stages for rope-dancers, and ajso all common gaming houses, 
 are nuisances in the eye of the law ; not only because they are 
 great temptations to idleness, but also, because they are apt to 
 draw together great numbers of disorderly persons, which cannot 
 but be very inconvenient to the neighbourhood. 
 
 Also, it hath been holden that a common play-house may be a 
 nuisance, if it draw together such numbers of coaches or people, 
 Sec. as prove generally inconvenient to the places adjacent ; and it- 
 seems to be a proper distinction between play-houses and the 
 nuisances mentioned above, that play-houses having been origi- 
 nally instituted with a laudable design of recommending virtue to 
 the imitation of- the people, and exposing vice and folly, are not 
 nuisances in their own nature, but may only become such by ac- 
 cident, whereas the others cannot but be nuisances. 
 
 As navigable rivers are deemed highways, it is a nuisance to 
 divert part of the river, whereby the curmit of it is weakened, 
 and made unable to carry vessels of the same burden that it could 
 before. Also, the laying of timber in a common river, though the 
 soil belong to the party, is equally a nuisance, as if the soil was 
 not his, if thereby the passage of boats, 8cc. is obstructed. 
 
 It hath been holden that it is no common nuisance to make 
 candles in a town, because the needfulness of them shall dispense 
 with the r. he smell; but the reasonableness oi
 
 NUISANCE. 317 
 
 opinion seems justly (o be qu stionahle, bncause whatever neces- 
 sity there may be that candles he made, it eannot be pretended 
 to be necessary to make them in a town ; and surely the trade of 
 a brewer is as necessary as that of a chandler; and yet it seems 
 to be agreed that a brew-house, erected in such an. inconvenient 
 place, wherein the business cannot be carried on without greatly 
 incommoding the neighbourhood, may be indicted as a common 
 nuisance, and so in like case may a glass-house or a swine-yard. 
 
 Two persons were indicted for making great quantities ot noi- K.v. white 
 some, offensive, and stinking liquors, called acid spirits of sulphur, iBurr.aWJ 
 oil of vitriol, and oil of aquafortis: whereby the air was impreg- 
 nated with noisome and offensive smells: and it was held by the 
 court to be a nuisance. The word noisome means not only dis- 
 agreeable, but hurtful. And it is not necessary to constitute the 
 offence, that the smell shbuld be unwholesome ; it is enough if it 
 renders the enjoyment of life and property uncomfortable. 
 
 But where manufactories have been borr.e with in a neighbour- Peake,9. 
 hood for many years, it will operate as a consent of the inhabi- 
 tants to their being carried on, though the law might have con- 
 sidered them as nuisances, had they been objected to in time ; 
 but if another man comes, and by his manufacture, renders that 
 which was a little unpleasant before, very disagreeable and un- 
 comfortable, though it would not amount to a nuisance by itself, 
 still he is answerable for it. 
 
 A person was indicted for making great noises in Ihe night with 2 str. ro-i, 
 a speaking trumpet, to the disturbance of the neighbourhood, and 
 it was held to be H nuisance. 
 
 Keeping gun-powder near dwelling houses, and near a public The People 
 street, or transporting it through a pubUc street, are not nuisances, j'johns? 1 
 unless rendered so by particular circumstances, such as negligent Rep-78. 
 keeping, fcc. 
 
 The keeper of an inn may. hy the common law, be indicted and c^^.s^t 
 fined, as being guilty of a public nuisance, if he usually harbour 2. 
 Ihieves, or persons of scandalous reputation, or suffer frequent Tmerns, 
 disorders in his house, or take exorbitant prices : so, too, if he a te > p-J 96 - 
 refuse, to receive a traveller or guest, he may be indicted and 
 fined. 
 
 II. How it may be removed. 
 
 A nuisance may be abated, that is, taken away or removed, by conT^'e 
 the party aggrieved thereby, so as he commits no riot in the do- 
 ing of it. If a house or Avail is erected so near to mine, that it . 
 stops my ancient lights, which is a private nuisance, 1 may enter 
 my neighbour's land, and peaceably pull it down. Or if a new gate 
 be erected across the public highway, which is a common nuisance, 
 any person passing that way may cut it down and destroy it. 
 And the reason why the law allows this private and summary, 
 method of doing one's self justice, i:s, because injuries of this kind.
 
 jjy OATHS. 
 
 which obstruct or annoy such things as ara of daily conve- 
 nience and use, require fin immediate remedy; and cannot wuit 
 for the slow progress of the ordinary forms of justice. 
 
 III. How punished. 
 
 e!^7s! H' Whoever is convicted of a nuisance may be fined and imprison- 
 
 ** ed; and it is said, that one convicted of a nuisance done to tlic 
 
 highway, may be commanded by the judgment to remove the 
 nuisance at his pwn costs; and it. seems to be reasonable, that 
 those who are convicted of any other common nuisance, should 
 also have the like judgment. 
 
 Rep tT i42. ^ * ne P art y w ^ h as been indicted for a nuisance continue the 
 
 iLd.Raym. same, he may be again indicted tor such continuance of he nui- 
 sance. So, though for a private nuisance, two actions for the 
 erection -cannot be had, yet a second action for the continuance 
 thereof may be sustained. 
 
 OATHS. 
 
 JR.L. 33z. Bj , t | ie act concerning oaths, sess. 26. c. 13. s. I. " Every per- 
 son who shall hereafter he elected a member of the senate or of 
 the assembly of this state, before he takes his seat, and every per- 
 son who shall hereafter be elected governor, or lieutenant-gover- 
 nor of this state, and every person who shall hereafter be appoint- 
 ed to any office, civil or military, before he enters upon the exe- 
 cution of his trust or office, shall and hereby is required, to take 
 and subscribe the following oath, that is to say : 7, , do so- 
 lemnly, without any mental reservation or equivocation, swear and 
 declare, (or affirm, as the case may require,) that I renounce and al>- 
 jure all allegiance and fidelity to every foreign prince, potentate,, 
 state, or sovereignty whatever, and that I will bear faith and true al- 
 legiance to the stale of New-York, as a free and independent state?' 
 Sect. 2 prescribes the oath of governor, lieutenant-governor, 
 and president of the senate. 
 
 " The president of the court for the trial of impeach- 
 ments and the correction, of errors, and every member of the 
 said court, and all judicial officers in this state, hereafter to be 
 elected or appointed, shall also, before they enter upon the exe- 
 cution of their respective offices, severally take and subscribe the 
 
 following oath, to wit: /, , do solemnly swear and declare 
 
 that I will, to the best of my knowledge and ability, execute the office 
 of [here describe, the office] according to tJtc constitution and laws 
 ofihc stale of .Veic- York in defence of the freedom and independence 
 h'ifrcnf, and for the maintenance, of liberty, and the distribution of 
 justice among the citizens and inhabitants of the same state, without 
 any ft-ar. favour, partiality, affection, or hope of reward " s. 3.
 
 OATHS. 319 
 
 Sect. 4-, 5, 6, 7, 8, and 9, prescribe the oaths of the secretary 
 of state, and attorney-general, of sherifi's, coroners, district at- 
 torneys, surrogates, registers, clerks, arid all other ministerial 
 jiiirers. 
 
 " The lieutenant-governor of this state, the chancellor 
 of this state, the judges of the supreme- court, secretary of 
 this state, and attorney-general, the judges and clerks of the re- 
 spective counties of this state, shall, by virtue of their several 
 offices, be. commissioners for administering oaths to every person 
 who shall hereafter be appointed to any office, civil or military ; 
 a"i<! the iid commissioners, after administering the said oath or 
 01 ihs, shall cause the same to be subscribed with the proper names 
 ,ar.d hand-writing of tuc person or persons taking the same, on 
 rolls to be provided for that purpose, containing proper 'captions, 
 with the said o I'lis written at length thereon, which rolls shall 
 be deposited as follows, to wit: Those containing the oaths and 
 subscriptions of any governor, lieutenant-governor, president of 
 t' senate, member of the senate, or assembly, chancellor, judge- 
 of the supreme court, judge of the couft of probates, or any offi- 
 cei of cither of the said courts, or attorney-general, or secretary 
 of this state, or district-attorney, or military officer, whose office 
 shall extend into more than one county, shall be deposited and 
 kept in (lie office of the secretary of this state; and those con- 
 taining the oaths and subscriptions of the respective coti;ty offi- 
 cers, both civil and military, shall be deposited and kept in the 
 oflice of the clerk of the same county." s. 10. 
 
 " If any officer, civil or military, in this state, shall execute 
 hi- office without having first taken and subscribed the oaths 
 or affirmations required by law, and the oath to support the 
 constitution of the United States, such officers shall thereby for- 
 feit their said offices respectively, and be removed therefrom ; 
 and such neglect or omission is hereby declared to be a misdemea- 
 nour, indictable and punishable by fine and imprisonment." a. II. 
 
 Sect. 12 requires the clerk'of each county,, on or before the 
 15th day of January in every year, to give information to the, 
 governor, of .such persons as have, and such as have not taken 
 the oaths prescribed, and also, of all vacancies in any civil office 
 in the county. 
 
 "If any commissioner herein before named, shall not make 
 a return of the rolls, containing the names of all such officers 
 to whom he shall have administered the oaths of office, within 
 six months after he shall have administered the said oaths, 
 every such person neglecting to make such return as aforesaid, 
 shall forfeit to the people of this state the sum of twenty-five, dol- , 
 lars, to be sued for and recovered, with costs of suit, before ^my 
 court having cognizance of the same, by the clerk of the county 
 in which t.hr saul person so making default as aforesaid shall re- 
 side ; one moiety of which forfrit.in-e, when recovered, shall, by 
 the clerk, be paid into the hands of the treasurer of the said coun-
 
 320 PERJURY AND SUBORNATION. 
 
 ty, <o he disposed of in such manner as the board of superviso: 
 the county shall direct: and it shall, he lawful for the said cl M 
 retain the other moiety of the said forfeiture for his own use." s. '. 
 SetTtmm. "Nothing herein before contained shall he construed i< 
 
 .tend to any county treasurer, supervisor, town-clerk, commis- 
 sioner of the highways, assessor, collector, constable, or ot. 
 town officer." s. I 4. 
 
 " It. shall be lawful for any person empowered to adminis- 
 ter an oath, to administer it in the following form to all per- 
 sons who shall declare they have conscientious scruples about 
 the present mode of administering oaths, by laying (lie hand on 
 and kissing the gospels, to wit: The.person swearing shall, with 
 his or her hand uplifted, swear by the ever-living God. and s:- 
 not be compelled to lay the hand on, or kiss the gospels ; and 
 oaths so administered shall be equally effectual, and expose such 
 person to the like pains and penalties for wilful and corrupt per- 
 jury, as oaths administered in the usual form." s. 15. 
 
 "Every person believing in the existence of a Supteme Be- 
 ing, and a future state of rewards and punishments, who shuii 
 have conscientious scruples against taking an oath, shall, in 
 all cases where an oath is upon any lawful occasion to be admin- 
 istered, b& admitted, instead of taking an oath, to make his or IK ; 
 solemn affirmation, or declaration, in the following form, to wit : 
 You do solemnly, sincerely and truly declare and affirm ; whir 
 lemn affirmation and declaration shall be equally valid as if su 
 person had taken an oath in the, usual form ; and every person 
 guilty of falsely and corruptly affirming and declaring as afores^ii!, 
 shall incur and sufier.the like pains t and penalties as are. 
 be inflicted on persons convicted of wilful and corrupt perjury." s. 1 6. 
 
 By the 6th article of the constitution of the United Statr 
 executive and judicial officers, both, of the United States, ami 
 the several states, shall be. bound by oath or affirmation to sup, 
 the constitution. By the act of June 1st, 1789, s. 1. (1 Lriw: 
 S. 25.). the following form of the oath, or affirmation, is prescri- 
 bed: /, A. B. do solemnly swear, or affirm, (as the case n. 
 that I will support the constitution of the United States. 
 
 PERJURY AND SUBORNATION. 
 
 3inst.t54. Perjury is defined by Sir Edward Coke, to be a cr 
 
 Com. 137. mitted whun a lauful oath is administered, in some judicial pro- 
 
 ceeding, to a person who swears leilfully^ absolutely, and falsely, in 
 a matter material to the issue or point in question. The law 
 takes no notice of any perjury, but such as is committed in some 
 court of justice, having power to ad-miaifter an oath ; or i 
 some magistrate, or proper of?cvr, in vested with a similar ;iuf!io 
 rity, iu some proceedings relative to a civil suit or a crimii:
 
 PERJURY AND SUBORNATION. S2J. 
 
 sedition: for it esteems all other oaths unnecessary at least, and 
 therefore, will not punish the breach of them. The. perjury must 
 also be corrupt, wilful, positive, and absolute ; not upon surprise, 
 or the like : it also must be in some puitit material to the question 
 in dispute ; for if it only be in some trilling collateral circum- 
 stance, to which no regard is paid, it is no more penal than in the 
 voluntary extrajudicial oaths before mentioned. 
 
 A man may be indicted for perjury, in swearing that he be- Leac1i,27O. 
 lieves a fact to be true, which he must know to be false. 
 
 Subornation of perjury is the offence of procuring another to * Black, 
 take such a false oath as constitutes perjury in the principal. C " m ' ij 
 Perjury and subornation are punishable at common law by line 
 and imprisonment, and incapacity to be a witness. 
 
 The party may likewise be prosecuted on the act to prevent per- IB. i, i?.<. 
 jury, (st;ss. '2 i. c. 74.) by which it is enacted, sect. 1. "That if any 
 person shall unlawfully and corruptly procure any witness, by 
 any means whatsoever, to commit any wilful and corrupt perjury, 
 in any matter or cause depending, or to depend, in the court of 
 chancery, or in the court of probates, or in any court of resord, 
 or before any judge, justice of the peace, mayor, recorder, or al- 
 derman, or shall unlawfully and corruptly procure any witness 
 who shall he sworn to testify in perpcluam rei inemoriam, every 
 such person shall, for every such offence, be adjudged guilty of 
 subornation of perjury : and if any person,, either by the suborna- 
 tion of another, or by his or her own act or consent, shall wilfully 
 and corruptly swear or alarm falsely in any of the courts afore- 
 -said, or before any person having competent authority to admin- 
 ister such oath or affirmation, every such person shall be adj;idgvd 
 guilty of wilful and corrupt perjury ; and every person convicted 
 of subornation of perjury, or of wilful and corrupt perjury, shall 
 sot thereafter be received as a wituuss, to be sworn in any matter 
 or cause whatsoever, until the judgment given against him or her 
 be reversed." 
 
 " In every information or indictment to be prosecuted against 
 any person for wilful and corrupt perjury, either at the com- 
 mon law, or upon this act, it shall be sufficient to set forth 
 the substance of the offence charged upon the defendant, 
 and by what court, or before whom the oath was taken, averring 
 such court or person to have a competent authority to adm'mis'cr 
 the same, together with the proper averments to falsify the mat- 
 ter wherein the perjury is assigned, without setting fortli any part 
 of any record or proceedings, either in law or equity, other than 
 as aforesaid, and without setting forth the commission or autho- 
 rity of the court, or person before whom the perjury was commit* 
 ted. And in every indictment or information for subornation of 
 perjury, either at c nmmon law or upon this act. it shall ho suffi- 
 cient to set forth che substance of the offence charged upon. th<> 
 defendant, without setting forth an}' part of any record or pro 
 ree-lin^s, either in law or equity, and without setting forth tb<>.
 
 322 PERJURY AND SUBORNATION. 
 
 commission or authority of the court, or person before whom the 
 perjury was committed, or was agreed or promised to be com- 
 mitted." s. 2. 
 
 Sect. 3 empowers judges of the supreme court, circuit court, 
 or court of oyer and terminer, sitting the court, or within twenty- 
 four hours thereafter, to direct a prosecution for perjury against 
 any person examined as a witness before them. 
 
 By stat. sess. 36. c. 2$. s. 20. perjury and subornation of per- 
 jury are punishable with imprisonment in the state-prison for any 
 term not exceeding ten years, according to the nature and aggra- 
 vation of the offence. 1 R. L. 412. 
 
 Besides the cases enumerated in the act before recited, in 
 which perjury may be committed, the legislature has provided 
 that, in certain other cases, false swearing shall be deemed per- 
 jury, and be punished as such. They are as follows: 
 
 By the insolvent act, sess. 36. c. 98. s. 30, if any person in any 
 oath or affidavit, to be taken in pursuance of that act, shall affirm 
 or swear falsely, he shall be liable to the same penalties as those 
 who are convicted of wilful and corrupt perjury. 1 R. L. 4-71. 
 
 Persons examined on oath under the absent and absconding 
 debtor act. Sess. 24-. c. 49. s. 13. 1 R. L. 101. 
 
 Managers of lotteries, for violating the oath which they are re- 
 quired to take before entering on the duties of their appointment. 
 Sess. 36. c 1 98. s. 2. 1 R. L. 270. 
 
 A surveyor of the land-office, making a false return of the sur- 
 vey by him made, or returning an appraisement of lands variant 
 from the true value, or without having personally surveyed and 
 explored the same, shall be deemed guilty of perjury. Sess. 30. 
 c. 74. s. 23. 1 R. L. 292. 
 
 Every person committing perjury in any affidavit made before 
 a commissioner of the supreme court, or other person empowered 
 to take affidavits to be read in the supreme court, concerning any 
 cause depending in the said court, or in the court of exchequer, 
 shall incur the same penalties as if such affidavit had been mada 
 in open court. ~Sess. 3Q. c. 3. s. 12. 1 R. L. 321. 
 
 Perjury committed in any affidavit before a commissioner ap- 
 pointed to take affidavits to be read in chancery, is subject to the 
 same penalties as if the same had been taken before a master. 
 Sess. 3d. c. 95. s. 17. 1 R. L. 4!/2. 
 
 False swearing, under the act concerning quit rents, is declared 
 perjury. Sess. 3-d. c. I 19. s. i 5. 2 R. L. ISO. 
 
 False shearing, in ah oath administered by . chainnan of a 
 committee of the senate or assembly, or of a joint committee of 
 the two houses, is declared perjury. Sess, 30. c. 19.
 
 PHYSICIANS AND SURGEONS. 
 
 PHYSICIANS AND SURGEONS, 
 
 P.y the ad to inctrporale medical societies, sess. 36. c. 94. s. 9- 
 the medica, societies of the respective counties are empowered 
 to examine studi-nts, and give them diplomas under the hand of 
 ths- president and seal of the society, which shall l>e sufficient to 
 empower them to practise physic or surgery, or both, as shall lie 
 set forth in the diploma, in any part of this state ; and by sect. 
 10. the student, if refused, may apply to the state medical soci- 
 ety, which, if in their opinion he is well qualified, may grant him 
 a diploma, under the hand of the president, and seal of the. society. 
 
 Any person practising, without having obtained a diploma, shall 
 forever thereafter be disqualified from collecting any debto in- 
 curred by such practice in any court of this state, s. 12. 
 
 " Any person who shall practise physic or surgery, without 
 being regularly licensed, shall forfeit and pay twenty-live dollars 
 for each offence of which he may h duly convicted, to be reco- 
 vered with costs of suit before any justice of the peace of the 
 county where such penalty shall be incurred, by a*jy person who 
 will prosecute for the same ; and the justice before whom such 
 conviction may be had, shall pay the same to the overseers of the 
 poor of such town where such conviction shall be had, for the 
 use of the poor thereof, whose duty it shall be to prosecute for the 
 same : Provided, The person so practising without license, who 
 -shall not receive any fee or reward for the same, shall be exempt 
 from the penalty of this act. And provided also, That nothing in 
 this act contained shall be construed to extend to debar any 
 person from using or applying for the benefit of any sick person, 
 any roots, bark or herbs, the growth or produce of the United 
 States." s. 20. 
 
 In an action before a justice to recover the penalty of twenty- cjf^V 
 five dollars, for practising and administering medicine contrary to Johns! Hep. 
 the act, it was proved that the defendant had administered medi- * 13 ' 
 cine within six months before the trial, and the justice gave judg- 
 ment for the penalty. On certiorari, the judgment was affirmed. 
 Per curia m. The averment, that the defendant practised physic 
 contrary to the statute was sufficient ; and it was incumbent on 
 the defendant by his plea, to have brought himself within some of 
 the provisos of the act. As he has not done so, either by plead- 
 ing or evidence, we are of opinion that the judgment ought to be 
 affirmed. 
 
 " All persons who may be hereafter licensed to practise physic 
 and surgery, shall deposit a copy of such license with the clerk 
 of the county in which such practitioner may reside ; and until 
 such license shall be ?o deposited, those practitioners who may 
 neglect the same .-hall be iable to the penalty of this act, in the 
 same manner as if l! :cy had no such license." s. 21. 
 
 "Nothing in tii* act contained shall be construed to prevent
 
 -324 POLYGAMY. 
 
 any person coming from any other state or country from prac- 
 tising physic or surgery within this state, such person being duly 
 authorized to practise by the laws of such state or country, hav- 
 ing a diploma from a regular medical society." s. 22. 
 
 POLYGAMY. 
 
 i East p c Polygamy, or, as it is more frequently though improperly call- 
 454. ed, bigamy, (which only means having two wives in succession,) 
 
 consists in having a plurality of wives at the same time. 
 IR.L. 113. It is provided by the act to restrain all persons from marrying 
 until their former wives and former husbands be dead, sess. 1 1. c. 
 2 i. " That if any person or persons being married, or who here- 
 after shall marry, do, at any time, marry any person or persons, 
 the former husband or wife being alive, then every such offence 
 shall be felony; and the party and parties so offending shall re- 
 ceive such and the like proceedings, trial, judgment and execu- 
 tion, in the county where such person or persons shall be ap- 
 prehended, as if the offence had been committed in the same 
 county where such person or persons shall be taken or ap- 
 prehended ; but neither this act, nor any thing therein con- 
 tained, shall extend to any person or persons whose husband or 
 tvife shall be continually remaining without the United States of 
 America by the space of five years together, or whose husband 
 or wife shall have absented him or herself, the one from the other, 
 by the space of five years together, the one of them not know- 
 ing the other to be living within that time; norlG-aay person or 
 persons who are, or shall be, at the time of such marriage, di- 
 vorced by the sentence or decree of any court having cognisance 
 thereof; nor to any person or persons where the former marriage 
 hath been, or shall be, by the sentence or decree of any such 
 court, declared to be void and of no effect ; nor to any person or 
 persons for or by reason of any former marriage had or made, or 
 to be had or made within the age of ronsent." 
 
 On the construction of the similar statute, I Jac. I.e. II.it 
 
 has been held, that where the first marriage was in England, and 
 
 the second abroad, it was not within the act : for the second 
 
 marriage, which alone constitutes the offence, is a fact done 
 
 . within another jurisdiction ; and to the propriety of this opinion, 
 
 Mr. East, 2 P. C. 465. fully accedes. 
 
 4 Black. In the stat. of James there is also a proviso, that it shall not 
 
 2 Hst 1 p. e ex tP"d to any person whose husband or wife shall be continually 
 466,467. remaining beyond the seas, &c. Upon this branch the construc- 
 tion has been, that where either of the parties is beyond the seas 
 for the specified time, though the part}- in England have notice 
 that the other is living, it is no felony to /marry again, although 
 the second marriage be void : but to bring the case within the
 
 POOR. 325 
 
 next following exception it is absolutely necessary that the one 
 should not know the other to be living within the five years. 
 
 The age of consent spoken of in the last exception is, in the 1 6 ^ a '!' B ?" F* 
 men, fourteen, and, in the woman twelve ; and if either party be com. 164. 
 under that age, the power to dissent to the former marriage is ^aniVa 
 reciprocal. But if both are above those respective ages at the Str.*3. 
 time of the first marriage, though under twenty -one, a second 
 marriage would be felony. And though either were under the 
 age of consent when the first marriage was contracted, if they 
 agreed to it when both had attained such age, by which the mar- 
 riage is completed, it. seems that a second marriage would be 
 within the reason and penalties of the act. 
 
 By the act concerning divorces, sess. 3f>. c. 102. s. 4. after a 3R.I W. 
 marriage has been dissolved by a decree of the court of chance- 
 ry, it shall be lawful for the complainant to marry again, as 
 though the defendant was actually dead. But it shall not be law- 
 ful for the defendant who shall be convicted of adultery to marry 
 again until the complainant shall be actually dead. Hence it may 
 be inferred, that the defendant, in such case, if he or she married, 
 living the former wife or husband, would be subject to the penal- 
 ties of the act against polygamy. 
 
 In a prosecution for this 'offence, it must be shown that there ThePeepie 
 was a marriage in fact between the prisoner and the. first wife ; p),.^ 1 " 
 his confession is not sufficient evidence of that point ; ether proof * Johns.Rej>. 
 of it will be requisite in order to convict him. 
 
 POOR. 
 
 I. By whom to be supported:. 
 II. Settlement. 
 
 III. Removal. 
 
 IV. Certificate. 
 V. Appeal. 
 
 VI. Poor-rate. 
 VII. Mode of relief. 
 VIII. Overseers' accounts. 
 
 I. By whom to be supported. 
 
 By the act for the relief and settlement of the poor, sess. 36. c. 78. 
 s. 1. ( 1 R. L. 27 1-)) it is provided " That every city and town shall 
 support and maintain their own poor." 
 
 " In case of the division of any town, the supervisors and 
 overseers of the poor of the several towns erected by such 
 division, shall, without delay, divide and apportion the money ap- 
 propriated for the support of the poor, and the poor belonging to 
 such town so divided, in proportion to the last tax list ; aiid the 
 poor, so apportioned, shall be deemed to belong to the town to 
 which they may be thus apportioned ; and in case any poor per*
 
 POOR. 
 
 son, who shall have heen an inhabitant of any town so divided, 
 and legally settled therein, shall return into either of thi 
 towns, such poor person shall be maintained by^ the tuwn, i. 
 ding the part of the town so divided in which such poor person 
 was last legally settled or had resided.'* s. I 1. 
 
 This cause came before the court on an appeal from an order 
 *.u*en-9n of the general sessions of the peace of Dutchess county. It ap- 
 'zJrfuvf&en. P eareo< , that me Huddltstone and his wife, and four infant chil- 
 393. dren. were removed, as paupers, from the towu of Stanford 
 
 town of Washington, by an order of two justice*, dated t! 
 of December, 1 80o, which stated that the paupers had become 
 chargeable to the town of Stanford, and had not gained ai v 
 settlement therein, and they adjudged the!' -'lenient to 
 
 be in file town of Washington. Previous to this order, ti 
 pers had been removed to the town of Stanford, by an order of 
 two justices of Ulster county, dated the 31st day of October, 
 1806, adjudging that to be the town from which they had last 
 come, and that they bad gained no settlement in the town of 
 "Wawasink, from which they were removed. From the last order 
 there was no appeal made. The towns of Washington and Stan- 
 ford were formerly one town, by the name of Washington. By 
 an act of the. 12th of March,, 17^3, the town of Washington was 
 divided, anda part thereof erected into a new town, by the nairre 
 of Stanford, and the poor of the former town w re divided, no- 
 cording to the act, between Washington 'and Stanford. Huddle- 
 atone was born in Washington, before it was divided, and in that 
 part of it included in the present town of Washington. At the 
 ^ time the town was divided, he resided in that part of it now cal- 
 led Stanford, but was not then chargeable. On an appeal to the 
 general sessions of the peace of Dutchess county, from the first 
 mentioned order, the court decided, that with respect to the set- 
 tlement of the pauper, the towns of Washington and Stanford 
 Jiiust be considered as if they had always been separnte, and that 
 he must therefore be deemed chargeable to the town of Wash- 
 ington, having been born in that part of the old town now called 
 Washington, and the order was affirmed. Proof was offered to 
 the sessions, that at the time of the division of the town, the su- 
 pervisors _and overseers of those two towns agreed, that each town 
 should support all such persons as were then inhabitants of each 
 town, and who should thereafter become chargeable ; but t; 
 titnuny was overruled. From the judgment of affirmance, the 
 overseers of the poor of Washington appealed to this court. 
 
 VAN NESS, J. When a new town is erected, it immediately 
 becomes entitled to all the benefits and advantages, and subject 
 to all the duties and burthens common to other towns. Among 
 the latter, is fhe burthen of maintaining the poor. The provi- 
 sions of the general law for the maintenance and relief of the 
 ''poor, attach on the new town the moment it is erected. This 
 being granted, it skeins to rrie to put a'n end to the question now
 
 POOR. 
 
 >> 
 
 under consideration. That birth gives a settlement, is not t.> be 
 disputed, as a general rule ; indeed this is assumed as a fixed prin- 
 ciple by our statute. Huddlestone, who became a pauper iu 1806, 
 was chargeable, therefore, to the town in which lie was born, 
 which is the present town of Washington, unless he has obtained 
 a legal settlement elsewhere. It is not pretended that he has 
 gained such settlement, unless his residence within the bounds of 
 the present town of Stanford, at the time of the passing of the 
 act to divide, the town of Washington, in 1793, has had that effect. 
 The act provides, that after a division of the poor, each town 
 shall maintain its own poor, that is, after tin; division, those towns, 
 in relation to the support of the poor, as regulated and defined 
 by the general poor-laws, shall stand on the same footing as other 
 towns. There is another view of this question, which appears to 
 be conclusive. Suppose the pauper in 1 ti06 had. resided in the 
 town of Poughkeepsie, and it had been necessary to remove him 
 from thence to the town in which he had acquired a legal settle 
 merit, I think that there can be no doubt that the town of Wash- 
 ington would be considered as the town to which he was chargea- 
 ble. In the c ise juat supposed, the provisions of the general 
 poor-law certainly would have prevailed. The evidence offered 
 respecting the agreement was properly rejected. That agree- 
 ment, if made, was not obligatory, and can never control the ope- 
 ration or construction of a statute. 
 
 SPENCER, J. In my opinion the. town o'f Washington is boupd 
 to support them, as paupers chargeable on that town. After the 
 separation of the town of Washington, and the division of the 
 poor, according to the act of 1793, with respect to all future pau- 
 pers, they stood in the same situation, in respect to each other, 
 as any other towns in the state, and as though they had al- 
 ways been distinct, towns ; the requisition of the statute, that 
 after the division of the paupers, the towns should maintain their 
 respective poor, never attached on Stanford, because HudtflestOM 
 had gained no settlement there, but it did attach on Washington 
 in consequence of the birth of Huddlestone within its bounds. 
 Birth is not one of the means mentioned in the statute, of acqui- 
 ring a settlement ; but the statute presupposes that it gave settle- 
 ment, and it has accordingly been holden that the town where a 
 pauper is born is chargeable with his maintenance until he ac- 
 quires some other settlement. The sessions very properly over- 
 ruled the evidence of declarations made, when the poor were disr 
 >1 ; the supervisors and overseers of the poor had no autho- 
 rity to make any agreement relative to future paupers ; and it 
 would be extraordinary to receive it as evidence of their sense of 
 the I,MV. KKIVT, Ch. J. dissented. Order affirmed. 
 
 " In all cases where any of the present poor in any county of 
 this state are maintained by !he. vvhule county, or by more than one 
 town, such poor person;; shall continue lobe so mainta'cied." s.j)2. 
 
 "The father and ;,!; n;l fat hr;\ mwther and grandmother, beiu.?.
 
 328 POOR, 
 
 of sufficient ability, of any poor, blind, lame, or decrcpid person 
 whomsoever, not being able to maintain himself, and becoming 
 chargeable to any city or town within this state, and the children 
 and grand-children, being of sufficient ability, of every poor, old, 
 blind, lame, or impotent person, not being able to maintain him- 
 self, and becoming chargeable as aforesaid, shall respectively, at 
 their own charge and expense, relieve and maintain every such 
 poor person, in such manner as the justices of the peace of the 
 city or county where such sufficient person shall dwell, at their 
 general sessions of the peace, shall order and direct, on pain of 
 forfeiting and paying one dollar and twenty-five cents for each 
 person so ordered to be relieved, for every week such order shall 
 not be obeyed, to be sued for and recovered, -with costs of suit, 
 by the overseers of the poor of the city or town to which such 
 poor person shall be chargeable, for the use of the poor of such 
 See sect. zo. city or town, in the manner herein before directed, with respect 
 and post v. j o cos j s anc | c h ar g es U p O n an appeal." s. 21. 
 
 R. v. Mun- The persons to be charged must be the natural relations of the 
 st".' i9o. pauper ; hence a husband will not be bound to maintain his wife's 
 Tubbv. parents, or her children by a former marriage: neither is a has- 
 
 Harnson, ..... 
 
 4 TermUep. tard witlun the statute, and although his parents are compellable 
 
 Co'n Dte * su PP or t him, yet the obligation does not extend to his putative 
 
 Justices of grandfather. 
 
 {B. a j " It shall be lawful for the overseers of the poor of any city or 
 
 town within this state, where any father or husband shall run 
 away, or absent himself from his wife or children, or where any 
 widow shall run away, or absent herself from her child or chil- 
 dren, and leave any of them a charge to such city or town, to ap- 
 ply to any two justices of the peace of the city or county where 
 any estate, real or personal, of any such father, husband, or widow, 
 or any part thereof, may be, and by warrant, under the hands and 
 seals of the said two justices, who are hereby authorized and re- 
 quired to issue the same, to take and seize the goods and chat- 
 tels, and to let out and receive the annual rents and profits of the 
 lands and tenements of such father, husband, or mother, so ab- 
 sconding as aforesaid, for and towards the maintaining, bringing 
 up, and providing for such wife, child, or children, so left as afore- 
 said ; and as soon as the said seizure shall be allowed of and con- 
 firmed by the justices, in their general sessions of the peace, it 
 shall be lawful for the said overseers of the poor, or. any two of 
 them, as often as the case may require, to sell and dispose of s 
 much of the said goods and chattels, at public vendue, to tlie 
 highest bidder, and to receive the said rents and profits, or se 
 much thereof as shall be ordered by the said sessions, and t<> 
 apply the money arising ^herefrom towards the maintenance of 
 such poor family, or person, so left as aforesaid : And further, the 
 said overseers of the poor shall be accountable to the justices of 
 the peace, IK tb?!r said general sessions^ for all such monie^ as
 
 POOR. 329 
 
 shall arise from any such sale, and from the rents and profits of 
 such lands and tenements." s. 22. 
 
 II. Settlement. 
 
 A settlement may be acquired at common law either by birth * Black, 
 (for wherever a child is first known to be, that is always prima 3 Tobm. 
 facie the place of settlement, until some other can be shown,) or ^^ 19 f',j 
 bjt parentage ; that is, a child not emancipated, and constituting Kaym. svt. 
 a part of his parent's family, obtains a settlement wherever the 
 parent may be legally settled. 
 
 The fathers settlement is the settlement of the children when 3 Burns' Just, 
 it can be found out; otherwise the birth of the child is, prima 5 rer.a Hep. 
 fade, the settlement of the child, until there is another settle- 653< 
 uient found out. If a child be dropt in a parish, they may re- 
 move him to the place of his birth, or where his father's settle- 
 ment was, and the settlement by birth is only until they find the 
 father's settlement; and if they never can find that, it is absolute 
 upon them. 
 
 if the mother of a child born in one parish, die in another pa- 3Burns'just. 
 rish while passing to a third, such child shall be settled where it 584- 
 was born, and not in the parish where it was left destitute by the 
 death of the mother. 
 
 If the father hath no settlement, as being a foreigner, or if the 3 Burn'Just. 
 father's settlement is not known, yet if the mother hath a settle- 585> 
 ment, the children, in such case, shall not be sent to the place of 
 their birth, but to the place of their mother's settlement. 
 
 A legitimate child shall necessarily follow the settlement of its sBiirns'just. 
 parents as a nurse child, or as part of the family, only until it i38 ' 
 shall be seven years of age ; and after that age, it shall not be re- 
 moved as part of the father's family, but with an adjudication of 
 the place of its own last legal settlement, as being deemed capa- 
 ble at that age of having gained a settlement of its own. 
 
 Where a father gains a second settlement after the birth of his 5(S ul Tij Ust ' 
 child, that settlement is immediately communicated to the child. Raym. 133?. 
 And a child may be sent to the place of his father's settlement, 1Str ' 580t 
 without ever having been there before, as well after his death as 
 in his life-time, supposing they have gained no settlement of their 
 own. 
 
 If the futher is settled in the parish of H., but goes to work in ssaik.a.*?. 
 the parish of B., and before he gains any settlement there, has a " j* olt * 
 son born in the parish of B., and then dies, this child shall be sent 
 to the parish of H. ; for it is not the birth, but the settlement of 
 the father that makes the settlement of his child ; and if. the fa- 
 ther hath gained a new settlement for himself, he hath likewise 
 gained a new settlement for his children, who do not go with 
 him to his new settlement as nurse children, but as part of his 
 family : but if a man is settled in the parish of H., and haa chil-
 
 330 POOR. 
 
 drnn born there, and dies, and afterwards the mother of these 
 children marries a husband who is settled in another parish, the 
 children shall go along with her, not as part of her family, but 
 s nurse children, to be maintained at the charge of the parish 
 where they were born, and where their father, whilst living, was 
 settled, and to that parish they may be sent after seven years 
 old, as to the place of their lawful settlement; for this accidental 
 settlement of their mother, which was only by the marriage with 
 a second husband, as she is now become one person with him, 
 shall not go in a settlement for her children. 
 
 Cumnerv. H. was settled at Cumner, and had. several children born 
 saik?%8 there : afterwards he removed to Milton, and gained a settlement 
 see sect. 10. there. He became poor, and his children, under the age of 
 post, I/ ' seven years, were sent back to Cumner, by order of two justices, 
 which it ap. which was confirmed by the sessions. Holt, Ch. J. The question 
 
 V-'Rrs to be * 
 
 sccopmst.1 is, where the father comes with his children to Milton, and gains 
 m^nt^fgain- a settlement there, whether this does not also give a new settle- 
 *d hy paren- ment to his children, and unsettle them as to Cumner, the place 
 of their birth ? If a father be settled and die, his wife being big 
 with child, and after that the mother dies before she is delivered, 
 and afterwards the child is born, the child is settled there by his 
 birth. In this case, the settlement of the father at Milton is a set- 
 tlement to the children. The child is settled by birth only, where 
 it is an accidental settlement. The order was quashed. 
 woodurd v. So, where the mother, after the father's death, removed to an- 
 ^ a i'i Sl> Ua y 'm t ner parish with her daughter, about the age of fourteen, and 
 1473.' there gained a settlement, it was held that the legal settlement 
 
 of the daughter was in the parish to which she had removed 
 wii'i her mother, and there is no difference between a father's 
 gaining a settlement and a mother's, in such a case as this.* 
 3 Term Rep. But when the child becomes emancipated, or independent of 
 the father or mother's family, the rule ceases to exist, and he has 
 that settlement which his parent had at the time of emancipation. 
 He is said to be emancipated when he arrives at the age of 
 twenty-one, or is married, or has gained a settlement in his own 
 right, or has contracted a relation inconsistent with the idea of 
 his. being in a subordinate situation in his father's family. 
 27o Urr S C * ^ where a son marries and leaves his father's family, and 
 lives by himself; and after this the father gains a new settlement 
 in another parish ; the son shall not follow the father in this new 
 settlement, thus afterwards gained by the father. The son, by 
 virtue of his marriage, becomes the head of his own family, 
 which is to be considered as an independent family. 
 
 s Term Rep- The settlement of a child five year's old, leaving the father's 
 famil3 r , and living with different relations till tea, follows that 
 of his father, if he has not gained any settlement in his own right ; 
 for the father has still the right to the custody of the son, and 
 might obtain him by habeas corpus. It is not necessary in 
 these cases of derivative settlements, that the child should re-
 
 POOP. 331 
 
 *nove with the father from place to place, for the settlement 
 of the father will be communicated to the child. 
 
 The mere circumstance of attaining the age of twenty-one is r,TermBep. 
 not an emancipation if the son continue to live with the father ; 247t 
 but an adult who leaves his father's house, and goes into service, 
 becomes thereby emancipated, and is not entitled to a settlement 
 gained by the father. 
 
 If the son enlists for a soldier, he thereby becomes emancipated, i Burr. s. c, 
 
 Children of a first marriage do not follow the settlement of "rermHep. 
 their mother in right of a second husband, unless for nurture ; 67 
 and even then at the charge of the parish where they are le- 
 gally settled. 
 
 Where the father has no settlement, the child will follow that 3 Burns' Just, 
 of its mother. The child's settlement follows that of its father, iB urr . s. c. 
 if the father can be found ; and no recourse shall be had to the 307.484.. 
 mother's settlement till that of the father can be traced no farther. 
 
 No child, when the parent is removed to his original place of Sect. 10. 
 settlement, shall gain a settlement in the town to which he is re- 
 moved, but it shall remain as before such removal. 
 
 A woman marrying a man that is settled in another town, i Black, 
 changes her own settlement : the law not permitting the separa- ^"^ ^rie. 
 tion of husband and wife. But if the man has no settlement, her's ton, 2 Burr, 
 is suspended during her life, if he remains in the country and is 
 abl-- to maintain her; but in his absence, or after his death, she 
 may be removed to her original place of settlement. 
 
 A wife can gain no settlement, separate and distinct from 3 Burns' Just, 
 her husband, during the coverture. 
 
 By the third section of the act for the relief of the poor> it is pro- 
 vided, " That every bastard child shall be deemed and adjudged 
 to be settled in the city or town of the last legal settlement of his 
 or her mother." 
 
 " Every person who shall have come to inhabit in any city or 
 town within this state, and shall actually and liana fide have rented 
 and occupied a tenement of the yearly value of thirty dollars or 
 upwards, for two years, and actually paid such rent, or shall for 
 himself, or on his own account, have executed any public annual 
 office or charge in such city or town during one whole year, or 
 who shall have been charged with, and paid his or her share to 
 wards the public taxes of such city or town for the space of two 
 years;" (excepting assessments for labour on the highway, a:-; 
 hereafter mentioned) " and every persoq who shall have been 
 bound an apprentice or servant by indenture, or by any deed, 
 contract, or writing not indented, and shall in consequence of such 
 binding;, have served a term not less than two years in such city 
 or town, shall be deemed and adjudged to have obtained a legal 
 settlement in such city or town." s. 2. 
 
 And by the same section, " All mariners coming into this state, 
 and having no settlement in this state, or in any other of the. 
 United States of America, and every other healthy, able-bodied per-
 
 332 POOR. 
 
 
 
 son, coming directly from some foreign port or place info this state, 
 shall be deemed and adjudged to b:> legally settled in the city or 
 town in which he or she shall have first resided for the '.spare of 
 one year : Provided always, That the person or persons who may 
 have, or hereafter shall come into the city of New-York, from 
 any other state within the United States of America, shall not 
 be deemed and adjudged legally settled under this section, unless 
 the party shall first prove to the satisfaction of the commissioners 
 of the alms-house and bridewell of the said city, that after his or 
 her arrival therein, he or she, as the case may be, shall have ac- 
 quired such requisite* to constitute a settlement, as are necessary 
 in and by the laws of such state, from whence he or she may have 
 . come as aforesaid : 
 
 u And provided further, That the assessment and performance 
 of labour on any highway in any city or town, shall not be con- 
 sidered a tax within the meaning of this act." 
 
 s Bums' just. As to what shall be a tenement, by the renting and occupation 
 of which a settlement may be gained, it seems, that a mill is a 
 tenement so as to gain a settlement. 
 
 2 Term Rep. Taking the hay and aftermath of a meadow gains a settlement ; 
 for there can be no other profits of the meadow but the hay-grass 
 and aftermath, _and if a man grant all the profits of the ground, 
 he grants the land itself. 
 
 sTerm Rep. Renting a dairy will give a settlement: for this is in truth and 
 
 La * East ' effect a contract for a certain interest in the land to be enjoyed in 
 a particular manner: but where a dairy (including the cows and 
 their past'ire) are rented, the value of the lands on which the 
 cows are depastured must amount to the sum required by the 
 act, exclusive of the value of the cows. 
 
 s Rums' Just. The value of the tenement, and not the quantity of the rent, is 
 
 814. l Str. . . 
 
 .v . tht material circumstance. 
 
 .' Bm-H<,Must. Under the second clause of the above section, an office which 
 
 7Q j 
 
 is served but for part of a year at a time does not gain a settle- 
 in en t. 
 
 B'irr. s. c. It i i not necessary that the. office shtfuld extend throughout the 
 whole town ; the act only requires executing some annual office. 
 But it must be executed for the space of a whole year; and if in 
 the execution of the office the person becomes actually chargea- 
 ble, he may be removed. 
 
 i Ei<;t,283. Settlement by being charged and paying taxes (and so it would 
 
 53t>r' m ReP ' seem settlement by serving in an office) is not sufficient without 
 
 also a residence in the town; for where a person is rated in one 
 
 parish and resides in another, he does not gain a settlement by 
 
 paying such rate. 
 
 19 vin.sse. Although the rate be in form, or in the nYanncr of making it, not 
 strictly legal, but void ; yet if the'party be rated and pay to such a 
 rate, he shall gain a settlement. 
 
 s BurnsMust. The same person mijsl both be charged and pay; for, if one 
 774> person be charged, and another pay, no settlement will be
 
 POOR. 333 
 
 as if the landlord be charged, and the tenant pay the tax, or the son Burr. s. c. 
 pay a tax which has been charged on the lather, the tonant in 'J.os. 100. 
 one case, or the son in the other, will not gain a settlement. 
 
 Paying a county tax \viil not gain a settlement. sBurns 1 Just. 
 
 The fourth mode of gaining a settlement, pointed out. by the ' "' 
 second section of the act, is by serving as an apprentice or ser- 
 vant for two years, in consequence of a binding. 
 
 In order to gain a settlement, the binding must be valid, or at 
 least voidable; for if void, it will be of no avail. 
 
 A parol binding is not sufficient to gain a settlement by appren- Burr. s. c. 
 ticeship. As to what is requisite to constitute a valid binding, 2 ' 2 ' 
 vide APPRENTICES, I. II. 
 
 Where a poor apprentice is hound, and the two justices give their 3 Term Rei>. 
 assent separately to the indenture, it is void, and no settlement 
 H gained by serving under it. 
 
 Where an apprentice is bound out by the overseers for a longer Burr, s.c, 
 time, than is permitted by the act, (1 R. L. l'3(i. ante, p. 17.) the in- 2 
 denture is not void, but only voidable by the parties themselves, 
 and a settlement may be gained by serving under it. 
 
 Binding and serving will not make a settlement, but the settle- sU-Rajm. 
 mont must be by inhabiting ; which cannot be but where the party Uurr. s. c. 
 lodges. Therefore if an apprentice work with his master in the ioj ' 
 parish in which his master lives, and lodge at nights in another, 
 his settlement is in the parish in which he lodges; [or at least, he 
 has no settlement in the parish in which he works.] 
 
 Where a person is bound apprentice to a master who lives in s Bum'Ju. 
 A., and afterwards, by his master's consent, lives with another per- 554! Burr.' 
 son in B., he gains a settlement in the last place; for a person giu' s'rerni 
 may serve his master in another parish or place; and although he Hep. eos. 
 serves another man, yet it is by consent of his master, and the 
 benefit accrues to his master. But the assent of the master must 
 be express, and for the particular service. 
 
 If a master assigns over his apprentice, and the apprentice 3num 1 Ju$t. 
 serves in pursuance of that assignment, he thereby gains a settle- |fc.m* 
 ment. The first master has not indeed the absolute control over 6 Tfirm R <-'P- 
 the apprentice, so as to compel him to go to any part of the coun- 
 try and serve another master ; but if he do serve a second with the 
 consent of the first, it is sufficient; it must be with the consent 
 of the first master, for it has been decided that histnere know- 
 ledge of such service will not answer the purpose. 
 
 So, if the second master consent that he should serve a third, f,'g rr>S-C ' 
 he. will gain a settlement by such service. 
 
 By the English poor laws, a settlement is gained by hiring and 
 service for a year, which provision of their laws has given rise to 
 a great number of adjudications ; but the only species of service 
 which will gain a settlement in this state is that mentioned in the 
 second section of the act, and which, from the very words of it, 
 only apply to servants who are bound by writing. 
 
 " .!No person shall be deemed to gain, a settlement in any city
 
 334 POOR. 
 
 or town within this state by virtue of any purchase of any estate 
 or interest in such city or town, whereof the consideration for 
 such purchase shall not amount to the sura of seventy-five dollars 
 lona Jide paid, for any longer or further time than such person 
 shall inhabit in such estate, and shall thereafter be liable to be re- 
 moved to the city or town where such person was last legally 
 settled before the said purchase and inhabitancy therein." s. 4. 
 Bnrr.s. c. A settlement of the father in an estate purchased for less than 
 seventy-five dollars does not gain a settlement for his children. 
 
 The fourth section of our act is almost literally copied from 
 the statute 9 Ceo. c. 7. The following case, decided under that 
 act, contains principles so important for the construction of it, 
 that I shall state it fully. 
 
 StanJof*" ^^ n H 6 ' t ^ ie pauper, purchased a tenement at St. Sidwell's 
 uffcuime, for twelve pounds. He lived there with his family, and was rated 
 BMTT.S. c. an( j p a jj ^ rates Afterwards he sold the said tenement, and 
 went with his family to the parish of Uffculme ; from whence 
 they were removed to the parish of St. Sidwell. The sessions 
 being o.f opinion that the said John Hine did not gain a settlement 
 in St. Sidwell, by being rated and paying as aforesaid, the con- 
 sideration being under thirty pounds, (which answers to the se- 
 venty-five dollars in our act,) did therefore vacate the said order. 
 It was moved to quash the order of sessions. Ld. .Mansfield, Ch. 
 J. delivered the resolution of the court. It will first be necessary 
 to consider how the law stood before the making of the 9 Geo. 
 Now before that act, no man was removeable from his own, be 
 the value of the purchase of it never so small and inconsiderable. 
 And there were then other ways also of gaining settlements, as 
 by serving a public annual office,'nd being charged with and pay- 
 ing a share towards the public taxes, or levies and burdens of the 
 parish. But this act was levelled only against fraudulent purchases 
 of small value, made in order to gain settlements. And it declares, 
 that purchasers of less than thirty pounds value, bona Jide paid, 
 shall not gain a settlement for any longer time than the inhabit- 
 ancy thereupon shall continue ; after which the purchaser shall be 
 liable to be removed to his former legal settlement, prior to such 
 purchase and inhabitancy upon it. And the established construc- 
 tion of this act hath been, pursuant to the intention of the legis- 
 lature, to prevent fraudulent purchases. And, therefore, it hath 
 been considered not to extend to what are called purchases in 
 law, as devises, or other such method of coming to estates, be- 
 rause they are not fraudulent ; whereas the present settlement is 
 daimed by being rated, and having paid towards the public taxes 
 of the parish, which is quite a different method of gaining a set- 
 tlement. And we are all clear, that this act only means to put 
 a negative upon a person's gaining a settlement by making a small 
 purchase, with a fraudulent intention to gain a settlement there- 
 by in the parish where such purchase is made, and that it doth 
 not sflect any other method of gaining a settlement. And in-
 
 POOR. 335 
 
 deed it is but reasonable, that persons who have been rated and 
 paid towards the public taxes and levies of a parish, should re- 
 ceive assistance from that parish whea they become necessitous 
 themselves. 
 
 Where a man, in consideration of natural love and affection, R.V. intia- 
 conveyed an estate to his daughter, without any money consi- jj^^ 
 deration, this was held sufficient to gain a settlement to herhus- Burr.s.c. 
 band, and the property being leasehold, that the husband was 
 not removeable after the expiration of the term. This was not a 
 purchase within the meaning of the act ; for the word purchase is 
 not here to be taken in the largest extent of it, but is confined to 
 cases where a pecuniary consideration is paid. Indeed, if the 
 husband had paid a consideration, he would have been a purcha- 
 ser, though the conveyance had been made to his wife. 
 
 So, where a father conveyed to his son in consideration of na- 3 TermlUp 
 tural love and affection and ten pounds, the son gained a settle- 25 * 
 ment, there being circumstances to show that ten pounds was not 
 the real value of the estate. 
 
 Where a woman, before marriage, purchased an estate for less Burr. s. c. 
 than thirty pounds, and after marriage her husband resided on it, 
 it was held that he gained a settlement. 
 
 If the purchaser borrow the sum required in order to pay the Burr. S. c*. 
 vendor, and pays it to him, and mortgages the premises to the 
 lender to secure the money, he will gain a settlement. 
 
 Where an estate was purchased for less than thirty pounds, and Burr. s. C. 
 the purchaser afterwards laid out money in improvements upon it, 5i3 ' 
 which, with the original purchase money, amounted to above 
 that sum, it was held that he did not gain a settlement. 
 
 Where the consideration expressed in the deed was twenty- 3 Term Rep 
 eight pounds, parol evidence was held admissible to prove that 4 
 thirty pounds was the real consideration. 
 
 Where the husband has gone away and left his wife, and she Burr. s.c. 
 continues to reside on his estate, she cannot be removed. 413< 
 
 Having land in a parish will not make a settlement, but living in 2Salk.5S4. 
 a parish where one has land, will gain a settlement without notice. 
 
 In error from the general sessions of the peace of the county of overseers of 
 Greene. This was an appeal from the order of the justices of o!'rietrior- 
 the town of Windham, in the county of Greene, for the removal wimiiiam 
 
 * J n j o ), n9 
 
 oTVuhus Jlgars, a pauper, from that town to the town of Blen- n e p. T . 
 heim, in the county of Schoharie, t the general sessions of the 
 peace of the county of Greene. In 1777, Jlgars came into the 
 town of Woodstock, iu that part of it which is now Windham, 
 and about twenty years ago purchased of Johannes Hardenbergh 
 one hundred acres of land, for the consideration of seventy-five 
 dollars, for which land he received a deed in fee ; but the deed, 
 as the witness testified, was lost. The person who drew the deed 
 stated, that the land was described as situated in the Hardenber^U 
 patent, in the town of Woodstock, and county of Ulster; but tlint in 
 i'act the land lav in the town of Blenheim, in Schoharie county, and
 
 336 
 
 south of a line mn for the north line of the Hardenbergh patent, 
 called Core's line. After the purchase, Agars took possession of the 
 land, which was wild and covered with wood, and improved p:\rt 
 of it for two seasons ; but, excepting during that lime when he 
 hoarded in Blenheim, he had resided in that part of Woodstock, 
 which is now Windham, since 1777, to the time of the order for 
 his removal. It appeared that at the time of the conveyance to 
 Jlgars, the land was claimed as part of Due's manor, ^nd half of 
 it was included in a lease to one Bartlctt, and his son testified 
 that he was well acquainted with the bounds, ic. and that the 
 one hundred acres, purchased by Cigars, lay within Due's manor, 
 and in the town of Blenheim. It was further proved, that about 
 twelve years after Jlgars purchased the one hundred acres, he 
 sold all his interest and title in the land for a horse to Alexander 
 Boyd, who had previously purchased the title of Due. The ap- 
 pellants offered to prove, by the statutes, the boundaries of the 
 counties of Ulster and Schoharie, and of the towns of Wood- 
 stock, Blenheim and Windham, and for that purpose also offered 
 in evidence the map of the state ; but this evidence was over- 
 ruled by the court, who adjudged that the pauper's last place of 
 legal settlement was in the town of Blenheim, in the county of 
 Schoharie, and confirmed the order of the justices. Per curiam. 
 Here was evidently a mistaken purchase. The lands were sold 
 as part of the Htirdenbergh patent ; and in fact they did not lie in 
 that patent, and so no estate or interest in the town of Blenheim 
 passed by the deed. Nor can the act of the p;mper, in clearing a 
 part, be deemed a title by possession in Blenheim, sufficient to 
 gain a residence. His douiicii was never changed, and he only 
 went occasionally on the land for a special purpose. The statute, 
 never meant that a settlement should be acquired by purchase, if 
 no estate or interest known or valid in law passed, and here none 
 was intended to pass but what was covered by the Hardenbergh 
 patent. The purchase ought therefore to be disregarded, and 
 the order of the sessions quashed. 
 
 Overseersof J n error, from the general sessions of the peace of Chenango 
 ^overseer's county. Two justices of the peace of Norwich made an order 
 ofjforwich, f or t| ie removal of William Tyler and his wife, two poor person-, 
 Kc;>.229. from Norwich to New Berlin, as the place of their last legal set- 
 tlement. The overseers of the poor of New^Berlin appejfted 
 from this order to the sessions. The overseer's of Norwich proved 
 by the pauper, that eight years before he came to reside in New 
 Berlin with his family, he paid taxes; that while he resided there 
 he purchased two lots of land, one lot of S. and one lot of A., 
 and paid A. a wagon worth seventy-five dollars, and a horse to S. 
 worth eighty dollars ; that he was to give S. two hundred and fifty 
 dollars for the lot, house and shop, tools, fcc. The tools were 
 worth about fifty dollars ; and that he mortgaged the lot to S. for 
 two hundred dollars. The deed and mortgage were registered, 
 and it appeared that the consideration expressed in the dei'l v^..-.?
 
 POOR. 337 
 
 two hundred and fifty dollars. The appellants offered to prove, by 
 parol evidence, that the lil'ty dollars were not paid by Tyler aa part 
 of the consideration fur the land, bttt for the tool?, &-c. and that 
 the land was mortgaged to S. for the whole consideration money, 
 being two hundred dollars. This evidence was objected to and 
 overruled by the court. The order of removal was ailirmed by 
 the sessions, with cobls. 
 
 Per curia m. The purchase of an estate, in a town will not 
 gain a settlement for any longer time than the purchaser inhabits 
 such estate, unless the consideration for the purchase amounts to 
 seventy-five dollars bona fide paid. The overseers of the poor 
 of the town of New Berlin offered to prove, that though the pau- 
 per had purchased a lot in that town, for the consideration 01 
 two hundred and fifty dollars, and had mortgaged the lot back to 
 secure the payment of two hundred dollars, yet that in fact he 
 had not paid any part of the consideration, and the evidence wu.s 
 rejected. The overseers of New Berlin were clearly entitled to 
 show this fact, and were not estopped from showing it by the deetl 
 or mortgage, to which they were not parties. Such a conclusion 
 would be unjust, by enabling a person at any time to procure ;i 
 settlement, by a purchase without payment, and so to defeat thti 
 provisions of the act. It is a general rule, that parties and privies 
 are estopped from contradicting a written agreement by parol 
 proof; but the rule does not extend to strar.^rrs, TV ho have an in- 
 ti.rust in investigating and knowing the real truth of the case. 
 The judgment of the court below must be reversed, and the ordar 
 of the two justices quashed. 
 
 " If any person, other than those herein before mention- 
 ed, coming into any city er town, shall, within forty days af- 
 ter such person's coming into such city or town, deliver a notice 
 in writing, to any two overseers of tile poor of such city or town, 
 into which such person shall so come to reside, of the house oi p 
 place of his abode, and the number and names of his family, if 
 he shall have any, which notice such overseers of the poor are 
 hereby required to cause to be registered, within forty-eight hours 
 after the receipt thereof, in the book kept in such city or town, 
 lor the accounts of the poor; and in case the overseers of the 
 poor of such city or town shall ntot, within twelve months after 
 such notice, cause such person to be removed out of such city or 
 town in the manner hereinafter mentioned ; then, and in su*h case, 
 the person so giving notice as aforesaid, shall be deemed and ad- 
 judged to be legally settled in such city or town." s. 5. 
 
 " If any overseer of the poor shall refuse or neglect to register, 
 or cause to be registered, such notice in writing as aforesaid, in 
 such time and manner as aforesaid, he shall, for every such refu- 
 sal or neglect, forfeit the sum of five dollars, to the use of the 
 party aggrieved,"^ be recovered, with costs of suit, in any court 
 having cognisance thereof." s. (j. , 
 
 A greater number of cases might have been added from the 
 English books upon the law of settlements; hut it is with diffi- 
 
 r is i
 
 
 iiich are here inserted 
 
 the reader; the language, as well as the substance of our poor 
 Jaw. differs in man> from the En;:! c decisions 
 
 in our uwn courts not being numerous-, it is difficult to determine 
 how far the English cases would apply }..-.. Fur t;- 
 
 ;iave been sparingly introduced, and will have been priuci- 
 paliy confined to the head of settlement, the most difficult branch 
 
 s subject. The remaining parts of the act do not require so 
 much illustration, and therefore I shall dj=n-gard thuu in the re- 
 e of this title. 
 
 III. Rtnwral. 
 
 overseer of the poor of any city or town shall hart 
 n to believe that any stranger, who shall have come to re- 
 side io such city or town, and who shall not have obtained i. 
 ment therein, is likely to become chargeable to such 
 . such overseer shall apply to any two justices of the peace 01 
 such city, or of the county in which such town shall lie, and inform 
 them thereof; and the said justices being so or otherwise informed, 
 or suspecting such stranger to be of insufficient ability, or likely to 
 become a charge to such city or town, are hereby authorized and 
 required to i?sue their warrant to a constable of such city or 
 town, thereby commanding him to bring such stranger befor^s 
 them, at such time and place as they in their said warrant shall 
 for that purpose appoint ; and the said justices shall examine 
 every stranger so brought before them, and any other person 
 whom they may think necessary, upon oath, relating to the abi- 
 and last place of legal settlement of such stranger ; and if, 
 upon such examination, the* said justices shall find such stranger 
 likely to become a charge to such city or town, they shall order 
 and direct such stranger, by a certain day. to remove to the place 
 of his former settlement, and, on neglect or refusal to comply with 
 the said order, the said justices shall issue a warrant, under their 
 hands and seals, directed to any constable of such city or town, 
 who is hereby required and commanded to execute such 
 rant, thereby commanding him to convey or transport such stran- 
 ~'T to the constable of the next city, or first town in the adjoining 
 county, or if within the same county, to the town where the pau- 
 per was last legally settled, through which such stranger shall have 
 been suffered to wander uoapprehemled, and -so from constable 
 !o constable, or in such other manner, by the nearest and most 
 -nie&t route as the said justices shall think fit to direct, to the 
 place of legal settlement of such stranger, if the same shall be 
 within this stale ; or in case it shall appear that the said pauper 
 first came into this state through ihe city of New-York, and it" 
 shall not appear that the said pauper has acquired a s- 
 this- state, then, and in such-case, it sh-il! oe lawful for the sa. 
 tices to direct, by the said warrant, that the said pauper be
 
 POOR. 339 
 
 milled from constable to constable, or otherwise, to the city of 
 JVew-York." s. 7. 
 
 From the return of the certiorari directed to the court of gone- s'.wan. 
 ral sessions in the county of Ulster, it appeared that an order had jj'"mnkat- 
 Jn't it given by two justices of the peace, for the removal of Sarah >n^, i John*. 
 Hide, a pauper, from the town of Mamaknting to the town of 
 Shawangunk. The order recited that it was made on the com- 
 plaint of the poor masters of the town of Mamakating: that the 
 ju?ticf-s, " after examining the said Sarah, as well under oath as 
 otherwise, could not discover that she had any legal settlement 
 or place of residence in any part of the world whatever ; that if 
 suflered to remain, she was likely to become chargeable to the 
 town, and that the place she last came from was the town of 
 Shawangunk." From this order the overseers of Shawangunk ap- 
 pealed to the general sessions of the peace, by whom it was 
 confirmed. 
 
 The plaintiffs in error moved to quash the order: 1. Because 
 it was stated to have been made on the complaint of the poor 
 masters, when no officers of that name are known in law. 2. Be- 
 cause it requires the overseers of the town of Shawangunk to re- 
 ceive the pauper, See. without adjudging that she was legally set- 
 tled in that town. 
 
 Per curium. The justices may act on information obtained 
 from any source, or on their own suspicion. The order of the 
 two justices states, that they do not discover that the pauper had 
 any legal settlement in this state ; and it expressly finds that she 
 came from Shawangunk. This is a sufficient adjudication of the 
 fact to authorize them to send her back to that town. Motion 
 denied. 
 
 I>y the return to the certiorari in this cause, directed to the ge- Ovwseen of 
 neral sessions of the peace for the county of Orange, it appeared oveneenof* 
 ' that an order had been made by two justices of the town of New- J^us k B.e * 
 burgh for the removal of one Thomas Hart, a pauper, from that 330. 
 place to the town of Plattekill ; and that an appeal had been 
 made from this order to the court of general sessions of the 
 peace, by xvhom it was quashed, with costs. A few days bsforu 
 the order cf removal was made, the pauper came to Newburgh, 
 and staid a day or two, when he was sent by one of the overseers 
 of Newburgh to Shawangunk, from whence he was immediately 
 sent back by a pass warrant from two justices of that town to 
 Newburgh. He was then removed by the order now in question 
 to Plattekill. About seven years before, he had resided at that 
 town with his family : he left that place afterwards, and it did 
 not appear that he had any permanent residence any where. 
 The order of removal recited, that the pauper had no legal settle- 
 ment at Newburgh, and had produced nj> certificate of a settle- 
 ment elsewhere, and that he was likely to become chargeable, 
 &c. that the paupor being deranged in his mind, the justices, on 
 the oath?- of witn"":e?. and due proof made to them, adjudge the
 
 3-1-0 
 
 above facts to be true, and that the last place of residence of the 
 pauper was at Pfattekill, but they are unable to learn the 
 place of his last legal settlement, k.c. 
 
 To this order of sessions two exceptions were taken by the 
 plaintiff in error. 1. That on the original order, no appeal would 
 lie to the sessions. That it was a mere pass warrant, to send the 
 pauper from town to town. Where a pauper is a mere vagrant, 
 or transient person, without any place of legal settlement, he is 
 taken and cent from town to town, by such an order, but no ap- 
 peal will lie upon it. 2. That the sessions awarded costs. Per 
 curiam. The order was properly quashed by the sessions, for 
 there was no evidence, nor any adjudication that the pauper had 
 a legal settlement at, or came last from Plattekill. By a liberal con- 
 struction of the twentieth section of the act, the sessions are au- 
 thorized to allow costs in such cases. The order of the sessions 
 must be affirmed, and the appellants must pay the costs of this 
 appeal. 
 
 Overseers of A rule was granted by the court in May term, requiring the 
 v?ovtr"m-s cour * f general sessions of the peace of Albany county to show 
 ofGuiider- cause why a mandamus should not issue, commanding them to 
 s Joiins. Rep. hear and adjudicate on an appeal to the said sessions from an or- 
 4L2> der of removal, &tc At the last term the court of sessions made 
 
 a return, that at a court of sessions, held the 22d of February 
 last, an appeal by the overseers of the poor of Niskayuna, against 
 the overseers of Guilderland, from an order of removal made by 
 two justices of Albany county, residing in Guilderland, whereby 
 Jacob Clute and his wife were removed to Niskayuna, was heard. 
 The order appealed from, dated the 2d March, 1810, under the 
 hands and seals of the justices, and stated (upon the information 
 of the overseers of the poor of the town of Guilderland) that. 
 Clute and wife had come to reside in that town, not having obtain- 
 ed a legal settlement therein, nor produced any certificate of 
 their settlement elsewhere, and that they were likely to become 
 chargenble, &tc. that the justices, upon due proof made thereof, 
 and on the examination of the said Clute and his wife, upon oath, 
 adjudged the facts, as stated, to be true ; and that upon such ex- 
 amination and proof, not being able to discover where was the 
 Just, place of legal. settlement of the said Clute and wife, but that 
 Clute was born, and had once been legally settled in Niskayuna, 
 ;md that he had lived a number of years in the town of \Vater- 
 vlief, in the county of Albany, but whether he'had gained a legal 
 settlement in that town, they could not discover; but they had 
 discovered, upon examination and proof upon oath, and therefore 
 adjudged, that, the said Cluie came last from the town of Water- 
 viii-t, and that he married his wife in the said town of Guilderland. 
 And they having been ordered, by a certain d:iy, then past, to re- 
 move to the place of their former" settlement, and having neglect- 
 d and refused to do so, the justices directed and commanded the 
 "to convey apd transport C'u'f and his wife to the
 
 POOR. 341 
 
 U>\vn of Watervliet, being the town from whence they last rame, 
 ;intl to deliver them at the house of a constable of that town, who 
 was also required to receive them, and convey them to the next 
 constable, and so, from constable to constable, until they should 
 be transported to their last place of legal settlement, if such can 
 be found in this state." It was admitted that Watervliet, to 
 which town the paupers were removed, had sent them, with the 
 order, to Niskayuna. A preliminary objection was made by the 
 respondents before the court of sessions, that, as the order did 
 not remove the paupers to Niskayuna, nor make any adjudica- 
 tion, that town was the last place of their legal settlement, the 
 overseers of Watervliet only, and not those of Niskayuna, could 
 sustain an appeal from the order, if any could be sustained. Upon 
 hearing the counsel on both sides, the court of sessions deter- 
 mined that the preliminary objection was well taken, and there- 
 fore dismissed the appeal. 
 
 Per curiam. The overseers of Niskayuna show no merits to 
 entitle them to the present motion. The order of the justices 
 contained an adjudication that the paupers last came from the 
 town of Watervliet, and it ordered the constable to convey them 
 thither, and there the order had spent itself. It did not designate 
 any other place to which the paupers were to be removed, either 
 within or without the state ; and it would be equally absurd and 
 oppressive to suppose that it had any ulterior force, when it left 
 every thing at large to constables, without any certainty, or adju- 
 dication, as to place or object. Tne order, as to every thing that 
 was to be done after the paupers had been removed to Water- 
 vliet, was void for uncertainty. Constables are mere ministerial 
 officers. They cannot be roaming over the state with paupers, 
 seeking for some place of settlement. If the pauper is to be sent 
 out of the state, the order of the justices must at least prescribe 
 the route. It ought not to be left to the discretion of constable 
 upon constable. This would be repugnant to good order, to the 
 humanity due to the unfortunate pauper, and to the spirit of the 
 act, which declares that the stranger shall be conveyed from con- 
 stable to constable, " or otherwise, as such justices shall direct." 
 The justices must therefore make a special direction in the case, 
 and here was none made. The town of Niskayuna was, there- 
 fore, not bound to receive the paupers, without a new order, and 
 if that town did receive them, it was not by the authority of the 
 order, but in their own wrong. The sessions were therefore cor- 
 rect in deciding";that the overseers of Niskayuna had no right to 
 appeal from the order. Motion denied. 
 
 On the return of a certiorari to the general sessions of the pence Ovr yj. r ' ? f 
 in Orange county, the following facts appeared. A pauper was. overseen of 
 removed from Bloomingrove to the town of Southfield, by an or- p^ " 1 " 1 " 
 der of removal, under the hands and seals of two justices of the aJohns.Uc; 
 peace, dated the 20th of June, 180.5. On an appeal from this or- 
 der it was confirmed by the general sessions of the peace in
 
 POOR. 
 
 Orange county. It appeared that on the 23d of November, 
 two justices of the peace of Suffolk county made an order for the 
 removal of the same pauper, from the to ;.n of Riverhead to 
 Bloomingrove ; and she was accordingly removed in February, 
 18(H, and delivered, with a copy of the order, to the overseers of 
 the poor of Bloomingrove, who received and maintained her as a 
 pauper of that town until the 20th of June, 1805. It appeared 
 further, that the same justices of Suffolk, on the 10th of June, 
 1805, issued a supersedeas of this former order, directed to the 
 overseers of Bloomingrove, declaring their former order to be 
 quashed, obsolete, null, andtoid. 
 
 Per curiam. The justices of Riverhead could not supersede 
 the order of removal granted by them in November, 1803, after 
 the pauper had been removed, settled, and maintained in Bloom- 
 ingrove near twenty months by virtue of that removal, and when 
 no appeal had been made from that order. The order of the 
 sessions must be reversed. 
 
 " If any inhabitant of this state shall receive or entertain in his 
 dwelling house, out house, or family, for the space of fifteen days, 
 any person who hath not gained a settlement in some city or 
 Invrn within this state, and shall not, within the time aforesaid, 
 give notice, in writing, to one of the overseers of the poor of such 
 city or town, of the name, quality, condition, and circumstances of 
 the person so entertained, according to the best knowledge of 
 'such inhabitant, every such inhabitant shall, for every such of- 
 fence, forfeit the sum of five dollars, to be recovered, with costs 
 of suit, before any .court having cognisance thereof, by any per- 
 son who shall sue for the same ; one half of which forfeiture, when 
 recovered, to be paid to the overseers of the poor of such city or 
 town, and the oilier half to the person who shall sue for the same 
 aforesaid : .fold further, if the person so entertained as aforesaid 
 shall have remained in any city or town longer than the term of 
 forty flays, then it shall be lawful for any two justices of the peace 
 of such city, or of the county in which such town shall be, to cause 
 such .of the inhabitants of such city or town who shall have so en- 
 i<-rtained such stranger during the term of fifteen days, without 
 giving information thereof as aforesaid, to be brought before them, 
 and s-!fh inhabitants shall enter into bond to the overseers of the 
 poor of such city or town, and their successors, in the sum of 
 two hundred and fifty dollars, conditioned that such stranger 
 .shall not become a charge to such city or town ; and in case any 
 of the 'persons who shull have entertained such stranger as afore- 
 said, being in the opinion- of such justices of the peace of suffi- 
 cient ability, shall refuse to become bound as aforesaid, it shall 
 he lawful for the said justices of the peace, by warrant under their 
 hands and seals, directed to any constable of such city or town, 
 10 cause such person to be committed to the common jail of such 
 :ify, or of the county in which such town shall be, there to ve- 
 _ii);un until HUC'I uerson shall consent and become bound as afore-
 
 POOR. 
 
 said ; but ii' the person so entertaining such stranger shall not, in 
 ;!ie opinion of the said justices, be of sufficient ability to become 
 bound as aforesaid, or if the said justices shall not think fit to take 
 such bond, then they shall cause such stranger to be conveyed 
 from constable to constable, in manner aforesaid, until he shall 
 be transported to the place of his or her last settlement, if within 
 this state." s. 8. 
 
 In error on certiorari from a justice's court, .Jllalbelt and Tripp rmnse v. 
 sued Crouse before the justice, and declared against him, that he, and > Trlnp 
 without any lawful authority, brought into the town of Washing;- Ovenwior 
 
 ,,-,; D u the Poor, c . 
 
 ton one .William Brown, a pauper, having no settlement there, ujohn 
 or within this state ; that tiie pauper fell sick, and was supported lle r* 67 - 
 by them, the plaintiffs, as overseers, fcc. under an order of two 
 justices of the peace, until the death of the pauper, at the ex- 
 pense of about twenty dollars ; and that the defendant well knew, 
 &e. the facts set forth. Plea, general issue. The return stated, 
 that the plaintiffs proved all the material allegations in their de- 
 xlaration. The defendant offered to prove that Mablftt, one of 
 the plaintiffs, had said that there was property enough left by 
 Brown after his death, in the town of Washington, to defray all 
 the expenses ; but 'this evidence being objected to, was over- 
 ruled by the justice, and a judgment given for the plaintiffs for 
 twenty dollars, with costs. Per curium. This judgment must IK-. 
 reversed. There is no principle of the common law on which 
 the action can be maintained. The statute for the relief and set- 
 tlement of the poor, subjects to a penalty any inhabitant who 
 shall receive and entertain, for the space of fifteen days, any per- 
 son who has not gained a settlement in some city or town in the 
 state, without giving notice thereof, in writing, to one of the 
 overseers of the poor, i-cc. But this action was not brought on 
 the statute, and cannot be sustained. 
 
 By sect. 9. a constable transporting a pauper is to be allowed 
 for his services according to the discretion of the supervisors of 
 the county, and the money for that purpose is to be raised in the 
 same manner as the other contingent charges of the county. 
 
 " If any JHTSOII be removed by virtue of this act, from one city 
 or town to another, within this state, the overseers of the poor oi' 
 the city or town to which the said person shall be so removed, 
 are hereby required to receive the said person, and if they, or 
 any of them, shall refuse or neglect so to do, the overseer so re- 
 fusing or neglecting, shall, if thereof convicted by the oath of two 
 witnesses, forfeit and pay for each offence the sum of twenty-five 
 dollars, to the use of the poor of the city or town from which such 
 person was so removed : Provided always, That no person, nor 
 any child belonging to such person, shall gain a settlement in the 
 city or town to which he or they shall be so removed, but his or 
 their settlement shall remain as before such removal." s. 10. 
 
 '"-If any poor person shall remove, or come otit of any city or 
 town, where he is or shall ha legally settled, into any other cijy
 
 POOR. 
 
 or town within this state, and shall he taken sick or lame, so I ha*. 
 such person cannot, be conveniently removed hack to the place 
 of his last legal settlement, then the overseers of the poor of such 
 city or town, into which such poor person shall come as afore- 
 said, or one of them, shall give notice, in writing, to the overseers 
 of the poor of the city or town, out of which such poor person 
 ah !' have corneas aforesaid, of the name, condition and circum- 
 stances of such person, and request s,uch overseers of the poor, or 
 on-j of them, to take care of, relieve and maintain such sick or 
 lame person during his illness, and also to provide for his funeral 
 if he should die there ; and if any such overseer of the poor, 
 having notice as aforesaid, shall neglect or refuse so to do, "then it 
 shall be lawful for any two justices of the peace, of the city or of 
 the county in which such town shall be, where such poor person 
 had his last legal place of settlement, upon complaint made to 
 them, to cause all such sums of money as shall be necessarily ex- 
 pended in the maintenance of such poor person in his sickness or 
 lameness, or on his funeral, to be levied by distress and sale of the 
 goods and chattels of the said overseer of the poor, so neglecting 
 or refusing to take care of and provide for such poor person, as 
 aforesaid, after such notice given to him or them as aforesaid, by- 
 warrant under the hands and seals of such justices, who are 
 hereby authorized and required to issue the same, directed to 
 some constable of the city or town where such overseer of tin-, 
 poor shall reside, returning the overplus, if any there be, after 
 deducting all lawful costs and charges of such sale, as aforesaid ; 
 and such sums of money, so recovered, shall be paid to the over- 
 seers of the poor, or to one of them, of such city or town where 
 such poor person shall be su-k, lame, or die, as aforesaid." 3. 1C. 
 Vuortiis v. This case came before the court, on a certiorari directed to twt 
 
 7 jdhns.'nep. justices of the peace. One Carril came into the town of Rich- 
 89> field, in the county of Ofsego, and suon after became wounded 
 
 and disabled, so as to be incapable of being removed to his sup- 
 posed legal place of settlement in Charleston, in the county of 
 Montgomery, upon which the overseers of the poor of Richfield 
 gave notice of these facts to J^oorhis, one of the overseers of the 
 poor of Charleston, requiring him to relieve the pauper during his 
 illness, which he neglected and refused to do. The overseers oi 
 the poor of Richfield expended three hundred and thirty-four 
 dollars and fifteen cents, in maintaining the pauper, after notice 
 toVoorhis. These allegations being made before two justices of 
 the peace of Montgomery county, and proved to them on oath, 
 they issued their warrant, ordering that sum to be made, by public 
 sale of the goods and chattels of Voorhis. In their return to this 
 certiorari, the two justices set forth their warrant, which stated 
 that Whipple and Hawes, overseers of the poor of Richfield, 
 complained, and gave them th" said justices to be informed of the 
 facts above mentioned, " which said complaint and allegation were 
 proved and verified by oath before them."
 
 POOR. 345 
 
 for onuses of quashing the warrant of distress : 
 i. That no adjudication had. been made, that the. pauper was last 
 iegally settled in Charleston before he had notice to provide for 
 him: 2. That it docs not appear from the warrant, that the jus- 
 tices had legal evidence that the pauper's last legal place of settle- 
 ment was in Charleston: 3. That it does not appear by the war- 
 rant that he had any notice of the complaint mode to the justices. 
 
 To this assignment the overseers of the poor of Richfield 
 pleaded, that on the pauper's recovering from his wounds and 
 sickness, so as to he capable of being removed, an order wa i 
 made by two justices of the peace, in pursuance of the act, ad 
 judging the pauper's last legal settlement to be in Charleston ; 
 which order, on appeal to the general sessions of the peace for tho 
 county of Otsego, was confirmed. To this plea there was a de- 
 murrer and joinder. 
 
 Per curiam. The inducement to the enacting the sixteenth sec- 
 tion of the act for the settlement and relief of the poor, was to 
 relieve a town where a pauper happened to be taken sick or lame, 
 so as not to be able to be removed back to the place'of his last le- 
 gal settlement; but, in providing for this summary relief to the town 
 actually burthened with the pauper, it presupposes that the pho-j 
 of his last legal settlement has been ascertained according to the 
 provisions of tho seventh section ; to wit, by an order of two jus- 
 tices, making an adjudication upon the fact, after having them- 
 selves examined the pauper on oath. To give the sixteenth sec- 
 tion any other construction, would lead to great abuse aU op- 
 pression. Towns might be charged, if the manner of proceed- 
 ing in this case is sanctioned, with the payment of large sums of 
 money unjustly, and without the examination of the pauper him- 
 self, which is essentially requisite to find out his last legal settle- 
 ment. This not having been done in this case, the warrant issued 
 illegally. It has been contended, that the subsequent proceedings 
 made the warrant valid. The cases referred to contain no such 
 doctrine. The warrant was good or bad when it issued, and 
 cannot be aided by what took place afterwards. Warrant quashed. 
 . " It shall be lawful to remove any slave who shall have left his 
 master, or shall have wandered from town to town to the place 
 of the settlement of his master, in the manner directed by 
 the seventh section of this act, if such place of settlement can 
 be found in this state, and if none such can be found, then to 
 the place from whence, such slave shall have last come, in tho man 
 ner directed by the said section." s. 33. 
 
 IV. Certificate. 
 
 '" If any person who shall think proper to remove out of any 
 city or town within this state, into any other, there to inhibit or 
 reside, and shall, at the same time, procure and deliver to the 
 ovors-eri of the poor of the city or town where such person shall 
 
 [ 44- ]
 
 .546 TOOK. 
 
 so come to inhabit or reside, or to any one of them, a certificate un- 
 der the hands and seals of the overseers of the poor, or of -\uy two 
 of them, of the city or town of such person's last legal settltment, 
 attested by two or more credible witnesses, thereby tiwning or 
 acknowledging the person mentioned in such certificate to be an 
 inhabitant leg.illy settled in the city or town mentioned in such 
 certificate, which certificate shall be either acknowledged by the 
 overseers of the poor giving the same, or shall be duly proved by 
 the witnesses who shall have attested the execution thererf. or 
 OIK- of them, before any justice of the peace of the city or of ihe 
 county wherein the town from whence any such certificate shall 
 come shall be, and shall be approved of and subscribed by such 
 justice of the peace, then it shall be lawful for every such person, 
 with his family, if any, upon the delivery of such certificate as 
 aforesaid, to remain in any such city or town to which such per- 
 i>on shall remove as aforesaid, and to follow any employment 
 within the same ; and the overseers of the poor shall deliver every 
 such certificate to the town clerk of the city or town in which 
 any such person shall come to reside as aforesaid, who is hereby 
 required to file and record the same : And further, Every such 
 certificate, so acknowledged or proved, and allowed as afore* 
 said, shall be deemed in all courts whatsoever, within this state, 
 as duly proved, and shall be taken and received as evidence, 
 without any other proof thereof." s. 12. 
 
 " Whenever any person with his family, if any, or any part 
 thereof, so remaining by virtue of the certificate aforesaid, shall 
 become chargeable, or be obliged by sickness, or otherwise, to ask 
 relief of the city or town into which such person was received as 
 aforesaid, then, and not before, it shall be lawful for any two 
 justices of the peace of the city or county, into which such person 
 was received by virtue of such certificate, to remove and convey 
 every such, person with his family and children, though born in 
 *uch city or town$ and servants and apprentices, not having other- 
 wise acquired a legal settlement there, to the city or town from 
 which such certificate was brought as aforesaid, the overseers of 
 the poor of which city or town are, in such case, hereby required 
 and obliged to receive and provide for every such person and his 
 family as aforesaid." s. 1 3. 
 
 " JVo person who shall come to reside in any city or town, by 
 virtue of any such certificate, shall be deemed or adjudged by any 
 act whatsoever, of such person, to have gained a legal settlement 
 in such city or town, during the time such person shall rende 
 There by virtue of such certificate, unless such person shall bona 
 fide purchase a freehold of the value of seventy-five dollars, or up- 
 wards, or bonajide have rented and occupied a tenement of the 
 yearly value of thirty dollars, or upAvards, for two whole years, or 
 shall have executed a public annual office or charge in such city 
 or town for one whole year as aforesaid." s. 14. 
 
 When any person or his family, residing in any city or town,
 
 POOR. 347 
 
 or sent thither by certificate, and becoming chargeable as afore- 
 said, shall be removed back to the city or town to which such 
 person shall belong, the overseers of the poor shall be reimbursed 
 such reasonable "charges as he or they may have been put unto 
 in maintaining and removing such person, by the overseers of the 
 poor of the city or town to which such person is or shall be re- 
 moved, the said charges having been first ascertained and allowed 
 by two or more of the justices of the peace of the city or of the 
 county in which such town from which such removal shall be made 
 shall be, which said charges, so ascertained and allowed, shall, in 
 case of refusal of payment, be levied by distress and sale of the 
 goods and chattels of the overseers of the poor of the city or 
 town to which such certificated person shall be removed as afore- 
 said, by warrant under the hands and seals of any two justices of 
 the peace of the city or county where the overseers of the poor 
 shall reside, who are hereby authorized and required to issue the 
 same, directed to some constable of such city or town, returning 
 the overplus, if any there be, after deducting all lawful costs and 
 charges of such sale." s. 15. 
 
 V. Appeal. 
 
 " Every person who shall think himself aggrieved by any judg- 
 ment or order of any justice or justices of the peace, or by war- 
 rant of removal of any poor person, may appeal to the next gene- 
 ral sessions of the peace, to be holden in and for such city, or in 
 and for the county in which such city or town shall be, where 
 such judgment or order shall be made, or from which such per- 
 son shall be removed as aforesaid, who are hereby authorized and 
 required to hear and determine such appeals, and to do justice 
 therein according to the merits of the respective cases : Jlnd fur- 
 ther, No justice of the peace, who shall reside in any city or town 
 where any dispute shall happen, except in the ity and county of 
 New-York, shall sit in court upon such appeal." s. 17. 
 
 " No appeal from any judgment or order whatsoever of an}- jus- 
 tice or justices of the. peace, or from any order of removal of any 
 poor person whatsoever, from one city or town to another, shall 
 be proceeded upon in any court of general sessions of the peace, 
 unless reasonable notice in writing be given by the overseers of 
 the poor of the city or town, or the person who shall make such 
 appeal, unto the overseers of the. poor, or one of them, of such city 
 or town as shall be affected by such judgment or order, or from 
 which such poor person shall be removed, the reasonableness of 
 which notice to be determined by the justices of such general 
 sessions of the peace to which the appeal is made ; and if it sh=ill 
 appear to them that reasonable notice was not given, then they 
 shall adjourn snob appeal to the next general sessions of the peace, 
 and then and then' (nially hear and determine the same." s. If). 
 
 If the justices shall, at theic general sessions of the peace, to
 
 POOR. 
 
 bfi hoiden HI and fur any. city or county n 
 
 appeal before them concerning the settlement of any poor per- 
 son, determine in favour of the apjielfont, lh:it such pi 
 w,<;5 unduly removed, then the said jus?tic< - r-h.il!, atthe same ge- 
 neral sessions, award to such appellant so much money, L. 
 his costs and charges, as shall appear to the said justices to ha^e 
 been reasonably paid and expended by the * 
 of the city or town on whose behalf such appeal was made, 
 towards the relief of such poor person, between the lime o; 
 undue removal and the determination of such appeal : .Jndfur- 
 thtr, upon every appeal upon any judgment or order of any justice 
 or justices concerning; the settlement of any poor person, or upon 
 any proof of notice of any such appeal to have been given by the 
 overseers of the poor of one city or town, or by any other person, 
 to the overseers of the poor of any other city or town, or to any 
 other person, though such person did not afterwards prosecute 
 such appeal, the justices at the same general sessions of the peace 
 shall award to the party in whose favour such appeal shall be de- 
 termined, or to whom such notice did appear to have been given 
 as aforesaid, such costs and charges as by the said justices shall, 
 in their discretion, be thought reasonable, to be. paid by the over- 
 seers of the poor of the city or town, or other person against 
 whom such appeal shall be determined, or who gave notice of 
 such appeal as aforesaid, and did not prosecute the same : 
 further, If, in any of the cases aforesaid, the person ordered to pay 
 such "monies, and cost?, and charges, shall reside in any city or 
 county out of the jurisdiction of such court of general sessions of 
 the peace, it shall be lawful for the overseers of the poor, to whom 
 such monies were directed to be paid, to sue for and recover th 
 same of the person against whom such award was made, with costs 
 of suit, in an action for monies had and received to the plaintiff's 
 use, in any court of this slate having cognisance thereof, in which 
 action a true copy of the award of such justices in their court of 
 general sessions of the peace, signed by the clerk, and s'ealed with 
 the seal of the same court, when produced, sh;;!! be sufficin 
 dance for the recovery of such monies so awarded." =.. '20. 
 
 VI. Poor-Rate. 
 
 ' The majority of the freeholders and inhabitants, who shall be 
 .bled at the annual town meetings in each town in this state, 
 shall determine and agree upon such sum of money as they may 
 think proper, for the purpose of maintaining the poor in such 
 town in the enduing year, of which each town clerk shall make 
 full and proper entries in the town book, by him to be kept, and 
 r-h;!l!, as soon as conveniently may be, deliver a true copy of ?uch 
 t-ntiy. certified under his hand, to the supervisor of said tow n. and 
 the said supervisor is hereby required to lay the same before the 
 supervisor? of the county at thtir then next meeting, in order that.
 
 POOR. .{).; 
 
 the said sum may be raised in such (own for the support anil 
 maintenance of the poor thereof." s. 23. 
 
 There are, besides, many penalties under divers penal statutes, 
 appropriated either wholly, or in part, for the maintenance of the 
 poor, and which will be found under their respective titles. 
 
 VII. Mode of rtlicf. 
 
 " When any poor person, belonging to any city or town within 
 tfiis state, shall apply for relief to any overseer of the poor of 
 5'ich city or town, the said overseer of the poor shall make appli : 
 ration to a justice of the peace of such city, or of the county in 
 Avhich su,ch town shall be, which said justice and overseer of the 
 poor shall inquire into the state and circumstances of the person 
 so applying as aforesaid ; and if it shall appear to the said justice 
 nnd overseer of the poor, that such person is in such indigent cir- 
 cumstances as to require relief, then the said justice shall give an 
 order in writing to the said overseer of the poor, to make such 
 allowance weekly, or otherwise, to every such poor person, as they, 
 in their discretion, shall think the necessities of such poor person 
 shall require ; and the overseers of the poor shall make no other 
 or further allowance to such poor person than what by the said 
 order shall be directed, which said order shall be a sufficient 
 voucher for the payment of so much money by the said overseers 
 of the poor, and shall be allowed in adjusting their accounts. And 
 if any poor person not belonging to, or not having gained a settle- 
 ment in any city or town within this state, shall apply for relief 
 as aforesaid, the said overseer shall proceed in like manner as 
 is above directed ; and if the overseer and the said justice, to 
 whom application shall have been made as aforesaid, shall find that 
 such poor person is not able to maintain himself, and that he is so 
 sick or otherwise dehilitated that it would be improper imme- 
 diately to remove him, or when it shall be found impossible to 
 make any order of removal, the said justice shall give an order to 
 the said overseer for the support of such poor person, in like 
 manner as if such poor person belonged to such city or town, 
 which said order shall be a sufficient voucher for the payment of 
 so much money by the said overseer of the poor, and shall be al- 
 lowed \ti the adjustment of his accounts ; and itshall be the duty 
 of the overseers of the poor, in the several cities and towns with- 
 in this state, to keep the accounts of money expended, as abov* 
 directed, separate and distinct from other expenditures ; and said 
 accounts, adjusted and allowed as aforesaid, shall be considered, 
 jirul hereby is declared to be a public and necessary county charge, 
 and shall be levied, collected, and paid, as other county charges 
 are." s. 25. 
 
 The following important case has been decided under the act. 
 to amend tie act for the settlement and relief rf the poor>
 
 350 POOR. 
 
 f'O. s. >. and wbicb, io the last revision of the Taws, has been in- 
 corporated into the section just cited. 
 
 Ad*m>T. A rule was obtained at the last term, requiring the defendants 
 
 TjJjJ^J^ to show cause why a mandamus should not issue, to compel then 
 inn t>im coon- to audit an account of the plaintiff's for medicine and attendance, 
 J&/. InT** as a physician, on one .\'athinid Turner, a pauper. From the 
 affidavits read on the part of the defendants, the following facts 
 appeared. On the 25d April, 1810, one of the overseers of the 
 poor of Hudson applied to Adams, as a physician, to attend on 
 the pauper : and Mima attended, from time to time, until the 
 17th July, i10, and presented bis account, amounting to nine- 
 ty-four dollars and seventy-three cents, to the defendants, who 
 refused to audit it. Two justices of the county made an order, 
 under their hands and seals, upon the over eers of the poor of 
 Hudson, to provide for the pauper from the 23d of April, 1810, 
 for his weekly board, at two dollars and fifty cents, with other 
 necessaries for clothing, and also such medicine and attendance 
 for the recovery of the pauper as should be thought necessary. 
 One of- the overseers stated that the pauper had no settlement 
 within the state ; that he was not in a situation to be removed, 
 and that he supported him pursuant to the order of the justices, 
 and directed the plaintiff to attend him. Some of the supervisors, 
 in their affidavits, stated, that one of the justices who made the 
 order was examined by the board, and stated, that the justices, or 
 either of them, did not with the overseers Tisit the pauper tu Li; 
 knowledge. 
 
 Per curt'asi. The act of 2+lh March, 1809, (sess. 32. c. 
 makes it the duty of the overseers, or one of them, of the city or 
 town in which any pauper happens to be, who requires relief, and 
 hath no settlement within the state, to inquire, together with any 
 justice of fhe county, into the condition of the pauper, and if it 
 snail appear necessary to the overseer or justice, the justice is tu 
 give an order on the overseers for an allowance to the pauper, 
 and such allowance is to be a county charge. The first question 
 in this case is, whether the order w as valid. The act does not re- 
 quire two justices to unite in making the order ; but if it shall be 
 made by two or more, instead of one, that circumstance cannot 
 weaken it, nor are the overseers, or either of them, to unite in 
 making it, for the order is^to be made in writing, by the justice 
 upon the overseer. But the act requires, as a preliminary fit \>, 
 that the justice and overseer shall inquire into the condition of the 
 pauper, and if it shall appear to them that relief is necess; 
 urder is to be made. The order does not aver, by way of recital, that 
 those steps were taken ; but they are to be intended to ha\ . 
 taken, and are implied in the order itself. The act does not pre- 
 scribe any formal evidence of the fact of its having appeared to the 
 overseer, as well as th justice, that the pauper stood in need of 
 suppoi't. It is to be iu-c -warily inferred^tp have so appeared to 
 ers, as they dJd not. when called upon, show a-
 
 POOR. 
 
 cient cause to the contrary. They must have conceded the fact. 
 Nor was it requisite that the overseer and justice should have in- 
 qu;red together into the condition of the pauper, because they 
 are not to do any joint act. The order is to be the exclusive act 
 of the justice. The order is of itself evidence that the overseers 
 and justices had all seen the pauper, for he had been before them, 
 and the inquiry by each into his circumstances is necessarily to 
 be inferred. There was no formal evidence of that fact required 
 by the statute, and if it be reasonably implied, it is well enough. 
 Objections as to matters of form, in an order for the relief of a 
 pauper, are to be overlooked, and humanity dictates that such 
 orders should be liberally treated. All that one of the justices 
 stated before the board of supervisors was, that there was no 
 joint inquiry into the state, of the pauper. The facts on the face 
 of the order prove that each party must have made the inquiry, 
 and the debility and helplessness of the pauper must have ap- 
 peared to all, for it is no where, nor by any person denied. Thfc 
 second objection is as to the extent of the allowance. It is not 
 only a weekly sum, but necessary medicine and attendance. The 
 act says that the justice is to mak'e "such allowance weekly, or. 
 otherwise, as the necessities of the pauper shall require." This 
 gives a reasonable discretion to the magistrate, as to the 
 mode and nature of the allowance. If the pauper be sick, com- 
 mom sense and humanity dictate that medicine and attendance 
 are as necessary as food and clothing, and the precise amount 
 of such medicine and attendance could not be fixed before- 
 hand. It must depend upon the circumstances of the case. 
 The account exhibited, as well as the order of the justices, shows 
 the distressed condition of the pauper. The justices, in their or- 
 der, say, that " he must inevitably perish, unless timely relieved," 
 as he had a white swelling on his knee ; and it appears that the 
 disorder terminated in the amputation of his thigh. If an order 
 on the overseers for medical aid could not be legally made in 
 such a case, what was to be done ? Did the statute mean that 
 the man should be left to the aid of private compassion, or to 
 perish ? The law ought not to be so narrowly construed, and the 
 order is to be deemed sufficient to cover the expenditure in ques- 
 tion. The third and only remaining question is, as to the regular . 
 mode of adjusting and exhibiting the charge to the board of su- 
 pervisors. It is to be exhibited as a charge paid by the over- 
 seers, under the order of the justice. The account exhibited, 
 though signed by the overseer, has never been paid by him, nor is 
 it stated that the overseer had even examined and admitted the 
 account as just and correct. It was handed by him to the super- 
 visors, just as it had been presented to him by the physician. 
 He was only the agent of transmission. The overseers are not 
 the complainants in thq present case. It is Mams, the physician, 
 who complains and sues for the mandamus. But the persons who 
 afford assistance to the pauper are to look, to the overseer, and he
 
 POOH. 
 
 is to pay thorn. The, statute says, that the order ".shall IIP a suf- 
 ficient voucher for the payment of so /much money by the said 
 overseer." The supervisors of the county are not the board to 
 ascertain whether the services have been actually and faithfully 
 rendered to the pauper. That must be adjusted by the over- 
 seers of the poor, who are, in the first instance, responsible to the 
 persons rendering the assistance. The supervisors were only to 
 pay such accounts as the overseers had adjusted and paid, in pur- 
 suance of the order. As the account in question had never been 
 adjusted, allowed, and paid by the overseers of Hudson, the su- 
 pervisors, for that reason, were not bound to notice it, and on 
 that ground alone the court refuse to interfere. But we have 
 given our opinion on the merits of the case, so that when the ac- 
 count shall have been liquidated and settled by the overseers, and 
 duly exhibited by them to the supervisors of the county, it may 
 he paid, without the necessity of an application to this court. 
 Rule refused. 
 
 " It shall and may be lawful for the overseers of the poor of 
 any city or town, by and with the consent of the common coun- 
 cil of such city, or of two justices of the peace of the county 
 in which such town shall be, whenever any poor person, legally 
 settled in such city or town, and maintained at the public charge, 
 who were or shall become lunatic or insane, to contract with the 
 governors of the New-York hospital, in the city of New-York, for 
 the maintenance and care of such lunatic, on such terms as they 
 may deem meet, and to transport such lunatic to the said hos- 
 pital ; and all such sums, so agreed on for the maintenance of such 
 lunatic, shall be regularly paid to the governors of the said hos- 
 pital by the overseers of the poor of such city or town, and their 
 successors in office ;" and it shall be the duty of the overseers to 
 enter in the poor-books the name of the lunatic, the sums agreed 
 to be paid by them, and the charges of removal to and from the 
 said hospital: Provided, "That the settlement of such lunatic, so 
 removed to the said hospital, shall remain the same as before hi? 
 nr her removal, and that it shall not be lawful for the overseers of 
 the poor of any such city or town to remove to the said hospital 
 idiots, or other poor persons who are not lunatic or insane." s. 2(j. 
 
 It shall be lawful for the overseers of Albany and Hudson, with 
 tire consent of the common' council, "and for the overseers of the 
 poor of any town within this state, and any two or more justices 
 of the peace of the county in which such town shall be, with the 
 consent of the major part of the freeholders and inhabitants of 
 such town, to be signified at such annual town meeting, and at 
 the proper charge of such city or town, to be ascertained, assess- 
 ed, and levied as aforesaid, (see sect. 23. p. 318. and sect. 28. 
 post.) to build, purchase, or hire some fit and convenient dwelling- 
 house or houses, in such city or town, for the lodging and ac- 
 commodation of the poor thereof, and also to purchase necessary 
 materials for .setting such poor persons to work, and there to
 
 POOR. 
 
 maintain ami employ every such poor person, and to take the 
 'i of tin- iaimur and services of any such poor person for the 
 i:ii.ite:i;uic< and relief of such poor persons who shall be 
 ih re kept and main! lined, and to appoint such keepers thereof 
 from time to time as they sliall think proper; and in case any 
 pour per 'on claiming relief of any city or town within' this state 
 when: M,C!I house or houses shall he so built, &tc. shall refuse to 
 he lodged, kept to work, and maintained therein, such poor per- 
 son shall he put out of the book in which the names of the poor 
 are directed by this act to be registered, and shall not he entitled 
 to receive any relief from the overseers of the poor of any sucli 
 city or town: And further, Where any town may he too small to 
 build, &tc. such house or houses, it shall be lawful for the over- 
 seers of ihn poor and justices of the peace, with the consent of 
 the major part of the freeholders and inhabitants of two or more 
 towns iu any county in this state, to he signified at their annual 
 town meetings, to unite in building, &LC. such house or houses, for 
 the keeping and maintaining of the poor of such towns, and also 
 to purchase necessary materials for setting such poor persons to 
 work, and there to maintain and employ every such poor person, 
 and to take the benefit of the labour and services of such poor per- 
 sons, for the better maintenance and relief of the poor therein, 
 and to appoint such keepers, ik-c. ; and in case any poor person 
 claiming relief of any of the towns so uniting, shall refuse to be 
 lodged, Sec. as aforesaid, such poor person shall be put out of the 
 book in which the names of the poor are by this act directed to 
 be registered, and shall not be entitled to receive any relief from 
 the overseers of the poor of any such town : And further, It shall 
 he lawful for the overseers of the poor and justices of any town 
 within this state, with the consent of the major part of the free- 
 holders and inhabitants of such town where such house or houses 
 shall be built, purchased, or hired, for the purposes aforesaid, to be 
 signified at such annual town meeting, to contract with the over- 
 seers of the poor and justices of any other town for the lodging, 
 maintaining, and employing of any poor person belonging to such 
 other town, as to them shall seem meet; and in case any such 
 poor person, belonging to any other town, slvall refuse to be lodged, 
 &c. in any house so contracted for as aforesaid," he is to be ex- 
 cluded from relief, as before directed, s. 2y. 
 
 VIII. Overseers 1 Accounts. 
 
 "The overseers of the poor of each city or town within this 
 state, shall procure, at the public charge, a book, wherein ilie 
 names of all poor persons applying for relief, and being ordered 
 to be relieved as aforesaid, shall be registered, with the day 'i id 
 year when they were first admitted to have relief, the weekly or 
 other sum or sums of money allowed by the order for their re- 
 lief, and the cause of snch necessity; and no person shall be en- 
 
 r 4.5 1
 
 354 POOR. 
 
 tered in the poor-book*, or receive relief from the over.--o.crs oi' 
 the poor, or any of them, without such order , and in case any 
 overseer of the poor shall enter in the poor books and relieve arty 
 poor person, without such order, lie shall forfeit and lose all 
 such money and goods paid and distributed to such poor person, 
 nor shall any allowance be made to him for the same in } 
 his .iccounts; and the said overseers of the poor are hereby di- 
 rected and required to enter in the said poor-books all monies re- 
 ceived, laid out, and disbursed by them for the use of the poor, 
 and also all matters which shall be transacted by them relating to 
 their said office; and the overseers of the poor for the cities of 
 Albany and Hudson shall yearly lay such books of account before 
 the common council of the said cities respectively, at such time 
 " as the said respective common councils shall direct ; and the over- 
 seers of the poor of every town shall yearly, on the last Tuesday 
 next preceding the annual town-meeting in such town, lay their 
 said books of accou;.t before the town-clerk and supervisor of 
 such town, and such justice or justices of the peace as may re- 
 ^i'iv in such town, or the major part of them, for their examina- 
 tion, who shall examine and audit the same, and make report 
 thereof to the freeholders and inhabitants of their respective towns, 
 at their next annml town-meeting, that such further provision for' 
 the maintenance and support of the poor may be made aswnay be 
 found necessary." s. 23. 
 
 "The overseers of the poor of each city and town in this state 
 shall annually, within fifteen days after the termination of their 
 respective oitices, exhibit to the succeeding overseers of the poor 
 of such city or town a just and true account of all the monies by 
 them respectively received and expended for the use of the poor, 
 .'nd in ^hat manner, together with an account of the earning- of 
 the poor persons by them employed; which accounts the said 
 overseers of the poor, together with the supervisor of such city or 
 town, and justices of the peace residing in such city or town, or 
 the major part of them, shall, as soon as conveniently may be, 
 examine and audit." The overseers, on auditing such account, 
 shall pay the balance, appearing to be in their hands, to their suc- 
 cessors ; and shall, at the time of exhibiting their accounts, de- 
 liver to their successors all books of accounts, registers, and other 
 papers relating to the poor, and for neglect or refusal in either case, 
 the delinquent is subjected to a penalty of two hundred and fifty dol- 
 lars above the balance, remaining in his hands, recoverable, with 
 costs,in any court of record within the state by the overseers of the 
 poor of the town, and when recovered is to be applied to the use 
 of the poor therein ; and if, upon auditing their accounts, a balance 
 shall appear to be due to the overseers going out o office, or to 
 either of them,the same shall be paid them by theirsuccessorsout of 
 the first monies which shall come into their hands as overseers, s.30. 
 
 The ovirseers of each city and town may, in their own name, 
 fo recover money appearing due on such audit, from their pi ede-
 
 POT AND PEARL ASHES. . .355 
 
 v.t;ssors, and each of them, tlidr executors and administrators, 
 li..., an action for money had and received to the use of such 
 city or town, or action;* of account; and such aution shall not 
 abate by the death or expiration of the office of the plaintiffs, hut 
 shall he continued by the survivor or survivors, and their succes- 
 sors iu oih'ce. s. 3 1. 
 
 13y the /7th section of this act, the overseers of the poor arc 
 authorized and directed to loan out, on lawful interest, the money 
 that hath or shall come into their hands; over and above the sum 
 which Hi,', overseers, supervisor, and town-clerk for the time be- 
 ing, shall deem necessary for'the support of the poor, during the 
 time such overseers shall continue in oCice, to such inhabitants of 
 the town as may offer sulHcient security, to be approved of by 
 the supervisor and town-clerk ; and the obligations taken for se- 
 curing payment shall be drawn payable to the overseers, or thir 
 successors, on the day next succeeding that on which their ollices 
 will expire ; which obligations, on auditing their accounts, are to 
 he allowed as so much money in their hands, and are to he deli-. 
 vered to their successors, who may, in their own names, without 
 any assignment, sue for the amount due on them, with interest; 
 or may, with the approbation of the supervisor or town clerk, 
 reloan the said money due on such obligations, together with the 
 interest, and take a new obligation for the amount, payable with 
 inlerest. as before directed. 
 
 POT AND PEARL ASHES. 
 
 By the act concerning {he inspection of pot and pearl ashes, sess. 2 R.L.SJ 
 >;>. c. 22. the governor and council of appointment may appoint, 
 i'or the cities of New-York and Albany, not less than two, or 
 more than six, inspectors of pot and pearl ashes, and one inspec- 
 tor in each city or county of tLis state, where it may be deemed 
 necessary, s. 1. 
 
 Each inspector, before entering on the execution of his office, 
 shall take and subscribe the following oath, or atFirmalion, before 
 any person authorized to administer the same ; or, if in New-York 
 
 or Albany, before the mayor or recorder: " I, , do solemnly 
 
 sivcar (or affirm) that I will faithfully, truly arid impartially, to 
 the best of my judgment, skill, and understanding, execute, do, 
 and perform the office and duty of an inspector and examiner of 
 pot and pearl ashes, according to law ; and that I will not, directly 
 >r indirectly, by myself, or any other person or persons for me, 
 liny or sell any pot or pearl ashes, during the time I continue in- 
 spector of the same, on my own account, or upon the account of 
 any other person or persons whomsoever, so help me God." s. 2. 
 
 The inspector shall distinguish each quality of the ashes in- 
 by him, by the words "first sort,'" " second sort" or
 
 356 POT AND PEARL ASHES. 
 
 " third sort" with the words "pot" or "pearl ashes;" which, tw 
 gcther with the letters of his name, and the place where insprct- 
 ed, shall be branded at full length on each of the casks ; and he 
 shall also mark, with a marking iron, on each cask, the. gross 
 weight thereof, s. 3. 
 
 " If any person shall intermix, with any pot or prarl ashes, any 
 stone lime, salt, or other improper substance, whereby its quality 
 is prejudiced or reduced, he shall, on conviction, forfeit the sum of 
 twenty dollars for every offence, to be recovered in an action of 
 di'bt, the one moiety to the people of the state, and the other to 
 the prosecutor." s, 4. 
 
 " Every person who shall manufacture any pot or pearl ashes 
 shall, with a distinguishable brand or mar king iron, impress upon each 
 cask of pot or pearl ashes, of his own manufacture, the initial let- 
 ters of his Christian name, and surname at full length, before the 
 removal of such cask from the place of manufacture, under the 
 penalty of five dollars for every cask so removed without 
 branded or marked as aforesaid, to be recovered and applied as 
 is in the foregoing clause provided." s. 5. 
 
 " If an inspector, on examination, shall find the ashes adulte- 
 rated, he shall mark the cask with the word "condemned;" and 
 if any person shall oiler for sale any ashes so condemned, for any 
 oilier than condemned ashes, he shall forfeit twenty-five dull.irs 
 for every barrel so exposed for sale, to be recovered by any per- 
 son who will sue for the same, before any court having cognisance 
 thereof, the one half to the use of the poor of the city or town 
 where such recovery shall be had, and the other half to the use 
 of the prosecutor." s. 7. 
 
 Every inspector is authorized to enter on board of any vessel, 
 lying or being in the harbour where, he is authorized to inspectyto 
 search for ashes shipped or shipping for exportation out of this 
 state, except to the provinces of Upper and Lower Canada, ami 
 if he shall discover any casks not branded, as directed by this act, 
 the same shall be forfeited ; and the master or commander of any 
 such vessel, who shall receive any cask or casks of pot or pearl 
 ashes not branded, shall forfeit the sum of twelve dollars and fifty 
 cents; and if any master, or any of his servants or seamen, shall 
 obstruct or hinder the inspector in making search, the offender 
 shall, for every offence, forfeit the sum of twenty-five dollars, s. 8. 
 
 " If any inspector not then employed in the duties of his of- 
 fice, shall, on application to him to examine any pot or pearl ashes, 
 refuse or delay to proceed to such examination and inspection 
 for the space of three hours thereafter, he shall, for each offence, 
 forfeit two dollars, for the use of the person so delayed." s. 9. 
 
 " All penalties under this act shall be. recoverable by action of 
 debt, or by information, in the same manner as other debts of the 
 same value ; the one moiety thereof, except, where the same arc 
 directed by this act to be otherwise applied, to the use <>f t!ir
 
 PRIVILEGE. 357 
 
 prosecutor, and the other moiety to the use of the poor of the 
 city or town where the offence was committed." s. 1 1 . 
 
 PRINCIPAL. 
 
 A man m;iy be principal in an offence in t\\o degrees. A prin- 4 Black, 
 cipal in t,he first degree, is he that is the actur or absolute perpe- 
 trator of the crime ; and in the second decree, he who is present, 
 aiding and abetting the fact to he done ; which presence need not 
 always be an actual immediate standing by, within sight or hear- 
 ing of the fact, but there may he also a constructive presence, as 
 \vl;eii one commits a robbery or murder, and another keeps 
 waU-h or guard at some convenient distance. And this rule hath 
 also other exceptions; for, in case of murder by poisoning, a 
 man may he a principal felon, by preparing and laying the poison, 
 or persuading another to drink it who is ignorant of its poisonous 
 quality, or giving it to him for that purpose, and yet not adminis- 
 ter it himself, nor be present w-hen -.lie very deed of poisoning is 
 committed. And the same reasoning will hold with regard to 
 other murders committed in the absence of the murderer, by . 
 means which he had prepared before hand, and which prob; lily 
 could not fail of their mischievous effect. As by laying a trap or 
 pit-fall for another, whereby he is killed; letting out. a wild beast 
 with an intent to do mischief; or exciting a madman to commit 
 murder, so that death thereupon ensues: in every of these cases, 
 the party offending is guilty of murder as a principal in the first 
 degree ; for he cannot bo called an accessory, that necessarily 
 presupposing a principal ; and the poison, the pit-fall, tlu> be.-si 
 or the madman, cannot he held principals, being only the instru- 
 ments of death. As, therefore, he must he certainly guilty, either 
 as principal or accessor}', and cannot be so as accessory, it follows 
 that he must be guilty as principal : and if as principal, then in the 
 first degree ; for there is no other criminal, much less a superior 
 in the guilt, Whom he could aid, abet or assist. 
 
 PRIVILEGE. 
 
 By the sixth section of the first article of the constitution i Hi-- 
 United States, member* of both houses of congress are, in all eaM-- 
 except treason, felony, and breach of the peace, privileged fr-'ni 
 arrest during their attendance at the session of Ihtir respective 
 houses, and in going to and returning from the same. 
 
 With respect to the privilege of members of the senate and 
 assembly of this state, and their servants, it is enacted, "that any 
 person or persons shall and may commence and prosecute atjy ;u -
 
 358 PRIVILEGE. 
 
 tion or suit in any court or r< COM! in this state, against any 
 tor or member of assembly for the time being, or Against their or 
 any of their servants, or an\ oiher person entitled to the pmilcgH 
 of either house of the legislature, at any time from and immediate- 
 ly after t lie prorogation or adjournment of the legislature, until a 
 ew legislature snail meet, or the same be reassembled: and 
 from and immediately after any adjournment of both ho 
 the legislature for above the space of fourteen d:<ys, until both 
 houses shall meet or reassemble; and that the rtue 
 
 courts of record shall and may, after such prorogation or adjourn- 
 ment as aforesaid, proceed to give judgment,' or to make final or- 
 ders, decrees and sentence?, and award execution thereupon, us 
 such court may now lawfully do, against other persons liable to 
 be arrested and imprisoned, any law, usage or custom to t!i 
 irary thereof notwithstanding: Provided always, That no member 
 of the legislature, o,r his servant or servants, shall be liable to ar- 
 rest on any civil process, while coining to or returning from tlu- 
 place where tit-e legislature shall sit. to the place of such member's 
 residence, but Mich time of coming or returning shall not exceed 
 fourteen days." Seas. 1 ! . c. 34- s. 1. 1 R. L. I '22. 
 
 Where any plaintiff or plaintiffs shall, by reason or occu.-i.m 
 of any privilege of either house of the legislature, be stayed OP 
 prevented from prosecuting any suit by him, her, or them com- 
 menced, such plaintiff or plaintiffs shall not be barred by any sta- 
 tute of limitation, or nonsuited, dismissed, nor his, her, or th;:r 
 -uit discontinued, for want of prosecution of the suit, by him, 
 her, or tham begun, but may, after the time aforesaid, be at li- 
 berty to procecu to judgment and execution thereupon as afore- 
 said." s. 'J. 
 
 " Any action or suit shall and may be commenced and prose- 
 cuted in any court of record in this state, -against any officer or 
 p.ei-son entrusted or employed in the revenue of this state, or any 
 part or branch thereof, or in any, other office or place of public 
 trust, for any forfeiture, misdemeanour, or breach of trust, of, 
 in. or relating to such office or place of trust, or any penalty im- 
 posed by law to enforce the due execution thereof; and no such 
 action, suit, or any other process, proceeding, judgment or ex- 
 ecution thereupon, although such officer or person shall be a mem- 
 ber of the senate or assembly, shall be impeached, stayed or de- 
 layed, by or under colour or pretence of any privilege of either 
 house of the legislature." s. 3. 
 
 folvinv. It was moved to discharge the defendant from arrest, on tho 
 
 i jCiuisl Cas. ground that, being a member of the assembly, he was arrested 
 415< within fourteen days after leaving the legislature, but he did not 
 
 state whether he had reached his home, or not at ihe time of the 
 arrest. Per curiam. If the defendant arrived at his home with- 
 in the foiirt' 1 '- i davs. and before the arrest, the reason of his pri- 
 vilege, and of course the privilege itself, ceased. As the defend
 
 PRIVILEGE. 
 
 ant does not state where he was at the time he was arrested, the 
 motion must he denied, with costs. 
 
 By the act for regulating elections, sess. 30'. c. 41.3. 26. 2 R. L. 
 259. " it sinll not be lawful for any officer or minister of justice 
 to serve any civil process, in any city or town in this state, on any 
 person entitled to vote at any election to be held by virtue of this 
 act, between the day preceding such election, and the day subse- 
 quent to the closing of the poll thereof, in such town or ward." 
 
 By the militia act, sess. 32. c. lo'i. s. 62. " The militia of this 
 
 st r. shall be considered to be under arms from the rising until 
 
 Uing of the sun of the same day that they shall be or- 
 
 il >ut by law for improvement or inspection ; and no officer., 
 
 M totumissioned officer, or private, belonging to the same, 
 
 si' ii, while under arms, be subjected to be arrested on any ci- 
 
 jcess." * 
 
 By the act of congress of July II, 1798, s. 5. " The non- 
 
 . missioned officers, musicians, seamen and marines, who are 
 
 or shall be enlisted into the service of the United States, and the 
 
 non-commissioned officers and musicians who are or shall be en- 
 
 lis'.''l into the army of the United States, shall be, and they are 
 
 exempted, during their term of service, from all personal 
 
 arn-^ts for' any debt or contract." 
 
 By the act of congress of the 16th March, 1802, s. 23. "No 
 non-commissioned officer, musician, or private, shall be arrested 
 or subject to arrest, or to be taken in execution for any debt un 
 der the sum of twenty dollars, contracted before enlistment, nor 
 for any debt contracted after enlistment." 
 
 By the act concerning costs, srss. 30. c. 9fi. s. 8. "No attor- 
 ney or counsellor at law of any court of record shall bf entitled, 
 as such, to his plea of privilege, before any justice of the peace 
 or othfjr court, for the recovery of any debt or demand against 
 him, to the amount of twenty-five dollars or under, unless it shall 
 appear that the court, wherein he shall be such attorney or coun- 
 cilor, shall be then sitting." 
 
 By the act of congress of April 30, 1790, s. 2.5. " If any writ 
 or process shall, at any time hereafter, be sued forth or prosecut- 
 ed by any person or persons, in any of the courts of the United 
 Slates, or in any of the courts of a particular state, or by ;niy 
 judge or justice therein respectively, whereby the person of any 
 ambassador, or other public minister of any foreign prince or 
 state, authorized and received as such by the president of the 
 United States, or any domestic, o.- domestic servant of any such 
 ambassador or other public minister, may be arrested or impri- 
 soned, or his or their goods or chattels be distrained, seized or 
 attached, such writ or process shall be deemed and adjudged to 
 be utterly null and void, to all intents, construction, and purposes 
 whatsoever." 
 
 By the 2o'th section of the same act, "In case any person or 
 persons shall sue forth or prosecute any swcK writ r prtc *.<?.
 
 360 PRIVILEGE. 
 
 such person or persons, and all attorneys or solicitors, prosecuting 
 or soliciting in such case, and all officers executing any MUC!I writ 
 or process, being thereof convicted, shall be deemed violators of 
 the laws of nations, and disturbers of t'he public peace, and impri- 
 soned not exceeding three years, and fined at the discretion of the 
 Court." 
 
 But the 27th section contains a proviso, " that no citizen or in- 
 h;t ( ',;ant of the United States, who shall have contracted debts 
 prior to his entering into the service of any ambassador or other 
 punlic minister, which debts shall be still due and unpaid, shall 
 have, take, or receive any benefit of this act; nor shall any per- 
 son be proceeded against by virtue of this act for having arrested 
 or sued any other domestic servant of any ambassador or other pub- 
 lic "linister, unless the name of such servant be first registered iu the 
 oiHi-e. of the secretary of stale, and by such secretary transmitted 
 to tlvj marshal of the district iu which congress shall reside, who 
 shail, upon receipt thereof, affix the same in some public place in 
 his office, whereto all persons may resort and take, copies, without 
 fee or reward." 
 
 i Bae. Abr. A consul, or any person acting in an office of that kind, it 
 tball.auT. seems, is not entitled to privilege, or exempted from prosecution 
 
 for a crime 
 
 i Tidd. 174, The parties to a suit and their witnesses are, for the sake of 
 7 Bao Abr P n '' c justice, protected from arrest in coming to, attending up- 
 616.618. on, and returning from the court; or, as it is usually term l, 
 
 1 H. Black, eundo, morando et redeundo. And this privilege has been holden 
 
 to extend to all persons who have any relation to a cause which 
 calls for their attendance in court, and who attend in the course 
 of that cause, though not compelled by process, such as bail, &c. 
 Nor have the courts been nice in scanning this privilege, but have 
 
 2 w. Black, given it a large and liberal construction. Thus, where the de- 
 
 fendant was attending his cause. at the sittings, and though it was 
 put off early in the day, stayed iti court till five in the afternoon, 
 and then went with his attorney and witnesses to dine at a tavern, 
 where he was arrested during dinner, the court held that such a 
 necessary refreshment as this ought not to be looked upon as a 
 
 2Str. 986. . deviation, so as to cancel the defendant's privilege redeundo So, 
 where a witness having attended a trial which was over on Fri- 
 day, about four in the afternoon, was arrested on Saturday, about 
 seven in the evening, as she was going home, the court held that 
 she ought to be, discharged, her protection not being expired ; and 
 that a little deviation or loiteriag would not alter it. 
 
 s Term Rep. A person attending a reference, under a rule of court, is pri- 
 
 536 1 Caines' ., , - 
 
 Rip. us. 3 vileged from arrest. 
 
 A person attending the sittings from day to day, in expectation 
 that the cause will be tried, is in the mean time protected from 
 arrest. 
 
 Morris v. A witness who resided in Connecticut, and attended .the su- 
 
 ifjotui'i.Rep. prerae court at the request of an executor and devisee of a will. 
 
 5 Bac. Abr. 
 
 sir.
 
 PROCESS. 361 
 
 for the purpose of proving the will, to which he was a sub- 
 scribing witness, pursuant to the act; and after he had given 
 the requisite testimony, was proceeding on his way home, when 
 he was arrested on a writ issued out of the mayor's court, the su- 
 preme court ordered him to be discharged. 
 
 Where a person who was under recognisance to appear at the BOUMV. 
 general sessions of the peace, while attending there, was arrested / "j^^ 1 * * 
 on a writ issued out of the supreme court, that court ordered him Re P- 438 
 to be discharged. 
 
 In an action in a justices court against* constable, for the es- Ra v v 
 cape of one Traver, who was taken on execution, it was admitted u joimj 
 or proved, that when Traver was taken he was a soldier in the Re P- 33 
 army of the United States, and that the execution was under 
 twenty dollars. The plaintiff below obtained a judgment before 
 the justice against the constable for the amount of the. execution, 
 which was reversed on certiorari. SPENCER, J. The constable 
 was not bound to notice the fact, that Traver was protected from, 
 arrest; but if he chooses to notice it, or neglects to take a person 
 privileged from arrest, and can show that he is so privileged, it is 
 a good defence in a^n action against him. No wrong or injury 
 has been done to the plaintiff. He had no right to arrest the bo- 
 dy of Trailer ; and having no right to do so, he cannot found any 
 action on the neglect to execute his writ. 
 
 PROCESS. 
 
 By the act to preserve and support the jurisdiction of this state, iR.L.131. 
 sess. 22. c. 3. s. I. "Any person not appointed under the authori- 
 ty of the United States, or this state, to execute process within 
 the state or district of New-York, nor being an inhabitant thereof, 
 who shall presume to come within the state, under pretence of 
 ai>v authority whatever, to serve or execute any writ or process 
 ajc.Mmit any citizen of this state, or against the goods and chattels, 
 la<ids or tenements of any citizen as aforesaid, shall be deemed 
 and adjudged guilty of a high misdemeanour; and being' thereof 
 duly convicted, shall be sentenced to imprisonment in the state- 
 prison of this state for the term of seven years, and be confined in 
 the same to hard labour or solitude, or both, at the discretion of 
 the court before whom the conviction shall be had : Provided, 
 That nothing in this act shall extend to any person who shall 
 serve a process to compel the attendance of any witness before 
 either house of congress, or before any court of the United 
 State.s." 
 
 By the third section of the same act, " It shall be the duty of all 
 sheriffs, constables, and magistrates within this state, to cause to 
 be apprehended all offenders against this ac.t ; arid if any : rson, 
 a citizen of this state, shall cause to be taken and apprehended 
 
 [ 46 1
 
 362 RAPE. 
 
 any such offender, so that he may be brought to proper punish- 
 ment, such person shall be entitled to receive five hundred dol- 
 lars from the treasury of this state." 
 
 Nicoiis v. in- Bail, in another state, may take their principal in this state, and 
 fTd'hiis. carry him back to the state in which the recognisance was en- 
 ep. MS. tcred into, there to surrender him in their own discharge. 
 
 PUBLIC DEFAULTERS. 
 
 " If any officer of this state, entrusted with public monfes by 
 virtue of uc!i office, shall fraudulently or' corruptly apply any 
 of the same to any purpose or purposes incompatible with the 
 duties of his 'office, whereby the people of this state shall Sustain 
 any loss, the officer so acting shall be considered guilty of a high 
 misdemeanour, and, on conviction thereof, shall be fined in a sum 
 not exceeding ten thousand dollars, or imprisoned for a term not 
 exceeding ten years, or sentenced to confinement at hard labour, 
 in the state prison, for a term not exceeding five years, in the 
 discretion of the court having cognisance thereof, according to the 
 nature and aggravation of the offence." Sess. 31. c. 226. 1 R. 
 L. 241. 
 
 RAPE. 
 
 I. Rape. 
 II. Forcible taking and marrying. 
 
 I. Rape. 
 
 Sess. 24. c. Rape is the carnal knowledge of a woman forcibly, and against 
 
 L/'ss. " her will, being of the age often years or upwards, or the carnal 
 Co!- "210 knowledge of any woman child under the age of ten years, either 
 lEast. p. c. with or without the. consent of the child, which is immaterial to 
 434. 435. ^ e (f ence? an( j jj- j s j n either case a felony. 
 
 4 Black. A male infant under the age of fourteen, years is presumed by 
 
 ? Haie"p! c. l aw incapable to commit a rape, and therefore it seems cannot be 
 63i i East, found guilty of it. But he may be a principal in the second de- 
 gree, in case it appears that he had a malicious discretion, 
 i East. P. c. It is no mitigation of this offence that the woman at last yielded 
 F! c. 'e"".^' to tne violence, if such her consent was forced by fear of death 
 (53i. i Hawfc. or by duress. Nor is it any excuse for the party indicted, that 
 the woman consented after the fact ; nor that she was a common 
 strumpet ; for she is still under the protection of the law, and may 
 not be forced ; nor that she was first taken with her own consent,
 
 RAPE. f 36 
 
 ii' she were afterwards forced against her will ; Aor that she was a 
 , concubine to the ravisher ; for a woman may forsake her unlaw- 
 ful course of life, and the law will not presume her incapable of 
 amendment. All these latter circumstances, however, are mate- 
 rial to be left to the jury in favour of the party accused, more 
 especially in doubtful cases ? and where the woman's testimony 
 is not corroborated by other evidence. It was formerly supposed, 
 that if a woman conceived, it was no rape, because that showed 
 her consent ; but it is now admitted on all hands, that such an 
 opinion has no sort of foundation either in reason or law. 
 
 As to the material facts requisite to be given in evidence, and 4 Black* 
 proved upon an indictment for rape, they are of such a na- 
 ture, says Mr. Justice Blackstone, that though necessary to be 
 known and settled, for the conviction of the guilty and preserva- 
 tion of the innocent, and therefore are to be found in such crimi- 
 nal treatises as discourse of these matters in detail, yet they are 
 highly improper to be publicly, discussed, except only in a court 
 of justice. I shall therefore, the same writer continues, merely 
 add upon this head a few remarks from Sir Maltheiv Hale, witli 
 regard to th competency and credibility of witnesses which 
 may, salvo pudore, be considered. 
 
 And, first, the party ravished may give evidence upon oath, .\ niacfc. 
 and is 'in law a competent witness ; but the credibility of her tes- 3 i 4 . ' 
 timony, and how far forth she is to be believed, must be left to the 
 jury upon the circumstances of fact that concur in that testi- 
 mony. For instance, if the witness be of good fame ; if she 
 presently discovered the offence, and made search for the offen- 
 der ; if the party accused fled for it; these and the like are con- 
 curring circumstances, which give greater probability to her evi- 
 dence. But, on the other side, if she be of evil fame, and stand 
 unsupported by others ; if she concealed the injury for any con- - 
 siderabfe time after she had opportunity to complain ; if the 
 place where the fact was alleged to be committed, was where it. 
 was possible she might have been heard, and she made no out- 
 cry : these, and theTike circumstances, carry a strong, but not 
 conclusive, presumption that her testimony is false or feigned. 
 
 Moreover, if the rape be charged to be committed on an in- 4 Black, 
 fant under twelve years of age, she may still be a competent 
 witness, if she hath sense and understanding to know the nature 
 and obligations of an oath, or even to be sensible of the wick- 
 edness of telling a deliberate lie. It is now settled, (contrary 
 opinions having formerly been held,) that no hearsay evidence 
 can be given of the declaration of a child who hath not capacity 
 to be sworn, nor can such child be examined in court without 
 oath; and that there is no determinate age at which the oath of 
 a child ought either to be admitted or rejected. Yet, where the 
 evidence of children is admitted, it is much to be wished., in or- 
 der to render their evidence credible, that there should be some 
 concurrent testimony, of time, place and circumHtam-es, in
 
 364 RECOGNISANCE. 
 
 order to make out the fact ; and that the conviction should not 
 be grounded singly on the unsupported accusation of an infant 
 under years of discretion. There may be therefore, in many 
 cases of this nature, witnessed who are competent, that is, who 
 may be admitted to be heard ; and yet, after being heard, may 
 prove not to be credible, or such as the jury is bound to believe. 
 For one excellence of the trial by jury is, that the jury are triors 
 of the credit of the witnesses as well as of the truth of the fact. 
 Scss. 36. c. Principals and accessories, before the fact in rape, are to be 
 
 iujl.408. 1 punished with imprisonment for life in the state prison. 
 
 II. Forcible taking and marrying. 
 
 " If any person shall take any woman against her will unlaw- 
 fully, and marry her, or cause her to be married to any other per- 
 son by the assent of such misdoer, or defiled, every such taking, 
 and the procuring and abetting the same, shall be felony, and 
 punishable as in cases of rape ; and every taker, procurer and 
 abettor to the same, shall be adjudged a principal felon : Pro- 
 vided, however, That nothing in this section contained shall extend 
 to any person taking any woman, only claiming her as his ward 
 or bond woman." Sess. 2<t. c. is. s. 2. 1 R. L. 1 36. 
 
 RECOGNISANCE. 
 
 2 Black. A recognisance is an obligation of record, which a man enters 
 
 Com. 341. j n ^ o He f ore some, court of record or magistrate duly authorized, 
 with condition to do some particular act, as to appear at the ses- 
 sions, to keep the peace, to pay a debt, or the like. It is in most 
 respects like another bond ; the difference being chiefly this, that 
 the bond is the creation of a fresh debt or obligation de novo, 
 the recognisance is an acknowledgment of a former debt upon 
 record. 
 
 4Burns'Just. A recognisance can only be taken by one who is a judge or of- 
 loe. Da u c. fi cer ^ f recort i . ; n some cases justices of the peace are enabled 
 to take them by the express words of certain statutes ; but in 
 other cases, as for the peace and good behaviour and the like, it is 
 rather in congruity, and by reasonable intendment of law, than by 
 any express authority given them. But where any statute gives 
 them power to bind over any man to appear, or to take sureties 
 for any matter ox cause, they may take a recognisance. Where- 
 soever they have authority to cause a man to do a thing, there 
 it seemeth they have, in congruity, power given them to bind the 
 party by recognisance to do it ; and if the party shall refuse to be 
 bound, the justice may send him to jail. 
 
 j^ ftrM ' Jnst ' A recognisance must be made to the people of the state, and 
 must contain the names, place of abode, and trade or calling.
 
 RENT. ^ 365 
 
 both of principal and sureties, and the suras in which they are 
 bound ; and it is most commonly subject to a condition, which is 
 either indorsed or underwritten, or contained within the body of 
 it, upon the performance of which the recognisance shall be void. 
 
 When the parties enter into a recognisance, call them by their 
 names thus : 
 
 " You, A. B., acknowledge to owe to the people of the state of ibid. 
 
 New-York, the sum of , and you C. D. acknowledge to owe 
 
 to the people of the state of New- York, the sum of , to be 
 
 le\ i'-d of your respective goods and chattels, lands and tenements, 
 for the use of the said people, if default shall be made in the con- 
 dition following ; that is to say, if you the said A. B. shall make 
 default in appearing," &c. 
 
 When the recognisance is made up, the justice shall subscribe 4 Burns' Just, 
 it, but need not put his seal to it ; and it may be in either of -these \l\ Dalu c 
 sorts, acknoidedgtd before me, J. P., or only to subscribe his name 
 thus, /. P. 
 
 No recognisance for the appearance of any person to answer 
 for any crime or misdemeanour, or to testify concerning the same, 
 shall be valid, unless signed by the party so recognised to appear 
 or testify, and such party shall be entitled to receive from the 
 magistrate taking such recognisance, a note, or memorandum of 
 the condition of such recognisance, when the same shall be re- 
 quired by such party. Sess. 36. c. 6,5. s. 18. 1 B.. L. 149. 
 
 If a justice shall not certify a recognisance into the court in- 
 to which it ought to be certified, he may be fined by the court 
 2.R. L. 507. 
 
 RENT. 
 
 " No goods or chattels whatsoever, in or upon the demised pre- 
 mises, shall be liable to be taken by virtue of any execution, on 
 any pretence whatsoever, unless the party at whose suit the said 
 execution issued out shall, before the removal of such goods from 
 off the said premises, by virtue of such execution, pay to the land- 
 lord of the said premises, or his bailiff, all and every sum or sums 
 of money due for rent for the said* premises at the time of the 
 taking such goods or chattels, by virtue of such execution : Pro 
 vided, The sum claimed to be due for and during the whole time 
 of the demise and tenure thereof shall not exceed, in amount, a 
 sum equal to the last year's rent thereof, although such arrears 
 might have become due before such year ; and in cast' the said ar- 
 rears shall exceed one year's rent, then the s;u'd party at whose 
 suit such execution is sued out, paying the said landlord or his bai- 
 liff one year's rent, may proceed to execute his judgment, as he 
 might have done before the making of this act, and the sheriff or 
 ether officer is hereby empowered and required to levy and pay
 
 366 RIOT, ROUT, AND UNLAWFUL ASSEMBLY. 
 
 to the plaintiff, as well the money so paid for rent, as the execu- 
 tion money." Sess. 3(3. c.CiS.s. 1'2. 1 R. L. 4-37. 
 
 Hazard v. Where the goods of a tenant who had hired a house for a year, 
 
 2 l j a o y ims. n Rep. ^ or a sum P a y a b!e quarterly, are taken in execution, the landlord 
 473. is not entitled to rent for the current quarter, but only to the rent 
 
 due on the last quarter day. 
 
 Alexander An officer who levies an execution, is not bound to leave goods 
 
 r j^'i' "' on t ' u ' P rermses sufficient for the payment of the rent in arrear, 
 Rey. 185. without notice for that purpose from the landlord. See further 
 as to rents, DISTRESS, I. 
 
 RIOT, ROUT, AND UNLAWFUL ASSEMBLY. 
 
 I. What they are. 
 II. How they may be restrained and punished. 
 
 I. What they are. 
 
 4 black. When three persons or more shall assemble themselves tege- 
 
 i Hawk. c. ther, with an intent mutually to assist one another against any 
 f^ DaltiC> one who shall oppose them, in the execution of some enterprise of 
 a private nature, with force or violence against the peace, or to 
 the manifest terror of the people, whether the act intended were 
 of itself lawful or unlawful ;/ if they only meet to such a purpose 
 or intent, although they shall after depart of their own accord, 
 with'out doing any thing, this is an unlawful assembly. If after 
 their first nififiting they shall move forward towards the execution 
 of any such act^ whether. they put their intended purpose in ex- 
 ecution or not; this, according to the general opinion, is a rout ; 
 and if they execute such a thing in deed, then it is a riot. 
 .JBarr. 1262. If six persons are indicted, two of them die untried, two found 
 not guilty, and two guilty, it is good, for it shall be supposed it 
 was committed with those who have not been tried, and judg- 
 ment shall not be arrested. 
 
 >Hawk. c. jf , a q llalTe ) happen to fall out among persons who are met to- 
 
 gether on some lawful occasion, it is only an affray ; but if, on a 
 dispute arising among them, they had formed themselves into 
 parties, with promises of mutual assistance, and then made an af- 
 fray, they are guilty of a riot ; and it is not necessary that they 
 should have met for the purpose of making a riot, for if such a 
 design should be started, and carried into effect after their meet- 
 ing, they will be riotous. So a person who comes in afterwards, 
 and joins himself with those who are making a riot, is a rioter. 
 iHawk.c-. j n every rit there must he some, circumstances either of ac- 
 
 tual force or violence, or at least of an apparent tendency there- 
 to : hence it clearly follows that assemblies for purposes of diver- 
 sion are not rioters. And from the same ground also it seems to
 
 .RIVERS. 367 
 
 follo^, that it is possible for more than three persons to assemble 
 together with an intention to execute a wrongful act, and also 
 actually to perform their intended enterprise, without being riot- 
 ers ; as if a competent number of people assembled together in 
 order to carry off a piece of timber, to which one of the company 
 hath a pretended right, and afterwards do carry it away. without 
 any threatening words or other circumstances of terror. 
 
 The injury or grievance complained of, and intended to be re- i Hawk. t. 
 verged or remedied by such an assembly, must relate to some 65>8>6 - 
 private quarrel only, or the redress of some private grievance ; for 
 wherever the intention of such an assembly is to redress public 
 grievances, if they attempt with force to execute such their inten- 
 tions, they are, in the eye of the law, guilty of levying war, and 
 consequently of high treason. 
 
 It is no way material whether the act intended to be done by i Hawk. P. 
 such an assembly be of itself lawful or unlawful : as if a number of 65 '*' 7 ' 
 persons join together in a violent and tumultuous manner in re- 
 moving a nuisance, or other thing which may lawfully be done in 
 a peaceful manner, they are as properly rioters as if the act in- 
 tended to be done by them were never so unlawful. 
 
 II. How they may be restrained and punished. 
 
 Every sheriff and tinder-sheriff, and also every other peace- i Hawk. o. 
 officer, as constables, kc. may, and ought to do all that in them 65< ' <u ' < 
 lies towards the suppressing of a riot, and may command all 
 other persons whatsoever to assist them therein ; also, it is cer- 
 tain that any private person may lawfully endeavour to appease 
 all such disturbances, by staying those whom he shall see en- 
 gaged therein from executing their purpose, and also by stop- 
 ping others whom he shall see coming to join them ; for if pri- 
 vate persons may do thus much towards the suppressing of a 
 common affray, surely, a fortiori, they may do it towards the sup- 
 pressing of a riot. 
 
 Generally, offences of this nature are punished at the common 1 Hawfc. t, 
 law, as trespasses, by line and imprisonment only. 
 
 Women are punishable as rioters, but infants under thn age i Hawk. c. 
 f discretion are not. 
 
 RIVERS. 
 
 By the first section of the act declaring certain waters, to bt 
 public highways, sess. 36. c. 47. 2 R. L. 285. the rivers are enu- 
 merated which shall fall nnder that description ; for a more par- 
 ticular account of which I shall merely refer to the act itself. 
 It seems that the Hudson, although not enumerated in tfc act, jcinw 
 rs a public highway, even above tide-water.
 
 368 SEARCH-WARRANT. 
 
 By the second section of tho act, " If any person shall dam 
 up or obstruct the navigation of any of the waters in the. preced- 
 ing section described, by erecting or building any mill or wier. 
 or by the building or erecting thereon any other works, or by 
 cutting or falling woo<J or timber in the same, such person so 
 offending shall forfeit for each offence the sum of . twenty-five 
 dollars, recoverable, with costs of suit, by and for the use of any 
 person who will sue for the same, before any justice of the 
 peace ; and the offender, moreover, shall be deemed guilty of a 
 misdemeanour, and be prosecuted accordingly, by indictment of 
 otherwise." 
 
 SEARCH- WARRANT. 
 
 2 Hale, 150. 
 2 Hawk, c. 
 13. v 10. 
 Amendments 
 Const. U. S. 
 Art. 4, 
 
 4 lust. 177. 
 8 Hale, 113. 
 150. 
 
 4 Burns' 
 Juu. 176. 
 
 Amendments 
 Con. U. S. 
 Art.*4. 
 
 Bell v. Clapp 
 and other*, 
 10 Joims. 
 Rep. 263. 
 
 A general warrant, to search in all suspected places, is not 
 good ; but only to search in such particular places where the 
 party assigns before the justice his suspicion, and the probable 
 cause thereof, for these warrants are judicial acts, and must be 
 granted upon examination of the fact : and if a justice cannot le- 
 gally grant a blank warrant for the arrest of a single person, 
 leaving it to the party to fill up, surely he cannot grant such 
 general warrant, which might have the effect of an hundred 
 blank warrants. 
 
 Upon a bare surmise a justice cannot make a warrant to break 
 any man's house, to search for a felon or for stolen goods. But 
 in case of a complaint, and oath made of goods stolen, and that 
 the party suspects that the goods are in such a house, and shows 
 the cause of his suspicion, the justice may grant a warrant to 
 search in those suspected places mentioned in his warrant, and 
 to attach the goods and the party in whose custody they are 
 found, and bring them before him, or some other justice, to give 
 an account how he came by them, and farther to abide such or- 
 der as to law shall appertain. 
 
 In case of positive proof, a warrant may be executed in the 
 night-time, lest the offenders, and goods also, be gone before 
 morning. 
 
 A warrant must particularly describe the place to be searched, 
 and the things to be seized. 
 
 The important principles on the subject of search-warrants, 
 which are discussed in the following case, will be an excuse for 
 my in.'ertins it entire. 
 
 This was an action of trespass quare clausvmfri\i. Sec. The 
 declaration contained counts for entering the plaintiff's dwf liing- 
 house, and breaking open his doors, Sec. and also in trespass de bo- 
 nis asportatis. &:c. in taking and carrying away one hundred l ar- 
 rels of flour. The defendants pleaded separately not guilty : ad 
 two of them pleaded also specially in justification, that Charles
 
 SEARCH-WARRANT. 
 
 ;'"/!/ i.<lian, before, at, and after, fee. was one of the special justices 
 of lliu peace in the city of New-York, Sec. and so !>ei>iy; jn- 
 on me l!)lh January, J IS 1 I, at, ike. made his certain warrai.t in 
 writing, under his hand and seal, directed to any constable or mar- 
 shal of the said city; reciting, that whereas information on oath 
 had been given to him, the said Charles Christian, one of the 
 special justices, fee. by William Clapp, of the fourth ward, that 
 one hundred barrels of flour had lately been feloniously taken 
 and carried away by Richard and Isaac Jaques, from the wharf, 
 fee. and that the said one hundred barrels of fiour, or a part 
 thereof, were then concealed in a cellar of Gideon Jaques, situate, 
 &c. And the said diaries Christian, being such special justice, 
 did, in and by the said warrant, in UK name of the people, fee. 
 command and authorize them, the said constables and marshals, 
 fee or any of them, with proper assistance, in the day-time, to 
 enter into the cellar of the said Gideon, situate, fee. and there 
 diligently search for the said flour, and if the same, or any part 
 thereof, should be found, then the said constables were, in and 
 by the said warrant, likewise commanded to bring the same, so 
 foiiiid, together with the said Gideon, or the person in whose cus- 
 tody the same should be found, before him, the said Charles 
 Christian, or some other justice of the peace of, fee. to be dealt 
 with as the law directs, fee. which warrant was delivered to M. 
 one of the defendants, then being one of the marshals of the s,aid 
 city, to be executed according to law ; by virtue of which, fee. he 
 went to the cellar t>f the said Gideon Jaques, mentioned in the 
 warrant, and which was part and parcel of, and belonging to the 
 dwelling-house mentioned in the plaintiff's declaration, and there 
 finding the door thereof shut and fastened, did, in a friendly and 
 peaceable manner, demand and require that the said door should 
 be opened, which was then and there refused ; and that there- 
 upon the said M., one of the defendants, in order to execute the 
 laid warrant, did break open the said door, as it was lawful fur 
 him to do, fee. doing as little damage as possible, and did search, 
 fee. and took and carried away therefrom ninety-three barrels of 
 flour, being part of the said one hundred barrels mentioned in the 
 said warrant, fee. fee. The other defendant put in a similar plen. 
 of justification, being a constable, fee. and required to assist the 
 said other defendant in the execution of the warrant. To the 
 plea of justification there was a general demurrer arid joinder. 
 
 Per curiam. The matter set forth in the pica is a justification 
 f the trespass. The search-warrant was founded on oath, and 
 (he information stated that one hundred barrels of flour h:td been 
 stolen from the wharf, in the first ward, by Richard and Isaac 
 Jaques, and that the same, or a part thereof, was concealed in a 
 cellar of Gideon Jaques. The plea then states, that the warrant 
 being under the hand and seal of the magistrate, (.\m> was one of 
 the special justices of the. city of New-York, an <>i"iicer created 
 by ,-. D'-bHc statute,) an,d being directed to the cousUUlts and tour- 
 
 [ 47 ]
 
 I 
 
 . 
 
 70 SEARCH-WARRANT. 
 
 shals, authorized and required them to enter the said cellar, iu 
 the day-time, and search for the flour, and to bring it, together 
 with the said Gideon, or the person in whose custody it might he 
 found, before the justice ; that in pursuance of the warrant, the 
 defendants, the one heing a constable and the other a marshal, 
 did go to the cellar, which was part and parcel of the dwelling- 
 house of the plaintiff, and, after being refused entrance, did open 
 the door by force, and seize the flour in as peaceable a manner as 
 possible. This, then, was a valid warrant, duly executed by these 
 officers. The warrant had all the essential qualities of a legal 
 warrant. It was founded on oath, and was specific as to place 
 and object, and the stolen goods were taken, and taken in as 
 peaceable a manner as the nature of the case admitted. 
 
 InEntick v. Carrington, (2 Wils. 275. 11. St. Tr. 313 316.) 
 Lord Camden admitted a search-warrant, so well girarded, to be 
 a lawful authority. The warrant did not state in whom the pro- 
 perty of the flour resided, nor was this essential to ils validity : a 
 person may even be indicted and convicted of stealing the goods 
 of a person unknown. Nor did it affect the legality of the war- 
 rant, that it directed the officer to bring Jarjues, to whom the cel- 
 lar belonged, or the person in whose custody the flour might be found. 
 It was impossible for any warrant to be more explicit and parti- 
 cular ; and it would probably have been the duty of the officer to 
 ha ye arrested any person in possession of the stolen goods at the 
 place designated, without any directions in the warrant, and to 
 have carried him before the justice for examination. 
 
 Sir Matthew Hale, in one part of his treatise, (H. P. C. v. 2. 
 114-, 116, J 17.) denies to the officer the right 01 breaking open 
 the door, on a warrant to search for stolen goods. But he after- 
 wards (ibid. 151.) admits this power in the officer, if the door be 
 shift, and if, upon demand, it is refused to be opened. This last 
 opinion is founded on the better reason, for search-warrants are 
 often indispensable to the detection of crimes ; and they would be 
 of little or no efficacy without this power attached to them. All 
 the checks which the English law, and which even the constitu- 
 tion of the United States have imposed upon the operation of- 
 these search-warrants, and with the manifestation of a stronjr 
 jealousy of the abuses incident to them, would scarcely have been 
 thought of, or have been deemed necessary, if the warrant did 
 not communicate the power of opening the outer door of a house. 
 In the case of Enticlc v. Carrington, it was asserted by the coun- 
 sel for the defendant, that on a search-warrant, to search for stolen 
 goods, the officer n >ht break open doors, fee. And this power 
 was not questioned by the other side, nor by Lord Camden, in 
 the able and elaborate view which he took of the legality and ef- 
 fect of these warrants. The defendants are accordingly entitled 
 to judgment upon the demurrers. Judgment for the defendants 
 3 Hale, i5i. If the goods be not in the house, yet it seems the officer is ex- 
 cused that breaks open the door to search, because he searched
 
 SERVANTS. 37] 
 
 by warrant, and could not know whether the goods were there 
 till search made : but it seems the party that made the suggestion 
 is punishable in such case ; for as to him, the breaking of the door 
 is in eventu lawful, or unlawful, to wit, lawful if the goods are 
 there ; unlawful if not there. 
 
 On the return of the warrant executed, the' justice hath these 8Hie,isi, 
 things to do. As touching the goods brought before him, if it ap- l 
 pear they were not stolen, they are to be restored to the posses- 
 sor ; if it appear they were stolen, they are not to be delivered to 
 the proprietor, but deposited in the hands of the sheriff or con- 
 stable, to the end the party robbed may proceed, by indicting and 
 convicting the offender, to have restitution. As touching the 
 party that h; 1 the custody of the goods, if they were not stolen, 
 then he is to be discharged ; if stolen, but not by him, but by 
 another that sold or delivered them to him, if it appear that he 
 was ignorant that they were stolen, he may be discharged as an 
 offender, and bound over to give evidence as a witness against 
 him that sold them ; if it appear he was knowing they were 
 stolen, he must be committed, or bound over to answer the felony. 
 
 SERVANTS. 
 
 The contract between a master and his servant arises upon the * niack - 
 hiring. If the hiring be general, without any particular time li- Co. Lin. 43. 
 mited, the law construes it to be a hiring for a year ; upon a 
 principle of natural equity, that the servant shall serve, and the 
 master maintain him, throughout all the revolutions of the respec- 
 tive seasons, as well when there is work to be done, as when there 
 is not;* but* the contract may be made for any larger or smaller 
 term. . 
 
 If a person retains a servant, and agrees to pay him so much by * Bac. Abr. 
 the day, month or year, the servant may have an action against 5l 
 the master on the contract, or against his executors; and every 
 such retainer will be presumed to be in consideration of wages, 
 unless the contrary appears. 
 
 The master may maintain, that is, abet or assist his servant in i Black, 
 ajiy action at law against a stranger; whereas, in general, it is an Coin - 42Sl ' 
 offence against public justice to encourage suits and animosities, 
 by helping to bear the expense of them, and is called in law 
 maintenance. 
 
 A master also may bring an action against any man for beating i Black, 
 or maiming his servant ; but in such case he must assign as a spe- <,'.1i3.' 
 cial reason for so doing, his own damage by the loss of his service, * BdC< Abr 
 and this loss must be proved upon the trial ; and the action to be 
 brought by the master is an action on the case per quod scrritium 
 amisit. But nevertheless, the servant may maintain an action of 
 
 * Scd qiuere where the general mode of hiring is for a montb, a uejk 
 a day, or any shorter or longer tirnp.
 
 372 SERVANTS. 
 
 trespass for the damage which he has received in his own 
 3Wiis. i?. if a daughter who is under age, whether she lives with h-rfa- 
 
 ?66 l> Ull> t^ 1 ' or Ilot 5 be seduced and got with child, the father may main- 
 o^io'ins Rep. tain an action against the seducer to recover a compensation for 
 10 Johns. the loss of her service : and he may do so, whatever he her age, 
 luj,. us. ;r s ] u , jj vc( j w j tn n j in at tne t j m6i an( i acts of. service he proved, 
 and the slightest acts of service will suffice. This action is ground- 
 ed upon the supposed relation of master and servant existing be- 
 tween the. father and daughter. 
 
 i Kiaci^ And if any person do hire or retain my servant, being in my 
 
 v' l \. u. 167, service, for which the servant departeth from me, and go<-th to 
 
 Ke f 274 ! ' US serve * ne other, I may have an action lor damages against both 
 
 the new master and the servant, or either of them ; brt if the new 
 
 master did not km.-w that he is my servant, no action lies, unless 
 
 he afterwards refuse to restore him upon information and demand 
 
 The reason and foundation upon which all this doctrine is built, 
 
 seem to be the property that every man has in the service of his 
 
 domestics, acquired by the contract of hiring, and purchased Ly 
 
 giving them wages. 
 
 T niai-k. As for those things which a servant may do on behalf of his 
 
 master, they seem all to proceed upon this principle, that the 
 master is answerable for the act of his servant, if done by his com- 
 mand, either expressly given or implied. Therefore, if the ser- 
 vant commit a trespass by the command or encouragement of his 
 master, the master shall be guilty of it, though the servant is not 
 thereby excused, for he is only to obey his master in matters that 
 are honest and lawful. 
 
 i Black. If the drawer at a tavern sells a man bad wine, whereby his 
 
 Com. 430. health is injured, he may bring an action against the master ; for 
 
 though the master did not expressly order the servant to sell it. 
 
 to that person in particular, yet his permitting him to draw and 
 
 sell it at all. is impliedly a general command. 
 
 4 Bac. Abr. Owners o;' ships are. answerable to freighters for the acts of the 
 Rei). 6 i70 hl ' S masters ana< mariners, in the same manner as other masters are 
 for their servants, and shall answer for their embezzlements, se- 
 creting of goods, fcc. 
 
 i Black. In the same manner, whatever a servant is permitted to do in 
 
 Com.430. jjj e usua ] course of his business, is equivalent to a general com- 
 mand. If I pay money to a banker's servant, the banker is an- 
 swerable for it : if I pay it to a clergyman's or a physician's ser- 
 vant, whose usual business it is not to receive money for his mas- 
 ter, and he embezzles it, I must pay it over ngain. If a steward 
 lets a lease of a farii', without (lie owner's knowledge, the owner 
 must stand to the bargain, for this is the steward's business. A 
 wife, a friend, a relation that use to -transact business fora man, 
 are quoad /toe his servants, and the principal must answer for 
 their conduct ; for the law implies that they act under a general 
 command, and without such a doctrine as this, no mutual inter 
 course between man and man could subsist with any tolerubk- 
 convenience.
 
 SERVANTS. 37tf 
 
 If I usually deal with a tradesman by myself, or constantly pay i Black, 
 him ready tumuy, f am not answerable for what my servant lakes 4^" c 43 jJ' br 
 up upon trust ; for here is no implied order to the tradesman to sss. 
 trust my servant: but. if I usually send him upon trust, or some- 224. ' 
 times on trust, and sometimes with ready money, I am answera- ?|!' k ' 234 ' 
 bit- for all he takes up; for the tradesman cannot possibly distin- 
 guish, when he conies by my order, and when upon his own au- 
 thority : and if I once pay for what my servant has bought upon 
 trust, without expressing any disapprobation of it. it is equivalent 
 to a direction to trust him in future ; and 1 shall be answerable for 
 all he takes up upon credit, till an express order is given to the 
 tradesman not to give him further credit. 
 
 If a servant by his negligence does any damage to a stranger, 1 Black, 
 the master shall answer for his neglect : if a smith's servant lan.es 
 a horse while he is shoeing him, an action lies against the master, 
 and not against the servant. But in these cases, the damage must 
 be done while he is actually employed in the master's service, 
 otherwise the servant shall ansAver for his own misbehaviour. 
 Upon this principle, if a servant keeps his master's fire negligent- 
 ly, so that his neighbour's bouse is burnt down thereby, an action 
 lies against the master, because this negligence happened in his 
 service ; otherwise, if the servant, going along the street with a 
 torch, by negligence sets fire to a house, for there he is not in his 
 master's immediate service, and must himself answer the damage 
 personally 
 
 So, where the servants of A., with his cart, run against another 2Saik.4i: 
 cart, wherein was a pipe of sack, and overturned the cart and 
 spilled the sack, an action lies against A. So where a carter's 
 servant run his cart over a boy, it was held the boy should have 
 his action against the master for the damage he sustained by this 
 negligence. 
 
 But though a master is answerable for damages occasioned by lEast, i<- 
 the negligence or unskilfulness of his servant acting in the exe- 
 cution of his orders, yet he is not answerable in trespass for the 
 wilful act of his servant done in his absence, and without his di- 
 rection or assent, as by wilfully driving his carriage against another. 
 
 A having a house by the road side, contracted with B. to re- Bushv. 
 pair it, at a stipulated sum ; B. contracted with C. to do the Avork, ^BO"."^' 
 and C. Avith D. to furnish the materials. The servant of D. r "<- 404 - 
 brought a quantity of lime to the house, and placed it in the 
 road, by which the plaintiff's carriage was overturned. A. was 
 holden to be answerable for the damage sustained, because all 
 the sub-contracting parties were in his employ. 
 
 If a master command his servant to do what is lawful, and he 4 Bac. Abi-. 
 misbehave himself, or do more, the master shall not answer for S87< 
 his servant, but the servant for himself, for that it was his own 
 act. , 
 
 An action was tried at the sittings after Trinity term, 1792, at i Black. 
 Guildhall, againsf a prror> wh l '" f l knowingly f'\ rha- ,"'," **
 
 SESSIONS. 
 
 racter of a man to the plaintiff, who was thereby induced to ta'ke 
 him into his service. But this servant soon afterwards robbed his 
 master of property to a great amount, for which he was executed, 
 and the plaintiff recovered damages against the defendant to the 
 extent of his loss. This was an action of great importance to the; 
 public, and there can be no doubt but it was founded in strict 
 principles of law and justice. 
 
 " Every contract already made, or hereafter to be made, by 
 any infant or other person coming from beyond seas, executed 
 in the piesence of two witnesses, and acknowledged by the ser- 
 vant, before any mayor, recorder, alderman or justice of the 
 peace, shall bind the party entering into the same, for such term 
 and for such services as shall be therein specified ; and every 
 assignment of the same, executed before two credible subscrib- 
 ing witnesses, shall be effectual to transfer the same contract for 
 the residue of the term therein mentioned ; but no contract shall 
 bind any infant longer than until his or her arrival to the full age 
 of twenty-one years, excepting such as are or shall be bound in 
 order to raise money for the payment of their passages, who may 
 be bound until the age of twenty-four years : Provided the term 
 of such service shall not exceed four years in the whole." Sess. 
 24. c. I J. s.8. 1 R. L. 137. 
 
 At common law, a servant or apprentice, without any regard 
 to age, might bt guilty of felony in feloniously taking away the 
 goods of their master, though they were goods under their 
 charge, as a shepherd, butler, fee. and may at this day, for any 
 such offence, be indicted as for a felony at common law ; but at 
 common law, if a man had delivered goods to his servant to keep 
 or carry for him, and he carried them away animo furandi, this 
 was considered a breach of trust, but not felony. But the law 
 is now altered in this respect by statute ; as to which, vide 
 LARCENY, 
 
 The sessions is authorized to put out disorderly persons, in 
 certain cases, as servants, apprentices, mariners, or otherwise. 
 
 See further on this subject, APPRENTICES, and also SLAVES. 
 
 SESSIONS. 
 
 I. General sessions, 
 II. Special sessions. 
 
 I. General sessions. 
 
 " Thejustices of the peace of each of the counties of this state, 
 the city and county of New-York excepted, orany three or more 
 of them, of whom a judge of the court of common pleas shall al- 
 ways be one, shall have power to bold the courts of general ses-
 
 SESSIONS. J75 
 
 iivns of the peace in the said counties respectively." Sess. 36. c. 
 18. s. 1. '2 \\. L. 150. 
 
 " It shall he lawful for the courts of general sessions of the 
 peace in the several counties of this state, to inquire, by the oaths 
 of good and lawful men, of the same counties respectively, liy 
 whom the truth may be the better known, of any treason, mis- 
 prision of treason, murder or felony, and of all other crimes and 
 misdemeanours whatsoever done or committed in the city or 
 county for which such court shall be held ; and all crimes or mis- 
 demeanours, not punishable with death or imprisonment in the 
 state prison for life, to hear, determine and punish according to 
 law, and all indictments" of or for any treason, misprision of 
 treason, murder or other felony or crimes, which is or shall be 
 punishable with death, or wilh imprisonment in the state prison 
 for life, they shall cause to be delivered to the next supreme 
 court, or court of oyer aod terminer, or jail delivery, to be held 
 in such city or county, there to he determined according to 
 law." 8 . <2." 
 
 "The courts of general sessions of the peace shall send all 
 other indictments against prisoners in jail, which shall not have 
 been heaid or determined, to the next court of oyer and termi- 
 ner and jail delivery, to be held in their respective cities and coun- 
 ties ; and whenever the indictments sent by any court of general 
 sessions of the peace to any court of oyer and terminer and jail 
 delivery, shall not be tried then-iu, but shall be remitted back to 
 the court from which they came, it shall be lawful for the said 
 court to proceed thereon : Provided the court of general sessions 
 of the peace has jurisdiction of the case." s. 3. 
 
 " The sheriffs of the respective counties of this state, at. certain 
 days and places, which the justices of the peace for every such 
 county, or jiy two or more of them, together with one of the 
 judges of the court of common pleas in and for such county, shall 
 make known to them, shall cause to come before the said court? 
 of general sessions of the peace, twenty- four good and lawful 
 men of the same counties respectively, to inquire for the people 
 of this state, and the bodies of the same counties; and likewise 
 so many good and lawful men of the same counties respectively, 
 duly qualified to serve as jurors in the same counties as the said 
 justices shall direct, by whom the truth of the matter may be the 
 better known and inquired into, of all crimes and misdemeanours, 
 to be tried at the said courts." s. 4. 
 
 " No process or pleas whatever before any of the said courts of 
 general sessions of the peace, shall be discontinued by any new 
 commission of the peace, but the same shall stand in full force : 
 and the justices in such new commissions shall have authority in 
 the said courts to continue<Jiear and determine the same process 
 and pleas, and all that shall depend upon them, as the other jus- 
 tices might have done if no new commission had been made." "Bail, nj. vi. 
 
 " The said courts of general sessions of the peace may, in their 
 discretion, let to bail prisoners urrested and in jail in their resper
 
 376 
 
 live cities and counties, for suspicion of felony, to appear at the 
 next court having cognisance of the offence, and where the same 
 ought to be tried." s. 7. 
 
 The times and places of holding the courts of common pleas 
 nd general sessions of peace in the different counties, are speci- 
 fied by the act, sess. 3b. c. 63. to which I must refer the reader. 
 
 " If the court house or place of holding courts in any county oi 
 this state, other than the city and county of New York, hath been 
 or shall be destroyed by fire or other means, or shall, from any 
 cause or calamity, be unsafe, inconvenient, or unfit to hold rourt 
 in, it shall and may be lawful for the judges of the court of com- 
 mon pleas of such county, or a majority of them, to fix upon 
 some other convenient place, in the vicinity of the place where the 
 courtis fixed by law, as a temporary place for holding such court. 
 and the same shall be deemed the court-house of such county or 
 city to all intents and purposes, for the time being; and all busi- 
 ness which shall be transacted at such place, shall be as valid as if 
 the same were done at the usual and customary place." Sess. 36. 
 c. oj. s. 5. 2 R. L. 146. 
 
 The courts of common pleas and general sessions may, in the 
 several counties, (Albany, Rensselaer, and Washington excepted,) 
 continue to be held from the day of their commencement, as ap- 
 pointed by law, until the Saturday next following inclusive, s. ti. 
 
 " It shall be lawful for the judges and justices of any of the said 
 courts, to adjourn the same on any day previous to the expiration 
 of the term for which the same may be held as aforesaid, if in their 
 opinion the business of such courts will admit thereof." ibid. 
 
 "If at any time hereafter a sufficient number of the persons 
 authorized to hold any of the said courts of common pleas or 
 general sessions of the peace, shall not attend for that purpose 
 before five of the clock in the afternoon of the day on which such 
 court is to be held, it shall be lawfu^or such one or more of them 
 as shall attend, to adjourn the same court to the next day ; and 
 if a sufficient number do not attend before five of the clock in the 
 afternoon of such next day, then it shall be lawful for such mem- 
 ber or members of the same court as shall attend, to adjourn the 
 same court to the next term or session thereof, or for the longest 
 time that such court can by law be adjourned." s. 7. 
 
 " All writs or process which shall issue out of. any of the said 
 courts, may be tested on any day of the term or session on which 
 such court shall sit, and be made returnable on aiw other day of 
 such term or session to which such court shall continue to sit, or 
 at the next term or session." s. 8. 
 
 ' The adjournment of any of the said courts, before the expi- 
 ration of their respective terms or sessions, shall not affect the 
 teste, return, or service of any writs iiciied prior to such adjourn- 
 ment." s. 9. 
 
 " In every suit or prosecution now, or which may hereafter 
 be depending in any of the said courts of ro>nmo" ol>'-is o 
 ral sessions of the peace, such court shall be. and hereby is autho-
 
 SESSIONS. 377 
 
 r'rced and empowered to issue process of subpoena, requiring the 
 attendance of any witness who may reside in any part of this state, 
 to testify on the trial of the said cause, fee. although the said 
 witness shall not be within the jurisdiction of the said court when 
 served with the said subpoena : Jlnd further^ every witness who 
 may be duly served with such subpoena, shajl be, and hereby is 
 required to attend at the time and place therein mentioned, un- 
 der the like penalties, and shall be liable to the same action 
 which he would have incurred or been liable to for such refusal 
 or neglect, if such witness had been within the jurisdiction of 
 the said court at the time of the service of such subpoena " s. in. 
 
 "No seal shall be necessary to the validity of any subpoena 
 issued from any court of general sessions of the peace, for 
 witnesses in support of any prosecution, but such subpoena shall 
 be issued and subscribed by the person prosecuting on behalf of 
 the people of the state in any such court." ibid. 
 
 " It shall be the duty of the clerk of each county to issue sub* 
 pcenas, under the seal of the courts of common pleas, from the 
 courts of general sessions of the peace of the county, on the 
 application of any person against whom a criminal prosecution is 
 pending in any such court, to compel the attendance of witnesses 
 who reside in or out of the county, and for which several services 
 the clerks shall be entitled to the same fees as are allowed for 
 the like process in the courts of common pleas." ibid. 
 
 A bill of exceptions does not lie to the sessions. 3 Johht Rep. 
 
 The sessions is a court of inferior jurisdiction, and cannot 23 ' 
 grant a new trial on the merits. iMms. Cas. 
 
 Sec further, APPEAL, ARRAIGNMENT, APPRENTICES, CERTI- 
 
 1RARI, I^DICTMEST, JURY, S>iC. 
 
 II. Special sessions. 
 
 "If any petty larceny, misdemeanour, breach of the peace, 
 
 or other criminal offence under the degree of grand larceny, be 
 committed within any of the counties of this state, (the city and 
 county of New-York excepted,) and the person charged there- 
 with on oath before any justice of the peace, shall not forthwith 
 ^ive good and sufficient bail to appear and answer at the next 
 court of general sessions of the peace to be held in and for the 
 said county, such person shall be committed to jail, or to the cus- 
 tody of a constable of the town where the said oflendcr was taken, 
 and in case such offender shall not give bail as aforesaid, within 
 forty-eight hours after being so committed, it shaltthen be lawful 
 for the justice by whom he was committed, to certify the cause 
 ..hereof to any other two justices of the said county, and require 
 rhem to associate with him to try such offender, which they art; 
 hereby required to do : and the said justices being met, are an- 
 
 f 43 ]
 
 378 SESSIONS. 
 
 thorized to hear, and a majority of them to determine the of- 
 fence, and the said offender being convicted by confession, or 
 the oath of one or more credible witnesses, to impose a firv not ex- 
 ceeding twenty-five dollars, or imprisonment in the common jail 
 of the county not exceeding six months, or both, as the case may 
 require ; and the said offender having paid the fine, remained his 
 term in imprisonment, or both, as the case may be, shall be forth- 
 with discharged without paying any fees, if an inhabitant of the 
 *;iid county ; hut if not, such offender shall be immediately or- 
 dered or transported out of the said county to his last place of 
 settlement or abode, if known ; and if any person so ordered or 
 transported shall remain in the said county for forty-eight honrs, 
 or return thereto within six calendar months after such order or 
 transportation, he shall be again fiued as aforesaid, or confined as 
 aforesaid, not exceeding three months, as any three justices of 
 the county, or a majority of them, shall determine : Provided, 
 That nothing herein contained shall be construed to prevent the 
 justices, when met to hold the said court of special sessions, from 
 trying any such offender in less than forty-eight hours, if such of- 
 fender shall require the same." Sess. 36. c. 104. s. 4. 2R.L. 507. 
 Pftwer^r. In error on certiorari. On the 10th March, 1805, one Tar- 
 
 4 Johnlju*' r enn * n e complained to three justices of the county of Cayuga, 
 ?. " that Polly Poicers, the plaintiff in error, had feloniously stolen a 
 handkerchief, the property of the complainant. The accused 
 appeared before the justices, and denied the charge ; and, on 
 the oath of three witnesses, she was convicted, and fined five 
 dollars. Per curtam. The principal objection to this case is, 
 that the record does not show sufficient to give the justices juris- 
 diction. No consent, on the part of the prisoner, has been shown 
 or averred, as to any part of the proceedings. We are to intend, 
 that they were compulsory. It ought, then, to have appeared, 
 that she had not given bail after being apprehended, and that she 
 had forty-eight hours to procure such bail ; but the complaint 
 was made on the 10th March, and she w*as summoned to appear 
 before the justices, and did appear, and was tried on the same 
 day. The value of the handkerchief stolen ought also to have 
 been stated ; for, unless its value was less than twelve dollars and 
 fifty cents, the court had no jurisdiction. It is a salutary rule with 
 respect to inferior courts, that the cause of which they take cog- 
 nisance should appear to be within their jurisdiction. These ob- 
 jections are fatal, and the conviction must therefore be quashed. 
 
 " The judgments and orders of the said court shall be executed 
 by the sheriff and constables of the said county, by virtue of a 
 warrant under the hands and seals of the said justices who held 
 iame, or a majority of them, commanding the same to be 
 done, and the charge of prosecuting, punishing, and transporting 
 every such offender, shall be defrafed by the counties respective- 
 ly where the offence shall happen, and be raised in the like man- 
 i<*r as file ofher contingent charges of the county, so 39 that all
 
 SHERIFF. 
 
 tjie charges for each offender shall not exceed live dollars ; and 
 all fines imposed by the said court shall, when paid, be applied 
 towards payment of the charges of the prosecution, and the re- 
 mainder, if any, paid into the treasury of the county." s. 5. 
 
 SHERIFF. 
 
 Sheriffs must be annually appointed, and no person shall be 
 capable of holding the office more than four years successively, 
 or of holding any other office at the same time. Const, of JV. Y. 
 Art. XXVI. 
 
 They must be substantial freeholders within the city or county 
 for which they are appointed, and must give security for the 
 faithful performance of their office. Sess. 3d. c. 67. s. 1, 2. 1 R. 
 L. 4 1 8. 
 
 Every sheriff shall, by writing under his hand and seal, appoint 
 an under-sheriff of the county, who, in case of the death of the 
 sheriff, shall execute the office until another be appointed; but in 
 case of his inability, the duties, of the office shall be performed by 
 the coroner. The sheriff may likewise appoint as many deputies 
 as he may think proper, besides the under-sheriff. s 5. 
 
 The sheriff shall have the custody of the jail and prison in his 
 county, and shall appoint the keeper, s. 7. 
 
 Sheriffs and jailers shall receive from any constable or other it is the wipe 
 officer, without taking any thing therefor, and safely keep in pri- ^Vinaw"" 
 son, all felons indicted or taken in the fact, \vho shall be taken by < Term Rep. 
 any constable or other officer, and shall not, of their own autho- S08i 
 rity, let out of prison, on bail, or otherwise, any person in their 
 custody, by virtue of any process for any treason or felony, or 
 committed by special order of any court or justices, upon pain of 
 being punished by fine and imprisonment, and to answer the da- 
 mages of the party grieved, s. 12. 
 
 A sheriff or other officer having any person i.n his custody, shyll 
 not carry him to any tavern, ale-house, or other public victualing 
 or drinking-house, without the voluntary consent of such person, 
 so as to charge such prisoner with any sum of money for any 
 drink, victuals, or other thing whatsoever, but what the said per- 
 son shall call for of his own accord. 
 
 And such officer shall not, directly or indirectly, demand, take., 
 or receive, any other or greater sum than what by law ought to be 
 taken or demanded for such arrest, taking or waiting until such 
 person shall have procured an appearance, found bail, agreed 
 with his adversary, or be sent to jail, nor take or exact any other 
 reward or gratuity for so keeping the said person out of jail, than 
 what such person shall of his own accord voluntarily give, nor take 
 or receive any other or greater sum for each night's lodging or 
 other expenses, than what is reasonable and fitting in such, cases,
 
 380 SHERIFF. 
 
 or shall be so adjudged by the next justice of the peace, or at the 
 general sessions, and shall not cause the said person to pay for any 
 drink, victuals, or other things, than what such person shall volun- 
 tarily and particularly call for. 
 
 And the officer or keeper shall permit him, at his own will and 
 pleasure, to send for and have any beer, ale, victuals, and other 
 necessary food, where and from whom any such prisoner pleases, 
 and. to have and use such bedding, linen, and other things, as such 
 prisoner shall think fit, without detaining or paying for the same, 
 or any part thereof ; and shall not demand, take, or receive, any 
 other fees than are allowed by law, nor any thing whatsoever for 
 the chamber rent of such prison* 
 
 And shall not put or keep prisoners for debt, and felons, together 
 in the same room ; and the offender against any thing in this sec- 
 tion, shall forfeit his office, and also treble damages to the party 
 grieved, s. 16, 17. 
 
 It shall not be lawful to confine male and female prisoners, im- 
 prisoned either civilly or criminally, except husband and wife, in 
 the same prison-room ; and in case any sheriff, jailer, or marshal, 
 shall offend in. the premises, he shall be deemed guilty of a mis- 
 demeanour, and upon conviction thereof, shall be fined at the 
 discretion of tlie court before whom such conviction shall be 
 had. s. 18. 
 
 A sheriff, whilst conveying a convict to. the state prison, shaU 
 have the same power, and the like authority, to demand the as- 
 sistance o.f any of the people of this state, in securing every such 
 person, as if stvch sheriff were in the county for which he is ap- 
 pointed sheriff; and all persons shall be aiding and assisting such 
 sheriff, under the same penalties as if such sheriff was in his proper- 
 county. Sess. 35. e. 1. s. 17. 1 11. L. 270'. 
 
 *8^ uvns '" Just The sheriff having a justice of -the peace's warrant directed to 
 2 n'awk. c. him, shall execute the same; but he need not go in person to 
 13 **"*' execute it, but may authorize apother to do it. See SES- 
 
 SIONS, II. 
 
 2Hak. c. '"Also the sheriff, on summons, is bound to attend the sessions 
 of the peace, there to return his precepts, to take charge of pri- 
 soners, &iC. 
 
 ago'.'"" JU5t ' And 't seems clear from the general reason of the law, which 
 
 2 Hawk. c. gives all courts of record a kind of discretionary power over all 
 
 abuses by their own officers, that the sheriff is punishable by the 
 
 justices in sessions, for defaults in executing their writs and. 
 
 precepts. 
 
 2 Hawk. c. -Every sheriff is a principal conservator of the peace within 
 his county, and may, without doubt, ex officio, award process of the 
 peace, and take surety for it ; and it seems the better opinion, that 
 the security so taken by him is by the common law looked on a& 
 a recognisance or matter of record, and not us a common obliga 
 tion or matter in p^ls only.
 
 SLAVES. 
 
 SLAVES. 
 
 I. n ho are slaves and servants within tfte ad concerning slaves 
 
 and servants. 
 II. Effect of slavery and rights of slaves. 
 
 III. Poiver and liability of master. 
 
 IV. Brin "'ing slaves into the stale, and indentures of service. 
 V. Abandoning slaves. 
 
 VI. Selling and exporting slaves. 
 "V II. Harbouring and trading with slaves. 
 VIII. Punishment of slaves in certain cases. 
 IX. Duties of masters in relation to their servants under this act. 
 X. Manumission, and hoio persons manumitted are to be sup- 
 ported. 
 
 I. 7f ho are slaves and servants within the act concerning slaves and 
 
 servants. 
 
 " Every negro, mulatto or mustee, within this state, who is 
 now a slave for life, shall continue such, unless such Slave shall 
 be manumitted according to law, and the baptizing of any slave 
 shall not be deemed to be a manumission of such slave." Sess. 
 36. c. 88. s. 1. 2R. L. 201. 
 
 " Every child born of a slave within this state, after the fourth 
 day of July, in the year of our Lord one thousand seven hundred 
 and ninety-nine, shall be free, but shall remain the servant of the 
 owner of his mother, and the executors or administrators of such 
 owner, in the same manner as if such child had been bound to 
 service by the overseers of the poor, and shall continue in such 
 service, if a male, until the age of twenty-eight years, and if a fe- 
 male, until the age of twenty-five years." s. 7. 
 
 See post, a similar provision as to slaves brought into the state. 
 
 II. Effect of slavery and rights of slaves. 
 
 " All marriages contracted, or which may hereafter be con- 
 tractod, Avherein one or more of the parties was, were, or may 
 be slaves, shall be considered equally valid as though the parties 
 thereto were free ; and the child or children of any such mar- 
 riage shall be deemed legitimate." 
 
 " Provided nothing herein contained shall be deemed or con- 
 strued to manumit any such slave or slaves." s. 2. 
 
 " No slave shall be a witness in any case, except for or against 
 another slave, in criminal cases." s. 19. 
 
 A free black man is a competent witness to prove facts which j^* v - 
 may have happened while he was a slave. i.Tphns.K.<j>.
 
 382. SLAVES. 
 
 III. Power and liability of master. 
 
 " It shall be lawful for all such persons as reside in the counties 
 of Ontario, Steuben, Seneca and Orange, and having emigrated 
 from the states of Virginia, Maryland, or North Carolina, within 
 seventeen years last past, who hold in their own right slaves, 
 which they brought with them from either of the said states, to 
 hire out th,-:ir said slaves to any citizen of this state, for a term of 
 time not exceeding seven years. 
 
 " Provided always, That the masters of such slaves shall not he 
 exonerated from liability to maintain any such slave, who, at the 
 expiration of the term for which he shall be so hired out, shall 
 not be of sufficient ability to maintain himself." 8. 8. 
 
 " If any person shall willingly suffer or permit his slave, or such 
 servant as aforesaid, (i. e. children of sla>'es manumitted by this 
 act, but who remain servants until they arrive at a certain age, 
 see infra,) to beg of others victuals, clothing, or other neces- 
 saries, such person shall forfeit twenty-five dollars for every such 
 offence, to be recovered by action of debt, with costs of suit, in 
 any court having cognisance thereof, by any person who will sue 
 for the same, one half of which forfeiture shall be paid to the pro- 
 secutor, and the residue to the overseers of the poor of the city or 
 town in which such offence shall be committed, for the benefit of 
 euch poor." s. 13. 
 
 " If any person shall, by fraud or collusion, sell, or pretend to 
 sell or dispose, of any aged or .infirm slave, to any person who is 
 unable to maintain such slave, such sale or disposition shall be 
 void, and the person making the same shall forfeit the sum of fifty 
 dollars for each offence, and shall moreover be deemed the own 
 er of such slave within the meaning of the next preceding sec- 
 tion of this act, and which forfeitures shall btt recovered and ap- 
 plied as is directed in the said section." s. 14-. 
 
 " If any person shall, by theft or trespass committed by any 
 such slave or servant, sustain damage to the value of twelve dol- 
 lars and fifty cents or under, the owner of such slave, or the mas- 
 ter or mistress of such servant, shall be liable to make satisfac- 
 tion for the same to the party injured, to be recovered by action 
 of debt, with costs, in any court having cognisance thereof." s. 18. 
 
 IV. Bringing slaves into the state, and indentures of service. 
 
 11 No person held as a slave shall be imported, introduced, or 
 brought into this state, on any pretence whatever, by any person 
 coming permanently to reside within this state for the space ol 
 nine months, shall be considered as having a permanent residence 
 therein within the meaning of this act, but it shall not be con- 
 strued to extend to such persons as may reside within this state 
 for a shorter period : and if any person so held as a Slave, shall
 
 STAVES. 333 
 
 be so imported, introduced, or brought into this state, contrary to 
 the true intent and meaning of this act, he shall be, and is hereby 
 declared free ; and any slave who shall have been imported, in- 
 troduced, or brought into this state contrary to the foregoing di- 
 rections, since the first day of May, 1810, shall be, and is hereby 
 declared free." s. 5. 
 
 " No indenture, contract, or bond, conditioned for personal 
 service, hereafter entered into or made, by any person who has 
 been holden or possessed as a slave by any person without this 
 state, shall be in any manner obligatory, within this state, on the 
 person so bound to service, but the same is hereby declared to be 
 utterly void ; and if any person, so having been holden as a slave, 
 shall be indented or bound, contrary to the intent of this act, he 
 or she shall thereafter be free: and further, this section shall ap- 
 ply to every such indenture, contract or bond, made or entered 
 into since the thirtieth day of March, 1810; and the same shall 
 likewise be utterly void, in like manner as if made or entered 
 into since the passing of this act." s. 6. 
 
 " When any slave shall have been, or shall hereafter be brought 
 or imported into this state, by any person coming into this state, 
 with intent to reside permanently therein, and who shall have re- 
 sided without this state, and also have owned such slave, at least 
 during one year next preceding the time when such person shall 
 have come, or may hereafter come to reside permanently within 
 this state ; then, and in such case, every such slave, if born after 
 the fourth day of July, in the year of our Lord 1799, shall be 
 free, but shall remain the servant of him or her who was before 
 the owner of such slave, and the executors and administrators of 
 such owner, in the same manner as if such child had been bound 
 to service by the overseers of the poor, and shall continue in such 
 service, if a male, until the age of twenty-eight years ; and if a 
 female, until the age of twenty-five years." s. 26. 
 
 V. Abandoning slaves. 
 
 "The children of slaves, born between the fourth day of July, 
 1799, and the thirty-first day of March, 1804, and which shall 
 have been duly abandoned by their owners previous to the last 
 mentioned day, shall be continued to be provided for at the ex- 
 pense of this state, according to the then existing laws thereof; and 
 no contract by any overseers of the por, for the support of any 
 person so abandoned, made before the twenty-sixth day of March, 
 1 802, according to the provisions of the then existing statutes re- 
 lative to slaves, shall be affected by this act, but the same shall be 
 governed by the statutes then in force, any thing herein contain- 
 ed to the contrary notwithstanding. 
 
 " Provided, that it shall be lawful for any person entitled to the 
 service of any person hereafter to be born of a slave, or who shall t 
 have been born of a slave since the fourth day of July, 1799, at
 
 384 SLAVES. 
 
 any time to abandon any male child after it shall arrive to the age 
 of twenty-one years, or if a female, to the age of eighteen years ; 
 provided that the person entitled to such service shall, at or im- 
 mediately before such abandonment, obtain a certificate, si^nrcl 
 by the overseers of the poor of such city or town where such 
 person shall reside, certifying that such child, if a male, appears 
 In be of the age of twenty-one years, and if a female, of the age 
 of eighteen years, and of sufficient ability to provide for himself 
 or herself; and shall cause such certificate to be registered in thr 
 office of the clerk of such city or town." s. 12. 
 
 VI. Selling and exporting slaves. 
 
 By s. 9- persons who have resided ten years within the state, 
 and are about to remove permanently, may carry with them such 
 slaves as shall have been their property during ten years next 
 preceding, after making proof of that fact, and obtaining a li- 
 cense from a judge of the common pleas : but this does not ex- 
 tend to servants or slaves for a term of years ; and a penalty oi' 
 two hundred and fifty dollars is imposed on masters of vessels who 
 take away slaves for whose exportation no license has been ob- 
 tained. And s. 10. makes false swearing on any oath or deposi- 
 tion made or taken by virtue of, or pursuant to this act, perjury. 
 By s. 11. travellers passing through the state may take away 
 slaves that they have brought with them into the state, and any 
 inhabitant of this state, going a journey to any other part of the 
 United States, may carry with him any slave or servant, but must 
 bring him back under a penalty, or prove that he could not be 
 brought back, by reason of some unavoidable accident. 
 
 By s. 23. if any person within this state shall, under any colour 
 or pretext, sell as a slave, or transfer for any period whatever, any 
 person who shall hereafter be imported or brought into this state 
 as a slave, he is subjected to a penalty of two hundred and fifty 
 dollars, and every person so imported or brought into this state. 
 and sold contrary.to the true intent and me'aning of this act, shall 
 be free. 
 
 Sable T. It has been held, that the sale of the services of a slave, cither 
 
 "jonrrsJCa*. ^ or an indefinite period, or for a length of time equal to the value 
 7$. Fish . of the life of the slave, is equivalent to a sale of the slave ; as 
 2 Johns. Cas. where a slave, aged eighteen, was sold for a term of twenty years ; 
 Bi'imer* *' suc ^ sa ^ e being an evasion of the act. 
 
 3Caioes : Rcp. But a sale of an imported slave by persons acting as executor?. 
 Sable v. assignees, or trustees of the original owner, or under an execu 
 
 Hitchcock. tiQ n against his, estate, is valid. 
 
 2 Johns. Cas. ' ' . . , 
 
 7<j. But a subsequent sale by the purchaser is void. 
 
 b<S> arT ' Pca ' By s - 2-1-- an y person exporting or attempting to export a slave. 
 
 jijoimi. i subjected to a pena'^v of two hundred and fifty do]!
 
 SLAVES. 
 
 VII. Harbouring and trading with slaves. 
 
 " If any person shall employ, harbour, conceal, or entertain any 
 slave, or such servant as aforesaid, knowing such slave or servant to 
 belong to any other person, without the consent of such owner, such 
 person shall forfeit to the owner of such slave or servant, the sum 
 of twelve dollars and fifty cents for every twenty-four hours, and 
 in that proportion for a greater or less time, whilu such slave 
 or servant shall have been so employed, harboured, concealed, 
 or entertained, but such forfeiture shall no';, in the whole, exceed 
 the value of such slave, or of the service such owner is entitled lo 
 receive from such servant: And further, if any person shall be 
 guilty of harbouring, entertaining, or concealing, or of assisting 
 to convey away any such slave or servant, and such slave or ser- 
 vant be lost or die, such person shall forfeit to the owner of such 
 slave or servant the value of such slave, or of the service such 
 owner shall be entitled to receive from such servant ; all of 
 which forfeitures may be recovered by action of debt, with costs 
 of suit, in any court having cognisance thereof." s. 15. 
 
 " If any person shall trade or traffic with any auch slave or ser- 
 vant, either in buying or selling, without the consent of the owner 
 of such slave, or the master or mistress of such servant, such 
 person shall, for every such offence, forfeit the treble value of the 
 articles so bought or sold, and also the sura of twelve dollars and 
 fifty cents, to the owner of such slave or servant, to be recovered, 
 with costs, against such person, by action of debt in any court hav- 
 ing cognizance thereof, and every contract so made with such 
 slave or servant, shall be void." s. 16. 
 
 " If any person shall sell any rgm or other strong liquor to any 
 such slave or servant, without the consent of the owner of such 
 slave, or the master or mistress of such servant, such person shall 
 forfeit, for every such offence, the sum of five dollars, to be reco- 
 vered in the name of the owner of such slave or servant, with 
 costs, by action of debt in any court having cognizance thereof, 
 the one half of which forfeiture, when recovered, shall be paid by 
 such owner to the overseers of the poor of the city or town where 
 such offence shall be committed." s. 17. 
 
 VIII. Punishment of slaves in certain cases. 
 
 u Where any slave shall hereafter be convicted in the supreme 
 court, or in any court of oyer and terminer and jail delivery, or. 
 general sessions of the peace, of any crime not punishable with 
 death, or with imprisonment in the state prison for life, it shall be 
 lawful for the master or mistress of such slave, to cause such slave, 
 to be transported out of this state : Provided, That the court be- 
 fore which such conviction may be had, shall have previously 
 certified, that the crime whereof such slave shall be convicted, i- 
 
 [ 49 ]
 
 386 SLAVES. 
 
 of such a nature that transportation would be a praper punish- . 
 ment: Jlnd provided also, That such court may also inflict such 
 other punishment on such slave, as from the nature of the offence, 
 and the course of the law, they may judge proper." s. '20. 
 
 " If any such slave shall strike a white person, it shall be lawful, 
 on proof of the same by the oath of such person, for any justice of 
 the peace to commit such slave to jail, who shall thereupon be 
 tried and punished as in cases of petit larceny, according to the 
 act, entitled, ' An act declaring the powers of the courts of gene- 
 ral sessions of the peace, and the powers and duties of justices of 
 the peace ;' but in all other cases such slave shall have the privi- 
 lege of trial by jury." s. 21. 
 
 IX. Duties of master f in relation to servants under this act. 
 
 Every person entitled to the services of a child born of a slave 
 within this state after the 4th July, 1799, " shall use all proper 
 and reasonable means to cause such child to be taught reading, so 
 as to be able to read the holy scriptures, previous to such child's 
 arriving to the age of twenty-one years; and if such person, so 
 entitled to such service, shall neglect to use all proper and reason- 
 able means to give such instruction as aforesaid, having regard to 
 all the circumstances of the case, then, and in every such case of 
 neglect, such servants so neglected shall be released from their 
 servitude when they arrive to the age of twenty-one years, any 
 thing in any former law to the contrary notwithstanding; and all 
 complaints by any such servant, arising under this section, against 
 his said master, and all complaints by any such master against such 
 servant, shall be heard, tried and determined in like manner, and 
 with like effect, as complaints by and between master and appren- 
 tices under the laws of this state." s. 7. 
 
 By s. 29. slaves imported into this state, under the 26th section 
 of the act, (supra, IV.) are in like manner to be taught to read, 
 subject to the same penalty for neglect, as in s. 7- 
 
 " Every person being an inhabitant of this state, who shall be 
 entitled to the service of a child born after the 4th day of July, 
 1799, shall, within nine months after the birth of such child, cause 
 to be delivered to the clerk of the city or town whereof such per- 
 son shall be an inhabitant, a certificate in writing, containing the 
 name and addition of such person, and the name, age, and sex, 
 of the child so born; which certificate, whether the same be de- 
 livered before o after the said nine months, shall be, by the said 
 clerk, recorded in a book, to be by him for that purpose provided, 
 and such record thereof shall be good evidence of the age of such 
 child, and the clerk of such city or town shall receive from said 
 person twelve cents for every child so registered ; and if any 
 person shall neglect to deliver such certificate to the said clerk, 
 within the said nine months, such person shall forfeit and pay, for 
 every such offence, five dollars, and the further =:>m of one do 1 -
 
 SLAVES. 387 
 
 iar for every month such person shall neglect to deliver the same, 
 to be sued for and recovered by the clerk of the city or town in 
 which such person shall reside, the one half to the use of such 
 clerk, and the residue for the use of the poor of such city or 
 town." s. 22. 
 
 By s, 28. every person importing a slave under s. 26. (supra, 
 IV.) " shall, within six months thereafter, cause to be filed such 
 certificate as is required in and by the 22d section of this act, in 
 the manner therein directed; and in case of neglect to deliver 
 such certificate as aforesaid, such person shall forfeit and pay, for 
 every such offence, five dollars., and the further sum of one dol- 
 lar for every month such person shall neglect to deliver the same, 
 to be sued for and recovered by tke clerk of the city or town in 
 which such person shall reside, to the use of the poor of such city 
 or town." 
 
 X. Manumission, and how persons manumitted are to le supported. 
 
 "It shall be lawful for the owner of any slave to manumit such 
 slave by last will or testament, or by any certificate or writing 
 for that purpose ; but if such slave, at the time of such manu- 
 mission, be above the age of forty-five years, or within that age, 
 and not of sufficient ability to provide for his or her support, the 
 owner of such slave, and the heirs, executors, administrators and 
 assigns of such owner, shall respectively be liable for the mainte- 
 nance of such slave, in case such slave shall become a charge to 
 any city or town within this state ; and the overseers of the poor 
 of any such city or town shall and may, from time to time, reco- 
 ver the amount of the monies expended for the maintenance of 
 such slave from such owner, his heirs, esecutors, administrators 
 or assigns, by action of debt, or by information in any court having 
 cognizance thereof: 
 
 " Provided, however, That if the owner of such slave, at or imme- 
 diately before the time of such manumission, shall obtain a certi- 
 ficate signed by the overseers of the poor of the city or town where 
 such owner shall reside, or the major part, or if in the cities of 
 New-York or Albany, by the mayor and recorder of the said cities 
 respectively, certifying that such slave appears to be under the 
 age of forty-five years, and of sufficient ability to provide forhim- 
 self or herself, and shall cause such certificate to be registered in 
 the office of the clerk of such city or town, such certificate, or the 
 registery thereof, shall be conclusive evidence of the facts there- 
 in contained, and forever exonerate such owner and his represen- 
 tatives from the maintenance of such slave ; afhd in case of tlic 
 refusal of such overseers, or of the said mayor and recorder, to 
 grant such certificate, such owner may apply for the same to the 
 court of general sessions of the peace of the city or county in 
 which such owner shall reside, giving ten days notice of such 
 application to the said overseers, or mayor and recorder; and iT
 
 SLAVES. 
 
 such certificate be granted by such court, the same shall be as 
 effectual as if signed by such overseers, mayor and recorder, and 
 court, to grant or refuse such certificate according to the truth of 
 the case : 
 
 "dnd further, it shall be lawful for the owner of a child born a 
 slave, to manumit such child, and if such owner shall obtain a cer- 
 tificate from the persons before mentioned, setting forth that the 
 parent or parents of such child is or are able and '.villing to main- 
 tain and provide therefor, such certificate shall in like manner ex- 
 onerate such owner and his representatives from the future main- 
 tenance of the person so manumitted ; provided such certificate 
 shall be registered as herein before directed.' 5 s. 3. 
 
 " All the manumissions of slaves made by the people called 
 Quakers, and others, before the 9th day of March, in the year of 
 our Lord, 1798, although not in strict conformity to the statutes 
 then in force relating to uch manumissions, shall be valid from the 
 time the same were made : Provided, That every owner of any 
 slave so manumitted, and the heirs, executors, administrators and 
 assigns of such owner, shall be liable for tha maintenance of such 
 slave, in case such slave hath or shall become a charge to any city 
 or town within this state, and from time to time be subject to suits 
 by the overseers of the poor for monies expended by any such 
 city or town, in the same manner as is provided by the preceding 
 section of this act." s. 4-. 
 
 " All persons heretofore manumitted by this state, and former- 
 ly the slaves of persons whose estates have been confiscated or 
 forfeited, and who were slaves at the time of such confiscation or 
 forfeiture, and who then and since have resided, and still reside 
 within this state, and are unable to support themselves, shall also, 
 in like manner, be maintained as paupers by the overseers of the 
 poor- of the city or town in which they shall reside, at the expense 
 of this state, and the accounts of the said overseers for such ex- 
 pense, being certified and approved by the mayor of such city, or 
 by the supervisor and a majority of the justices of such town, shall 
 be paid by the treasurer of this state on the warrant of the comp- 
 troller in favour of such overseers, not exceeding the rate of three 
 dollars per month." s. 25. 
 
 " It shall be lawful for the owner of any slave brought or im- 
 ported into this state, to manumit such slave in the same manner, 
 and upon the same terms, as if such slave had been born in this 
 state, and not otherwise ; provided the person bringing or import- 
 ing such slave shall have come into this state with intent to reside 
 permanently therein, and shall have resided without this state, and 
 also have owned such slave at least during one year next preced- 
 ing the importing or bringing in such slave." s. '21.
 
 STRAYS. 
 
 STRAYS. 
 
 By the act concerning strays, sess. 36. c. 21. 2R. L. 231. 
 ki Every person who, at any time hereafter, between the first 
 day of November and the first day of April, in any year, shall 
 have any strayed neat cattle, horses, or sheep, upon his or her 
 enclosed lands, shall, within twenty days after the coming o: 
 strayed neat cattle, horses, or sheep, into his or her enclosed laud, 
 deliver unto the clerk of the city or town where such neat cat- 
 tle, horses, or sheep, shall happen to be, a note in writing, con- 
 taining their several ages, colours, and marks, natural and artifi- 
 cial, as near as may be, together with his or her name and place 
 of abode ; and sucli clerk shall, on receipt of every such note, 
 make a full entry thereof at large, in a book to be provided by 
 him for that purpose; and such clerk shall have, for making such 
 entry, the sum of six cents per head for all the neat cattle and 
 horses, and the sum of three cents for each sheep, so entered as 
 aforesaid, to be paid to him by the person delivering such note ; 
 and the person delivering such note shall have, for doing the 
 same, nine cents per head for all neat cattle and horses, and three 
 cents for every sheep described in such note, and may detain 
 such cattle, horses, and sheep, until the owner thereof shall ap- 
 pear and pay the same, together with the sum paid or due to the 
 clerk for the said entry, and all reasonable charges for keeping 
 the same cattle, horses, or sheep : Provided ahvays, That such 
 reasonable charges be first ascertained and determined by the 
 fence-viewers, or by the town-clerk of such city or town, unless 
 the owner and the person claiming such charges can otherwise 
 agree." s. 1. 
 
 " Every person who shall have kept any such strayed neat cat- 
 tle, horses, or sheep, and recorded the same as aforesaid, shall, 
 between the first day of May, and the twentieth day thereof, give 
 notice to one of the assessors of the town in which such neat cat- 
 tle, horses, or sheep, may be, whose duty it shall be to ascertain, 
 according to the best of his knowledge and judgment, the reasona- 
 ble charges of keeping every such neat cattle, horses, or sheep, 
 and give the person applying for the same a certificate of such 
 charges, for which the said assessor shall be paid, by ttye person 
 applying for the same, six cents per mile for every mile the said 
 assessor shall be obliged to travel from his house to the place 
 where such stray is kept, to do the same, and twenty-five cents 
 for said certificate." s. 2. 
 
 "If no owner shall appear to claim the said cattle, horses, or 
 sheep, on or before the first day of May next after such entrf so 
 made, or if the owner shall refuse or neglect to pay for giving 
 such notice and making such entry, obtaining such certificate, and 
 keeping such cattle, horses, or sheep, then the possessor, or the 
 person who shall have kept them, and given such notice as afort
 
 390 f SUMMONS. 
 
 said, is hrreby authorised to sell the same at vendue, to the high- 
 est bidder, first giving at least twenty days notice of the time and 
 place of such sale, by advertisement to be put up at three of the 
 most public places in the city or town where the said neat cattle, 
 horses, or shtep, have been kept; and out of the monies arising 
 from such sale, to retain in his or her hands, for his or her own 
 use, the sums due as aforesaid, for such notice, entry, and obtain- 
 ing such certificate, and also the sum specified in said certificate 
 for keeping the same cattle, horses, or sheep, and no more, and 
 shall, upon demand, pay the residue, after deducting the reasona- 
 ble charges of such sale, to the owner of the same cattle, horses, 
 or sheep ; but if the owner of such cattle, horses, or sheep, shall 
 not appear and demand the same within one year after such sale, 
 he or she shall be, arid hereby is forever precluded and barred from 
 recovering any part of the money arising from such sale ; and the 
 same money, after such deduction as aforesaid, shall, in such case, 
 be paid to the overseers of the poor of such city or town, for the 
 use of the poor thereof; and the receipt of the said overseers 
 shall be a legal discharge to the possessor or person who shall have 
 kept such cattle, horses or sheep ; and if such possessor shall not, 
 within thirty days after the expiration of the said year, pa\ in 
 remaining money arising from such sale, after the deduction aK. re- 
 said, to the overseers of the poor of the city or town where such 
 neat cattle, horses, or sheep, were taken. up and sold as aforesaid, 
 he or she shall forfeit double the sum so remaining in his or her 
 hands, for the use of the poor of the same place, to be recovered, 
 over and above, and together with the said remaining money, 
 with costs of suit, by the overseers of the poor of the same city 
 or town for the time being, by action of debt, in any court having 
 cognizance thereof." s. 3. 
 
 " The book to be provided and kept by the respective clerks 
 of each city or town as aforesaid, shall always by them be kept free 
 ajid open for any person to search therein, and for which search 
 no fee shall be taken by such clerk, on penalty of forfeiting one 
 dollar for every offence, to be recovered by the party aggrieved, 
 with costs of suit, before any justice of the peace in the county 
 'vhere the offence shall be committed," s. 4, 
 
 SUMMONS. 
 
 4 Burns'Jiist. In all legal proceedings, the person complained of ought to 
 have notice of the charge laid against him, and to have an oppor- 
 tunity of being heard in his own defence. Consequently, where 
 a person is accused before the justices, they ought to summon 
 the party to appear, or issue their warrant to bring him before 
 them. The manner of conveying the parties is sometimes di- 
 rected by the acts creating the respective offences, which there-
 
 SURETY OF THE PEACE. 39 1 
 
 fore ought to be-pursued accordingly. In other cases, where it is 
 left discretionary in the justices, it seemeth most agreeable to the * 
 mildness of our laws to put the party to no more inconvenience 
 than needs must ; and therefore, where the case will bear it, a 
 summons seems more apposite than a compulsory process. But 
 in cases of sureties of the peace, petty larcenies and other felo- 
 nies, and generally where the people is party, and also in cases 
 between party and party where the body of the offender is liable, 
 a warrant is the regular process, and not a summons. 
 
 In the summons it is usual, and upon many accounts conve- 4Burns'jot. 
 nient, to fix not only a day, but a particular time of the day, for 344 ' 
 tir . -i'ty's appearing ; but if he shall appear at the time, and the 
 justice shall not attend, he is not to go away, but must wait dur- 
 ing the remaining part of the day, for many things may happen 
 to hinder the justice's immediate attendance. 
 
 SURETY OF THE PEACE. 
 
 I. For what cause surety of the peace shall be granted. 
 II. Jit whose request, and against whom it shall be granted, 
 
 III. In what manner it shall be granted and executed. 
 
 IV. Of the recognisance. 
 
 V. How the recognisance may be forfeited. 
 VI. How the recognisance may be discharged. ' 
 
 I. For ivhat cause surely of the peace shall be granted. 
 
 By the 1st section of the act declaring the powers and duties of 
 justices of the peace, sess. 36. c. 104-. 2 R. L. 50(i. Justices are 
 authorized "to cause to come before them all persons who shall 
 threaten to break the peace, or who be not of good fame, to find 
 sufficient security for the peace, or for their good behaviour, or 
 both, as the case may require ; and if they refuse to find such 
 security, to commit them to prison until they shall find the same." 
 
 Any justice of the peace may, according to his discretion, i Hawk. P. 
 bind all those to the peace, who in his presence shall make any 
 affray, or shall threaten to kill or heat any person, or shall con- 
 tend together with hot words, or shall go about with unusual 
 weapons or attendance, to the terror of the people ; and also all 
 such persons as shall be known by him to be common barrators ; 
 and also all who shall be brought before him by a constable for 
 a breach of the peace in the presence of such constable ; and all 
 such persons who, having been before bound to keep the peace, 
 shall be convicted of having forfeited their recognisance. 
 
 It seems clear, that wherever a person has just cause to fear J, 
 
 V. 
 
 that another will burn hig house, or do him, a corporal hurt, as by
 
 392 SURETY OF THE PEACE. 
 
 killing or beating him, or that he will procure others to do him 
 such mischief, he may demand the surety of the peace against 
 such person; and that every justice of the peace is bound to 
 grant it, upon the party's giving him satisfaction upon oath, that 
 he is actually under such fear, and that he has just cause to be 
 so, by reason of the other's having threatened to beat him, or 
 lain in wait for that purpose, and that he does not require it out of 
 malice or for vexation. 
 
 i Hawk. p. It seems also the better opinion, that he who is threatened to 
 (.. . 60. $.7. j )e imprisoned by another, has a right to demand the surety of 
 the peace, for every unlawful imprisonment is an assault and 
 wrong to the person of a man ; and the objection that one wrong- 
 fully imprisoned may recover damages in an action, &LC. and 
 therefore needs not the surety of the peace, is as strong in the 
 case of battery as of imprisonment, and yet there is no doubt 
 but that one threatened to be beaten may domand the surety of 
 the peace. 
 4Burm'Just. But if the justice shall perceive that surety is demanded 
 
 346.eit-s i < i- f 4.- -n i 
 
 Da'lt. c. 116. merely of malice, or for vexation only, without any just cause or 
 fear, it seemeth he may safely deny it. As in common expe- 
 rience we find it, that where a person shall, upon a just cause, 
 come arjd crave the peace against another, and hath it granted 
 f to him, when such other person shall come before the justice, he 
 
 likewise will crave the peace against the former, and will per- 
 haps surmise some cause, but yet will nevertheless be content to 
 surcease his suit and demand, so as the other will relinquish to 
 * have the peace against him, here the justice shall do well not to 
 be too forward in granting the peace thus required by the latter, 
 but to persuade him, and to show him the danger of his oath 
 which he is to take ; but yet if he will not be persuaded, but 
 will take his oath that he is in fear, where indeed he neither doth 
 fear, nor hath cause to fear, this oath shall discharge the justice, 
 and the fault shall remain on such complainant. Also, if a man 
 will require the peace, because he is at variance or in suit with 
 his neighbour, it shall not be granted. 
 
 4Bac. Abr. If ene person threaten to hurt the wife or child of another, 
 
 4 Bums' Just, surety of the peace ought to be granted; but surety of the peace 
 ought not to be granted, because one person threatens to hurt the 
 servant, or cattle, or goods of another. 
 
 Ibid. The surety of the peace shall not be granted, but where there 
 
 is a fear of some present or future danger, and not merely for a 
 battery or trespass that is past, or for any breach of the peace 
 that is past ; for this surety of the peace is only for the security 
 of such as are in fear; but the party wronged may bring his ac- 
 tion, or punish the offender by indictment, and the justice, if he 
 see cause, may bind over the affrayer to answer unto the in- 
 dictment. 
 
 2. Surety of the peace ought to be craved soon after the cause of 
 the fear on account of which it is craved ; for the suffering of
 
 SURETY OF THE PEACfE. 
 
 much tune to pass before it is craved, show's, that the party crav- 
 ing it has not been under great fear. 
 
 II. At whose request, and against whom it hall be granted. 
 
 All persons whatsoever, being of sane memory, whether citi- i Hawk.'p. 
 y.ens or aliens, or attainted of treason, foe. have a right to de- j.'^.' 60 '* 
 mand surety of the peace ; and a wife may demand it against her 
 husband threatening to beat her outrageously ; and a husband 
 also may have it against his wife. 
 
 Surety of the peace may be granted against any person what- iHawk. P 
 soever, being of sane memory, whether lit: be a magistrate or c<ClCO -- 5> 
 private person, and whether he be of full age or under age. But 
 infants and feme coverts ought to find security by their friends, 
 and not be bound themselves. 
 
 III. In ivhat manner it shall be granted and executed. 
 
 It scemeth certain that if the person 1o be bound be in the pre- r Hawk. P. 
 sence of the justice, he may be immediately committed, unless c - c<60t *. 
 he offer sureties ; and from hence it follows, a fortiori, that he 
 may he commanded by word of mouth to find sureties, and com- 
 mitted for his disobedience; but it is said, that if he be absent, 
 he cannot be committed without a warrant from some justice of 
 the peace, in order to find sureties, and that such warrant ought 
 to be under seal, and to show the cause for which it is granted, 
 and at whose S'lit, and that it may be directed to any indifferent 
 person. 
 
 The justice may make his warrant to bring the party before 5Co.59. 
 himself or some other justice, or he may make it to bring the 
 party before himself only ; for he that maketh the warrant for 
 the most part hath the best knowledge of the matter, and there- 
 fore he is the fittest to do justice in the case. 
 
 It can be executed by the persons only to whom it is directed, i Hawk. p. - 
 or some of them, unless it be directed to the sheriff, who may, c - c<60 -'- J 
 either by parol or by precept in writing, authorize an officer sworn 
 and known to serve it, but cannot empower any other pec son 
 without a precept in writing. 
 
 If the warrant be made in the common form, directing the offi- i Hawk. p. 
 cer to cause the party complained of to come before some justice - c -*-- "< 
 to find sufficient surety, and if he shall refuse so to do, to convey 
 him immediately to prison, without expecting any further war- 
 rant, until he shall willingly do the same, the officer who serves it, 
 before he makes any arrest, ought first to require the party to go 
 with him, and find sureties according to the purport of the war- 
 rant, but upon his refusal to'do either, he may carry him to jail 
 by force of the same warrant, without more. 
 
 Yet the constable or officer may bring him in th^at case before zHale.P.c. 
 <4io jtlslice- and if he refuse, thorn to -rive vrretir?, he may, hy m -.
 
 3y4> SURETY OF THE PEACE. 
 
 virtue tsS the first warrant, bring him to jail, and commit h'ur/ 
 without aTiy further warrant or mittimus. 
 
 -tBuros'Juit. Nevertheless, Dr. Burns observes, notwithstanding these grea* 
 
 350> authorities, it may not be convenient for the justice to leave so 
 
 much to tfee constable's judgment, as to determine whatshall or 
 shall not be deemed a refusal to find such sureties, for that the 
 constable is appointed a judge, in such case, by no law. And 
 much less doth it seem adviseable, to require in the warrant, as 
 is usual, that the constable shall carry the party to jail, if he shall 
 refuse to find sufficient sureties; for it. doth not appear how the 
 constable can, any way, be deemed a competent judge of that, 
 lor it is certain that he cannot administer an oath to such sureties, 
 or others, whereby to. inform himself of such sufficiency. 
 
 i Hawk. P. c. If the warrant specially direct, that the party shall be brought 
 before the justice who made it, the officer ought not to carry him 
 before any other: but if the warrant be general, to bring him be- 
 fore any justice of the peace, the officer has the election to bring 
 him before what justice he pleases, and may carry him to prison 
 for refusing to find surety before such justice. 
 
 4BurDj'Jus. -If the officer do arrest the party, and do not carry him before 
 the justice to find sureties ; or upon the refusal of the party, if 
 the officer shall arrest him and do not carry him to the jail, in both 
 these cases the officer is punishable, by the justices, for this ne- 
 glect, by indictment and fine, at their sessions : and, also, the party 
 arrested may have his action of false imprisonment for the arrest; 
 for where the officer doth not pursue the effect of his warrant, 
 his warrant will not excuse him of that which lie hath done. 
 
 ibid. Where the party comes before the justice, he must offer sure- 
 
 tie-s T or else the justice may commit him, for the justice need 
 not demand surety of him. And if the justice, having taken sure- 
 ties, was deceived in their sufficiency, he, or any other justice, 
 may afterwards compel the party to find and put in other sufficient 
 sureties, and may take a new recognisance. But if the sureties 
 die, the party principal shall not be compelled to find new sure- 
 ties, because their executors and administrators are liable. Also, 
 if a person that was bound to keep the peace hath broken his bond, 
 the justices ought, in their discretion, when thereof convicted, to 
 bind him anew. 
 
 IV. Of the Recognisance. 
 
 iHawk.r.e. u seems that the recognisance may be regulated by the discre- 
 tion of the justice, both as to the number and sufficiency of the. 
 sureties, and the largeness of the sum, and the continuance of the 
 time for which the party shall be bound, and, it hath been said, 
 that a recognisance to keep the peace as to A. B. for a year, or 
 for life,- or without expressing any certain time, (in which case it 
 shall be intended to be" for life,} or without fixing any time or place 
 for the party's appearance, or without binding him to keep the 
 peace against all people in general, is good.
 
 SURETY OF THE PEACE. 395 
 
 However, it seems to be the safest way to bind the party to ap- j Hawk.p.r 
 pear at the next sessions of the peace, and, in the mean time, to - 60 - 1 ' " 
 keep the peace as to all people, especially as to the party. 
 
 By the act referred to at the commencement of this title, in the 
 same section of the aet, " Every recognisance, taken for the keep- 
 ing of the peace or good behaviour, shall be certified, and senior 
 brought, by the justice taking the same, to the next court of ge- 
 neral sessions of the peace of the county in which he is a justice, 
 to the end that the party bound may be called, and if he make de- 
 fault, that the same may be recorded, and the recognisance, wilh 
 the record of the default, sent and certified into the exchequer." 
 
 V. How the recognisance may le forfeited. 
 
 . 
 
 He who is bound to keep the peace, and to appear at the sessions BC. -Ai>r. 
 of the peace, must appear and record his appearance, otherwise * 3 H' awk r 
 his recognisance is forfeited; and although the party, who craved c. v. :<>. s. i- 
 the surety of the peace, come not to pray that it may be continued, 
 the justices may, at their discretion, order it to be continued till 
 another sessions of the peace. Aird if the party recognised have 
 any excuse for his not appearing, it seems that the sessions is not 
 bound peremptorily to record his default, but may equitably con- 
 sider of the reasonableness of such excuse. 
 
 A recognisance for keeping the peace is forfeited by the. doing iHawk.r. r. 
 of violence to any person, whether it be done by the party bound, c ' 
 or by any other by his procurement, as manslaughter, rape, rob- 
 bery, unlawful imprisonment, &c. Also, it may be forfeited by 
 treason, and by any unlawful assembly in terrorem populi, and 
 even by words, directly tending to a breach of the peace, as by 
 challenging one to fight, or, in his presence, threatening to beat 
 him. 
 
 However, it seems that it shall not be forfeited by bare words iHk. p. 
 of heat and choler, as the calling a man knave, liar, rascal or" c - c>w) -*- * 2 
 drunkard ; for though such words may provoke a choleric man 
 to break the peace, yet they do not directly challenge him to it, 
 nor does it appear that the speaker designed to carry his resent- 
 ment any farther. And it hath been said, that even a recognisance 
 for the good behaviour, shall not be forfeited for such words, from 
 whence it follows, a fortiori, that a recognisance of the peace 
 shall not. 
 
 A recognisance for keeping the peace is not forfeited, where an i Hawk. j. 
 officer, having a warrant to arrest a person who will not suffer ^ 'HV'M, 
 himself to be arrested, beats or wounds him in an attempt to arrest 
 him. So, if a parent, in a reasonable manner, chastise his child ; 
 a master his servant, or a schoolmaster his scholar, neither of these 
 is a forfeiture of a recognisance for keeping the peace. And, 
 without enumerating all the asfw-uilts which one person may mnkft 
 upon another, without forfeiting a recognisance for keeping the 
 peace, it may, in the general, be said, that the recognisance, is not
 
 396 *I KETY OF THE GOOD BEHAVIOUR 
 
 forfeited by any assault which could have been justified in an ac- 
 tion, or upon an indictment fur the assault. 
 
 i Hawk. P. No one shall forfeit such recognisance by a bare trespass on an- 
 je '27?' *' M> ot h er ' s lands or goods, unless it be accompanied with some vio- 
 lence to the person. And it seems to be the. better opinion, that 
 a man is in no danger of such a forfeiture, from any hurt done to 
 another, by playing at cudgel?, or such like sport, by consent, be- 
 cause the intent of the parties seems no ways unlawful, but ra- 
 ther commendable, and tending, mutually, to promote activity and 
 courage; yet, it is sid that he who wounds another in fighting 
 with naked swords, does, in strictness, for/eit such a recognisance, 
 because no consent can make so dangerous a diversion lawful. 
 But, it seems that a man shall not forfeit such recognisance by a 
 hurt done to another merely through negligence or mischance : as 
 where one soldier hurts another by discharging a gun in exercise 
 without sufficient caution ; for notwithstanding such person must, 
 , in a civil action, give the other satisfaction for the damage occa- 
 sioned by his want of care, yet, he seems not to have offended 
 against the purport of such a recognisance, unless he be guilty of 
 some wilful breach of the peace. 
 
 c ^ a eo k s *u '^ ne sess i ns cannot proceed against a party for a forfeiture of 
 his recognisance, but it should be removed into the supreme 
 court, and there be proceeded upon by scire facias. 
 
 VI. How the recognisance may be discharged. 
 
 euac.Abr. If the person who has entered into a recognisance for keeping 
 P^c/cTeo^' *ke P eace 5 die> tne recognisance may be discharged, if it were not 
 ir - forfeited before : And, if the person who has craved the surety 
 
 of the peace, die, the recognisance may be discharged, but a re- 
 lease from him is not a discharge ; for as the recognisance was 
 entered into to the people, it is not in the power of the party to 
 discharge it. 
 
 SURETY OF THE GOOD BEHAVIOUR. 
 
 A man may be compelled to find sureties, both for the goo.d 
 behaviour and the peace, and yet the good behaviour includes the 
 peace, and he that is bound to the good behaviour, is, therein also, 
 bound to the peace. As the surety for the good behaviour is of 
 near affinity to the surety of the peace, it seems not to require a 
 ^.articular consideration, except, only, as to these two points : 
 
 I. For u'hat misbehaviour it is to be required. 
 
 II. For what it shall be forfeited.
 
 SURETY OF THE GOOD BEHAVIOUR. 397 
 
 I. For what misbehaviour it is to be required. 
 
 By the act, sess. 36, c. lOt. s. I. referred to at the commence- 
 ment of the foregoing title, justices are authorized " to cause to 
 come before them all persons who shall threaten to break tin- 
 peace, or who be not of good farr.t, to find sufficient security lor 
 the peace, or for their good behaviour, or both, as the case may 
 require ; and if they refuse to find such security, to commit them 
 to prison until they shall find the same." 
 
 It is upon the very broad construction of the words, who be nol 
 f>f good fame, in our act, and in the statute 34- Edw. 3. c. 1. also 
 relating to the powers of justices of the peace, that the authority, 
 to bind to the good behaviour, is founded. 
 
 In the construction hereof, there seem to have been some opi- 1,'iawk. '_ 
 nions, that the statute, speaking of those that be not of good 
 fame, means only such as are defamed, and justly suspected that 
 they intend to break the peace, and that it does not any Avay ex- 
 tend to.those who are guilty of other misbehaviours not relating 
 to the peace ; but this seems much too narrow a construction, 
 since the above mentioned expression ofpcrsons of evil fame, in 
 common understanding, as properly includes persons of scanda- 
 lous behaviour in other respects, as those who by their quarrel- 
 some behaviour give just suspicion of'their readiness to break the 
 peace ; and accordingly it seems to have been always the better 
 opinion, that a man may be bound to his good behaviour for many 
 causes of scandal which give him a bad fame, as being contrary 
 to good manners only; as for haunting bawdy houses with women 
 of bad fame, or for keeping bad women in his own house, or fo; 1 
 speaking words of contempt of an inferior magistrate, as a justict- 
 of the peace, or mayor of a town, though he be not then in tin: 
 actual execution of his office, or of an inferior officer of justice, 
 as a constable, and such like, being in the actual execution oi' 
 Jiis office. 
 
 However, it seems the better opinion that no one ought to be i iinwu. i . 
 bound to the good behaviour for any rash, quarrelsome, or un- * c ' 
 mannerly words, unless they either tend directly to a breach of 
 the peace, or to scandalize the government, by abusing the-- 
 who are entrusted by it with the administration of justice, or t 
 deter an pflicer from doing his duty : and therefore it seems that 
 he who barely calls another rogue, or rascal, or liar, or drunkard, 
 ought not for such cause to be bound to the good behaviour. 
 
 However, Hawkins observes, I cannot find any certain precise 
 rules for the direction of the magistrate in this respect, and there- 
 fore am inclined to think that he has a discretionary power* t'.i 
 
 * Discretion, says Lord Coke, (5 Rep. 100,) is a science or under- 
 standing to discern between falsity and truth, between wrong and rijh(.
 
 
 398 SURETY OF THE GOOD BEHAVIOUR. 
 
 take such surety of all those whom he shall hare just cause to sus- 
 pect to be dangerous, quarrelsome, or scandalous, as of those who 
 sleep in the day, and go abroad in the night, arrd of such as keep 
 suspicious company, and of such as are generally suspected to be 
 robbers, and of eaves drop pers and common drunkards, and of all 
 other persons whose misbehaviour may reasonably be intended to 
 bring them within the meaning of the statute, as persons of evil 
 fame, who being described by an expression of so great latitude, 
 seem in a great measure to be left to the judgment of the magis- 
 trate. But if he commit one for want of sureties, he must show 
 the cause, &.c. with convenient certainty. 
 
 Richmond <r. In an action of trespass and false imprisonment, it appeared 
 icfjohn*. that the plaintiff was arrested by virtue of a warrant, dated the 
 Hep.393. 5th July, 1811, issued by the defendant, a justice of the peace. 
 The warrant was as follows : " Columbia, to wit, to any consta- 
 ble, &c. Whereas Sylvanus Richmond, of the city of Hudson, &c. 
 on the 5th July, at the office of H. Dayton, esq. at, kc. the said 
 justice being present, made inquiry of the said justice of and 
 concerning a certain suit which had been tried on the forenoon of 
 the said day, in which the =>J Richmond was defendant ; and on 
 being informed by the said Dayton, the justice who tried the said 
 eause, that a judgment was given against him, the said Richmond. 
 for fifty cents, did, in a manner the most indecent, unmannerly, 
 and without the least provocation given by the said Dayton, say, 
 that he the said Da>yton, in giving said judgment, had behaved and 
 had treated him like a damned old rascal, together with many 
 other words reflecting highly upon the said Dayton in his official 
 and judicial character; in so doing he, the said Richmond, treated 
 in a most contemptuous manner the authority of the good people 
 of the state of New-York, and their dignity. These are, therefore, 
 in the name of the people, &c. to command you forthwith to ap- 
 prehend him the said Sylvunus Richmond, and to deliver him to 
 the custody of the jailer in and for the said county, and the said 
 jailer is hereby commanded to receive him into his said custody, 
 and him there safely keep until he shall find sufficient security for 
 his personal appearance at the next general sessions of the peace, 
 to be holden in and for the said county, to answer the informa- 
 tion and complaint aforesaid, and also for his good behaviour in 
 the mean time towards the good people of the said state, and in 
 a special manner towards the said H. Dayton, the aforesaid jus- 
 tice. Given," fyc. The facts stated in the warrant are admitted 
 by the defendant's counsel to be true. The constable who arrest- 
 ed the plaintiff on the warrant, carried him immediately before a 
 justice of the peace, who took bail and discharged him. The de- 
 fendant was not acting in any manner as a justice of the peace at 
 
 between shadows and substance, between equity and colourable glosses 
 and pretences, and not to do according to their wills and private affections.
 
 SURETY OF THE GOOD BEHAVIOUR. 399 
 
 the time the words were spoken, and no other or further vio- 
 lence or threats were used, and the plaintiff left the office of the 
 defendant before the warrant was issued and served upon him. A 
 verdict was found for the plaintiff subject to the opinion of the 
 court. Per curiam. The warrant was no further executed than 
 by the arrest of the plaintiff, and taking him before a magistrate, 
 who let him to bail. The object of the warrant was only to bind 
 the party to his good behaviour, and until the next sessions ; and 
 this, under the circumstances of the case, was a laudable and 
 commendable object. The direction in the warrant to have the 
 plaintiff io the mean time committed to jail, not being executed, 
 may be laid out of this case as immaterial. The warrant was ex- 
 ecuted so far as rtspected the lawful object of it, and no further. 
 The statute authorizes and makes it the duty of the magistrate 
 to bind to their good behaviour all persons who threaten to break 
 the peace, or who are not of good fame. And the decision of the 
 K. B., after much argument and discussion in the case of Regina 
 v. Langlcy, (2 Salk. 697. 2 Ld. Raym. 1029.) justifies such an act 
 as the one done in this case. It was there held, that words of 
 slander spoken to a magistrate, in respect to his official trust, 
 were to be classed among petit offences, which are contra bono* 
 mores, and for which, when spoken to a magistrate in the actual 
 execution of his office, he might commit, and when spoken to him 
 out of court, he might require surety for the peace and for good 
 fcehavioar, and in default thereof, commit. The defendant, in this 
 case, ought to have immediately required of the plaintiff the sure- 
 ty. The case does not state whether he did so or not. Perhaps 
 the plaintiff might hav left him before he tiad time ; and as that 
 was not made a point, and as the warrant was issued on the same 
 day with the gross abuse, and the plaintiff had left the defendant's 
 office, we must presume that tha plaintiff had refused to give the 
 recognisance, or withdrew before it could be demanded. The 
 defendant is accordingly entitled to judgment. 
 
 A woman may demand surety of the peace against her husband, * vm.3s. 
 if he be guilty of ill usage to her. 
 
 If a person have been convicted~of a misdemeanour, it is usu- Bae. Abr- 
 ally part of the judgment, that he shall find surety for his good 44X 
 behaviour for some time. 
 
 II. For what it shall be forfeited. 
 
 It has been laid down as a general rule, that whatever will be i Hawk. p. 
 a good cause to bind a man to his good-behaviour, will forfeit a c -- e * 
 recognisance for it, yet this has been since denied; and indeed 
 does by no means seem to be maintainable, because the statute, 
 in ordering persons of evil fame to be bound in this manner, seems 
 in many cases chiefly to regard the prevention of that mischief 
 which they may justly be suspected to be likely to do; and ic 
 that respect requires them to secure the public from that danger
 
 :QO TOWNS. 
 
 which may probably be apprehended from their future beha- 
 viour, whether any actual crime can be proved upon them or not; 
 and it would be extremely hard in such cases to make persons 
 forfeit their recognisance, who yet may justly be compellable to 
 give one, as those who keep suspicious company, or those who 
 spend much money idly, without having any visible means of get- 
 ting it honestly, or those who lie under a general suspicion of 
 being rogues. 
 
 jKawk. p. However, it seems that such a recognisance shall not only be 
 forfeited for such actual breaches of the peace, for which a rte- 
 cognisance of the peace may be forfeited, but also for some 
 others, for which such a recognisance cannot be forfeited ; as 
 for going armed with great numbers to the terror of the people, 
 or speaking words tending to sedition, and also for all such actual 
 misbehaviours which are intended to be prevented by such a re- 
 cognisance, but not for barely giving cause of suspicion of what 
 perhaps may never actually happen. 
 
 Abr * The recognisance is not in general forfeited by words of heat, 
 as calling a person knave, rascal, liar, or drunkard ; but if words 
 of heat are spoken to a justice of the peace in the execution of 
 his office, this is such misbehaviour as amounts to a forfeiture of 
 a recognisance for being of good behaviour, for the public goo,<l 
 requires that magistrates should be treated with respect. 
 
 TOWNS, 
 
 I. Town officers, when and how lo be chosat. 
 
 II. Town meetings, when and how to be held. 
 
 III. Special town meetings. 
 
 IV. Vacancies in town offices, how filled. 
 V. Oaths of town officers. 
 
 VI. Town officers ivhen to give security, and penalties for refusing 
 
 to serve, or neglecting tu qualify. 
 
 VII. Ditties of town clerks. 
 
 VIII. Regulations to be made in town meetings, and penalties and 
 
 suits for the violation of them. 
 
 IX. Rewards for destroying noxious animals and tveeds. 
 X. Fences and fence viewers. 
 XI. Pounds. 
 
 XII. Dividing towns and boundaries of towns. ' 
 
 XIII. Town charges. 
 
 I. Town officers, when and how to be chosen. 
 
 By .the act relative to the duties and privileges of towns, sess. 36, 
 c. 35, s. 1.2R. L. 125, "the freeholders and inhabitants of the se- 
 veral towns in this state, who are, or shall be qualified by law to
 
 TOWNS. 
 
 vote at town-meetings, shall assemble together and hold town- 
 meetings in their respective towns on the first Tuesday in April in 
 every year, awl then and there to choose one supervisor, oe 
 town-clerk, not less than three or more than five assessors, one or 
 more collectors, each of whom shall be liable only for the inonic 
 which they are respectively directed to collect, in such parts of 
 the town as .shall be assigned to them by the supervisor, two over- 
 seers of the poor, and three commissioners of highways for the. 
 same town, each of which town officers before mentioned shall 
 be, a freeholder and inhabitant of the same town ; and^so many 
 constables, fence-viewers, and pound-masters for the same town, 
 being inhabitants of the same town, as to the freeholders and in- 
 habitants of said town so met, or the major part of them, shall 
 seem necessary and convenient; and as many overseers of high- 
 ways as there are road districts in each of the towns respective!}', 
 except in the counties of Suffolk, Queens, Kings and Richmond ; 
 and the freeholders and inhabitants of the several towns in those 
 counties to choose as many overseers of highways as they shall 
 deem necessary and convenient; which said several officers shall 
 hold their respective offices for one year, and until others shall be 
 chosen in their places ; and the said supervisor, town-clerk, asses- 
 sors, collectors, overseers of the poor, commissioner of highways 
 and constables, shall be chosen by ballot ; and in case any of the 
 officers so thosen in any,such town shall refuse to serve, or die, or 
 remove out of the town, or become incapable of serving, before 
 the next annual town-meeting, then, and in every such case, it shall 
 be lawful for the freeholders and inhabitants of such town, to sup- 
 ply every such vacancy, in manner aforesaid, at a special town- 
 meeting to be notified and held for that purpose in the manner 
 herein after directed." But no person hereafter to be elected or ap- 
 pointed a constable or collector, in any town or ward in this state, 
 shall incur any penalty by such refusal to serve as is herein before 
 mentioned, s. 1. And see post, s. 9. 
 
 II. Town-meetings when and how to Ic held. 
 
 % 
 
 By the first section above recited, of the act relative to towns, 
 town-meetings are to be held on the first Tuesday in April in every 
 year. " In such of the towns in the several counties of this state 
 where the town-meetings have, by any laws in force immediately 
 before the passing of this act, been authorized to be held at any 
 other day than the first Tuesday of April in each year, such town- 
 meetings shall so continue to be held, any thing in this act to the 
 contrary notwithstanding." s. 32. 
 
 " For the more orderly holding town-meetings, it shall be and 
 is hereby made the duty of the justices of the peace for the time 
 being, to attend at every town-meeting hereafter to be held in and 
 for the town in which they respectively reside; and the said 
 justice s of the peace, or such of them as shall attend at such meet- 
 
 [ M ]
 
 402 TOWNS. 
 
 ing, shall preside at, and superintend the same, and take care that 
 the business thereof be orderly and regularly conducted ; and shall, 
 in case of dispute, determine who have, and who have not a right 
 to vote or be elected at such meeting according to law ; and if no 
 justice of the peace shall reside in the town at the time of holding 
 such meeting, then the clerk of the town who was elected at the 
 last preceding meeting ; arid in case there shall be no justice of 
 the peace or town-clerk attending at any such town-meeting, then 
 such person as shall be chosen by the freeholders and inhabitants 
 at such meeting to preside, shall preside at such meeting, and have 
 and exercise all the powers and authorities hereby invested in the 
 justices." s. 2. 
 
 "Every male person, being a citizen of this state, who shall be 
 above the age of twenty-one years, and shall have" resided in any 
 town six months next preceding such town-meeting, and paid 
 taxes within the same, or shall -be possessed of a freehold, or 
 shall have rented a tenement of the yearly value of five dollars, 
 for the term of one year, within the same, shall have a right to 
 vote at such meeting, and no other person." s. 3. 
 
 " No town-meeting shall be held longer than two days, and shall 
 only be held open between sunrise and sunset, and shall be held 
 :at such place in each town as the freeholders and inhabitants 
 thereof at their town-meeting shall from time to time appoint." s. 4. 
 
 III. Special totvn-mtetings. 
 
 " Whenever it shall be necessary to hold a town-meeting in 
 either of the said towns, or wards in any of the said cities, for 
 any of the purposes required by this act, at any time between any 
 of the said annual town-meetings, due notice thereof shall be 
 given by the town-clerk, in writing under his hand, specifying the 
 time, place and purposes of such town-meeting, and fixed up at 
 four or more of the most public places in the same^town or ward, 
 at least eight days before the time therein appointed for holding 
 such town-meeting, and the town-clerk of each of the said towns 
 is hereby required to give such notice whenever it shall be ne- 
 cessary to hold such town-meeting for electing any of the offi- 
 cers aforesaid in such town, or when he shall be required to do so 
 by any^ twelve or more freeholders of such town or ward, and 
 when according to law any such election jn any ward of any city 
 shall become necessary." s. 16. 
 
 IV. Vacancies in town-offices, how filled. 
 
 " If any of the said cities or towns shall neglect to choose such 
 officers as aforesaid, or any of them, or in case any of the officers 
 so chosen in and for any city or town shall refuse to serve, or die, 
 or remove out of the city or town for which he shall be chosen, 
 or become incapable of serving before the next annual town-
 
 TOWNS. 403 
 
 meeting or election after he shall be chosen, and the city or town 
 for which he was chosen shall not, within fifteen days next after 
 such fefusal, death, removal, or incapacity happens, choose ano- 
 ther in the room of such person, according to law ; in every such 
 case it shall and may be lawful for any three of the justices of the 
 peace in the same county, residing in such city, or in or near to 
 such city or town, and they are hereb)' required to nominate, and 
 by warrant under their hands and seals, to appoint all and every 
 such officers as aforesaid, as the freeholders and inhabitants of the 
 same city or town ought to have chosen as aforesaid ; and each 
 of the said officers so appointed shall hold his office for so long 
 time, and have the same powers, and be liable to the same penal- 
 ties as if he had been elected to the same office by the freehold- 
 ers and inhabitants of such city or tewn, or according to the acts 
 relating to the choice of such officers in any such city." s. 5. 
 
 In an action of trespass, for taking the plaintiff's goods, the de- weodr. 
 fendant justified as a constable, under an appointment of three ***% 
 justices, pursuant to the act, and that he took the goods as consta- Rep. 1.9. 
 ble, by virtue of an execution issued against the goods of the ^"aw"" 1 *' 
 plaintiff: it was held that the appointment made by the justices J11 - 
 was a judicial act; and being within their jurisdiction, was con- 
 clusive and valid, until set aside, or quashed on ce.rt iorari ; and 
 could not be questioned in a collateral action. , 
 
 V, Oaths of toivn officers. 
 
 " Each supervisor, town-clerk, assessor, commissioner of high- 
 ways, overseer of highways, overseer of the poor, constable, and 
 fence-viewer hereafter to be elected or appointed, shall, before 
 he enters upon the execution of his office, and within fifteen days 
 after such election or appointment, take and subscribe an oath be- 
 fore some justice of the peace in the form hereafter prescribedjbr 
 such officers respectively to take, that is to say : every supervisor 
 shall take and subscribe an oath in the following form, to wit : 
 
 'I , do solemnly and sincerely promise and swear (or affirm, 
 
 as the case may be) that I will in all things, to the best of my 
 knowledge and ability, faithfully and impartially execute and per- 
 form the trust reposed in me as supervisor of the (here insert the 
 name of the place) In the county of (here insert the name of the 
 county) and that I will not'pass any account or any article there- 
 of, wherewith I shall think'the said county is not justly chargeable, 
 nor will I disallow any account or any article thereof wherewith 
 I shall think the said county is justly chargeable.' And every 
 town-clerk shall take and subscribe an oath in the following form, 
 to wit: 'I - , town-clerk of the town of , in tha county of 
 
 , do solemnly and sincerely promise anjl swear (or affirm) that 
 
 I will faithfully and honestly keep all the books, records, writings 
 and papers, by virtue of my said office of town-clenk, committed, 
 and which shall from time to lime be committed unto me, and in
 
 404 TOWNS. 
 
 all things, to the best of rny knowledge and understanding, well 
 and faithfully perform the duties of my said office of town-clerk, 
 without favour or partiality.'. And every assessor shall take and 
 subscribe an r/ath in the following form, to wit: 'I, , do so- 
 lemnly and sincerely promise and swear, (or affirm) that I will 
 honestly and impartially assess the several persons and estates 
 v.ithin Hie (here insert the name of the place) in the county of 
 (here insert the name of the county) and that in making such as- 
 sessments I will, to the best of my knowledge and judgment, ob- 
 serve the directions of the several laws of this state, directing and 
 requiring such assessments to be made.' And every commissioner 
 of highways shall take and subscribe an oath in the following 
 
 form, to wit : 'I, , do solemnly and sincerely promise and 
 
 swear, (or affirm) that I will in all things, to the best of my know- 
 ledge and understanding, well and .faithfully execute the trust re- 
 posed in me as a commissioner of highways for (here insert the 
 name of the town and county) without favour or partiality.' And 
 every overseer of the poor and constable shall take and subscribe 
 
 an oath in the following form, to wit: 'I, , do solemnly and 
 
 sincerely promise and swear, (or aflirm)thatl will in all things, to 
 the best of my knoAvledge, understanding and ability, well and 
 faithfully execute and perform the trust reposed in me as an over- 
 seer of the poor, (or constable, as tho case may be) of the (here 
 insert the name of the place,) in the county of (here insert the 
 name of the county).' And every overseer of highways, and 
 fence-viewer, shall take and subscribe an oath in the following 
 
 form, to wit : 'I, , do solemnly and sine* rely promise 
 
 and swear, (or affirm) that I will, in all things, to the best of my 
 knowledge and ability, well, faithfully and impartially, execute and 
 perform the trust reposed in me as an overseer of highways, (or a 
 fence-viewer, as the case may be.) in the town of (here insert the 
 name of the town,) in the county of (here insert the name of 
 the county):' And further, every justice of the peace before 
 whom such oath shall be taken and subscribed as aforesaid, shall, 
 without fee or reward, certify under the same writing, the day 
 and year when the same oath was taken, and subscribe his name 
 thereto, and then deliver the same writing to the person taking 
 the same oath, who shall, within eight days thereafter, transmit 
 or deliver the same to the clerk of the town for which such offi- 
 cer, so taking such oath, was elected or appointed." s. 7. 
 
 VI. Town officers, when to give security, and penalties for refusing 
 to serve and neglecting to qualify. 
 
 By the latter clause of the seventh section, " if any supervi- 
 : jr, assessor, commissioner ot highways, overseer of highways, 
 overseer of the poor, constable, or fence-viewer, of any town, 
 shall not take and subscribe such oath as aforesaid, and transmit 
 or deliver the same to the town-clerks as aforesaid, within tb,e
 
 TCHV.XS. 
 
 time hereby limited, or if any collector or constable shall not 
 give such security as is by tow required within the time for that 
 purpose limited, then, and in every such case, such neglect shall 
 be deemed a refusal to serve in such office, and the city or town 
 in which such officer was chosen may thereupon proceed to a neu 
 choice according to law." s. 7. 
 
 By sect. 1. "Every collector chosen or appointed in any sue!; 
 town, or in any of the wards of any city in this state, shall, be- 
 fore he enters upon the duties of his ollice, and within eight days 
 after he shall have received notice from the supervisor of the 
 amount of the tax list, execute to the supervisor of, such town or 
 ward, a bond, with one or more sullies, to be approved of by the 
 supervisor of such town, in double the amount of the taxes to bo 
 collected by such collector, and conditioned for the due and faith- 
 ful execution of the duties of his office ; which bond, so taken and 
 approved of by the supervisor of such town or ward, shall In- 
 lodged with the said supervisor; and in case such bond shall be- 
 come forfeited, and the amount of the tax list cannot bo recovered 
 from such collector, in pursuance of the section of the act, enti- 
 tled, 'an act for the assessment and collection of taxes,' it shall 
 then bo the duty of the treasurer of the county to give notice to 
 tln> supervisor with whom such bond is lodged, of the amount 
 due from the said collector, and the said supervisor shall then 
 cause the said bond. to be put in suit, and shall be entitled to re- 
 cover thereon the amount due from such collector, with costs of 
 suit ; which sum, when recovered, shall by such supervisor be ap- 
 plied in the same manner and to the same purposes to which such 
 collectors ought to have applied the same." s. 1. 
 
 By the same section, " every constable chosen or appointed its 
 every such town or ward shall, before he enters upon the duties 
 of his office, and within ten days after his election or appointment. 
 to be approved of by the town-clerk, or by the supervisor of such 
 town or ward, execute under their hands and seals, before such 
 supervisor or town-clerk, and cause, to be filed in the office of 
 the clerk of such town, an instrument in writing, by which such 
 constable and his sureties shall jointly and severally agree, to pay 
 to each and every person, such sum of money as the said con- 
 stable shall become liable to pay, for or on account of any exrri' 
 tion which shall be delivered to such constable for collection ; 
 and on which instrument the said town-clerk or supervisor oC-trtich 
 town or ward shall endorse that he approves of the sureties there- 
 in named, and every such constable and his sureties shall jointly 
 and severally be responsible to each and every person to whom 
 such constable shall become liable to pay any sum of money for 
 or on account of any execution which shall be delivered to such 
 constable for collection, in the same manner as such constable 
 would have been responsible had this act not been passed; and a 
 copy of such instrument, certified by the clerk of such town,
 
 406 TOWNS. 
 
 shall be prima facie evidence in all courts of the execution of such 
 instrument by such constable and his sureties." s. 1. 
 
 " If any person hereafter chosen or appointed a supervi- 
 sor, town-clerk, assessor, collector, commissioner of highways, 
 overseer of the poor, or constable, as aforesaid, shall refuse to 
 take upon him, or to serve in such office, or if any such supervi- 
 sor, town-clerk, assessor, commissioner of highways, or overseer 
 of the poor, shall proceed in the execution of such office, before 
 he shall have taken and subscribed such oath as aforesaid, or if 
 any .;uch collector or constable shall proceed in the execution of 
 his office bsfore he shall have given such security as is or shall be 
 required by law, then, and in every such case, every person so 
 neglecting, or refusing, or doing, shall forfeit to the people of this 
 state, the sum of sixty-two dollars and fifty cents, to be recovered 
 by action "of debt, or information, in any court of record ; and the 
 attorney-general of this state is hereby required to prosecute for 
 all such penalties and forfeitures, and to pay the same, when reco- 
 vered, to the treasurer of this state, for the use of the people 
 thereof: Provided always, That nothing in this act contained 
 shall be construed to compel any Quaker, or reputed Quaker, to 
 act as an assessor or collector, who shall affirm that he hath con- 
 scientious scruples about executing the duties of such office." s. 9. 
 " If any person hereafter chosen or appointed an overseer of 
 highways^ fence-viewer, or pound-master, shall neglect or refuse 
 to take upon him the said office, or if such overseer of highways, 
 or fence-viewer, shall proceed in the execution of his office before 
 he shall have taken and subscribed his oath as aforesaid, then, 
 and in every such case, such person shall forfeit and pay the sum 
 of twelve dollars and fifty cents, to be recovered, with costs, be- 
 fore any justice of the peace by action of debt, the one moiety 
 thereof to the use of the poor of the town for which such officer 
 was chosen or appointed, and the other moiety thereof, with costs 
 of suit, to the use of any person who shall prosecute for the same 
 to effect." s. 10. 
 
 Ha ood T In error on certiorari from a justice's court, Wheeler declared 
 winter, in the justice Vcourt in debt, for that Haywood had been duly ap- 
 Rep?43' pointed one of the overseers of highways, in and for the town of 
 Grainger, by th<i commissioners of highways, agreeably to the act, 
 Sec. and that after being so appointed, he neglected and refused to 
 serve.; by reason whereof he had incurred the penalty of twelve 
 dollars and fifty cents. The defendant pleaded not guilty. Hay- 
 wood, previously to being appointed by the commissioners, for the 
 refusing which appointment he was now sued, had been elected 
 overseer of the. same district at the preceding town-meeting, and 
 having refused to accept the office, had been sued by one of the 
 commissioners for the neglect, and the penalty recovered against 
 him, and the vacancy to which he was now chosen had been oc- 
 casioned by such refusal. 
 
 SPENCER, J. delivered the opinion of the court. By the first sec-
 
 TOWNS.. 407 
 
 tion of the act relative to the duties a.nd privileges of towns, over- 
 seers of highways are to be annually chosen ; and the ninth sec- 
 tion of the act imposes a fine of twelve dollars and fifty cents for 
 neglecting or refusing to take the ofi.ice. The fourteenth section 
 of the act regulating highways, (ante, p. 144-,) provides, that if any 
 vacancy in the office of overseer of highways shall happen, by 
 death or otherwise, the commissioners of the town shall appoint 
 " othej or others in his or their stead," who are rendered liable to 
 the same penalties as overseers chosen are liable to. The com 
 missioners exceeded their powers in appointing the same person 
 who had been elected, and refused to qualify to the same office. 
 They were confined, by the terms of the act, to the appointment 
 of some person, other than the person refusing. The legislature 
 considered the penalty as an equivalent for the service ; and if 
 the construction be tolerated which the court below have adopt- 
 ed, the person refusing to accept the office, for which he might 
 have very urgent reasons, would be subjected to endless litigation, 
 if not ruin. Whether, therefore, there was legal proof of the re- 
 covery of the former penalty, or not, Hayicood stood excused to 
 be sued for the penalty, and was not liable to be appointed to the 
 office. Judgment re versed. 
 
 VII. Duties of town-clerks. 
 
 " It shall be and hereby is made the duty of the clerks of the 
 several towns in this state, on or before the second Tuesday of 
 May after every annual election fof town officers in the respec- 
 tive towns of this state, to transmit to the respective county clerks 
 of the county in which the respective towns are situate, a certi- 
 fied copy of the names of the constables chosen at such elec- 
 tions; and if any town-clerk shall wilfully omit to perform the du- 
 ty hereby required of him ; such omission is hereby declared to 
 be a public misdemeanour, and on conviction thereof, the court, 
 before whom such conviction shall be had, shall and may adjudge 
 the person convicted to pay a fine not exceeding te dollars." s. 8. 
 
 "Upon the death or the expiration of the office of the town- 
 clerk of any town, all the records, books, writings and papers, be- 
 longing to the same office, shall be delivered to the. successor in 
 office uporf the oath of the preceding town-clerk, or in case of his 
 death, upon the oath of his executors or administrators; and if 
 any such preceding town-clerk, or his executors or administra- 
 tors, shall refuse or neglect to deliver the same upon pith as 
 aforesaid, being lawfully dejnanded, every such person shall for- 
 feit to the people of this state for every such refusal or neglect, 
 the sum of two hundred and fifty dollars, to be recovered by ac- 
 tion of debt, or by information, in any court of record ; and the. 
 attorney-general of this state is hereby required to sue for such 
 forfeiture, and pay the same, when recorered, to the treasurer of 
 this state, for the use of the people of this state." s. 1 1 .
 
 TOW.% .- 
 
 By sect. 12, the town-clerk is required tu record tlic rules and 
 regulations made in town-meetings, as to which see the next sec- 
 tion of this title. 
 
 (As to the duty of town-clerks in relation to strays, vide STK 
 
 VIII. Regulations to be made in toicn-meeting, and penalties and 
 suits for the violation of them. 
 
 The freeholders and inhabitants of each of the said town?. 
 are hereby authorized, at their respective annual town-meetings, 
 oral any other town-meeting held for that purpose in their re- 
 spective towns, from time to time, to make such prudential rules 
 and regulations as the majority of the freeholders and inhabitants 
 of such towns respectively so assembled at their respective town- 
 meetings, and having a right to vote there, shall, from time to 
 time, judge necessary and convenient for the better improving of 
 their common lands in tillage, pasturage, or any other reasonable 
 way. and for making, maintaining, and amending their partition 
 and circular fences for their lands, gardens, orchards and mea- 
 dows, and for ascertaining and directing the use and management, 
 and the times and manner of using their common lands and mea- 
 dows, and the other commons, and the times, places, and manner 
 of permitting or preventing cattle, horses, sheep and swine, or 
 any of them, to go at large, and for impounding all manner of 
 cattle and creatures whatsoever, and for ascertaining the suffici- 
 ency of all partition and other fences, and for making and main- 
 taining such and so many pounds, and at such places as nay hi- 
 necessary and convenient, and for ascertaining and limiting the 
 fees to be taken by the fence-viewers respectively, and to impose 
 such penalties on the offenders against such rules and regulations, 
 or any of them, as the majority of such freeholders and inhabit- 
 ants so assembled shall, from time to time, deem proper, not ex- 
 ceeding twelve dollars and fifty cents for each offence, to be re- 
 covered, with costs of suit, by the supervisor of the town where 
 the offence shall be committed, in the name of the supervisor of 
 such town, for the use of the same town, by action of debt, before 
 any justices of the peace residing in any other town in the same 
 county ; and no such action shall be abated or discontinued by 
 the death or expiration of the office of such supervisor, but may 
 be continued and prosecuted to effect by his successor in office; 
 and all such penalties, when recovered, shall be applied for the 
 use of the town where such offence shall be committed, in sucb 
 manner, and for such purposes, as the freeholders and inhabitants 
 of the same town where such offence shall be committed, at their 
 town-meetings, or the majority of them there assembled shall, 
 from time to time, direct and appoint : .inJ further, all such 
 rules and regulations so to be made as aforesaid in each town, 
 shall be recorded by the town-clerk of the same town, in a book 
 by him to be provided for that purpose, and shall remain in full 
 force until the same shall be revoked or altered, or new made in the
 
 TOWNS. 
 
 manner aforesaid at some subsequent town-meeting, all which al- 
 terations, and new rules and regulations, shall also, from time to 
 time, be recorded as aforesaid, and shall continue in force until 
 revoked, altered, or new ruade as aforesaid." s. 12. 
 
 " It shall be lawful for the defendant in any action commenced 
 pursuant to the preceding section of this act, for any injury com- 
 mitted on the common lands belonging to any of the towns within 
 thisstata, to justify on a plea of title, and the defendant interpos- 
 ing such plea of justification, shall commit the same to writing, 
 and having signed the same in the presence of the justice before 
 whom the action shall have been brought, shall deliver the said 
 plea to such justice, who shall then countersign the same, and de- 
 liver it to the plaintiff; and thereupon it shall and may be lawful 
 for the said plaintiff to commence and prosecute such action 
 against the said defendant in the court of common pleas in the 
 county in which such common lands are situate ; and if such 
 plaintiff shall recover in such action, the defendant shall be liable 
 to pay double costs to the said plaintiff, and on the trial of such 
 action, the plea signed by the defendant shall be conclusive evi- 
 dence that he relied on his title to defend himself against such ac- 
 tion, and evory justice to whom such plea shall be tendered, 
 shall, before he shall receive the same, exact from the defendant, 
 together with one sufficient surety, a recognisance in the sum of 
 fifty dollars, condilioned that if such plaintiff shall commence a 
 suit before the next court of common pleas, for the recovery of 
 damages for such trespass, such defendant shall appear and put in 
 special bail in such court within twenty days after the first day of 
 the then next term of the said court, and in every case iij 
 which such plea shall be tendered, and the defendant shall not 
 forthwith enter into such 1 ! recognisance, the justice shall proceed 
 in the same manner as if such plea had not been tendered." s. 13. 
 
 " On every trial to be had by virtue of the preceding section 
 of this act, the freeholders and inhabitants of the town in which 
 such common lands are situate, (except the plaintiff in such ac- 
 tion,) shall be, and are hereby declared to be competent wit- 
 nesses." 8. 14. 
 
 " It shall and may be lawful for the inhabitants of any town in 
 this state, for their convenience, and by a vote of their annual 
 town-meetipg, to direct the clerk of such town to procure and 
 deposit in his office a standard brass yard, to be sealed by the 
 person authorized to seal and compare such yard, and to be con- 
 sidered as the true yard for all the purposes aforesaid." s. '29' 
 
 IX. Rewards for destroying noxious animals and weeds. 
 
 " It shall be lawful for the freeholders and inhabitants of eacji 
 of the said towns at their respective annual town-meetings, or at 
 any other town-meeting held for that purpose, to make such pro- 
 visions, and allow such rewards for the destruction of wolves,
 
 410 TOWNS. 
 
 bears, panthers, wild cats, and foxes, and to direct such sum of 
 money to be raised, in such town for that purpose, and for pro- 
 secuting and defending the common rights of such town, as the 
 major part of the freeholders and inhabitants so assembled at 
 any such town-meeting shall deem necessary and proper ; which 
 money shall be raised and levied, together with, and in the same 
 manner as the money raised in such town for the support of the 
 poor shall be raised and levied." s. 15. 
 
 By the act, sess. 36. c. 49. s. 12. 2 R. L. 14-1. "It shall and 
 may be lawful for the supervisors of each and every of the coun- 
 ties within this state, or a major part of them, at their annual meet- 
 ings, to declare whether any, and what reward shall be given by 
 their respective counties for the killing of any wolf or wolves, 
 panther or panthers therein, and the said reward shall be a county 
 charge, and assessed, raised and levied, together with the other 
 necessary and contingent charges of the county, and shall be paid 
 in such manner, and under such restrictions, as the board of su- 
 pervisors, allowing the reward, shall direct: Provided, That no 
 reward so to be allowed by any of the said board of supervisors, 
 for the killing of any wolf or panther, shall exceed the sum of 
 twenty-five dollars." 
 
 By the act,sess. 36. c. 35. relative to duties and privileges of towns. 
 . "it shall and may be lawful for the freeholders and inhabitants 
 of the several towns in this state, at their respective annual town- 
 meetings, to make such provisions and allow such rewards for the 
 destruction of the noxious weed, commonly called the Canada 
 thistle, as the major part of the freeholders and inhabitants, so as- 
 sembled at any such town-meeting, shall deem necessary and 
 proper; and the money so allowed for such rewards, shall be raised 
 and levied, together with, and in the same manner as the other 
 expenses of such town shall be raised." s. 24-. 
 
 " It shall be lawful for the freeholders and inhabitants of the 
 several towns in the counties of Essex, Franklin, Seneca, Co- 
 lumbia, Albany, and Clinton, -at their respective annual town- 
 meetings, or at any other town-meeting held for that purpose, to 
 make provision for destroying noxious weeds on the lands of any 
 persons who shall be actually resident in the said towns respec- 
 tively, at the exclusive expense of such person." s. 26. 
 
 X. Fences and Fence-viewers. 
 
 By the last cited act, " where the lands or meadows of any two or 
 more persons shall join each other, each of them shall make and 
 maintain a just proportion of the division fence between them, ex- 
 cept such persons shall choose to let their lands or meadows lay 
 vacant and open; and in case any disputes shall arise concerning the 
 part or proportion of the fence to be made and maintained by either
 
 TOWNS. 41 
 
 party, the same shall be settled by the fence-viewers of such 
 place where such lands or meadows shall be situated, or any two 
 of them, whose decision shall be conclusive ; and if any person 
 shall neglect or refuse to make and maintain his or her part or 
 proportion of such fence, or shall permit the same to be out of 
 repair, every such person shall be liable to, and shall pay, all 
 such damages as shall accrue to his or her neighbours thereby, 
 to be appraised and ascertained by the fence-viewers of the same 
 place, or any two of them, not interested therein, and to be re- 
 covered with costs in any court having cognizance of the same ; 
 and in case the party so neglecting or refusing, shall continue such 
 neglect or refusal for the space of one month after notice and re- 
 quest to make or repair such fence, then, and in every such case, 
 it shall be lawful for the party injured thereby, to make or repair 
 all the said fence at the expense of the party so neglecting or 
 refusing, to be recovered, with costs of suit, in any court having 
 cognizance of the same ; and in casij any person, who shall 
 have made his proportion of any such fence, shall conclude or 
 be disposed to throw up his said lands or meadow for common 
 feeding, or to let the same lay open, such person shall give 
 three months notice thereof to the person or persons in posses 
 sion of the lands or meadows adjoining, and if sucli fence shall 
 be removed, without giving such notice, or before the expira- 
 tion of the said three months, then the person removing the 
 same, shall be liable to make good all such damages as the party 
 injured, by such removal, shall sustain thereby, to be recovered as 
 aforesaid, with costs." s. 17. 
 
 On certiorari from a justice's court. Bilrger brought an action Burger v. 
 of trespass, before a justice of the peace, against Kortright, for ^"j""^ 1 ' 
 damage done by his cattle on the land of Burger, by reason of Rep- 4U. 
 Kortright's not having made his share, or part of the partition 
 fence between the parties, and also for the expense of making 
 the fence, which Kortright, though requested, had refused to - 
 make. The defendant pleaded not guilty, and gave notice tliat 
 he should offer evidence of damages, sustained by cattle, in con- 
 sequence of the plaintiff's not having made his proportion of the 
 division fence. Issue was joined thereo-n, and the cause tried by 
 a jury, who found a verdict for the plaintiff. SPENCER, J. deli- 
 vered the opinion of the court. After noticing an objection of 
 form, he proceeds : The second objection which relates to the 
 merits is, that the jury have disregarded an agreement relative to 
 the partition fence between the parties, and have founded their 
 verdict on the decision of the fence-viewers. I doubt much the 
 legal efficacy of the agreement. It was not made between these 
 parties. At all events, disputes did exist between them, as to 
 the proportion of fence maintained by each, and thus the case 
 came within the statute. An exception has been made to the de- 
 *;.: <' '.>. vi '" K " 4 ' - " r ; ' f > avail: they never in-
 
 412 TOWffS. 
 
 tended, and could not oblige the plaintiff to make a fence acrosf" 
 the defendant's land. \ 
 
 Wiloughhy In error on certiorari. Carleion brought an action against WH- 
 w Johns! Rep. loughby, for work and labour, in putting up a fr-nce, being the di- 
 13R> vision fence between their lands, and the proportion belonging to 
 
 Willoughby, which he had neglected to mend for more than a 
 ivftmth after request. At the trial the justice ruled that it was not 
 accessary for Carleton to show that the proportions of the fence 
 to each party had been settled by fence-viewers, because it did 
 not appear that any dispute had arisen. He also decided that it 
 was not requisite that the costs and expenses of the fence should 
 be settled by the fence-viewers, and admitted parol proof of a 
 , written request given to the defendant, for a month, to mend the 
 
 fence, though no notice had been given to produce the writing. 
 Per curidm. The justice was correct in ruling, that a decision of 
 the fence-viewers, as*o each party's proportion of the fence, was 
 not requisite, if no dispute existed as to the proportions ; nor were 
 the costs and expenses of repairing the fence to be settled in this 
 case by the fence-viewers. The admission of parol proof of thti 
 written notice to the defendant to repair, was also correct. 
 
 " Whereas, in some parts of this state, the fences inclosing mea- 
 dow and low land are frequently injured, destroyed or- carried 
 away by floods and high tides, which generally happen in the 
 spriifg of the year, and the owners of such meadow or low land 
 lose a great part of the profits thereof for the whole year unless 
 the said fence be speedily repaired or new made: Therefore, it is 
 cnacted,That in all cases where such partition fence shall be so injur- 
 ed, destroyed, or carried away, every person who ought by law 
 to make or repair the same, shall make or repair the same, or his 
 just proportion thereof, within ten days after he shall be thereun- 
 to required by any person interested therein ; and if any person 
 shall refuse or neglect to make or repair his proportion of such 
 fence for the space of ten days after such request as aforesaid, 
 then'it shall be lawful for the party injured thereby to make or 
 repair all the said fence at the expanse of the party so neglecting 
 or refusing, and to recover the same, with costs, in any court 
 having cognizance thereof." s. 18. 
 
 " When any distress shall be made of any beasts doing damage, 
 the person distraining shall, as soon as conveniently may be, and 
 within twenty-four hours thereafter, unless the distress be made 
 nn Saturday, in which case he shall before Tuesday morning 
 thereafter, make application to the two nearest fence-viewers in 
 the same town to appraise and ascertain the damage, who shall 
 immediately thereupon go to the place where such damage shall 
 be committed, and view the damage done, and appraise, ascertain 
 and certify under their hands the amount thereof, with their fees 
 for the same, and if any dispute shall arise concerning the suf- 
 ficiency of the fence, it shall be determined by the same 'fence- 
 viewer?, whose decision shall br conclusive, and Che person ma-
 
 TOWNS. 413 
 
 )cmg the distress shall, as soon as he shall think proper, and with- 
 in forty-eight hours after making such distress, unless the damage 
 shall be sooner paid, cause the beasts so distrained to be put in 
 the nearest pound in the same county, where they shall remain 
 until the sum so certified by the fence-viewers, with the fees of 
 the pound-master, shall be paid, or the beasts so impounded b<- 
 replevied." s. 19. See DISTRESS, II. p. 93. 
 
 XI. Pounds. 
 
 "There shall be made and kept one or more sufficient pounds 
 in each city and town of this state, and it shall and may be 
 lawful for the common councils of the several cities of New-York, 
 Albany, and Hudson, from time to time to appoint keepers oftho 
 pounds of their respective cities, who shall hold their offices du- 
 ring the pleasure of the said common councils respectively, and 
 the said respective keepers of the said pounds and the res- 
 pective pound-masters in each town may take, for all beasts that 
 shall be put into the pound of which he is keeper or master, the 
 following fees, to wit : for taking in and discharging every horse, 
 gelding, mare, or colt, and all neat cattle, twelve and an half cents 
 each, and for every sheep or lamb, three cents, and for every 
 hog, shoat or pig, six cents, which fees shall be paid to the said 
 keeper or pound-master by the owner of the said beasts impound- 
 ed, or some person for him, before the said beasts shall be released 
 from such pound, unless the keeper or master of such pound 
 shall otherwise agree concerning the same ; and if the owner of 
 any beasts impounded for doing damage shall not pay the damage 
 and the fees of the keeper or master of the pound, with reasona- 
 ble charges for keeping and feeding them, not exceeding three 
 cents for each beast for every twenty-four hours such beast shall 
 be impounded and fed, within six days after such beast shall be 
 impounded, or replevy the same beast?, then it shall and may lu; 
 lawful for such keeper or master of such pound to sell such beast 
 at public vendue, giving at least forty-eight hours previous notice 
 of such sale, by advertisement to be set up at the said pound, and 
 at the nearest public place to the said pound, and out .of the mo- 
 nies arising from such sale to pay the said damages, and retain 
 in his hands his fees and charges of feeding and' keeping the same 
 beast and of such sale, and return the overplus to the owner of 
 he same beast, and if no such owner shall appear and claim such 
 overplus within six calendar months after such sale, the panv 
 shall be paid to the overseers of the poor of the city or tow. 
 where such beast was impounded, for the use of the poor of such 
 city or town." s. 21. 
 
 XII. Dividing towns and boundaries of towns. 
 'No town in this state sli-ill be divided, nor any hew town
 
 TOWNS. 
 
 erected, without an application to the legislature by the inhabi- 
 tant* of such town so to be divided, or of the several towns out of 
 which such new town is to be erected, or some of them, accom- 
 panied with a map of such town or towns, with the lines of sucii 
 proposed division, or new town, marked thereon ; and notice 
 of such intended application shall be given at least ten days pre- 
 vious to the town-meeting in each of the towns to be affected 
 thereby, which notice shall be in writing, and affixed on the door 
 of the house where such town-Meeting shall be held, and shall be 
 subscribed by at least five persons, resident and freeholders in 
 such towns, a copy of which notice shall also be read in such 
 town-meeting, to the people there assembled, by the clerk of such 
 town, immediately before proceeding to the election of town 
 officers." s. 25. 
 
 "Where any counties or towns in this tate are separated from 
 each other by a river or creek, in every such case the middle of 
 the channel of the river or creek shall be, and hereby is declared 
 to be the division line between them." s. 30. 
 
 "In every case in which the bounds of a town already erected, 
 or that may hereafter be erected, shall appear to be so described 
 in the act erecting or altering the same, that they cannot be deli- 
 neated by the surveyor-general on the map of this state, without, a 
 survey specially made for that purpose, it shall be the duty of 
 the supervisor of such town, on the application of the surveyor- 
 general, to obtain, or cause such survey to be made, and transmit 
 the same to the surveyor-general's office, the costs and charges of 
 which shall be defrayed by such town in the manner in which 
 other contingent charges of towns are defrayed and paid." s. 31. 
 
 By the act to divide this state into counties, sess. 36. c. 30. s. 
 3. 2 R. L. 119, "Whenever any boundary line between two towns 
 runs, or may run. across any island, the whole of such island shall 
 be deemed to be within the town in which the greater part of it 
 lies, unless otherwise particularly declared." 
 
 XIII. Town charges, 
 
 By the act, sess. 30. c. 49. 2 R. L. 137, "The compensation 
 for the services of the assessors, inspectors of election, and com- 
 missioners of highways, shall be considered as town expenses, and 
 it shall be lawful for the supervisors of the several counties in this 
 btate to audit the accounts of such town officers ; and the said su- 
 jicn i<ors shall ascertain the amount of each town's proportion of 
 the county cosfs, according to the value of the real and personal 
 'stales therein, and as valued by the assessors in each town in the 
 same year, and to such sum add such other sum as shall be found 
 by the said supervisors necessary to defray such town expenses, 
 ;md such further sum as any such town shall have voted to be 
 mised for the destruction of noxious animals, birds, and weeds, in 
 the snm*" rear, with the sum to be raised in each to\rn for the
 
 TREASON. 
 
 maintenance of the poor thereof, and shall cause 'all such sums to 
 be raised and levied, together with the taxes to he raised and le- 
 vied for the use of this state, hy adding to the tax of each person 
 liable to pay the same, as the other contingent charges of the 
 towns and counties are levied and collected, and shall, in their 
 warrants to the collectors of each respective town, direct such 
 collector to pay the sum so raised and collected, for town ex- 
 penses, into the hands of the supervisor of the town for the pay- 
 ment of the said town expenses, who shall for such money ac- 
 count with the justices of the peace and town clerk, on or before 
 the last Monday of September thereafter in eacli year, and out of 
 the first money which shall be collected, such collector shall pay 
 to the overseers of the poor such money as shall be so raised, for 
 the maintenance of the poor of such town, and the residue of the 
 money so collected by him, to be paid to the treasurer of th 
 county, on or before the first day of February then next." s. 2. 
 
 "If any collector in any city, town, or ward, shall not pay to 
 the supervisor and overseers of the poor thereof, the monies di- 
 rected to be paid to them by such warrant, within the time there- 
 in mentioned, and produce to the county treasurer receipts for 
 the same, from one or more of the said overseers and supervisor, 
 or satisfactory evidence of such payment, within one week after 
 the expiration of the time mentioned in such warrant, the same 
 shall be deemed to be unpaid, and it shall be the duty of such 
 treasurer to collect the same, together with the other monies, if 
 any, which may be due from such collector for taxes, and to pro- 
 ceed in the same manner for the recovery thereof as is directed 
 in such cases by the act, entitled 'an act for the assessment and 
 collection of taxes,' and out of the first monies received by him 
 on such proceedings, to pay the same to the said supervisor and 
 everseers." s. 3.' 
 
 TREASON. 
 
 The offence of treason is, in this country, restricted to tw. 
 beads : 1. The levying war against ;. and, 2. The adhering to the 
 enemies of the country. 
 
 By the third section of the third article of the constitution of 
 the United States, " Treason against the United States shall con^ 
 sist only in levying war against them, or in adhering to their ene- 
 mies, giving them aid and comfort." 
 
 By an act of the legislature of this state, sess. 24. c. 29. s. 1. 
 1 R. L. 14-5.it is declared, "that if any person do levy war 
 against the people of this state, or be adherent to the enemies of 
 the people of this state, giving to them aid and comfort in this 
 state, or elsewhere, and be thereof attainted of open deed, such
 
 416 
 
 The People, 
 v. Lynch, 
 11 Johns. 
 Hep. 549. 
 
 TV ARRANT. 
 
 offences, and no other, shall be adjudged treason against the 
 people of this state." 
 
 Although treason may be committed against the state of New- 
 York, as by opposing the la*,vs of the state, or forcibly attempting 
 to overturn or usurp the government, yet the offence of adhering 
 to, and giving aid and comfort to the public enemies of the United 
 States, is not treason against this state. 
 
 By the second section of the above mentioned act, it rs de- 
 clared, " That concealment, or keeping secret any treason, shall 
 be from henceforth adjudged, deemed, and taken to be misprision 
 of treason." 
 
 As Jhe consideration of the laws of the United States forms no 
 part of the subject of this digest, and as it appears from the de- 
 cision stated above, that treason against the state can be of but rare 
 occurrence, it is thought unnecessary to enlarge upn this head 
 
 WARRANT. 
 
 2 Hale, P. C. 
 86. 
 
 If. a justice see a felony, or other breach of the pea#e commit- 
 ted in his presence, he may in his own person apprehend the fe- 
 lon ; and so he may, by word, command any person to apprehend 
 him, and such command is a good warrant without writing.; but 
 if the felony or other breach of the peace be done in his absence, 
 then he must issue his warrant in writing, under his seal, to appre- 
 hend the malefactor. 
 
 I. For ii'hat causes, and on ivhat information or suspicion, a war- 
 rant may be granted. 
 It. The form of it. 
 III. Indorsement of a warrant in another county. 
 
 I. For what causes, and on what information or suspicion, a warrant 
 may be granted. 
 
 i. Hawk. P. 
 C. c. 13. s, 15. 
 
 There seems to be no doubt but that a warrant may lawfully be 
 granted, by any justice of the peace, for treason, felony, or any 
 other offence against the peace : also, it seems clear, that when- ' 
 ever a statute gives to any one justice of the peace, a jurisdic- 
 tion over any offence, or a power to require any person to de a 
 certain thing ordained by such statute, it impliedly gives a power 
 to every such justice to make out a warrant to bring before him 
 any person accused of such offence, or compellable to do the. 
 thing ordained by such statute ; for it cannot but be intended, 
 that a statute giving a person jurisdiction over an offence, doth 
 mean also to give him the power incident to all courts, of com- 
 pelling the party to come before him. And it would be to little 
 purpose to authorize a man to require another to do a thing, if it
 
 WARRANT. 417 
 
 were to be understood that the person authorized had no power 
 to compel the party to come before him. 
 
 But it seems, that anciently no one justice of the peace could 2Hawk. P., . 
 legally make out a warrant for an offence against a penal statute or 
 other misdemeanour, cognizable only by a sessions of two or more 
 justices ; for that one single justice of the peace hath no jnrisdic- 
 tion of such offence, and regularly those only who have a juris- 
 diction over| a cause, can award process concerning it: yet, 
 the long, constant, universal, and uncontrolled practice of justices 
 of the peace, seems to have altered the law in this particular, 
 and to have given them an authority in relation to such arrests, 
 not now to be disputed. 
 
 The party who demands the warrant ought to be first examined g 6 ^ urm '^ ust 
 on oath, touching the whole matter whereupon the warrant is i Hale, p. 
 demanded, and such examination be put i writing ; and also he HU?, P. 
 should be bound by recognisance to prosecute at the next sessions c - lll 
 or oyer and terminer, as the case shall require. 
 
 A justice hath power to issue a warrant to apprehend a person e^o^io?' 
 suspected of felony, before h.e is indicted; and that though the no. 2Ha*k. 
 original suspicion be not in himself, but in the party that prays *"i|)*'!' 
 his warrant ; for the justices are judges of the reasonableness of 
 the suspicion, and when they have examined the party accusing, 
 touching the reasons of his suspicion, if they find the causes of 
 suspicion to be reasonable, it is now become the justice's suspi- 
 cion as well as theirs. 
 
 " No justice of the peace shall be obliged to issue any warrant, 
 on any complaint for a trespass, or an assault and battery, or 
 either of them, unless the person making such complaint, and re- 
 quiring such warrant, and every person .recognised as principal 
 before any such justice for said offences, shall pay the fees to the 
 justice for taking such recognisance." sess. 36. c. 104. ?. 7. 1 R. 
 I*. 508. 
 
 II. The form of it. 
 
 It is safe, but perhaps not necessary in the body of the war- a Hawk.^ 
 rant, to show the place where it was made ; yet it seems neces- 
 sary to set forth the county in the margin, at least if it be not 
 set forth in the body. 
 
 It may be directed to the sheriff, constable, or to any indiffe- /J a * 3 k ' s> *V. 
 rent person, by name, who is no officer ; for a justice may autho- 
 rize any one to be his officer whom he pleases to make such, y-.-t 
 it is most adviseable to direct it to the constable of the precinct 
 wherein it is to be executed, for no other constable, and a forti- 
 ori, no private person is compellable to serve it. 
 
 But it is said, that if a statute direct that a justice shall grant *L<J. Rttn 
 a warrant, and doth not say to whom it shall be directed, by 
 of law, it must be directed T the ronstnKl*. and it
 
 418 
 
 4Burm < Juit. 
 
 665. 
 
 2 Hawk. P. 
 C- C. 13. s. 27. 
 2 Hle, P. C. 
 
 111. 
 
 2 Ihle, P. C. 
 114. 
 
 2 Hale, P. C. 
 112. 
 
 2Hawk.P.C. 
 e. 13.s. 22. 
 4 Burns' Just. 
 
 605, 668. 
 
 Bull. N. P. 
 S3. 
 
 WARRANT. 
 
 cannot be directed to the sheriff, unless such power is given in 
 the act. 
 
 Regularly the warrant, especially if it be for the pe*ace or 
 good behaviour, or the like, where sureties are to be found or re- 
 quired, ought to contain the special cause and matter w hereupon it 
 is granted, to the intent that the party upon whom it is to be 
 served may provide his sureties ready, and take them with him 
 to the justice to be bound for him ; but if the warrant be for 
 treason, murder, or felony, or for great conspiracies, rebellious 
 assemblies, or other offences of an enormous nature, it hath been 
 said that it need not to contain any special cause, but the warrant 
 of the justice may be to bring the party before him, to make an- 
 swer to such things or matters, generally, as shall be objected 
 against him. 
 
 The warrant ought to mention the name of the party to be ar- 
 rested, and must not be left in general, or with blanks, to be filled 
 up by the party afterwards. 
 
 A justice may make a wan-ant as well in the case of 'felony, as 
 of the peace, to bring the party before himself, and then the of- 
 ficer ought to bring the party before him that made the warrant, 
 or he may make the warrant to bring him before any justice of 
 the peace, and then it is in the election of the officer to bring 
 him before which justice of the county he pleases, and it is not 
 in the election of the party to go before whom he pleases. 
 
 It ought to set forth the year and day wherein it is made, that 
 in an action brought upon an arrest made by virtue of it, it may 
 appear to have been prior to such arrest : and also in case where 
 the statute directeth the prosecution to be within such a time, 
 that it may appear that the prosecution is commenced within 
 such time limited : likewise, where a penalty is given to the poor 
 of the town where the offence shall be committed, or the like, it 
 ought to specify the place where the offence was committed. 
 
 A warrant under the hand of the justice is sufficient, without 
 being under seal, unless particularly required by statute to be 
 under seal. 
 
 vide ante, p. 
 
 III. Indorsement of a warrant in another county. 
 
 By the act fur the better apprehending of felons and other offend- 
 ers, sess. 24% c. 3 1 . s. 2. 1 R. L. 1 4-9, " In case any person against 
 whom any warrant shall be issued by any justice of the peace lor 
 any offence, shall escape, or be in any other county out of the 
 jurisdiction of the justice granting the warrant, it shall be the du- 
 ty of any justice of the peace of the county where such person 
 shall be, upon proof of the hand writing of the justice granting the 
 warrant, to indorse his name on the same, which shall be a suffi- 
 cient authority to the person bringing, the warrant, and to all 
 other persons to whom it was directed, to arrest the offender in 
 the county where the warrant was indorsed, and to bring him bet
 
 WOODS. 419 
 
 lore any justice of such county ; and in case the offi-nce be baila- 
 ble, and the offender be willing and ready to give bail to appear 
 and answer at the next court having cognizance of the offence, in 
 the county where it was committed, the justice before nhom he 
 is brought shall tak bail accordingly, and deliver the recogni- 
 sance, examination of the prisoner, and all the proceedings be- 
 fore him had, to the officer or other person having charge, of the 
 prisoner, who shall take and deliver the same to the clerk of the 
 court in which such offender is bound to appear \ and such recog- 
 nisance and examination, or confession, shall be equally valid as 
 if taken in the county where the offence was committed; and any 
 officer or other person refusing or neglecting to deliver over the 
 same to the clerk as aforesaid, shall forfeit twenty-five dollars, to 
 be recovered against him by action of debt or information by any 
 person who will sue therefor : And if such offence be not baila- 
 ble, or the offender shall not give bail to the satisfaction of the 
 justice before whom he shall be so brought, then the officer, or 
 other person having charge of the prisoner, shall convey him to 
 a justice of the peace of the county where the offence was com- 
 mitted, there to be dealt with according to law. *9nd further, 
 no action shall be brought against any justice who shall in- 
 dorse a warrant as aforesaid, for indorsing the same; but such ac- 
 tion may be brought against the justice who originally granted 
 the warrant, in the same manner as if the offender had been ar- 
 rested in the county where the warrant was granted." s. 2. 
 The form of the indorsement may be as follows : 
 West Chester, to wit : Forasmuch as proof upon oath hath been 
 made before me, J. P. Esquire, one of the justices of the peace for 
 the said county of West Chester, that the name A. B. is of the hand 
 writing of the justice of the peace ivithin mentioned : I do hereby 
 authorize A. C. who bringeth to me this ivarrant, and all other per- 
 sons to whom the said ivarrant is directed, to execute the same within 
 
 the said county of West Chester. Given under my hand, the 
 
 day of , in the year . 
 
 And the justice may further order (if he thinks fit) the party, 4Bi.rn-Jui'. 
 according as he shall appear bailable, or not bailable, upon the 
 face of the warrant, to be brought before himself, or some otln-r 
 justice or justices of that county, or to be carried back into the 
 county from whence the warrant did issue. 
 As to the arrest on a warrant, vide ARRF.ST. 
 As to what is to be done by the justice on the party's !> 
 brought before him, -vide BAIL, COMMITMENT, EXAMINATION. 
 
 WOODS. 
 
 IJy the act to prevent firing the woods, srss. II. r. '21. 1 K- I- 
 123. " If any person or persons shall set lire to the woods i" any
 
 WOODS. 
 
 part of this state, he, she, or they shall forfeit and pay the sum of 
 ten pounds, to be recovered with costs of suit, in any court hav- 
 ing cognizance thereof, by any person or persons who will sue 
 and prosecute lor the same ; the one moiety of which forfeiture, 
 when recovered, shall be paid to the overseers of the poor of the 
 town or place where the offence shall have been committed, for 
 the use, of the poor thereof; and the other moiety to the person 
 or persons who will sue and prosecute for the same to effect as 
 aforesaid. And such offender or offenders shall moreover be 
 liable to all such damages as any person or persons shall sustain 
 by such firing the woods as aforesaid." s. 1. 
 
 " Provided always, That nothing in this act contained shall be 
 construed to hinder or prevent any person or persons from firing 
 his, her, or their own woods; but if he, she, or they do suffer 
 such fire to extend beyond his, her, or their own woods, he, she, 
 or they, shall be subject to the penalty and forfeiture aforesaid, 
 besides being answerable for the damages." s. 2. 
 
 " When the woods in any town within this state shall be on 
 fire, the justices of the peace, the supervisor, the commissioners 
 of the highways, and the officers of the militia, (not under the 
 rank of captain) residing in such town, shall, and they are here- 
 by severally authorized and required to order such and so many 
 of the inhabitants of such town liable to work on the highways, 
 and who shall reside within the vicinity of the place where such 
 lire shall be, as they shall severally deem necessary, to repair to 
 the place where such fire shall prevail, and there to assist in ex- 
 tinguishing or stopping the progress of the same; and if any per- 
 son so ordered to repair to, and assist in manner aforesaid, shall 
 refuse or neglect to comply with such order, every person so dis- 
 obeying such order, shall forfeit and pay the sum of four shil- 
 lings for every day he shall so neglect or refuse, to obey, to be 
 recovered in a summary way, with costs, before any justice of 
 the peace resident in such town, and the oath of the person bar- 
 ing given such order shall be sufficient evidence whereon to con- 
 vict any delinquent, and the forfeiture so recovered shall be ap- 
 plied as a reward to such person or persons as the officers afore- 
 said, or the major part of them, shall deem best entitled therto, 
 for superior exertions at the extinguishment, or in stopping th.e 
 progress of such fire." s. 3. 
 
 By the act/or the amendment of the laic, sess. 36. c. 56. 1 R. L. 
 525, " any person who shall wilfully commit trespass, by cutting 
 down or destroying any kind of wood, or timber, standing, or 
 growing, upon the lands of the people of this state, or of any per- 
 son or persons whatsoever, or shall wilfully commit trespass, by 
 carrying away ar.y kind of wood or timber which may be lying 
 upon such lands, or shall wilfully and maliciously cut down, lop, 
 girdle, bark, or injure any orchard, or fruit tree, or trees, without 
 the consent of the owner or owners of tire land whereon such or- 
 chard, fruit tree, or trees, was. or were standing or grojring, ?ha"H
 
 WRECK. 
 
 be deemed guilty of a misdemeanor, and being convicted there- 
 of by due course of law, shall be punished by fine or imprison- 
 ment, at the discretion of the court before which such conviction 
 shall be had : Provided always. That no person ao convicted by 
 virtue of this act, shall be imprisoned for a longer term of time 
 than one year, or fined in a sum exceeding fifty dollars." s. 28. 
 
 " If any person or persons shall cut any wood, wnderwood, trees, 
 r timber, or shall girdle, or otherwise despoil any fruit trees on 
 land, the title whereof is in the people of this state, such person 
 or persons, not being actual settlers on such land, or on the com- 
 mons of any city or town, he or they having no right or privilege 
 in such commons, and not having obtained license from the cor- 
 poration, or trustees, of such city or town, or on any other land, 
 without the leave or permission of the owner or Owners thereof, 
 or shall in like manner carry off any wood, underwood, trees, or 
 timber, from the same, such person or persons shall pay to the 
 owner or owners of such land, treble the value of the wood, un.- 
 derwood, trees, or timber, cut or carried off, as aforesaid, to be 
 recovered with costs, in an action of trespass, before any court 
 having cognizance \of the same, by the owner or owners of the 
 land on which such trespass shall have been committed, or if such 
 trespass shall be committed on the commons of any city or town, 
 then by the .corporation of the city, or by the trustees of the 
 town to which such commons shall belong; but if such land shall 
 belpng to the people of this state, then by the overseers of tho 
 poor of the town in which such trespass or trespasses shall be 
 committed, for the use of the poor thereof: Provided always, 
 That if upon the trial of any action of trespass, for cutting down, 
 destroying, or carrying away, any trees, timber, or underwood, it 
 shall appear by evidence, that the trespass was casual and in 
 voluntary, or that the defendant had probable cause to believe, 
 that the land on which the trees, timber, or underwood, so cut, 
 destroyed, and carried away, were his own ; in such case the court, 
 having cognizance of the cause, shall give judgment for the plain- 
 tiff, to recover single damages only, and costs of suit : Provided 
 also, That nothing herein contained shall authorize any person to 
 recover more than the just value of any timber taken for the mak- 
 ing or repairing any public roads or bridges, with coats." s. 29. 
 
 WRECK. 
 
 Wreck of the sea, in legal understanding, is applied to such 2 loit. v>t. 
 goods as, after shipwreck at sea, are by the sea cast upon the 
 land. 
 
 None of those goods which are called jetsam, (from being i Black, 
 cast into the sea while the ship is in danger, and which there sink J B ' r ^ 2 ' 
 j'id remain underwater,) or thosf; called flotsam, (from floating jJ" f --'<.
 
 422 WRECK. 
 
 on the surface- of the water,) or those called Jigan, (whichJie irr 
 the bottom of the sea, but tied to a cork or buoy in order to be 
 found again.) arc to be esteemed wreck, so long as they remain 
 i:i or upon the sea, and are not cast upon the land by the sea ; but 
 if any of them are cast upon the land by the sea, they ace wreck. 
 "If a ship, vessel, or boat, or any kind of goods, wares or mer- 
 chandise, shall be cast by the sea on the land, neither such ship, 
 vrs .--..'I or boat, nor any thin?; in them, nor such goods, wares or 
 merchandise, shall be adjudged wreck ; but the ship, vessel or 
 boat, and every thing therein contained, and such goods, warts 
 and merchandise, shall be saved and kept by the view of the 
 sheriff or coroner, or other person appointed for that purpose, 
 who shall cause the same to be appraised, and safely keep them, 
 so that if any person, Avithin a year and a day, sue for those 
 goods, and prove that they were his, or lost in his keeping, they 
 shall be restored to him without delay, upon his paying the 
 charges and expenses of saving and keeping the said goods ; but 
 if not, they shall remain to the people of this state, and shall, 
 after the expiration of the said year and day, be sold at public 
 vendue, by the sheriff, coroner, or other persoYi appointed for that 
 purpose, who shall have found or seized the same, who shall ac- 
 count for the same at the exchequer, deducting the charges and 
 expenses of saving and keeping the same, and of such sale : And 
 he that doth otherwise, and is thereof convicted, shall yield da- 
 mages to* the party grieved, and shall be punished by fine or .im- 
 prisonment, or both, at the discretion of the court or justices be- 
 fore whom he shall lie convicted. 
 
 " Jind further, If any merchant, citieen, or stranger, or any 
 other, be robbed (if his goods upon the sea, and the goods come 
 into any part of this state, and he will sue to recover the said 
 goods, he shall be received, to prove the said goods to be his own, 
 by his marks or by his cocket, or by good and lawful merchants, 
 eitizens, or strangers, or others; and upon such proof, the same 
 goods shall be delivered to him without delay." sess. 10. c. 28. s. 
 ]. 1 R. L. 68. 
 
 " It shall and may be lawful for the person administering the 
 government of this state for the time being, by and with the ad- 
 vice and consent of the council of appointment, from time to time, 
 by commission under the great seal of this state, to appoint such 
 and so many proper persons in each of the counties of this state, 
 bordering on the sea, as they may think necessary, to aid and as- 
 sist all such ships and vessels as may happen to be stranded on the 
 coasts in the same counties; and such persons so appointed shall 
 be, and hereby are respectively authorized and required to give all 
 possible aid and assistance to all such ships and vessels, anti to 
 the people on board of the same, and to use their utmost endea- 
 vours to save the same, and to save, preserve and secure, for the 
 purposes aforesaid, the cargoes of all such ships and vessels, and 
 all goods and chattels whatsoever which may at any time be
 
 WRECK. 423 
 
 cast by the sea upon the land ; and to employ such ami so nini.y 
 rhen for the purpose, as th<:y may respectively think proper. And 
 the sheriff, coroner, or other person so appointed as aforesaid, and 
 all persons by them employed, sh;i!l have a reasonable allow- 
 ance out of the same goods so saved and preserved, for saving, 
 preserving, and keeping the same. And such sheriff, coroner, or 
 other person, so appointed as aforesaid, shall and may detain tin- 
 same goods until payment thereof ; and in case any dispute shall 
 arise concerning such allowance, the same shall be settled and 
 adjusted by any two or more justices of the peace, dwelling in or 
 near the town or place where the said goods shall be found or 
 saved. And if any person shall take away any goods whatsoever, 
 out of any ship or vessel stranded as aforesaid, or any goods cast 
 by the sea upon the land, or found in any bay or creek, and not 
 deliver the sume goods to the. sheriff or coroner of the. county 
 where the same shall be found, or to one of the persons appoint- 
 ed as aforesaid, within forty-eight hours after taking the panic, or 
 shall secret any such goods, or convert them to his own use; every 
 person so offending, shall, yield double damages to the owner of 
 such goods, to be recovered, with costs of suit, in any court hav- 
 ing cognizance thereof, and be further punished by fine or impri- 
 sonment, or other corporal punishment, at the discretion of the 
 court, not extending to life or limb. And it is hereby made the 
 duty of every sheriff, coroner, justice of the peace, and constable, 
 and the persons so appointed as aforesaid, to present all tiffenrcs 
 and offenders ji^i-s! !>.is act, ;-t the sessions of the peace, in their 
 respective c'oui.ties ; and the justices of the peace, in their ses- 
 sion;;, are herKby authorized and required to hear and determine 
 the same." s. 'A. 
 
 THE KM)
 
 APPENDIX : 
 
 CONSISTING OF A SELECTION OP THE 
 
 MOST USEFUL AND NECESSARY PRECEDENTS 
 
 RELATING TO THE DUTIES OP A 
 
 JUSTICE OF THE PEACE. 
 
 11 "~ JH( ' * 
 
 APPRENTICES. 
 
 r/identure by the overseers ofttlie poor. 
 
 THIS Indenture, made the day of< , in the year of our 
 
 Lord , between A. B. and C. D., overseers of the poor of the 
 
 town of , in the county of , of 'the one part, and A. M., 
 
 of the said town, shoemaker, of the other part, witnesseth, that 
 
 the said overseers of the poor, by and with the consent of , 
 
 two of the justices of the peace for the said county, residing in 
 
 [or near} the said town of , have put, placed, and bound, and 
 
 by these presents do put, place, and bind A. P., who is chargeable 
 to the said town, [or whose parents, B. P. and C. P., are chargeable 
 
 to the said toion, or who begs for alms,} of the hge of , to be an 
 
 apprentice [or servant] with him, the said A. M., and as an appren- 
 tice [or servant] with him, the said A. M., to dwell, from the date 
 of these presents until the said A. P. shall come to the age of 
 twenty-one [or, if a female, of eighteen] years, according to the 
 act in such case made and provided. By and during all which 
 time and term, the said A. P. shall the said A. M., his said mas- 
 ter, well and faithfully serve, in all such lawful business as the 
 said A. P. shall be put unto by the command of his said master, 
 according to the power, art, and ability of him, the said A. P., 
 and honestly and obediently in all things shall behave himself to- 
 wards his said master, and honestly and orderly towards the rest 
 of the family of the said A. M. And the said A. M., for his part, 
 for himself, his executors and administrators, doth hereby pro- 
 mise and covenant to, and with the said overseers of the poor and 
 each of them, their, and each of their executors and administra- 
 tors, and their, and each of their successors for the time being, 
 and to and with the said A. P., that he, the said A. M., shall (the 
 said A. P. in the craft, mystery and occupation of a hoemaker, 
 which he, the said A. M. now useth, after the best manner 
 
 [ 51 ]
 
 APPENIUX. 
 
 he can or may, teach, instruct or inform, or cause to be taught, 
 instructed and informed, as much as thereunto belongeth, or in 
 any wise appertained ; and that the said A. M. shall also*) find 
 and allow the said A. P. sufficient meat, drink, apparel, washing^ 
 lodging, and all other things needful or meet for an apprentice [or 
 servant] during the term aforesaid ; and also that the said A. M. 
 shall cause the said A. P. to be taught and instructed to read and 
 write, and shall also give unto the said A. P. a new bible at the 
 expiration of his [or her] said term of service. In witness where- 
 of, the parties to these presents have hereto set their hands and 
 seals, the day and year first above written. 
 
 Sealed and delivered 7 
 in the presence of j 
 
 Such other covenants as the parties can agree upon may be 
 added. 
 
 The assent of two justices. 
 
 We, , two of the justices of the peace for the abovemeu- 
 
 tioned county of , residing in [or near] the said towi* of r 
 
 do hereby declare our assent to the binding of the above named 
 A. P., an apprentice to the above named A. M., according to the 
 form and effect of the above written indenture. Given under our 
 hands the day of . 
 
 Summons of the master for misusing his apprentiee. 
 
 West Chester, to wit : 
 
 To any constable of the town of , in the said county. 
 
 Whereas complaint and information hath been made unto me, 
 one of the justices of the peace in and for the said county, by A. 
 
 P., apprentice to A. M., of , in the said county, shoemaker, 
 
 that the said A. M. hath misused and evil entreated him, the said 
 A. P., by cruel punishment, and beating him, the said A. P., with- 
 out just cause, and by not allowing unto him sufficient meat, drink, 
 apparel, [or as the case may fce.j These are therefore, in the 
 name of the people of the state of New- York, to command you 
 to summon the said A. M. to appear before me at the house of 
 
 , in the said county, on , the day of , at the 
 
 hour of , in the afternoon of the same day, to answer unto 
 
 the said complaint ; and to be further dealt with according to 
 law. Herein' fail you not. .Given under my hand and seal, the 
 day of, &tc. 
 
 * When the rhild is bound as a sercan/, the clause between brackets 
 onght to be omitted.
 
 APPENDIX. 
 
 Summons of the apprentice, on complaint of the 
 
 Chester, se. To, ,-c. 
 Whereas complaint and information hath been made unto mfi, 
 -- , one of the justices of the peace in and for the said county, 
 by A. M., of -- , in the said county, shoemaker, that A. P., now 
 being an appreRtice to him, the said A. M., is negligent, stubborn, 
 disorderly, [or as the case shall be,] and doth not his duty to the 
 said A. M., his master : These are therefore to command you to 
 summon the said A. P. to appear before me, &c. at, fee. to an- 
 swer to the said complaint, and to be further dealt with according 
 to law. Here in' fail not. Given, fcc. 
 
 Recognisance of the master to appear at the setsicns. 
 
 Be it remembered, that OH, kc. A. M. of , in the county of 
 
 , shoemaker, personally came before me, , one of the 
 
 justices of the peace in and for the said county, and acknowledged 
 himself to owe to the people of the state of New-York dol- 
 lars, to be made and levied of his goods and chattels, lands and 
 tenements, to the use of the said people, if default shall be made 
 in the condition following : 
 
 Whereas complaint and information hath been made unto me, 
 the said justice, by A. P., the apprentie* of the said A. M., that 
 the said A. M. hath misused and evil entreated him, [as in the 
 summons,] and the said A. M, and A. P., now appearing before 
 me in the matter aforesaid, and I not being able to compound or 
 agree the matter between them. The condition of this recogni- 
 sance is such, that if the said A. M. do and shall appear at the next, 
 general sessions of the peace, to be held in and for the said coun- 
 ty, to answer to the complaint aforesaid, and not depart without 
 leave of the court ; then this recognisance to be void, otherwise 
 -to continue in full force and effect. 
 
 Order of discharge fit the sessions. 
 
 West Chester, ss. 
 
 At a general sessions of the peace, holden at , in and fo; 
 
 the county aforesaid, the day of , in the year , br- 
 
 .f ore ? justices assigned to keop the peace in the said county, 
 
 and also to hear and determine divers felonies, trespasses, and 
 other misdemeanors in the said county committed, it is ordered 
 as followeth : 
 . Upon the petition of A. P., apprentice to A. M,, of , in th*
 
 428 APPENDIX. 
 
 said- county, shoemaker, to be relieved upon certain neglects of 
 the said master, in instructing him in his trade, and in misusing 
 and evil-entreating the said apprentice, by cruel punishment, [or 
 as the case may fee,] and the said master having likewise appeared 
 upon his recognisance, taken before J. P., esquire, one of the said 
 justices, to answer to the complaint of the said petition, and hav- 
 ing proved nothing whereby to clear himself of the said com- 
 plaint; but, on the contrary, the said A. P. having given full proof 
 of the truth of the said complaint, to the satisfaction of the said 
 court, it is therefore ordered by the said court, that the said ap- 
 prentice shall be, and hereby is discharged from his said appren- 
 ticeship, (and that the said A. M. refund to , his executors, or 
 
 administrators, the sum of dollars, being part of the sum of 
 
 , paid by the said to the said A. M., with, or in relation to 
 
 the said apprentice.) And this to be a final order between the 
 said master and apprentice ; any thing contained in their inden- 
 tures of apprenticeship, or otherwise, to the contrary notwith- 
 standing. 
 
 Complaint of an apprentice to three justices against his master under 
 sect. 10. of the ad. 
 
 West Chester, ss. 
 
 The information and complaint of A. P., apprentice, to A.M., 
 
 of : , in the said county, shoemaker, exhibited before us, 
 
 three of the justices of the peace in and for the said county, 
 
 the day of , in the year . 
 
 Who saith, that he, the said A. P., is an apprentice, bound by 
 
 indenture to A. M., ef aforesaid, shoemaker; and that he, 
 
 the said A. M. hath misused and ill-treated him, the said appren- 
 tice, and particularly, [as the case shall be.] 
 
 A. P. 
 
 Before us, 
 
 A. B. 
 
 C. D. 
 
 E. F. 
 
 Summons of the master on the above complaint. 
 
 West Chester, ss. To, Sfc. 
 
 Whereas information and complaint hath been made, unto us, 
 
 , three of the justices of the peace in and for the said 
 
 county, by A. P., apprentice to A. M., of , in the said 
 
 county, shoemaker, that he, the said A. M., hath misused and 
 ill-treated him, the said A. P., and particularly [as the case shall 
 Is: These are, therefore, to require you to summon the said
 
 APPENDIX. 
 
 A. M. to appear before us, at , in the said county, on the 
 
 day of , to answer unto the said information ami 
 
 complaint. And be you then there, to certify what yon shall 
 have done in the execution hereof. Herein fail you nol. (Jiv.'.i 
 -tinder our hands and .seals, the day of , in t'ne year 
 
 Discharge of the. apprentice, by the justices. 
 
 Whereas complaint hath been made before us, throe o;' 
 the justices of the peace in and for the said count}', hy A. 
 
 P., apprentice to A. M, of , in the said county, tailor, 
 
 that he, the said A. M., hath misused and evil treated him, th<- 
 said apprentice, and particularly [as the case shall be :] And 
 whereas the said A. M. hath appeared before us, in pursunoro of 
 our summons for that purpose, but hath not cleared himself of 
 and from the said accusation and complaint, but on Hie contrary 
 the said A. P. hath made full proof of the I ruin thereof before. 
 ns, upon oath ; we therefore, by these presents, do discharge 
 him, the said A. P. of and from his apprenticeship to the said 
 A. M., any thing; in the indenture of apprenticeship made he 
 twixt them, or otherwise, howsoever, to the contrary notwith- 
 standing. Given under our hands and seals, the day of, 8cc. 
 
 (Or, And whereas it hath been duly proved before, us, as well upon 
 
 the oath of A. C., constable of aforesaid as otherwise, thai 
 
 he, the said .4. C., did duly summon {he said A. .17. to inipair In - 
 Jore us at a reasonable time, in the said summons mentioned and 
 spfdjied ; but notwithstanding the same, he, the said .?.."/.. hni:< 
 not appeared before us, according to such summons: //"/>, there- 
 fore, having duly examined into the matter of the Haid complaint, 
 and th" truth thereof having been fully proved before NS, upon <//(, 
 do discharge, Sfc.) 
 
 Complaint of the master to two or more justices agains! ///.- 
 tice, under sect. I ] . 
 
 _ , v _ oe 
 
 The complaint, and information of A. M , of 
 
 the said county, tailor, taken and made on oath l>:'fi>n; us 
 
 , two of the, justices of the peace in and for tho said 
 
 county, the day of ; who saith, that A. P.. .-ipprcutirr 
 
 by indenture to him, the said A. M., hath, in the SM-\ ! 
 v<* his apprenticeship, been sniUy <f several mis<!<:m
 
 AJPPENDKt: 
 
 miscarriages, and ill behaviour towards him, the said A. M., and 
 particularly, [as the tast shall be.] 
 
 A. M. 
 Before us, 
 J. P. 
 K. P. 
 
 Warrant to bring the apprentice before the justices. 
 
 , ss. To, Sfc. 
 
 Whereas oath hath been made before us, , two of the 
 
 justices of the peace in and for the said county, by A. M., of 
 
 , jn the said county, tailor, that A. P., apprentice to the said 
 
 A. M., hath committed divers misdemeanors against the said 
 A. M., his master, and particularly [a* the case may be.] These 
 arc. therefore, to require you forthwith to apprehend the said 
 A. P., and bring him before us, to answer unto the said com- 
 plaint, and to be dealt with according to law ; and you are to 
 give notice to the said A. M.. that he appear before us at the same 
 time, to make good the said complaint. Given under our hands 
 and seals, Sec. 
 
 Commitment of an apprentice on the complaint of his master. 
 
 -, ss. To, Sfc. 
 
 Whereas complaint hath been made before us, two of the jus- 
 tices of the peace in and for the said county, upon the oath of 
 A. M., of , in the said county, tailor, that A. P., appren- 
 tice, hath committed divers misdemeanors against him, the 
 said A. M., his master, and particularly [as the case shall be,] And 
 whereas, upon examination thereof, and upon hearing the alle- 
 gations of both parties, having come before us for that purpose, 
 and upon due consideration had thereof, it manifestly appears to 
 as that the said A. P. is guilty of the premises so charged against 
 him as aforesaid : We do, therefore, hereby command you, the 
 aid constable, to take and convey the said A. P. to the said 
 house of correction, (er, to the common jail of the said county,) 
 and to deliver him to the keeper thereof, together with his war- 
 rant : And we do hereby command you, the said keeper of tin* 
 
 -said , to receive the said A. P. into your custody in the said 
 
 , there to remain at hard labour for the space of one 
 
 [or less, ae the case shall require.] Given, fee.
 
 APPENDIX. .\.\( 
 
 Discharge of an apprentice by two justice.*. 
 
 Whereas complaint, fee. [as in the. last precedent,] we do, there- 
 fore, by these presents, discharge the said A. P. from his appren- 
 ticeship to the said A. M., any thing in any indenture, or inden- 
 tures of apprenticeship betwixt them, or otherwise, to the con 
 trary notwithstanding. Given, &&c. 
 
 BAIL. 
 
 Recognisance of bail of a person arrested on suspicion of felony. 
 
 Be it remembered, that on the -- day of -- , in the year of 
 our Lord -- , A. O., of -- , shoemaker ; A. B., of - , tailor ; 
 and B. B., of -- , blacksmith, came before us, S. M. and K. B.. 
 esquires, two of the justices of the peace in and for the said 
 county, and severally acknowledged 'themselves to owe to the 
 people of the state of New-York, that is to say, the said A. O., 
 the sum of one hundred dollars, and the said A. B. and B. B., fifty 
 dollars each, to be respectively levied of their lands and ten? 
 raents, goods and chattels, if the said A. O. shall make default in 
 the performance of the condition endorsed [or underwritten.} 
 
 Taken and acknowledged the day and year above written, be 
 fore us, A. O. 
 
 I. M. A. B. 
 
 R. B. B. B. 
 
 The condition of this recognisance is such, that if the within 
 frt&oue] bounden A. O. shall personally appear before - , at the 
 next ^ to be holdea in and foe the said county, then arid then; 
 to answer to the-jwiitLjpeople ofcfche state of New-York, for and 
 concerning the felohiofrii&altmg a'J stealing of -- , the property 
 of A. M., of -- -, farmer, Mtif^pe suspicion whereof the said A. 
 O. stands charged before us the said justices, and to do and re- 
 ceive what shall by the said court be then and there enjoined him, 
 and shall not depart the said court without license, then the with- 
 in [a&ove] written recognisance shall be void, otherwise to remain 
 in full force and effect. 
 
 If the party is in jail, a warrant should issue for his deliverance, 
 thus : 
 
 I. M. and R. B., esquires, two of the justices of the peace in and 
 for the said county, to the keeper of the jail at , in the said 
 Bounty, greeting :
 
 APPENDIX. 
 
 Forasmuch as A. O., of , in the said county, shoemaker, 
 
 hath, before U3, found sufficient sureties to appear before the 
 justices of jail delivery, at the next general jail delivery, to be 
 holden in the said county, to answer to such things as shall be 
 then, on the behalf of the people of the state of New-York, ob- 
 jected against him, and namely to the felonious taking of - 
 {for the suspicion whereof he was taken and committed to you: 
 said jail;) we command you, on the behalf of the said people, 
 ihut if the said A. O. do remain in your said jail for the said 
 cause, and for none other, then you forbear to detain him any 
 longer, but that you deliver him thence, and suffer him to go at 
 large, and that upon the pain that will thereon ensue,. Given, &tc. 
 
 Condition of a recognisance of bail taken by a single justicr. 
 
 The condition of this recognisance is such, that if the above 
 bounden A. O. shall personally appear at the next general sessions 
 of the peace, to be holden in and for the said rounty, then and 
 there to answer to the said people of the state of New-York, for 
 ;t!)l concerning the violently assaulting and beating, &.c. [or the 
 felonious taking and stealing, fyc. if cJtarged with petit larceny, or 
 otherwise, as the case may 6c,] and to do and receive what shall 
 by the said court be then and there enjoined him, and shall nof 
 depart the court without license, then the above written recog- 
 nisance =!iall be void, otherwise to remain in full force and effect. 
 
 BASTARD. 
 
 f'dunlary examination of a woman with child of a bastard. 
 
 The voluntary examination of A. M., of -- , in the said 
 county, single woman, taken on oath before me, -- , one of the 
 justices of the peace in and for the said county, the -- day ot 
 
 Who saith, that she is now with child, and that the said child 
 is likely to be born a bastard, and to be chargeable to the town of 
 -- , in the said county, and that A. F., of - , in the said 
 county, weaver, is the father of the said child. 
 
 The mark of X A. M. 
 Taken and signed the day and yew 
 above written, before me. 
 J. F.
 
 APPENDIX. 433 
 
 ^ 
 
 Examination after the. birth. 
 
 The, examination of A. M., of , in the said county, single 
 Woman, taken upon oath before me, - , one of the justices of 
 the peace in and for the said county, this -- day of - : 
 
 Who saith, that on the - day of : , now last past, at - -, 
 in the town of - , in the county aforesaid, she, the said A. M., 
 was deliverod of a (male) bastard child, and that the said bastard 
 child is likely to become chargeable to the said town of - ; 
 and that A. F., of - , in the said county, weaver, <lid get her 
 with child of the said bastard child. 
 
 The mark of X! A. M. 
 Taken and signed the day and year 
 above written, before me, 
 J. P. 
 
 Warrant for apprehending the reputed father before the birtii. 
 
 , ss. To, fye. 
 
 Whereas A. M., of , in the said county, single woman, hath 
 
 ly her voluntary examination, taken in writing, upon oath, before 
 me, , one of the justices of the peace, in and for the said coun- 
 ty, this present day, declared herself to be with child, and that the 
 said child is likely to be born a bastard, and to be chargeable to 
 
 the town of , in the said county, and that A. F., of , in 
 
 the said county, weaver, is the father of the said child : And 
 whereas O. P., one of the overseers of the poor of the town of 
 , aforesaid, in order to indemnify the said town in the pre- 
 mises, hath applied to me to issue out my warrant for the appre- 
 hending of the said A. F., I do hereby command you, immedi- 
 ately, to amjrehend the said A. F., and to bring him before me, 
 or some other of the justices of the peace for the said county, to. 
 
 find security to indemnify the said town of , or else to find 
 
 sufficient security for his appearance at the next general sessions 
 of the peace to be holden for the said county, and to abide and 
 perform such order or orders as shall be made in the premises, 
 in pursuance of the act in such behalf made and provided. 
 Given, &c. 
 
 The like after the birth. 
 
 -, , s*. To, 8fc. 
 
 Whereas A. M., of -, in the said county, single woihan 
 [ 55 ] 

 
 434 APPENDIX." 
 
 hath by her examination, taken in writing, upon oath, before me, 
 , one of the justices of the peace in- and for the said coun- 
 ty, declared, that on the day ok , now last past, at 
 
 in the town of , in the county aforesaid, she, the said, A. M., 
 
 was delivered of a (male) bastard child, and that the said bastard 
 child is likely to become chargeable to the said town of - 
 1 arid hath charged A. F., of - , in the said county, weaver, 
 with having gotten her with child of the said bastard child: And 
 whereas O. P., one of the overseers of the poor, [and sv on, as 
 in the foregoing precedent, to the end.] 
 
 Commitment thereupon . 
 
 ^ 
 
 To any constable of the town of - , in the said county, and 
 to the keeper of the house of correction, [or common gaol] at -- , 
 in the said county : 
 
 Whereas A. M., of -- , single woman, in her voluntary exa- 
 mination taken. in writing, upon oath, the -- day of - , now 
 last past, before me, -- , one of the justices of the peace in and 
 for the said county, hath declared herself to be with child, and 
 ' that the said child is' likely to be born a bastard, and to be 
 chargeable to the said town of -- , and hath charged A. F., of 
 --- , gentleman, vrith having gotten her with child of the 
 said child : (or, if it le after the birth, then say : Whereas A. M., of 
 -- /single woman, in her examination taken 'in writing upon 
 oath, before me, -- , one of the justices of the peace in and for 
 the said county, hath declared, that on the -- day of -- , now- 
 last past, at - , in the town of , in the county aforesaid, 
 she, the said A. M.. was delivered of a (male) bastard child, and 
 that the said bastard child is likely to become chargeable to the 
 said town of -- , and hath charged A. F., of -- , weaver, with 
 having gotten her with child of the said bastard child:) And 
 whereas the said A. F., being now personally present before me, 
 being brought by my warrant, upon application for that purpose 
 to me made, by O. P., one of the overseer? of the poor of the said 
 town, hath refused to give security to indemnify the said town, 
 and hath also refused to enter into recognisance with a sufficient 
 surety, upon condition to appear at the next general sessions of 
 the peace to be holden for the said county, and to abide and per- 
 form such order or orders as shall be made in the premises, in 
 pursuance of the act in such behalf made and provided. These are, 
 therefore, to command you, the said constable, to take and con- 
 vey the said A. F. to the house of correction, [or common gaol,] 
 at -- , in the said county, and to deliver him to the keeper 
 thereof, together with this warrant. And I do hereby command 
 you, the said keeper of the said house of correction, [or common
 
 APPENDIX. 435 
 
 gaol,] to receive the said A. F. into your custody in the said house 
 of correction, [or common gaol,] and him there safely to keep, until 
 he shall give such security, or enter into such recognisance as 
 aforesaid, or be otherwise lawfully delivered from thence. 
 Given, &c. 
 
 Bond to indemnify the town. 
 
 Know all men by these presents, that we, A. F., of , in the 
 
 county of , gentleman, and A. S., of , farmer, are held 
 
 and firmly bound unto , overseers of the poor of the town of 
 
 , in the said county, (in trust for the inhabitants of the said 
 
 town,) in the sum of dollars, good and lawful money of tlie 
 
 state of New-York, to be paid to the said , or their certain 
 
 attorney, executors, administrators, or assigns. To which pay- 
 ment well and truly to be made, we bind ourselves, and each of 
 us, jointly and severally, arid our, and each and every of our 
 heirs, executors and administrators, firmly by these prevents. 
 
 Sealed with our seals, and dated the day of , in the 
 
 year of our Lord . 
 
 The condition of this obligation is such, that whereas A. M., 
 
 'if , single woman, hath in and by her voluntary examination, 
 
 taken in writing, and upon oath befoYe , one of the justices of 
 
 the peace, in and for the said county of , declared that she is 
 
 with child, and that the said child is likely to be born a bastard, 
 
 and to be chargeable to the said town of , and that the above 
 
 bounden A. F. is the father of the said child. (If it be after tlu>. 
 
 birth, then say : That whereas A. M., of , single woman, in her 
 
 examination, taken in writing, upon oath, before , one of the 
 
 justices of the peace in and for the said county, hath declared, 
 
 that on the day of , now last past, at , in the town 
 
 of , in the county aforesaid, she, the said A. M., was deliver- 
 ed of a (male) bastard child, and that the said bastard child is like- 
 
 ly to become chargeable to the town of , and hath charged 
 
 tile above bounded A. F. with having gotten her with child of 
 the. said bastard child.) If, therefore, the said A. F. and. A. S.. or 
 either of them, their, or either of their heirs, executors, or ad- 
 ministrators, do. and shall from time to time, and at all t'mu's herf- 
 after, fully and clearly indemnify and save harmless, as well the 
 
 above mentioned overseers of the poor of the said touu of , 
 
 and their successors, for the time beinfc, as also all and singular 
 
 the other inhabitants of the said town of . which now en 
 
 hereafter shall be, for the. time being, of and from all manner .: 
 costs, taxes, rates, assessments, and charges whatsoever, for or 
 by reason of the birth, education, and maintenance of tin- said 
 chili"!, and of and from all actions, suits, troubles, and other ci. 
 and demands w-h:;t-;oever. tour!, ing or concerning the same, then
 
 436 APPENDIX. 
 
 this present obligation to be void, otherwise to remain in full 
 force and effect. 
 
 A, F. 
 A. S. 
 
 Sealed and delivered ) 
 in the presence of } 
 
 A. W. 
 
 B. W. 
 
 Recognisance for the reputed father to appear at the sessions 
 
 Be. it remembered, that on the day of , in the year of 
 
 our Lord , A. F., of ^-, in the county aforesaid, labourer, 
 
 and A. S., of , in the county aforesaid, yeoman, personally 
 
 came before me, J. P., esquire, one of the justices of the peace 
 in and for the said county, and acknowledged themselves to owe 
 to the people of the state of New- York, that is to say, the said 
 
 A. F., the sum of , and the said A S., the sum of - , of 
 
 good and lawful moey of the state of New- York, to be made 
 and levied of their goods and chattels, lands and tenements res- 
 pectivelyj to the use of the said people, if the said A. F. shall 
 make default in the condition under written. 
 
 Whereas A. M., &tc. [as in the preceding precedents, varying ac- 
 cording as the examination was before or after birth :] The con- 
 dition of this recognisance is such, that if the above bounden 
 A. F. do, and shall appear at the next general sessions of the 
 peace to be holden for the said county, and shall abide and per- 
 form such order or orders as shall be made in the premises, in 
 pursuance of the act in such case' made and provided, then this 
 recognisance to be void, otherwise to remain in full force and 
 effect. 
 
 Summons of the Overseers to show cause why the reputed father 
 should not be discharged out of prison, ichen no order fiath been 
 made ivithin six weeks after the birth of a child*. 
 
 ss. To, 
 
 Whereas application hath been made unto me, J. P., one of the 
 justices of the 'peace in and foK. the said county, residing in or 
 near the town of , in the said county, by A. F., now aprt- 
 
 * A form of the complaint or application mny ho easily made out from 
 the summons.
 
 APPENDIX. 
 
 aoner in the house of correction, [o? in the common gaol,] at , 
 
 in the said county ; being charged by A. 31.. of , in (he said 
 
 county, singlewoman, in and by her voluntary examination, taken 
 
 in writing upon oath, the day of - , now last past, 
 
 before me, with being the father of a child, with which sjie de- 
 clared herself to be then pregnant, and that the said child was 
 likely to be barn a bastard, and to be chargeable to the said town 
 
 of : And whereas the said A. F. was on the day of 
 
 , last past, brought before me, by virtue of my warrant, 
 
 upon application for that purpose to me made, by O. P., one of 
 the overseers of the poor of the said town, and did then refuse 
 to give security to indemnify the said town, and also refused to 
 enter into recognisance with sufficient surety, upon condition to 
 appear at the next general sessions of the peace, to be holden 
 for the said county, to abide and perform such order or orders as 
 should be made in the premises, in pursuance of the act in' such 
 case made and provided : And whereas he, the said A. F., was tin 
 the day of , by me committed to the house of cor- 
 rection, [or gaol,] at , aforesaid, in pursuance of the act in 
 
 that case made and provided : And whereas the said A. F. doth 
 allege, that it is more than eight weeks since the said A. M. was 
 delivered of the said bastard child, and that no order hath been 
 made in the premises : These are therefore to require you, the. 
 said constable, to sumrrton the overseers of the poor of the said 
 
 town of , to appear before me, at , in the said 
 
 county, on the day of next, al the house of 
 
 , on the noon of the same day, to show cause*why 
 
 the said A. F. should not be discharged frorm his imprisonment, 
 in the said house of correction, [or gaol :] And Ite you then 
 there to certify what you shall have done in the execution 
 hereof. Herein fail you not. Given, .fee. 
 
 Liberate thereupon. 
 
 J. P., esquire, one of the justices of the pence, in the said 
 county, to the keeper of the Chouse of correction, [or com mat 
 ffaoZ,] at , in the said county : 
 
 Whereas A. M., of , in the said county, single woman, in 
 
 and by her voluntary examination, taken in writing, upon oath. 
 
 the day of , now last past, before me, the Justin 
 
 aforesaid, declared herself to be with child, and that the said 
 child was likely to be born a bastard, and that A. F., of , in 
 the said county, farmer, did get her with child of the s.-.id baM.mi 
 child. And whereas the said A. F., now in your custody, iu yt un- 
 said house of correction, [or ggol.~\ hath applied to me. to IK- (!;- 
 charged from his imprisonmert: And whereas O. P., "he of -the
 
 4, ;a APPENDIX. 
 
 rs of the poor of the said town, hath this day appeared 
 before me, having been duly summoned for that purpose, hut 
 hath not shown any cause why the said A. F. should not be dis- 
 charged as the statute in that case directs : ( Or if no overseer 
 appear : And where -is it hath been duly proved upon the oath of 
 A. C., constable of - , in the said county, that the overseers 
 of the ptfor of the said town of -- , were duly summoned to 
 show" cause why the snid A. F. should not be discharged from 
 his imprisonment, as the statute in that behalf directs ; but that 
 all of the said overs^rs have neglected to appear before me at 
 the time and place appointed by my summons :) And it appear- 
 ing unto me on the oath of A. W., of - , thai it is now morr 
 than eight tfeeks since the said A.M. was delivered of the s;ti<l 
 bastard child ; and al?o that no order hath been made in the p<e- 
 mises : These are therefore to authorise and require you, the said 
 keeper of tho paid house of correction, [or ooZ,] to forbear t-> 
 detain the said A. F. any inojrcr in your custody, and to release 
 him from thf-nce, and to ^ifTV-r him to go at large, provided he 
 be not detained in your custody for any other cause. Given, &c. 
 
 Warrant of two justices for the mother, with a summons for the re- 
 puted father, to '../' e the order of filiation and maintenance, -inder 
 the first sect, of the act. (ante, p. 49 .) 
 
 , ss. To, fyc. 
 
 Whereas information hath been made to us, A. B. and C.I/'., 
 esquires, two of the justices of the peace in and for the said 
 
 comity, the said A. B. residing in [or near] the town of . , in 
 
 the said county, as well upon the complaint of the overseers of 
 
 the poor of the said town, as on the oath of A. M., of ,in the 
 
 said county, singleworaan, that on the day of , last past, 
 
 she, the said A. M., was delivered of a (male) bastard child, at 
 
 , in the said town, and that A. F., of ,in the said county, 
 
 tailor, is the father of the said bastard child, and that the said 
 hiplard child is now living, and chargeable [or likely to become 
 chargeable] to the said town of : These are therefore to com- 
 mand you to bring the said A. M. before us, at the hou^e of , 
 
 in , in the said county, on the day of , at the 
 
 hour of , i the afternoon of the same day, to be by us fur- 
 
 t!,,, r examined tokening the premiss, and that you give notice 
 f utitn the said A. F., that he may likewise he at the time 
 and p* :? aforesaid, to make his lawful defence : To the end that, 
 jpon thf iMajnination of the cause and circumstance, we may 
 take such order therein as to right doth appertain. And what 
 you shall do in the execution hereof, you are to make known 
 unto us at the time and place aforesaid. Given, i<c.
 
 APPENDIX, 
 
 Order of JUiaiion am,& maintenance. 
 
 ss. 
 
 The order of J. P. and K. P., esquired, two of the justices of the. 
 peace in and fur the said county, the said J. P. 
 
 wear] the town of , in the said county, - day 
 
 of , in the year of our Lord , concerning a (male) h, 
 
 lately born in the town of , aforesaid, of tin; body of 
 
 A. M., single woman : 
 
 \\hereasit hath appeared onto us, the said justices, as 
 upon the complaint of the overseers of the poor of the said 
 
 of , P.S upon the oath of the said A. M., that she, the said A. M., 
 
 on the day of , now last past,'was delivered of a (male) 
 
 1 o^ild, at , in the town of , in the said count' 
 
 that the said bastard child is now chaigea' d t;vvn 
 
 of , >;nd likely so to continue; and further, that A F., of , 
 
 said county, farmer, did beget the said bastard child on the 
 body of her, the said A. M. And whertM-; :hr said A. F. hah ap- 
 peared before us, in pursuance of ot;r s'mumms for that purj.usf. 
 but hath not shown any sufficient c'ause why In-, the said A. F., 
 shall not be th& reputed father of tile said bastard child : (Or; And 
 whereas it hath beeo duly proved to us upi u, the said A. F. 
 
 'hath be on duly sunotnontd to appear h ..! justices, 
 
 to the end \ve might examine i;ii) the cause and circumstance of 
 the premises ; and whereas he, the said A. F., hath neglected to 
 appear before us, according to the paid summons :) We, therefore, 
 upon examinat' . ause, and rivi.-uiiistance of the premises, 
 
 as well upon the oath of the said A. M. as otherwise, do hereby 
 adjudge him, the said A, F., to be the reputed father of the said 
 bastard child. 
 
 And thereupon, we do order, as well for the better relief of 
 
 the said town of , as for the sustentation and relief of the said 
 
 bastard child, that the said A. F. shall, and do forthwith, upon 
 notice of this, our order, pay, or cause to be paid tutho said ovei- 
 
 seers of the poor of the said town of , or to one of them, the 
 
 sum of , for and towards the lying-in of the said A. M., and 
 
 the maintenance of the said bastard child to the time of makii,,, 
 this our ordi-r. 
 
 And w r e do also, hereby further order, that the said A, P. shall 
 likewise pay, or cause to be paid to the overseer* of the poor oi 
 
 the saJd town of , for the time being, or to scfme or one of 
 
 tfieni, the sum of , weekly and every week, from this present 
 
 time, for and towards the keeping, sustentation, and maintenance 
 of the said bastard child, for and during so long time as the said 
 bastard child shall be chargeable to the said town of . 
 
 And we do further order, that the said A. M. shall also pay, or 
 cause to be paid to the said overseers of the poor of the 
 town of , for the time bi-ing, or to some one of them, tin;
 
 440 APPENDIX. 
 
 \ 
 
 sum of weekly and every week, so long as the said bastard 
 
 child shall be chargeable to die said town of , in case she 
 
 shall not nurse and take charge of the said child herself. 
 
 Given under our hands and seals, the day and year first above 
 written. 
 
 Commitment far not obeying the order of filiation. 
 
 :, ss. 
 
 To any constable of the town of , in the said county, and 
 
 to the keeper of the ho'use of correction, [or common gaol,] at 
 , in the said county. 
 
 Whereas by an order, under the hands and seals of us, J. P. 
 and K. P., two of the justices of the peace in and for the said 
 
 county, the said J. P., residing in [or near] the town of , in 
 
 the said county, A. F., of , in the said county, farmer, is ad- 
 judged to be the reputed father of a male bastard child, lately 
 
 born of the body of A. 51., of , singlewoman, at , in the 
 
 said town of : And whereas it was in and by such order 
 
 ordered 1 , [here insert the substance of the order:] And where- 
 as it appears to us, the said justices, on the oath of O. P., 
 
 of , that the : said A. F. had due notice of the said order, 
 
 a true copy thereof in writing having been personally delivered 
 
 to him, the said A. F., on the day of , last past, by 
 
 the said O. P. : And whereas the said A. F. hath not observed 
 nor performed the said order : These are, therefore, to charge 
 and command you, the said constable, forthwith to apprehend 
 the said A. F., and him safely to convey to the common gaol at 
 
 , in the said county, and there deliver him to the keeper 
 
 thereof, together with this precept. And we do also hereby 
 command you, the said keeper of the said common gaol, to re- 
 ceive, the said A. F. into your custody in the said common gaol, 
 and him there "safely to keep, except he shall put in sufficient 
 surety to perform the said order, or personally to appear at the 
 next general sessions of the peace to be holden in and for the said 
 county; and also to abide v such order as the said justices of the 
 peace, or the major part of them, in their said sessions, shall 
 make in that behalf, if they then and there shall make any ; and 
 if at the said sessions, the said justices shall make no other 
 order, then to abide and perform the order before made. 
 Given, &c.
 
 APPENDIX. 
 
 of a recognisance to appear at the nert sessions afitr the, 
 order, not performed. 
 
 Whereas, by an order under the hands and seals of us, &te., 
 
 A- 3., of , &c., is adjudged to be the reputed father of a bastard 
 
 child, lately born of the body of A. M., of , single -woman, 
 
 at , in the said town of : [and then set forth what wars 
 
 ordered therein further:] And whereas the said A. F. hath not ob- 
 served, nor performed the said order; the condition, therefore, 
 of this recognisance is such, that if the above bounden A. F. shall 
 observe and perform the said order, or shall personally appear at 
 the next general sessions of the peace, to be holden in and for thr; 
 said county, and shall then and there abide such order as shall 
 be then made by the said justices of the peace, or the major 
 part of them, in their said sessions, concerning the said bastard 
 child, if they then and there shall make any ; and if at the s;tid 
 sessions the said justices shall make no other order, then U abide 
 and perform the order before made by us in the premises afore 
 said, then this recognisance to be void, otherwise to remain in 
 full force and effect. 
 
 Order to seize the goods, Sfc. of the father or mother of bastard chd- 
 dren, who shall run away. 
 
 To the overseers of the poor of the town of , in the said 
 
 county. f, 
 
 Whereas A. C. and B. C., overseers of the poor of the town of 
 
 - , in the said county, have made complaint unto us J. P. and 
 
 K- P., two of the justices of the peace in and for thf said county, 
 
 that Jl. F., late of the said town of , hath run away out of the 
 
 said town, and that the place of his abode h not known ; and that 
 
 the said A. F. hath left his male bastard child, aged years, 
 
 and born within the said town of , upon the charge of the 
 
 said town, although the said A. F. hath an estate sufficient to 
 discharge such town from the charge thereof : And whereas we, 
 the said justices, having duly examined into the cause and cir- 
 cumstances of the said complaint, as well upon oath as other- 
 wise, it doth appear unto us, and we do adjgdge that the said 
 complaint is true ; and we do also adjudge him, the said A. F., 
 to bo the reputed father of the said bastard child. These an-, 
 therefore, in the name of the people of the state of New-York, 
 to authorize you, the said overseers of the poor of the said 
 town, to ?eize and take the goods and chattels, and to let out and 
 recci'-o the annual rents and profits of the lands and tenement- of 
 the said A. F., so absconding a~ aforesaid, towards the bringing 
 
 [56]
 
 APPENDIX. 
 
 cip and providing for such bastard child ; and you are hereby re- 
 quired to attend at the next general sessions of the peace to be 
 holden in and for the said county, in order that the said seizure 
 may be then and there allowed of and confirmed, and you fur- 
 ther directed in the premises according to the form of the statute 
 in that case made and provided. Given, &c. 
 
 CERTIORARI. 
 
 Certiorari to the sessions to remove an indictment. 
 
 The people of the state of New-York : To our justices of thfr 
 
 peace of the" county of , in our court of general sessions of 
 
 the peace in the said county, greeting : We being willing, for 
 certain reasons, that a certain indictment for a trespass and as- 
 sault, whereof is indicted in our said court, before you, as 
 
 iti? said, be determined in our supreme court of judicature, and 
 not elsewhere ; do command you, and every of you, that you, 
 or one or more of you, do send under your seals, or the seal or 
 seals of one or more of you, before ourjustices of our supremo 
 
 court of judicature, at , on , the said indictment, with 
 
 all things touching the same, together with this our writ, that our 
 said court may further thereupon cause to be done therein what, 
 of right ought to be done. Witness, Smith Thompson, esquire, 
 our chief justice at , the day of . 
 
 , attorney. , clerk. 
 
 Return thereon indorsed. 
 
 The execution of this writ appears in the schedule thereto 
 annexed. 
 
 A. B., justice. 
 
 Schedule. 
 
 , M. 
 
 We, , justices of the peacQ .of the said county of , by 
 
 virtue of the writ to us delivered, do, under our seals, certify un- 
 to the justices of the people of the state of New-York, of the su- 
 preme court of judicature of the same people, the indictment of 
 which mention is made in the said writ, together with all matters 
 touching the said indictment. In witness whereof, we have to 
 these presents set our seals. Given at -, the day of .
 
 APPENDIX. 
 
 Ctrtiorari to a justice to remove a judgment. 
 
 The people, Sic. To A. B., esquire, one of the justices of the 
 
 peace for o*r county of : Greeting. Whereas , lately 
 
 In a court held before you, impleaded one , in an action of 
 
 , and such proceedings have been had in the said cause that 
 judgment hath been given by you in your said court against the 
 
 said , as it is alleged ; and we being willing, for certain reasons, 
 
 that the record of the said proceedings and judgment should be 
 certified by you to our supreme court, do therefore command 
 you, that you send, under your seal, the record' of the said pro- 
 ceedings and judgment, with the process, pleadings, and other 
 things touching the same, to our justices of our supreme court of 
 
 judicature, at , on , in as full and ample a manner as the 
 
 same remain before you, together with this writ, that our said 
 court may further cause to be done herein what of right ought tw 
 be done. Witness, &E.C. 
 
 Return thereon, indorsed. 
 
 The execution of this writ appears iu the schedule annexed. 
 
 A. B., justice. 
 
 Schedule.. 
 
 , ss, 
 
 I, A. B, one of the justices of the peace for the county nf'*;^ 
 said, do certify to the justices of the people of the state of New- 
 Vork, of the supreme court of judicature of the same people, that 
 
 on , at , in the county aforesaid, in the said writ named, 
 
 complained before me against E. F. ; also, in the said writ named, 
 of a plea of trespass, [or trespass on the cose,] to his damage twt-n- 
 ty-five dollars, [or, if in debt ; of a plea that the said E. F. render 
 la the said C. D. twenty-Jive dollars, which he oircs to, and unjustly 
 detaa,KS from him,] and asked of me process on his said complaint, 
 whereupon, in pursuance of the authority given to me, in and by 
 the a<;t for the recovery of debts to the value of twenty-five dol- 
 lars, I issued a summons, directed to any constable in the said 
 county, commanding him to summon the said defendant to ap- 
 pear before me, at , on . to answer the said plaintiff, in a 
 
 plea, kc. ; which said summons, on the day mentioned therein 
 for the return, was delivered to me by G. II., one of the con- 
 stables of the town of , in the said county, with an indorse- 
 ment thereon, signed by him, that he personally served the same 
 
 on the defendant, on the day of . And 1 do also certify 
 
 that on the said day of , as well the said plaintiff as the 
 
 said defendant appeared before me, at , in the said conn" 
 
 and the said plain tiff declared Hguinst the said defendant., that th*
 
 444 APPENDIX. 
 
 said defendant TV as indebted to the said plaintiff in the sura of 
 twentj'-five dollars, for goods, wares, and merchandise, sold and 
 delivered by the said plaintiff to the said defendant, at the request 
 of the said defendant, and that the said defendant being so in- 
 debted, in consideration thereof, promised and undertook to pay 
 the said plaintiff the said sum of twenty-five dollars, when he, the 
 said defendant, should be thereunto afterwards requested : [or 
 otherwise, as the case may be:] and the said defendant being call- 
 ed upon to answer the said complaint, said, that he did not pro- 
 mise and undertake in manner and form, as the said plaintiff had 
 above thereof complained against him, [or, that he toas not guilty 
 of the said supposed trespasses, Sfc. ; or that he did not oive the said 
 sum, fyc., as the case may be.] And issue being so joined between 
 the said parties, the plaintiff demanded that the same should be 
 tried by a jury, upon which demand I issued a venire, directed to 
 any constable of the town of , in the said county, command- 
 ing him to summon twelve good and lawful men, being freehold- 
 ers of such town, and who should be in no wise of kin to the plain- 
 tiff or defendant, nor interested in the said suit, to be and appear 
 
 before me at , in the said town, on , tomake a jury for 
 
 the trial of the action aforesaid, to which said day and place I ad- 
 journed the said cause ; at which time and place G. H., one of the 
 
 constables of the said town of , returned the said venire to 
 
 me, with a panel, containing the names of twelve persons sum- 
 moned by him for the jury aforesaid. And I do also certify that 
 on the day, and at the place last aforesaid, the said plaintiff and 
 defendant appeared before me, and the names of the persons so 
 impannelled being written on ballots and drawn for as is prescri- 
 bed by the act aforesaid, six of the persons so impannelled, to 
 wit : N. O., P. Q., &cc. being [were] duty elected, tried, and sworn, 
 well and truly to try the matter in difference between the parties 
 aforesaid, and to give a. true verdict, according to evidence, after 
 hearing [if the evidence is set forth in the return, say, proceeded to 
 hear] the proofs and allegations of the parties which were deliver- 
 
 * ed in public in their presence, [and thereupon one S. L., a witness, 
 produced on the part of the said plaintiff, being duly sworn by me, the 
 said justice, testified, Sfc. ; whereupon the said jurors, after hearing 
 the said testimony,] *said, upon their oaths, that the said defend- 
 ant did promise and undertake, in manner and forms as the said 
 plaintiff hath complained against him, [or as the issue may be,] and 
 they assessed the; damages of the said plaintiff, by occasion of the 
 
 1 premises, over and above his costs, to : Whereupon, I, the 
 
 said justice, in pursuance of the directions of the said act, did 
 then and there adjudge that the said plaintiff recover against the 
 said defendant the said sum of , by the jury between the 
 
 * If the jury retired to deliberate on their verdict, it should be ftated; 
 as also, that a constable was sworn to attend them.
 
 APPENDIX. 445 
 
 said parties, as aforesaid assessed, and also , for his costs in 
 
 prosecuting his said complaint before me, [according to thr hill 
 thereof, hereto annexed.] All which I send with the process, plead- 
 ings, and other things, touching the aforesaid proceedings and 
 judgment, in as full and ample a manner as the same remain be- 
 fore me, as within I am commanded. Given under my hand am.' 
 
 seal, this day nf . 
 
 \. B., justice 
 
 COMMITMENT. 
 
 Mittimus for felony. 
 
 To the keeper of the gaol at - , in the said county. 
 
 Whereas A. O., late of -- , in the said county, labourer, ha-tLi 
 been arrested by the constable of - , in the said county, for SUP 
 picion of a felony by him, as it is said, committed, in stealing a 
 black mare of the value of twenty dollars, the property of A. P., 
 of -- , in the said county, farmer: Therefore, on the behalf of 
 the people of the state of New-York, I command you that you 
 veceive the said 1 A. O. into your custody in the said gaol, there tn 
 remain until he be delivered by due course of law. Given under 
 my hand and seal at -- , in the said county, the -- day of 
 -- , in the year - . 
 
 form of a warrant of commitment in general. 
 
 To any constable of the town of -- , in the said county, and 
 to the keeper of the gaol at - , in the said county. 
 
 These are to command you, the said constable, in the name of 
 the people of the state of New-York, forthwith to convoy and 
 deliver into the custody of the said keeper of the said gaol the 
 body of A. O., charged upon the oath of A. P., of -- . ip the 
 said county -- , before me with [here specify ihc offence.] And 
 you, the said keeper, are hereby required to receive the said 
 A. O. into your custody in the" said gaol, and him there stifely 1<> 
 keep, [here set forth the time,] or until he shall be thence ddiv r< ' 
 by due course ofhw. Herein fail you not. Given, kc.
 
 44*> APPENDIX 
 
 CONVICTION. 
 
 General form of conviction. 
 Uottnty of ) 
 
 Be it remembered, that on the day of , in tin- 
 year of our Lord , at , in the county of - 
 
 A. J., of , in th said county of , blacksmith, [whd 
 
 prosecutes, as well for the people of 'the stale of Neiv-York, as 
 for himself, in this behalf ; or, ivho prosecutes as well for the 
 
 poor of the town of , in the county of , as for himself 
 
 in this behalf,] in his proper person cometh before me , one 
 
 of the justices assigned to keep the peace in and for the said 
 county, and also to hear and determine divers felonies, tres- 
 passes, and other misdemeanors in the said county committed. 
 
 and [on his corporal oath] giveth me, , the said justice, to 
 
 understand and be informed, that within , now last past, 
 
 that is to say, on the day of - , one A. O., of , in 
 
 the county of - , shoemaker, (here insert the information.) 
 against the form of the statute in such case made and provided : 
 whereby, and by force of the said statute, the said A. O. hath 
 
 forfeited, for his said offence, the sum of , of lawful money 
 
 of the state of New-York, and thereupon the said A. I. humbly 
 prays the judgment of me, the said justice, in the premises, ac- 
 cording to the form of the Statute in such case made and pro- 
 vided, and that the said A. O. may be summoned to answer the 
 said premises, and to make his defence before me the said justice.* 
 Whereupon the said A. O., having been duly summoned in this 
 behalf, to answer and make his defence to the said information, 
 and to the saiti offence therein charged upon him, before me, the 
 
 said justice, afterward*, that is to say, upon the day of , in 
 
 the year aforesaid, at aforesaid, in the said county of , 
 
 appears, and is present before me, the said justice, in order to an- 
 swer and make good his defence to the said information, and the 
 said offence therein charged upon him as aforesaid ; and he, the 
 said A. ()., having heard the same, is asked by me, the said jus- 
 tice, if he can say any thing for himself, why lw, the said A. O., 
 should not be convicted of the premises above charged upon 
 him in form afore-paid ; (if the offender confesses the fact, say.) and 
 thereupon the said A. O. freely and voluntarily confesses the said 
 
 * Tf judgment were given against tlie defendant on his default in not ap- 
 pearing, the issuing of the summons, the non-appearance of the defeml- 
 Hiit, and proof, on oath, cf the service of ihe Miiunions, :hoi;ld be par- 
 v'r'ilar'y sia'ed, and that then the justice proceeded to examine into ihe 
 ;r'jtb of Ihe information.
 
 APPENDIX. 447 
 
 information, and the said offence, and all and singular the matter* 
 and things therein contained to be true, and dotli not show any 
 cause before me, the said justice, why he should not he convict- 
 ed of the said offence charged in the said information, [and Ifttn 
 go immediately to the judgment,] who pleads that he is not guilty of 
 
 the saidflffence. Nevertheless, on the said day of - , in 
 
 the year aforesaid, at aforesaid, in the said county of , 
 
 one credible witness, to wit, A. W., of , in the county of . 
 
 tailor, come* before me, the said justice, in hU proper person, 
 and being then and there duly sworn on his corporal oath by me, 
 the said justice, administered, deposes, swears, and upon his 
 oath aforesaid, says, in the presence and bearing of the said 
 A. O., that [here set forth the facts sworn to, and thtn the cross-(xa- 
 mination, if any ; then proceed in like manner to state the tsstimtinxj 
 of the other witnesses, if more loere examined] whereupon at! ami 
 singular the matters and things in the said information au ! efi 
 deuce contained, being by the said A. O. then heard and fully u:i 
 derstood, the said A. O. is by me, the said justice, aaked \vi 
 he hath to offer or say in his defence against the said information 
 and offence, and in answer to the evidence given as before men 
 tioned, and what he hath to say why he should not be convicted of 
 the premises so charged upon him, and the said A. O. thereupon 
 saith, that [here state the defence and the evidence in support of it, if 
 any ; or if the party, in this stage of the proceedings, confess the of- 
 fence, his confession should be stated :\* and forasmuch as upoi> 
 hearing and fully understanding the said information, and the evi 
 dence given as above mentioned, and also upon hearing and fully 
 understanding all and singular the matters and things !>y the. said 
 A. O. alleged and proved in his defence, touching the premises ia 
 the said information specified, it manifestly appears to me, the 
 said justice, that the said A. O. is guilty of tho premises above 
 charged upon him in the said information ; it is therefore ad- 
 judged by me, the said justice, upon due proof thereof made to 
 my satisfaction, that all and singular the matters and things in the 
 said information contained, are true, and thereupon I, the said 
 justice, on, &.C., at, fee., do convict the said A. O. of the offence 
 aforesaid, in and by the said information charged against him, 
 and he, the said A. O., is hereby convicted thereof by me, the 
 said justice, upon the oath of one [or tu>o] credible, witness, [or 
 witnesses,] [or upon his free and voluntary confession,] according- 
 to the form of the statute in such case made and provided ; and 
 I, the said justice, do adjudge that the said A. O., for his offence 
 
 aforesaid, hath forfeited the sum of , of lawful money of llu 
 
 state of New-York, to be distributed as the law directs ; and 1 
 
 * From the precedent in Burns' tit. Conviction, whi.-h I liave princi- 
 pally followed, it seem?, that where the evidence hi Mipport of the de- 
 fence is not sufficient to entitle the party to ah acquittal, it u not nt 
 cessary to state sui'h evidence. 
 
 .
 
 443 APPENDIA. 
 
 do further adjudge, that the said A. O. do forthwith pay to the 
 
 said A. I., the sum of , of like lawful money, for his costs 
 
 in and about the premises. In witness whereof, I, th said jus- 
 tice, to this record of conviction, have put my hand and seal, at 
 
 , aforesaid, in the said county of , the said day of g. 
 
 in the year of our Lord . 
 
 FORCIBLE ENTRY AND DETAINER. 
 
 Indictment for a forcible entry and detainer. 
 
 , , P<? 
 
 The jurors for the people of the state of New- York, upon 
 
 Iheiroath, present, that A. I., late of the town of , in the 
 
 county aforesaid, gentleman, on the day of , in the 
 
 year , was possessed of a certain messuage with the appur- 
 
 lenances, situate, lying and being in , the town aforesaid, in 
 
 the county aforesaid, for a certain term of years then and still to 
 come and unexpired, and being so possessed thereof, one A. O., 
 
 late of , in the said county, farmer, afterwards, to wit, the said 
 
 day of ; , rn the year aforesaid, in the town and county 
 
 aforesaid, with force and arms, and with strong hand, unlawfully 
 did enter, and the said A. I., from the peaceable possession of 
 the said messuage, with the appurtenances aforesaid, then and 
 there, wi,th force and arms, and with strong hand, unlawfully did 
 expel and put out; and the said A. I., from the possession thereof, 
 so as aforesaid with force and arms, nnd with strong hand, being 
 unlawfully expelled and put out, the said A. O., him the said A. 
 
 I. from the aforesaid day of , in the year aforesaid, 
 
 until the day of the taking this inquisition, from the possession of 
 the said messuage, with the appurtenances aforesaid, with force 
 and arms, and with strong hand, unlawfully and injuriously then 
 nnd there did keep out, and doth still keep out, to the great da- 
 mage of the said A. I., against the peace of the said people, and 
 against the form of the statute in that case made and provided. 
 
 .TVb/e.-'-If it is a freehold, that is, an estate in fee, or for life, 
 then the party must be said to be seised thereof; and consequent- 
 ly he must be thereof disseised ; but of a lesser estate, as for year?, 
 or at will, he cannot be said to be seised, but only possessed, and 
 fl.ipn he must be expelled, ejected, amoved, or the like. 
 
 Record of conviction of a forcible detainer. 
 
 The following record and mittimus are taken from the case ot 
 Mather, v. Hood, 8 Johns. Rep. 44. The form of the record JU 
 said by the court to be, "agreeable to established precedents/ 5
 
 APPENDIX. jj'J 
 
 ifeneea eoiuity, ss. 
 
 Be it remembered, that en the 2d day of August, in the year 
 of our Lord, 1^,0:;, at the town of Fayette, in the county <>: 
 neca, aforesaid, Elisha Hartshorne complains to me, John Hood, 
 esquire, one of the justices of the people of the state of !Sew- 
 York, assigned to keep the pi-act- in the said county, and also to 
 hear and determine divers felonies, trespasses, and other misde- 
 meanors in the said county committed, that Ztrhariah Mather, 
 Eleazfr P. Mather, Lucius Mather, David Dumond, James Huff, 
 William Updikt, and Daniel Tucker, of the said town ofFayette, 
 into the messuage of him the said Elijah, in and upon certain te- 
 nements and possessions, situate in the said town ofFayette, did 
 enter, and him the said Elijah from the messuage, tenement, and 
 possession aforesaid, whereof the said Elijah, at the time of 
 the entry aforesaid was seised and possessed, unlawfully ejected, 
 expelled, and amoved, and the said messuage, tenement, and 
 possession, from him the said Elijah, unlawfully, with strong 
 hand and armed power, do yet hold, and from him detain, 
 against the form of the act in such case made and provided. 
 Whereupon the said Elijah, then, to wit, on the said 2d day of 
 August, at the town of Fayette, aforesaid, prays of me, so being 
 a justice as aforesaid, to him in this behalf, that a dm; remedy liu 
 provided, according to the form of the act aforesaid, which com- 
 plaint and prayer by me, the said justice, being heard, I, the said 
 John Hood, esquire, justice ats aforesaid, to the said tenement, 
 messuage, and possession, have, come, and do then and there find 
 and see the aforesaid Zechariah .Mather, Etcnzer P. Mather, Lucius 
 Mathtr, David Dumond, James Huff, ff'iliium Updike, and Da- 
 niel Tucker, the aforesaid messuage, tenement, and possession, 
 with force of arms unlawfully, with strong hand au<i armed power, 
 detaining, against the form of I he act in such case made and pro- 
 vided, according as he, the said Elijah, so as aforesaid, hath to 
 me complained. Therefore, it i* considered by the said justice, 
 that the aforesaid Ztchariah Mather, Elcazer P. Mather, L< 
 Mather, David Dumond, James Huff, William Updike, and Da- 
 niel Tucker, of the detaining aforesaid, with strong hand, by my 
 own proper view, then and there as aforesaid had, are convicted, 
 and every of them are convicted, according to the form of the 
 act aforesaid. Whereupon I, the said justice, upon every of the 
 aforesaid Zechariah Mather, Eleazer P. Mather, Lucius Mather, 
 David Dumond, James Huff, Jf'illiam Updike, and Daniel Tuckir, 
 do set and impose severally, a fine of ten dollars, of good and 
 lawful money of the state of Ntw-York, to be paid by them, and 
 every of them severally, to the said people of the state of New- 
 York, for their said offences : and do cause them, and every of 
 them, to be taken and arrested. And the said Zechariah, Ele- 
 azer, Lucius, David, James, William, and Daniel, being con- 
 victed, and every of them being convicted, upon my own proper
 
 APPENDIX. 
 
 view oi the tK resaid, with strong hand ar- 
 
 by me. the said justice, are committed, ai>d every of th 
 committed, to the common gaol of tiic said county of Seneca, 
 in the town of Ovid. b:i;ig the next gaol to the messuage afore- 
 ihere to abide respectively, until they siull have paid their 
 .il fuies respectively, to the people aforesaid, concerning 
 which the premises aforesaid. I make this my record. In wit- 
 ness whereof, I, the said John Hood, esquire, the justice afore- 
 to this record my hand and seal do set, at the town ot 
 r.iyette aforesaid, in the county aforesaid, on the 2d day of Au 
 it, iii the year of our Lord, 1 309.'' 
 
 AfiUtmua thereon, 
 
 -a counts. 
 
 John Hood, one of the justices, kc., to the keeper of the gaol. 
 K.C. Whereas, upon complaint made unto me, this present day. 
 y Elijah Harlshorne, of the town of Fayette. in said county. 
 1. the said John Hood, esquire, justice as aforesaid, went imme- 
 diately to the messuage, tenement, and possession of the said 
 Liijuh. at the town of Fayette aforesaid, in the said county, and 
 there found Zechariah .Mather, Eieazer P. ^father, David Dit- 
 iniliam Updike, and Danitl Tucker, of the 
 said town of Fayette. forcibly, with strong hand and armed power. 
 
 ::g the said tenement, messuage, and possession, against the 
 peace of the said people, and against the form of the act in such 
 
 made and provided. Therefore, I, the said justice, do send 
 you, by the bringers hereof, the bodies of the said Zschariait, 
 Klffi~(r, Lucius. David, James, Jf'illiam, and Daniel, convicted 
 of the said forcibly holding, by my own view, testimony and re- 
 c IK!, commanding you iu the name of the people of the state ol 
 New-York to receive them, the said Zechariah. Eltazer, Lucius. 
 D:ivid, Jc -'/n. and Daniel, into the said gaol of our said 
 
 county, and there safely to keep them and eveiy of them respec- 
 tively, until they shall have respectively p;ud the several sums of 
 ttn dollars each, of good and lawful money of the state of New- 
 York, to the said people, which I, the said justice, have set and 
 imposed upon each and every of them separately, for a fine and 
 
 'in l"ur their said trespasses respectively. Herein fail you not, 
 :he peril that may thereof ensue." tec. 
 
 Precept io the shtrijf to rtturn a jury. 
 
 R. W., esquire, one of the justices of the people of the state 
 
 \v-Yo ;k, assigned to keep the peace in the said county, and 
 
 alto to hear and determine divers felonies, trespasses, and other
 
 APPENDIX. 45] 
 
 misdemeanours in the said county committed, to the sheriff of the 
 said county, greeting: On behalf of the said people of tin- stat>- 
 of New- York, I command you, that you cause to come hel'm,; 
 
 me at , in the county aforesaid, on the day of , 
 
 next ensuing, twenty-four good and lawful men of your county. 
 each of whom shall have, in his own name or right, or in trust 
 for him, or in his wife's right, a freehold in land, messuages or 
 tenements, or of rents in fee or for life, of the value of one 
 hundred and fifty dollars, free from all reprises, debts, demand:.., 
 or incumbrances whatsoever, to inquire upon their oaths, for the 
 sai4 people, of a certain entry made with a strong hand (as it i.-^ 
 said) into the messuage of one A. I., at aforesaid, in tin- 
 county aforesaid, against the form of the statute in such C;IM- 
 made and provided. And you are to return upon every of ihe 
 jurors by you in this behalf to be impannelled, twenty shillings of 
 issues at the aforesaid day. And have you then there this IT, 
 cept. And this you shall in no wise omit, upon the jn-ril that 
 
 shall thereof ensue. Witness the said R. W., at , in th 
 
 county aforesaid, the day of , in the year . 
 
 The juror's uutk. 
 
 You shall true inquiry and, presentment make of all such thin-- 
 as shall come before you concerning a forcible, entry (or </i7uunr j 
 said to have been lately committed in the dwelling hoii:;i: of 
 
 gentleman, at , in this comity; you shall .-pare no one for fa 
 
 vor or affection, nor grieve any one for hatred or ill-will, but pro- 
 reed herein according to the best of your knowledge, and ar 
 cording to the evidence that shall be -riven to you: so help 
 you God. 
 
 The oath that A. F., your foreman, hath taken on his par: 
 and every of you shall truly observe and keep on your pan 
 help you God. 
 
 The. inquisition, indictment, or finding of the jury. 
 
 An inquisition for the people of the state of New-York indent 
 
 ed and taken at , in the said county, the day of , in 
 
 the year , by the oaths of , good and lawful men of the 
 
 said county, before J. P., esquire, one of the justices of the said 
 people assigned, &c., who say, upon their oaths aforesaid, that 
 
 A. I., of aforesaid, gentleman, long since lawfully and } 
 
 ably was seised in his demesne, as of fee, [if it is not fretkold, tin n 
 say, possessed] of, and in one messuage, with the appurt.-u.
 
 452 APPENDIX. 
 
 in aforesaid, in the county aforesaid, and his said possession 
 
 [and seisin] so continued until A. O., late of , farmer, B. O., 
 
 late of the same, labourer, and C. O., late of the same place, black- 
 smith, and other malefactors, unknown, the day of , now 
 
 last past, with strong hand and armed power, into the messuage 
 aforesaid, with the appurtenances aforesaid, did enter, and him 
 the aid A. I. thereof, disseised, and with strong hand expelled; 
 and him, the said A, I., so disseised and expelled from the said 
 
 messuage, with the appurtenances aforesaid, from the said 
 
 day of , until the day of the taking of this inquisition, with 
 
 like strong hand and armed power, did keep out, and do yet keep 
 
 out, to the great disturbance of the peace of the said people, and 
 
 against the form of the statute in such case made and provided. 
 
 We, whose names are hereunto set, being the jurors above 
 
 said, do. upon the evidence now produced before us, find 
 
 the inquisition aforesaid true. 
 
 A. B, 
 
 C. D., kr. 
 
 Precept to the sherijf to summon apctitjui-y to try the traverse. 
 
 , ss. 
 
 R. TV., kc. to. kc. I command you that you cause to come 
 before me, at, kc., on. kc., twelve, kc., (as in tfie former precept) 
 by whom the truth of the matter may be the better known, to 
 make a certain jury of the county, upon their oath to try a cer- 
 tain traverse of an indictment found for the said people of the 
 said state, and now pending before me, the said justice, against 
 A. O.. of , farmer, B. O., kc., for a certain entry [and de- 
 tainer] made with a strong hand into the messuage of one A. I., 
 
 in the town of , in the county aforesaid, against the form of 
 
 the statute in such case made and provided, and who are in no 
 wise of kin to the said A. O., B. O., kc. nor to either of them. 
 And you are to return, kc., [as in the precept to fUT.;moft the grand 
 jury to tkt end.~\ 
 
 Juror's oath. 
 
 You do swear that you will well and truly try the issue of tra- 
 verse joined between the people of the state of New-York and , 
 
 the defendants, and a true verdict give, according to evidence: 
 so help you God.
 
 APPENDIX, 453 
 
 Warrant to the sheriff fur restitution. 
 
 M. D., esquire, one of the justices of thu people. of the state oj 
 New-York, assigned, kc. : To the sheriff of the said county, 
 greeting: Whereas, by an inquisition taken before me, the jus- 
 tice aforesaid, at - , in the county aforesaid, on this preseni 
 - day of - , in the year -- , upon the oaths of --- , and by 
 virtue of the statute made and provided in cases of forcible en- 
 try and detainer, it is found that A. O., late of -- r-, farmer, and 
 B. O., late of - , labourer, on the - day of -- , now last 
 past, into a certain messuage with the appurtenances of A. J.. 
 of -- aforesaid, in the county aforesaid, gentleman, situate, ly- 
 ing, and being at - aforesaid, in the county aforesaid, with 
 force and arms did enter, and him, the said A. J. thereof, then 
 with strong hand did disseise and drive out, and him, the said 
 A. J., thus driven out from the aforesaid messuage, with the ap 
 purtenances, from the -- day of -- aforesaid, to this present 
 day of the taking of the said inquisition, with strong hand and 
 armed force did keep out, and do yet keep out, as by the inqui- 
 sition aforesaid, more fully appears of record : Therefore, on the- 
 behalf of the said people of the state of New- York, I charge and 
 command you, that, taking with you the power of the county, (if 
 it be needful,) you go to the said messuage and other the premises, 
 and the same, with the appurtenances, you cause to be reseis- 
 ed, and that you cause the said A. J. to he restored, and put 
 inta his full possession thereof, according as he, before the entry 
 aforesaid, was seised, according to the form of the said statute. 
 And this you shall in no wise omit, on the penalty thereon incum- 
 bent. Given under my hand and seal, at - , in the said county, 
 the - day of - , in the year -- . 
 
 POOR. 
 
 Warrant of two justices for the examination of a pauper, concerning 
 his settlement. 
 
 as. 
 
 To any constable, &tc. 
 
 Forasmuch as information hath been given to us, , two of the 
 
 justices of the peace, in and for the said county, by the overseers 
 
 of the poor of the town of , in the said county, that A. P. 
 
 hath come to inhabit in the said town, not having gained any le- 
 gal settlement therein, nor produced any certificate owning him to 
 be settled elsewhere, and that he, the said A. P.. is likely to he- 
 come chargeable to the said town of : These are, therefore.
 
 454 APPENDIX. 
 
 to require you to bring the said A. P. before us, at the house ol 
 
 , it) , in the said county, on , the day of , 
 
 in the afternoon of the same day, to be examined concerning the 
 place of his last legal settlement, and to be further dealt with ac- 
 cording to law. Given under our hands and seals, the tiny 
 
 of . 
 
 The form of a general order uf removal. 
 
 __ , ss . To, fyc. 
 
 Upon the information of the overseers of the poor of the town 
 
 of aforesaid, in the said county of , unto us, Avhose 
 
 names are hereunto ser, and seals affixed, being two of the justices 
 
 of 'ha peace in anu for the said county of , that J. T., and 
 
 M., his wife, T., truvr jon, aged eight years, and A., their daugh- 
 ter, aged four y-.'vrs, have come to inhabit in the said town of 
 
 , net having paint.'! > ''' r -.i\ settlement there, nor produced 
 
 any certific ue /- :ii-,g th< ;u, or any of them, to be settled else- 
 where, and that tho $:>.;( J. T., M.. his >vife, and T. and A., their 
 children, are likely to become chargeable to tiie said town of 
 
 : T 7-;, the .-:ik' ; as:i'U's, upon due proof made thereof, as well 
 
 upon rhe ex? rain.' lion of r.he said J. T., upon oath, as otherwise/ 
 and likewise upon diie consideration had of the premises, do ad- 
 jud^e the san.e to be true, and we do likewise adjudge that the 
 lawful settlement of them, the said J. T., and M., his wife, and T. 
 
 and A., their children, is in the town of , in the said county 
 
 of . And the said J. T., M., his w ife, and T. and A., their 
 
 children, having been ordered and directed by us, the said jus- 
 tices, by the day of , last past, to remove to the place 
 
 of their former settlement, and they having neglected [or refused] 
 to comply with the said order ; we do therefore command you 
 to convey the said J. T., M., his wife, and T. and A., their chil- 
 dren, from and out of the said town of , to the said town of 
 
 , and them to deliver to the overseers of the poor there, or 
 
 to some one of them, together with this, our order, or a true copy 
 thereof, at the same time showing to them the original ; and we 
 do also hereby require the said overseers of the poor of the said 
 
 town of to receive and provide for them, as inhabitants of 
 
 the said town. Given under our hands and seals, the day 
 
 of , in the year of our Lord . 
 
 Certificate. 
 
 We, the overseers of the town of , in the county of , 
 
 do hereby certify, own and acknowledge, that A. L., labourer.
 
 APPENDIX. 455 
 
 is an inhabitant legally settled in the town of aforesaid. In 
 
 witness whereof we have hereunto set our hands and seals, the 
 
 day of , in the year . 
 
 Attested by A. B 
 
 A. W. C. I). 
 
 B. W. 
 
 I, J. P., esquire, one of the justices of the peace in and for 
 the said county of , do approve of the above written certifi- 
 cate : And I do also certify, that A. B. and C. I)., the overseers of 
 
 the poor of the said town of , whose names arid seuls are to 
 
 the said certificate subscribed and set, have this day acknow- 
 ledged before me, the said justice, that they did severally sign and 
 seal the same, in the presence of A. W. and B. W., th witr.i 
 
 attesting such certificate. Given under rny hand this day 
 
 of . 
 
 Where the certificate has been proved by the attesting witnesses, ilr 
 folloiving may be the form of the acknowledgment. 
 
 I, J. P., esquire, one of the justices of the peace in and for the 
 
 aaid county of , do approve of the above written certificate. 
 
 And I do also certify, that A. W., one of the witnesses who at- 
 tested the same, hath this day made oath before me, the said 
 justice, that he, the said A. W., did see the overseers of the poor 
 
 of the town of aforesaid, whose names and seal* are there* 
 
 unto subscribed and set, severally sign and seal the same; and 
 that the names of A. W. and B. W., who are the witnesses at- 
 testing the said certificate, are respectively of their own proper 
 hand-writing. (Jiven under my hand this day of . 
 
 Order iodize tht, goods and receive the rents of parents or husbands 
 having run away. 
 
 To the overseers of the poor of the town of , in the said 
 
 onunty. Whereas it appears unto us, whose names are hereunto 
 set and affixed, two of the justices of the peace for the said coun- 
 ty, as well upon the complaint and application of the overseers of 
 
 the poor of the town of aforesaid, in the county aforesaid, 
 
 as upon due proof upon oath before us made, that A. O., late of 
 
 the town of aforesaid, in the county aforesaid, labourer, hatli 
 
 run away from , his wife and , his children, leaving them 
 
 a charge to the said town of , and that the said A. O. 
 
 hath some estate whereby to ease the said town of their said 
 charge in whole or in part: We do hereby authorize and com- 
 mand you, the said overseers of the poor of aforesaid, to 
 
 take and sei/e the goods and chattels, and to let out and r.
 
 APPENDIX. 
 
 the annual rents and profits of the lands and tenements of the 
 said A. O., within the said county, for and towards the maintain- 
 ing, bringing up, and providing for his said wife and children so 
 feft as aforesaid: And with this warrant you are to appear at the 
 next general sessions of the peace to be holden for the said coun- 
 ty, and certify then and there what you shall have done in the 
 execution hereof. Given under our hands and seals, at , in 
 the said county, the day of , in the year . 
 
 RECOGNISANCE. 
 
 Form of a recognisance. 
 
 Be it remembered, that on the day of , in the - 
 
 year of our Lord, , A. O., of , in the county aforesaid, 
 
 farmer, and A. S., of , in the county aforesaid, tailor, and 
 
 B. S.j of , in the county aforesaid, labourer, personally came 
 
 before me, J. P., esquire, one of the justices of the people of 
 the state of New-York, assigned to keep the peace in the said 
 county, and acknowledged themselves to owe to the said people ; 
 that is to say, the said A. O., the sum of one hundred dollars, and 
 the said A. S. and B. S., each the sum of fifty dollars, separately, 
 and of good and lawful money of the state of New-York, to be 
 made and levied of their goods and chattels, lands and tenements 
 respectively, to the use of the said people, if the said A. O. shall 
 make default in the condition hereon indorsed, [or hereunder 
 itmitcn.] 
 
 Acknowledged before me, 
 J. P. 
 
 The condition of the above written [or within written] recog- 
 nisance is such, that if the above bounden A. O. shall , then 
 
 the said recognisance to be void, or else to remain in full force 
 and virtue. 
 
 Condition of a recognisance to prefer a bill of indictment. 
 
 The condition of this recognisance is such, that if the abov* 
 bounden A. I. shall personally appear at the next general sessions 
 
 of the peace, to be holden at , in and for the said county, and 
 
 then and there prefer a bill of indictment against A. O., late of 
 
 , labourer, for the felonious taking and carrying away of 
 
 , the property of , and shall then and there give evi- 
 dence, concerning the same, to the jurors who shall inquire there- 
 of on the part of the said peopl : And in case the same be 
 found a true bill, then if the said A. I. shall personally appear be- 
 fore the jurors, who shall pass upon the trial of the said A. O.,
 
 APPENDIX. 457 
 
 and give evidence upon the said indictment, and not depart with- 
 out leave of the court, then this recognisance to be void. 
 
 Condition of a recognisance to answer to an indictment. 
 
 The condition of this recognisance is such, that if the above 
 bounden A O., shall personally appear at the next general <e><ioi!> 
 
 of the peace to be holden at , in and for tin- s;iid county, then 
 
 and there to answer to an indictment to be preferred against him 
 
 by A. I., of , labourer, for assaulting and beating him the said 
 
 A. I., and not depart without leave of the court, then this r 
 nisance to be void. 
 
 Condition of a recognisance to appear and give evidence. 
 
 The condition of this recognisance is such, that if the above 
 bounden A. W. shall personally appear at the next general ses- 
 sions of the peace to be holden at , in and for the said coun- 
 ty, and then and there give such evidence as he knoweth, upon a 
 
 bill of indictment to be preferred by A. I., of , labourer, to the 
 
 grand jury, against A. O., late of . , in the said county, yeoman. 
 
 for the feloniously taking and carrying away , the property 
 
 of , and in case the said bill be found a true bill, then if the. 
 
 said A. W. shall then and there give evidence to the jurors that 
 shall pass on the trial of the said A. O. upon the said bill of in- 
 dictment, and not depart thence without leave of the court, then 
 this recognisance to be void, otherwise to remain in full foive 
 and effect. 
 
 SEARCH WARRANT. 
 
 To any constable of the town of , in the said county. 
 
 Whereas it appears to me, J. P., esquire, one of the justio 
 the people of the state of New-York, assigned to keep the peace 
 
 in the said county, by the information, on oath, of A. I., of . 
 
 in the county aforesaid, labourer, that the following good?, lu 
 
 wit, , have, within days last past, by some person or 
 
 persons unknown, been feloniously taken, stolen and carried 
 
 away, out of the house of the said A. I., at aforesaid, in 
 
 the county aforesaid ; and that the said A. I. hath probable cause 
 to suspect, and doth suspect that the said goods, or part th- 
 are concealed in the dwelling-house of A. O., of - , in th 
 said county, yeoman ; these are, therefore, in the namr of the
 
 APPENDIX. 
 
 said people ot' the state of New-York, to authorize and require 
 you, with necessary and proper assistants, to enter, in the day 
 time, into the said dwelling-house of the said A. O., at afore- 
 said, in the county aforesaid, and there diligently to search for 
 the said goods ; and if the same, or any part thereof, shall be 
 found upon such search, that you bring the goods so found, and 
 also the body of the said A. O. before me, or some other of the 
 justices of the said people assigned to keep the peace in the 
 county aforesaid, to be disposed of and dealt with according te 
 'aw. Given under my hand and seal at, &.c. 
 
 SURETY FOR THE PEACE OR GOOD BEHAVIOUR, 
 
 Warrant for the peace or good behaviour. 
 
 , ss. To, fyc. 
 
 Whereas A. I., of , in the said county, labourer, hath per- 
 sonally come before me, and hath made oath, that he, the said 
 
 A. I., is afraid that A. O., of , in the said county, labourer, will 
 
 beat him, (wound, maim, kill, or do him some bodily hurt,) and 
 hath therefore prayed surety of the peace against him, the said 
 
 A. O., [or if for the good behaviour, that A. O., of , in the said 
 
 county, labourer, hath threatened to do some bodily hurt to him, the 
 said d. /., or to burn the house of him, the said A. I., and hath there- 
 fore prayed surety for the good behaviour against him the said A. O.\ 
 These are, therefore, on the behalf, and in the name of the 
 people of the state of New-York, to command you, that imme- 
 diately upon the receipt hereof you bring the said A. O. before 
 me, to find surety, as well for his personal appearance at the 
 
 next general sessions of the peace to be holden at , in and 
 
 for the said county, as also for his keeping the peace [or,jfor his 
 being of the good behaviour] in the mean time towards the good 
 people of this state, and chieily towards the said A. I. Given, fee. 
 
 Condition of a recognisance for the peace or good behaviour. 
 
 The condition of this recognisance is such, (hat if the abotfe 
 hnunden A. O. shall personally appear at the next general sessions 
 uf the peace to be holden in and for the county aforesaid, to do 
 and receive what shall then and there be enjoined him by the 
 onrt, and in the mean time shall keep the. peace [or be of the 
 good behaviour ; or shall keep the peace and be of the good behaviour] 
 towards the good people of this state, and especially towards 
 A. I., of , in the said county, labourer, then the said recog- 
 nll be void, or else to remain in full force and effect.
 
 APPENDIX. 
 
 Mittimus for want of sureties. 
 
 , M. 
 
 To any constable of the town of , in the said county, and 
 
 to the keeper of the gaol at , in the said county : 
 
 Whereas A. O., of , in the said county, labourer, is now 
 
 brought before me, J. S., esquire, one of the justices of the pence 
 in and for the said county, requiring him to find sufficient .sun. 
 to be bound with him in a recognisance for his personal appear- 
 ance at the next general sessions of the peace to be holden in and 
 for the said county, and in the mean time to keep the peace [o< 
 be of the good behaviour] towards the good people of this state, and 
 
 especially towards A. I., of , in the said county, labourer ; and 
 
 whereas he, the said A. O. hath refused and doth now refuse, 
 before me, to find such sureties: These are therefore, in the 
 name of the people of the state of New-York, to command you, 
 the said constable, forthwith to convey the said A. O. to the com- 
 mon gaol at , in the said county, and to deliver him to the 
 
 keeper thereof, there, together with this precept: And I do, in 
 the name of the said people, hereby command you, the said 
 keeper, to receive the said A. O. into your custody in the said 
 gaol, and him there safely to keep until he shall find such sun 
 ties as aforesaid. Given, fee. 
 
 Oath of the person demanding the surety. 
 
 You do swear that you are in fear of your life, 'or some bodil} 
 
 hurt to be done, or procured to be done you by A. O., of , 
 
 for that the said A. O. hath threatened to wound, maim, kill, &c. 
 [as the case may be.] and that you do not require the surety of 
 the peace [or of the good behaviour] from him for any private ma- 
 lice, vexation, or revenge, but for the necessary safety of youi 
 person. 
 
 WARRANT. 
 
 Warrant to apprehend affrayers. 
 
 To any constable of the town of , in the said county. 
 
 Whereas A. I., of , in the said county, hath this day madt 
 
 oath before me, J. P., esquire, one of the justices of the peace in 
 
 and for the said county, that on the day of , in the yrai 
 
 , A. O., of , labourer, and B. O., of , labourer, at 
 
 } in the said county, in a tumultuous manner made an affray
 
 i6U APPENDIX. 
 
 wherein the person of the said A. I. was beaten and abused by 
 them, the said A. O. and B. O., without any lawful or sufficient 
 provocation given to them, or to either of them, by him, the said 
 A. 1. : These are therefore to command you forthwith to appre- 
 hend the said A. O. and B. O., and bring them before me, or some 
 Other of the justices of the peace for the said county, to answer 
 the premises, and to find sureties, as well for their personal ap- 
 pearance at the next general sessions of the peace to be holden 
 for the said county, then and there t& answer to an indictment to 
 be preferred against them by the said A. I., for the said offence, 
 as also for their keeping the peace in the mean time towards the 
 good people of the state of New-York, and especially towards 
 him, the said A. I. Hereof fail not, as you will answer the con- 
 trary at yotir peril. Given under my hand and seal, at , in 
 
 the said county, the day of , in the year . 
 
 Warrant for an assault. 
 
 , ss. To, fa. 
 
 Whereas complaint hath been made before me, J. P., esquire, 
 one, fcc. upon the oath of A. I., of , in the said county, tai- 
 lor, that A. O., of aforesaid, butcher, did, on the day 
 
 of , violently assault and beat him, the said A. I., at 
 
 aforesaid, in the county aforesaid : These are therefore, in the 
 name of the people of the state of New-York, to command you 
 forthwith to apprehend the said A. O., and to bring him before 
 me, to answer unto the said complaint, and to be further dealt 
 with according to law. Given, fee. 
 
 Warrant to apprehend a burglar. 
 
 Forasmuch as A. I., of, 8tc. hath this day made information and 
 complaint before me, J. P., esquire, one, 8tc., that yesterday, in 
 the night, the dwelling-house of him, the said A. I., at afore- 
 said, in the county aforesaid, was feloniously and burglariously 
 broken open, and one silver tankard, of the value of twenty dol- 
 lars, of the goods and chattels of him, the said A. I., feloniously 
 and burglariously stolen, taken, and carried away from thence ; 
 nnd that he hath just cause to suspect, and doth suspect, that 
 A. O., late of , in the county of ,.labourer, the said felo- 
 ny and burglary did commit : These are therefore, in the name 
 of the people of the state of New- York, to command you, that 
 immediately upon sight hereof, you do apprehend the said A. O., 
 nnd bring him before me to answer the premises, and to be fur- 
 ther dealt with according to law. Herein fail you not.
 
 APPENDIX. 
 
 Information against a person for felony. 
 
 The information and complaint of A. I., of , in the coun- 
 ty of , labourer, made on oath before me, J. P., <-s<|uir<-. 
 
 one of the justices of the peace for the said county, the day 
 
 of , in the year , that yesterday in the night, or early in 
 
 the morning of this day, divers goods of him, the said A. I., to 
 
 wit, , have feloniously been stolen, taken, and carried away 
 
 from the house of him, the said A. I., at aforesaid, in the 
 
 county aforesaid, and that he hath just cause to suspect, and doth 
 
 suspect, that A. O., late of , labourer, feloniously did steal. 
 
 take, and carry away the same : And thereupon he, the said A. i.. 
 prayeth that justice may be done in the premises. 
 
 A. I. 
 
 Before me, 
 J. P. 
 
 Warrant thereon. 
 
 [Commtncement as in the foregoing precedents] Jhat this 
 
 present day divers goods of him, the said A. I., to wit: , 
 
 have feloniously been stolen, taken, and carried away from the 
 house of him, the said A. I., at aforesaid, in the county afore- 
 said, and that he hath just cause to suspect, and doth suspect, 
 
 that A. O., late of , labourer, feloniously did steal, take, and 
 
 carry away the same. [Conclusion as above.] 
 
 It appears from the precedents, that the proper course is, for 
 the information, upon which a warrant is granted, to be reduced 
 to writing and subscribed by the party making the application.
 
 INDEX. 
 
 AB\TMBWT of a nuisance, 145. Animals, noxious, 409 410. 
 
 Appeal, 11. 
 
 by civil deaih, 1C.3. from an order of removal. 
 
 p.ca .11. 19 23'*, -89. ;-;47. . 4 
 
 mu; t be veri- ' from commissioner? of hiirh- 
 
 fid 239. ways. U1. 
 
 judgment on, on a convection, oJ. 
 
 of felony 
 
 Ab ent and ab.^cond.ng debtors, 277, Appearance, cure?, want of, or de- 
 
 fectivp s in (i/i 
 
 Accessory, 15. c:Tes misnomer 190. 
 
 in i.myhem, 38. by infant plaintiff or de- 
 
 Acknowledgujeni of a debt, 299, fendant i97. 
 
 **0- Appo'nt ent of town officer? by 
 
 Acknowledging a fine, recove-y, three justice .77. 79. 4;., 4 >.>.' 
 deed, recognisance, baii, or judg- Apprentices. 13. 
 ment, in the ua:i>e of another per- proceedings when re- 
 son, 42. n:oveal>le. . 65. 
 
 Acquittal, former, 191. when d'sorderly person* 
 
 Ac' ions qai tarn, 5. may be bocnd out, 90. 
 
 limitation of, 301. stealing master's good*, 
 
 Act on on the case for enticing away 
 
 an apprentice 4. Apprenticeship, settlement by, 331, 
 
 for a nuisance, 516. 332. 
 
 318. Arms, ammunition, and arcoutre- 
 
 for a conspiracy. 76. rnentr exempted from distress, ex- 
 
 for exec.iting pro- ecution &c. 312. 
 
 cess oppressively, 80. Arraignment, 24. 
 
 against an innkeep- Arre.-t. . .'">. 
 
 er, 19i5. for a breach of the peace, 8. 
 
 for enticing away a 10. 
 
 wife. 230. by con.-table without war- 
 
 general issue in, rant, 78, 79. 
 
 2. c -9. killing in attempting to, 169. 
 
 Act-on against a con-'table. 80. by verbal order of justice 
 
 by and against hu-band and 416. 
 
 wife, 17 1, i7->;'l73. Ar^on, 3335. 
 
 against a justice, 225. 419. A-hes vide Pot and Pearl Ashei. 
 
 limitation of, i:97. As. ark and battery, 35 39. 
 
 Adjournment, 241. no accesiorv 
 
 Advocate in a justice's court. 234. in, 1. 
 
 Affidavit, 7. ' action for, 230. 
 
 Affi, nation, 320. warrant for 41 T 
 
 Ah'ray, 8. S.'.. As.-ombly. privilege of, 357. 358. 
 and riot, d ; stinction be- Asse-smcnt ami commutation fer 
 
 tween. . r; 66. work on higliwoy, 13ti. 
 
 Allegiance, oath of, 31:'. Asse sort, 401. 406. 
 
 Ambassador and hi? servants privi- As>u::.ps!t, genernl is-ue in, S59. 
 
 leired froc arrest, 359, 360. Attachment for costs, 65. 
 
 Amendments and jpnfsils. 19. VJ3. to make a rtrn. 67.
 
 164 
 
 INDEX. 
 
 Attachment against absent and ab- 
 sconding debtor-, 276, .11. 
 
 Attainder former, 191. 
 
 Attorneys -9. 
 
 not to be summoned on 
 
 juries. 214. 
 
 purchasing bond, &c. to 
 
 sue on, 310. 
 
 privilege of, 359. 
 
 Aulerfoils acifiiit, 19!. 194. 
 Auttrfoits conrict. .91. 
 Auterfoils attaint, 191. 
 
 B. 
 
 BAIL, 39. 
 
 where a dangerous wound has 
 
 been p ; ven 
 
 where the coaimitTtent was ir- 
 regular 74. 
 
 letting to when an escape. 97. 
 
 when a single juhtice cannot 
 
 take, '.. 
 
 Bank notes, 42. 122, 1:23. 
 
 Ban etry. 310. 
 
 Bbstard 4*?. 
 
 's putative grandfather not 
 
 bo.md to -upport him, b2<5. 
 
 settlement of, 331. 
 
 Battery, 35. 
 
 Beggar-, f 9. 
 
 Benefit of clergy, abolished, 103. 
 
 Be! ting, 127. 128. 
 
 Bigamy an improper term, 324. 
 
 Bill of exceptions, 13. 
 
 Birth, settlement by, 329, 330. 
 
 Blasphemy, 175, 176. 
 
 Boundaries of towns, 414. 
 
 Breach of the peace, 26. 36. 121. 174. 
 Et vide Affray. Surety of the 
 Peace. 
 
 puni. liable in spe- 
 cial sessions, 377. 
 
 arre't for. 416. 
 
 Cattle, may be prevented from going 
 
 at la.-ge 4 8. 
 
 Certificate of a justice, J.76. 
 of overseers of the poor, 
 
 345. 346. 
 Cer.iorari. 61. 
 to a justice's court, 67. n. 
 
 73. 
 to remove proceeding! for 
 
 forcible entry. 1 . 
 to remove proceedings 
 
 under the act relative to h gh- 
 
 way- " 4 . 
 when a supersede;* 
 
 -7 .. 
 Challenge to fight, 95. 96. 
 
 to a>>ry, t!3. 263. 
 
 Champerty, 2 9. 
 
 Chancellor jr.ri dict'on as to idiot? 
 
 and lunatics 7. 
 Cha ge~ town, 414, 415. 
 Cheat, 68. 
 Civil remedy not merged in felony. 
 
 10- iOS. ' 
 
 death. 173, 174. 183. 
 
 Clerk ride Apprentices. 
 
 Coin, 70. 
 
 Collector, action against, 27. 
 
 appointment of. 401. 
 
 bond to be giren by. 405. 
 
 refusing to serve 4 6. 
 
 topay :ioney received 415. 
 
 Commissioners .of highway, ride 
 
 Highway.-. 
 appoint- 
 
 meni of 401. 
 
 of turnpikes. 161,162. 
 
 of excise, :9f*. 
 
 ex officio, to take oaths 
 
 Breaking open doors, 9. 29, SO. 32. 
 114. 370, 571. 
 
 into a dwelling house, 291, 
 
 29-2. 
 
 Bribery, 55. 
 
 Bridges, 153. 
 
 Burglary, 56. 
 
 constable must pursue bur- 
 glar, 79. 
 
 indictment for, 188. 
 
 Burning a dwelling house, 33, 34, 35. 
 
 C. 
 
 CARRIAGES meeting, 153. 
 
 of office .-19. 
 Commitment, 71. 
 for refusing to answer 
 
 re peeling a debtor's estate, '6. 
 
 of witness refu-ing to 
 
 be bound, 1> 1. 
 
 by justice for a con- 
 
 tempt, 39", 399. 
 Common land- of towns, 408. 
 Confession. ';.">. 101. 
 
 judgment by, 266. 
 
 Congress, privilege of, S57. 
 Conspiracy, 76. 
 
 Conservators of the peace, 222. 
 Constable, 77. 4"1. 
 
 duty in suppressing af- 
 frays, 9, 10. 
 
 ' a conservator of the 
 
 peace, 223. 
 
 action against, 227.
 
 INDEX. 
 
 Constable, oath to Itcep the jury, Disorderly persons, 8991. 
 
 259. Dixr.-t-',- 
 
 
 bond to be given by, 405. Distress, 91 . 
 
 - refusing to serve, U)6. - - to levy charges of convey*- 
 
 - proper olliver to execute ing party t.. 
 warrant, 417, II::. Dividing towns, 41.'), 
 
 Constitution of the United States, Divorce, 173. 
 
 oatli to support, 820. Dogs. '.M. 
 
 Consul, not privileged from arrest, Drunkenness no excuse for the rdiM 
 
 360. mi sion of a crime, .307 
 
 Conviction ; ill. Duel, ('. 
 
 - no intendment in favour - killing in, 1C> i. lliH. 
 
 of, K'. n. !'l. Dr.eiling, 95, 96. 
 
 - of a forcible entry ami 
 
 detainer, 114. i;. 
 
 con.-trucd strictly, liG. 
 
 ** - itmlc: thfnr,l to prevent ^ EI,ECTI ox, in.'pcctors of, constable 
 immorality. 180. '. ; 57. required to obey, 79. 
 
 - privilege from arrest dor- 
 
 ing. 359. 
 Elisors, 213. 
 Coroners. 84, 1'5. Elopement of wife, 17-.'. 
 
 fonder, 191. 
 
 is matter of record, 223. 
 
 in -rwv'.il 'e.'-sions, 378. 
 
 venire, when directed to, Emancipation, 3.S'), 331. 
 
 Embracery, 222. 310. 
 a conservator of the peace, Escape, 96. 
 
 retaking, and voluntary si. 
 
 action against, 227. 
 
 Corporation, action by and against, 
 
 231. 
 Costs in a popular action, 6. 
 
 on an appeal, 12. 22. 
 
 on certiorari. 65. 67. 274. 
 
 in a justice's court, 279, 230. 
 
 Courts of the United States, 22:'. 
 Courtniartial, 313, 31 i. 
 Covenant, plea in 
 
 Cursing and swearing, 179. 
 
 D. 
 
 DEAD bodies, 85. 
 Deaf, dumb, and blind, 305. 
 Debt, gene.al issue in, 259. 
 Debtors. JJ6- 
 
 joint, 27?. 
 
 Declaration, 6. 236, 237. 
 Deer, 7, 83. 
 Default, 241. 
 
 Defence of one-elf, wife, child. &c-. 
 
 169. 
 
 Demurrer, 19>). 
 l)t tainer, by parol, 72. 100. 
 Dbchargin.e; a party charged with 
 
 felony, 71. 75. 
 a party committed for a 
 
 fine, 86. 
 Discontinuance, 2.S4, 
 
 turn, 30,41. 
 bailing a per-on not bailabto. 
 
 41. 
 of a prisoner committed on a. 
 
 defective warrant, 74. 
 
 where no crime has been com- 
 
 mittfd, 76. 
 
 killing to prevent, 170. 
 
 action for, 7. n. 30. 230. 
 
 defence in, 270. 
 
 Estate, settlement by, .'J.'ij. 
 Evidence, in ca.'e of a summary c<Jn.- 
 
 victlon, 83. 
 
 eonf(;8-ion. 101. 
 
 of marr.'age, 170. 
 
 what :nay be given under 
 
 general iss:;o, 240. and note. 
 (ubpxvna, when u.u-t l>e 
 
 given in, iC-J. 
 of loss of an instrument, 
 
 muft be produced in court. 
 
 5:64. 
 
 of an expedition, 264. 
 improper, hen iintst b*e 
 
 objeofced to, -'ij. 
 
 -i O! 
 
 Of B 
 
 in rape, 363. 
 
 Kxamination, 100, 101. 
 
 of party rirnyir 
 
 rant. 4!
 
 INDEX. 
 
 Excise, tide Inns and Taverns. 
 
 Kxocution, 267. 365. 
 
 Executor and administrator, person- 
 ally liable, when plaintiffs, for a 
 balance of accounts and costs, 266. 
 
 Expenses of prosecutor and witness- 
 es 103, 104. 
 
 Extortion, 101, 102. 
 
 F. 
 
 FALSE imprisonment, justification 
 
 in, 25, 6. 29. 3-2. 79. 
 when it lies, 
 
 28. 73, 74. 226, 227. 233. 
 False return, 67. 
 
 tokens, 68, 69. 
 
 dice. 68. 
 
 pretences, 69, 70. 122. 
 
 Fees of a constable, 80. 
 
 of justices of the peace, 2251 
 
 of poundniasters, 413. 
 Felony, 102. 
 
 rescuing or aiding prisoner 
 
 to e?cape, 98. I'.rf*. 
 
 indictment for, 188. 
 
 arrest for, 416. 
 
 Fences, 410, 411, 412. 
 
 Fence viewers, 401. 410, 411, 412. 
 
 ' neglecting to serve 
 
 or qualify, 406. 
 
 fees, may be limited 
 
 GAMIXG and horse-racing, 127. 
 
 not permitted in tavern?, 
 203. 
 
 . houses, a nuisance, 316.. 
 
 Gaol, commitment to, 7-2. 
 ' impri onmcnt in, 183. 
 
 Gaoler, cannot let to bail, 41. 
 
 Gates, 151. 
 
 General issue, 192. 239. 
 
 notice with, 239,240. 
 
 Grandfather or mother, and grand- 
 children, bound to support one 
 another, 327, 328. 
 
 Guardian ad littm, 197. 307. 
 
 Gunpowder, when a nuisance, 317. 
 
 H. 
 
 HABEAS coRprs. 73, 74. 
 Hawkers and peddlers, 129. 
 Highways, 131. 
 
 assessment to labour on, 
 
 does not gain a settlement, 332. 
 
 Homicide, 16-2. 
 
 justifiable. 9. 163, 169, 170. 
 
 person charged with can- 
 not be discharged, 71. 
 
 inquisition of, vide Core- 
 
 the statute of jeofails, 190. 
 
 cation of jurors iii, 210. 
 Foreign jury, 210. n. 
 Forfeiture, 103. 
 Forgery, 121. 
 
 Former action, 240. n. 252. . 
 Fortunetellers, 89. 
 l-'ruit trees, cutting, 420, 421. 
 
 qualifi- 
 
 by town meeting, 408. 
 Ferries, 105, 106. 
 Fine, distress for, 93, 94. 
 
 on constable or juror, 211. 
 
 of jurors or witnesses, for non- 
 attendance, 260. 
 
 Firemen, exempted from serving on 
 
 juries, 912. 
 Firing, 106. 
 
 woods, 419, 420. 
 
 Firearms, discharging, 315. 
 
 Fixtures. 60. 
 
 Flotsam, 41. 
 
 Forcible taking and marrying, 364. 
 
 Forcible entry and detainer, 1Q7. 
 
 within 
 
 excusable, 168, 169, 170. 
 
 Horseracing, vide. Gaming and horse- 
 racing. 
 
 House, what is, 34. 57. 
 
 of correction, commitment 
 
 to, 72. 
 
 Hue and cry, 31, 32. 
 
 Husband and wife, 3. 170. 
 
 I. 
 
 IDIOTS, 305. 
 Jetsam, 421. 
 Immorality, 174. 
 Impounding, 93. 408. 
 Imprisonment, 131. 
 when to commence 
 
 anew, 98. 
 Indictment, 184. 
 
 for arson, 34, 35. 
 
 for burglary, 58. 
 
 of a forcible entry and 
 
 detainer, 115. 
 
 for perjury, 321. 
 
 Indictable offences, 186. 
 Indorsement of a warrant, 46. 418 
 419.
 
 INDEX. 
 
 Infant, 195. Jury, potit, discharging, 193, 19k 
 bound by his consent to erve oath, 
 
 as an apprentice, 14, 15. mu-t -ii together Und 
 
 binding of an apprentice to, hear the e\ -id -\\< 
 
 J6. how to be kept until 
 
 cannot enter into a recogni- they agree, 259. 
 
 sance, 41. fine for non-attendance, 
 
 unborn, 163. 60. 
 
 when cannot be a rioter, 367. con-table must be sworn 
 
 Information, 5. 82. 197. to attend, 264. 
 
 Informer, 5. Justices of the pence, 
 
 Inns and taverns, 198. Et < /</< Kxtortion. 
 
 conviction under Justices' courts, 229. 
 
 the act for regulating, 257. attorney or COUIIM-] 
 
 Innkeeper, permitting gaming, 129. may be sued in, .S9. 
 
 203. may award a tali-- 
 
 selling on Sunday, 178. 211. 
 
 cannot try a cause, 275. Justification, plea of, 2. 
 
 when guiltyof anuis-anee, 
 
 317. K. 
 Inquisition, 184. 
 
 Instalments on execution, 267. Kiu\ 1PPI1C,281. 
 Insurrection, suppressing, M5. 
 
 Intoxication, no excuse for the com- L. 
 
 mission of crimes, 307. 
 
 Joinder of action, 237, 238. LANDLORD may be admitted to de- 
 Joint debtors, 27-.'. fcml in forcible entry and deiain- 
 Joint tenant- and tenants in common, er, 120. 
 
 not guilty of felony in taking joint Larceny and robbery, 281. 
 
 property, 285. Larceny by a xvvnnt or apnrei 
 
 Journeyman, not to be bound not to 24. 
 
 use his trade, 24. and cheat, distinction lie- 
 Issue, joining, 2i . tween, 68. 
 .Fudge or ju-tiee, cannot be chal- indictment for. 
 
 lenged or excepted to, 214. petit, 294. 
 
 oath of, 318. no acccs-o: }>* in, 1. 
 
 Judgment on a summary conviction, punishable in , 
 
 84. sessions, 377. 
 
 on an indictment, 194. simple, 281. 
 
 in a justice's court, 265, mixed, 291, 292. 
 
 266. Libel, 295, 296. 
 
 Judicial and ministerial acts, 17. 51. License to keep a tavern, 199. 
 
 223. Ligan, 422. 
 
 Jugglers, 89. Limitation of actions, 297. 
 
 Jurisdiction, plea to, 190. of criminal pros -1,1 
 
 Jury, 209. 186. 
 
 grand, 184, 185. Liquor, spirituous, selling on \>.> 
 
 cannot find part of a rade, 313. 
 
 bill, 117. 185. Lotteries, 302. 
 
 number of, 118. 184. Lumber, 304. 
 
 Jury, alien not a good and lawful Lunatic?, 305. 
 
 man, 263. when to be apprfhf[xi .. 
 
 foreign, 210. n. and confined, 90. 
 
 de medietate linguae, 212. 
 
 petit, may find part of a bill, M. 
 
 117, 118, 119. 
 
 when may find a differ- MAIISTFN.VXC E, SO". 
 
 ent offence f:-<>m the one charged, -Malice, 163, 164. 1GG. 
 
 -419 'Malicious prosecution, 2C. .'jl t
 
 468 INDEX. 
 
 Maaalaugirter, 167, 168. Nuisance .'>iti. 
 
 no accessories in, 1. horsci . 
 
 of a per on endeavour- in highway, 145. 
 
 ing to keep the peace, 9. bawdy house, 176. 
 
 of an officer, 11. fful lid record, 192. 239. 
 
 Mandamus, 311. 
 
 Manufactories, what are nuisances, O. 
 
 316,317. OATHS, 318. 
 
 Manumission, 3o7, 388. of jurors and witnesses, *59. 
 
 Manner?, .ettlement of, 331, S32. of constable to keep the jury, 
 
 Marriage, 170. 259. 
 
 age of consent to, 325. of town-officers, A03, 404. 
 
 di. <enl to, 325. Office, settlement by, 331, 332. 
 
 ettlement by, .331. Officer, extortion by, 101, 102. 
 
 Master and -ervant, 3. killing, 164. 
 
 Et vide Apprentices, Servants. taking part of thing in plea, 
 
 Mayhem, 37, 38. 309. 
 
 3fedielate linguae, 212. of militia, duties, and penal- 
 
 Mi.'e stones and guide posts, 152. ties for neglect, 313. 
 
 16 ). oath of, 318, 319. 
 
 Military stores, 312. before whom to be 
 
 Militia, 312. taken, 319. 
 
 > certain descriptions of, ex- not taking, a for- 
 
 empted from serving on juries, feiture of office and uiisdemea- 
 
 212. nour, 319. 
 
 privilege from arrest, 359. Overseers of highways, vide High- 
 Ministerial and judicial act?, 17. 51. ways. 
 Misdemeanour, 31 3. neglecting 
 
 when a prosecution to serve or qualify, 406. 
 
 for may be discharged, ?6, 37. of the poor, ride Poor. 
 
 punishable in special action against, 
 
 sessions, 377. 
 
 justice may grant appointment. 
 
 warrant for, 417. of, 401. 
 
 Misfortune, homicide by, 170. _______ refusing to 
 
 Misnomer, 190. serve, or neglecting to qualify. 
 
 Misprision of felony, 31. 104. 406. 
 
 of treason, 416. 
 
 Mittimus, vide Commitment. P. 
 
 Murder, 163. 
 
 of a person endeavouring to PARDON, 183. 192. 
 
 kep the peace, 9. Parent and child, 3. 183. 
 
 1 of an officer, 10, 11. bound to support 
 
 , duelling, 95. one another, 327, 328. 
 
 indictment for, 188. Parentage, settlement by, 329, 330. 
 
 Musicians, 314. Partition fences, 403. 
 
 Pauper, commitment of, for refusing 
 
 N. to be examined, 74. 
 
 returning after removal, 39. 
 
 .You compos mentis, 305. receiving and entertaining 
 
 Honsuit for misjoinder of parties, without giving notice, 342, 343. 
 
 233. Payment, pleading or giving in evi- 
 
 not a bar to another action, dence, 240. 
 
 255. Peace, killing to preserve, 169. 
 
 plaintiff may elect to be- FirfeAflray, Riot. Surety of tin 
 
 come, 265. Peace. 
 
 judgment on, 266. Pedlars, vide Hawkers and Fed- 
 
 A'ofire, settlement -by, 3ST. ivjarc.
 
 INDEX. 
 
 I'.' 
 
 PeuaJ act, 5 
 
 justice may grant warrant 
 
 for offence against, 416. 
 
 Penalty, 5. 
 
 may be imposed by town 
 
 meeting, and sued for by supervi- 
 sor, 408. 
 
 Perjury and subornation, 320. 
 
 Perjury under absent and abscond- 
 ing debtor act, !iG. 
 
 in swearing to affidavit to 
 
 obtain discharge from execution, 
 269. 
 
 Personating bail, 42. 
 
 Pestilence, 88. 
 
 Playhouses, \vhen a nuisance, 316. 
 
 Pleas, their kinds, 238. 
 
 to an indictment, 190. 
 
 in a qui tain action, 6. 
 
 general issue, 36. 192. 239. 
 
 of another action pending, 148. 
 
 255. 
 
 in abatement, 238. 
 
 special, 239. 
 
 payment, 240. 
 
 former action, 240. n. 252. 
 
 of title, 257. 409. 
 
 Poisoning, 163, 164. 
 
 Polygamy, 324. 
 
 Poor, 3*5. 
 
 children may be bound appren- 
 tices by overseers, 17. 
 
 Poor rate, not removable by certio- 
 rari, 63. 
 
 . how made, 348. 
 
 how raised and levied, 415. 
 
 Popular action, 5. 
 
 Posse romilatus, 27. 29. 
 
 Pot and pearl ashes, 354, 355. 
 
 Pounds V13. 
 
 Poundmasters, 401. 
 
 neglecting to serve or 
 
 qualify, 406. 
 
 Presentment, 184. 
 
 Pretended title, 310. 
 
 Prie;-t, cannot hold an office, 276. 
 
 Principal, 357. 
 
 and accessory, 1. 
 
 Prison breaking, 98. 
 
 Private roads, 136,137. 
 
 Privilege. 357. 
 
 Process, 301. 
 
 serving on Sunday, 179. 
 
 in a qui tain action, 6. 
 
 in a justice's court, 231. 
 
 Prochein amy, 197. 307. 
 
 may be appoint b 
 
 Prostitutes, U9. 
 Public defaulters, 
 -- lands, trespass on, V-'l 
 Punishment in rases not <)! 
 provided for by law, 74. 
 
 QUAKERS, when exempted from 
 
 serving on juries, 21'2. 
 -- exemption from militia 
 
 duty, 313. 
 
 when not compellable to 
 
 act as assessor or collector. 
 Qui tarn action, 5. 
 
 B. 
 
 RAFFLING, 129. 
 
 Rape, 362. 
 
 indictment for, 188. 
 
 Receivers of stolen goods, 3, 4. 294,- 
 295. 
 
 Recognisance, 364. 
 
 forfeiture by not ap- 
 pearing, 20. 49. 
 
 of bail, 41. 
 
 acknowledging in thr 
 
 name of another person, 42. 
 
 removal of, by certiu- 
 
 rari, 62. 66. 
 ri, 64, 65. 
 
 85. 
 
 396. 
 396. 
 
 on obtaining certiorn 
 
 when coroner to iakf 
 
 of witnesses, 100. 
 by ferry-keeper, 105- 
 by innkeeper, 203. 
 
 on a plea of title, 'J.Y7 
 of the peace, 394, 39.0 
 
 of the goodbehavi.il! i 
 to prosecute, 417. 
 
 Regulations of towns, 408, 
 Relief of the poor, 349. 
 Religious meetings, disturbing, 177. 
 Remanding felons and indictments 
 
 103. 
 Remedy by common law or statute 
 
 106. 
 
 Removal of paupers, 338. 
 Renting settlement by, 331, SS2. 
 Rent, S65, 366. 
 Replevin, 94. 
 Re-restitution, 120. 
 Re.- rue, 97. 
 '{i-'-t'-t'it'on of ftolon jroodi, 10?.
 
 470 
 
 INDEX. 
 
 of land forcibly detain- 
 ed, 115, &<,. 
 
 Hc-'aking after an escape, 99. 
 
 Rewards fo: destroying noxious ani- 
 mal and weeds, 41>9, 410. 
 
 Riot, rout, and imiawfui assembly, 
 366, 367. 
 
 Rivers, diverting water of, and ob- 
 stn.ctng, 16. 
 
 public 367, 363. 
 
 Rone)', riik Hisrbways. 
 
 Robber, kii-intr, 69. 
 
 "Robbery, vide Larceny and rol>bery. 
 
 S. 
 
 SEARCH-WARRANT, 368. 
 
 . to search 
 
 for 
 
 deer's skin or ven r '-on, 87. 
 
 Selling liquor to apprentice, servant, 
 cr slave. 205, <H;6. 
 
 Senato". privilege of. 357, 358. 
 
 Separation and separate) mainte- 
 nance iT:'. 
 
 Servants, 371 . 
 
 binding of servants, vide 
 
 Apprentice?. 
 
 when disorderly persons, 
 
 may be bound out, 90. 
 
 committing larceny of mas- 
 ter'", goods, 214. iic6, 287. 
 
 : lenient of, 331. S3,". 
 
 Supervisor to MI'C for penalties, 40;!. 
 Sirpreme coi'rt, jurisdiction of, 62, (IS. 
 Surety of the peace, 8.9.11. :; c .M. 
 - - wife may have 
 
 rv^'ii.-t husband, suid rice, rrrsit, 
 
 174. 
 
 Surety of the good behaviour, 396. 
 --- gamester 
 
 may be compelled to find, 12<i. 
 ---- person of 
 
 bad fame, 175. 
 
 Suspicion of felony, warrant on, 417. 
 Swearing, profane, 179. 
 -- to an oath, and affirmation, 
 
 320. 
 
 T. 
 
 Tales de cirrumstantibus, 211. 261. 
 Taverns, ride Inn- and Tavern?. 
 Taxes, settlement by paying. .;.>{. 
 
 Sess-lons, S74. 
 
 al! one day, 13. 
 
 Settlement of the poor, 329. 
 
 Sheriff, 379. 
 
 a conrervator of the peace, 
 
 27. 222. 
 
 cannot let io bail, 41. 
 
 action against, 27. 
 
 Slaves, 381. 
 
 Soldiers, privilege from arrest, 359. 
 S61. 
 
 Special ses?ions, 377. 
 
 Stabbing, 165. 
 
 Standing mute, 24. 193. 
 
 Statute of limitations, 2.39. 
 
 Strays, 309, 390. 
 
 Subornation, ride Perjury and su- 
 bornation. 
 
 Summons, 20. 51. 390, 391. 
 
 of a juror, 211. 
 
 Sunday, arrest on, 28. 40. 179. 
 
 profanation of, 177. 
 
 Snpersedeas, what is, 120. 
 
 Supervisor, 401. 
 
 refusing to erve, and 
 
 neglecting to qualify, 406. 
 
 - assessment and collection,. 
 
 414, 415. 
 
 Theft bote, 3. 104- 
 Timber cutiing, 420, 421. 
 Toll, and toil gatherer, 155. 
 Town clerk, 401. 
 -- duty in relation to 
 
 strays, 389, 390. 
 
 refusing to serve, and 
 
 negating to qualify, 405. 
 
 duiies of, 407, 408. 
 
 Towns, 400. 
 
 support of poor, after divi- 
 sion of, 316, 327. 
 
 Town meetings, 401, 402. 
 
 Traverse of force, 118. 
 
 may be by parol, 11?. 
 
 Treason, 415, 416. 
 
 no accessories in, 1. 
 
 two witnesses in, 125. 
 
 indictment for, 13o. 
 
 and riot, distinction be- 
 tween, 367. 
 
 Treasure trove, 84, 85. 
 
 Trees, cutting, 426, 421. 
 
 Trespass, when it lies against a jus- 
 tice, 84. 227. 275. 
 
 for injuring trees in high- 
 way, 134. 
 
 against an officer, 142, 143. 
 general issue in, 239. 
 
 wilful or malicious, 267. 
 
 in receiving the goods of 
 
 husband from his wife, 285. 
 
 on town lands, 409, 
 
 warrant for, 417.
 
 INDEX. 
 
 471 
 
 'Trespass in cutting trees, l , 
 
 on public lands, 421. 
 
 defence and ju tification 
 
 in, 28. 36. 79. Hi. 133. C::'J. 
 Trial, 59. 
 Turnpikes, 151. 
 
 V. 
 
 VAGRANT, 89. 
 
 Variance, 
 
 Ven:re facias, 210. 259, 260. 
 
 VV>,lirt. 219, 2:0, 221. 265. 
 
 Voire dire, 217. 
 
 W. 
 
 WARRANT 416. 
 
 execution of, 28. S3. 
 
 ' return of, 33. 
 
 to apprehend the father 
 
 of a bastard chiid, and endorsing 
 1 sucli warrant, 45, 46. 
 
 constable bound to Ex- 
 
 ecute, 78. 
 
 when constable 
 
 may 
 
 make a deputy to execute, 78. 
 
 to examine a debtor, tf6. 
 
 to break open home to 
 
 take goods for rent, 92. 
 Weeds, 410. 
 
 "Wife, vide Husband and wife. 
 cannot commit larceny of her 
 
 husband's goods, 285. 
 
 husband bound to mpport, 328. 
 
 but not her parents or children, 
 
 328. 
 may demand Miretyof the peace 
 
 against her husband, 399. 
 WrH or iiitent, concurrmcp of, nn- 
 
 cruninalilu, 
 305, ^iC>. 
 
 \Vtlbe80, informer, when r;in,i.ii \,t- 
 83. 
 
 deposition of, to In- n^ed in 
 
 another si;; 
 
 re-cognisance of, 101. 
 
 expenses of, 1 .', l.'i. 
 
 under the act against gam- 
 in;:, 128. 
 
 - when wife maybe, 44.174. 
 
 interested, 147. 
 
 prosecutor on an indict- 
 
 ment 
 
 two in treason, 185. 
 oath, 259. 
 
 line for non-attendance, 
 
 260. 
 
 - action against, for non- 
 attendance, 261. 
 
 subpoenaing, 262. 263. 
 
 who must swear, 263. 
 
 when security for defend- 
 ant, must be released, 
 
 party cannot be, 263. 
 
 subpoenaing before arbi- 
 
 trators, 28H. 
 
 idiots, lunatics, and mad- 
 men, 307. 
 
 privilege from arrest, 360, 
 
 361. 
 
 steve, 381 . 
 
 Women, when not to be imprisoned 
 on execution, -71. 
 
 forcible taking and marry- 
 ing of. 364. 
 
 Woods, 419 ; 420, 421. 
 
 Wounding, 38. 
 
 Wreck, 421, 422, 423. 
 
 Writ of error. 61.r>. 62
 
 ARREST. 
 
 A man is protected by his own house from arrest on civil pro- s Co. >t 
 <:ess, the outer dour and windows of which cannot be broken open Cowp ' '" 
 to make an arrest ; but if the officer have gained an entrance into 
 the house, by the outer door being open, he may break open an 
 inner door to take the defendant. As to what shall be deemed 
 the house of the defendant, where parts of the same building are 
 occupied by different persons, it may be laid down as a general 
 rule, that no tenement can confer this immunity, the breaking of 2 ^a*t P. c. 
 which, in the night time, with a felonious intent, cannot be charged 
 in an indictment for burglary to have been committed in the man- 
 sion of the occupant. Hence, the apartment of an inmate or Cowp. i. 
 lodger, hiring part of a house, the residue being occupied by his 
 landlord, or some other person, and both using the same outer 
 door, is not protected; and it has been decided, that where a 5Johm.K?p. 
 man let out part of his house, reserving for himself and occupy- 
 ing an inner room, an officer entering through the outer door of 
 the house, being open, might break open the inner door to execute 
 process. 
 
 An officer may break open doors, to search for stolen goods, 10 Johm. 
 after a demand and refusal of admission. Rep ' 2W ' 
 
 The body of a defendant who has been arrested may be detain- H John?. 
 ed under arrest, after his trial, until the court shall have made tin 
 their opinion. 
 
 ARSON. 
 
 Every person who shall wilfully burn any building, ship, rr 
 vessel, or any goods, wares, or merchandise, or other chattel, 
 with intent to prejudice any person or persons, or body corpo- 
 rate, that hath or shall underwrite any policy or policies of insur- 
 ance thereon, and accessories to the same, before the fact, shall, 
 upon conviction thereof, be punished with imprisonment for lif' 1 
 in the state prison. Sess. 38. c. 123. 
 
 BANK NOTES. 
 
 By the act sess. 38. c. 32. passed February 10, 1315, the fir j t 
 of the act entitled., an act to prevent the passing and rr 
 f r,o 1
 
 474 ADDENDA. 
 
 cc-iving of bank notes less than Iho nominal value of one dollar. 
 ; is suspended until the end of the next session 
 
 of :'ie legislature, until which time it shall be lawful to pass and 
 receive bank notes less than the nominal value of one dollar. 
 
 EXECUTION. 
 
 All sheep, to the number often, together with their fleeces, and 
 
 . ed from the same ; one cow : two swine, and 
 
 y wearing apparel and bedding, 
 
 necessary cooking utensils, one table, tix chairs^six kniv 
 forks, six plates, and six tea-cups and saucers, owned by a?; 
 
 heing a householder, shall !. from execution and 
 
 . t,-nt. Se?- . J~. 
 
 'cutions to be issued on judgment? hereafter to be re- 
 , ed upon contracts, it shall be lawful to direct the collection 
 of the interest on the said judgment from the time of recovering 
 ' e same until puid. Sess. Sti. c. 203. s. 50. 
 
 IMMORALITY. 
 
 It shaii not be lawful for the commissioners of excise to grant a 
 license, or permit any person to retail spirituous liquors under five 
 gallons, if, in the opinion of such commissioners, such applicant is 
 i.'Ot of good moral character. Sess. 38. c. 1(37. 
 
 If any person shall, on the day of any militia parade or rendez- 
 vous, or of any town meeting or election, or the assembling of any 
 Inhabitants of this state to celebrate the anniversary of American 
 independence, expose to the public, or have in his possession, 
 within half a rnile of such parade, town meeting, election, or cele- 
 bration, as aforesaid, any eo-table, wheel of fortune, or other 
 gaming table, or gaming box or machine, he shall forfeit the sum 
 cft\s '.ollars, to the use of the poor of the city or town in 
 
 v, hich such oOence may be committed, to be sued for and recover- 
 ed by and in the name of the overseer? of the poor of such city 
 or town, in any court of competent jurisdiction, lirid. 
 
 And it is made the duty of all sheriffs, their under-sheriffs, and 
 
 ;;ers, marshals, and constables, and it is made 
 
 all justices of the peace to break, burn, or otherwise 
 
 destroy ail and every such table, wheel, or machine, so exposed 
 
 o.- po: Hid. 
 
 JUSTICES OF THE PEACE. 
 
 Whenever any new general commission for the peace for any 
 !! be received at the clerk's office for such count-
 
 DA. 
 
 clerk shall forlhv.-Kh give notice thereof to nil p- n in 
 
 commisaioD, and not named in such new general cniniiiis 
 and, from the time of reo i notice, or in case of failure, 
 
 of being so notified, frn:: Cation of thirty 
 
 iVoni tho time of the receipt of such commission at the clerk's ofc 
 ; -iisaid, ev >fthc peace shall cease to act in his said 
 
 office, unless special!; <[ by statute to proceed in btiv 
 
 rooR. 
 
 The family of an}' person \vho now is. or may hcrc:iftcr be call- 
 ed into militia service of this slate, or of the. United States, during 
 the time of his actually being in such service, and for thirty days 
 thereafter, shall not be removed, except, where such family shall 
 have removed into such city or town since such person was order- 
 ed into service. Sess. 38. c. 13. s. 1. 
 
 The overseers of the poor of the town in which such family 
 resided, at the time such person was ordered into service, shall 
 afford the same relief to his family during his absence, as if he was 
 legally settled, s. 2. 
 
 The expense of supporting the family of surh person, provided 
 he is not legally settled in the city or town which may incur such 
 expense, and all the expense of supporting the family of any per- 
 son who has or may enter into the army or navy of the United 
 States, or into the regular service of this state, who has no legal 
 settlement in this state, shall be a charge upon the city or county 
 in which they are found to reside, and shall be allowed in the city 
 or county treasurer's account with the state treasury, s. 3. 
 
 TOWNS. 
 
 By the act sess. 37. c. 200. s. 30. passed dpril 15, 1814, the 
 following words are to be inserted, after the first day of March then 
 next, in addition to the oaths to be taken by the supervisor, town 
 clerk, assessors, commissioners of highways, and overseers of the 
 poor of the several towns in this state : 
 
 " And that I am a citizen of the United States, and th.it I am a 
 freeholder, and an actual resident of the. town of [here insert the 
 name of the town] in the county of [here insert the name of the 
 county."] 
 
 WOLVES. 
 
 Any person who shall kill any grown wolf, within any county in 
 this state, shall be entitled to a state bounty oftwcnty dolhr c . and
 
 [.76 ADDENDA. 
 
 for each wolf's whelp seven dollars and fifty cents, to he paid, in 
 the first instance, by the treasurer of the county in which tliey shall 
 be killed, and charged and allowed in his account with the state 
 treasury; and he shall he entitled to the like bounty from the 
 county in which such wolf or whelp shall be killed, to be audited 
 allowed, and paid, as other contingent county charges. Sess. 38. 
 c. 123. s. I. 
 
 To obtain such bounty, the person killing such wolf or whelp 
 shall take the head thereof, the skin and ears entire thereon, to 
 some justice of the peace of the county, and make oath of the 
 time and place when and where, and by whom, it was taken and 
 killed, and shall also submit himself to such further examination, 
 upon oath, concerning the taking and killing such wolf or whelp, 
 as the said justice may require, who shall thereupon cut off and 
 burn the ears, and give the person so applying a certificate thereof, 
 and setting forth the substance of such oath and examination, s. 2. 
 
 No bounty shall be paid for taking and killing a whelp, unless it 
 shall appear, upon the examination of the person applying for the 
 bounty, that the mother was not taken before she brought forth 
 such whelp, s. 3. 
 
 If any person applying for a certificate shall be guilty of wilful 
 and corrupt false swearing in his examination, he shall be adjudged 
 guilty of wilful and corrupt perjury, and shall, upon conviction 
 thereof, suffer the punishment directed by law in cases of wilful 
 and corrupt perjury, s. 4. 
 
 ERRATA. 
 
 Paije 43, last line, Tor 8 read 5. 
 
 . 61, note (*) f9r Appendix rend post , />. 229. 
 
 70, line 19, for office rvM\ offence. 
 
 36, after carriage read t/ie indictment in both these cases teas sustained. 
 
 71, lim- 36, after fa reail the. 
 
 136. after the last lint-, read certain, ofieldch day notice shall It given by the overseer ii 
 
 the uivner or orcuftnnt, and being so met they shall view the lands 
 
 143. line -tS. for fine ivad//ne?. 
 
 161, 1 1. for Inspectors read Commissioner*. 
 
 . 166, 27 after him read a. 
 
 18}, 16. for imprisonment read prison. 
 
 191. 3. H. 30. 33. 45, for anterfoiti read avterfoitt. 
 
 209, 14, for 31 read 36. 
 
 214, 6, for recusatis read reeusatio. 
 
 267, 13, for or n-zt\J'or. 
 
 287, 11, after like read this ii not, as respects tfie servant, K receipt of the fnadt by tfo 
 
 nifi!'cr. 
 ~ 293, 46, after mmry irnd war?. 


 
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